If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 23, 2020

v No. 344223

Ingham Circuit Court

MARKUS KENTAY VARY, LC No. 16-000911-FH

Defendant-Appellant.

Before: BORRELLO, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

Defendant, Markus Kentay Vary, was convicted by a jury of transporting a person for 

purposes of prostitution, MCL 750.459, and accepting the earnings of a prostitute, MCL 750.457. 

The trial court sentenced Vary as a third-offense habitual offender, MCL 769.11, to two concurrent 

sentences of 160 to 480 months’ imprisonment. We affirm Vary’s convictions, vacate Vary’s 

sentences, and remand for resentencing.

On July 13, 2016, Vary met the complainant (“AV”) when she was leaving a retail 

establishment located in Lansing, Michigan. After AV divulged that she worked as a prostitute, 

Vary offered to provide rides and “security” for AV in exchange for a portion of the money that 

she earned. Because AV was homeless, Vary told her that she could stay at his friend’s house in 

Holt, Michigan. Thereafter, Vary acquired crack cocaine for AV and drove AV to his friend’s 

house, where AV smoked the crack cocaine. On the evening of July 14, 2016, AV met Vary and 

his girlfriend, Nicole Wright, at a party store in Lansing. The three then traveled to Linwood, 

Michigan, so that Wright and AV could meet a prostitution customer at the customer’s house.

1

 

 

1 Wright drove the vehicle to Linwood. The jury was given an aiding-and-abetting instruction.
-2-

After Wright and AV performed sexual acts with the man in the early morning hours of July 15, 

2016, Wright collected the money and gave it to Vary, who was waiting in a vehicle outside. 

On the afternoon of July 15, 2016, Vary, AV, and Wright were apprehended during a “sting 

operation” at a Red Roof Inn in Lansing, where Wright intended to participate in another 

prostitution date. AV agreed to testify against Vary and Wright in exchange for immunity from 

prosecution.2 During an interview with law enforcement, AV indicated that Vary had raped her 

while they were in the house in Holt. Vary was arrested and charged with transporting a person 

for purposes of prostitution, accepting the earnings of a prostitute, and third-degree criminal sexual 

conduct (CSC-III), MCL 750.520d(1)(b).

Vary testified in his own defense at trial. He admitted that he had sexual intercourse with 

AV, but he denied that it was nonconsensual. Vary also denied that he was involved with setting 

up prostitution dates, that he directed Wright or AV, and that he accepted any of their earnings.

Vary was convicted of transporting a person for purposes of prostitution and of accepting the 

earnings of a prostitute. The jury was unable to reach a verdict on the CSC-III charge. Vary was 

sentenced to terms of imprisonment, and this appeal followed.

I. SPECIFIC UNANIMITY INSTRUCTION

Vary argues that the trial court erred by denying his request for a specific unanimity jury 

instruction regarding the charge of accepting the earnings of a prostitute. We disagree. We review 

claims of instructional error de novo. People v Traver, 502 Mich 23, 31; 917 NW2d 260 (2018). 

“A defendant has the right to a unanimous verdict and it is the duty of the trial court to 

properly instruct the jury on this unanimity requirement.” People v Martin, 271 Mich App 280, 

338; 721 NW2d 815 (2006). “Under most circumstances, a general instruction on the unanimity 

requirement will be adequate.”3 Id. However, 

when the state offers evidence of multiple acts by a defendant, each of which would 

satisfy the actus reus element of a single charged offense, the trial court is required 

to instruct the jury that it must unanimously agree on the same specific act if the 

acts are materially distinct or if there is reason to believe the jurors may be confused 

or disagree about the factual basis of the defendant’s guilt. [People v Cooks, 446 

Mich 503, 530; 521 NW2d 275 (1994).]

In other words, a specific unanimity instruction is required where the acts used to prove a 

single conviction are factually dissimilar or fall into conceptually distinct categories. See id. at 

516. When the acts alleged are not materially distinct or there is no reason to believe that the jurors 

may be confused or disagree about the factual basis of the defendant’s guilt, “a general instruction 

 

2 Wright was originally a codefendant in the case, but her case did not proceed to trial because she 

pleaded guilty to transporting a person for the purpose of prostitution and to soliciting prostitution. 

3

It is undisputed that the trial court gave a proper general unanimity instruction.
-3-

to the jury that its verdict must be unanimous does not deprive the defendant of his right to a 

unanimous verdict.” Id. at 530. 

We conclude that a specific unanimity instruction was not required because there were no 

distinct proofs of separate acts and there was not a risk of jury confusion. The elements of 

accepting the earnings of a prostitute are that the defendant (1) received money from a prostitute, 

(2) knew that the individual was a prostitute when he took the money, (3) knew that the money he 

received had been earned through prostitution, and (4) did not give the prostitute anything of value 

in exchange. Martin, 271 Mich App at 325. “ ‘[C]onsideration’ does not include the provision of 

goods and services that are intended to further or keep the prostitute engaged in the business of 

prostitution.” Id. at 326.

The prosecutor in this case did not present multiple separate acts as evidence of the actus 

reus of accepting the earnings of a prostitute. Rather, the charge was based on one specific act:

Vary’s acceptance of $400 from Wright following Wright and AV’s prostitution date with the 

customer in Linwood. Testimony at trial supported that, after the customer agreed to pay a certain 

sum of money to have a sexual encounter with Wright, Wright informed him that she was going 

to bring a “friend” and that it would cost $400. The customer agreed, Wright accepted the $400

from the customer, and Wright and AV participated in a “threesome” with the customer.

Thereafter, Wright did not give AV a portion of the money. Instead, Wright gave the $400 to 

Vary. Consequently, this case did not involve “multiple acts” and there was only one incident that 

could have supported the charge of accepting the earnings of a prostitute. Nonetheless, Vary 

argues on appeal that the jury was permitted to select whose earnings Vary accepted without 

requiring the jury to unanimously agree on whose earnings Vary accepted without providing 

consideration. However, there is no evidence that the prostitution proceeds that Wright gave Vary 

were used for Wright and AV’s transportation, food, or shelter. Indeed, testimony supports that 

the motel room where Wright and AV stayed from July 14 through July 15, 2016, was paid for 

before the “date” occurred in Linwood. Even if one could infer that gas or food purchased after 

the prostitution date was “consideration,” there is no indication that AV received this consideration 

and Wright did not, or that Wright received this consideration and AV did not. In fact, by testifying 

that the money was not his to use, Vary essentially denied that he provided consideration to Wright 

or AV in exchange for the money.

In addition, there is no evidence in the record that supports Vary’s contention that the jury 

was confused or disagreed about the factual basis of Vary’s guilt with respect to the accepting the 

earnings of a prostitute charge. See Cooks, 446 Mich at 524. The jury asked no questions about 

that charge during deliberations and delivered a unanimous verdict on that charge. Consequently, 

we conclude that Vary was not entitled to a specific unanimity instruction. See id. at 528-530.

II. RIGHT TO CONFRONTATION 

Vary next argues that the trial court abused its discretion by admitting into evidence AV’s 

preliminary examination testimony and that its admission violated his rights under the 

Confrontation Clauses of the United States Constitution. We disagree.

A trial court’s decision to admit evidence is reviewed for an abuse of discretion. People v 

Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). An abuse of discretion occurs when the trial 
-4-

court “chooses an outcome that falls outside the range of principled outcomes.” People v Musser, 

494 Mich 337, 348; 835 NW2d 319 (2013). This Court reviews de novo preserved constitutional 

issues. People v Idziak, 484 Mich 549, 554; 773 NW2d 616 (2009). 

Hearsay is “a statement, other than the one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Unless 

an exception applies, hearsay is not admissible into evidence. MRE 802. One such exception is 

the former testimony of a declarant who is unavailable as a witness. MRE 804(b)(1). A witness 

is unavailable if the witness “persists in refusing to testify concerning the subject matter of the 

declarant’s statement despite an order of the court to do so[.]” MRE 804(a)(2). Under MRE 

804(b)(1), where a witness is unavailable, testimony given by that witness “at another hearing of 

the same or a different proceeding, if the party against whom the testimony is now offered, . . . had 

an opportunity and similar motive to develop the testimony by direct, cross, or redirect 

examination,” is admissible. Among the factors to determine whether the party “had a similar 

motive to examine a witness at the prior proceeding” are 

(1) whether the party opposing the testimony “had at a prior proceeding an interest 

of substantially similar intensity to prove (or disprove) the same side of a 

substantially similar issue”; (2) the nature of the two proceedings—both what is at 

stake and the applicable burden of proof; and (3) whether the party opposing the 

testimony in fact undertook to cross-examine the witness (both the employed and 

available but forgone opportunities). [People v Farquharson, 274 Mich App 268, 

278; 731 NW2d 797 (2007), quoting United States v DiNapoli, 8 F 3d 909, 914 

(CA 2, 1993).]

Even when evidence is admissible under MRE 804(b)(1), “it is still necessary to determine 

whether use of the testimony would violate a defendant’s constitutional right to confront 

prosecution witnesses.” People v Meredith, 459 Mich 62, 67; 586 NW2d 538 (1998). Testimony 

given at a preliminary examination is testimonial in nature and implicates the Confrontation 

Clause. Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 177 (2004). “Former 

testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation Clause as long 

as the witness is unavailable for trial and was subject to cross-examination during the prior 

testimony.” People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009). See also Crawford, 

541 US at 68.

In this case, AV testified at the preliminary examination on October 14, 2016, and Vary’s

counsel cross-examined her at that time. On November 10, 2016, AV reported that she was being 

harassed by Vary’s family. On March 28, 2018, an unknown male approached AV, threatened her 

with a gun, and stated that “she would be okay going into court but not fine coming out of court.” 

AV appeared for the first day of trial on April 12, 2018, and expressed fear about testifying. 

Although AV was subject to a valid subpoena, she “absolutely refused” to enter the courtroom to 

testify despite being warned that she could be held in contempt and despite being encouraged to 

testify by the prosecutor, other assistant prosecutors, and members of law enforcement. The trial 

court was advised of this off of the record and agreed to “put the matter over” at the request of the 

prosecutor. Despite promising the prosecutor that she would return on April 13, 2018, AV failed 

to appear. The prosecutor reported that AV could not be reached by phone and could not be located 

by law enforcement. The prosecutor asked the trial court to declare AV unavailable under MRE 
-5-

804(a)(2) and (a)(5). The trial court concluded that AV was unavailable because she persisted in 

refusing to testify, and the trial court permitted her preliminary examination testimony to be 

admitted into evidence. Vary argues that the trial court abused its discretion by concluding that 

AV was unavailable. 

We conclude that the trial court did not abuse its discretion by finding AV to be 

unavailable. Although AV’s “eleventh-hour decision” not to testify “is not expressly addressed 

under MRE 804(a),” it is “of the same character as other situations outlined in that rule of 

evidence.” See People v Adams, 233 Mich App 652, 658; 592 NW2d 794 (1999). Additionally, 

because AV appeared on the first day of trial pursuant to a subpoena, her refusal to testify on the 

first day of trial and her failure return on the second day of trial constituted a refusal to testify 

despite an order of the court to do so.4 See People v Garay, 320 Mich App 29, 37 n 1; 903 NW2d 

993 (2017), overruled in part on other grounds by People v Skinner, 502 Mich 89; 917 NW2d 292

(2018). AV was clearly unavailable according “to the ordinary meaning of the word.” Adams, 

233 Mich App at 657-659 (emphasis omitted). Furthermore, testimony at trial regarding Vary’s 

plan to intimidate AV,5evidence that AV had been threatened with a gun, and AV’s fear for her 

safety shows that her reason for refusing to testify was “motivated by self-preservation rather than 

a change of heart.”6 Id. at 658. Although the better practice would have been for the trial court to 

make a record when AV was present on the first day of trial, “[i]n light of the totality of the 

circumstances,” id. at 659, we hold that the trial court’s decision to declare AV unavailable under 

MRE 804(a)(2) was within the range of reasonable and principled outcomes. 7

Next, Vary argues that the trial court abused its discretion by admitting AV’s former 

testimony under MRE 804(b)(1) because he did not have a similar motive to cross-examine AV at 

 

4 We find no merit to Vary’s argument that the trial court should have ordered AV to testify. 

Because the prosecutor had subpoenaed her, “there was already an order for [her] to testify.” See 

People v Garay, 320 Mich App 29, 37 n 1; 903 NW2d 993 (2017), overruled in part on other 

grounds by People v Skinner, 502 Mich 89; 917 NW2d 292 (2018).

5 Testimony at trial supports that Vary had asked his former jail cellmate to send a letter to AV, 

telling her that, if she “show[ed] up in court, something bad [would] happen.” Vary admitted that 

he wanted to “scare” AV because he knew that, if she did not appear, his charges would likely be 

dismissed. Vary’s former cellmate did not send the letter.

6 Testimony at trial supports that other witnesses were being intimidated or manipulated. Vary’s 

former jail cellmate, who was scheduled to testify on April 13, 2018, did not appear on that date. 

A bench warrant was issued for his arrest. Vary’s former cellmate appeared on April 16, 2018,

and testified that he failed to appear on April 13th because he felt threatened. Additionally, 

Wright’s mother testified that Wright received a letter from Vary in August 2017. Wright’s mother 

read the letter and testified that she believed that Vary was “telling [Wright] what to say.” Wright’s 

mother testified that she did not like Vary, whom she had known for years, because she thought 

he was a manipulative person.

7 Given that AV was clearly unavailable under MRE 804(a)(2), it is unnecessary to consider 

whether she was also unavailable under MRE 804(a)(5).
-6-

the preliminary examination as he would have at trial. We disagree. The prosecutor’s purpose in 

presenting AV’s testimony at the preliminary examination was the same as at trial: to show that 

Vary committed the charged crimes. Therefore, Vary had an “interest of substantially similar 

intensity” in proving or disproving AV’s testimony at the preliminary examination just as he did 

at trial. See Farquharson, 274 Mich App at 278. Despite the lower burden of proof at the 

preliminary examination as compared to the burden of proof at trial, Vary had a similar motive to 

cross-examine AV in both proceedings—i.e., Vary was motivated to show that he did not commit 

the charged crimes. See id. Because the same issues were at stake in both the preliminary 

examination and the trial, Vary had a substantially similar interest in those issues relative to AV’s 

testimony in each of those proceedings.8 See id. 

Vary also argues that AV’s preliminary examination testimony should not have been read 

at trial because the jury lacked the opportunity to observe AV’s demeanor. While witness

demeanor can be important, the substantive use of preliminary examination testimony at a trial 

does not violate the constitutional right to confrontation as long as the prosecutor “exercised both

due diligence to produce the absent witness[] and that the testimony [bears a] satisfactory indicia 

of reliability.” People v Bean, 457 Mich 677, 682-683; 580 NW2d 390 (1998). As already 

discussed, AV persistently refused to testify, and we conclude that AV’s testimony bears a 

satisfactory indicia of reliability. The testimony of Wright and Vary and the text messages that 

were admitted into evidence corroborated AV’s testimony that Wright and Vary transported her to

Linwood to engage in prostitution. Furthermore, AV’s testimony that Wright collected the $400

provided by the Linwood customer and gave it to Vary is consistent with the testimony of Wright 

and Vary. Additionally, testimony supported that, when Vary was searched at the Red Roof Inn, 

$466 in cash was found on his person and that Vary attempted to intimidate AV and influence 

Wright, which supports an inference of consciousness of guilt.

In sum, the trial court did not abuse its discretion by admitting AV’s preliminary 

examination testimony under MRE 804(b)(1), People v Benton, 294 Mich App 191, 195; 817 

NW2d 599 (2011), and Vary’s rights under the Confrontation Clause were not violated, Garland, 

286 Mich App at 7. See also Crawford, 541 US at 68.

III. CHANGE OF JUDGES BEFORE SENTENCING

Next, Vary argues that an error occurred because the judge who sentenced him did not 

preside over his trial. “Generally, a defendant should be sentenced by the same judge who presided 

 

8 Vary argues that his right to confrontation was violated because the cross-examination at the 

preliminary examination was conducted by a different attorney than his trial attorney. He provides 

no authority for this argument and makes no attempt to explain why this rendered the crossexamination defective. An appellant may not simply make an assertion and leave it up to this 

Court to discover the basis for his claims or search for authority to support his position. People v 

Bowling, 299 Mich App 552, 559-560; 830 NW2d 800 (2013). Vary also contends that new 

evidence appeared between the time of the preliminary examination and trial, but he does not

specify what the new evidence was or how it impacted the trial. This Court will not attempt to 

make an appellant’s arguments for him. Id.
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at [the defendant’s] trial, provided that the judge is reasonably available.” People v Pierce, 158 

Mich App 113, 115; 404 NW2d 230 (1987), citing People v Clemons, 407 Mich 939; 291 NW2d 

927 (1979). In this case, a visiting judge was assigned to, and presided over, Vary’s trial. 

Specifically, at the beginning of trial, the visiting judge explained that he was a district court judge 

who had been temporarily assigned to the 30th Circuit Court by the State Court Administrator’s 

Office. At sentencing, the prosecutor explained that the visiting judge who presided over Vary’s 

trial was no longer assigned to the 30th Circuit Court. For that reason, the visiting judge no longer 

had authority to act as a circuit court judge at the time of sentencing, and was therefore not 

reasonably available to sentence Vary. Consequently, resentencing is not required. See People v 

VanAuker (After Remand), 132 Mich App 394, 399; 347 NW2d 466 (1984), rev’d in part on other 

grounds 419 Mich 918 (1984) (holding that resentencing was not required when the visiting judge 

“was not reasonably available to sentence defendant since he no longer had the authority to act as 

a circuit judge in that circuit at the time of sentencing”).

IV. SENTENCING

Next, Vary argues that the trial court erred when scoring multiple offense variables (OVs). 

“We review for clear error the trial court’s factual determinations, which must be supported by a 

preponderance of the evidence.” People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 

(2016). “We review de novo whether the factual determinations were sufficient to assess points 

under OV[s].” Id. “A sentencing court may consider all record evidence before it when calculating 

the guidelines, including, but not limited to, the contents of a presentence investigation report, 

admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary 

examination or trial.” People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 

(1993).

A. OV 8

Vary argues that the trial court erred by assessing 15 points for OV 8. A trial court is 

required to assess 15 points for OV 8 when “[a] victim was asported to another place of greater 

danger or to a situation of greater danger or was held captive beyond the time necessary to commit 

the offense.” MCL 777.38(1)(a); see also People v Barrera, 500 Mich 14, 16-17; 892 NW2d 789 

(2017). For purposes of scoring OV 8, “each person who was placed in danger of injury or loss of 

life should be counted as a victim.” MCL 777.38(2)(a).

“A victim is asported to a place or situation involving greater danger when moved away 

from the presence or observation of others.” People v Chelmicki, 305 Mich App 58, 70-71; 850 

NW2d 612 (2014). A place of greater danger may include “an isolated location where criminal 

activities might avoid detection.” People v Dillard, 303 Mich App 372, 379; 845 NW2d 518

(2013), overruled on other grounds by Barrera, 500 Mich at 16-17. Asportation “can be 

accomplished without the employment of force against the victim,” People v Spanke, 254 Mich 

App 642, 647; 658 NW2d 504 (2003), overruled on other grounds by Barrera, 500 Mich at 17, 

and “may occur even when the victim voluntarily accompanied the defendant to a place or situation 

of greater danger,” Dillard, 303 Mich App at 379.

At sentencing, defense counsel objected to 15 points being assessed for OV 8. Defense 

counsel argued that AV “was never placed in danger of injury or loss of life” and noted that AV 
-8-

voluntarily traveled to Linwood to engage in prostitution. The trial court held that OV 8 was 

properly scored. The court noted that “asportation need not be forcible” and that Vary moved AV 

to a place where “a date [was] waiting for her,” which constituted a situation of greater danger.

Although Vary undeniably assisted in transporting AV from Lansing to the customer’s

house in Linwood and the trial court correctly noted that the fact that AV voluntarily accompanied 

Vary was irrelevant for purposes of scoring OV 8, the trial court did not make findings as to 

whether AV was a victim. We conclude that the record does not support that AV was placed in 

danger of physical injury or loss of life. After arriving at the customer’s house in the early morning 

hours of July 15, 2016, Wright and AV went inside to engage in the prearranged sexual encounter 

while Vary remained in the vehicle. Although it is reasonable to infer that meeting a stranger who 

has solicited a prostitute could result in physical injury, no record evidence suggests that anyone

assaulted or otherwise injured AV while she was in the Linwood house. Rather, the record 

evidence establishes that the prearranged sexual encounter went as planned and that AV left the 

house without incident after it was completed. Consequently, because a preponderance of the 

evidence does not support that AV was placed in danger of injury or loss of life during the 

sentencing offenses, the trial court erred by assessing 15 points for OV 8.9

B. OV 10

Vary next argues that the trial court erred by assessing 15 points for OV 10. A trial court 

is required to assess 15 points for OV 10 for predatory conduct; predatory conduct is defined as 

“preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL 

777.40(3)(a). A trial court properly assesses 15 points for OV 10 if it answers the following 

questions affirmatively:

(1) Did the offender engage in conduct before the commission of the 

offense?

(2) Was this conduct directed at one or more specific victims who suffered 

from a readily apparent susceptibility to injury, physical restraint, persuasion, or

temptation? 

(3) Was victimization the offender’s primary purpose for engaging in the 

preoffense conduct? [People v Cannon, 481 Mich 152, 162; 749 NW2d 257 

(2008).]

The day before the sentencing offenses occurred, Vary met AV at a place where prostitutes 

were usually located. Vary testified that he was looking for a prostitute and that he called AV over 

to him because he thought she was attractive. After AV confirmed that she was a prostitute and 

told Vary that she was homeless and was trying to locate drugs, Vary offered to provide security, 

transportation, and housing for AV. Vary also acquired crack cocaine for AV, and he admitted at 

trial that he had provided women with drugs in the past because it made it easier for them to engage 

 

9 Accepting the earnings of a prostitute and transporting a person for purposes of prostitution are 

both classified as Level B offenses. MCL 777.16w.
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in prostitution. Thus, Vary took affirmative steps to make AV, who had a “readily apparent 

susceptibility to injury, physical restraint, persuasion, or temptation” given that she was homeless 

and seeking drugs, even more susceptible to victimization. See Cannon, 481 Mich at 162. In 

addition, a reasonable inference from all the circumstances is that Vary’s primary purpose for 

providing AV with drugs, security, transportation, and housing was victimization. See People v 

Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). Specifically, by providing AV with these 

things, it became more probable that Vary could manipulate AV, facilitate her prostitution 

services, and eventually obtain money from those services. Given that Vary essentially prowled 

for a victim in an area where he knew prostitutes gathered and then specifically targeted AV, this 

conduct qualified as “predatory” in a manner similar to cases involving lying in wait or stalking, 

rather than simple opportunism or “run-of-the-mill planning” to accomplish a crime without 

detection. See People v Huston, 489 Mich 451, 461-462; 802 NW2d 261 (2011) (citation omitted). 

Because these circumstances satisfy the inquiries in Cannon, the trial court did not err by assessing 

15 points for OV 10.

C. OV 12

Vary next argues that the trial court erred by assessing five points for OV 12. A five-point 

score for OV 12 is appropriate if “[o]ne contemporaneous felonious criminal act involving a crime 

against a person was committed[.]” MCL 777.42(1)(d). “A felonious criminal act is 

contemporaneous if” it “occurred within 24 hours of the sentencing offense” and “has not and will 

not result in a separate conviction.” MCL 777.42(2)(a). Thus, when scoring OV 12, the trial court 

must “look beyond the sentencing offense and consider only those separate acts or behavior that 

did not establish the sentencing offense.” People v Light, 290 Mich App 717, 723; 803 NW2d 720 

(2010).

The trial court assessed five points for OV 12 because it concluded that Vary had 

committed CSC-III within 24 hours of the sentencing offenses. However, testimony at trial

supports that Vary and AV were at the house in Holt at “[a]bout 3-ish,” for about “35, 40 minutes”

on July 13, 2016. Text messages that were admitted into evidence support that AV left the 

company of Vary and Wright sometime after 5:45 p.m. on July 13, 2016, and that the transportation 

to Linwood occurred at some point after 7:50 p.m. on July 14, 2016, when it was “closer to 

nighttime” and “dark.”

10

 Thus, even if a preponderance of the evidence supported that Vary 

committed CSC-III, the record evidence supports that it occurred on the afternoon of July 13th, 

whereas the first sentencing offense—transportation for purposes of prostitution—occurred on the 

evening of July 14th. Accordingly, because a preponderance of the evidence does not support that

the CSC-III occurred within 24 hours of either sentencing offense, the trial court erred by assessing 

five points for OV 12. MCL 777.42(2)(a)(i).

 

10 The prosecutor implied in closing arguments that the transportation began around 10:00 p.m. on 

July 14, 2016.
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D. OV 14

Vary next argues that the trial court erred by assessing 10 points for OV 14. MCL 

777.44(1)(a) requires the assessment of 10 points under OV 14 when “[t]he offender was a leader 

in a multiple offender situation[.]” A defendant is the leader if he “acted first or gave directions 

or was otherwise a primary causal or coordinating agent.” People v Dickinson, 321 Mich App 1, 

22; 909 NW2d 24 (2017) (quotation marks omitted). A “ ‘multiple offender situation’ as used in 

OV 14 is a situation consisting of more than one person violating the law while part of a group.” 

People v Jones, 299 Mich App 284, 287; 829 NW2d 350 (2013), vacated in part on other grounds 

494 Mich 880 (2013). A “multiple offender situation” can exist with only one other person present. 

Id. at 287-288.

The record evidence supports the conclusion that the “entire criminal transaction” was a 

multiple offender situation given that Wright was convicted of transporting a person for 

prostitution in relation to the incident involving the Linwood customer. Id. at 286. Additionally, 

the record supports that Vary was the leader. Specifically, Vary initiated the first contact with AV 

and entered into an agreement with her whereby he would provide transportation and “security” 

for her in exchange for a portion of the prostitution money that she earned. AV denied that she 

had ever spoken with Wright about the “percentage” that Vary would receive, and AV testified 

that Vary had asked for the prostitution money after the prostitution date in Linwood and that 

Wright had given it to him. Vary’s initiation of contact, his entering into the agreement, and his 

retention of money were sufficient to show that he was the leader of the criminal transaction. 

Therefore, the trial court did not err by assessing 10 points for OV 14.

E. EFFECT OF SCORING ERRORS

As already stated, the trial court did not err by scoring OVs 10 and 14. However, the trial 

court erred by assessing 15 points for OV 8 and five points for OV 12. Vary’s Prior Record 

Variable (PRV) score of 55 points placed him in PRV Level E, and his total OV score of 55 points 

placed him in OV Level V. Subtracting 20 points from Vary’s OV score of 55 changes the 

recommended guidelines minimum sentencing range. See MCL 777.63. Therefore, resentencing 

is warranted. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). 

V. READING OF AV’S TESTIMONY DURING DELIBERATIONS

Vary argues that reversal is required because the court reporter read AV’s preliminary 

examination testimony for the jury during deliberations without authorization by the trial court and 

without Vary being present. We disagree.

The jurors began deliberations at 12:29 p.m. on the final day of trial and returned to the 

courtroom at 4:22 p.m. to inform the trial court that they were deadlocked. The trial court 

instructed the members of the jury to continue deliberating, and they resumed deliberations at 4:25 

p.m. At 4:46 p.m. they returned with the following question: “Is it reasonable to have a doubt 

about the rape because we were unable to experience the victim giving her testimony in person 

and in context?” The trial court repeated the instruction on reasonable doubt, and the jurors 

resumed deliberations at 4:48 p.m. Court proceedings reconvened at 5:24 p.m., and the trial court 

indicated that the jurors had informed the bailiff that they had reached a verdict on two counts but 
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were deadlocked on the CSC-III count. The jury delivered its findings of guilt, and the trial court

declared a mistrial on the CSC-III count. After a discussion about bond occurred, the following 

colloquy took place:

The Court: Now, while we were all in recess, I’m advised that the court 

reporter, at the jury’s request, read back the testimony or portions of the testimony 

of [AV].

Now, I want to bring that to the lawyers’ attention. I’m not—I was not here. 

I didn’t make that decision. I’m not holding either or any member of the staff 

accountable. I’m just saying for the record, that that was done.

The Prosecutor: Yes, Your Honor.

Defense Counsel: Yes, Your Honor. We were aware of that.

The Prosecutor: We were aware of that.

The Court: You were? Okay. You knew more than I did. That’s all for 

this record today.

The Prosecutor: Thank you.

Defense Counsel: Thank you, Your Honor.

Vary contends that the present issue should be deemed preserved for appellate review because 

defense counsel had no opportunity for a contemporaneous objection. We conclude, however, that 

the only reasonable manner in which to interpret the above exchange is to conclude that the issue 

is not preserved because it was not raised below when defense counsel had a chance to raise it. 

Indeed, defense counsel indicated that he was aware of the readback procedure, and when 

specifically informed that the trial court was making an appellate record, counsel voiced no 

objection to the procedure.

Therefore, we apply the plain-error rule, which requires that “1) error must have occurred, 

2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” 

People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error has affected a defendant’s

substantial rights when there is “a showing of prejudice, i.e., that the error affected the outcome of 

the lower court proceedings.” Id. Moreover, “once a defendant satisfies these three 

requirements, . . . [r]eversal is warranted only when the plain, forfeited error resulted in the 

conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, 

integrity or public reputation of judicial proceedings independent of the defendant’s innocence.” 

Id. at 763-764 (quotation marks and citation omitted; alteration in original). A defendant bears the 

burden of persuasion with respect to prejudice. Id. at 763.

Even assuming that plain error occurred by the trial judge’s absence, we conclude that Vary 

is not entitled to relief. The general rule is that a judge’s absence during a trial will not constitute 

reversible error unless prejudice has resulted to the defendant. People v Morehouse, 328 Mich 
-12-

689; 44 NW2d 830 (1950).

11

 As already stated, the absence of the trial judge occurred during jury 

deliberations, specifically when the jury was re-read testimony from the preliminary examination 

transcript. On appeal, Vary does not make any specific allegations of prejudice. Rather, Vary 

speculates that he was prejudiced because the trial judge was not “available to exercise his 

discretion” and because Vary does “not know what portions [of the transcript] were read or what 

else was said during this proceeding.” We conclude that there is no evidence of prejudice given 

that the jurors were merely read testimony that had already been read and which the trial court had 

already found to be admissible under MRE 804(b)(1). There is no indication in the record that the 

jury was read a portion of AV’s testimony that was not read during trial. Indeed, review of the 

preliminary examination transcript establishes that, with the exception of testimony that was 

stricken as a result of objections by the prosecutor during the preliminary examination, AV’s 

testimony was read in its entirety. It is also notable that the jury did not convict Vary of the most 

serious charge: CSC-III. Because only AV’s testimony supported the CSC-III charge, it is clear 

that the jurors rejected at least some of AV’s testimony. Finally, the testimony of AV supporting 

the crimes of which Vary was convicted was corroborated by the testimony of Wright and Vary, 

by text messages that were admitted into evidence, and by evidence that Vary was found with $466

on his person on July 15, 2016. Additionally, evidence was presented that Vary attempted to 

intimidate AV and influence Wright, which supports an inference of consciousness of guilt. In 

light of these circumstances, we conclude that Vary has failed to carry his burden of demonstrating 

prejudice. See Carines, 460 Mich at 763.

Furthermore, even if we were to conclude that Vary’s substantial rights were affected, he 

would not automatically be entitled to reversal. Rather, “[r]eversal is warranted . . . when the 

plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error 

seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent 

of the defendant’s innocence.” Id. at 763-764. In this case, the trial judge’s absence was limited 

to a period of time when the jurors were re-read AV’s preliminary examination testimony. 

Additionally, overwhelming evidence supports that Vary had accepted money from Wright after 

Wright and AV engaged in a prearranged sexual encounter with the customer in Linwood and that 

Vary had aided in transporting AV to Linwood for that very purpose. Based on this record, we 

conclude that Vary is not entitled to relief under plain-error review.12

 

11 Vary relies heavily on Riley v Deeds, 56 F3d 1117 (CA 9, 1995) and Gomez v United States, 

490 US 858; 109 S Ct 2237; 104 L Ed 2d 923 (1989), to support his argument that this Court 

should find that structural error occurred because of the trial judge’s absence. However, federal 

circuit-court cases are not binding on this Court, People v Fomby, 300 Mich App 46, 50 n 1; 831 

NW2d 887 (2013), and we conclude that the facts in Gomez are distinguishable from the facts in 

this case.

12 Vary argues that a cautionary instruction should have been given so that the jury did not 

overemphasize the re-read testimony or take it out of context. But in the very case he cites in 

support of this argument, United States v Rodgers, 109 F3d 1138, 1145 (CA 6, 1997), the court 

applied a plain-error standard of review to the failure to give such an instruction. As already 

discussed, Vary has not established prejudice by virtue of the trial judge’s absence during the 
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In a pro se supplemental brief filed under Supreme Court Administrative Order No. 2004-

6, Vary argues that his due process rights were violated because the court clerk engaged in ex parte 

communications with the jury when she re-read AV’s testimony. To support this argument, he 

cites People v France, 436 Mich 138, 142; 461 NW2d 621 (1990), which concerned

“communication with a deliberating jury outside the courtroom and the presence of counsel.” In 

this case, however, it is not clear from the record that the prosecutor and defense counsel were not 

present when the readback occurred. Furthermore, in France, 436 Mich at 162, the Court stated 

that ex parte communications are not subject to automatic reversal. Rather, the France Court held 

that “[a] reviewing court must reverse the conviction [only] if it determines that a defendant has 

been prejudiced by an ex parte communication with the jury.” Id. at 163. Because we conclude 

that Vary was not prejudiced for the reasons already discussed, he is not entitled to relief on this 

ground. See id.

Next, Vary argues that the readback amounted to a violation of the right to a public trial. 

However, Vary cites no authority concerning the right to a public trial, and an appellant may not 

simply make an assertion and leave it up to this Court to search for authority to sustain his position. 

People v Bowling, 299 Mich App 552, 559-560; 830 NW2d 800 (2013). At any rate, even 

assuming that there was a violation of the right to a public trial, applicable caselaw, viewed in light 

of the facts at hand, indicates that reversal is not required. In People v Vaughn, 491 Mich 642, 

646, 655, 664-666; 821 NW2d 288 (2012), our Supreme Court, in analyzing a case wherein jury 

voir dire was conducted in a closed courtroom, implied that the closure of the courtroom was a 

plain, structural error. The Vaughn Court went on to state, however, that even if such a plain, 

structural error occurred, reversal was not required because the second “half” of the Carines plainerror standard did not warrant reversal. Id. at 666-669. In other words, the Court concluded that 

the closure of the courtroom did not “seriously affect[] the fairness, integrity, or public reputation 

of judicial proceedings” because “the closure of the courtroom was limited to a vigorous voir dire 

process that ultimately yielded a jury that satisfied both parties[.]” Id. at 668 (citation omitted). 

As already discussed, the jury in this case was merely read portions of already-admitted testimony, 

and defense counsel did not object. Because the fairness, integrity, or public reputation of judicial 

proceedings was not seriously affected, Vary is not entitled to relief. See id.

Vary also argues that his trial counsel was ineffective because counsel failed to advise Vary

of his right to be present for the readback. But a defendant bears the burden of establishing the 

factual basis for a claim of ineffective assistance of counsel, People v Hoag, 460 Mich 1, 6; 594 

NW2d 57 (1999), and Vary did not make any record in the trial court demonstrating that, had he 

been present for the readback, he would have acted in some manner leading to a reasonable 

probability of a different verdict. See People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015). 

Consequently, Vary’s ineffective assistance of counsel claim fails.

Finally, Vary argues that the readback amounted to an absence of counsel and violated his 

right to have counsel present during all stages of the proceedings. However, Vary has failed to 

establish that counsel was, indeed, absent from the readback, People v Elston, 462 Mich 751, 762; 

 

readback, and for similar reasons, we conclude that he has also not established prejudice with 

regard to the absence of a cautionary instruction. See Carines, 460 Mich at 763.
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641 NW2d 595 (2000), or that counsel was prevented from assisting Vary, United States v Cronic, 

466 US 648; 104 S Ct 2039; 80 L Ed 657 (1984). In fact, the record reflects that counsel knew 

about the procedure employed and did not object to it. Consequently, Vary’s right to counsel claim 

also fails.

We affirm Vary’s convictions, but vacate Vary’s sentences and remand for resentencing 

consistent with this opinion. We do not retain jurisdiction.

/s/ Stephen L. Borrello 

/s/ Colleen A. O’Brien 

/s/ Thomas C. Cameron