Background
Gary Edward Shumate was convicted by a jury of four counts of first-degree criminal sexual conduct involving his five-year-old daughter, AM, in 1997. AM testified that Shumate penetrated her anally during three bathroom assaults and forced her to perform oral sex during a separate incident in which he blindfolded her and her five-year-old friend, JK. Shumate received a sentence of 209 to 600 months’ imprisonment for each conviction.
JK testified about the blindfold incident and two additional assaults by Shumate. He previously had pleaded guilty to assault with intent to commit second-degree criminal sexual conduct based on his assault of JK. On appeal, Shumate challenged the sufficiency and weight of the evidence, admission of JK’s testimony, the prosecutor’s closing argument, trial counsel’s performance, and the scoring of several sentencing offense variables.
The Court’s Holding
The Court of Appeals affirmed the convictions. AM’s testimony, together with JK’s corroborating testimony, permitted a rational jury to find the charged penetrations beyond a reasonable doubt, even though AM did not see Shumate’s penis during the assaults. Questions arising from AM’s delayed disclosure, her statements about Shumate, and inconsistencies concerning her childhood interview were for the jury and did not render the verdict against the great weight of the evidence.
The court also upheld admission of JK’s testimony under MCL 768.27a and MRE 403, finding the assaults sufficiently similar and temporally connected to the charged conduct. It rejected Shumate’s unpreserved prosecutorial-misconduct claims and held that counsel’s questioning about another case reflected a reasonable strategy to challenge AM’s credibility and the prosecution’s motives.
The trial court properly scored offense variable 8 because Shumate moved the children away from another person’s observation before the assaults. It erred, however, by assigning five points under OV 3 for the oral-penetration count, where the record showed no bodily injury, and by assigning 10 points under OV 9 for the three anal-penetration counts based on AM’s brother’s proximity without evidence that he faced a physically threatening situation. Because correcting those scores did not alter the applicable guidelines range, the court affirmed the sentences and remanded only to correct the sentencing investigation report.
Key Takeaways
- A complainant’s testimony can support a CSC-I conviction without visual identification of the body part used for penetration, particularly when circumstantial evidence corroborates her account.
- Evidence of another listed sexual offense against a minor may be admitted under MCL 768.27a, subject to MRE 403’s unfair-prejudice analysis.
- A person’s proximity to an offense does not justify OV 9 points without evidence that the person was placed in a physically threatening situation.
- A scoring error does not require resentencing when correction leaves the guidelines range unchanged, although the sentencing report should still be corrected.
Why It Matters
The decision illustrates the broad admissibility of prior sexual misconduct involving minors under Michigan law and the substantial deference appellate courts give juries on witness credibility, including in delayed-disclosure cases.
It also distinguishes between harmless scoring errors and accurate correctional records: although the errors did not change Shumate’s sentencing range, correction of the sentencing investigation report remained necessary because guideline scores may affect later Department of Corrections decisions.