                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 23, 2017
               Plaintiff-Appellee,

v                                                                    No. 325558
                                                                     Macomb Circuit Court
JOSEPH JAMES PAGAN,                                                  LC No. 2014-002252-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Defendant was convicted by a jury of first-degree premeditated murder, MCL 750.316,
and first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (personal injury and
force or coercion). He was sentenced to life imprisonment without the possibility of parole for
the first-degree murder conviction, and 225 months to 40 years’ imprisonment for the CSC-I
conviction. Defendant appeals as of right. We affirm.

        Defendant’s first argument is that there was insufficient evidence of penetration for the
jury to be able to find beyond a reasonable doubt that he committed CSC-I, and the felony
information failed to provide him with adequate notice of the nature of the CSC-I charge. After
beating the victim, strangling her, and duct-taping garbage bags over her head, defendant
retrieved an air rifle from his vehicle and shot the victim several times. One of those shots he
directed “at” her vagina; at the time, he was standing over her and she was lying naked on the
floor. Defendant accurately points out that the information and the instruction given to the jury
indicated that defendant accomplished the penetration with the rifle; however, the evidence
shows that defendant never brought the rifle itself into any kind of direct physical contact with
the victim’s genitalia. Rather, the pellet penetrated the victim’s left labia majora. Although
perhaps a horrific fact pattern, we find the information and evidence sufficient.

        When CSC-I is charged pursuant to MCL 750.520b(1)(f), the prosecution must prove
three elements: (1) the defendant caused personal injury to the victim; (2) the defendant engaged
in sexual penetration with the victim; and (3) the sexual penetration was accomplished by use of
force or coercion. People v Nickens, 470 Mich 622, 629; 685 NW2d 657 (2004). “Sexual
penetration” is defined, in relevant part, as including “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). Relatively few cases have directly addressed whether the labia comes

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within the scope of “sexual penetration.” However, those cases have uniformly held that the
Legislature intentionally specified and distinguished “genital opening” from “vagina,” and the
labia majora is part of the “genital opening.” People v Bristol, 115 Mich App 236, 237-238; 320
NW2d 229 (1981); People v Whitfield, 425 Mich 116, 135 n 20; 388 NW2d 206 (1986); People v
Legg, 197 Mich App 131, 132-134; 494 NW2d 797 (1992); People v Lockett, 295 Mich App
165, 188; 814 NW2d 295 (2012). We will not read into the statute any requirements not stated.
We therefore find that the pellet intruded into the victim’s genital opening.

        Furthermore, we will not infer a requirement into the statute that defendant maintain
physical contact with the penetrating object where he was unambiguously the proximate and
immediate cause of that penetration. For the same reason, we do not find the information or the
jury instruction insufficient. We think that they could have been more clear; however, there can
be no doubt that defendant used the air rifle to effectuate the penetration. The pellet, for all
practical purposes, was part of the rifle as a total instrumentality. We do not think the
information and instruction inconsistent with the evidence, and at worst any vagueness in the
information was obviated by testimony at the preliminary examination. Defendant did not object
to the information, and any error therein does not rise to plain error affecting his substantial
rights. See People v Bailey, 310 Mich App 703, 715-716; 873 NW2d 855 (2015). A rational
trier of fact could have found beyond a reasonable doubt that defendant used the air rifle to
penetrate the victim’s genital opening. See People v Unger, 278 Mich App 210, 222, 253; 749
NW2d 272 (2008).

        Defendant next argues that the trial court erred by denying his request for a jury
instruction regarding voluntary manslaughter. We disagree. Manslaughter is, literally, “murder
without malice,” and the voluntary manslaughter defendant proposes here must be an intentional
act of killing committed as a direct and immediate response to a “reasonable provocation” before
the actor has had a reasonable opportunity to regain self-control. People v Mendoza, 468 Mich
527, 533-536; 664 NW2d 685 (2003). Such provocation is not an element of manslaughter, but
rather a circumstance that can negate the existence of malice. Id. at 536. “[A] trial court’s
determination whether an instruction was applicable to the facts of the case is reviewed for an
abuse of discretion.” People v Waclawski, 286 Mich App 634, 675; 780 NW2d 321 (2009).

        This issue is complicated by defendant’s obviously dubious attachment to reality
evidenced by a number of statements he made at his police interview, including apparently
having seen the victim alive the next day; discussing involvement in various military forces that
proved unverifiable; the victim forcibly drugging him with a variety of improbable substances
and selling him to other women multiple times over the course of their relationship; the victim
having admitted to killing 30,001 people; and the victim making threats involving defendant’s
nonexistent son. On the day of the murder, defendant and the victim had sex, and according to
defendant, at some point during that encounter, the victim maneuvered him into a position where
she could have snapped his neck. Apparently, she also somewhat contemporaneously either
threatened the aforementioned nonexistent son or stated that she had killed him. Defendant
contended that he then jumped out of bed, hit her with his cane (which broke), and attempted to
leave, at which point the victim threw a gumball machine at him.

       Despite admitting that he suffered only a few scrapes, defendant then attacked the victim
with the same gumball machine, breaking it in the process and causing her severe injuries. As

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the victim was lying on the floor, defendant then put several strips of duct tape over her mouth,
placed a trash bag that was still full of trash over her head, and secured it in place with more duct
tape and a large lace doily. It was then that he retrieved the pellet rifle, shot her multiple times,
poured bleach on her, and then cleaned himself and his dog up and left the scene.

        Taking defendant’s contradictory and confused statements in the light most favorable to
him, we cannot find reasonable provocation. Presuming, although not deciding, that whatever
occurred while defendant and the victim were having sex could have been perceived as
threatening, defendant conceded that any such threat had been terminated and, critically, he was
leaving. Notably, reasonable provocation is not the same as diminished capacity: the trial court
correctly observed that the reasonableness of a provocation is objective and based on “that which
would cause a reasonable person to lose control.” People v Sullivan, 231 Mich App 510, 518;
586 NW2d 578 (1998) (emphasis in original). Defendant was unambiguously not under any
serious imminent threat, and the evidence overwhelmingly shows that whatever other
provocation might have occurred was mostly to completely delusional. A defendant’s delusions
might, under the right circumstances and in the right case, be relevant to a claim of diminished
capacity or insanity, but a defendant’s unique mental state is not relevant to the determination of
reasonable provocation for purposes of voluntary manslaughter. Id. at 519-520.

        The trial court properly refused to give defendant’s requested voluntary manslaughter
instruction. In any event, the jury was offered the choice of finding defendant guilty of the lesser
offense of second-degree murder, and it chose not to take that choice. This demonstrates that the
jury would have been unlikely to convict defendant of the lesser offense of voluntary
manslaughter even if the instruction had been given. People v Raper, 222 Mich App 475, 483;
563 NW2d 709 (1997). Finally, the absence of the instruction did not preclude defendant from
arguing that he should be acquitted altogether on the theory that his real offense was not
provided as an option. Consequently, even if the trial court had committed error, it was
harmless.

        Next, defendant argues that he is entitled to resentencing because his sentence was
imposed before the Michigan Supreme Court found that the statutory sentencing guidelines were
unconstitutional in People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). Defendant
does not explicitly limit his claim of error to his CSC-I sentence, but implicitly must, because the
mandatory life sentence to which he was contemporaneously sentenced for first-degree murder is
not subject to the statutory sentencing guidelines. MCL 769.34(5). We therefore need not
address this issue at all: the contemporaneous mandatory life sentence “effectively nullifies the
significance of any sentences for the companion convictions.” People v Watkins, 209 Mich App
1, 5; 530 NW2d 111 (1995). Because defendant cannot demonstrate that any error “affected the
outcome of the lower court proceedings,” Lockridge, 498 Mich at 393, it is unnecessary to
consider whether there was in fact any error.

       In his Standard 4 brief, defendant contends that the trial court erred by admitting a series
of graphic photographs from Neumann’s autopsy because they were unfairly prejudicial and
unnecessary to the prosecution’s case. We disagree.

       Defendant does not suggest that the autopsy photographs were irrelevant under MRE
401, nor would any such assertion have been reasonable. The autopsy photographs depicted the

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nature and extent of the victim’s injuries, which made defendant’s premeditation and
deliberation more probable than it would have been without the evidence. See People v
Gonzalez, 468 Mich 636, 641-642; 664 NW2d 159 (2003) (stating that manual strangulation may
evidence elapsed time between initial homicidal thought and ultimate action for purposes of
establishing first-degree premeditated murder). The photographs were also helpful in
corroborating the testimony about the lengthy process employed by defendant to kill the victim,
and to illustrate the medical testimony provided. Their relevance and probative value were not
trivial.

        Conversely, it is not seriously disputable that the photographs were disturbingly graphic.
The victim’s injuries were severe and her body had been decomposing for approximately a week
before the autopsy took place. As a result of the decomposition process and the caustic nature of
the bleach that was poured on her, many areas of skin were discolored and there was significant
sloughing of the skin visible in the photographs. Numerous injuries, ranging from pellet wounds
to lacerations to bruising and lividity. Even the prosecution characterized the photographs as
“bloody, brutal, [and] graphic.” In fact, during the presentation of the autopsy photographs, one
juror lost consciousness. However, there is no direct indication that the photographs were the
cause of the juror’s infirmity, and the trial court, prosecution, and defense counsel all agreed that
the incident involving the juror did not affect the manner in which the trial proceeded and would
be unlikely to influence the remaining jurors’ ability to continue with the case.

        Even relevant evidence may be excluded at the trial court’s discretion “‘if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.’” People v Blackston, 481 Mich 451, 461; 751 NW2d 408 (2008),
quoting MRE 403. Photographic evidence need not be excluded merely because it is gruesome
or because a witness could orally describe what a photograph depicts. People v Mills, 450 Mich
61, 76-78; 537 NW2d 909 (1995). There is no indication that the photographs here were
intended for an improper purpose, and although we appreciate that the photographs were
disturbing and thus had some potential for unfair prejudice, we are simply not persuaded that the
danger of unfair prejudice substantially outweighed their probative value. In any event, we
believe the issue to be a close one, and there is generally no abuse of discretion when the trial
court’s decision involves a close evidentiary question, People v Sabin (After Remand), 463 Mich
43, 67; 614 NW2d 888 (2000). We do not find the photographs to have been improperly
admitted.

       Defendant finally argues that trial counsel was ineffective for acquiescing to the
admission of the autopsy photographs and failing to present an insanity defense. We disagree.

        As discussed, we find no error in the admission of the autopsy photographs. “Failing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Defendant
cannot establish a reasonable probability that the outcome of the proceeding would have been
different had counsel objected. People v Vaughn, 491 Mich 642, 671; 821 NW2d 288 (2012).

        Pursuant to MCL 768.21a(1), a defendant facing criminal charges may assert legal
insanity as an affirmative defense. People v Carpenter, 464 Mich 223, 230-231; 627 NW2d 276

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(2001). Legal insanity requires a defendant to “lack[] substantial capacity either to appreciate
the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct
to the requirements of the law” because of a “mental illness.” MCL 768.21a(1). “Mental
illness” is defined as “a substantial disorder of thought or mood that significantly impairs
judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of
life.” MCL 330.1400(g). A defendant asserting legal insanity as a defense has the burden of
proving the defense by a preponderance of the evidence. MCL 768.21a(3); Carpenter, 464 Mich
at 231.

        Clearly, defendant was suffering from a mental illness; his bizarre tangents and
statements during his police interview can lead to no other conclusion. It is apparently not
disputed that trial counsel was aware that defendant had an extensive history of mental illness
including delusions and hallucinations. However, mental illness is merely a prerequisite to an
insanity defense. Defendant’s statements also make it clear that he was well aware of what he
was doing; at most, he was deluded about why. A psychological evaluation was conducted that
concluded that defendant was not legally insane at the time of the crimes. The psychologist
acknowledged that some of defendant’s statements, if taken at face value, cast some doubt on his
capacity to appreciate the nature and quality or wrongfulness of his actions, or otherwise to
conform his conduct to the requirements of the law. However, defendant’s varying accounts
demonstrated that he was an unreliable informant, and the psychologist’s observation of
defendant and review of various records revealed that defendant had a history of manipulation
and deceitfulness which suggested that his exculpatory statements may have been consciously
designed to avoid prosecution.

        Consequently, it does not appear that defense counsel’s decision to forgo an insanity
defense was objectively unreasonable. See People v Snider, 239 Mich App 393, 425; 608 NW2d
502 (2000) (stating that “[t]rial counsel is not required to advocate a meritless position”). Had
defense counsel nevertheless asserted an insanity defense at trial, it seems certain that the
prosecution would have responded by relying on the psychologist’s opinion that defendant was
legally sane at the time of the offense. Because defendant’s unsupported theory would have been
rebutted by a contrary expert opinion, and as noted his own statements were at best equivocally
supportive of possible insanity, it is not reasonably probable that the outcome of the trial would
have been different had defense counsel advanced an insanity defense. We decline to consider
defendant’s request, in his supplemental Standard 4 brief, for us to expand the record on appeal
to consider additional medical records. MCR 7.219(A)(1); People v Williams, 241 Mich App
519, 524 n 1; 616 NW2d 710 (2000). Defendant’s supplemental Standard 4 brief appears, in any
event, to conflate mental illness, even severe mental illness, with legal insanity. We are not
persuaded that there is any reasonable probability that an insanity defense would have been
successful if it had been attempted.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle



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