            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 19, 2019
              Plaintiff-Appellee,

v                                                                  No. 343545
                                                                   Macomb Circuit Court
ROBERT JAMES KARDASZ,                                              LC No. 2017-002252-FC

              Defendant-Appellant.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

       Defendant, Robert James Kardasz, appeals as of right his jury trial conviction of first-
degree criminal sexual conduct (CSC), MCL 750.520b(1)(a) (penetration of a victim under 13
years of age).1 Kardasz was sentenced to 360 to 550 months’ imprisonment. We affirm
Kardasz’s conviction but vacate his sentence and remand for resentencing.

        Kardasz’s conviction stems from his sexual abuse of his then five-year-old daughter. The
victim alleged that Kardasz vaginally and orally penetrated her, and Kardasz was charged with
two counts of first-degree CSC. Kardasz’s theory at trial was that he did nothing wrong and that
the victim’s grandmother or mother must have coached the victim to lie about the abuse. The
jury convicted Kardasz for the count of CSC alleging oral penetration, but the jury was unable to
reach a unanimous verdict on the count alleging vaginal penetration. Kardasz was sentenced to a
term of imprisonment, and this appeal followed.




1
 The jury was unable to reach a unanimous verdict on a second count of first-degree CSC. The
prosecution decided not to retry Kardasz and moved to dismiss the second count of first-degree
CSC without prejudice. The trial court granted the motion.



                                               -1-
                              I. PROSECUTORIAL MISCONDUCT

        Kardasz argues that the prosecutor committed misconduct that affected his substantial
rights when the prosecutor made comments during her closing argument (1) that appealed to the
jury’s sympathy; (2) that bolstered the victim’s credibility; (3) that contained facts not in
evidence; and (4) that denigrated defense counsel. We agree that some of the prosecutor’s
comments were improper, but nonetheless conclude that Kardasz is not entitled to a new trial.

        “To preserve an issue of prosecutorial misconduct, a defendant must contemporaneously
object and request a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). Because that did not occur here, we apply the plain-error rule, which requires that
“1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An
error has affected a defendant’s substantial rights when there is “a showing of prejudice, i.e., that
the error affected the outcome of the lower court proceedings.” Id. Moreover, “once a defendant
satisfies these three requirements, . . . [r]eversal is warranted only 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. at 763-764 (quotation marks and citation omitted; alteration in original). A
defendant bears the burden of persuasion with respect to prejudice. Id. at 763. “We will not find
error requiring reversal if a curative instruction could have alleviated the effect of the
prosecutor’s misconduct.” People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014).

        “A prosecutor has committed misconduct if the prosecutor abandoned his or her
responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.”
Lane, 308 Mich App at 62. “A defendant’s opportunity for a fair trial can be jeopardized when
the prosecutor interjects issues broader than the defendant’s guilt or innocence.” People v
Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007). “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.” Id. at 64. “The propriety of a prosecutor’s remarks depends
on all the facts of the case.” People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002).
“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. Otherwise improper prosecutorial conduct
or remarks might not require reversal if they address issues raised by defense counsel.” Dobek,
274 Mich App at 64 (citations omitted).

                        A. APPEALING TO THE JURY’S SYMPATHY

        Kardasz first argues that the prosecutor impermissibly appealed to the jury’s sympathy in
her closing argument. “Appeals to the jury to sympathize with the victim constitute improper
argument.” People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). “The prosecutor
commits misconduct when he or she invites jurors to suspend their powers of judgment and
decide the case on the basis of sympathy or civic duty.” Lane, 308 Mich App at 66.




                                                 -2-
       During her closing argument, the prosecutor argued the following:

               So every victim in every crime loses something, whether it is money,
       whether it’s property, whether it’s time healing from wounds, sometimes it’s a
       loved one, but these cases are different. These cases cause a victim to lose a sense
       of trust. They lose a sense of self, they lose a sense of security. These are not
       cases that happen where they can be witnessed by someone else. These are cases
       that are not disclosed right away and many times there aren’t—these are cases
       that happen when no one else is around to protect the victim. These are cases that
       happen in the cloak of night, in a basement, when no one is there to protect a five
       or six year old. These cases are done by the assailant in a way that discourages
       disclosure.

               Your verdict of guilty will not restore [the victim] to her former self. She
       maybe [sic] going along in life and seemingly be handling life in a pretty good
       manner, and then, all of a sudden, hits a wall because of what happened to her in
       that basement at the hands of her father when she was five.

                [The victim] deserves the same opportunity to be believed that any other
       adult witness deserves. [The victim] deserves a verdict that speaks the truth and
       that is guilty as to both counts and I ask that, when you go back in the jury room
       and you think about this case and put all those pieces together, that you find
       [Kardasz] guilty of both counts of criminal sexual conduct in the first degree.

        We conclude that the prosecutor’s closing argument contained improper appeals to the
jury’s sympathy. More specifically, the prosecutor’s comments about the victim’s “former self”
and the lasting effects the sexual assault would have on her in the future served no purpose other
than to appeal to the jury’s sympathy. Similarly, the prosecutor’s generalizations about victims
of sexual assault seem to have no other purpose than to appeal to the jury’s sympathy. However,
the prosecutor did not urge the members of the jury to ignore the evidence or to suspend their
powers of judgment to convict on the basis of sympathy. See Lane, 308 Mich App at 66.
Rather, the prosecutor concluded her appeal to the jury’s sympathy by urging the jury to give the
victim the same consideration as they would an adult victim and to reach a verdict that “speaks
the truth.” See id. (finding the prosecutor’s request “to stand up for justice” for the victim was
not prosecutorial misconduct). Therefore, when considering the prosecutor’s arguments in
context, we conclude that the prosecutor did not abandon her responsibility to seek justice. See
id. at 62. Instead, the prosecutor urged the jury to find Kardasz guilty on the basis of the
evidence and its sense of judgment and that, as a result, the victim would have justice. See id. at
66. Consequently, Kardasz has failed to establish plain error.

        We further conclude that the standard jury instructions provided to the jury lessened any
remaining effect of the prosecutor’s inappropriate argument. We presume that jurors follow the
trial court’s instructions. People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330 (2009).




                                                -3-
        At the beginning of trial, the trial judge issued a standard preliminary instruction with
respect to what constitutes evidence:

              After all the evidence has been presented, the prosecutor and [Kardasz’s]
       lawyer will make their closing arguments. Like the opening statements, these are
       not evidence. They are only meant to help you understand the evidence and the
       way each side sees the case. You must base your verdict only on the evidence.

                                               ***

              Evidence includes only the sworn testimony of witnesses, the exhibits
       admitted into evidence, and anything else I tell you to consider as evidence.

       After closing arguments, the trial judge again issued the following standard instruction:

              Many things are not evidence. You must be careful not to consider them
       as such. I will now describe some of the things that are not evidence. . . . The
       lawyers[’] statements and arguments are not evidence. They are only meant to
       help you understand the evidence and each side’s legal theories. You should only
       accept things the lawyers say that are supported by evidence or by your own
       common sense and general knowledge. . . . You’re the only judges of the facts,
       you should decide the facts from evidence.

        Accordingly, the jury was instructed at the beginning and end of trial that the comments
that the prosecutor made during closing arguments did not constitute evidence. Additionally,
when issuing the final instructions, the trial court instructed the jurors that they must not let
sympathy or prejudice influence their decision. As already stated, jurors are presumed to follow
their instructions. See Gayheart, 285 Mich App at 210. Because we conclude that these
standard instructions were sufficient to cure any remaining prejudicial effect, Kardasz has failed
to establish plain error affecting his substantial rights.

        Kardasz also argues that the prosecutor appealed to the jury’s sympathy when she
explained the events the victim had to go through leading up to trial. Specifically, the prosecutor
stated the following during closing argument:

               So why should you believe [the victim]? She has no reason to lie. So why
       do kids lie? Well, kids lie for the same reason that adults lie, to get out of trouble,
       to stay out of trouble, to get attention, or to get someone else into trouble. So
       consider this: Since April 23rd, 2017, she has had to endure an invasive external
       genital exam in the emergency room at the age of five; she’s had to testify in two
       different courts; she’s had to be watched over by two different judge[s] in each of
       those courts; she’s been questioned by two lawyers about private parts on two
       different occasions . . .; she’s had to talk about these things in front of 14
       strangers in this forum, in this environment, with a microphone, so that everybody
       could hear all those intimate words that five, six year olds don’t like to say to
       anyone anyway; and, she’s had to do all that while [Kardasz] has been present.



                                                -4-
        We conclude that these arguments were not improper because they were used by the
prosecutor to support that the victim was credible, which was a key issue at trial. See People v
Jackson (On Reconsideration), 313 Mich App 409, 426; 884 NW2d 297 (2015) (citation
omitted) (“[A] prosecutor may comment on his own witnesses’ credibility during closing
argument, especially when there is conflicting evidence and the question of the defendant’s guilt
depends on which witnesses the jury believes.”). Further, as already stated, the trial court
instructed the jurors that they were to decide the case based on the evidence and not to let
sympathy or prejudice influence their decision. See Gayheart, 285 Mich App at 210.
Accordingly, Kardasz has failed to establish plain error affecting his substantial rights.

                       B. BOLSTERING THE VICTIM’S CREDIBILITY

      Next, Kardasz argues that the prosecutor improperly bolstered the victim’s credibility.
We disagree.

        A prosecutor may not vouch for the credibility of a witness to the effect that he has some
special knowledge that the witness is testifying truthfully. People v Seals, 285 Mich App 1, 22;
776 NW2d 314 (2009). A prosecutor may, however, argue from the facts in evidence that a
witness is worthy of belief. Dobek, 274 Mich App at 66.

       During closing arguments, the prosecutor highlighted the fact that the victim testified
without anyone else in the courtroom.2 Specifically, the prosecutor said “there was nobody here
influencing what she said, there was nobody here to encourage what she said, there was no one
here nodding their head yes, or shaking their head no.”

        We conclude that the prosecutor’s remarks were a proper response to Kardasz’s theory of
the case that the victim had been coached by her grandmother or mother to lie about the abuse,
see People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004), and a proper credibility
argument for the jury’s consideration, see Dobek, 274 Mich App at 66. Importantly, at no point
did the prosecutor imply that she had special knowledge that the victim was testifying truthfully.
Rather, the prosecutor simply pointed out that the victim’s grandmother and mother were not in
the courtroom during the victim’s testimony, which the jurors were able to observe on their own
during the victim’s testimony. Moreover, even if Kardasz could establish that the comments
amounted to improper bolstering, the jurors were instructed that the prosecutor’s arguments were
not evidence, that they were the only judges of the facts, and that they must decide which
witnesses they believed. As already stated, jurors are presumed to follow their instructions. See
Gayheart, 285 Mich App at 210. Thus, Kardasz has failed to establish plain error affecting his
substantial rights.




2
  Before trial, the prosecutor moved the trial court to close the courtroom to the public during the
victim’s testimony pursuant to MCL 600.2163a. Kardasz did not oppose the motion, and the
trial court granted the prosecutor’s motion. Accordingly, the victim’s mother and grandmother
were not present in the courtroom during the victim’s testimony.


                                                -5-
                            C. ARGUING FACTS NOT IN EVIDENCE

         Kardasz argues that the prosecutor argued facts not in evidence when she stated: “Why
else should you believe the details [the victim] provided you, details about an experience that a
six year old can’t provide you unless it happened to her? No six year old can describe the
mechanics of body position that is necessary for a penis to go inside a vagina, unless it happened
to her.” Kardasz contends this argument was improper because there was no testimony in
support of the prosecution’s assertion and because the prosecution’s repeated references to the
victim’s age was an improper appeal to the jury’s sympathy. We disagree given that “[i]t is well
known that factfinders may and should use their own common sense and everyday experience in
evaluating evidence.” People v Simon, 189 Mich App 565, 567; 473 NW2d 785 (1991). The
prosecutor’s argument that a six year old generally lacks detailed knowledge about the
mechanics of sexual intercourse was a permissible appeal to the jury to exercise its common
sense and everyday experience when evaluating the evidence, which the trial court instructed the
jury it should use.3 Additionally, the prosecutor’s reference to the victim’s age was not an appeal
to the jury’s sympathy. Rather, it was part of the prosecutor’s argument that the victim’s age-
inappropriate sexual knowledge was derived from the sexual assaults that Kardasz perpetrated on
the victim. 4 Furthermore, even if the prosecutor’s comment was improper, a jury instruction
could have cured any prejudice. See Lane, 308 Mich App at 62. Thus, Kardasz has not shown
plain error affecting his substantial rights.

                            D. DENIGRATING DEFENSE COUNSEL

       Kardasz next argues that the prosecutor improperly denigrated defense counsel when she
argued that defense counsel asked the victim the “wrong question” when he asked the victim if
the abuse happened “lots of times.” It is well established that a “prosecuting attorney may not
personally attack defense counsel,” People v McLaughlin, 258 Mich App 635, 646; 672 NW2d
860 (2003), or “suggest that defense counsel is intentionally attempting to mislead the jury,”
People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008) (citation omitted). Here,
however, the prosecutor did not personally attack defense counsel or suggest that he was
attempting to misled the jury. Instead, the prosecutor was offering a possible explanation about
why the victim’s testimony at trial differed from her testimony at the preliminary examination. 5
Furthermore, even if the prosecutor’s comment was improper, a jury instruction could have



3
    See M Crim JI 3.5(9).
4
  At no point did Kardasz attempt to admit evidence of the victim’s sexual history to support that
the victim’s age-inappropriate sexual knowledge came from a source other than Kardasz. See
People v Morse, 231 Mich App 424, 434; 586 NW2d 555 (1998) (holding that, under narrowly
drawn circumstances, evidence of a child’s prior sexual conduct is admissible to rebut “the
inferences that flow from a display of unique sexual knowledge. . .”).
5
  Based on the record before us, it appears that the victim was asked at the preliminary
examination if Kardasz sexually abused her “lots of times” and that the victim responded “no.”
When asked at trial, the victim agreed that the abuse occurred “lots of times.”


                                                -6-
cured any prejudice. See Lane, 308 Mich App at 62. Thus, Kardasz has not shown plain error
affecting his substantial rights.

                                  E. CUMULATIVE ERROR

       Finally, Kardasz argues in a cursory manner that he was “deeply prejudiced by the
cumulative effect of the prosecutor’s comments during closing [arguments].” To the extent that
Kardasz is attempting to argue cumulative error based on the prosecutor’s alleged misconduct,
the argument is waived because the issue was not stated in the statement of questions presented,
People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000), and Kardasz cites no authority
in support of the argument, People v Hanna, 223 Mich App 466, 470; 567 NW2d 12 (1997). To
the extent that we have considered the argument, we conclude that the minor errors identified
above did not aggregate to deny Kardasz a fair trial. See People v Ackerman, 257 Mich App
434, 454; 669 NW2d 818 (2003).

                                         II. SENTENCE

       Finally, Kardasz argues that he is entitled to resentencing because the trial court
sentenced him to a term of imprisonment that exceeded the 25-year statutory minimum without
explaining why an additional five years was proportionate. We agree.

        “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). The standard of review is abuse of discretion. People v Steanhouse, 500 Mich 453, 471;
902 NW2d 327 (2017). A trial court abuses its discretion when it applies a minimum sentence
that violates the principles of proportionality or “by failing to provide adequate reasons for the
extent of the departure sentence imposed.” Id. at 476.

       “[A] sentence is reasonable under Lockridge if it adheres to the principle of
proportionality set forth in [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)].” People v
Lampe, 327 Mich App 104, 126; 933 NW2d 314 (2019), citing People v Walden, 319 Mich App
344, 351; 901 NW2d 142 (2017). Factors that a trial court may consider under the
proportionality standard include the following:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [Lampe, 327 Mich App at 126, quoting Walden, 319
       Mich App at 330 (citation omitted).]

       In this case, Kardasz was convicted of first-degree CSC. The trial court scored the
guidelines and determined that Kardasz’s guidelines minimum sentence range was 108 to 180
months’ imprisonment. However, the statute under which Kardasz was convicted mandates a
minimum sentence of 25 years (300 months). See MCL 750.520b(2)(b). When sentencing
Kardasz to a minimum term of 30 years’ imprisonment, the trial court stated the following:



                                               -7-
                Policy of the State of Michigan favors individualized sentencing for every
       convicted defendant. The sentence must be tailored to fit the particular
       circumstance of the case, as well as the defendant. I did read the letters. The
       letters that I received proclaim your innocence and really that belies the evidence
       that the court heard at the trial. It also contradicts what I have within the pre-
       sentence investigative report.

               A big part of this defense, Mr. Kardasz, was that your daughter was
       somehow influenced by either her mother or grandmother and the fact is that I
       heard [the victim’s mother’s] testimony, she did not seem to have any ill will
       toward you, there is no reason to believe that there was any motivation on her part
       or her mother’s part to influence your daughter . . . to testify against you. The
       court does not see any reason for that to have occurred. The fact is, [the victim’s]
       grandmother didn’t even report this for months on, even after initially being
       confided in by [the victim]. The court just believes that sentiment on behalf of
       those that love you and have shared those letters with me just is not grounded in
       reason and in fact but emotion.

               And so the court really, really puts legal emphasis on what [the victim’s
       mother] just said, that [the victim] is having a hard time grasping this and in all
       candor the court is having a difficult time processing what had occurred, and the
       fact you did this to your own daughter, it just defies everything that we value as a
       father, what a father can value. I just can’t imagine how she is going to have to
       go through life with this in her past. She is going to have to live with this forever.
       And, as [the victim’s mother] just said, and she testified to in this trial, she misses
       her dad. It’s just, it’s beyond pale.

        The trial court’s sentencing rationale primarily focused on the emotional impact
Kardasz’s offense had, and would continue to have, on the victim and the father-daughter
relationship between herself and Kardasz. Kardasz’s familial relationship with the victim was a
factor that is not considered by the guidelines, and therefore could be used by the trial court to
justify its sentence. See Lampe, 327 Mich App at 126-127. However, the trial court did not
provide any explanation whatsoever as to why the sentence the court imposed was more
proportionate than a different sentence, such as the mandatory minimum, would have been.
Without further explanation, we cannot evaluate whether the sentence was proportionate to the
circumstances of the crime and Kardasz. Therefore, we remand for resentencing. See
Steanhouse, 500 Mich at 476. On remand, the trial court must either impose the 25-year
minimum sentence or, if it again decides to sentence Kardasz to a term of imprisonment that
exceeds the 25-year statutory minimum, the trial court must explain why such a sentence is
proportionate. In doing so, the trial court may consider factors that are not considered by the
guidelines.




                                                -8-
       Kardasz’s conviction is affirmed, but we vacate Kardasz’s sentence and remand for
resentencing. We do not retain jurisdiction.



                                                      /s/ Thomas C. Cameron
                                                      /s/ Mark J. Cavanagh
                                                      /s/ Douglas B. Shapiro




                                          -9-
