                              Court of Appeals, State of Michigan

                                               ORDER

                                                                             Michael F. Gadola
People of MI v Emmanuel Jerome Beverly                                        Presiding Judge


Docket No.     326199                                                        Deborah A. Servitto


LC No.         14-7348-0 l                                                   Douglas B. Shapiro
                                                                               Judges



               This Court orders that the motion to clarify/correct opinion is GRANTED because the
first sentence of Judge Shapiro's September 20, 20 I 6 concurring opinion transposed the terms "waived"
and "forfeited." In order to correct this error, the Court orders that the September 20, 2016 opinions are
hereby VACATED, and issues the attached opinions.




                                 NOV 0 1 2016
                                        Date
                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 1, 2016
               Plaintiff-Appellee,

v                                                                    No. 326199
                                                                     Wayne Circuit Court
EMMANUEL JEROME BEVERLY,                                             LC No. 14-007348-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree criminal sexual
conduct (CSC I), MCL 750.520b(1)(a), and second-degree criminal sexual conduct (CSC II),
MCL 750.520c(1)(a). The trial court sentenced him to concurrent prison terms of 30 to 60 years
for the CSC I conviction and 10 to 15 years for the CSC II conviction. We affirm defendant’s
convictions, but remand for resentencing.

                                 I. FACTS AND PROCEDURE

        This case involves defendant’s sexual assault of his seven-year-old male cousin. At the
time of the incident, defendant lived at his grandmother’s home in Hamtramck and the cousin
also lived in the home. Testimony at trial showed that defendant put either his finger or his penis
in the victim’s anal opening and used his hand to touch the child’s genital area. After the
incident, the victim told his sister about what occurred, and the sister informed the victim’s
mother, who examined the child, found blood in his buttocks, and called the police. The police
arrested defendant at the home, and the victim’s mother took him to the hospital for a physical
examination, which revealed tearing and decreased tone in the rectal area. The examining
physician testified that the injuries were indicative of something being inserted into the child’s
rectum and could result from a single incident, but most likely resulted from multiple incidents.

        Before trial began, the trial court declared the victim unavailable as a witness pursuant to
MRE 804(a)(2) and (a)(4) because the child refused to talk to the court and to the prosecutor.
Over defense counsel’s objection, the trial court allowed the prosecutor to read the victim’s
preliminary examination testimony to the jury at trial. At the preliminary examination, the
victim testified that defendant put his finger in his rectum and used his hand to tickle his genital
area. At trial, the victim’s sister and the examining physician both offered testimony suggesting
that the victim said defendant put his penis, rather than his finger, into his anal opening. Thus,
                                                -1-
during trial, the prosecutor moved to amend the charge of CSC I from finger in anal opening to
“finger in anal opening and/or penis in anal opening.” Over defense counsel’s objection, the trial
court granted the motion. The jury ultimately convicted defendant of both CSC I and CSC II.

             II. THE VICTIM’S PRELIMINARY EXAMINATION TESTIMONY

        Defendant first argues that the trial court erred by finding that the victim was unavailable
under MRE 804 and by admitting the child’s preliminary examination testimony at trial. A trial
court’s factual finding on the issue of unavailability is reviewed for clear error. People v
Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009). Constitutional questions, such as those
concerning the right to confront witnesses at trial, are reviewed de novo on appeal. People v
Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006). The decision whether to admit evidence is
within the trial court’s discretion and will be reversed only on a finding of an abuse of that
discretion. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). An abuse of
discretion occurs if the trial court’s decision falls outside the range of reasonable and principled
outcomes. Id. at 722-723. Further, some decisions regarding the admission of evidence involve
preliminary matters of law that are reviewed de novo. Id. at 723. Such questions of law include
the interpretation of evidentiary rules. Id.

        Defendant first claims that the victim was not unavailable pursuant to MRE 804(a)(2) and
(a)(4), so the child’s preliminary examination statements were inadmissible hearsay. Hearsay is
“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.” MRE 801(c). Pursuant to
MRE 802, hearsay is generally inadmissible. However, the Michigan Rules of Evidence allow
the admission of certain prior out-of-court statements when a witness is declared unavailable.
Duncan, 494 Mich at 717. MRE 804(a) delineates five situations when a witness is unavailable,
including when a declarant “persists in refusing to testify concerning the subject matter of the
declarant’s statement despite an order of the court to do so.” MRE 804(a)(2).

         The victim was seven years old at the time of the trial. The trial court questioned him
extensively and received no response except a “No,” to the question, “If I said I was a girl am I
telling the truth?” The prosecutor then questioned him by playing the “yes/no game.” The
victim answered “yes” or “no” to a few generic questions, but he stopped answering when the
prosecutor asked, “[S]o how old are you now?” He then refused to speak about defendant’s
actions. Returning to a yes or no format, the prosecutor asked the victim if he would talk in
court about defendant and about what he did. The victim responded, “No.” The prosecutor
continued, “What if this nice Judge says you have to talk about it, will you do it then?” The
record reflects that the victim had his fingers in his mouth and he was unresponsive. After
defense counsel declined the opportunity to question the victim, the trial court again attempted to
solicit a response from the child, but was unsuccessful. The trial court then declared the victim
unavailable as a witness. It is clear from this record that the victim would not have testified on
the relevant matters even if the trial court had explicitly ordered him to do so. Therefore, the
trial court did not clearly err by declaring the victim unavailable under MRE 804(a)(2).

        Under MRE 804(a)(4), a witness is unavailable if her or she is unable “to testify at the
hearing because of . . . then existing physical or mental illness or infirmity.” MRE 804(a)(4).
“ ‘Infirmity’ is defined as ‘the quality or state of being infirm; lack of strength.’ In turn, ‘infirm’

                                                 -2-
is defined as ‘feeble or weak in body or health, [especially] because of age.’ ” Duncan, 494
Mich at 725 (alteration in original), quoting Random House Webster’s College Dictionary
(1995). In this case, the victim was only seven years old at the time of trial. Although he was
not visibly crying during questioning, he showed clear signs of mental and emotional weakness
resulting from the limitations of his young age. Despite the presence of his father as an
advocate, the victim became silent and unresponsive to simple questions, and put his fingers in
his mouth. Given the record in this case, the trial court’s finding of unavailability under
MRE 804(a)(4) was likewise not clearly erroneous.

        In a related matter, defendant contends that the trial court erred by not utilizing an
alternate accommodation, specifically closed circuit television, to interview the victim.
MCL 600.2163a includes a list of accommodations that courts may use to protect the welfare of
a vulnerable witness. It is clear that the trial court attempted some accommodations in this case.
The victim was initially questioned outside the presence of the jury and there was a support
person present for his mental well-being, yet he persisted in refusing to testify. The mere fact
that the trial court did not attempt to glean testimony by closed circuit television does not amount
to reversible error in this case.

        Next, defendant argues that the victim’s preliminary examination testimony did not
satisfy the requirements of MRE 804(b)(1), and its admission violated his rights under the
Confrontation Clause. When a witness is unavailable, “testimony given by the person at an
earlier hearing is not excluded by the hearsay rule if the party against whom the testimony is
offered had an opportunity and similar motive to develop the testimony through cross-
examination.” People v Meredith, 459 Mich 62, 66-67; 586 NW2d 538 (1998), citing
MRE 804(b)(1). Defendant argues that the victim’s statements at the preliminary examination
do not qualify as “former testimony” under MRE 804(b)(1) because they were not obtained
under oath or affirmation. Defendant acknowledges that this argument is unpreserved because
his counsel failed to raise it below. Generally, we review unpreserved matters for plain error
affecting substantial rights. Pipes, 475 Mich at 278.

        MRE 603 provides, “Before testifying, every witness shall be required to declare that the
witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken
the witness’ conscience and impress the witness’ mind with the duty to do so.” “[W]itnesses in
judicial proceedings must swear or affirm that their testimony will be true.” People v Putman,
309 Mich App 240, 243; 870 NW2d 593 (2015). A simple affirmation or promise by a young
child to tell the truth satisfies the statutory and evidentiary requirements. See Donkers v Kovach,
277 Mich App 366, 374; 745 NW2d 154 (2008).

        There is no evidence in the record that the victim promised to tell the truth before making
his statements at the preliminary examination. Inadvertently, neither the trial court nor the
prosecutor questioned the victim about his ability to tell the truth. However, defense counsel did
not object at the time the victim made his statements. Recent authority from this Court indicates
that a defendant’s failure to object to unsworn testimony at the time the testimony is taken results
in waiver of the issue. People v Sardy, ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op
at 11-12, citing People v Kemmis, 153 Mich 117, 117-118; 116 NW 554 (1908), Mettetal v Hall,
288 Mich 200, 207-208; 284 NW 698 (1939), and People v Knox, 115 Mich App 508, 511; 321


                                                -3-
NW2d 713 (1982). This Court in Sardy, ___ Mich App at ___; slip op at 11, explained the
following:

               Here, although defendant objected at the trial that the victim’s preliminary
       examination testimony had not been given under oath or by affirmation, there was
       no objection at the time that the testimony was actually procured at the
       preliminary examination. Only an objection at the preliminary examination
       would have been meaningful, allowing the district court to take corrective action
       and prevent the error. While Kemmis, Mettetal, and Knox dealt with a failure to
       object at trial, with the complaining parties raising the issue of unsworn testimony
       for the first time on appeal, which varies from the procedural circumstances here,
       the waiver analysis is nonetheless applicable. This is so because the overriding
       principle arising from the caselaw is that one must object at the time the unsworn
       witness is giving the testimony, not at a later date. Given that preliminary
       examination testimony always presents the potential of being admitted at a future
       trial due to witness unavailability caused by injury, illness, death, flight, lack of
       recall, or other events or circumstances, it is incumbent on counsel to protect the
       record. Under Kemmis, Mettetal, and Knox, defendant waived the issue
       concerning the victim’s unsworn testimony, and thus reversal is unwarranted.

Therefore, reversal based on defendant’s argument is unwarranted because defense counsel
failed to raise an objection to the victim’s unsworn testimony at the preliminary examination.

        The same result is also appropriate even if we were required to apply the plain error test
because in this case no prejudice exists as a result of the court allowing the victim to testify
without oath, affirmation, or a promise to tell the truth. The record shows no questioning or
discussion regarding the truth of the victim’s statements at the preliminary examination.
Nonetheless, reversal is warranted only if a plain error resulted in the conviction of an actually
innocent defendant or if the error seriously affected the fairness, integrity or public reputation of
the proceedings regardless of the defendant’s innocence. People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999). The victim’s preliminary examination statements not only affirm that
sexual abuse occurred, but also provide evidence that defendant was the perpetrator. Further, the
error of failing to properly swear the victim did not undermine the integrity of the proceedings.
The victim responded to multiple questions by the prosecutor, and the defense cross-examined
the child. Furthermore, and contrary to defendant’s assertions on appeal, the victim’s statements
at the preliminary examination were not the sole evidence linking defendant to the crime. The
victim’s mother testified that, based on information the child gave her, she examined his buttocks
and saw blood, confronted defendant, and called the police. The examining physician testified
that the victim told him that defendant put his penis in his rectum, and he complained of pain in
the area. The physician also provided medical testimony that the victim’s physical injuries were
the result of sexual abuse. As in Sardy, under either standard of review employed, reversal is not
warranted.

        Regarding defendant’s claim of a Confrontation Clause violation, “[t]he United States
Supreme Court has recognized that while a preliminary examination ‘is ordinarily a less
searching exploration into the merits of a case than a trial,’ the Confrontation Clause can be
satisfied if a defendant’s cross-examination of the witness at the prelim[inary examination] was

                                                -4-
not significantly limited in scope or nature and the witness was actually unavailable at trial.”
Sardy, ___ Mich App at ___; slip op at 6, quoting California v Green, 399 US 149, 166; 90 S Ct
1930; 26 L Ed 2d 489 (1970). Defendant had an opportunity to cross-examine the victim at the
preliminary examination, and defense counsel did so. There was a similar motive to develop the
victim’s testimony at the preliminary examination and at the trial. In particular, the purpose of
defense counsel’s cross examination was to attempt to show that the claims of sexual assault
were untrue. Given that the witness was unavailable and defendant had both the opportunity and
a similar motive to develop the child’s testimony, the preliminary examination transcript was
admissible under MRE 804.

        Defendant’s related claim that he could not develop the evidence regarding the amended
charge does not amount to a constitutional violation. At trial, count one was amended from
finger in anal opening to “finger in anal opening and/or penis in anal opening” following
testimony from the prosecutor’s witnesses. There were inconsistencies between the victim’s
recollection and the testimony of these witnesses regarding the type of penetration that occurred.
The inconsistencies were clear from the trial testimony and were emphasized during defense
counsel’s closing argument. The jury is responsible to determine the credibility of witnesses.
People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). Further, as discussed below,
the result of the proceedings would have been the same whether the jury chose to believe that
defendant penetrated the victim’s anal opening with his finger or his penis. Because the claimed
inability to question the victim at the preliminary examination about the amended charge did not
constitute a significant limitation regarding the scope and nature of defendant’s cross-
examination of the child, no Confrontation Clause violation occurred. Garland, 286 Mich App
at 7. Therefore, defendant has failed to demonstrate plain error requiring reversal.

                        III. ADMISSION OF HEARSAY TESTIMONY

        Defendant next asserts that the trial court erred by allowing the victim’s sister to testify
about the victim’s statements to her after the incident. Because defense counsel did not object to
the testimony on this basis below, our review is limited to plain error affecting defendant’s
substantial rights. People v Kimble, 470 Mich 305, 309, 312; 684 NW2d 669 (2004). Reversal
is warranted only if a plain error resulted in the conviction of an innocent person, or seriously
affected the fairness, integrity, or public reputation of the proceedings. People v Unger, 278
Mich App 210, 235; 749 NW2d 272 (2008).

        At trial, the court allowed the victim’s sister to testify regarding the victim’s statements
to her about the incident pursuant to MRE 803A. MRE 803A provides a hearsay exception for a
child’s “statement describing an incident that included a sexual act performed with or on the
declarant by the defendant . . . to the extent that it corroborates testimony given by the declarant
during the same proceeding, provided,” in relevant part, “the statement is shown to have been
spontaneous and without indication of manufacture.” Defendant claims that the sister’s
testimony did not corroborate the victim’s testimony because the victim did not testify at trial.
As discussed above, the victim’s preliminary examination testimony was properly read into
evidence after the child was declared unavailable. Therefore, defendant’s claim lacks merit.

       Defendant further argues that the victim’s statements to his sister were not sufficiently
spontaneous to invoke MRE 803A because the statements were made in response to questioning.

                                                -5-
In People v Gursky, 486 Mich 596, 614; 786 NW2d 579 (2010), our Supreme Court explained
that “the mere fact that questioning occurred is not incompatible with a ruling that the child
produced a spontaneous statement.” However, for such a statement to fall within MRE 803A,
“the child must broach the subject of sexual abuse, and any questioning or prompts from adults
must be nonleading or open-ended . . . .” Id.

        In this case, the victim’s sister testified that the victim came into her room and woke her
up. She noticed that he was crying and asked, “What’s the matter, what’s wrong?” The victim
continued to cry. His sister then asked, “Did [defendant] touch you?” The victim explained that
defendant “touched him on his butt, his stuff and he was playing with his stuff.” He also said
that defendant “put his stuff in his butt” and that “he played with it, he sucked it.” The sister’s
question regarding whether defendant touched him broached the subject of sexual abuse and
named a possible perpetrator. Therefore, we conclude that under Gursky, the victim’s
subsequent statements to his sister were not spontaneous for purposes MRE 803A.

        The prosecution argues on appeal, however, that the victim’s statements were
alternatively admissible as excited utterances under the hearsay exception of MRE 803(2). We
agree. Although the trial court relied on a different line of reasoning to admit the evidence, this
Court will not reverse the trial court when it reached the right result for the wrong reason.
People v Ramsdell, 230 Mich App 386, 406; 585 NW2d 1 (1998).

         MRE 803(2) defines an excited utterance as “[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.” The primary requirements for excited utterances are “1) that there be a startling
event, and 2) that the resulting statement be made while under the excitement caused by the
event.” People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). A sexual assault constitutes
a startling event for purposes of the rule. Id. at 553. The lack of ability to fabricate, rather than
the lack of time to fabricate, is the focus of the excited utterance rule. Id. at 551.

        “[W]hether a statement made in response to questioning should be excluded under
MRE 803(2) depends on the circumstances of the questioning and whether it appears that the
statement was the result of reflective thought.” Id. at 553. In People v Straight, 430 Mich 418,
425-426; 424 NW2d 257 (1988), our Supreme Court held that statements made by a four-year-
old victim one month after a sexual assault, immediately after a pelvic examination, and after
repeated and emotional questioning by her parents were not excited utterances because it could
not be determined whether the child was under the stress “caused by the event or condition” or
by the stress caused by the medical examination and the questioning. Generally, a child’s young
age and a short time span between the assault and statement militate against the possibility of
fabrication. People v Layher, 238 Mich App 573, 584; 607 NW2d 91 (1999).

        The record in this case reflects that very little time had passed between the assault and the
victim’s statements to his sister. The examining physician testified that it was reported that the
assault occurred at approximately 10:00 a.m., and the victim’s mother testified that the victim
informed his sister, who then woke the mother up at around 11:00 a.m. to inform her about the
assault. The victim’s sister testified that the victim woke her up, looked strange, and was crying
at the time he made the statements in question. The victim made the statements in response to
very brief questioning, and the circumstances presented do not show that the statements were

                                                -6-
fabricated or the product of reflective thought. The young age of the victim, the short time
period between the assault and the statements, and the fact that the child was visibly distraught
before his sister asked him any questions, all support that the child made the statements under the
stress of the assault, rather than the stress of questioning. Therefore, the trial court did not err by
admitting the statements because they were admissible as excited utterances under MRE 803(2).

                                 IV. PROSECUTORIAL ERROR

        Defendant next asserts that reversal is warranted because the prosecutor improperly
elicited hearsay testimony at trial. Because defendant did not timely object to the prosecutor’s
conduct or request a curative instruction, our review of his claim is limited to plain error
affecting substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).

        The test for prosecutorial error is whether the defendant was denied a fair and impartial
trial. Id. We analyze claims of prosecutorial error on a case-by-case basis and evaluate the
prosecutor’s remarks in context. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402
(2014). We will not “find error requiring reversal [if] a curative instruction could have alleviated
any prejudicial effect.” Unger, 278 Mich App at 235 (quotation marks and citation omitted).

        Defendant contends that, although a video of the victim’s interview at a place called Kids
Talk was inadmissible, the prosecutor improperly elicited testimony from the officer-in-charge
confirming that the video’s contents were consistent with the victim’s testimony. This is
essentially an evidentiary issue framed as a claim of prosecutorial error. People v Dobek, 274
Mich App 58, 70; 732 NW2d 546 (2007). A prosecutor’s good-faith effort to admit evidence
does not constitute prosecutorial error. Id.

        At trial, the officer testified that she took the victim to an interview at Kids Talk and
identified a videotape of his interview. The prosecutor asked the officer if such videotapes are
allowed to be played at trial. The officer responded, “No. Only one circumstance that they’re
allowed and that is if it’s to show that they lied.” The prosecutor then clarified, “To show
inconsistencies?” The officer responded, “Correct.”

        Generally, a witness may not comment or provide an opinion on the credibility of another
witness because credibility matters must be left for the jury. Dobek, 274 Mich App at 71. The
officer testified about her background and experience, the practice of seeking a forensic
interview in criminal sexual conduct cases, and the victim’s demeanor and responsive nature
during the interview. Her only reference to the absence of lying related to the reason the jury
would not be permitted to view the videotape of the victim’s interview. Defendant did not object
to this testimony or the prosecutor’s question that elicited the testimony. Even assuming plain
error occurred, defendant has failed to establish innocence or damage to the fairness, integrity, or
public reputation of the proceedings. Unger, 278 Mich App at 235. Given that the officer was a
witness for the prosecutor and the prosecutor initiated a case against defendant, the jurors would
likely understand that the officer believed the victim was telling the truth apart from the disputed
testimony. Dobek, 274 Mich App at 71. Further, there was other corroborating evidence of the
victim’s account through both testimonial and physical evidence admitted at trial. Therefore,
defendant’s claim of prosecutorial error is without merit.


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                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant raises multiple claims of ineffective assistance of counsel. In particular,
defendant contends that counsel provided ineffective assistance by failing to object to the
admission of the victim’s preliminary examination statements on the basis that they were
unsworn, the admission of the victim’s sister’s testimony at trial as hearsay, and the improper
line of questioning of the officer-in-charge concerning the contents of the videotaped interview.
To preserve a claim of ineffective assistance of counsel, a defendant must move for a new trial or
an evidentiary hearing in the trial court. People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008). Because defendant failed to raise this claim below, our review is limited to errors
apparent on the record. Id.

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate
“(1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587
(2014) (quotation marks and citation omitted). “Effective assistance of counsel is presumed, and
the defendant bears a heavy burden of proving otherwise.” People v Solmonson, 261 Mich App
657, 663; 683 NW2d 761 (2004). Decisions regarding what evidence to present, how to question
witnesses, and whether to raise objections are presumed to be matters of trial strategy, and this
Court will not second-guess counsel’s strategic decisions nor will it analyze counsel’s
competence with the benefit of hindsight. Unger, 278 Mich App at 242-243, 253.

        Defendant’s assertion that his counsel was ineffective for failing to object to the
admission of the victim’s preliminary examination testimony because it was unsworn does not
amount to reversible error. Counsel’s failure to object to the testimony at the preliminary
examination waived review of its admissibility under the theory that it was unsworn. Therefore,
any objection by counsel at trial would have been futile because the issue was waived. Sardy,
___ Mich App at ___; slip op at 11. Counsel cannot be deemed ineffective for failing to raise a
futile objection. Putman, 309 Mich App at 245. Further, defendant cannot show that admission
of the victim’s preliminary examination testimony was prejudicial under the circumstances
because there was significant corroborating evidence presented at trial of the crime and
defendant’s role as the perpetrator. Therefore, reversal is unwarranted.

        Defendant’s argument that his counsel was ineffective for failing to object to the sister’s
testimony regarding the victim’s statements likewise fails. As discussed above, the victim’s
statements to his sister were admissible as excited utterances. Counsel cannot be deemed
ineffective for failing to raise a meritless objection. Putman, 309 Mich App at 245.

        Defendant finally argues that his counsel provided ineffective assistance by failing to
object to the prosecutor’s improper line of questioning of the officer-in-charge concerning the
contents of the videotaped interview. “[T]here are times when it is better not to object and draw
attention to an improper comment.” People v Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659
(1995). Defense counsel may have reasonably believed that it was better not to draw the jury’s
attention to the inference that the victim’s interview statements were consistent with his
statements at the preliminary examination. The questioning was brief, and there was no
discussion of the substance of the statements made during the interview. Therefore, defendant

                                                -8-
has failed to overcome the presumption that counsel’s conduct was sound trial strategy. Unger,
278 Mich App at 242. In sum, defendant was not denied the effective assistance of counsel.

                                   VI. JURY INSTRUCTIONS

        Defendant contends that the trial court erred by instructing the jury that it need not agree
on the method of penetration in this case and should have sua sponte provided a special
unanimity instruction. Where, as here, a defendant fails to object to a jury instruction or forfeits
an instructional issue, our review is limited to plain error affecting substantial rights. People v
Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003). Reversal is unwarranted if the
instructions fairly presented the issues for trial and sufficiently protected a defendant’s rights. Id.

       A trial judge must instruct the jury regarding the applicable law, and fully and fairly
present the case to the jury. People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005).
The instructions must include all of the elements of the charged crime and any material issues,
defenses, and theories for which there is evidentiary support. Id. The validity of the verdict is
presumed, and the defendant bears the burden of showing that an instructional error was outcome
determinative. People v Rodriguez, 463 Mich 466, 473-474; 620 NW2d 13 (2000). An error is
outcome determinative if it undermines the reliability of the verdict, which requires the
reviewing court to consider the nature of the error in light of the strength and weight of the
untainted evidence. Id. at 474.

        Defendant was charged, in relevant part, with CSC I, which requires proof of a sexual
penetration with another person who is under 13 years of age. MCL 750.520b(1)(a). At trial, the
prosecutor moved to amend the information to change the charge of CSC I from finger in anal
opening to “finger in anal opening and/or penis in anal opening.” Over defense counsel’s
objection, the trial court granted the motion. The trial court then instructed the jury as follows:

              The jury has to be unanimous about whether the defendant penetrated [the
       victim]’s anal opening with either his finger or his penis. The jury does not have
       to [be] unanimous about which of the defendant’s body part[s] entered [the
       victim]’s anal opening.

        Defendant contends that the jury should have been instructed that it must unanimously
agree on which act of penetration was proven beyond a reasonable doubt and cites People v
Cooks, 446 Mich 503, 524; 521 NW2d 275 (1994), in support. However, this case is analogous
to People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991), in which this Court
held that if “a statute lists alternative means of committing an offense which in and of themselves
do not constitute separate and distinct offenses, jury unanimity is not required with regard to the
alternate theory.” Here, defendant committed an act of sexual penetration at a single time and
location. The use of a finger or a penis to penetrate the victim’s anal opening were merely
alternative means to establish a single element CSC I. See People v Chelmicki, 305 Mich App
58, 68; 850 NW2d 612 (2014) (“The alternative theories each relate to a single element of the
offense, and are merely different ways of establishing that element.”). The two different theories
do not constitute “separate and distinct offenses,” requiring jury unanimity to the alternate
theory. Johnson, 187 Mich App at 630. In that regard, “[w]here there is a single sexual
penetration, the various aggravating circumstances . . . constitute alternative means of proving a

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single CSC I offense and would not support convictions of separate and distinct CSC I offenses.”
People v Gadomski, 232 Mich App 24, 31; 592 NW2d 75 (1998). Accordingly, defendant was
properly convicted of CSC I even if some jurors believed he penetrated the victim with his
finger, and others believed he penetrated the victim with his penis. Given the circumstances, the
trial court’s unanimity instruction was sufficient to protect defendant’s rights.

                                      VII. SENTENCING

        Defendant’s final argument is that he is entitled to resentencing because the trial court
failed to consider his applicable sentencing guidelines range before imposing sentence. The
prosecution agrees on appeal that defendant is entitled to resentencing. The record contains no
evidence that the trial court ever scored the variables applicable to defendant’s offense or
considered his applicable sentencing guidelines range, which it was required to do. See
MCL 777.21(2); People v Lockridge, 498 Mich 358, 392 n 28; 870 NW2d 502 (2015). Further,
as our Supreme Court recently clarified, although the sentencing guidelines are no longer
mandatory, trial courts “ ‘must consult those Guidelines and take them into account when
sentencing.’ ” Lockridge, 498 Mich at 391 (citation omitted). Therefore, because the trial court
did not score or consider defendant’s applicable guidelines range before imposing sentence,
defendant is entitled to resentencing.

        We affirm defendant’s convictions, but remand for resentencing. We do not retain
jurisdiction.



                                                           /s/ Michael F. Gadola




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