Sufficiency of the evidence for a CSC I conviction; “Sexual penetration” (MCL 750.520a(r)); Cunnilingus; People v Harris; Sentencing; 25-year mandatory minimum sentence under MCL 750.520b(2)(b); Cruel or unusual punishment; Facial challenge; People v Benton; As-applied challenge; Presumptive proportionality of legislatively mandated sentences; Unusual circumstances; Age & lack of criminal history

The court held that there was sufficient evidence as to the penetration element to support defendant’s CSC I conviction, and rejected his cruel or unusual punishment challenges to his 25-year mandatory minimum sentence under MCL 750.520b(2)(b). Thus, it affirmed his conviction and sentence. He was also convicted of CSC II but only challenged the CSC I conviction and sentence on appeal. The prosecution’s theory was that defendant committed CSC I by performing cunnilingus on the child victim (AB). Defendant contended AB’s testimony “was too vague to establish the penetration element.” The court disagreed. AB testified that defendant “removed AB’s clothing, then sat or knelt on the floor near the couch and pulled AB’s legs apart before ‘he put his mouth on [AB’s] private parts.’ AB elaborated that [his] mouth touched AB’s vagina. That testimony was sufficient to support a reasonable inference that defendant performed cunnilingus on AB by ‘placing [his] mouth . . . upon the external genital organs of [AB] which lie between the labia, or the labia itself, or the mons pubes.’” The court noted that Michigan “jurisprudence makes clear that cunnilingus does not require actual penetration of the vagina; it merely ‘requires the placing of the mouth’ on the victim’s ‘external genital organs.’” As to his sentencing, in Benton the court “squarely held that the 25-year mandatory minimum sentence prescribed by MCL 750.520b(2)(b) for CSC-I committed by a defendant 17 years of age or older against a victim under 13 is neither cruel nor unusual.” This foreclosed any relief on his facial challenge. As to his as-applied challenge, “legislatively mandated sentences are presumptively proportionate,” and proportionate sentences are not cruel or unusual. A defendant must show unusual circumstances to overcome the presumption. Defendant cited “his age—67 at sentencing, such that he will not be eligible for parole until approximately age 92—and his lack of any prior criminal history.” The court held that neither circumstance overcame the presumption.