                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 16, 2018
                Plaintiff-Appellee,

v                                                                 No. 339477
                                                                  Isabella Circuit Court
BRANDON ALAN CRAIG,                                               LC No. 2016-001800-FH

                Defendant-Appellant.


Before: BECKERING, P.J., and RIORDAN and CAMERON, JJ.

PER CURIAM.

        Defendant was convicted by jury of fourth-degree criminal sexual conduct (CSC-IV),
MCL 750.520e (multiple variables). The trial court sentenced defendant to serve eight months in
jail and five years’ probation. We affirm.

                                      I. RELEVANT FACTS

        The victim reported to the Michigan State Police that defendant, who was the victim’s
first cousin, had sexually assaulted her. In the ensuing investigation, Michigan State Trooper
Kevin Doyle contacted defendant to arrange an interview at a satellite office in order to obtain
“his side of the story.” Defendant agreed to meet for an interview. On the meeting day,
defendant drove himself to the location. Doyle and Michigan State Trooper Chad Bloom
conducted the interview. Defendant admitted that he suffered from a “sexual disease” that made
him sexually overactive and that this condition was exacerbated by alcohol. Defendant admitted
that he grabbed the victim’s breasts and that he touched her inner thigh and leg area. Defendant
also acknowledged that he massaged her groin area outside of her clothes before “coming to his
senses” and stopped. At the completion of the interview, defendant was allowed to leave.
Defendant declined to provide a written statement, and he was charged approximately nine
months later. Before trial, defendant moved to suppress his statements to police, claiming that
they were obtained in violation of Miranda.1 The trial court denied defendant’s motion after




1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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conducting a Walker2 hearing and proceeded to trial. Defendant was convicted of CSC-IV, and
the trial court sentenced him to jail time and probation.

        Defendant’s probation order contained multiple conditions limiting contact and
cohabitation with individuals 17 and younger. At sentencing, defense counsel informed the trial
court that defendant lived with his parents and 15-year-old stepbrother. The trial court permitted
defendant to have contact with his stepbrother, and it also allowed defendant to continue his
supervised parenting time with his children under an earlier Friend of the Court order. However,
the trial court left defendant’s contact with his 10-year-old and 8-year-old sisters, as well as
contact with the minor children of a woman whom he was dating, to the discretion of the
probation department.

                              II. CONDITIONS OF PROBATION

       Defendant first argues that the trial court abused its discretion when it ordered
probationary conditions that did not relate to the offense or his rehabilitative needs. We
disagree.

        “A sentence of probation is an alternative to confining a defendant in jail or prison and is
granted as a matter of grace in lieu of incarceration.” People v Johnson, 210 Mich App 630,
633; 534 NW2d 255 (1995). Under MCL 771.3(1), the sentencing court is required to impose
certain conditions. Further, under MCL 771.3, the trial court may also impose “other lawful
conditions of probation as the circumstances of the case require or warrant or as in its judgment
are proper.” “In setting additional conditions, a sentencing court must be guided by factors that
are lawfully and logically related to the defendant’s rehabilitation.” Johnson, 210 Mich App at
634. This Court reviews preserved challenges to the trial court’s decision to set terms of
probation for an abuse of discretion. People v Zujko, 282 Mich App 520, 521; 765 NW2d 897
(2008).

         Defendant objects to the probationary conditions restricting his ability to have contact
with or cohabitate with a minor. Defendant contends that these conditions interfere with his
ability to parent his children and his ability to date women his age with children under the age of
17. These arguments are meritless. The trial court specifically allowed defendant to have
contact with his children pursuant to a Friend of the Court order regarding his visitation. The
trial court also ordered the probation department to manage defendant’s contact with the children
of the woman he was dating upon his release date. The prosecution noted that defendant’s
probation agent had indicated that, if his girlfriend and her children’s biological father approved
of defendant’s contact with the children, it would permit the contact.

        Defendant additionally objects to the curfew imposed within the probationary conditions.
However, defendant does not support his objection to the curfew hours with any argument or
cited authority. “An appellant may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims . . .” People v Payne, 285 Mich App 181, 195;


2
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


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774 NW2d 714 (2009). “An appellant’s failure to properly address the merits of his assertion of
error constitutes abandonment of the issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d
17 (2004).

        Defendant also raises an unpreserved constitutional challenge to the no-contact and
cohabitation conditions. Unpreserved claims, including constitutional claims, are reviewed for
plain error affecting the defendant’s substantial rights. People v Carines, 460 Mich 750, 764;
597 NW2d 130 (1999). Under the plain error standard of review, a defendant cannot obtain
relief unless “he can establish (1) that the error occurred, (2) that the error was ‘plain,’ (3) that
the error affected substantial rights, and (4) that the error either resulted in the conviction of an
actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012).

        Defendant claims that the probationary conditions restrict his First Amendment rights to
free speech and free association. However, the Fourteenth Amendment of the United States
Constitution recognizes that states may not deprive individuals of their liberties without due
process of law. US Const, Am XIV. The United States Supreme Court has also held that a
criminal’s rights are “subject to restrictions imposed by the nature of the regime to which they
have been lawfully committed.” Wolff v McDonnell, 418 US 539, 556; 94 S Ct 2963; 41 L Ed 2d
935 (1974). “A probationer retains only those rights which are consistent with his probationary
status.” People v Roth, 154 Mich App 257, 259; 397 NW2d 196 (1986). Probation conditions
that are designed to protect the public are generally upheld. United States v Ritter, 118 F 3d 502,
504 (CA 6, 1997).3

        In this case, defendant admitted to the troopers that he sexually assaulted the victim. He
further admitted that he suffered from a “sexual disease” that made him sexually overactive and
that alcohol exacerbated this condition. The jury found defendant guilty of criminal sexual
conduct. The trial court was also aware of a prior charge of first-degree criminal sexual conduct
(CSC-I) that had been dismissed because of the 17-year-old victim’s lack of cooperation.
Additionally, at sentencing, the trial court noted the existence of other allegations made against
defendant. Courts may consider uncharged offenses and pending charges in sentencing. People
v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994). In this case, the
victim was 29 years old at the time of the assault. However, given defendant’s issues with
sexual addiction, the various allegations made against him, and the victim’s young age in the
previously dismissed CSC-I case, it was reasonable for the trial court to conclude that it should
protect individuals under the age of 17 from defendant. Furthermore, defendant has failed to
allege any harm arising from these conditions, and none is apparent on the record. The trial
court made accommodations for defendant’s siblings and children, as well as for his girlfriend’s
children. Therefore, the trial court did not plainly err by limiting defendant’s contact with
individuals under the age of 17.




3
 Although lower federal court rulings are not binding on this Court, they may be considered
persuasive. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).


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                                 III. MOTION TO SUPPRESS

       Defendant argues that his statements to police must be suppressed because he was not
advised of his Miranda warnings. We disagree.

       This Court reviews a trial court’s factual findings regarding the circumstances
surrounding the giving of a statement for clear error. People v Cortez (On Remand), 299 Mich
App 679, 691; 832 NW2d 1 (2013). “Whether a person is in custody for purposes of the
Miranda warnings requirement is a mixed question of law and fact that must be answered
independently after a review of the record de novo.” Id. This court reviews a trial court’s
ultimate decision concerning a motion to suppress de novo. Id.

        “Miranda warnings are necessary only when the accused is interrogated while in custody,
not simply when he is the focus of an investigation.” People v Herndon, 246 Mich App 371,
395; 633 NW2d 376 (2001). Custodial interrogation is “questioning initiated by law
enforcement officers after the accused has been taken into custody or otherwise deprived of his
or her freedom of action in any significant way.” People v Steele, 292 Mich App 308, 316; 806
NW2d 753 (2011). The key question is whether a reasonable person in the defendant’s position
would believe that he or she was free to leave. People v Vaughn, 291 Mich App 183, 189; 804
NW2d 764 (2010), aff’d in part, vacated in part on other grounds 491 Mich 642 (2012).
“Relevant factors include the location of the questioning, its duration, statements made during
the interview, the presence or absence of physical restraints during the questioning, and the
release of the [accused] at the end of the questioning.” Cortez, 299 Mich App at 694.

        In this case, defendant was being interviewed in the course of an investigation and was
not in police custody at the time he made the statements admitting to the assault. The interview
occurred at a satellite office of the Michigan State Police in a room that was closed to prevent
disruption, but it was not locked. Defendant transported himself to the interview, which lasted
approximately one hour. Although Doyle and Bloom were present in uniform, defendant was
not restrained in any way. Defendant never asked for an attorney, and he never asked to leave.
Additionally, defendant was free to leave at the end of the interview.

       Defense counsel argues that a reasonable person in defendant’s position would have been
paranoid, and, not having been advised of his rights, would not have felt free to leave. However,
the United States Supreme Court has indicated that the inquiry is not a subjective one. JDB v
North Carolina, 564 US 261, 279; 131 S Ct 2394; 180 L Ed 2d 310 (2011). In view of all of the
circumstances from an objective perspective, a reasonable person would have believed he or she
was free to leave.

        The trial court also determined that defendant’s statements were voluntary. Whether a
defendant’s statement was knowingly, intelligently, and voluntarily made is determined under
the totality of the circumstances. People v Tierney, 266 Mich App 687, 707; 703 NW2d 204
(2005). “Whether a statement was voluntary is determined by examining police conduct, but the
determination whether it was made knowingly and intelligently depends, in part, on the
defendant’s capacity.” Id.




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        In this case, defendant was not threatened or promised any leniency. Defendant was also
not restrained in any way and did not have to ask to leave. He also never asked for an attorney.
He made his admission at the beginning of the interview and was forthcoming with the details of
the assault. Defendant appeared to be of average intelligence and was able to communicate
clearly, and he did not appear to be under the influence of alcohol or narcotics, nor did he appear
to be injured in any way. At the Walker hearing, defendant presented no evidence to show that
his statements were involuntary.

       In summary, the trial court did not err when it denied defendant’s motion to suppress his
statements to police. He was not in custody, there were no signs of police misconduct, and
defendant made his statements voluntarily.

       Affirmed.



                                                            /s/ Jane M. Beckering
                                                            /s/ Michael J. Riordan
                                                            /s/ Thomas C. Cameron




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