Background
Between 2015 and 2016, defendant Jason Joseph Smith sexually assaulted his stepdaughter, AB, when she was 11 or 12 years old. AB, who had been diagnosed with Autism Spectrum Disorder, regularly spent after-school hours alone with Smith while her mother worked. On the date of the assault, AB asked Smith for a back rub due to back pain from scoliosis. While rubbing her back under her clothing, Smith moved his hands to her breasts and massaged them, then moved his hands down the front of her underwear and massaged her groin region, though he did not touch her genitals. AB froze in fear, then retreated to her bedroom.
AB did not disclose the assault until January 2021, when she told her mother, who confronted Smith. He denied the accusations and left the family home. In the fall of 2021, AB disclosed the assault to a school psychologist who, as a mandated reporter, referred the matter to police. When detectives interviewed Smith, he did not flatly deny the conduct. Instead, he stated “I don’t think it happened, but I don’t know,” offered that he may have been drinking and confused AB for her mother, but ultimately conceded “[T]here’s no way I could’ve thought it was her” and admitted “it was probably [AB].” In a written statement, Smith acknowledged that the conduct described — giving a back rub and then moving his hand down a person’s pants — was consistent with his sexual foreplay with his wife.
Smith was charged with second-degree criminal sexual conduct (CSC-II) and assault with intent to commit CSC-II (AWICSC-II). The prosecution dismissed a CSC-IV charge before trial. A jury convicted Smith on both remaining counts. The trial court sentenced him to concurrent prison terms of 2 to 15 years for CSC-II and 2 to 5 years for AWICSC-II, both within the applicable guidelines range of 12 to 24 months minimum. Smith appealed, challenging the sufficiency of the evidence, the proportionality of his sentence, the jury instruction on AWICSC-II, and whether his dual convictions violated double jeopardy.
The Court’s Holding
The Court of Appeals affirmed all convictions and the sentence. On the sufficiency challenge to CSC-II, the court rejected Smith’s argument that the touching could not be construed as being for sexual arousal or gratification because he claimed to have mistaken AB for her wife. The court held that the nature of the touching — massaging the breasts and groin region of a child under clothing — combined with Smith’s own admission that this conduct mirrored his sexual foreplay with his wife, was sufficient for a rational jury to find the sexual-purpose element beyond a reasonable doubt. Smith’s own concession that “it was probably [AB]” and his acknowledgment of physical differences between AB and her mother further undercut the claimed mistake.
On sentencing, the court found no abuse of discretion. Because the 2-year minimum fell within the guidelines range of 12 to 24 months, it carried a presumption of proportionality. The court held that Smith’s arguments — no prior record, no prior sex offenses, and a single incident — did not constitute the “unusual circumstances” necessary to overcome that presumption, as those factors were already reflected in the scoring of the offense and prior record variables. On the AWICSC-II jury instruction, the court held the issue was waived because defense counsel had expressly approved the instructions at trial; it further noted the instruction followed the model criminal jury instruction verbatim.
On double jeopardy, the court applied the Blockburger/Ream abstract-legal-elements test and held that CSC-II and AWICSC-II are legally distinct offenses. CSC-II requires completed sexual contact but does not require specific intent; AWICSC-II requires a showing of specific intent to touch an intimate area for sexual purposes but does not require that actual touching be achieved. Because each offense contains at least one element absent from the other, dual punishment is constitutionally permissible.
Key Takeaways
- A defendant’s own statements that the charged conduct was consistent with his sexual foreplay with his spouse constitutes strong circumstantial evidence that the touching of a child was for the purpose of sexual arousal or gratification, satisfying a core element of CSC-II.
- A claimed “mistake of identity” defense — that the defendant thought he was touching his wife — does not negate the sexual-purpose element of CSC-II as a matter of law; credibility of the defense is for the jury to resolve.
- A within-guidelines sentence carries a presumption of proportionality in Michigan, and a defendant cannot overcome that presumption merely by pointing to factors — such as no prior record or a single incident — that are already baked into the guidelines calculation.
- Explicit defense-counsel approval of jury instructions at trial waives any instructional error on appeal, even if the instructions could have been more detailed.
- CSC-II and AWICSC-II do not constitute the “same offense” for double-jeopardy purposes because each requires proof of at least one element the other does not: CSC-II requires completed sexual contact; AWICSC-II requires specific intent, and can be proven without an actual touching.
Why It Matters
This decision reinforces that Michigan’s CSC statutes cast a wide evidentiary net: a defendant’s own admissions about the nature of the conduct — particularly when those admissions tie the touching to his sexual practices — can independently satisfy the sexual-purpose element even where the defendant advances a good-faith mistake defense. Prosecutors in cases involving delayed disclosure and credibility contests will find useful language here on drawing reasonable inferences from a defendant’s own words.
The double-jeopardy analysis also provides a clean restatement of Michigan’s approach to simultaneous CSC-II and AWICSC-II charges. Defense practitioners should note that the court left no ambiguity: because the completed-touching requirement and the specific-intent requirement diverge between the two statutes, charging both offenses arising from the same episode does not implicate double-jeopardy protections, and a defendant can be sentenced consecutively or concurrently on both counts without constitutional infirmity.