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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 18, 2015

v No. 321246 St. Clair Circuit Court CORTEZ DOMINIQUE KIDD, LC No. 13-002931-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and S AWYER and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals by right his jury-trial conviction of one co unt of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (victim un der 13 years of age), for which he was sentenced to 5 to 15 years in prison. We affirm in part , vacate in part, and remand for further proceedings consi stent with this opinion.

I

Defendant was originally charge d with one count of first-degre e criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and one count of CSC-II for allege dly engaging in sexual penetration and contact with the 12-year-old victim on Thanksgi ving Day 2012. The jury convicted defendant of CSC-II but deadlocked with respect to th e charge of CSC-I. Following trial, defendant agreed to plead no contest to a charge of thir d-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victi m at least 13 but under 16 years of age) in exchange for the prosecutor’s agreement not to ret ry him on the charge of CSC-I.

The trial court determined that defendant’s no-contest plea wa s knowing, voluntary, and intelligent, 1 accepted defendant’s plea, and entered a judgment of convictio n on the charge of CSC-III. The court then referred both of defendant’s convictio ns to the probation department for the preparation of a Presentence Investigation Report (PSIR).

1 In accordance with MCR 6.302(D)(2), the trial court did not di rectly question defendant about his participation in the crime. Instead, the court relied on t he trial testimony that it had already heard to establish a factual basis for defendant’s plea.-2- CSC-II and CSC-III are in the same offense category—crimes aga inst a person. MCL 777.16y. Therefore, the same offense variables (OVs) and prior record variables (PRVs) apply to both felonies. MCL 777.21(1)(a); MCL 777.21(1)(b); MCL 777. 22(1). The probation department prepared a PSIR and sc ored the statutory sentencing guidelines for CSC-III, the more serious conviction. 2 The probation department calculated a total OV score of 30 an d a total PRV score of 40. At the sentencing hearing, however, all parties a greed that defendant’s total PRV score should be corrected and lo wered to 30. Defendant does no t challenge the corrected scoring of the sentencing guidelines on appeal.

Defendant’s total OV score of 3 0 and total PRV score of 30 pla ced him in cell D-III on the sentencing grid for Class B felonies, 3 with a recommended minimum sentence range of 57 to 95 months. MCL 777.63. The trial court sentenced defendant to concurrent prison terms of 7 years (84 months) to 15 years for the CSC -III conviction, and 5 years (60 months) to 15 years for the CSC-II conviction.

II

We reject defendant’s claims of prosecutorial misconduct and r elated claim of ineffective assistance of trial counsel.

“The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.” People v Mesik (On Reconsideration) , 285 Mich App 535, 541; 775 NW2d 857 (2009). “[A]llegations of prosecutorial misconduct are conside red on a case-by-case basis, and the reviewing court must consider the prosecutor’s remarks in c ontext.” People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). We review unpreserved claims of prosecutorial misconduct for outcome-determinative, plain error. People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008); see also People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Because no Ginther 4 hearing was held, our review of defendant’s claim of ineffecti ve assistance of counsel is limited to mistakes apparent on the re cord. People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007).

Defendant first argues that t he prosecutor committed misconduc t when she referred to a portion of defense coun sel’s closing argument “as a ‘red herrin g.’ ” We disagree.

2 When concurrent sentences are to be imposed for multiple felon y convictions in the same offense category, the probation department is only required to include in the PSIR the recommended minimum sentence range for the felony “having the h ighest crime class.” MCL 771.14(2)(e). Both CSC-II and CSC-III carry a statutory maximu m sentence of 15 years in prison. MCL 750.520c(2)(a); MCL 750.520d(2). However, whereas CSC-III (which involves sexual penetration) is a Class B felony, CSC-II (which involves sexual contact without penetration) is a Class C felony. MCL 777.16y.

3 As noted, CSC-III, the more serious of defendant’s two convict ions, is a Class B felony. MCL 777.16y.

4 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- Michigan State Police forensic scientist Jennifer Summers test ified that there was no seminal fluid present on the vaginal and cervical swabs collect ed from the victim. Summers also testified that no sperm cells were present on the microscope sl ides prepared in this case. Michigan State Police forensic scientist Catherine Maggert test ified that she had not discovered any DNA consistent with defendant ’s profile on the vaginal and vulvar swabs collected from the victim. Maggert also testified that she had not located any sk in cells containing DNA consistent with defendant’s profile.

In his closing argument, defense counsel repeatedly stressed t hat no semen was found during the laboratory tests of the swabs collected from the vic tim. Defense counsel pointed to (1) the lack of evidence that defendant had used a condom and ( 2) the victim’s testimony that she had not wiped or washed away any semen after the sexual act. C ounsel stated, “So the way I look at it, the only possible explanation for the no semen is t hat there was absolutely no ejaculation at all.” Defense counsel then referred to the test imony of Summers and Maggert and argued that “no drops of seminal fluid [] were expelled at all during this whole 10 or 15 minute period.” 5 Defense counsel continued:

I just don’t think it adds up. If you believe [the victim] tha t this went on for 10 or 15 minutes, there should be some seminal fluid. There should b e some sperm. There should be something there.

Defense counsel also questioned a comment that the prosecutor m ade during her closing argument, wherein she stated that it is “really hard” to find s kin cells containing an assailant’s DNA.

In rebuttal, the prosecutor argued that defense counsel’s rema rk concerning the absence of semen and sperm was a “red herring” because defendant could have penetrated the victim’s vagina without ever ejaculating or depositing seminal fluid. T he prosecutor explained that she was not required to prove that defendant ejaculated—only that d efendant’s penis penetrated the victim’s vagina. 6 The prosecutor argued that even if defendant did ejaculate, t here still might not have been any semen or sperm found on the swabs. Alternatively , citing the victim’s testimony that she pushed and fought with defendant during the sex act, t he prosecutor suggested that the victim might have gotten away from defendant before he was able to ejaculate. The prosecutor also pointed to Maggert’s testimony that it is not common to fi nd an assailant’s skin cells in sexual-assault cases.

“A prosecutor’s comments must be considered in light of defens e arguments,” People v Messenger
, 221 Mich App 171, 181; 561 NW2d 463 (1997), and a prosecutor “i s not required to

5 The victim had estimated that the sex act with defendant laste d for approximately 10 or 15 minutes.

6 “Sexual penetration” is defined in pertinent part as “sexual i ntercourse . . . or any other intrusion, however slight , of any part of a person’s body . . . into the genital or anal openings of another person’s body, but emission of semen is not required .” MCL 750.520a(r).-4- state inferences and conclusions in the blandest possible terms ,” Unger , 278 Mich App at 239. “ ‘[A]n otherwise improper remark may not rise to an error requ iring reversal when the prosecutor is responding to the defense counsel’s argument.’ ” People v Watson , 245 Mich App 572, 593; 629 NW2d 411 (2001), quoting People v Kennebrew , 220 Mich App 601, 608; 560 NW2d 354 (1996).

We acknowledge that it is generally improper for a prosecutor to argue that defense counsel has attempted to mislead t he jury through the use of “r ed herrings.” Unger , 278 Mich App at 238. But that is not what happened here. The prosecuto r, in rebuttal, was merely responding to defense counsel’s closing argument by explaining that (1) the absence of semen or sperm did not prove that no penetration occurred, and (2) the a bsence of defendant’s skin cells on the victim was not unexpected and did not prove that no sexu al assault happened. These prosecutorial comments were based on reasonable inferences aris ing from the properly admitted evidence. People v Bahoda , 448 Mich 261, 282; 531 NW2d 659 (1995). Defendant was not denied a fair and impartial trial by the prosecutor’s remarks d uring her rebuttal argument. 7 See Kennebrew , 220 Mich App at 608.

Defendant also claims that the prosecutor committed misconduct by shifting the burden of proof. It is true that “the prosecutor may not attempt to s hift the burden of proof.” People v Abraham , 256 Mich App 265, 273; 662 NW2d 836 (2003). However, “ ‘ “[i ]t is not error to comment on the failure of the defense to produce evidence on a phase of the defense upon which the defendant seeks to rely.” ’ ” People v Reid , 233 Mich App 457, 477-478; 592 NW2d 767 (1999), quoting People v Fields , 450 Mich 94, 111 n 21; 538 NW2d 356 (1995), in turn quoting United States v Bright , 630 F2d 804, 825 (CA 5, 1980). Burden-shifting occurs when t he prosecution attempts to absolve itself “from proving each eleme nt of the crime beyond a reasonable doubt.” Fields , 450 Mich at 116.

During rebuttal argument, the prosecutor challenged defendant’ s theory that the victim had fabricated the allegations o f sexual assault and asked the jury why the victim would have made up such a claim, particularly given that the allegations w ould require her to go through an invasive physical examination. The prosecutor remarked that th e defense “never did answer that question,” but also informed the jury that “[t]hey don’t have t o.”

This statement did not shift the burden of proof. Although th e prosecutor commented that the defense “never did answer that question,” she informed the jury that the defense was under no obligation to do so. The remark was isolated, brief, and did not affect the outcome of defendant’s trial. Unger , 278 Mich App at 239.

7 We further note that these challenged prosecutorial remarks we re made in reference to the charge of CSC-I—a charge on which the jury deadlocked. Sexual penetration is not an element of CSC-II. Accordingly, even if the prosecutor technically exc eeded the bounds of proper rebuttal argument in this instan ce, defendant is still unable t o demonstrate any prejudice flowing from the remarks.-5- Moreover, following the prosecu tor’s rebuttal argument, the tr ial court instructed the jurors that defendant was “presumed to be innocent” and that “y ou must start with the presumption that the Defendant i s innocent.” The trial court c ontinued:

Every crime is made up of parts called elements. The Prosecut or must prove each element of the crim e beyond a reason able doubt. The Defendant is not required to prove his innocence or do anything. If you find th at the Prosecution has not proven every element beyond a reasonable doubt, then yo u must find the Defendant not guilty.

The court further instructed the jurors that they should “only consider the evide nce that has been properly admitted in this case” and that “[t]he lawyers’ statem ents and arguments are [] not evidence.” Jurors are presumed to follow their instructions. People v Mette , 243 Mich App 318, 330-331; 621 NW2d 713 (2000). We conclude that the trial court ’s instructions were sufficient to alleviate any possible prejudice flowing from the prosecutor ’s remark. Unger , 278 Mich App at 237, 238.

Having found no prosecutorial misconduct, we cannot agree with defendant’s assertion that defense counsel performed deficiently by failing to object to the challenged prosecutorial comments. “Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010); see also Unger , 278 Mich App at 257.

III

We vacate defendant’s sentence of 5 to 15 years in prison for CSC-II and remand for resentencing on the CSC-II conviction in accordance with the se ntencing grid for Class C felonies.

A

As noted earlier, the probation department and trial court sco red the guidelines with respect to defendant’s plea-based conviction of CSC-III only, a nd determined defendant’s sentences for both CSC-III (a Class B felony) and CSC-II (a Cla ss C felony) by reference to the sentencing grid for Class B felonies, MCL 777.63. Nevertheless , due to the unique circumstances of this case, we conclude that defendant must be resentenced on hi s conviction of CSC-II with respect to the sent encing grid for Class C felonies , MCL 777.64.

It is undisputed that the victim was 12 years old at the time of the offense. Yet the trial court accepted defendant’s plea of no contest to a charge of CS C-III under MCL 750.520d(1)(a), which provides:

(1) A person is guilty of crimi nal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:

(a) That other person is at least 13 years of age and under 16 years of age. [Emphasis added.]-6- Defendant’s conduct at issue in this case, sexual penetration o f a 12-year-old victim, did not fall within the scope of MCL 750.520d(1 )(a). Indeed, sexual penetra tion of a victim under the age of 13 falls exclusively within the scope of the CSC-I statute. Ac cordingly, defendant’s no-contest plea to the charge of CSC-III was invalid.

Despite the invalidity of defe ndant’s no-contest plea, however , we are unable to vacate his conviction of CSC-III. Neither the validity of defendant’s no-contest plea nor the legality of his resulting CSC-III conviction is before this Court. Indeed, this Court denied defendant’s application for leave to appeal from his plea-based conviction of CSC-III. People v Kidd
, unpublished order of the Court of Appeals, entered February 4, 2015 (Docket No. 325084). We may not address the validity of defendant’s plea-based convicti on of CSC-III in this appeal by right from defendant’s jury-trial conviction of CSC-II. See Co nst 1963, art 1, § 20 (stating that “except as provided by law, an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court”).

Notwithstanding our inability to vacate defendant’s no-contest plea, we conclude that the invalid plea and resulting convi ction of CSC-III should not hav e played any role in the determination of defendant’s sen tence for CSC-II. We therefore vacate defendant’s sentence for CSC-II (which was determined with reference to the sentencing g rid for Class B felonies), and remand to the trial court for r esentencing on defendant’s CSC-I I conviction in accordance with the sentencing grid for Class C felonies, MCL 777.64. Assuming that defendant’s total OV score of 30 and total PRV score of 30 do not change on remand, he wil l fall within cell D-III on the sentencing grid for Class C felonies, calling for a recommended minimum sentence range of 29 to 57 months. 8 Id

.

B

Defendant also argues that he was sentenced, at least in part, on the basis of irrelevant information. He contends that his score on the Department of C orrections Probation Risk Classification Assessment (CFJ- 221) should have been stricken f rom the PSIR.

At the sentencing hearing, the prosecutor cited the probation risk-classification assessment score in defendant’s PSIR:

The problem I have with this case is you have the assessment f rom the Department of Corrections utilizing their [sic], you know, thei r [sic] risk classification measures . . . which usually I’ve had problems w ith because they [sic] seem to never find risk associated with classifying offen ders, but in this case it did, and I guess that’s a red flag to me.

The trial court sentenced defendant without indicating whether it was considering the riskclassification assessment information.

8 We note that defendant’s existing sentence for the CSC-II conv iction, 5 years (60 months) to 15 years in prison, exceeds this range.-7- After the appointment of appe llate counsel, defendant moved fo r resentencing and correction of the PSIR. In part icular, defense counsel request ed that the court strike the results of the risk-classification assessment from the PSIR. Defense coun sel asserted that the information was irrelevant because it was not useful in determining the len gth of defendant’s p rison sentence. Defense counsel also noted that it was unclear from the transcr ipt of the sentencing hearing whether the trial court had cons idered the risk-classification assessment when imposing defendant’s original sentences.

At the hearing on defendant’s m otion, the trial court stated t hat it did not know exactly why the risk-classification assessment information was included in the PSIR, but observed that the probation department routinely included such information in PSIRs in St. Clair County. The court continued:

I’m use[d] to seeing [the risk-classification assessment infor mation] and this is the first time that I’ve had anyone, anyone question wh ether it should or shouldn’t be a part of the [PSIR] . How it gets used or not use d at this level we’ve already talked about that, but a t this point I don’t see any pa rticular reason to strike it from the [PSIR].

To whatever extent I’m assuming that there is some [Department of Corrections] protocol or someth ing that [the probation officer] thinks is a [Department of Corrections] protocol that prompts that informat ion into the [PSIR] and whether it’s intended for our use or whether it’s in tended later on when parole is being considered, I don’t know. Much of what go es on at the [Department of Corrections] and parole level is a mystery to al l of us and . . . it’s unfortunate that it is, but it is . And so I’m going to leave i t in [the PSIR] for those reasons and if somebody tells me I’m wrong, then they can tell me I’m wrong.

MCL 771.14(2) and MCR 6.425(A)(1) describe the information tha t must be included in a PSIR. Neither MCL 771.14(2) nor MCR 6.425(A)(1) expressly me ntions the Department of Corrections Probation Risk Class ification Assessment (CFJ-221). However, both the statute and court rule allow the probation de partment to include “[a]n eval uation of and a prognosis for the person’s adjustment in the community based on factual informati on contained in the report.” MCL 771.14(2)(a); see also MCR 6.425(A)(1)(j). Whether this in cludes the risk-classification assessment information at issue in this case has never been add ressed by any appellate court in Michigan. Furthermore, we do not have a copy of Department of Corrections form CFJ-221 or any other information concerning the department’s risk-classifi cation scheme, we are currently unable to answer this question.

It is well-settled that the trial court must respond when a de fendant challenges information contained in the PSIR. People v Spanke , 254 Mich App 642, 648; 658 NW2d 504 (2003). The sentencing court may choose to simply disregard th e challenged information. However, if the court chooses this option, it must clearly indi cate that it did not consider the challenged information in determining the sentence. Id . at 648-649. “If the court finds the challenged information inaccurate or irrelevant, it must strike that information from the PSIR before sending the report to the Department of Corrections.” Id . at 649; see also People v Hoyt
, 185 Mich App 531, 535; 462 NW2d 793 (1990).-8- In the instant case, the trial court did not determine whether the risk-classification information in the PSIR was relevant or irrelevant. The court insinuated that it had not relied on the risk-classification inform ation, referring to the Departmen t of Corrections’s procedures as “a mystery”; nevertheless, the court declined to strike the challe nged information, stating merely that it did not “see any particular reason” to do so. The cour t never “clearly ind icate[d]” whether it had considered the risk-classification information in imposi ng defendant’s sentences. Spanke
, 254 Mich App at 648-649.

It may well be that the trial court did not consider the chall enged risk-classification assessment information when imposing defendant’s sentences. Bu t because the court did not state so clearly or strike the information from the PSIR, we ca n merely speculate as to whether the court relied on the information. Hoyt , 185 Mich App at 536. On remand, and prior to resentencing, the trial court sh all determine whether the chall enged risk-classification assessment information is relevant or irrelevant to determining the length of defendant’s prison sentence for CSC-II. Id . If the court determines that the risk-classification informa tion is irrelevant for the purpose of sentencing, it shall clearly state on the record tha t it has not considered the information and shall strike the information from the PSIR. In making this determination, the trial court shall take i nto account MCL 771.14 and MCR 6.425.

IV

We affirm defendant’s conviction of CSC-II but vacate his sent ence for CSC-II and remand for resentencing in accordance with the grid for Class C felonies. On remand, and prior to resentencing, the trial court shall also resolve defendant’s challenge to the risk-classification assessment information contained in the PSIR consistent with th is opinion. Upon imposing a new sentence for defendant’s CSC-II conviction, the trial court shall amend the judgment of sentence accordingly.

Affirmed in part, vacated in par t, and remanded for further pr oceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Kathleen Jansen /s/ David H. Sawyer /s/ Karen M. Fort Hood