                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 11, 2015
               Plaintiff-Appellee,

v                                                                  No. 319942
                                                                   Kent Circuit Court
HENRY RICHARD HARPER,                                              LC No. 12-006969-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

         Following a jury trial, defendant appeals as of right his convictions for first-degree
criminal sexual conduct (CSC), MCL 750.520b(2)(b) (offender is 17 years of age or older and
the victim is less than 13 years of age); and third-degree CSC, MCL 750.520d(1)(a) (the victim
is at least 13 years of age and under 16 years of age). The trial court sentenced defendant as a
habitual offender, fourth offense, MCL 769.12, to 25 to 50 years’ imprisonment for his first-
degree CSC conviction and a consecutive sentence of 20 to 50 years’ imprisonment for his third-
degree CSC conviction. Because defendant’s claim of prosecutorial misconduct is without merit,
we affirm defendant’s convictions. However, because the consecutive sentencing in this case
was not authorized by statute and we cannot discern from the record whether defendant was
appropriately sentenced as a fourth-habitual offender, we remand for resentencing.

        The victims in this case are half-brothers, D.H. and D.A. At the time of the sexual
assaults, defendant was 40 years old, D.A. was 14 years old, and D.H. was 12 years old.
Defendant leased property to the victim’s family and, at some point, defendant obtained approval
from the boys’ mother to have D.A. and D.H. help him at his home. D.A. and D.H. went to
defendant’s house separately, at different times, ostensibly to help him. According to D.A.,
when he went to defendant’s house, defendant forced him to urinate in defendant’s mouth, and
the next morning, when D.A. awoke at defendant’s house, defendant had D.A.’s penis in his
mouth. When D.H. subsequently went to defendant’s house, he was also forced to urinate in
defendant’s mouth. D.H. and D.A. told their mother and stepfather about the incidents with
defendant, and their mother called the police. Detective Kelli Braate subsequently interviewed
defendant, who admitted that D.H. and D.A. urinated in his mouth. Despite his confession to
Detective Braate, defendant testified at trial and denied the abuse. A jury convicted defendant as
noted above. Defendant now appeals as of right.


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        On appeal, defendant first argues that the prosecutor committed misconduct during her
rebuttal argument. In particular, taken in context, defendant challenges the following argument:

       No one leaves the courthouse 100 percent convinced. You can’t do it. I can’t
       give you 100 percent of the puzzle pieces. I can’t. No one ever will be able to.
       You will always leave with a doubt. But not a reasonable doubt when both the
       kids and the defendant on tape say it happened. And the defendant tells you up
       there, well I lied to the detective but I only lied about what I thought my friends
       would believe. Oh, yeah and I told my mom too when I didn’t have to tell my
       mom. Really, if you’re going to believe that, then that’s - - that’s ignoring all of
       this. That is not reasonable. That is not common sense.

               When you go to the coffee shop after this and you go with your friends,
       your significant other, or your spouse and hey you’re on jury duty, what
       happened? Did he do it? The bottom line is yes. He did. It all fit. You can’t
       look at them and say well you know, the kids said it happened and this young boy,
       who had nothing to gain, said it happened, and he confessed on tape but then he
       just said he didn’t do it so we found him not guilty.

According to defendant, these remarks by the prosecutor were an improper appeal to the jurors’
sympathies and sense of civic duty.

        Defendant failed to object to these remarks at trial, meaning that our review of this issue
is for plain error affecting defendant’s substantial rights. People v Callon, 256 Mich App 312,
329; 662 NW2d 501 (2003). When reviewing a claim of prosecutorial misconduct, we consider
the record as a whole and evaluate a prosecutor’s remarks in context, considering the particular
facts of the case, the evidence admitted at trial, and arguments by defense counsel. Id. at 330.
“Prosecutors are typically afforded great latitude regarding their arguments and conduct at trial.”
People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). A prosecutor may, for
example, comment on the credibility of witnesses during closing arguments, particularly when
“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). Further, a prosecutor may use
emotional language and may urge the jury to exercise its common sense when evaluating the
evidence. People v Ackerman, 257 Mich App 434, 452-454; 669 NW2d 818 (2003). A
prosecutor may not, however, appeal to the jury to sympathize with the victim or urge the jury to
“convict as part of its civic duty or on the basis of its prejudices.” Unger, 278 Mich App at 237.
Such arguments are “generally condemned because they inject issues into the trial that are
broader than a defendant's guilt or innocence and because they encourage the jurors to suspend
their own powers of judgment.” People v Potra, 191 Mich App 503, 512; 479 NW2d 707
(1991).

        In this case, contrary to defendant’s claims, the challenged argument was not in any way
an appeal to the jury to suspend its judgment and decide the case based on sympathy or as part of
its civic duty regardless of the evidence. See People v Matuszak, 263 Mich App 42, 56; 687
NW2d 342 (2004). Rather, the prosecutor was simply responding to defendant’s closing
argument, which focused on the assertion that there was a lack of evidence, and in particular a
lack of physical evidence, to corroborate the victims’ testimony and to show guilt beyond a

                                                -2-
reasonable doubt. Defense counsel emphasized inconsistencies in the victims’ testimony and
suggested that the victims invented their story because perhaps they wanted defendant, an “odd,
older” man, out of their lives. In response, based on the evidence presented at trial, the
prosecutor permissibly argued that the jury could not “reasonably” ignore the victims’ testimony
or defendant’s confession and simply find that defendant’s statement that “he didn’t do it” was
enough to render a not guilty verdict. This argument by the prosecutor, including in context the
reference to the everyday discussions the jurors would later have with family members and
friends about the case, amounted to nothing more than a permissible assertion that the jury
should not disregard “common sense” when evaluating the evidence and witness credibility. See
generally People v Lawton, 196 Mich App 341, 355; 492 NW2d 810 (1992). Further, it was
certainly permissible for the prosecutor to comment on the victims’ credibility by arguing that
the victims had “nothing to gain” by coming forward with their allegations against defendant,
especially given that the evidence showed that one of the victims feared that his family would
lose their housing if he did not comply with defendant’s demands. See Thomas, 260 Mich App
at 455. In short, we see nothing remotely improper in the prosecutor’s rebuttal arguments.1
Moreover, the remarks challenged by defendant were brief and any conceivable prejudicial effect
could have been cured with a jury instruction, meaning defendant has certainly failed to show
plain error affecting his substantial rights. See Callon, 256 Mich App at 329.

        Next, defendant argues that the trial court erred when it imposed consecutive sentences
for his convictions because his sexual abuse of D.A. and D.H. did not “aris[e] from the same
transaction” within the meaning of MCL 750.520b(3). Defendant failed to object to the
imposition of consecutive sentences.2 As a result, our review is for plain error affecting
defendant’s substantial rights. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004).
Under the plain error standard, defendant must show that a plain error occurred, that the error
affected his substantial rights, and that the “error resulted in the conviction of an actually
innocent defendant or that the error seriously affected the fairness, integrity or public reputation
of judicial proceedings.” Id. (citation and internal quotation marks omitted).

      “In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819
NW2d 55 (2012) (citation and quotation marks omitted). Pursuant to MCL 750.520b(3), when a


1
  Defendant also contends that defense counsel rendered ineffective assistance by failing to
object to the prosecutor’s remarks. This argument need not be considered because defendant
failed to include it in his statement of the questions presented on appeal. MCR 7.212(C)(5);
People v Anderson, 284 Mich App 11, 16; 772 NW2d 792 (2009). In any event, given the
propriety of the prosecutor’s arguments, any objection by defense counsel would have been
futile, and counsel cannot be considered ineffective for failing to make a futile objection. People
v Ericksen, 288 Mich App 192, 205; 793 NW2d 120 (2010).
2
  Defendant includes within his questions presented on appeal an assertion that counsel rendered
ineffective assistance by failing to object to consecutive sentencing. Defendant abandoned this
argument, however, by failing to adequately brief the issue. See People v Payne, 285 Mich App
181, 195; 774 NW2d 714 (2009).


                                                -3-
defendant is convicted of first-degree CSC, the trial court may order consecutive sentencing “for
any other criminal offense arising from the same transaction.” To decide whether criminal
offenses rose from the “same transaction” within the meaning of MCL 750.520b(3), the
sentencing court should determine whether the acts “grew out of a continuous time sequence”
and whether the acts “sprang one from the other and had a connective relationship that was more
than incidental.” Ryan, 295 Mich App at 403. See also People v Brown, 495 Mich 962, 963;
843 NW2d 743 (2014). For example, in Ryan, 295 Mich App at 403, the Court determined that
two criminal acts of sexual conduct arose from the “same transaction” when one sexual act “was
immediately followed” by another.

        In comparison, in this case, the sexual assaults plainly have some connective relationship
insofar as D.H. and D.A. were brothers, defendant obtained their mother’s permission for them
to assist him at his home, and the sexual assaults occurred during time that the boys were
supposed to be helping defendant. Despite this connective relationship, the acts were
nonetheless not part of the “same transaction” because the assaults did not grow out of a
“continuous sequence of time.” That is, the boys were not assaulted at the same time and they
were not even both present at defendant’s house at the time their respective assaults occurred.
Rather, D.A. went to defendant’s home, he was assaulted by defendant, and then he left to go to
his girlfriend’s house. Sometime later, perhaps even on a different day,3 defendant picked-up
D.H. at his home, brought D.H. to defendant’s house, and assaulted D.H. On these facts, the
break between when D.A. left defendant’s home and when defendant assaulted D.H. disrupted
the time and flow of events such that it cannot be concluded that the two separate assaults
constituted part of the “same transaction.” See id. at 403-404.

        Thus, the trial court plainly erred when it sentenced defendant to consecutive sentences.
This error also clearly affected defendant’s substantial rights because it resulted in consecutive
sentencing not authorized by law, the effect of which is that defendant will spend an extra 20
years in prison. See generally People v Kimble, 470 Mich 305, 312-313; 684 NW2d 669 (2004).
Further, this deprivation of defendant’s liberty for a period longer than that authorized by law
seriously affects the fairness, integrity and public reputation of judicial proceedings. See id. at
313. Consequently, defendant is entitled to resentencing.

        Also related to the issue of sentencing, defendant next argues that the trial court erred
when it classified defendant as a fourth-offense habitual offender.4 Relevant to this assertion, if
a person “has been convicted of any combination of 3 or more felonies or attempts to commit
felonies” and then that person commits a subsequent felony, he or she shall be sentenced as a
fourth-habitual offender under MCL 769.12. For purposes of the Code of Criminal Procedure,


3
 The record is somewhat unclear in regards to the length of the break between when D.A. left
defendant’s home and when defendant picked-up D.H. It is undisputed, however, that the boys
went to defendant’s home separately and that their time at his house did not overlap.
4
  In the alternative, defendant contends his counsel rendered ineffective assistance by failing to
object to this error. However, by failing to adequately brief the issue of his counsel’s
effectiveness, defendant has abandoned this claim. See Payne, 285 Mich App at 195.


                                                -4-
MCL 760.1 et seq., and the habitual offender provisions therein, the term “felony” refers to “a
violation of a penal law of this state for which the offender, upon conviction may be punished by
death or by imprisonment of more than 1 year or an offense expressly designated by law to be a
felony.” MCL 761.1(g); People v Smith, 423 Mich 427, 442-445; 378 NW2d 384 (1985).

       In defendant’s case, it is uncontested that defendant has two prior felony convictions.
The issue of contention is whether the third offense relied on by the trial court, a 1993 conviction
which involved non-sufficient funds for a check, constituted a “felony” or a “misdemeanor” for
purposes of defendant’s habitual offender status. In particular, in 1993, a first or second offense
conviction for nonsufficient funds of a check over $50 but under $200 was “a misdemeanor,
punishable by imprisonment for not more than 1 year, or a fine of not more than $500.00, or
both.” MCL 750.131(3)(b), as amended by 1984 PA 277. In contrast, if the amount involved
was $200 or more, the offense was a felony, publishable by imprisonment of not more than 13
months, or a by a fine of not more than $500, or both. MCL 750.131(3)(c), as amended by 1984
PA 277. Consequently, whether defendant’s 1993 conviction for non-sufficient funds constitutes
a “felony” or “misdemeanor” depends on whether the amount involved was more or less than
$200. See MCL 761.1(g). Because there may be merit to defendant’s argument and we cannot
decide this issue on the record presented, we leave it to the trial court to assess this issue during
resentencing on remand.

        In particular, before trial, defendant was informed of the prosecution’s intention to seek
enhanced sentencing under MCL 769.12, and the habitual offender notice specified that one of
the felonies supporting sentencing under MCL 769.12 was defendant’s conviction for “attempt
NSF check over $200.” Defendant’s Presentence Investigation Report (PSIR) and Sentencing
Information Report (SIR) also plainly indicate that defendant’s habitual status is that of a “4th or
subsequent.” Defendant made no challenge to the PSIR in the court below; nor did he object to
being sentenced as a fourth-habitual offender. And, in fact, after the jury returned its verdict,
defense counsel responded affirmatively on the record when asked: “Does [defendant] admit that
he was convicted of an offense of non-sufficient check over $200[?]” However, at odds with
defense counsel’s admission in this respect is the information regarding defendant’s 1993
conviction in his adult criminal history contained in his PSIR. Specifically, according to the
PSIR, defendant entered into a plea agreement on May 13, 1993, whereby he pleaded guilty to
non-sufficient funds under $200, meaning that defendant’s PSIR lists only two prior felonies.

        Information in the PSIR is presumed to be accurate, People v Waclawski, 286 Mich App
634, 689; 780 NW2d 321 (2009), and consequently defendant contends he is entitled to
resentencing because the PSIR does not support the conclusion that he has three prior felonies.
In contrast, to definitively resolve this issue, the prosecution asks that we take judicial notice of
documents outside the record pertaining to defendant’s 1993 conviction. On appeal, however,
we consider the original record, MCR 7.210(A)(1), and parties may not expand the record
beyond that contained in the courts below. See People v Powell, 235 Mich App 557, 561 n 4;
599 NW2d 499 (1999). Nonetheless, given the conflicting information in the lower court record
and defendant’s failure to object below, we decline to decide the propriety of sentencing
defendant as a fourth-habitual offender based solely on the PSIR’s reference to nonsufficient
funds under $200. Rather, we find it appropriate to allow the trial court to consider this issue on
remand at resentencing and, in particular, to consider any evidence either party might produce to
establish defendant’s habitual offender status and the accuracy of his criminal history in the

                                                -5-
PSIR. See MCR 7.216(A)(5); see also Waclawski, 286 Mich App at 690. From any evidence
offered by the parties, the trial court should determine whether defendant is a third or fourth
habitual offender. The trial court should then sentence defendant accordingly and correct any
discrepancies or inaccuracies in the PSIR.

       Next, defendant makes the unpreserved claim that the trial court erred when it imposed
$700 in court costs at sentencing because the costs were not specifically authorized by statute.
Defendant makes this argument in reliance on People v Cunningham, 496 Mich 145; 852 NW2d
118 (2014), wherein the Court concluded that, under MCL 761.1k(b)(ii), the trial court could not
impose court courts unless specifically authorized by statute. Since the decision in Cunningham,
however, MCL 761.1k(b) has been amended. See 2014 PA 352. This amendment expressly
applies retroactively to fines and costs imposed before June 18, 2014, which thus includes
defendant’s costs imposed on October 31, 2013. See People v Konopka, ___ Mich App ___; ___
NW2d ___ (2015), slip op at 6. Notably, the amended version of MCL 769.1k(1)(b)(iii)
provides for an award of certain costs that are not independently authorized by the statute for the
sentencing offense. See Konopka, slip op at 8. Defendant does not address the statutory
amendment; nor does he challenge the reasonableness of the costs imposed. See id. In light of
the adoption of the amended version of MCL 769.1k(1)(b), and its application to the instant case,
defendant has not shown that the trial court’s imposition of costs amounted to plain error.

        Finally, defendant argues that on remand he should be resentenced before a different
judge. Defendant failed to include this issue within his statement of his questions presented and
thus it need not be considered. See People v Brown, 239 Mich App 735, 748; 610 NW2d 234
(2000); MCR 7.212(C)(5). Moreover, defendant’s argument in this respect is insufficiently
briefed and thus abandoned. See Payne, 285 Mich App at 195. Indeed, defendant’s total
argument regarding purported judicial bias amounts to the undeveloped assertion that the trial
court opined during sentencing that defendant had “set a new low.” But, considered in context,
this arguably hostile remark was an opinion formed from the evidence during the trial process,
which, as the trial court explained, included evidence that defendant had young boys urinate in
his mouth and that they complied for fearing of losing their housing, a fact scenario which the
trial court found “absolutely outrageous.” This type of opinion, formed from the evidence
presented, does not evince a “deep-seated favoritism or antagonism” to suggest that the trial
court is incapable of fair judgment. See People v Jackson, 292 Mich App 583, 598; 808 NW2d
541 (2011). We thus decline defendant’s request for resentencing before a different judge.

        Defendant’s convictions are affirmed, but we remand for resentencing consistent with
this opinion. We do not retain jurisdiction.




                                                            /s/ Joel P. Hoekstra
                                                            /s/ Peter D. O’Connell




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