                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 10, 2016
               Plaintiff-Appellee,

v                                                                  Nos. 324385; 324397
                                                                   Macomb Circuit Court
STANLEY GREIG DUNCAN,                                              LC Nos. 2011-004304-FC;
                                                                           2011-003839-FC
               Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

PER CURIAM.

         In Docket No. 324385, defendant appeals by right his convictions, following a jury trial,
of first-degree criminal sexual conduct (CSC I), MCL 750.520b(2)(b). Defendant was sentenced
to 25 to 40 years’ imprisonment for the CSC I conviction. In Docket No. 324397, defendant
appeals by right his convictions, following a jury trial, of four counts of CSC I,
MCL 750.520b(2)(b), and four counts of second-degree criminal sexual conduct (CSC II),
MCL 750.520c(2)(b). Defendant was sentenced to 25 to 40 years’ imprisonment for each CSC-I
conviction and 71 months to 15 years’ imprisonment for each CSC-II conviction. Defendant’s
appeals were consolidated by this Court.1 We affirm his convictions in both dockets and remand
for resentencing in Docket No. 324385.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from defendant’s sexual molestation of three female children while they
were attending a daycare service operated by his wife and codefendant at trial, Vita Duncan. The
victims are: (a) RS, born in 2008, (b) KN, born in 2007, and (c) SP, born in 1992. In Docket
No. 324385, defendant was charged with one count of CSC I arising from an incident at the
daycare with SP. In Docket No. 324397, defendant was charged with four counts of CSC I, two
counts pertaining to RS and the remaining two counts pertaining to KN, and four counts of CSC
II, again two counts pertaining to RS and the remaining two counts pertaining to KN. The
incidents involving RS and KN were alleged to have occurred between January 15, 2009 and


1
  People v Duncan, unpublished order of the Court of Appeals, entered November 5, 2014
(Docket Nos. 324385; 324397).


                                               -1-
June 21, 2011. The incident involving SP was alleged to have occurred between June and
August of 1998. Defendant’s appeals center on the admission of testimony of and regarding the
minor victims, as well as sentencing issues.

                      A. ADMISSION OF TESTIMONY REGARDING RS

         Prior to trial,2 the trial court preliminarily ruled that statements made by RS to her parents
regarding the molestation were admissible under the “tender years” exception to the hearsay rule,
MRE 803A, holding that the statements were spontaneous as required by MRE 803A(2) and that
the delay in making the statements was excusable under MRE 803A(3). RS’s father then
testified at trial that RS made statements that defendant had touched and placed his mouth on
RS’s “privates” at day care. RS’s father also reported that RS had stated that defendant also had
touched KN. RS’s mother also testified to the statements made by RS.

       RS, four years old at the time of trial, had previously been qualified to testify at the
preliminary examinations of both defendant and Vita. However, after questioning RS, the trial
court found RS not qualified to testify at trial. The prosecution requested that RS be deemed
unavailable under MRE 804(a)(3) and that her preliminary examination testimony be admitted.
Defense counsel objected, asserting that RS’s disqualification was not premised on a lack of
memory and further that counsel for defendant and Vita had been denied the ability to engage in
a full cross-examination of RS, each having not attended the codefendant’s preliminary
examination. The trial court ruled that RS’s preliminary examination testimony was
inadmissible, determining that RS was not “unavailable” under MRE 804 and further that
admission of RS’s testimony would violate Confrontation Clause as stated in Crawford v
Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).

        The prosecution sought an interlocutory appeal of the trial court’s ruling. Although the
trial court initially denied a stay of proceedings, the proceedings were ultimately stayed under an
order of our Supreme Court, which directed this Court to consider the prosecution’s appeal.
People v Duncan, 493 Mich 867; 820 NW2d 929 (2012). This Court affirmed the trial court’s
ruling in an unpublished opinion, agreeing with the trial court that RS’s lack of competency to
testify under MRE 601 did not render her unavailable for purposes of MRE 804(a)(4).3 Our
Supreme Court disagreed, however; providing a detailed analysis of the language of
MRE 804(a), the Court held:

       Under the plain language of the rule, and with our recognition of the unique
       mental and emotional limitations of youth, we hold that RS had a then existing


2
  All of the charges against defendant and his wife, Vita, were addressed in a single, joint jury
trial. Vita was tried on an aiding and abetting theory regarding defendant’s commission of CSC
as well as violations related to her operation of a child care facility. Vita is not a party to this
appeal.
3
 People v Duncan, unpublished opinion per curiam of the Court of Appeals, issued November
29, 2012 (Docket Nos. 312637; 312638), p 1, lv gtd and vacated in part 493 Mich 926 (2013).


                                                 -2-
       mental infirmity in this case because the facts show that she was unable to
       sufficiently cope with her significant emotional distress and give testimony at
       trial, a result of her particularly young age. Therefore, she was unavailable within
       the plain meaning of MRE 804(a)(4). [People v Duncan, 494 Mich 713; 835
       NW2d 399 (2013).]

The Supreme Court thus reversed this Court and remanded the matter to the trial court to
“determine whether RS’s preliminary examination testimony satisfied the requirements of
MRE 804(b)(1) and, if so, whether admission of that testimony would violate defendants’ rights
under the Confrontation Clause.” Id. at 730.

       Following the ruling of our Supreme Court, several hearings were conducted by the trial
court involving a multitude of motions seeking dismissal of the action or exclusion of other
testimony. In accordance with the directive of our Supreme Court, the trial court issued an
opinion and order on December 6, 2013, and held that the admission of RS’s preliminary
examination testimony satisfied both MRE 804(b)(1) and the Confrontation Clause. The trial
court further held that the preliminary examination transcript pertaining to defendant was
admissible against Vita and vice-versa. RS’s preliminary examination transcripts from October
17, 2011 and December 2, 2011 were read to the jury.

                      B. ADMISSION OF EVIDENCE REGARDING KN

         KN, five years old at the time of trial, was qualified to testify at trial and testified that
defendant had touched her genitals on more than one occasion. KN’s mother and father both
testified that, after RS’s parents apprised them of RS’s statement that defendant had touched
KN’s genitals, KN was interviewed twice by a forensic interviewer. At the first interview, KN
did not allege any molestation by defendant or Vita. After the first interview, staff of the
forensic interviewing facility provided KN’s parents with a pamphlet entitled, “Keeping My
Body Safe,” to read to KN and assist in familiarizing KN with private body areas. After KN’s
parents read her the book for the first time, KN told them that defendant had touched her genitals
on a number of occasions. KN’s mother and father both testified to the content of these
statements under the “tender years” exception. Although defendant had opposed the admission
of RS’s statements to her parents, defendant does not appear to have raised a separate challenge
to the introduction of KN’s statements to her parents.

                                        C. SENTENCING

       Defendant was sentenced on the charge of CSC I involving SP according to the current
version of MCL 750.520b(2)(b), which provides for sentencing “[f]or a violation that is
committed by an individual 17 years of age or older against an individual less than 13 years of
age by imprisonment for life or any term of years, but not less than 25 years.” The incident
involving SP was alleged, according to the felony information, to have occurred in 1998. The
version of the statute at the time of the offense did not contain a minimum term of imprisonment.
See MCL 750.520b prior to amendment by 2002 PA 714 and 2006 PA 169.




                                                 -3-
       II. ADMISSIBILITY OF RS’S PRELIMINARY EXAMINATION TESTIMONY

        Defendant initially argues that the trial court’s determination that the preliminary
examination testimony of RS was admissible violated his right of confrontation under Crawford
and MRE 804(b)(1). Defendant challenges the admission of RS’s testimony from both his and
Vita’s preliminary examinations.

        We review a trial court’s admission of evidence for an abuse of discretion. People v
Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). “An abuse of discretion occurs when the
trial court renders a decision falling outside the range of principled decisions.” People v Rao,
491 Mich 271, 279; 815 NW2d 105 (2012). When decisions pertaining to the admission of
evidence encompass preliminary questions of law such as whether a rule of evidence or statute
precludes admissibility, we review such questions de novo. People v Lukity, 460 Mich 484, 488;
596 NW2d 607 (1999).

       We review issues of constitutional law de novo. People v Herron, 464 Mich 593, 599;
628 NW2d 528 (2001). A preserved constitutional error under the Confrontation Clause is
deemed to be harmless if it is clear beyond a reasonable doubt that a rational jury would have
found defendant guilty despite the error. People v Shepherd, 472 Mich 343, 347-348; 697 NW2d
144 (2005). Factors to be considered when determining if an error is harmless include the
importance of the witness’s testimony and the strength of the prosecution’s case. People v Kelly,
231 Mich App 627, 644-645; 588 NW2d 480 (1998).

       “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him. . . .” US Const, Am VI; see also Const 1963, art 1, § 20. “The right
of confrontation insures that the witness testifies under oath at trial, is available for cross-
examination, and allows the jury to observe the demeanor of the witness.” People v Yost, 278
Mich App 341, 370; 749 NW2d 753 (2008) (quotation marks and citation omitted). In general,
the Confrontation Clause precludes the admission of testimonial statements elicited from
witnesses if the witnesses fail to appear at trial unless the defendant had a prior opportunity to
cross-examine the witnesses. Crawford, 541 US at 59. Statements made during a preliminary
examination are testimonial in nature and, therefore, implicate the Confrontation Clause. Id. at
68.

        The admission of preliminary examination testimony at trial has been found to not violate
a defendant’s right of confrontation if the witness is unavailable to testify at trial, the prosecution
can demonstrate due diligence in trying to produce the absent witness, and the testimony meets
satisfactory indicia of reliability. People v Bean, 457 Mich 677, 682-683; 580 NW2d 390
(1998). As such, a trial court may admit preliminary examination testimony “at trial under both
MRE 804(b)(1) and the Confrontation Clause as long as the witness is unavailable for trial and
was subject to cross-examination during the prior testimony.” People v Garland, 286 Mich App
1, 7; 777 NW2d 732 (2009), citing Crawford, 541 US 36. Similarly, MRE 804 provides, in
relevant part:

       (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
       the declarant is unavailable as a witness:


                                                 -4-
       (1) Former Testimony. Testimony given as a witness at another hearing of the
       same or a different proceeding, if the party against whom the testimony is now
       offered, or, in a civil action or proceeding, a predecessor in interest, had an
       opportunity and similar motive to develop the testimony by direct, cross, or
       redirect examination.

The unavailability of RS as a trial witness under MRE 804(a) has already been determined by
our Supreme Court, and is thus the law of the case. People v Fisher, 449 Mich 441, 444-445;
537 NW2d 57 (1995). And defendant does not argue that the prosecution did not exercise due
diligence in attempting to secure RS’s testimony at trial. The question thus becomes whether RS
was subjected to adequate cross-examination at the preliminary examinations.

       It is undisputed that RS was presented and qualified to testify at the preliminary
examinations of defendant and Vita. The dispute, in part, centers on defendant’s motive and
opportunity to develop the testimony of RS under cross-examination. This Court stated in
People v Farquharson, 274 Mich App 268, 275; 731 NW2d 797 (2007), that “[w]hether a party
had a similar motive to develop the testimony depends on the similarity of the issues for which
the testimony was presented at each proceeding.” Some factors that are relevant to the
determination that a similar motivation existed in the examination of a witness at a prior
proceeding include:

       (1) whether the party opposing the testimony had at a prior proceeding an interest
       of substantially similar intensity to prove (or disprove) the same side of a
       substantially similar issue; (2) the nature of the two proceedings—both what is at
       stake and the applicable burden of proof; and (3) whether the party opposing the
       testimony in fact undertook to cross-examine the witness (both the employed and
       available but forgone opportunities). [Id. at 278 (quotation marks omitted).]

In addition, a defendant’s right to cross-examination is not unlimited; a defendant does not have
“an unlimited right to admit all relevant evidence or cross-examine on any subject[;]” however, a
defendant is “guaranteed a reasonable opportunity to test the truth of a witness’ testimony.”
People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993).

        RS’s testimony at defendant’s and Vita’s preliminary examinations was focused on the
same purpose, i.e., “to determine if a crime has been committed, and, if so, if there is probable
cause to believe the defendant committed it.” People v Johnson, 427 Mich 98, 104; 398 NW2d
219 (1986) (citation and quotation marks omitted). At defendant’s preliminary examination,
defense counsel frequently interjected during the direct examination of RS to seek clarification
of her testimony and the record. Defense counsel was able to cross-examine RS regarding her
familiarity with defendant, and to question RS regarding defendant’s actions, where they
occurred both in terms of a location within the daycare and on RS’s body, and her response to
those events. Defense counsel eventually declined to pose any further questions to RS, despite
having the opportunity to do so. Although defense counsel, at defendant’s preliminary
examination, elected to limit his questioning of RS and may have preferred, at trial, to ask her
additional or different questions, counsel was not denied the opportunity to effectively cross-
examine RS at the preliminary examination. In addition, at the preliminary examination,
defendant’s motive was similar to that evinced at trial – to raise issues regarding credibility

                                               -5-
based on RS’s young age and to suggest inconsistency in her testimony. Hence, defendant has
not established that he lacked a reasonable opportunity to challenge the truth of RS’s testimony
at his preliminary examination. See Adamski, 198 Mich App at 138.

        Further, the admissibility of RS’s testimony under MRE 804(1)(b) was sufficient to
satisfy the Confrontation Clause. “Because MRE 804(b)(1) is a hearsay exception firmly rooted
in American jurisprudence, the Confrontation Clause is satisfied when the complainant’s prior
testimony is admitted because that testimony bears satisfactory indicia of reliability, without
more.” Adams, 233 Mich App at 659-660. Second, contrary to defendant’s argument, the
Supreme Court has determined that the Confrontation Clause serves only to guarantee a
defendant an opportunity for cross-examination, but does not mandate “cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” United States v
Owens, 484 US 554, 559; 108 S Ct 838; 98 L Ed 2d 951 (1988) (citation omitted). RS’s
testimony at defendant’s preliminary examination thus satisfied both MRE 804(b)(1) and the
Confrontation Clause.

       Defendant’s attorney was not present at Vita’s preliminary examination; however, Vita’s
counsel cross-examined RS. Preliminarily, RS indicated familiarity with defendant and Vita
through attending daycare. Some of the questioning directed at RS on direct examination
focused on Vita’s presence during the incidents and her ability to observe defendant’s actions.
Vita’s defense counsel, on cross-examination of RS, touched on the frequency of defendant’s
alleged inappropriate behavior with RS, but primarily questioned RS regarding Vita’s presence
and whether RS had told Vita or her parents about defendant’s actions.

        On a most superficial level, defendant is correct that he lacked the opportunity to cross-
examine RS at Vita’s preliminary examination, based on his absence from that proceeding,
which runs afoul of the plain language of MRE 804(b)(1). Defendant is also correct that while
the motivation of Vita’s counsel and defendant’s counsel overlapped to a significant degree at
the preliminary examinations, their motivations were not identical. Although Vita’s counsel,
similar to defendant’s counsel, sought to demonstrate that RS was not credible and that the
events did not occur, the focus of Vita’s defense counsel was on demonstrating that Vita was
either not present or completely unaware and lacked knowledge of defendant’s behaviors, if such
behaviors by defendant did occur. Therefore, we conclude that the admission of RS’s testimony
from Vita’s preliminary examination against defendant was erroneous and violated
MRE 804(b)(1).

       However, defendant acknowledges that during his interrogation by police, defendant
admitted having engaged in the various behaviors that resulted in the charges and convictions
procured. Defendant’s police interrogation was played for the jury at trial. Further, RS’s
testimony at defendant’s preliminary examination was properly admitted. As a result, it is highly
unlikely that the admission of RS’s testimony from Vita’s preliminary examination was outcome
determinative. The admission of RS’s testimony from Vita’s preliminary examination is
therefore harmless error and does not require reversal. Shepherd, 472 Mich 347-348.




                                               -6-
                  III. ADMISSION OF “TENDER YEARS” STATEMENTS

       Defendant argues that KN’s statements to her parents were not spontaneous and thus
should not have been admitted at trial. Defendant also argues that the trial court erred in
admitting the testimony by RS’s mother and KN’s father regarding the children’s statements to
them as being contrary to MRE 803A, which permits only the first corroborative statement to be
admissible.

        As discussed in People v Douglas, 496 Mich 557, 573-574; 852 NW2d 587 (2014)
(citations and quotation marks omitted):

       MRE 803A codified the common-law tender years exception, and provides, in
       relevant part:

       A statement describing an incident that included a sexual act performed with or
       on the declarant by the defendant . . . is admissible to the extent that it
       corroborates testimony given by the declarant during the same proceeding,
       provided:

       (1) the declarant was under the age of ten when the statement was made;

       (2) the statement is shown to have been spontaneous and without indication of
       manufacture;

       (3) either the declarant made the statement immediately after the incident or any
       delay is excusable as having been caused by fear or other equally effective
       circumstance; and

       (4) the statement is introduced through the testimony of someone other than the
       declarant.

       If the declarant made more than one corroborative statement about the incident,
       only the first is admissible under this rule.

The reasoning underlying the preference for a child’s first statement over subsequent statements
is premised on the recognition that “[a]s time goes on, a child’s perceptions become more and
more influenced by the reactions of the adults with whom the child speaks.” People v Katt, 468
Mich 272, 296; 662 NW2d 12 (2003).

        Defendant argues that KN’s statements to her parents do not meet the spontaneity
requirement of MRE 803A, suggesting that they were prompted by reading (to KN) material
supplied by Care House. Our Supreme Court has recognized several types or forms of
spontaneous statements for purposes of MRE 803A. The first type of statement is described as
“impulsive” and “is prototypically spontaneous because it appears to ‘come out of nowhere’ or
‘out of the blue.’ ” Gursky, 486 Mich at 610. The second type is comprised of “[s]tatements that
are made as a result of prompt, plan, or questioning by a third party, yet are in some manner
atypical, unexpected, or do not logically follow from the prompt are also widely considered
spontaneous. This type of ‘non sequitur’ statement is generally considered spontaneous because

                                              -7-
it shows that the declarant was acting from natural impulses or tendencies by responding
atypically to what may otherwise have been innocent prompts.” Id. at 610-611. “A third
category that poses closer questions involves cases where statements are given as a result of
open-ended and nonleading questions that include answers or information outside the scope of
the questions themselves. Often, this type of unplanned yet responsive statement may be
considered ‘spontaneous’ because the information that results is based on knowledge
independent of that provided in the question.” Id. at 611.

        Our Supreme Court has held that the posing of questions by an adult does not
“automatically render[] a statement ‘nonspontaneous’ and thus inadmissible under MRE 803A.”
Gursky, 486 Mich at 614. “Open-ended, nonleading questions that do not specifically suggest
sexual abuse do not pose a problem with eliciting potentially false claims of sexual abuse. But
where the initial questioning focuses on possible sexual abuse, the resultant answers are not
spontaneous because they do not arise without external cause.” Id. at 614-615. As a result, trial
courts are required to “review the totality of the circumstances surrounding the statement in order
to determine the issue of spontaneity.” Id. at 615. Specifically:

       Even though courts should look at the surrounding circumstances and larger
       context in order to understand whether the statement was spontaneously made, we
       note that this review is not solely determinative of the question of admissibility.
       As MRE 803A requires, the statement must be “shown to have been spontaneous
       and without indication of manufacture.” The language of MRE 803A(2) clearly
       demonstrates that spontaneity is an independent requirement of admissibility
       rather than one factor that weighs in favor of reliability or admissibility. Thus,
       even if, considering the totality of the circumstances, the trial court determines
       that a statement is spontaneous for the purposes of MRE 803A(2), it must
       nevertheless also conduct the separate analyses necessary to determine whether
       the statement meets the other independent requirements of MRE 803A. [Id. at
       615-616 (citations omitted).]

         In this instance, KN had been the subject of a forensic interview. As a result of the
child’s lack of familiarity with private body areas, KN’s parents were provided with material to
read to the child that would assist KN with the necessary vocabulary and comprehension for
another interview. Immediately upon the reading of the material to KN, KN indicated that
defendant had touched her genitals on more than one occasion. The record does not indicate that
KN’s parents actually prompted KN’s response or allegations through questioning. Although the
written materials read to KN did provide a form of prompt for KN’s disclosures, reviewing the
totality of the circumstances, and considering testimony from KN’s father that the pamphlet did
not describe specific sexual abuse scenarios, such as an adult putting their hand down a child’s
pants, we conclude that KN’s testimony satisfied the spontaneity requirement of MRE 803A.
Further, any error in the admission of this testimony was harmless given both KN’s testimony at
trial and defendant’s admissions to police. Based on this evidence, it is clear beyond a
reasonable doubt that a rational jury, as did the one involved in this case, would have found
defendant guilty despite the error in admitting the challenged testimony. Shepherd, 472 Mich at
348.



                                                -8-
       Defendant also argues that the testimony of RS’s mother and KN’s father was
inadmissible because they comprised subsequent corroborative statements under MRE 803A.
Although there was only a short time between the revelations made by RS and KN to a parent
and the subsequent repetition of those statements to their other parent, this does not render the
challenged statements a mere continuation of the initial disclosure and is contrary to the purpose
of MRE 803A to minimize the potential influence of adult reactions with regard to subsequent
disclosures. Hence, the trial court erred in permitting both parents for RS and KN to testify
regarding the children’s initial statements.

       However, with regard to KN, her father’s testimony was cumulative of KN’s testimony at
trial. Inadmissible evidence that is cumulative of other admissible evidence is generally
construed to be harmless. People v Matuszak, 263 Mich App 42, 52; 687 NW2d 342 (2004);
People v Rodriquez (On Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996). With regard
to the testimony of RS’s mother, the admission of this testimony, although not merely
cumulative, was harmless considering defendant’s confession regarding the charges pertaining to
RS. Matuszak, 263 Mich App at 52; Rodriquez, 216 Mich App at 332.

                                       IV. SENTENCING

       Finally, defendant argues that he is entitled to resentencing regarding his CSC I
conviction pertaining to SP because the alleged incidents occurred before the amendment of the
relevant statute and the statutory imposition of a 25-year minimum sentence. We agree.

        To preserve a constitutional challenge for appellate review, a defendant is required to
have initially raised the issue in the trial court. People v Hogan, 225 Mich App 431, 438; 571
NW2d 737 (1997). Defendant failed to raise as an argument in the trial court that the application
of MCL 750.520b(2)(b) violated the ex post facto clauses of the United States and Michigan
Constitutions, and deprived defendant of his procedural due process rights; therefore, this
argument is not preserved for appellate review. Id. Similarly, to preserve a challenge to a trial
court’s interpretation or application of a statute, a defendant must first raise the argument in the
trial court. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). Defendant failed to
argue below that the trial court improperly applied MCL 750.520b(2)(b) retroactively; therefore,
this argument is not preserved on appeal. We review unpreserved claims for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        Currently, MCL 750.520b(2)(b) provides as punishment for CSC I: “For a violation that
is committed by an individual 17 years of age or older against an individual less than 13 years of
age by imprisonment for life or any term of years, but not less than 25 years.” It is undisputed
that defendant was sentenced in accordance with this statutory provision for his CSC I
convictions. The incident involving SP was alleged to have occurred in 1998. Earlier versions
of the statute did not contain a minimum term of imprisonment. See MCL 750.520b(2)(b) prior
to amendment by 2002 PA 714; 2006 PA 169, effective August 28, 2006.

       Laws may violate the ex post facto clauses of the Federal and Michigan Constitutions,
US Const, art I, § 10; Const 1963, art 1, § 10, if “(1) they attach legal consequences to acts
before their effective date, and (2) they work to the disadvantage of the defendant.” People v


                                                -9-
Callon, 256 Mich App 312, 318; 662 NW2d 501 (2003). Specifically, this Court has identified
four circumstances that implicate the Ex Post Facto Clauses:

       A statute that affects the prosecution or disposition of criminal cases involving
       crimes committed before the effective date of the statute violates the Ex Post
       Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a
       more serious criminal offense, (3) increases the punishment, or (4) allows the
       prosecution to convict on less evidence. [Riley v Parole Bd, 216 Mich App 242,
       244; 548 NW2d 686 (1996).]

“The critical question [for an ex post facto violation] is whether the law changes the legal
consequences of acts completed before its effective date.” Weaver v Graham, 450 US 24, 31;
101 S Ct 960; 67 L Ed 2d 17 (1981). “[A]though the Ex Post Facto Clause does not apply
directly to the judiciary, it applies by analogy through the Due Process Clause of the Fifth and
Fourteenth Amendments of the United States Constitution.” People v Potts, 436 Mich 295, 300;
461 NW2d 647 (1990).

        “Generally, a criminal defendant is sentenced according to the statute in force at the time
he committed the crime.” People v Sinistaj, 184 Mich App 191, 202; 457 NW2d 36 (1990). “An
amendment to a criminal statute which concerns sentences or punishment is not retroactive.” Id.
The prosecution suggests that defendant has failed to demonstrate that his sentence under the
subsequent statutory amendment has placed him at a disadvantage, given that his sentence for the
CSC I conviction pertaining to SP is one of five convictions for CSC I, resulting in concurrent
sentences. “For purposes of ex post facto analysis, the question is whether, if applied
retroactively, the amendment would effect any pertinent substantive change that disadvantages
the defendant.” United States v Smith, 362 US App DC 415, 420; 374 F3d 1240 (2004)
(quotation marks and citation omitted). We decline to hold that the imposition of a mandatory
25-year minimum sentence, even to be served concurrently to other sentences, is not a
disadvantage to defendant. Accordingly, defendant must be resentenced for his CSC I
convicting regarding SP, because it amounted to plain error affecting his substantial rights.
Carines, 460 Mich at 763.

         We affirm defendant’s convictions in both dockets. In Docket No. 324385, we remand to
the trial court for resentencing on defendant’s conviction of CSC I with regard to SP. We do not
retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Jane M. Beckering




                                               -10-
