People of Michigan v. Maurice Jackson ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 21, 2021
Plaintiff-Appellee,
v No. 349960
Kalamazoo Circuit Court
MAURICE JACKSON, LC No. 2019-000344-FC
Defendant-Appellant.
Before: REDFORD, P.J., and MARKEY and BOONSTRA, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(a) and (2)(b) (sexual penetration of person under 13
years of age by individual 17 years of age or older), and two counts of second-degree criminal
sexual conduct (CSC II), MCL 750.520c(1)(a) and (2)(b) (sexual contact with person under 13
years of age by individual 17 years of age or older). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 25 to 50 years’ imprisonment for each of the
CSC I convictions and 10 to 30 years’ imprisonment for each of the CSC II convictions. Defendant
appeals by right. We affirm defendant’s convictions and sentences but remand for the ministerial
task of amending the presentence investigation report (PSIR).
I. FACTS
The complainant, TA, testified about a visit to defendant’s apartment when she was about
eight years old. Defendant and TA’s aunt resided together in the apartment. According to TA,
during the visit defendant rubbed her buttocks and back while she was attempting to sleep.
Subsequently, defendant and TA’s aunt moved into a new home joined by several family members.
TA, her siblings, and TA’s mother moved into the home, living there intermittently for a short
time. TA’s mother would regularly stay at her boyfriend’s home, leaving TA and her siblings at
their aunt’s home. When TA was not actually residing at her aunt’s home, she would often visit
there. TA testified that when she did stay at the home, defendant would regularly wake her by
rubbing the outside of her thigh. TA also described three or four incidents in which defendant
would walk in on her in the shower and briefly look at her before leaving. TA further testified
-1-
about two incidents that occurred at the home in 2017. TA indicated that on one occasion
defendant placed his penis on her mouth when she was lying in bed. She additionally testified
about a second occasion on which defendant vaginally penetrated her with his penis before turning
her over and anally penetrating her with his penis.
II. PROSECUTORIAL MISCONDUCT AND ASSOCIATED CLAIMS
OF INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that he was denied a fair trial as the result of several instances of
prosecutorial misconduct. Defendant’s attorney objected to only two of the claimed instances;
therefore, defendant bootstraps a claim of ineffective assistance of counsel for failure to object to
the other alleged instances of misconduct. Unpreserved issues are reviewed for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
Whether counsel was ineffective presents a mixed question of fact and constitutional law, and
factual findings are reviewed for clear error, whereas questions of law are reviewed de novo.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).1 In People v Dobek, 274 Mich App
58, 63-64; 732 NW2d 546 (2007), this Court observed:
Given that a prosecutor’s role and responsibility is to seek justice and not
merely convict, the test for prosecutorial misconduct is whether a defendant was
denied a fair and impartial trial. A defendant’s opportunity for a fair trial can be
jeopardized when the prosecutor interjects issues broader than the defendant’s guilt
or innocence. Issues of prosecutorial misconduct are decided case by case, and this
Court must examine the entire record and evaluate a prosecutor’s remarks in
context. The propriety of a prosecutor’s remarks depends on all the facts of the case.
1
In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), the Michigan Supreme
Court recited the well-established principles governing a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted
defendant must satisfy [a] two-part test . . . . First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not performing as the counsel guaranteed by the
Sixth Amendment. In so doing, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy. Second, the defendant
must show that the deficient performance prejudiced the defense. To demonstrate
prejudice, the defendant must show the existence of a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim. [Quotation marks and citations
omitted.]
An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
-2-
A prosecutor’s comments are to be evaluated in light of defense arguments and the
relationship the comments bear to the evidence admitted at trial. [Quotation marks
and citations omitted.]
Defendant first asserts that the prosecutor asked irrelevant and inflammatory questions on
several occasions. A prosecutor commits misconduct when he or she “demonstrates a deliberate
and concerted effort to introduce highly prejudicial but totally irrelevant material at trial for the
sole purpose of gaining a conviction at any cost.” People v Morgan, 86 Mich App 226, 227; 272
NW2d 249 (1978). But “[a] finding of prosecutorial misconduct may not be based on a
prosecutor’s good-faith effort to admit evidence.” Dobek, 274 Mich App at 76.
Defendant first complains, in extremely cursory fashion, that the prosecutor’s questions to
a prospective juror during voir dire were improper. Upon tactful and careful questioning by the
prosecutor, the prospective juror elaborated—to a limited extent—about being sexually abused
when she was younger. It appears that the prosecutor was merely attempting to determine whether
the prospective juror could be fair and impartial although we do believe that some of the questions
went beyond that necessary to make that assessment. Defendant, however, does not engage in any
factual or legal development of this issue; there is no analysis whatsoever. To the extent that the
issue has not been abandoned due to inadequate briefing, People v Kammeraad, 307 Mich App
98, 143; 858 NW2d 490 (2014),we conclude defendant has not established plain error affecting
his substantial rights, nor has he demonstrated deficient performance by counsel or the requisite
prejudice.
Defendant next asserts that the prosecutor asked an irrelevant question of DB, who was
called as a witness to present other-acts testimony accusing defendant of fondling her buttocks
when she was 12 years old as DB was attempting to sleep in the home of a mutual acquaintance.
Defendant takes issue with the following question posed by the prosecutor: “What is it about this
experience that you’ll never forget?” DB responded by speaking about her motivation to testify
and the psychological effect of the incident. In our view, the question was relevant to DB’s
credibility and there was nothing inherently improper about the query. See People v Layher, 464
Mich 756, 763; 631 NW2d 281 (2001) (evidence that bears on credibility is relevant and generally
admissible). We note that “[f]ailing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201;
793 NW2d 120 (2010). Moreover, there is no indication that the prosecutor asked the question in
bad faith. And, again, defendant does not adequately develop his argument. He has not established
plain error affecting his substantial rights, nor has he demonstrated deficient performance by
counsel or the requisite prejudice.
Defendant next argues that the prosecutor’s questions to Detective Kristin Cole about
defendant’s cell phones, Facebook profiles, and past residences were irrelevant and inflammatory.
We disagree. The questions concerned the results of Detective Cole’s investigation. In a search
of defendant’s residence, she found 50 mostly nonfunctioning cell phones. The detective also
testified that defendant had six Facebook accounts and had lived at several addresses, many in
different southern states. DB was living in Georgia when defendant fondled her, and defendant’s
Facebook profiles contained links to TA. Although, as the prosecutor notes, these aspects of
Detective Cole’s investigation did not generate direct evidence of defendant’s guilt, the questions
sought pertinent background information about the investigation into the offenses. Again,
-3-
defendant has not established plain error affecting his substantial rights, nor has he demonstrated
deficient performance by counsel or the requisite prejudice.
Next, defendant argues that the prosecutor attempted to elicit testimony from Detective
Cole that the trial court had already determined was inadmissible. Prior to trial, the court had ruled
that the prosecutor could not introduce exhibits from defendant’s phone describing his sexual
prowess or showing pornographic DVDs featuring “teen” actresses that had been found during the
search. The trial court found that the evidence was inadmissible because of its inflammatory
nature. At trial, the prosecutor asked Detective Cole whether she had found evidence indicating
“that Mr. Jackson was interested in underage females?” Defense counsel immediately objected,
stating, “I think we’re treading in some inappropriate areas.” The trial court sustained the
objection, and the question was never answered by Detective Cole. Although we are not prepared
to find that the prosecutor intentionally attempted to undermine the court’s pretrial ruling, there is,
minimally, an appearance of such an effort. But considering that the question was not a leading
question that suggested a particular answer, that the question was not answered, and that the
question did not directly concern the charged conduct, we cannot conclude that defendant was
denied a fair and impartial trial. Moreover, and obviously, defense counsel was not ineffective
given that he objected to the question posed by the prosecutor.
Defendant next argues that the prosecutor impermissibly asked Dr. Sarah J. Brown whether
she had made a diagnosis of child sexual abuse. Dr. Brown testified that she had no information
of a vaginal assault when she examined TA, that the report from the emergency department
indicated that TA denied that anything had happened to her vagina, that TA did not want her private
areas examined, that Dr. Brown honored those wishes, that she did examine TA’s abdomen, and
that nothing remarkable was found. The testimony concerning the abdominal examination was
elicited during cross-examination. On redirect examination, the prosecutor asked the following
question, “Okay and you did make a diagnosis of child sexual abuse in this case, didn’t you?”
Before Dr. Brown could answer, defense counsel objected, arguing that the question went beyond
the scope of cross-examination. The prosecutor replied that defense counsel had opened the door
by asking about TA’s diagnosis. The trial court quickly observed that the diagnosis concerned
TA’s abdomen. The court sustained the objection and instructed the jury to disregard the question.
We find the prosecutor’s question troubling because it suggested that Dr. Brown had
diagnosed child sexual abuse even though she had not conducted a vaginal or anal examination.
See People v Thorpe, 504 Mich 230, 235; 934 NW2d 693 (2019) (“[W]e hold that examining
physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed
with sexual abuse without physical evidence that corroborates the complainant’s account of sexual
assault or abuse because such testimony vouches for the complainant’s veracity and improperly
interferes with the role of the jury.”). Although a close call, we conclude that reversal is
unwarranted because, ultimately, defendant was not denied a fair and impartial trial. Even though
it was a leading question, Dr. Brown did not have an opportunity to answer the question. Also,
the trial court instructed the jury to disregard the question.2 Furthermore, given Dr. Brown’s
2
“Jurors are presumed to follow their instructions and instructions are presumed to cure most
errors.” People v Mann, 288 Mich App 122 n 23; 792 NW2d 53 (2010).
-4-
earlier testimony, the jury was aware that the doctor had not even conducted a physical
examination that could have revealed vaginal or anal penetration, likely leaving the jurors with the
impression that the doctor had not diagnosed that TA had suffered sexual abuse.
Defendant next argues that the prosecutor vouched for the truthfulness of TA in his closing
argument. A prosecutor may not vouch for the credibility of a witness by implying that he or she
has some special knowledge that the witness is testifying truthfully. Dobek, 274 Mich App at 66.
A prosecutor is, however, permitted to argue from the facts and testimony that a witness is credible
or worthy of belief. Id. We have reviewed the remarks cited by defendant and they very clearly
reflect that the prosecutor was arguing that TA was worthy of belief and credible on the basis of
the testimony and evidence presented at trial. Defendant has not established plain error affecting
his substantial rights, nor has he demonstrated deficient performance by counsel or the requisite
prejudice.
Defendant next contends that the prosecutor committed misconduct during his rebuttal
closing argument. One of TA’s cousins, NA, who may have witnessed one instance of abuse did
not testify, and the prosecutor argued to the jury that it could not speculate about what NA would
say. Defense counsel had noted in his closing argument that there was no explanation as to why
NA did not testify. Defendant now argues that the prosecutor’s statement contradicted the
principles in the missing witness or adverse inference instruction, M Crim JI 5.12, which the trial
court should have given but did not. M Crim JI 5.12 allows a jury to infer that a witness’s
testimony would have been unfavorable to the prosecution’s case. “A missing witness instruction
should be given if the trial court finds a lack of due diligence on the part of the prosecution in
seeking to produce an endorsed witness.” People v Everett, 318 Mich App 511, 527; 899 NW2d
94 (2017) (emphasis added). In this case, the prosecution did not endorse NA as a witness;
therefore, the issues concerning due diligence and M Crim JI 5.12 were not relevant. Moreover,
the prosecutor did not commit misconduct by simply observing that it was unknown what NA
would testify to had he taken the stand.
III. INEFFECTIVE ASSISTANCE OF COUNSEL UNASSOCIATED WITH
PROSECUTORIAL MISCONDUCT
Defendant argues that his trial attorney improperly counseled him not to testify. “The
decision to call or not call the defendant to testify is a matter of trial strategy.” People v Alderete,
132 Mich App 351, 360; 347 NW2d 229 (1984). There is nothing in the record regarding the
nature of any discussions between defendant and counsel regarding whether defendant should take
the stand. Defendant maintains that there was no good strategy for not presenting his side of the
story when the worst that could have happened was that the jury would not have found him
credible. This argument lacks logic because it is made with the benefit of hindsight. At the time
of trial, the worst that could have happened, from defendant’s perspective, had he testified is that
the jury could have found him to be incredible and a liar and convicted him even if TA’s testimony,
in and of itself, had not entirely convinced the jury of defendant’s guilt. We can only speculate
with respect to what would have occurred had defendant testified; it may have benefited him or
harmed him. We have no basis to assess whether counsel’s performance was deficient, nor
whether, assuming deficient performance, the failure to take the stand affected the outcome of the
-5-
proceedings. In sum, defendant cannot establish a claim of ineffective assistance of counsel
warranting reversal.
Defendant next contends that trial counsel should have presented the testimony of NA.3
Defendant submitted an affidavit with his brief on appeal averring that he asked his attorney to
call NA to testify. Defendant believed that NA would testify that he did not see defendant assault
TA and that the prosecutor did not call NA as a witness because he would have exculpated
defendant. Defendant, however, has presented no evidence whatsoever of what NA’s actual
testimony would have been. There is nothing in the record showing that trial counsel failed to
investigate calling NA as a witness, that counsel failed to make a reasoned decision not to call NA,
or that counsel failed to present evidence that was valuable to defendant.
IV. OTHER-ACTS EVIDENCE
Next, defendant contends that DB’s testimony regarding another act attributed to defendant
should not have been admitted because it was more prejudicial than probative. We review for
an abuse of discretion a trial court’s decision to admit evidence. People v Lukity, 460 Mich 484,
488; 596 NW2d 607 (1999). “When the decision regarding the admission of evidence involves a
preliminary question of law, such as whether a statute or rule of evidence precludes admissibility
of the evidence, the issue is reviewed de novo.” People v Washington, 468 Mich 667, 670-671;
664 NW2d 203 (2003). A trial court necessarily abuses its discretion when it makes an error of
law. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).
MCL 768.27a(1) provides that “in a criminal case in which the defendant is accused of
committing a listed offense against a minor, evidence that the defendant committed another listed
offense against a minor is admissible and may be considered for its bearing on any matter to which
it is relevant.” In People v Watkins, 491 Mich 450, 455-456; 818 NW2d 296 (2012), our Supreme
Court construed MCL 768.27a:
We hold that MCL 768.27a irreconcilably conflicts with MRE 404(b),
which bars the admission of other-acts evidence for the purpose of showing a
defendant’s propensity to commit similar acts, and that the statute prevails over the
court rule because it does not impermissibly infringe on this Court’s authority
regarding rules of practice and procedure under Const 1963, art 6, § 5. We also hold
that evidence admissible under MCL 768.27a remains subject to MRE 403, which
3
“Decisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of
counsel regarding matters of trial strategy.” People v Davis, 250 Mich App 357, 368; 649 NW2d
94 (2002). We cannot, however, insulate the review of counsel's performance by simply calling it
trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Initially, this
Court must determine whether strategic choices were made after less than complete investigation,
with any choice being reasonable only to the extent that reasonable professional judgment
supported the limitations on investigation. Id.; see also People v Ackley, 497 Mich 381, 389; 870
NW2d 858 (2015).
-6-
provides that a court may exclude relevant evidence if the danger of unfair
prejudice, among other considerations, outweighs the evidence’s probative value.
In applying the balancing test in MRE 403 to evidence admissible under MCL
768.27a, however, courts must weigh the propensity inference in favor of the
evidence’s probative value rather than its prejudicial effect.
MCL 768.27a permits the admission of “evidence that previously would have been
inadmissible, because it allows what may have been categorized as propensity evidence to be
admitted in this limited context.” People v Pattison, 276 Mich App 613, 619; 741 NW2d 558
(2007). The Watkins Court warned, however, that even though other-acts evidence can be admitted
under the statute to show propensity, this does not mean that other-acts evidence can never be
excluded under MRE 4034 as overly prejudicial:
There are several considerations that may lead a court to exclude such
evidence. These considerations include (1) the dissimilarity between the other acts
and the charged crime, (2) the temporal proximity of the other acts to the charged
crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5)
the lack of reliability of the evidence supporting the occurrence of the other acts,
and (6) the lack of need for evidence beyond the complainant’s and the defendant’s
testimony. This list of considerations is meant to be illustrative rather than
exhaustive. [Watkins, 491 at 487-488.]
Defendant does not argue that “listed” offenses were not involved, that the evidence was
irrelevant, or that the testimony was used for an improper purpose. Rather, defendant’s sole focus
is on MRE 403 and the assertion that MRE 403 barred admission of DB’s testimony. DB testified
that defendant fondled her buttocks when she was 12 years old as DB was attempting to sleep in
the home of a mutual acquaintance. In support of his argument under MRE 403, defendant
maintains that the “act” happened seven years ago, that no criminal charges were brought, that he
was not convicted of any felonies during the interim, that there was no need for the evidence
because TA testified, and that DB’s testimony was inflammatory.
The other-acts testimony concerned conduct that was extremely similar to defendant’s
actions in rubbing and fondling TA’s buttocks and thighs when she attempted to sleep. The victims
were both female and under the age of 13. The charged activity and the past activity were separated
by approximately six years, but this Court has found that a difference of 12 years was insufficient
to exclude other-acts evidence where the acts were similar. People v Solloway, 316 Mich App
4“Although relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
MRE 403. “All evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of
prejudice does not generally render the evidence inadmissible.” People v Mills, 450 Mich 61, 75;
537 NW2d 909 (1995). MRE 403 prohibits the admission of marginally probative evidence that
will likely be given undue weight—that is, “evidence which is minimally damaging in logic will
be weighed by the jurors substantially out of proportion to its logically damaging effect.” Id. at
75-76 (quotation marks and citation omitted).
-7-
174, 195; 891 NW2d 255 (2016) (“While the acts occurred some years apart, given how similar
the acts are, the temporal divide between their occurrences, standing alone, does not preclude the
evidence’s admission.”). DB’s testimony solely regarded a single act and there was no evidence
of intervening acts between the assault of DB and the instant offenses. On the other hand, the
testimony supporting the occurrence of the other act was reliable, as it came from DB herself, and
there was a need, though not absolute, for evidence beyond TA’s testimony, considering that there
was no supporting physical evidence nor were there any corroborating eyewitnesses.
The probative value of the testimony was significant, not just marginally probative, where
it tended to show defendant’s predatory interest in young girls and propensity to touch them in an
inappropriate sexual manner, thereby lending credibility to TA’s allegations. The trial court’s
decision to admit the testimony fell within the range of reasonable and principled outcomes.
Although the evidence was prejudicial, it was not unfairly so, and the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice. The trial court did
not abuse its discretion in allowing the admission of DB’s testimony.
V. PROPORTIONALITY AND CRUEL AND UNUSUAL PUNISHMENT
Defendant next argues that his 25-year minimum sentences for the CSC I convictions were
disproportionate and a violation of his constitutional protections against cruel and unusual
punishment. A minimum sentence of at least 25 years is mandated for the offense of CSC I when
the victim is under 13 years old and the perpetrator of the sexual penetration is 17 years of age or
older. MCL 750.520b(2)(b). We review de novo as an issue of law whether there has been a
violation of the protection against cruel and/or unusual punishment. People v Benton, 294 Mich
App 191, 203; 817 NW2d 599 (2011). But because the issue was unpreserved, our review is for
plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Article 1, Section 16, of the Michigan Constitution states that “[e]xcessive bail shall not be
required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted;
nor shall witnesses be unreasonably detained.” If a particular punishment is not cruel or unusual
under our state constitution, then it necessarily passes muster under the federal constitution.
Benton, 294 Mich App at 204. “[W]hether a penalty may be considered cruel or unusual is to be
determined by a three-pronged test that considers (1) the severity of the sentence imposed and the
gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan
law, and (3) a comparison between Michigan’s penalty and penalties imposed for the same offense
in other states.” Id., citing People v Bullock, 440 Mich 15, 33-34; 485 NW2d 866 (1992).
Under the Michigan Constitution, the prohibition against cruel or unusual punishment bars
the imposition of grossly disproportionate sentences. Bullock, 440 Mich at 32.5 The
5
We note that there is a distinction between “proportionality” as it relates to the constitutional
protection against cruel or unusual punishment, with such proportionality being presumed when a
-8-
proportionality test requires inquiry into whether the punishment is so excessive that it is
completely unsuitable in relation to the crime. People v Hallak, 310 Mich App 555, 572; 873
NW2d 811 (2015), rev’d in part on other grounds 499 Mich 879 (2016). The Hallak panel
observed:
The goal of rehabilitation is . . . a consideration. If the punishment thwarts
the rehabilitative potential of the individual offender and does not contribute toward
society’s efforts to deter others from engaging in similar prohibited behavior, it may
be deemed excessive. However, the need to prevent the individual offender from
causing further injury to society is an equally important consideration. In the end,
a penalty that is unjustifiably disproportionate to the crime or unusually excessive
should be struck down as cruel or unusual. [Hallak, 310 Mich App at 572
(quotation marks and citations omitted).]
“If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction
of the department of corrections, the court shall impose sentence in accordance with that statute,”
and “[i]mposing a mandatory minimum sentence is not a departure . . . .” MCL 769.34(2)(a).
“Legislatively mandated sentences are presumptively proportional and presumptively valid.”
People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011). And proportionate sentences
do not constitute cruel or unusual punishment. People v Powell, 278 Mich App 318, 323; 750
NW2d 607 (2008). A defendant can only overcome the presumption by presenting unusual
circumstances that would render a presumptively proportionate sentence disproportionate. People
v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013). “[S]tatutes are presumed to be
constitutional and must be so construed unless their unconstitutionality is readily apparent.”
People v Russell, 266 Mich App 307, 310; 703 NW2d 107 (2005) (quotation marks and citation
omitted).
Employing the three-pronged test from our Supreme Court’s decision in Bullock, cited
above, the panel in Benton, 294 Mich App at 203-207, held that the 25-year minimum sentence
imposed on the defendant under MCL 750.520b(2)(b), which is the provision at issue here, did not
constitute cruel or unusual punishment. We are bound by Benton. MCR 7.215(J)(1). Here, to the
extent that defendant’s constitutional challenge is an “as-applied” challenge and assuming that
further review is appropriate, the 25-year minimum sentences were not cruel or unusual.6 This
case stems from accusations that defendant repeatedly rubbed TA’s thighs and buttocks and
watched her in the shower. These actions ultimately led to defendant’s placing his penis on the
child’s mouth and later his committing both sodomy and penile-vaginal penetration. Under those
sentence is within the guidelines range, and “proportionality” as it relates to reasonableness review
of a sentence, which is not constitutional in nature. Bullock, 440 Mich at 34 n 17.
6
For a facial challenge, a “defendant has the onerous burden to prove that there is no set of
circumstances under which the statute is valid.” Hallak, 310 Mich App at 567. “While the facial-
challenge standard is extremely rigorous, an as-applied challenge is less stringent and requires a
court to analyze the constitutionality of the statute against a backdrop of the facts developed in the
particular case.” Id.
-9-
circumstances, a 25-year minimum sentence can in no way be defined as grossly disproportionate.7
Defendant certainly did not present evidence of unusual circumstances that would render the
presumptively-proportionate sentence of 25 years disproportionate, and we find no constitutional
violation.
We also reject defendant’s argument that the 25-year minimum sentences were not
proportional, which we are treating as an argument unassociated with any constitutional
protections. Although the minimum sentence guidelines range was 51 to 170 months for the CSC
I offenses and the 25-year minimum sentences exceeded the top end of that range, imposition of a
mandatory minimum sentence under a statute, as noted earlier, does not constitute a departure from
the guidelines. MCL 769.34(2)(a). Our Supreme Court in People v Milbourn, 435 Mich 630, 661;
461 NW2d 1 (1990), observed that “[j]ust as the guidelines may not be a perfect embodiment of
the principle of proportionality, so too may a sentence within the guidelines be disproportionately
severe . . . .” In light of the circumstances surrounding the offenses, which included defendant’s
sodomizing a child under age 13, and considering the circumstances surrounding the offender—
defendant has 11 prior misdemeanor and 4 prior felony convictions, the 25-year minimum
sentences were proportional. Id. at 636.8 The sentences were not disproportionality severe.
VI. PSIR ACCURACY
7
We conclude that the circumstances were more egregious than those in Benton, which entailed
the following situation:
According to the victim, he and defendant progressed from hugging, to
holding hands, to kissing, before eventually engaging in sexual intercourse. The
victim testified that he and defendant had sexual intercourse on two different
evenings in October 2007. After the second incident, the victim called defendant
from his home and inadvertently recorded the call. During the recorded call, the
victim referred to defendant as his girlfriend and stated that he was proud to be
involved with a grown woman. The victim's mother heard the recording and
reported it to the school. The school board later terminated defendant from her
teaching position and that decision was upheld by the tenure commission. [Benton,
294 Mich App at 194-195.]
8
With respect to defendant’s assertion that the trial court essentially gave him a life sentence when
defendant’s age is taken into consideration, our Supreme Court in People v Lemons, 454 Mich
234, 258-259; 562 NW2d 447 (1997), noted:
[W]e find no basis . . . for a requirement that the trial judge tailor every
defendant's sentence in relationship to the defendant's age. Persons who are sixty
years old are just as capable of committing grievous crimes as persons who are
twenty years old. We find no principled reason to require that a judge treat similar
offenses that are committed by similarly depraved persons differently solely on the
basis of the age of the defendant at sentencing where the Legislature has authorized
the judge to impose life or any term of years.
-10-
Defendant argues that his PSIR should be corrected. The “Department of Corrections
makes critical decisions concerning a defendant’s status on the basis of information contained in
the PSIR,” and thus “the PSIR should accurately reflect any determination the sentencing judge
has made regarding the accuracy or relevance of its information.” People v Waclawski, 286 Mich
App 634, 689-690; 780 NW2d 321 (2009). Defendant challenges the following statement in the
PSIR: “Juvenile Record: Yes.” He claims that he has no juvenile record. The prosecution agrees
that the PSIR should be corrected. When, as here, “the trial court did not rely on the challenged
information in the PSIR in sentencing defendant, resentencing is not required; rather, the remedy
is to remand for the limited purpose of correcting the PSIR.” People v Spanke, 254 Mich App 642,
650; 658 NW2d 504 (2003), overruled in part on other grounds by People v Barrera, 500 Mich
14, 17; 892 NW2d 789 (2017). Accordingly, this case must be remanded for the ministerial task
of correcting the statement in the PSIR regarding defendant’s juvenile record.
We affirm but remand for the ministerial task of correcting the PSIR. We do not retain
jurisdiction.
/s/ James Robert Redford
/s/ Jane E. Markey
/s/ Mark T. Boonstra
-11-