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People v. Hearns11/19/2002
UNPUBLISHED
Defendant was charged with three counts of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(F) (causing personal injury to the victim and force and coercion used to accomplish sexual penetration). Following a bench trial, defendant was convicted of one count of first-degree criminal sexual conduct and acquitted of the other two counts. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to thirty to sixty years' imprisonment. Defendant appeals of right. We affirm.
Defendant asks us to vacate his conviction on the ground that the trial court rendered inconsistent verdicts. Defendant contends that his conviction of one count of first-degree criminal sexual conduct is inconsistent with the trial court's findings and with his acquittal of the other two counts of first-degree criminal sexual conduct. He argues that the court could not have, consistent with fact or logic, believed the victim's testimony as it pertained to one incident and not as it pertained to the other incidents. We disagree.
We review de novo questions of law and questions of application of law to the facts. People v Barrera, 451 Mich 261, 269 n 7; 547 NW2d 280 (1996); People v Aldrich, 246 Mich App 101, 116; 631 NW2d 67 (2001). In doing so, we give due deference to the trial court in determining the weight of the evidence and the credibility of witnesses. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988).
A judge who sits without a jury in a criminal case must make specific findings of fact and state conclusions of law. People v Shields, 200 Mich App 554, 558; 504 NW2d 711 (1993). The verdict reached in a bench trial must be consistent with the trial court's findings of fact. See People v Smith, 231 Mich App 50, 53; 585 NW2d 755 (1998). Although juries "are not held to any rules of logic" and possess the "capacity for leniency," " hese considerations change when a case is tried by a judge sitting without a jury." People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980). The courts do "not normally enjoy the freedom to be inconsistent or to compromise." People v Burgess, 419 Mich 305, 310-311; 353 NW2d 444 (1984). For verdicts to be inconsistent, the factual findings underlying the verdicts must be inconsistent. Smith, supra at 53.
The verdicts are not inconsistent. The victim testified that defendant sexually assaulted her three times, twice forcing her to perform fellatio on him and once forcing her to engage in sexual intercourse. The court found that defendant repeatedly struck the victim in the head and then penetrated her vagina with his penis against her will. These findings support defendant's conviction of first-degree criminal sexual conduct based on sexual intercourse, MCL 750.520b(1)(F), and are not inconsistent with defendant's acquittal of the other charges. The trial court could logically and consistently find that the victim's testimony was sufficient to establish that defendant engaged in sexual intercourse with complainant, and at the same time find that the alleged acts of oral penetration were not established beyond a reasonable doubt. The factfinder, whether the judge or the jury, "may choose to believe or disbelieve any witness or any evidence presented in reaching a verdict." People v Cummings, 139 Mich App 286, 294; 362 NW2d 252 (1984). Under these circumstances, in the absence of any factual inconsistency, we will not reverse defendant's conviction of an offense of which he was clearly found guilty beyond a reasonable doubt. Smith, supra at 53.
Defendant next contends that he is entitled to be resentenced because the trial court incorrectly scored Offense Variables (OV) 7, 10, and 11. Defendant failed
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