Michigan Court of Appeals upholds sleepover assault conviction

By Elisabeth Waldon • Last Updated 9:45 pm on Friday, August 15, 2014

LANSING — The Michigan Court of Appeals has upheld the conviction of a Greenville man who molested a teenager at his own daughter’s sleepover party.

Jonas Lownsbery was convicted by a Montcalm County jury in November 2012 of second-degree criminal sexual conduct from an incident dating back to May 2010.

Lownsbery, who was also a habitual offender second offense, was sentenced to from 42 months to 22.5 years in prison.

The 13-year-old female victim testified at a preliminary hearing in February 2011 that she was 12 years old when she went to her 12-year-old friend’s house in Greenville for a sleepover. A third female friend was also present at the sleepover.

The victim said she went to sleep around midnight on the living room floor and woke up around 3 a.m. to find Lownsbery lying on the couch next to her and fondling her through her clothes. Lownsbery had his eyes closed and was pretending to be asleep.

The girl attempted to wake her two friends, then called her mother in Edmore, her sister in Stanton and Lownsbery’s ex-wife in Crystal for assistance. The ex-wife picked up the girl from the home, and, after learning later that morning what had happened, went back and picked up the two other girls from the home.

Lownsbery appealed the conviction, arguing the trial court erred by failing to grant his request for a mistrial based on the prosecutor’s alleged violation of discovery rules. Lownsbery specifically argued that a text message sent by the victim of her sister disclosing that Lownsbery touched her inappropriately while she was sleeping was not disclosed. Lownsbery did not know about the text message, which was the only evidence to show that the victim disclosed abuse on the night of the incident.

Lownsbery argued the prosecution was required to provide the text message under the rules of discovery, but failed to do so. Lownsbery said this failure irreparably damaged his credibility and prejudiced his defense. His theory of the case — explained to the jury before he was aware of the text message — was that the victim never disclosed any sexual abuse until the following morning, after she was influenced by her mother and others.

The prosecution contends it never had possession of the text message itself, but only learned about it through an interview with the victim’s sister one week before the trial.

The Court of Appeals ruled that since the prosecution never had possession of the text message — only knowledge of it — the prosecution was not compelled to provide it at trial.

Lownsbery also argued the trial court erred in allowing the introduction of other evidence. The challenged evidence is testimony from the victim about a previous incident in 2008, when she was 11 years old. The victim testified she was sleeping on a pull-out couch in Lownsbery’s living room next to her friend when she awoke to find her nightgown pulled up to her stomach and Lownsbery lying on the floor next to her, touching her. Again, his eyes were closed.

The victim didn’t tell anyone about this incident until months later, when she discussed it with her friend. The victim didn’t stay at Lownsbery’s home again until May 2010.

The victim’s testimony about the previous incident was admitted at trial over Lownsbery’s objections.

The Court of Appeals ruled that the court did not abuse its discretion in allowing the testimony, since the allegations contained multiple similarities — both times the victim was sleeping and Lownsbery was pretending to be asleep while touching her. The Court of Appeals also noted there was a need for evidence beyond the testimony of Lownsbery and the victim because there was no physical evidence and Lownsbery challenged the victim’s credibility. The Court of Appeals also noted the trial judge gave instructions to the jury that ensured the jury properly employed the evidence.

Finally, Lownsbery argued the trial court erred in sentencing guidelines, resulting in an incorrect sentencing range. The Court of Appeals disagreed, noting that two other girls were sleeping nearby at the time of the crime — one of whom testified that Lownsbery touched her in her sleep a month earlier — and therefore were also in danger of physical injury.

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