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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 29, 2016

v No. 329252 Van Buren Circuit Court LEE DONALD MANSFIELD, LC No. 15-019751-FH

Defendant-Appellant.

Before: B ORRELLO , P.J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

. A jury convicted defendant of one count of third-degree crimin al sexual conduct (sexual intercourse with a victim at least 13 years of age and under 16 years of age), MCL 750.520d(1)(a); one count of third- degree criminal sexual condu ct (cunnilingus with a victim who was at least 13 years of age and under 16 years of age), MC L 750.520d(1)(a); one count of third-degree criminal sexual c onduct (fellatio with a victim wh o was at least 13 years of age and under 16 years of age), MCL 750. 520d(1)(a); and one count of th ird-degree criminal sexual conduct (digital penetr ation of genital opening of a victim who was at least 13 years of age and under 16 years of age), MCL 750.520d( 1)(a). Defendant was sent enced to 60 months to 15 years’ imprisonment for each count, with the sentences to run c oncurrently and with credit for 27 days served. Defendant now appeals by right. We affirm.

Defendant argues that the trial court’s practice of allowing j urors to submit questions for witnesses deprived him of his right to a trial by a fair and im partial trial. We disagree.

Defendant did not object to any of the juror initiated questio ns that the trial court ultimately asked of witnesses or to the trial court’s procedure for soliciting and presenting such questions. Therefore, this issue is unpreserved. People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). We review unpreserved issues for plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). On plain-error review, the defendant has the burden to show (1) “error”, (2) that was “plain,” meaning “clear or obvious”, (3) and that affected subs tantial rights or caused prejudice, meaning “that the error affecte d the outcome of the lower courtproceedings.” Id . at 763.

MCR 2.513 governs the conduct of jury trials, including jury t rials in criminal cases. MCR 6.001(D). MCR 2.513(I) provides:-2- The court may permit the jurors to ask questions of witnesses. If the court permits jurors to ask questions, it must employ a procedure that ensure s that such questions are addressed to the w itnesses by the court itself, t hat inappropriate questions are not asked, and that the parties have an opportuni ty outside the hearing of the jury to object to the questions. The court shal l inform the jurors of the procedures to be followed f or submitting questions to witne sses.

In People v Heard , 388 Mich 182, 188; 200 NW2d 73 (1972), our Supreme Court held that a trial judge may permit jurors to direct questions to witnesses and that “the questioning of witnesses by jurors, and the method of submission of such quest ions, rests in the sound discretion of the trial court .” The Court reasoned:

The practice of permitting questions to witnesses propounded byjurors should rest in the sound discretion of the trial court. It would appe ar that in certain circumstances, a juror might have a question which could help u nravel otherwise confusing testimony. In such a situation, it would aid the fac t-finding process if a juror were permitted to ask such a question. [ Id . at 187-188.]

Defendant, in support of his argument that this practice shoul d stop, relies on State v Costello , 646 NW2d 204, 214 (Minn, 2002), in which the Minnesota Suprem e Court held, in the exercise of its supervisory pow er over Minnesota courts, that j urors were not permitted to pose questions to witnesses in a criminal trial. But the decisions of the courts of other states are not binding on this Court. People v Jackson , 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011). Rather, this Court is bound to f ollow decisions of the MichiganSupreme Court “except where those decisions have clearly been overruled or superseded.” Associated Builders & Contractors v City of Lansing , 499 Mich 177, 191; 880 NW2d 765 (2016).

It is settled in Michigan that a trial court may permit member s of the jury to pose questions for witnesses in a criminal trial, Heard , 388 Mich at 188, and the trial court in the instant case properly complied with the procedure to be followe d in the case of juror questions stated in MCR 2.513(I). Therefore, defendant has failed to dem onstrate that the trial court committed plain error. See Carines , 460 Mich at 763.

Next, defendant argues that the prosecutor improperly asked de fendant to comment on the credibility of prosecution witnesses and committed further misconduct by again raising the matter during closing ar gument. We disagree.

Defendant failed to preserve this issue for appeal because he did not object to either the prosecutor’s questions or commen ts during closing argument that defendant now challenges. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Consequently, ou r review is for plain error that affected defendant’s substantial rights. Id . Alleged prosecutorial misconduct will not warrant reversal “where a curative instruction could h ave alleviated any prejudicial effect.” People v Ackerman , 257 Mich App 434, 449; 669 NW2d 818 (2003).

A prosecutor has a responsibility “to seek justice and not mer ely convict.” People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). “[T]he test for pr osecutorial misconduct is whether a defendant was denied a fair and impartial trial.” Id . “A defendant’s right to a fair-3- trial may be violated when the prosecutor interjects issues bro ader than the guilt or innocence of the accused.” People v Rice (On Remand) , 235 Mich App 429, 438; 597 NW2d 843 (1999). Prosecutorial misconduct issues “are considered on a case-by-ca se basis, and the reviewing court must consider the prosecuto r’s remarks in context.” Bennett , 290 Mich App at 475. Prosecutors have great latitude regarding their arguments and conduct at tr ial; they may argue the evidence and all reasonable inferences from the evidence as it relates t o their theory of the case. People v Unger , 278 Mich App 210, 236; 749 NW2d 272 (2008). “A prosecutor ma y argue from the facts that a witness is credible or tha t a witness is not worthy of b elief.” Id . at 240. But a prosecutor may not vouch for the credibility of a witness by suggesting th at he has some special knowledge regarding the truthfuln ess of the witness. Bennett , 290 Mich App at 476.

It is also “improper for the prosecutor to ask defendant to co mment on the credibility of prosecution witnesses.” People v Buckey , 424 Mich 1, 17; 378 NW2d 432 (1985). In Buckey
, portions of the defendant’s testimony conflicted with the testi mony of the complainant, eyewitnesses, and a police detective. Id . at 5-6, 7 n 3. The prosecutor asked the defendant during cross-examination whether the defendant thought the prosecution ’s witnesses “were lying.” Id

. at 7 n 3, 16-17. The Buckey Court noted that the prosecuto r’s strategy was to invite the defendant to label the prosecution’s witnesses as liars and the reby discredit the defendant. Id . at 17. The Court found this conduct was improper because the defe ndant’s opinion of witnesses’ credibility “is not probative of the matter.” Id . The Court, however, held that the error did not result in unfair prejudice to defendant and was harmless. Id . The Court reasoned the “defendant dealt rather well with the quest ions,” that defense counsel did not object to the questions, and that any prejudice could have been cured by a timely objection resulting in a prohibition on further questions of the type a t issue or an appropriate cautio nary instruction. Id . at 17-18.

In contrast, “[i]t is not improper for the prosecutor to attem pt to ascertain which facts are in dispute.” Ackerman , 257 Mich App at 449. In Ackerman , the defendant argued on appeal “that the prosecutor engaged in misconduct by asking defendant whether he disputed specific points of other witnesses’ testimony,” although defense counsel had not objected to the questioning during trial. Id . The Ackerman Court rejected the defendant’s claim, reasoning that the prosecutor did not ask the defendant to comment on the cred ibility of other witnesses, but “only asked whether the defendant had a different version of th e facts.” Id . In addition, the Court noted that even if the questioning was improper to some e xtent, any possible prejudice could have been alleviated by a cur ative instruction and revers al was not required. Id

. Here, Trooper Kyle Gorham testified that he interviewed defend ant, and defendant indicated that he went to Oasis Hot Tubs with the victim, rente d a hot tub for an hour, and was there with the victim for approx imately 20 minutes. According to Trooper Gorham, defendant stated that the victim wore a bikini bathi ng suit with black bo ttoms and a black and green top and that he wore blue Hawaiian shorts with flowers on them. Office r Tom McClung testified that he heard the entire interview and that defendant told Trooper Gorh am that he and the victim were wearing bathing suits and were in the hot tub together. Defend ant testified that he only told Trooper Gorham that he went into the building of the Oasis Hot Tubs, not that he actually went into the hot tub with the victim. According to defendant, he t old Trooper Gorham about his own bathing suit and the victim’s bathing suit, and his description of the victim’s bathing suit was based on his discussion with the victim during their drive to the hot tubs and the fact that the victim had shown him her bathi ng suit during that drive. Defen dant testified that he did not tell-4- Trooper Gorham that he and the victim changed into their bathin g suits. The prosecutor asked defendant during cross-examination, “Do you have any idea how T rooper Gorham could have been so mistaken about that key, crucial fact of you being in t he hot tub with [the victim] in your bathing suits?” Defendant res ponded, “He might have just misun derstood what I was saying.”

The instant case is distinguishable from Buckey . Here, the prosecutor merely asked defendant to explain the apparent contradiction between defenda nt’s version of the hot tub incident and that of Trooper Go rham and Officer McClung. Unlik e the prosecutor in Buckey , the prosecutor in the instant case did not ask defendant whether Tr ooper Gorham and Officer McClung were “lying” and thus did not force defendant to explai n the discrepancy solely in terms of the officers’ honesty. Simply put, the prosecutor in the instant case did not ask defendant to comment on the credibility of any prosecution witnesses, but merely inquired about defendant’s explanation for the inconsistency. Once defendant gave his explanation, that the discrepancy was based on a misunderstanding, the prosecutor mov ed on and left it for the jury to determine the credibility of the various witnesses. Thus, the prosecutor’s strategy was not to invite defendant to label the pr osecution witnesses as “liars.” Rather, the prosecutor “only asked whether the defendant had a di fferent version of the facts,” Ackerman , 257 Mich App at 449, and gave defendant a chance to offer an explanation. Evaluating th e prosecutor’s conduct in context, Bennett , 290 Mich App at 475, it is clear that the prosecutor did not ask defendant to comment on the credibility of other witn esses, and so, the prosecutor’s questioning was not improper. See Buckey , 424 Mich at 17; Ackerman , 257 Mich App at 449.

Moreover, the prosecutor’s comme nts during closing argument we re also not improper. The prosecutor’s argument merely highlighted the improbability of defendant’s story in light of all of the evidence. The prosecutor was permitted to argue the reasonable inferences from the evidence in the case, including that defendant was not a credib le witness. Unger , 278 Mich App at 236. The prosecutor did not imply that he had special knowl edge of the truthfulness of the prosecution witnesses and thus did not improperly vouch for the ir credibility. Bennett , 290 Mich App at 476. The prosecutor’s clos ing argument was well within the latitude afforded to prosecutors in making their arguments at trial. Unger , 278 Mich App at 236. Therefore, defendant has failed to demonstr ate plain error regarding prose cutorial misconduct. Id . at 235.

Finally, defendant also argues that defense counsel was ineffe ctive because he did not object to the alleged instances of prosecutorial misconduct. W e disagree.

Because defendant did not move the trial court for a new trial or an evidentiary hearing, he failed to preserve his ineffective assistance of counsel cla im. People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013). “Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors apparent on the record.” People v Lockett , 295 Mich App 165, 186; 814 NW2d 295 (2012). “A claim of ineffective assistance o f counsel presents a mixed question of fact and constitutional law.” Unger , 278 Mich App at 242. F actual findings are reviewed for clear error, and the constitutional issue is revie wed de novo. Id

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To establish a claim of ineff ective assistance of counsel, “a defendant must show that (1) counsel’s performance was below an objective standard of reason ableness under prevailing professional norms, and (2) ther e is a reasonable probability t hat, but for counsel’s error, the result of the proceedings would have been different.” Lockett , 295 Mich App at 187. As-5- discussed above, the prosecutor did not improperly ask defendan t to comment on the credibility of prosecution witnesses and did not improperly vouch for the c redibility of prosecution witnesses during closing argument. Thus, any objection would h ave been without merit. Trial counsel is not ineffective if he or she fails to voice a futile objection. Unger , 278 Mich App at 256. Furthermore, defendant does not explain how the outcome o f the trial would have been different but for the fact that defense counsel did not object to the prosecutor’s alleged improper conduct. Defendant simply asserts that defendant’s answer to t he prosecutor’s question “invited the jury to ridicule” defendant. But as previously discussed, based on the evidence, defendant’s testimony was fairly subject to comment. The prosecutor merelygave defendant an opportunity to explain conflicting testimony; in response, defendant attrib uted the conflict to a misunderstanding. The prosecutor then left it up to the jury t o assess the credibility of defendant and the other witnesses.

“Failure to make the required showing of either deficient perf ormance or sufficient prejudice defeats the ineffectiveness claim.” Strickland v Washington , 466 US 668, 700; 104 S Ct 2052; 80 L Ed 2d 674 (1984). On this record, defendant has not demonstrated either that his counsel performed deficiently based on counsel’s not objecting to the alleged instances of prosecutorial misconduct or tha t he suffered any prejudice. Id

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We affirm.

/s/ Stephen L. Borrello /s/ David H. Sawyer /s/ Jane E. Markey