People of Michigan v. Norman Paul Veit ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 21, 2018
Plaintiff-Appellee,
v No. 336797
Midland Circuit Court
NORMAN PAUL VEIT, LC No. 16-00640-FH
Defendant-Appellant.
Before: CAMERON, P.J., and METER and BORRELLO, JJ.
PER CURIAM.
Defendant was convicted following a jury trial of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(1)(a) (person under 13 years of age). He was sentenced to 38 months
to 15 years in prison. Defendant appeals as of right. We affirm defendant’s conviction but
vacate his sentence and remand for resentencing.
I. FACTS
Defendant’s conviction arises from the sexual abuse of his friend’s six-year old
granddaughter. On the day of the assault, the victim’s father saw defendant place his hand on the
victim’s leg in a suspicious manner. Later that day, the victim’s father witnessed defendant with
his hand up the victim’s shorts, “kind of rubbing her.” The victim testified that defendant was
“touching like my panties” and that she did not like him touching her with his finger. Following
the incident, defendant made an incriminating statement to the Michigan State Police, admitting
to placing his hand on the victim’s leg, “just barely” inside her shorts.
II. ANALYSIS
A. INADMISSIBLE HEARSAY UNDER MRE 803A
Defendant first argues that during trial the victim’s mother testified to inadmissible
hearsay statements. He argues that this violated his right to a fair trial. We disagree.
Defense counsel objected to the hearsay statements and moved for a mistrial. Therefore,
this issue is preserved. People v Grant, 445 Mich. 535, 551-552; 520 NW2d 123 (1994). We
review a trial court’s decision regarding a motion for a mistrial for an abuse of discretion.
People v Schaw, 288 Mich. App. 231, 236; 791 NW2d 743 (2010). Additionally, a preserved and
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nonconstitutional evidentiary error “is presumed not to be a ground for reversal unless it
affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it
undermined the reliability of the verdict.” People v Douglas, 496 Mich. 557, 566; 852 NW2d
587 (2014) (quotation marks and citations omitted).
Generally, hearsay is inadmissible unless an exception under Michigan’s Rules of
Evidence applies. MRE 802. “ ‘Hearsay’ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). MRE 803A, a codification of the common-law “tender years
exception,” allows a child’s hearsay statement regarding sexual assault to be admitted in certain
circumstances. Douglas, 496 Mich. at 573. The rule provides in relevant part:
A statement describing an incident that included a sexual act performed
with or on the declarant by the defendant or an accomplice is admissible to the
extent that it corroborates testimony given by the declarant during the same
proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without
indication of manufacture;
(3) either the declarant made the statement immediately after the incident
or any delay is excusable as having been caused by fear or other equally effective
circumstance; and
(4) the statement is introduced through the testimony of someone other
than the declarant.
If the declarant made more than one corroborative statement about the
incident, only the first is admissible under this rule.
A statement may not be admitted under this rule unless the proponent of
the statement makes known to the adverse party the intent to offer the statement,
and the particulars of the statement, sufficiently in advance of the trial or hearing
to provide the adverse party with a fair opportunity to prepare to meet the
statement. [MRE 803A.]
During trial, the prosecutor had the following exchange with the victim’s mother.
Q. Okay. Did [the victim] ever indicate to you what the issue was? What
had happened?
A. Yeah, she did.
Q. How did she do that?
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A. Um, she very, very vividly told me that [defendant] touched her. And
she didn’t—she did [sic] say the words. She pointed.
Q. What did she point towards?
A. She pointed to her what we as her mom and dad refer to her as her
private parts.
Q. And what are private parts?
A. It would be her vagina, her vaginal area.
On cross-examination, defense counsel had a similar exchange with the victim’s mother.
Q. Okay. And then at some point, you ended up taking [the victim] into
the bathroom into a private area so you could talk to her?
A. Correct.
Q. And she indicated to you by pointing to her right knee that something
had happened.
A. No.
Q. What did she say?
A. She pointed to her vaginal area.
Q. Okay. Did she say anything to you?
A. Yes.
Q. What did she say?
A. She said that [defendant] had touched her private parts. In those exact
not words, she said [defendant] touched me here, and pointed—dropped her head
and pointed to her vaginal area.
Defendant asserts that the victim’s statements were inadmissible because he did not receive
notice and because the statement was not spontaneous and may have been coached by her father.
It is not in dispute that the statement was inadmissible because defendant was not given prior
notice. Because of this, defendant argues that the Court should reverse and order a new trial.
In Douglas, our Supreme Court upheld the grant of a new trial based on errors made by
both the trial court and the defense counsel regarding the introduction of inadmissible hearsay in
a child sexual abuse case. Douglas, 496 Mich. at 566, 589. There, the child disclosed abuse to
her mother and then subsequently disclosed abuse to a forensic interviewer. Id. at 562. Over the
defense counsel’s objection, both the child’s mother and the forensic interviewer were permitted
to testify about the child’s hearsay statements and a videorecording of the child’s forensic
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interview was played for the jury. Id. at 563. The prosecution had no physical evidence or third-
party witnesses to corroborate the child’s claim and built its case around the credibility of the
child’s statements, both in-court and out-of-court, and the unreliability of the defendant’s
denials. Id. at 567. The defense similarly focused on the child’s disputed credibility and the
motivation of the child’s mother to fabricate the abuse. Id. at 571-572. On appeal, the defendant
argued that the forensic interviewer’s testimony about the child’s statement and the video of the
interview were inadmissible under MRE 803A and constituted an error warranting reversal. Id.
at 565-566. The Douglas Court agreed, and in making that determination considered the “nature
of the error in light of the weight and strength of the untainted evidence,” and it recognized that
in a “pure credibility contest” such “evidence may tip the scales against the defendant.” Id. at
579-580 (quotation marks and citations omitted). In the absence of third-party witnesses or
physical evidence, the inadmissible hearsay “added clarity, detail, and legitimacy” to the child’s
account, significantly bolstering her credibility, and warranting a new trial. Id. at 581.
Therefore, the Court held that the trial court abused its discretion by admitting the cumulative
testimony, which was an error that undermined the reliability of the verdict. Id. at 579.
Defendant argues for a similar outcome, asserting that his case is another example of a
“credibility contest” and that “[i]f the hearsay statement had not been introduced it is probable
that the jury would not have found guilt beyond a reasonable doubt.” However, there are
significant differences between Douglas and defendant’s case. Unlike Douglas, where there was
no third-party witness to back-up the victim’s claim, Douglas, 496 Mich. at 567, the victim’s
testimony in this case was corroborated by her father’s eyewitness account. Moreover, the
statements made by the victim’s mother were relatively short in comparison to the testimony of
the forensic interviewer in Douglas, who was qualified as an expert, repeated the child’s
statements multiple times, and stated her opinion that the child had not been coached. Id. at 569-
570. Additionally, the victim’s mother did not meaningfully add “clarity, detail, and legitimacy”
to the victim’s account, Id. at 581, because on the stand the victim gave essentially the same
statement. The victim testified that defendant was “touching like [her] panties” and said that her
“panties” area is her “private parts” that she uses “to go to the bathroom.” Notably, defendant
also gave an incriminating interview where he admitted that he touched the victim “just barely”
inside “her shorts area.” Altogether, this was not a “pure credibility contest.”
Furthermore, in Douglas the trial court overruled the defense counsel’s objections and
allowed the inadmissible hearsay in without reservation. Id. at 569. Here, the trial court
instructed the jury to disregard the hearsay. “Jurors are presumed to follow instructions, and
instructions are presumed to cure most errors.” People v Petri, 279 Mich. App. 407, 414; 760
NW2d 882 (2008). A mistrial is only appropriate when “an irregularity that is prejudicial to the
rights of the defendant and impairs his ability to get a fair trial” is present. Schaw, 288 Mich
App at 236 (citation omitted). Here, the trial court did not abuse its discretion in denying
defense counsel’s motion because the instruction cured the prejudice of the statement.
Defendant also argues that he was denied his right to the effective assistance of counsel
because his attorney failed to object to the statement and there is a reasonable probability that he
would not have been convicted if he did. However, “[e]ffective assistance of counsel is
presumed,” and “[t]he defendant bears a heavy burden of proving otherwise.” People v Seals,
285 Mich. App. 1, 17; 776 NW2d 314 (2009) (quotation marks and citation omitted). In order to
establish ineffective assistance of counsel, a defendant must show that “ ‘counsel’s
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representation fell below an objective standard of reasonableness’ and that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012), quoting
Strickland v Washington, 466 U.S. 668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984).
Defendant fails to explain how his counsel’s performance was unreasonable or how the
outcome of the proceeding would have been different. Although not made instantaneously,
defense counsel did eventually record an objection, move for a mistrial, and request a curative
instruction. In seeking these remedies, defense counsel’s representation was not “outside the
wide range of professionally competent assistance.” Vaughn, 491 Mich. at 670 (quotation marks
and citation omitted). Further, even if counsel had objected as the statement was uttered, the trial
court’s ruling evidences that it believed that a curative instruction was adequate to cure any
prejudice. It is likely that the trial court would have issued a curative instruction regardless of
when defense counsel objected to the statement; therefore, defendant cannot show that the
outcome of the proceeding would have been different. Id. at 670-671.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his conviction must be reversed because he was denied the
effective assistance of counsel. We disagree. Defendant did not preserve this claim so we
review it for “errors apparent on the record.” People v Matuszak, 263 Mich. App. 42, 48; 687
NW2d 342 (2004).
“To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the defendant’s trial would have been different.” People v
Solloway, 316 Mich. App. 174, 188; 891 NW2d 255 (2016). “This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s
competence with the benefit of hindsight.” People v Rockey, 237 Mich. App. 74, 76-77; 601
NW2d 887 (1999).
Defendant first argues that trial counsel was ineffective for failing to request a jury
instruction for the lesser crime of attempted CSC-II, asserting that the evidence only supported a
finding that he touched the victim’s leg and stopped when her father entered the room. When
requested, a trial court must instruct the jury on necessarily included lesser offenses. People v
Reese, 242 Mich. App. 626, 629; 619 NW2d 708 (2000). “A necessarily included lesser offense is
one that must be committed as part of the greater offense; in other words, it would be impossible
to commit the greater offense without first having committed the lesser.” Id. at 629-630.
However, attempt, although it may be a cognate lesser offense, is not the same as a necessarily
included offense because “the elements of attempt are not duplicated in the completed offense.”
People v Adams, 416 Mich. 53, 57-58; 330 NW2d 634 (1982). Attempted CSC-II is not a
necessarily lesser included offense of CSC-II.
Presuming that he was entitled to an instruction on attempt, defendant asserts that defense
counsel’s “all or nothing” strategy was unreasonable and ineffective. He erroneously points to
People v Stapf, 155 Mich. App. 491; 400 NW2d 656 (1986), for support. In Stapf, the defense
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attorney repeatedly suggested that the defendant charged with kidnapping/attempted kidnapping
was only guilty of assault and battery. Id. at 497-498. The defendant admitted that he had
assaulted and battered the victim. Id. at 498. The Court was unable to ascertain from the record
whether the defendant’s counsel properly requested the lesser crime’s instruction and held that if
he failed to do so it would “raise a question as to the adequacy of defendant’s representation at
trial.” Id. at 498-499. The Court explained that
if . . . defendant’s trial attorney failed to request the assault and battery instruction
when his theory of the case was that defendant was guilty of nothing more than
assault and battery, then a factual determination must be made by the trial court as
to whether a serious mistake was made by defense counsel rendering his
performance below that of a lawyer with ordinary skill and training in criminal
law and depriving defendant of a reasonable chance of acquittal, or, in this case,
conviction on the lesser included misdemeanor. [Id. at 499-500.]
Therefore, the Court found that a remand to the trial court was necessary. Id. at 499.
Stapf is distinguishable from the instant case. It is evident from the record that defense
counsel’s strategy was to instill reasonable doubt regarding the victim’s and her father’s
perceptions of the incident and to convince the jury that defendant was innocent of wrongdoing.
Unlike the defendant in Stapf, defendant in this case did not openly admit to the lesser crime of
attempted CSC-II. The defense theory was that the abuse did not occur or was a
misunderstanding, and an instruction on attempt would have severely undermined that theory.
The evidence in this case was not overwhelming and rested on the testimonies of the young
victim, her father and an admission from defendant that he touched the victim’s leg inside of her
shorts. If the jury did not find the victim or her father credible, acquittal was a reasonable
possibility. This Court has held that “all or nothing” defenses can be “a legitimate trial strategy,”
People v Nickson, 120 Mich. App. 681, 687; 327 NW2d 333 (1982), and defendant has not
overcome the strong presumption that counsel’s strategy was sound. Rockey, 237 Mich. App. at
76-77.
Defendant also argues that trial counsel was ineffective for failing to challenge Juror T
and Juror G on the basis that they had familial ties to victims of sexual assault. “[A] criminal
defendant has a constitutional right to be tried by an impartial jury.” People v Miller, 482 Mich.
540, 547; 759 NW2d 850 (2008), citing US Const, Am VI and Const 1963, art 1, § 20. “Jurors
are presumptively competent and impartial, and the party alleging the disqualification bears the
burden of proving its existence.” People v Johnson, 245 Mich. App. 243, 256; 631 NW2d 1
(2001). The impaneling of a jury is governed by MCR 2.511, which allows for a juror to be
excused either for cause, or through a peremptory challenge. See also MCR 6.412(D). MCR
2.511(D), provides, in relevant part, that a juror may be challenged for cause if the person
(1) is not qualified to be a juror;
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from rendering a just
verdict . . . ;
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(4) has opinions or conscientious scruples that would improperly influence
the person’s verdict[.] [MCR 2.511(D).]
When “a ground for challenging a juror for cause is present, the court on its own initiative
should, or on motion of either party must, excuse the juror from the panel.” MCR 6.412(D)(2).
During voir dire, Juror T disclosed that his uncle served time in prison for sexually
assaulting his cousin, but he did not “know the details of it.” Later, Juror G disclosed that her
husband had been the victim of sexual assault at a young age. Both Juror T and Juror G
ultimately served on the jury. 1 When they disclosed their respective relationships, the trial court
questioned them on their ability to be fair and impartial, asking them if their experiences would
affect the way they weighed evidence, if they had a negative view of the justice system, and if
they would be able to impartially judge defendant. Although defendant argues that “additional
inquiry” was necessary, he fails to explain what other questions should have been asked.
Defendant has failed to carry the burden of proving that each juror was not “competent and
impartial.” Johnson, 245 Mich. App. at 256. Since there is no indication that either juror was
biased, defense counsel’s decision not to further probe the jurors did not fall “below an objective
standard of reasonableness.” Vaughn, 491 Mich. at 669 (quotation marks and citation omitted).
Therefore, his claim of ineffective assistance of counsel must fail.
Next, defendant argues that trial counsel was ineffective because he did not call the
victim’s grandfather—defendant’s friend—to testify about an alleged motivation for the victim’s
father to fabricate the allegations. First, defendant gave only cursory treatment to this issue in
his appellate brief. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
of an issue with little or no citation of supporting authority.” Matuszak, 263 Mich. App. at 59
(quotation marks, citation, and alterations omitted). “Such cursory treatment constitutes
abandonment of the issue.” Id. Second, without an affidavit from the grandfather, defendant has
failed to establish that his testimony would have been favorable. A defendant must establish the
factual predicate for his ineffective assistance of counsel claim. People v Hoag, 460 Mich. 1, 6;
594 NW2d 57 (1999). Moreover, whether to call a witness is a matter of trial strategy and this
Court will not substitute its judgment in matters of trial strategy. Rockey, 237 Mich. App. at 76.
Thus, defendant has failed to establish his claim of ineffective assistance.
C. PROSECUTORIAL MISCONDUCT
Next, defendant argues that his right to a fair trial was violated when the prosecutor made
a comment to the jury meant to invoke sympathy. During the rebuttal closing argument, the
prosecutor said: “[i]n order to start the healing process, [the victim] needs justice. Justice is
finding the Defendant guilty of criminal sexual conduct in the second degree, because he is
guilty.” Defendant’s counsel did not object to the comment and therefore, our review is limited
to plain error affecting substantial rights. People v Bennett, 290 Mich. App. 465, 475; 802 NW2d
627 (2010). “Reversal is warranted only when plain error resulted in the conviction of an
1
Three other jurors with closer ties to sexual assault victims were excused.
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actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 475-476 (quotation marks and citation omitted).
“Generally, prosecutors are accorded great latitude regarding their arguments and
conduct.” People v Bahoda, 448 Mich. 261, 282; 531 NW2d 659 (1995) (quotation marks,
citation, and alteration omitted). But “[a] defendant’s right to a fair trial may be violated when
the prosecutor interjects issues broader than the guilt or innocence of the accused.” People v
Rice (On Remand), 235 Mich. App. 429, 438; 597 NW2d 843 (1999). “Prosecutorial comments
must be read as a whole and evaluated in light of defense arguments and the relationship they
bear to the evidence admitted at trial.” People v Rodriguez, 251 Mich. App. 10, 30; 650 NW2d 96
(2002). “A prosecutor may not appeal to the jury to sympathize with the victim.” People v
Unger, 278 Mich. App. 210, 237; 749 NW2d 272 (2008).
In Unger, this Court found that a prosecutor had “exceeded the bounds of proper
argument” when the prosecutor appealed to the sympathies of the jury by suggesting that the
defense counsel had “re-victimized” the victim during the trial. Id. Despite the impropriety of
the statement, this Court noted that “the comments were relatively brief” in the context of the
trial, and were unlikely to have “deflect[ed] the jury’s attention from the evidence presented in
[the] case.” Id. Furthermore, “at the conclusion of trial, the court instructed that jury that “[t]he
attorneys’ statements and arguments are not evidence[,]” which we found was sufficiently
curative because “jurors are presumed to follow their instructions.” Id. Finally, because this
Court found that “a timely objection and curative instruction could have alleviated any
prejudicial effect,” the defendant was not denied a fair trial. Id.
On the other hand, in People v Dalessandro, 165 Mich. App. 569, 578; 419 NW2d 609
(1988), this Court found that the evocation of the jury’s sympathies for a victim, among other
things, warranted a new trial. In Dalessandro, the prosecutor repeatedly referred to the victim as
a “little innocent baby,” a “totally innocent little baby,” and a “pitiful little ten month old child.”
Id. at 580-581. We explained that, “[b]y constantly referring to ‘the poor innocent baby,’ the
prosecutor was injecting the element of sympathy for [the victim] in the case” and was
“obviously intend[ing] to elicit . . . [a]n emotional response.” Id. at 581. The injection of
sympathy by the prosecutor, the prosecutor’s insinuation that the defense counsel was purposely
misleading the jury, and the introduction of impeachment evidence as substantive evidence lead
the Court to find that a new trial was warranted. Id. at 578-582.
Here, the improper comment made by the prosecutor is more like that in Unger than in
Dalessandro. The statement was relatively brief and came at the very end of the prosecutor’s
rebuttal. This is like the brief comment in Unger, where the prosecutor suggested that the victim
was “re-victimized” at trial, Unger, 278 Mich. App. at 237, and less like the multiple sympathy-
provoking references to the “innocent baby” in Dalessandro, 165 Mich. App. at 580-581.
Additionally, the trial court gave the jurors the instruction to “not let sympathy . . . influence”
their decision and that “[t]he lawyers’ statements and arguments are not evidence” so they should
only accept what the lawyers said if supported by the evidence or common sense and general
knowledge. This was the same instruction given to the jury in Unger, which this Court noted
was sufficient to cure the error. Unger, 278 Mich. App. at 237. Finally, just as in Unger, the trial
court could have given a curative instruction if defendant’s counsel had timely objected, which
would have remedied any prejudicial effect. Id. at 237. This Court will not reverse when the
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prejudicial effect of a prosecutor’s comment could have been alleviated by a curative instruction.
Id. at 238. While the comment was improper, it was far from outcome determinative in the
context of the testimony and evidence submitted at trial and it does not constitute plain error
warranting reversal. Bennett, 290 Mich. App. at 475-476.
Defendant also argues that defense counsel was ineffective for failing to object to the
sympathy-invoking statement in the prosecutor’s closing. Although counsel may have been
deficient in failing to object and obtain a curative instruction, defendant has failed to explain how
but for defense counsel’s failure to object to two sentences in the prosecutor’s closing argument
he would not have been convicted. Defendant cannot establish prejudice, and therefore, cannot
show that he was denied the effective assistance of counsel. Id.
D. SENTENCING
Defendant argues that he is entitled to resentencing because his prior record variable
(PRV) 5 was erroneously scored. We agree.
“This Court reviews a trial court’s scoring decision under the sentencing guidelines to
determine whether the trial court properly exercised its discretion and whether the record
evidence adequately supports a particular score.” People v Anderson, 298 Mich. App. 178, 181;
825 NW2d 678 (2012) (quotation marks and citation omitted).
PRV 5 is assessed 20 points when the offender has seven or more prior misdemeanor
convictions or prior misdemeanor juvenile adjudications. MCL 777.55. It is assessed 15 points
when the offender has five or six priors. MCL 777.55. However, misdemeanor convictions or
prior juvenile adjudications are only counted “if it is an offense against a person or property, a
controlled substance offense, or a weapon offense,” MCL 777.55(2)(a), or if they are
misdemeanor convictions and prior misdemeanor juvenile adjudications “for operating or
attempting to operate a vehicle . . . while under the influence of or impaired by alcohol, a
controlled substance, or a combination of alcohol and a controlled substance.” MCL
777.55(2)(b).
Defendant admits, and his presentence investigation report (PSIR) reflects, that he has “at
most” five qualifying prior misdemeanor convictions. Therefore, PRV 5 was improperly
assessed 20 points instead of 15 points. MCL 777.55. The prosecution concedes this error.
Accordingly, resentencing is required because the error affected defendant’s appropriate
guidelines range. People v Francisco, 474 Mich. 82, 89-90; 711 NW2d 44 (2006) (“It would be
in derogation of the law, and fundamentally unfair, to deny a defendant . . . the opportunity to be
resentenced on the basis of accurate information.”) Defendant’s minimum guidelines range, with
the erroneous PRV 5 score, was calculated at 19 to 38 months; however, his correct sentencing
guidelines range is 12 to 24 months. MCL 777.64. The trial court’s sentence suggests an
intention to sentence defendant at the top of the minimum guidelines range, and had the trial
court been working with the appropriate guidelines this would have been 24 months instead of
38 months. MCL 777.64. Accordingly, we remand to the trial court for resentencing. Although
the prosecution argues that defendant’s sentence remains reasonable, “requiring resentencing in
such circumstances . . . respects the defendant’s right to be sentenced on the basis of the law,
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[and] respects the trial court’s interest in having defendant serve the sentence that it truly
intend[ed].” Francisco, 474 Mich. at 92.
Defendant also argues that he received ineffective assistance of counsel because defense
counsel failed to challenge the scoring of PRV 5. Because his challenge to the scoring of PRV 5
is meritorious and requires a remand for resentencing, this Court need not address his ineffective
assistance claim on the same issue. People v Phelps, 288 Mich. App. 123, 142; 791 NW2d 732
(2010), overruled on other grounds by People v Hardy, 494 Mich. 430, 438 n 18; 835 NW2d 340
(2013).
Defendant next argues that there were mitigating factors present to support a lower
sentence. There is no indication that the trial court did not consider defendant’s age and health
problems, his military service, or his lack of assaultive criminal history; all of this information
was contained in defendant’s PSIR. Furthermore, in light of this Court’s remand defendant is
free to further advocate for those mitigating factors at resentencing.
Defendant finally argues that an opinion statement in his PSIR should be amended or
deleted by the trial court. However, by statute a PSIR must include, among other things, “[a]n
evaluation of and a prognosis for the person’s adjustment in the community . . . .” MCL
771.14(2)(a). Defendant does not address this statute or provide a basis for his argument that the
preparer’s opinion should not be included in the PSIR. “An appellant may not merely announce
his position and leave it to this Court to discover and rationalize the basis for his claims . . . .”
Matuszak, 263 Mich. App. at 59 (quotation marks and citation omitted).
We affirm defendant’s convictions, vacate defendant’s sentence, and remand for
resentencing. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
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