Background
James Kenneth Teddy, Jr. was convicted by a jury of second-degree criminal sexual conduct for touching his seven-year-old niece’s vagina over her underwear while she slept at his apartment in 2018. The victim testified that Teddy left for the bathroom and returned to touch her five or six times. She reported the incident in 2024.
The trial court sentenced Teddy to 2 to 15 years in prison and lifetime electronic monitoring. In calculating the guidelines, it assessed 25 points under Offense Variable 12 after treating at least three of the touchings as separate contemporaneous felonious acts. Teddy appealed his conviction and sentence, challenging testimony and closing argument by the prosecution, counsel’s failure to object, lifetime monitoring, and the OV 12 score.
The Court’s Holding
The Court of Appeals affirmed the conviction. It held that the prosecutor did not elicit improper credibility testimony from the victim’s aunt, shift the burden of proof, or improperly vouch for the victim during closing argument. Because the challenged conduct was not improper, defense counsel was not ineffective for declining to raise futile objections. The court also rejected Teddy’s constitutional challenges to lifetime electronic monitoring, concluding that binding precedent foreclosed his cruel-or-unusual-punishment and unreasonable-search claims.
The court nevertheless vacated Teddy’s sentence because OV 12 was improperly scored. Although the touchings were distinct acts, the prosecution relied on all of them collectively to prove the sexual purpose required for the single charged CSC-II offense and did not identify one touching as the sentencing offense. The same touchings therefore could not also qualify as separate contemporaneous felonious acts under OV 12. Removing the 25 points reduced the minimum guidelines range from 19 to 38 months to 10 to 19 months, requiring resentencing.
Key Takeaways
- A prosecutor may compare conflicting accounts and argue that one witness is more credible without shifting the burden of proof or improperly vouching, so long as the argument rests on the evidence rather than special knowledge.
- Binding Michigan precedent treats lifetime electronic monitoring for CSC-II involving a child under 13 as neither grossly disproportionate punishment nor an unreasonable search.
- Distinct acts cannot be scored under OV 12 when the prosecution relied on those same acts collectively to establish the single sentencing offense.
Why It Matters
The decision underscores that OV 12 turns not merely on whether conduct can be divided into separate acts, but on whether those acts are separable from the offense for which the defendant is being sentenced. Charging choices and the prosecution’s trial theory can therefore determine whether additional conduct supports OV 12 scoring.
For sentencing practitioners, the opinion illustrates that a scoring error requires resentencing when correcting it changes the applicable guidelines range, even when the underlying conviction and other sentencing conditions remain valid.