                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 23, 2016
               Plaintiff-Appellee,

v                                                                   No. 326936
                                                                    Saginaw Circuit Court
MICHAEL ERIC FLORES,                                                LC No. 14-040327-FC

               Defendant-Appellant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

       A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC I),
MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct (CSC II), MCL
750.520c(1)(a). The trial court sentenced defendant as a second-offense habitual offender, MCL
769.10, to a prison term of 40 to 60 years for each CSC I conviction, to be served consecutively,
to a concurrent prison term of 140 to 270 months for the CSC II conviction. We affirm
defendant’s convictions, but vacate his consecutive sentences for the CSC I convictions and
remand for resentencing on those offenses.

        This case arises out of defendant’s sexual assault of his stepdaughter, TM. The basis for
the CSC-I charges were allegations that defendant penetrated TM’s genital opening with his
fingers and that he penetrated her mouth with his penis. At the time of trial, TM was six years
old. She testified that on multiple occasions defendant touched her “front private part”
underneath her clothing and that he moved his hand while he did so. She stated that defendant
showed her pornographic movies, including movies in which children appeared, and said that he
touched her vagina while he watched the movies. In addition, TM stated that defendant rubbed
his penis against her vagina and buttocks on more than one occasion and that he also placed his
penis in her mouth. TM explained that defendant began touching her when she was in preschool,
but that after she told her mother about defendant’s actions she did not see him again. TM’s
mother testified that TM disclosed the abuse to her and that, by the end of her disclosure, she was
screaming, crying, and shaking. Further, Michigan State Police Detective Hillary House testified
that she observed TM’s interview in August 2013, at which time TM was not ready to discuss the
matter. However, after TM entered counseling, TM was able to discuss the matter in June 2014.
Defendant testified on his own behalf and denied the allegations made by TM.




                                                -1-
       In a brief filed by appellate counsel, defendant first argues that there was insufficient
evidence to sustain the CSC I conviction based on digital penetration. He contends that TM’s
testimony was not sufficient to establish penetration.1 We disagree.

       A person is guilty of CSC I if he or she engages in “sexual penetration” with another
person who is under 13 years of age. MCL 750.520b(1)(a). “Sexual penetration” is defined in
MCL 750.520a(r) as

       sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
       however slight, or 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.

TM testified that defendant put his finger on her vagina, but said that his finger did not enter the
“hole.” However, with the assistance of a visual aid from the prosecutor, TM also testified that
defendant’s finger slipped into the outer folds of her vagina. Her testimony therefore was
sufficient to establish penetration as defined in MCL 750.520a(r) and to sustain defendant’s CSC
conviction based on digital penetration of her genital opening.

       Defendant next argues that Detective House was improperly allowed to offer an opinion
on the meaning of penetration from a legal perspective.2 House testified as follows:

               Q: Okay. Now, you’ve been doing sexual assault cases, investigating
       sexual assault cases for 20-some years now, and there’s a—I think there’s a
       perception of what penetration means in the world. Is it different when we look at
       it from a legal perspective?

               A: It is.

              Q: Okay. Can you explain to the jury what you mean by penetration,
       from a legal perspective?



1
  Due process in a criminal case requires a prosecutor to produce sufficient evidence to warrant
the trier of fact in finding that each element of the charged offense was proved beyond a
reasonable doubt. People v Nowak, 462 Mich 392, 399; 614 NW2d 78 (2000). In reviewing a
sufficiency of the evidence question, we view the evidence de novo in a light most favorable to
the prosecution to determine whether a rational trier of fact could conclude that the elements of
the offense were proven beyond a reasonable doubt. People v Bulls, 262 Mich App 618, 623;
687 NW2d 159 (2004). We do not interfere with the jury’s role of determining the weight of the
evidence or the credibility of witnesses. Id. at 624. A trier of fact may make reasonable
inferences from direct or circumstantial evidence in the record. Id.
2
 Because defendant did not object to the challenged testimony at trial, this issue is unpreserved
and our review is limited to plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).




                                                -2-
              A: Sure.        Well, like when [TM] was—when Ms. Barnes—sorry,
       Janetsky—

               Q. I know.

               A. –came up to—to the stand here, and they were talking about, like your
       folds in your vaginal area or lips, whatever you call it, when TM said that he was
       rubbing this way, anywhere inside the skin is considered penetration. So it
       doesn’t actually have to go inside of her. Simply inside the skin is considered
       penetration. So when she described that motion, that he was rubbing in there, that
       would be penetration.

        Assuming arguendo that this testimony was improper, we nevertheless conclude that it
did not affect defendant’s substantial rights. The trial court instructed the jury that its task was to
find the facts and that it was entitled to accept or reject in full or in part all of the testimony
presented. As noted, TM’s testimony described defendant’s actions in a way that the jury could
conclude that penetration occurred, so the jury was not required to rely on Detective House’s
testimony to find the necessary element of penetration. Moreover, the trial court also instructed
the jury that it was to take the law as given by the court, and the court instructed the jury on the
element of penetration consistent with the definition in MCL 750.520a(r). A jury is presumed to
follow its instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
Accordingly, on this record, the court’s instructions were sufficient to protect defendant’s
substantial rights.3

       Next, in a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6,
Standard 4, defendant argues that the prosecutor committed misconduct by questioning
defendant about TM’s character for honesty and by arguing facts not in evidence during closing
argument. Defendant also argues that defense counsel was ineffective for failing to object to the
prosecutorial misconduct.4




3
  Because Detective House’s testimony did not affect defendant’s substantial rights, we also
reject defendant’s related claim that defense counsel was ineffective for failing to object to the
testimony. Even if an objection would have been appropriate, an ineffective assistance of
counsel claim cannot succeed because defendant was not prejudiced by the testimony. People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
4
  Because there was no objection to the alleged instances of prosecutorial misconduct, our review
is for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764. “No
error requiring reversal will be found if the prejudicial effect of the prosecutor’s comments could
have been cured by a timely instruction.” People v Leshaj, 249 Mich App 417, 419; 641 NW2d
872 (2002). Our review of defendant’s ineffective assistance claim is limited to mistakes
apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).




                                                 -3-
       The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). During cross-
examination, the prosecutor asked defendant the following questions about TM:

               Q: And she’s—she’s, all around, just a good kid?

               A: She is.

              Q: And she’s an honest kid, and she’s a—she’s a thankful kid, and she’s I
       mean, she’s just a pleasure. Is that fair?

               A: She’s—yes, that is fair.

               Q: Okay. And you loved her like she was yours?

               A: Yes, I did.

              Q: I mean, from the time you knew her, this was the—a daughter to you;
       a daughter, not a stepdaughter?

               A: Yes.

               Q: And you’re really the only dad she ever really knew?

               A: Yup.

               Q: And you’re the day-to-day person that’s there with her?

               A: Exactly.

              Q: Okay. And all that time you spent with her, [TM] is—you can’t help
       but describe her as just a good, honest little girl?

               A: Yes, I do.

It is improper for a prosecutor to ask a defendant to comment on the credibility of a prosecution
witness because credibility determinations are to be made by the jury and a defendant’s opinion
is not probative of credibility. People v Knapp, 244 Mich App 361, 384; 624 NW2d 227 (2001).
However, the foregoing exchange reveals that the prosecutor did not directly ask defendant if
TM’s allegations against him were true. The questions were directed at obtaining defendant’s
opinion of TM’s character, given that defendant was particularly familiar with TM from his
status as her stepfather. Accordingly, the prosecutor’s questioning did not constitute plain error.
Furthermore, to the extent that the prosecutor’s questions to defendant regarding TM’s honesty
could be considered improper, any prejudicial effect could have been cured by a timely
instruction to the effect that credibility was a question for the jury. People v Leshaj, 249 Mich
App 417, 419; 641 NW2d 872 (2002). Indeed, even without an objection, the trial court
instructed the jury that it was to decide which witnesses to believe, and the court also instructed




                                                -4-
the jury on various factors to consider in evaluating a witness’s credibility. The trial court’s
instructions protected defendant’s substantial rights.5

         Next, defendant correctly observes that “[a] prosecutor may not make a statement of fact
to the jury that is not supported by evidence presented at trial[.]” People v Unger, 278 Mich App
210, 241; 749 NW2d 272 (2008). We agree that the prosecutor made a statement that did not
comport with the evidence produced at trial when she stated during closing argument that a
defense witness testified that TM’s mother visited defendant without the children present after
the allegations of abuse. Contrary to the prosecutor’s assertion, the defense witness actually
testified that the children were present during the visits. However, although the prosecutor did
misstate the testimony, nothing in the record indicates that the prosecutor did so deliberately.
Instead, after making the misstatement, the prosecutor correctly noted that defendant’s mother
and brother had testified that the children were in defendant’s presence, but then stated that the
outcome of the case did not rest on that point because it did not relate to the elements of the
charged offenses. Thus, the prosecutor’s position was that any conflict in the evidence regarding
whether defendant had seen the children since the allegations were made was not relevant to the
outcome, and so we conclude the prosecutor’s isolated misstatement on this subject did not affect
defendant’s substantial rights. Moreover, any prejudice caused by the prosecutor’s misstatement
could have been cured had defendant requested an instruction to correct the misstatement.
Leshaj, 249 Mich App at 419. Indeed, even without an objection, the trial court protected
defendant’s substantial rights by instructing the jury that the lawyers’ statements and argument
are not evidence, and that the jury should only accept the things the lawyers say that are
supported by the evidence.6

        Next, in his pro se brief, defendant argues that the testimony of TM’s mother, describing
TM’s report of defendant’s sexual abuse, was inadmissible hearsay, and that trial counsel was
ineffective for failing to object to the testimony.7 We disagree.

        “Hearsay” is defined as “a statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”


5
  In addition, defendant’s ineffective assistance of counsel claim cannot succeed because any
error by counsel in failing to object was not prejudicial. Carbin, 463 Mich at 600.
6
  Further, under these circumstances, trial counsel’s failure to object or request an instruction
does not establish ineffective assistance of counsel. Because the prosecutor did not argue that
resolution of this particular subject matter was outcome determinative, and in fact argued just the
opposite, and because the trial court ultimately instructed the jury that the lawyers’ arguments
are not evidence, there is no reasonable probability that, but for counsel’s failure to object to the
prosecution’s misstatement, the outcome of the trial would have been different. Carbin, 463
Mich at 600.
7
  Our review of the unpreserved evidentiary issue is limited to plain error affecting defendant’s
substantial rights. Carines, 460 Mich at 763-764. Defendant’s ineffective assistance of counsel
claim is limited to errors apparent on the record. Heft, 299 Mich App at 80.



                                                -5-
MRE 801(c). As a general rule, hearsay is inadmissible. MRE 802. However, under MRE
803(2), if a statement qualifies as an excited utterance it is inadmissible despite the fact that it is
hearsay. MRE 803(2) allows admission of “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” A statement is admissible under the excited utterance exception if it: (1) is related to
a startling event, and (2) was made while the declarant was still under the excitement caused by
the event. People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). “[I]t is the lack of
capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance
rule. The question is not strictly one of time, but of the possibility for conscious refection.” Id.
at 551.

       TM’s mother testified that she was giving TM and EM a shower when EM started
making noises that he indicated he had heard when defendant was with TM. TM’s mother stated
that TM initially did not want to say anything, but then began relating defendant’s actions, and
was screaming, crying, and shaking by the time she finished recounting defendant’s actions.
This testimony supports that TM’s statements to her mother related to a startling event (i.e.,
defendant’s sexual abuse) and were made while she was under the stress of excitement caused by
the event. Accordingly, there was no plain error in admitting the statement.8

       Finally, in the brief filed by appellant counsel, defendant argues that the trial court erred
by ordering his sentences for the CSC I convictions to run consecutively and that defense
counsel was ineffective for failing to challenge the trial court’s authority to impose consecutive
sentences. Because defense counsel expressly stated at sentencing that consecutive sentencing
was permitted for the CSC I convictions, defense counsel waived any error in imposing
consecutive sentences. See People v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000). A
waiver extinguishes any error, leaving no error to review. Id. at 215. Accordingly, we will only
review defendant’s argument that defense counsel was ineffective for failing to object to the
imposition of consecutive sentences.

         Defense counsel is presumed to have afforded effective assistance and defendant bears
the burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887
(1999). To establish ineffective assistance of counsel, defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. People v Uphaus (On Remand), 278 Mich 174, 185; 748 NW2d 899 (2008). Counsel
must have made errors so serious that he was not performing as the “counsel” guaranteed by the
federal and state constitutions. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). In
addition, defense counsel’s deficient performance must have prejudiced defendant. Id. To
demonstrate prejudice, defendant must show a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. Id.




8
  Moreover, because the admission of the statement was not improper, defense counsel was not
ineffective for failing to object to the testimony. See People v Snider, 239 Mich App 393, 425;
608 NW2d 502 (2000) (holding that defense counsel is not required to make a meritless motion).



                                                 -6-
       In Michigan “concurrent sentencing is the norm” and a “consecutive sentence may be
imposed only if specifically authorized by statute.” People v Brown, 220 Mich App 680, 682;
560 NW2d 80 (1996). The CSC I statute provides that the trial court “may order a term of
imprisonment imposed under this section to be served consecutively to any term of
imprisonment imposed for any other criminal offense arising from the same transaction.” MCL
750.520b(3). The term “arising from the same transaction” is not defined by statute. People v
Ryan, 295 Mich App 388, 402; 819 NW2d 55 (2012). In Ryan, this Court construed this phrase
by applying our Supreme Court’s analysis in People v Johnson, 474 Mich 96; 712 NW2d 703
(2006), a case involving similar statutory language. Ryan, 295 Mich App at 403. In Johnson,
the Supreme Court construed the phrase “arising out of the sentencing offense” in MCL
777.41(2)(a), and held:

              [W]e have previously defined “arising out of” to suggest a causal
       connection between two events of a sort that is more than incidental. We
       continue to believe that this sets forth the most reasonable definition of “arising
       out of.” Something that “aris[es] out of,” or springs from or results from
       something else, has a connective relationship, a cause and effect relationship, of
       more than an incidental sort with the event out of which it has arisen. [Johnson,
       474 Mich at 101.]

        In Ryan, this Court held that two acts of CSC I arose from the same transaction, and
thereby authorized consecutive sentencing under MCL 750.520b(3), where the two acts “grew
out of a continuous time sequence in which [an] act of vaginal intercourse was immediately
followed by [an] act of fellatio” and the two particular sexual penetrations “had a connective
relationship that was more than incidental.” Ryan, 295 Mich at 403. Thus, Ryan establishes that
separate criminal offenses arise from the same transaction within the meaning of MCL
750.520b(3) where they grow out of a continuous time sequence and have a connective
relationship that is more than incidental. See People v Brown, 495 Mich 962, 963; 843 NW2d
743 (2014) (citing with approval this Court’s application of the Johnson analysis in Ryan).

        In this case, the evidence did not establish any timeline for the assaults with which
defendant was charged and convicted. TM did not testify that one act followed another without
interruption. Instead, she testified that the sexual acts occurred over a period of time and were
committed on more than one occasion. Her testimony did not establish that the penetrations that
formed the basis for defendant’s CSC I convictions “grew out of a continuous time sequence”
and had “a connective relationship that was more than incidental.” Ryan, 295 Mich at 403. In
sum, no evidence supports that defendant’s two CSC I convictions arose from the same
transaction within the meaning of MCL 750.520b(3).

        We disagree with the prosecution’s argument that consecutive sentencing was appropriate
because the atmosphere of fear that defendant created with his actions should make the entire
period in which defendant assaulted TM “the same transaction.” Under the prosecution’s
analysis, two discreet acts occurring several months apart with no causal connection could be
part of the same transaction. This position does not comport with the interpretation of that
phrase set out in Ryan. Moreover, to allow consecutive sentencing under such an analysis would
render nugatory the requirement in MCL 750.520b(3) that the offenses “arise from the same
transaction.”


                                               -7-
        Accordingly, because no evidence establishes that defendant’s CSC I convictions arose
out of the same transaction within the meaning of MCL 750.520b(3), we conclude that defense
counsel’s approval of consecutive sentencing fell below an objective standard of reasonableness.
Further, defendant was clearly prejudiced by the error because it resulted in the imposition of
consecutive sentences not authorized by law, thereby subjecting defendant to a significantly
lengthier period of incarceration. Accordingly, we vacate defendant’s consecutive sentences for
the CSC I convictions and remand for resentencing in accordance with MCL 750.520b(3).

       We affirm defendant’s convictions, but vacate his consecutive sentences for the CSC I
convictions and remand for resentencing on those offenses. We do not retain jurisdiction.



                                                           /s/ Donald S. Owens
                                                           /s/ David H. Sawyer
                                                           /s/ Douglas B. Shapiro




                                              -8-
