People of Michigan v. Michael David Vance ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 26, 2016
Plaintiff-Appellee,
v No. 323408
Oakland Circuit Court
MICHAEL DAVID VANCE, LC No. 2003-193604-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and HOEKSTRA and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right1 his jury trial convictions of seven counts of first-degree
criminal sexual conduct (CSC), MCL 750.520b(1)(a), and three counts of second-degree CSC,
MCL 750.520c(1)(a). The trial court sentenced defendant to concurrent prison terms of 15 to 50
years for each first-degree CSC conviction, and 4 to 15 years for each second-degree CSC
conviction.2 We affirm defendant’s convictions, but vacate his sentences and remand for
resentencing.
I. FACTS AND PROCEEDINGS
In LC No. 2003-193604-FC, defendant was charged with sexually abusing BK, the then
nine-year-old daughter of defendant’s former girlfriend, AA, both of whom lived with defendant
from July 2000 to July 2001. BK testified at trial that every night over a two-week period,
defendant came into her bedroom naked, woke her, and brought her into the bathroom, where he
required her to perform fellatio on him. In March 2001, BK wrote her mother a note informing
her of the abuse and asking her mother to put a stop to it. AA confronted defendant, who denied
1
Defendant’s original appellate counsel failed to file an appeal as of right. After defendant filed
a petition for habeas corpus in the federal court, the court found that defendant was denied his
right to the effective assistance of appellate counsel and reinstated defendant’s appeal by right.
2
Defendant also was convicted of one count of second-degree CSC in a companion case, No.
2003-192752-FH, which was consolidated with this case for purposes of trial. Defendant has not
appealed his conviction in No. 2003-192752-FH, for which he was also sentenced to a prison
term of 4 to 15 years.
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the allegations. AA installed a lock on the inside of BK’s bedroom door, but did not report the
allegations to the police. AA and her children left defendant’s apartment in July 2001. In 2003,
BK told a friend and school counselor about the incidents of abuse, which were then reported to
the police.
In LC No. 2003-192752-FH, defendant was charged with one count of second-degree
CSC for sexually abusing then nine-year-old KV, the daughter of MV, who dated defendant from
July 2002 to September 2002. KV testified that while accompanying defendant on an errand in
her mother’s car, defendant drove to a park where he made her manually stimulate his penis. KV
disclosed the abuse to her mother in February 2003, when she and her mother were discussing
why defendant had discontinued his dating relationship with MV.
Over defendant’s objection, the two cases were joined for trial. The jury convicted
defendant of seven counts of first-degree CSC and three counts of second-degree CSC in the
case involving BK, and one count of second-degree CSC in the case involving KV. Defendant
now appeals his convictions and sentences only in the case involving BK.
II. JOINDER OF TRIALS AND ADMISSIBILITY OF EVIDENCE UNDER MRE 404(B)(1)
Defendant argues that the trial court erred in joining the two cases for trial. In a related
issue, he argues that the trial court erred in ruling that evidence of defendant’s sexual abuse of
each child would be admissible under MRE 404(b)(1) if separate trials were held, thereby
supporting the joinder of the two cases for trial.
“To determine whether joinder is permissible, a trial court must first find the relevant
facts and then must decide whether those facts constitute ‘related’ offenses for which joinder is
appropriate.” People v Williams, 483 Mich. 226, 231; 769 NW2d 605 (2009). The trial court’s
findings of fact are reviewed for clear error, and its application of the law to the facts is reviewed
de novo. Id. The trial court’s ultimate decision on joinder of offenses is reviewed for an abuse
of discretion. People v Duranseau, 221 Mich. App. 204, 208; 561 NW2d 111 (1997). The trial
court’s evidentiary decisions are also reviewed for an abuse of discretion. People v Burns, 494
Mich. 104, 110; 832 NW2d 738 (2013). “An abuse of discretion occurs when the court chooses
an outcome that falls outside the range of reasonable and principled outcomes.” People v Unger,
278 Mich. App. 210, 217; 749 NW2d 272 (2008).
MCR 6.120(B) provides that the trial 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.”
MCR 6.120(B)(1) further provides:
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.
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Other factors relevant to joinder 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.” MCR 6.120(B)(2). “[I]mproper joinder does not,
in itself, violate the Constitution,” but “misjoinder would rise to the level of a constitutional
violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right
to a fair trial.” Williams, 483 Mich. at 245, quoting United States v Lane, 474 U.S. 438, 446 n 8;
106 S. Ct. 725; 88 L. Ed. 2d 814 (1986). In Duranseau, 221 Mich. App. at 208, this Court held that
the trial court did not abuse its discretion in denying the defendant’s request to sever charges
because the evidence related to the other charges would have been admissible in separate trials as
proof of intent.
Here, the trial court did not err in finding that the charges for each victim were related
under MCL 6.120(B)(1)(c), because they involved a series of acts constituting part of a single
scheme or plan. The assaults against BK and KV reflected a similar pattern. Defendant
established a dating relationship with an unmarried mother with a young daughter, and used his
involvement in the household to find opportunities to sexually assault the daughter. The assaults
involved child victims of a similar age, and followed a pattern of defendant isolating the victim
and directing her to perform oral or manual stimulation of his penis. Consolidating the trials
served the interest of judicial economy and spared the victims of the stress of testifying at an
additional trial.
The trial court’s joinder decision was influenced by its determination that evidence of
defendant’s sexual assault against each victim would be admissible under MRE 404(b)(1) at a
trial involving the other victim. Defendant argues that the trial court erred in ruling that such
evidence would be admissible at separate trials. We disagree.
MRE 404(b)(1) prohibits “evidence of other crimes, wrongs, or acts” to prove a
defendant’s character or propensity to commit the charged crime, but permits such evidence for
other purposes, “such as proof of motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or accident when the same is
material.” Evidence of other crimes or bad acts is admissible when (1) it is offered to show
something other than character or propensity, MRE 404(b)(1); (2) it is relevant under MRE 401;
and (3) its probative value is not substantially outweighed by the danger of unfair prejudice,
MRE 403. People v VanderVliet, 444 Mich. 52, 74–75; 508 NW2d 114 (1993), amended 445
Mich. 1205 (1994). The prosecution must explain how the evidence is relevant to a proper
purpose. People v Dobek, 274 Mich. App. 58, 86; 732 NW2d 546 (2007).
In People v Sabin (After Remand), 463 Mich. 43; 614 NW2d 888 (2000), the defendant
was charged with sexually abusing his 13-year-old daughter while they were home alone,
watching television. The defendant warned her that her mother would blame her for breaking up
the family if she reported the incident. Id. at 48-49. The trial court allowed the prosecutor to
admit evidence of previous incidents involving the defendant’s sexual abuse of his former
stepdaughter and other daughters. Those incidents involved acts of oral sex performed on the
stepdaughter several times weekly, from the time she was in kindergarten until she was in the
seventh grade, and acts of oral sex on the stepdaughter and the defendant’s own daughters while
the girls were spending the night in the living room. Id. at 49-50. The trial court admitted the
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evidence and instructed the jury that the purpose of the testimony was to show the defendant’s
“scheme, plan or system of how he does certain things.” Id. at 51.
Our Supreme Court “clarif[ied] that evidence of similar misconduct is logically relevant
to show that the charged act occurred where the uncharged misconduct and the charged offense
are sufficiently similar to support an inference that they are manifestations of a common plan,
scheme, or system.” Id. at 63. The Court concluded that “the necessary degree of similarity” to
prove “the existence of a common plan used by the defendant to commit the charged and
uncharged acts” required a greater degree of similarity than that required to prove intent, but less
than that needed to prove identity. Id. at 65. The Court concluded that the trial court did not
abuse its discretion in determining that the prior acts of abuse and the charged offense “shared
sufficient common features to infer a plan, scheme, or system to do the acts,” because the
defendant and his victims had a father-daughter relationship, the victims were close in age at the
time of the abuse, and the defendant exploited their fear of breaking up the family. Id. at 66.
In People v Pesquera, 244 Mich. App. 305; 625 NW2d 407 (2001), the defendant was
charged with sexually assaulting five children, ranging in age from four to six years, who all
lived in the same mobile home park where the defendant resided. Id. at 308. The prosecutor
called two witnesses, one male and one female, to testify about other alleged sexual assaults the
defendant committed against children. Both witnesses testified that they were friends of the
defendant. The female testified that when she was five years old, she, her brother, and the
defendant were alone in the children’s home. The defendant was playing video games with her
brother. The defendant came into her bedroom and touched her genital area and her chest
through her clothes. Id. at 316-317. The male victim testified that the defendant invited him to
the defendant’s home to play video games. The defendant brought him into a bedroom, sat the
boy on his lap, and told him that he had “a boner.” The defendant attempted to touch the boy’s
penis. Id. at 317. Citing Sabin, this Court held that these prior acts were relevant to proving a
“scheme, plan, or system.” Id. at 318. The common features were that the defendant and the
alleged victims knew each other, the defendant formed friendships with the children, the children
were very young at the time the abuse occurred, the abuse occurred after the defendant invited
the children to play with him, and the abuse consisted of touching the children’s sexual organs.
Id. at 319. This Court concluded that the evidence did not carry a danger of unfair prejudice,
because “the tendency of the evidence to establish a common plan, scheme, or system was
significant (especially in light of defendant’s claim of fabrication), and outweighed the danger of
prejudice.” Id. at 320.
Although defendant contends that the assaults alleged by the two victims are only
superficially similar, they are similar in pertinent respects. Defendant formed a dating
relationship with each girl’s mother. He used his position as the mother’s boyfriend to gain
access to the girls away from their mothers. The victims were similar in age and the assaults
themselves were similar. Defendant forced BK to perform oral sex on him. He demanded oral
sex from KV, but instead forced her to manually stimulate him when she refused. The
similarities between defendant’s selection of victims and the assaults he committed against them
justified admission of the acts under MRE 404(b) to show a common plan, scheme, or system in
gaining access to young girls for the purpose of sexually abusing them.
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Additionally, the prior acts evidence was also relevant under the “doctrine of numbers.”
In People v Mardlin, 487 Mich. 609; 790 NW2d 607 (2010), the defendant was charged with
arson, MCL 750.72, and burning insured property, MCL 750.75, in relation to a fire in his home.
The prosecutor’s theory was that he was behind on his mortgage payments and utility bills, and
that he started the fire to obtain insurance proceeds. His defense theory was that the fire was
caused by accident. The prosecutor introduced evidence that the defendant was associated with
four previous home or vehicle fires, each involving circumstances in which the defendant
benefitted from insurance proceeds or in some other way. Id. at 612-613. Our Supreme Court
held that the “doctrine of chances,” or the “doctrine of objective improbability,” was a “theory of
logical relevance [that] does not depend on a character inference.” Id. at 616, quoting People v
Crawford, 458 Mich. 376, 393; 582 NW2d 785 (1998). The theory is based on the premise that
“as the number of incidents of an out-of-the-ordinary event increases in relation to a particular
defendant, the objective probability increases that the charged act and/or the prior occurrences
were not the result of natural causes.” Mardlin, 487 Mich. at 616 (emphasis in original). The
doctrine is often associated with MRE 404(b) analyses, “because the doctrine describes a logical
link, based on objective probabilities, between evidence of past acts or incidents that may be
connected with a defendant and proper, noncharacter inferences that may be drawn from these
events on the basis of their frequency.” Id. at 617. In Mardlin, 487 Mich. at 617, the Court
quoted United States v York, 933 F2d 1343 (CA 7, 1991), overruled in part on other grounds
Wilson v Williams, 182 F3d 562, 565 (CA 7, 1999), as follows:
The man who wins the lottery once is envied; the one who wins it twice is
investigated. It is not every day that one's wife is murdered; it is more uncommon
still that the murder occurs after the wife says she wants a divorce; and more
unusual still that the jilted husband collects on a life insurance policy with a
double-indemnity provision. That the same individual should later collect on
exactly the same sort of policy after the grisly death of a business partner who
owed him money raises eyebrows; the odds of the same individual reaping the
benefits, within the space of three years, of two grisly murders of people he had
reason to be hostile toward seem incredibly low, certainly low enough to support
an inference that the windfalls were the product of design rather than the vagaries
of chance . . . . This inference is purely objective, and has nothing to do with a
subjective assessment of [the defendant's] character.
The Court addressed the degree of similarity required under MRE 404(b) for the various
purposes of other-acts evidence:
As we emphasized in VanderVliet while advancing a more flexible test
than the one described in [People v] Golochowicz [413 Mich. 298; 319 NW2d 518
(1982)]: “the Golochowicz approach to modus operandi cases to show identity is
not a ‘conceptual template’ to ‘mechanically test’ all misconduct evidence barring
use of other permissible theories of logical relevance.” Rather, “[w]here the
proponents' theory is not that the acts are so similar that they circumstantially
indicate that they are the work of the accused, similarity between charged and
uncharged conduct is not required.” Different theories of relevance require
different degrees of similarity between past acts and the charged offense to
warrant admission. Thus, the “level of similarity required when disproving
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innocent intent is less than when proving modus operandi.” “When other acts are
offered to show innocent intent, logical relevance dictates only that the charged
crime and the proffered other acts ‘are of the same general category.’ ” Past
events—such as fires in relation to an arson case—that suggest the absence of
accident are offered on the basis of a theory of logical relevance that is a subset of
innocent intent theories. As such, the past events need only be of the same
general category as the charged offense. [Mardlin, 487 Mich. at 622-623.]
The Supreme Court concluded that the lack of evidence that the defendant intentionally set the
previous fires was of less importance than the fact that the defendant owned or controlled all of
the burned property. Id. at 623. The Court concluded that the “unusual number” of past fires
involving defendant’s property “logically suggested a lack of coincidence.” Id. at 624. The
Court held that evidence of the past fires was admissible “to negate defendant’s claim that the
fire was a mere accident.” Id. at 624.
In the instant case, that defendant, within a two-year span, would establish separate
dating relationships with women who were unacquainted and unconnected with each other, and
that both women’s daughters would report similar acts of sexual abuse by defendant, strongly
supports the inference that defendant’s guilt, and not improbable misfortune, explains the dual
events. Accordingly, the trial court correctly concluded that evidence of each victim’s assault
was admissible evidence relating to the assault of the other.
Defendant argues that his defense theory that each victim’s mother influenced the victim
to fabricate the assaults was jeopardized by the joinder of the two cases, but defendant’s assault
against each victim was probative of his guilt for the assault of the other victim, and also to rebut
his defense theory. Defendant cannot claim that he was denied a fair trial merely because the
prosecutor introduced evidence to counter his defense theory.
For these reasons, we conclude that the trial court did not abuse its discretion in joining
the two cases for trial.
III. PRIOR INCONSISTENT STATEMENT
Defendant argues that the trial court erred in sustaining the prosecutor’s objection to
Imogene Cochrane’s (defendant’s mother) testimony that BK told her that she was in the upper
level of her bunk bed when defendant abused her. Defendant argues that this testimony was
admissible to impeach BK, who initially testified that she did not tell Cochrane that she was in
the bunk bed, but then testified that she did not remember the conversation with Cochrane. We
review the trial court’s evidentiary ruling for an abuse of discretion. People v Chelmicki, 305
Mich. App. 58, 62; 850 NW2d 612 (2014).
MRE 801(c) defines “hearsay” as “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.” Generally, “[h]earsay is not admissible except as provided by these rules.” MRE 802.
MRE 801(d)(1) provides that a statement is not hearsay if the “declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the statement is (A)
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inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of
perjury at trial . . . .” MRE 613(b) provides:
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in Rule 801(d)(2).
The trial court’s ruling sustaining the prosecutor’s objection was based on BK’s
testimony denying that she remembered having the discussion with Cochrane, but BK both
denied making the statement and denied remembering whether she had the discussion.
Moreover, the trial court erred in ruling that prior inconsistent statements under MRE 613 and
801(d)(1) are not admissible to impeach a witness’s lack of memory that a discussion was held.
“When a witness claims not to remember making a prior inconsistent statement, he may be
impeached by extrinsic evidence of that statement.” People v Jenkins, 450 Mich. 249, 256; 537
NW2d 828 (1995). This Court held in People v Malone, 180 Mich. App. 347, 359; 447 NW2d
157 (1989):
Where a witness denies recollection of a prior inconsistent statement,
proof of that statement by extrinsic evidence can be made. People v Johnson, 100
Mich. App. 594, 598; 300 NW2d 332 (1980). While such impeachment may be
foreclosed if the witness claims a total lack of memory about the event, a witness’
failure to recall statements regarding the incident does not prohibit extrinsic proof
of a prior inconsistent statement. People v Alphus Harris, 56 Mich. App. 517, 524-
525; 224 NW2d 680 (1974).
Plaintiff’s reliance on People v Harrell, 54 Mich. App. 554; 221 NW2d 411 (1974), to argue that
Cochrane’s testimony was properly excluded is misplaced. In Harrell, the prosecutor elicited an
emergency room physician’s testimony that the defendant’s mother refused permission for a
blood draw from the defendant, to impeach the mother’s testimony that she did not remember
denying consent. Id. at 562. This Court held that the doctor’s testimony was not proper
impeachment, because “the witness’s testimony does not concern itself with the occurrence or
non-occurrence of the event, but only with whether or not the witness can recall it happening.”
Id. at 562. Harrell is distinguishable from the instant case, in which the defendant sought to
impeach BK’s testimony that she did not recall speaking with Cochrane and telling Cochrane
about the bunk bed.
Although we conclude that the trial court erred in excluding Cochrane’s testimony, we
also conclude that the error was harmless. A preserved, nonconstitutional error “is presumed not
to be a ground for reversal unless it affirmatively appears that, more probably than not, it was
outcome determinative.” People v Krueger, 466 Mich. 50, 54; 643 NW2d 223 (2002). “[A]n
error is deemed to have been outcome determinative if it undermined the reliability of the
verdict. That determination requires that we focus on the nature of the error in light of the
weight and strength of the untainted evidence.” Id. (citation and internal quotations omitted).
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Another witness, Cheryl Andreen, testified that she wrote in her statement to the police
that MK “indicated” that the abuse occurred when she was in the upper bunk bed in her
bedroom. Andreen also testified that she was never told that the abuse occurred in the bathroom.
Andreen’s testimony regarding BK’s prior inconsistent statement impeached BK’s testimony
denying that she told Andreen about the bunk bed. Although Andreen’s testimony did not
specifically impeach BK’s testimony that she could not remember her statements to Cochrane, it
fulfilled the same purpose of Cochrane’s excluded testimony, with the advantage that Andreen
had no familial bias in defendant’s favor. Consequently, it is not more probable than not that the
outcome would have been different if the jury had heard the same testimony from Cochrane.
Therefore, the error was harmless.
IV. VICTIMS’ PRIOR STATEMENTS
Defendant argues that the trial court erred in allowing the prosecutor to introduce prior
statements by each victim as prior consistent statements to rebut an inference of recent
fabrication. MRE 801(d)(1)(B) provides that a statement is not hearsay if it is “offered to rebut
an express or implied charge against the declarant of recent fabrication or improper influence or
motive . . . .” Defendant contends that there was no inference of recent fabrication, and that he
was unfairly prejudiced by the introduction of the victim’s hearsay statements, which bolstered
their allegations against him.
The trial court did not err in admitting GV’s testimony regarding his daughter, KV’s,
prior statement. Defendant implied that MV instigated KV to falsely accuse defendant in
retaliation for defendant obtaining a personal protection order (PPO) against MV. Evidence that
KV told GV about the assault before MV knew about the PPO would rebut the charge of recent
fabrication. Accordingly, this testimony was admissible as a prior consistent statement to rebut a
charge of recent fabrication.
In BK’s case, defendant mistakenly asserts that the content of the note that BK wrote to
her mother to report the abuse, as presented through Andreen’s testimony, was offered as a prior
consistent statement. The prosecutor did not offer the testimony for that purpose, and the context
in which the testimony was presented does not suggest that it was being used for that purpose.
We also disagree with defendant’s argument that the testimony was inadmissible hearsay.
Hearsay is defined as an out-of-court statement “offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). After the statement was offered, Andreen testified that she and
AA discussed what AA should do. AA was unwilling to follow Andreen’s advice to notify the
police, and AA declined Andreen’s offer to help find a counselor. The context indicates that the
notebook statement was offered, not for its truth, but to explain what AA did in response to BK’s
revelation, a nonhearsay purpose. Accordingly, the evidence was admissible.
V. CUMULATIVE EFFECT OF ERRORS
Defendant argues that even if one error does not require reversal, his convictions must be
reversed because the cumulative effect of multiple errors denied him a fair trial. “The
cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even
when any one of the errors alone would not merit reversal, but the cumulative effect of the errors
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must undermine the confidence in the reliability of the verdict before a new trial is granted.”
Dobek, 274 Mich. App. at 106.
We have found only one error, the exclusion of Cochrane’s testimony to impeach BK,
which was harmless. Because defendant’s remaining claims of error are without merit, there was
no cumulative effect that denied defendant a fair trial.
VI. SCORING OF THE SENTENCING GUIDELINES
Defendant argues that he is entitled to resentencing because the trial court erred in
scoring offense variables (OVs) 8, 9, and 11 of the sentencing guidelines. Defendant preserved
this issue by challenging the scoring of these variables in a motion to remand. People v
McChester, 310 Mich. App. 354, 357; ___ NW2d ___ (2015), lv pending. “Under the sentencing
guidelines, the circuit court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430, 438; 835 NW2d
340 (2013). The trial court’s interpretation and application of the statutory sentencing guidelines
are reviewed de novo. People v Morson, 471 Mich. 248, 255; 685 NW2d 203 (2004).
The trial court scored the sentencing guidelines for defendant’s conviction of first-degree
CSC, which is a Class A offense, MCL 777.16y, governed by the sentencing grid at MCL
777.62. Defendant received a total of 125 offense variable points, placing him in OV Level VI
(100 + points). His prior record variable (PRV) score placed him in PRV Level C (10 - 24
points), resulting in a sentencing guidelines range of 135 to 225 months. MCL 777.62. The trial
court sentenced defendant within that range to minimum terms of 180 months.
The trial court scored 15 points for OV 8, which is appropriate where “[a] victim was
asported to another place of greater danger or to a situation of greater danger or was held captive
beyond the time necessary to commit the offense.” MCL 777.38(1)(a). “Asportation does not
require force; asportation for the purpose of OV 8 may occur even when the victim voluntarily
accompanied the defendant to a place or situation of greater danger.” People v Dillard, 303
Mich. App. 372, 379; 845 NW2d 518 (2013). “To establish asportation, the movement of the
victim must not be incidental to committing an underlying offense.” Id. (internal quotations
omitted). The trial court assessed 15 points for OV 8 because defendant took BK from her
bedroom to the bathroom to commit the sexual offenses. Although defendant argues that the
bathroom was not a place of greater danger because BK was no farther away from her mother in
the bathroom than in her bedroom, moving her to the bathroom removed her from the same room
as BK’s sister. By taking BK to the bathroom, a more secluded location, and thereby isolating
BK from her sister, defendant reduced the likelihood that his sexual activity would be noticed or
discovered by BK’s sister, thereby placing BK in greater danger. Accordingly, the trial court did
not err in assessing 15 points for OV 8.
The trial court assessed 10 points for OV 9, number of victims. OV 9 is scored at 10
points when “[t]here were 2 to 9 victims who were placed in danger of physical injury or death,
or 4 to 19 victims who were placed in danger of property loss.” MCL 777.39(c). At sentencing,
defendant argued that no points should be scored for OV 9 because BK was the only victim
associated with the sentencing offense. He argued that the trial court could not treat KV as a
victim because she was not a victim of any offense involving BK. The trial court did not address
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defendant’s argument, and left OV 9 at 10 points. In People v McGraw, 484 Mich. 120; 126-127;
771 NW2d 665 (2009), our Supreme Court held that a trial court should not look beyond the
sentencing offense in scoring OV 9. The Court held that “the default procedure is to score the
offense variables using an offense-specific approach,” unless the relevant statute provides that
conduct beyond the sentencing offense must be considered. Id. at 127, 133-134. Accordingly,
we agree with defendant that KV could not be considered an additional victim with respect to the
sentencing offense involving defendant’s first-degree CSC conviction relating to BK.
The prosecutor argues, however, that BK’s sister can be considered a second victim of
the offenses involving BK. We disagree. In People v Phelps, 288 Mich. App. 123; 791 NW2d
732 (2010), this Court held that the trial court erred in assessing 10 points for OV 9 where two of
the victim’s friends were present in the bedroom when the defendant sexually assaulted the
victim, but the defendant did not threaten them, make physical contact with them, or place them
in danger of injury, loss of life, or loss of property. Id. at 138-139. Conversely, in People v
Waclawski, 286 Mich. App. 634; 780 NW2d 321 (2009), this Court held that 10 points were
properly scored for OV 9 where the defendant invited three boys to his house on multiple
occasions, and abused one of the boys on each visit. This Court stated:
[T]here was significant evidence that both M and P would sometimes spend the
night at defendant’s home with K. Simply because there are no pictures of M and
P on the night that K was assaulted does not mean that they were not present and
the same goes for the other victims. On the basis of the testimony, it seems more
reasonable that the other boys were sleeping while defendant was assaulting his
chosen victim. There was even testimony from P that he woke up one night and
saw defendant kneeling down by K’s bed. Clearly the record demonstrates that
defendant had a choice of victims when K and his friends would stay the night at
his house while sometimes watching pornography and drinking alcohol provided
by defendant, and also supports the conclusion that defendant would choose a
victim while the other boys were present. We conclude that the trial court
properly scored defendant 10 points for OV 9 because the record supports the
inference that at least two other victims were placed in danger of physical injury
when the sentencing offenses were committed. [Id. at 684.]
On other occasions, M or P was the boy the defendant chose for sexual contact or sexually
explicit photography. Id. at 682.
This case is similar to Phelps and distinguishable from Waclawski. In Phelps, the other
persons were present, but there was no evidence that the defendant did anything to expose them
to direct or collateral harm from his assault of the victim. In Waclawski, the defendant abused all
three of the boys over the course of his dealings with them, but on each date abused only one.
The circumstances of Waclawski established that any of the three boys might be selected as the
defendant’s victim on any given night. In contrast, the circumstances of Phelps established that
the defendant focused only on the complainant, while the other two persons were merely present.
In the instant case, there is no indication that defendant regarded BK’s sister as a potential co-
victim or alternative victim. Moreover, defendant removed BK from her sister’s presence before
abusing her. Under these circumstances, the trial court erred in assessing 10 points for OV 9.
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The trial court assessed 50 points for OV 11, criminal sexual penetrations. OV 11 is
scored at 50 points where two or more criminal sexual penetrations occurred, at 25 points where
one criminal sexual penetration occurred, and zero points where no criminal sexual penetration
occurred. MCL 777.41(1). The trial court must “[s]core all sexual penetrations of the victim by
the offender arising out of the sentencing offense.” MCL 777.41(2)(a) (emphasis added).
“Multiple sexual penetrations of the victim by the offender extending beyond the sentencing
offense may be scored in offense variables 12 or 13.” MCL 777.41(2)(b). The court is directed
to “not score points for the 1 penetration that forms the basis of a first- or third-degree criminal
sexual conduct offense.” MCL 777.41(2)(c). Defendant argues that there was no evidence that
any offense involved multiple penetrations, precluding assessment of points under OV 11. We
agree.
In People v Johnson, 474 Mich. 96; 712 NW2d 703 (2006), the defendant was convicted
of two counts of third-degree CSC, MCL 750.520d, for incidents of sexual intercourse occurring
on two different dates. Id. at 98. The Court held that the trial court erred in scoring OV 11 at 50
points because neither act of penetration arose out of the other, as required by MCL 777.41(2)(a).
The Court stated:
In this case, the sentencing offenses are for third-degree criminal sexual
conduct. Therefore, in order to count the penetrations under OV 11, there must be
the requisite relationship between the penetrations and the instances of third-
degree criminal sexual conduct. The victim testified that she had sexual
intercourse with defendant on two different dates in November 2001. There is no
evidence that the penetrations resulted or sprang from each other or that there is
more than an incidental connection between the two penetrations. That is, there is
no evidence that the penetrations arose out of each other. More specifically, there
is no evidence that the first sexual penetration arose out of the second penetration
or that the second penetration arose out of the first penetration. Because the two
sexual penetrations did not “aris[e] out of” each other, the trial court erred in
scoring OV 11 at 25 points. [Johnson, 474 Mich. at 101-102.]
In the instant case, the evidence indicated that defendant assaulted BK nightly over the course of
a two-week period, but there was no testimony that any of the nightly assaults involved multiple
acts of penetration. Accordingly, it was improper to assess 50 points for OV 11. The prosecutor
argues that the erroneous scoring of OV 11 is partly offset by the trial court’s error in assessing
only 25 points, instead of 50 points, for OV 13, which addresses continuing pattern of criminal
behavior. Under OV 13, the court shall assess 25 points when “[t]he offense was part of a
pattern of felonious criminal activity involving 3 or more crimes against a person,” MCL
777.43(1)(c), but assess 50 points when “[t]he offense was part of a pattern of felonious criminal
activity involving 3 or more sexual penetrations against a person or persons less than 13 years of
age.” MCL 777.43(1)(a).
Even if we credit the prosecutor’s argument, that would still leave a scoring error of 25
points when OVs 11 and 13 are considered together. When those 25 points are added to the 10
points that were erroneously scored for OV 9, defendant has established total scoring errors of at
least 35 points. A 35-point reduction to defendant’s total OV score of 125 points will place him
in OV Level V instead of OV Level VI. Because the scoring errors affect the appropriate
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guidelines range, defendant is entitled to be resentenced. People v Francisco, 474 Mich. 82, 88-
89 n 8; 711 NW2d 44 (2006).
VII. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises additional issues in a pro se Standard 4 brief, filed pursuant to Supreme
Court Administrative Order No. 2004–6.
A. PROSECUTORIAL MISCONDUCT
Defense argues that misconduct by the prosecutor denied him a fair trial. Because
defendant did not object to any of the alleged instances of misconduct, review is limited to plain
error affecting defendant’s substantial rights. People v Gibbs, 299 Mich. App. 473, 482; 830
NW2d 821 (2013); Unger, 278 Mich. App. at 235. Reversal is not required if “a curative
instruction could have alleviated any prejudicial effect.” People v Bennett, 290 Mich. App. 465,
476; 802 NW2d 627 (2010).
Defendant argues that the prosecutor improperly argued facts not supported by the
evidence by stating in closing argument that the victims’ mothers lost custody of their children
because they failed to protect them from defendant. A prosecutor is free to argue the evidence
and all reasonable inferences arising from the evidence. People v Bahoda, 448 Mich. 261, 282;
531 NW2d 659 (1995). The prosecutor’s remarks were properly based on the evidence and
reasonable inferences arising therefrom. They did not improperly signal to the jury that
defendant’s guilt had been determined in prior proceedings. BK testified that she and her sister
lived with their grandparents, and not with their mother. She testified that she told her friend
about defendant’s abuse because she was upset that her mother planned to bring another strange
man into their home. The prosecutor did not insinuate that defendant had been found culpable of
child abuse in any formal legal proceeding. At most, the prosecutor implied that AA was found
to be an unfit parent, unwilling to act in her children’s best interests. Indeed, defense counsel did
not merely fail to object. Rather, he affirmatively seized the opportunity to capitalize on the
prosecutor’s argument by linking the mothers’ parental deficiencies to his own theory that the
mothers were willing to manipulate their daughters for their own vindictive purposes.
Accordingly, there was no plain error affecting defendant’s substantial rights.
Defendant also argues that the prosecutor improperly denigrated his character and
veracity, and improperly vouched for the credibility of her own witnesses, in her closing
argument. He cites the prosecutor’s statement that defendant “made up” an incident in which he
caught KV watching a pornographic video, and her statement that defendant testified to a
“ridiculous” story to explain Cochrane’s damaging testimony that defendant went to the police
station to admit guilt. Prosecutors “should not . . . express their personal opinion of defendant’s
guilt, and must refrain from denigrating a defendant with intemperate and prejudicial remarks.”
Bahoda, 448 Mich. at 282-283. “A prosecutor must also refrain from suggesting or implying that
he has special knowledge regarding whether a witness is worthy of belief, . . . but a prosecutor
may argue from the facts that a witness, including the defendant, is not worthy of belief, and is
not required to state inferences and conclusions in the blandest possible terms . . . .” People v
Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318329); slip op at 16
(internal quotations omitted).
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The prosecutor’s remarks were not improper. She did not suggest that she had any
special knowledge of which witnesses were truthful and which were not worthy of belief.
Rather, she argued from the evidence that the victims were credible because they described
similar assaults despite having no acquaintance with each other. Similarly, her arguments that
defendant was not credible did not imply any special knowledge, but urged the jury to evaluate
defendant’s credibility based on its own understanding of what was believable and what was not.
Her characterization of defendant’s attempt to explain Cochrane’s testimony about his police
contact as “ridiculous” did not attack defendant personally, but instead focused on the
plausibility of his explanation.
We also disagree with defendant’s argument that the trial court suggested that the
attorneys were permitted to argue facts not in evidence when responding to the attorneys’
arguments regarding inferences that could be drawn from the evidence. Viewed in context, the
trial court’s comment that it gave “great latitude to both counsel” did not suggest that the
attorneys were permitted to argue facts not in evidence, or that the jury was allowed to make
inferences not supported by the evidence. Moreover, the trial court instructed the jury that the
attorneys’ statements are not evidence. Jurors are presumed to follow their instructions. People
v Mahone, 294 Mich. App. 208, 212; 816 NW2d 436 (2011). The trial court’s instruction was
sufficient to protect defendant’s substantial rights.
Defendant also argues that defense counsel was ineffective for failing to object to the
prosecutor’s arguments and to the trial court’s comments on allowing “great latitude to both
counsel.” Because the challenged remarks were not improper, counsel was not ineffective for
failing to object. A claim of ineffective assistance of counsel cannot be premised on an
attorney’s failure to make a futile objection. People v Fike, 228 Mich. App. 178, 182; 577 NW2d
903 (1998).
B. DIRECTED VERDICT RULING
Defendant argues that the trial court erred by failing to state on the record its reasons for
denying his directed verdict motion with respect to KV’s case. “The court must state orally on
the record or in a written ruling made a part of the record its reasons for granting or denying a
motion for a directed verdict of acquittal . . . .” MCR 6.419(F). The record discloses that the
motion was heard off the record, but that defense counsel later summarized for the record the
trial court’s reasons for denying the motion, which the trial court agreed was accurate. By
agreeing that defense counsel had accurately summarized the basis for the trial court’s ruling, the
trial court satisfied MCR 6.419(F).
C. SENTENCING
1. SCORING OF OV 10
Defendant argues that the trial court erred in assessing 15 points for OV 10 based on a
finding that he engaged in predatory conduct. MCL 777.40(1)(a). “Predatory conduct” is
defined as “preoffense conduct directed at a victim . . . for the primary purpose of victimization.”
MCL 777.40(3)(a). A preponderance of the evidence supported a finding that defendant pursued
and then continued dysfunctional relationships with women to provide him with an opportunity
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to gain access to their daughters so he could sexually abuse them. The trial court did not clearly
err in assessing 15 points for OV 10. Hardy, 494 Mich. at 438.
2. CRUEL OR UNUSUAL PUNISHMENT
Although we are remanding for resentencing because of errors in the scoring of the
guidelines, we will briefly address defendant’s argument that his 15 to 50-year sentences violate
the federal constitutional prohibition against cruel and unusual punishment, US Const., Am VIII,
and the state constitutional prohibition against cruel or unusual punishment. Const 1963, art 1,
§ 16. Defendant’s 15-year minimum sentence is within the guidelines range as both originally
calculated by the trial court, and as adjusted to account for the scoring errors addressed in this
opinion. A sentence within the guidelines range is presumptively proportionate, and a sentence
that is proportionate is not cruel or unusual punishment. People v Powell, 278 Mich. App. 318,
323; 750 NW2d 607 (2008). Defendant was convicted of offenses that were committed before
MCL 750.520b(2)(b) was amended by 2006 PA 165, effective August 28, 2006, to require a
mandatory minimum sentence of 25 years for violations committed by an individual 17 years of
age or older against an individual less than 13 years of age. This Court has held that the
mandatory 25-year sentence is not “unduly harsh” because of “[t]he unique ramifications of
sexual offenses against a child,” even where the defendant has “by all accounts . . . otherwise led
an exemplary life.” People v Benton, 294 Mich. App. 191, 206; 817 NW2d 599 (2011). The
evidence showed that defendant sexually assaulted BK repeatedly over a two-week period.
Given these considerations, defendant has failed to overcome the presumptive proportionality of
his sentences, and thus has not established that his sentences are unconstitutionally cruel or
unusual.
3. JUDICIAL FACT-FINDING
Defendant also argues that Michigan’s sentencing guidelines scheme violates his Sixth
Amendment right to a jury trial by allowing the trial court to fashion a sentence based on facts
not found by a jury.
In People v Lockridge, 498 Mich. 358, 364; ___ NW2d ___ (2015), our Supreme Court
held that “the rule from Apprendi v New Jersey, 530 U.S. 466; 120 S. Ct. 2348; 147 L. Ed. 2d 435
(2000), as extended by Alleyne v United States, 570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314
(2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient”
because of “the extent to which the guidelines require judicial fact-finding beyond facts admitted
by the defendant or found by the jury to score offense variables that mandatorily increase the
floor of the guidelines minimum sentence range . . . .” To remedy the constitutional violation,
the Court severed MCL 769.34(2) to the extent that it makes the sentencing guidelines range as
scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond
a reasonable doubt mandatory . . . .” Lockridge, 498 Mich. at 364. The Court held that trial
courts must still determine the applicable guidelines range and take it into account when
imposing a sentence, but “that a guidelines minimum sentence range calculated in violation of
Apprendi and Alleyne is advisory only[.]” Id. at 364-365.
Because we have already determined that defendant is entitled to be resentenced due to
errors in the scoring of the guidelines, it is unnecessary to address whether defendant is also
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entitled to sentencing relief under Lockridge. On remand, however, the trial court must
resentence defendant in conformity with Lockridge. Id. at 398.
Defendant’s convictions are affirmed, but we vacate his sentences and remand for
resentencing consistent with this opinion. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto
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