People of Michigan v. Cedrick Deandre Carr ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 17, 2020
Plaintiff-Appellee,
v No. 348119
Macomb Circuit Court
CEDRICK DEANDRE CARR, LC No. 2018-000269-FC
Defendant-Appellant.
Before: LETICA, P.J., and FORT HOOD and GLEICHER, JJ.
PER CURIAM.
Defendant was convicted by a jury of four counts of first-degree criminal sexual conduct
(sexual penetration with person under 13) (CSC-I), MCL 750.520b(1)(a), and sentenced by the
trial court to 35 to 60 years’ imprisonment for each count. Defendant raises several claims of error
on appeal, most of which are without merit. We agree, however, that defendant is entitled to
resentencing because the trial court imposed sentences that exceeded the mandatory minimum
sentence set forth in MCL 750.520b(2)(b) without articulating any reasons for the upward
departure. We therefore affirm defendant’s convictions, but vacate his sentences and remand for
resentencing.
I. BACKGROUND
This matter arises from allegations of sexual assault made by defendant’s son, who was
eight years old at the time of the assaults. In 2017, the victim lived with his mother in Indiana and
had little relationship with defendant. At the victim’s request, however, his mother arranged for
him to visit defendant. The victim stayed with defendant in Michigan twice that summer, spending
part of each visit at the home of defendant’s mother on Sterling Street and the remaining time at
the home of defendant’s brother on Studebaker Street. After the second visit, the victim began to
have difficulty controlling his bowel movements. The victim’s mother repeatedly questioned him
about his recent incontinence until the victim disclosed that he had been assaulted by defendant.
At trial, the victim testified that defendant put his penis in the victim’s anus on several occasions
at each of the homes they resided at over the summer.
II. PROSECUTORIAL MISCONDUCT
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Defendant first argues on appeal that he was denied a fair trial because of the prosecutor’s
inflammatory remarks during his opening statement and closing argument. We disagree.
“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). Defendant did not object to the prosecutor’s comments and,
thus, did not preserve this issue for review. We review unpreserved claims of prosecutorial
misconduct for plain error affecting substantial rights. People v Brown, 294 Mich App 377, 382;
811 NW2d 531 (2011). Defendant must establish that “(1) error occurred, (2) the error was plain,
i.e., clear or obvious, and (3) the plain error affected substantial rights.” People v Wiley, 324 Mich
App 130, 150-151; 919 NW2d 802 (2018) (quotation marks and citation omitted). A plain error
affects substantial rights if it causes prejudice by affecting the outcome of the proceedings. Id. at
151. “Reversal is warranted only when plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings, independent of defendant’s innocence.” People v Ackerman, 257 Mich App 434,
448-449; 669 NW2d 818 (2003).
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” Brown, 294 Mich App at 382. Claims of prosecutorial misconduct are reviewed
on a case-by-case basis, taking into consideration not only the evidence admitted at trial, but also
the theories and arguments presented by the defense. People v Mullins, 322 Mich App 151, 172;
911 NW2d 201 (2017). “Generally, prosecutors are accorded great latitude regarding their
arguments, and are free to argue the evidence and all reasonable inferences from the evidence as
they relate to their theory of the case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314
(2009). However, the leeway to craft persuasive arguments is not without limitation; prosecutors
must “refrain from denigrating a defendant with intemperate and prejudicial remarks,” People v
Bahoda, 448 Mich 261, 283; 531 NW2d 659 (1995), or appealing “to the jury to sympathize with
the victim,” People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008).
The prosecutor began his opening statement by informing the jury that “[t]he facts of this
case arise out of the darkest events known to man.” After describing the circumstances leading to
the victim’s first disclosure of the assaults, the prosecutor continued:
[W]hat he explained was a heinous, depraved evil act, an act perpetrated by the man
sitting right here, his father. And on that day [the victim] had to learn something
that no 8-year[-]old boy should ever have to learn, and is [sic] that is that he had
been raped.
And so when he described the physicality the event and how this was
happening to him when he was visiting dad in Michigan, he learned what rape was.
He learned that adult word for that adult act that happened to him.
And so, ladies and gentlemen, the famous psychiatrist, Sigmund Freud
coined the phrase or the the [sic] saying that, “I cannot think of any need in
childhood as strong as the need for a father’s protection.” This case will illustrate
to you the exact dark opposite.
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As the prosecutor summarized the evidence he would present, he twice referred to defendant as a
“sexual predator of the worst kind.”
The prosecutor continued this theme in his closing argument, which began with the
following:
We talked in the beginning about how the control of a father is a protector
above all else, and the opposite of a protector is predator. And I told you that the
facts and evidence we’re going to show is that this man is a predator of the worst
kind. It is unimaginable what [the] 8[-]year[-]old [victim] experienced when he
was behind that closed door in the bathroom of the residence where Grandma lived,
and he’s peering through that keyhole that he demonstrated for us with that detail,
and he drew for us that we all know clearly is what a keyhole looks like. It’s
unimaginable what he felt like as his little heartbeat knowing that on the other side
of the door was that predator who is waiting to rape his son again, the feelings that
he went through. I think his words were, “Why is he doing this to me?” No 8[-
]year[-]old boy should ever have to go through something like that. But today is
the day for justice for [the victim].
The prosecutor referred to defendant as a predator five additional times before the case was
submitted to the jury for deliberations.
Defendant contends that these portions of the prosecutor’s opening statement and closing
argument were impermissible because they were designed to inflame the jury’s passions instead
of assist in interpreting the evidence. We disagree. The prosecutor was not taking gratuitous jabs
at defendant solely to make defendant look bad in the eyes of the jurors. Rather, he was explaining
his theory of the case, which involved defendant’s use of predatory conduct to commit the charged
offenses. There was evidence that defendant tried to stay in the victim’s good graces by purchasing
gifts and promising more gifts in the future. The victim testified that defendant took his cellphone
away, which had the effect of limiting the victim’s contact with his mother. Although there was
much discussion of the victim’s failure to disclose what was happening to other adults, it is
noteworthy that the victim had not seen defendant in at least five years and was apparently meeting
defendant’s family for the first time. By taking the victim’s cellphone, defendant limited his ability
to turn to the only caregiver with whom he had a longstanding relationship, thereby curbing the
likelihood that the victim would expose defendant’s repeated sexual assaults. The victim also
testified that whenever he wanted to talk to adults about what defendant was doing, he felt
uncomfortable doing so because defendant was nearby. In addition, the victim described
defendant’s habit of waiting for him outside the bathroom door and immediately assaulting him
when he emerged. Defendant also stopped the victim from calling out during these assaults by
covering the victim’s mouth. Thus, the prosecutor’s repeated use of the term predator, though
potentially inflammatory, was well-grounded in evidence of predatory conduct.
Turning to the prosecutor’s vivid description of the fear the victim likely felt, we
acknowledge that it would be difficult for most jurors to hear the prosecutor’s remarks without
feeling some level of sympathy for the victim. But while the prosecutor’s description was
undoubtedly emotional, it was a fair summary of the victim’s testimony about the times he hid
from defendant in the bathroom. Emotional language is not inherently improper and is, in fact, a
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powerful tool in closing arguments. Ackerman, 257 Mich App at 454, citing People v Ullah, 216
Mich App 669, 679; 550 NW2d 568 (1996). Moreover, after describing his impression of the
victim’s feelings, the prosecutor moved on to a less emotionally charged view of the case, focusing
the jury’s attention on evidence establishing each element of CSC-I and the reasons why the
victim’s account of what happened should be credited. The facts at issue in this case, as in many
cases involving child molestation, have a natural tendency to arouse sympathy for the victim, but
the prosecutor did not urge the jury to convict defendant on the basis of its sympathy.
Furthermore, the prosecutor had to overcome certain weaknesses in his case that arose as
a product of the victim’s delayed disclosure. The victim did not tell anybody what happened for
several months and willingly returned to defendant’s care after having been molested during the
first visit. By the time his allegations came to light, there was no physical evidence to corroborate
his claims. Given the victim’s ready admission that he learned “adult” terminology like “rape”
from his mother when he disclosed what happened, the prosecutor also faced concerns that the
jury might believe that the victim’s mother tainted his recollection or, worse, helped or encouraged
him to fabricate allegations against defendant. The prosecutor correctly anticipated that the
defense would seize on these factors to cast doubt over whether defendant was guilty of the charged
offenses. The prosecutor therefore took great care to emphasize the victim’s fear, the father-son
relationship involved, and defendant’s predatory conduct to help explain why the victim would
have been hesitant to immediately accuse defendant of criminal sexual conduct. Considering the
relationship the prosecutor’s remarks bore to the evidence presented and the arguments advanced
by the defense, we are not convinced that the prosecutor’s remarks were plainly erroneous or
impaired defendant’s right to a fair trial.
Furthermore, “[c]urative instructions are sufficient to cure the prejudicial effect of most
inappropriate prosecutorial statements[.]” Unger, 278 Mich App at 235. Just before the prosecutor
began his opening statement, the trial court instructed the jury that opening statements only
described “what the parties think the evidence is going to show,” and should not be taken as
evidence. In its final instructions, the trial court again reminded the jury that “[t]he lawyers’
statements and arguments are not evidence.” It also instructed the jury to reach its verdict only on
the basis of properly admitted evidence and warned against letting sympathy or prejudice influence
the verdict. Because this Court presumes that jurors follow their instructions, id., there is no reason
to believe that the prosecutor’s remarks, though colorful, affected the outcome of the proceedings.
III. INEFFECTIVE ASSISTANCE–FAILURE TO OBJECT TO PROSECUTORIAL
MISCONDUCT
Defendant next argues that he was denied the effective assistance of counsel when his
attorney failed to object to the prosecutor’s inflammatory remarks. We disagree.
“Whether a defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law.” People v Muhammad, 326 Mich App 40, 63; 931 NW2d
20 (2018). “Any findings of fact are reviewed for clear error, while the legal questions are
reviewed de novo.” People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). However,
because defendant did not preserve this issue for review by moving for a new trial or evidentiary
hearing before the trial court, our review is limited to mistakes apparent on the record. Id. at 538-
539.
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A defendant who claims to have been denied the effective assistance of counsel bears a
heavy burden to overcome the presumption that defense counsel employed a sound trial strategy.
People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). To do so, the defendant must
generally satisfy the two-part test announced in Strickland v Washington, 466 US 668; 104 S Ct
2052; 80 L Ed 2d 674 (1984), by showing that “(1) counsel’s performance fell below an objective
standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” Trakhtenberg, 493 Mich at 51. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Muhammad, 326 Mich App at 63 (quotation marks and citation omitted). The defendant bears the
burden of establishing the factual basis for his or her claim. Id.
Defendant’s claim of error lacks merit for several reasons. Foremost among these reasons
is that failure to raise a futile objection does not constitute ineffective assistance of counsel. People
v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Because the prosecutor’s remarks
were not improper, defense counsel cannot be faulted for failing to object. In addition, our
Supreme Court has recognized that there are circumstances when an attorney may strategically
choose to forgo an objection to potentially improper comments in order to avoid drawing the jury’s
attention to the matter. Bahoda, 448 Mich at 287 n 54. Defendant recognizes as much, but argues
that there was “no fathomable strategic reason for trial counsel not to have objected during a
sidebar or otherwise out of the hearing of the jury.” We disagree. Setting aside the fact that the
remarks were not improper, a later objection to the prosecutor’s comments would not have served
any practical purpose. It would not have preserved the issue of prosecutorial misconduct for
review, as only contemporaneous objections will suffice for that purpose. Bennett, 290 Mich App
at 475. The prosecutor’s opening statement was immediately preceded by a cautionary instruction
that the remarks were not evidence, and defense counsel knew the jury would be similarly
instructed after closing arguments. Accordingly, it was unnecessary for defense counsel to seek
additional curative instructions which might draw unwanted attention to the prosecutor’s
comments in the same manner as an objection. See People v Matuszak, 263 Mich App 42, 58; 687
NW2d 342 (2004) (concluding that counsel could reasonably conclude that objection would be
superfluous when improper remarks would already be followed by cautionary instructions in final
jury instructions). Defendant has not overcome the presumption that trial counsel exercised
objectively reasonable trial strategy. Trakhtenberg, 493 Mich at 52.
Defendant is also unable to establish a reasonable probability of a different outcome but
for defense counsel’s performance. Id. at 51. As explained earlier, the prosecutor’s remarks,
though colorful and emotional, were not improper when viewed in relation to the evidence and
issues presented at trial. Consequently, it is improbable that the trial court would have sustained
an objection had one been made, and there is no reason to believe the jury would have reached a
different verdict.
IV. DEPARTURE SENTENCE
Defendant next argues that he is entitled to resentencing because the trial court gave no
hint of its reasons for imposing sentences that far exceeded defendant’s sentencing guidelines
range and the statutory minimum sentence. We agree.
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We review a departure sentence for reasonableness by applying an abuse of discretion
standard of review. People v Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458 (2017). “A
sentence is unreasonable—and therefore an abuse of discretion—if the trial court failed to adhere
to the principle of proportionality in imposing its sentence on a defendant.” People v Lampe, 327
Mich App 104, 125; 933 NW2d 314 (2019). The principle of proportionality requires that the trial
court impose a sentence that is “proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Id., quoting People v Milbourn, 435 Mich 630, 461 NW2d 1 (1990)
(quotation marks omitted). The statutory sentencing guidelines embody this principle and must
be considered by the trial court. Dixon-Bey, 321 Mich App at 524-525. In order to facilitate
appellate review, when a trial court determines that a defendant should be sentenced outside of the
recommended range, it must explain why the departure sentence is more proportionate to the
offense and the offender. Lampe, 327 Mich App at 126-127.
Defendant was assessed 32 points for prior record variables and 150 points for offense
variables. These scores placed defendant in the D-VI cell of the Class A sentencing grid, which
recommends a minimum sentence of 171 to 285 months’ imprisonment. MCL 777.62. However,
because defendant was convicted of several counts of CSC-I involving sexual penetration “by an
individual 17 years of age or older against an individual less than 13 years of age,” defendant was
subject to a mandatory 25-year minimum sentence for each conviction. MCL 750.520b(2)(b).
When a minimum sentence mandated by statute exceeds the upper limit of the defendant’s
guidelines range, any sentence that is longer than the statutory minimum is considered a departure
sentence, and the trial court must justify the sentence imposed in the same manner as other
departure sentences. People v Payne, 304 Mich App 667, 672-673; 850 NW2d 601 (2014).1
Before imposing the 35-year minimum sentences in this case, the trial court noted its
obligation to impose individualized sentences by considering factors such as punishment,
rehabilitation, protection of society, and deterrence of similar offenses, but made no effort to
explain how these factors applied to defendant or why the 35-year minimum sentences it imposed
were more proportionate than the 25-year minimum sentences mandated by MCL 750.520b(2)(b).
The trial court’s generic recital of factors to be considered in sentencing did not provide any
meaningful rationale for this Court to review. Because the trial court failed to provide adequate
reasons justifying the departure sentences imposed, defendant is entitled to resentencing. People
v Steanhouse, 500 Mich 453, 476; 902 NW2d 327 (2017).
V. SUFFICIENCY OF THE EVIDENCE
1
Payne was decided before the Supreme Court abrogated the requirement of articulating a
substantial and compelling reason for imposing a departure sentence. See People v Lockridge, 498
Mich 358, 391-392; 870 NW2d 502 (2015). Thus, while the Payne Court concluded that a
departure of the sort at issue in this case must be supported by substantial and compelling reasons,
Payne, 304 Mich App at 672-673, more recent caselaw only requires that the trial court explain
why the departure sentence is proportionate to the offense and the offender, Lampe, 327 Mich App
at 126-127.
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In a Standard 4 brief, defendant also argues that there was insufficient evidence to sustain
his convictions and that he was denied the effective assistance of counsel when his attorney failed
to move for acquittal. We disagree.
This Court reviews claims of insufficient evidence de novo. People v Miller, 326 Mich
App 719, 735; 929 NW2d 821 (2019). “We review the evidence in the light most favorable to the
prosecution and determine whether the jury could have found each element of the charged crime
proved beyond a reasonable doubt.” People v Savage, 327 Mich App 604, 613; 935 NW2d 69
(2019). Given this deferential standard of review, we must “draw all reasonable inferences and
make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400;
614 NW2d 78 (2000). As noted earlier, defendant failed to preserve his ineffective assistance
claims by moving for a new trial or evidentiary hearing. Head, 323 Mich App at 538-539. Our
review of that issue is, therefore, limited to mistakes apparent on the record. Id. at 539.
Defendant argues that there was insufficient evidence to sustain his convictions because
the case came down to “the victim’s testimony against the defendant with no other evidence
period.” Defendant’s position is without merit because, as a matter of law, the victim’s testimony
does not have to be corroborated in prosecutions for criminal sexual conduct or assault with intent
to commit criminal sexual conduct. MCL 750.520h. See also People v DeLeon, 317 Mich App
714, 719; 895 NW2d 577 (2016) (“The victim’s testimony alone can provide sufficient evidence
to support a conviction.”). And while the victim’s testimony was undoubtedly the lynchpin of the
prosecutor’s case, it was not completely uncorroborated. The victim’s mother testified that he
developed incontinence after visiting defendant, and an expert testified that incontinence could be
indicative of repeated anal penetration. Furthermore, in reviewing the sufficiency of the
prosecutor’s evidence, we must view issues of credibility in the light that supports the jury verdict.
Nowack, 462 Mich at 400.
Defendant’s cursory assertion that he was denied the effective assistance of counsel
because his attorney failed to move for acquittal is also without merit because it is contradicted by
the record. Defense counsel sought a directed verdict at the conclusion of the prosecutor’s proofs,
and the trial court denied the motion. Accordingly, defendant cannot establish the factual predicate
for this claim of error. Muhammad, 326 Mich App at 63 (“[B]ecause the defendant bears the
burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears
the burden of establishing the factual predicate for his claim.”).
VI. INEFFECTIVE ASSISTANCE–FAILURE TO INVESTIGATE
Defendant also argues in his Standard 4 brief that he was denied the effective assistance of
counsel because his attorney failed to adequately challenge the victim’s testimony about peering
through a keyhole in the bathroom door while hiding from defendant. We disagree.
“Whether a defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law.” Muhammad, 326 Mich App at 63. Our review of this
issue is again limited to mistakes apparent from the record because defendant did not preserve
appellate review by moving for a new trial or evidentiary hearing before the trial court. Head, 323
Mich App at 538-539.
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As explained earlier, a defendant pressing a claim of ineffective assistance of counsel must
demonstrate that “(1) counsel’s performance fell below an objective standard of reasonableness
and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different.” Trakhtenberg, 493 Mich at 51. Concerning the first requirement,
“[c]ounsel always retains the duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Id. at 52 (quotation marks and citation
omitted).
Defendant argues that defense counsel should have gone to the homes were the victim
alleged that sexual assaults had taken place to photograph the bathroom doors, which could then
be used to demonstrate that the victim was lying when he testified about peering through keyholes
that did not exist. Defense counsel is entitled to a presumption that his decisions regarding what
evidence to present were matters of sound trial strategy. People v Dixon, 263 Mich App 393, 398;
688 NW2d 308 (2004). Defense counsel elicited testimony from several defense witnesses,
including defendant, indicating that the bathroom doors did not have keyholes, and defendant’s
bare assertion that this was an inadequate method of impeachment does not overcome the
presumption that defense counsel had a strategic reason for choosing to rebut the victim’s
testimony in this manner, as opposed to introducing photographs. Moreover, the record suggests
that by the time defendant was charged and retained defense counsel, defendant’s mother was no
longer residing at the Sterling residence, leaving defense counsel without sure access to that
location. Defense counsel could also have reasonably concluded that presenting photographs of
the bathroom door at the Studebaker residence only might have an adverse effect by implying that
defendant had something to hide at the Sterling residence. Given this possibility, defendant has
not established that defense counsel’s performance fell below an objective standard of
reasonableness.
Although the prosecutor used the victim’s testimony about peering through a keyhole to
paint a vivid mental picture for the jury, it is important to recognize that the keyhole issue was a
minor detail that was not material to the charged offenses. Even if defense counsel presented
evidence that negated the victim’s description of the keyhole more conclusively, the jury could
still have found the victim’s testimony about defendant’s sexual assaults worthy of belief. When
the officer in charge of the case interrogated defendant, defendant himself said that the victim was
intelligent and credible. Defendant also lied during his interrogation, admitted penetrating the
victim with his finger, and made other statements that could be viewed as incriminating. In
addition, while awaiting trial, defendant wrote a letter to the victim’s mother emphatically asking
her to keep the victim away from court. The jury could have attached a negative inference of guilt
to defendant’s request. On this record, defendant has not established a reasonable probability of a
different outcome but for defense counsel’s performance.
VII. INEFFECTIVE ASSISTANCE–DEFENDANT’S COMPETENCY
At the beginning of his Standard 4 brief, defendant presents a third question for review
concerning defense counsel’s failure to challenge defendant’s competency to stand trial. But apart
from stating this question, defendant offers no substantive argument in the body of his brief.
Because defendant fails to articulate any argument in support of his final claim of error, we
consider it abandoned. People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009) (“An
appellant may not merely announce his position and leave it to this Court to discover and
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rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation
of supporting authority.”); People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001)
(“Failure to brief a question on appeal is tantamount to abandoning it.”) (citation omitted).
We affirm defendant’s convictions, but vacate his sentences and remand for resentencing.
We do not retain jurisdiction.
/s/ Anica Letica
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
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