                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                               UNPUBLISHED
                                                               July 7, 2015
              Plaintiff-Appellee,

v                                                              No. 316314
                                                               Wayne Circuit Court
CHRISTOPHER LEE JOHNSON,                                       LC No. 12-010789-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,                               UNPUBLISHED

              Plaintiff-Appellee,

v                                                              No. 316983
                                                               Wayne Circuit Court
CHRISTOPHER LEE JOHNSON,                                       LC No. 12-010595-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,                               UNPUBLISHED

              Plaintiff-Appellee,

v                                                              No. 320014
                                                               Wayne Circuit Court
CHRISTOPHER LEE JOHNSON,                                       LC No. 13-001600-01-FC

              Defendant-Appellant.


Before: M. J. KELLY, P.J., and WILDER and K. F. KELLY, JJ.

PER CURIAM.

        In Docket Number 316314, defendant appeals as of right his jury trial convictions of
first-degree criminal sexual conduct (CSC-1), MCL 750.520b, and assault with a dangerous


                                             -1-
weapon (felonious assault), MCL 750.82. The trial court imposed consecutive sentences of 25 to
50 years for the CSC-1 conviction and 30 to 48 months for the felonious assault conviction.

       In Docket Number 316983, defendant appeals as of right his jury trial conviction of
felonious assault. The trial court sentenced him to time served for that conviction.

        In Docket Number 320014, defendant appeals as of right his jury trial convictions of
kidnapping, MCL 750.349, and two counts of CSC-1. Defendant was sentenced to 15 to 30
years in prison for each count, and the trial court ordered him to serve the sentence for one count
of CSC-1 consecutive to the sentence for kidnapping. We affirm, in part, and vacate and
remand, in part.

                                                 I

                                   A. Docket Number 320014

         Defendant’s convictions in Docket Number 320014 arise out of the kidnapping and
sexual assault of 18-year-old LG during the early morning hours of July 1, 2012, in Detroit. LG
testified that she was walking outside by herself when she observed a white, two-door car
approaching from behind; its headlights were off. LG dropped her book bag and prepared to
walk faster, but the car’s passenger, who LG did not know, but later identified as defendant,
exited and grabbed her, covering her mouth so she could not scream and stating, “Yeah, b****, I
got you now.” LG recalled that defendant forced her into the backseat and grabbed her book
bag, and then the driver drove off with defendant in the front passenger seat.

        LG further testified that, when the driver arrived at an area secluded among trees and
abandoned houses nearby, he stopped, defendant climbed over his seat to reach her in the
backseat, put his hand around her neck—holding her “down a little bit”—told her to take off her
shorts, and commented that she had no underwear on; then he demanded that she suck on his
penis and put it in her mouth. LG recalled that, afterward, defendant took his penis out of her
mouth and put it in her vagina, ejaculated, expressed his sexual satisfaction, and announced he
was taking a break. LG testified that, after some time passed, defendant inserted his penis into
her vagina again and ejaculated a second time.

        The driver subsequently took defendant and LG to another secluded area, where
defendant ordered LG to exit the vehicle and gave her book bag back. The men left and LG
realized her cellular phone was no longer in the book bag. She testified that she borrowed a
phone to call her mother and the police. When she was taken to the hospital, a sexual assault
nurse examiner (SANE) took swabs of her mouth, breasts, vagina, the labia minora, and labia
majora. Although LG did not report anal penetration to the SANE, the SANE testified that anal
swabs were nevertheless taken as well because, as a result of gravity, fluids or liquids can seep
down into the anal sphincter area. By a DNA analyst’s calculations, a minor donor of alpha
amylase (a saliva enzyme) found on LG’s breasts resembled defendant’s DNA with a frequency
of 1 in 11.73 trillion African Americans. The DNA analyst further testified that the minor donor
of sperm cells found on the vaginal swab resembled defendant’s DNA with a frequency of 1 in
132.8 billion African Americans. Finally, the DNA analyst testified that the minor donor of



                                                -2-
sperm cells found on an anal slide resembled defendant’s DNA with a frequency of 1 in 104.7
septillion African Americans.

        Defendant was charged with: (1) kidnapping, (2) CSC-1 (fellatio), and (3) CSC-1 (penis
in genital opening). The jury convicted him as charged.

                                   B. Docket Number 316983

        Defendant’s conviction in Docket Number 320014 arises out of the assault of DM in the
early morning hours of July 11, 2012, in Detroit. DM had been in her home watching television
with her siblings and a cousin, and talking on the phone to her boyfriend, but went outside to get
some fresh air around 12:30 a.m. DM did not see anyone outside, but noticed a white, two-door
car across the street. DM testified that defendant, who was a stranger to her at the time, exited
the driver side of the car and walked across the street toward her neighbor’s house. He was
wearing jeans with paint on them. DM recalled that, as she turned and walked toward her house,
defendant grabbed her hair from the back and pulled her toward the car; he held a box cutter
against DM’s neck and pushed her into the front passenger seat of the car, threatening to “stab”
her face if she yelled.

        DM testified that, after defendant started to drive, he “snatched [her] down” and forced
her to perform oral sex on his penis with her mouth. She recalled that he pulled off her dress at
that time, and at some point, he parked the car on Capital. DM testified that defendant was not
wearing a condom and he ejaculated, some of which she swallowed and some she spit onto her
hand. Next, defendant drove to Pearson and told DM to go to the backseat. As she crawled
through the two front seats, he pushed on her buttocks. DM testified that, defendant exited the
car, smoked a cigarette, and also appeared to be drinking Vodka; he reentered the car, climbed
into the backseat, and had sexual intercourse with DM by pushing his penis into her vagina. DM
recalled that defendant also pulled her bra above her breasts and touched one with his hand and
covered the other with his mouth. DM testified that defendant ejaculated, retrieved a towel from
the floor of the car, and used it to clean himself and the car.

        DM testified that defendant allowed her to dress and drove her back to her neighborhood,
dropping her off about eight to ten houses away from her home; although he returned her phone,
the battery had been removed. DM subsequently went to the hospital and a buccal swab, vaginal
swabs, and a swab of her right hand were retained for DNA analysis. A DNA analyst testified
that the minor donor of the DNA found on the vaginal swab was very low and defendant’s DNA
could not be included or excluded as a match. But she concluded that the major DNA types from
the sperm fraction of the sample collected from DM’s right hand resembled defendant’s DNA
with a frequency of 1 in 4.7 septillion people.

       Defendant was charged with: (1) CSC-1 (fellatio), (2) CSC-1 (penis in genital opening),
(3) kidnapping, (4) CSC-2 (commission of kidnapping), and (5) felonious assault. The
prosecutor filed a notice of intent to introduce other-acts evidence under MRE 404(b),




                                               -3-
specifically the testimony of DB1 and LG,2 to demonstrate defendant’s common scheme or plan
and his intent when kidnapping DM. Defense counsel stated on the record that he did not object
and the trial court allowed their testimony.

         The defense presented at trial was that all three women consented to sexual penetration
by defendant. Defense counsel elicited testimony that DM had a MocoSpace account, but she
testified that she only spoke with women on it and did not chat with defendant or promise to
have sex with him on that website. DM admitted that she closed her MocoSpace account
sometime after testifying at defendant’s district court proceeding, but she denied that she closed
it so her messages could not be retrieved. The jury found defendant not guilty of all counts
except felonious assault.

                                     C. Docket No. 316314

        Defendant’s convictions in Docket Number 316314 arise out of the assault of MM on
August 13, 2012, in Detroit. While she was using a chat room on MocoSpace.com, defendant (a
stranger to MM at the time) asked her if she wanted to make “a little extra money.” In a private
message, he suggested paying her for “conversation or pleasure.” Even though she knew
defendant likely wanted sex for money, she ultimately agreed because she needed extra money to
care for her newborn daughter.

       MM was afraid to go alone to Mobil gas station, where she had agreed to meet defendant,
so she brought a friend, MH. While they waited for defendant, he called and stated that he had
changed his mind. MM testified that, as she prepared to drive away, however, defendant called
again and said, “as long as it will be just us two, you can get in my car then”; she agreed on the
condition that MH could follow in her car. MH testified that, although he planned to follow, as
he was moving from the passenger seat to the driver seat, defendant drove away quickly and he
could not follow.

       MM testified that defendant took her to an unfamiliar residential area with abandoned
houses; when he parked the car, he asked MM what she wanted to do and she replied that she


1
  DB testified that defendant grabbed her as she walked in the dark, placed what felt like a gun to
her temple, and forced her into a white, two-door car, and took her to several places, where he
parked and demanded that she perform oral sex on him; at his third stop, after he smoked a
cigarette or drank something, DB performed oral sex again and, just before defendant ejaculated
he threatened her and demanded that she swallow his semen. DB testified that defendant smoked
or drank something, and then had sexual intercourse with her by inserting his penis into her
vagina without a condom and ejaculating. Although she had urged defendant to stop, he refused,
and ultimately he drove her to a dark street, pushed her out of the car, and threw her clothes and
purse out of the window to her before driving away; defendant kept her phone. DB testified at
trial that she never used MocoSpace, but she had participated in a dating chatline on her phone,
texting with 10 to 20 people in the three days before the incident. She denied arranging to have
sex with anyone for money.
2
  LG’s testimony was substantially similar to her testimony at trial in Docket Number 320014.


                                                -4-
was not sure. MM further testified that, although defendant had showed her $150 that they had
agreed would be payment for her services, he did not give it to her. Defendant took a drink of
liquor and lit a cigarette.

        MM testified that defendant then unzipped his pants, but by that time, she had changed
her mind and wanted to go; defendant replied that she “wasn’t going anywhere.” MM testified
that defendant then grabbed the back of her neck with his hand and forced her mouth onto his
penis. MM explained at trial that she did not scream, but she told defendant that she “didn’t
want to.”

        MM recalled that after she repeatedly asked to go home, defendant told her that he was
not finished yet and instructed her to get in the backseat of the car; meanwhile defendant
retrieved a gun from his left side and put it on the dashboard. MM testified that defendant told
her to take her clothes off; she removed her shirt and then defendant forcefully pulled off her
pants and underwear. MM explained at trial, “He ripped my underwear off.”3 MM testified that
defendant had her turn over, positioning her on “all fours,” and he inserted his penis into her
vagina; after a few minutes, defendant ejaculated and stopped.

       MM testified that defendant moved to the front seat and drove them back to a place
nearby the gas station where they had met. MM testified that, although defendant threw her
clothes to the backseat so she could dress, he pointed the gun at her, stated she was not going
anywhere, threw her cellular phone, shoes, and glasses out the window, and started to drive
away. MM testified that she pushed the passenger seat forward, grabbed the passenger door
handle, jumped out of the moving car, and ran in her socks toward her car, which MH had
parked near the gas station.

       MM was treated at a hospital and swabs from her body were retained for DNA analysis.
A DNA analyst testified that a donor of sperm cells found on the vaginal cervical swabs matched
defendant’s DNA with a frequency of 1 in 422.1 trillion African Americans.

        Defendant was charged with: (1) CSC-3 (fellatio; force or coercion), (2) CSC-1 (penis in
genital opening; possession of a weapon), and (3) felonious assault. The prosecutor filed a
notice of intent to introduce other-acts evidence under MRE 404(b), specifically the testimony of
MT4 and BW,5 to demonstrate defendant’s common scheme or plan and his intent when


3
 Defense counsel elicited testimony that, at the preliminary examination, when he asked her if
any of her clothes were ripped, she said they were not.
4
 MT testified that she met defendant on a social media app on her phone (Megamates) and had
been interested in dating him. After two weeks of communication by phone, defendant picked
her up in his white, two-door car with another, younger man in the backseat, and defendant
promised to get her hair done for her birthday. During their ride, defendant stated that he had a
girlfriend, which MT did not know, so she asked to go home. MT testified that defendant went
“crazy” and grabbed her by the neck. MT recalled that the younger man helped defendant move
MT to the backseat, the men switched places, and defendant held his hands around her neck until
she undressed. MT further recalled that the younger man put the clothes in the truck; meanwhile,

                                               -5-
kidnapping Morris. Defense counsel stated on the record that he did not object and the trial court
allowed their testimony.

        The defense presented at trial once again was that all three women consented to sexual
penetration by defendant. The jury found defendant not guilty of CSC-3, but guilty of CSC-1
and felonious assault.

                                                 II

                                    A. Docket Number 320014

                                                 1

        In Docket Number 320014, defendant first argues that the trial court violated his
constitutional right to Due Process, US Const, Am XIV; Const 1963, art 1, § 17, by allowing
jurors to ask questions of witnesses during the trial. Because defendant did not object to this
practice at trial, defendant’s argument is unpreserved and reviewed for plain error affecting his
substantial rights. People v Gaines, 306 Mich App 289, 297; 856 NW2d 222 (2014).

       MCR 2.513(I) provides:

       The court may permit the jurors to ask questions of witnesses. If the court permits
       jurors to ask questions, it must employ a procedure that ensures that such
       questions are addressed to the witnesses by the court itself, that inappropriate
       questions are not asked, and that the parties have an opportunity outside the
       hearing of the jury to object to the questions. The court shall inform the jurors of
       the procedures to be followed for submitting questions to witnesses.

 In People v Heard, 388 Mich 182, 187-188; 200 NW2d 73 (1972), our Supreme Court also held
that trial courts, in their discretion, may allow jurors to ask questions of witnesses. Regardless of

defendant held scissors to MT’s neck and forced her to put her mouth on his penis. MT testified
that, later, he also threatened her with scissors as he put his penis in her vagina. Ultimately, the
men took MT back to her neighborhood and returned her clothes and cellular phone when she
got out of the car. She did not promptly report this assault to the police because she initially
planned to try to “get somebody to hurt him.”
5
  BW, who used MocoSpace for prostitution, testified that she met defendant on the website and
planned to have oral sex and sexual intercourse in exchange for $200. She began consensual oral
sex in his white, two-door car, but then defendant became angry because she used a condom.
BW testified that defendant pointed an object, which felt like a gun, at the back of her head. She
recalled that she was scared as he held the back of her neck tightly to shove her head down. BW
testified, at that point, she no longer wanted to have oral sex with defendant. When defendant
told her to get in the backseat, she was afraid he would kill her. She exited the car and grabbed a
box cutter from the floor of the passenger seat and swung it at him until she could retrieve her
purse, which defendant had thrown in the backseat.




                                                -6-
defendant’s arguments for reform, we are bound to follow this decision by the doctrine of stare
decisis and conclude that a trial court may allow jurors to ask questions of witnesses during a
trial. Trademark Properties v Fed Nat’l Mtg Ass’n, ___ Mich App ___; ___ NW2d ___ (2014).

        Defendant argues that the questions demonstrated that the “jury was actively involved in
seeking out facts, filling in any perceived gaps in the prosecutor’s proofs, and deliberating before
the conclusion of the case.” But in Heard, our Supreme Court explained that the purpose of
allowing jurors to ask questions is to “help unravel otherwise confusing testimony” and to “aid
the fact-finding process.” 388 Mich at 187-188. In addition, the trial court instructed the jury
that it could not discuss the case until the trial court sent it to the jury room for that purpose.
Jurors are presumed to follow their instructions. People v Powell, 303 Mich App 271, 274; 842
NW2d 538 (2013). Defendant has not offered any evidence that the jury began deliberating in
this case before the close of the trial and has thus failed to show plain error affecting his
substantial rights regarding the juror questions.

                                                  2

        Next, defendant argues that the trial court erred by instructing the jury on a manner of
sexual penetration for CSC-1 that had not been charged. Specifically, defendant was charged
with two counts of CSC-1 on the basis of fellatio and penis to vagina penetration. But the trial
court instructed the jury that the charge could be established with evidence of penetration by
defendant’s penis in LG’s anus:

       The defendant is charged with two counts of the crime of first-degree criminal
       sexual conduct, Counts 2 and 3. To prove this charge, the prosecutor must prove
       each of the following elements beyond a reasonable doubt:

       First, that the defendant engaged in a sexual act that involved entry into LG’s
       genital opening by the defendant’s penis. Any entry, no matter how slight, is
       enough. It does not matter whether the sexual act was completed or whether
       semen was ejaculated and/or entry into LG’s anal opening by the defendant’s
       penis. Any entry, no matter how slight, is enough. It does not matter whether the
       sexual act was completed or whether semen was ejaculated, and/or entry into
       LG’s mouth by the defendant’s penis. Any entry, no matter how slight, is enough.
       It does not matter whether the sexual act was completed or whether semen was
       ejaculated.

After the trial court instructed the jury, it asked if there were “any objections or corrections to the
jury instructions as read to the jury,” and defense counsel responded, “No, your Honor.”

       “Counsel’s affirmative expression of satisfaction with the trial court’s jury instruction
waived any error.” People v Chapo, 283 Mich App 360, 372-373; 770 NW2d 68 (2009). As our
Supreme Court has held, when defense counsel states, “I have no objections,” that is an “express
and unequivocal indication [ ] that [defense counsel] approved of the instructions” and waived
any error. People v Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011). Accordingly,
defendant’s challenge to the trial court’s instruction is waived.



                                                 -7-
        Defendant also maintains that defense counsel was ineffective because he failed to object
to the jury instruction regarding the manner of penetration. We disagree. Because no Ginther
hearing was held, People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973), review is
limited to errors apparent on the record. People v Jordan, 275 Mich App 659, 668; 739 NW2d
706 (2007).

       Effective assistance of counsel is presumed, and defendant bears a heavy burden
       of proving otherwise. To demonstrate ineffective assistance, defendant must
       show: (1) that his attorney’s performance fell below an objective standard of
       reasonableness, and (2) that this performance so prejudiced him that he was
       deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
       existence of a reasonable probability that, but for counsel's error, the result of the
       proceeding would have been different.” [Gaines, 306 Mich App at 300 (citation
       and quotation marks omitted).]

The result would not have been different if defense counsel had objected to the instruction. LG
did not testify that defendant penetrated her anus with his penis. Rather, she testified that he put
his penis in her mouth and then penetrated her vagina twice. Her testimony about these three
penetrations, alone, was sufficient to support defendant’s two convictions for CSC-1 on the basis
of fellatio and penis to vagina penetration. People v Davis, 241 Mich App 697, 700; 617 NW2d
381 (2000); People v Newby, 66 Mich App 400, 405; 239 NW2d 387 (1976) (“A complainant’s
eyewitness testimony, if believed by the trier of fact, is sufficient evidence to convict.”). The
presence of DNA resembling defendant’s DNA on the vaginal swab further evidenced penis to
vagina penetration. Contrary to defendant’s argument on appeal, the fact that sperm cells found
on the anal slide also resembled defendant’s DNA does not create a reasonable probability that
the jury convicted defendant of CSC-1 on the basis of anal penetration. Again, LG did not
testify regarding any anal penetration and she told the SANE there was none. Further, the anal
swab was only taken because, when there is vaginal penetration, fluids can seep down into the
anal sphincter area. Moreover, timely objection by defense counsel would have prompted the
trial court to give the correct jury instruction regarding penile-vaginal penetration. Therefore,
defendant cannot establish prejudice from defense counsel’s failure to object to the jury
instruction regarding the manner of penetration. Gaines, 306 Mich App at 300.

                                                 3

        Defendant argues that the trial court impermissibly enhanced his sentence based on facts
not found by the jury when it scored various offense variables. Defendant contends this was in
violation of Alleyne v United States, ___ US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013).
However, as defendant concedes, this Court has previously rejected this argument.

        According to Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435
(2000), and its progeny, United States v Booker, 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d
621 (2005); Blakely v Washington, 542 US 296, 311-313; 124 S Ct 2531; 159 L Ed 2d 403
(2004), any fact that increases a defendant’s maximum penalty at sentencing must be admitted
by a defendant or proven to a jury beyond a reasonable doubt. The United States Supreme Court
recently extended this rule to mandatory minimum sentences in Alleyne. In that case, the Court
found that “any fact that increases the mandatory minimum is an ‘element’ that must be

                                                -8-
submitted to the jury.” Id. But, the Court indicated that its Alleyne decision did not mean that
every fact influencing judicial discretion in sentencing must be proven to a jury beyond a
reasonable doubt. Id. at 2163.

        In People v Herron, 303 Mich App 392, 403-404; 845 NW2d 533 (2013), this Court
declined to apply Alleyne to Michigan’s indeterminate sentencing scheme. This Court explained
that a recommended guidelines range used to establish a minimum sentence in Michigan differs
from a mandatory minimum sentence as discussed in Alleyne. Id. Thus, Michigan’s scheme falls
within the broad discretion traditionally afforded to trial courts “to establish a minimum sentence
within a range authorized by law as determined by a jury verdict or a defendant’s plea” as
opposed to judicial fact-finding used to increase a mandatory minimum floor. Id. at 405. Thus,
defendant’s argument has been foreclosed by Herron.6

                                                4

        Last, in his Standard 4 brief, defendant argues that defense counsel was ineffective for
obtaining consent from defendant’s mother for the police to search defendant’s cellular phone
and then allowing that search. Defendant’s argument is dependent upon facts outside the record
for which defendant has failed to provide supporting proof. Because defendant has not
established the factual predicate for his argument, it cannot succeed. People v Hoag, 460 Mich
1, 6; 594 NW2d 57 (1999).

                                   B. Docket Number 316983

                                                1

         In Docket Number 316983, defendant first claims that his constitutional rights to due
process were violated by the admission of other-acts evidence, specifically the testimony of DB
and LG. But defendant waived any challenge to the admission of this evidence on appeal when
defense counsel expressly stated on the record that he had no objection to the prosecutor’s
decision to call MRE 404(b) witnesses. See People v Carines, 460 Mich 750, 763; 597 NW2d
130, 138 (1999) (defining waiver as an “ ‘intentional relinquishment or abandonment of a known
right.’ ”) (citation omitted).




6
 An appeal in Herron was held in abeyance pending the Michigan Supreme Court’s decision in
People v Lockridge, 496 Mich 852; 846 NW2d 925 (2014). See People v Herron, ___ Mich ___;
846 NW2d 924 (2014). However, “[t]he filing of an application for leave to appeal to the
Supreme Court or a Supreme Court order granting leave to appeal does not diminish the
precedential effect of a published opinion of the Court of Appeals.” MCR 7.215(C).


                                                -9-
                                                 2

        In a related claim, defendant argues that defense counsel was ineffective for failing to
object to the other-acts evidence. Defendant preserved his ineffective assistance of counsel
claim for review when he moved this Court to remand this case for an evidentiary hearing;
however, because defendant’s motion was denied,7 our review is limited to mistakes apparent on
the record. Jordan, 275 Mich App at 667.

        Defendant claims the jury only convicted him of felonious assault because it heard the
other-acts evidence and did not want to set a “serial rapist” free. But his defense at trial was that
all three women agreed to have sex and falsely accused him of kidnapping and rape when he
refused to pay them, and the jury acquitted defendant of the kidnapping and CSC charges.
Regardless, defendant cannot establish that he would also have been acquitted of felonious
assault but for defense counsel’s decision not to object to the other-acts evidence. DM testified
that defendant held a box cutter to her neck and threatened to “stab” her if she screamed for help;
she was so afraid that she remained quiet. In addition, a reasonable trier of fact could conclude
that defendant demonstrated consciousness of guilt and attempted to prevent DM from seeking
help by removing her cellular phone battery from her phone. A cellular phone battery and box
cutters were recovered during a search of his home. In light of these facts, defendant has failed
to establish prejudice and we therefore conclude that he was not denied the effective assistance
of counsel as a result of defense counsel’s decision not to object to the other-acts evidence.

                                                 3

       In his Standard 4 brief, defendant also argues that defense counsel was ineffective for
advising him not to testify on the basis that he had a prior conviction for a crime of theft or
dishonesty, which could lead to impeachment by the prosecutor. Defendant’s argument is
dependent upon facts outside the record for which defendant has failed to provide supporting
proof. Because defendant has not established the factual predicate for his argument, it cannot
succeed. Hoag, 460 Mich at 6.

                                    C. Docket Number 316314

                                                 1

        In Docket Number 316314, defendant again claims that his constitutional rights to due
process were violated by the admission of other-acts evidence, specifically the testimony of MT
and BW. But defendant waived this challenge on appeal when defense counsel expressly stated
on the record that he had no objection to the prosecutor’s decision to call MRE 404(b) witnesses.
Carines, 460 Mich at 763.




7
 People v Johnson, unpublished order of the Court of Appeals, entered July 8, 2014 (Docket No.
316983).


                                                -10-
                                                 2

       Defendant also argues that defense counsel was ineffective for failing to object to the
other-acts evidence. Defendant preserved his ineffective assistance of counsel claim for review
when he moved this Court to remand this case for an evidentiary hearing; however, because
defendant’s motion was denied,8 our review is limited to mistakes apparent on the record.
Jordan, 275 Mich App at 667.

        Defendant again claims the jury only convicted him of CSC-1 and felonious assault
because it heard the other-acts evidence and did not want to set a “serial rapist” free, so it
compromised by acquitting him of CSC-3. But defendant cannot establish that he would also
have been acquitted of CSC-1 and felonious assault but for defense counsel’s decision not to
object to the other-acts evidence. MM and MH testified that MM agreed to go in defendant’s car
if MH could follow in her car behind them, but defendant sped away quickly—preventing MH
from following—and took MM to a neighborhood of abandoned houses; a reasonable trier of fact
could infer that, through his actions, defendant isolated MM and made her vulnerable to
victimization. Furthermore, MM testified that, with a gun resting on the dashboard, defendant
forcefully removed her clothes, positioned her on “all fours,” and he inserted his penis into her
vagina. On the basis of MM’s testimony, alone, a reasonable trier of fact could conclude that
defendant engaged in sexual penetration while armed with a gun. Davis, 241 Mich App at 700;
Newby, 66 Mich App at 405. Moreover, MM testified that defendant pointed a gun at her when
she attempted to exit his car, thereby allowing the jury to conclude that defendant committed
felonious assault. In light of these facts, defendant has failed to establish prejudice and we again
conclude that he was not denied the effective assistance of counsel as a result of defense
counsel’s decision not to object to the other-acts evidence.

                                                 3

         Next, defendant argues that the trial court erred by instructing the jury regarding the
consideration of prior inconsistent statements. Specifically, prior inconsistent statements made
under oath and subject to the penalty of perjury are not hearsay, MRE 801(d)(1)(A), and thus
properly can be used as substantive evidence. See People v Malone, 445 Mich 369, 378; 518
NW2d 418 (1994) (statements that are not hearsay under MRE 801(d)(1) may be used as
substantive evidence). Defense counsel elicited testimony from MMorris that she testified at the
preliminary examination that none of her clothes were ripped by defendant, but at trial, she
testified that defendant ripped her underwear off. On appeal, defendant claims that CJI2d 4.5(2)
was applicable to these prior statements. CJI2d 4.5(2) provides:

       (2) Evidence has been offered that one or more witnesses in this case previously
       made statements inconsistent with their testimony at this trial. You may consider
       such earlier statements in deciding whether the testimony at this trial was truthful
       and in determining the facts of the case. [Emphasis added.]


8
 People v Johnson, unpublished order of the Court of Appeals, entered July 31, 2014 (Docket
No. 316314).


                                               -11-
And defendant claims that the trial court’s different reading of the instruction was erroneous
because it did not allow for use of MM’s statement as substantive evidence:

       Evidence has been offered that one or more witnesses in this case previously
       made statements inconsistent with the testimony at this trial. You may consider
       such earlier statements in deciding whether the testimony at this trial was truthful
       in determining the facts of the case. [Emphasis added.]

But after the trial court instructed the jury, it asked if the parties had any objections, and defense
counsel responded, “No, your Honor.” “Counsel’s affirmative expression of satisfaction with
the trial court’s jury instruction waived any error.” Chapo, 283 Mich App at 372-373.

        Defendant also argues that defense counsel was ineffective by failing to object to the
instruction as read. But, again, defendant cannot establish that, but for the trial court’s
instruction, the outcome would have been different. Defendant only argues on appeal that
consideration of MM’s statements about whether her clothing was ripped could have affected the
jury’s determination regarding whether MM was credible when testifying that she saw
defendant’s gun on the dashboard before he sexually penetrated her vagina. But the trial court
instructed the jury that any prior inconsistent statements could be used for the purpose of
deciding whether the witness testified truthfully in court. Therefore, defendant has failed to
establish prejudice and we conclude that he was not denied the effective assistance of counsel as
a result of defense counsel’s decision not to object to the trial court’s reading of the instruction
on prior inconsistent statements.

                                                  4

        Defendant argues that the prosecutor improperly vouched for MT’s credibility by stating
in closing argument, “Then you have [MT]. I’m going to challenge any one of you to go back
and say that that woman was not telling you the truth. If she were prostituting we would just tell
you.” We disagree.

        To preserve a claim of prosecutor error for appellate review, a defendant must make a
contemporaneous objection and request a curative instruction. People v Callon, 256 Mich App
312, 329; 662 NW2d 501 (2003). Because defendant did not object and request a curative
instruction when the prosecutor allegedly vouched for MT’s credibility, defendant’s claim of
prosecutor error is unpreserved. We review unpreserved claims of prosecutor error for plain
error affecting defendant’s substantial rights. Id.

        The test for prosecutor error is whether the defendant was denied a fair and impartial
trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). A prosecutor may not
vouch for the credibility of a witness by implying that he or she has some special knowledge of
the witness’s truthfulness. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).
But the prosecutor is free to argue the evidence and the reasonable inferences that arise from it.
People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Here, the prosecutor argued, based
on the facts in the record and the applicable law, that MT had no reason to lie about whether she
was prostituting herself. MM and BW had both testified that they had agreed to have sex with
defendant in exchange for money. The prosecutor argued that MT’s situation was different

                                                -12-
because she had been chatting with defendant and thought he was interested in having a
relationship with her. The prosecutor argued that in each circumstance, however, the women
ultimately did not consent to defendant’s sexual penetrations and assaultive behavior. Moreover,
the women were “human beings” and, regardless of their previous decisions, they “still
deserve[d] respect.” The prosecutor’s argument did not amount to error.

       Defendant also claims that defense counsel was ineffective by failing to object to the
prosecutor’s argument about MT’s truthfulness. But because we conclude the prosecutor’s
argument was not improper, defense counsel was not ineffective for failing to object to it.
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.”).

                                                 5

        Defendant next asserts that he is entitled to a new trial because the prosecutor commented
on his demeanor in the courtroom during trial. We disagree.

        During the prosecutor’s examination of MT, she questioned MT regarding defendant’s
identity and, as defendant argues on appeal, noted that he was laughing:

               Prosecutor. Did he grab you with one hand or both hands?

               Turner. Both hands.

                Prosecutor. And we’re talking about the man right here who’s laughing;
       is that correct[?]

               Defense counsel. Objection, your Honor, my client is not laughing.

               Prosecutor. Yeah, he is.

               Trial court. Well leave it - -

               Prosecutor. And he’s audibly laughing.

               Trial court. Yeah, I heard something too. Move on, please.

        We need not determine whether a prosecutor errs as a matter of law by commenting on
the demeanor of a non-testifying criminal defendant because, here, any error was harmless. An
error in the admission or exclusion of evidence will not warrant reversal unless refusal to do so
appears inconsistent with substantial justice or affects a substantial right of the opposing party.
MCR 2.613(A). The trial court instructed the jurors that the prosecutor’s statements and
questions were not evidence and that it should only decide the case based on the evidence. The
jury was presumed to follow its instructions. Powell, 303 Mich App at 274. Moreover, in her
question, the prosecutor referenced defendant’s demeanor as an identifying characteristic to
ensure that the person MT described was, in fact, defendant. But this was an isolated occurrence
and the prosecutor did not argue that defendant’s demeanor demonstrated consciousness of guilt.

                                                -13-
The jury was also instructed that it could not convict defendant merely because it concluded that
defendant was a bad person. Because any error involving the prosecutor’s description of
defendant’s demeanor was harmless, defendant is not entitled to a new trial.

                                                6

       Defendant further argues that his due process rights were violated when the trial court
admonished defense counsel on the record, in the presence of the jury, during deliberations. We
disagree.

       During deliberations, the trial court responded to a question from the jury:

       The other question that you sent here, which when I looked at it, you know, I was
       perplexed, and I’m still perplexed, it says second count: Is this any sex with gun
       or forced sex with gun?

       This about that. Okay? Logic and common sense. What does that really mean?
       I’m not sure. This gun is not a sex toy. Why would somebody have a gun in the
       car or display a gun - -

Then, defense counsel interrupted, “Your honor - -,” and the trial court stated, “Please shut up.
Okay? You’ll get a chance to respond to anything that I say by making an objection. Okay?”
Outside the presence of the jury, defense counsel stated, “And then the other comments the Court
made about common sense and sex toy was [sic] highly prejudicial and violates [sic] my client’s
due process [rights] to a fair trial.” Although defense counsel objected to the trial court’s
comments about common sense and the “gun is not a sex toy,” defense counsel did not object to
the court’s request that defense counsel “shut up.” People v Bulmer, 256 Mich App 33, 35; 662
NW2d 117 (2003) (An objection on one ground is insufficient to preserve an appellate challenge
based on a different ground.). Therefore, defendant’s unpreserved argument is reviewed for plain
error affecting substantial rights. Gaines, 406 Mich App at 297.

        Due process requires that all parties have an unbiased and impartial decisionmaker. Cain
v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). “A trial judge is presumed
to be impartial and the party who asserts partiality has a heavy burden of overcoming that
presumption.” In re MKK, 286 Mich App 546, 566; 781 NW2d 132 (2009). “However, the trial
court must exercise caution and restraint to ensure that its questions [and comments] are not
intimidating, argumentative, prejudicial, unfair, or partial.” People v Conyers, 194 Mich App
395, 405; 487 NW2d 787 (1992). “The test is whether the “judge’s questions and comments
may well have unjustifiably aroused suspicion in the mind of the jury as to a witness’[s]
credibility, . . . and whether partiality quite possibly could have influenced the jury to the
detriment of defendant’s case.” Id. (citation and quotation marks omitted).

         Defendant only cites the trial court’s isolated admonishment of defense counsel to argue
that the trial court’s conduct denied him a fair trial. Cf Conyers, 194 Mich App at 398 (judge’s
repeated improper and impartial comments and questions denied the defendant a fair trial). But
it is a judge’s duty “to control all proceedings during the trial.” MCL 768.29. Here, the trial
court interrupted defense counsel’s objection, promising it could be done later. To the extent
defendant argues the trial court’s choice of words aroused suspicion in the mind of the jury, any
                                               -14-
perceived prejudice was alleviated by the court’s instructions to the jury that its comments,
rulings, questions, and instructions were not evidence, and were not intended to influence the
jury or express the trial court’s personal opinion. Again, we presume the jury followed its
instructions. Powell, 303 Mich App at 274. Accordingly, defendant is not entitled to a new trial
on the basis of the trial court’s comment.

                                                  7

       Defendant argues that he is entitled to resentencing because: (1) the trial court
impermissibly enhanced his sentence based on facts not found by the jury when it scored various
offense variables, and (2) the trial court failed to sufficiently justify its sentences, which departed
from the applicable sentencing guidelines ranges. We agree, in part.

        First, as we explained earlier in this opinion, defendant’s argument regarding judicial
fact-finding has been foreclosed by Herron, 303 Mich App at 405.

        Second, the trial court’s determination that sentencing factors constituted substantial and
compelling reasons for departure from the guidelines is reviewed for an abuse of discretion, “as
is the amount of the departure.” People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008).
An abuse of discretion is present when the sentence assessed is not within the range of principled
outcomes. Id.

        “It is well established that ‘[a] court may depart from the appropriate sentence range . . .
if the court has a substantial and compelling reason for that departure and states on the record the
reasons for departure.’ ” People v Anderson, 298 Mich App 178, 183; 825 NW2d 678 (2012),
quoting MCL 769.34(3). In order to be substantial and compelling, the reasons upon which the
trial court relied must be objective and verifiable. Smith, 482 Mich at 299. The reasons for
departure must “be of considerable worth in determining the length of the sentence and should
keenly or irresistibly grab the court’s attention.” Id. The trial court may not base a departure
from the guidelines on an “ ‘offense characteristic or offender characteristic already taken into
account in determining the appropriate sentence range unless the court finds from the facts . . .
that the characteristic has been given inadequate or disproportionate weight.’ ” Id. at 300,
quoting MCL 769.34(3)(b).

        When there is a departure from the guidelines range, the sentence must be proportionate
to the seriousness of the defendant’s conduct and criminal history. Smith, 482 Mich at 300. To
be proportionate, the sentence must be more appropriate to the offense and the defendant than a
sentence within the guidelines range would have been. Id. at 318. When a sentence is a
departure, “the statutory guidelines require more than an articulation of reasons for a departure;
they require justification for the particular departure made.” Id. at 303. Therefore, the trial court
“must justify on the record both the departure and the extent of the departure.” Id. at 313. In
Smith, the Supreme Court explained:

       [I]f it is unclear why the trial court made a particular departure, an appellate court
       cannot substitute its own judgment about why the departure was justified. A
       sentence cannot be upheld when the connection between the reasons given for
       departure and the extent of the departure is unclear. When departing, the trial

                                                 -15-
       court must explain why the sentence imposed is more proportionate than a
       sentence within the guidelines recommendation would have been. [Id. at 304
       (footnotes omitted).]

       Regarding reference to the sentencing range grid, the Smith Court stated:

       Certainly, a trial court that is contemplating a departure is not required to consider
       where a defendant’s sentence falls in the sentencing range grid. However, we
       think that reference to the grid can be helpful, because it provides objective
       factual guideposts that can assist sentencing courts in ensuring that the “
       ‘offenders with similar offense and offender characteristics receive substantially
       similar sentences.’” [Smith, 482 Mich at 309 (footnotes omitted).]

       Here, the minimum sentencing guidelines range for the CSC-1 conviction was 117 to 225
months. The trial court departed from that range by sentencing defendant to 25 to 50 years for
the CSC-1 conviction. Because the trial court ordered defendant’s sentences to be served
consecutively, the felonious assault conviction was also scored and the minimum sentencing
guidelines range for that conviction was 0 to 17 months. The trial court departed from that range
by sentencing defendant to 30 to 48 months for the felonious assault conviction.

        On appeal, defendant does not challenge the trial court’s reasons for departure, but
instead argues that the trial court failed to justify the extent of each departure. In response, the
prosecution contends that the trial court provided the requisite substantial and compelling
reasons for exceeding the guidelines range, and that the trial court was not required to score the
sentencing guidelines for defendant’s felonious assault conviction because felonious assault is a
lower crime class than CSC-1. Addressing the prosecution’s second contention, we note that
MCL 771.21(2) provides, “If the defendant was convicted of multiple offenses, subject to [MCL
771.14], score each offense as provided in this part.” To that end, MCL 771.14(2) provides, in
pertinent part:

       A presentence investigation report prepared under subsection (1) shall include all
       of the following:

                                              * * *

       (e) For a person to be sentenced under the sentencing guidelines set forth in [MCL
       777.1 et seq.] all of the following:

       (i) For each conviction for which a consecutive sentence is authorized or required,
       the sentence grid in [MCL 777.61 et seq.] that contains the recommended
       minimum sentence range.

       (ii) Unless otherwise provided in subparagraph (i), for each crime having the
       highest crime class, the sentence grid in [MCL 777.61 et seq.] that contains the
       recommended minimum sentence range.




                                               -16-
       (iii) Unless otherwise provided in subparagraph (i), the computation that
       determines the recommended minimum sentence range for the crime having the
       highest crime class.

In People v Lopez, 305 Mich App 686, 690-692; 854 NW2d 205 (2014), lv den 497 Mich 905
(2014), this Court held that the effect of MCL 771.21(2) and MCL 771.14(2)(e) was that “the
trial court was not required to independently score the guidelines for and sentence the defendant
on each of his concurrent convictions if the court properly scored and sentenced the defendant
on the conviction with the highest crime classification.” (Emphasis added). However, as clear
from the plain language of MCL 771.14(2)(e)(i), each consecutive sentence imposed must be
individually scored. Because the trial court sentenced defendant to consecutive terms of
imprisonment for his CSC-1 and felonious assault convictions, each must have been
independently scored, and the prosecution’s contention regarding the applicability of MCL
771.14(2)(e)(ii)-(iii) is without merit.

        Addressing defendant’s argument, we agree that the trial court gave no explanation for
the particular departures and the trial court failed to justify why the sentences imposed are more
proportionate than sentences within the guidelines recommendation would have been. We
therefore vacate defendant’s sentences in Docket Number 316314 and remand for resentencing.
On remand, the trial court must sentence defendant within any applicable sentencing guidelines
ranges for both his CSC-1 and felonious assault convictions, or articulate on the record a
substantial and compelling reason for departure and justify the extent of the departure, in
accordance with Smith, 482 Mich at 309.9

                                                8

       In his Standard 4 brief, defendant again argues that defense counsel was ineffective for
advising him not to testify on the basis that he had a prior conviction for a crime of theft or
dishonesty, which could lead to impeachment by the prosecutor. Defendant’s argument is
dependent upon facts outside the record for which defendant has failed to provide supporting
proof. Because defendant has not established the factual predicate for his argument, it cannot
succeed. Hoag, 460 Mich at 6.




9
  Because we vacate defendant’s sentence in Docket No. 316314, we decline to address
defendant’s argument whether the trial court committed plain error affecting defendant’s
substantial rights by imposing $600 in court costs. Any imposition of costs on remand, however,
should be made in accordance with MCL 769.1k, as amended by 2014 PA 352, People v
Konopka, ___ Mich App ___; ___ NW2d ___ (Docket Number 319913; March 3, 2015), and
People v Cunningham, 496 Mich 145, 159; 852 NW2d 118 (2014).


                                              -17-
                                            III

        We affirm defendant’s convictions, but vacate his sentence in Docket No. 316314 and
remand for further proceedings in that case, consistent with this opinion. We do not retain
jurisdiction.

                                                       /s/ Michael J. Kelly
                                                       /s/ Kurtis T. Wilder
                                                       /s/ Kirsten Frank Kelly




                                           -18-
