Great weight of the evidence challenges to CSC I & II convictions; People v Lemmon; Plain error review; People v Musser

Rejecting defendant’s great weight of the evidence challenge to the jury’s verdict convicting him of CSC I and II, the court affirmed. He contended the evidence preponderated “so heavily against the verdict it would be a miscarriage of justice to allow” it to stand. His argument was based “on attacking the victim’s credibility.” However, while he was “able to identify inconsistencies in” her preliminary exam and trial testimonies, “her trial testimony did not directly contradict her” preliminary exam testimony – rather, it “provided additional details. [She] testified at trial that she screamed when defendant assaulted her in bed and that [he] masturbated while she was in the shower. Neither of these details were mentioned in her preliminary” exam testimony. Although inconsistencies between the preliminary exam and trial testimonies “may have impeached her testimony to some extent, these inconsistencies were relatively minor and did not go to the essential elements of the crimes. Thus, the victim’s trial testimony was not ‘seriously impeached,’ and the case was not ‘marked by uncertainties and discrepancies.’” Defendant additionally asserted she “lacked credibility because she lied about the assaults to exact revenge on [him] for taking away her quinceañera.” There was testimony he “was a strict stepfather who took away the victim’s phone and did not permit her to have a quinceañera.” There was also testimony they had a father-daughter relationship and that the victim “waited until after her mother and defendant’s relationship ended to report the assaults out of fear of splitting her family apart. Given the jury’s verdict, it appears the jury rejected defendant’s retribution theory, at least in part, which it was entitled to do.” Next, he contended the jury must have had doubts about the victim’s credibility because it acquitted him “of two counts of CSC I involving penile-vaginal penetration and cunnilingus, as well as all counts related to his stepson.” But the court could not speculate whether the jury did so based on possible doubts about the victim’s credibility. The testimony related to the two CSC I charges, which tended “to support sexual contact but not penetration, is equally reasonable to explain the jury’s verdicts.”