                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                UNPUBLISHED
                                                                March 17, 2015
              Plaintiff-Appellee,

v                                                               No. 318972
                                                                Wayne Circuit Court
COREY KENT HORN,                                                LC No. 12-009793-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                               No. 318975
                                                                Wayne Circuit Court
COREY KENT HORN,                                                LC No. 13-001862-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

       In Docket No. 318972, defendant appeals by right his jury trial convictions of
kidnapping, MCL 750.349(1)(c), two counts of first-degree criminal sexual conduct,
MCL 750.520b(1)(c) (sexual penetration occurring during any other felony), and armed robbery,
MCL 750.529. Defendant was sentenced to 17 to 50 years’ imprisonment for each of his
convictions. In Docket No. 318975, defendant appeals by right his jury trial convictions of
kidnapping, MCL 750.349(1)(c), and two counts of first-degree criminal sexual conduct,
MCL 750.520b(1)(c) (sexual penetration occurring during any other felony). Defendant was




                                             -1-
sentenced 25 to 50 years’ imprisonment for each of his convictions.1 We affirm in both docket
numbers.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

      The two cases arise from defendant’s sexual assaults of LK (Docket No. 318972) and ES
(Docket No. 318975).

                                    A. DOCKET NO 318972

        On September 7, 2012, LK went for a walk in the afternoon. LK was walking from her
home near Nine Mile and Van Dyke to a car dealership in the area of Eight Mile and Van Dyke.
As LK was walking, she and defendant passed each other on the street. Defendant asked LK if
she was “looking for a boy or girl.” LK understood that “boy” referred to heroin and “girl”
referred to cocaine. LK turned around and told defendant that she did not use heroin or cocaine,
but that she did smoke marijuana. LK then told defendant that if he knew where LK and
defendant could obtain marijuana, LK and defendant could smoke a “blunt” together.

        At that time, defendant began walking with LK. As LK and defendant walked, they
started a friendly conversation and defendant told LK that his name was Howard. Defendant
gave his phone number to LK and she programmed his phone number into her cell phone so that
she could purchase marijuana from defendant in the future. During the conversation, LK told
defendant that she was not a prostitute. As LK and defendant walked, they stopped at a gas
station to purchase an orange soda and cigarillos, so that LK could roll marijuana in the cigarillos
to smoke.

        Defendant and LK then walked to an abandoned house in the area of Seven Mile and Van
Dyke. LK walked into the house and into the bedroom. Defendant went into another room in
the house, emerged with a gun in his hand, and told LK to give him her money. LK gave
defendant the money she had in her jeans, which LK estimated to be $11. Defendant then told
LK to get undressed and to “take her pants down.” LK complied; defendant then ordered LK to
perform oral sex on him. LK got on her knees and defendant put his penis in her mouth. After a
while, defendant took his penis out of LK’s mouth and told her to get on the bed, and to bend
over. Defendant penetrated LK’s vagina with his penis. At some point, defendant removed his
penis, and LK got off the bed and pulled up her pants. Defendant then asked LK, “Where’s the
money?” LK stated that she did not have any more money. LK then began searching through
her purse to find more money. Seeing her bottle of mace, LK grabbed the bottle and sprayed
defendant in the face until he ran from the house.

       LK’s medical examination revealed no injuries. Defendant’s DNA was not found in
LK’s mouth, underwear, or vagina. A forensic expert testified that it is possible for a person to
be penetrated in the vagina and not find a donor’s DNA on a vaginal swab, particularly when


1
  On April 16, 2014, this Court entered an order consolidating defendant’s appeals. People v
Horn, unpublished order of the Court of Appeals, entered April 16, 2014 (Docket Nos. 318972
and 318975).

                                                -2-
ejaculation does not occur. Even when ejaculation does occur, it is possible that a donor’s DNA
will not be found on a vaginal swab.

         The prosecution read into evidence defendant’s testimony from his previous trial.2
Defendant denied raping LK and testified instead that he had paid LK for sex. Defendant further
testified that LK told him that it would cost $80 dollars for oral and vaginal sex, that he paid her
$40 dollars and told her he would give her the rest later, and that he gave her his cell phone
number.

                                     B. DOCKET NO. 318975

       In the afternoon on August 27, 2012, ES rode her bike to several restaurants in the area of
Seven Mile and Van Dyke to pick up job applications. When ES came to the intersection of Van
Dyke and Emery, she got off of her bike, and stood “there for a minute, waiting” to cross the
road. She heard footsteps and was grabbed from behind by defendant. Defendant “pushed” a
gun into ES’s ribcage. Defendant told ES, “If you scream, I’ll knock you out for the next guy.”

       Defendant then “dragged” and “pulled” ES to an abandoned house. ES tried to resist, but
she could not get away from defendant. Defendant dragged ES to the front door of the house and
pulled her up the steps. Defendant grabbed ES by her arms and waist, and took her up to the
second story of the house. Defendant pushed ES into a room, pointed a black gun at her head,
and said, “Take your [expletive] clothes off.” ES reached into her pocket and grabbed her cell
phone to call 911. Defendant slapped ES’s cell phone out of her hand and repeated his demand
that ES take off her clothes. ES complied.

        After ES was undressed, defendant indicated with his gun for ES to go into the bathroom.
ES walked into the bathroom and defendant told her to stop. Defendant attempted to insert his
penis into ES’s mouth, but ES kept her mouth closed. Defendant then forced his penis into ES’s
anus and vagina. ES was unsure whether defendant ejaculated. After defendant removed his
penis from her vagina, he told ES to get dressed and to leave within 40 seconds. Defendant then
grabbed ES’s cell phone and left the house. ES put on her clothes, went downstairs, walked
outside, and started to walk back home.

        As ES was walking, a neighbor3 asked ES whether she was okay. ES told the neighbor
that she had “just got raped.” The neighbor accompanied ES to ES’s house to make sure that she
made it home safely. Once ES was in her house, she called her ex-boyfriend, Carter4, and told
him what had happened.




2
 Defendant was previously tried for the same offenses against both victims and testified on his
own behalf. The prior trial resulted in a mistrial.
3
    The neighbor’s name is not mentioned in the transcripts.
4
 Carter is only identified in the transcripts as “Carter,” with no mention of any other first or last
name.

                                                 -3-
         A medical examination revealed a tear within ES’s labial opening. A forensic biologist
testified that DNA found on a vaginal swab taken from ES matched that of defendant.

       The prosecution again read into evidence defendant’s testimony from his previous trial.
Defendant denied raping ES. Defendant testified that he had paid ES for sex and that ES had
inquired about purchasing heroin. Defendant denied having a gun, forcing ES into the
abandoned house, or forcing ES to have sex.

       Defendant was arrested in possession of a gun. The jury convicted defendant as
described above. This appeal followed. On appeal, defendant asserts that the verdicts in both
cases were against the great weight of the evidence.

                                  II. STANDARD OF REVIEW

        With respect to a case tried before a jury, an objection going to the weight of the evidence
is preserved by a motion before the trial court for a directed verdict or new trial. People v
Cameron, 291 Mich App 599, 618; 806 NW2d 371 (2011); People v Abraham, 256 Mich App
265, 269; 662 NW2d 836 (2003). Defendant failed to preserve this issue. Therefore, review of
the issue is limited to plain error affecting defendant’s substantial rights. People v Musser, 259
Mich App 215, 218; 673 NW2d 800 (2003), citing People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).

       In order for a defendant to establish plain error, the defendant must show that (1) an error
must have occurred, (2) the error was plain, clear or obvious, and (3) the plain error affected the
defendant’s substantial rights. Carines, 460 Mich at 763. The third requirement requires a
showing of prejudice. Id. To show prejudice, the error must have affected the outcome of the
lower court proceedings. Id.

                          III. GREAT WEIGHT OF THE EVIDENCE

         A new trial may be granted on some or all of the issues in a trial if the verdict is against
the great weight of the evidence. People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75
(1998). When reviewing a claim that a verdict is against the great weight of the evidence, this
Court must review the entire body of proofs. People v Lemmon, 456 Mich 625, 638-639; 576
NW2d 129 (1998). The test is whether the evidence preponderates so heavily against the verdict
that it would be a miscarriage of justice to allow the verdict to stand. Gadomski, 232 Mich App
at 28. Conflicting testimony and credibility issues are an insufficient ground for granting a new
trial absent exceptional circumstances. Lemmon, 456 Mich 625 at 642. Exceptional
circumstances include where the testimony contradicts indisputable physical facts or laws, the
testimony is patently incredible or defies physical realities, the testimony is material and is so
inherently implausible that it could not be believed by a reasonable juror, or the testimony has
been seriously impeached such that it was deprived of all probative value and the case is marked
by uncertainties and discrepancies. Id. at 642-644, 647.

                                      DOCKET NO. 318972

        Defendant argues in Docket No. 318972 that LK’s testimony is “bizarre and incredible”
and also argues that the lack of DNA evidence supports his contention that his conviction was
against the great weight of the evidence. We disagree.
                                               -4-
        LK testified that while she was upstairs in the abandoned house, defendant entered her
room with a gun in his hand, told LK to give him any money she had, took the money that she
then surrendered to him, directed LK to get undressed and to “take her pants down,” and forced
oral and vaginal sex upon her. The jury could reasonably find that defendant restrained LK,
robbed her at gunpoint, and committed criminal sexual conduct. The only specific testimony of
LK that defendant identifies as supposedly “bizarre and incredible” is her testimony that she told
defendant “out of the blue” that she was not a prostitute, whereas defendant testified that she told
him that she was a prostitute. Defendant further appears to imply that LK’s marijuana use,
which was presented to the jury, rendered her testimony patently incredible. Finally, defendant
appears to imply that LK’s testimony that she was only intimate with one man is inconsistent
with DNA testing results, which revealed two donors other than LK and defendant. However,
conflicting testimony and credibility issues are insufficient grounds for granting a new trial
absent exceptional circumstances. Lemmon, 456 Mich 625 at 642. No such exceptional
circumstances exist in this case. Further, none of the alleged inconsistencies relate to proof of
the crimes for which defendant was convicted. Therefore, the evidence does not preponderate so
heavily against the verdict that it would be a miscarriage of justice to allow it to stand.
Gadomski, 232 Mich App at 28. There was no plain error requiring reversal.

                                      DOCKET NO. 318975

        Defendant argues in Docket No. 318975 that ES’s testimony contains “many
inconsistencies” that “strain credulity.” Defendant points to the fact that ES initially admitted to
using heroin but later denied heroin use at trial, that she testified on previous occasions to having
told her neighbor she “had an accident” rather than was raped, and that she had described
defendant to police on the day of the incident as “friendly” but later testified that he had
threatened her. Defendant also makes reference to ES’s testimony that she had memory
problems and could not remember specifically what time the incident occurred. Finally,
defendant refers to the fact that ES did not identify defendant from a photographic lineup.

       Although inconsistent in some respects, ES’s testimony was not so seriously impeached
as to deprive her testimony of all probative value. ES’s memory issues and inconsistency in
testimony were presented to the jury. ES made an in-court identification of defendant as the man
who had raped her. The jury was presented with the fact that ES had identified another man in
an earlier photographic lineup, and defendant does not allege that the in-court identification
lacked an independent basis for admission. See People v Gray, 457 Mich 107, 115; 577 NW2d
92 (1998). Again, conflicting testimony and credibility issues are insufficient grounds for
granting a new trial absent exceptional circumstances. Lemmon, 456 Mich 625 at 642. Because
exceptional circumstances do not exist in this case, the evidence does not preponderate so
heavily against the verdict that it would be a miscarriage of justice to allow it to stand.
Gadomski, 232 Mich App at 28. There again was no plain error requiring reversal.

       Affirmed in both docket numbers.

                                                              /s/ Mark T. Boonstra
                                                              /s/ David H. Sawyer
                                                              /s/ Peter D. O’Connell



                                                -5-
