If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 19, 2021

v No. 349102

Wayne Circuit Court

LUSTER PERNELL BURNS, JR., LC No. 17-010194-01-FC

Defendant-Appellant.

Before: LETICA, P.J., and SERVITTO and M. J. KELLY, JJ.

PER CURIAM.

Defendant, Luster Burns, Jr., appeals as of right his jury trial convictions for first-degree 

criminal sexual conduct (CSC-I), MCL 750.520b, and tampering with evidence in a criminal case, 

MCL 750.483a(6).

1

 Burns was sentenced to 15 to 60 years in prison for the CSC-I conviction, and 

6 to 10 years for the tampering-with-evidence conviction, to be served consecutively. We affirm 

Burns’s convictions, but vacate his sentences and remand for resentencing.

I. BASIC FACTS

Burns was convicted of sexually assaulting BY and intentionally destroying evidence of 

the crime. BY lived on the west side of Michigan and had met Burns through her boyfriend. In 

2013, not long after BY’s boyfriend had died, Burns invited BY to visit him in Detroit to celebrate 

her 21st birthday. BY anticipated that they would go to some nightclubs, but Burns convinced her 

to spend the evening at his house. Another couple joined them. During the night, BY suspected 

that Burns put something in a drink that he gave her, so she refused to drink it. She testified that 

after the other couple went into a bedroom, Burns pointed a gun at her, racked it, told her to go 

into another bedroom, and then penetrated her vagina with his penis. The next morning, he made 

 

1 The jury acquitted Burns of additional charges of felonious assault, MCL 750.82, and possession 

of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
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her take a bath and he took the underwear that she had been wearing. Burns then dropped her off 

at the bus station.

While BY was waiting for the bus, a security guard asked if she needed help because she 

was crying and shaking. She told him that she had been sexually assaulted, and the guard called 

the police. BY directed the responding officers to Burns’s neighborhood and identified the house 

where he lived. The police then took BY to a hospital for a sexual assault examination where 

evidence was collected and some injuries to her genital area were observed. The sexual assault kit 

remained in a warehouse until 2017 because of a backlog of sexual assault cases. In 2017, testing 

of BY’s sexual assault kit revealed the presence of DNA that matched Burns’s DNA profile.

Burns originally was tried in April 2018, but the trial court granted his motion for a mistrial 

because of a prejudicial statement by a police witness on questioning by the prosecutor. At a 

second trial in September 2018, the court again declared a mistrial, this time because the jury was 

unable to reach a verdict. Burns was convicted at his third trial.

II. DOUBLE JEOPARDY

A. STANDARD OF REVIEW

Burns argues that the first mistrial was the result of prosecutorial misconduct and that as a 

result his second retrial violated the Double Jeopardy Clause of the United States Constitution. 

Burns did not raise this challenge before his first or second retrial occurred. Because a doublejeopardy challenge is not preserved if the defendant did not raise the issue in the trial court, our 

review is for plain error. See People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005). 

“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have 

occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial 

rights.” Id. (quotation marks and citation omitted). An error affects a defendant’s substantial 

rights if it was prejudicial, i.e., if it affected the outcome of the lower court proceedings. Id. 

Nevertheless, because the issue of whether the first mistrial was due to prosecutorial misconduct 

was raised before and decided by the trial court, we review the court’s factual findings on that 

issue for clear error. See People v Dawson, 431 Mich 234, 258; 427 NW2d 886 (1988). “A finding 

is clearly erroneous when, although there is evidence to support it, the reviewing court, on the 

whole record, is left with the definite and firm conviction that a mistake has been made.” People 

v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008) (quotation 

marks and citation omitted).

B. ANALYSIS

At Burns’s first trial, the prosecutor questioned the officer-in-charge about BY’s claims 

that she was afraid of Burns. The officer testified that BY told him she was afraid of the gun and 

of things that she had heard from Burns. The prosecutor asked what BY told the officer that she 

had heard from Burns before. The defense lawyer asked to approach the bench for a sidebar. 

Thereafter, the prosecutor asked the officer if BY had told him what Burns had previously said

that caused her to be fearful of Burns. The officer responded that Burns “made reference to 

somebody that had snitched at court, and that in quotation, this was her words, that he said, “I put 
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the niggah in the trunk.” The defense lawyer quickly asked to approach the bench, and she asked 

for a mistrial.

The prosecutor vigorously opposed the motion and defended her questioning of the 

witness. She asserted that the question was intended to elicit testimony that Burns had said 

something to BY that caused her to be fearful of him. The prosecutor stated that she was expecting 

the witness’s answer about Burns making a comment about someone “snitching” at court, but “was 

not expecting the contextual addition” about Burns saying that he “put the niggah in the trunk.” 

The trial court held that a mistrial was warranted. In response to a question by the prosecutor, the 

court indicated that it was “a manifest necessity” to grant a mistrial because the court did not 

believe that Burns would “get a fair trial.” Thereafter, in response to a question by Burns’s lawyer 

as to whether the court was going to “find prosecutor misconduct as the underlining [sic] for the 

mistrial,” the court responded that it was “the prosecutor’s misconduct in this one.” After the jury 

was dismissed, the court stated that it needed “to clarify the record.” The court explained that in 

its ruling it “determined that there’s a manifest necessity for a mistrial and not prosecutorial 

misconduct, and this matter will be retried.”

Under both the federal and Michigan constitutions, a defendant is prohibited from twice 

being placed in jeopardy for the same offense. US Const, Ams V, XIV; Const 1963, art 1, § 15. 

“It is well settled . . . that where a defendant requests or consents to a mistrial, retrial is not barred 

unless the prosecutor has engaged in conduct intended to provoke or ‘goad’ the mistrial request.” 

People v Lett, 466 Mich 206, 215; 644 NW2d 743 (2002). “[R]etrial is always permitted when the 

mistrial is occasioned by ‘manifest necessity.’ ” Id.

Burns argues that the prosecutor’s misconduct was the true reason why a mistrial was 

necessary. However, a finding that a prosecutor’s conduct contributed to or was a cause for a 

mistrial does not necessarily compel a conclusion that retrial would violate double jeopardy. Our 

Supreme Court has held:

Where a mistrial results from apparently innocent or even negligent prosecutorial 

error, or from factors beyond his control, the public interest in allowing a retrial 

outweighs the double jeopardy bar. The balance tilts, however, where the judge 

finds, on the basis of the “objective facts and circumstances of the particular case,” 

that the prosecutor intended to goad the defendant into moving for a mistrial. 

[Dawson, 431 Mich at 257.]

Thus, retrial is permissible under double-jeopardy principles “where the defendant consented to 

the mistrial and was not goaded into consenting by intentional prosecutorial misconduct.” People 

v Tracey, 221 Mich App 321, 326; 561 NW2d 133 (1997).

Burns argues that the prosecutor’s intentional misconduct led to the request for a mistrial. 

The trial court, however, did not find prosecutorial misconduct to be the basis for its grant of a 

mistrial. The court’s finding in that regard is not clearly erroneous. The prosecutor asserted that 

she did not intend to elicit improper testimony. Instead, she told the trial court that the purpose of 

her question was to corroborate BY’s testimony that she was afraid of Burns because of something 

she heard him say previously. The record reflects that during redirect examination, BY testified 

that Burns said that in Detroit, “they be throwing younger girls in the trunk of cars and burning 
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them up.” She testified that made her fearful because she was thinking that “he might be the one” 

who would do something like that. On re-cross-examination, the defense asked BY to explain 

when she had heard Burns make that statement, when it made her fearful, and where she was when 

she heard it. The defense lawyer then stated, “you didn’t put that in your [written] statement,” but

BY testified that she “told that to the detectives.” The prosecutor’s question to the officer was 

“What did [Burns] say to [BY] in the past that caused her to be fearful.” In light of BY’s testimony, 

the prosecutor’s question is not facially improper. And, although the officer’s response to that 

question included a statement that Burns told BY that he “put that niggah in the trunk,” there is 

nothing on the record to suggest that when the prosecutor asked the question, that was the answer 

that she was attempting to elicit.

The court recognized this in its ruling. In response to the prosecutor’s argument regarding 

the purpose of the question, the court stated, “I know where you’re going and what you’re trying 

to do is to corroborate her comment about the fear, but it did cross the line.” Later, the court 

clarified that the prosecutor was “trying to corroborate why she was fearful, but [the officer] made 

a specific statement of what the defendant said.” The court held that the officer’stestimony crossed 

the line. Although the court went on to recite that it had warned the prosecutor that she was 

“getting very close to the line” with her questions and that it asked if she wanted to speak with the 

officer before continuing, there is nothing in the court’s holding indicating that it found that the 

prosecutor deliberately disregarded its warning and intentionally elicited inadmissible testimony 

so as to goad the defense into moving for a mistrial. Instead, after Burns moved for a mistrial, the 

prosecutor vigorously opposed the motion and defended her questioning of the witness, which 

suggests that not only was she not trying to provoke Burns into moving for a mistrial, but she also 

did not want one to be granted.

In sum, the prosecutor’s question was proper—even if the response to the question was 

not. Further, contrary to Burns’s argument on appeal, the record indicates that rather than goading 

him to move for a mistrial, the prosecutor opposed his motion. Finally, Burns moved for a mistrial 

and consented to it being granted. Under these circumstances, the double-jeopardy provision did 

not bar retrial.

III. JUROR MISCONDUCT

A. STANDARD OF REVIEW

Burns argues that the trial court erred by denying his motion for a new trial because the 

jury was exposed to extraneous information. Burns raised this issue in a motion for a new trial 

and we review a trial court’s decision to grant or deny a new trial on the basis of juror misconduct 

for an abuse of discretion. People v Johnson, 245 Mich App 243, 250; 631 NW2d 1 (2001). An 

abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of 

principled outcomes. People v March, 499 Mich 389, 397; 886 NW2d 396 (2016) (quotation 

marks and citation omitted). Burns also asserts that his lawyer provided ineffective assistance by 

not objecting to the court’s handling of the matter. Because no evidentiary hearing was held, 

Burns’s claim that his lawyer was ineffective for failing to raise an appropriate objection to the 

trial court’s handling of the matter is limited to mistakes apparent on the record. People v 

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). 
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B. ANALYSIS

The jury began deliberations on a Friday. It was unable to reach a verdict that day, so the 

court excused the jury and instructed it to resume deliberations the following Monday. After the 

jury resumed deliberations, it sent a note to the court advising that one of the jurors had “discussed 

this with his sister and can’t make a rational decision.” Thereafter, with the agreement of the 

parties, the court questioned that juror individually. Following the questioning, the defense lawyer

expressed satisfaction with the court’s handling of the situation and did not object to the jury 

resuming deliberations with the juror’s continued presence on the jury.

In his motion for a new trial, Burns argued that it was reasonable to believe that the other 

jurors were aware of the conversation that the juror had with his sister, and therefore, the jury as a 

whole was exposed to extraneous information, entitling him to a new trial. He also argued that he 

was entitled to an evidentiary hearing because not all of the jurors had been questioned. The trial 

court denied the motions.

Jurors are permitted to only consider the evidence that is presented in open court. People 

v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997). To establish that extrinsic influence requires 

reversal, the defendant has the initial burden of proving that: (1) the jury was exposed to an 

extraneous influence, and (2) the extraneous influence “created a real and substantial possibility”

that it could have affected the jury’s verdict. Id. at 88-89. Regarding the second element, the 

defendant must show that the extraneous influence is “substantially related to a material aspect of 

the case and that there is a direct connection between the extrinsic material and the adverse 

verdict.” Id. at 89. In determining whether extrinsic information created a “real and substantial”

possibility of prejudice, a court may also consider the following factors:

(1) whether the material was actually received, and if so how; (2) the length of time 

it was available to the jury; (3) the extent to which the juror discussed and 

considered it; (4) whether the material was introduced before a verdict was reached, 

and if so at what point in the deliberations; and (5) any other matters which may 

bear on the issue of the reasonable possibility of whether the extrinsic material 

affected the verdict. [Id. at 89 n 11 (quotation marks and citation omitted).]

If a defendant meets this initial burden, the burden shifts to the prosecution, which must 

demonstrate that the error was harmless beyond a reasonable doubt. Id. at 89.

Here, the information provided to the trial court indicated that a juror had discussed the 

case with his sister and was unable to make a rational decision. To the extent that the juror’s

discussion of the case with his sister qualifies as an extraneous influence, the record does not 

demonstrate a real and substantial possibility that the discussion affected the jury’s verdict. The 

trial court, with the agreement of the parties, questioned the juror about the outside contact and 

explained at length that the juror could only consider the evidence presented in court, was not 

permitted to consider anything he may have been told outside of court, and was required to follow 

the law as instructed by the court. The juror repeatedly acknowledged his understanding of these 

principles and he agreed that he could follow them and return a true and just verdict based only on 

the evidence presented in court and the law as instructed by the trial court. Burns’s lawyer was 

permitted to question the juror, and elicited the juror’s acknowledgment that he understood that it 
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was only his opinion of the case, not an outside person’s opinion, that was important. Because the 

trial court acted promptly upon becoming aware of the juror’s exposure to an outside influence, 

and given the juror’s repeated assurances that he would not consider that outside influence during 

deliberations and would only consider the evidence presented in court and the law as instructed by 

the trial court, there is no real and substantial possibility that the juror’s discussion of the case with 

his sister affected his verdict.

Burns further argues, however, that because the juror had shared with the other jurors that 

he discussed the case with his sister, that was an extraneous influence on the other jurors that 

denied him a fair and impartial trial. We disagree. The record does not demonstrate a real and 

substantial possibility that any information that the juror shared with the other jurors about his 

discussion with his sister affected the jury’s verdict. Instead, beyond indicating that the juror had 

discussed the case with his sister, the jury’s note did not indicate that the juror had shared his 

sister’s thoughts on the case with the rest of the jurors. Nor is the content of that discussion 

otherwise apparent from the record to support a finding that it created a real and substantial 

possibility of affecting the jury’s verdict. Moreover, even if the content of his discussion with his 

sister was shared with the other jurors, there is no basis for reasonably concluding that the 

remaining jurors considered that information during deliberations. On the contrary, because the 

jury advised the trial court of the outside contact and of their concern that the juror was not able to 

make a rational decision, it appears that the remaining jurors recognized that the outside contact 

was improper and should not be considered during deliberations. Under these circumstances, there 

is no real and substantial possibility that any information shared by the juror regarding his 

discussion with his sister affected the jury’s verdict. Accordingly, the trial court did not abuse its 

discretion by denying Burns’s motion for a new trial. Further, because Burns offered no factual 

support for a finding that the juror’s discussion of the case with his sister was considered by the 

jury or may have affected its verdict, the trial court did not err by refusing to conduct an evidentiary 

hearing on that issue.

Burns next asserts that his lawyer was ineffective for failing to object to the manner in 

which the trial court handled this matter. We disagree. Initially, because the extraneous influence 

involved one juror’s discussion with his sister, it was objectively reasonable for Burns’s lawyer to 

agree with the trial court’s decision to question that juror individually, to determine whether he 

could disregard that outside discussion. Further, because the jury’s note provided no indication 

that the remaining jurors were likely to be influenced by any information that the juror shared, it 

was not objectively unreasonable for Burns’s lawyer to forgo requesting that the remaining jurors 

also be questioned. Accordingly, Burns’s claim of ineffective assistance is without merit.

IV. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

Burns argues that the evidence was insufficient to support his convictions of CSC-I and 

tampering with evidence. This Court reviews de novo a challenge to the sufficiency of the 

evidence. People v Hammons, 210 Mich App 554, 556; 534 NW2d 183 (1995). This Court must 

view the evidence in a light most favorable to the prosecution to determine whether there was 

sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a 

reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 
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1201 (1992). Circumstantial evidence and any reasonable inferences that can be drawn from the 

evidence may be sufficient to prove the elements of a crime. People v Abraham, 234 Mich App 

640, 656; 599 NW2d 736 (1999).

B. ANALYSIS

Burns was charged with CSC-I for engaging in sexual penetration with BY under 

alternative theories, namely: (1) that the sexual penetration occurred during the commission of 

another felony (felonious assault), (2) he was armed with a weapon or any article used or fashioned 

in a manner to lead the victim to reasonably believe it to be a weapon, or (3) that he used force or 

coercion to accomplish the sexual penetration and caused personal injury. See MCL 

750.520b(1)(c), (e), and (f). He was also convicted of violating MCL 750.483a(5)(a), which 

prohibits a person from “[k]nowingly and intentionally remov[ing], alter[ing], conceal[ing], 

destroy[ing], or otherwise tamper[ing] with evidence to be offered in a present or future official 

proceeding.” Here, BY testified that, while holding a black handgun, Burns ordered her to remove 

her underwear and get on the bed. He then penetrated her vagina with his penis. She testified that 

she complied because she was afraid of Burns. She also testified that after the assault, he made 

her take a bath and that he took her underwear. There was also sufficient evidence that Burns’s 

sexual penetration caused a personal injury. Specifically, a sexual assault nurse examiner testified 

that that the physical examination showed redness, tenderness, and an oval tear in the posterior 

fourchette. Viewing this testimony in the light most favorable to the jury verdict, there is sufficient 

evidence to support Burns’s convictions.

Burns’s argument that BY’s testimony is uncorroborated and was otherwise not credible is 

misplaced. “It is a well-established rule that a jury may convict on the uncorroborated evidence 

of a CSC victim.” People v Lemmon, 456 Mich 625, 642-643 n 22; 576 NW2d 129 (1998); MCL 

750.520h. Moreover, “[t]his Court will not interfere with the trier of fact’s role of determining the 

weight of the evidence or the credibility of witnesses.” People v Williams, 268 Mich App 416, 

419; 707 NW2d 624 (2005). Although Burns demonstrated that there were some inconsistencies 

between BY’s trial testimony and her prior statements or testimony, the jury could have found that 

those inconsistencies concerned unimportant details or could be explained by misunderstandings 

or errors by the persons writing the reports. The jury was free to credit BY’s principal testimony 

describing the sexual assault and Burns’s actions in forcing her to bathe and taking her underwear. 

Further, the fact that BY was impeached does not negate the sexual assault nurse examiner’s 

testimony that there was vaginal tearing. Viewed in the proper light, the evidence was sufficient 

to support Burns’s convictions.

V. SENTENCE

A. STANDARD OF REVIEW

Burns argues that he is entitled to be resentenced because the trial court relied on conduct 

for which he was acquitted to score the sentencing guidelines, and those scoring decisions affected

his appropriate guidelines range. He also argues that the court erred by scoring offense variable 

(OV) 3. When reviewing a trial court’s scoring decision, the trial court’s “factual determinations 

are reviewed for clear error and must be supported by a preponderance of the evidence.” People 

v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
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B. ANALYSIS

We first address whether the trial court erred by scoring ten points for OV 3. Under MCL 

777.33(1)(d), ten points must be assessed when “[b]odily injury requiring medical treatment 

occurred to a victim.” The trial court found that BY sought medical treatment to prevent sexually 

transmitted diseases and pregnancy, and it also noted that she had vaginal tearing. Burns does not 

dispute that BY received a bodily injury that required medical treatment. Instead, he argues that 

because the prosecutor’s sentencing memorandum indicated that “the sexual assault from an 

unknown male caused the victim to seek treatment to prevent sexually transmitted diseases and 

pregnancy.” He contends that an “unknown male” is not necessarily him. Yet, the jury convicted 

him of sexually assaulting BY, and the evidence presented showed that BY received a bodily injury 

requiring medical treatment. See also People v Barnes, 332 Mich App 494, 500 n 2; 957 NW2d 

62 (2020) (holding prophylactic treatment for sexually transmitted diseases and pregnancy when 

penile-vaginal penetration occurs is sufficient to justify scoring OV 3 at 10 points). The trial court 

was allowed to make the reasonable inference that her injury was caused by the person that the 

jury found had sexually assaulted her less than 24 hours before her medical examination. Burns’s 

argument that the court erred by scoring OV 3 is, therefore, devoid of merit.

His challenge to the court’s decision to score OVs 1, 2, and 12, however, is meritorious. 

The jury acquitted Burns of additional charges of felony-firearm and felonious assault. At 

sentencing, however, the trial court assessed 15 points for OV 1 on the basis of its finding that 

Burns pointed a firearm at or toward BY, MCL 777.31(1)(c), and assessed five points for OV 2 on 

the basis of its finding that Burns possessed a firearm during the offense, MCL 777.32(1)(d). In 

addition, the court assessed five points for OV 12 on the basis of its finding that Burns committed 

a contemporaneous act of felonious assault, MCL 777.42(1)(d), despite that the jury had acquitted 

him of that offense.

As conceded by the prosecution, the court’s consideration of acquitted conduct to score 

OVS 1, 2, and 12 violated Burns’s due-process rights. See People v Beck, 504 Mich 605, 609; 939 

NW2d 213 (2019) (“Once acquitted of a given crime, it violates due process to sentence the 

defendant as if he committed that very same crime.”). Further, the scoring of OVs 1, 2, and 12

increased Burns total OV score from 30 to 55 points, resulting in his placement in OV Level III 

(40-59 points) instead of OV Level II (10-39 points), which increased his minimum guidelines 

range from 81 to 135 months to 108 to 180 months. See MCL 777.62. A scoring error that affects 

the appropriate guidelines range generally requires resentencing. People v Francisco, 474 Mich 

82, 92; 711 NW2d 44 (2006). Accordingly, pursuant to Beck and Francisco, we vacate Burns’s

sentences and remand for resentencing consistent with this opinion.

2

 

2 Because resentencing is required, we decline to address Burns’s argument that the trial court 

abused its discretion by imposing consecutive rather than concurrent sentences. On remand, if the 

court again decides to impose consecutive sentences, it should once again articulate on the record 

the reasons for imposing a consecutive sentence. See People v Norfleet, 317 Mich App 649, 665; 

897 NW2d 195 (2016).
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We affirm Burns’s convictions, but vacate his sentences and remand for resentencing. We 

do not retain jurisdiction.

/s/ Anica Letica

/s/ Deborah A. Servitto

/s/ Michael J. Kelly