                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 27, 2017
               Plaintiff-Appellee,

v                                                                   No. 330600
                                                                    Oakland Circuit Court
MICHAEL JOHN FRANKLIN,                                              LC No. 2015-254477-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of four counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii). The trial court sentenced defendant to a prison
term of 12 to 40 years for each conviction, to be served concurrently. For the reasons set forth in
this opinion, we affirm.

                                           A. FACTS

        Defendant was convicted of sexually abusing his biological daughter in their family home
in Southfield. The victim, aged 16 at the time of trial, testified that defendant began sexually
abusing her in 2012, shortly after she turned 13 years old. The sexual assaults occurred “once or
twice a week” in the living room1 or her bedroom. Regarding the four charged offenses, the
victim testified that defendant penetrated her vagina with his penis on at least two occasions and
licked her vagina on at least two occasions. She stated that additional uncharged sexual acts
occurred at her paternal grandmother’s house in Detroit after defendant moved out of the family
home in April 2014. The last sexual assault occurred at the grandmother’s house in December
2014. The victim revealed the incidents to a classmate in February 2015. The defense theory at
trial was that defendant did not do anything inappropriate, and that the victim’s testimony was
not credible.

                                         B. ANALYSIS


1
  Deoxyribonucleic acid (DNA) testing of semen discovered on a couch cushion in the living
room revealed the presence of DNA that matched defendant’s DNA profile.


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                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues that the evidence was insufficient to establish his guilt of the two
counts of CSC-I involving cunnilingus.

        We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310
Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was
presented at trial to support a conviction, this Court must view the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491
Mich 127, 139; 815 NW2d 85 (2012). Circumstantial evidence and reasonable inferences arising
from the evidence can constitute satisfactory proof of the elements of the crime. People v
Brantley, 296 Mich App 546, 550; 823 NW2d 290 (2012) (citation omitted). “[A] reviewing
court is required to draw all reasonable inferences and make credibility choices in support of the
jury’s verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

        As applicable to this case, a “person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with another person,” “that other person is at
least 13 but less than 16 years of age,” and “the actor is related to the victim.” MCL
750.520b(1)(b)(ii). In challenging the two CSC-I convictions involving cunnilingus, defendant
argues only that the necessary element of penetration was not proven because the evidence failed
to establish beyond a reasonable doubt that he “inserted” his tongue in the victim’s vagina.
Preliminarily, defendant’s argument is based on the faulty understanding that, in order to convict
him of CSC-I involving cunnilingus, it was necessary to find an actual physical intrusion into the
victim’s genital opening. Sexual penetration is statutorily defined 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. . . .”
MCL 750.520a(r). Thus, an act of cunnilingus, by definition, constitutes an act of sexual
penetration. People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992). Cunnilingus
involves “the placing of the mouth of a person upon the external genital organs of the female
which lie between the labia, or the labia itself, or the mons pubes.” People v Harris, 158 Mich
App 463, 470; 404 NW2d 779 (1987). Thus, a “[d]efendant’s touching with his mouth of the
urethral opening, vaginal opening, or labia establish[es] cunnilingus.” Legg, 197 Mich App at
133.

        The victim testified that on at least two occasions, defendant licked her genital area.
Specifically, he placed his tongue on her “vagina” and “clitoris.” She knew the name of the
specific area where defendant placed his tongue, but in response to additional questioning, she
further indicated that defendant placed his tongue in the area where she wiped after going to the
bathroom. This testimony was sufficient to prove that defendant performed two acts of
cunnilingus. “There is no requirement, if cunnilingus is performed, that there be something
additional in the way of penetration for that sexual act to have been performed.” Harris, 158
Mich App at 470. Accordingly, there was sufficient evidence to support defendant’s two
convictions of CSC-I involving cunnilingus.

                               II. PROSECUTOR’S CONDUCT


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        Defendant argues that he was denied a fair trial because the prosecutor made remarks
during rebuttal argument that amounted to misconduct. As defendant acknowledges, he did not
object to the challenged remarks at trial. Therefore, this claim is unpreserved. We review
unpreserved claims of prosecutorial misconduct for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). We will not reverse if
the alleged prejudicial effect of the prosecutor’s conduct could have been cured by a timely
instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

       Defendant argues that the prosecutor improperly injected “her personal understanding of
a female’s anatomy” in the following emphasized remarks made during rebuttal argument:

               Now, when we’re talking about the counts that apply to the cunnilingus, if
       you recall correctly, [the victim] said, yeah, he licked my vagina. She described
       feeling wetness and she said on her clitoris and in the area between where you
       wipe. Genital opening. That’s where it was.

                When she says—when she says “on,” when we talked more about the
       anatomy, her anatomy and what parts we’re talking about, she said he licked in
       the area where I wipe with—when I go to the bathroom, and she described her
       clitoris. That’s not on. That’s not outside her vagina, that’s inside. That’s in the
       opening, beyond the labia majora of her vagina. She might not know the
       technical terms for it, but that’s her genital opening. [Emphasis added.]

       A prosecutor may not express inject herself into trial as a witness, People v Rodriguez,
251 Mich App 10, 35; 650 NW2d 96 (2002), or make a statement of fact to the jury that is
unsupported by the evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994).
However, prosecutors are afforded great latitude when arguing at trial, People v Fyda, 288 Mich
App 446, 461; 793 NW2d 712 (2010), and they need not state their inferences in the blandest
possible language. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995); People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). An otherwise improper remark might not
warrant reversal if the prosecutor is responding to defense counsel’s argument. Id. at 64.

        The prosecutor’s remarks were responsive to defense counsel’s assertion in closing
argument that defendant was not guilty of CSC-I involving cunnilingus because the testimony
indicated that defendant only licked “on her vagina” and “[o]n is not entry into.” Even if the
prosecutor discussed “her personal understanding of a female’s anatomy,” as defendant
contends, defense counsel did the same during closing argument by suggesting that the areas that
the victim described, i.e., her clitoris and the area that she wiped after going to the bathroom,
were not a part of her genital opening. Considering the responsive nature of the prosecutor’s
remarks, there was no plain error.

        Furthermore, a timely objection to the challenged remarks could have cured any
perceived prejudice by obtaining an appropriate cautionary instruction. See Watson, 245 Mich
App at 586. And even though defendant did not request a curative instruction, the trial court
ultimately instructed the jury that the lawyers’ statements and arguments are not evidence, that
the jury was to decide the case based only on the properly admitted evidence, and that the jury
was to follow the court’s instructions. These instructions were sufficient to dispel any possible

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prejudice and to protect defendant’s substantial rights. People v Long, 246 Mich App 582, 588;
633 NW2d 843 (2001). Defendant acknowledges the trial court’s instructions, but asks this
Court to presume that the instructions were ineffective. It is well established, however, that
jurors are presumed to have followed their instructions, People v Breidenbach, 489 Mich 1, 13;
798 NW2d 738 (2011), and defendant has not provided any basis for concluding that the jurors
failed to do so in this case.

        In addition, to the extent that the prosecutor’s remarks could be considered improper,
defendant bears the burden of showing actual prejudice, People v Pipes, 475 Mich 267, 274; 715
NW2d 290 (2006), and reversal would only be warranted if the error resulted in the conviction of
an actually innocent defendant or if the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings, independent of the defendant’s innocence. Carines, 460 Mich
at 752-753, 763-764. Similar to his argument in section I, supra, defendant’s quarrel with the
prosecutor’s remarks is based on the faulty understanding that it was necessary for the jury to
find actual penetration in order to convict him of CSC-I involving cunnilingus. Again, because
cunnilingus, by definition, constitutes sexual penetration, and “[d]efendant’s touching with his
mouth of the urethral opening, vaginal opening, or labia establish cunnilingus,” Legg, 197 Mich
App at 133, the parties’ disagreement over whether defendant’s touching was “on” or “in” was
immaterial to whether defendant was guilty of CSC-I involving cunnilingus. For these reasons,
defendant is not entitled to a new trial based on the prosecutor’s remarks.

                                    III. SCORING OF OV 11

        Defendant argues that the trial court erred in assessing 50 points, rather than 25 points,
for offense variable (OV) 11 of the sentencing guidelines.

        To preserve a challenge to the scoring of the sentencing guidelines, the challenge must be
raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in
this Court. MCL 769.34(10); MCR 6.429(C); People v Jones, 297 Mich App 80, 83; 823 NW2d
312 (2012). Because defendant did not so challenge the scoring of OV 11, this issue is not
preserved for appeal. Therefore, we review this unpreserved scoring challenge for plain error
affecting defendant’s substantial rights. Id.; Carines, 460 Mich at 752-753, 763-764.
“Substantial rights are affected when the defendant is prejudiced, meaning the error affected the
outcome[.]” Jones, 297 Mich App at 83.

        OV 11 addresses criminal sexual penetrations. MCL 777.41. The trial court must score
50 points if “[t]wo or more criminal sexual penetrations occurred,” MCL 777.41(1)(a), and 25
points if “[o]ne criminal sexual penetration occurred.” MCL 777.41(1)(b). In determining the
proper score for OV 11, a trial court may not count a sexual penetration that formed the basis for
the conviction, MCL 777.41(2)(c), but may score all other “sexual penetrations of the victim by
the offender arising out of the sentencing offense.” MCL 777.41(1)(a). The phrase “arising out
of” suggests “a causal connection between two events of a sort that is more than incidental.”
People v Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006). “Something that ‘aris[es] out of,’
or springs from or results from something else, has a connective relationship, a cause and effect
relationship, of more than an incidental sort with the event out of which it has arisin.” Id. In
People v Mutchie, 251 Mich App 273, 277; 650 NW2d 733 (2002), aff’d on other grounds 468
Mich 50 (2003), this Court affirmed the scoring of OV 11 where “all three sexual penetrations

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perpetrated by defendant against the victim occurred at the same place, under the same set of
circumstances, and during the same course of conduct.” Id.

        Defendant argues that there was no evidence that two or more additional sexual
penetrations arose, sprung, or resulted from a single sentencing offense, i.e., from any one of the
offenses resulting in a first-degree CSC conviction, and therefore, the trial court erred in
assessing 50 points for OV 11. However, the victim testified that on those occasions when
defendant would lick her vagina, he “would do that first and then he would put his penis inside
of [her].” In addition, the victim testified that when defendant was residing in the same
residence, he would sexually penetrate her at night on multiple occasions in the living room or in
her bedroom. Like in Mutchie, 251 Mich App at 277, here, the victim’s testimony showed that
these penetrations occurred at the same place, under the same circumstances and during the same
course of conduct and there was a connective relationship between the assaults. Johnson, 474
Mich at 101. In short, there was record evidence to support the trial court’s scoring of OV 11.

        Moreover, even if the 50-point score for OV 11 constitutes plain error, it does not entitle
defendant to resentencing because it did not affect defendant’s substantial rights. The trial court
scored the guidelines for one of defendant’s four CSC-I convictions, which is a class A offense.
MCL 777.16y. Defendant received a total OV score of 100 points, which combined with his 20
prior record variable points, placed him in the C-VI cell of the applicable sentencing grid, for
which the minimum sentence range is 135 to 225 months. MCL 777.62. Defendant argues that
OV 11 should have been scored at 25 points. The additional 25 points for OV 11 increased
defendant’s total OV score from 75 points to 100 points, which in turned changed his placement
from OV Level IV (60 - 79 points) to OV Level VI (100+ points), resulting in a higher
guidelines range. The guidelines range for an offender falling in the C-IV cell is 108 to 180
months. In general, a defendant is entitled to resentencing if a scoring error alters the sentencing
guidelines range. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

        In this case, defendant received a minimum sentence of 144 months—well within the
altered guidelines range of 108 to 180 months. If a defendant has failed to preserve his challenge
to the trial court’s scoring decision, and his sentence is within the appropriate guidelines range,
“the defendant cannot raise the error on appeal except where otherwise appropriate, as in a claim
of ineffective assistance of counsel.” Francisco, 474 Mich at 89 n 8. Defendant raises a separate
ineffective assistance of counsel claim, which we address in section IV, infra.

        Regarding his current argument, there is no indication that the trial court would have
imposed a lesser minimum sentence if OV 11 had been scored at 25 points. At sentencing, the
trial court specifically recognized that the sentencing guidelines are only advisory. See People v
Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). The trial court provided reasons for the
sentences it imposed, stating that “having heard the testimony, having looked at the submissions,
looking at the evidence, does feel a fair sentence in this matter would be 12 years to 40 years.”
(Emphasis added.) In other words, the trial court did not rely on the guidelines when imposing
defendant’s 144-month sentence, which in any event falls squarely within even the altered
guidelines range, and thus it is improbable that a lower guidelines range would have caused the
trial court to impose a lesser sentence. For these reasons, defendant has not established that any
error affected his substantial rights, or otherwise affected the outcome of the proceedings.
Accordingly, he is not entitled to be resentenced.

                                                -5-
                        IV. EFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he was denied the effective assistance of counsel at trial and at
sentencing. We disagree. Because defendant did not raise an ineffective assistance of counsel
claim in the trial court, our review of this issue is limited to mistakes apparent on the record.
People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective
assistance of counsel, a defendant must show that his or her attorney’s performance fell below an
objective standard of reasonableness under prevailing professional norms and that this
performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d
224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show the probability
that, but for counsel’s errors, the result of the proceedings would have been different.” Id.

        We reject defendant’s argument that he was denied the effective assistance of counsel
because defense counsel failed to object to the prosecutor’s remarks discussed in section II,
supra. As we concluded earlier, the prosecutor’s remarks were not clearly improper, but rather
were a proper response to defense counsel’s closing argument addressing the same matter.
Therefore, defense counsel’s failure to object was not objectively unreasonable. Further,
because the trial court’s instructions adequately protected defendant’s rights, and because the
basis for defendant’s challenge to the remarks is legally flawed, defendant cannot demonstrate a
reasonable probability that, but for counsel’s failure to object, the result of the proceeding would
have been different. Id.

        We also reject defendant’s argument that he was denied the effective assistance of
counsel because defense counsel failed to object to the trial court’s 50-point score for OV 11.
There was evidence to support the trial court’s scoring of OV-11 and, given the trial court’s
statements before imposing defendant’s sentence, there is no indication that the court would have
imposed a lesser minimum sentence if only 25 points had been assessed for OV 11. Again, the
trial court was aware of the advisory nature of the guidelines and plainly expressed its belief that,
given the evidence, the 12-year minimum sentence was a “fair sentence.” It is noteworthy to
point out again that defendant’s minimum sentence falls squarely within the altered guidelines
range of 108 to 180 months, and thus does not detract from the trial court’s view that a 12-year
minimum sentence was a “fair sentence.” For these reasons, defendant cannot demonstrate a
reasonable probability that, but for counsel’s failure to object, the result of the proceeding would
have been different. Consequently, defendant cannot establish a claim of ineffective assistance
of counsel.

                           V. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises additional claims in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. None of these claims have merit.

        In his only clearly stated issue, defendant makes the same sufficiency argument that we
have already addressed, and rejected, in section I, supra. Within this issue, defendant appears to
also argue that the evidence was insufficient to find him guilty beyond a reasonable doubt
because the victim was lying and there were discrepancies in other prosecution witnesses’
testimony. In making these arguments, however, defendant ignores that when evaluating the
sufficiency of evidence, this Court is required to resolve all conflicts in the evidence in favor of

                                                -6-
the prosecution. People v Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). Defendant’s
challenges are related to the weight and credibility of the evidence rather than its sufficiency.
People v Scotts, 80 Mich App 1, 9; 263 NW2d 272 (1977). Indeed, these same challenges were
presented to the trier of fact during trial. This Court “will not interfere with the jury’s
determinations regarding the weight of the evidence and the credibility of the witnesses.” People
v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).

        Defendant states that the prosecutor “knew” that the victim was lying and cites instances
where the victim’s testimony differed from her prior testimony and her classmate’s trial
testimony, thereby appearing to argue that the prosecutor knowingly presented perjured
testimony by the victim. Because defendant did not object to the prosecutor’s conduct below, we
review this unpreserved claim of prosecutorial misconduct for plain error affecting substantial
rights. Carines, 460 Mich at 763-764. A defendant’s right to due process “is violated when
there is any reasonable likelihood that a conviction was obtained by the knowing use of perjured
testimony.” People v Gratsch, 299 Mich App 604, 619; 831 NW2d 462 (2013), vacated in part
on other grounds 495 Mich 876 (2013). Thus, a prosecutor has “an obligation to correct perjured
testimony that relates to the facts of the case or a witness’s credibility.” Id.

        The inconsistencies listed by defendant do not establish that the prosecutor knowingly
used perjured testimony to obtain defendant’s conviction. Gratsch, 299 Mich App at 619;
People v Parker, 230 Mich App 677, 690; 584 NW2d 753 (1998). Although there were
instances when the victim’s trial testimony differed from her prior testimony, there is no
indication that the prosecutor sought to conceal those inconsistencies from defendant. Id. In
fact, defendant himself cites examples of where defense counsel cross-examined the victim about
her inconsistent testimony. Additionally, testimony that conflicts with other witnesses’
testimony does not lead to the conclusion that the prosecutor knowingly used perjured testimony.
Defendant’s argument does not involve an issue of perjury, but of credibility. Defense counsel
explored the credibility problems with the victim’s testimony, as well as other prosecution
witnesses. The jury was free to believe or disbelieve all or any portion of the victim’s trial
testimony. Unger, 278 Mich App at 222.

       Defendant appears to raise additional ineffective assistance of counsel claims. Because
defendant did not raise these claims in the trial court, our review of this issue is limited to
mistakes apparent on the record. Heft, 299 Mich App at 80.

        Defendant states that there were “questions and answers [he] felt that needed to be asked
and answered in reference to the buccal swab.” However, decisions about what questions to ask
are matters of trial strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and
“this Court will not second-guess defense counsel’s judgment on matters of trial strategy.”
People v Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). Defense counsel has wide
discretion regarding matters of trial strategy. Heft, 299 Mich App at 83. Furthermore, having
reviewed defendant’s proposed question, defendant has not identified any omission that
prejudiced his case.

       Defendant also states that he noticed “a lot of wrong doing,” informed defense counsel,
and defense counsel “kept looking over it.” Defendant provides no evidence to support this
cursory complaint. Defendant has the burden of establishing the factual predicate of his

                                               -7-
ineffective assistance claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).
Defendant also states that defense counsel “didn’t even point [] out” when a detective “lied about
[the victim’s god brother] saying he played truth or dare.” The record does not support this
claim. During direct examination, the detective testified that the god brother stated that he “does
not remember playing truth or dare with [the victim],” “[b]ut that’s not to say it didn’t happen.”
During the defense’s case, defense counsel recalled the detective and elicited that the detective
did not write in his police report that the god brother stated that “he could have” played truth or
dare with the victim; the detective wrote only that the witness said he never played the game
with her. Therefore, these claims are without merit.

        Lastly, defendant has attached numerous documents to his supplemental brief, including
police reports, a Child Protective Services investigation report, medical records, and laboratory
reports. He urges this Court to “look and compare” the discrepancies. However, defendant does
not further explain how these documents support a claim for relief. “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment with little or no citation of supporting
authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The failure to
brief the merits of an allegation of error constitutes an abandonment of the issue.” People v
McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004). Consequently, defendant has
abandoned whatever remaining claims he believes might be supported by the numerous
documents attached to his brief.

       Affirmed.



                                                            /s/ Kathleen Jansen
                                                            /s/ William B. Murphy
                                                            /s/ Stephen L. Borrello




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