                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 13, 2017
               Plaintiff-Appellee,

v                                                                  No. 330892
                                                                   Gratiot Circuit Court
ASHMAY RODRIGUEZ,                                                  LC No. 15-007221-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of one count of sexual penetration
without informing his partner that he was HIV1 positive, MCL 333.5210(1), arising out of a
sexual encounter between defendant and his 16-year-old neighbor. Defendant was sentenced as
a third-offense habitual offender, MCL 769.11, to 3 to 8 years in prison. We affirm.

       Defendant first argues that the trial court abused its discretion by denying his motion for
a mistrial based on comments the prosecutor made in his opening statement. A trial court’s
decision to deny a motion for a mistrial is reviewed for an abuse of discretion. People v Dennis,
464 Mich 567, 572; 628 NW2d 502 (2001). An abuse of discretion occurs when the trial court
chooses an outcome that is outside the range of principled outcomes. People v Schaw, 288 Mich
App 231, 236; 791 NW2d 743 (2010).

        “A mistrial is warranted only when an error or irregularity in the proceedings prejudices
the defendant and impairs his ability to get a fair trial.” People v Waclawski, 286 Mich App 634,
708; 780 NW2d 321 (2009) (quotation marks and citations omitted). See also People v Vettese,
195 Mich App 235, 246; 489 NW2d 514 (1992) (explaining that reversal of a trial court’s
decision on a motion for a mistrial “is not warranted unless the defendant makes an affirmative
showing of prejudice resulting from the abuse of discretion”). Furthermore, “a mistrial should be
granted only where the error complained of is so egregious that the prejudicial effect can be
removed in no other way.” People v Lumsden, 168 Mich App 286, 299; 423 NW2d 645 (1988).
“The trial court may consider, among other things, whether the prosecutor intentionally


1
    Human immunodeficiency virus.


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presented the information to the jury or emphasized the information.” People v Lane, 308 Mich
App 38, 60; 862 NW2d 446 (2014).

        During opening statements, the prosecutor informed the jury that the parties stipulated to
the fact that defendant was HIV positive. However, the prosecutor later told the jury that after
defendant told the officer assigned to investigate the case that he was “clean” and did not have
HIV, the police department “began checking, and through checking records [they] were able to
determine that, in fact, [defendant] was HIV positive.” Defendant sought a mistrial on the
ground that the prosecutor’s comments referred to defendant’s “prior criminal history and/or
offender registry.” The trial court denied the motion, holding that defendant’s contention that the
jury may conclude that the records were all criminal history records was “speculative at best.”

        The trial court’s ruling does not evidence an abuse of discretion. The prosecutor referred
to “records” in the abstract, and it is reasonable to conclude that the jury would have been just as
likely to assume that the records consulted were medical records because the information
gleaned from them was medical information. The prosecutor explained that he was setting the
stage for the testimony of the investigating officer. He intended to ask the officer why he
conducted a follow-up investigation after initially reporting, based on the parties’ statements, that
the encounter involved consensual intercourse between two persons who were both of age. The
prosecutor intended to elicit testimony that the officer continued his investigation after others in
the police department checked records, which led the officer to believe that defendant may have
violated the law based on his HIV status. Accordingly, the prosecutor’s statement provided
context for the investigating officer’s actions in the case.

        Defendant also fails to show how the prosecutor’s comment prejudiced him. The
prosecutor’s statement was “very fleeting and [was] not emphasized to the jury.” Lumsden, 168
Mich App at 299. Nor did the prosecutor mention any records during the officer’s testimony.
See Lane, 308 Mich App at 60. Moreover, the trial court instructed the jurors that “[t]he
lawyers’ statements, arguments, and remarks are not evidence . . . [and they] should only accept
things that the lawyers have argued or said that’s supported by the evidence . . . .” Defendant
does not rebut the presumption that the jurors followed their instructions, People v Abraham, 256
Mich App 265, 279; 662 NW2d 836 (2003), nor does he rebut that this instruction cured any
potential prejudice stemming from the prosecutor’s opening statement, Waclawski, 286 Mich
App at 710.

        Defendant also contends that his conviction is based on insufficient evidence. We review
this issue de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). When
reviewing a sufficiency of the evidence claim in a criminal case, we consider “the evidence in a
light most favorable to the prosecutor to determine whether any trier of fact could find the
essential elements of the crime were proven beyond a reasonable doubt.” People v Robinson,
475 Mich 1, 5; 715 NW2d 44 (2006).

       MCL 333.5210(1) provides the following:

               A person who knows that he or she has or has been diagnosed as having
       acquired immunodeficiency syndrome or acquired immunodeficiency syndrome
       related complex, or who knows that he or she is HIV infected, and who engages

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       in sexual penetration with another person without having first informed the other
       person that he or she has acquired immunodeficiency syndrome or acquired
       immunodeficiency related complex or is HIV infected, is guilty of a felony.

        In the instant case, the parties agree that the only element at issue during trial was
whether defendant informed the victim that he was HIV positive. The victim testified that
defendant did not tell him that he was HIV positive. Conversely, defendant testified that he told
the victim, on two occasions, that he was taking medication for HIV, and defendant’s brother and
nephew both testified that they overheard defendant tell the victim that he was taking medication
for HIV on one of those occasions. Accordingly, the jury was presented with a credibility
contest. To find defendant guilty, the jury had to find that the victim’s account of the events was
more credible than defendant’s account. Consistent with long-standing precedent, we defer to
the jury on matters of credibility. See People v Eisen, 296 Mich App 326, 331; 820 NW2d 229
(2012). Therefore, defendant is not entitled to relief on his sufficiency of the evidence claim.

       Affirmed.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael F. Gadola




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