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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 16, 2017

v No. 330576 Delta Circuit Court STEVEN HAROLD MCRORIE, LC No. 14-009021-FC

Defendant-Appellant.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

. Defendant was convicted by a jury of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), (2)(b), and was acquitted of anoth er count of CSC-I. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 25 to 40 years in prison. On appeal, defendant argues that the prosecutor made several comme nts that constituted misconduct, and that the trial court abused its discretion by denying his r equest for a jury instruction on second-degree criminal sexual conduct (CSC-II), a cognate offen se. We affirm.

I. PROSECUTORIAL ERROR 1

1 Although this type of claim is generally referred to as “prosec utorial misconduct,” this Court has stated that, “the term ‘mi sconduct’ is more appropriately a pplied to those extreme . . . instances where a prosecutor’s conduct violates the rules of pr ofessional conduct or constitutes illegal conduct,” but that claims “premised on the contention t hat the prosecutor made a technical or inadvertent error at trial” are “more fairly presented as cl aims of ‘prosecutorial error[.]’ ” People v Cooper , 309 Mich App 74, 87-88; 867 NW2d 452 (2015) (citation omitted ). Nevertheless, regardless of “what operative phrase is used, [th is Court] must look to see whether the prosecutor committed errors during the course of trial that deprived defendant of a fair and impartial trial.” Id . at 88, citing People v Aldrich , 246 Mich App 101, 110; 631 NW2d 67 (2001). Here, we will refer to d efendant’s claim as prosecutor ial error, as the argument is limited to technical errors by the prosecutor.-2- Defendant first argues that comments made by the prosecutor du ring his closing and rebuttal arguments were improper because they denigrated the de fense and argued facts not based on evidence. Further, according to defendant, the commen ts prejudiced him by vouching for the complainant’s credibili ty while suggesting that defenda nt and the defense were not credible. Trial counsel did not object to any of the cited com ments, which defendant argues constituted ineffective assist ance of counsel. We conclude tha t, when considered in context, the prosecutor’s comments were not improper, and that defense couns el was not ineffective for failing to object to them.

A prosecutor may not vouch for the credibility of a witness. People v Reed , 449 Mich 375, 398; 535 NW2d 496 (1995) (opinion by B OYLE , J.). However, the prosecutor’s comments must be read as a whole and “evaluated in light of the relation ship or lack of relationship they bear to the evidence admitted at trial.” Id. at 398-399 (citation and quotation marks omitted). Our review of the prosecutor’s comments does not turn on whethe r any “magic words” were used: “The crucial inquiry is not whether the prosecutor said ‘ We know’ or ‘I know’ or ‘I believe,’ but rather whether the prosecutor was attempting to v ouch for the defendant’s guilt.” Id. at 399. Additionally, prosecutors should refrain from making arguments that appeal to the jury’s civic duty, and “must refrain from denigrating a defenda nt with intemperate and prejudicial remarks.” People v Bahoda , 448 Mich 261, 282-283; 531 NW2d 659 (1995). Any such comments made during closi ng argument will be reviewed in context “to determine whether they constitute error re quiring reversal.” Id. at 283.

Defendant first argues that the following comment constituted improper vouching for the complainant’s credibility:

Over the last couple of days, you’ve heard about real world cri minal sexual conduct against children. This is n’t a case where a stranger p ulls up in a van with no windows to a playground and asks some random kids, ‘Do you w ant some candy?’ You’ve heard about real world criminal sexual conduct against children.

We do not view this statement as a reference to the complainant ’s credibility, but rather as a comment on the nature of the facts presented. The prosecutor e ssentially argued that while a stereotypical version of a sexua l assault against a child might involve the stranger on the playground, in the instant case th e complainant had testified t hat someone she knew had assaulted her—or, as the prosecu tor put it, “[a] person of trus t and authority over a child violat[ed] that very sacred bond.” In other words, the prosecu tor was suggesting that sexual assault of children does not nece ssarily occur at the hands of strangers, but is more likely to be perpetrated by a person the child knows, and that the complaina nt’s actions made sense in light of this fact. Additionally, the prosecutor presented an expert forensic interviewer who testified that children often delay disclo sure when the person who abused them was a loved one or family member. When viewed in context of the evidence and arguments p resented at trial, the prosecutor’s assertion that the case concerned a “real world” s exual assault, and by extension, that the complainant’s behav ior should be understood in this co ntext, was not improper.

Similarly, the prosecutor did not improperly vouch for the com plainant’s credibility when he stated:-3- Why you should believe [C.G.]. F irst of all, she’s 14 years o ld. . . . [W]hat do your kids lie about? . . . [D]oing their homework . . . you know, who you were with? . . . And those are things that 14 year old gir ls . . . do, right? . . . Common sense. Does your common sense tell you that 14 year old girls make up allegations of criminal sexual conduct against a person they lo ve?

These statements were based on evidence admitted at trial. The complainant’s mother testified that the complainant had lied about small things, such as wheth er she had completed her homework; thus, the prosecutor ap parently sought to reframe thi s testimony. Additionally, the prosecutor’s use of the word “believe” did not automatically in dicate improper vouching. Reed

, 449 Mich at 399 (opinion by B OYLE , J.). Notably, the prosecutor did not state that “he believed” the complainant, but rather that he intended to explain to the jury why they “should believe” the complainant. Pursuant to Reed , this was not improper vouching

. Next, defendant argues that the prosecutor disparaged the defe nse when he stated: “We’re not in the business of fabrica ting eyewitnesses or calling peop le that don’t offer additional help to jurors.” 2 Defendant maintains that this comment implied that the defens e was in “the business” of fabricating witnesse s or evidence. However, the r ecord shows that the prosecutor’s comments were a permissible response to arguments raised by the defense. Defense counsel asserted during his closing argument that the prosecution had f ailed to present key witnesses, including the friend to whom the complainant sent text messages initially disclosing the assaults, and defendant’s daughter, who de fense counsel said was the firs t person the complainant had told “in person” about the assaults. Defense counsel argued th at the absence of these witnesses created sufficient reasonable doubt to acquit defendant of the charges. On rebuttal, the prosecutor asserted that the prosecution had “called the witnes ses that were eyewitnesses in this,” not those “that don’t offer additional help to jurors.” These comments did not suggest that the defense had fabricated evidence or witnesses. Rather, they rep resented an appropriate response to defense counsel’s argument th at the absence of the “witnesse s” created sufficient reasonable doubt to acquit defendant of the charges.

Defendant also asserts that the prosecution improperly appeale d to the jury’s sympathy and civic duty by stating:

If you want to talk about fundame ntal rights, how about the ri ght to be free from criminal activity against you r person? The protection . . . to walk these streets and not be criminal [sic] sexually assaulted while we’r e behind closed

2 Regarding the comment that “[a] common strategy by defense att orneys is, let’s point out a child’s inconsistent statements . . . but not talk about the de fendant’s,” defendant does not explain how this was improper, but may be implying that it disp araged the defense. “[P]rosecutor[s] may not suggest that defense counsel is intent ionally attempting to mislead the jury.” People v Unger , 278 Mich App 210, 236; 749 NW2d 272 (2008). However, this wa s a comment on defense counsel’s argument; we see no evidence that it was designed to disparage the defense.-4- doors in our own home when we’re children. How about protectin g our children from crimes?

We disagree with defendant’s cha racterization that this was a r equest to convict defendant in order to protect children. Here again, we conclude that the co mments were a reasonable response to defense counsel’s arg uments. Defense counsel argue d that “[w]e will all be celebrating Independence Day this weekend, . . . and we celebra te the freedoms that we all enjoy and that we all are entitled to,” including the right to “the p resumption of innocence maintained unless there’s proof beyond a reas onable doubt.” In rebuttal a rgument, the prosecutor made the above comments. When considered in context, these comments wer e not an improper appeal to the jury’s sympathy or civic d uty, but rather a response to def ense counsel’s argument regarding the “freedoms” to which persons are entitled in the United Stat es. Thus, the prosecutor’s comments were not error. See Bahoda , 448 Mich at 282-283; People v Kennebrew , 220 Mich App 601, 608; 560 NW2d 354 (1996) (holding that “an otherwise i mproper remark may not rise to an error requiring reversal when the prosecutor is respondin g to the defense counsel’s argument”).

Finally, defendant takes i ssue with the following:

Maybe most importantly, he’s gotten away with it before. He ac tually got away with it three times for a long period of time. The incident wi th [N.L.], he got a pass. She didn’t report it to the police.

* * *

Why did [complainant] do what she did? She’s a victim of crimi nal sexual conduct, and it was at the hands of the defendant, just like [N .L.] was. He got away with it with [N.L.], don’t let that happen today. The fac ts and the evidence prove that he’s guilty beyond a reasonable doubt.

We conclude that these comments were a permissible reference to the evidence of defendant’s prior sexual misconduct, admitted at trial pursuant to MCL 768. 27a. In People v Watkins , 491 Mich 450, 476; 818 NW2d 296 (2012), the Michigan Supreme Court held that MCL 768.27a “reflects a substantive legislative determination that juries s hould be privy to a defendant’s behavioral history in cases cha rging the defendant with sexual misconduct against a minor.” The prosecutor’s comment was part of a proper summary of the prosec ution’s presentation of the case, which included N.L.’s tes timony that defendant had sexual ly assaulted her and that the alleged assaults were not reported to law enforcement. The com ments were not, as defendant contends, an encouragement to the jury to convict defendant bec ause defendant had allegedly assaulted N.L. and had never bee n punished for it. Thus, these comments were not error.

Because the prosecutor’s statem ents were not error, defendant’ s argument that trial counsel was ineffective for failing to preserve this issue by t imely objecting to the prosecutor’s statements is not persuasive. See People v Gist , 188 Mich App 610, 613; 470 NW2d 475 (1991) (defense counsel was not ineffective for failing to object wher e an objection would have been pointless).-5- II. JURY INSTRUCTIONS

Defense counsel requested, at trial, a jury instruction on CSC -II. According to the defense, the instruction was a ppropriate based on testimony at trial, ostensibly from the investigating detective, that de fendant had accidentally touche d the complainant on her breast. The trial court declined defense counsel’s request because CSC- II was not a lesser included offense of CSC-I, as required by People v Cornell , 466 Mich 335; 646 NW2d 127 (2002). In addition, the court noted that th e touching element was “not re ally a disputed element in this case here because [complainant did not claim there was a mere touchi ng and] the defendant has said, ‘I didn’t do it at all.’ . . . ‘I didn’t touch her in any way; ’ ” the court found that the only disputed element was whether the first-degree CSC was “completed.” The court also noted that the prosecutor had not charged defendant with touching the complain ant’s breast, incidentally or purposefully. Thus, because “[t] here was no incidental touchin g except as it might relate to the breast, and the breast has not been charged,” the court conclud ed that there was no support in the record for an instructi on on a lesser offense.

In Cornell , the Court held that “a reque sted instruction on a necessarily included lesser offense is proper if the charged greater offense requires the j ury to find a disputed factual element that is not part of the lesser included offense and a r ational view of the evidence would support it.” Id . at 357. MCL 768.32(1) provides, in pertinent part, as follow s:
Except as provided in subsection (2) 3 , upon an indictment for an offense, consisting of different degrees , . . . the jury, or the judge i n a trial without a jury, may find the accused not guilty of the offense in the degree ch arged in the indictment and may find the accused person guilty of a degree o f that offense inferior to that charged in the indictment, or of an attempt to commit that offense.

The Court stated that pursuant t o this interpretation, “the def endant’s due process notice rights are not violated because all the elements of the lesser offense have already been alleged by charging the defendant with the greater offense.” Cornell , 466 Mich at 354-355 (citation and quotation marks omitted).

In People v Nyx , 479 Mich 112, 116; 734 NW2d 548 (2007) (opinion by T AYLOR , C.J.), the Court considered whether the prosecutor was entitled to an instruction on sCSC-II when the defendant had been charged with CSC-I. Nyx , at 116. The Court concluded that the prosecutor was not entitled to the instruction because “[t]he elements of CSC II are not all subsumed within CSC I;” thus, CSC-II was not a lesser included offense of CSC I and the defendant could not be convicted of CSC-II consistent with MCL 768.32. Id. at 117. The Nyx Court further stated:

While the prosecutor need not show that the perpetrator of a se xual penetration had any particular criminal inte nt in order to obtain a convict ion of CSC I, MCL 750.520a(p), CSC II requires proof of one of several intents th at are not always

3 Subsection 2 addresses lesser included offenses when a defend ant is charged with a controlled substance offense.-6- present when CSC I is committed [4] . Thus, CSC II is not a necessarily included lesser offense of CSC I. Rather , it is a cognate lesser offens e. [ Id. at 117-118.]

“A cognate lesser offense is one that shares elements with the charged offense but contains at least one element not found in the higher offense.” Id. at 118 n 14 (citation omitted). Consistent with Cornell and other cases, the Court held in Nyx that “MCL 768.32(1) precludes a judge or a jury from convicting a defendant of a cognate lesser offense . . . .” Id . at 121.

Here, defendant acknowledges that, under Cornell , MCL 768.32(1) does not permit cognate offense instructions. Cornell , 466 Mich at 359. Defendant does not argue that Cornell was incorrectly decided, but ar gues that this Court should conc lude that Cornell and Nyx do not preclude an instruction on the cognate offense of CSC-II under the “unique circumstances” of this case. The “uniqueness” of defendant’s case is apparently the fact that the defense, rather than the prosecution, requested an instruction on a cognate off ense. However, defendant has not pointed to any authority that s upports his contention that a defendant may ask the fact-finder to consider a cognate offense. Certainly, our Supreme Court was c oncerned with protecting a defendant’s right to adequate notice in Cornell and Nyx , as defendant argues; however, the Court also clearly indicated that its i ntention was to clarify its in terpretation of MCL 768.32(1). See Id. at 357 (“We believe that this a nalysis is consistent with our p rior case law and equally applicable to MCL 768.32.”); Nyx , 479 Mich at 122-123 (opinion by T AYLOR , C.J.) (declining plaintiff’s request to hold that instructions on cognate offenses should be given in cases where the Legislature has divided crimes into degrees: “We are persuaded that the bright-line rule of Cornell, which simply precludes conviction of cognate lesser offenses n o matter the charge, is consistent with MCL 768.32(1) and is thus preferable”). Becaus e defendant’s argument that our Supreme Court did not intend for MCL 768.32 to preclude instruc tions on cognate offenses in cases where the instruction was requested by the defense is not supported by relevant authority, he was not entitled to an instruction on CSC-II.

Defendant also argues that application of Cornell and Nyx to the instant case prevented him from presenting his preferred defense, in violation of his constitutional rights. We note that a defendant’s right to present a defense is not unlimited, and are not persuaded that the trial court’s decision was in error. “It is well established that th e right to assert a defense may be limited by ‘established rules of procedure and evidence designe d to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Shahideh , 482 Mich 1156, 1164 n 15 (2008) (T AYLOR , C.J., concurring), quoting Chambers v Mississippi , 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). The Court’s decision in Cornell was designed to promote reliability in the interpretation of MCL 768.32(1), as well as fairness in the application of the rule in various criminal cases. Moreover, defendant’s right to pres ent the defense he now asserts was

4 In order to prove that a defe ndant has committed CSC-II, a pr osecutor must show that the defendant had sexual contact with the victim. MCL 750.520c(1)( a), (b)( i ). Sexual contact includes, inter alia , “the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the cloth ing covering the immediate are a of the victim’s or actor’s intimate parts.” MCL 750.520a(q).-7- not impeded by the court’s decision. Defendant was still free to argue that he had accidentally touched the complainant on her br east. Had the jury believed t his argument, defendant would presumably have been acquitted of CSC-I, which would have been a more desirable result for him than a conviction for CSC-II. D efendant is not entitled to reversal.

Affirmed.

/s/ David H. Sawyer /s/ Christopher M. Murray /s/ Elizabeth L. Gleicher