Background
Jason Joseph Smith was convicted by jury of second-degree criminal sexual conduct (CSC-II) with a child under 13 and assault with intent to commit CSC-II. The charges arose from his conduct toward his stepdaughter (AB), then 11 or 12 years old, between 2015 and 2016. Smith would regularly pick up AB from school while her mother worked. On the date in question, AB asked defendant for a back rub while they watched television at home. As Smith rubbed her back under her shirt, his hands moved to her breasts, which he massaged directly against her skin. He then placed both hands into her pants and underwear and massaged her groin and crotch area. AB testified she felt frozen and eventually retreated to her bedroom.
AB did not disclose the assault until January 2021, when she told her mother. Smith denied the accusations. In fall 2021, AB disclosed the assault to a school psychologist, triggering a mandatory report to Child Protective Services and police investigation. During a police interview, Smith stated “I don’t think it happened, but I don’t know” and admitted he may have fallen asleep and mistaken AB for his wife. However, he conceded “there’s no way I could’ve thought it was her” and acknowledged the conduct matched his sexual foreplay with his wife. The trial court sentenced Smith to concurrent terms of 2 to 15 years for CSC-II and 2 to 5 years for AWICSC-II.
The Court’s Holding
The Michigan Court of Appeals unanimously affirmed all convictions and the sentence. On the CSC-II conviction, the court rejected Smith’s argument that the prosecution failed to prove sexual arousal or gratification. The court held that the intentional touching of intimate body parts—breasts and crotch—can reasonably be construed as being for sexual arousal or gratification based on the manner and nature of the touching. Critically, Smith’s own written and oral statements to police admitting the conduct matched his marital foreplay with AB’s mother supported reasonable jury inference of sexual purpose. The court found the jury properly could reject Smith’s claim of mistaken identity, noting that AB was visibly much smaller than her mother and Smith conceded he should have known the difference.
On sentencing, the court upheld the within-guidelines minimum of two years, rejecting Smith’s argument that lack of prior criminal record and the “isolated incident” nature warranted a lower sentence. The court noted these factors are already reflected in the sentencing guidelines scoring and that Smith’s position of trust and violation of family relationships supported the upper-range minimum imposed. Finally, on Smith’s double jeopardy claim, the court held that CSC-II and AWICSC-II are legally distinct offenses with different elements: CSC-II requires actual sexual contact achieved, while AWICSC-II requires assault with specific intent to touch intimate areas but does not require actual touching. Therefore, convictions on both counts do not violate double jeopardy.
Key Takeaways
- Sexual arousal or gratification can be inferred from the nature, manner, and location of the touching without direct evidence of physical arousal.
- A defendant’s claim of mistaken identity is a credibility question for the jury; appellate courts will not overturn such findings absent clear error.
- Within-guidelines sentences carry a strong presumption of proportionality that a defendant can overcome only by demonstrating “unusual circumstances.”
- CSC-II and AWICSC-II are distinct offenses permitting concurrent convictions and sentences without violating double jeopardy protections.
Why It Matters
This decision reinforces that prosecutors need not prove explicit sexual arousal or gratification through direct evidence. Instead, the nature of the touching—particularly contact with multiple intimate body parts combined with the manner of touching—supports reasonable jury inferences of sexual purpose. The court’s deference to jury credibility determinations is significant: Smith’s implausible explanation for why he could have mistaken an 11-year-old for her adult mother was properly rejected by jurors without appellate interference.
The sentencing holding is notable for practitioners: within-guidelines sentences enjoy a strong presumption of reasonableness that shifts the burden heavily to defendants. General mitigating factors like lack of prior record are already factored into guideline calculations and do not constitute the “unusual circumstances” necessary to overcome the presumption. Additionally, the opinion clarifies that dual convictions for CSC-II and AWICSC-II—a common charging practice in Michigan—do not implicate double jeopardy concerns given the distinct statutory elements of each offense.