                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 12, 2017
                Plaintiff-Appellee,

v                                                                    No. 333786
                                                                     Wayne Circuit Court
SHANNEN RAYMON-RICCEL ROBERSON,                                      LC No. 16-001708-FC

                Defendant-Appellant.


Before: JANSEN, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions on four counts of first-degree criminal
sexual conduct (CSC), MCL 750.520b, kidnapping, MCL 750.349, and armed robbery, MCL
750.529. We affirm.

       Defendant was convicted of confining the victim in his motel room on December 27,
2015, and then repeatedly sexually assaulting her and robbing her of her money and cell phone.
Defendant confessed to committing these acts in a postpolygraph interview.1

                            I. DEFENDANT’S BRIEF ON APPEAL

                                      A. MOTION TO SUPPRESS

       Defendant first argues that the trial court erred by denying his motion to suppress his
statements made during his postpolygraph interview. We disagree.

       The trial court denied defendant’s motion to suppress after conducting a Walker2 hearing.
Defendant argued below that his postpolygraph statements were involuntary because he was
under the influence of multiple seizure medications at the time of his interview; thus, this issue is
preserved. See People v McCrady, 244 Mich App 27, 29; 624 NW2d 761 (2000). However,


1
  Neither the fact that defendant was given a polygraph examination, nor the results of that
examination, were disclosed to the jury at trial.
2
    People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965).


                                                 -1-
defendant’s additional appellate claim that the statements were not voluntary because Detective
Michael McNamara did not rewarn him of his Miranda3 rights before the postpolygraph
interview was not raised below; thus, that issue is not preserved. See id.

         In People v Mahdi, 317 Mich App 446; 894 NW2d 732 (2016), this Court stated:
                 We review de novo a trial court’s ultimate decision on a motion to
         suppress on the basis of an alleged constitutional violation. We review for clear
         error any findings of fact made during the suppression hearing. A finding of fact
         is clearly erroneous if, after a review of the entire record, an appellate court is left
         with a definite and firm conviction that a mistake has been made. [Id. at 457
         (quotation marks and citations omitted).]

“[W]e review unpreserved constitutional issues for plain error affecting defendant’s substantial
rights.” People v Henry (After Remand), 305 Mich App 127, 160; 854 NW2d 114 (2014).

        Defendant argues that his statements were involuntary because he was not rewarned of
his Miranda rights after the polygraph examination. In People v Ray, 431 Mich 260, 276; 430
NW2d 626 (1988), our Supreme Court held that the admissibility of statements made during a
postpolygraph interview in which the defendant was not rewarned of his constitutional rights is
to be resolved by reviewing the totality of the circumstances to determine whether the waiver
was knowing and voluntary. The Court stated:
                In this case, the only circumstance intervening between the
         preexamination rights and postexamination questioning which was alleged to be
         of moment was the two-hour time period that encompassed the preinterview
         conversation, the test itself and the postexamination interview. In addition, the
         same person who had warned defendant of his rights the first time, and who
         conducted the polygraph examination, also conducted the postexamination
         questioning. Therefore . . . it was not reasonable to expect a rewarning of those
         rights at that time. Finally, and most importantly, the defendant’s waiver
         expressly extended to a postexamination interview. [Id. at 276-277 (citations
         omitted).]

The Court also found relevant the fact that the defendant was accompanied by counsel at the
interview and there was no misconception regarding what would be admitted at trial. Id. at 277-
278.

       Similarly, in this case, the only intervening circumstance between the preexamination
rights and the postpolygraph interview was the preinterview conversation, which included
obtaining background information and developing questions, and the examination itself. As in
Ray, the same person who informed defendant of his rights also conducted the polygraph
examination and conducted the postpolygraph interview. Finally, the polygraph waiver form


3
    Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                   -2-
signed by defendant expressly extended to the postpolygraph interview. Defendant claims that
the waiver form was misleading because the only reference to postpolygraph questioning was in
the “acknowledgment” section of the form.           Defendant, however, signed his initials
acknowledging that he understood that anything he said “during the testing phase and
questioning, before and after,” could be used against him in a court of law. There is no
indication whether trial counsel was present at the polygraph examination, but defendant does
not argue that he was not allowed to confer with counsel. Nor does defendant argue that there
was any misconception regarding what would be admitted at trial. Because the totality of the
circumstances indicate that defendant’s waiver was knowing and voluntary, there was no plain
error.

        Defendant also argues that his statements were involuntary because he was under the
influence of multiple seizure medications. “Intoxication from drugs or alcohol may preclude an
effective waiver of Miranda rights, but is not dispositive of the issue of voluntariness.” People v
Akins, 259 Mich App 545, 566 n 18; 675 NW2d 863 (2003). Defendant argues that the trial
court should have considered the side effects of his seizure medications, and he attaches to his
brief on appeal a document listing the side effects of each drug. Although the document was
attached to his motion to suppress, it was not admitted at the Walker hearing. Even if the
document is considered, however, there is no evidence that defendant actually suffered from any
of the possible side effects of the medications. At the Walker hearing, McNamara testified that,
before the polygraph examination, defendant stated that his physical condition was good and he
never indicated that he was not feeling well. Defendant did not display any signs of mental
confusion and he gave appropriate responses. Further, at the Walker hearing, defendant admitted
that when he was informed of his rights, he understood what was going on and he understood his
rights. Accordingly, the trial court did not clearly err in finding that defendant’s statements were
knowingly and voluntarily made, and thus it did not err by denying defendant’s motion to
suppress.

                       B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that trial counsel was ineffective for failing to make an adequate
record at the Walker hearing. Because defendant failed to raise this claim of ineffective
assistance of counsel in a motion for a new trial or request for an evidentiary hearing in the trial
court, our review is limited to mistakes apparent on the record. See People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). As explained in Heft:
                A criminal defendant has the fundamental right to effective assistance of
       counsel. However, it is the defendant’s burden to prove that counsel did not
       provide effective assistance. To prove that defense counsel was not effective, the
       defendant must show that (1) defense counsel’s performance was so deficient that
       it fell below an objective standard of reasonableness and (2) there is a reasonable
       probability that defense counsel’s deficient performance prejudiced the defendant.
       The defendant was prejudiced if, but for defense counsel’s errors, the result of the
       proceeding would have been different. [Id. at 80-81 (footnoted citations
       omitted).]




                                                -3-
        Defendant complains that trial counsel failed to establish a foundation for arguing that
defendant’s statements should have been suppressed on the basis of McNamara’s failure to
rewarn defendant of his Miranda rights before the postpolygraph interview and because of his
mental and physical condition at the time of the polygraph examination. Defendant is correct
that a foundation for these arguments was not established at the Walker hearing. Moreover, as
noted earlier, at the suppression hearing, counsel failed to seek admission of the document listing
the possible side effects of defendant’s seizure medications. Nonetheless, defendant has not
established any basis for concluding that either argument was meritorious. As discussed
previously, defendant admitted that he understood what was going on and understood his rights,
and defendant’s waiver was voluntary based on the totality of the circumstances. “Counsel is not
ineffective for failing to advance a meritless position or make a futile motion.” Henry, 305 Mich
App at 141. Accordingly, defendant cannot establish that he was prejudiced by trial counsel’s
alleged error.

                                    C. JURY INSTRUCTIONS

        Defendant next argues that he was denied a fair trial by the trial court’s instructions to the
jury regarding the four counts of first-degree CSC. Defendant asserts that the instructions were
confusing and misleading. We disagree.

        “A party must object or request a given jury instruction to preserve the error for review.”
People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). Defendant
did not object to the trial court’s instructions to the jury regarding the CSC charges. Therefore,
this issue is unpreserved. Unpreserved challenges to jury instructions are reviewed for plain
error affecting defendant’s substantial rights. People v Everett, 318 Mich App 511, 526; 899
NW2d 94 (2017).

        “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him. Accordingly, jury instructions must include all the elements of the charged offenses
and any material issues, defenses, and theories that are supported by the evidence.” Id. at 527
(quotation marks and citations omitted). “Even if instructions are imperfect, reversal is not
required if they fairly present the issues to be tried and sufficiently protect the defendant’s
rights.” People v Chapo, 283 Mich App 360, 373; 770 NW2d 68 (2009).

        Defendant argues that the trial court erred by combining the instructions for all four
counts of first-degree CSC. He contends that the instructions allowed the jury to find that proof
of an element on one count was proof of an element on another count, without considering each
crime separately. We disagree. The trial court instructed the jury regarding the four counts of
first-degree CSC, in relevant part, as follows:
               The defendant is charged with the crime of four counts of first degree
       criminal sexual conduct. To prove these charges the prosecutor must prove each
       of the following elements beyond a reasonable doubt.

               First, that the defendant engaged in sexual acts that involving; in count
       one, entry into [the victim’s] genital opening by the defendant’s penis; in count
       two, entry into [the victim’s] anal opening by the defendant’s penis; and count
       three, entry into [the victim’s] mouth by the defendant’s penis; and in count four,

                                                 -4-
       touching of [the victim’s] genital openings with the defendant’s mouth or tongue.
       Any entry, no matter how slight, is enough. It does not matter whether the sexual
       act was completed or whether semen was ejaculated.

               Second, that the alleged sexual act occurred under circumstances that also
       involved the crime of kidnap[p]ing. To prove the crime of kidnap[p]ing the
       prosecutor must prove, beyond a reasonable doubt, first the defendant knowingly
       restrained another person. Restrained means to restrict a person’s movement or to
       confine the person so as to interfere with that person[’]s liberty without that
       person[’]s consent or without lawful authority. The restraint does not have to
       exist for any particular length of time and may be related or incidental to the
       commission of other criminal acts.

               Second, by doing so the defendant must have intended to engage in
       criminal sexual penetration or criminal sexual contact with that person. Or,
       second, that the defendant caused personal injury to [the victim]. Personal injury
       means bodily injury, disfigurement, chronic pain, pregnancy, or impairment of a
       sexual or reproductive organ or mental anguish. Mental anguish means extreme
       pain, extreme distress or extreme suffering either at the time of the event or later
       as a result of it.

               Here are some things you may think about in deciding whether [the
       victim] suffered mental anguish. . . .

                                             * * *

                And third, the prosecutor must prove that the defendant used force or
       coercion to commit the sexual act. Force or coercion means that the defendant
       either used physical force or did something to make [the victim] reasonably afraid
       or [sic] present or future danger.

        The trial court’s instructions included all the elements of the charged offenses. However,
rather than repeating the elements common to all four first-degree CSC counts, the instructions
explained that element one, the sexual act, varied for each count. The court’s instructions then
listed the remaining elements, which were the same for each count. Contrary to defendant’s
contention, the instructions were not confusing or misleading. As plaintiff argues, the court’s
instructions avoided confusion by not repeating the same elements multiple times. Moreover,
the trial court instructed the jury that each crime was a separate crime and that the jury was
required to consider each crime separately in light of all of the evidence. “Jurors are presumed to
follow a trial court’s instructions[,]” People v McDonald, 303 Mich App 424, 437; 844 NW2d
168 (2013), and therefore, it is presumed that the jurors did not consider proof of an element on
one count as proof of an element on another count. The instructions fairly presented the issues
and sufficiently protected defendant’s rights. See Chapo, 283 Mich App at 373. Accordingly,
there was no plain error affecting defendant’s substantial rights.




                                                -5-
                         D. AMENDMENT OF THE INFORMATION

       Defendant also argues that the trial court abused its discretion by allowing the
prosecution to amend the information during trial to add the count of armed robbery. We
disagree.

       “This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a
motion to amend an information. The trial court abuses its discretion when its decision falls
outside the range of principled outcomes.” People v Perry, 317 Mich App 589, 594; 895 NW2d
216 (2016) (citations omitted).

        MCR 6.112(H) provides: “The court before, during, or after trial may permit the
prosecutor to amend the information or the notice of intent to seek enhanced sentence unless the
proposed amendment would unfairly surprise or prejudice the defendant.” “A defendant may
establish unfair surprise by articulating how additional time to prepare would have benefited the
defense.” Perry, 317 Mich App at 594.

        When the prosecutor moved to amend the information to add the armed robbery count,
the trial court asked defense counsel to explain how defendant would be prejudiced. Counsel
merely stated, “We’d just simply object for the record.” Thus, defendant failed to establish any
unfair surprise or prejudice because of the amendment. Moreover, the fact that the amendment
was based on defendant’s own statements supports the conclusion that defendant was not
unfairly surprised or prejudiced, because he would have been aware of such statements, which
were properly admitted at trial. Accordingly, the trial court did not abuse its discretion by
granting the prosecution’s request to amend the information.

                           II. DEFENDANT’S STANDARD 4 BRIEF

         Defendant raises two additional claims of ineffective assistance of counsel in a pro se
brief filed pursuant to Administrative Order 2004-6, Standard 4. As discussed earlier, defendant
failed to raise a claim of ineffective assistance of counsel in a motion for a new trial or request
for an evidentiary hearing in the trial court so our review is limited to mistakes apparent on the
record. See Heft, 299 Mich App at 80.

                                A. FAILURE TO INVESTIGATE

        First, defendant argues that trial counsel was ineffective for failing to investigate video
and text messages and several witnesses, for not allowing defendant to testify at trial, and by
failing to inform defendant of a plea offer.4 A defendant must prove the factual predicate of his
ineffective assistance of counsel claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).


4
  Defendant also refers to trial counsel’s “[f]ailure to object to polygraph results entered into
evidence.” Defendant, however, does not provide any analysis of this claim. Moreover, neither
the fact that defendant was given a polygraph test nor the results of that test were disclosed to the
jury at trial.


                                                -6-
There is no record evidence establishing that trial counsel failed to investigate the alleged videos,
text messages, or witnesses, failed to allow defendant to testify, or failed to inform defendant of
a plea offer. Moreover, with regard to defendant’s claim that trial counsel failed to allow him to
testify, “the ultimate decision whether to testify at trial remains with the defendant.” People v
Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). Defendant affirmed on the record
that he did not want to testify at trial and that it was his choice alone. Accordingly, the record
does not support these claims of ineffective assistance of counsel.

                       B. FAILURE TO CHALLENGE JURISDICTION

        Second, defendant argues that trial counsel was ineffective for failing to challenge the
trial court’s subject-matter jurisdiction and in personam jurisdiction. We disagree.

        Defendant argues that the trial court’s subject-matter jurisdiction was lacking because the
criminal statutes under which he was convicted (1) were not published in the Federal Register,
(2) do not have implementing regulations, and (3) do not contain the enacting language required
by Const 1963, art 4, § 23. There is no merit to these arguments. The trial court had subject-
matter jurisdiction over defendant’s case because his charges were felonies. See MCL 750.349;
MCL 750.520b; MCL 750.529. “Michigan circuit courts are courts of general jurisdiction and
unquestionably have jurisdiction over felony cases.” People v Lown, 488 Mich 242, 268; 794
NW2d 9 (2011). Moreover, defendant fails to establish that state criminal statutes must be
published in the Federal Register or have implementing regulations. Defendant cites 44 USC
1505(a), but this provision makes no reference to state criminal statutes. Finally, with regard to
defendant’s claim that the compilation laws do not contain the required enacting language under
Const 1963, art 4, § 23, all of defendant’s offenses are prescribed in the Michigan Penal Code,
MCL 750.1 et seq., which begins with: “The People of the State of Michigan enact[.]” See 1931
PA 328. The bound volume of the compiled laws further contains this enacting clause. There is
no support for defendant’s claim that each subsection of the compiled laws must contain the
enacting clause. Moreover, the relevant public acts that created or amended the first-degree
CSC, kidnapping, and armed robbery statutes also contain the enacting clause. See, e.g., 2014
PA 330; 2014 PA 23; 2004 PA 128. Accordingly, trial counsel was not ineffective for failing to
advance these meritless arguments. See Henry, 305 Mich App at 141.

        We also reject defendant’s argument that the trial court did not have in personam
jurisdiction over him. Defendant complains that he was not afforded a jurisdictional hearing and
was never served with a summons and complaint. “In personam jurisdiction is vested in the
circuit court upon the filing of a return of the magistrate before whom the defendant waived
preliminary examination, or before whom the defendant had been examined.” People v Goecke,
457 Mich 442, 458-459; 579 NW2d 868 (1998) (quotation marks and citations omitted). The
trial court had in personam jurisdiction over defendant because a return was filed by the district




                                                -7-
court judge before whom defendant was examined. Again, trial counsel was not ineffective for
failing to advance this meritless argument. See Henry, 305 Mich App at 141.

       Affirmed.



                                                        /s/ Kathleen Jansen
                                                        /s/ Mark J. Cavanagh
                                                        /s/ Thomas C. Cameron




                                            -8-
