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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

June 27, 2017 

v No. 330600 

Oakland Circuit Court 

MICHAEL JOHN FRANKLIN, LC No. 2015-254477-FC 

 Defendant-Appellant. 

Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury convictions of four counts of first-degree criminal 

sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii). The trial court sentenced defendant to a prison 

term of 12 to 40 years for each conviction, to be served concurrently. For the reasons set forth in 

this opinion, we affirm. 

A. FACTS 

 Defendant was convicted of sexually abusing his biological daughter in their family home 

in Southfield. The victim, aged 16 at the time of trial, testified that defendant began sexually 

abusing her in 2012, shortly after she turned 13 years old. The sexual assaults occurred “once or 

twice a week” in the living room1

 or her bedroom. Regarding the four charged offenses, the 

victim testified that defendant penetrated her vagina with his penis on at least two occasions and 

licked her vagina on at least two occasions. She stated that additional uncharged sexual acts 

occurred at her paternal grandmother’s house in Detroit after defendant moved out of the family 

home in April 2014. The last sexual assault occurred at the grandmother’s house in December 

2014. The victim revealed the incidents to a classmate in February 2015. The defense theory at 

trial was that defendant did not do anything inappropriate, and that the victim’s testimony was 

not credible. 

B. ANALYSIS 

 

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 Deoxyribonucleic acid (DNA) testing of semen discovered on a couch cushion in the living 

room revealed the presence of DNA that matched defendant’s DNA profile. 
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I. SUFFICIENCY OF THE EVIDENCE 

 Defendant first argues that the evidence was insufficient to establish his guilt of the two 

counts of CSC-I involving cunnilingus. 

 We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 

Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was 

presented at trial to support a conviction, this Court must view the evidence in a light most 

favorable to the prosecution and determine whether a rational trier of fact could find that the 

essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 

Mich 127, 139; 815 NW2d 85 (2012). Circumstantial evidence and reasonable inferences arising 

from the evidence can constitute satisfactory proof of the elements of the crime. People v 

Brantley, 296 Mich App 546, 550; 823 NW2d 290 (2012) (citation omitted). “[A] reviewing 

court is required to draw all reasonable inferences and make credibility choices in support of the 

jury’s verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). 

 As applicable to this case, a “person is guilty of criminal sexual conduct in the first 

degree if he or she engages in sexual penetration with another person,” “that other person is at 

least 13 but less than 16 years of age,” and “the actor is related to the victim.” MCL 

750.520b(1)(b)(ii). In challenging the two CSC-I convictions involving cunnilingus, defendant 

argues only that the necessary element of penetration was not proven because the evidence failed 

to establish beyond a reasonable doubt that he “inserted” his tongue in the victim’s vagina. 

Preliminarily, defendant’s argument is based on the faulty understanding that, in order to convict 

him of CSC-I involving cunnilingus, it was necessary to find an actual physical intrusion into the 

victim’s genital opening. Sexual penetration is statutorily defined as “sexual intercourse, 

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a 

person’s body or of any object into the genital or anal openings of another person’s body. . . .” 

MCL 750.520a(r). Thus, an act of cunnilingus, by definition, constitutes an act of sexual 

penetration. People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992). Cunnilingus 

involves “the placing of the mouth of a person upon the external genital organs of the female 

which lie between the labia, or the labia itself, or the mons pubes.” People v Harris, 158 Mich 

App 463, 470; 404 NW2d 779 (1987). Thus, a “[d]efendant’s touching with his mouth of the 

urethral opening, vaginal opening, or labia establish[es] cunnilingus.” Legg, 197 Mich App at 

133. 

 The victim testified that on at least two occasions, defendant licked her genital area. 

Specifically, he placed his tongue on her “vagina” and “clitoris.” She knew the name of the 

specific area where defendant placed his tongue, but in response to additional questioning, she 

further indicated that defendant placed his tongue in the area where she wiped after going to the 

bathroom. This testimony was sufficient to prove that defendant performed two acts of 

cunnilingus. “There is no requirement, if cunnilingus is performed, that there be something 

additional in the way of penetration for that sexual act to have been performed.” Harris, 158 

Mich App at 470. Accordingly, there was sufficient evidence to support defendant’s two 

convictions of CSC-I involving cunnilingus. 

II. PROSECUTOR’S CONDUCT 
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 Defendant argues that he was denied a fair trial because the prosecutor made remarks 

during rebuttal argument that amounted to misconduct. As defendant acknowledges, he did not 

object to the challenged remarks at trial. Therefore, this claim is unpreserved. We review 

unpreserved claims of prosecutorial misconduct for plain error affecting defendant’s substantial 

rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). We will not reverse if 

the alleged prejudicial effect of the prosecutor’s conduct could have been cured by a timely 

instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). 

 Defendant argues that the prosecutor improperly injected “her personal understanding of 

a female’s anatomy” in the following emphasized remarks made during rebuttal argument: 

 Now, when we’re talking about the counts that apply to the cunnilingus, if 

you recall correctly, [the victim] said, yeah, he licked my vagina. She described 

feeling wetness and she said on her clitoris and in the area between where you 

wipe. Genital opening. That’s where it was. 

When she says—when she says “on,” when we talked more about the 

anatomy, her anatomy and what parts we’re talking about, she said he licked in 

the area where I wipe with—when I go to the bathroom, and she described her 

clitoris. That’s not on. That’s not outside her vagina, that’s inside. That’s in the 

opening, beyond the labia majora of her vagina. She might not know the 

technical terms for it, but that’s her genital opening. [Emphasis added.] 

 A prosecutor may not express inject herself into trial as a witness, People v Rodriguez, 

251 Mich App 10, 35; 650 NW2d 96 (2002), or make a statement of fact to the jury that is 

unsupported by the evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994). 

However, prosecutors are afforded great latitude when arguing at trial, People v Fyda, 288 Mich 

App 446, 461; 793 NW2d 712 (2010), and they need not state their inferences in the blandest 

possible language. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995); People v 

Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). An otherwise improper remark might not 

warrant reversal if the prosecutor is responding to defense counsel’s argument. Id. at 64. 

 The prosecutor’s remarks were responsive to defense counsel’s assertion in closing 

argument that defendant was not guilty of CSC-I involving cunnilingus because the testimony 

indicated that defendant only licked “on her vagina” and “[o]n is not entry into.” Even if the 

prosecutor discussed “her personal understanding of a female’s anatomy,” as defendant 

contends, defense counsel did the same during closing argument by suggesting that the areas that 

the victim described, i.e., her clitoris and the area that she wiped after going to the bathroom, 

were not a part of her genital opening. Considering the responsive nature of the prosecutor’s 

remarks, there was no plain error. 

 Furthermore, a timely objection to the challenged remarks could have cured any 

perceived prejudice by obtaining an appropriate cautionary instruction. See Watson, 245 Mich 

App at 586. And even though defendant did not request a curative instruction, the trial court 

ultimately instructed the jury that the lawyers’ statements and arguments are not evidence, that 

the jury was to decide the case based only on the properly admitted evidence, and that the jury 

was to follow the court’s instructions. These instructions were sufficient to dispel any possible 
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prejudice and to protect defendant’s substantial rights. People v Long, 246 Mich App 582, 588; 

633 NW2d 843 (2001). Defendant acknowledges the trial court’s instructions, but asks this 

Court to presume that the instructions were ineffective. It is well established, however, that 

jurors are presumed to have followed their instructions, People v Breidenbach, 489 Mich 1, 13; 

798 NW2d 738 (2011), and defendant has not provided any basis for concluding that the jurors 

failed to do so in this case. 

 In addition, to the extent that the prosecutor’s remarks could be considered improper, 

defendant bears the burden of showing actual prejudice, People v Pipes, 475 Mich 267, 274; 715 

NW2d 290 (2006), and reversal would only be warranted if the error resulted in the conviction of 

an actually innocent defendant or if the error seriously affected the fairness, integrity, or public 

reputation of judicial proceedings, independent of the defendant’s innocence. Carines, 460 Mich 

at 752-753, 763-764. Similar to his argument in section I, supra, defendant’s quarrel with the 

prosecutor’s remarks is based on the faulty understanding that it was necessary for the jury to 

find actual penetration in order to convict him of CSC-I involving cunnilingus. Again, because 

cunnilingus, by definition, constitutes sexual penetration, and “[d]efendant’s touching with his 

mouth of the urethral opening, vaginal opening, or labia establish cunnilingus,” Legg, 197 Mich 

App at 133, the parties’ disagreement over whether defendant’s touching was “on” or “in” was 

immaterial to whether defendant was guilty of CSC-I involving cunnilingus. For these reasons, 

defendant is not entitled to a new trial based on the prosecutor’s remarks. 

III. SCORING OF OV 11 

 Defendant argues that the trial court erred in assessing 50 points, rather than 25 points, 

for offense variable (OV) 11 of the sentencing guidelines. 

 To preserve a challenge to the scoring of the sentencing guidelines, the challenge must be 

raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in 

this Court. MCL 769.34(10); MCR 6.429(C); People v Jones, 297 Mich App 80, 83; 823 NW2d 

312 (2012). Because defendant did not so challenge the scoring of OV 11, this issue is not 

preserved for appeal. Therefore, we review this unpreserved scoring challenge for plain error 

affecting defendant’s substantial rights. Id.; Carines, 460 Mich at 752-753, 763-764. 

“Substantial rights are affected when the defendant is prejudiced, meaning the error affected the 

outcome[.]” Jones, 297 Mich App at 83. 

 OV 11 addresses criminal sexual penetrations. MCL 777.41. The trial court must score 

50 points if “[t]wo or more criminal sexual penetrations occurred,” MCL 777.41(1)(a), and 25 

points if “[o]ne criminal sexual penetration occurred.” MCL 777.41(1)(b). In determining the 

proper score for OV 11, a trial court may not count a sexual penetration that formed the basis for 

the conviction, MCL 777.41(2)(c), but may score all other “sexual penetrations of the victim by 

the offender arising out of the sentencing offense.” MCL 777.41(1)(a). The phrase “arising out 

of” suggests “a causal connection between two events of a sort that is more than incidental.” 

People v Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006). “Something that ‘aris[es] out of,’ 

or springs from or results from something else, has a connective relationship, a cause and effect 

relationship, of more than an incidental sort with the event out of which it has arisin.” Id. In 

People v Mutchie, 251 Mich App 273, 277; 650 NW2d 733 (2002), aff’d on other grounds 468 

Mich 50 (2003), this Court affirmed the scoring of OV 11 where “all three sexual penetrations 
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perpetrated by defendant against the victim occurred at the same place, under the same set of 

circumstances, and during the same course of conduct.” Id. 

 Defendant argues that there was no evidence that two or more additional sexual 

penetrations arose, sprung, or resulted from a single sentencing offense, i.e., from any one of the 

offenses resulting in a first-degree CSC conviction, and therefore, the trial court erred in 

assessing 50 points for OV 11. However, the victim testified that on those occasions when 

defendant would lick her vagina, he “would do that first and then he would put his penis inside 

of [her].” In addition, the victim testified that when defendant was residing in the same 

residence, he would sexually penetrate her at night on multiple occasions in the living room or in 

her bedroom. Like in Mutchie, 251 Mich App at 277, here, the victim’s testimony showed that

these penetrations occurred at the same place, under the same circumstances and during the same 

course of conduct and there was a connective relationship between the assaults. Johnson, 474 

Mich at 101. In short, there was record evidence to support the trial court’s scoring of OV 11. 

 Moreover, even if the 50-point score for OV 11 constitutes plain error, it does not entitle 

defendant to resentencing because it did not affect defendant’s substantial rights. The trial court 

scored the guidelines for one of defendant’s four CSC-I convictions, which is a class A offense. 

MCL 777.16y. Defendant received a total OV score of 100 points, which combined with his 20 

prior record variable points, placed him in the C-VI cell of the applicable sentencing grid, for 

which the minimum sentence range is 135 to 225 months. MCL 777.62. Defendant argues that 

OV 11 should have been scored at 25 points. The additional 25 points for OV 11 increased 

defendant’s total OV score from 75 points to 100 points, which in turned changed his placement 

from OV Level IV (60 - 79 points) to OV Level VI (100+ points), resulting in a higher 

guidelines range. The guidelines range for an offender falling in the C-IV cell is 108 to 180 

months. In general, a defendant is entitled to resentencing if a scoring error alters the sentencing 

guidelines range. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). 

 In this case, defendant received a minimum sentence of 144 months—well within the 

altered guidelines range of 108 to 180 months. If a defendant has failed to preserve his challenge 

to the trial court’s scoring decision, and his sentence is within the appropriate guidelines range, 

“the defendant cannot raise the error on appeal except where otherwise appropriate, as in a claim 

of ineffective assistance of counsel.” Francisco, 474 Mich at 89 n 8. Defendant raises a separate 

ineffective assistance of counsel claim, which we address in section IV, infra. 

 Regarding his current argument, there is no indication that the trial court would have 

imposed a lesser minimum sentence if OV 11 had been scored at 25 points. At sentencing, the 

trial court specifically recognized that the sentencing guidelines are only advisory. See People v 

Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). The trial court provided reasons for the 

sentences it imposed, stating that “having heard the testimony, having looked at the submissions, 

looking at the evidence, does feel a fair sentence in this matter would be 12 years to 40 years.” 

(Emphasis added.) In other words, the trial court did not rely on the guidelines when imposing 

defendant’s 144-month sentence, which in any event falls squarely within even the altered 

guidelines range, and thus it is improbable that a lower guidelines range would have caused the 

trial court to impose a lesser sentence. For these reasons, defendant has not established that any 

error affected his substantial rights, or otherwise affected the outcome of the proceedings. 

Accordingly, he is not entitled to be resentenced. 
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IV. EFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant argues that he was denied the effective assistance of counsel at trial and at 

sentencing. We disagree. Because defendant did not raise an ineffective assistance of counsel 

claim in the trial court, our review of this issue is limited to mistakes apparent on the record. 

People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective 

assistance of counsel, a defendant must show that his or her attorney’s performance fell below an 

objective standard of reasonableness under prevailing professional norms and that this 

performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 

224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show the probability 

that, but for counsel’s errors, the result of the proceedings would have been different.” Id. 

 We reject defendant’s argument that he was denied the effective assistance of counsel 

because defense counsel failed to object to the prosecutor’s remarks discussed in section II, 

supra. As we concluded earlier, the prosecutor’s remarks were not clearly improper, but rather 

were a proper response to defense counsel’s closing argument addressing the same matter. 

Therefore, defense counsel’s failure to object was not objectively unreasonable. Further, 

because the trial court’s instructions adequately protected defendant’s rights, and because the 

basis for defendant’s challenge to the remarks is legally flawed, defendant cannot demonstrate a 

reasonable probability that, but for counsel’s failure to object, the result of the proceeding would 

have been different. Id. 

 We also reject defendant’s argument that he was denied the effective assistance of 

counsel because defense counsel failed to object to the trial court’s 50-point score for OV 11. 

There was evidence to support the trial court’s scoring of OV-11 and, given the trial court’s 

statements before imposing defendant’s sentence, there is no indication that the court would have 

imposed a lesser minimum sentence if only 25 points had been assessed for OV 11. Again, the 

trial court was aware of the advisory nature of the guidelines and plainly expressed its belief that, 

given the evidence, the 12-year minimum sentence was a “fair sentence.” It is noteworthy to 

point out again that defendant’s minimum sentence falls squarely within the altered guidelines 

range of 108 to 180 months, and thus does not detract from the trial court’s view that a 12-year 

minimum sentence was a “fair sentence.” For these reasons, defendant cannot demonstrate a 

reasonable probability that, but for counsel’s failure to object, the result of the proceeding would 

have been different. Consequently, defendant cannot establish a claim of ineffective assistance 

of counsel. 

V. DEFENDANT’S STANDARD 4 BRIEF 

 Defendant raises additional claims in a pro se supplemental brief filed pursuant to 

Supreme Court Administrative Order No. 2004-6, Standard 4. None of these claims have merit. 

 In his only clearly stated issue, defendant makes the same sufficiency argument that we 

have already addressed, and rejected, in section I, supra. Within this issue, defendant appears to 

also argue that the evidence was insufficient to find him guilty beyond a reasonable doubt 

because the victim was lying and there were discrepancies in other prosecution witnesses’ 

testimony. In making these arguments, however, defendant ignores that when evaluating the 

sufficiency of evidence, this Court is required to resolve all conflicts in the evidence in favor of 
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the prosecution. People v Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). Defendant’s 

challenges are related to the weight and credibility of the evidence rather than its sufficiency. 

People v Scotts, 80 Mich App 1, 9; 263 NW2d 272 (1977). Indeed, these same challenges were 

presented to the trier of fact during trial. This Court “will not interfere with the jury’s 

determinations regarding the weight of the evidence and the credibility of the witnesses.” People 

v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). 

 Defendant states that the prosecutor “knew” that the victim was lying and cites instances 

where the victim’s testimony differed from her prior testimony and her classmate’s trial 

testimony, thereby appearing to argue that the prosecutor knowingly presented perjured 

testimony by the victim. Because defendant did not object to the prosecutor’s conduct below, we 

review this unpreserved claim of prosecutorial misconduct for plain error affecting substantial 

rights. Carines, 460 Mich at 763-764. A defendant’s right to due process “is violated when 

there is any reasonable likelihood that a conviction was obtained by the knowing use of perjured 

testimony.” People v Gratsch, 299 Mich App 604, 619; 831 NW2d 462 (2013), vacated in part 

on other grounds 495 Mich 876 (2013). Thus, a prosecutor has “an obligation to correct perjured 

testimony that relates to the facts of the case or a witness’s credibility.” Id. 

 The inconsistencies listed by defendant do not establish that the prosecutor knowingly 

used perjured testimony to obtain defendant’s conviction. Gratsch, 299 Mich App at 619; 

People v Parker, 230 Mich App 677, 690; 584 NW2d 753 (1998). Although there were 

instances when the victim’s trial testimony differed from her prior testimony, there is no 

indication that the prosecutor sought to conceal those inconsistencies from defendant. Id. In 

fact, defendant himself cites examples of where defense counsel cross-examined the victim about 

her inconsistent testimony. Additionally, testimony that conflicts with other witnesses’ 

testimony does not lead to the conclusion that the prosecutor knowingly used perjured testimony. 

Defendant’s argument does not involve an issue of perjury, but of credibility. Defense counsel 

explored the credibility problems with the victim’s testimony, as well as other prosecution 

witnesses. The jury was free to believe or disbelieve all or any portion of the victim’s trial 

testimony. Unger, 278 Mich App at 222. 

 Defendant appears to raise additional ineffective assistance of counsel claims. Because 

defendant did not raise these claims in the trial court, our review of this issue is limited to 

mistakes apparent on the record. Heft, 299 Mich App at 80. 

 Defendant states that there were “questions and answers [he] felt that needed to be asked 

and answered in reference to the buccal swab.” However, decisions about what questions to ask 

are matters of trial strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and 

“this Court will not second-guess defense counsel’s judgment on matters of trial strategy.” 

People v Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). Defense counsel has wide 

discretion regarding matters of trial strategy. Heft, 299 Mich App at 83. Furthermore, having 

reviewed defendant’s proposed question, defendant has not identified any omission that 

prejudiced his case. 

 Defendant also states that he noticed “a lot of wrong doing,” informed defense counsel, 

and defense counsel “kept looking over it.” Defendant provides no evidence to support this 

cursory complaint. Defendant has the burden of establishing the factual predicate of his 
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ineffective assistance claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). 

Defendant also states that defense counsel “didn’t even point [] out” when a detective “lied about 

[the victim’s god brother] saying he played truth or dare.” The record does not support this 

claim. During direct examination, the detective testified that the god brother stated that he “does 

not remember playing truth or dare with [the victim],” “[b]ut that’s not to say it didn’t happen.” 

During the defense’s case, defense counsel recalled the detective and elicited that the detective 

did not write in his police report that the god brother stated that “he could have” played truth or 

dare with the victim; the detective wrote only that the witness said he never played the game 

with her. Therefore, these claims are without merit. 

 Lastly, defendant has attached numerous documents to his supplemental brief, including 

police reports, a Child Protective Services investigation report, medical records, and laboratory 

reports. He urges this Court to “look and compare” the discrepancies. However, defendant does 

not further explain how these documents support a claim for relief. “An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims, nor may he give only cursory treatment with little or no citation of supporting 

authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The failure to 

brief the merits of an allegation of error constitutes an abandonment of the issue.” People v 

McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004). Consequently, defendant has 

abandoned whatever remaining claims he believes might be supported by the numerous 

documents attached to his brief. 

 Affirmed. 

/s/ Kathleen Jansen 

/s/ William B. Murphy 

/s/ Stephen L. Borrello