            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                    March 10, 2020
                Plaintiff-Appellee,                                 9:00 a.m.

 v                                                                  No. 345601
                                                                    Kent Circuit Court
 KIM ANDERSON,                                                      LC No. 17-010335-FC

                Defendant-Appellant.


Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.

METER, J.

        Defendant appeals as of right his jury-trial convictions for first-degree criminal sexual
conduct (CSC-I), MCL 750.520b; kidnapping, MCL 750.349; unlawful imprisonment, MCL
750.349b; unlawful driving away of a vehicle (unlawful driving), MCL 750.413; and assault with
a dangerous weapon (felonious assault), MCL 750.82. Among other issues, defendant argues that
the prosecution did not present sufficient evidence of penetration to convict him of CSC-I. We
conclude, as have many panels before us, that defendant sexually penetrated the victim under MCL
750.520a(r) by inserting his penis into the crease of her buttocks. Accordingly, we conclude that
sufficient evidence supported defendant’s CSC-I conviction. Finding no merit to the remainder of
defendant’s claims of error, we affirm defendant’s convictions and sentences.

                                       I. BACKGROUND

        Defendant’s convictions result from his assault of the victim in her home. The victim and
defendant were friends before the assault, but were not romantically or sexually involved. After
spending the morning together on the day in question, defendant asked the victim for a hug. She
obliged but, when defendant held her for longer than she wished, she pushed him away. At that
point, defendant told the victim that he loved her. The victim, however, informed defendant that
she did not have any romantic feelings for him. According to the victim, she then noticed that
defendant had a knife in his hands, and she tried to take it from him. The two struggled and
eventually ended up on the floor, where defendant sat on the victim’s back, “scraping” the knife
across her back. Defendant hit the victim on her face and back, cut off the victim’s belt with the




                                               -1-
knife, and told her to take off her pants. The victim complied and, as she was standing bent over
facing the ground, defendant placed his penis in the crease of her buttocks and ejaculated.

        According to the victim, defendant then told her to dress and get into the closet in the dining
area. The victim complied and defendant placed a knife in the crease of the door in a manner
which prevented the victim from opening the closet door. Defendant paced back and forth, talking
about how the victim had humiliated him on numerous occasions. Defendant stated that he wanted
the victim to feel his pain and asked her if she wanted to die. Eventually defendant indicated that
he wanted money from the victim and the victim told him that she had collected change in a water
jug. Defendant then allowed the victim to exit the closet and the two went upstairs to a spare
bedroom. Defendant instructed the victim to lie on her stomach and, after she complied, defendant
tied up the victim with speaker wire and masking tape and placed tape over her mouth. Defendant
instructed the victim to enter the closet and, after she did so, wrapped a wire around her neck and
attached it to the clothes bar. Defendant took the victim’s change jug, as well as a few other
valuables, and left in the victim’s car. Defendant abandoned the car at a friend’s home, but was
arrested a couple days later.

        Defendant was convicted of the aforementioned crimes after a four-day jury trial. The trial
court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to prison terms of
50 to 75 years for his CSC-I and kidnapping convictions; 19 to 60 years for his unlawful-
imprisonment conviction; 3 to 30 years for his unlawful-driving conviction; and 4 to 15 years for
his felonious-assault conviction. This appeal followed.

                                           II. ANALYSIS

                             A. SUFFICIENCY OF THE EVIDENCE

       On appeal, defendant first challenges the sufficiency of the evidence underlying his CSC-
I and kidnapping convictions. We review de novo challenges to the sufficiency of the evidence.
People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). On appeal, we must determine
whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact
could find that the prosecution proved each essential element of the crime beyond a reasonable
doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). A trier of fact may consider
circumstantial evidence and all reasonable inferences the evidence creates. Solloway, 316 Mich
App at 180-181. “It is for the trier of fact, not the appellate court, to determine what inferences
may be fairly drawn from the evidence and to determine the weight to be accorded those
inferences.” People v Flick, 487 Mich 1, 24-25; 790 NW2d 295 (2010) (internal citation and
quotation marks omitted). We review de novo issues of statutory interpretation. People v Gardner,
482 Mich 41, 46; 753 NW2d 78 (2008).

                                              1. CSC-I

      In this case, defendant was charged under alternate theories of CSC-I pursuant to MCL
750.520b(1)(c) and (f), which provide in pertinent part:

              (1) A person is guilty of criminal sexual conduct in the first degree if he or
       she engages in sexual penetration with another person and if any of the following
       circumstances exists:
                                                 -2-
                                                * * *

              (c) Sexual penetration occurs under circumstances involving the
        commission of any other felony.

                                                * * *

                (f) The actor causes personal injury to the victim and force or coercion is
        used to accomplish sexual penetration. Force or coercion includes, but is not
        limited to, any of the following circumstances:

               (i) When the actor overcomes the victim through the actual application of
        physical force or physical violence.

MCL 750.520a(r) defines “sexual penetration” as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of another person’s body, but emission of semen is not required.”

        Defendant argues that he could not have been convicted under either theory because the
prosecution presented no evidence of sexual penetration. In making this argument, defendant
points to the victim’s initial statements to police officers and a sexual assault nurse examiner that
defendant did not penetrate her, as well as the victim’s testimony at trial that defendant ejaculated
quickly after she took her clothes off. In making the latter argument, defendant appears to
acknowledge that DNA evidence was presented at trial which tended to show defendant’s DNA in
the area of the victim’s buttocks; however, defendant avers that the “rational inference” from this
evidence and the victim’s testimony “is that semen dripped down in the anal area or that it migrated
from her clothing to that area after she went upstairs.” Regarding these arguments, we need only
note that the victim testified that defendant placed his penis between the fold of her buttocks before
he ejaculated. The victim’s previous statements were presented to the jury, which made a
credibility determination in the victim’s favor. It is the jury’s role to determine credibility and we
will not usurp that role on appeal.1

        The victim’s testimony, however, presents us with a different question: is intrusion into the
crease of the buttocks, but not into the anal cavity itself, sufficient to satisfy the penetration element
of CSC-I? We conclude that it is. There is no binding precedent in this jurisdiction answering the
question; however, several panels of this Court have concluded that similar intrusions satisfy the
penetration element of CSC-I. For instance, in People v Motley, unpublished per curiam opinion
of the Court of Appeals, issued May 23, 2006 (Docket No. 258281), p 3, a panel of this Court
reasoned that the “ ‘anal opening’ includes the crease of the buttocks immediately next to the anus


1
  Defendant argues in his appellate brief that the victim’s testimony was a series of agreements
with the prosecutor’s questions. The jury, however, heard the victim’s testimony and was privy
to her previous statements to officers and the nurse examiner. Again, credibility determinations
are reserved for the factfinder. To the extent that defendant has attempted to argue that the
prosecutor’s questioning was improper, we decline to address this issue because it was not properly
raised in the statement of questions presented. MCR 7.212(C)(5).

                                                   -3-
itself.” In doing so, the Motley panel referenced People v Peterson, 450 Mich 349, 354; 547 NW2d
857 (1995), noting that the “facts of [that] case distinguish anal canal from anal opening.” Motley,
unpub op at 3.

        Similarly, in People v Person, unpublished per curiam opinion of the Court of Appeals,
issued June 7, 2002 (Docket No. 232243), p 2, the panel concluded that “the act of placing one’s
penis in between another’s buttocks in the area of the anal opening is indeed an act of sufficient
physical invasiveness to constitute ‘sexual penetration.’ ” The Person panel reasoned by analogy
to People v Legg, 197 Mich App 131, 133; 494 NW2d 797 (1992), in which this Court concluded
that the “genital openings” of a female victim are not limited to the vagina, itself, but also include
the labia. Person, unpub op at 2. Indeed, our unpublished cases leave little doubt that this Court
interprets the term “anal opening” in MCL 750.520a(r) broadly to include both the anal canal and
the crease of the buttocks. See People v Li-Hua Wei, unpublished per curiam opinion of the Court
of Appeals, issued October 18, 2013 (Docket No. 308353), p 2; People v Novak, unpublished per
curiam opinion of the Court of Appeals, issued January 26, 2010 (Docket No. 284838), p 4.2

        Unpublished cases, however, are not precedentially binding. MCR 7.215(C)(1). Thus,
despite several cases touching on the issue, this Court has not provided definitive guidance to trial
courts applying MCL 750.520a(r) in these circumstances. Therefore, to the extent that any
question exists regarding whether an intrusion need enter the anal canal to constitute sexual
penetration, we intend to resolve it in precedential fashion. Drawing upon the analysis of several
of this court’s panels in recent years, we conclude—now in a published decision—that the
Legislature intended the term “anal opening” to be read broadly to include both the anal canal and
the crease of the buttocks or, in laymen’s terms, as the victim explained, the void between the “butt
cheeks.” In coming to this conclusion, we need not restate at length what has already been
discussed previously. Rather, we highlight two considerations.

        First, this Court has already concluded that the “genital opening” of a female includes the
labia. We see no reason why the Legislature would define “genital opening” broadly, but restrict
“anal opening” to the anal canal. Second, the defining difference between a sexual penetration
and sexual contact is the intrusion into the victim’s body, rather than the unwanted touching of
sensitive areas of the body. The statute broadly prohibits sexual intrusions of all types, regardless
of the cavity entered. In this sense, the statute protects a person’s bodily integrity and there can
be no question that defendant’s conduct in this case sufficiently intruded upon the victim’s bodily
integrity to qualify it in the same class as other recognized sexual penetrations.

      Defendant does not challenge the other elements underlying his sexual-assault conviction.
Accordingly, we affirm defendant’s conviction of CSC-I.




2
 Judge GLEICHER dissented in Novak, concluding that the evidence was insufficient to convict
defendant of CSC-I where, at most, the evidence showed that defendant penetrated the victim’s
buttocks but not her anus. Novak (GLEICHER, J., dissenting), unpub op at 8-10.

                                                 -4-
                                         2. KIDNAPPING

        Next, defendant argues that the prosecutor presented insufficient evidence for a rational
jury to find him guilty of kidnapping. As relevant here, a person commits the crime of kidnapping
if he “knowingly restrains another person with the intent” to commit a criminal sexual offense.
MCL 750.349(1)(c).

       “ ‘[R]estrain’ means to restrict a person’s movements or to confine the person so as
       to interfere with that person’s liberty without that person’s consent or without legal
       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.” [MCL
       750.349(2).]

        Defendant argues that he cannot be convicted of kidnapping because he did not restrain the
victim with the intent to commit a sexual assault. We disagree. Defendant’s argument focuses on
his restraint of the victim in the downstairs and upstairs closets. Defendant makes much of the
fact that any sexual assault did not occur while or after the victim was so confined. Yet, the closet
confinements were not the restraint that warranted defendant’s kidnapping conviction; rather, the
restraint underlying defendant’s kidnapping conviction was his confinement of the victim
preceding the sexual assault.

        Viewing the evidence in the light most favorable to the prosecutor—and crediting the
victim’s testimony accordingly—the record shows that defendant sat on the victim while scraping
a knife over her back. He then used that knife to cut off the victim’s belt, before he instructed her
to remove her clothes and committed the sexual assault. Although the closet confinements were
of longer duration, restraint for the purposes of the kidnapping statute need not be for any specific
period of time. By using his own body weight and the presence of the knife to restrict the victim,
defendant restrained the victim within the purview of the kidnapping statute. That this restraint
was accomplished with the intent to commit a sexual assault is evidenced by the fact that defendant
removed the victim’s belt while she was constrained and committed the sexual act immediately
after the confinement, while the victim was still under the strain of the prior restraint. Accordingly,
the prosecutor presented sufficient evidence for a rational jury to convict defendant of kidnapping.

                                       B. DNA EVIDENCE3

        Defendant raises two arguments with regard to the trial court’s admission of evidence of a
DNA analysis performed on anal and perianal swabs from the victim. At trial, Erica Castor, an
expert in DNA analysis employed by the Michigan State Police in Northville, testified that the
Michigan State Police laboratory in Grand Rapids received the victim’s sexual-assault kit in
October 2017, at which point it was itemized. Michelle Schmitt, a DNA-analysis expert with the
Michigan State Police laboratory in Grand Rapids, testified that the actual date the Grand Rapids
laboratory received the kit was November 13, 2017. According to Castor, the Northville laboratory
received the kit on December 6, 2017. In January 2018, Castor took samples (cuttings) of swabs


3
  This issue and the remaining issues discussed in this opinion were raised by defendant in a brief
filed pursuant to Michigan Supreme Court Administrative Order 2004-6, Standard 4.

                                                 -5-
in the victim’s sexual assault kit to determine whether any tested positive for the presence of male
DNA. Castor generated a report of her work on January 29, 2018. The anal and perianal cuttings
contained the highest amount of DNA and she sent a sample of those cuttings for additional DNA
testing back at the Grand Rapids laboratory.

        Schmitt testified that she began her testing on the cuttings in March 2018 and prepared her
report the next month. Schmitt explained that she analyzed two different “fractions” from the anal
and perianal swab. Fraction one contained skin cells or cells from the body, while Schmitt
attempted to isolate possible sperm cells for fraction two. DNA analysis on the first fraction
revealed likely skin cells with a correlation to the DNA of the victim, defendant, and one unknown
person. Regarding the second fraction, Schmitt testified that, although no one looked at the cells
under a microscope, the differential extraction technique employed was intended to isolate sperm
cells. Schmitt stated that she could not “definitely” say that cells were sperm cells but that the
technique was used to try to isolate sperm cells. The results of the analysis of the second fraction
revealed cells with a strong correlation to defendant’s DNA.

        On appeal, defendant first argues that the trial court erred by admitting Schmitt’s report
into evidence because the reliability of the report was doubtful, given that Schmitt’s report predates
Castor’s report, despite the fact that Schmitt’s report used the cuttings Castor created. We review
this unpreserved argument for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). The record clearly shows that Castor
took the cuttings and created her report before Schmitt. Defendant has provided this Court with
no evidence which would suggest that the DNA samples were tampered with or that the report was
otherwise suspect. Defendant’s argument is therefore without merit.

        Next, defendant argues that the prosecutor misled the jury during his opening and closing
arguments by stating that the defendant’s semen was found on the victim. We review this
unpreserved allegation of prosecutorial misconduct for plain error affecting defendant’s substantial
rights. Id. “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of
prosecutorial misconduct are decided case by case, and this Court must examine the entire record
and evaluate a prosecutor’s remarks in context.” Id. at 64.

        The record in this case indicates that, although Schmitt could not say definitively that the
second-fraction cells were sperm cells, the differential analysis employed attempted to isolate
sperm cells. Moreover, the results of her analysis showed high correlation between the DNA on
the second-fraction cells and defendant’s DNA. These results imply that defendant contributed
semen to the victim’s anal area. Accordingly, we are unable to conclude that the prosecutor misled
the jury and, in any event, the jury was properly instructed that the attorney’s arguments were not
evidence. See People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001) (“Although a
prosecutor may not argue facts not in evidence or mischaracterize the evidence presented, the
prosecutor may argue reasonable inferences from the evidence.”); People v Mahone, 294 Mich
App 208, 212; 816 NW2d 436 (2011) (“Jurors are presumed to follow their instructions, and it is
presumed that instructions cure most errors.”).




                                                 -6-
                               C. POLYGRAPH EXAMINATION

         Next, defendant argues that he is entitled to a new trial because his request to take a
polygraph examination was improperly denied. MCL 776.21(5) provides that “[a] defendant who
allegedly has committed a crime under [MCL 750.520b] shall be given a polygraph examination
or lie detector test if the defendant requests it.” A defendant can request such an examination until
he or she is convicted of the offense. People v Phillips, 469 Mich 390, 396; 666 NW2d 657 (2003).
In this case, defendant was charged with CSC-I pursuant to MCL 750.520b. Therefore, he would
be entitled to a polygraph examination if he requested it. On appeal, however, defendant has
provided no evidence to support his assertion that he requested an examination. Accordingly,
defendant’s argument is without merit.

                          D. FOURTH HABITUAL ENHANCEMENT

        Finally, defendant argues that the trial court erred in sentencing him as a fourth-offense
habitual offender, MCL 769.12. We review de novo issues involving the interpretation of the
legislative sentencing guidelines. People v Ambrose, 317 Mich App 556, 560; 895 NW2d 198
(2016). The trial court’s “factual determinations are reviewed for clear error and must be supported
by a preponderance of the evidence,” but application of those facts to the statute is a question of
law reviewed de novo. Id. (internal citation and quotation marks omitted).

       MCL 769.12(1)(a) provides:

               (1) If a person has been convicted of any combination of 3 or more felonies
       or attempts to commit felonies, whether the convictions occurred in this state or
       would have been for felonies or attempts to commit felonies in this state if obtained
       in this state, and that person commits a subsequent felony within this state, the
       person shall be punished upon conviction of the subsequent felony and sentencing
       under section 13 of this chapter as follows:

               (a) If the subsequent felony is a serious crime or a conspiracy to commit a
       serious crime, and 1 or more of the prior felony convictions are listed prior felonies,
       the court shall sentence the person to imprisonment for not less than 25 years. Not
       more than 1 conviction arising out of the same transaction shall be considered a
       prior felony conviction for the purposes of this subsection only.

        Defendant’s arguments regarding MCL 769.12 are unclear. Defendant appears to argue
that he should have been subject to a 25-year minimum sentence instead of being sentenced as a
fourth-habitual offender. The 25-year minimum, however, is a sentence applied to a fourth-
habitual offender, not a separate sentencing scheme. Indeed, defendant was sentenced as a fourth-
habitual offender consistent with the 25-year minimum set forth in MCL 768.12(1)(a). Defendant
argues that he was not noticed of the fourth-habitual enhancement, but notice was contained in
both the original and amended informations. Accordingly, defendant has not shown any
entitlement to relief from his enhanced sentence. Because defendant has not shown that the
habitual enhancement was improper, we also find without merit his argument that his counsel was
constitutionally ineffective for failing to challenge the enhancement. People v Sabin (On Second
Remand), 242 Mich App 656, 660; 620 NW2d 19 (2000).

                                                -7-
Affirmed.



                  /s/ Christopher M. Murray
                  /s/ Patrick M. Meter
                  /s/ Kirsten Frank Kelly




            -8-
