                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 29, 2016
               Plaintiff-Appellee,

v                                                                  No. 329252
                                                                   Van Buren Circuit Court
LEE DONALD MANSFIELD,                                              LC No. 15-019751-FH

               Defendant-Appellant.


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

PER CURIAM.

        A jury convicted defendant of one count of third-degree criminal sexual conduct (sexual
intercourse with a victim at least 13 years of age and under 16 years of age), MCL
750.520d(1)(a); one count of third-degree criminal sexual conduct (cunnilingus with a victim
who was at least 13 years of age and under 16 years of age), MCL 750.520d(1)(a); one count of
third-degree criminal sexual conduct (fellatio with a victim who was at least 13 years of age and
under 16 years of age), MCL 750.520d(1)(a); and one count of third-degree criminal sexual
conduct (digital penetration of genital opening of a victim who was at least 13 years of age and
under 16 years of age), MCL 750.520d(1)(a). Defendant was sentenced to 60 months to 15
years’ imprisonment for each count, with the sentences to run concurrently and with credit for 27
days served. Defendant now appeals by right. We affirm.

       Defendant argues that the trial court’s practice of allowing jurors to submit questions for
witnesses deprived him of his right to a trial by a fair and impartial trial. We disagree.

        Defendant did not object to any of the juror initiated questions that the trial court
ultimately asked of witnesses or to the trial court’s procedure for soliciting and presenting such
questions. Therefore, this issue is unpreserved. People v Metamora Water Serv, Inc, 276 Mich
App 376, 382; 741 NW2d 61 (2007). We review unpreserved issues for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999). On plain-error review, the defendant has the burden to show (1) “error”, (2) that was
“plain,” meaning “clear or obvious”, (3) and that affected substantial rights or caused prejudice,
meaning “that the error affected the outcome of the lower court proceedings.” Id. at 763.

     MCR 2.513 governs the conduct of jury trials, including jury trials in criminal cases.
MCR 6.001(D). MCR 2.513(I) provides:


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       The court may permit the jurors to ask questions of witnesses. If the court permits
       jurors to ask questions, it must employ a procedure that ensures that such
       questions are addressed to the witnesses by the court itself, that inappropriate
       questions are not asked, and that the parties have an opportunity outside the
       hearing of the jury to object to the questions. The court shall inform the jurors of
       the procedures to be followed for submitting questions to witnesses.


        In People v Heard, 388 Mich 182, 188; 200 NW2d 73 (1972), our Supreme Court held
that a trial judge may permit jurors to direct questions to witnesses and that “the questioning of
witnesses by jurors, and the method of submission of such questions, rests in the sound
discretion of the trial court.” The Court reasoned:

       The practice of permitting questions to witnesses propounded by jurors should
       rest in the sound discretion of the trial court. It would appear that in certain
       circumstances, a juror might have a question which could help unravel otherwise
       confusing testimony. In such a situation, it would aid the fact-finding process if a
       juror were permitted to ask such a question. [Id. at 187-188.]

        Defendant, in support of his argument that this practice should stop, relies on State v
Costello, 646 NW2d 204, 214 (Minn, 2002), in which the Minnesota Supreme Court held, in the
exercise of its supervisory power over Minnesota courts, that jurors were not permitted to pose
questions to witnesses in a criminal trial. But the decisions of the courts of other states are not
binding on this Court. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).
Rather, this Court is bound to follow decisions of the Michigan Supreme Court “except where
those decisions have clearly been overruled or superseded.” Associated Builders & Contractors
v City of Lansing, 499 Mich 177, 191; 880 NW2d 765 (2016).

        It is settled in Michigan that a trial court may permit members of the jury to pose
questions for witnesses in a criminal trial, Heard, 388 Mich at 188, and the trial court in the
instant case properly complied with the procedure to be followed in the case of juror questions
stated in MCR 2.513(I). Therefore, defendant has failed to demonstrate that the trial court
committed plain error. See Carines, 460 Mich at 763.

       Next, defendant argues that the prosecutor improperly asked defendant to comment on
the credibility of prosecution witnesses and committed further misconduct by again raising the
matter during closing argument. We disagree.

        Defendant failed to preserve this issue for appeal because he did not object to either the
prosecutor’s questions or comments during closing argument that defendant now challenges.
People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). Consequently, our review is
for plain error that affected defendant’s substantial rights. Id. Alleged prosecutorial misconduct
will not warrant reversal “where a curative instruction could have alleviated any prejudicial
effect.” People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).

       A prosecutor has a responsibility “to seek justice and not merely convict.” People v
Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “[T]he test for prosecutorial misconduct
is whether a defendant was denied a fair and impartial trial.” Id. “A defendant’s right to a fair
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trial may be violated when the prosecutor interjects issues broader than the guilt or innocence of
the accused.” People v Rice (On Remand), 235 Mich App 429, 438; 597 NW2d 843 (1999).
Prosecutorial misconduct issues “are considered on a case-by-case basis, and the reviewing court
must consider the prosecutor’s remarks in context.” Bennett, 290 Mich App at 475. Prosecutors
have great latitude regarding their arguments and conduct at trial; they may argue the evidence
and all reasonable inferences from the evidence as it relates to their theory of the case. People v
Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). “A prosecutor may argue from the facts
that a witness is credible or that a witness is not worthy of belief.” Id. at 240. But a prosecutor
may not vouch for the credibility of a witness by suggesting that he has some special knowledge
regarding the truthfulness of the witness. Bennett, 290 Mich App at 476.

        It is also “improper for the prosecutor to ask defendant to comment on the credibility of
prosecution witnesses.” People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). In Buckey,
portions of the defendant’s testimony conflicted with the testimony of the complainant, eye-
witnesses, and a police detective. Id. at 5-6, 7 n 3. The prosecutor asked the defendant during
cross-examination whether the defendant thought the prosecution’s witnesses “were lying.” Id.
at 7 n 3, 16-17. The Buckey Court noted that the prosecutor’s strategy was to invite the
defendant to label the prosecution’s witnesses as liars and thereby discredit the defendant. Id. at
17. The Court found this conduct was improper because the defendant’s opinion of witnesses’
credibility “is not probative of the matter.” Id. The Court, however, held that the error did not
result in unfair prejudice to defendant and was harmless. Id. The Court reasoned the “defendant
dealt rather well with the questions,” that defense counsel did not object to the questions, and
that any prejudice could have been cured by a timely objection resulting in a prohibition on
further questions of the type at issue or an appropriate cautionary instruction. Id. at 17-18.

        In contrast, “[i]t is not improper for the prosecutor to attempt to ascertain which facts are
in dispute.” Ackerman, 257 Mich App at 449. In Ackerman, the defendant argued on appeal
“that the prosecutor engaged in misconduct by asking defendant whether he disputed specific
points of other witnesses’ testimony,” although defense counsel had not objected to the
questioning during trial. Id. The Ackerman Court rejected the defendant’s claim, reasoning that
the prosecutor did not ask the defendant to comment on the credibility of other witnesses, but
“only asked whether the defendant had a different version of the facts.” Id. In addition, the
Court noted that even if the questioning was improper to some extent, any possible prejudice
could have been alleviated by a curative instruction and reversal was not required. Id.

        Here, Trooper Kyle Gorham testified that he interviewed defendant, and defendant
indicated that he went to Oasis Hot Tubs with the victim, rented a hot tub for an hour, and was
there with the victim for approximately 20 minutes. According to Trooper Gorham, defendant
stated that the victim wore a bikini bathing suit with black bottoms and a black and green top and
that he wore blue Hawaiian shorts with flowers on them. Officer Tom McClung testified that he
heard the entire interview and that defendant told Trooper Gorham that he and the victim were
wearing bathing suits and were in the hot tub together. Defendant testified that he only told
Trooper Gorham that he went into the building of the Oasis Hot Tubs, not that he actually went
into the hot tub with the victim. According to defendant, he told Trooper Gorham about his own
bathing suit and the victim’s bathing suit, and his description of the victim’s bathing suit was
based on his discussion with the victim during their drive to the hot tubs and the fact that the
victim had shown him her bathing suit during that drive. Defendant testified that he did not tell

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Trooper Gorham that he and the victim changed into their bathing suits. The prosecutor asked
defendant during cross-examination, “Do you have any idea how Trooper Gorham could have
been so mistaken about that key, crucial fact of you being in the hot tub with [the victim] in your
bathing suits?” Defendant responded, “He might have just misunderstood what I was saying.”

        The instant case is distinguishable from Buckey. Here, the prosecutor merely asked
defendant to explain the apparent contradiction between defendant’s version of the hot tub
incident and that of Trooper Gorham and Officer McClung. Unlike the prosecutor in Buckey, the
prosecutor in the instant case did not ask defendant whether Trooper Gorham and Officer
McClung were “lying” and thus did not force defendant to explain the discrepancy solely in
terms of the officers’ honesty. Simply put, the prosecutor in the instant case did not ask
defendant to comment on the credibility of any prosecution witnesses, but merely inquired about
defendant’s explanation for the inconsistency. Once defendant gave his explanation, that the
discrepancy was based on a misunderstanding, the prosecutor moved on and left it for the jury to
determine the credibility of the various witnesses. Thus, the prosecutor’s strategy was not to
invite defendant to label the prosecution witnesses as “liars.” Rather, the prosecutor “only asked
whether the defendant had a different version of the facts,” Ackerman, 257 Mich App at 449, and
gave defendant a chance to offer an explanation. Evaluating the prosecutor’s conduct in context,
Bennett, 290 Mich App at 475, it is clear that the prosecutor did not ask defendant to comment
on the credibility of other witnesses, and so, the prosecutor’s questioning was not improper. See
Buckey, 424 Mich at 17; Ackerman, 257 Mich App at 449.

        Moreover, the prosecutor’s comments during closing argument were also not improper.
The prosecutor’s argument merely highlighted the improbability of defendant’s story in light of
all of the evidence. The prosecutor was permitted to argue the reasonable inferences from the
evidence in the case, including that defendant was not a credible witness. Unger, 278 Mich App
at 236. The prosecutor did not imply that he had special knowledge of the truthfulness of the
prosecution witnesses and thus did not improperly vouch for their credibility. Bennett, 290 Mich
App at 476. The prosecutor’s closing argument was well within the latitude afforded to
prosecutors in making their arguments at trial. Unger, 278 Mich App at 236. Therefore,
defendant has failed to demonstrate plain error regarding prosecutorial misconduct. Id. at 235.

        Finally, defendant also argues that defense counsel was ineffective because he did not
object to the alleged instances of prosecutorial misconduct. We disagree.

        Because defendant did not move the trial court for a new trial or an evidentiary hearing,
he failed to preserve his ineffective assistance of counsel claim. People v Nix, 301 Mich App
195, 207; 836 NW2d 224 (2013). “Unpreserved issues concerning ineffective assistance of
counsel are reviewed for errors apparent on the record.” People v Lockett, 295 Mich App 165,
186; 814 NW2d 295 (2012). “A claim of ineffective assistance of counsel presents a mixed
question of fact and constitutional law.” Unger, 278 Mich App at 242. Factual findings are
reviewed for clear error, and the constitutional issue is reviewed de novo. Id.

        To establish a claim of ineffective assistance of counsel, “a defendant must show that (1)
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) there is a reasonable probability that, but for counsel’s error, the
result of the proceedings would have been different.” Lockett, 295 Mich App at 187. As

                                                -4-
discussed above, the prosecutor did not improperly ask defendant to comment on the credibility
of prosecution witnesses and did not improperly vouch for the credibility of prosecution
witnesses during closing argument. Thus, any objection would have been without merit. Trial
counsel is not ineffective if he or she fails to voice a futile objection. Unger, 278 Mich App at
256. Furthermore, defendant does not explain how the outcome of the trial would have been
different but for the fact that defense counsel did not object to the prosecutor’s alleged improper
conduct. Defendant simply asserts that defendant’s answer to the prosecutor’s question “invited
the jury to ridicule” defendant. But as previously discussed, based on the evidence, defendant’s
testimony was fairly subject to comment. The prosecutor merely gave defendant an opportunity
to explain conflicting testimony; in response, defendant attributed the conflict to a
misunderstanding. The prosecutor then left it up to the jury to assess the credibility of defendant
and the other witnesses.

       “Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim.” Strickland v Washington, 466 US 668, 700; 104 S
Ct 2052; 80 L Ed 2d 674 (1984). On this record, defendant has not demonstrated either that his
counsel performed deficiently based on counsel’s not objecting to the alleged instances of
prosecutorial misconduct or that he suffered any prejudice. Id.

       We affirm.

                                                            /s/ Stephen L. Borrello
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey




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