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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 21, 2015

v No. 321283
Oakland Circuit Court PETER JOHN MILLER, LC No. 2013-247999-FC

Defendant-Appellant.

Before: S AWYER , P.J., and D ONOFRIO and B ORRELLO , JJ.

P ER C URIAM

.

Defendant was convicted of six counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a) (victim under 13, defendant 17 or older). He wa s sentenced as a fourth habitual offender, MCL 769.12, to six concurrent terms of 50 to 100 year s in prison. Def endant appeals as of right, and we affirm.

The victims, TB and KB, testif ied to prolonged sexual abuse co mmitted by defendant. The abuse started several years after defendant had married the victims’ mother. Defendant
testified at trial a nd denied that the abus e ever occurred.

Defendant argues that he was denied the right to effective ass istance of trial counsel because his counsel failed to object to certain comments made b y the prosecutor during closing argument. Specifically, he finds fault in the following commen tary:

Ladies and gentlemen, . . . I have to tell you that two differ ent stories does not equal reasonable doubt. You he ard two very different sets of testimony. You heard from [TB and KB], and you heard today from the Defendant. So I don’t want you to go back in that jury room and say to yourselves, yo u know, we think something happened, but it wasn’t beyond a reasonable doubt. D o not do that because this is a case where you just have to decide who you be lieve. ‘Cuz if you believe [TB and KB], the Defendant is guilty of all six of thes e crimes, and if you believe him, he’s not. . . . Some of the questions that you as k yourself when you’re trying to figure out whether you believe a person is do they have any special reason to tell the truth or do they have any special re ason to lie. Defendant sure as heck as [sic] a special reason to lie ‘cuz he ’s facin’ some serious charges. . . . No reason presented to you, even by his own testimony that you heard today, that [TB and KB] , would make this up. None. No explanation.-2- * * *

[TB and KB] told you, in excruci ating detail, what happened to them. They were believable, and they had absolutely no reason to lie. Defendant has every reason in the world to lie.

Defendant neither brought a motion in the trial court for a ne w trial predicated on his claim of ineffective assistance nor requested a Ginther 1 hearing. Therefore, this claim of error is unpreserved, People v Payne , 285 Mich App181, 188; 774 NW2d 714 (2009). “Whether
defendant was denied the effec tive assistance of counsel presen ts a mixed question of fact and
constitutional law.” People v Vaughn , 491 Mich 642, 650; 821 NW2d 288 (2012). Questions of
constitutional law are reviewed de novo. Id. Given the lack of preservation, our review is limited to mistakes apparent on the record. People v Hurst , 205 Mich App 634, 641; 517 NW2d 858 (1994).

In order for a defendant to have an otherwise valid conviction overturned based on a claim of ineffective assistance of counsel, the defendant “must show that counsel’s performance fell below an objective standard of reasonableness, and that th e representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens , 446 Mich 298, 302-303; 521 NW2d 797 (1994). “The inquiry into whether counsel’s performan ce was reasonable is an objective one and requires the reviewing court to determine whe ther in light of all the circumstances, the identified acts or omissions were outside th e range of professionally competent assistance.” Vaughn , 491 Mich at 670.

Our resolution of the issue necessarily involves an inquiry in to whether the prosecutor committed error during the closing arguments. The test for pro secutorial misconduct is whether the conduct deprived defendant of a fair trial. People v Watson , 245 Mich App 572, 586; 629 NW2d 411 (2001). In all instances, a prosecutor’s remarks must be examined in context. People
v Abraham , 256 Mich App 265, 272-273; 662 N W2d 836 (2003). In closing a rguments, the prosecutor may not imply “that d efendant must prove something o r present a reasonable explanation for damaging eviden ce because such an argument tend s to shift the burden of proof.” People v Green , 131 Mich App 232, 237; 345 NW2d 676 (1983). Further, althoug h “a prosecutor may not vouch for the credibility of his witnesses b y implying that he has some special knowledge of their truthfulness,” “a prosecutor may com ment on his own witnesses’ credibility during closing argument, especially when there is c onflicting evidence and the question of the defendant’s guilt depends on which witnesses th e jury believes.” People v

Thomas , 260 Mich App 450, 455; 678 NW2d 631 (2004). Similarly, the “ prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief.” People v Launsburry , 217 Mich App 358, 361; 551 NW2d 460 (1996).

In the instant case, the prosecutor’s statements that defendan t takes issue with involved comparing any motive defendant might have had to lie with any m otive that TB and KB might have had to lie. The prosecutor asserted that defendant had a motive to lie because he was facing

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- “serious charges,” whereas the evidence indicated that TB and K B had no apparent motive to lie. Given the nature of the charges, it is clear that resolution of the case would come down to which story and which witnesses the ju rors chose to believe. Comment ing on the motives of the witnesses to testify as they did is a legitimate way to argue t he issue of credibility, see id. ; People v Flanagan , 129 Mich App 786, 796; 342 NW2d 609 (1983), and it did not ac t to alter the prosecution’s burden of proof. Therefore, the prosecutor’s arg uments regarding the witnesses’ respective motives, based on the evidence, were proper. Indeed , the court instructed the jurors, consistent with M Crim JI 3.6(3)(e), that when deciding which w itnesses to believe they could consider whether any particular w itness has any “personal inter est in how this cases is decided.” Further, the court explained, c onsistent with M Crim JI 3.6(3)( g), that the jurors could also think
about whether the witness had “a ny special reason to tell the t ruth or any special reason to lie.” This is precisely the argument the prosecutor was making, and d efendant has not established any error. Consequently, because the prosecutor’s statements were not improper, defendant’s claim
of ineffective assistance of c ounsel necessarily fails. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating th at failing to make a meritl ess argument or futile objection does not constitute ineffective assistance of counsel).

Affirmed. 2

/s/ David H. Sawyer
/s/ Pat M. Donofrio /s/ Stephen L. Borrello

2 We note that defendant initially raised a second issue in his brief on appeal related to the imposition of court costs, but he lat er withdrew that issue for our consideration.