                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 19, 2018
               Plaintiff-Appellee,

v                                                                  No. 335180
                                                                   Wayne Circuit Court
JONATHAN LLEWELLYN MAYBIN,                                         LC No. 15-009942-01-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of third-degree criminal sexual
conduct (sexual penetration of a physically helpless victim), MCL 750.520d(1)(c), and fourth-
degree criminal sexual conduct (sexual contact with a physically helpless victim), MCL
750.520e(1)(c). Defendant was sentenced to 4 to 15 years’ imprisonment for the third-degree
criminal sexual conduct conviction and 23 days, time served, for the fourth-degree criminal
sexual conduct conviction. For the reasons set forth in this opinion, we affirm.

                                      I. BACKGROUND

         This appeal arises out of events that occurred on August 29-30, 2015. On August 29, the
victim went to a wedding where she admittedly had too much to drink causing her to become too
intoxicated to drive home. One of the victim’s friends testified that she drove the victim home,
placed the victim in her bed and left. Defendant, who was the boyfriend of the victim’s mother,
testified that he had a key to the home and was present when the victim arrived home.
Defendant testified that sometime in the early morning hours of August 30, 2015, the victim
cried out that she was suffering from back pain. Defendant testified that he began to rub the
victim’s back “to comfort [the victim].” The victim then “pressed her body up against”
defendant and started to grind “her butt on [his] front genitals.” Defendant then held and
caressed the victim for a few minutes in the spooning position as the victim continued to “push
her body against” defendant as “she got aroused,” and both she and defendant “got excited.”
Defendant testified that the two then had consensual sex.

         The victim testified that at approximately 4:00 a.m. or 5:00 a.m. on August 30, 2015, the
victim woke up naked in her bed with defendant on top of her. The victim testified that she
knew that it was approximately 4:00 a.m. or 5:00 a.m. because that was “around the time [she]
left the house.” When the victim woke up with defendant on top of her, her head was no longer
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near her bed’s headboard; rather, her head was located at the foot of her bed. According to the
victim, defendant was having sex with the victim, his lips were touching her breasts, and he used
his hands to hold her wrists down to the bed, prompting the victim to tell defendant “to stop and
to get off of [her].” Defendant never said anything and eventually stopped and left. The victim
then sent a text message to her mother announcing that her mother’s boyfriend had just raped
her.

       The jury found defendant guilty and the trial court sentenced defendant as indicated
above. This appeal then ensued.

                                         II. ANALYSIS

                                A. INSUFFICIENT EVIDENCE.

       On appeal, defendant first argues that the prosecution failed to prove beyond a reasonable
doubt that defendant knew or had reason to know that the victim was physically helpless.

        “A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo,
viewing the evidence in the light most favorable to the prosecution, to determine whether the
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt.” People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014) (citation
omitted). “All conflicts in the evidence must be resolved in favor of the prosecution, and
circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory
proof of the crime.” People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016). It
is the role of the trier of fact to determine the weight of the evidence and the credibility of the
witnesses. People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014).

       “MCL 750.520d(1)(c) provides that a person is guilty of CSC III if they engage in sexual
penetration with another person whom he or she knew or had reason to know was mentally
incapable, mentally incapacitated, or physically helpless.” People v Cox, 268 Mich App 440,
443; 709 NW2d 152 (2005), citing MCL 750.520d(1)(c). MCL 750.520e(1)(c) provides that “[a]
person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual
contact with another person and if . . . [t]he actor knows or has reason to know that the victim is
mentally incapable, mentally incapacitated, or physically helpless.”           Relevant here, “
‘[p]hysically helpless’ means that a person is unconscious, asleep, or for any other reason is
physically unable to communicate unwillingness to an act.” MCL 750.520a(m) (emphasis
added). Neither party disputes that defendant engaged in sexual contact and sexual penetration
with the victim. Therefore, whether defendant knew or had reason to know that the victim was
physically helpless is the only element at issue here.

         “[T]he elements of an offense may be established on the basis of circumstantial evidence
and reasonable inferences from the evidence.” People v Dunigan, 299 Mich App 579, 582; 831
NW2d 243 (2013), citing People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010).
At trial, testimony from the victim and her friend established that the friend took the victim
home, placed her in her bed where the victim fell asleep wearing clothes and that she was in her
own bed, with her head near her headboard. At approximately 4:00 a.m. or 5:00 a.m., the victim
testified that she woke up naked in her bed with her head at the foot of her bed, and defendant on

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top of her. The victim testified that defendant was having sex with her, his lips were touching
her breasts, and he used his hands to hold her wrists down to the bed. The victim’s position in
the bed is contrary to the position that the victim’s friend testified she placed the victim in bed.
Additionally, the victim’s friend testified that the victim fell asleep in her dress and tights.
Therefore, the evidence presented by the victim and her friend, if believed, was direct evidence
that the victim was asleep when the penetration occurred. The victim made clear that she was
asleep until she woke up with defendant on top of her. Given this testimony, a reasonable trier of
fact could infer from the evidence that defendant knew or had reason to know that the victim was
asleep, and thus, physically helpless under the statutory definition, when the sexual contact and
penetration occurred. MCL 750.520d(1)(c); MCL 750.520e(1)(c); Cox, 268 Mich App at 443.

        Defendant asserts on appeal that “significant evidence was presented” establishing that
the victim lied. In contrast to the victim and her friend’s testimony, defendant testified that
defendant and the victim engaged in consensual sex. As previously stated and contrary to the
victim’s testimony, defendant testified that while sitting on the downstairs couch, “ ‘scrollin’
through [his] phone,” he heard the victim scream out; upon entering the victim’s room, the
victim told defendant that she was having back pain; he began to rub the victim’s back to
“comfort her”; the victim “pressed her body up against” defendant and began to grind “her butt
on [his] front genitals”; the pair spooned and the victim continued to push her body up against
defendant; the pair got excited and each individually removed their own clothing; the victim got
on top of defendant, “rode” him until he ejaculated, and the pair rolled over and continued
having sex; he did not hold the victim down because she was holding onto him; the pair had sex
for another 20 minutes and the victim asked to continue having sex, but defendant declined; and,
after the pair finished having sex, defendant returned to his bedroom while the victim showered.
Defendant requests this Court believe his version of events and disregard the facts as set forth by
the victim. However, it is well-settled that “[t]his Court will not interfere with the trier of fact’s
role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan,
278 Mich App 594, 619; 751 NW2d 57 (2008). Further, for purposes of review, the evidence is
viewed in the light most favorable to the prosecution. Gaines, 306 Mich App at 296. Therefore,
based on the evidence presented below, when viewed in the light most favorable to the
prosecution, there was sufficient evidence for a reasonable trier of fact to determine that the
prosecutor proved the elements of third- and fourth-degree criminal sexual conduct beyond a
reasonable doubt. Solloway, 316 Mich App at 180-181.

         Beyond the conflicting testimony, defendant also argues on appeal that the victim’s
testimony was inherently incredible and contradictory. Again, we note that “[q]uestions
regarding the weight of the evidence and credibility of witnesses are for the jury, and this Court
must not interfere with that role even when reviewing the sufficiency of the evidence.” People v
Carll, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 336272); slip op at 3, citing
People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992). Our review of the record leads us to conclude that the State produced legally sufficient
evidence, which if believed, would lead a rationale trier of fact to conclude that defendant was
guilty of the charged offenses beyond a reasonable doubt. Accordingly, defendant is not entitled
to relief on this issue.

                             B. PROSECUTORIAL MISCONDUCT.


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       Defendant also argues on appeal that he was deprived of his right to a fair trial because
the prosecution “repeatedly” engaged in prosecutorial misconduct. Specifically, defendant
argues that the trial court had to interrupt the prosecutor on numerous occasions because he was
being argumentative, leading, talking fast, and “screamin” at defendant.

       “In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). Although a number of statements were objected to on the
basis of the form of the question or as being argumentative or leading, defense counsel never
requested curative instructions. Further, although defense counsel objected to the continued
presence of the victim and Karen in the courtroom, counsel did not request a curative instruction.

        “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014) (citation and
quotation marks omitted). “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.
(citation and quotation marks omitted). However,

       [u]npreserved issues are reviewed for plain error affecting substantial rights.
       Reversal is warranted only when plain error resulted in the conviction of an
       actually innocent defendant or seriously affected the fairness, integrity, or public
       reputation of judicial proceedings. Further, [this Court] cannot find error
       requiring reversal when a curative instruction could have alleviated any
       prejudicial effect. [Bennett, 290 Mich App at 475-476.]

        “Generally, to prevail on a claim of prosecutorial misconduct, a defendant must show that
he was denied a fair and impartial trial.” Solloway, 316 Mich App at 201 (citation omitted). “A
defendant’s opportunity for a fair trial can be jeopardized when the prosecutor interjects issues
broader than the defendant’s guilt or innocence.” People v Dobek, 274 Mich App 58, 63-64; 732
NW2d 546 (2007). “In reviewing prosecutorial misconduct challenges, this Court views the
alleged prosecutorial misconduct in context.” Solloway, 316 Mich App at 201 (citation omitted).
“A defendant is entitled to a fair trial, not a perfect one.” Id. “A prosecutor’s remarks must be
examined in context and evaluated in light of defense arguments and the relationship they bear to
the evidence admitted at trial to determine whether a defendant was denied a fair and impartial
trial.” People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). “Generally,
‘[p]rosecutors are accorded great latitude regarding their arguments and conduct.’ ” People v
Cooper, 309 Mich App 74, 90; 867 NW2d 452 (2015), quoting People v Bahoda, 448 Mich 261,
282; 531 NW2d 659 (1995) (citation and quotation marks omitted; alteration in original).
Prosecutors are “free to argue the evidence and all reasonable inferences from the evidence as it
relates to their theory of the case.” People v Marshall, 493 Mich 1020, 1020; 829 NW2d 876
(2013).

       Defendant argues that comments made by the prosecutor which caused the trial court to
“admonish” the prosecutor for being argumentative and speaking too quickly denied him of a fair
trial. When discussing defendant’s relationship with the victim, the following exchange
occurred:

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              Prosecutor: Even though you have this up and down relationship with
       her, you were gonna’ [sic] go see what was wrong with her that night?

               Defendant: I never said I didn’t care.

               Prosecutor: Well, I never asked if you did.

       Without objection from defense counsel, the trial court recognized the argumentative
nature of the prosecutor’s statement. In asking defendant whether he cared about the victim, the
prosecutor again commented, “I didn’t ask you that, did I?” Again without objection from
defense counsel, the trial court told the prosecutor to “stop being argumentative.” Here, clearly
the prosecutor’s comments were somewhat argumentative. However, we note that on appeal,
defendant does not articulate how he was prejudiced by these two remarks. Additionally, as to
whether the prosecutor was asking questions or talking too quickly, defendant does not point this
Court to evidence as to how the quickness with which the prosecutor asked questions prejudiced
him.

         Defendant also takes issue with the volume of the prosecutor’s voice during cross-
examination of defendant. Although trial counsel objected to the form of the question, it was the
trial court that recognized that the prosecutor was “screamin” during cross-examination of
defendant and admonished the prosecutor to refrain from raising his voice. The record reveals
that by recognizing the prosecutor’s tone of voice and allowing him to continue his questioning,
the trial court’s actions demonstrate that it did not perceive the prosecutor’s tone of voice as an
issue that required further addressing. Again, defendant has failed to demonstrate how he was
prejudiced by the single instance of alleged “screamin” on the part of the prosecutor. (Defendant
does not cite to other instances in the record where the prosecutor spoke with an elevated voice
nor does he explain how the jury’s verdict may have been affected by the prosecutor screaming.
Rather, defendant makes conclusory statements that “[t]he prosecutor’s improper conduct as well
as that of his witnesses and the complainant, may well have prompted the jury to convict [him]
thus depriving him of due process and a fair trial.” In the absence of any evidence that defendant
was denied a fair trial by the remarks, “screamin” and leading questions posed by the prosecutor,
we hold that defendant is not entitled to relief on this issue.

        Defendant additionally argues that he was denied a fair trial because the prosecutor
defended the presence of the victim and Karen in the courtroom while they were crying, and
even “support[ed] their misconduct.” Under the Michigan Constitution, crime victims have
“[t]he right to attend trial and all other court proceedings the accused has the right to attend.”
Const 1963, art 1, § 24. Additionally, the Crime Victim’s Rights Act, MCL 780.761 provides:

       The victim has the right to be present throughout the entire trial of the defendant,
       unless the victim is going to be called as a witness. If the victim is going to be
       called as a witness, the court may, for good cause shown, order the victim to be
       sequestered until the victim first testifies. The victim shall not be sequestered
       after he or she first testifies. [Emphasis added.]

       In this case, the victim was the first person to testify. After the victim testified, she
remained in the courtroom throughout the course of trial, including while defendant testified

                                                -5-
regarding his version of events. During defendant’s testimony, the trial court observed that the
victim and her friend were crying in the back of the courtroom, excused the jury, and gave a
short recess in order for the victim and Karen to “get themselves . . . together.” Although
defense counsel objected to the continued presence of the victim and her sister, Karen, in the
courtroom while they were crying because it was “having an effect on the jury,” the prosecutor
argued that they had “every right to be in” the courtroom because their testimony was completed.
Thereafter, the trial court instructed the victim and Karen to compose themselves and, if it got
too emotional, for them to exit the courtroom to “make sure that there’s no distraction. . . .”

        Again, we are left with no evidence as to how the prosecutor’s action of supporting the
crime victim’s constitutional right to be present in the courtroom has prejudiced defendant.
Additionally, the record does not demonstrate that the prosecution “support[ed] their
misconduct.” Notably, it was on direct examination of defendant, with defense counsel, not the
prosecutor, questioning defendant that the trial court had to stop the proceedings to talk to the
victim and her friend. This Court has not been made aware of any statements in the record by
the prosecutor that demonstrate the prosecutor was encouraging the crying of the victim and
Karen or appealed to the jury to sympathize with the victim and Karen. See People v Unger, 278
Mich App 210, 237; 749 NW2d 272 (2008), (stating that prosecution can argue that a witness
should be believed, but cannot appeal to the jury to sympathize with the victim). Moreover,
while defendant claims that the prosecutor was “defensive of their actions,” the record reveals
that the prosecutor was defensive of the victim’s right to be in the courtroom. See Const 1963,
art 1, § 24; MCL 780.761. In conclusion we add that the jurors were told by the trial court, and
both the prosecutor and defense counsel, to not let sympathy or their emotions influence their
decision. Accordingly, defendant is not entitled to relief on this issue.

        Finally, in a brief statement in the standard of review portion of this issue in his brief,
defendant contends that the prosecutor’s rebuttal argument was “at issue here.” Although
defendant provides a brief synopsis of law dealing with attacks on defense counsel, defendant
fails to identify any statements by the prosecutor that he takes issue with and does not explain
how he was prejudiced other than by concluding that he was deprived of a fair trial. Therefore,
defendant “has abandoned this issue by failing to provide any analysis in the text of his brief on
appeal.” People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). We therefore
conclude that defendant is not entitled to relief on this issue.

                                 C. SENTENCING SCORING

        Defendant argues on appeal that his score under prior record variable (PRV) 7 should be
reduced by 10 points because the crime used to score PRV 7, fourth-degree criminal sexual
conduct, is a misdemeanor, not a felony. Such an argument presents this Court with a question
of the application and interpretation of the sentencing guidelines. This Court reviews de novo
the proper interpretation and application of the statutory sentencing guidelines, MCL 777.11 et
seq. People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006).

       Under the sentencing guidelines, the circuit court’s factual determinations are
       reviewed for clear error and must be supported by a preponderance of the
       evidence. Whether the facts, as found, are adequate to satisfy the scoring
       conditions prescribed by statute, i.e., the application of the facts to the law, is a

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       question of statutory interpretation, which an appellate court reviews de novo.
       [People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (citation omitted).]

       Where a defendant poses both an evidentiary challenge to the adequacy of the evidence
supporting the trial court’s score for an offense variable and a constitutional challenge under
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015),

       the evidentiary challenge must initially be entertained, because if it has merit and
       requires resentencing, the constitutional or Lockridge challenge becomes moot, as
       a defendant will receive the protections of Lockridge on resentencing. And if an
       evidentiary challenge does not succeed, then and only then should we entertain
       the constitutional challenge. [People v Biddles, 316 Mich App 148, 157-158; 896
       NW2d 461 (2016).]

        PRV 7 addresses subsequent or concurrent felony convictions. MCL 777.57(1). PRV 7
requires a score of 10 points if “[t]he offender has 1 subsequent or concurrent conviction[.]” The
legislative sentencing guidelines, MCL 777.1 et seq., do not define the term “felony.” However,
the Code of Criminal Procedure, MCL 760.1 et seq., which the sentencing guidelines are a part
of, defines “felony” as “a violation of a penal law of this state for which the offender, upon
conviction, may be punished by death or by imprisonment for more than 1 year or an offense
expressly designated by law to be a felony.” MCL 761.1(g). Our Supreme Court has recognized
that the definitions within the Code of Criminal Procedure apply to the statutes in that code.
People v Smith, 423 Mich 427, 444; 378 NW2d 384 (1985). Further, MCL 777.16y lists fourth-
degree criminal sexual conduct as a class G felony.

        Because the offense of fourth-degree criminal sexual conduct is “punishable by
imprisonment for not more than 2 years,” MCL 750.520e(2), and is listed as a class G felony
under MCL 777.16y, it is a “felony” for purposes of PRV 7. Therefore, the trial court did not err
in using defendant’s conviction for fourth-degree criminal sexual conduct to score PRV 7.

       Defendant also argues that offense variable (OV) 3 should have been assessed zero points
because the victim did not suffer any physical injury.

       OV 3 addresses physical injury to a victim. OV 3 requires a score of 10 points if
“[b]odily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). The trial
court must assess five points if “[b]odily injury not requiring medical treatment occurred to a
victim.” MCL 777.33(1)(e). Finally, where “[n]o physical injury occurred to a victim,” a score
of zero points is required. MCL 777.33(1)(f). Notably, as used in 777.33, “ ‘requiring medical
treatment’ refers to the necessity for treatment and not the victim’s success in obtaining
treatment.” MCL 777.33(3). “ ‘[B]odily injury’ encompasses anything that the victim would,
under the circumstances, perceive as some unwanted physically damaging consequence.”
People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011).

       While defendant asserts that OV 3 should have been assessed zero points and the
prosecutor argues that OV 3 should be assessed five points, the trial court did not err when it
assessed 10 points for OV 3. Tina Marie Rogal, a registered nurse with the Wayne County
Sexual Assault Forensic Examiner program, performed a physical examination of the victim and

                                               -7-
identified five separate tears in the victim’s vaginal area. Rogal further testified that she took the
victim’s medical history, performed a physical examination, and provided the victim with
emergency contraception, and STI and HIV prophylactics. Therefore, a preponderance of the
evidence supported the trial court’s assessing 10 points to OV 3 because the evidence
demonstrated that the victim sustained bodily injury requiring medical treatment. Because
defendant’s evidentiary challenge to the scoring of OV 3 is without merit, we proceed to whether
defendant’s constitutional challenge to the scoring of OV 3 is meritorious. See Biddles, 316
Mich App at 157-158.

        Defendant argues that the trial court engaged in impermissible judicial fact-finding when
it scored his sentencing guidelines. This issue was settled by our Supreme Court in Lockridge
when they concluded that Michigan’s legislative sentencing guidelines violated the Sixth
Amendment to the extent that “the guidelines require judicial fact-finding beyond facts admitted
by the defendant or found by the jury to score [OVs] that mandatorily increase the floor of the
guidelines minimum sentence range. . . .” Lockridge, 498 Mich at 364. That is, the guidelines
were unconstitutional because of “the combination of the two mandates of judicial fact-finding
and adherence to the guidelines.” People v Steanhouse, 500 Mich 453, 476; 902 NW2d 327
(2017). “As a remedy for the constitutional infirmity, [our Supreme Court] held that the
guidelines were advisory only and that many defendants sentenced under the mandatory
guidelines were entitled to Crosby[1] remands” at which the trial court would “determine whether
it would have imposed a materially different sentence if it had been aware that the guidelines
were not mandatory.” Id. at 461-462. Although the Court rendered the guidelines advisory, it
did not eliminate judicial fact-finding. See Lockridge, 498 Mich at 392 n 28.

         The constitutional evil addressed by the Lockridge Court was not judicial fact-
         finding in and of itself, it was judicial fact-finding in conjunction with required
         application of those found facts for purposes of increasing a mandatory minimum
         sentence range. Lockridge remedied this constitutional violation by making the
         guidelines advisory, not by eliminating judicial fact-finding. [Biddles, 316 Mich
         App at 158 (Emphasis in original.)]

Because “judicial fact-finding is proper, as long as the guidelines are advisory only,” id. at 159,
defendant’s argument is without merit and he is not entitled to resentencing. Additionally,
defendant’s arguments that his four-year minimum sentence is not reasonable or proportionate
because the trial court assessed points to OV 3 based on judicially-found facts are without merit
because, as analyzed above, judicial fact-finding remains a “part of the process of calculating the
guidelines. . . .” Biddles, 316 Mich App at 159. Additionally we reach our conclusions because:
“A sentence that falls within the appropriate sentencing guidelines range is presumptively
proportionate.” People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011), citing People v
Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). Here, defendant’s minimum sentencing
guidelines range was 30 to 50 months, and he was sentenced to 48 months’ imprisonment for his
third-degree criminal sexual conduct conviction. Hence, defendant’s minimum sentence is



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                 -8-
within the appropriate guidelines sentence range, and thus a nondeparture sentence, we decline to
review defendant’s sentence for reasonableness, see Lockridge, 498 Mich at 392, and affirm
defendant’s sentence pursuant to MCL 769.34(10). Accordingly, defendant is not entitled to
relief on this issue.

       Affirmed.



                                                           /s/ Stephen L. Borrello
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Jonathan Tukel




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