                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re THOMAS ALBERT STAFFORD, JR., Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 27, 2017
              Petitioner-Appellee,

v                                                                  No. 331517
                                                                   Oakland Circuit Court
THOMAS ALBERT STAFFORD, JR.,                                       Family Division
                                                                   LC No. 2012-796040-DL
              Respondent-Appellant.


Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ.

PER CURIAM.

        Respondent was adjudicated guilty by a jury of one count of criminal sexual conduct in
the third degree (CSC-III) (sexual penetration – victim at least 13 but under 16 years of age),
MCL 750.520d(1)(a), and one count of criminal sexual conduct in the fourth degree (CSC-IV)
(sexual contact – force or coercion employed), MCL 750.520e(1)(b). He appeals as of right,
arguing that the verdicts were against the great weight of the evidence. Because the substance of
defendant’s argument ultimately concerns the credibility of the victim, RH, absent any
exceptional circumstances, we affirm.

        This case arises from the sexual assault of RH. RH and her mother (mother) attended a
birthday party for respondent’s sister at respondent’s home. RH and mother elected to stay the
night at respondent’s home, and RH went to sleep on a sectional couch located in the living
room. RH woke up that evening when someone entered the living room, and that person then
began rubbing his penis against her butt. She feigned sleep, but the individual then grabbed her
hand and forcefully placed it on his penis. RH unsuccessfully tried to pull her hand away from
the individual’s penis. The perpetrator then pulled down RH’s pants and placed his penis in her
vagina. After a brief time, he removed his penis and headed into a nearby bathroom. RH looked
toward and into the bathroom, and she saw respondent just before he shut the bathroom door.

       Respondent contends that the jury’s verdicts were against the great weight of the
evidence because RH’s testimony was incredible due to inconsistencies in her account of the
sexual assault and due to the surrounding circumstances and lack of forensic corroboration. We
disagree.

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        Generally, a defendant must raise an argument that a jury’s verdict was against the great
weight of the evidence in a motion for a new trial in order to preserve that issue for appellate
review. People v Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014); see also MCR
7.211(C)(1)(c) (“In a case tried without a jury, the appellant need not file a motion for remand or
a motion for new trial to challenge the great weight of the evidence in order to preserve the issue
for appeal.”) (emphasis added). Respondent failed to preserve the great-weight issue, raising the
matter for the first time on appeal. “Unpreserved challenges to the great weight of the evidence
are reviewed for plain error affecting the defendant's substantial rights.” Lopez, 305 Mich App at
695. Respondent argues, without citation of any relevant authorities, that the preservation
requirement with respect to the great weight of the evidence is inapplicable to juvenile
delinquency proceedings. Although we tend to disagree with respondent’s stance, reversal is
unwarranted in this appeal even if we treat the issue as preserved or not needing preservation.
Accordingly, we shall not rule on the preservation dispute and instead proceed on the assumption
that there is no preservation problem, jettisoning the plain-error test.

        “The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” People v Musser, 259 Mich App 215, 218-219; 673
NW2d 800 (2003), citing People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).
“[A]bsent exceptional circumstances, issues of witness credibility are for the jury[.]” People v
Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). “[W]hen testimony is in direct conflict
and testimony supporting the verdict has been impeached, if it cannot be said as a matter of law
that the testimony thus impeached was deprived of all probative value or that the jury could not
believe it, the credibility of witnesses is for the jury.” Id. at 643 (citation and quotation marks
omitted).

       In People v Bosca, 310 Mich App 1, 13; 871 NW2d 307 (2015), this Court observed as
follows regarding a great-weight challenge:

              To support a new trial, the witness testimony must contradict indisputable
       physical facts or laws, be patently incredible or defy physical realities, be so
       inherently implausible that it could not be believed by a reasonable juror, or have
       been seriously impeached in a case that was marked by uncertainties and
       discrepancies. [Citation, quotation marks, and alteration brackets omitted.]

       “The hurdle that a judge must clear in order to overrule a jury and grant a new trial is
unquestionably among the highest in our law.” People v Unger, 278 Mich App 210, 232; 749
NW2d 272 (2008) (quotation marks and citation omitted). The Michigan Supreme Court in
Lemmon, 456 Mich at 642-643 n 22, further explained:

               Criminal cases are usually fought on the battlefield of witness credibility,
       and this is particularly true in situations involving the credibility of a victim of a
       CSC crime where the only witnesses present are the victim and the perpetrator . . .
       . It is a well-established rule that a jury may convict on the uncorroborated
       evidence of a CSC victim . . . . Jury decisions in these cases are essentially based
       on the jury's assessment of the witnesses' credibility. [Citations omitted.]


                                                -2-
“The credibility of a witness is determined by more than words and includes tonal quality,
volume, speech patterns, and demeanor, all giving clues to the factfinder regarding whether a
witness is telling the truth.” Id. at 646 (citation omitted).

        Respondent contends that RH’s account of her sexual assault was “extremely
inconsistent,” and therefore, the jury’s verdicts were against the great weight of the evidence.
Respondent maintains that RH’s disclosures about the types of alcohol she consumed prior to the
incident differed, that her description of the duration of the sexual assault varied between one
and five minutes, that RH failed to disclose to the nurse who performed RH’s sexual assault
examination, that respondent forcefully placed her hand on his penis, and that RH’s testimony
that she pretended to be asleep during the sexual assault conflicted with her own testimony that
after respondent forcefully placed her hand on his penis, she attempted to pull her hand away.
Respondent also contends that RH’s testimony that she provided a detective with a written
statement about the incident directly conflicted with the detective’s testimony.

         While RH’s accounts of the incident may have contained inconsistencies, RH
acknowledged that fact during the trial. RH explained that she did not sleep for over 24 hours
following the incident and that she had been exhausted and emotionally upset. She testified,
“Maybe some details I left out [be]cause . . . I wasn’t comfortable to tell some people that.”
Further, RH’s testimony during the trial about the sexual assault was clear and unequivocal. She
testified that respondent grabbed her hand and “put it onto [his] penis.” She indicated that when
RH’s hand was on respondent’s penis, he took RH’s hand and made her move it up and down.
According to RH, she tried to pull her hand away, but respondent “kept putting it back.” She
then felt “hands on [the] strap on [her] pants, and then [the] pulling down [of her] pants.” RH
testified that respondent next put his penis “inside of [her] vagina.” She “could feel it and it
hurt.” RH’s testimony that there was forceful sexual contact and sexual penetration by
respondent was unwavering.

        Thus, even though respondent may have identified some inconsistencies in RH’s
testimony, respondent has failed to demonstrate that RH’s testimony contradicted indisputable
physical facts or law, was patently incredible, defied physical realities, was so inherently
implausible that a reasonable juror could not believe the testimony, or was so seriously
impeached that it was deprived of all probative value. And to the extent that respondent
questions RH’s failure to scream or call out for help during the incident, or RH’s failure to use
her cellphone to take a photograph of respondent after the incident, we note that, under MCL
750.520i, “[a] victim need not resist the actor in prosecutions under sections 520b to 520g,”
which include CSC-III and CSC-IV. We also find RH’s explanation for why she did not scream
or cry out for help entirely plausible – fear of an immediate violent response. The argument
about failing to take a photograph seems to be, in our view, a somewhat absurd argument and an
unreasonable expectation, given the circumstances.

       Respondent also argues that RH’s account was inconsistent because it was unsupported
by forensic evidence. However, under MCL 750.520h, a victim’s testimony “need not be
corroborated in prosecutions under sections 520b to 520g.” Furthermore, the forensic testimony
and evidence in this case did not exculpate respondent, did not establish that no sexual assault
occurred, and did not contradict RH’s claims; it was inconclusive. Finally, respondent asserts
that RH’s allegations could not be believed because two others were sleeping on the same couch

                                               -3-
and would certainly have been awakened had a sexual assault actually taken place. The couch
was a sectional, no one slept side-by-side RH, it was the middle of the night, a party with
drinking and drugs had ended earlier that evening, and, according to RH’s testimony, respondent
employed stealth in committing the sexual assault. It is certainly conceivable that under those
circumstances the two individuals on the other end of the sectional would not have been
awakened by the assault. Ultimately, that was an issue within the province of the jury to decide,
not this Court.

        In sum, the evidence did not preponderate so heavily against the CSC-III and CSC-IV
guilty verdicts that it would be a miscarriage of justice to allow the verdicts to stand.1

       Affirmed.



                                                           /s/ Kathleen Jansen
                                                           /s/ William B. Murphy
                                                           /s/ Stephen L. Borrello




1
  Respondent makes a cursory reference to the sufficiency of the evidence; however, even if a
sufficiency argument was properly presented to us, we would reject it, as the assessment of the
weight of the evidence and witness credibility was a task for the jury. People v Wolfe, 440 Mich
508, 514-515; 489 NW2d 748 (1992).


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