             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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      July 25, 2019
               Plaintiff-Appellee,

v                                                                     No. 342637
                                                                      Wayne Circuit Court
JAKE CUNNINGHAM,                                                      LC No. 17-002457-01-FC

               Defendant-Appellant.


Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions for three counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim was under 13 years of age), and
three additional counts of CSC-I, MCL 750.520b(1)(b)(ii) (victim was between 13 and 16 years
of age and related to defendant). Defendant was sentenced to 60 to 90 years’ imprisonment for
each CSC-I conviction. We affirm defendant’s convictions but remand for resentencing.

        This case arises from defendant’s sexual assault of his biological daughter, ZH. At trial,
ZH recounted how defendant would touch her breasts and vagina, starting when she was seven
years old. When ZH was nine years old, defendant started having sexual intercourse with ZH,
including oral sex. The assaults occurred every time ZH saw defendant and continued once ZH
turned 13 years old. Following the prosecution’s redirect-examination of ZH, the trial court did
not allow defendant to recross-examine ZH, on the basis that defendant did not have the burden
of proof.

        While the jury was deliberating, defendant left the courthouse. Defendant refused to
return, even after being told that the jury had reached its verdicts. Consequently, the trial court
took the jury’s verdicts without defendant being present.

        At sentencing, the trial court and the parties did not discuss the scoring of the prior record
variables or the offense variables (“OV”). Instead, the prosecution requested that the trial court
sentence defendant to 50 to 100 years’ imprisonment. Defense counsel stated that he agreed with
the prosecution that defendant’s minimum sentencing guidelines range was 171 to 285 months’
imprisonment but requested a sentence according to the statutory minimum, which was 25 years’


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imprisonment. The trial court imposed an out-of-guidelines sentence of 60 to 90 years’
imprisonment for each conviction.

                                 I. RECROSS-EXAMINATION

         Defendant argues that the trial court abused its discretion by preventing him from
recross-examining the prosecution’s witnesses and that the trial court’s denial deprived him of a
fair trial. We disagree.

         At the outset, this issue is not preserved for appellate review. While defendant objected
to the trial court’s decision to not allow him to recross-examine ZH, he did not object on grounds
that such a denial deprived him a fair trial. See People v Asevedo, 217 Mich App 393, 398; 551
NW2d 478 (1996) (“An objection based on one ground at trial is insufficient to preserve an
appellate attack based on a different ground.”). We review unpreserved constitutional issues for
plain error affecting defendant’s substantial rights. People v Kowalski, 489 Mich 488, 505; 803
NW2d 200 (2011). Under this standard, defendant has the burden to prove that there was a plain
or obvious error that affected the outcome of the proceedings. People v Shafier, 483 Mich 205,
219-220; 768 NW2d 305 (2009).

        “A primary interest secured by the Confrontation Clause [of the Sixth Amendment] is the
right of cross-examination.” People v Gaines, 306 Mich App 289, 315; 856 NW2d 222 (2014).
“Neither the Sixth Amendment’s Confrontation Clause nor due process confers on a defendant
an unlimited right to cross-examine on any subject.” People v Canter, 197 Mich App 550, 564;
496 NW2d 336 (1992). “Cross-examination may be denied with respect to collateral matters
bearing only on general credibility, as well as on irrelevant issues.” Id. (citations omitted). “A
limitation on cross-examination that prevents a defendant from placing before the jury facts from
which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes
denial of the constitutional right of confrontation.” People v Kelly, 231 Mich App 627, 644; 588
NW2d 480 (1998).

        On cross-examination, defendant raised the implication that ZH lied about the assaults to
get attention; that ZH did not mention the assaults in a letter she wrote to defendant; that
defendant disciplined ZH regarding telephone conversations that ZH had had; and that during her
Kids Talk interview, ZH did not mention going to hotels with defendant or defendant giving her
alcohol and pills. During cross-examination, defendant attempted to impeach ZH by reading
portions of her preliminary examination transcript where she did not mention alcohol or pills.
On redirect-examination, the prosecution raised the issues of whether anyone told ZH what to
say; whether ZH had a motive to lie about the sexual abuse; the fact that ZH did not mention
going to hotels with defendant; and that defendant gave ZH alcohol and pills before sexually
abusing her. Defense counsel requested an opportunity to recross-examine ZH, but the trial court
denied the request on the basis that defendant did not have the burden of proof at trial.

        The trial court was mistaken in its reasoning for denying recross-examination. Indeed,
the error was plain or obvious. There is no court rule flat-out prohibiting recross-examination for
criminal defendants, and the identity of the party with the burden of proof is irrelevant for
purposes of limiting cross-examination; instead, “[t]he judge may limit cross-examination with
respect to matters not testified to on direct examination.” MRE 611(c).

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       However, defendant has failed to show how this plain error affected the outcome of the
proceedings. Defendant does not state or identify the questions that he was prevented from
asking ZH that he had not already asked on cross-examination or how those questions would
have resulted in a different verdict from the jury. Here, ZH testified under oath, was subject to
cross-examination, and the jury was able to observe her demeanor. Although the trial court
foreclosed recross-examination, defendant already had been able to cross-examine ZH on all
material matters raised by the prosecution, including impeachment which explored whether ZH
had a motive to lie and ZH’s inconsistent statements. Accordingly, given the brief and limited
scope of the prosecution’s redirect-examination, we cannot conclude that the outcome of the
proceedings was affected by trial court’s ruling prohibiting defendant from engaging in recross-
examination.

                                        II. SENTENCING

        Defendant argues that the trial court erred when it assessed 10 points for OV 19 because
defendant’s failure to appear for the verdict did not comprise obstructive conduct and occurred
after the offense had been completed. Defendant also argues that the trial court abused its
discretion when it failed to justify its reasoning for imposing an out-of-guidelines sentence.

                                             A. OV 19

       Defendant argues that the trial court erred in assessing 10 points for OV 19. We disagree.

        “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence. Whether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of
the facts to the law, is a question of statutory interpretation, which an appellate court reviews de
novo.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

       “The instructions for scoring OV 19 are found in MCL 777.49, which requires the
assignment of 10 points if ‘[t]he offender otherwise interfered with or attempted to interfere with
the administration of justice.’ ” People v Sours, 315 Mich App 346, 349; 890 NW2d 401 (2016),
quoting MCL 777.49 (alteration in original). “[T]he plain and ordinary meaning of ‘interfere
with the administration of justice’ for purposes of OV 19 is to oppose so as to hamper, hinder, or
obstruct the act or process of administering judgment of individuals or causes by judicial
process.” People v Hershey (On Remand), 303 Mich App 330, 343; 844 NW2d 127 (2013).

        Although the trial court did not identify the conduct which supported an assessment of 10
points for OV 19, the parties agree that the conduct used for scoring this variable was
defendant’s failure to appear for the jury verdict. While the jury was deliberating, defendant left
the courthouse. When the jury had reached a verdict, defense counsel called defendant and told
him to return to the courthouse, and defendant said that he was coming back. However,
defendant never returned to the courthouse. At sentencing, defendant explained that he did not
return for the jury verdict because he was “scared” and “afraid.”

        Defendant’s act of leaving the courthouse and failing to return for the jury verdict
constituted interference with the administration of justice. Although the trial court simply took

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the jury’s verdict without defendant being present, and thus in that sense defendant did not
impede justice, that fact is not controlling. Ten points are properly scored for OV 19 if the
defendant “otherwise interfered with or attempted to interfere with the administration of justice.”
MCL 777.49(c) (emphasis added). Here, defendant’s refusal to return to the courthouse for the
verdict can only be viewed as an attempt to impede the return of a verdict, which certainly is part
of the “administration of justice.” Thus, defendant’s conduct clearly fits within the definition of
attempting to “interfere with the administration of justice.” See Hershey, 303 Mich App at 343
(“OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering
judgment of individuals or causes by judicial process.”), and the trial court did not clearly err
when it made the same determination. Accordingly, 10 points were properly scored for OV 19.

       Defendant’s claim that his “failure to do something, i.e., appear for his jury’s verdict, is
not conduct anticipated by OV 19” is without merit. Defendant walked out of the courthouse
and refused to return—those actions are “conduct.” Defendant took the deliberate action to first
leave and then elected to not return. Both leaving and not returning to the courthouse for the
verdict were actions that constituted interference with the administration of justice, as
contemplated by MCL 777.49(c).

        Defendant also argues that the trial court erred because refusing to return for the jury
verdict was conduct that occurred after the offense of conviction. Thus, defendant claims that
his failure to return could not be considered for purposes of OV 19. While OVs generally must
“be scored giving consideration to the sentencing offense alone,” People v McGraw, 484 Mich
120, 133; 771 NW2d 655 (2009), “[t]he aggravating factors considered in OV 19 contemplate
events that almost always occur after the charged offense has been completed.” People v Smith,
488 Mich 193, 200; 793 NW2d 666 (2010) (emphasis added). “Because OV 19 specifically
provides for the ‘consideration of conduct after completion of the sentencing offense,’ conduct
that occurred after an offense was completed may be considered when scoring the offense
variable.” Id. at 202. Accordingly, it was proper for purposes of scoring OV 19 for the trial
court to consider defendant’s failure to appear for the verdict.

        Defendant further argues that defense counsel was ineffective for failing to object to the
trial court’s assessment of 10 points for OV 19. However, as stated above, the trial court did not
err when it assessed 10 points for OV 19. “Failing 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). Therefore, defendant failed to establish that defense
counsel was ineffective.

                                   B. PROPORTIONALITY

        Defendant argues that the trial court’s imposition of six concurrent sentences of 60 to 90
years’ imprisonment constitutes disproportionate sentences. Because the record does not show
that the trial court properly consulted the sentencing guidelines range and because the trial court
did not adequately explain its rationale for imposing an out-of-guidelines sentence, we remand
for resentencing.

      Although the sentencing guidelines are now advisory, instead of being mandatory, see
People v Lockridge, 498 Mich 358, 365, 399; 870 NW2d 502 (2015), a sentencing court

                                                -4-
nevertheless must consult the guidelines when imposing a sentence, id. at 391. See also People v
Steanhouse, 500 Mich 453, 474-475; 902 NW2d 327 (2017) (stating that although the guidelines
are now advisory, they remain a highly relevant consideration in a trial court’s exercise of
sentencing discretion and must be consulted and taken into account when imposing a sentence).

        At sentencing, defense counsel stated that the prosecutor and defense counsel had agreed
that defendant’s minimum sentencing guidelines range was 171 to 285 months’ imprisonment.
But the trial court signed the sentencing information report, which contained the scoring for the
various prior record variables and the offense variables and provided for a guidelines range of
270 to 450 months. However, while imposing sentence, the trial court never stated what the
pertinent guidelines range was. This was error, as our Supreme Court has required trial courts to
consult the guidelines when imposing a sentence. Steanhouse, 500 Mich at 474-475; Lockridge,
498 Mich at 391. The trial court, at best, acknowledged that the sentencing guidelines were
advisory, but it never acknowledged what the pertinent guidelines range actually was, nor did it
resolve the seeming contradiction between what defense counsel characterized as an
understanding between himself and the prosecutor as to the guidelines range with a much
different range set forth in the sentencing information report. Thus, on remand, the trial court is
to create a record to show that it has consulted the pertinent guidelines range in fashioning a
sentence.1

        Next, regardless of the guidelines range, the trial court’s minimum sentence of 60 years
(or 720 months) constituted an out-of-guidelines sentence.2 “[T]his Court is required to review
for reasonableness only those sentences that depart from the range recommended by the statutory
guidelines.” People v Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018). “[T]he proper
inquiry when reviewing a sentence for reasonableness is whether the trial court abused its
discretion by violating the ‘principle of proportionality’ set forth in People v Milbourn[, 435
Mich 630; 461 NW2d 1 (1990)].” Steanhouse, 500 Mich at 459-460 (citation omitted). “ ‘[T]he
key test is whether the sentence is proportionate to the seriousness of the matter, not whether it
departs from or adheres to the guidelines’ recommended range.’ ” Id. at 475, quoting Milbourn,
435 Mich at 661.

       Michigan courts have held that a judge who decides to impose a sentence in excess of the
guidelines range “must ‘ “justify the sentence imposed in order to facilitate appellate review.” ’ ”
People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017), lv pending, quoting
Steanhouse, 500 Mich at 470, quoting Lockridge, 498 Mich at 392. In doing so, a court is to
“include[] an explanation of why the sentence imposed is more proportionate to the offense and


1
  Further, in addition to satisfying our Supreme Court’s mandate to consult the guidelines,
expressly referencing the applicable guidelines range at sentencing would have alerted defendant
and the prosecutor that their mutual understanding of the guidelines range differed from that in
the sentencing information report and may have been incorrect, which could have spurred further
discussion and analysis on the matter.
2
 We note that regardless of any guidelines score, MCL 750.520b(2)(b) requires a minimum 25-
year term of imprisonment for each CSC-I conviction.


                                                -5-
the offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525
(quotation marks and citation omitted).

       [R]elevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)
       whether the guidelines accurately reflect the seriousness of the crime; (2) factors
       not considered by the guidelines; and (3) factors considered by the guidelines but
       given inadequate weight. [Id. (quotation marks and citations omitted.]

       Here, the trial court provided very little justification for the sentence it imposed,
including why this sentence was more appropriate than a sentence that fell within the guidelines.
At sentencing, the only justification the court provided was the following:

               You know, I looked at Lockridge, because I don’t think that Lockridge
       or a sentencing guidelines . . . can possibly foresee the conduct that you
       inflicted upon your daughter.

             How could you? She’s 9-years old and you start sexually molesting
       her. Because you enjoy it.

              You know, you got her worried now, but she really doesn’t have
       anything to be ashamed of. She has nothing to be ashamed of and nothing to
       be afraid of. No.

        We hold that the trial court failed to adequately justify the sentence imposed. The above
rationale is too sparse to be of any use in facilitating appellate review. Therefore, we remand for
resentencing. See Steanhouse, 500 Mich at 476 (stating that a trial court abuses its discretion
when it fails “to provide adequate reasons for the extent of the departure sentence imposed”).
We note that the factors the trial court cited and the sentence it imposed are not necessarily
inappropriate, and our opinion does not preclude the trial court from imposing the same sentence
(or a different sentence exceeding the applicable guidelines range) if it chooses to exercise its
discretion in that manner. Instead, our holding merely is that if the court is to impose a sentence
that exceeds the guidelines range, the court needs to adequately articulate its reasons why it
chose that sentence, such that it facilitates appellate review. See id.; Dixon-Bey, 321 Mich at
525.

        We affirm defendant’s convictions but remand for resentencing.          We do not retain
jurisdiction.

                                                            /s/ Jonathan Tukel
                                                            /s/ Kathleen Jansen
                                                            /s/ Michael J. Riordan




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