                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 9, 2018
              Plaintiff-Appellee,

v                                                                 No. 333841
                                                                  Wayne Circuit Court
LONNIE TODD BARNES,                                               LC No. 16-001044-01-FC

              Defendant-Appellant.


Before: CAMERON, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

       A jury convicted defendant of first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(c), and kidnapping, MCL 750.349, based on his sexual assault of PD. The jury also
convicted defendant of CSC-III, MCL 750.520d(1)(b), but the trial court vacated that conviction
on double-jeopardy grounds at the request of the prosecutor. The court sentenced defendant as a
fourth-offense habitual offender to 42 to 80 years’ imprisonment for each conviction. We affirm
defendant’s convictions, but vacate his sentences and remand for resentencing.

                                      I. BACKGROUND

        One evening in May 2013, PD decided to search the Internet for social meet-up sites as
she had recently moved to Detroit and had no local friends. She discovered a telephone
“hotline,” which she called and then connected with defendant. PD agreed to meet defendant in
person because he promised to take her sightseeing. Defendant instead drove PD to a secluded
location and propositioned her for sex. When PD declined, defendant sexually assaulted her by
forcibly penetrating her both vaginally and anally. Defendant conceded that he did have sex with
PD (this was conclusively established by DNA evidence), but claimed it was consensual.
Because defendant elected not to testify at trial, PD’s was the sole account of the evening’s
events heard by the jury. The prosecution also presented the testimony of another woman, SG,
who described a similar attack perpetrated upon her by defendant.




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                                II. ASSISTANCE OF COUNSEL

       Defendant challenges defense counsel’s performance on several grounds, both in a brief
filed by appointed appellate counsel and in a pro se brief filed pursuant to Supreme Court
Administrative Order No. 2004-6, Standard 4. Defendant did not seek a new trial or a Ginther1
hearing below. A motion panel denied defendant’s remand request, People v Barnes,
unpublished order of the Court of Appeals, entered March 31, 2017 (Docket No. 333841), and
we similarly discern no ground to grant that relief. Accordingly, our review is limited to
mistakes apparent on the existing record. People v Wilson, 242 Mich App 350, 352; 619 NW2d
413 (2000).2

        “Whether defense counsel performed ineffectively is a mixed question of law and fact[.]”
People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “[I]t has long been recognized
that the right to counsel is the right to the effective assistance of counsel.” United States v
Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v
Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). In Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United States
Supreme Court held that a convicted defendant’s claim of ineffective assistance of counsel
includes two components: “First, the defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the deficient performance prejudiced the
defense.” To establish the first component, a defendant must show that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms. People
v Solomonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice
element, the defendant must demonstrate a reasonable probability that but for counsel’s errors
the result of the proceedings would have differed. Id. at 663-664. The defendant must overcome
the strong presumptions that his “counsel’s conduct falls within the wide range of professional
assistance,” and that his counsel’s actions represented sound trial strategy.” Strickland, 466 US
at 689. And the “defendant has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel. . . .” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        Defendant first argues that defense counsel was defective in “coercing” him into not
testifying. Defendant’s claim of error is fatally flawed because he has presented no record
evidence of the advice his counsel provided. The sole record evidence on this point is
defendant’s waiver of his right testify at the trial. Defendant avowed that it was his own decision
not to testify and that he made the decision voluntarily, of his own free will, and without any
coercive threats or promises. Because this Court’s review is limited to errors apparent on the
record, defendant’s bald allegations about the advice provided by counsel do not suffice.
Without any evidence of what advice counsel provided, and why, there is no basis for concluding
that counsel provided bad advice. In light of the myriad strategic implications that might arise


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
  We also note that defendant has improperly expanded the record on appeal. We have not
considered any documents presented to this Court that were not first presented below. See
People v Gingrich, 307 Mich App 656, 659; 862 NW2d 432 (2014).



                                                -2-
when a defendant chooses to testify, and counsel’s ethical duty not to suborn perjury, it might
very well have been prudent to advise defendant not to testify. Accordingly, defendant has not
rebutted the strong presumption that his counsel’s advice was both strategic and effective.

        Defendant argues that counsel should have objected to the introduction of out-of-court
statements made by PD and SG during their rape-kit examinations, further arguing that such
statements constituted inadmissible hearsay. “[C]ounsel cannot be considered ineffective for
failing to raise a futile objection.” People v Stevens, 306 Mich App 620, 628; 858 NW2d 98
(2014). Assuming that the statements in question were hearsay, they were nevertheless
admissible under the hearsay exception set forth by MRE 803(4), pertaining to statements
necessary for medical treatment or diagnosis. See People v Mahone, 294 Mich App 208, 214-
215; 816 NW2d 436 (2011). Accordingly, any objection would have been unfounded.

         Defendant posits that defense counsel inadequately impeached inconsistencies and
implausibilities in the testimony given by SG and PD. Defendant has failed to rebut the strong
presumption that counsel’s performance in this regard was both strategic and effective. As
defendant’s discussion regarding the adequacy of the impeachment method tacitly recognizes,
counsel actually did cross-examine SG and PD about such matters; he simply did not press the
attack to the level defendant might have preferred. When defending against a CSC charge,
however, defense counsel must strike a delicate balance. Although counsel must zealously
advocate for the defendant, an overly zealous cross-examination of a tearful victim may achieve
the opposite result, enraging or alienating the jury. Counsel might have thought that by
ingratiating himself with SG and PD, by building trust and a solid rapport, he was more likely to
elicit favorable testimony. After a thorough review of the record evidence, we are satisfied that
defense counsel struck an appropriate balance.

        Finally, defendant argues that his counsel failed to adequately investigate and pursue
defense theories. Specifically, defendant contends that through a “basic” investigation, counsel
would have learned that SG and PD were both drug-addicted prostitutes who solicited customers
online, and that one of the minivans registered to defendant’s address was impounded at the time
PD was sexually assaulted, so he could not have used it on the night in question. Because
defendant has failed to present any record evidence to establish the truth of these allegations, and
he has also failed to present any evidence regarding what investigatory steps counsel did take,
defendant’s claim of error necessarily fails. Without such evidence, there is no basis for
concluding that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms.

           III. VICTIM’S METHOD OF APPROACHING THE WITNESS STAND

        Defendant contends that the trial court violated his right to due process by allowing PD to
avoid passing the defense table and to approach the witness stand by walking behind the bench.
He also insists that defense counsel should have objected when the court permitted PD to
approach the stand in this manner in front of the jury. We agree that counsel should have
objected to this procedure and at least requested that PD be seated on the witness stand during a
jury recess. However, as defense counsel did not object, our review is limited to plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999). Reversal or new trial is warranted only if defendant can establish prejudice, i.e.,

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“that the error affected the outcome of the lower court proceedings,” the error “resulted in the
conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
Id. (quotation marks, citations, and brackets omitted). The procedure employed did not affect the
outcome of defendant’s trial. As defendant cannot establish the necessary prejudice, he is not
entitled to relief on this ground.

       As explained in People v Rose, 289 Mich App 499, 517-518; 808 NW2d 301 (2010):

       When determining whether a particular [courtroom] procedure is inherently
       prejudicial, courts examine whether there is an unacceptable risk that
       impermissible factors will come into play. [Holbrook v Flynn, 475 US 560, 570;
       106 S Ct 1340; 89 L Ed 2d 525 (1986)]; see also Estes v Texas, 381 US 532, 542-
       543; 85 S Ct 1628; 14 L Ed 2d 543 (1965) (stating that questions of inherent
       prejudice arise when “a procedure employed by the State involves such a
       probability that prejudice will result that it is deemed inherently lacking in due
       process”). One important factor in determining whether a particular practice is
       inherently prejudicial is whether the practice gives rise primarily to prejudicial
       inferences or whether it is possible for the jury to make a wider range of
       inferences from the use of the procedure. Holbrook, 475 US at 569 (“While
       shackling and prison clothes are unmistakable indications of the need to separate a
       defendant from the community at large, the presence of guards at a defendant’s
       trial need not be interpreted as a sign that he is particularly dangerous or
       culpable.”). If a particular procedure is not inherently prejudicial, the defendant
       bears the burden of showing that the procedure actually prejudiced the trial. Id. at
       572. However, when the procedure is inherently prejudicial, it will not be upheld
       if the procedure was not necessary to further an essential state interest.

        In Rose, a case involving CSC-I perpetrated against the defendant’s minor family
members, this Court examined whether the use of a “witness screen”—a screen preventing the
defendant and the complaining child witness from seeing one another—deprived the defendant
of his right to a fair trial by undermining the presumption of innocence. Rose, 289 Mich App at
517-522. The Rose Court decided that the use of a witness screen was not “inherently
prejudicial”; rather, its prejudicial impact was to be assessed on a case-by-case basis. Id. at 520-
521. In part, the Court reasoned:

       Although a juror might conclude that the witness fears the defendant because the
       defendant actually harmed the witness, a reasonable juror might also conclude
       that the witness fears to look upon the defendant because the witness is not
       testifying truthfully. A reasonable juror could also conclude that the screen is
       being used to calm the witness’s general anxiety about testifying rather than out
       of fear of the defendant in particular. [Id. at 520.]

        The process employed in this case also was not inherently prejudicial. Assuming that the
jurors noticed anything abnormal about the manner in which PD approached the witness stand, it
is impossible to know whether they drew any negative inferences about defendant as a result.
Notably, the trial court’s endorsement of the procedure was not made in the jury’s presence.

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Although the jurors might have inferred that PD sought to avoid the defense table because she
was genuinely afraid of defendant, they might also have believed that she was simply confused
about how to approach or went the wrong way by mistake. Also, as with any other credibility
judgment, the jurors were able to observe PD’s body language and mannerisms in defendant’s
presence, thereby gauging the genuineness of any fear portrayed. In other words, the jury was
free to reject any seeming display of fear if they found it to be contrived or unbelievable. On this
record, and particularly in light of the DNA evidence against him, defendant has simply failed to
carry his burden of establishing that PD’s manner of approaching the witness stand represented
outcome-determinative plain error or that counsel’s error in failing to object so prejudiced
defendant as to warrant a new trial.

                                 IV. CONSENT INSTRUCTION

       Defendant argues that he was denied his due process rights to a fair trial and to present a
defense when the trial court failed to give a jury instruction pursuant to M Crim JI 20.27
regarding the affirmative defense of consent to a sexual act. He also challenges defense
counsel’s failure to request this instruction.

       “In the context of the CSC statutes, consent can be utilized as a defense to negate the
elements of force or coercion.” People v Waltonen, 272 Mich App 678, 689-690; 728 NW2d
881 (2006). In this case, however, the prosecution charged defendant with committing CSC
during the commission of another felony, kidnapping, pursuant to MCL 750.520b(1)(c).
“[R]egardless of whether the penetration was consensual, if it occurs during the commission of
another felony, the elements of MCL 750.520b(1)(c) are satisfied.” People v Wilkens, 267 Mich
App 728, 737; 705 NW2d 728 (2005).

       It is true that, notwithstanding the inappropriateness of M Crim JI 20.27, consent was a
valid defense in this case. But it was consent of a different variety. As explained in Wilkens,
267 Mich App at 737:

       If consent were a defense to the second element of MCL 750.520b(1)(c), i.e., the
       underlying felony, then it would be an appropriate defense to the charge under
       MCL 750.520b(1)(c). For example, because consent is a complete defense to the
       felony of kidnapping, MCL 750.349, consent is a defense to MCL 750.520b(1)(c)
       when the underlying felony is kidnapping.

No special instruction was necessary regarding this consent theory (i.e., consent to kidnapping)
because it is ingrained within the model jury instruction for the offense of kidnapping, M Crim JI
19.1, and the trial court provided that instruction to the jury almost verbatim. Thus, the jury was
properly instructed that PD’s consent to any restraint that occurred was an absolute defense to
the underlying felony and therefore was also an absolute defense to the CSC-I charge.

        Accordingly, in relation to defendant’s CSC-I charge, defendant was not entitled to a
consent instruction separate from the instruction given in relation to the kidnapping charge.
Because “counsel cannot be considered ineffective for failing to raise a futile objection,” Stevens,
306 Mich App at 628, counsel was not ineffective in failing to seek an instruction under M Crim
JI 20.27 with regard to the CSC-I charge.

                                                -5-
        We acknowledge that defendant was also charged with, and convicted of, CSC-III
pursuant to MCL 750.520d(1)(b), and a consent-to-penetration defense could have been used to
negate the element of force or coercion for that charge. See People v Vaughn, 186 Mich App
376, 380; 465 NW2d 365 (1990). Yet, defendant’s CSC-III conviction was vacated on double
jeopardy grounds, and the prosecution concedes that the trial court erred by using defendant’s
vacated CSC-III conviction to score prior record variable (PRV) 7. Additionally, the jury was
properly instructed that restraint was an essential element of kidnapping—one that is negated by
consent—and the jury nevertheless convicted defendant of that charge, implicitly finding a lack
of consent. Therefore, even assuming that defense counsel should have sought a consent
instruction in regard to CSC-III, defendant cannot establish the necessary prejudice to warrant
relief.

                                        V. SENTENCING

        Defendant contends that the trial court improperly scored offense variable (OV) 13 at 25
points based on his alleged sexual assault of SG as the prosecution in that matter had yet to result
in a conviction. He also challenges the assessment of 20 points for PRV 7 based on his CSC-III
charge as the court dismissed that conviction on double jeopardy grounds.

         As explained in People v Steanhouse, 313 Mich App 1, 38; 880 NW2d 297 (2015), aff’d
in part and rev’d in part on other grounds 500 Mich 453 (2017), notwithstanding Lockridge3 this
Court continues to apply the standard of review enunciated by People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013), when reviewing a trial court’s scoring of sentencing guidelines
variables. “Under the sentencing guidelines, the circuit court’s factual determinations are
reviewed for clear error and must be supported by a preponderance of the evidence.” Id. at 438.
“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute,
i.e., the application of the facts to the law, is a question of statutory interpretation, which an
appellate court reviews de novo.” Id. The proper interpretation and application of a statute
poses a question of law reviewed de novo. People v Zajaczkowski, 493 Mich 6, 12; 825 NW2d
554 (2012).

        The prosecution concedes error in the scoring of PRV 7, requiring a reduction in
defendant’s overall PRV score from 50 to 30 points. Defendant’s challenge to the scoring of OV
13 is without merit, however. MCL 777.43(2)(a) provides that the trial court must consider all
offenses against a person within a five-year period regardless of whether they resulted in a
conviction. See People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006). It is therefore
irrelevant that defendant’s sexual assault of SG had not reached the trial stage.

        The reduction in defendant’s PRV score reduces his PRV Level from E to D. As a fourth
habitual offender falling within OV Level IV, defendant’s minimum sentencing guidelines range
is thereby reduced from 135 to 450 months to 126 to 420 months. Defendant’s minimum
sentence of 42 years, 504 months, falls outside the corrected minimum sentencing guidelines
range. We are bound therefore to vacate defendant’s sentences and remand for resentencing


3
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).


                                                -6-
based on the amended scoring. See id. at 92. Given our resolution of this issue, we need not
consider defendant’s challenge that his original upwardly departing sentence was unreasonable.
He may raise his challenges before the trial court at resentencing.

                   VI. FREESTANDING “ACTUAL INNOCENCE” CLAIM

        In his Standard 4 brief, defendant argues that we should use this case as an opportunity to
announce that the freestanding federal constitutional claim for “actual innocence,” which may be
applicable to death-penalty cases as discussed in Herrera v Collins, 506 US 390, 417; 113 S Ct
853; 122 L Ed 2d 203 (1993), is a viable claim for relief in noncapital cases in our state courts.
To take advantage of this claim, however, a defendant must demonstrate that he or she is actually
innocent. Id. Defendant has made no such showing in this case. Indeed, DNA evidence
established that he engaged in sexual acts with PD and SG. Both women testified that these acts
were nonconsensual. The jury credited PD’s testimony. Accordingly, we have no need to
consider whether this federal principle should apply to Michigan state law cases.

                                         VII. MCL 770.1

       Finally, defendant contends that “[t]his Court should exercise its discretion pursuant to
MCL 770.1 to grant relief to [defendant] in light of the perjured testimony presented” at trial and
the “powerful evidence” that defendant “is absolutely innocent of the crime[s] of which he was
convicted.” MCL 770.1 provides, “The judge of a court in which the trial of an offense is held
may grant a new trial to the defendant, for any cause for which by law a new trial may be
granted, or when it appears to the court that justice has not been done, and on the terms or
conditions as the court directs.”

        Defendant supports his argument by arguing that this Court may ignore the applicable
court rules and treat his request for a new trial under MCL 770.1, which he has raised for the first
time on appeal in his Standard 4 brief, as if it were a motion for a new trial properly filed in the
trial court. Defendant’s argument is misplaced. While recognizing that our court rules provide
“a procedural framework for post-conviction hearings”—a framework that defendant has not
even attempted to follow—he contends that such procedural rules should be ignored here
because they do not “supersede” the substantive rule of law set forth by MCL 770.1. (Emphasis
added.) Defendant fails to recognize that

       [t]he authority to promulgate rules governing practice and procedure in Michigan
       courts rests exclusively with our Supreme Court. Const 1963, art 6, § 5;
       McDougall v Schanz, 461 Mich 15, 26; 597 NW2d 148 (1999). Therefore, when
       resolving a conflict between a statute and a court rule, the court rule prevails if it
       governs purely procedural matters. [Donkers v Kovach, 277 Mich App 366, 373;
       745 NW2d 154 (2007).]

Because—as defendant admits—the court rules in question govern the procedural framework for
post-conviction relief, MCL 770.1 does not “supersede” them, and this Court is not at liberty to
ignore those procedural rules. Hence, we must reject defendant’s request for statutory relief.




                                                -7-
      We affirm defendant’s convictions, but vacate his sentences and remand for resentencing.
We do not retain jurisdiction.



                                                         /s/ Thomas C. Cameron
                                                         /s/ Deborah A. Servitto
                                                         /s/ Elizabeth L. Gleicher




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