People of Michigan v. Quartez Qemond Green ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 11, 2023
Plaintiff-Appellee,
v No. 361833
Midland Circuit Court
QUARTEZ QEMOND GREEN, LC No. 20-008481-FH
Defendant-Appellant.
Before: BOONSTRA, P.J., and GADOLA and YATES, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration of incapacitated victim), and fourth-
degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(c) (sexual contact with incapacitated
victim). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to
concurrent prison terms of 18 months to 30 years for the CSC-III conviction and 18 months to 4
years for the CSC-IV conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On November 15, 2019, JP invited several people, including her fiancé, two other friends,
and defendant, to her home for a social gathering. All of the parties consumed alcohol and spent
the night at JP’s home. JP became highly intoxicated and passed out on a couch in her living room
at approximately 6:00 a.m. the following morning. JP’s fiancé testified that he attempted to wake
her up so that she could sleep in her bedroom, but that she was unresponsive, so he covered her
with a blanket and left her on the couch. Defendant was asleep on a separate couch; JP’s fiancé
also covered him with a blanket.
JP testified that she woke up to find defendant touching her vaginal area and penetrating
her vagina with his fingers as he lay behind her on the couch. JP’s shorts and underwear had been
removed and were at the end of the couch by her feet. JP testified that she had initially believed
that the person touching her was her fiancé; when she realized that it was defendant touching her,
she immediately jumped off the couch. JP confronted defendant and told him to leave her house,
which he did. Immediately thereafter, JP told her fiancé and family what had happened and
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reported the assault to the police. She participated in a sexual assault examination later that
evening, and several samples were collected. An expert in forensic DNA analysis testified that
although the vulvar swab samples only revealed the presence of her fiancé’s DNA (likely because
JP had consensual sex with him within five days of the examination), the breast swab sample
indicated that defendant’s DNA was present on JP’s breasts.
Defendant testified on his own behalf and claimed that his actions were consensual.
Defendant stated that JP had invited him to join her on the couch, had pulled his arm around her
so that their hands were interlocked, and began touching her own vagina. Defendant interpreted
this as a sign that she wanted to engage in sexual behavior with him, so he began touching her
vagina. Defendant testified that after a couple of minutes, JP suddenly jumped up, yelled at him,
and told him to leave. Defendant testified that nothing led him to believe that JP was unconscious
or an unwilling participant. However, on cross-examination, defendant admitted that he later sent
a text message to JP in which he admitted that he had touched her vagina, that he knew that he
should not have done so, and that he did not want JP to feel as though he “took advantage” of her.
The jury convicted defendant as described. This appeal followed.
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecution committed prosecutorial misconduct1 by disparaging
defendant, defense counsel, and the defense strategy. Specifically, defendant argues that the
prosecution called defendant a “liar” during its closing argument and disparaged defense counsel
during its rebuttal argument, and that those comments were improper. We disagree.
Because defendant did not object to the prosecution’s statements at trial, we review this
unpreserved claim for plain error affecting substantial rights. People v Savage, 327 Mich App
604, 615-616; 935 NW2d 69 (2019); see also People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999). Claims of prosecutorial misconduct are reviewed “on a case-by-case basis by
examining the record and evaluating the remarks in context . . . .” People v Mann, 288 Mich App
114, 119; 792 NW2d 53 (2010) (quotation marks and citation omitted; ellipsis in original).
Prosecutors are “accorded great latitude regarding their arguments and conduct.” People v
Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (quotation marks and citation omitted).
However, the prosecution “may not personally attack defense counsel,” People v McLaughlin, 258
Mich App 635, 646; 672 NW2d 860 (2003), or “suggest that defense counsel is intentionally
attempting to mislead the jury,” People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008)
(quotation marks and citation omitted).
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In People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015), lv den 498 Mich 896(2015), this Court drew a distinction between “prosecutorial misconduct” and “prosecutorial
error,” concluding that “prosecutorial misconduct” should be limited to the extreme instances that
go well beyond a mere “technical or inadvertent error at trial.” Because defendant claims that the
prosecution repeatedly and deliberately disparaged defendant and defense counsel during its
closing argument, rather than committed a technical or inadvertent error, we will refer to his claim
as one of prosecutorial misconduct. See id.-2-
In its closing argument, the prosecution stated that defendant had “a lot of reason to lie”
and that he was trying to “save his own skin here.” When reviewing these remarks in context, the
prosecution’s statements were not improper. See Mann, 288 Mich App at 119. Defendant had
testified on his own behalf to provide his version of the events surrounding the incident. By doing
so, defendant put his credibility at issue just like every other witness who testified. See People v
Clary, 494 Mich 260, 278-279; 833 NW2d 308 (2013). The prosecution was permitted to argue
from the facts presented at trial that defendant, as a testifying witness, was “unworthy of belief.”
People v Dobek, 274 Mich App 58, 67; 732 NW2d 546 (2007). The record shows that the
prosecution asked the jury to compare JP’s and defendant’s motives when considering who was
more credible. This was consistent with the latitude allowed to prosecutors in their arguments,
and nothing here suggests that the prosecution drew any unreasonable inferences from or made
impermissible commentary on the presented evidence and denied defendant a fair trial. See
Bahoda, 448 Mich at 266-267, 284-285.
Additionally, nothing suggests that the prosecution personally attacked defense counsel in
its rebuttal argument. The prosecution specifically referred to defense counsel by name on a
handful of occasions, but it only did so to draw the jury’s attention to specific arguments that
defense counsel made during his closing argument. For example, the prosecution stated: “You
know—and [defense counsel’s] argument that, you know, we don’t believe in our case or we don’t
know, you know, what happened, therefore, we just charged everything, is simply not true.” The
prosecution also pointed out that defense counsel “didn’t really address what his client said” and
theorized that it was because “some of the things his client said, don’t make any sense.” The
prosecution’s remarks during rebuttal “must be considered in light of defense counsel’s
comments,” and “an otherwise improper remark may not rise to an error requiring reversal when
the prosecutor is responding to the defense counsel’s argument.” Unger, 278 Mich App at 238(quotation marks, citations, and alteration omitted). The prosecution was permitted to respond to
defense counsel’s arguments, and it is clear that the prosecution was responding to defense
counsel’s suggestion that the prosecution’s case was weak. Further, it was not improper for the
prosecution to point out that defense counsel did not focus his closing argument on defendant’s
testimony; the prosecution was permitted to argue that the jury should reject defense counsel’s
theory of the case based on conflicting evidence presented at trial. See People v Howard, 226
Mich App 528, 544-545; 575 NW2d 16 (1997). Because defendant has not demonstrated that the
prosecution’s comments were improper, defendant has not demonstrated that any plain error
occurred.
Moreover, even assuming that some or all of the prosecution’s comments were improper,
defendant has failed to show that a timely curative instruction would not have alleviated the harm.
See People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). The jurors were instructed
by the court that they could base their verdict only on the evidence and that the lawyers’ statements,
arguments, and commentary are not evidence. Jurors are presumed to follow their instructions.
See Unger, 278 Mich App at 235. Defendant has not shown plain error affecting his substantial
rights. See Carines, 460 Mich at 763. Similarly, defendant has not demonstrated that he was
prejudiced by the cumulative effect of any minor errors. See McLaughlin, 258 Mich App at 649;
Dobek, 274 Mich App at 106.
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III. DOUBLE JEOPARDY
Defendant also argues that his conviction of both CSC-III and CSC-IV violated the
prohibition against double jeopardy. We disagree.
Because defendant did not raise his double-jeopardy challenge in the trial court, this issue
is unpreserved. See People v Barber (On Remand), 332 Mich App 707, 712; 958 NW2d 288(2020). However, generally “a double jeopardy issue presents a significant constitutional question
that will be considered on appeal regardless of whether the defendant raised it before the trial
court.” Id. (quotation marks and citation omitted). We review an unpreserved double-jeopardy
claim for plain error affecting substantial rights. Id. at 713.
Both the United States and Michigan Constitutions prohibit placing a defendant twice in
jeopardy for a single offense. Id.; US Const, Am V; Const 1963, art 1, § 15. “The prohibition
against double jeopardy protects individuals in three ways: (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.” People v Miller, 498 Mich 13, 17; 869 NW2d 204 (2015) (quotation marks and citation
omitted). Only the protection against multiple punishments is at issue in this case, because
defendant was only subjected to a single prosecution. See id.“The multiple punishments strand of double jeopardy is designed to ensure that courts
confine their sentences to the limits established by the Legislature and therefore acts as a restraint
on the prosecutor and the Courts.” Id. at 17-18 (quotation marks and citations omitted). “Where
the Legislature specifically authorizes cumulative punishment under two statutes, the multiple-
punishments strand is not violated.” Barber, 332 Mich App at 713. However, “where the
Legislature expresses a clear intention in the plain language of a statute to prohibit multiple
punishments, it will be a violation of the multiple punishments strand for a trial court to
cumulatively punish a defendant for both offenses in a single trial.” Miller, 498 Mich at 18. When
the Legislature’s intent is not clear, reviewing courts should “apply the ‘abstract legal elements’
test articulated in [People v Ream, 481 Mich 223; 750 NW2d 536 (2008)] to ascertain whether the
Legislature intended to classify two offenses as the ‘same offense’ for double jeopardy purposes.”
Miller, 498 Mich at 19. Under the abstract legal elements test, two offenses are not the same
offense “if each offense has an element that the other does not.” Ream, 481 Mich at 240.
An individual is guilty of CSC-III if that person “engages in sexual penetration with
another person” and “knows or has reason to know that the victim is mentally incapable, mentally
incapacitated, or physically helpless.” MCL 750.520d(1)(c). An individual is guilty of CSC-IV
if that person “engages in sexual contact with another person” and “knows or has reason to know
that the victim is mentally incapable, mentally incapacitated, or physically helpless.”
MCL 750.520e(1)(c). A person is physically helpless when he or she “is unconscious, asleep, or
for any other reason is physically unable to communicate unwillingness to an act.”
MCL 750.520a(m).
“Sexual contact” means an “intentional touching of the victim’s or actor’s intimate parts
or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s
intimate parts” in a manner that “can reasonably be construed as being for the purpose of sexual
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arousal or gratification, done for a sexual purpose, or in a sexual manner for: (i) [r]evenge[,] (ii)
[t]o inflict humiliation[, or] (iii) [o]ut of anger.” MCL 750.520a(q). “Sexual penetration” means
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,
of any part of a person’s body or of any object into the genital or anal openings of another person’s
body, but emission of semen is not required.” MCL 750.520a(r). Therefore, each offense contains
an element the other does not. See People v Duenaz, 306 Mich App 85, 107; 854 NW2d 531(2014) (holding that dual convictions for first-degree criminal sexual conduct and second-degree
criminal sexual conduct did not violate a defendant’s double-jeopardy rights because one requires
a sexual penetration while the other requires a sexual contact, which includes a sexual purpose).
Because the same distinction applies to the two charges in this case, defendant has not established
that CSC-III and CSC-IV constitute “the same offense” for double-jeopardy purposes. Miller, 498
Mich at 17.
Moreover, although defendant argues that he engaged in only a single sexual act, JP
testified that she woke up to find defendant digitally penetrating her vagina, and that her underwear
had been removed. Additionally, the DNA expert testified that defendant’s DNA was found on
JP’s breasts. Therefore, the jury could have concluded that defendant engaged in “sexual contact”
by touching JP’s vaginal area or the clothing covering her vaginal area, or by touching her breasts;
the jury could have further concluded that defendant engaged in “sexual penetration” by digitally
penetrating JP’s vagina. That one act may have immediately followed the other does not merge
the two into a single act. Because defendant engaged in two separate acts of criminal sexual
conduct, double jeopardy is not implicated. Id.IV. JURY INSTRUCTIONS AND VERDICT FORM
Defendant also argues that he is entitled to a new trial because the jury verdict form failed
to conform to the jury instructions that the trial court gave to the jury. However, defendant waived
his right to appeal any error with respect to the jury instructions or the verdict form because defense
counsel expressly stated that he was satisfied with the proposed jury instructions. See People v
Spaulding, 332 Mich App 638, 653; 957 NW2d 843 (2020) (“A party’s explicit and express
approval of jury instructions as given waives any error and precludes appellate review.”); see also
People v Eisen, 296 Mich App 326, 330; 820 NW2d 229 (2012) (holding that a jury verdict form
“is treated as . . . part of the package of jury instructions,” and an issue with the verdict form is
considered an instructional error). Moreover, we have reviewed the jury verdict form, and,
contrary to defendant’s assertion, it was consistent with the jury instructions and clearly permitted
the jury to render a general not-guilty verdict for each of the charged offenses.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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