People of Michigan v. Jerome Romey Sueing ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 16, 2017
Plaintiff-Appellee,
v No. 329961
Kent Circuit Court
JEROME ROMEY SUEING, LC Nos. 15-000819-FH;
15-000820-FH
Defendant-Appellant.
Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.
PER CURIAM.
In lower court no. 15-000819-FH, defendant was charged with aggravated indecent
exposure, MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL
750.335a(2)(c) in connection with an incident in which defendant exposed his penis and began
masturbating while sitting at a table near a woman at the Grand Rapids Downtown Market on
January 9, 2015. In lower court no. 15-000820-FH, defendant was charged with aggravated
indecent exposure and indecent exposure by a sexually delinquent person in connection with an
incident in which defendant exposed and then began “stroking” his penis while sitting next to a
woman in a lobby at Kendall College of Art and Design in Grand Rapids on January 12, 2015.
The trial court consolidated the two cases for a single trial. The judgments of sentence reflect
that, in each case, defendant was convicted by a jury of aggravated indecent exposure and
indecent exposure by a sexually delinquent person, MCL 750.335a(2)(b) and (c). The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences
of 24 months to 15 years’ imprisonment for the aggravated indecent exposure convictions and 20
to 40 years’ imprisonment for the indecent exposure by a sexually delinquent person convictions.
Defendant appeals as of right. We vacate defendant’s convictions and sentences for aggravated
indecent exposure, affirm his convictions for indecent exposure by a sexually delinquent person,
but vacate his sentences associated with these two convictions and remand so the trial court can
resentence defendant consistent with MCL 750.335a(2)(c) to one day to life in prison.
I. JOINDER
On appeal, defendant first argues that the trial court erred by joining the two cases for
trial. Questions of joinder present mixed questions of fact and law. People v Gaines, 306 Mich
App 289, 304; 856 NW2d 222 (2014). “To determine whether joinder is permissible, a trial
court must first find the relevant facts and then must decide whether those facts constitute
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‘related’ offenses for which joinder is appropriate.” Id. (quotation marks and citation omitted).
We review a trial court’s factual findings for clear error and review questions of law de novo. Id.
The ultimate decision of whether to permissively join related charges, however, lies firmly
within the discretion of the trial court. Id. A trial court abuses its discretion when its decision
falls outside the range of reasonable and principled outcomes. People v Duenaz, 306 Mich. App.
85, 90; 854 NW2d 531 (2014).
Two or more informations against a single defendant may be consolidated for a single
trial. MCR 6.120(A). MCR 6.120(B) provides in pertinent part the following:
On its own initiative, the motion of a party, or the stipulation of all parties,
except as provided in subrule (C), the court may join offenses charged in two or
more informations or indictments against a single defendant . . . when appropriate
to promote fairness to the parties and a fair determination of the defendant’s guilt
or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain
on the parties’ resources, the potential for confusion or prejudice stemming from
either the number of charges or the complexity or nature of the evidence, the
potential for harassment, the convenience of witnesses, and the parties’ readiness
for trial.
On a defendant’s motion, a trial court must sever offenses that are unrelated for separate trials.
MCR 6.120(C).
Defendant argues that offenses are not “related” simply because they are of the same or
similar character, People v Williams, 483 Mich. 226, 235, 234 n 6; 769 NW2d 605 (2009), and
his two offenses were not “related” under MCR 6.120(B)(1). We disagree. For each offense,
defendant went to a gathering area in a public place. He then sat down near a young woman,
pulled his penis out of his pants, and rubbed it. While the offenses were of the same character,
they were also acts constituting parts of a single scheme or plan. See MCR 6.120(B)(1)(c). The
offenses were acts in defendant’s scheme of using unsuspecting young women, who were in a
gathering area of a public place, to obtain sexual gratification. Accordingly, the charged
offenses were “related” under MCR 6.120(B)(1).
Further, the trial court did not abuse its discretion by ultimately deciding to consolidate
the two cases for trial. The facts of the two offenses were not complex and presented minimal
potential for confusion. Also, evidence of each offense would have been admissible under MRE
404(b) in a trial on the other offense to prove defendant’s identity and that he had a common
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scheme, plan, or system of doing the acts. See People v Sabin (After Remand), 463 Mich. 43, 63;
614 NW2d 888 (2000); People v Ho, 231 Mich. App. 178, 186; 585 NW2d 357 (1988).
Consolidating the cases reduced the drain on resources and offered convenience for the
witnesses. Under these facts, the trial court’s decision to consolidate the two cases for trial did
not fall outside the range of reasonable and principled outcomes.
Defendant also argues that the trial court erred by denying his request for a separate jury
on the charges of indecent exposure by a sexually delinquent person. We disagree. In People v
Breidenbach, 489 Mich. 1, 3-4, 8; 798 NW2d 738 (2011), the Michigan Supreme Court reversed
its decision in People v Helzer, 404 Mich. 410; 273 NW2d 44 (1978), and held that, under MCL
767.61a, a defendant is not entitled to have separate juries decide the issue of sexual delinquency
apart from a primary offense. According to the Supreme Court, MCR 6.120(B) provides the
proper framework for courts to determine whether a separate jury should be empaneled to decide
a sexual delinquency charge. Breidenbach, 489 Mich. at 14. The Court explained as follows:
[I]f a fair determination of a defendant’s guilt or innocence of each offense would
require separate juries, trial courts may order separate juries . . . . In accordance
with the rationale supporting the Helzer Court’s original holding, the potential for
confusion or prejudice in particular may provide a sufficient basis for a trial
court’s exercise of its discretion to order separate juries when a charge of sexual
delinquency is involved. When that potential does not exist, however, separate
juries need not be empaneled in order to consider separately the charges against a
defendant. [Id. at 14-15 (quotation marks omitted).]
As already discussed, the two cases were properly joined for trial. Further, as will be
discussed in Section II of this opinion, evidence of defendant’s earlier acts of sexual impropriety,
occurring at a Biggby Coffee in January 2014 and a Common Ground coffee shop in October
2004, was admissible under MRE 404(b) at trial on the charged offenses. Defendant does not
argue that a jury deciding his sexual delinquency charges could not have heard this evidence. If
separate juries had been used, there would have been a complete overlap in evidence. Because
the evidence overlapped, the jury did not have to limit its use of any of the evidence presented at
trial to separately determine if the charged offenses occurred or if defendant was a sexually
delinquent person. Accordingly, there was no potential for confusion or prejudice, and the trial
court did not abuse its discretion by denying defendant’s request for a separate jury on the sexual
delinquency charges.
II. OTHER-ACTS EVIDENCE
Defendant next argues that the trial court improperly admitted evidence of his previous
acts of sexual impropriety that occurred at a Biggby Coffee in January 2014, and at a Common
Ground coffee shop in October 2004. We review a trial court’s evidentiary decisions for an
abuse of discretion. People v Unger, 278 Mich. App. 210, 216; 749 NW2d 272 (2008).
MRE 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith.”
However, such evidence may be admissible for another purpose, such as to prove “motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
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absence of mistake or accident when the same is material . . . .” Id. Three requirements must be
met for other-acts evidence to be admissible. People v Knox, 469 Mich. 502, 509; 674 NW2d
366 (2004). First, the evidence must be offered for a proper purpose, which is any purpose other
than to show the defendant’s action in conformity therewith. Id. Second, the evidence must be
relevant under MRE 402 to an issue that is of consequence at trial. Id. Third, the probative
value of the evidence must not be substantially outweighed by the danger of unfair prejudice.
Id., citing MRE 403. Unfair prejudice exists if there is a tendency that evidence with little
probative value will be given undue weight by a jury. People v McGhee, 268 Mich. App. 600,
614; 709 NW2d 595 (2005).
We reject defendant’s argument that evidence of the Biggby Coffee incident was
inadmissible because it did not include any act of aggravated indecent exposure. Even if
defendant’s conduct at the Biggby Coffee did not constitute a crime, this fact does not mean that
evidence of the incident was inadmissible as other-acts evidence. MRE 404(b)(1) specifically
provides that “[e]vidence of other crimes, wrongs, or acts . . . may . . . be admissible for”
purposes other than to prove the defendant’s character. (Emphasis added.) We also reject
defendant’s argument that evidence of the Common Ground incident was inadmissible due to its
age. “The remoteness of an act only affects the weight of the evidence rather than its
admissibility.” McGhee, 268 Mich. App. at 611-612. Accordingly, the fact that the Common
Ground incident occurred 11 years before the charged offenses did not preclude its admission.
All elements of a charged offense are “at issue” when a defendant pleads not guilty.
People v Crawford, 458 Mich. 376, 389; 582 NW2d 785 (1998). The prosecution must prove
each element beyond a reasonable doubt, regardless of whether the defendant specifically
disputes or offers to stipulate to any of the elements. Id. Identity is an element of every offense.
People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008).
In this case, the other-acts evidence was admissible to prove defendant’s common
scheme, plan, or system of doing an act pursuant to MRE 404(b)(1). Other-acts evidence is
relevant to show that the charged offense occurred when the other act and the charged offense
are sufficiently similar to support an inference that they are manifestations of a common scheme,
plan, or system. Sabin (After Remand), 463 Mich. at 63. Regarding the Biggby Coffee incident,
Hanali Gilbert testified that defendant sat down at a table near her and her friend. Gilbert then
saw defendant “rubbing” himself near his penis; she used the word “masturbating” to describe
his conduct. Gilbert testified that she did not see defendant’s penis, but his hand was in his
pants. Regarding the Common Ground incident, Justine Bandstra testified that defendant sat at a
table near her and her friend. When Bandstra looked over at defendant, she saw that defendant
had removed his penis from his pants and he was “stroking” it with an “up and down” motion.
The Biggby Coffee incident and the Common Ground incident were sufficiently similar to the
charged offenses to support an inference that they and the charged offenses were manifestations
of a common plan, scheme, or system in doing an act. In the two incidents, as in the charged
offenses, while in a public area where people could gather, defendant sat down near a young
woman and masturbated. Additionally, because evidence of the incidents was highly probative
to the issue of whether the charged offenses occurred, the risk of unfair prejudice did not
substantially outweigh the probative value of the evidence.
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Moreover, evidence of the Biggby Coffee incident and the Common Ground incident was
admissible to prove defendant’s identity as the perpetrator of the charged offenses. Other-acts
evidence is relevant to prove identity if (1) there is substantial evidence that the defendant
committed the other act, (2) there is some special quality of the act that tends to prove the
defendant’s identity, (3) the evidence is material to the defendant’s guilt, and (4) the probative
value of the other-acts evidence is not substantially outweighed by the danger of unfair
prejudice. Ho, 231 Mich. App. at 186.
Regarding the Biggby Coffee incident, there was substantial evidence that defendant was
the man who Gilbert saw rubbing himself. At trial, Gilbert identified the man as defendant.
Further, there was some special quality of the act that tended to prove defendant’s identity.
Although there was no testimony that defendant exposed his penis in the Biggby Coffee incident,
Gilbert’s testimony established that, just as in the charged offenses, defendant sat at a table near
a young woman in a public place and rubbed himself for sexual gratification. Regarding the
Common Ground incident, there was substantial evidence that defendant was the man who
exposed himself. At trial, Bandstra identified the man who exposed himself as defendant. She
also testified that, during a 2005 trial, she identified defendant as the man who exposed himself.
Further, there was some special quality of the act that tended to prove defendant’s identity. In
the Common Ground incident, like the charged offenses, defendant sat at a table near a young
woman in a public place, took his penis out of his pants, and rubbed it. The charged offenses
were so nearly identical in method as the Common Ground incident and the Biggby Coffee
incident as to demonstrate that defendant was responsible for the offenses. See People v
Golochowicz, 413 Mich. 298, 311; 319 NW2d 518 (1982). Because identity is an element of
every offense, Yost, 278 Mich. App. at 356, evidence of the Biggby Coffee incident and the
Common Ground incident was material to defendant’s guilt. Finally, because the other-acts
evidence was highly probative to the issue of identity, the risk of unfair prejudice did not
substantially outweigh the probative value of the evidence.
III. DEFENDANT’S STANDARD 4 BRIEF
In his Standard 4 brief, defendant first argues that he was denied the effective assistance
of counsel. To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below objective standards of reasonableness and that, but for
counsel’s deficient performance, there is a reasonable probability that the result of the
proceedings would have been different. People v Uphaus (On Remand), 278 Mich. App. 174,
185; 748 NW2d 899 (2008). Because defendant did not move the trial court for a new trial or an
evidentiary hearing, our review of defendant’s ineffective assistance claim is limited to mistakes
apparent from the record. People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012).
Defendant claims that defense counsel was ineffective because she failed to bring certain
information to the jury’s attention during closing arguments. However, much of the information
that defendant claims defense counsel failed to mention was, in fact, noted by defense counsel in
her closing argument. Regardless, to prove that counsel’s performance fell below an objective
standard of reasonableness, a defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. People v Russell, 297 Mich. App. 707, 715-716; 825
NW2d 623 (2012). Counsel’s decision concerning what evidence to highlight during closing
argument is a matter of trial strategy. People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212
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(2008). We will not second-guess counsel on matters of trial strategy. Id. Therefore, defendant
fails to overcome the presumption that defense counsel engaged in sound trial strategy in giving
her closing argument.
Defendant also claims that defense counsel was ineffective for failing to subpoena his
medical records. A defendant has the burden to establish the factual predicate for a claim of
ineffective assistance of counsel. People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
Defendant claims that his medical records would have shown that he suffered from an inguinal
hernia at the time of the charged offenses, but nothing in the record substantiated this claim.
Accordingly, defendant has failed to establish the factual predicate for his claim.
Similarly, defendant claims that defense counsel was ineffective for failing to interview
his medical providers and family members and for failing to call them as witnesses at trial.
Counsel’s failure to call witnesses only constitutes ineffective assistance of counsel if it deprived
the defendant of a substantial defense. People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308
(2004). Nothing in the record indicates how any of defendant’s medical providers or family
members would have testified had they been called as witnesses. Accordingly, defendant cannot
establish that, absent counsel’s alleged failure to interview his medical providers and family
members and her failure to call them as witnesses, there is a reasonable probability that the result
of the trial would have been different. See Uphaus (On Remand), 278 Mich. App. at 185.1
Next, defendant argues that, during opening statements, the prosecutor improperly
referenced the testimony of a professor and a police officer regarding a 2003 incident at Kendall
College, in which defendant allegedly masturbated in front of several female students in a
classroom. Specifically, defendant asserts that the prosecutor’s comment violated his Sixth
Amendment right to confrontation because neither the professor nor the police officer testified at
trial. We review this unpreserved claim for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).
There is no merit to defendant’s argument. The United States Supreme Court’s decision
in Frazier v Cupp, 394 U.S. 731, 735; 89 S. Ct. 1420; 22 L. Ed. 2d 684 (1969), instructs that under
the circumstances of the present case, when the only mention of testimony from the professor
and the police officer occurred during the prosecutor’s opening statement, when the trial court
instructed the jury that it must decide the case based on the evidence and that opening statements
were not evidence, and when the 2003 incident at Kendall College was not a vitally important
part of the prosecutor’s case, the prosecutor’s statement did not violate defendant’s confrontation
rights. Defendant also claims that defense counsel was ineffective for failing to move for a
mistrial based on the prosecutor’s opening statement. “A trial court should grant a mistrial only
for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a
fair trial.” People v Schaw, 288 Mich. App. 231, 236; 791 NW2d 743 (2010) (quotation marks
and citation omitted). A mistrial is only appropriate when the prejudicial effect of the error
1
To the extent that any of defendant’s claims of ineffective assistance of counsel are not
addressed by us while analyzing the other issues raised by defendant, we consider them
abandoned. See People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998).
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cannot be removed in any other way. Horn, 279 Mich. App. at 36. The trial court instructed the
jury that it had to decide the case based on the evidence, and that opening statements were not
evidence. These instructions were sufficient to cure any prejudice that resulted from the
prosecutor’s mention of the 2003 incident at Kendall College. See Frazier, 394 U.S. at 735;
People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836 (2003). Because the prejudicial
effect of the error was removed by the trial court’s instructions, any motion for a mistrial would
have been meritless. Defense counsel was not ineffective for failing to make a futile motion.
People v Fike, 228 Mich. App. 178, 182; 577 NW2d 903 (1998).
Defendant further claims that defense counsel was ineffective for failing to request a
cautionary instruction or a missing witness instruction. Because any instruction specific to the
2003 incident at Kendall College would have reminded the jury of the incident, defense counsel
may have decided it was best to forego any instruction specific to the incident, especially when
the jury was instructed that opening statements were not evidence. Defendant has failed to
overcome the strong presumption that defense counsel engaged in sound trial strategy.
Defendant also argues that the prosecutor’s statement constituted intentional misconduct,
requiring his convictions to be reversed, because the prosecutor knew or should have known that
no evidence of the Kendall College incident was admissible when the prosecutor had not located
any of the female students in the classroom. Because defendant raised no claim of prosecutorial
misconduct at trial, we review defendant’s claim for plain error affecting substantial rights,
which requires a showing that the misconduct prejudiced defendant, i.e., affected the outcome of
the proceedings. Carines, 460 Mich. at 763. Regardless whether the prosecutor knew or should
have known that evidence of the Kendall College incident was inadmissible, the prosecutor’s
mention of the incident in her opening statement did not affect the outcome of the proceedings.
There was no other mention of the incident, and the trial court instructed the jury that it must
decide the case based on the evidence and that opening statements were not evidence.
Instructions are presumed to cure most errors, and a jury is presumed to follow its instructions.
Abraham, 256 Mich. App. at 279.
Defendant next argues that the trial court violated his right to counsel of his own
choosing when, after he retained counsel, the trial court refused to grant an adjournment so that
retained counsel could familiarize himself with the case, which caused retained counsel to
withdraw his representation. As the appellant, defendant bore the burden of furnishing this Court
with a record to verify the factual basis of the claim. People v Elston, 462 Mich. 751, 762; 614
NW2d 595 (2000). Because defendant’s argument is based on proceedings that occurred on
August 31, 2015, of which there is no record, defendant has failed to verify the factual basis for
his argument. Accordingly, we decline to reverse defendant’s convictions for a violation of his
right to counsel of his own choosing.
Defendant also argues that, because conflicts of interest existed between him and the
public defender’s office and between him and defense counsel, the trial court erred by denying
his request to appoint substitute counsel. We review a trial court’s decision regarding
substitution of counsel for an abuse of discretion. People v Buie (On Remand), 298 Mich. App.
50, 67; 825 NW2d 361 (2012).
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The constitutional right to counsel requires that all criminal defendants be afforded
counsel during trial. People v Jackson, 483 Mich. 271, 278; 769 NW2d 630 (2009). Indigent
defendants who request an attorney must be provided counsel, but they are not entitled to counsel
of their choosing. People v Russell, 471 Mich. 182, 192 n 25; 684 NW2d 745 (2004).
Appointment of substitute counsel is warranted only upon a showing of good cause and where
the substitution will not unreasonably disrupt the judicial process. People v Strickland, 293 Mich
App 393, 397; 810 NW2d 660 (2011). Good cause exists when a legitimate difference of
opinion exists between a defendant and appointed counsel over a fundamental trial tactic. Id.
On the first day of trial, defendant informed the trial court about two past conflicts that he
had with lawyers from the public defender’s office, and stated that he believed that, based on
those past conflicts, defense counsel, who was employed by the public defender’s office, should
withdraw. However, defendant never offered the trial court any specific link between those past
conflicts and defense counsel’s representation of him. We view defendant’s claim that defense
counsel should have withdrawn because of past conflicts that he had with other attorneys at the
public defender’s office as nothing more than a claim that he lacked confidence in appointed
counsel. Such an allegation is not good cause to appoint substitute counsel. See People v
Traylor, 245 Mich. App. 460, 463; 628 NW2d 120 (2001).
Also, on the first day of trial, defendant informed the trial court that defense counsel had
failed to file motions for him. He mentioned two specific motions: one to challenge the jury pool
in Kent County and one to get him moved from the jail so that he could get medical care.
Defendant makes no argument that either of these motions would have had any merit. Defense
counsel’s failure to file meritless motions does not establish good cause to appoint substitute
counsel. See id. Moreover, defendant did not complain about defense counsel until right before
trial was scheduled to start. At that point, substitution of counsel would have unreasonably
delayed the judicial process. See Strickland, 293 Mich. App. at 399. Because defendant did not
show good cause for appointment of substitute counsel, and because substitution of counsel
would have delayed the judicial process, the trial court did not abuse its discretion by denying
defendant’s request to appoint substitute counsel.
Next, defendant argues that he was arrested without probable cause and that the pictures
taken of him at the time of his arrest should have been suppressed. We review these unpreserved
claims for plain error affecting defendant’s substantial rights. Carines, 460 Mich. at 763-764.
The Fourth Amendment, US Const, Am IV, as well as the analogous provision in the
Michigan Constitution, Const 1963, art 1, § 11, protects against unreasonable searches and
seizures. People v Champion, 452 Mich. 92, 97; 549 NW2d 849 (1996). Searches and seizures
conducted without a warrant are unreasonable per se, subject to several specifically and well-
delineated exceptions. Id. at 98. A police officer may arrest a person without a warrant if the
officer has reasonable cause to believe that a felony was committed and that the person
committed the felony. People v Cohen, 294 Mich. App. 70, 74; 816 NW2d 474 (2011); see also
MCL 764.15(1)(d). “In order to lawfully arrest a person without a warrant, a police officer must
possess information demonstrating probable cause to believe that an offense has occurred and
that the defendant committed it.” Cohen, 294 Mich. App. at 74 (quotation marks and citation
omitted). “Probable cause to arrest exists where the facts and circumstances within an officer’s
knowledge and of which he has reasonably trustworthy information are sufficient in themselves
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to warrant a man of reasonable caution in the belief that an offense has been or is being
committed.” Champion, 452 Mich. at 115. The probable cause standard is judged from the
totality of the circumstances before the arresting officers. Cohen, 294 Mich. App. at 75.
Defendant was arrested on January 15, 2015, after Sergeant Neil Gomez, who was
driving in his personal car, saw a man in front of a restaurant who looked very similar to a
suspect in a picture that Detective Josh Cornell had e-mailed to members of the Grand Rapids
Police Department. Because Sergeant Gomez was in his personal vehicle and was not in
uniform, he called dispatch and requested that uniformed officers respond. Shortly thereafter,
several police officers arrived and made contact with the man. Sergeant Gomez called Detective
Cornell to inform him about the situation while another officer took the man into custody. The
man turned out to be defendant.
Detective Cornell, who was assigned to investigate the indecent exposures at the
Downtown Market and Kendall College, testified that he sent an e-mail with three still pictures
attached, two from the Downtown Market and one from Kendall College, to members of the
Grand Rapids Police Department, including Sergeant Gomez and Officer John Wetzel.
Detective Cornell believed that he attached the police reports to his e-mail. Sergeant Gomez
testified that Detective Cornell’s e-mail contained information in addition to the pictures,
although he could not remember that information. But, according to Sergeant Gomez, it was
“pretty functional” for an e-mail to explain “what’s going on and what the picture’s for.” Officer
Wetzel testified that, when he made contact with Sergeant Gomez, Sergeant Gomez pointed to a
person and said the person was wanted for indecent exposure. Based on this testimony, an
inference can be made that Detective Cornell’s e-mail indicated that defendant was wanted for
indecent exposure.
It is not clear or obvious that defendant was arrested without probable cause. Carines,
460 Mich. at 763. Detective Cornell sent an e-mail, indicating that the person displayed in the
attached pictures was wanted for indecent exposure. Sergeant Gomez testified that defendant
was “almost to the T” the person in the picture. Officer Wetzel testified that defendant was
wearing the same set of distinct clothes as the person in the picture. The facts and circumstances
within the knowledge of these officers and of which the officers had reasonably trustworthy
information was sufficient to warrant a person of reasonable caution to believe that an offense
was committed and that defendant committed it. Champion, 452 Mich. at 115. Defendant’s
argument that he was arrested without probable cause is without merit.
Defendant cites no legal authority in support of his claim that the pictures taken of him at
the time of his arrest should have been suppressed. Therefore, the argument is abandoned. See
People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998).
Additionally, defendant’s argument that defense counsel was ineffective for failing to
challenge the validity of his arrest and for failing to move to suppress the pictures taken of him at
the time of his arrest is without merit. Because defendant has not established that his arrest or
the pictures taken of him at the time of his arrest violated his Fourth Amendment rights, any
motion by defense counsel challenging the arrest or pictures would have been meritless. Defense
counsel was not ineffective for failing to make a futile motion. Fike, 228 Mich. App. at 182.
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Next, defendant argues that he was coerced by defense counsel into giving up his right to
testify. A defendant has a constitutional right to testify in his own defense. People v Bonilla-
Machado, 489 Mich. 412, 419; 803 NW2d 217 (2011). Although counsel must advise a
defendant of this right, the ultimate decision whether to testify at trial remains with the
defendant. Id. If a defendant expresses a desire to testify at trial, the trial court must grant the
request, even if counsel has advised the defendant against testifying. People v Simmons, 140
Mich. App. 681, 685; 364 NW2d 783 (1985). But if a defendant decides not to testify or
acquiesces in counsel’s decision that he not testify, then the right to testify is deemed waived. Id.
The record indicates that defense counsel advised defendant not to testify. But the record
also reflects that defendant was told by the trial court, and he understood, that he had the right to
testify and that the trial court would let him testify if he wanted. Then, when the trial court asked
defendant if he wanted to testify, defendant said that he had decided against it. The record does
not reveal any coercive actions by defense counsel. See Bonilla-Machado, 489 Mich. at 420-421.
Defendant’s argument in this regard is without merit.
Defendant argues that he was denied his Sixth Amendment right to be tried by an
impartial jury drawn from a fair cross section of the community. We review this unpreserved
claim of constitutional error for plain error affecting defendant’s substantial rights. Carines, 460
Mich. at 763-764. To establish a prima facie violation of the fair-cross-section requirement, a
defendant must establish the following:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process. [Duren v Missouri, 439 U.S.
357, 364; 99 S. Ct. 664; 58 L. Ed. 2d 579 (1979).]
Because defendant makes no argument that applies the three prongs of the Duren test to the
present case, and because the lower court record contains no facts that would enable us to review
the merits of defendant’s claim, we reject defendant’s argument.
Finally, defendant argues that his convictions for aggravated indecent exposure, MCL
750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c),
violate double jeopardy protections. On this point, we agree. The United States Constitution,
US Const, Am V, and the Michigan Constitution, Const 1963, art 1, § 15, protect a person from
being twice placed in jeopardy for the same offense. People v Nutt, 469 Mich. 565, 574; 677
NW2d 1 (2004). The prohibition against double jeopardy provides three protections: “(1) it
protects against a second prosecution for the same offense after acquittal; (2) it protects against a
second prosecution for the same offense after conviction; and (3) it protects against multiple
punishments for the same offense.” Id.
Under the statutory scheme of MCL 750.335a, a person is guilty of indecent exposure if
the person “ ‘knowingly make[s] any open or indecent exposure of his or her person or of the
person of another,’ ” and is guilty of aggravated indecent exposure if the person additionally “
‘fond[les] his or her genitals, pubic area, [or] buttocks.’ ” People v Franklin, 298 Mich. App. 539,
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546; 828 NW2d 61 (2012), quoting MCL 750.335a(1) and (2)(b) (first and third alterations in
Franklin). Because aggravated indecent exposure encompasses all of the elements of indecent
exposure, a conviction for both offenses arising from the same conduct violates double-jeopardy
principles. Franklin, 298 Mich. App. at 547, citing People v McKinley, 168 Mich. App. 496, 504;
425 NW2d 460 (1988) (“[W]here one statute incorporates most of the elements of a base statute
and adds an aggravating conduct element with an increased penalty compared to the base statute,
it is evidence that the Legislature did not intend punishment under both statutes.”).
In this case, defendant was convicted of both aggravated indecent exposure and indecent
exposure by a sexually delinquent person. The mere addition of the sexual delinquency
classification to the indecent exposure conviction does not change the double jeopardy analysis,
as the Court in Franklin, 298 Mich. App. at 547, explained:
To the extent that the prosecution argues that defendant’s convictions do not
violate double jeopardy because the indecent exposure conviction required a
showing of sexual delinquency, we note that sexual delinquency is not an actual
element of that offense. Rather, a finding of sexual delinquency merely allows
for an enhancement of the sentence for the indecent exposure offense. [Franklin,
298 Mich. App. at 547.]
Therefore, defendant’s convictions for aggravated indecent exposure and indecent exposure by a
sexually delinquent person arising from the same conduct violated the constitutional prohibition
against double jeopardy. The proper remedy in such a case is to affirm the higher conviction and
vacate the lower conviction. People v Herron, 464 Mich. 593, 609; 628 NW2d 528 (2001).
Because aggravated indecent exposure is a lower class crime than indecent exposure by a
sexually delinquent person, MCL 777.16q, we vacate defendant’s aggravated indecent exposure
convictions and their associated sentences, but affirm his convictions for indecent exposure by a
sexually delinquent person.
Below, the trial court sentenced defendant to 20 to 40 years’ imprisonment for his
convictions for indecent exposure by a sexually delinquent person. However, this Court recently
held that “trial courts must sentence a defendant convicted of indecent exposure as a sexually
delinquent person consistent with the requirements of MCL 750.335a(2)(c).” People v
Campbell, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324708); slip op at 11.
Therefore, we vacate defendant’s sentences associated with his convictions for indecent exposure
by a sexually delinquent person, and remand so the trial court can sentence defendant to the
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mandatory sentence set forth by MCL 750.335a(2)(c) of one day to life in prison.2
Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
2
Because the trial court must sentence defendant to the mandatory indeterminate term imposed
by MCL 750.335a(2)(c), we need not address defendant’s remaining sentencing arguments.
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