People of Michigan v. Dean Terry Myers ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 30, 2024
Plaintiff-Appellee,
v No. 363528
Barry Circuit Court
DEAN TERRY MYERS, LC No. 2021-000800-FC
Defendant-Appellant.
Before: YATES, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Defendant was convicted after a jury trial of one count of assault with intent to commit
criminal sexual conduct involving sexual penetration (AWI to commit sexual penetration), MCL
750.520g(1), and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e.1
The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve
240 to 480 months’ imprisonment for his conviction of AWI to commit sexual penetration, and 60
to 180 months’ imprisonment for the CSC-IV conviction. Defendant now appeals by right, arguing
that defense counsel provided ineffective assistance of counsel by not presenting witnesses at trial
to testify about the possible closure of the park at the time of the assault and for not objecting to
the prosecution’s expert’s vouching testimony that was plainly erroneous. Defendant also argues
that the cumulative effect of these errors warrants reversal of his convictions and a new trial.
Additionally, defendant argues that his departure sentence was based on acquitted conduct and
was disproportionate to the crime. For the reasons set forth in this opinion, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of defendant’s sexual assault of the victim sometime in the winter of
2018 or early 2019. Defendant was a friend of the victim’s mother and frequently came to their
house to smoke methamphetamine. One morning in the winter of 2018 or early 2019, defendant
1
Defendant was acquitted of one count of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(f).
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drove the victim to school after she woke up late and missed the school bus. The victim testified
that defendant first took her to McDonald’s to have breakfast and then to Fish Hatchery Park in
Hastings, Michigan, where he parked the vehicle, moved toward her, and grabbed her. She
testified that defendant put his finger inside her pants and then placed his fingers inside of her.
She testified that defendant told her to “shut up” and grabbed her throat. She testified that she was
pushing and kicking defendant away as the assault continued for about one minute. She testified
that when defendant stopped, he “said if I ever told anybody he’d kill my mom and make me watch
and he’d finish the job.” The victim testified that defendant dropped her off at school afterward at
about 10:00 a.m.
The victim reported the incident to police in May 2021 with the help of a school counselor.
Defendant was interviewed by detectives in June 2021 and denied assaulting the victim, although
he acknowledged that he took her to school that day. Defendant was arrested shortly afterward.
After a jury trial in June 2022, defendant was found guilty of AWI to commit sexual penetration
and CSC-IV, but acquitted of CSC-I. Defendant moved for a new trial, arguing that defense
counsel was ineffective and requesting an evidentiary hearing pursuant to People v Ginther, 390
Mich 436; 212 NW2d 922 (1973). The trial court held a hearing and ultimately denied defendant’s
motion. Defendant now appeals.
II. INEFFECTIVE ASSISTANCE OF COUNSEL IN INVESTIGATING AND PRESENTING
WITNESSES
Defendant argues that defense counsel was ineffective because she did not explore the
possibility that Fish Hatchery Park likely would have been closed at the time of the assault by
presenting witnesses at trial, which would have cast reasonable doubt on the victim’s testimony.
We disagree.
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). If the
trial court has held a Ginther hearing, the trial court “first must find the facts, and then must decide
whether those facts constitute a violation of the defendant’s constitutional right to effective
assistance of counsel.” Id. We review the trial court’s factual findings for clear error. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). A trial court’s finding “is clearly
erroneous when, although there is evidence to support it, the reviewing court, on the whole record,
is left with the definite and firm conviction that a mistake has been made.” People v Dendel, 481
Mich 114, 130; 748 NW2d 859, amended 481 Mich 1201 (2008) (quotation marks and citation
omitted).
In People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011), the Michigan
Supreme Court stated:
A defendant must meet two requirements to warrant a new trial because of
the ineffective assistance of trial counsel. First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness. In doing
so, the defendant must overcome the strong presumption that counsel’s assistance
constituted sound trial strategy. Second, the defendant must show that, but for
counsel’s deficient performance, a different result would have been reasonably
probable.
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“Counsel always retains the duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Trakhtenberg, 493 Mich at 52(quotation marks and citation omitted). Decisions “regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy,” which we “will
not second-guess with the benefit of hindsight.” People v Dixon, 263 Mich App 393, 398; 688
NW2d 308 (2004) (quotation marks and citation omitted).
Here, both the victim and her mother testified that they could not remember the exact date
of defendant’s assault. The victim’s attendance records showed that she was tardy for four days
between November and December 2018, but she arrived before 8:55 a.m. on each of those days.
Her attendance records showed one three-hour absence the morning of January 9, 2019. The
victim testified that when she and defendant arrived at Fish Hatchery Park, it was about 9:00 a.m.,
and the park was empty. Detective Sergeant Karen Larson testified that after the winter of 2018,
Spectrum Health bought Pennock Hospital, located across the street from the park, and “worked
with the city to open Fish Hatchery Park during the wintertime, so the employees could park”
there; before that, the park was always closed in the wintertime, and it was not unusual for the park
to be empty. The victim testified that the park was completely empty when defendant drove her
there. During closing argument, defense counsel mentioned this testimony and stated that there
was “a possibility that the park wasn’t even open in 2018. That it was still closed as [it] was
traditionally.”
After his trial and sentencing, defendant moved for a new trial. Defendant attached to his
motion a copy of the Hastings City Council meeting on January 14, 2019, which showed that the
city was still tentatively working toward an arrangement to lease the Fish Hatchery Lot parking
lot to Spectrum Health. This demonstrated that regardless of whether the assault took place in the
winter of 2018 or in early January 2019, the parking lot was not open to hospital employees until
afterward.
During defendant’s evidentiary hearing, defense counsel testified that she was aware that
the driveway in the Fish Hatchery Park was traditionally closed in the winter because she
conducted a proper investigation and called the city. However, she discovered that the park was
not inaccessible while it was closed because the gate was only secured with a bungee cord that was
not locked. Therefore, as a matter of trial strategy, she decided not to call any witnesses at trial to
testify about the matter, as to not call attention to the fact that the gate was easily accessible. Other
witnesses at the evidentiary hearing testified that there were city employees who would undo the
bungee cord and drive in, and then lock it back up on their way out. They testified that it was
“absolutely possible” that the gate was left open in December 2018 or January 2019 if someone
was working in the park, and they confirmed that there was never a lock on the gate. A police
officer who frequently entered the park in the winter testified that he sometimes forgot to secure
the gate back with the bungee cord when he left.
After the testimonies were complete, the trial court stated that
what you [appellate counsel] presented here today, didn’t convince me more likely
that the park was closed. . . . After I heard all the testimony, I thought huh, pretty
easy to get in and out of the park. Park is opened occasionally in the winter, I’m
sure if the gate’s open, people go in there . . . you didn’t convince me more, then
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not, today. From my perspective. If I were a juror, I wouldn’t have felt more sure
that [defendant] could not, did not get into the park.
The trial court ultimately denied defendant’s motion, stating that it did not find defense counsel
ineffective because it was reasonable trial strategy for her to decide not to explore the closure of
the park further since the prosecution could have called forward a witness like the police officer
to testify that it was easy to open the park gate and that he forgot to close it at times. The trial
court also stated that the
weight of the prejudice in this case is miniscule in my mind, if existent at all . . .
there was so much other stuff in this case that corroborated what happened. The
additional testimony, I don’t think would’ve strengthened the defendant’s case at
all. In fact, I found it to have potentially weakened the defendant’s case.
The trial court’s findings were not erroneous. See Trakhtenberg, 493 Mich at 47. The trial
court stated that defense counsel’s performance did not fall below an objective standard of
reasonableness, see Armstrong, 490 Mich at 290, because defense counsel’s decision not to explore
the closure of the park further was “reasonable trial strategy.” The trial court stated that defense
counsel “did her inquiry, and she called and found that it was closed. It was closed with a
bungee . . . She said it was a strategy, she said I didn’t want to get further into it because” it may
have highlighted the fact that the bungee was easy to open and the park gate was left open
sometimes by city employees or police officers. The trial court acknowledged that defense
counsel’s decision regarding whether to call witnesses was a matter of trial strategy that will not
be second-guessed “with the benefit of hindsight,” Dixon, 263 Mich at 398: “I think under the first
prong that what she did was reasonable. She did the inquiry and I think it was a reasonable trial
strategy. Of course . . . we always question that later. That’s your job [referring to appellate
counsel].”
Furthermore, in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), our Supreme
Court held that defense counsel “must be afforded broad discretion in the handling of cases, which
often results in taking the calculated risks which still do sometimes, at least, pluck legal victory
out of legal defeat.” Id. at 325 (quotation marks and citation omitted). A “particular strategy does
not constitute ineffective assistance of counsel simply because it does not work.” People v
Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004).
The trial court also found that defendant did not show that a different result would have
been reasonably probable even if defense counsel called witnesses to testify about the park’s
closure, see Armstrong, 490 Mich at 290, because the “weight of the other evidence in this case,
again, if it were a he-said, she-said, then—there was so much other stuff in this case that
corroborated what happened.” The trial court stated that any additional testimony about the park’s
closure would have “potentially weakened the defendant’s case” rather than strengthening it.
As the trial court concluded, defense counsel’s failure to call witnesses on this issue likely
would not have made a difference in the outcome of the trial. It was established during defendant’s
evidentiary hearing that the bungee cord around the gate at the park was never locked, that it could
be easily removed by city employees and the public, and that there were times when the gate was
left open in the winter. It was also established that, regardless of whether the assault took place in
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December 2018 or January 2019, Pennock Hospital employees were not parking in the park at the
time.
Defendant argues that the closure of Fish Hatchery Park would have cast sufficient doubt
on the victim’s story to merit a new trial, citing the Michigan Supreme Court’s decision in People
v Alexander, 500 Mich 1016; 896 NW2d 421 (2017), in support of his argument.
First, the credibility of witnesses and the weight given to their testimonies are matters for
the fact-finder to determine, and we do not interfere with those determinations. People v Lemmon,
456 Mich 625, 642; 576 NW2d 129 (1998); People v Mehall, 454 Mich 1, 6; 557 NW2d 110(1997). The victim’s testimony was believed by the jury in order to convict defendant of AWI to
commit sexual penetration and CSC-IV. Defendant speculates, without proof, that with further
information on the closure of the park, the jury would have doubted the victim’s credibility and
the weight of her testimony to the point of changing its verdict. Defendant argues further on this
point that, because he was acquitted of CSC-I, it is apparent that the jury already had issues with
the victim’s credibility. This argument is unavailing because the jury’s acquittal of defendant’s
CSC-I charge did not equate with an issue with the victim’s credibility, but only that the jury found
that the prosecutor did not prove the elements of CSC-I beyond a reasonable doubt. See People v
Brown, 339 Mich App 411, 422; 984 NW2d 486 (2021) (stating that a jury’s acquittal on a
particular charge is a finding “that the prosecutor failed to prove one or more of the elements
beyond a reasonable doubt”).
Second, the situation in Alexander is distinguishable from the present case. See People v
Alexander, unpublished per curiam opinion of the Court of Appeals, issued October 6, 2016
(Docket No. 332700), vacated in part and remanded 500 Mich 1016 (2017). The victim in
Alexander testified that the defendant, her stepfather, sexually assaulted her on three occasions.
Id. at 1. At the preliminary hearing, the victim testified about one occasion of sexual assault that
took place in her bedroom on a day when she stayed home from school because of illness. Id.
During trial, however, the victim testified that she stayed in school that day despite her illness
because her mother texted her and told her to do so. Id. The defendant moved for an evidentiary
hearing, producing telephone records that showed that the victim’s mother did not text her on that
day, and arguing that the victim committed perjury. Id. at 2. The trial court granted the defendant
a new trial, stating that the evidence “could have made a difference,” and the prosecution appealed.
Id.
Relying on People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), this Court reversed
the order, stating that “the telephone records do not expose an egregious untruth that would
undermine the victim’s credibility to the point that it would make a different result probable on
retrial.” Alexander, unpub op at 3. The Michigan Supreme Court vacated this Court’s decision in
part, stating that
[a]lthough the Court of Appeals correctly concluded that the trial court applied an
improper standard in granting a new trial based on newly discovered evidence, it
erred in further determining that the new evidence would not justify the grant of a
new trial. The evidence—the discovery of the complainant’s cell phone records—
was newly discovered, was not cumulative, and could not have been discovered
with reasonable diligence and produced at trial. Whether this evidence makes a
different result probable on retrial . . . should first be determined by the trial court.
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[Alexander, 500 Mich at 1016 (quotation marks and citation omitted; emphasis
added)2.]
In the present case, unlike the telephone records in Alexander, the evidence discovered
after trial about Fish Hatchery Park’s closure was not “newly discovered.” Detective Sergeant
Larson testified at trial about how, after the winter of 2018 and 2019, the Fish Hatchery Park
parking lot was opened for hospital employees, but before that, the park was closed in the
wintertime and was empty. Defense counsel mentioned this testimony in her closing argument
and stated that there was a possibility that the park was not open at the time of the assault.
Defense counsel testified at the evidentiary hearing that she called the city before trial to
ask about the accessibility of the park at the time of the assault and discovered that the park was
traditionally closed in the winter, but that there was no secure lock or latch, only a bungee cord,
and people tended to open the gate. She decided as part of her trial strategy to not elaborate further
on the issue at trial at risk of bringing attention to the fact that the park, while closed, was still
accessible through the removal of an unsecured bungee cord. The other testimony presented at the
evidentiary hearing did not present anything “newly discovered,” only that, again, employees were
not parking in the park at the time of the assault, that the gate to the park was closed, and that it
was easily accessible through the removal of a bungee cord with no secure lock attached to it.
If “merely cumulative, newly discovered evidence” does not satisfy the requirements for
granting a new trial. People v Grissom, 492 Mich 296, 313 n 18; 821 NW2d 50 (2012). The
evidence presented at defendant’s evidentiary hearing, unlike the telephone records in Alexander,
was cumulative as it did not prove anything that had not already been established at trial or through
defense counsel’s pretrial investigation.
The trial court correctly found that defendant failed to show that defense counsel’s
performance fell below an objective standard of reasonableness or that, but for defense counsel’s
performance, a different result was reasonably probable. See Armstrong, 490 Mich at 290.
Accordingly, defendant is not entitled to a new trial.
III. INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO OBJECT TO VOUCHING
TESTIMONY
Defendant argues that a portion of Detective Sergeant Larson’s testimony was improper
testimony vouching for the truthfulness of the victim’s testimony and that, therefore, defense
counsel was ineffective because she did not object to this testimony, and the trial court plainly
erred by admitting the testimony. We disagree.
Generally, we review for an abuse of discretion a trial court’s decision to admit or exclude
evidence. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). We, however, review
2
“Supreme Court orders that include a decision with an understandable rationale establish binding
precedent.” People v Giovannini, 271 Mich App 409, 414; 722 NW2d 237 (2006).
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unpreserved evidentiary issues for plain error affecting defendant’s substantial rights. People v
Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).
First, there must be an error; second, the error must be plain (i.e., clear or obvious);
and third, the error must affect substantial rights (i.e., there must be a showing that
the error was outcome determinative). Moreover, reversal is warranted only when
plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings,
independent of guilt or innocence. [Id. (citations omitted).]
“[I]t is improper for a witness or an expert to comment or provide an opinion on the
credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349; 835
NW2d 319 (2013). In childhood sexual-abuse cases, “(1) an expert may not testify that the sexual
abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert may
not testify whether the defendant is guilty.” People v Peterson, 450 Mich 349, 352; 537 NW2d
857 (1995). For example, in Peterson, the Court held that “the experts . . . improperly vouched
for the veracity of the child victim” by testifying “that children lie about sexual abuse at a rate of
about two percent” and that “there is about an eighty-five percent rate of veracity among child
abuse victims.” Id. at 375-376. In People v Hawkins, 507 Mich 949; 959 NW2d 179, 179-180
(2021), a police detective testified that
the complainant’s demeanor during her interview was consistent with that of a
typical child sexual assault victim and that, given his specialized training, the
complainant’s testimony “seemed authentic to [him].” In addition, the detective
testified that he tried but was unable to find inconsistencies in the complainant’s
allegations, stating, “[I]f I can’t prove that [the abuse] didn’t happen, then there’s a
good possibility that it did,” seemingly shifting the burden of proof to defendant to
prove his innocence. The detective also testified that, on the basis of his
investigation, he found defendant’s suggestion that the complainant made up the
abuse allegations to get her father’s attention to be “[n]ot true.”
The Court held that this testimony “improperly vouched for the complainant’s credibility and
improperly commented on the defendant’s guilt.” Id. at 180. In People v Thorpe, 504 Mich 230,
259; 934 NW2d 693 (2019), the Court held that the expert’s testimony that “only 2% to 4% of
children lie about sexual abuse” and his identification of “only two specific scenarios in his
experience when children might lie, neither of which applies in this case” led to the reasonable
conclusion “that there was a 0% chance [the victim] had lied about sexual abuse. In so doing, [the
expert] for all intents and purposes vouched for [the victim’s] credibility.”
In the present case, after affirming on cross-examination that she had experience with child
sexual-abuse victims who lied and had false memories, on redirect examination, Detective
Sergeant Larson affirmed that in such child-sexual-abuse cases, “there [is] usually something done
demonstrably false that is provable,” like lacking “an alibi or just concrete evidence that it didn’t
happen.” She also testified that it was “more unusual” for false allegations to happen.
During defendant’s evidentiary hearing, appellate counsel argued that the analysis from
Hawkins and Thorpe applied to the present case because Detective Sergeant Larson testified that
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false allegations are rare and that, when they do happen, they are “demonstrably false. So, putting
those things together, the takeaway for the jurors was this was not a case of a false allegation. And
so this is what I would refer to as circumstantial vouching.” The trial court denied defendant’s
motion, stating:
I think the question here [is], what kind of questions, how much? What’s the
extent? And, I think that’s what all the case law. The cases you cite, they’re not
the same as our case. I get why you cited them, I would’ve too. But, I think it’s all
continuum. And, I can tell you when I heard this . . . it didn’t raise red flags with
me. . . . And vouching is—is a real potential problem. I didn’t get that feeling.
And, I don’t think I was sleeping. But I didn’t get that feeling when this came up.
It didn’t feel like that to me.
The trial court’s findings were not erroneous. See Trakhtenberg, 493 Mich at 47. The trial
court stated that defense counsel’s performance did not fall below an objective standard of
reasonableness, see Armstrong, 490 Mich at 290, because Detective Sergeant Larson’s testimony
was distinguishable from Hawkins and Thorpe. In Hawkins, 959 NW2d 179-180, the detective
testified specifically about the authenticity of the victim’s and defendant’s testimonies. In Thorpe,
504 Mich at 259, the expert testified about specific percentage statistics and two “specific scenarios
in his experience when children might lie.” In contrast, Detective Sergeant Larson simply
answered “[y]es” to two questions from defense counsel about whether she had known victims to
lie or to have false memories in CSC cases. The prosecutor expanded on those questions on
redirect examination, and Detective Sergeant Larson confirmed that there is usually something
“demonstrably false” that is provable in CSC cases involving lies or false memories, and she
testified that it is “more unusual” for false allegations to happen.
Furthermore, in Thorpe, 504 Mich at 253, the defense counsel objected to the expert’s
testimony “that children only lie about sexual abuse 2% to 4% of the time.” The trial court
overruled the objection because defense counsel raised the question of children lying on cross-
examination, and therefore, “opened the door to the prosecution’s line of questioning on redirect
examination.” Id. The Michigan Supreme Court disagreed with the trial court, stating:
Defense counsel did not open the door to [the expert’s] testimony regarding the rate
of false reports in child sexual abuse cases simply by asking him on cross-
examination whether children lie or manipulate. Counsel did not ask [the expert]
about the frequency with which children lie, whether children make false
allegations of sexual abuse, or whether he has had any experience with false
accusations in his own practice. We agree with [defendant] that defense counsel’s
questions to [the expert]—“let me ask you this, kids can lie, true?” and “[a]nd they
can manipulate[?]”—were discrete, straightforward, and uncontroversial questions
of fact. To maintain that these basic questions invited the prosecution to elicit
expert testimony from [the expert] that children lie about sexual abuse 2% to 4% of
the time would essentially require defense counsel to read tea leaves before asking
any questions. [Id. at 254 (alterations in quote marks in original).]
Unlike in Thorpe, on redirect, the prosecutor did not ask Detective Sergeant Larson about
the frequency with which children lie or to identify any specific scenarios in her practice in which
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children lied. The prosecutor’s questions, like defense counsel’s questions, were “discrete” and
“straightforward.” Id. The trial court stated during defendant’s evidentiary hearing that “I just
don’t think this rises to the level of the vouching that would . . . create plain error here.”
Accordingly, there was no error in the admission of the testimony because the testimony was not
improper vouching testimony.
Detective Sergeant Larson never testified about specific statistics or referred to the victim’s
testimony. She did not testify about any specific scenarios, only that in her experience, it was
unusual for false allegations to occur. Unlike the expert in Thorpe, 504 Mich at 259, Detective
Sergeant Larson’s testimony was vague, and it did not lead to the conclusion “that there was a 0%
chance [the victim] had lied about sexual abuse” or any similar conclusion. Therefore, Detective
Sergeant Larson’s testimony was not vouching for the victim’s credibility.
The trial court also found that defendant did not show that a different result would have
been reasonably probable even if defense counsel objected, see Armstrong, 490 Mich at 290,
because Detective Sergeant Larson’s testimony was not improper vouching testimony, and
therefore, was not objectionable. “[T]rial counsel cannot be faulted for failing to raise an objection
or motion that would have been futile.” People v Fike, 228 Mich App 178, 182; 577 NW2d 903(1998).
Moreover, defendant cannot show that, but for counsel’s allegedly deficient performance,
a different result would have been reasonably probable because, even excluding Detective
Sergeant Larson’s allegedly improper testimony, sufficient evidence supported the convictions.
The victim herself testified at trial regarding the assault, and her testimony did not need to be
corroborated. See MCL 750.520h. Regardless, her friend corroborated the allegations by
testifying about the victim’s disclosure in the immediate aftermath of the assault. And, during his
police interview, defendant himself made sexual remarks about the victim, and he admitted that
“he may have kissed her, he may have hugged her, [but] he was up all-night smoking meth and he
wasn’t sure.”
The trial court correctly found that defendant failed to show that defense counsel’s
performance fell below an objective standard of reasonableness or that, but for defense counsel’s
performance, a different result was reasonably probable. See Armstrong, 490 Mich at 290.
Because the testimony was not improper vouching testimony, the trial court did not plainly err by
admitting the testimony and such testimony did not affect defendant’s substantial rights.
Accordingly, defendant is not entitled to a new trial.
IV. CUMULATIVE ERROR DOCTRINE
Defendant argues that, considered cumulatively, the trial court’s errors in finding that
defense counsel’s representation did not violate his right to effective assistance of counsel and the
erroneous admission of improper vouching testimony amount to error requiring reversal. We
disagree.
We review a cumulative-error argument “to determine if the combination of alleged errors
denied defendant a fair trial.” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007).
“The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even
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when any one of the errors alone would not merit reversal, but the cumulative effect of the errors
must undermine the confidence in the reliability of the verdict before a new trial is granted.” Id.The cumulative error doctrine recognizes that “the cumulative effect of a number of minor
errors may in some cases amount to error requiring reversal[.]” People v Cooper, 236 Mich App
643, 659-660; 601 NW2d 409 (1999). “In making this determination, only actual errors are
aggregated to determine their cumulative effect.” LeBlanc, 465 Mich at 591 n 12 (quotation marks
and citation omitted).
Overall, defendant failed to establish that any actual errors occurred. In the absence of
such errors, “there can be no cumulative effect of errors meriting reversal.” Dobek, 274 Mich App
at 106. Even if defendant established the occurrence of any errors, given the evidence presented
against defendant to establish his conviction and the fact that the jury’s verdict likely would have
been the same with or without any of the alleged errors, the cumulative effect of any errors did not
deny defendant a fair trial or constitute sufficient prejudice to warrant reversal. See id.Accordingly, defendant is not entitled to a new trial.
V. REASONABLENESS OF DEPARTURE SENTENCE
Defendant argues that he is entitled to resentencing because the trial court based its upward-
departure sentence on acquitted conduct and the sentence was disproportional to the crime
committed. We disagree.
Sentences that depart from the guidelines are reviewed for reasonableness. People v
Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). And “appellate review of departure
sentences for reasonableness requires review of whether the trial court abused its discretion by
violating the principle of proportionality set forth in our decision in Milbourn.”3 People v
Steanhouse, 500 Mich 453, 477; 902 NW2d 327 (2017). This Court reviews the trial court’s
factual determinations at sentencing for clear error. People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013). “A finding of fact is clearly erroneous if, after a review of the entire record,
an appellate court is left with a definite and firm conviction that a mistake has been made.” People
v Antwine, 293 Mich App 192, 194; 809 NW2d 439 (2011) (quotation marks and citation omitted).
“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute,
i.e., the application of the facts to the law, is a question of statutory interpretation, which an
appellate court reviews de novo.” Hardy, 494 Mich at 438.
Charges for which a defendant was acquitted cannot be considered during sentencing. In
People v Beck, 504 Mich 605, 608-609; 939 NW2d 213 (2019), the Supreme Court considered
whether “[o]nce a jury acquits a defendant of a given crime, may the judge, notwithstanding that
acquittal, take the same alleged crime into consideration when sentencing the defendant for
another crime of which the defendant was convicted?” The Court held that the answer is no. Id.
at 609. “Once acquitted of a given crime, it violates due process to sentence the defendant as if he
committed that very same crime.” Id. The Court’s reasoning was that, unlike dismissed charges
or uncharged conduct, once a defendant is acquitted of a crime, the defendant is presumed innocent
3
People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
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of that crime, and “conduct that is protected by the presumption of innocence may not be evaluated
using the preponderance-of-the-evidence standard without violating due process.” Id. at 627.
In Brown, 339 Mich App at 421-422, this Court stated that
the jury does not make an affirmative finding of innocence when it acquits a
defendant of a particular charge. . . . [W]hen a jury acquits a defendant on a
particular charge, the jury does not conclude that the defendant is factually innocent
of that charge; rather, it simply finds that the prosecutor failed to prove one or more
of the elements beyond a reasonable doubt.
This Court defined “acquitted conduct” as “a concept based not on the existence of sufficient
evidence, but rather one based on the absence of such evidence[.]” Id. at 422. This Court discussed
two possible approaches to identify acquitted conduct: a “categorical approach,” in which “any
evidence that relates to any element of the crime of which the defendant was acquitted would have
to be discarded at sentencing,” id. at 422, and a “rational-jury approach,” in which,
[r]ather than focus[ing] on all of the conceivable grounds upon which a jury could
have theoretically acquitted the defendant—even those grounds, for example, that
were conceded by the defense or otherwise uncontested by the parties—the focus
would be on the grounds that the parties actually put in dispute at trial. [Id. at 423-
424.]
This Court rejected the categorical approach, stating that it would lead to “absurd results” because
it would mean “that any fact or circumstance related to any element of the acquitted crime would
be off-limits at sentencing, even if the same fact or circumstance was also related to the convicted
crime.” Id. at 423. This Court held that the rational-jury approach was the best approach to
identify acquitted conduct because
if a specific fact or circumstance was relevant to both the acquitted charge and the
convicted charge—i.e., if there was an overlap of relevant conduct—then the trial
court could consider that fact or circumstance when sentencing on the convicted
charge. This rational-jury standard appears to be consistent with Beck and its
progeny, and it is a workable standard that trial courts can use when sentencing a
defendant who was convicted of a particular charge but also acquitted of another
related charge. [Id. at 425.]
We review departure sentences for reasonableness by determining “whether the trial court
abused its discretion by violating the ‘principle of proportionality’ . . . ‘which requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.’ ” Steanhouse, 500 Mich at 459-460, quoting People v Milbourn,
435 Mich 630, 636; 461 NW2d 1 (1990). See also Graham v Florida, 560 US 48, 59; 130 S Ct
2011; 176 L Ed 2d 825 (2010). The court should ensure that the “sentences imposed across the
discretionary range are proportionate to the seriousness of the matters that come before the court
for sentencing.” Milbourn, 435 Mich at 651. To determine whether a sentence is “proportional,”
the court “must take into account the nature of the offense and the background of the offender.”
Id. The Milbourn Court emphasized that trial courts should not apply their “own philosophy of
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sentencing,” but rather determine where the defendant’s case falls on a scale of the “least to the
most serious situations,” and impose a sentence on the basis of that determination. Id. at 653-654.
Although the sentencing guidelines are advisory, trial courts must still consider the
guidelines when imposing a sentence. Lockridge, 498 Mich at 365, 391-392. When a trial court
departs from the sentencing guidelines, it must be for reasons not adequately reflected in the
“guidelines variables.” Milbourn, 435 Mich at 659. Trial courts “may continue to depart from the
guidelines when . . . the recommended range under the guidelines is disproportionate, in either
direction, to the seriousness of the crime.” Id. at 657. However, if the trial court imposes a
departure sentence that is “unsupported by reasons not adequately reflected in the guidelines
variables,” it may be possible that the trial court “abused its discretion” in sentencing the
defendant. Id. at 658, 659-660.
To determine whether a sentence outside the guidelines range is more proportionate than a
sentence within the guidelines, the court may consider “(1) whether the guidelines accurately
reflect the seriousness of the crime; (2) factors not considered by the guidelines; and (3) factors
considered by the guidelines but given inadequate weight.” People v Dixon-Bey, 321 Mich App
490, 525; 909 NW2d 458 (2017) (citations omitted).
Defendant was acquitted of one count of CSC-I and found guilty of AWI to commit sexual
penetration and CSC-IV. At the beginning of defendant’s sentencing hearing, the trial court
acknowledged that the minimum sentencing guidelines range for defendant’s AWI to commit
sexual penetration conviction was 38 to 152 months. The prosecutor then stated:
[Defendant] was convicted of attempting to rape a 15-year-old as he took
her to school. The reason he didn’t is because she fought him off for a significant
period of time. She testified to all of that. If he had been successful and she hadn’t
fought him off, his guidelines would have been 126 to 420 months.
So, I’m gonna ask for 240 to 480 months. That’s the lower half of what it
would have been if he was successful. If she hadn’t been successful in fighting him
off. That is more consistent with his elevated criminal history.
He has 7 felonies and 14 misdemeanors. His [Prior Record Variable] level
is 105, well above the 75 maximum for [PRVs]. That sentence is also more
consistent with the severe trauma that he has caused to the victim. This happened
three and a half years ago and the Court can see she was still terrified of him during
the trial.
* * *
And that’s why the delay [in reporting the incident], because [defendant]
said, “I’m gonna kill your mom, make you watch, and come back and finish the
job.” And so, she believed him. . . . And she’s still worried about him. Still
terrified of him. . . . The friend . . . who covered her in the bathroom was still
crying about that memory three-and-a-half years later. Mom talked about how her
child behavior changed completely before he attempted to rape her and then
afterwards. That she lost her kid, that she can’t hug her kid anymore.
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So, his sexual assault affected the whole family and it . . . affected the
friend. So, the 20 to 40 I think is a reasonable proportional sentence to what his
intent was that day. His intent was to rape her and she fought him off. And it’s
reasonable and proportional given the psychological trauma that the victim suffered
and the family has suffered and his criminal history, your Honor.
Defense counsel responded that the original recommendation of 38 to 152 months was “very fair”
because it “takes into account what he was found guilty of, not what he was charged with. And
that’s why we’re here for today, Judge.”
The trial court sentenced defendant to 240 to 480 months’ imprisonment, stating:
For the record, first of all, I’m adopting all the arguments made by the
prosecutor in this case regarding sentencing. I’m also noting, for the record, that
the recommendations that are given in these presentence reports are not in fact
recommendations from local Department of Corrections who know these
individuals, know the victims.
The best intimately [sic], many times, they’ve actually had them on
probation before. But instead, now Lansing, someone from Lansing who knows
nothing about the case is now reviewing and modifying, changing, the
recommendations. Basically, because they want to keep people out of prison; not
because it’s a true and accurate reflection.
And that’s just the truth. So, the recommendations that are given in these
reports have very little value, in fact. Almost everything that I’m to consider when
looking at the guidelines and what I’m to consider and tell the Court of Appeals if
I’m going to go above the guidelines, and I am, was reflected by the prosecutor and
I adopt the seriousness of the crime. If you look at it proportionality [sic], the
seriousness [of the] crime—this was serious, this was very very fortunate that it did
not get worse and fortunate that this young lady did fight. . . .
It [the guidelines] doesn’t also take into account the different people that
are affected by this. You have to know that the young lady who found her, her
friend who found her in the bathroom, you know, cowering in a corner shaking like
a leaf and crying. That young lady has to be affected, is affected, we saw and heard
her testify, has to be affected by this forever as well. As is the mom who was told
that he threatened he was gonna kill her and kill her in front of his (sic) daughter.
The defendant has been in prison twice before. Once when out on parole,
he violated and had to be sent back to prison, his prison sentence is more significant,
one was five to ten years. So, these weren’t, you know, 13-month prison sentence
before, it’s been significant. That didn’t seem to change or affect the
defendant . . . . He’s had plenty of opportunities to get help, to be rehabilitated and
it hasn’t proved to work. The charges are serious, there’s methamphetamine, home
invasion, and B and E with intent; those are serious things.
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He’s clearly a danger to society. I find every factor that they want me to
look at, when I’m thinking about going above the guidelines, tells me that this is an
above the guidelines sentence. It has to be proportionate. A sentence within the
guidelines is not proportionate of what happened here. I agree with the prosecutor.
I had already, in fact, made notes myself here, which are very similar to what the
prosecutor’s recommendations are.
Defendant first argues that by considering his attempt and intent to commit sexual
penetration during sentencing, the trial court imposed the sentence as though defendant had been
convicted of CSC-I, thereby violating his due-process rights under Beck, 504 Mich at 609. This
argument is not persuasive.
The most striking difference between the acquitted CSC-I charge and the convicted AWI
to commit sexual penetration charge is the element of actual penetration versus the element of
intention to penetrate. During trial, the victim testified that defendant sexually penetrated her with
his fingers during the sexual assault. Under Beck, 504 Mich at 609, the trial court could not have
sentenced defendant as though he actually sexually penetrated the victim in the exact way that the
victim alleged he did because the jury acquitted defendant of CSC-I, thereby finding that the
prosecutor failed to prove one or more of the elements of the charge beyond a reasonable doubt.
See Brown, 339 Mich App at 422. However, the jury’s acquittal of defendant’s CSC-I charge did
not mean that defendant was factually innocent of any and all intent to sexually penetrate the
victim, only that the prosecution failed to prove beyond a reasonable doubt that defendant sexually
penetrated the victim in the exact way that was alleged during trial. See id. Therefore, during
sentencing, the trial court was free to consider the fact that defendant intended to commit any
sexual act involving criminal sexual penetration and that the only reason defendant did not commit
this act was because the victim prevented it from happening.
The fourth element for AWI to commit sexual penetration states that defendant “intended
to commit a sexual act involving criminal sexual penetration.” The prosecutor’s argument during
sentencing was essentially that defendant should be sentenced on the basis of his intent to sexually
penetrate the victim, although he was not successful, because in convicting defendant of AWI to
commit sexual penetration, the jury found beyond a reasonable doubt that defendant intended to
do so. In imposing defendant’s sentence, the trial court adopted “all the arguments made by the
prosecutor in this case regarding sentencing.” The trial court did not sentence defendant on the
basis of acquitted conduct, or as though he was convicted of CSC-I, but rather, on the basis of his
attempt and intent to commit sexual penetration, considering conduct that related to both the
acquitted charge and the convicted charge, which was not erroneous. See id. at 425.
Defendant next argues that his upward-departure sentence was imposed on the basis of the
notion that he would have been guilty of a more serious crime if his intent to commit sexual
penetration was successful and that this rationale was not a valid basis for imposing an upward-
departure sentence because it would justify such a sentence in every AWI to commit sexual
penetration case. In support of his argument, defendant cites this Court’s holding in Dixon-Bey,
321 Mich App at 529, that a departure sentence cannot be imposed on the basis of factors that are
“not unique to defendant or otherwise relevant to a proportionality determination.” This argument
is not persuasive.
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In Dixon-Bey, the defendant was convicted of second-degree murder after stabbing the
victim, her boyfriend, to death. Id. at 494-495. The defendant argued that the trial court’s upward-
departure sentence was unreasonable. Id. at 495. This Court remanded for resentencing, stating
that “the trial court did not adequately explain why a minimum sentence of 35 years was more
proportionate than a different sentence within the guidelines would have been.” Id. at 525. The
Dixon-Bey defendant had a PRV score of zero points and an entirely nonviolent criminal history;
additionally, “most, if not all, of the factors discussed by the trial court to support its departure
sentence were contemplated by at least one offense variable (OV).” Id. at 525-526. This Court
concluded that
factors relied on by the trial court were not unique to defendant or otherwise
relevant to a proportionality determination. The trial court highlighted the victim’s
standing in the community and defendant’s attempts to minimize her role in the
stabbing. Neither factor is, in our view, unique to defendant’s crime, nor supported
by the record. [Id. at 529.]
The present case is distinguishable from Dixon-Bey in regard to both defendant’s criminal history
and the factors the trial court relied upon to impose the upward-departure sentence.
First, unlike the defendant in Dixon-Bey, defendant’s PRV score was 105, exceeding the
75-point maximum under MCL 777.51(1)(a). Defendant has 21 cases of adult criminal history
listed in his presentence investigation report, including seven prior felony convictions: two
instances of breaking and entering a building with intent, four instances of possession of a
controlled substance, and one instance of third-degree home invasion. The trial court considered
defendant’s criminal history in imposing the upward-departure sentence, noting that defendant was
imprisoned twice before on “serious” charges and that his prison sentences were “significant.”
The trial court emphasized that the defendant’s time in prison “didn’t seem to change or affect”
him and that he “had plenty of opportunities to get help, to be rehabilitated and it hasn’t proved to
work. He’s clearly a danger to society.”
When justifying an upward departure from the sentencing guidelines, trial courts may
consider a defendant’s “repeated offenses and [past] failures at rehabilitation.” People v Horn,
279 Mich App 31, 44; 755 NW2d 212 (2008). Additionally, when considering the proportionality
of a sentence, the “protection of society” is a factor that should be considered by the trial court.
People v Bennett, 335 Mich App 409, 418; 966 NW2d 768 (2021) (quotation marks and citation
omitted). The trial court’s departure sentence was reasonable and proportionate because the court
gave adequate weight to defendant’s criminal history considering the seriousness of the crime. See
Milbourn, 435 Mich at 657.
Second, unlike the trial court in Dixon-Bey, 321 Mich App at 524, 529, the trial court
considered factors not considered by the minimum sentencing guidelines in imposing the departure
sentence, and these factors were unique to defendant’s crime and supported by the record. The
trial court stated that the guidelines did not “take into account the different people that are affected
by this,” including one of the victim’s friends and the victim’s mother.
The record shows that the victim’s friend testified that she first found the victim in the
school bathroom after the assault and comforted her. She testified that she was “very concerned.
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Really scared, ‘cause she hadn’t cried like that—I’ve never seen her cry like that,” and that as the
victim cried, “I’m crying with her.” The victim’s friend agreed in her testimony that the events
were still hard for her to talk about it. The record also shows that the victim’s mother testified
about the changes in the victim’s behavior and appearance since the assault: “The kid I used to
have as like a tiny little thing and like this happened and she gained like a hundred pounds and she
just, like, stopped liking school.” She testified that the victim “totally flipped into a different kid”
and that she no longer wanted to go outside, lost all her friends, was always angry. She agreed in
her testimony that the victim used to like hugs, but now “you can’t give her a hug. . . . You can’t
touch her. She freaks right out.” These factors are unique to defendant’s case, supported by the
record, and relevant to a proportionality determination. See id. at 529. The trial court
demonstrated that a sentence outside the guidelines was more proportionate, considering the facts
of the case, than a sentence within the guidelines. See Milbourn, 435 Mich at 657.
Defendant’s sentence was not imposed on the basis of acquitted conduct and was
proportional to the seriousness of the crime because it considered defendant’s criminal history and
was imposed on the basis of factors that were not considered by the guidelines. See id.; Dixon-
Bey, 321 Mich App at 525. Therefore, the trial court’s upward-departure sentence did not violate
the principle of proportionality. Accordingly, defendant is not entitled to resentencing.
Affirmed.
/s/ Christopher P. Yates
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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