                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 8, 2018
              Plaintiff-Appellee,

v                                                                  No. 335251
                                                                   Wayne Circuit Court
BERNARD PETERSON,                                                  LC No. 15-008364-01-FC

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his convictions of two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b, and one count of kidnapping, MCL 750.349. The trial
court sentenced defendant to 60 to 90 years’ imprisonment each conviction, to be served
concurrently. We affirm.

        Defendant was convicted of kidnapping and sexually assaulting a female victim in
January 1999. The victim had left her Detroit home early in the morning to walk a short distance
to make a telephone call. As she was returning to her home, she was confronted by an armed
gunman, who took her money and a ring. The man then took the victim to a nearby abandoned
garage and sexually assaulted her. The victim did not know her assailant. After the assault, the
victim contacted the police and then was examined at a hospital where a sexual assault kit was
prepared. The sexual assault kit was turned over to the Detroit police where it remained stored
with the Property Control division for several years without being tested. In 2013, after funding
became available to test a backlog of sexual assault kits held by the department, the victim’s
sexual assault kit was sent to a private laboratory for testing. The results of DNA testing were
entered into a national database, which led to profile matches with additional unsolved cases and
a match to defendant’s known DNA profile. An additional sample of defendant’s DNA was
obtained pursuant to a search warrant, and testing of that sample confirmed the match with the
DNA sample collected in the victim’s case. At trial, the prosecution presented evidence relating
to the kidnapping and sexual assault of the victim, as well as evidence linking defendant to
sexual assaults of other female victims in the same general timeframe and area of the city, under
similar circumstances.




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                             I. DENIAL OF DIRECTED VERDICT

        Defendant first argues on appeal that the trial court erred in denying his motion for a
directed verdict at trial. We disagree.

        When reviewing the denial of a motion for a directed verdict, we must review the
evidence de novo, viewing it in a light most favorable to the prosecution, to determine whether a
rational trier of fact could have found that the essential elements of the charged crimes were
proved beyond a reasonable doubt. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006);
People v Schaw, 288 Mich App 231, 233; 791 NW2d 743 (2010). Circumstantial evidence and
any reasonable inferences arising from the evidence may be sufficient to prove the elements of a
crime. People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999). “This Court will not
interfere with the trier of fact’s role of determining the weight of the evidence or the credibility
of witnesses.” People v John Williams, Jr, 268 Mich App 416, 419; 707 NW2d 624 (2005). All
evidentiary conflicts will be resolved in favor of the prosecution. Id.

        Defendant does not dispute that sufficient evidence was presented to prove the elements
of both CSC-I and kidnapping. Rather, defendant argues that the evidence was insufficient to
establish his identity as the person who committed these crimes. Although defendant
acknowledges that DNA evidence linked him to the kidnapping and sexual assault of the victim,
he argues that problems with the chain of custody for the physical evidence rendered the test
results insufficient to prove his identity as the person who kidnapped and sexually assaulted the
victim. The trial court rejected this argument below because the prosecution had presented
several witnesses who offered testimony describing the procedures for collecting, handling,
storing, and eventually transporting the evidence for testing, as well as the procedures for
documenting each of these steps. Specifically, the court found that

       they have connected it to your client through all these witnesses that came up here
       in terms of where it was — the hospital collected it, it then went to the Detroit
       Police Department. The lady came in and said where she shipped it to, and then it
       was shipped — or the data was shipped to the police department — I mean, to the
       Michigan State Police and ultimately ended up with the DNA.

Accordingly, the trial court denied defendant’s motion for a directed verdict.

        Identity is an essential element of every offense. People v Yost, 278 Mich App 341, 356;
749 NW2d 753 (2008). The credibility of identification testimony is a question for the trier of
fact to resolve and this Court will not resolve the issue anew. People v Dunigan, 299 Mich App
579, 582; 831 NW2d 243 (2013); People v Davis, 241 Mich App 697, 700; 617 NW2d 381
(2000). In this case, testimony was presented describing the victim’s sexual assault examination,
the procedure for collecting samples during that examination, and the procedure for preserving
the evidence in a sexual assault kit. Testimony was also presented describing the process for
transporting that evidence to the Detroit Police Department and storing it with the Property
Control division. In addition, witnesses testified regarding the procedure for later transporting
the sexual assault kits to a private laboratory for testing, and the private laboratory’s procedures
for handling and documenting the chain of custody of the evidence at its facility. Defendant
stipulated to the admission of a chain-of-custody form relating to the handling of the victim’s

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sexual assault kit at Sorenson Forensics, the private laboratory that processed the sexual assault
kit in this case. Through this evidence, the prosecution satisfied the requirement of
authentication as a condition precedent to the admissibility of the DNA evidence by showing to a
reasonable degree of certainty that the samples tested at the laboratory were samples collected
from the victim during her sexual assault examination. MRE 901(a). People v White, 208 Mich
App 126, 130-131; 527 NW2d 34 (1994). To the extent defendant attempts to identify problems
with the chain of custody of the evidence, “any deficiency in the chain of custody goes to the
weight of the evidence rather than its admissibility[.]” Id. Issues involving the weight and
credibility of evidence must be resolved in favor of the prosecution when analyzing the
sufficiency of the evidence. Williams, Jr, 268 Mich App at 419.

        Defendant further suggested at trial that the test results could not be trusted because of
the possibility of improper tampering or contamination of the physical evidence, or because of
degradation while the evidence was in storage. However, no evidence of any actual tampering or
contamination was presented, and witnesses testified that the length of time the evidence was in
storage did not affect its ability to be reliably tested. Accordingly, the DNA test results were
sufficient to establish defendant’s identity as the person who kidnapped and sexually assaulted
the victim. Therefore, the trial court properly denied defendant’s motion for a directed verdict.

                              II. PROSECUTORIAL MISCONDUCT

       Second, defendant argues that he is entitled to a new trial because of the prosecutor’s
conduct in offering inadmissible testimony and making improper closing arguments. We
disagree.

         The record discloses that defendant did not object to any of the prosecutor’s conduct that
he now challenges on appeal. Accordingly, defendant’s claims of misconduct are unpreserved
and our review of those claims is limited to plain error affecting defendant’s substantial rights.
People v Abraham, 256 Mich App 265, 274; 662 NW2d 836 (2003). An error is plain if it is
clear or obvious, and an error affects substantial rights if it is prejudicial, i.e., if it affects the
outcome of the proceedings. People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). If the
prejudicial effect of any improper comment could have been cured by a timely instruction from
the trial court, reversal is not required. People v Williams, 265 Mich App 68, 70-71; 692 NW2d
722 (2005), aff’d 475 Mich 101 (2006).

       Claims of prosecutorial misconduct are decided case by case and challenged comments
must be read in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996).
The test for prosecutorial misconduct is whether the defendant was denied a fair trial. People v
Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). A prosecutor is afforded great latitude
during closing argument. The prosecutor is permitted to argue the evidence and reasonable
inferences arising from the evidence in support of her theory of the case. Id. at 282. Although a
prosecutor must refrain from making prejudicial remarks, id. at 283, a prosecutor may use “hard
language” when the evidence supports it and she is not required to phrase her arguments in the
blandest of terms. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). However, a
prosecutor may not make a statement of fact that is unsupported by evidence. People v
Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).


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         Contrary to defendant’s assertion, the record does not support his contention that the
prosecutor violated a trial court ruling by asking the victim and other witnesses about their
reasons for testifying and then later commenting on that testimony. When the victim was
testifying, the prosecutor asked her if she agreed to participate in an investigation. The trial court
overruled a defense objection that this question was leading or improperly assumed facts not in
evidence. In response to further questioning, the victim testified that no one was forcing her to
testify and that she was doing so voluntarily. There were no objections to this testimony.
Defendant has not identified any ruling by the trial court sustaining an objection or otherwise
prohibiting the prosecutor’s line of questioning. Other witnesses also were permitted to testify
that they were appearing voluntarily, explaining that their purpose was to obtain justice. The
prosecutor was not restricted in eliciting this testimony. In closing argument, the prosecutor
commented, consistent with the witnesses’ testimony, that the witnesses were testifying to seek
justice.

        The prosecutor was allowed to offer evidence about why the witnesses were testifying,
and the prosecutor commented on the credibility of that testimony. A prosecutor is permitted to
comment on the evidence and reasonable inferences arising from the evidence. Bahoda, 448
Mich at 282. A prosecutor is also free to argue from the facts and testimony that a witness is
credible or worthy of belief. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).
Therefore, the prosecutor’s questions and arguments were proper.

        Defendant also argues that the prosecutor improperly referred to a map showing the
locations of the sexual assaults against the victim and other witnesses. Defendant further
represents that the prosecutor referred to the location shown on the map as defendant’s “hunting
grounds.” Defendant complains that the map improperly included a marker denoting the location
of defendant’s home when no such evidence was presented at trial. He also complains that the
map included the location of a sexual assault against an additional victim, LH, who was not the
subject of any testimony at trial.

        With respect to the map’s inclusion of a sexual assault against LH, if defendant had
raised a timely objection to the map itself, LH’s name could have been removed from the map.
Regardless, defendant was not charged with any crime against LH, and he does not dispute that
no evidence was presented at trial regarding any offense involving LH, and that the prosecutor
never referred to LH as an additional victim in closing argument or otherwise. Under these
circumstances, the possible inclusion of her name on the exhibit used at trial was not likely to
affect the outcome of the proceeding. Accordingly, defendant’s substantial rights were not
affected.

        With respect to the fact that the map exhibit contained a label identifying the location of
defendant’s home in 1997, defense counsel addressed the map in closing argument and argued
that there was no evidence that defendant was living in that area or that he was even living in
Michigan during the relevant time periods. Counsel did not otherwise dispute that all of the
women were sexually assaulted in the same general area. Because DNA evidence linked
defendant to those assaults, it was not improper for the prosecutor to refer to that area as
defendant’s “hunting grounds,” regardless of where defendant actually lived. And to the extent
that the evidence did not show that defendant was living in that area during the relevant time
periods, defendant’s substantial rights were protected by defense counsel’s argument

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highlighting that there was no evidence introduced at trial that defendant was living in that area,
and by the trial court’s instructions regarding the jury’s consideration of evidence. Specifically,
the trial court instructed the jury that it could “consider [only] the evidence that has been
properly admitted in this case,” and that “[e]vidence includes only the sworn testimony of the
witnesses admitted into evidence and anything else I told you to consider such as the
stipulations.” The trial court further instructed the jury that “[t]he lawyers’ statements and
arguments and any commentaries are not evidence,” and “[y]ou should only accept the things the
lawyers say that are supported by the evidence.”

        Defendant also complains that the prosecutor made improper comments during her
rebuttal argument that evoked sympathy for the victim and the other acts witnesses, and
suggested to the jury that the victim’s morals were above reproach. We disagree. The remarks
were not calculated to evoke sympathy for the victim or other witnesses, and they were
responsive to defense counsel’s closing argument. In his closing argument, defense counsel
repeatedly attacked the motives of the police and the prosecutor’s office, repeatedly accusing
them of trying to deceive and mislead the jury. A prosecutor’s comments must be considered in
light of defense counsel’s comments. People v Watson, 245 Mich App 572, 593; 629 NW2d 411
(2001). It was fair for the prosecutor to respond to defense counsel’s arguments by refuting any
possible claim that defendant’s prosecution was somehow the product of an intentional effort to
fabricate or alter the evidence. Indeed, the prosecutor asked the jury to examine the evidence
and decide if it thought “we’ve tried to hide something from you, we’ve tried to pull the wool
over your eyes.” Viewed in context, the prosecutor’s arguments were proper. Moreover, to the
extent that the remarks could be considered improper, any perceived prejudice could have been
cured by a timely objection and cautionary instruction. Therefore, reversal is not required.
Williams, 265 Mich App at 70-71.

                                       III. SENTENCING

       Finally, defendant argues that his sentences are excessive and disproportionate. We
disagree.

        In People v Lockridge, 498 Mich 358, 364-365, 391-392, 399; 870 NW2d 502 (2015),
our Supreme Court held that Michigan’s sentencing guidelines are constitutionally deficient, in
violation of the Sixth Amendment, to the extent that they “require judicial fact-finding beyond
facts admitted by the defendant or found by the jury to score offense variables (OVs) that
mandatorily increase the floor of the guidelines minimum sentence range . . .” Id.at 364. To
remedy this deficiency, the Court held that the guidelines are advisory only. Id. at 365. Under
Lockridge, however, trial courts are still required to “continue to consult the applicable
guidelines range and take it into account when imposing a sentence.” Id. at 392.

       In this case, the parties agreed at sentencing that defendant was a fourth-offense habitual
offender, MCL 769.12, which subjected him to an enhanced sentencing guidelines range of 270
to 900 months’ imprisonment, or life. The trial court sentenced defendant within that range by
imposing minimum sentences of 60 years (720 months). As such, this Court’s review is limited
by MCL 769.34(10), which provides that “[i]f a minimum sentence is within the appropriate
guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for
resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied

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upon in determining the defendant's sentence.” In People v Schrauben, 314 Mich App 181, 196
n 10; 886 NW2d 173 (2016), this Court held that “Lockridge did not alter or diminish MCL
769.34(10).” Thus, “[w]hen a trial court does not depart from the recommended minimum
sentence range, the minimum sentence must be affirmed unless there was an error in scoring or
the trial court relied on inaccurate information.” Schrauben, 314 Mich App at 196. Accord
People v Jackson, 320 Mich App 514, 527; ___ NW2d ___ (2017), lv pending (a sentence within
the appropriate guidelines range “is presumptively proportionate and must be affirmed”).
Because defendant’s sentences are within the guidelines range and he has not identified a scoring
error or inaccurate information that the trial court relied on when imposing sentence, his
sentences must be affirmed. Schrauben, 314 Mich App at 196.

       Affirmed.


                                                           /s/ Stephen L. Borrello
                                                           /s/ David H. Sawyer
                                                           /s/ Kathleen Jansen




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