COA 369401 PEOPLE OF MI V TROY DAVID HOLDER Opinion - Per Curiam - Unpublished 7/15/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
July 15, 2026
12:25 PM
v No. 369401; 376530
Roscommon Circuit Court
TROY DAVID HOLDER, LC No. 22-008849-FC
Defendant-Appellant.
Before: GADOLA, C.J., and RIORDAN and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) and (2)(b) (victim under 13 years old and
defendant 17 years or older), one count of CSC-I, MCL 750.520b(1)(b) (victim between 13 and
16 years old, defendant member of household), one count of CSC-I, MCL 750.520b(1)(a) (victim
under 13 years old), and four counts of second-degree criminal sexual conduct (CSC-II),
MCL 750.520c(1)(a) (victim under 13 years old); MCL 750.520c(1)(b) (victim between 13 and
16 years old, defendant member of household). On appeal, defendant asserts that his trial counsel
was ineffective, that the trial court erred when it assessed 25 points for Offense Variable (OV) 11
for three of his CSC-II counts, and that the trial court erred when it imposed consecutive
sentences.1 We affirm defendant’s convictions but vacate his sentences and remand for
resentencing.
1 In Docket No. 369401, defendant filed his first claim of appeal challenging his convictions and
sentences. In the trial court, he filed a motion for a new trial and for resentencing. Although the
motion for new trial was denied, his request for resentencing was granted. In Docket No. 376530,
defendant filed his claim of appeal following resentencing. We consolidated the claims of appeal
to advance the efficient administration of justice. People v Holder, unpublished order of the Court
of Appeals, entered July 30, 2025 (Docket Nos. 369401 and 376530).

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I. FACTUAL AND PROCEDURAL HISTORY
AT, the victim, met defendant, her stepfather, after he began dating her mother, a military
veteran. The victim’s mother and defendant married. Between the ages of 4 and 14, the victim
alleged that she was repeatedly sexually assaulted by defendant. The family ultimately moved to
Gerrish Township when the victim was approximately 9 years old. In that family home, the victim
shared a room with defendant’s daughter from another relationship who was approximately 3 years
younger than the victim. Defendant’s son, also from another relationship, and the victim’s younger
brother, the product of the couple’s marriage, lived in the home and shared another bedroom. The
victim testified at trial that defendant would repeatedly come into her room at night and touch her
genitals and breasts. The victim stated that the abuse occurred on a weekly basis and generally
happened more than once a week.
During some instances, defendant would digitally penetrate the victim, and there were also
a few occasions in which defendant made the victim touch his penis. The victim testified that
defendant’s daughter was a heavy sleeper and did not witness the abuse. But on one occasion,
defendant’s daughter woke up because she sat up and stopped snoring, and the victim heard
defendant hide in the closet. The victim identified defendant as the perpetrator because she could
tell from the light off the television or she would half open her eyes without it being noticeable.
No conversation occurred during the sexual assaults.
Regarding the instances where defendant made the victim touch his unclothed penis, he
used his hand to guide the victim’s hand onto his erect penis. When asked to describe how
defendant’s penis felt, the victim testified that she did not know how to explain it. When given
suggestions, the victim testified that defendant’s penis was “in between” hard and soft and felt
moisturized.
Eventually, the victim told a teenage friend about the sexual abuse and also told her
boyfriend. The victim’s boyfriend relayed the abuse information to defendant’s eldest daughter,
who did not reside in the family home. In late August 2021, the eldest daughter advised the
victim’s mother that the victim had something to discuss. After the victim disclosed the sexual
assaults to her mother, no immediate action was taken to stop the abuse. The victim’s mother
testified that she was torn between two people that she loved. She initially grabbed a bat and hit
trees in the woods. The victim’s mother placed two cameras in the victim’s room but they did not
record. At the end of November 2021, the victim’s mother took her children and left the family
home. Initially, defendant attempted to prevent the victim from leaving the home. The victim
denied fabricating the claims of sexual abuse and denied raising the allegations to aid her mother
in a custody dispute.
On cross-examination, the victim was asked about her performance of oral sex on
defendant. The victim denied that occurred and explained that her hand was placed on defendant’s
penis an estimated 5 to 7 times. Defense counsel indicated that he misheard the victim and never
questioned her about any special characteristics of defendant’s genitalia.
The victim’s mother acknowledged that over the years she suffered from mental health
issues and was prescribed medication through veteran’s affairs that had an adverse impact on her.
She believed that she was over medicated, and at times, stopped taking her medications. The

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victim’s mother acknowledged that Children’s Protective Services became involved, and
defendant took care of the children. She struggled with screaming and crying children, considered
smothering defendant’s youngest daughter with a pillow, and was diagnosed with schizophrenia.
Ultimately, the victim’s mother disagreed with that diagnosis, found an independent doctor, and
benefited from her treatment. The victim’s mother acknowledged that the couple’s relationship
could be chaotic, and they argued. After the victim’s mother took her children and left the family
home, she filed for divorce in December 2021. The couple exchanged text messages about the
custody of their son. The victim’s mother did not want defendant to have shared custody in light
of her knowledge of defendant’s assaults upon the victim. The victim’s mother also was not
questioned about any unique characteristics of defendant’s penis.
Defendant acknowledged that he entered the victim’s bedroom to turn off the television
but denied checking to see whether the victim had wet the bed. He also testified that the couple
had a volatile relationship. In the fall of 2021, the couple separated and were dividing up their
possessions. Defendant proposed a “50/50” custody arrangement of their son, but the victim’s
mother refused. Defendant also testified that he had his penis pierced with a big hoop at the top
when he was 21 years old. On cross-examination, he stated that he had a small penis and any touch
would reveal the piercing.
At trial, defendant’s son testified that he did not see defendant enter the victim’s bedroom
at night.2 Additionally, defendant’s daughter gave unclear testimony about whether she was a light
sleeper. And a medical report of the victim’s visit to a physician was introduced at trial without
objection. The treating physician testified about her treatment of the victim but the victim was
unable to submit to a physical examination.
Defendant was convicted of eight counts of CSC and sentenced in November 2023. He
subsequently moved for a resentencing and for a Ginther3 hearing. The trial court granted
resentencing but denied the Ginther hearing. Defendant was resentenced in May 2025, as a
second-offense habitual offender, to serve 300 months to 45 years’ imprisonment for counts one
and two, 225 months to 45 years’ imprisonment for count three, 262 months’ to 45 years’
imprisonment for count four, 125 to 270 months’ imprisonment for counts five, six, and seven,
and 107 to 270 months’ imprisonment for count eight. When the trial court resentenced defendant,
it assessed OV 11 at 25 points for three of defendant’s convictions for CSC-II. The trial court
determined that the score was warranted because defendant sexually penetrated the victim as part
of the conduct for those CSC-II convictions.
The sentence for count 1 was consecutive to the sentence for count 5 and concurrent with
all other sentences, the sentence for count 2 was consecutive to the sentence for count 6 and
concurrent with all other sentences, the sentence for count 3 was consecutive to the sentence for
2 The victim testified to experiencing cold during the sexual abuse. In contrast, defendant’s son
testified that the home was heated with wood and was very warm. The parties did not clarify with
the victim whether her temperature description pertained to the sexual incidents or her physical
response as opposed to the home conditions.
3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1972).

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count 7 and concurrent with all other sentences, and all other sentences were concurrent. From
these sentences, defendant appeals.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that trial counsel was ineffective. We disagree.
Defendant preserved the challenge to the effective assistance of counsel by moving for a
new trial or for a Ginther hearing. People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d
437 (2020). When a Ginther hearing is not held, appellate review is limited to mistakes apparent
on the record. Id.
The Michigan and United States Constitutions guarantee criminal defendants the right to
be represented by an attorney. Const 1963, art 1, § 20; US Const, Am VI. A criminal defendant
is entitled to the effective assistance of counsel. People v Otto, 348 Mich App 221, 231; 18 NW3d
336 (2023). “A defendant must meet two requirements to warrant a new trial because of the
ineffective assistance of counsel.” People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676
(2011). The defendant must first demonstrate “that counsel’s performance fell below an objective
standard of reasonableness. In doing so, the defendant must overcome the strong presumption that
counsel’s assistance constituted sound trial strategy.” Id. at 290. In examining defense counsel’s
performance, “the reviewing court must first objectively ‘determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.’ ” People v Jackson (On Reconsideration), 313 Mich App 409, 431; 884
NW2d 297 (2015), quoting Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed
2d 674 (1984). Second, the defendant must show that, “but for counsel’s deficient performance, a
different result would have been reasonably probable.” Armstrong, 490 Mich at 290. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 US at 694.
“Generally, whether a defendant had the effective assistance of counsel is a mixed question
of fact and constitutional law.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012)
(quotation marks and citation omitted). “This Court reviews findings of fact for clear error and
questions of law de novo.” Id. The defendant bears the burden of demonstrating the
factual predicate for his claim of ineffective assistance of counsel. People v Douglas, 496 Mich
557, 592; 852 NW2d 587 (2014). When claiming ineffective assistance premised on defense
counsel’s unpreparedness, there is a requirement that a defendant show prejudice resulting from
this alleged lack of preparation. People v Caballero, 184 Mich App 636, 640; 459 NW2d 80
(1990). This showing can be made through evidence of an investigation or affidavits that would
reveal information beneficial to the defendant. Id. “The failure to make an adequate investigation
is ineffective assistance of counsel if it undermines confidence in the trial’s outcome.” People v
Grant, 470 Mich 477, 493; 684 NW2d 686 (2004). To succeed on a claim of ineffective assistance
premised on the failure to call witnesses, a defendant need not demonstrate a deprivation of a
substantial defense. People v Jurewicz, 506 Mich 914, 915; 948 NW2d 448 (2020). Rather, the
standard applicable to ineffective assistance for the failure to call witnesses is the same for all other
such ineffective assistance of counsel claims; it involves consideration of whether counsel’s

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performance fell below an objective standard of reasonableness and, but for counsel’s deficient
performance, whether there is a reasonable probability that the outcome would have been
different. Id.
“There is a presumption that counsel was effective, and a defendant must overcome the
strong presumption that counsel’s challenged actions were sound trial strategy.” People v Cooper,
309 Mich App 74, 80; 867 NW2d 452 (2015). This Court will not substitute its judgment on
matters of trial strategy and will not assess counsel’s performance with the benefit of hindsight.
Id. “Failure to raise a futile objection or advance a meritless argument does not constitute
ineffective assistance of counsel,” and “failing to raise an objection may be consistent with a sound
trial strategy.” People v Isrow, 339 Mich App 522, 532; 984 NW2d 528 (2021).
1. THE MEDICAL REPORT
Defendant contends that trial counsel was ineffective for failing to object to the
introduction of a medical report summarizing the victim’s visit with a physician after disclosing
the sexual abuse. We disagree.
Under hearsay exception MRE 803(4), “Statements made for the purpose of medical
treatment are admissible . . . if they were reasonably necessary for diagnosis and treatment and if
the declarant had a self-interested motivation to be truthful in order to receive proper medical
care.” People v Mahone, 294 Mich App 208, 214-215; 816 NW2d 436 (2011). The declarant need
not sustain an immediately apparent physical injury for the exception to apply. Id. at 215.
“Particularly in cases of sexual assault, in which the injuries might be latent, such as contracting
sexually transmitted diseases or psychological in nature, and thus not necessarily physically
manifested at all, a victim’s complete history and a recitation of the totality of the circumstances
of the assault are properly considered to be statements made for medical treatment.” Id.
In this case, the victim’s statements to the physician were made for the purpose of obtaining
medical treatment. The physician reviewed the victim’s history and symptoms as part of an initial
meeting. The victim was unable to undergo a physical examination. In light of the victim’s report,
the physician recommended counseling and the completion of the physical exam at a later time.
The victim’s disclosure of the manner in which she was abused was necessary for medical
diagnosis and treatment. It would aid in identifying any potential injury, any transmissible
infection, and the risk of pregnancy. Our Supreme Court has recognized that the identity of the
assailant may also be necessary in order to diagnose and treat the psychological trauma
experienced by the victim. People v Meeboer, 439 Mich 310, 328-329; 484 NW2d 621 (1992).
In this case, the victim’s meeting with the physician occurred within three weeks of her departure
from the family home where she lived with defendant. It did not occur years later when the need
for medical diagnosis and treatment was unlikely. See e.g., People v Shaw, 315 Mich App 668,
674-675; 892 NW2d 15 (2016) (statements made to a doctor unnecessary for medical diagnosis
and treatment because the victim made her disclosures to the doctor seven years after the last
alleged instance of abuse and after seeing another physician for gynecological care). In light of
the short period between the removal from defendant’s home and the medical exam, an objection
to the medical report would have been futile. The failure to make a futile objection does not render
trial counsel ineffective. Isrow, 339 Mich App at 532.

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Additionally, the report did not improperly vouch for the victim. An examining physician
who is qualified to treat sexual assault complainants may opine as to whether the complainant has
been sexually assaulted if the opinion is premised on physical findings and the complainant’s
medical history. People v Thorpe, 504 Mich 230, 258-259; 934 NW2d 693 (2019). The physician
may not opine on whether the complainant was sexually assaulted based only on a belief that the
complainant has been honest. Id. at 255.
The victim presented to the physician for a claim of possible sexual abuse. The physician
was unable to complete a physical examination of the victim and did not render an opinion in the
report about whether the victim’s disclosures of sexual abuse were truthful. Rather, the report only
referenced “suspected” child sexual abuse. The physician did not reach a conclusion regarding the
truth of the victim’s statements. The physician’s report did not vouch for the victim’s veracity.
Accordingly, trial counsel was not ineffective for failing to object to the physician’s report. Isrow,
339 Mich App at 532.
2. DEFENDANT’S PIERCING
Defendant further argues that trial counsel was ineffective for failing to introduce
corroborating evidence of defendant’s penile piercing because it would have impeached the
victim’s testimony that did not mention it. We disagree.
During direct examination, the victim was questioned regarding the specific sexual acts
that occurred. The victim identified defendant as the perpetrator from the light emitted off the
television or from when she opened her eyes just enough to determine her assailant. There was no
testimony that the victim spoke or opened her eyes during the sexual assaults. Moreover, when
the victim was questioned about defendant’s penis, the victim indicated she was unsure of how to
answer. When specifically asked if the penis was soft or hard, the victim testified that it was “in
between.” There is no indication that the victim was asked whether defendant’s penis had any
specific identifying characteristics such as a piercing.
When the victim was cross-examined, defense counsel inquired of acts about oral sex
performed upon defendant. The victim noted that she had not testified to any such acts, and
defense counsel indicated that he misheard the testimony. Rather, the victim testified that her hand
was placed on defendant’s penis between 5 and 7 times. She was not questioned about any piercing
or other characteristic. In closing argument, defense counsel asserted that the victim was not
truthful because defendant undisputedly testified that he had “a small penis with a hoop ring on it
that is a piercing.” Defense counsel argued that the victim claimed to touch defendant’s penis
between 5 and 7 occasions yet “never noticed it.”4 Additionally, defense counsel failed to question
4 In addition to challenging the victim’s truthfulness in light of the failure to identify a piercing,
defense counsel acknowledged that he did not ask the victim’s mother about the piercing. Defense
counsel also noted that he did not ask defendant to disrobe in the jury room for them to “look at
it.” Thus, defense counsel was aware of corroborating evidence but chose not to present it.
“[D]ecisions regarding how to question a witness and conduct cross-examination is a matter of
trial strategy.” People v Thurmond, 348 Mich App 715, 743; 20 NW3d 311 (2023).

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the victim’s mother about any piercing. Defense counsel was aware of corroborating proofs
regarding the piercing but chose not to admit the evidence.
On appeal, defendant submitted affidavits from two previous romantic partners who would
have testified regarding this piercing. However, these affidavits merely opine that the piercing
was visible and do not delineate the circumstances under which the piercing would have been felt.
Again, the victim testified that she merely opened her eyes enough or used the television lighting
to determine defendant was her assailant. There was no testimony that she visually saw or
examined defendant’s genitalia. And the victim was not questioned about such a characteristic.
The evidence of a visual piercing as proffered in the affidavits fail to establish that the victim lied
or could have been impeached by such an omission. The affidavits also fail to demonstrate that
counsel’s performance fell before an objective standard of reasonableness and that, but for the
deficient performance, there is a reasonable probability that the outcome would have been
different. Jurewicz, 506 Mich at 915. Accordingly, defendant has not met his burden of showing
ineffective assistance of counsel. Douglas, 496 Mich at 592.
3. MOTIVE TO FABRICATE ALLEGATIONS
Defendant next asserts that trial counsel was ineffective for failing to question the victim
about possible motives to make false allegations against defendant. We disagree.
Defendant alleges that the victim may have been motivated to make false allegations
against him due to disagreements with him about her boyfriend, chores, and what clothing she was
allowed to wear. Even assuming these disagreements existed, it was reasonable for trial counsel
not to cross-examine the victim about these motives for making false claims of abuse. “[D]ecisions
regarding how to question a witness and conduct cross-examination is a matter of trial strategy.”
People v Thurmond, 348 Mich App 715, 743; 20 NW3d 311 (2023). A reasonably competent
attorney may decline to cross-examine a witness on certain topics in order to avoid the appearance
of bullying the witness or to avoid emphasizing damaging testimony. See People v Gioglio (On
Remand), 296 Mich App 12, 26; 815 NW2d 589 (2012), vacated in part on other grounds 493
Mich 864 (2012). The victim was 16 years old during the trial, and she started crying near the
beginning of direct examination. Questioning the victim about whether she made up the
allegations against defendant due to her anger at him over relatively minor disagreements could
easily create the appearance of bullying the witness, which a reasonable attorney may opt to avoid.
Furthermore, defense counsel did elicit evidence of a possible motive for the victim to
make false allegations. He questioned the victim’s mother, who was married to defendant before
his arrest, about her divorce and custody dispute with defendant. Specifically, defense counsel
inquired if she sought full custody of their son and if she texted defendant that, “I guess this is
going to get expensive.” Defendant also testified that there was a custody dispute between them
and that the victim’s mother referenced the cost of a custody dispute. Defense counsel expressly
argued that this custody dispute led to the fabrication of abuse allegations. It was a reasonable
strategic decision to pursue the theory that the sexual abuse allegations were fabricated to gain an
advantage in the custody dispute in light of the pending divorce and supporting text message.
Defense counsel’s pursuit of this theory was not constitutionally deficient.

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B. GINTHER HEARING
Defendant additionally argues that he is entitled to a Ginther hearing to develop a record
regarding the above claims of ineffective assistance of counsel. A trial court’s decision whether
to hold an evidentiary hearing is reviewed for an abuse of discretion. People v Unger, 278 Mich
App 210, 216-217; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court chooses
an outcome that falls outside the range of reasonable and principled outcomes.” Id. at 217. The
trial court did not err when it denied defendant’s request for a Ginther hearing.
A Ginther hearing is an evidentiary hearing where a defendant who wishes to advance a
claim of ineffective assistance of counsel premised on facts not in the record may establish a record
supporting the claim. See Ginther, 390 Mich at 443. To be entitled to a Ginther hearing, a
defendant must set forth “additional facts that would require development of a record to determine
if defense counsel was ineffective.” People v Williams, 275 Mich App 194, 200; 737 NW2d 797
(2007). Because there was sufficient record evidence to evaluate the alleged claims of error, the
trial court did not abuse its discretion by denying defendant’s request.
C. DEFENDANT’S SENTENCE
Defendant next alleges that his sentence was invalid because for three counts, OV 11 was
improperly assessed at 25 points, and because the trial court imposed unlawful consecutive
sentences. We agree.
1. OV 11
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. “A scoring decision is
not clearly erroneous if the record contains any evidence in support of the decision.” People v
Johnson, 298 Mich App 128, 130-131; 826 NW2d 170 (2012) (quotation marks and citation
omitted).
“A sentencing court may consider all record evidence before it when calculating the
guidelines, including, but not limited to, the contents of a presentence investigation report,
admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary
examination or trial.” Johnson, 298 Mich App at 131. “[If] a defendant has effectively challenged
an adverse factual assertion contained in the presentence report or any other controverted issues of
fact relevant to the sentencing decision, the prosecution must prove by a preponderance of the
evidence that the facts are as asserted.” Id.
OV 11 is described in MCL 777.41:
(1) Offense variable 11 is criminal sexual penetration. Score offense variable 11
by determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:

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(a) Two or more criminal sexual penetrations occurred……..50 points
(b) One criminal sexual penetration occurred ……………….25 points
(c) No criminal sexual penetration occurred………………....0 points
(2) All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of
the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending
beyond the sentencing offense may be scored in offense variables 12 or 13.
(c) Do not score points for the 1 penetration that forms the basis of a first-
or third-degree criminal sexual conduct offense.
“Vaginal penetration, fellatio, and cunnilingus are considered separate sexual penetrations
when scoring OV 11 under MCL 777.41.” Johnson, 298 Mich App at 132. “Also, the Michigan
Supreme Court has defined ‘arising out of,’ as used in MCL 777.41, as something that springs
from or results from something else, has a connective relationship, a cause and effect relationship,
of more than an incidental sort with the event out of which it has arisen.” Id. (quotation marks and
citation omitted).
At defendant’s resentencing, the trial court assessed 25 points for OV 11 for counts five
through seven based on count one correlating with count five, count two correlating with count
six, and count three correlating with count seven. First, the parties agree that the trial court erred
when it assessed 25 points for OV 11 on count six because the trial court improperly held that the
penetration that was the basis of count two (defendant touching the victim’s genitals and breasts
and performing oral sex on the victim when she was between the ages of 9 and 11), arose out of
the conduct for count six, which was defendant coercing the victim to touch his penis when she
was 10 or 11 years old. The victim did not testify about any penetration or oral sex occurring when
defendant made her touch his penis during the offense that formed the basis of count six.
Accordingly, count two could not have arisen out of count six, and the trial court erred in assessing
25 points for OV 11 on count six.
For count five, OV 11 was assessed at 25 points on the basis of count one arising out of the
sentencing offense. Count one was based on defendant digitally penetrating the victim when she
was 11 or 12 years old and count five was based on defendant touching the outside of her genitals
and her breasts when she was between 11 and 13 years old. The victim testified that her sister was
home during the commission of count five and expressly denied any penetration occurring. The
victim also testified that her sister was not home when count one occurred. Therefore, count one
could not have arisen out of count five, and the trial court erred when it assessed 25 points for
OV 11 for count five.
For count seven, the trial court assessed 25 points for OV 11 on the basis of count three
arising out of the sentencing offense. Count seven was based on defendant touching the victim’s

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external genitalia5 and breasts, and count three was based on defendant digitally penetrating the
victim when she was 12 or 13 years old. The victim testified specifically that defendant touched
the “outer part of [her] vagina” during the conduct that formed the basis for count seven. Thus, it
does not appear that any penetration occurred. Accordingly, the trial court erred when it assessed
25 points for OV 11 for count seven.
“Where a scoring error does not alter the appropriate guidelines range, resentencing is not
required.” People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). At his resentencing,
the trial court assessed defendant a total OV score of 75 points for each of counts five through
seven, which put him at OV Level VI for each count. Because the correct assessment for OV 11
is zero points for counts five, six, and seven, the trial court should have assessed only 50 points,
resulting in an OV Level of V. MCL 777.64. Accordingly, defendant is entitled to resentencing.
2. CONSECUTIVE SENTENCES
Lastly, defendant argues that the trial court erred when it ordered consecutive sentencing
for some of his sentences. A trial court’s decision to impose a discretionary consecutive sentence
is reviewed for an abuse of discretion. People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195
(2016). “An abuse of discretion occurs when the court chooses an outcome that falls outside the
range of reasonable and principled outcomes.” People v Hawkins, 349 Mich App 271, 274; 27
NW3d 641 (2023) (quotation marks and citation omitted).
“Absent statutory authority for imposing a consecutive sentence, it is the rule in this state
to impose concurrent sentences[.]” People v Sawyer, 410 Mich 531, 534; 302 NW2d 534 (1981).
Under MCL 750.520b(3), “[t]he court may order a term of imprisonment imposed [for a first-
degree CSC conviction] to be served consecutively to any term of imprisonment imposed for any
other criminal offense arising from the same transaction.”
“[A]n ongoing course of sexually abusive conduct involving episodes of assault does not
in and of itself render the crimes part of the same transaction.” People v Bailey, 310 Mich App
703, 725; 873 NW2d 855 (2015). “For multiple penetrations to be considered as part of the same
transaction, they must be part of a continuous time sequence, not merely part of a continuous
course of conduct.” Id. (quotation marks and citation omitted). Penetrations that “immediately
follow[]” each other are part of a continuous time sequence. See People v Ryan, 295 Mich App
388, 403; 819 NW2d 55 (2012).
The court ordered consecutive sentences for counts one and five, counts two and six, and
counts three and seven, on the basis that these offenses were all parts of single incidents. However,
as discussed, the evidence presented at trial indicates that those pairs of offenses occurred at
different times from each other and were not part of the same transaction. Count one was based
5 The degrees of CSC differentiate between sexual acts occurring on the body surface, and those
involving intrusion into body cavities, including genital openings, however slight. People v
Bristol, 115 Mich App 236, 238; 320 NW2d 229 (1981). At trial, the prosecutor summarized the
victim’s testimony and argued to the jury that count seven reflected a touching of the outside of
the vaginal opening, not a digital penetration.

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on defendant’s digital penetration of the victim when she was 11 or 12 years old; count five was
based on defendant touching the victim’s breasts and external genitalia when she was between
11 and 13 years old. The victim testified that her sister was home during the commission of count
five but not home during the commission of count one, so the two offenses cannot have been part
of the same transaction. The trial court therefore erred when it ordered consecutive sentences for
counts one and five. Count two was based on defendant touching the victim’s genitals and breasts
and performing oral sex on her when she was between 9 and 11. Count six was based on defendant
making the victim touch his penis when she was 10 or 11, and the victim did not testify that any
penetration occurred. The testimony indicates that these two offenses were part of different
incidents. Finally, count three was based on defendant digitally penetrating the victim when she
was 12 or 13 years old, and count seven was based on defendant touching the victim’s external
genitalia and breasts without penetrating her.6 The victim testified that there was no penetration
during the offense that was the basis for count seven, so counts three and seven were not part of
the same transaction. Because these pairs of offenses were not part of the same transaction, the
trial court erred when it ordered consecutive sentences. Defendant is entitled to resentencing.7
We affirm defendant’s convictions but vacate his sentence and remand for resentencing.
We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Michael J. Riordan
/s/ Anica Letica
6 See footnote 7.
7 In light of our disposition of these issues, we do not address defendant’s ineffective assistance of
counsel claims pertaining to sentencing.

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