                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 30, 2015
               Plaintiff-Appellee,

v                                                                  No. 321904
                                                                   Ottawa Circuit Court
MARK STEVEN-RANDALL HARRIS,                                        LC No. 14-038019-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and STEPHENS, JJ.

PER CURIAM.

       Defendant appeals as of right his jury-trial convictions and sentences on two counts of
felonious assault, MCL 750.82, one count of possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b, one count of first-degree criminal sexual conduct (CSC
I), MCL 750.520b(1)(e) (actor armed with a weapon), two counts of false imprisonment, MCL
750.349b(1)(a) (restraint by means of a weapon), and one count of assault by strangulation, MCL
750.84(1)(b). He was sentenced to 2 to 4 years’ imprisonment for the felonious assault
convictions, 2 years’ imprisonment for the felony-firearm conviction, 275 to 500 months’
imprisonment for the CSC I conviction, 90 to 180 months’ imprisonment for the false
imprisonment convictions, and to 80 to 120 months’ imprisonment for the strangulation
conviction. We affirm.

       Defendant assaulted his estranged wife at gunpoint in her apartment, and he engaged in
unlawful acts of strangulation, digital-vaginal penetration, and cunnilingus during the attack.
The sister of defendant’s estranged wife arrived at the scene following the sexual assault.
Defendant then assaulted and falsely imprisoned her at gunpoint.

        On appeal, defendant, in a Standard 4 brief, argues that trial counsel was ineffective for
failing to investigate and call to the stand three potential witnesses who could have testified in
support of his defense that he did not commit any offenses against his estranged wife. In support
of his argument, defendant attached to his appellate brief the purported “affidavits” of the
prospective witnesses. Defendant’s argument fails on multiple levels. First, the documents
attached to defendant’s brief do not conform to the requirements of an affidavit. See MCR
6.001(D); MCR 2.119(B). Second, the documents are riddled with hearsay, contain statements
that are cumulative relative to the trial testimony or are otherwise inadmissible, and they are at
points incomprehensible. Third, the documents are not part of the record. See People v Powell,

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235 Mich App 557, 561 n 4; 599 NW2d 499 (1999) (“it is impermissible to expand the record on
appeal”). Fourth, given the problematic nature of the documents, defendant has not shown that
counsel’s performance was deficient, failing to overcome the strong presumption that counsel’s
decisions constituted sound trial strategy. People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001). Fifth, given the problematic nature of the documents, defendant has failed to establish
the factual predicate for his claim. Id. And sixth, considering the substance of the purported
“affidavits” and the evidence produced at trial, defendant has failed to establish that, but for any
assumed error on counsel’s part, defendant would have been acquitted. Id.

        Defendant also argues in his Standard 4 brief that trial counsel was ineffective by
“opening the door” to the issue whether defendant was upset with his estranged wife
immediately prior to the offense, that the prosecutor committed misconduct by cross examining
defendant on that issue, and that counsel was ineffective for failing to object to the prosecutor’s
cross-examination. The issue pertained to evidence regarding defendant’s discovery, shortly
before the assault, of a text message on his estranged wife’s old cellular telephone casting doubt
on defendant’s parentage of their daughter. The evidence had a bearing on defendant’s state of
mind and spoke to the question of motive; it was very relevant, MRE 401-402, and the
evidence’s probative value was not substantially outweighed by the danger of unfair prejudice,
MRE 403. Moreover, the evidence did not run afoul of MRE 404(b), considering that MRE
404(b) applies only to an individual’s “other crimes, wrongs or acts,” that “intent” and “motive”
are proper purposes to admit evidence under the express language of MRE 404(b) even if the
rule was implicated, that the evidence was not employed to show propensity or “character to
conduct,” People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), and that the evidence
was essential to giving “the jury an intelligible presentation of the full context in which disputed
events took place,” People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996). Accordingly,
trial counsel’s performance was not deficient, nor has prejudice been shown, Carbin, 463 Mich
at 600, and the prosecution did not commit misconduct in eliciting evidence on the issue, People
v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007).

        Next, defendant raises several arguments concerning sentencing. He first contends that
the trial court erred in assessing 50 points for offense variable (OV) 11, MCL 777.41, which
requires a 50-point score when “[t]wo or more criminal sexual penetrations occurred.” MCL
777.41(1)(a). While a trial court is required to “[s]core all sexual penetrations of the victim by
the offender arising out of the sentencing offense[,]” MCL 777.41(2)(a), the court is not
permitted to “score points for the 1 penetration that forms the basis of a first- or third-degree
criminal sexual conduct offense[,]” MCL 777.41(2)(c). Defendant maintains that there were two
criminal sexual penetrations, i.e., digital-vaginal penetration and cunnilingus, one of which
formed the basis of the CSC I conviction and thus cannot be considered. Therefore, according to
defendant, OV 11 should have been assessed at 25 points, which is the proper score when “[o]ne
criminal sexual penetration occurred.” MCL 777.41(1)(b).

       Under the sentencing guidelines, the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013); People v Rhodes (On Remand), 305 Mich App 85, 88; 849
NW2d 417 (2014). “ ‘Clear error is present when the reviewing court is left with a definite and
firm conviction that an error occurred.’ ” People v Fawaz, 299 Mich App 55, 60; 829 NW2d
259 (2012) (citation omitted). A preponderance of the evidence is “such evidence as, when

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weighed with that opposed to it, has more convincing force and the greater probability of truth.”
People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008). We review de novo “[w]hether
the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute . . . .”
Hardy, 494 Mich at 438; see also Rhodes, 305 Mich App at 88.

       “Vaginal penetration . . . and cunnilingus are considered separate sexual penetrations
when scoring OV 11 under MCL 777.41.” People v Johnson, 298 Mich App 128, 132; 826
NW2d 170 (2012). MCL 750.520a(r) defines “sexual penetration” as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a
person's body or of any object into the genital or anal openings of another person's body, but
emission of semen is not required.” When calculating the guidelines, a sentencing court may
rely on the presentence investigation report (PSIR) and testimony taken at trial or at the
preliminary examination. People v Althoff, 280 Mich App 524, 541; 760 NW2d 764 (2008).

        Here, there was evidence of digital-vaginal penetration and cunnilingus. Although
defendant’s estranged wife testified at trial that defendant inserted his finger into her vagina “one
time,” the PSIR indicated that, according to the victim, defendant “inserted his finger into her
vagina between 4 and 6 times.” Moreover, at the preliminary examination, defendant’s
estranged wife testified that defendant had also “tried to put” his penis inside her vagina, but
“had to stop” because he could not obtain an erection. At trial, she testified that defendant “tried
to put his penis in” her vagina, but he “just gave up” due to the lack of an erection. A reasonable
inference that arises from this testimony is that there was some contact and level of intrusion of
the victim’s vagina by defendant’s penis, however slight, in his failed attempt to engage in full
sexual intercourse, which would suffice as a penetration. MCL 750.520a(r). While a close call,
we cannot conclude, given the PSIR information of multiple digital penetrations and the
testimony regarding attempts at sexual intercourse, that the trial court committed clear error in
assessing 50 points for OV 11 on the basis that “[t]wo or more criminal sexual penetrations
occurred.” MCL 777.41(1)(a).

       Defendant next objects to the trial court’s assessment of 10 points for OV 9, MCL
777.39, which takes into account the number of victims. We need not decide this issue, because,
as conceded by defendant himself, even if OV 9 should have been assessed at zero points, it
would not alter the minimum sentence guidelines range. “Where a scoring error does not alter
the appropriate guidelines range, resentencing is not required.” People v Francisco, 474 Mich
82, 89 n 8; 711 NW2d 44 (2006). The reduction of 10 points with respect to OV level V of the
class A sentencing grid, which was the grid level at which defendant had been placed, would still
leave defendant at OV level V. MCL 777.62. Accordingly, resentencing is not warranted even
were OV 9 scored incorrectly.

        In regard to the alleged scoring errors discussed above, defendant argues that trial counsel
was ineffective for failing to raise the challenges below. In light of our rulings, defendant cannot
establish deficient performance with respect to OV 11, nor the requisite prejudice as to both OV
9 and OV 11. Carbin, 463 Mich at 600.

      Defendant finally contends that, pursuant to Alleyne v United States, __ US __; 133 S Ct
2151; 186 L Ed 2d 314 (2013), his constitutional rights under the Sixth and Fourteenth
Amendments to a jury trial and to have the prosecution prove its case beyond a reasonable doubt

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were violated, given that the trial court engaged in impermissible judicial fact-finding in regard
to various scoring variables. In Alleyne, the United States Supreme Court held that facts that
increase a mandatory minimum sentence must “be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2163. In People v Herron, 303 Mich App 392, 405; 845 NW2d 533
(2013), this Court rejected application of Alleyne to Michigan’s sentencing scheme. In People v
Lockridge, 304 Mich App 278; 849 NW2d 388 (2014), this Court acknowledged that it was
bound by Herron and therefore concluded that Alleyne did not impact sentencing in Michigan,
although two members of the panel voiced disagreement with Herron. Our Supreme Court
granted leave in Lockridge, 496 Mich 852 (2014), and is therefore holding Herron in abeyance,
846 NW2d 924 (2014). Defendant acknowledges Herron and Lockridge and presents this issue
merely for purposes of preservation. We reject defendant’s argument in light of the fact that we
currently remain bound by Herron and Lockridge. MCR 7.215(J)(1). Defendant’s associated
claim of ineffective assistance of counsel for failure to raise an Alleyne challenge below is
similarly rejected, considering the current status of the law.

       Affirmed.

                                                            /s/ Jane E. Markey
                                                            /s/ William B. Murphy
                                                            /s/ Cynthia Diane Stephens




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