Sufficiency of the evidence; CSC II; MCL 750.520c(1)(a) & (2)(b); “Sexual contact”; MCL 750.520a(q); “Intimate parts”; MCL 750.520a(f); Sentencing; OVs 4 (psychological injury to a victim) & 10 (“exploitation of a vulnerable victim”); Ineffective assistance of counsel; Failure to object; Judgment of sentence (JOS)

Concluding that (1) the evidence of sexual contact was sufficient to sustain defendant’s CSC II conviction, (2) the trial court did not err by scoring OV 4, and (3) any possible error as to OV 10 was harmless, the court affirmed his conviction and sentence (as a fourth-offense habitual offender) to 5 to 15 years but remanded for correction of a clerical error in his JOS. The only element of his CSC II conviction that defendant challenged was the first one. He contended the evidence merely showed that he touched victim-DF’s “stomach, not any intimate part as defined by statute.” But the court held that DF’s testimony about “the sexual contact at his mother’s house was sufficient to sustain the” conviction. “DF stated, when he woke up, that he felt defendant’s hand ‘come out of my pants out of where my underwear are, specifically my belt buckle.’ DF further testified that when he awoke, ‘[t]he tip of my penis was coming out of my pants,’ which was ‘unusual,’ and that ‘it was uncomfortable and not how it was supposed to be.’ The most straightforward implication of DF’s testimony [was] that defendant placed his hand inside DF’s underwear when DF was asleep, touching DF’s genital area for his own sexual arousal or gratification.” The court found that at “a minimum, even if defendant is correct on appeal that this testimony does not directly show that he touched DF’s penis, this testimony shows that [he] at least touched ‘the clothing covering the immediate area of [DF’s] intimate parts.’” Thus, the court concluded that “DF’s testimony, by itself, was sufficient to establish that defendant was guilty of CSC-II beyond a reasonable doubt because he engaged in sexual contact with DF.” Further, as the “case involved a bench trial, the trial court specifically found after trial that DF was a credible witness and that he testified honestly and truthfully. The trial court added that DF’s testimony was corroborated by the testimony from his mother to the effect that DF started ‘acting differently’ after the sexual contact because he ‘didn’t play basketball’ and ‘didn’t skateboard like he used to and he started doing worse in school.’” The trial court’s findings were “supported by the record and not clearly erroneous.” Also, it “did not err by scoring OV 4 at 10 points, and defense counsel was not ineffective for failure to object because any objection would have been meritless.” Finally, he was “not entitled to relief for any arguable error that occurred with respect to OV 10 because his guidelines remain unaffected regardless of the OV 10 score.”