People of Michigan v. Tarek Lamar Parish ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 17, 2024
Plaintiff-Appellee, 11:30 AM
v No. 363307
Kent Circuit Court
TAREK LAMAR PARISH, LC No. 19-007084-FH
Defendant-Appellant.
Before: YATES, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Defendant, Tarek Lamar Parish, was tried on four charges. The jury was unable to reach a
unanimous verdict on three of those four charges, i.e., two counts of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration of a mentally incapacitated victim),
and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(c) (sexual
contact with a mentally incapacitated victim), but the jury found defendant guilty on the charge of
first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (sexual penetration by force or
coercion causing personal injury). The trial court sentenced defendant as a fourth-offense habitual
offender, see MCL 769.12, to serve 25 to 45 years’ imprisonment. On appeal, defendant contends
that his conviction was the product of ineffective assistance of counsel because his attorney failed
to request a specific unanimity instruction for the jury. Because we find that defendant’s attorney
furnished ineffective assistance of counsel by failing to request a specific unanimity instruction
and the deficient performance caused defendant prejudice with respect to the charge of CSC-I, we
vacate that conviction. But because the ineffective assistance of counsel had no impact on the jury
verdict with respect to the necessarily included lesser offense of CSC-III, we remand the case with
the direction that the trial court should enter a conviction on the offense of CSC-III involving force
or coercion and resentence defendant for that offense, as opposed to CSC-I.
I. FACTUAL BACKGROUND
In January 2019, defendant engaged in a series of sexual encounters with the victim, who
was 22 years old at the time and suffering from some level of mental disability resulting from her
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childhood battle with a brain tumor and the resulting treatment.1 The exact dates of the encounters
are somewhat unclear, but the evidence suggested that the sexual encounters began on January 22,
2019, and continued every day until the victim told her mother of the ongoing sexual encounters
and her mother contacted the police on January 29, 2019. As a result of one sexual encounter, the
victim became pregnant, and DNA evidence left no doubt that defendant impregnated her.
The victim first met defendant when the apartment complex where they lived in separate
apartments was evacuated after reports of a gas leak. While the residents were outside, defendant
approached the victim and struck up a conversation. The victim next saw defendant outside of her
apartment door when she returned home from work one night. Defendant asked her for her phone
number, and when she did not provide it, defendant took her phone from her hand and programmed
his number into her phone. Then defendant started sending text messages to the victim, including
one asking her to meet on the stairs of their apartment complex to talk. Instead, the victim invited
defendant to come to her apartment. The victim stated that while she and defendant were hanging
out in her apartment, she told defendant “everything” about her life and her disability. They also
watched a movie during that visit.
According to the victim, when the movie ended, defendant approached her and started to
pull down her pants. The victim said she did not know what defendant was doing and she tried to
pull her clothes back up, but defendant kept pulling her pants down. The victim testified that then
defendant penetrated her “private part” with his penis, and also “put his mouth down there.” The
victim stated that defendant bit her butt and penetrated her anus with his penis. She said she told
defendant to stop and that it hurt, and that defendant told her he was going to make her feel better.
After that initial sexual encounter, defendant and the victim had sex in her apartment every
day for a week. According to the victim, she would find defendant waiting for her by her apartment
or he would text her to open her apartment door for him every time she returned home from work.
The victim testified that she was scared of defendant and felt that she had to act like she liked the
sexual activities, but the sexual acts made her bleed. The victim and defendant communicated via
text message extensively during the week that they were having the sexual encounters. The victim
sent defendant text messages suggesting the sexual relationship was consensual, such as messages
that said “come fuck me,” “I’m horny,” “come get in my bed,” and telling defendant to “hurry up”
when he told her that he was on his way.
The victim eventually disclosed the sexual encounters to her mother, who promptly notified
the police. The victim went to the Young Women’s Christian Association, and Dr. Dianne Decator
performed a sexual-assault examination. Dr. Decator found no trauma to the anal area, vulva area,
clitoral area, perineum, labia majora, labia minora, or posterior fourchette. But Dr. Decator noted
an abrasion in the fosse area below the hymenal area, and an abrasion of the victim’s hymen. The
victim thereafter learned that she was pregnant, and DNA testing revealed that defendant was the
father of the child.
1
The victim’s disability required her mother to become her legal guardian after the victim became
an adult. The victim lived with her mother for most of her life until she moved into an apartment
on her own in late 2018.
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In 2019, defendant was charged with two counts of CSC-III for engaging in vaginal and
anal penetration with his penis when he knew or had reason to know that the victim was mentally
incapacitated and one count of CSC-IV for engaging in sexual contact with the victim when he
knew or had reason to know that the victim was mentally incapacitated. In 2022, the prosecution
added a charge of CSC-I for engaging in vaginal penetration with his penis causing personal injury
and using force or coercion to accomplish sexual penetration. The prosecution did not tie any of
the four charges to any specific sexual encounter. The charging documents simply listed the dates
of all four offenses as “on or about 01/22/2019 – 01/29/2019.”
On May 25, 2022, at the conclusion of a three-day trial, the jury found defendant guilty of
the CSC-I offense, but the jury could not reach a unanimous verdict on the other charges. The trial
court declared a mistrial on the two CSC-III charges and the CSC-IV charge, and ultimately issued
an order of nolle prosequi on those three charges. On August 29, 2022, the trial court sentenced
defendant to serve 25 to 45 years’ imprisonment for the CSC-I offense. Defendant now appeals.
II. LEGAL ANALYSIS
On appeal, defendant claims his trial attorney was constitutionally ineffective for failing to
request a specific unanimity instruction on the CSC-I charge for which defendant was convicted.
To prevail on a claim of ineffective assistance of counsel, “defendant must show that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the [trial] outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Whether defendant was denied
effective assistance of counsel at his trial is a mixed question of fact and constitutional law. People
v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review the trial court’s factual findings
for clear error, and we review de novo questions of constitutional law. People v Dendel, 481 Mich
114, 124; 748 NW2d 859 (2008). If no evidentiary hearing on defendant’s ineffective-assistance
claim has occurred, “our review of the relevant facts is limited to mistakes apparent on the record.”
People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003). Effective assistance is presumed, and
defendant bears a heavy burden to prove otherwise. People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). The failure to advance a meritless argument or to raise a futile objection cannot
be ineffective assistance of counsel. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120(2010). With these stringent standards in mind, we shall first consider trial counsel’s performance
and then turn to the issue of prejudice.
A. DEFICIENT PERFORMANCE
The fault defendant finds in his trial attorney’s performance is the failure of counsel to ask
for a specific unanimity instruction for the jury. “A defendant has the right to a unanimous verdict
and it is the duty of the trial court to properly instruct the jury on this unanimity requirement.”
People v Martin, 271 Mich App 280, 338; 721 NW2d 815 (2006). “Under most circumstances, a
general instruction on the unanimity requirement will be adequate.” Id. This instruction informs
the jury that their verdict must be unanimous and that it is necessary that each of the jurors agrees
on that verdict. M Crim JI 3.11(3). However, “when the state offers evidence of multiple acts by
a defendant, each of which would satisfy the actus reus element of a single charged offense, the
trial court is required to instruct the jury that it must unanimously agree on the same specific act if
the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree
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about the factual basis of the defendant’s guilt.” People v Cooks, 446 Mich 503, 530; 521 NW2d
275 (1994); see also People v Yarger, 193 Mich App 532, 537; 485 NW2d 119 (1992) (holding
that a specific unanimity instruction tells the jurors they “must unanimously agree on which act(s)
was proven beyond a reasonable doubt”). “Actus reus” is “[t]he wrongful deed that comprises the
physical components of a crime . . . .” Black’s Law Dictionary (10th ed). Alternative acts are
materially distinct “where the acts themselves are conceptually distinct or where either party has
offered materially distinct proofs regarding one of the alternatives.” Cooks, 446 Mich at 524. “The
critical inquiry is whether either party has presented evidence that materially distinguishes any of
the alleged multiple acts from the others.” Id. at 512. Ordinarily, “the evidence will be materially
distinct regarding one of the multiple acts allegedly committed by the defendant.” Id. at 530 n 34.
A specific unanimity instruction is not required when the prosecution presents “evidence of a series
of materially indistinguishable acts, each of which would factually satisfy the actus reus element
of the alleged criminal offense . . . .” Id. at 517.
The CSC-I charge against defendant accused him of using force or coercion to accomplish
sexual penetration that caused personal injury. See MCL 750.520b(1)(f). The prosecution offered
evidence that defendant and the victim engaged in sexual intercourse every day for a week, but the
prosecution did not tie the CSC-I charge to a specific instance of sexual penetration. Instead, the
prosecution’s theory of the case appeared to be that every sexual encounter between the victim and
defendant was unlawful, referring in closing argument to “the sexual assaults.” Thus, as presented
to the jury, there were numerous acts of penetration by defendant, each of which would satisfy the
actus reus of the CSC-I charge. See Cooks, 446 Mich at 530. Additionally, the evidence presented
concerning the different sexual encounters was not materially identical. See id. at 512-513, 524(holding that acts are materially distinct “where either party has offered materially distinct proofs
regarding one of the alternatives”). Evidence concerning the first sexual encounter suggested that
defendant used force to accomplish penetration. Specifically, the victim testified that during that
sexual encounter, defendant pulled down her pants and underwear, and when she tried to pull them
back up, defendant pulled them down again.
But there was no evidence that any other sexual encounter involved force or coercion. The
victim testified that she was scared of defendant, but the specific proof concerning the force used
by defendant in the first sexual encounter was materially distinct from the evidence, or lack thereof,
that force or coercion was used in any of the subsequent sexual encounters. Indeed, there was also
evidence in the form of text messages suggesting that at least some of the sexual encounters were
consensual. In some of those text messages, the victim invited defendant to come to her apartment
and explicitly requested that defendant perform sexual acts on her. Thus, on this record, evidence
was presented that materially distinguished some of the alleged sexual acts from others. See id.
at 512.
At the end of the trial, the trial court instructed the jury that “[a] verdict in a criminal case
must be unanimous” and that “[i]n order to return a verdict it is necessary that each of you agree
on that verdict.” But the record shows that the prosecution offered evidence of multiple acts, each
of which would satisfy the actus reus of the charge of CSC-I, and the acts were materially distinct.
See id. at 530. Therefore, a specific unanimity instruction was warranted. See id.In reaching that conclusion, we have considered two issues raised by the prosecution. First,
the requirement that the multiple acts must each “satisfy the actus reus element of a single charged
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offense,” as discussed in Cooks, 446 Mich at 530, does not mean a specific unanimity instruction
is only appropriate when the defendant is facing just one charge. Instead, the rule stated in Cooks
requires that the multiple acts each must satisfy the actus reus of the same charge, without regard
for whether the defendant faced other charges. The fact that defendant here faced multiple charges
does not negate the fact that the prosecution provided evidence of multiple acts by defendant, each
of which would satisfy the actus reus element of the CSC-I charge. See id.Second, a specific unanimity instruction here would not require the prosecution to establish
which sexual encounter caused the victim’s pregnancy. Rather, to the extent the prosecutor relied
on the pregnancy to satisfy the personal injury element of CSC-I, the prosecutor had to establish
that the sexual penetration that caused the victim to become pregnant was accomplished by force
or coercion. In a situation where two people engaged in multiple sexual penetrations over a short
period of time, some consensual and others the product of force or coercion, such a showing may
well be impossible. But that impossibility does not absolve the prosecution of its burden to prove
each element of the charged crime beyond a reasonable doubt.
Based on our conclusion that a specific unanimity instruction was appropriate in this case,
we also necessarily conclude that defense counsel’s performance fell below an objective standard
of reasonableness when he failed to request a specific unanimity instruction. We can conceive of
no reasonable trial strategy that would support choosing not to request such an instruction. There
was some evidence that the first sexual encounter was the product of force based on the victim’s
testimony, but the only evidence that the other penetrations were the product of force or coercion
was the victim’s testimony that she was scared of defendant. Balanced against that weak evidence
of force in most of the sexual encounters was compelling evidence in the form of text messages
from the victim that some of the sexual encounters were consensual. Because defendant’s counsel
did not request a specific unanimity instruction, there was a risk the jury would convict defendant
of CSC-I even though the jury could not agree on whether a penetration involving force or coercion
resulted in injury to the victim. Thus, defendant’s counsel performed deficiently in that regard.
B. PREJUDICE
The more complicated aspect of our analysis of defendant’s claim of ineffective assistance
of counsel concerns defendant’s effort to establish prejudice. Divining a jury’s thinking based on
its verdict is a risky undertaking, but the verdict here leads ineluctably to the conclusion that the
jury found that defendant employed force or coercion to accomplish the first sexual penetration of
the victim’s vagina with his penis. The trial court properly instructed the jury that they could only
convict defendant of CSC-I if the prosecution “prove[d] that the defendant used force or coercion
to commit the sexual act.” The only sexual encounter that included evidence of force was the first
sexual encounter, when defendant tried to remove the victim’s pants, but she kept trying to pull up
her pants until defendant nonetheless succeeded in removing them. Because of that, an instruction
on specific unanimity would have made no difference in the outcome of the jurors’ consideration
of the element of force or coercion. Because sexual penetration accomplished by force or coercion,
without any injury, constitutes CSC-III, see MCL 750.520d(1)(b), the jurors’ guilty verdict on the
CSC-I charge reflects a unanimous decision supporting a conviction for CSC-III, irrespective of
any infirmity in the jury’s finding of injury. In other words, CSC-III under MCL 750.520d(1)(b)
is a necessarily included lesser offense of CSC-I under MCL 750.520b(1)(f) inasmuch as CSC-III
under MCL 750.520d(1)(b) requires proof of the same elements as CSC-I except for injury.
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The prejudice to defendant flowing from his trial attorney’s deficient performance concerns
only the elevation of the offense of conviction from CSC-III to CSC-I based on injury to the victim
in the form of pregnancy.2 See People v Petrella, 424 Mich 221, 239; 380 NW2d 11 (1985) (“the
element of ‘personal injury’ elevates the offense of third-degree CSC to first-degree CSC”). Even
if the jury had received a specific unanimity instruction, their verdict on the CSC-I charge reveals
that they would have unanimously found beyond a reasonable doubt that defendant committed all
the elements of CSC-III. The jury’s inability to reach a verdict on the other three charges does not
undermine our interpretation of their conclusion that defendant committed CSC-III by engaging
in penetration by force or coercion. The other charges accused defendant of accomplishing sexual
penetration or sexual contact by taking advantage of a mentally incapacitated victim, so the jury’s
failure to reach a verdict on those charges reveals an inability to unanimously determine beyond a
reasonable doubt that the victim was mentally incapacitated, which has nothing to do with force
or coercion. Hence, in assessing whether “there is a reasonable probability that the outcome [of
the trial] would have been different” without counsel’s deficient performance, see Trakhtenberg,
493 Mich at 51, the most we can say is that defendant might not have been convicted of CSC-I in
the absence of deficient representation. We cannot say that, without the deficient performance of
defense counsel, an innocent man would not have been convicted.
According to Michigan law, prejudice exists when there is “ ‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). Faithfully applying that standard, we
must conclude that defendant’s conviction of CSC-I cannot stand. Without his attorney’s failure
to request a jury instruction on specific unanimity, there is a reasonably probability that defendant
would not have been convicted of CSC-I because the prosecution did not establish that the victim’s
pregnancy—or any other personal injury—resulted from the sexual penetration accomplished by
force or coercion.3
But our inquiry does not end with our conclusion that ineffective assistance of counsel calls
for vacation of defendant’s conviction for CSC-I. Because CSC-III under MCL 750.520d(1)(b) is
a necessarily included lesser offense of CSC-I under MCL 750.520b(1)(f) and defense counsel’s
2
The parties focused at trial on the victim’s pregnancy as the resulting personal injury. By statute,
pregnancy is defined as a “personal injury” in the context of criminal sexual conduct offenses. See
MCL 750.520a(n). “Bodily injury” also qualifies as “personal injury.” Id. When the victim was
asked whether she ever had “any injuries or bleeding,” she answered “yes,” but she did not identify
any injury when asked: “What injury did you have or how were you bleeding?” More significantly,
and although bleeding may reflect a “bodily injury,” the victim did not testify that bleeding resulted
specifically from the first sexual encounter, which (as we have noted) must have formed the basis
for the jury’s guilty verdict on the CSC-I charge. Similarly, a sexual assault nurse examiner who
testified at trial stated that “no injury was visualized” except for two genital abrasions visible only
with toluidine blue dye, and there was no evidence linking those abrasions specifically to the first
sexual encounter.
3
Even if the victim’s professed bleeding and her genital abrasions are considered injuries, neither
the abrasions nor the bleeding was proven to be the result of the sexual penetration accomplished
by force or coercion during the first encounter between the victim and defendant.
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deficient performance had no impact on the proofs concerning CSC-III based on force or coercion,
we must consider the effect of our conclusion that the jury found every element of CSC-III under
MCL 750.520d(1)(b) beyond a reasonable doubt. As our Supreme Court has explained, “a jury’s
verdict regarding a necessarily included lesser offense always is encompassed in the verdict on the
greater offense.” People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001). Thus, the conclusion
that defendant’s CSC-I conviction must be vacated “does not impede [this Court] from remanding
for entry of judgment of a necessarily lesser included offense.” Id. Indeed, both the United States
Supreme Court and our Supreme Court “ha[ve] approved the use of this remedy in cases ‘when a
conviction for a greater offense is reversed on grounds that affect only the greater offense.’ ” Id.,quoting Rutledge v United States, 517 US 292, 306; 116 S Ct 1241; 134 L Ed 2d 419 (1996). Here,
that approach perfectly fits the circumstances presented to us. Accordingly, we vacate defendant’s
conviction for CSC-I, but we remand the case with the direction that the trial court should enter a
conviction on the offense of CSC-III involving force or coercion and resentence defendant for that
offense. People v Lockett, 295 Mich App 165, 182; 814 NW2d 295 (2012) (remanding “for entry
of convictions on defendants’ lesser included offenses” “[b]ecause a jury could not have convicted
defendants on the charged counts of CSC-I . . . without determining that defendants also committed
the underlying felony”).
Conviction for CSC-I vacated, and case remanded for entry of a conviction for the offense
of CSC-III under MCL 750.520d(1)(b) and for resentencing for that offense. We do not retain
jurisdiction.
/s/ Christopher P. Yates
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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