UNPUBLISHED
PER CURIAM.
A jury convicted defendant of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b); assault by strangulation, MCL 750.84(1)(b); lying to a peace officer, MCL 750.479c(2)(c); and furnishing alcohol to a minor, MCL 436.1701(1)(a). The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 162 to 270 months' imprisonment for CSC-III, 10 to 15 years' imprisonment for assault, 2 to 3 years' imprisonment for lying to a peace officer, and time served for furnishing alcohol to a minor. Defendant raises a meritless challenge to the sufficiency of the evidence supporting his CSC and assault convictions. Defendant is entitled to resentencing, however, as the prosecution presented insufficient evidence to support a 10-point score for offense variable (OV) 4, psychological injury to the victim, or a 10-point score for OV 10, exploitation of a vulnerable victim. We affirm defendant's convictions, vacate his sentences and remand for resentencing.
I. BACKGROUND
On the evening of June 21, 2015, defendant lured an 18-year-old homeless man to his apartment with the promise of a meal. The victim was already under the influence of alcohol and defendant provided additional libations at his home. Defendant subsequently demanded sex and told the victim that if he did not comply, defendant's gang cohorts would harm him. Fearing for his life, the victim removed his clothing. Defendant then penetrated the victim's anus with his finger, fist, and penis. The victim testified that defendant became angry because he "didn't want to have sex" and so wrapped his hands around the victim's neck, causing him to lose consciousness for several seconds. Afterward the victim redressed and attempted to leave but defendant blocked the door. The victim was finally able to escape at approximately 4:00 a.m.
The following day, the victim went to the YMCA for a sexual assault examination. The examining nurse noted no observable injury to the victim's genitals or anus. She described this lack of evidence as "fairly common." However, the victim had "multiple linear red scratches" on his neck consistent with "defensive wounds" in a strangulation situation. The nurse collected swabs from the victim's anus, both interior and exterior. The two anal swabs were packaged together for testing. Later evaluation uncovered seminal fluid matching defendant's genetic profile.
Defendant admitted to bringing the victim to his apartment for intercourse. He claimed that the two engaged in consensual fellatio, but denied penetrating the victim's anus. The jury rejected this defense and convicted defendant as charged.
II. SUFFICIENCY OF THE EVIDENCE
Defendant now contends that the prosecution presented insufficient evidence to support his CSC-III and assault by strangulation convictions. We review de novo challenges to the sufficiency of the evidence, "viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich.App. 289, 296; 856 N.W.2d 222 (2014). We may not interfere with the jury's assessment of witness credibility. People v Solloway, 316 Mich.App. 174, 180; 891 N.W.2d 255 (2016). "All conflicts in the evidence must be resolved in favor of the prosecution, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime." Id. at 180-181 (citations omitted). And "the complainant's testimony can, by itself, be sufficient to support a conviction of CSC." People v Szalma, 487 Mich. 708, 724; 790 N.W.2d 662 (2010).
To support a conviction for CSC-III based on force or coercion under MCL 750.520b(1)(b), the prosecution must establish beyond a reasonable doubt that (1) the defendant engaged in sexual penetration with the victim; and (2) "[f]orce or coercion [was] used to accomplish the sexual penetration." MCL 750.520d(1)(b); People v Eisen, 296 Mich.App. 326, 333; 820 N.W.2d 229 (2012). "The existence of force or coercion is to be determined in light of all the circumstances, and includes, but is not limited to, acts of physical force or violence, threats of force, threats of retaliation, inappropriate medical treatment, or concealment or surprise to overcome the victim." Eisen, 296 Mich App at 333 (quotation marks and citation omitted). MCL 750.520d(1)(b) directs courts to the examples of force or coercion in MCL 750.520b(1)(f)(i)-(v), which provide for conviction:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
Although defendant denied penetrating the victim's anus with any part of his body, sperm cells matching defendant's DNA profile were found in the victim's anal cavity. This physical evidence corroborated the victim's story. Accordingly, the prosecutor presented sufficient evidence that defendant engaged in a sexual penetration of the victim.
The prosecutor also established that defendant employed force or coercion to effectuate the penetration under multiple variables. The prosecution satisfied MCL 750.520b(1)(f)(i) with evidence that defendant strangled the victim to overcome his unwilling victim. The sexual assault nurse testified that the victim reported that defendant threatened to kill him if he did not submit to sexual acts, falling within the example of MCL 750.520b(1)(f)(ii). Further, MCL 750.520b(1)(f)(iii) was met with evidence that defendant threatened the victim with violence at the hands of gang members if he did not comply with defendant's demands. Defendant's challenge to the evidentiary support for his conviction is completely without merit.
The prosecution also presented sufficient evidence to support defendant's assault conviction. MCL 750.84(1)(b) requires that the prosecution prove that defendant assaulted another person by strangulation or suffocation. Strangulation occurs if the assailant intentionally impedes the normal breathing of a victim. MCL 750.84(2). The victim testified that defendant became angry when the victim indicated he did not want to have sex. The victim described that defendant wrapped his hands around his neck and so interfered with the victim's breathing that he passed out for several seconds. Again, the victim's story was corroborated by physical evidence. The victim had several lateral scratches on his neck consistent with a person attempting to claw away hands that are strangling him. This evidence was more than sufficient to support defendant's conviction.
III. SCORING OF THE OFFENSE VARIABLES
Before sentencing, the Department of Corrections scored the various offense and prior record variables applicable to this offense. The DOC assessed 10 points for OV 4 and OV 10. Defendant correctly asserts that these scores were not supported by the record.
Defendant did not challenge the scoring of his guidelines at sentencing. However, he later preserved his challenge with a motion to remand in this Court. We review de novo questions involving the interpretation and application of the sentencing guidelines. People v Francisco, 474 Mich. 82, 85; 711 N.W.2d 44 (2006). "[F]actual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Miller, 482 Mich. 540, 544; 759 N.W.2d 850 (2008) (quotation marks and citation omitted). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy, 494 Mich at 438.
MCL 777.34 governs the assessment of points for OV 4 as follows:
(1) [OV] 4 is psychological injury to a victim. Score [OV] 4 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) Serious psychological injury requiring professional treatment occurred to a victim. . . . . 10 points
(b) No serious psychological injury requiring professional treatment occurred to a victim. . . . . 0 points
(2) Score 10 points if the serious psychological injury may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.
While the victim need not actually seek out professional treatment, there must be some evidence of actual injury to support scoring this variable. People v Lockett, 295 Mich.App. 165, 182-183; 814 N.W.2d 295 (2012). The Supreme Court recently clarified:
[A] trial court may not simply assume that someone in the victim's position would have suffered psychological harm because MCL 777.34 requires that serious psychological injury occurred to a victim, not that a reasonable person in that situation would have suffered a serious psychological injury. [People v White, 501 Mich. 160, 163; 905 N.W.2d 228 (2017) (quotation marks and citations omitted).]
Moreover, evidence that the victim was fearful during the offense, standing alone, is insufficient to meet the statutory requirements. Id. at 164.
While crime victims are often obviously, and understandably, frightened when a crime is being perpetrated, this fear does not necessarily result in a "serious psychological injury" and, as addressed earlier, a court cannot merely assume that a victim has suffered a "serious psychological injury" solely because of the characteristics of the crime. [Id.]
The victim testified that he was fearful for his life during the assault and he shared those feelings with the sexual assault examiner the following morning. However, the victim provided no testimony regarding the lasting effects of defendant's attack. The victim also failed to complete and submit a victim's impact statement. Accordingly, there was no evidence upon which to base a 10-point score for OV 4.
The DOC also assessed 10 points for OV 10. MCL 777.40 governs the assessment of points for this variable as follows:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) Predatory conduct was involved. . . . . . 15 points
(b) The offender exploited a victim's physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status. . . . . 10 points
(c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious. . . . . 5 points
(d) The offender did not exploit a victim's vulnerability. . . . . 0 points
The record evidence does not support the 10-point score. The victim was not physically disabled. He was a high school graduate who had taken no special education classes, so it is unlikely he would qualify as mentally disabled under this statute. Defendant did not exploit the victim's youth. The victim was 18 years old, not a minor. He was 30 years younger than defendant, and was bigger and stronger. Moreover, the victim and defendant did not share a domestic relationship and defendant was not in a position of authority over the victim.
However, the court could have assessed five points for OV 10 based on defendant's exploitation of the victim's intoxication. The victim had been drinking heavily at the park before defendant invited him back to his house for dinner. Defendant proceeded to ply the victim with more alcohol. The victim's level of intoxication likely assisted defendant in overpowering his younger, stronger victim.
Defendant's original OV score was 50, placing him OV Level V. Less the 15 points improperly assessed for OVs 4 and 10, defendant would be placed in OV Level IV. As a second habitual offender, the score reduction changes defendant's minimum sentencing guidelines range from 78 to 162 months to 72 to 150 months. Defendant's minimum sentence for his highest level offense is 162 months, which now falls outside the minimum range. We are therefore required to vacate defendant's sentences and remand for resentencing. See MCL 769.34(10); People v Jackson, 487 Mich. 783, 793; 790 N.W.2d 340 (2010) ("[A] defendant is entitled to resentencing when the trial court erred in scoring an offense variable, and the error affected the statutory sentencing guidelines range.")
We affirm defendant's convictions but vacate his sentences and remand for resentencing. We do not retain jurisdiction.
