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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 1, 2016

v No. 326666 Wayne Circuit Court KEJUAN MARCELL DOUGLAS, LC No. 14-007399-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 327354 Wayne Circuit Court CHARLES ANTHONY DOUGLAS, LC No. 14-005015-FC

Defendant-Appellant.

Before: G ADOLA , P.J., and W ILDER and M ETER , JJ.

P ER C URIAM

.

Defendants Kejuan Douglas and Ch arles Douglas were tried joint ly, before a single jury. The jury convicted Kejuan of two counts of first-degree crimina l sexual conduct (CSC), MCL 750.520b(1)(d)( ii ), for which the trial court sentenced him to prison terms of 2 0 to 60 years for each conviction, to be served consecutively. The jury convicte d Charles of third-degree CSC, MCL 750.520d(1)(b); assault and ba ttery, MCL 750.81; first-degr ee CSC, MCL 750.520b(1)(d)( ii ); and unarmed robbery, MCL 750.530. The trial court sentenced Charles to concurrent prison terms of 10 to 15 years each for the third-de gree CSC and unarmed robbery convictions, to be served consecutively to a prison term of 40 to 90 years for the first-degree CSC conviction, and to time served (93 days) for the assault co nviction. Both defendants appeal as of right. We affirm each defendant’s convictions, but reman d for further inquiry of Charles’s
sentences consistent with People v Lockridge , 498 Mich 358, 392; 870 NW2d 502 (2015), and People v Steanhouse , 313 Mich App 1; 880 NW2d 297 (2015), lv gtd 499 Mich 934 (201 6).-2- A jury convicted defendants, who are brothers, of sexually ass aulting a 16-year-old female victim inside a van in an isolated Detroit neighborhood on August 16, 2013. Approximately one month before the assault, the victim met Char les on Tagged.com, a free online social website, and on the day in question she decided t o ask him for a ride to her Inkster home. The prosecution presented evidence that after Charles pi cked up the victim in a van, he then picked up Kejuan and another, unidentified man. Charles m ade several stops, including at a motel, where the victim informed him that she wanted to go home . Charles did not take her home, but instead parked on a dark street. Kejuan pulled the v ictim into the back of the van, and she was forced to perform fellatio on Kejuan while Charles simu ltaneously sexually assaulted her from behind. After this, Kejuan forced penile-vaginal sex upon her. When Kejuan finished, the unidentified man sexually assaulted the victim with defenda nts’ encouragement. The victim was ultimately left on the street, but managed to take Charles’ s phone. As the victim was on the phone with 911, the van returned and Charles chased her to the porch of a house, attempting to retrieve his phone. Charles fled and the homeowner opened the door. DNA recovered from
abrasions on the victim and a towel that Charles had used and l eft at the scene matched Charles’s DNA profile. The prosecution also presented evidence that Char les’s DNA was matched to DNA obtained in another sexual assault case in 2013, in which t hat victim, who identified Charles, similarly testified that she met Charles on Tagged.com , that he picked her up, and that he drove her to a house where she was sexually assaulted by him and several other men. Kejuan’s defense theory at trial was that he was misidentified as an assailant. Charles, who testified on his own behalf, denied any wrongdoing, and claimed that he engaged in consensual sexual activity with the victim.

I. DOCKET NO. 326666 (DEFENDANT KEJUAN DOUGLAS)

In his only issue on appeal, defendant Kejuan Douglas argues t hat the trial court abused its discretion by denying his motion for a mistrial after the c ourt admitted newly discovered other-acts evidence against Charle s. We review a trial court’s ruling on a motion for a mistrial
for an abuse of discretion. People v Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010). An
abuse of discretion occurs when a trial court chooses an outcom e that is outside the range of principled outcomes. Id.

Before trial, defendant Kejuan had no objection to a joint tri al. After trial started, the prosecution received information that codefendant Charles’s DNA had been matched to a similar sexual assault case. Ultimately, the trial court agreed to adm it the newly discovered other-acts evidence against codefendant Cha rles only. In turn, Kejuan mov ed for a mistrial, arguing that in light of this newly discovered evidence against his codefendant , he was entitled to a separate
trial. The trial court denied his motion.

A mistrial should be granted “only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” Id . (citations and quotation marks omitted). In general, a defendant does not have a right to a separate tri al. People v Hurst , 396 Mich 1, 6; 238 NW2d 6 (1976). Indeed, a strong policy favors joint trials in the interest of justice, judicial economy, and administration. People v Etheridge , 196 Mich App 43, 52; 492 NW2d 490 (1992).
Severance is mandated under MCR 6.121(C) only when a defendant demonstrates that his substantial rights will be prejudi ced and that severance is the necessary means of rectifying the potential prejudice. People v Hana , 447 Mich 325, 345; 524 NW2d 682 (1994), amended 447-3- Mich 1203 (1994). For severance to be warranted, a defendant m ust submit an affidavit or make an offer of proof that “clearly, affirmatively, and fully demon strates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice.” Id. at 346. “The failure to make thi s showing in the trial court, absent any significant indication on appeal that the requisite prejudice in fact occur red at trial, will preclude reversal of a joinder decision.” Id. at 346-347. Mere inconsistency of defenses is not enough to r equire severance; the defenses must be mutually exclusive or irreconci lable. Id . at 349. “[I]ncidental spillover prejudice, which is almost inevitable in a multi-defe ndant trial, does not suffice. The tension between defenses must be so great that a jury would hav e to believe one defendant at the expense of the other.” Id. (citations and quotation marks omitted). Severance should be granted “only if there is a serious risk that a joint trial would compr omise a specific trial right of one of the defendants, or prevent the jury from making a reliable judg ment about guilt or innocence.”

Id . at 359-360 (citations and quotation marks omitted).

To hold separate trials in the se substantially identical cases would have been unnecessarily duplicative and excessive. The interests of just ice, judicial ec onomy, and orderly administration clearly favored a joint trial. Kejuan has not p rovided any concrete facts or reasons to justify separate trials and has not persuasively dem onstrated that his substantial rights were prejudiced by a joint trial. The record does not show a “ significant indication” that the requisite prejudice in fact occurred at trial. Id . at 346-347. Kejuan’s mere speculation about the possibility of antagonistic defenses is insufficient to require a separate trial; he made no offer of proof demonstrating a defense that would have required the jury to believe one defendant at the expense of the other. On appeal, he adds the argument that had he known that other-acts evidence would be presented against Charles, “there was the pos sibility he could have presented a defense claiming that it was Charles and not him who committe d the offenses, that [the victim] was mistaken in her identification, [and] that his brother, Cha rles, had brought him into the picture in order to minimize his own involvement [in] the offen ses.” Kejuan’s defense theory, however, was already that he was misidentified, i.e., that he w as not there, and that the victim was not credible. Further, “fi nger pointing” is not a sufficie nt reason to grant se parate trials. See

id . at 360-361. Finally, the risk of prejudice from the joint tr ial was allayed by a proper cautionary instruction. Id. at 351, 356. The trial court instructed the jury that each ca se was to be decided separately and, regard ing the other-acts testimony a gainst codefendant Charles, specifically instructed:

[T]his evidence that you are about to hear applies only to the defendant, Charles Douglas

.

It is not evidence of any kind, and you can not [sic] consider it in any way as it applies to the other defendant, Mr. Kejuan Douglas

.

Okay. So it’s being introduced for a limited purpose and only as it applies to the defendant, Charles Douglas . [Emphasis added.]

Kejuan acknowledges the trial court’s instruction, but asks th is Court to presume that the jury ignored the instruction and used the other-acts evidence t o his detriment. 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). Kejuan has not identifi ed any record-4- support, and we have found none, for his suggestion that the ju ry disregarded the trial court’s instruction. Because Kejuan has failed to show that he was ent itled to severance, the trial court’s
denial of his motion for a mistria l on that basis was not an ab use of discretion. 1

II. DOCKET NO. 327354 (DEFENDANT CHARLES DOUGLAS)

A. ADMISSION OF OTHER-ACTS EVIDENCE

Defendant Charles Douglas argues that his defense was unfairly prejudiced by the admission of the other-acts evidence, which was not discovered until after trial had already started, and accordingly, the trial court abused its discretion in admitting this evidence. 2 We
review the trial court’s decision to admit the evidence for an abuse of discretion. People v

Burns , 494 Mich 104, 110; 832 NW2d 738 (2013). As Charles observes, he must show that he was unfairly prejudiced by the evidence to be entitled to relie f. People v Callon , 256 Mich App 312, 328; 662 NW2d 501 (2003).

Charles asserts that he was unfairly prejudiced for three dist inct reasons. First, Charles argues that unfair prejudice re sulted because defense counsel d id not have the opportunity to ask questions during jury voir dire “to ensure that jurors hearing [the other-acts] evidence could keep an open mind and not immediately conclude that [Charles] was gu ilty . . . .” Charles does not indicate what additional questions counsel would have needed to ask to protect his right to a fair
trial. The record discloses that the trial court and the attor neys adequately questioned the jury venire, and the trial court su fficiently instructed the potenti al jurors to ensure that they remained open-minded and understood the presumption of innocence. Moreo ver, before the jury heard the other-acts evidence, the trial c ourt gave a cautionary instruct ion explaining the limited purpose of the evidence, which limited the potential for any prejudice. T he trial court’s instruction included the directive that the jury “must not convict the defendant her e because you think he’s guilty of other bad conduct,” which directly addressed Charles’s concern that the jury would assume that he was guilty because of the oth er act. Again, juries are pres umed to have followed their instructions, Breidenbach , 489 Mich at 13, and there is no indication that the trial cou rt’s

1 Without proper analysis, Kejuan also argues that the late intr oduction of the othe r-acts evidence prejudiced “possible plea nego tiations.” After the prosecution moved to admit the other-acts evidence, the trial court delayed ruling on the admissibility o f the evidence agai nst Kejuan until a live lineup was conducted with the victim in the other case. A fter the trial cour t’s ruling, defense counsel stated that if Kejuan was identified, he would request a plea offer, but “[i]f he’s not, my client is not interested.” The prosecutor responded that if Ke juan was identified, there would be no offer. The witness did not identify Kejuan and, according t o defense counsel, there was no interest in seeking a plea. There fore, this argument is withou t merit.

2 Charles does not argue that the other-acts evidence was not su bstantively admissible under MRE 404(b)(1). He also does not challenge the trial court’s im plicit finding that, given the late discovery of the evidence, the prosecution was justified in fai ling to provide the required pretrial notice under MRE 404(b)(2).-5- cautionary instruction was not eff ective in this case. Charles simply has not demonstrated that he was prejudiced as a result of the allegedly inadequate voir dir e questioning.

Second, Charles argues that he was unfairly prejudiced because defense counsel “had no opportunity to make an effective choice of trial strategy . . . .” Defendant did not move for a continuance as a result of the newly discovered evidence, and w e can discern no unfair prejudice from its admission. We agree that the other-acts evidence was impactful. However, for relief to be warranted here, defendant must have suffered unfair prejudic e caused by the delay itself, not merely because of the impact of the evidence. Charles offers n o argument for how his trial strategy would have differed had he known about the other-acts evidence before trial. “An appellant may not merely announc e his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only curs ory treatment with little or no citation of supporting authority.” People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998).

Lastly, in an additional cursory complaint, Charles claims tha t defense counsel’s inability to address the other-acts evidence in his opening statement “li kely created the impression that [he] had no answer to such evidence and embarrassed the defense no matter what argument defense trial counsel subsequently made.” It is difficult to c onclude, however, that this situation created significant prejudice, given that the prosecutor was al so unable to address this evidence in his opening statement. In addition, Charles’s defense theor y was consent. The new evidence did not negate that defense. Thus, Charles has not explained h ow he was unfairly prejudiced. Because the record does not establish any unfair prejudice to t he defense, the trial court did not abuse its discretion in admitting t he newly discovered other-ac ts evidence.

B. UPWARD DEPARTURE SENTENCE

In his last issue, Charles argues that the trial court erred b y departing from the sentencing guidelines range and imposing an unreasonable sentence. The tr ial court scored the guidelines
for Charles’s conviction of first -degree CSC, which is a class A offense. MCL 777.16y. Charles received a total offense variable (OV) score of 120 points, whi ch, combined with his 45 prior record variable points, placed him in the D-IV cell of the appl icable sentencing grid, for which the minimum sentence range is 171 to 285 months. MCL 777.62. The trial court departed from that range and sentenced him to 40 to 90 years’ imprisonment. “A sentence that d eparts from the applicable guidelines range will be reviewed by an appellate co urt for reasonableness.” Lockridge , 498 Mich 392.

At the time Charles was sentenced, MCL 769.34(3) required a se ntencing court to state substantial and compelling reasons for imposing a sentence that departs from the sentencing guidelines range. As the parties recognize, after Charles was sentenced, significant changes to Michigan’s sentencing scheme were effectuated by the Michigan S upreme Court’s decision in Lockridge , 498 Mich 358. The Court held that Michigan’s sentencing guid elines are “constitutionally deficient” to the extent that judicial fact-f inding could be used to increase the guidelines minimum sentence range. Id. at 364. The Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck] down the requirement o f a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).” Id. at 391. The Court held that “[a] sentence that departs from the applicable guidelines range will be reviewed by an appellate-6- court for reasonableness.” Id . at 392. However, the Lockridge Court did not set forth a standard for reviewing a sentence for rea sonableness. Accordingly, in Steanhouse , 313 Mich App at 47- 48, this Court adopted the “princi ple of proportionality” previ ously established in People v

Milbourn , 435 Mich 630; 461 NW2d 1 (1990), as the standard for reviewin g a sentence for reasonableness, “hold[ing] that a sentence that fulfills the pr inciple of proportionality under

Milbourn , and its progeny, constitutes a reasonable sentence under Lockridge .” This Court
further held that in cases where the defendant was sentenced be fore Lockridge was decided, implementation of the reasonableness standard requires remand f or consideration of the sentence’s proportionality, follo wing the remand procedure adop ted in United States v Crosby

, 397 F3d 103 (CA 2, 2005); specificall y, this Court stated:

Given our conclusion that the pri nciple of proportionality esta blished under

Milbourn , and its progeny, is now the appropriate standard by which a defendant’s sentence should be reviewed, we find that the proce dure articulated in Lockridge , which is modeled on th e procedure adopted in United States v Crosby

. . . , should apply here. As recently stated by this Court in People v Stokes , 312 Mich App 181, 200-201, 877 NW2d 752 (2015), [appeal held in abe yance ___ Mich ___; 878 NW2d 886 (2016),] “the purpose of a Crosby remand is to
determine what effect Lockridge would have on the defenda nt’s sentence so that it may be determined whether any prejudice resulted from the error .” While the Lockridge Court did not explicitly hold that the Crosby procedure applies under the circumstances of this case, we conclude that this is the pr oper remedy when, as in this case, the trial court was unaware of, and not expres sly bound by, a
reasonableness standard rooted in the Milbourn principle of proportionality at the time of sentencing. [ Steanhouse , 313 Mich App at 48 (citation omitted).]

As in Steanhouse and, more recently, People v Heller , ___ Mich App___; ___ NW2d ___ (2016) (Docket No. 326821); slip op at 2, the trial court impos ed a departure sentence without having an opportunity to adhere t o the standard of reasonablene ss rooted in the Milbourn principle of proportionality. As this Court observed in Heller , “[g]iven Steanhouse ’s directive, the trial court must be permitted to reconsider defendant’s sen tence in the light of Milbourn .”

Heller , ___ Mich App at ___; slip op at 2. Therefore, remand is nece ssary so that the trial court may implement the Crosby remand procedure as articulated in Lockridge

. 3 The prosecutor concurs with this remedy.

3 Within this issue, Charles also requests that we remand the ma tter to a different judge. We reject this request. Initially, we note that Charles fails to properly brief the merits of this request. Kelly , 231 Mich App at 640-641. He merely states that it “appears t hat the Judge’s outrage at Mr. Douglas’s allocution prompted the harsh sentence.” We have reviewed the trial court’s statements at sentencing and they give no cause for concern tha t its sentencing decision was based on inappropriate considerat ions. Further, remand is requ ired in this case because of the post-sentencing decisions in Lockridge and Steanhouse , not because the trial court’s sentence was patently erroneous.-7- We affirm Kejuan Douglas’s convictions in Docket No. 326666. We affirm Charles Douglas’s convictions in Docket No. 327354, but remand for furt her proceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Michael F. Gadola
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter