CSC I; MCL 750.520b; Sentencing; OV 10; Predatory conduct; MCL 777.40(1)(a); People v Cannon; Vulnerability; People v Huston; Jury unanimity; Aggravating circumstances; MCL 750.520b(1)(c); People v Gadomski; Alternative means; People v Cooks

The court held that OV 10 was properly scored at 15 points and that defendant was not denied a unanimous jury verdict on his CSC I conviction. Defendant sexually assaulted the victim while she was closing a coffee stand at a university student center, then used a claw hammer to open a safe and fled. On appeal, the court first held that defendant engaged in predatory conduct because he lingered near the victim around closing time, remained while she completed her duties, and followed her down a hallway to a secluded office. The court reasoned that this conduct resembled “lying in wait and stalking” and was calculated to “place himself in a better position” to commit the offense. The court next held that the victim was vulnerable because she was working alone during the evening shift, few if any others were present, and defendant followed her into “a more secluded part of the basement office,” increasing her “readily apparent susceptibility . . . to injury, [or] physical restraint[.]” The court also held that defendant’s primary purpose was victimization because he entered the office, threatened the victim, demanded money, restrained her, sexually assaulted her, and burglarized the safe. Finally, the court rejected defendant’s jury-unanimity claim. Although the jury was instructed that it did not have to agree on which aggravating felony accompanied the sexual penetration, the court held under Gadomski that “jury unanimity is not required with regard to the alternate theories” where the alternatives are means of proving one CSC I offense. The court further held that entering without breaking, safe breaking, and armed robbery were “facets of a single transaction,” not materially distinct acts requiring a specific-unanimity instruction under Cooks. Affirmed.