People of Michigan v. Jeremy Lee Williams ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2020
Plaintiff-Appellee,
v No. 345096
Saginaw Circuit Court
JEREMY LEE WILLIAMS, LC No. 17-044434-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.
PER CURIAM.
Defendant appeals by right his convictions by a jury of one count of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(2)(b) (penetration of a person under age 13 by an
individual age 17 or older), and one count of accosting a child for immoral purposes, MCL
750.145a. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10,
to concurrent terms of 300 to 600 months’ imprisonment for his CSC-I conviction and 28 to 72
months’ imprisonment for his accosting a child for immoral purposes conviction.1 We affirm.
I. BACKGROUND
Defendant and his wife, Connie Williams, were charged separately with CSC-I and
accosting a child for immoral purposes for offenses they committed against their daughters. At
trial, one of defendant’s daughters testified that when she was six years old defendant called her
from her upstairs bedroom and when she arrived downstairs he grabbed her and pulled her into his
and Connie’s downstairs bedroom, locked the door, and had anal intercourse with her. Connie
separately arranged for unknown, older men to come to the house and have anal intercourse with
1
This Court denied without prejudice defendant’s motion to remand on the grounds similar to the
main issues on which he bases his appeal. People v Williams, unpublished order of the Court of
Appeals, entered May 7, 2019 (Docket No. 345096).
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that same daughter for money. Connie’s accosting a child for immoral purposes conviction arose
from her having their other daughter take sexually explicit photos of Connie.
Two Michigan State Police officers interviewed defendant. During defendant’s first
interview in May 2017, he denied to the trooper that he had a sexual relationship with one of his
daughters and accused her of lying about it. During his second interview with a sergeant in July
2017, the trooper from the first interview watched from another room via closed-circuit television.
Defendant initially denied that he had anal intercourse with his daughter but later admitted having
done so. The sergeant gave defendant a set of written questions based on defendant’s statements
during his interview. Defendant read the questions and wrote “yes” in answer to questions whether
he had anal intercourse with his daughter and that he told the truth about his actions. The sergeant
also drew a diagram of a penis, and defendant drew a line that indicated how far his penis
penetrated his daughter’s anus. Defendant also later affirmed to the trooper the admissions he
made to the sergeant.
At trial, defendant denied that he had sex with his daughter or that he ever had a sexual
relationship with her. Defendant testified that the admissions he made to the sergeant and the
trooper were false because he “was scared” and “didn’t know what to do.” Defendant also stated
that he made a false admission to the trooper because he feared for his daughter’s life.
II. JOINT TRIAL
Defendant first argues that the trial court erred by trying him and Connie jointly before the
same jury. Defendant, however, did not object or move for separate trials. Absent such a motion
in the trial court, appellate review is generally precluded. People v Daniel, 207 Mich. App. 47, 53;
523 NW2d 830 (1994). Because defendant failed to raise this issue before the trial court, it is
unpreserved. Therefore, defendant may only obtain relief if he establishes that an (1) error
occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected his
substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). To establish that
his substantial rights were affected, defendant must show that the error caused him prejudice by
affecting the outcome of the lower court proceedings. Id. Reversal is only warranted “when the
plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. (quotation marks and citation omitted; alteration in original).
Joinder of these defendants’ trials was proper, and even if it had been inappropriate in this case,
any error did not affect defendant’s substantial rights.
A defendant does not have an absolute right to a separate trial. People v Hoffman, 205
Mich. App. 1, 20; 518 NW2d 817 (1994). A strong policy exists that favors the conduct of joint
trials in the interest of justice, judicial economy, and administration. People v Etheridge, 196 Mich
App 43, 52-53; 492 NW2d 490 (1992). The “joinder of distinct criminal charges” is permissible
against multiple defendants when “(1) there is a significant overlapping of issues and evidence,
(2) the charges constitute a series of events, and (3) there is a substantial interconnectedness
between the parties defendant, the trial proofs, and the factual and legal bases of the crimes
charged.” People v Missouri, 100 Mich. App. 310, 349; 299 NW2d 346 (1980). “Moreover, even
the improper joining of defendants for trial under separate offenses is not per se reversible error.”
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Id. Under MCL 768.5 and MCR 6.121(D), the trial court has discretion regarding trying criminal
defendants jointly. People v Hana, 447 Mich. 325, 346; 524 NW2d 682 (1994).
MCR 6.121 provides, in relevant part:
(A) An information or indictment may charge two or more defendants with
the same offense. It may charge two or more defendants with two or more offenses
when
(1) each defendant is charged with accountability for each offense, or
(2) the offenses are related as defined in MCR 6.120(B).
When more than one offense is alleged, each offense must be stated in a
separate count. Two or more informations or indictments against different
defendants may be consolidated for a single trial whenever the defendants could be
charged in the same information or indictment under this rule.
(B) On a defendant’s motion, the court must sever offenses that are not
related as defined in MCR 6.120(B).
(C) On a defendant’s motion, the court must sever the trial of defendants
on related offenses on a showing that severance is necessary to avoid prejudice to
substantial rights of the defendant.
(D) On the motion of any party, the court may sever the trial of defendants
on the ground that severance is appropriate to promote fairness to the parties and a
fair determination of the guilt or innocence of one or more of the defendants.
Relevant factors include the timeliness of the motion, the drain on the parties’
resources, the potential for confusion or prejudice stemming from either the number
of defendants or the complexity or nature of the evidence, the convenience of
witnesses, and the parties’ readiness for trial.
MCR 6.120(B) provides, in relevant part:
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
In Hana, 447 Mich. at 346-347 (quotation marks and citations omitted), our Supreme Court
explained:
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[S]everance should be granted only if there is a serious risk that a joint trial would
compromise a specific trial right . . . or prevent the jury from making a reliable
judgment about guilt or innocence.
* * *
Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substantial rights will be prejudiced
and that severance is the necessary means of rectifying the potential prejudice. The
failure to make this showing in the trial court, absent any significant indication on
appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of
a joinder decision.
As an initial matter, defendant and Connie were not charged with “accountability” for the
other’s offenses. MCR 6.121(A)(1). Therefore, their informations could be consolidated for a
single trial if each defendant could be charged in the same information or indictment under MCR
6.121(A)(2), meaning that the offenses were “related” as defined in MCR 6.120(B)(1).
In People v Williams, 483 Mich. 226, 234-235; 769 NW2d 605 (2009), our Supreme Court
concluded that a drug transaction on November 4, 2004, and a drug transaction on February 2,
2005, were part of a “ ‘single scheme or plan’ of drug trafficking.” The Court concluded that the
charges were “not ‘related’ simply because they were ‘of the same or similar character.’ ” Id. at
235. Rather, the charges “were related because the evidence indicated that defendant engaged in
ongoing acts constituting parts of his overall scheme or plan to package cocaine for distribution.”2
Id. “Common plan offenses . . . [are] dependent upon the existence of a plan that ties the offenses
together and demonstrates that the objective of each offense was to contribute to the achievement
of a goal not attainable by the commission of any of the individual offenses.” People v McCune,
125 Mich. App. 100, 103; 336 NW2d 11 (1983) (quotation marks and citation omitted).
In this case, defendant and Connie were separately charged with CSC-I and accosting a
child for immoral purposes. Respecting the CSC-I charges, although the allegations against
defendant and Connie involved the same victim, the charges stemmed from separate and distinct
events. The prosecution alleged that defendant committed CSC-I by using his penis to penetrate
his victim’s anus. The prosecution alleged that Connie committed CSC-I by aiding and abetting
men other than defendant to penetrate the same daughter’s anus.
With respect to the accosting a child for immoral purposes charges, the allegations against
defendant and Connie involved different conduct and different victims. The prosecution alleged
that defendant accosted one of his daughters to engage in sexual acts with him; whereas, the
prosecution alleged that Connie accosted the other daughter to take sexually explicit photos of
Connie.
2
The Williams Court analyzed an earlier version of MCR 6.120 which stated “the same conduct
or transaction” instead of “the same conduct.”
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While there were differences in the facts giving rise to the charges against defendants,
Jeremy and Connie Williams, the criminal acts of the two defendants, jointly tried, were
inextricably intertwined with one another. Defendant raped his daughter by penile anal penetration
in the family home. Defendant accosted this same daughter for immoral sexual purposes.
Defendant’s wife, Connie, with whom he was jointly tried, had their other daughter take sexually
explicit photos of Connie which she then transmitted. Connie also allowed other males to anally
rape defendant’s rape victim in the same place and manner as defendant did, and she also received
money for this. These horrific acts of depravity were connected together in place, manner and
their vile nature. They were properly tried together.3
The record reflects that the prosecution presented sufficient evidence from which
reasonable jurors could convict defendant of CSC-I and accosting a child for immoral purposes.
A defendant is guilty of CSC-I under MCL 750.520b(1)(a) if “(1) the defendant engaged in sexual
penetration with another person and (2) the other person was under 13 years of age.” People v
Lockett, 295 Mich. App. 165, 187; 814 NW2d 295 (2012). Under MCL 750.520a, “sexual
penetration” includes “anal intercourse[.]” Defendant’s victim’s testimony and defendant’s
admissions established that he committed the charged offense against his victim when she was
under 13 years old.
Similarly, the prosecution presented sufficient evidence to convict defendant of accosting
a child for immoral purposes. MCL 750.145a provides that “[a] person who accosts, entices, or
solicits a child less than 16 years of age . . . with the intent to induce or force that child . . . to
commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or
to any other act of depravity or delinquency, . . . is guilty of a felony . . . .” In this case, the
prosecution presented evidence that established that defendant called his victim down from her
room, pulled her into his bedroom, and had anal intercourse with her. The evidence established
that defendant accosted his victim who was under 16 years of age with the intent to induce or force
her to engage in sexual intercourse, a proscribed act. MCL 750.145a. Defendant is not entitled to
relief.
III. CLOSURE OF THE COURTROOM AND SUPPORT PERSON
Defendant argues that the trial court erred by closing the courtroom and by allowing a
support person to be in the courtroom during defendant’s victim’s testimony. When the
prosecution requested the closing of the courtroom and asked if defendant had any objection,
defense counsel responded, “No.” When the prosecution requested the allowance of a support
person during defendant’s victim’s testimony, defendant did not object or raise any issue before
the trial court. Defendant, therefore, failed to preserve these issues for appellate review.
Accordingly, we review these claims of error under the unpreserved, forfeited constitutional plain
error standard. People v Vaughn, 491 Mich. 642, 664; 821 NW2d 288 (2012). Defendant must
establish that an (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain
3
Even if there was merit to defendant’s arguments against the joint nature of his trial, he would be
entitled to no relief because he has failed to establish that the plain error resulted in the conviction
of an actually innocent defendant or that the error seriously affected the fairness, integrity or public
reputation of the proceedings independent of his innocence. Carines, 460 Mich. at 763.
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error affected the defendant’s substantial rights. Carines, 460 Mich. at 763. To establish that his
substantial rights were affected, defendant must show that the error caused him prejudice by
affecting the outcome of the lower court proceedings. Id. Reversal is only warranted if the plain,
forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity or public reputation of judicial proceedings independent of his innocence. Id.
Defendant argues that the trial court violated his Sixth Amendment rights under the United
States Constitution by closing the courtroom during his victim’s testimony. A criminal defendant
has both a state and federal constitutional right to a public trial. US Const Am VI; Const 1963, art
1, § 20. Although “a trial court is entitled to control the proceedings in its courtroom, it is not
entitled to do so at the expense of a defendant’s constitutional rights.” People v Johnson, 315
Mich. App. 163, 179; 889 NW2d 513 (2016). A defendant’s right to a public trial under the Sixth
Amendment is “limited”:
[T]he party seeking to close the hearing must advance an overriding interest that is
likely to be prejudiced, the closure must be no broader than necessary to protect
that interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure. [Vaughn,
491 Mich. at 653 (quotation marks and citations omitted).]
Defendant also vaguely asserts that the trial court violated his First Amendment rights
under the United States Constitution by closing the courtroom during his victim’s testimony. “[A]
member of the public can invoke the right to a public trial under the First Amendment.” Id. at 652.
However, “[b]ecause this case involves the accused who invoked his right to a public trial, albeit
after the fact, this case proceeds solely under the Sixth Amendment.” Id. (quotation marks and
citation omitted).
At the time of trial, MCL 600.2163a provided in relevant part:
(16) If upon the motion of a party made before trial the court finds on the
record that the special arrangements specified in subsection (17) are necessary to
protect the welfare of the witness, the court shall order those special arrangements.
In determining whether it is necessary to protect the welfare of the witness, the
court shall consider all of the following:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(c) The desire of the witness or the witness’s family or guardian to have the
testimony taken in a room closed to the public.
(d) The physical condition of the witness.
(17) If the court determines on the record that it is necessary to protect the
welfare of the witness and grants the motion made under subsection (16), the court
shall order 1 or more of the following:
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(a) All persons not necessary to the proceeding shall be excluded during the
witness’s testimony from the courtroom where the trial is held. The witness’s
testimony shall be broadcast by closed-circuit television to the public in another
location out of sight of the witness.
On the first day of trial, the prosecution made a pretrial motion to close the courtroom
“when the witness is testifying.” The record is unclear regarding to whom the prosecution referred.
The record is also unclear whether the trial court actually closed the courtroom during victim
witness testimony. Assuming that the trial court closed the courtroom during one of Connie’s
victim’s testimony as contended on appeal by defendant, the trial court committed plain error
because it never determined on the record as required under MCL 600.2163a(17) whether the
circumstances required closing the courtroom under MCL 600.2163a(16) to protect the welfare of
the victim.4
This error violated defendant’s Sixth Amendment right to a public trial. See Vaughn, 491
Mich. at 665. “[D]enial of the right to a public trial is a structural error . . . .” Id. at 666-667.
“[S]tructural errors are intrinsically harmful, without regard to their effect on the outcome . . . .”
Vaughn, 491 Mich. at 666 (quotation marks and citation omitted; ellipsis in original). “[A] plain
structural error satisfies the third Carines prong.” Id. at 666. In Vaughn, however, our Supreme
Court explained:
Nevertheless, even if defendant can show that the error satisfied the first
three Carines requirements, we “must exercise . . . discretion” and only grant
defendant a new trial if the error “resulted in the conviction of an actually innocent
defendant” or seriously affected the fairness, integrity, or public reputation of
judicial proceedings. [Id., quoting Carines, 460 Mich. at 763 (ellipsis in original).]
“Because defendant has not argued that he is actually innocent, we review his claim of
error only with regard to whether his conviction seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” See id. at 666 n 92. The focus is whether defendant was
denied the protections afforded by the Sixth Amendment. Id. at 667. “The goals sought by these
protections include (1) ensuring a fair trial, (2) reminding the prosecution and court of their
responsibility to the accused and the importance of their functions, (3) encouraging witnesses to
come forward, and (4) discouraging perjury.” Id.
In this case, the record does not support defendant’s contention that closing the courtroom
to the public during Connie’s victim’s testimony undermined the integrity of the proceedings or
affected the fairness, or public reputation of judicial proceedings independent of his innocence.
Connie’s victim’s testimony did not implicate defendant. In fact, she testified that defendant was
never around when she took explicit photos of Connie. Defendant has failed to show that the
4
The trial court also did not follow the requirements of MCR 8.116(D). The record does not
reflect that the prosecution filed a written motion and the trial court did not state on the record
specific reasons for its decision to limit access to the proceedings. See MCR 8.116(D)(1)(a) and
(c).
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closing of the courtroom in this case violated his right to a fair trial.5 See Vaughn, 491 Mich. at
667. Defendant, therefore, is not entitled to a new trial.
Similarly, defendant is not entitled to relief on the ground that the trial court permitted a
support person to accompany the witness. Under MCL 600.2163a(4), a victim of criminal sexual
conduct “who is called upon to testify shall be permitted to have a support person sit with,
accompany, or be in close proximity to the witness during his or her testimony.” The prosecution,
however, was obligated to provide notice of intent to use a support person. Id. In this case, the
prosecution made a pretrial motion to have a support person “inside the courtroom” during the
victim’s testimony but the record does not reflect that the prosecution provided the requisite notice
of intent. Assuming that the trial court allowed a support person’s presence in the courtroom
during the victim’s testimony, the trial court committed plain error because no evidence establishes
that the prosecution filed a notice of intent.6
Although the trial court plainly erred to the extent that it allowed a support person’s
presence during the victim’s testimony, defendant has failed to establish that the result of the
proceedings would have been different had the trial court not done so. Carines, 460 Mich. at 763.
The victim’s testimony did not directly implicate defendant, and the prosecution presented
sufficient evidence, separate from the victim’s testimony, to convict defendant of CSC-I and
accosting a child for immoral purposes. Defendant cannot establish his actual innocence, nor that
the trial court’s error seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Therefore, defendant is not entitled to relief.
IV. PIERCING THE VEIL OF JUDICIAL IMPARTIALITY
Defendant also argues that the trial court’s questioning of him pierced the veil of judicial
impartiality, depriving him of a fair trial. We disagree.
“The question whether a judge’s conduct has denied a defendant a fair trial is a question of
constitutional law that this Court reviews de novo.” People v Swilley, 504 Mich. 350, 370; 934
NW2d 771 (2019) (quotation marks and citation omitted). However, because defendant did not
object to the challenged conduct in the trial court, we review this argument for plain error affecting
substantial rights. Carines, 460 Mich. at 763.
“A trial judge’s conduct deprives a party of a fair trial if the conduct pierces the veil of
judicial impartiality.” People v Stevens, 498 Mich. 162, 164; 869 NW2d 233 (2015). “A judge’s
conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering
the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a party.” Id. at
171. In Stevens, our Supreme Court instructed:
5
Defendant does not appear to argue that closing the courtroom during Connie’s victim’s
testimony denied him any other Sixth Amendment protections.
6
The record also is unclear whether a support person attended the victim’s testimony.
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In evaluating the totality of the circumstances, the reviewing court should inquire
into a variety of factors, including the nature of the judicial conduct, the tone and
demeanor of the trial judge, the scope of the judicial conduct in the context of the
length and complexity of the trial and issues therein, the extent to which the judge’s
conduct was directed at one side more than the other, and the presence of any
curative instructions. This list of factors is not intended to be exhaustive.
Reviewing courts may consider additional factors if they are relevant to the
determination of partiality in a particular case. Moreover, the aggrieved party need
not establish that each factor weighs in favor of the conclusion that the judge
demonstrated the appearance of partiality for the reviewing court to hold that there
is a reasonable likelihood that the judge’s conduct improperly influenced the jury.
The reviewing court must consider the relevance and weigh the significance of each
factor under the totality of the circumstances of the case. [Id. at 172 (citation
omitted).]
In this case, after the prosecution finished cross-examination of defendant, the trial court
asked the following questions:
The Court: Mr. Williams, you indicated that you admitted or confessed
because you feared for your daughter’s life?
Defendant: I did.
The Court: How is that the admission or confession helped with your fear
for her life?
Defendant: Well, she was going—she was going through a lot, and I
didn’t—I felt like I didn’t want her to go through any more.
The Court: But how would that help that situation?
Defendant: Help in what way?
The Court: Well, you admitted and confessed, so you tell me how it would
help, in what way?
Defendant: Just relieve the pain that she would—I guess she would—it
would relieve the pressure of trying to find out who it is.
The Court: Okay. Anything else, Mr. White?
Mr. White [defendant’s counsel]: No, Your Honor. Thank you.
The Court: You may step down.
Under the totality of the circumstances, we cannot conclude that the trial court pierced the
veil of judicial impartiality. The trial transcript does not indicate that the trial court expressed a
hostile tone or demeanor, or expressed incredulity at defendant’s testimony. Rather, the record
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reflects that the trial court interjected questions to permit defendant to clarify his testimony.
Defendant’s testimony elicited during direct and cross-examination left unclear why his confession
arose from fear for the victim’s life. The trial court’s brief questioning for clarification did not
prejudice defendant’s case or undermine his defense.
Further, “the presence or absence of a curative instruction is a factor in determining
whether a court displayed the appearance of advocacy or partiality.” Stevens, 498 Mich. App. at
177. In this case, the trial court instructed the jury as follows:
My comments, rulings, questions, and instructions are also not evidence. It
is my duty to see that the trial is conducted according to the law and to tell you the
law that applies to this case. However, when I make a comment or give an
instruction, I’m not trying to influence your vote or express an opinion about the
case. If you believe that I have an opinion about how you should decide this case,
you must pay no attention to that opinion. You are the only judges of the facts, and
you should decide this case from the evidence.
Jurors are presumed to follow their instructions. Mahone, 294 Mich. App. at 212. Defendant
has not rebutted that presumption. Although “judicial conduct may so overstep its bounds that no
instruction can erase the appearance of partiality,” Stevens, 498 Mich. App. at 177-178, we conclude
that, under the totality of the circumstances in this case, the trial court’s conduct does not entitle
defendant to relief.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his counsel provided ineffective assistance by (1) failing to object to
the joint trial, (2) failing to object to the closure of the courtroom during the victim’s testimony,
and (3) failing to object to allowing a support person in the courtroom during a victim’s testimony.
We disagree.
To preserve a claim of ineffective assistance of counsel, a defendant must move for a new
trial or an evidentiary hearing.7 People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012).
Defendant did not move for a new trial or an evidentiary hearing in the trial court, nor did he so
move in this Court on the ground that his trial counsel failed to provide him effective assistance.
Therefore, our “review is for mistakes that are apparent on the record alone.” People v McFarlane,
325 Mich. App. 507, 527; 926 NW2d 339 (2018).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” Lockett, 295 Mich. App. at 187. To establish that his counsel provided
ineffective assistance, defendant must demonstrate 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 outcome would have been different.” People v Trakhtenberg, 493
Mich. 38, 51; 826 NW2d 136 (2012). A strong presumption exists that defense counsel performed
based upon a sound trial strategy. Lockett, 295 Mich. App. at 187. “A particular strategy does not
7
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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constitute ineffective assistance of counsel simply because it does not work.” People v Matuszak,
263 Mich. App. 42, 61; 687 NW2d 342 (2004).
In this case, defendant cannot overcome the presumption that defense counsel provided
him effective assistance. Respecting his contention that his counsel failed to provide effective
assistance by not objecting to the plain errors committed by the trial court, although we are not
fully persuaded, we will assume that defense counsel’s performance fell below an objective
standard of reasonableness. Nevertheless, defendant has not established that, but for his counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different. A “reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Strickland v Washington, 466 U.S. 668, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). The
record in this case indicates that the prosecution presented sufficient evidence, including
defendant’s victim’s testimony and witness testimony regarding his confession, that reasonable
jurors could find established beyond a reasonable doubt defendant’s guilt of the charged offenses.
The record does not establish that a reasonable probability exists that the outcome would have
been different but for defense counsel’s performance. Accordingly, defendant has failed and
cannot establish his claim of ineffective assistance of counsel.
VI. OFFENSE VARIABLES
Defendant argues that he is entitled to resentencing because of purported errors in his
sentencing guidelines scoring.
Because rescoring would not change defendant’s minimum sentence, he is not entitled to
remand. Likewise, even if we were to conclude that the trial court misscored all of the offense
variables (OVs) defendant asserts were incorrect, remand is unnecessary because, as part of his
concurrent sentencing, defendant must serve the statutory minimum sentence for his CSC-I
conviction. MCL 750.520b(2)(b) provides that when an individual who is at least 17 years old
commits CSC-I against an individual under 13 years old, he has committed a felony punishable
“by imprisonment for life or any term of years, but not less than 25 years.” Consequently, even if
we were to remand for resentencing, there would be no practical impact on the minimum sentence
that defendant must serve. Therefore, providing defendant the remedy he seeks regarding OV
scoring will not change the minimum term of his imprisonment. Moreover, in a case like this
involving multiple concurrent convictions, the sentencing guidelines apply only to the highest-
crime-class conviction, and the trial court was only required to score the highest-class offense.
People v Mack, 265 Mich. App. 122, 127-128, 130; 695 NW2d 342 (2005). Here, defendant’s
highest-crime-class offense was CSC-I, a Class A offense. See MCL 777.16y. Accosting a child
for immoral purposes is a Class F offense. See MCL 777.16g. Accordingly, the trial court was
not required to apply the guidelines to his accosting a child for immoral purposes offense.
Defendant does not argue that he is entitled to resentencing on his CSC-I conviction. Therefore,
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because the trial court was statutorily obligated to impose a minimum sentence of at least 25 years’
imprisonment for his CSC-I conviction, defendant’s scoring challenges lack merit and he is not
entitled to resentencing.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
/s/ James Robert Redford
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