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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 11, 2015

v No. 321329 Cass Circuit Court JAMES KIRK PARISH, LC No. 12-010293-FC

Defendant-Appellant.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

. Defendant, James Kirk Parish, appeals as of right his jury tri al convictions for two counts of First-Degree Criminal Se xual Conduct (CSC I), MCL 750.520b(1 )(a) (sexual penetration, person under 13), and two counts of Second-Degree Criminal Sexu al Conduct (CSC II), MCL 750.520c(1)(a) (sexual contact, person under 13). The trial co urt sentenced defendant to concurrent sentences of 25 to 50 years’ imprisonment for CSC I, and 71 months to 15 years’ imprisonment for CSC II. We affirm.

In 2012, the victim disclosed to her mother that defendant had sexually assaulted her in 2007 and 2008, when she was five or six years old. At trial, t he victim testified to defendant’s acts of criminal sexual conduct, a nd her mother testified to th e circumstances surrounding the victim’s initial disclosure of t he abuse. An officer who inter viewed defendant testified regarding defendant’s post-examination ad mission that he inappropriately touched the victim on two occasions. 1 And, a child psychology expert testified to the phenomena of delayed disclosure among sexual abuse victims, as well as the tendency of abusers to minimize their abuse and prevent victim disclosure through threats and guilt. The jury convicted defendant as previously described.

1 The officer actually administered a polygraph examination to d efendant, but the jury was not apprised that the interview wa s in the context of a polygraph.-2- On appeal, defendant challenges the trial court’s admission of the police officer’s testimony regarding defendant’s admission that he twice inappro priately touched the victim, arguing that his waiver of Miranda 2 rights was not knowing and intelligent. We review the trial court’s decision to admit or exc lude evidence for an abuse of d iscretion, People v Starr , 457 Mich 490, 494; 577 NW2d 673 (1998), and review de novo question s of law regarding whether a rule precludes the admission of evidence, People v Washington , 468 Mich 667, 670-671; 664 NW2d 203 (2003).

We evaluate whether defendant’s waiver was knowing and intelli gent by the totality of the circumstances surrounding his waiver. People v Ray , 431 Mich 260, 276; 430 NW2d 626 (1988). The totality of the circumstances includes defendant’s “age, experience, education, background, and intelligence, and whether he has the capacity t o understand the warnings given him, the nature of his Fifth Amendment rights, and the conseque nces of waiving those rights.” People v Cheatham , 453 Mich 1, 27; 551 NW2d 355 (1996) (opinion by B OYLE , J., with B RICKLEY , C.J., and R ILEY , J., concurring in whole, and W EAVER , J., concurring in all but Part III) (citation omitted). A waiver is knowing and intelligent w hen a preponderance of the evidence establishes that defendant “understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him.” Id. at 29.

We initially note that defendant does not argue that he lacked capacity to comprehend any of the information communicated to him by the administering officer and contained within the waiver form, id. at 31, and nothing about defendant’s age, experience, educatio n, background, or intelligence sugge sted his inability to understa nd the warnings given to him, the nature of his rights, or the consequences of waiving them, id. at 27. Defendant was 50 years old at the time of his waiver, and had completed high school and ta ken some college classes. He had no history of drug abuse, alcohol abuse, or treatment for menta l illness. In fact, defendant initialed and signed that waiver form, which “in particular is strong evidence that the waiver was valid.” Id . at 31 (citation omitted).

Defendant instead argues that he is entitled to relief because the waiver form itself used small and blurred font, lacked explanatory headings, and failed to reference in the waiver section what rights were being waived. None of these claims has merit. The font of the waiver form is perfectly legible, and the waiv er form had bold, capitalized su bheadings and beneath each of these headings the form contained sufficient detail to apprise defendant of the rights implicated and the consequences of waiving those rights. Further, the adm inistering officer read defendant the rights and waivers contained on the form and received defen dant’s initials and signature for the waiver, which is sufficient for a knowing and voluntary wai ver. Id. Finally, the section clearly stated that the examinee understood his rights, underst ood that his statements may be

2 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-3- admitted in a court of law, understood that he had the right to an attorney’s assistance, and understood that the statement was read to the examinee and the rights therein waived. Our Supreme Court has uph eld the validity of Miranda waivers in circumstances far less indicative of the defendant’s comprehension of the waiver. See People v McBride , 480 Mich 1047, 1047- 1048; 743 NW2d 884 (2008). On the record herein, defendant has not shown that any alleged deficiencies in the waiver form or the statements of the admini stering officer rendered his waiver unknowing and unintelligent.

We further reject defendant’s argument that his admissions wer e not knowing and intelligent because he was not accompanied by counsel to the po lygraph testing si te, and counsel was not present before, during, or after the examination. The record does not support that defendant sought counsel’s presenc e or that officers prevented access to counsel. Indeed, five months before the polygraph examination, defendant told the adm inistrating police officer that he “would have to consult with h is attorney to get his ‘OK’ whe ther or not to take the polygraph examination.” Moreover, as discussed above, the waiver form de fendant signed advised defendant that he had the right to the assistance of an attorne y at his request.

Reviewing the totality of the circumstances, we are satisfied that a preponderance of the evidence shows that defendant “understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he s aid in a later trial against him.” Cheatham , 453 Mich at 29. Defendant’s wai ver was knowing and intellige nt, and the trial court did not abuse its discretion in allowing the officer to testify to defendant’s admissions. Starr
, 457 Mich at 494.

Defendant next challenges the trial court’s admission of the v ictim’s mother’s testimony that immediately before disclosing defendant’s abuse, the victi m asked “if he [defendant] was coming around anymore.” The victim’s mother testified that she responded, “it kind of doesn’t look like that, but I don’t know . . . .” Defendant objected a t trial, and we review the trial court’s decision to admit the testimony for an abuse of discretion. Id . We also review de novo questions of law surrounding whether a rule precludes the admissibility o f evidence. Washington , 468 Mich at 670-671.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matte r asserted.” MRE 801(c). A statement is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” MRE 801(a). Communications wh ich contain no assertions and are incapable of being true or false are not statements, and th erefore are not hearsay. People v Jones (On Rehearing After Remand) , 228 Mich App 191, 204-205; 579 NW2d 82 (1998). The victim’s words did not contain an assertion, and are incapable of being true or false. Accordingly, they are not statements for the purposes of MRE 80 1(a), and cannot constitute hearsay under MRE 801(c). Id. The trial court thus did not abuse its discretion in properly allowing the victim’s mother to testify to the victim’s questio n. Starr , 457 Mich at 494.-4- Defendant next argues that his 25-year mandatory minimum sente nce pursuant to MCL 750.520b(2)(b) violates the separat ion of powers doctrine. Def endant did not challenge the constitutionality of MCL 750.520b( 2)(b) below, and therefore di d not preserve the issue for appellate review. People v Grant
, 445 Mich 535, 545, 553; 520 NW2d 123 (1994). We review for plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 774; 597 NW2d 130 (1999).

The Michigan Constitution provides that “[t]he powers of gover nment are divided into three branches: legislative, executive and judicial[,]” and pro hibits persons exe rcising powers of one branch from exercising power s belonging to another branch e xcept as provided in the Constitution. Const 1963, art 3, § 2. Our Constitution expres sly grants the Legislature some sentencing authority:

The legislature may provide for indeterminate sentences as pun ishment for crime and for the detention and release of persons imprisoned o r detained under such sentences. [Const 1963, art 4, § 45.]

MCL 750.520b(1)(a), the CSC I statu te under which defendant was charged, provides a mandatory minimum sentence of 25 years’ imprisonment in certain circumstances:

(2) Criminal sexual conduct in the first degree is a felony pu nishable as follows:

* * *

(b) For a violation that is committed by an individual 17 year s of age or older against an individual less than 13 years of age by impris onment for life or any term of years, but not less than 25 years.

This Court and the Michigan Supreme Court have upheld the cons titutionality of mandatory minimum sentences pursuant to the Legislature’s broad sentencing authority. We have noted that “sentencing is t he community’s response to crim e” and “[a]s such, the ultimate authority to provide for sentenc ing is constitutionally vested in the Legislature . . . .” People v Babcock , 244 Mich App 64, 68; 624 NW2d 479 (2000). Our Supreme Court has acknowledged the Legislature’s authority to “ impose restrictions on a judge’ s exercise of discretion in imposing [a] sentence,” People v Hegwood , 465 Mich 432, 440; 636 NW2d 127 (2001), an d the judiciary’s corollary authority to “impose sentences and to administer the sentencing statutes enacted by the Legislature ,” id. at 436-437 (emphasis added).

Indeed, the Court has recogni zed that “there are offenses with regard to which the judiciary has no sentencing disc retion . . . this is for the Le gislature to decide.” People v Garza
, 469 Mich 431, 434; 670 NW2d 662 (2003). Hence, our Supreme Cou rt has upheld, against separation of powers challenges, mandatory life sentences for first-degree murder and multiplefelony offenders. See People v Hall , 396 Mich 650, 657-658; 242 NW2d 377 (1976); People v-5- Palm , 245 Mich 396, 403-404; 223 NW 67 (1929). The Legislature thu s has the constitutional authority to eliminate sentencing discretion from the judiciary by enacting mandatory minimum sentences for certain offenses. Garza , 469 Mich at 434. Accordingly, the 25-year mandatory minimum at MCL 750.520b(2)(b) does not violate the separation o f powers doctrine, and he is not entitled to resentencing.

Affirmed.

/s/ Joel P. Hoekstra /s/ Peter D. O’Connell /s/ Christopher M. Murray