                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   October 7, 2014
               Plaintiff-Appellee,                                 9:05 a.m.

v                                                                  No. 316262
                                                                   Crawford Circuit Court
JOHN ANTHONY GALLOWAY,                                             LC No. 12-003385-FH

               Defendant-Appellant.


Before: FITZGERALD, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(2)(b) (sexual contact with victim younger than 13), and the trial court
sentenced him to concurrent terms of 2 to 15 years imprisonment. Defendant now challenges the
instructions given by the court upon the jury’s query of what would occur in the event it was
unable to reach a verdict. Defendant contends that his convictions are against the great weight of
the evidence because the complainant’s testimony was contradicted and impeached. He further
asserts that his minimum sentence was improperly enhanced by judicial fact-finding.

        Although the trial court unnecessarily supplemented the standard deadlock jury
instruction, the instruction was not coercive and does not warrant reversal. And the jury was
presented with adequate information to judge the credibility of the witnesses and we may not
interfere with its assessment. Moreover, this Court has already rejected the application of
Alleyne v United States, ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), to the Michigan
sentencing guidelines. Accordingly, we affirm defendant’s convictions and sentences.

                                      I. BACKGROUND

        Defendant’s convictions are based on the accusations of the 10-year-old daughter of his
long-term, live-in girlfriend. The complainant claimed that defendant employed tickling as an
opportunity to touch her breasts. She asserted that when she sat on defendant’s lap, he would
move her around and his penis would become “boney.” The complainant further alleged that she
awoke one morning and found defendant’s cell phone propped up in her bedroom doorframe, set
to video record. Defendant countered that the child had never liked him and falsified her
allegations to get him out of her mother’s life. The child complainant and her mother


                                               -1-
corroborated defendant’s claim that the child did not like defendant for reasons completely
separate from the sexual contact allegations.

                            II. DEADLOCK JURY INSTRUCTION

        Defendant contends that the trial court committed reversible error by giving a coercive
deadlock jury instruction and that defense counsel was ineffective in accepting that improper
instruction.

                                   A. THE INSTRUCTIONS

        At 11:35 a.m. on the third day of trial, the court released the jury to begin its
deliberations. At 2:50 p.m., the jury asked to review the complainant’s testimony and the
recording was played in the courtroom. At 3:08 p.m., the jury returned to the jury room to
continue its deliberations. At 4:08 p.m., the jury asked to review defendant’s testimony and the
same procedure was followed. The jury continued its deliberations at 5:05 p.m. Then, at 5:44
p.m., court reconvened and the trial judge stated on the record:

               All right. Counsel, . . . I talked to the two of you in chambers and I’ve got
       a note indicating, “What happens if we cannot not [sic] unanimously decide on a
       verdict?” So what I propose, and I think you both agree with me, is that I will
       give the deadlocked jury instruction 3.12. In addition, I will indicate to them that
       if they have reached a unanimous verdict on one of the counts, . . . the Court can
       accept a unanimous verdict on one of the two counts, and then invite them to also
       return to the jury room and direct the foreman to poll the jury in private, and then
       advise me only whether a majority of the jury believes a verdict can be reached or
       a majority does not after they’ve done their further deliberation. Should I just
       give ‘em all three options at the same time?

The prosecutor answered in the affirmative. Defense counsel objected to “the third option as you
just read it, is that you invite them to go back and poll” and asked that the court “maybe remove
the invitation part of it.”

       The trial court defended its choice of instruction and the following colloquy ensued:

               The Court: . . . Now, this is People v Luther and that’s 53 Mich App 648,
       it’s a 1974 case. . . . I’m just looking at the Bench Book, the latest version I had,
       which was 2010. Now, paragraph five . . . was added in September 2011 to
       comply with the court rule . . . 2.513.

                                              ***

              The Court: . . . Okay, so let’s take a look at what MCR 2.513(N)(4) says
       here. All right, that is entitled:

              “Clarifying or amplifying . . . final instructions. When it appears that a
       deliberating jury has reached an impasse, or is otherwise in need of assistance, the
       court may invite the jurors to list the issues that divide or confuse them in the

                                               -2-
event that the judge can be of assistance in clarifying or amplifying the final
instructions.”

       [Defense Counsel]: Judge, that People v Luther is still good law.

       The Court: Okay. All right. Well, let’s bring ‘em in.

The jury returned to the courtroom for additional instruction. The court inquired:

         The Court: Okay. Members of the jury, you had sent out a note a little bit
ago indicating, “What happens if we cannot unanimously decide on a verdict?” Is
that still the question?

                                        ***

        Female Juror: Yes, and we want to clarify that is just a question; that’s
not our official answer, if that makes sense. We’re still deliberating.

       The Court: Oh, okay.

        Female Juror: We want to know what would happen if we don’t come up
with a verdict.

        The Court: Okay. Well, at this point I’m supposed to give you a certain
instruction, and . . . I’ll give you some additional instructions. Okay? So let me
give you the jury instruction.

        You have returned from deliberations indicating that you believe you
cannot reach a verdict. That may or . . . may not be true but I’m still gonna give
this to you. I’m going to ask you to please return to the jury room and resume
your deliberations in the hope that after further . . . discussion you will be able to
reach a verdict.

        Now, as you deliberate, please keep in mind the guidelines I gave you
earlier. Remember, it is your duty to consult with your fellow jurors and try to
reach an agreement, if you can do so without violating your own judgment. To
return a verdict, you must all agree, and the verdict must represent the judgment
of each of you.

        Now, as you deliberate, you should carefully and seriously consider the
views of your fellow jurors. Talk things over in a spirit of . . . fairness and
frankness. Naturally there will be . . . differences of opinion. You should each
not only express your opinion, but also give the facts and the reasons on which . .
. you base it. By reasoning the matter out, jurors can often reach agreement.

       Now, if you think it would be helpful, you may submit to the bailiff a
written list of the issues that are dividing or confusing you. It will then be


                                         -3-
       submitted to me. I will attempt to clarify or amplify the instructions in order to
       assist you in your further deliberations.

              Now, when you continue your deliberations, do not hesitate to rethink
       your own views and change your opinion if you decide it was wrong. However,
       none of you should give up your honest beliefs about the weight or effect of the
       evidence only because of what your . . . fellow jurors think or only for the sake of
       reaching agreement.

               Now, the other thing I want to advise you of is a couple of different things.
       Now, if you have reached a unanimous verdict on one count -- there are two
       counts here -- but you have not or cannot reach a unanimous verdict on the other
       count, then you can give me your verdict -- once you’re sure about that, . . . -- I
       can accept your verdict on any count that you’re unanimous on. But you have to
       also tell me that . . . you’re unable to reach a unanimous verdict on the other
       count.

               Now, the other suggestion I would have for you is you could re -- you
       know, I want you to go back and attempt to continue deliberations. But at some
       point if you want to come back to me, I will direct the foreperson of your jury to
       poll the jury in private and advise me only that a majority of the jury believes a
       verdict can be reached or a majority does not. Does everybody understand that?
       Do you want me to repeat that? You can’t tell me how your voting stands; you
       can’t tell anybody how your voting stands on anything. But you can tell me
       whether or not a majority of you believe that you’ll be able to reach a verdict or a
       majority thinks that you won’t be able to reach a verdict.

               Now, the other option I will give you folks is if you want to continue
       deliberating tonight, that’s fine with me. If you would prefer to come back in the
       morning and continue your deliberations, that would be fine. So I’m gonna let
       you all retire to the jury room, discuss it amongst yourselves, and send me a note
       out as to what you would like to do. . . .

        The jury was excused to the jury room at 5:59 p.m. Defense counsel indicated that she
was “[s]atisfied” with the court’s instructions. Nineteen minutes later, the jury returned a verdict
of guilty on both charged counts.

                                 B. STANDARDS OF REVIEW

       “A party must object or request a given jury instruction to preserve the error for review.
Absent an objection or request for an instruction, this Court will grant relief only when necessary
to avoid manifest injustice.” People v Sabin (On Second Remand), 242 Mich App 656, 658; 620
NW2d 19 (2000). Where counsel expresses satisfaction with the jury instructions, however, any
claim of error is deemed waived, leaving nothing for this Court’s review. People v Carter, 462
Mich 206, 219; 612 NW2d 144 (2000).

        Defendant contends that defense counsel’s decision to approve the deadlock jury
instruction, and thereby waive his claim of appellate error, rendered her performance
                                                -4-
constitutionally deficient. Defendant failed to preserve this challenge by seeking a new trial or
requesting a Ginther1 hearing below. Our review is therefore limited to the existing record.
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).

        “‘[T]he right to counsel is the right to the effective assistance of counsel.’” United States
v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v
Richardson, 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). An ineffective
assistance claim includes two components: “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d
674 (1984). To establish the deficiency component, a defendant must show that counsel’s
performance fell below “an objective standard of reasonableness” under “prevailing professional
norms.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to
the prejudice aspect, the defendant must demonstrate a reasonable probability that but for
counsel’s errors, the result of the proceedings would have differed. Id. at 663-664. The
defendant also must overcome the strong presumptions that his “counsel’s conduct [fell] within
the wide range of reasonable professional assistance,” and that counsel’s actions were sound trial
strategy. Strickland, 466 U.S. at 689.

                               C. PROPRIETY OF INSTRUCTION

        The trial court deviated from the standard instructions in advising the jury that it could
conduct an internal poll to determine whether its members believed they could reach a verdict.
M Crim JI 3.11 provides the general instruction a court should provide to the jury before
releasing them for deliberation:

                (3)       A verdict in a criminal case must be unanimous. In order to return
         a verdict, it is necessary that each of you agrees on that verdict. In the jury room
         you will discuss the case among yourselves, but ultimately each of you will have
         to make up your own mind. Any verdict must represent the individual,
         considered judgment of each juror.

                (4)     It is your duty as jurors to talk to each other and make every
         reasonable effort to reach agreement. Express your opinions and the reasons for
         them, but keep an open mind as you listen to your fellow jurors. Rethink your
         opinions and do not hesitate to change your mind if you decide you were wrong.
         Try your best to work out your differences.

                (5)     However, although you should try to reach agreement, none of you
         should give up your honest opinion about the case just because other jurors
         disagree with you or just for the sake of reaching a verdict. In the end, your vote
         must be your own, and you must vote honestly and in good conscience.



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
        In the event the jury advises the court that it is unable to reach a unanimous verdict, the
court should read the jury M Crim JI 3.12, which provides:

               (1)    You have returned from deliberations, indicating that you believe
       you cannot reach a verdict. I am going to ask you to please return to the jury room
       and resume your deliberations in the hope that after further discussion you will be
       able to reach a verdict. As you deliberate, please keep in mind the guidelines I
       gave you earlier.

                (2)    Remember, it is your duty to consult with your fellow jurors and
       try to reach agreement, if you can do so without violating your own judgment. To
       return a verdict, you must all agree, and the verdict must represent the judgment
       of each of you.

              (3)     As you deliberate, you should carefully and seriously consider the
       views of your fellow jurors. Talk things over in a spirit of fairness and frankness.

              (4)     Naturally, there will be differences of opinion. You should each
       not only express your opinion but also give the facts and the reasons on which
       you base it. By reasoning the matter out, jurors can often reach agreement.

               (5)     If you think it would be helpful, you may submit to the bailiff a
       written list of the issues that are dividing or confusing you. It will then be
       submitted to me. I will attempt to clarify or amplify the instructions in order to
       assist you in your further deliberations.

              (6)   When you continue your deliberations, do not hesitate to rethink
       your own views and change your opinion if you decide it was wrong.

              (7)      However, none of you should give up your honest beliefs about the
       weight or effect of the evidence only because of what your fellow jurors think or
       only for the sake of reaching agreement.

        In deciding to supplement the deadlock jury instructions, the trial court relied on People v
Luther, 53 Mich App 648; 219 NW2d 812 (1974). In Luther, the court returned the jury to the
courtroom shortly before 5:00 p.m. to determine whether to recess for the day. Id. at 649. In
doing so, the court asked, “Do you feel it’s possible to reach a verdict by five o’clock?” and the
jury foreperson responded in the negative. Id. at 650. The following ensued:

       The Court: How many of the jurors think you can’t reach a verdict by five?

       (Juror Number 5 and Juror Number 12 raised their right hand.)

       The Court: How many think you can?

       (Several jurors raised their right hand.)

       The Court: All but two.

                                                   -6-
       (Addressing the foreman of the jury): Mr. Kelly, do you still think you can’t?

       The foreman of the jury: Perhaps we can.

       The Court: Well, let’s try it.

       The foreman of the jury: Okay. [Id.]

Fifteen minutes later, the jury returned a guilty verdict. Id.

        This Court advised, “Trial judges are hereafter prohibited from asking any questions of
jurors the answer to which might reasonably be expected to disclose the numerical division of
the jury.” Id. Yet, this Court discerned “that no numerical division of the jury was revealed” in
Luther. Id. at 651. Rather, “[t]wo jurors expressed the view that a verdict could not be reached
by a given time. The balance had a contrary view or expressed none at all.” Id. This Court
concluded:

       If the orderly supervision of a docket requires that the trial court inform itself as
       to the probability of a verdict by some ascertainable time the procedure to be
       followed is to return the jury to the jury room, and direct the foreman to poll the
       jury in private and then advise the court only that a majority of the jury believes a
       verdict can be reached or a majority does not. The only virtue this solution has is
       that it establishes uniformity, unless of course another panel of this Court takes a
       contrary view or the Supreme Court speaks with finality. In this case we find no
       explicit revelation of the numerical division of the jury and hence no reversible
       error. [Id.]

        The discourse between the court and the jury in Luther stands in stark contrast with that
in People v Wilson, 390 Mich 689; 213 NW2d 193 (1973). In Wilson, the jury returned to the
courtroom after only 90 minutes of deliberation and advised the court that it was unable to agree
on a verdict. Id. at 690. The trial court queried, “Well, without saying for whom, how do you
stand numerically?” Id. The response was 11 to one. The court instructed the jury to resume
deliberations because “that is not very far from a verdict.” Id. This was reversible error because
“the trial judge’s inquiry into the numerical division of the jury had the tendency to be coercive.”
Id. at 691, citing Brasfield v United States, 272 US 448; 47 S Ct 135; 71 L Ed 345 (1926).
Moreover, the Supreme Court found, “The clear implication of the trial judge’s remark was that
only one more juror remained to be convinced in order to permit the return of a unanimous
verdict.” Id. This was reversibly coercive:

              It cannot be supposed that a jury is closer to agreement -- in point of time -
       - when it stands at 11 to 1 than when it stands at 8 to 4 or 6 to 6.

               In fact, the disposition of a single juror to stand against all of his fellows
       indicates a stronger conviction upon his part than if the division were more equal.
       Experience tells us that the holdout juror, standing alone, is often more difficult to
       convince, and indeed may never be persuaded to agree with the majority.



                                                 -7-
                 It follows that the court’s characterization of the jury as being “not very
         far from a verdict”, was impermissibly coercive with respect to the single
         reluctant juror. At the same time, the comment would have had the unhappy
         effect of confirming the 11 majority jurors in their tentative agreement.

                Whenever the question of numerical division of a jury is asked from          the
         bench, in the context of an inquiry into the progress of deliberation, it carries   the
         improper suggestion that the state of numerical division reflects the stage of      the
         deliberations. It has the doubly coercive effect of melting the resistance of       the
         minority and freezing the determination of the majority. [Id. at 691-692.]

        Three months after this Court’s opinion in Luther, and eight months after Wilson, our
Supreme Court considered the appropriate form of an instruction regarding jury deliberations and
how to handle a deadlocked jury situation, also known as an Allen2 charge. “The optimum
instruction,” the Court mused, “will generate discussion directed towards the resolution of the
case but will avoid forcing a decision.” People v Sullivan, 392 Mich 324, 334; 220 NW2d 441
(1974). Within the instruction given by the Sullivan trial court was the following:

                And, if on the one hand if much the larger number of your panel are for a
         conviction, a dissenting juror should consider whether a doubt in his own mind is
         a reasonable one which makes no impression upon the minds of so many men
         equally honest, equally intelligent with himself and who have heard the same
         evidence, with the same attention, with an equal desire to arrive at the truth and
         under the sanction of the same oath.

                 If, on the other hand, if a majority are for acquittal, the minority ought
         seriously to ask themselves whether they may not reasonably, and ought not to
         doubt the correctness of a judgment which is not concurred in by most of those
         with whom they are associated and distrust the weight of sufficiency of that
         evidence which fails to carry conviction to the minds of their fellows. [Id. at 328-
         329.]

The Court declined to find this instruction “coercive per se.” Id. at 342. To prevent future
hazards, the Court adopted ABA standard jury instruction 5.4, which is substantially similar to
the current M Crim JI 3.11. Sullivan, 392 Mich at 335, 342. And the Supreme Court warned,
“Any substantial departure therefrom shall be grounds for reversible error.” Id. at 342.

       Following Sullivan, our Supreme Court faced many challenges to deviations in jury
deliberation and deadlock jury instructions. In People v Goldsmith, 411 Mich 555, 558; 309
NW2d 182 (1981), the trial court added a variant of the deadlock jury instruction as part of its
main instructions before deliberations. The court included an objectionable supplement,
however:



2
    Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).


                                                 -8-
       Let me remind you that when a jury is unable to reach a verdict, the jury has not
       accomplished its purpose. A jury unable to agree, therefore, is a jury which has
       failed in its purpose. Each time such an indecisive jury fails, ammunition is given
       to those who oppose the jury system as we know it, a system that requires a
       unanimous vote of all 12 jurors for either conviction or acquittal. As you
       deliberate, please bear this in mind. [Id. at 558.]

This was a “substantial departure” from the ABA instruction approved in Sullivan and amounted
to reversible error. Id. at 560-561. It was “a call for the jury, as part of its civic duty, to reach a
unanimous verdict and contains the message that a failure to reach a verdict constitutes a failure
of purpose.” Id. at 561.

        In People v Hardin, 421 Mich 296, 314; 365 NW2d 101 (1984), the Supreme Court
clarified that “an undue tendency of coercion” is the core of any “substantial departure” inquiry,
not a deviation from the instruction language approved in Sullivan. An instruction is not
coercive per se even if it varies in substance from that approved in Sullivan. Id. at 321. The
Court enumerated that substantial departures include those that “cause a juror to abandon his
conscientious dissent and defer to the majority solely for the sake of reaching agreement,”
“require[], or threaten to require[], the jury to deliberate for an unreasonable length of time or for
unreasonable intervals,” or admonish a jury that the inability to reach a unanimous verdict
amounts to a failure of one’s civic duty. Id. at 316. And the instruction must be read in context
and with the instructions as a whole to determine if its effect was to coerce or “to stress the need
to engage in full-fledged deliberation.” Id. at 321.

        In People v Pollick, 448 Mich 376, 380; 531 NW2d 159 (1995), the trial court instructed
the jury before deliberations that it had two duties: to choose a foreperson and “to agree upon a
unanimous verdict.” After only 39 minutes of deliberation, the jury convicted the defendant of
the greatest charged offense. Id. at 378. This Court found this instruction to be a reversibly
coercive substantial departure from the standard instructions. Id. at 380-381. The Supreme
Court reinstated the jury conviction:

               It requires no special insight to see that there is a greater coercive potential
       when an instruction is given to a jury that already believes itself deadlocked.
       Instructions given to a jury that has not yet begun to deliberate are less likely to
       weigh on a dissenting juror, or to be understood as a request that a particular
       dissenting juror abandon the view that is preventing an otherwise unanimous jury
       from reaching its verdict.

               In the present case, the instruction preceded the jury's deliberations, and
       thus the coercive potential was reduced. Further, this case does not involve any
       improvidently added language, such as was found in Goldsmith. Indeed, the
       challenged instruction -- that the jury had a “duty” to return a unanimous verdict -
       - would be entirely unremarkable if this Court had not adopted in Sullivan a
       prophylactic rule designed to cure a problem that did not even arise in the present
       case. Probably for that reason, there was no objection from defense counsel.



                                                 -9-
               We said in Sullivan that courts are to give an instruction that is
       substantially in the form of CJI2d 3.11. That is a sound instruction, and we
       continue to direct that it be given. However, the teaching of Hardin is that an
       instruction on this subject requires reversal only if it has an “undue tendency of
       coercion,” not if it merely fails to contain the same words as the ABA standard.

               In the context of this case, considering the timing and full content of the
       instructions, we see no significant possibility that the jury found the instruction to
       be unduly coercive. The whole jurisprudence of Sullivan, including the cases and
       instructions that followed, is based on the need to avoid coercing jurors who are
       having a difficult time reaching a decision. Here, no such problem had arisen at
       the time of the instruction, nor did the jurors ever experience such a difficulty.
       Their deliberations were brief, and they did not choose any of the intermediate
       verdicts that were offered. [Id. at 385-386.]

        Here, the challenged instruction was given mid-deliberation and therefore had heightened
coercive potential. Id. at 385. And the “suggestion” that the jury conduct an internal poll to
ascertain whether a majority believed a verdict could be reached clearly deviated from the
language of M Crim JI 3.11 and 3.12 and the ABA instruction adopted in Sullivan, 392 Mich at
335, 342.

        However, the instruction was not a reversible “substantial departure.” It did not have the
potential to cause a juror to bend his or her will to that of the majority simply for the sake of
reaching an agreement. See Hardin, 421 Mich at 316. Rather, after giving the standard deadlock
jury instructions, the trial court gave the jury the option of retiring for the day or of continuing
deliberations that evening. If the jury found itself still unable to agree, it could conduct an
internal poll to determine whether a majority believed a unanimous verdict could never be
reached. The additional instruction in no way sought to reveal the numerical split of the jury as
in Wilson, 390 Mich 689. Accordingly, the provision of this instruction was not reversible error,
and defendant can establish no prejudice as a result of defense counsel’s waiver.

       Yet, we do not condone the use of the challenged instruction. Our Supreme Court has
made clear in the years since Luther that the safest course to avoid juror coercion is to read the
standard jury instructions. See Pollick, 448 Mich at 386; Goldsmith, 411 Mich at 560-561;
Sullivan, 392 Mich at 342. There was no need to deviate in this case, especially as the jury
foreperson informed the court that the jury was not actually deadlocked. Accordingly, we
recommend that the trial court avoid this additional instruction in the future.

                          III. GREAT WEIGHT OF THE EVIDENCE

        Defendant also contends that the jury’s guilty verdicts were against the great weight of
the evidence. Defendant failed to preserve his challenge by seeking a new trial below. People v
Cameron, 291 Mich App 599, 618; 806 NW2d 371 (2011). We would generally review a great
weight challenge to determine “whether the evidence preponderates so heavily against the
verdict that it would be a miscarriage of justice to allow the verdict to stand.” Id. at 617. Absent
a motion for new trial, our review is limited to plain error affecting defendant’s substantial
rights. Id. at 618.

                                               -10-
        When analyzing a great weight challenge, no court may sit as the “13th juror” and
reassess the evidence. People v Lemmon, 456 Mich 625, 636; 576 NW2d 129 (1998).
Therefore, “conflicting testimony or a question as to the credibility of a witness are not sufficient
grounds for granting a new trial.” Id. at 643 (quotation marks and citation omitted). To support
a new trial, the witness testimony must “contradict[] indisputable physical facts or laws,” be
“patently incredible or def[y] physical realities,” be “so inherently implausible that it could not
be believed by a reasonable juror,” or have been “seriously impeached” such that “the case [was]
marked by uncertainties and discrepancies.” Id. at 643-644 (quotation marks and citations
omitted).

        The evidence in this case was not so incredible or contradicted as to warrant judicial
interference. The jury was well aware that the complainant had never liked defendant. The
complainant even told the forensic interviewer in great detail about her dislike of defendant. The
complainant’s mother corroborated that the complainant had disliked defendant since the onset
of their relationship. And defense counsel posited that this dislike led the complainant to
fabricate the charges. The jury rejected this defense and deemed credible the complainant’s
accusations. We may not interfere with that assessment.

                                        IV. SENTENCING

        Finally, defendant argues that the trial court impermissibly increased the “floor” of
defendant’s minimum sentencing range through judicial fact-finding, contrary to the rule
announced in Alleyne v United States, 570 US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314
(2013). In that case, the Supreme Court held that any fact that increases a mandatory minimum
sentence is an “element” of the crime that must be submitted to the jury. However, as this Court
recently held in People v Herron, 303 Mich App 392, 403; 845 NW2d 533 (2013), Alleyne does
not implicate Michigan’s sentencing scheme because “judicial fact-finding within the context of
Michigan’s sentencing guidelines [is] not used to establish the mandatory minimum floor of a
sentencing range.” Accordingly, we reject this claim of error.

       We affirm.



                                                              /s/ E. Thomas Fitzgerald
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Amy Ronayne Krause




                                                -11-
