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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 22, 2015 

v No. 313074 

Wayne Circuit Court 

MARTEZ CLEMONS, LC No. 12-004371-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 314335 

Wayne Circuit Court 

MARTEZ CLEMONS, LC No. 12-004371-FC 

 Defendant-Appellant. 

Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ. 

PER CURIAM. 

 In this consolidated appeal, defendant challenges his convictions and sentences arising 

out of two criminal trials. In Docket No. 313074, defendant appeals as of right his jury trial 

conviction for first-degree home invasion, a violation of MCL 750.110a(2), for which defendant 

was sentenced to 75 months to 30 years’ imprisonment. In Docket No. 314335, defendant 

appeals as of right his jury trial convictions for assault with intent to do great bodily harm less 

than murder, a violation of MCL 750.84, and six counts of first-degree criminal sexual conduct 

(CSC-I), a violation of MCL 750.520b(1)(c) (sexual penetration occurs under circumstances 

involving the commission of any other felony), for which he was sentenced as a second habitual 

offender, MCL 769.10, to concurrent sentences of 356 months to 45 years’ imprisonment for 

each of the six CSC convictions and 6 to 10 years’ imprisonment for the assault conviction. 

Finding no errors warranting reversal, we affirm defendant’s convictions and sentences in both 

cases. 

I. BASIC FACTS AND PROCEDURAL HISTORY 
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 At defendant’s first trial, he faced charges of first-degree home invasion, assault, and 

multiple counts of CSC-I upon allegations that he assaulted 55-year-old PL in her apartment, 

which was located in the basement of an apartment complex. The jury at defendant’s first trial 

found defendant guilty of first-degree home invasion, but was hung as to the remaining counts 

alleging assault and CSC. Therefore, a second trial was held on an amended information, which 

alleged the assault and CSC counts. 

 The evidence at both trials was substantially similar. PL testified that she woke up in the 

early morning hours of April 4, 2012 in order to self-administer a shot for her diabetes. A man 

kicked in her apartment door. He declared that PL owed him money. When she refuted that 

statement, he then hit PL in the face, knocking her to the ground. He hit and kicked her and then 

proceeded to sexually assault her. The man then passed out on her bed. PL grabbed some 

clothing and fled to a nearby gas station for help. She also retrieved two “roses,” which PL 

testified were crack pipes that fell from the man’s pants. Although PL identified defendant as 

her assailant at both trials, the parties stipulated that PL selected an individual other than 

defendant from a live lineup held. 

 A maintenance worker saw that PL’s apartment door had been kicked in. There was a 

man passed out on the bed with his pants down around his ankles. Spots of blood were also 

found in and around PL’s apartment and the back door of the apartment complex. The apartment 

manager called 911. Police officers found defendant sleeping in PL’s bed. They woke him up 

and asked him to pull up his pants and sit in a chair. Defendant told the officers that he had been 

in the apartment with his friends – Sandra and Jay and that the “old lady” was there when he fell 

asleep. The officers called dispatch to determine whether any assaults had been reported. 

Dispatch told the officers that PL had been to the hospital on claims of sexual assault. The 

officers located pill bottles with PL’s name on it and confirmed that it was her apartment. They 

placed defendant under arrest. 

 PL underwent a sexual assault examination. She had lacerations and bruises to her face, 

knee, hip, and groin. There were no injuries to PL’s genitalia. The nurse collected samples from 

PL’s cheek, rectum, vagina, and breasts. There was no seminal fluid or sperm cells present on 

PL’s vaginal, anal, rectal or oral swabs. The swab of PL’s left breast revealed DNA from PL and 

one other person who could not be identified. The swab of PL’s right breast revealed DNA from 

PL and two others. Defendant could not be excluded as a donor. The two “roses” contained 

DNA from two donors, but it was impossible to identify the donors. Neither PL nor defendant 

could be excluded. The glass vials did not contain usable fingerprints. Essentially, there was no 

DNA evidence connecting defendant to PL. 

 At both trials, the prosecutor introduced evidence of an assault that occurred prior to the 

assault on PL. Arthur Rucker was a homeless double leg amputee who periodically slept on the 

inside of the apartment complex’s back door. On the same night PL was assaulted, Rucker was 

approached by defendant, whom he recognized from the streets but did not know personally. 

Defendant demanded that Rucker pay him the money that he was owed. Rucker denied that he 

owed defendant any money, whereupon defendant began to punch Rucker in the face, knock him 
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to the ground, and beat him. The beating stopped when Rucker’s friend, Gerald Jones, came to 

the scene.1

 Rucker suffered serious injuries and was hospitalized. Like PL, although Rucker 

positively identified defendant at both trials, Rucker chose an individual other than defendant 

during a live lineup. 

 Defendant was convicted and sentenced as previously stated. He now appeals as of right. 

II. BAD ACTS EVIDENCE 

 In both appeals, defendant argues that the trial court abused its discretion when it 

permitted the prosecutor to introduce “bad acts” evidence because the evidence was used solely 

to suggest that defendant had a propensity to assault handicapped individuals. We disagree. 

 “The decision whether [bad acts] evidence is admissible is within the trial court’s 

discretion and will only be reversed where there has been a clear abuse of discretion.” People v 

Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). “An abuse of discretion occurs only 

when the trial court chooses an outcome falling outside the principled range of outcomes.” 

People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (internal quotations and citations 

omitted). However, preliminary questions of law are subject to de novo review. People v 

Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). “Close questions arising from the trial 

court’s exercise of discretion on an evidentiary issue should not be reversed simply because the 

reviewing court would have ruled differently. . . . The trial court’s decision on a close 

evidentiary question ordinarily cannot be an abuse of discretion.” People v Smith, 456 Mich 543, 

550; 581 NW2d 654 (1998). 

 At defendant’s first trial, the trial court ruled that evidence of Rucker’s attack was 

relevant to show both identity and common plan or scheme. The trial court looked to the fact 

that, in both attacks, defendant claimed that the victims owed him money and then struck them in 

the face when they denied it. The trial court also looked to the fact that both assaults occurred in 

the same apartment complex very close in time to one another. 

 On the first day of defendant’s second trial, defense counsel asked the trial court to 

reconsider its previous ruling. Counsel argued that the incident with Rucker was “[n]ot a sexual 

assault in any way and our position is that that is clearly more prejudicial than probative on the 

issue of the sexual charges particularly in view of the fact that the breaking and entering is no 

longer an issue in this case.” The trial court declined to revisit the issue on those grounds, 

finding that the fact that defendant “was convicted of that one count doesn’t change anything.” 

 On appeal, defendant argues that the evidence of Rucker’s attack should have been 

excluded at both trials. 

 

1

 Jones testified at defendant’s first trial but did not testify at the second trial. The trial court 

gave the jury and adverse inference instruction, advising the jury that it could infer that Jones’ 

testimony would have been adverse to the prosecutor’s case. 
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 MCL 768.27 provides: 

In any criminal case where the defendant’s motive, intent, the absence of, mistake 

or accident on his part, or the defendant’s scheme, plan or system in doing an act, 

is material, any like acts or other acts of the defendant which may tend to show 

his motive, intent, the absence of, mistake or accident on his part, or the 

defendant’s scheme, plan or system in doing the act, in question, may be proved, 

whether they are contemporaneous with or prior or subsequent thereto; 

notwithstanding that such proof may show or tend to show the commission of 

another or prior or subsequent crime by the defendant. 

Additionally, MRE 404(b)(1) provides: 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show action in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, scheme, plan, or system in doing an act, knowledge, identity, or 

absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case. 

In order for “bad acts” evidence to be admissible: 1) it must be offered for a proper purpose; 2) it 

must be relevant; 3) the probative value of the evidence may not be substantially outweighed by 

unfair prejudice; and, 4) that the trial court may, upon request, provide a limiting instruction to 

the jury. People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993) amended 445 Mich 

1205 (1994). 

 A “proper purpose” is one other than establishing the defendant’s character to show his 

propensity to commit the offense. VanderVliet, 444 Mich at 74. 

 Evidence relevant to a noncharacter purpose is admissible under MRE 

404(b) even if it also reflects on a defendant’s character. Evidence is inadmissible

under this rule only if it is relevant solely to the defendant’s character or criminal 

propensity. Stated another way, the rule is not exclusionary, but is inclusionary, 

because it provides a nonexhaustive list of reasons to properly admit evidence that 

may nonetheless also give rise to an inference about the defendant’s character. 

[Mardlin, 487 Mich at 615 (emphasis in original).] 

 “Relevant evidence” is “evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” MRE 401. Evidence that is otherwise relevant “may be 

excluded if its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence.” MRE 403; People v Mann, 288 Mich 

App 114, 119 n 12; 792 NW2d 53 (2010). 

 Defendant argues that the evidence was inadmissible to prove identity because there was 

nothing uncommon or distinctive about the two assaults. It is generally true that, when 
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introduced to establish identity, the prosecutor bears the heavy burden “to show that the manner 

in which the crime charged and the other crimes were committed was marked with special 

characteristics so uncommon, peculiar and distinctive as to lead compellingly to the conclusion 

that all were the handiwork of the defendant because all bore his distinctive style or ‘touch’.” 

People v Golochowicz, 413 Mich 298, 325; 319 NW2d 518 (1982). However, while this case 

may be missing the hallmark distinctive style, identity was relevant because of the proximity in 

time and location of both assaults. 

 As far as scheme or plan, “evidence of similar misconduct is logically relevant to show 

that the charged act occurred where the uncharged misconduct and the charged offense are 

sufficiently similar to support an inference that they are manifestations of a common plan, 

scheme, or system. “ People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). 

The charged act and the prior bad acts do not need to be “part of a single continuing conception 

or plot” for the prior bad act to be relevant. Id. at 64. “Unlike evidence of uncharged acts used 

to prove identity, the plan need not be unusual or distinctive; it need only exist to support the 

inference that the defendant employed that plan in committing the charged offense.” People v 

Sabin (After Remand), 463 Mich. 43, 63; 614 NW2d 888 (2000) quoting with approval People v 

Ewoldt, 867 P 2d 757 (1994). In contrast to identity, prior bad acts offered to prove a pattern or 

practice are subject to a lower requirement of distinction or uniqueness, and acts offered to prove 

intent require even a lesser degree of similarity. See People v Smith, 282 Mich App 191, 195; 

772 NW2d 428 (2009) (“A high degree of similarity is required [to show a pattern of conduct]—

more than is needed to prove intent, but less than is required to prove identity—but the plan itself 

need not be unusual or distinctive.”) 

 The prosecutor used Rucker’s assault to demonstrate that defendant had a common 

scheme or system in carrying out the attacks. First, defendant located a vulnerable victim. 

Second, he approached the victim with an accusation that he or she owed him money. Third, 

when the victim professed that no money was owed, defendant struck each about the face and 

eyes with his fists. Thus, evidence that Rucker was attacked in a similar way just moments 

before PL was attacked was probative of the identity of PL’s assailant. 

 Defendant suggests that the prosecutor’s proffered reasons for admitting the bad acts 

evidence was a mere ruse and that the evidence was solely intended to suggest that defendant 

acted in accordance with a propensity to assault handicapped persons. A “prosecutor deprives 

the defendant of a fair trial in arguing that the jury should consider the evidence as substantive 

evidence of the defendant’s guilt.” People v Quinn, 194 Mich App 250, 253; 486 NW2d 139 

(1992). 

 However, the prosecutor was careful to frame her arguments in a manner consistent with 

the law. She did not ask the jury to convict defendant because he was a bad person; instead, she 

sought to dispel any doubt in the jury’s mind that defendant was not PL’s assailant. This was an 

appropriate response in light of the fact that neither PL nor Rucker chose defendant from live 

lineups. Thus, identity was an issue for trial and evidence of Rucker’s attack was offered for a 

proper purpose. 

 Contrary to defendant’s arguments, the probative value of the bad acts evidence in both 

trials was not outweighed by the danger of unfair prejudice. MRE 403 provides that relevant 
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evidence “may be excluded if the probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence.” “All evidence offered by 

the parties is ‘prejudicial’ to some extent, but the fear of prejudice does not generally render the 

evidence inadmissible. It is only when the probative value is substantially outweighed by the 

danger of unfair prejudice that evidence is excluded.” People v Mills, 450 Mich 61, 75; 537 

NW2d 909, mod 450 Mich 1212 (1995). “The determination whether the probative value of 

evidence is substantially outweighed by its prejudicial effect is best left to a contemporaneous 

assessment of the presentation, credibility, and effect of the testimony.” People v Waclawski, 

286 Mich App 634, 670; 780 NW2d 321 (2009). 

 Here, the proffered evidence was not of marginal value, but was highly relevant to 

identity. The relevance of the bad acts evidence was established “through similarities between 

the charged and uncharged acts, rather than on defendant’s character, as shown by the uncharged 

act.” Sabin, 463 Mich at 63-64 n 10. Additionally, the trial court took great pains to properly 

instruct the juries in both trials as to the limited nature of the evidence. Therefore, any danger of 

prejudice was minimized by the trial court’s instructions to the jury that it could not use the 

evidence to conclude that defendant was a bad person or that he had the propensity to commit the 

charged crimes. Jurors are presumed to follow their instructions. People v Abraham, 256 Mich 

App 265, 279; 662 NW2d 836 (2003). 

 Finally, defendant has failed to show that any error in admitting the bad acts evidence 

was outcome determinative at either trial. People v Knapp, 244 Mich App 361, 380-381; 624 

NW2d 227 (2001). Defendant was found naked and unconscious in PL’s apartment. The 

apartment door had been kicked in. 

 Because evidence of Rucker’s attack was relevant to identity and scheme and was not 

outweighed by unfair prejudice, the trial court did not abuse its discretion in permitting the 

prosecution to present evidence that Rucker was attacked at nearly the same time, place, and 

manner as PL. 

III. AMENDMENT OF THE INFORMATION 

 In Docket No. 313074, defendant argues that the trial court erred in allowing the 

prosecutor to amend the information on the day trial was set to begin to add four counts of 

penile/genital penetration. We disagree. 

 A trial court’s decision to grant or deny a motion to amend an information 

is reviewed for an abuse of discretion. The trial court abuses its discretion if the 

result is so contrary to fact and logic that it evidences a perversity of will, a 

defiance of judgment, or an exercise of passion or bias or when an unprejudiced 

person, considering the facts on which the trial court acted, would say there was 

no justification or excuse for the ruling. [People v McGee, 258 Mich App 683, 

686-87; 672 NW2d 191 (2003) (internal citations omitted).] 

 Prior to defendant’s first trial, the prosecutor raised the issue of amending the 

information. The following exchange took place: 
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 MS. WEINGARDEN [prosecutor]: The complainant in this case is 

developmentally delayed. She’s an adult woman developmentally delayed. She 

told the nurse who will testify that she was raped orally, vaginally and anally. By 

the time we got to [the] preliminary exam she said she was raped orally and 

anally, not vaginally. So the vaginal penetration counts got dismissed. I did the 

pretrial interview with her last week. And now she’s saying she was raped orally 

and vaginally, but not anally. So I’m moving to amend the information, the anal 

penetration counts, there are four of them presently, to add additional counts of 

vaginal penetration. I’m going to ask your Honor to instruct the jury that they 

must be unanimous as to their theories on any one of the penetration offenses. 

*** 

 So what I’ve done is, I made count four is anal penetration. Count five is 

penis and genital opening. Count six is anal, count seven is penis and genital 

opening. Count eight is anal. Count nine is penis and genital opening. Count ten 

is penis and genital opening. Count 11 is penis and anal opening. So the jury 

would have the option of deciding which crevice he put it into, but they would 

have to be unanimous as to each count. 

*** 

 THE COURT: All right. And so now you say she says that it was anal 

penetration and not vaginal penetration? 

 MS. WEINGARDEN: No. Other way around. 

 THE COURT: Other way around? 

 MS. WEINGARDEN: Right. He came from behind, but put it in her 

vagina she says. 

*** 

 THE COURT: All right. So how many separate acts of penetration are 

alleged? 

 MS. WEINGARDEN: So we’re alleging two oral/fellatio, and four either 

anal or genital. 

*** 

 THE COURT: And the jury would be instructed that they would have to 

be consistent – or they would have to be unanimous as to which theory four or 

five, or six or seven, or eight or nine, and ten or eleven, okay. 

 And the reason – well, the reason for moving to amend it now as opposed 

to subsequent to the proofs? 
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 MS. WEINGARDEN: Is to put defense counsel on notice. 

 Defense counsel strenuously objected, noting that such an amendment would make the 

district court’s ruling “a piece of crap and worthless.” The trial court clarified: 

 THE COURT: Okay, thank you very much. Two questions. If I 

understand correctly, since there – you’re adding four alternative counts, there is 

really no more counts – or he couldn’t be convicted of any more counts now than 

he was on the second amended information, is that correct? 

 MS. WEINGARDEN: Correct. 

 THE COURT: The only thing you’re doing is changing your theories as 

to four of those counts for different – as to add, whether it be genital – I’m sorry, 

vaginal or anal? 

 MS. WEINGARDEN: Correct. 

 THE COURT: And the statute on criminal sexual conduct in the first 

degree simply talks about sexual penetration. It doesn’t limit in the statute as to 

what manner that sexual penetration occurs, is that correct? Because sexual 

penetration is defined in [MCL] 755.28 to include sexual intercourse, fellatio, anal 

intercourse, or any other intrusion however slight of any part of a person’s body 

or any object into a genital or anal opening, is that correct? 

 MS. WEINGARDEN: Correct. 

 THE COURT: Okay. All right. The court is going to grant the

prosecution’s motion to amend the information. The statutes allow amendment of 

the information at any time before, during or after to conform with the proofs. All 

that’s being done here is to change a theory of the prosecution’s case. And it’s 

being done in such a manner that the court finds doesn’t prejudice the defendant, 

and will require a unanimous verdict on whatever their theory is. So the third 

amended information is going to be allowed. And it’s going to read count four or 

five, count six or seven, count eight or nine, and count ten or eleven.2

 

 “A person’s right to reasonable notice of a charge against him, and an opportunity to be 

heard in his defense-a right to his day in court-are basic in our system of jurisprudence.” In re 

Oliver, 333 US 257, 273; 68 S Ct 499; 92 L Ed 682 (1948). “A defendant’s right to adequate 

notice of the charges against the defendant stems from the Sixth Amendment, as applied to the 

states through the Due Process Clause of the Fourteenth Amendment.” People v Darden, 230 

 

2

 The trial court instructed the jury that each of the counts had to be unanimous, so that on the 

CSC-I counts, the jury would have three options: not guilty, or guilty as to one of the two 

alternate counts. 
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Mich App 597, 600; 585 NW2d 27 (1998). “[T]he constitutional notice requirement is not some 

abstract legal technicality requiring reversal in the absence of a perfectly drafted information. 

Instead, it is a practical requirement that gives effect to a defendant’s right to know and respond 

to the charges against him.” Id. at 601. “Whether an accused is accorded due process depends 

on the facts of each case.” People v McGee, 258 Mich App 683, 700; 672 NW2d 191 (2003). 

 The prosecutor was entitled to amend the information in this case by way of statute and 

court rule. MCL 767.76 provides, in relevant part: 

The court may at any time before, during or after the trial amend the indictment in 

respect to any defect, imperfection or omission in form or substance or of any 

variance with the evidence. If any amendment be made to the substance of the 

indictment or to cure a variance between the indictment and the proof, the accused 

shall on his motion be entitled to a discharge of the jury . . .and to a reasonable 

continuance of the cause unless it shall clearly appear from the whole proceedings 

that he has not been misled or prejudiced by the defect or variance in respect to 

which the amendment is made or that his rights will be fully protected by 

proceeding with the trial or by a postponement thereof to a later day.. 

New offenses may not be added to an information by way of motion to amend under MCL 

767.76. People v McGee, 258 Mich App 683, 688; 672 NW2d 191 (2003). The statute permits 

only corrections of defects where the defendant has been fairly apprised of the nature of the 

charges against him. Id. Thus “[a]n information may be amended at any time before, during, or 

after trial to cure any defect, imperfection, or omission in form or substance, including a variance 

between the information and the proofs, as long as the accused is not prejudiced by the 

amendment and the amendment does not charge a new crime.” People v Higuera, 244 Mich App 

429, 444; 625 NW2d 444, 453 (2001). 

 MCR 6.112(G) further provides that, “[a]bsent a timely objection and a showing of 

prejudice, a court may not dismiss an information or reverse a conviction because of an untimely 

filing or because of an incorrectly cited statute or a variance between the information and proof 

regarding time, place, the manner in which the offense was committed, or other factual detail 

relating to the alleged offense.” (Emphasis added). 

 Prejudice may be shown when an amendment would force a defendant to present a 

different defense or evidence. McGee, 258 Mich App at 688. However, “[w]here a preliminary 

examination is held on the very charge that the prosecution seeks to have reinstated, the 

defendant is not unfairly surprised or deprived of adequate notice or a sufficient opportunity to 

defend at trial.” People v Goecke, 457 Mich 442, 462; 579 NW2d 868 (1998). In Goecke, the 

Michigan Supreme Court concluded that the evidence introduced on charges of second-degree 

murder (which had been dismissed by the district court and which the prosecutor sought to 

reinstate) would also be used to support the charge of operating a vehicle under the influence of 

alcohol. 

 Similarly, here, the same proofs supported a charge of CSC-I for penile/vaginal 

penetration and penile/anal penetration. It is clear from the record that the prosecution did not 

seek to add any counts to the information and sought only to provide alternative theories for the 
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jury to consider. As such, an amendment only cured a defect which was already sufficiently 

charged and defendant was fairly apprised of the nature of the charges against him. McGee, 258 

Mich App at 688. Even if the change “added” counts to the information, MCR 6.112(G) 

specifically allows such an amendment. The rule, which is procedural, supersedes the statute. 

Goecke, 457 Mich at 460. 

 Moreover, error in permitting an amendment of the information is not reversal error 

unless it resulted in a miscarriage of justice or was inconsistent with substantial justice. McGee, 

258 Mich App at 693, citing MCL 769.26 and MCR 2.613(A). At defendant’s first trial, the jury 

was unable to reach a unanimous verdict on the CSC-I counts and defendant has failed to show 

that the alleged error undermined the reliability of the verdict of first-degree home invasion. 

McGee, 258 Mich App at 693. 

 Because the prosecution was entitled to amend the information at any time to conform to 

the proofs and because the amendment did not seek to add additional charges, the trial court did 

not abuse its discretion when it permitted the prosecution to amend the information to provide 

for alternative theories. 

IV. DEFENDANT’S RIGHT TO REMAIN SILENT 

 In both appeals, defendant argues that he was denied his constitutional right to remain 

silent when the prosecutor elicited testimony from a police officer that defendant wanted to talk 

to an attorney. Defendant argues that he was in custody at the time he made the statement. We 

disagree. 

 “Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed 

de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279 

Mich App 116, 134; 755 NW2d 664 (2008). “The test of prosecutorial misconduct is whether 

the defendant was denied a fair and impartial trial. The defendant bears the burden of 

demonstrating that such an error resulted in a miscarriage of justice.” Id. (internal citations 

omitted). 

 “We review de novo a trial court’s ultimate decision on a motion to suppress on the basis 

of an alleged constitutional violation.” People v Gingrich, ___ Mich App ___; ___ NW2d ___ 

(Docket No. 310416) slip op p 3. 

 At defendant’s first trial, the following exchange took place between the prosecutor and 

Officer Daines: 

Q. Okay. How was [defendant] acting, what was his demeanor like? 

A. It went through various – you know, laughing, saying he didn’t do 

anything, and then crying, and then going back to he doesn’t care. I want to talk 

to my lawyer. He was doing a lot of talking. . . . 

Q. So he’s running his mouth, and he’s laughing and crying alternatively? 

A. Yes. 
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Q. And gives you the story about Jay and Sandra? 

A. That quickly faded. 

Q. Okay. Explain that. 

A. I mean, he could tell me no more. As the evidence started piling up at 

the scene the story got thinner and thinner, and to the point where he just didn’t 

want to talk about it at all until he talked to a lawyer. 

Q. All right. And at any point at the scene did you read him his Miranda 

rights? 

A. No. 

Defense counsel then objected, saying “I think the prosecutor’s line of questioning is improper, 

but I’ll leave it at that.” The trial court overruled the objection. 

 The prosecutor then asked whether Daines ever confronted “defendant about the fact that 

his shoe matched the print on the door.” After a side bar, the trial court instructed the jury to 

“[d]isregard the last question.” At the conclusion of the prosecutor’s questions, the trial court 

ordered the jury out of the courtroom and explained: 

I asked the lawyers to approach for a sidebar when . . .Ms. Weingarden asked this 

officer whether or not the defendant was asked for an explanation about his shoe 

print on the door. And the reason I asked for the sidebar is because this officer 

previously testified that during the course of the conversation with the defendant 

that at some point he indicated he wanted a lawyer. And so it just wasn’t clear to 

me at what point this question may have come up. 

*** 

Because [whether defendant was in custody] was the basis of Mr. Upshaw’s 

objection before, or at least that’s what he says at sidebar. 

Defense counsel argued that the prosecutor “tainted the jury by bringing up his refusal to 

continued [sic] to speak after he was – told the officer he wants an attorney.” The trial court 

found the officer’s testimony to be a “non-responsive answer.” The trial court asked the parties 

to take additional testimony from Daines out of the presence of the jury. 

 After the jury was excused, Daines explained that “[w]hen we got there we were asking a 

whole bunch of find-out questions because we didn’t know what we had. Once we asked a 

whole bunch of find-out questions that he was willingly answering, it led up to everything that 

we figured out.” Daines acknowledged that from the moment officers entered the apartment, 

defendant was not free to leave. The trial court questioned Daines: 

Q. And there was conversation with him about how he got there? 
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A. Correct. 

Q. Because at that point you didn’t know how he got there? 

A. Yes, that’s correct. 

Q. All right. And that’s when he talked about Sandra and the other 

person? 

A. Yes, sir. Can I add something? 

Q. Sure, go ahead. 

A. For all we knew he was at a friend’s house. So it wasn’t like we 

pointed a finger at him directly right when we got there. It was hey, what are you 

doing here. 

Q. All right. And so what was the reason why you cuffed him when you 

put [him] in the chair? 

A. That was after we found out that it was the home of [PL]. 

Q. Okay. So he was in the chair? 

A. Before that he was in the chair sitting. 

Q. Cuffed? 

A. No, uncuffed. 

Q. Okay. And that’s when you asked him and he told you about Sandra 

and the other person? 

A. Yes. 

Q. Okay. And then you said that when you found out about [PL], that 

being her apartment, and you see the pill bottles is that when you cuffed him? 

A. Yes. 

Q. And why did you cuff him at that time? 

A. Because then we were able to, you know, come to the determination 

that it was a home invasion two. 

Q. All right. And did you ask him any questions after you cuffed him? 

A. No. He was there sitting down while the evidence tech was there, 

while we were doing the investigation, so everyone – all this evidence was piling 
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up. And he heard everyone’s comments, everyone’s find-out, you know, queries, 

so it wasn’t like – you know, it wasn’t a question directed toward him, it was a 

comment that I threw out there so he could think. And I said – and I simply said, 

you’re going to have a hard time explaining why the bottom of your shoe matches 

that footprint on the door. 

Q. All right. Okay. And was it before or after that you threw that out that 

he said he wanted – wouldn’t talk anymore, or wanted a lawyer? 

A. That was after I said that. 

Q. All right. And you did not advise him of his Miranda rights? 

A. No. 

Q. All right. And once he said he wanted a lawyer did you ask him any 

more questions or throw out any more comments? 

A. No, sir. 

 The trial court determined that defendant was not in custody when he was sitting in the 

chair, but that he was obviously in custody at the time he was handcuffed and should have been 

advised of his Miranda rights. The trial court found that any of Daines’s “side comments” to the 

defendant “which were obviously intended to see if they could get a response” were improper 

“but that question has been struck, and the witness was not allowed to answer, and so we’ll go 

forward.” Neither the prosecutor, nor defense counsel, nor the court believed a cautionary 

instruction would be helpful. 

 On the first day of defendant’s second trial, defense counsel referenced Officer Daines 

testimony at the first trial and asked that the trial court disallow “any testimony regarding what 

[defendant] may have said during the questioning.” Counsel asked that the trial court revisit its 

previous finding that defendant was not in custody prior to the time he was handcuffed, arguing 

that “realistically he wasn’t free to go from the time he was in the chair.” The trial court ruled: 

 All right. Just briefly, the Court is not persuaded that it should change its 

previous ruling in the first trial; that the questions that were initially asked of the 

Defendant, he was not in custody at the time. 

 The officers had come into the apartment. They didn’t know what the 

situation was, whether the Defendant had a right to be there or not. If I recall 

correctly – cause I haven’t looked at the transcript before. It was just brought up 

moments ago – that the Defendant was asked to sit in a chair, but other than that, 

his freedom wasn’t – he wasn’t deprived of his freedom in any meaningful way 

and the officers asked questions until they were able to determine that a crime had 

been committed and the Defendant did not have a right to be there and that’s the 

time they placed him under arrest and placed him in handcuffs and there were no 

further questions asked. So the Court’s going to deny the Defendant’s motion to 

reconsider its decision. 
-14- 

 “[T]he prosecution may not use statements, whether exculpatory or inculpatory, 

stemming from custodial interrogation of the defendant unless it demonstrates the use of 

procedural safeguards effective to secure the privilege against self-incrimination. By custodial 

interrogation, we mean questioning initiated by law enforcement officers after a person has been 

taken into custody or otherwise deprived of his freedom of action in any significant way.” 

Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602, 1612; 16 L Ed 2d 694 (1966). Therefore, 

the Fifth Amendment prohibits a prosecutor from commenting on a defendant’s silence at trial.” 

People v Clary, 494 Mich 260, 265; 833 NW2d 308 (2013). “To otherwise allow the prosecutor 

to use an accused’s silence against him at trial would place an impermissible penalty on the 

exercise of the accused’s right against self-incrimination” because it would permit the jury to 

draw “an inculpatory inference.” People v Gallon, 121 Mich App 183, 187; 328 NW2d 615 

(1982). “We will not condone conduct which directly or indirectly restricts the exercise of the 

constitutional right to remain silent in the face of accusation. ‘Nonutterances’ are not statements. 

The fact that a witness did not make a statement may be shown only to contradict his assertion 

that he did.” People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973). For that reason, “even 

in the face of specific accusation of a crime that an accused’s silence may not be used against 

him.” Id. at360-361. Defendant relies heavily on Bobo but also acknowledges that it has been 

significantly restricted in recent years, especially in instances in which a defendant testifies at 

trial. See People v Cetlinski, 435 Mich 742, 760; 460 NW2d 534, 542 (1990); People v 

McReavy, 436 Mich 197; 462 NW2d 1 (1990); People v Sutton (After Remand ), 436 Mich 575; 

464 NW2d 276 (1990). 

 More recently, this Court has held that “[a] defendant’s constitutional right to remain 

silent is not violated by the prosecutor’s comment on his silence before custodial interrogation 

and before Miranda warnings have been given.” People v McGhee, 268 Mich App 600, 634; 

709 NW2d 595 (2005). Here, the record indicates that defendant was neither under arrest nor 

had he been read his Miranda rights. That does not necessarily end the inquiry because it must 

still be determined whether defendant asserted his right to silence in a custodial interrogation 

situation. 

 “[W]here the police opt to question a defendant, before advising him of his Miranda

rights, and the questioning is investigatory and occurs in a police-dominated or police-compelled 

atmosphere, Miranda would seem to require that the defendant’s responses may not be used in 

order to build a case against him.” People v O’Brien, 113 Mich App 183, 195; 317 NW2d 570 

(1982). However, “[g]eneral on-the-scene questioning as to facts surrounding a crime or other 

general questioning of citizens in the fact-finding process is not affected by the holding of 

Miranda.” People v Dunlap, 82 Mich App 171, 175; 266 NW2d 637 (1978). This is true 

because officers often act naturally and spontaneously and not every inquiry is “made pursuant to 

an already-launched investigation” but may be the result of a mere investigation. Id. 

 This Court has explained: 

 It is quite obvious that any questioning anywhere by a police officer 

generates some pressures and anxieties. However, before defendant’s contention 

can be afforded substance under Miranda, the question that must be answered is 

whether he was in custody or deprived of his freedom of action in any significant 

way when the officer asked “what happened?” Therefore, it is necessary for this 
-15- 

Court to determine under what circumstances the statements of defendant were 

made. 

 The question asked by the officer was not the product of a process of 

interrogation aimed at eliciting incriminatory statements from one whom an 

investigation had focused upon. Instead, it was a situation of an officer reacting 

naturally and spontaneously to the scene before him. It was a routine means of 

commencing an investigation and not an inquiry made pursuant to an alreadylaunched investigation. The defendant had not as yet been placed under arrest; 

neither was he in foreign surroundings nor in a ‘police-dominated atmosphere’ as 

stressed in Miranda. [People v Jackson, 37 Mich App 664, 669; 195 NW2d 312 

(1972).] 

The Jackson Court looked to a case from Tennessee wherein the Tennessee appellate court found 

no error in admitting defendant’s statement to police at the scene of the crime. Officers in that 

case responded to a shooting and found the victim in the defendant’s apartment. Officers asked 

the defendant “what happened?” and the defendant replied “I shot her.” Id. at 315. Similarly, 

the defendant in Jackson was asked “what happened?” at the scene of a shooting and this Court 

determined that the testimony was admissible even though he had not been mirandized because 

he had not been subject to a custodial interrogation. 

 This Court has clarified: 

The term “custodial interrogation” means questioning initiated by law 

enforcement officers after a person has been taken into custody or otherwise 

deprived of his freedom of action in any significant way. To determine whether a 

defendant was in custody at the time of the interrogation, we look at the totality of 

the circumstances, with the key question being whether the accused reasonably 

could have believed that he was not free to leave. The determination of custody 

depends on the objective circumstances of the interrogation rather than the 

subjective views harbored by either the interrogating officers or the person being 

questioned. [People v Zahn, 234 Mich App 438, 449; 594 NW2d 120 (1999) 

(internal citations and quotation marks omitted).] 

 In Zahn, this Court found that, in suppressing the defendant’s statement to police, the trial 

court erred in considering the officer’s testimony that the defendant would not have been free to 

walk out of the apartment building. The Court found that “This consideration was improper. 

Because [the officer’s] intention to prevent defendant from leaving the apartment was not 

conveyed to defendant, it could not have had any bearing on a defendant’s understanding of the 

situation.” Similarly, here, even though Daines testified that defendant was not free to leave 

PL’s apartment from the moment the officers arrived, there was no indication that this was 

communicated to defendant. The proper focus is on defendant’s perception of the situation, and 

not the officer’s opinion about defendant’s freedom to leave. 

In People v Schollaert, 194 Mich App 158, 165; 486 NW2d 312 (1992) “when the 

sheriff’s deputies entered defendant’s home, defendant was not in a custodial interrogation 

situation where he was compelled to speak or to assert his right to remain silent. Although 
-16- 

defendant was the focus of the police investigation at that point, the relevant inquiry is whether 

he was subjected to police interrogation while in custody or deprived of his freedom of action in 

a significant way.” Similarly, here, Daines testified that when officers arrived at PL’s apartment, 

they had no idea what situation confronted them. They did not know whether defendant had a 

right to be there. He could have been the victim of a crime, for all they knew. The “find-out” 

questions to which Daines testified were natural and spontaneous questions that the officers 

asked as part of their initial investigation. The questions were not aimed at eliciting 

incriminating statements and, therefore, were not the result of an interrogation and Miranda was 

not implicated. 

 With regard to any comment regarding defendant’s silence at the first trial, harmless error 

may be found when a witness’s comment on a defendant’s silence was unsolicited or an 

unresponsive answer. Gallon, 121 Mich App at 189. Here, the prosecutor’s questioning was not 

“a studied attempt” to place the matter of defendant’s silence before the jury. People v Sain, 407 

Mich 412, 415; 285 NW2d 772 (1979). More importantly, at no time did the prosecutor refer to 

defendant’s silence or argue that his desire to speak with an attorney was evidence that he had 

something to hide. In short, “[t]he prosecutor did not ask the jury to infer guilt from defendant’s 

silence.” Cetlinski, 435 Mich at 763. Further, defense counsel declined an opportunity for the 

trial court to give a cautionary instruction. “Jurors are presumed to follow their instructions, and 

instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662 

NW2d 836 (2003). Additionally, there was overwhelming evidence that defendant was guilty of 

first-degree home invasion. He was found passed out in PL’s apartment, whose door had been 

kicked in. It appears that the jury had no trouble convicting defendant of first-degree home 

invasion and struggled only with the CSC counts, undoubtedly because of PL’s confusing and 

inconsistent testimony during trial. 

 With regard to defendant’s statements at his second trial – that he and his friends were at 

PL’s apartment and that PL was there before defendant passed out – the statements were not the 

result of a custodial interrogation and, therefore, did run afoul of Miranda. 

V. JUROR QUESTIONS 

 In Docket No. 314335, defendant argues that due process requires a new trial because the 

jurors were actively involved in “filling in any perceived gaps in the prosecutor’s proofs, and in 

deliberating before the conclusion of the case.” We disagree. 

 A trial court’s decision to allow juror questions is reviewed for an abuse of discretion. 

People v Heard, 388 Mich 182, 188; 200 NW2d 73 (1972). Defendant’s claim that allowing the 

jury to participate in questioning witnesses resulted in a denial of due process is a constitutional 

question that this Court reviews de novo. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 

(1999). 

 MCR 2.513(I) provides: 

Juror Questions. 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 ensures 

that such questions are addressed to the witnesses by the court itself, that 
-17- 

inappropriate questions are not asked, and that the parties have an opportunity 

outside the hearing of the jury to object to the questions. The court shall inform 

the jurors of the procedures to be followed for submitting questions to witnesses. 

The practice of allowing jurors to ask questions was sanctioned by People v Heard, 388 Mich 

182; 200 NW2d 73 (1972): 

The practice of permitting questions to witnesses propounded by jurors should 

rest in the sound discretion of the trial court. It would appear that in certain 

circumstances, a juror might have a question which could help unravel otherwise 

confusing testimony. In such a situation, it would aid the fact-finding process if a 

juror were permitted to ask such a question. We hold that the questioning of 

witnesses by jurors, and the method of submission of such questions, rests in the 

sound discretion of the trial court. The trial judge may permit such questioning if 

he wishes, and we hold that it was error for the judge to rule that under no 

circumstances might a juror ask any questions. [Id. at 187-188.] 

The court rule thus embodies Heard’s holding. We decline defendant’s invitation to follow the 

Minnesota Supreme Court’s decision in State v Costello, 646 NW2d 204, 215 (Minn, 2002). 

This Court is not bound by the decisions of courts of other states; rather, it is bound by the 

Supreme Court’s holding in Heard and the court rule. People v Jackson, 292 Mich App 583, 595 

n 3; 808 NW2d 541 (2011). 

 The trial court followed proper procedure. 

VI. SENTENCING ERRORS 

 Finally, in Docket No. 314335, defendant argues that the trial court violated his due 

process rights by scoring sentencing guideline offense variables (OV) and determining 

defendant’s minimum sentence based on disputed facts that the prosecutor did not charge and 

prove beyond a reasonable doubt to the jury. We disagree. 

 Under the sentencing guidelines, the circuit court’s factual determinations 

are reviewed for clear error and must be supported by a preponderance of the 

evidence. Whether the facts, as found, are adequate to satisfy the scoring 

conditions prescribed by statute, i.e., the application of the facts to the law, is a 

question of statutory interpretation, which an appellate court reviews de novo. 

[People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (internal footnotes 

omitted.)] 

 Defendant argues that the trial court violated his rights under the Sixth and Fourteenth 

Amendments to the United States Constitution by engaging in judicial fact-finding that raised his 

minimum sentence in violation of the United States Supreme Court’s decision in Alleyne v 

United States ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2014). However, in Herron, 303 

Mich App 392, 405; 845 NW2d 533 (2013), this Court held that Alleyne does not apply to 

Michigan’s legislative sentencing guidelines: 
-18- 

We hold that judicial fact-finding to score Michigan’s guidelines falls within the 

wide discretion accorded a sentencing judge in the sources and types of evidence 

used to assist the court in determining the kind and extent of punishment to be 

imposed within limits fixed by law. Michigan’s sentencing guidelines are within 

the broad sentencing discretion, informed by judicial factfinding, that does not 

violate the Sixth Amendment. [Internal quotation marks and citations omitted.] 

Defendant acknowledges that his argument has been rejected in People v Herron, 303 Mich App 

392; 845 NW2d 392 (2013) but raises the issue “for possible Michigan Supreme Court review.” 

 Even if the Court was not bound by Herron, defendant’s arguments have no basis in law 

or fact. 

 MCL 777.37(1) provides that 50 points are to be scored when “a victim was treated with 

sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and 

anxiety a victim suffered during the offense.” The statute specifically defines “sadism” as 

“conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to 

produce suffering or for the offender’s gratification.” MCL 777.37(3). The Supreme Court has 

held that: 

 a defendant’s conduct does not have to be “similarly egregious” to “sadism, 

torture, or excessive brutality” for OV 7 to be scored at 50 points, and that, absent 

an express statutory prohibition, courts may consider circumstances inherently 

present in the crime when scoring OV 7. The relevant inquiries are (1) whether 

the defendant engaged in conduct beyond the minimum required to commit the 

offense; and, if so, (2) whether the conduct was intended to make a victim’s fear 

or anxiety greater by a considerable amount. [Hardy, 494 Mich at 443-444.] 

 At defendant’s second sentencing, the trial court acknowledged that it declined to score 

50 points for OV 7 at defendant’s original sentencing when he was sentenced for home invasion. 

However, the trial court stated: 

 I think under the circumstances, in light of the fact that he has been 

convicted now of Criminal Sexual Conduct in the First Degree, that changes the 

Court’s analysis. 

 Based on her testimony, during the course of the assault, there was 

testimony that he told her he was going to kill her and that he did repeatedly hit 

and punch her in the face and kick her and called her names, told her she smelled 

like do-do. 

 It was clear from her testimony and the Court having watched her testify 

twice now, and the manner in which she testified, that this did subject her to 

extreme or prolonged, in particular, humiliation. 

 It is sufficient to score him 50 points for the purpose of OV 7. 
-19- 

The trial court did not err in scoring OV 7 where defendant exercised more physical abuse than 

was necessary to carry out the rape, beating PL. 

 As for OV 10, MCL 777.40(1) provides that 10 points are to be scored if “The offender 

exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic 

relationship, or the offender abused his or her authority status.” The trial court in this case 

stated: 

 I find that the prosecution has provided sufficient evidence on this point 

based on the trial evidence that she was developmentally disabled, that he 

exploited this, that he was with her for a period of time. 

 Her mental disability was apparent to the Court. Since the Defendant was 

with her for a period of time, the Court is convinced, by a preponderance of the 

evidence, that it would have been apparent to him as well. 

 I think by the conduct toward her in terms of telling her she smelled like 

do-do and other things, that he exploited that as well as her physical abilities 

based on her weight, difficulty moving . . .. 

 So I am going to score OV 10 at 10 points. 

 On appeal, defendant seems to argue that because defendant was convicted of CSC-I 

under MCL 750.520b(1)(c) (sexual penetration occurs under circumstances involving the 

commission of any other felony) as opposed to MCL 750.520b(g) (mental incapacity of the 

victim) the trial court was precluded from considering PL’s obvious cognitive impairments. 

Defendant had already been convicted of first-degree home invasion at his first trial. Therefore, 

at the second trial, the “other felony” (first-degree home invasion) was a foregone conclusion 

and the jury only needed to determine whether defendant committed a sexual assault at the time 

of the home invasion. It would be absurd to preclude a trial court from considering the 

aggravating circumstances surrounding the crime. PL was clearly suffering from a diminished 

intellectual capacity, as evidenced by her testimony at both trials. She was an older woman who 

lived alone in a basement apartment. The trial court did not err in scoring OV 10 at 10 points for 

defendant’s exploitation of PL’s vulnerability. 

 Adequate record evidence existed to support the trial court’s assessment of points on the 

challenged offense variables. 

 Affirmed. 

/s/ Christopher M. Murray 

/s/ Henry William Saad 

/s/ Kirsten Frank Kelly