People v. Kowalski

Gribbs, J.

(dissenting).I respectfully dissent. I agree with the prosecutor that defendant’s sentence was disproportionately low.

Sexual touching of the buttocks, or clothing covering the buttocks, is specifically included in the offenses covered by the statute. See MCL 750.520c, 750.520a(c) and (k); MSA 28.788(3), 28.788(l)(c), and (k). The victim in this case was a seven-year-old child, dressed only in a two-piece bikini-style bathing *476suit and sandals. The defendant, an adult stranger, gave the unattended victim and her six-year-old playmate a ride on his shoulders across a creek to the woods in the campground where they were playing. Defendant patted the victim on the buttocks as he put her down. Defendant asked the children to help him gather firewood and led them further into the woods. As he led them into the woods, defendant touched the victim’s buttocks again. The child testified that she was “scared and mad,” and she went back to the creek. There, defendant touched the frightened child’s buttocks a third time. The victim pushed defendant away and ran crying across the creek to her mother. The jury convicted defendant of a sexual touching.

There are virtually no significant mitigating factors in this case. Defendant had a criminal record spanning twenty years, including three felony and four misdemeanor convictions, he had a juvenile record, and he was on parole at the time of the offense. This conviction was his second criminal sexual conduct conviction involving a child. The presentencing investigator termed defendant “a danger to the community.” These factors should have been used to enhance, rather than lower, defendant’s sentence. See People v Parrish, 216 Mich App 178, 185; 549 NW2d 32 (1996); People v Nantelle, 215 Mich App 77, 83; 544 NW2d 667 (1996); People v Benson, 200 Mich App 598, 608; 504 NW2d 911 (1993) (Griffin, P.J., dissenting), rev’d 444 Mich 925 (1994) (for reasons stated in Judge Griffin’s dissent). The fact that defendant completed a substance abuse program, obtained his general equivalency diploma, and became employable are not, in my view, sufficient mitigating factors to justify *477a departure from the guidelines recommendation in this case.

I would vacate the judgment of sentence and remand for resentencing.