Ineffective assistance, consent theory; Strickland v Washington; Ineffective assistance, impeachment limits; MRE 401; Sentencing; Scoring of OV 19; Interference; MCL 777.49; Acquitted conduct; People v Beck

The court held that defendant was not denied the effective assistance of counsel, but he was entitled to resentencing because OV 19 was incorrectly scored based on acquitted conduct and improper reliance on juror communications. Defendant was convicted of CSC III involving a “mentally incapable, mentally incapacitated, or physically helpless” victim. The record showed the victim awoke to oral contact and attempted penetration while asleep, with “very strong support” that defendant contributed DNA to swabs from the victim’s labia majora and cell-site evidence placing his phone near the home. On the ineffective-assistance claims, the court noted counsel attempted a consent theory, but the trial court correctly ruled “there was no evidence in this trial of consent,” and in any event consent is not a defense to CSC III under MCL 750.520d(1)(c) because an incapacitated or physically helpless person cannot “freely and willingly” agree. The court also rejected the impeachment claim, observing counsel pursued the Cash App issue but the trial court found it collateral and “not relevant,” and defendant did not show the evidence would have been admitted or changed the outcome. On sentencing, the trial court scored OV 19 at 10 points for “flight,” relying in part on its postverdict discussion with jurors about why they acquitted defendant of unlawfully driving away. The panel held OV 19 does not cover merely leaving a scene and that due process “bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.” Affirmed in part, reversed in part, and remanded.