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No. 134682
| The People of the State of Michigan, |
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Ana I. Quiroz |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Wayne - Kenny, T.) |
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| Gary Smith, |
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Jacqueline J. McCann |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
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Background
Following a jury trial, Gary Smith was convicted of three counts of first-degree criminal sexual conduct for assaults on a 10-year-old girl who was in his care and lived at his house. The sentencing guidelines provided that Smith’s minimum sentence should fall in the range of 108 months to 15 years. But the trial court concluded that there were substantial and compelling reasons to depart upward from the guidelines. The trial court explained that this “is the type of case that . . . manifests the absolute worst type of exploitation,” noting that the victim was placed in a position of “trust and care” with Smith and his wife. Smith exploited his relationship with the victim for a period of about 15 months, the trial court concluded, and caused her to be fearful that, if the exploitation was discovered, her family might be thrown out of Smith’s home. The trial court also noted that, as a result of the abuse, the victim was forced to endure an invasive gynecological examination. The trial court concluded that the guidelines did not take into account these facts, and that a 15-year upward departure from the guidelines was warranted. Accordingly, the trial court sentenced Smith to a prison term of 30 to 50 years. Smith appealed, but the Court of Appeals affirmed his sentence in an unpublished opinion, concluding that the trial court articulated “objective and verifiable” reasons for the upward sentence departure. The appeals court explained that it was objective and verifiable that Smith served as the victim’s child care provider for a period that spanned nine years, and that Smith kept in close contact with the victim during the time that she was not residing in his home. Moreover, it was objective and verifiable that the abuse occurred over a 15-month period, that Smith threatened to evict the victim and her family, and that the victim was forced to undergo a physical examination as a result of the abuse, the appellate court said. Accordingly, the Court of Appeals held, the trial court did not abuse its discretion in determining that these factors constituted substantial and compelling reasons for an upward departure from the guidelines. The appellate court also agreed with the trial court that the sentencing guidelines “were not capable of adequately accounting for the true seriousness of these offenses.” Smith appeals.
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