                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 21, 2015
              Plaintiff-Appellee,

v                                                                    No. 321283
                                                                     Oakland Circuit Court
PETER JOHN MILLER,                                                   LC No. 2013-247999-FC

              Defendant-Appellant.


Before: SAWYER, P.J., and DONOFRIO and BORRELLO, JJ.

PER CURIAM.

        Defendant was convicted of six counts of first-degree criminal sexual conduct, MCL
750.520b(1)(a) (victim under 13, defendant 17 or older). He was sentenced as a fourth habitual
offender, MCL 769.12, to six concurrent terms of 50 to 100 years in prison. Defendant appeals
as of right, and we affirm.

         The victims, TB and KB, testified to prolonged sexual abuse committed by defendant.
The abuse started several years after defendant had married the victims’ mother. Defendant
testified at trial and denied that the abuse ever occurred.

       Defendant argues that he was denied the right to effective assistance of trial counsel
because his counsel failed to object to certain comments made by the prosecutor during closing
argument. Specifically, he finds fault in the following commentary:

               Ladies and gentlemen, . . . I have to tell you that two different stories does
       not equal reasonable doubt. You heard two very different sets of testimony. You
       heard from [TB and KB], and you heard today from the Defendant. So I don’t
       want you to go back in that jury room and say to yourselves, you know, we think
       something happened, but it wasn’t beyond a reasonable doubt. Do not do that
       because this is a case where you just have to decide who you believe. ‘Cuz if you
       believe [TB and KB], the Defendant is guilty of all six of these crimes, and if you
       believe him, he’s not. . . . Some of the questions that you ask yourself when
       you’re trying to figure out whether you believe a person is do they have any
       special reason to tell the truth or do they have any special reason to lie.
       Defendant sure as heck as [sic] a special reason to lie ‘cuz he’s facin’ some
       serious charges. . . . No reason presented to you, even by his own testimony that
       you heard today, that [TB and KB], would make this up. None. No explanation.
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                                             * * *

                [TB and KB] told you, in excruciating detail, what happened to them.
         They were believable, and they had absolutely no reason to lie. Defendant has
         every reason in the world to lie.

        Defendant neither brought a motion in the trial court for a new trial predicated on his
claim of ineffective assistance nor requested a Ginther1 hearing. Therefore, this claim of error is
unpreserved, People v Payne, 285 Mich App181, 188; 774 NW2d 714 (2009). “Whether
defendant was denied the effective assistance of counsel presents a mixed question of fact and
constitutional law.” People v Vaughn, 491 Mich 642, 650; 821 NW2d 288 (2012). Questions of
constitutional law are reviewed de novo. Id. Given the lack of preservation, our review is
limited to mistakes apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d
858 (1994).

        In order for a defendant to have an otherwise valid conviction overturned based on a
claim of ineffective assistance of counsel, the defendant “must show that counsel’s performance
fell below an objective standard of reasonableness, and that the representation so prejudiced the
defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 302-303; 521
NW2d 797 (1994). “The inquiry into whether counsel’s performance was reasonable is an
objective one and requires the reviewing court to determine whether in light of all the
circumstances, the identified acts or omissions were outside the range of professionally
competent assistance.” Vaughn, 491 Mich at 670.

        Our resolution of the issue necessarily involves an inquiry into whether the prosecutor
committed error during the closing arguments. The test for prosecutorial misconduct is whether
the conduct deprived defendant of a fair trial. People v Watson, 245 Mich App 572, 586; 629
NW2d 411 (2001). In all instances, a prosecutor’s remarks must be examined in context. People
v Abraham, 256 Mich App 265, 272-273; 662 NW2d 836 (2003). In closing arguments, the
prosecutor may not imply “that defendant must prove something or present a reasonable
explanation for damaging evidence because such an argument tends to shift the burden of proof.”
People v Green, 131 Mich App 232, 237; 345 NW2d 676 (1983). Further, although “a
prosecutor may not vouch for the credibility of his witnesses by implying that he has some
special knowledge of their truthfulness,” “a prosecutor may comment on his own witnesses’
credibility during closing argument, especially when there is conflicting evidence and the
question of the defendant’s guilt depends on which witnesses the jury believes.” People v
Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). Similarly, the “prosecutor may argue
from the facts that a witness, including the defendant, is not worthy of belief.” People v
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996).

       In the instant case, the prosecutor’s statements that defendant takes issue with involved
comparing any motive defendant might have had to lie with any motive that TB and KB might
have had to lie. The prosecutor asserted that defendant had a motive to lie because he was facing


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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“serious charges,” whereas the evidence indicated that TB and KB had no apparent motive to lie.
Given the nature of the charges, it is clear that resolution of the case would come down to which
story and which witnesses the jurors chose to believe. Commenting on the motives of the
witnesses to testify as they did is a legitimate way to argue the issue of credibility, see id.; People
v Flanagan, 129 Mich App 786, 796; 342 NW2d 609 (1983), and it did not act to alter the
prosecution’s burden of proof. Therefore, the prosecutor’s arguments regarding the witnesses’
respective motives, based on the evidence, were proper. Indeed, the court instructed the jurors,
consistent with M Crim JI 3.6(3)(e), that when deciding which witnesses to believe they could
consider whether any particular witness has any “personal interest in how this cases is decided.”
Further, the court explained, consistent with M Crim JI 3.6(3)(g), that the jurors could also think
about whether the witness had “any special reason to tell the truth or any special reason to lie.”
This is precisely the argument the prosecutor was making, and defendant has not established any
error. Consequently, because the prosecutor’s statements were not improper, defendant’s claim
of ineffective assistance of counsel necessarily fails. See People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010) (stating that failing to make a meritless argument or futile objection
does not constitute ineffective assistance of counsel).

       Affirmed.2



                                                               /s/ David H. Sawyer
                                                               /s/ Pat M. Donofrio
                                                               /s/ Stephen L. Borrello




2
  We note that defendant initially raised a second issue in his brief on appeal related to the
imposition of court costs, but he later withdrew that issue for our consideration.


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