People of Michigan v. Marcel Jerome Robinson ( 2017 )


Menu:
  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
    April 11, 2017
    Plaintiff-Appellee,
    v                                                                   No. 330304
    Genesee Circuit Court
    MARCEL JEROME ROBINSON,                                             LC No. 15-037293-FC
    Defendant-Appellant.
    Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.
    PER CURIAM.
    A jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b,
    assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g,
    unlawful imprisonment, MCL 750.349b, and assault with intent to do great bodily harm less than
    murder, MCL 750.84, after he lured a young woman to a vacant home and forcibly raped her.
    Defendant contends that the trial court permitted overly prejudicial and inadmissible evidence to
    infect his trial. He also challenges the scoring of various offense variables underlying his
    lengthy sentences. These claims lack merit. We affirm.
    I. BACKGROUND
    On the afternoon of September 4, 2012, 18-year-old J agreed to meet defendant at his
    home to “chill.” It is unclear how the two first connected, but they had communicated via text
    message for several days and agreed to meet in person for the first time. When J arrived at
    defendant’s “residence,” she found it empty of furniture except a small table. J sat her cell phone
    on the table and plugged it in to charge. Defendant removed J’s phone battery and refused to
    return it. J fought defendant, but then ran from the house.
    J determined to return for her phone battery. She attempted to take the battery from
    defendant but he knocked her to the ground and sat on her chest. Defendant tried to force J to
    perform fellatio, but she fought him off. Defendant then punched J in the left eye three or four
    times. J curled up on her side. J alleged that defendant pulled out a gun. (In an earlier
    statement, she claimed defendant was armed with a knife.) Fearful for her life, J stopped
    struggling. Defendant then forced J into penile-vaginal intercourse. Afterward defendant
    returned J’s cell phone battery and she fled.
    -1-
    J telephoned for help and a relative took her to the hospital. Her left eye was swollen
    shut, her orbital bone was fractured, and there was “some bruising” on her neck. Semen was
    detected on a vaginal swab. DNA from the semen matched defendant’s profile, which was
    already on file with CODIS. Despite this evidence, the police waited nearly three years to pursue
    an investigation. An officer showed J a photographic array including an image of defendant,
    whom she identified immediately.
    The prosecutor played for the jury defendant’s recorded police interview following his
    arrest. Defendant began by denying any acquaintance with J. Defendant repeatedly changed his
    story as the interrogating officer revealed additional evidence. Defendant eventually claimed
    that he paid J for sex and admitted that he slapped her once, but denied that he raped or punched
    her.
    II. MISTRIAL FOR IMPROPER ADMISSION OF EVIDENCE
    Defendant first argues that the trial court abused its discretion by denying his request for
    a mistrial, made after the prosecutor failed to adequately redact inadmissible statements from his
    recorded police interview. Whether to declare a mistrial falls within a trial court’s discretion.
    People v Schaw, 
    288 Mich. App. 231
    , 236; 791 NW2d 743 (2010). A mistrial is warranted “only
    for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a
    fair trial.” 
    Id. (quotation marks
    and citation omitted).
    The prosecutor played defendant’s police interview into the record during the testimony
    of the interrogating officer, William Surface. The prosecutor and defense counsel met and
    agreed that certain portions of the recording needed to be redacted because defendant mentioned
    other criminal offenses and asked for a polygraph examination. The prosecutor did not have the
    capability to electronically alter the recording. Accordingly, the prosecutor intended to fast-
    forward through or mute specific portions of the recording. Defense counsel expressed concern
    over the efficacy of this method as the interrogation was fast paced.1
    Defense counsel’s fears were well founded. At one point during the recording, defendant
    asked Surface when he could expect to go to court because, “I’m supposed to go to court in the
    morning for this other stuff,” suggesting that defendant was facing charges in unrelated matters.
    The prosecutor paused the recording and asked Surface to explain the “other stuff” mentioned by
    defendant. Surface responded that defendant was “arrested on two warrants,” bringing him into
    police custody. Defense counsel did not contemporaneously object to this particular exchange.
    Later, the prosecutor failed to mute or fast-forward the recording during Surface’s
    disclosure of a prior sexual assault committed by defendant:
    1
    Because of the manner in which the video was “redacted” for the jury, we were unable to
    review the recording and determine what the jury actually heard. The court stenographer
    transcribed the video as it was played to the jury, however, and the parties agreed to certain
    errors in the transcription.
    -2-
    [Surface]: [On recording.] You’ve been raped?
    [Defendant]: Yes, sir. I’ve been raped. That’s not cool. You’ve got
    some people who fight like that. My sister has been raped.
    * * *
    This was going on for a long time. Will not be able to get over [sic].
    Surface: Yeah. But in the same aspect you’d never do anything that
    would make somebody feel uncomfortable, right? Because of what happened to
    you when you were eleven, right?
    Defendant: Yes. I would not rape anybody, sir.
    Surface: - - grabbed that teacher’s breast when you were twelve.
    Defendant: That was it.
    Realizing his error, the prosecutor stopped the recording and the trial court ordered a
    recess. Defense counsel admitted that he had requested admission of information regarding
    defendant’s experience as a rape victim. However, defense counsel moved for a mistrial based
    on the jury’s discovery that defendant had sexually assaulted a teacher. The trial court denied
    defendant’s mistrial request and instead instructed the jury, “[S]ome evidence of other
    misconduct than that charged in the Information in this case may have been presented to you. It
    is totally irrelevant to these charges and must be disregarded by you.”
    Subsequently, the prosecutor failed to mute or fast-forward the recording when defendant
    mentioned a polygraph examination: “I don’t care when you want to give me the lie detector
    test.” Defense counsel did not raise a timely objection, but renewed his motion for a mistrial at
    the close of the prosecution’s proofs. The court again ruled that a curative instruction was
    sufficient to remedy the error.
    A. PRIOR BAD ACTS
    The prosecutor urges this Court to find defendant’s challenge regarding “this other stuff”
    waived. At the time the jury learned that defendant was awaiting a court date on two other
    charges, defense counsel raised no objection. After the jury heard Surface mention defendant’s
    prior sexual assault of a teacher, counsel indicated that he was “not going to make too big of a
    note of this one.” The record belies that defendant’s challenges were waived. Defense counsel
    repeatedly expressed hesitation when the prosecutor proposed redaction of the recorded
    interview by fast-forwarding through inadmissible statements. Although defense counsel did not
    contemporaneously object to every mention of defendant’s prior bad acts, he twice moved for a
    mistrial on this very basis, including immediately after the prosecutor requested a recess based
    on the inadvertent presentation of information regarding the prior sexual assault.
    The prosecutor concedes that statements regarding defendant’s other pending crimes and
    defendant’s prior sexual assault of a teacher constituted inadmissible other acts evidence. The
    -3-
    question remains whether a curative instruction sufficed to remedy the prejudice or whether a
    mistrial was required. The improper mention of a defendant’s prior bad acts may necessitate a
    mistrial. People v Griffin, 
    235 Mich. App. 27
    , 36; 597 NW2d 176 (1999), overruled in part on
    other grounds People v Thompson, 
    477 Mich. 146
    , 148 (2007). “However, not every . . . mention
    before a jury of some inappropriate subject matter warrants a mistrial.” Id.2 The defendant must
    establish prejudicial error to warrant relief. 
    Schaw, 288 Mich. App. at 236
    .
    It is unlikely that the brief and inadvertent disclosures of inadmissible bad acts evidence
    resulted in prejudice or affected the outcome of defendant’s trial. Defendant’s jury heard four
    days of evidence, with the recorded interview being played on the final day of trial. By that
    time, the jury had already heard J’s testimony describing the brutality of the attack and testimony
    from J’s relatives regarding her emotional distress that day, as well as reviewing the physical
    evidence establishing that sexual intercourse had occurred and that J suffered severe injuries.
    The interview was itself three hours long, even with the prosecutor’s frequent redactions. During
    this lengthy period, there was only one mention of defendant’s other pending crimes—when
    Surface explained that defendant had been arrested on two outstanding warrants. And the sole
    mention of defendant’s prior sexual assault on a teacher was short and confusing. In the context
    of a three-hour-long recording, consisting in substantial part of defendant’s constantly changing
    account of the incident, it is unlikely that the brief inadmissible statements overwhelmed the
    jury.
    Additionally, a mistrial should be granted only “when the prejudicial effect of the error
    cannot be removed in any other way.” People v Horn, 
    279 Mich. App. 31
    , 36; 755 NW2d 212
    (2008). Cautionary instructions limit the potential for undue prejudice and “cure most errors.”
    
    Id. The trial
    court twice instructed the jury to disregard “evidence of any other misconduct by
    the Defendant than that charged in the Information.” “[J]urors are presumed to follow their
    instructions.” People v Graves, 
    458 Mich. 476
    , 486; 581 NW2d 229 (1998).
    B. POLYGRAPH
    Defendant argues that the improper mention of a polygraph examination was, on its own,
    enough to warrant a mistrial. It is true that admission of any reference to a defendant taking or
    passing a polygraph test is error. People v Nash, 
    244 Mich. App. 93
    , 97; 625 NW2d 87 (2000).
    However, a reference to a polygraph test does not always require a mistrial. 
    Id. at 98.
    The
    “reference may be a matter of defense strategy, the result of a nonresponse [sic] answer, or
    otherwise brief, inadvertent and isolated.” 
    Id. (quotation marks
    and citation omitted). To
    determine whether relief is required, we examine:
    2
    The prosecutor contends that a mistrial was not warranted in this case because defendant
    volunteered the subject information and provided unresponsive answers to Officer Surface’s
    questions during the interview. This maxim applies to a witness’s unresponsive answers on the
    stand, not during a recorded police interview. And defendant did not mention his prior sexual
    assault charge, Surface did. Moreover, the prosecutor specifically elicited testimony regarding
    defendant’s arrest for two other charges from Surface on the stand. The prosecutor’s legal
    argument completely lacks merit.
    -4-
    (1) whether defendant objected and/or sought a cautionary instruction; (2)
    whether the reference was inadvertent; (3) whether there were repeated
    references; (4) whether the reference was an attempt to bolster a witness’s
    credibility; and (5) whether the results of the test were admitted rather than
    merely the fact that a test had been conducted. [
    Id. (quotation marks
    and citation
    omitted).]
    Considering the above factors, we cannot conclude that the trial court abused its
    discretion when it denied defendant’s request for a mistrial. The jurors’ exposure to the mention
    of the polygraph examination was inadvertent and very brief. Other than in the trial court’s final
    instructions, no other reference was made to the statement or to defendant’s possible
    participation in a polygraph examination. There is no evidence that the reference was intended
    to bolster any witness’s credibility. The brief statement contained no indication that a polygraph
    examination was ever conducted, let alone what the results of such an examination had been.
    Finally, the trial court specifically instructed the jury to disregard this information. The curative
    instruction was sufficient to eliminate any undue prejudice caused by the brief mention of a
    polygraph examination. Because the inadvertent error did not prejudice defendant or deprive
    him of a fair trial, a mistrial was not warranted.
    III. IMPROPER OPINION TESTIMONY
    Defendant also contends that he was denied the right to due process when the prosecutor
    improperly elicited testimony from Officer Surface regarding his opinion on defendant’s guilt.
    Although defense counsel twice objected to Surface’s testimony, he did so on other grounds.
    This issue is not preserved. People v Asevedo, 
    217 Mich. App. 393
    , 398; 551 NW2d 478 (1996).
    Our review is therefore limited to plain error affecting defendant’s substantial rights. People v
    Benton, 
    294 Mich. App. 191
    , 202; 817 NW2d 599 (2011).
    The issue of a defendant’s guilt or innocence is a question for the jury to resolve, People
    v Suchy, 
    143 Mich. App. 136
    , 149; 371 NW2d 502 (1985), and a witness may not opine about the
    defendant’s guilt or innocence in a criminal case, People v Heft, 
    299 Mich. App. 69
    , 81; 829
    NW2d 266 (2012). However, any lay witness, including a police witness, is permitted to testify
    “in the form of opinions or inferences which are (a) rationally based on the perception of the
    witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of
    a fact in issue.”
    Defendant first challenges Surface’s testimony that defendant lied during his interview.
    In order to highlight the evolution of defendant’s story throughout the interview, the prosecutor
    engaged Surface in the following discussion:
    Prosecutor: And when you talk to a suspect about something three years
    old, something like that, does it usually come back to them this quickly where
    they have almost instant recall?
    Defense Counsel: Judge, I’m going to object. The question calls for what
    usually goes on—
    The Court: I’m going to sustain that objection. Thank you.
    -5-
    Prosecutor: Can I - - if I lay a foundation for his - -
    The Court: Perhaps.
    Prosecutor: Experience?
    The Court: But you’ll have to lay the foundation more clearly.
    Prosecutor: How many interviews have you done?
    Surface: It’s countless, sir. Through just from the year of doing this being
    in the criminal sexual crime unit fifty to a hundred, maybe more.
    Prosecutor: In the course of a year?
    Surface: Yes.
    Prosecutor: And do you - - do you sometimes have to talk to people about
    things that happened years ago?
    Surface: Yes, sir. I do.
    Prosecutor: All right. And when you do bring up subject matter like that
    is it common for someone being interviewed to go from I know nothing, I know
    nothing, I know nothing to now I can tell you and give you an entire narrative?
    Surface: Yes. When they’re lying.
    Defense Counsel: Your Honor, again I’m going to object.
    The Court: Then ask a different question. I’ll sustain the objection again.
    Rephrase your question.
    Later, during cross-examination of Surface, defense counsel queried:
    Defense Counsel: Do you recall when you were interviewing [defendant,]
    [BJ] saying that she had a special need that was that she had been put out of the
    house by - - she had been put out by an individual and she needed some money
    for that? Do you recall that?
    Surface: That’s what [defendant] said.
    Defense Counsel: Okay. And would - - would that indicate to you that
    this is a person in this activity [referring to BJ’s alleged money-for-sex request]
    just to engage in it or has a special need if that statement is in fact true? Would
    that indicate it’s a person who engages in this activity on a regular basis or just a
    special need?
    -6-
    Surface: Well, you’re taking just one statement. He had lied to me
    numerous times in that interview which I caught him in numerous lies.
    Defense Counsel: I appreciate - -
    Surface: (Inaudible)
    Defense Counsel: Sir, I appreciate that you want to get that information in
    as many times as you can but it doesn’t answer my question. And the answer to
    the question is a yes or no question [sic]. Does this indicate that - - if this is true
    does this indicate that this is a special needs type case or that somehow or other
    she should have known the going rate for this type of service?
    Surface: I don’t believe it was a true statement.
    Defense Counsel: You don’t want to answer the questions?
    Surface: Well I can’t answer the question if I don’t believe it’s a true
    statement. He’s making this up.
    Defense Counsel: In your opinion?
    Surface: My opinion right now is the truth.
    Defense Counsel: Your opinion is the truth?
    Surface: Yes. ‘Cause he lied about everything else. I - - he lied.
    Defense Counsel: In response to your lies?
    Surface: My lies are to get him to trust me, get him to tell the truth. He is
    lying to get out of going to jail which I showed numerous times.
    Defense Counsel: And I appreciate that you want to get in front of the
    jury your statement that you think he lied as many times as you can but - -
    Prosecutor: Objections, your Honor. Can we approach about this?
    The Court: I think we better stop the whole thing. It’s up for the jury to
    decide who’s lying.
    Surface’s opinion that an interviewee who repeatedly changes his story is lying was
    elicited after the jury first heard defendant’s recorded claim that he had no idea who J was,
    listened as the story morphed into an admission that defendant knew full well what happened on
    the day in question. Surface’s opinion in this regard was unnecessary as the jury could glean for
    itself that defendant was lying.
    Surface sat through a three-hour interrogation with defendant, in which defendant
    significantly altered his story at least three times. Defendant admitted that he lied at several
    -7-
    points during the interview, and signed a statement drafted by Surface admitting that he had lied
    repeatedly during his interview. Surface was permitted to testify to actions he personally
    witnessed, and to infer from the circumstances that defendant was lying during the interview.
    Although Surface expressed the opinion that defendant was untruthful during his interview, he in
    no way suggested that defendant’s untruthfulness equated to guilt of the underlying offenses.
    In any event, defendant cannot show that Surface’s opinion testimony was outcome
    determinative. The jurors viewed the recorded interview in its near entirety, with only
    inadmissible portions redacted. They heard defendant ask Surface, on several different
    occasions, if he could avoid prison by agreeing to “tell the truth,” and watched for nearly three
    hours as defendant repeatedly changed his story and admitted to lying on numerous occasions.
    Especially in light of defendant’s own admissions, it is unlikely that Surface’s opinion regarding
    defendant’s veracity made any difference during jury deliberations.
    Defendant also challenges Surface’s characterization of J as a “rape victim,” which
    defendant claims improperly suggested defendant’s guilt. Specifically, the prosecutor asked
    Officer Surface whether J hesitated before cooperating in the investigation three years after her
    assault. Officer Surface responded: “She is a rape victim. This isn’t something easy for
    somebody to come up here and do to sit here and testify about that horrendous assault.” Defense
    counsel objected to this statement, and the court sustained the objection. On appeal, the
    prosecutor concedes that Surface’s characterization of J as a “rape victim” improperly suggested
    defendant’s guilt and constituted plain error. However, the prosecutor argues that the error was
    not so prejudicial as to require relief.
    It is worth nothing that the court, the prosecutor, and even defense counsel referred to J as
    “the victim” throughout this trial. While Officer Surface’s statement went too far, the officer did
    not introduce the concept of J as victim to the jury. Overall, it is likely that the jury understood
    that this label was not intended to suggest defendant’s guilt, but was employed for the sole
    purpose of promoting consistency. More specifically, Surface’s comment was brief and
    unsolicited. Although defendant did not request a curative instruction specific to Surface’s
    statements, the jury was instructed on the presumption of innocence, the requirement of finding
    guilt beyond a reasonable doubt, and the proper weighing of witness credibility, including the
    credibility of police officers. Again, the jurors are presumed to have followed their instructions.
    
    Graves, 458 Mich. at 486
    . Given the significant evidence of defendant’s guilt, we cannot find
    this single error outcome determinative.
    Finally, because defendant has established only one error, his argument regarding
    cumulative error must fail. Relief based on the cumulative effect of several errors requires “the
    establishment of errors,” plural. People v Dobek, 
    274 Mich. App. 58
    , 106; 732 NW2d 546 (2007).
    IV. SCORING OF OFFENSE VARIABLES
    Finally, defendant contends that the trial court erroneously assessed 15 points for offense
    variable (OV) 1, 10 points for OV 4, and 50 points for OV 7. He also asserts that his counsel
    was ineffective in failing to object to these variables at the sentencing hearing. We discern no
    error in the scoring of OVs 1 and 7 and any potential error in scoring OV 4 would not have
    -8-
    impacted defendant’s sentencing guidelines range. Accordingly, defendant is not entitled to
    resentencing and his attorney’s performance cannot be deemed constitutionally deficient.
    We review for clear error the trial court’s factual findings at sentencing, findings that
    must be supported by a preponderance of the evidence. People v Hardy, 
    494 Mich. 430
    , 438; 835
    NW2d 340 (2013). We review de novo whether the factual determinations were sufficient to
    support a particular score. Id; see also People v Steanhouse, 
    313 Mich. App. 1
    , 38; 880 NW2d
    297 (2015), lv gtd 
    499 Mich. 934
    (2016) (holding that because scoring the OVs remains relevant
    under People v Lockridge, 
    498 Mich. 358
    ; 870 NW2d 502 (2015), the standards of review
    traditionally applied to the trial court’s scoring of the OVs remain viable). The interpretation of
    the guidelines is a legal question that we review de novo. 
    Hardy, 494 Mich. at 438
    .
    A. OV 1
    OV 1 is scored for the “aggravated use of a weapon.” MCL 777.31(1). Fifteen points is
    appropriate if “[a] firearm was pointed at or toward a victim or the victim had a reasonable
    apprehension of an immediate battery when threatened with a knife or other cutting or stabbing
    weapon.” MCL 777.31(1)(c). J testified that defendant brandished a gun during the assault,
    asserting, “That’s when I was with a gun pulled out on me was [sic] raped.” (Emphasis added.)
    This supported the court’s score. J had earlier claimed defendant’s weapon was a knife.
    However, J’s inconsistencies do not nullify the assessed score for OV 1. This merely presented a
    credibility issue for the trial court to resolve. We may not interfere with that judgment. MCR
    2.613(C).
    B. OV 4
    “[OV] 4 is psychological injury to a victim.” MCL 777.34(1). The sentencing court
    must assess 10 points if “[s]erious psychological injury requiring professional treatment occurred
    to a victim.” MCL 777.34(1)(a). The fact that treatment has not been sought is not conclusive,
    MCL 777.34(2), but the record must contain “some evidence of psychological injury” to justify
    the assessment of points. People v Lockett, 
    295 Mich. App. 165
    , 183; 814 NW2d 295 (2012).
    Evidence of the victim’s “personality changes, anger, fright, or feelings of being hurt, unsafe, or
    violated” supports an assessment of 10 points for OV 4. People v Schrauben, 
    314 Mich. App. 181
    , 197; 886 NW2d 173 (2016) (quotation marks and citation omitted). However, “[t]he trial
    court may not simply assume that someone in the victim’s position would have suffered
    psychological harm because MCL 777.34 requires that serious psychological injury occurred to a
    victim,” and there must be record evidence to support such a finding. 
    Lockett, 295 Mich. App. at 183
    (quotation marks and citation omitted).
    In this case, we need not decide whether the trial court properly assessed 10 points for
    OV 4. Even if the OV was scored in error, defendant would not be entitled to resentencing
    because a 10-point adjustment of his overall OV score would not change his sentencing
    guidelines range. CSC-I is a Class A offense. MCL 777.16y. Defendant was originally assessed
    a total OV score of 145 points, placing him in OV Level VI. The reduction of 10 points would
    adjust defendant’s total score to 135 points, which also falls in OV Level VI. Coupled with
    defendant’s uncontested prior record variable score of 42, defendant’s minimum sentencing
    guidelines range would be 171 to 285 months. MCL 777.62. This is the same guidelines range
    -9-
    employed by the trial court at sentencing. A potential error in scoring that would not alter the
    applicable sentencing guidelines range would be deemed harmless. People v Francisco, 
    474 Mich. 82
    , 89 n 8; 711 NW2d 44 (2006).
    C. OV 7
    The trial court did not err when it assessed OV 7 at 50 points. At the time of defendant’s
    sentencing, the Legislature directed trial courts to assess 50 points for OV 7 if “[a] victim was
    treated with sadism, torture, excessive brutality or conduct designed to substantially increase the
    fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a).3 “A trial court can
    properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the
    four categories of conduct listed in subsection (1)(a).” 
    Hardy, 494 Mich. at 439-440
    . For
    purposes of OV 7, the sentencing court should closely examine all relevant evidence to
    determine “whether the defendant engaged in conduct beyond the minimum necessary to commit
    the crime, and whether it is more probable than not that such conduct was intended to make the
    victim’s fear or anxiety increase by a considerable amount.” 
    Id. at 443.
    A preponderance of the evidence supports that defendant “went beyond the minimum
    conduct necessary to commit” a sexual assault. 
    Id. at 446.
    In 
    Hardy, 494 Mich. at 446-447
    , the
    Supreme Court determined that the defendant went beyond the necessary conduct to commit
    armed robbery:
    To commit this crime, a defendant must engage “in conduct proscribed under
    [MCL 750.530,]” Michigan’s robbery statute, which criminalizes using “force or
    violence against any person who is present” at a larceny or assaulting or putting
    “the person in fear[,]” “in the course of committing a larceny.” To commit an
    armed robbery, the defendant must also either (1) possess “a dangerous weapon or
    an article used or fashioned in a manner to lead any person present to reasonably
    believe the article is a dangerous weapon,” or (2) represent “orally or otherwise
    that he or she is in possession of a dangerous weapon[.]” To rob the convenience
    store, [the defendant] could have simply put the victims in fear by orally
    representing that he had a weapon. Instead, he chose to threaten the victims with
    what appeared to be a sawed-off shotgun, and then used it to strike two different
    victims in the head. Hence, [the defendant’s] conduct went beyond that necessary
    to commit an armed robbery. [Emphasis added.]
    Here, defendant was convicted and sentenced for CSC-I based on multiple factors: MCL
    750.520b(1)(e) (“The actor is armed with a weapon”) and (f) (“The actor causes personal injury
    3
    Effective January 5, 2016, the Legislature amended the statute to require a 50-point score when
    “[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct
    designed to substantially increase the fear and anxiety of a victim suffered during the offense.”
    MCL 777.37(1)(a) (emphasis added), as amended by 
    2015 PA 137
    . This amendment was made
    after defendant committed his offense, as well as after sentencing, and it therefore inapplicable.
    MCL 769.34(2); People v Buehler, 
    477 Mich. 18
    , 24; 727 NW2d 127 (2007).
    -10-
    to the victim and force or coercion is used to accomplish sexual penetration.”) Importantly,
    “force or coercion” includes situations where “the actor coerces the victim to submit by
    threatening to use force or violence on the victim, and the victim believes that the actor has the
    present ability to execute these threats.” MCL 750.520b(1)(f)(ii). Employing the reasoning of
    Hardy, defendant could have accomplished his crime by simply threatening force or violence.
    Thus, defendant’s use of a dangerous weapon to attain J’s compliance was conduct beyond that
    necessary to commit CSC-I. In addition, defendant went a step above and beyond by removing
    the battery from J’s cellular telephone, preventing her from calling for help. And after
    completing the sexual assault, defendant held J prisoner longer than necessary. J was afraid to
    leave because defendant was pacing back and forth, swinging a gun around, “ready for war,” and
    threatening to harm J’s family members.
    The evidence supports the inference that defendant’s use of a dangerous weapon and his
    conduct immediately following the sexual assault were “designed to substantially increase [J’s]
    fear and anxiety,” as well as to secure her silence. Defendant had already demonstrated his
    physical ability to make good on his threat to cause additional harm to J or her relatives.
    Accordingly, we discern no error in the trial court’s scoring decision.
    D. ASSISTANCE OF COUNSEL
    To merit a new trial (or resentencing) based on ineffective assistance of counsel,
    defendant must show that “(1) that defense counsel’s performance fell below an objective
    standard of reasonableness under prevailing professional norms and (2) that defense counsel’s
    deficient performance so prejudiced the defendant that there is a reasonable probability that, but
    for counsel’s unprofessional errors, the result of the proceeding would have been different.”
    People v Fonville, 
    291 Mich. App. 363
    , 383; 804 NW2d 878 (2011), citing Strickland v
    Washington, 
    466 U.S. 668
    , 694; 
    104 S. Ct. 2052
    ; 
    80 L. Ed. 2d 674
    (1984).
    The trial court clearly properly scored OV 1 and OV 7. And again, we need not
    determine whether the court properly scored OV 4 because any potential error was harmless.
    Failing to advance a meritless argument or to raise a futile objection does not constitute
    ineffective assistance of counsel. People v Snider, 
    239 Mich. App. 393
    , 425; 608 NW2d 502
    (2000). Absent any showing of prejudice, resentencing is not required.
    We affirm.
    /s/ Peter D. O'Connell
    /s/ Elizabeth L. Gleicher
    /s/ Mark T. Boonstra
    -11-
    

Document Info

Docket Number: 330304

Filed Date: 4/11/2017

Precedential Status: Non-Precedential

Modified Date: 4/17/2021