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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Plaintiff-Appellee, UNPUBLISHED June 27, 2017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: J ANSEN , P.J., and M URPHY and B ORRELLO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury convictions of four cou nts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)( ii ). The trial court senten ced defendant to a prison term of 12 to 40 years for each c onviction, to be served concurrently. For the reasons set forth in this opinion, we affirm.

A. FACTS

Defendant was convicted of se xually abusing his biological dau ghter in their family home in Southfield. The victim, aged 16 at the time of trial, testi fied that defendant began sexually abusing her in 2012, shortly after she turned 13 years old. Th e sexual assaults occurred “once or twice a week” in the living room 1 or her bedroom. Regarding th e 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 tw o occasions. She stated that a dditional uncharged sexual acts occurred at her paternal grandmother’s house in Detroit after d efendant moved out of the family home in April 2014. The last sexu al assault occurred at the gr andmother’s house in December
2014. The victim revealed the incidents to a classmate in Febr uary 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

1 Deoxyribonucleic acid (DNA) testing of semen discovered on a c ouch cushion in the living room revealed the presence of DNA that matched defendant’s DNA profile.-2- I. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the evidence was insufficient to e stablish his guilt of the two counts of CSC-I involving cunnilingus.

We review de novo a challenge to the sufficiency of the eviden ce. People v Bailey , 310 Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whet her sufficient evidence was presented at trial to support a conviction, this Court must vie w the evidence in a light most favorable to the prosecution and determine whether a rational t rier 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). Circumsta ntial evidence and reasonable inferences arising from the evidence can constitute satisfactory proof of the elem ents 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 cr edibility 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 se xual 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 rela ted to the victim.” MCL 750.520b(1)(b)( ii ). In challenging the two CSC-I convictions involving cunnilin gus, defendant argues only that the necessary element of penetration was not p roven because the evidence failed to establish beyond a reasonable doubt that he “inserted” his t ongue in the victim’s vagina. Preliminarily, defendant’s argument is based on the faulty unde rstanding 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 de fined as “sexual intercourse, cunnilingus, fellatio, anal interco urse, or any other intrusion , however slight, of any part of a person’s body or of any object into the genital or anal opening s of another person’s body. . . .” MCL 750.520a(r). Thus, an act of cunnilingus, by definition, c onstitutes 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 externa l genital organs of the female which lie between the labia, or the labia itself, or the mons p ubes.” People v Harris , 158 Mich App 463, 470; 404 NW2d 779 (1987). Thus, a “[d]efendant’s touc hing with his mouth of the urethral opening, vaginal openi ng, or labia establish[es] cunni lingus.” 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 “clitori s.” She knew the name of the specific area where defendant placed his tongue, but in respons e 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 defendan t performed two acts of cunnilingus. “There is no requirement, if cunnilingus is perfo rmed, that there be something additional in the way of penetration for that sexual act to hav e 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-3- Defendant argues that he was denied a fair trial because the p rosecutor made remarks during rebuttal argument that amounted to misconduct. As defen dant acknowledges, he did not object to the challenged remarks at trial. Therefore, this cla im 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 reve rse if the alleged prejudicial effect of the prosecutor’s conduct coul d 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 du ring rebuttal argument:

Now, when we’re talking about the counts that apply to the cun nilingus, if you recall correctly, [the victim] said, yeah, he licked my vag ina. She described feeling wetness and she said on her clitoris and in the area be tween 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’r e 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 he r 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 wi tness, 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 a t trial, People v Fyda , 288 Mich App 446, 461; 793 NW2d 712 (2010), and they need not state thei r 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 impro per remark might not warrant reversal if the prosecu tor is responding to defense cou nsel’s argument. Id. at 64.

The prosecutor’s remarks were re sponsive to defense counsel’s assertion in closing argument that defendant was not guilty of CSC-I involving cunni lingus because the testimony indicated that defendant only lic ked “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 respon sive nature of the prosecutor’s remarks, there was no plain error.

Furthermore, a timely objection to the challenged remarks coul d have cured any perceived prejudice by obtaining an appropriate cautionary instruction. See Watson , 245 Mich App at 586. And even though defenda nt did not request a curati ve 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 admi tted evidence, and that the jury
was to follow the court’s instructions. These instructions wer e sufficient to dispel any possible-4- prejudice and to protect def endant’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 f or 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 woul d only be warranted if the error resulted in the conviction of an actually innocent defendant or if the error seriously affect ed the fairness, integrity, or public reputation of judicial proceedings, independent of the defendan t’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 involv ing cunnilingus. Again, because cunnilingus, by definition, consti tutes sexual penetration, and “[d]efendant’s touching with his mouth of the urethral opening, vaginal opening, or labia establ ish cunnilingus,” Legg , 197 Mich App at 133, the parties’ disagr eement over whether defendant’s touching was “on” or “in” was
immaterial to whether defendantwas guilty of CSC-I involving c unnilingus. For these reasons,
defendant is not entitled to anew trial based on the prosecuto r’s remarks.

III. SCORING OF OV 11

Defendant argues that the trial court erred in assessing 50 po ints, rather than 25 points, for offense variable (OV) 11 of t he sentencing guidelines.

To preserve a challenge to the scoring of the sentencing guide lines, the challenge must be raised at sentencing, in a prope r motion for resentencing, or i n 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 sc oring 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 prejudic ed, meaning the error affected the outcome[.]” Jones , 297 Mich App at 83.

OV 11 addresses criminal sexual penetrations. MCL 777.41. Th e trial court must score 50 points if “[t]wo or more crimin al sexual penetrations occurr ed,” MCL 777.41(1)(a), and 25 points if “[o]ne criminal sexual penetration occurred.” MCL 77 7.41(1)(b). In determining the proper score for OV 11, a trial court may not count a sexual pe netration that formed the basis for the conviction, MCL 777.41(2)(c), but may score all other “sexu al penetrations of the victim by the offender arising out of the sentencing offense.” MCL 777.4 1(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 connectiv e relationship, a cause and effect relationship, of more than an incidental sort with the event ou t of which it has arisin.” Id. In People v Mutchie , 251 Mich App 273, 277; 650 NW2d 733 (2002), aff’d on other gr ounds 468 Mich 50 (2003), this Court affirmed the scoring of OV 11 where “all three sexual penetrations-5- perpetrated by defendant against the victim occurred at the sam e 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 a dditional sexual penetrations arose, sprung, or res ulted from a single sentencin g offense, i.e., from any one of the offenses resulting in a first-degree CSC conviction, and theref ore, the trial court erred in assessing 50 points for OV 11. However, the victim testified t hat on those occasions when defendant would lick her vagina, he “would do that first and th en he would put h is penis inside of [her].” In addition, the victim testified that when defendant was residing in the same residence, he would sexually pen etrate 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 c ircumstances and during the same course of conduct and there was a connective relationship betwe en the assaults. Johnson , 474 Mich at 101. In short, there was record evidence to support th e trial court’s scoring of OV 11.

Moreover, even if the 50-point s core for OV 11 constitutes pla in 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 convict ions, 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 th e 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 a t 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 mon ths—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 d ecision, and his sentence is with in 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. Defendantraises a separate
ineffective assistance of counsel claim, which we address in se ction IV, infra

.

Regarding his current argument, there is no indication that th e trial court would have imposed a lesser minimum sentence if OV 11 had been scored at 2 5 points. At sentencing, the trial court specifically recognized that the sentencing guideli nes are only advisory. See People v Lockridge , 498 Mich 358, 365; 870 NW2d 502 (2015). The trial court prov ided 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, w hich in any event falls square ly within even the altered guidelines range, and thus it is improbable that a lower guidel ines range would have caused the trial court to impose a lesser sentence. For these reasons, de fendant has not established that any
error affected his substantial ri ghts, or otherwise affected th e outcome of the proceedings. Accordingly, he is not en titled to be resentenced.-6- IV. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he was denied the effective assistance o f counsel at trial and at sentencing. We disagree. Because defendant did not raise an i neffective assistance of counsel claim in the trial court, our rev iew of this issue is limited t o mistakes apparent on the record. People v Heft , 299 Mich App 69, 80; 829 NW 2d 266 (2012). “To demonstrate in effective assistance of counsel, a defendantmust show that his or her attorney’s performance fell below an objective standard of reasonableness under prevailing professio nal 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 de fendant must show the probability that, but for counsel’s errors, the result of the proceedings w ould have been different.” Id

.

We reject defendant’s argument that he was denied the effectiv e assistance of counsel because defense counsel failed to object to the prosecutor’s re marks discussed in section II,

supra . As we concluded earlier, the prosecutor’s remarks were not c learly improper, but rather were a proper response to defen se counsel’s closing argument ad dressing the same matter. Therefore, defense counsel’s failure to object was not objectiv ely unreasonable. Further,
because the trial court’s instru ctions adequately protected def endant’s rights, and because the basis for defendant’s challenge to the remarks is legally flawe d, defendant cannot demonstrate a reasonable probability that, but for counsel’s failure to objec t, the result of the proceeding would
have been different. Id.

We also reject defendant’s argument that he was denied the eff ective assistance of counsel because defense counsel failed to object to the trial c ourt’s 50-point score for OV 11. There was evidence to support the trial court’s scoring of OV-1 1 and, given the trial court’s statements before imposing defe ndant’s sentence, there is no in dication that the court would have imposed a lesser minimum senten ce if only 25 points had been as sessed for OV 11. Again, the
trial court was aware of the a dvisory nature of the guidelines and plainly expresse d its belief that, given the evidence, the 12-year minimum sentence was a “fair se ntence.” It is noteworthy to point out again that defendant’s minimum sentence falls squarel y 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, def endant cannot demonstrate a reasonable probability that, but for counsel’s failure to objec t, the result of the proceeding would have been different. Consequent ly, 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 br ief filed pursuant to Supreme Court Administrati ve Order No. 2004-6, Standard 4. Non e of these claims have merit.

In his only clearly stated issue, defendant makes the same suf ficiency 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 guilt y beyond a reasonable doubt because the victim was lying and there were discrepancies in ot her prosecution witnesses’ testimony. In making these arguments, however, defendant ignor es that when evaluating the sufficiency of evidence, this Court is required to resolve all conflicts in the evidence in favor of-7- 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 evi dence rather than its sufficiency. People v Scotts , 80 Mich App 1, 9; 263 NW2d 272 (1977). Indeed, these same ch allenges were presented to the trier of fact during trial. This Court “will not interfere with the jury’s determinations regardi ng the weight of the evidence and the cre dibility of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 272 (2008).

Defendant states that the prosecutor “knew” that the victim wa s 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 knowi ngly 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 p lain error affecting substantial rights. Carines , 460 Mich at 763-764. A defendant’s right to due process “is violated when there is any reasonable likeli hood that a conviction was obtain ed 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 (201 3). Thus, a prosecutor has “ an obligation to correct perjured testimony that relates to the fact s 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 w ere instances when the victim’s tri al testimony differed from her p rior testimony, there is no indication that the prosecutor s ought to conceal those inconsis tencies from defendant. Id. In fact, defendant himself cites exam ples of where defense counsel cross-examined the victim about her inconsistent testimony. Additionally, testimony that confl icts 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 a ny portion of the victim’s trial testimony. Unger , 278 Mich App at 222.

Defendant appears to raise addi tional ineffective assistance o f counsel claims. Because defendant did not raise these claims in the trial court, our re view 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] f elt that needed to be asked and answered in reference to the buccal swab.” However, decisi ons 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 onmatters of trial strategy.” People v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011). Defense counsel has wide discretion regarding matte rs of trial strategy. Heft , 299 Mich App at 83. Furthermore, having reviewed defendant’s proposed que stion, defendant has not ident ified 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 th e factual predicate of his-8- ineffective assistance claim. People v Douglas , 496 Mich 557, 592; 852 NW2d 587 (2014).
Defendant also states that defe nse counsel “didn’t even point [ ] out” when a detective “lied about [the victim’s god brother] saying he played truth or dare.” Th e record does not support this claim. During direct examinati on, the detective testified that the god brother stated that he “does not remember playing truth or dar e with [the victim],” “[b]ut that’s not to say it didn’t happen.” During the defense’s case, defense counsel recalled the detecti ve 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 suppl emental brief, including police reports, a Child Protective Services investigation report, medical records, and laboratory reports. He urges this Court to “look and compare” the discrep ancies. However, defendant does not further explain how these doc uments support a claim for rel ief. “An appellant may not merely announce his position and leave it to this Court to disc over 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 aband onment of the issue.” People v

McPherson , 263 Mich App 124, 136; 687 NW2d 370 (2004). Consequently, de fendant has abandoned whatever remaining claims he believes might be suppor ted by the numerous
documents attached to his brief.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello