Right to present a defense; Evidence of the victims’ father’s immigration status; Relevance; Sentencing; Scoring of OVs 4 & 10; MCL 777.34(1)(a) & (2); MCL 777.40(1)(a); “Predatory conduct”; People v Cannon; Reasonableness of a departure sentence; People v Dixon-Bey

While the court held that evidence of the victims’ father’s immigration status was irrelevant and properly excluded, and that the trial court did not err in scoring OVs 4 and 10, it remanded for clarification of defendant’s departure sentence or resentencing. It retained jurisdiction. He was convicted of CSC II and sentenced to 14 to 22 years. He first argued that the trial court denied him his right to present a defense, contending that their father’s status “provided a motivation for the victims to lie[.]” The court disagreed. His theory of the case was that his then-wife “Mrs. Hunt and the victims’ father had a romantic relationship and the victims fabricated allegations of sexual assault so they could remain in the United States with their father (or, presumably, with Mrs. Hunt if their father was deported).” But he did not offer any evidence that the “father was even at risk of deportation. To the contrary, the record reflects receipt of a letter from the father’s federal attorney stating that” he was not subject to deportation. Defendant also failed to offer “any logical connection between the father’s immigration status and the victims’ willingness to lie about the sexual assault allegations.” The court next upheld the 10-point score for OV 4 and the 15-point score for OV 10. But it noted that after “expressly stating that it was going to stay within” the guidelines, the trial court “sentenced defendant to a minimum term of imprisonment almost twice as high as the minimum’s maximum of 88 months (approximately 7.3 years).” The reasons it gave for this sentence included his “betrayal of the victims’ trust, the abuse of his authority as surrogate parent to exploit their vulnerability for his own sexual gratification, and the fact that the guidelines did not ‘reflect the number of times’ that” he abused them. The trial court also noted the serious nature of his crime “and deemed it ‘worthy of really a harsh sanction.’” But it was not entirely clear if it “intended these reasons as justification for a sentence at the high end of the” guidelines or for the departure sentence it actually imposed. Further, if the latter, indicating “that the guidelines may or may not take certain factors into account is not sufficient to justify ‘why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been.’”