Double jeopardy; People v Lett; Principle that retrial is permissible under double-jeopardy principles where defendant consented to the mistrial & was not goaded into consenting by intentional prosecutorial misconduct; People v Tracey; Juror misconduct; People v Budzyn; Sufficiency of the evidence; CSC I; MCL 750.520b; Tampering with evidence in a criminal case; MCL 750.483a(6); Sentencing; Scoring of OV 3 (bodily injury requiring medical treatment); MCL 777.33(1)(d); People v Barnes; Scoring of OVs 1, 2, & 12; Acquitted conduct; People v Beck; Resentencing; People v Francisco; Sexual assault nurse examiner (SANE)

The court held that double jeopardy did not bar defendant’s retrial, that the trial court did not err by denying his motion for a new trial, and that the evidence was sufficient to support his convictions. However, it found that he was entitled to resentencing because the trial court relied on acquitted conduct in scoring his guidelines. Thus, the court affirmed his convictions, but vacated his sentences and remanded for resentencing. He was convicted of CSC I and tampering with evidence in a criminal case for sexually assaulting the victim and intentionally destroying evidence of the crime. The trial court sentenced him to 15 to 60 years for the former and 6 to 10 for the latter, to be served consecutively. On appeal, the court rejected his argument that his first mistrial was the result of prosecutorial misconduct and, thus, his second retrial violated double jeopardy. It noted the prosecutor’s allegedly improper question “was proper—even if the response to the question was not.” Further, contrary to defendant’s argument, the record indicated that “rather than goading him to move for a mistrial, the prosecutor opposed his motion.” Moreover, defendant “moved for a mistrial and consented to it being granted.” The court also rejected his claim that the trial court erred by denying his motion for a new trial because the jury was exposed to extraneous information. “Because the trial court acted promptly upon becoming aware of the juror’s exposure to an outside influence, and given the juror’s repeated assurances that he would not consider that outside influence during deliberations and would only consider the evidence presented in court and the law as instructed by the trial court, there is no real and substantial possibility that the juror’s discussion of the case with his sister affected his verdict.” The court further rejected his contention that the evidence was insufficient to support his convictions, noting the jury was free to credit the victim’s “principal testimony describing the sexual assault and [defendant’s] actions in forcing her to bathe and taking her underwear.” In addition, the fact that she was impeached did not negate the SANE’s "testimony that there was vaginal tearing.” Finally, although the court rejected his argument that the trial court erred in scoring OV 3, it agreed that he was entitled to resentencing because the trial court relied on acquitted conduct to score the sentencing guidelines, which affected his appropriate guidelines range.