                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 21, 2016
               Plaintiff-Appellee,

v                                                                    No. 323464
                                                                     Wayne Circuit Court
CHRISTOPHER NICHOLAS JONES,                                          LC No. 14-002571-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of third-degree criminal sexual
conduct (CSC) (person at least 13 but under 16 years of age), MCL 750.520d(1)(a), and
accosting a child for immoral purposes (ACIP), MCL 750.145a. Defendant was sentenced to 3
to 15 years for the CSC conviction, and to one to four years for the ACIP conviction. We affirm
in part and remand.

       Defendant and the victim, who was 14 years old at the time of the sexual encounter that
gave rise to this case, knew each other because defendant was friends with the boyfriend of the
victim’s mother. Defendant and the victim first started communicating via Facebook and text
message. Over the course of less than two months, they exchanged roughly 1,100 text messages,
and defendant said “very inappropriate” things. Defendant also sent the victim a photograph of
his penis. An identical photograph was later found on a phone owned by defendant. Defendant
asked the victim several times to send nude photographs of herself, and she eventually complied
by sending him a topless photograph. The victim’s friend confirmed that the victim said she was
“sexting” with defendant.

        The sexual encounter took place at a party at the victim’s house. People mostly stayed
outdoors during the party, because they were watching a fireworks display. Defendant was
sitting next to the victim, outdoors, when he sent her a text message asking her to meet him in
the house. She did so. The victim said her pants and underwear “moved a little” to her mid-
thigh, but she did not remember how this happened. Then they “ha[d] sex,” meaning defendant’s
penis went inside the victim’s vagina. However, the victim also stated that she did not initially
know “if it was his finger or if it was his penis” that penetrated her. During this encounter, both
defendant and the victim were standing. Defense counsel asked the victim whether her feet were
on the floor during the encounter, and she said, “I think so, yes. I don’t -- some of the parts that

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[sic] I can’t remember.” The victim is just under 5 feet tall, while defendant is about 5 feet 9
inches tall.

        The encounter ended when the friend came in the house. Defendant walked away
without saying anything, and the victim went into the bathroom with her friend. The victim
started “peeing blood.” She was not menstruating at the time. The friend confirmed that she was
in the bathroom with the victim, and there was blood in the victim’s underwear.

        Later that night, the victim sent a text message to defendant asking, “what did you put
inside of me?” She asked because at that point she “wasn’t exactly sure if it was a finger -- if it
was his finger or if it was his penis.” Defendant answered via text message that it was his penis.
The friend was with the victim and saw these messages. The friend and the victim then
exchanged text messages regarding whether it was possible for the victim to get pregnant.

       Defendant testified at trial. He said he never had sex with the victim or flirted with her.
He was present at the party, left at around 10:00 p.m. or 10:30 p.m., and he never went in the
house. Defendant’s girlfriend said that defendant never went into the house during the party.

         At sentencing, the trial court scored OV 4 at 10 points, noting that the victim’s mother
testified that the victim could not sleep by herself, she was more “clingy,” more emotional,
suffered wild mood swings, and required therapy. The judge scored OV 10 at 10 points, because
defendant was a “trusted friend,” he “lured” the victim into the house, and committed the
criminal acts when nobody else was present. The judge scored OV 12 at one point, finding that
defendant engaged in one contemporaneous, felonious criminal act.

        Defendant first argues that it was plain error for a prosecution witness to mention that
defendant did not keep his appointment to take a polygraph examination, and the error was
outcome determinative. Specifically, defense counsel asked the lead detective on the case, “[d]id
you ever meet with [defendant] again, [after meeting him once in his driveway]?” The witness
replied, “[y]es, actually I did. I asked if he would take a polygraph and, um, he didn’t show up.”
Defendant did not object at the time, so this assertion of error is reviewed for plain error
affecting defendant’s substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831
(2003); People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Admitting evidence
regarding a witness’s refusal to take a polygraph examination is plain error. People v Kahley,
277 Mich App 182, 183; 744 NW2d 194 (2007). However, such error does not necessarily
require reversal. Id. at 183-184. We are not persuaded that this remark was outcome
determinative.

         In deciding whether an error regarding a polygraph statement affected the outcome of a
trial, this Court has considered:

       (1) whether defendant objected and/or sought a cautionary instruction; (2)
       whether the reference was inadvertent; (3) whether there were repeated
       references; (4) whether the reference was an attempt to bolster a witness’s
       credibility; and (5) whether the results of the test were admitted rather than
       merely the fact that a test had been conducted. [People v Rocha, 110 Mich App 1,
       9; 312 NW2d 657 (1981).]

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Defendant did not object, the answer was at least somewhat responsive to a question asked by
defense counsel rather than the prosecutor, and no other references were made. The prosecutor
was not in control at the time. However, the polygraph reference does tend to cast light on
defendant’s credibility, which is not allowed. See People v Mechigian, 168 Mich App 609, 613;
425 NW2d 199 (1988). Although technically no “results” were admitted, scheduling and then
refusing a polygraph seems dangerously close to an implication that defendant had “something to
hide.”

        However, to reverse we must find that this error affected the outcome of the trial.
Carines, 460 Mich at 763. We note that this case did not involve simply the victim’s word
against defendant’s word; defendant’s girlfriend provided corroborating testimony in support of
defendant’s version of events. There were also additional witnesses who corroborated the
victim’s testimony. Consequently, this case did not entirely turn on whether the jury found
defendant or the victim to be more credible. While mentioning the polygraph test was plain
error, we think the significant other evidence in this case precludes that single reference from
being outcome determinative. Defendant argues that some parts of the victim’s testimony are
implausible, such as both of them being “flat-footed” on the floor despite their significant height
difference, but that is a distortion of the record; she in fact testified that she did not remember all
of it. The evidence overwhelmingly supports the victim’s account of what happened and that
defendant committed the crimes of which he was convicted. Defendant has not carried his
burden of showing that the error was outcome determinative. Carines, 460 Mich at 763.

        Defendant next argues that his trial counsel performed ineffectively for “failing to object
or move to strike the offending testimony.” We disagree. It may be sound trial strategy to
ignore the admission of inadmissible testimony rather than object and request a curative
instruction on the grounds that doing so may well reinforce any prejudicial effect in the minds of
the jury. People v Griffin, 235 Mich App 27, 37; 597 NW2d 176 (1999), overruled in part on
other grounds by People v Thompson, 477 Mich 146, 148; 730 NW2d 708 (2007). In any event,
even if counsel had been ineffective, reversal on that basis is not warranted unless “there is a
reasonable probability that, but for the deficiency, the factfinder would not have convicted the
defendant.” People v Snider, 239 Mich App 393, 423-424; 608 NW2d 502 (2000). As
discussed, defendant cannot show that the jury would not have convicted him but for the
evidence regarding his refusal to take a polygraph examination. See Id.

       Finally, defendant argues that the trial court erred in using judge-found facts to decide
defendant’s minimum sentence. We agree. Because defendant has shown that his guidelines
minimum sentence range was calculated on the basis of facts not found by the jury or admitted
by defendant, and his sentence was not an upward departure, he is entitled to resentencing unless
he advises the trial court that he does not wish to be resentenced. People v Lockridge, 498 Mich
358, 395, 398; ___ NW2d ___ (2015).

        Defendant was assessed 10 points under OV 4, for “[s]erious psychological injury
requiring professional treatment occurred to a victim.” MCL 777.34. The victim’s mother said
the victim was “clingy,” had trouble sleeping, suffered from mood swings, and saw a therapist
more frequently after defendant victimized her. However, defendant denied committing the
crimes altogether, and psychological injury is neither explicitly nor implicitly necessary to either
conviction. This offense variable must have been scored contrary to Lockridge.

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        Defendant was also assessed 10 points for OV 10, where “[t]he offender exploited a
victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or
the offender abused his or her authority status.” MCL 777.40. “‘Exploit’ means to manipulate a
victim for selfish or unethical purposes.” MCL 777.40. “‘[V]ulnerability’ means the readily
apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.” MCL
777.40. The trial judge found defendant was a “trusted friend,” he “lured” the victim into the
house, and committed the criminal acts when nobody else was present. The jury did necessarily
find that the victim was young, and ACIP requires that defendant “accosted, enticed, or
solicited” the victim, People v Kowalski, 489 Mich 488, 499; 803 NW2d 200 (2011), which
plausibly constitutes manipulation. However, neither of defendant’s convicted offenses require
defendant to have acted for “selfish or unethical purposes.” The crimes themselves may seem
selfish and unethical on their face, however, that is not contained as an element of either crime,
Again, defendant admitted nothing; this offense variable therefore must have been scored
contrary to Lockridge.

        Defendant was assessed 1 point for OV 12, for “[o]ne contemporaneous felonious
criminal act involving any other crime.” MCL 777.42. The parties agreed on the score for this
variable, but the record does not reflect what criminal act was the basis for this score. This OV
only includes offenses that “ha[ve] not and will not result in a separate conviction,” meaning the
ACIP charge cannot have been the basis for this score. MCL 777.42(2)(a)(ii). It does not appear
that the jury would have had reason to consider this, and it also does not appear that defendant
personally admitted what the other contemporaneous criminal act that would not result in a
conviction might have been.

        The “threshold showing” for plain error requires that the facts found by the jury or
admitted by defendant must be insufficient for the score to “fall in the cell of the sentencing grid
under which he or she was sentenced,” and the trial court must not have departed upward from
the guidelines. Lockridge, 498 Mich at 394. The CSC charge, which was used to calculate the
guidelines range, is a Class B offense. MCL 777.63. The lower court scored the Prior Record
Variables (PRV) at 21, resulting in a PRV level of C. The trial court assessed a total of 21 points
for the OVs, which puts defendant at Level II and results in a minimum sentence range of 30 to
50 months. MCL 777.63. Whether or not OV 12 was properly scored, without OV 10 and OV
4, the OVs would have totaled zero or one point, both of which are Level I and result in a
minimum sentence range of 24 to 40 months. MCL 777.63. Defendant’s minimum sentence of
36 months is not a departure. Defendant is therefore entitled to remand for a determination of
“whether that court would have imposed a materially different sentence but for the constitutional
error. If the trial court determines that the answer to that question is yes, the court shall order
resentencing.” Id. at 398. However, before deciding this issue, “a trial court should first allow a
defendant an opportunity to inform the court that he or she will not seek resentencing.” Id.

        We affirm defendant’s convictions, but remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.

                                                             /s/ Amy Ronayne Krause
                                                             /s/ Michael F. Gadola
                                                             /s/ Colleen A. O'Brien


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