                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      June 18, 2015
               Plaintiff-Appellee,

v                                                                     No. 320551
                                                                      Oakland Circuit Court
DUSTIN EARL MASON,                                                    LC No. 2013-245338-FH

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals by delayed leave granted after his jury trial convictions of two counts
of third-degree criminal sexual conduct, MCL 750.520d(1)(b). He was sentenced to 40 months
to 15 years’ imprisonment for each count, to run concurrently. We affirm.

        Defendant first argues that the trial court erred in denying his motion for a mistrial after a
prosecution witness testified to setting up a polygraph test. We disagree. This Court reviews a
trial court’s denial of a motion for a mistrial for an abuse of discretion. People v Schaw, 288
Mich App 231, 236; 791 NW2d 743 (2010). “A mistrial should be granted only for an
irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.” People v Ortiz-Kehoe, 237 Mich App 508, 514; 603 NW2d 802 (1999). Defendant
preserved this issue by an objection on the record.

        During the testimony of a prosecution witness, a police officer, the witness stated that she
“set up a polygraph” for defendant. Defense counsel immediately objected and a discussion was
held off the record. Testimony continued. Following the release of the jury, defendant moved
for a mistrial. During discussion, defense counsel argued that a curative instruction could “ring
the bell twice” but to not request a curative instruction had often been weighed against the
defendant on appeal. Defense counsel decided not to request a curative instruction but argued
that either choice denied defendant a fair and impartial trial because the jury would think that
defendant took and failed the polygraph; otherwise, he would not have been brought to trial.
Therefore, defense counsel argued that a mistrial should be granted. The court took the matter
under advisement and asked counsel to research the issue and present cases on both sides.
Following jury instructions and the beginning of deliberations, the court heard the parties’
arguments and recitation of the law. The court held that, under the applicable law, considering



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all the factors, the circumstances in this trial did not rise to the level that would require a mistrial.
Therefore, the court denied defendant’s motion for a mistrial.

      “[R]eference to taking or passing a polygraph test is error.” People v Nash, 244 Mich
App 93, 97; 625 NW2d 87 (2000). To determine whether a defendant was prejudiced by an
improper reference to polygraph evidence, this Court considers the following factors:

        (1) whether defendant objected and/or sought a cautionary instruction; (2)
        whether the reference was inadvertent; (3) whether there were repeated
        references; (4) whether the reference was an attempt to bolster a witness’s
        credibility; and (5) whether the results of the test were admitted rather than
        merely the fact that a test had been conducted. [Id. at 98 (quotation omitted).]

Generally, an unresponsive, volunteered answer to a proper question is not cause for granting a
mistrial. People v Lumsden, 168 Mich App 286, 299; 423 NW2d 645 (1988). Although
reference to a polygraph test is inadmissible, it does not always constitute error requiring
reversal. Nash, 244 Mich App at 98. For example, “[a] reference may be a matter of defense
strategy, the result of a nonresponse [sic] answer, or otherwise brief, inadvertent and isolated.”
Id.

        Addressing the factors set forth in Nash, we first find that defendant objected to the
mention of the polygraph test, thus preserving this issue for appeal, but did not seek a cautionary
instruction. A cautionary instruction may limit the potential for undue prejudice. People v
Murphy (On Remand), 282 Mich App 571, 583; 766 NW2d 303 (2009). Defense counsel stated
his belief that the cautionary instruction would only emphasize that a polygraph test had been
given to defendant and would cause the jury to imply or infer that he had failed it; otherwise, he
would not have been brought to trial. However, jurors are presumed to follow instructions from
the trial court. People v Kissner, 292 Mich App 526, 543; 808 NW2d 522 (2011). The trial
court did state that it “was a Hobson choice whether or not to request” the cautionary instruction
and “twice ring the bell.” Therefore, we find that the trial court did not give any negative weight
to defense counsel’s decision to not request a cautionary instruction.

        Second, the trial court found that the remark was inadvertent. We find nothing in the
record to conclude otherwise. Third, contrary to defendant’s argument to the trial court, the
record shows that no other witness made any reference or mention of a polygraph. Thus, there
was only one reference. Fourth, because the reference was inadvertent, we find no evidence to
support a conclusion that the mention of a polygraph test was used as an attempt to bolster the
witness’s credibility. Finally, the results of a polygraph test were not admitted. In fact, the
prosecutor informed the court that no polygraph test had even been given to defendant.
Considering and weighing all the Nash factors, we hold that the trial court did not abuse its
discretion when it denied defendant’s motion for a mistrial. Defendant has not demonstrated an
irregularity that prejudiced his rights or impaired his ability to get a fair trial. Ortiz-Kehoe, 237
Mich App at 513-514.

       Defendant also argues that he is entitled to resentencing because Offense Variable (OV)
11 was improperly scored at 25 points, contending that OV 11 should have been scored at zero
points. Defendant preserved this issue for appeal by his objection on the record. This Court

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reviews for clear error a trial court’s factual determinations with respect to the scoring of offense
variables in the sentencing guidelines, and the factual determinations “must be supported by a
preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
Legal questions of statutory interpretation on “[w]hether the facts, as found, are adequate to
satisfy the scoring conditions prescribed by statute” are considered de novo. Id.

       MCL 777.41 provides:

               (1) Offense variable 11 is criminal sexual penetration. Score offense
       variable 11 by determining which of the following apply and by assigning the
       number of points attributable to the one that has the highest number of pointes:

               (a) Two or more criminal sexual penetrations occurred               50 points

               (b) One criminal sexual penetration occurred                        25 points

               (c) No criminal sexual penetration occurred                          0 points

               (2) All of the following apply to scoring offense variable 11:

               (a) Score all sexual penetrations of the victim by the offender arising out
       of the sentencing offense.

             (b) Multiple sexual penetrations of the victim by the offender extending
       beyond the sentencing offense may be scored in offense variables 12 or 13.

               (c) Do not score points for the 1 penetration that forms the basis of a first-
       or third-degree criminal sexual conduct offense.

         Defendant argues that OV 11 should not have been scored at 25 points because he was
charged with two counts of third-degree criminal sexual conduct and convicted of two counts.
Therefore, there was no additional penetration “arising out of the sentencing offense” and OV 11
should have been scored at zero points. We disagree. In People v McLaughlin, 258 Mich App
635, 671; 672 NW2d 860 (2003), the defendant made the same argument. The McLaughlin
defendant, who was charged with and convicted of three counts of first-degree CSC, argued that
the trial court erroneously scored 50 points for OV 11. The victim testified at the defendant’s
trial that he penetrated her three times. The defendant contended that OV 11 “should have been
scored at zero points because under MCL 777.41(2)(c), each of the three sexual penetrations was
the basis of a separate charge and, therefore, was not subject to scoring.”

       This Court disagreed, holding:

              Therefore, MCL 777.41(2)(c) must be construed . . . as operating either to
       exclude any sexual penetrations resulting in separate convictions, as suggested by
       defendant, or to exclude the use of one sexual penetration when the sentencing
       offense itself is first-degree CSC or third-degree CSC as suggested by the
       prosecutor. We find that the latter position represents the more reasonable view


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       of legislative intent because the language of MCL 777.41(2)(c) indicates an intent
       to exclude only one sexual penetration. . . .

               We . . . find that the proper interpretation of OV 11 requires the trial court
       to exclude the one penetration forming the basis of the offense when the
       sentencing offense itself is first-degree or third-degree CSC. Under this
       interpretation, trial courts may assign points under subsection 41(2)(a) for “all
       sexual penetrations of the victim by the offender arising out of the sentencing
       offense,” while complying with the mandate of subsection 41(2)(c), by not
       scoring points for the one penetration that forms the basis of a first- or third-
       degree CSC offense. Accordingly, trial courts are prohibited from assigning
       points for the one penetration that forms the basis of a first- or third-degree CSC
       offense that constitutes the sentencing offense, but are directed to score points for
       penetrations that did not form the basis of the sentencing offense.

       . . . . [H]ad the Legislature intended that only sexual penetrations not resulting in a
       criminal charge be considered, it could have stated that intent. [McLaughlin, 258
       Mich App 635 at 676-677 (emphasis in original).]

       Based on McLaughlin, we hold that the trial court did not clearly err in finding that OV
11 should be scored at 25 points. The record shows, and the jury found, that two penetrations
occurred beyond a reasonable doubt, and thus the preponderance of the evidence supported the
scoring of OV 11 at 25 points.

       Affirmed.

                                                              /s/ Joel P. Hoekstra
                                                              /s/ David H. Sawyer




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