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UNPUBLISHED

March 30, 2023

v No. 358621

Barry Circuit Court

AARON DANIEL WIRTJES, LC No. 2021-000081-FC

Defendant-Appellant.

Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions and sentences of one count of first-degree 

criminal sexual conduct with a weapon, MCL 750.520b(1)(e); one count of kidnapping, 

MCL 750.349; one count of assault with a dangerous weapon, MCL 750.82; one count of domestic 

violence—third offense, MCL 750.81(2) and (4); and four counts of using of a firearm in the 

commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 

570 to 960 months’ imprisonment for the first-degree criminal sexual conduct and kidnapping

convictions; 120 to 180 months’ imprisonment for the assault with a dangerous weapon conviction; 

180 to 960 months’ imprisonment for the domestic violence—third-offense conviction; and 24

months’ imprisonment for each of the felony-firearm convictions. We affirm.

I. FACTUAL BACKGROUND

This case stems from the kidnapping and sexual assault of CF on February 20, 2020. CF 

had recently broken up with defendant because defendant forced her to have sex with him on 

several occasions. After the breakup, defendant refused to leave CF alone, constantly texting her 

and showing up at her family events uninvited. Late in the evening on February 20, 2020, CF

arrived home in her vehicle after work, exited her vehicle, and saw a man in a mask run at her 

from a shed on the property. CF immediately recognized defendant’s boots and the way he ran. 

Defendant wore a black ski mask, a black, zip-up hoodie, black sweatpants, and gloves. CF 

recognized defendant’s eyes behind the ski mask. CF further recognized defendant’s voice, even 

though he used a voice modulator to disguise his voice, because defendant had Tourette’s

syndrome with recognizable vocal tics.
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Defendant pointed a gun in CF’s face and ordered her to get back in her vehicle. CF 

complied and defendant ordered her to drive to a remote location where he told her to stop, ordered

her to get into the backseat, and then he raped her with a gun pressed to her head. Afterward, CF 

drove back to her apartment building where defendant exited the vehicle, pointed the gun back 

through the window at CF, told her to drive away, and threatened to kill her if she came back or 

told anyone.

At trial, the prosecution introduced CF’s uncle, who testified that he worked with defendant 

and that before the incident defendant brought a voice modulator device to work to show off. The 

prosecution also introduced physical evidence at trial including a black sweatshirt found on the 

route that defendant made CF drive. The sweatshirt tested positive for both DNA and semen

revealing an extraordinarily high likelihood that both CF and defendant contributed to DNA found 

on the sweatshirt, and that defendant contributed the semen found on it. The prosecution also

introduced a cigarette butt from the scene of the crime bearing CF’s DNA. Further, the prosecution 

introduced video surveillance from CF’s apartment complex that showed a figure appear from 

behind the shed and approach CF’s vehicle on the night of the incident.

Defendant’s ex-wife testified at trial for the prosecution about instances in which defendant 

sexually assaulted her during their marriage, an instance in which defendant kidnapped their 

daughter, and an incident in which defendant threatened his ex-wife with a knife. She testified 

that defendant broke into her home in a trailer park and took their daughter from her bassinette in 

September 2015. After calling the police, she tried to contact defendant. Defendant told her that 

he left the child in a field for farmers to run over. He also stated that he had sent her off with 

strangers. Defendant told her to meet him in a playground. She went alone with her phone ready 

to dial 911. Defendant failed to bring their daughter to the playground. Defendant took his exwife’s phone and tried to break it and then stood behind her and placed his arm around her neck

and threatened that he had a knife. She talked him down, and defendant told her to go pack her 

belongings and meet him in 20 minutes. Defendant’s ex-wife went home and told the police that 

defendant attacked her. The police located her daughter.

Kalamazoo County Sheriff’s Department Detective Sergeant Ryan Johnson testified about 

the kidnapping incident as well. He provided further details of the police’s success in locating 

defendant and the daughter. He explained that the police placed defendant in custody after the 

police found him and the child in an abandoned trailer in the trailer park. Defendant refused to put 

the baby down and police were forced to use a Taser. Officers found a pocketknife in his pocket 

during the arrest.

Defendant’s ex-wife detailed another incident that occurred in 2015. She took her son to 

the hospital for treatment and returned home, but the next day she received a phone call telling her 

that she needed to bring her son back for further testing. She packed up her children and started 

to drive out of the trailer park. At the park exit, defendant came out from behind a sign and got in 

the car. He confessed that he made the call posing as hospital staff. He directed his ex-wife to 

start driving. He took her cell phone and placed it out of her reach and told her that he had a gun. 

She faked a medical episode and convinced defendant that she needed to stop driving and eat. 

Defendant let her drop him off, and defendant’s ex-wife went back to her house to call the police.
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A jury found defendant guilty on all charges. At sentencing, defense counsel argued that 

defendant should not be sentenced at the top of the sentencing guidelines minimum sentence range 

because the rape was less severe than stranger rape. The trial court interrupted defense counsel 

several times during this argument to question defense counsel. The trial court told defense 

counsel to tell the victim in this case that her rape was less severe than other rapes. After the 

interaction between the trial court and defense counsel, defendant allocuted on his own behalf. 

The trial court sentenced defendant as previously described. Defendant now appeals.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

First, defendant argues that defense counsel provided ineffective assistance by failing to 

file a motion to exclude the testimony of defendant’s ex-wife and Detective Sergeant Johnson and 

by not objecting to it. We disagree.

To preserve the issue of whether counsel rendered ineffective assistance, the defendant 

must move for a new trial or evidentiary hearing in the trial court or move for remand on appeal. 

People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Defendant did not move for a 

new trial or an evidentiary hearing in the trial court. Appellate counsel, however, moved in this 

Court to remand for an evidentiary hearing1on this issue. This Court denied the motion for failure 

to persuade the Court of the necessity of remand at the time.

2

 Defendant, therefore, preserved this 

issue for appellate review. People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 

(2020).

A defendant’s ineffective assistance of counsel claim “is a mixed question of fact and 

constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review 

the trial court’s findings of fact for clear error and review questions of law de novo. People v 

Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). When there has been no evidentiary 

hearing held below, however, our review is limited to mistakes apparent on the record. People v 

Riley (After Remand), 468 Mich 135, 139, 659 NW2d 611 (2003). “If the record does not contain 

sufficient detail to support defendant’s ineffective assistance claim, then he has effectively waived 

the issue.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

Both the United States and Michigan Constitutions guarantee a defendant the right to 

effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. This state has adopted 

the federal constitutional standard for an ineffective assistance of counsel claim as set forth in 

Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v Pickens, 

446 Mich 298 314; 521 NW2d 797 (1994). To obtain a new trial, a defendant must establish that 

“(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for 

counsel’s deficient performance, there is a reasonable probability that the outcome would have 

been different.” Trakhtenberg, 493 Mich at 51. A defendant must “overcome the strong 

 

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2 People v Wirtjes, unpublished order of the Court of Appeals, entered July 1, 2022 (Docket 

No. 358621).
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presumption that counsel’s performance was born from a sound strategy.” Id. at 52 (citation 

omitted).

“The inquiry into whether counsel’s performance was reasonable is an objective one and 

requires the reviewing court to determine whether, in light of all the circumstances, the identified 

acts or omissions were outside the wide range of professionally competent assistance.” People v 

Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). “This 

standard requires a reviewing court to affirmatively entertain the range of possible reasons . . .

counsel may have had for proceeding as they did.” Id. (quotation marks and citation omitted; 

alteration in original). We will not substitute our judgment for that of counsel or use the benefit 

of hindsight in assessing the trial counsel’s competence. People v Unger, 278 Mich App 210, 242-

243; 749 NW2d 272 (2008). Defense counsel is not ineffective by failing to make an objection 

that lacks merit. See People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). Further, 

the “fact that defense counsel’s strategy may not have worked does not constitute ineffective 

assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 

(1996).

MCL 768.27b in relevant part provides:

(1) Except as provided in subsection (4), in a criminal action in which the 

defendant is accused of an offense involving domestic violence or sexual assault, 

evidence of the defendant’s commission of other acts of domestic violence or 

sexual assault is admissible for any purpose for which it is relevant, if it is not 

otherwise excluded under Michigan rule of evidence 403.

(2) If the prosecuting attorney intends to offer evidence under this section, 

the prosecuting attorney shall disclose the evidence, including the statements of 

witnesses or a summary of the substance of any testimony that is expected to be 

offered, to the defendant not less than 15 days before the scheduled date of trial or 

at a later time as allowed by the court for good cause shown.

(3) This section does not limit or preclude the admission or consideration 

of evidence under any other statute, including, but not limited to, under section 27a, 

rule of evidence, or case law.

MCL 768.27b permits the admission of defendant’s other acts of domestic violence or 

sexual assault in cases involving domestic violence or sexual assault, so long as the testimony 

meets the standards of MRE 403. Our Supreme Court explained that trial courts must consider the 

applicability of other rules of evidence, not just MRE 403, when determining the admissibility of

evidence under MCL 768.27b. People v Propp, 508 Mich 374, 386; 976 NW2d 1 (2021). A trial 

court abuses its discretion if it fails to consider other evidence rules applicable when determining 

whether to admit evidence under MCL 768.27b. Id.

Under MRE 403,

evidence 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 
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considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.

Once admitted, unlike other-acts evidence under MRE 404(b) which prohibits presentation of 

evidence of a defendant’s other crimes, wrongs, or acts to prove a defendant’s propensity to 

commit a crime, under MCL 768.27b, the evidence may be used to argue that defendant had a 

propensity to commit acts of domestic violence or sexual assault. People v Railer, 288 Mich App 

213, 219-220; 792 NW2d 776 (2010).

A. DEFENDANT’S EX-WIFE’S OTHER-ACTS TESTIMONY

Defendant argues that defense counsel failed to provide effective assistance by not filing a 

motion to exclude the testimony of his ex-wife and by failing to object to the admission of such 

testimony. We disagree.

MCL 768.27b(1) governs the admissibility of defendant’s ex-wife’s testimony. Defendant 

stood accused at trial of committing both first-degree criminal sexual conduct with a weapon, MCL 

750.520b(1)(e), and domestic violence—third offense, MCL 750.81(2) and (4). The charged

offenses involved domestic violence because defendant had been in a dating relationship with CF

and accused of causing her physical harm by raping her. See MCL 768.27b(6)(a)(i); 

MCL 768.27b(6)(b)(iv). Likewise, the incidents with defendant’s ex-wife involved acts of 

domestic violence because she had been married to defendant and during separation from him he

kidnapped their daughter and threatened his ex-wife with a knife. See MCL 768.27b(6)(a)(iv); 

MCL 768.27b(6)(b)(iv). She also testified that defendant sexually abused her repeatedly. See 

MCL 768.27b(6)(c).

In its first notice of evidence, the prosecution disclosed that it intended to call defendant’s 

ex-wife to testify about past acts of domestic violence. The first notice specifically cited her 

personal protection order against defendant and defendant’s 2015 conviction arising out of the 

incident in which defendant took his daughter and held a knife to his ex-wife’s neck. Later, the 

prosecution provided a supplemental notice to defense counsel that it would also offer testimony 

from defendant’s ex-wife detailing an instance in which defendant forced his way into her car, 

stated he had a gun, and forced her to drive. Defendant’s ex-wife’s testimony was admissible at 

trial in this case under MCL 768.27b.

Defendant does not argue that the ex-wife’s testimony was inadmissible under MRE 403. 

“An appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation 

of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) 

Defendant waived this issue when he failed to articulate why her testimony may have been 

excluded under MRE 403.

Because defendant’s ex-wife’s testimony was admissible under MCL 768.27b, we also 

conclude that defense counsel did not provide ineffective assistance by not moving to exclude the 

testimony. Defense counsel did not respond to the supplemental notice, but she did attempt 

unsuccessfully to exclude the former spouse’s testimony at a pretrial hearing. Because MCL 

768.27b plainly permitted the admission of the other-acts evidence, defendant’s argument lacks 
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merit. Defense counsel is not required to advocate for a meritless position. Matuszak, 263 Mich 

App at 58.

Defendant also argues that defense counsel provided ineffective assistance by failing to 

object to his ex-wife’s testimony at trial when she injected gratuitous and nonresponsive comments 

in her answers. Defendant cites his former spouse’s answers to defense counsel’s crossexamination as examples of gratuitous and nonresponsive answers, such as her testimony that 

defendant stole her laptop and purse from her vehicle. Defendant claims that his ex-wife asked 

him to retrieve these items for her. When questioned, she testified:

I don’t remember a voicemail, but honestly I don’t remember a whole lot for the 

first three months after all this ‘cause I went through some pretty intense therapy 

after what your client put me through, ma’am.

Defendant argues at length in his brief that his ex-wife testified inconsistently at trial, but he does

not explain how her testimony was gratuitous or prejudicial to defendant. Further, defendant cites 

no authority to explain why defense counsel was ineffective for her failure to object to his exwife’s testimony at trial. Defendant’s argument appears to be aimed more at attacking his former 

spouse’s credibility as a witness. We generally defer to the credibility determinations of the factfinders at trial. See MCR 2.613(C); People v Galloway, 259 Mich App 634, 638; 675 NW2d 883 

(2003).3 Defendant has waived this argument upon appeal. See Kelly, 231 Mich App at 640-641.

B. DETECTIVE SERGEANT JOHNSON’S OTHER-ACTS TESTIMONY

Defendant also argues that defense counsel provided ineffective assistance by failing to 

object to the admission of Detective Sergeant Johnson’s testimony at trial, of which he claims the 

prosecution failed to provide notice in the supplemental notice. We disagree.

Detective Sergeant Johnson testified about his response to defendant’s ex-wife’s house 

after defendant kidnapped their daughter and how the police located defendant in the aftermath of 

the kidnapping. His testimony was admissible under MCL 768.27b as evidence of past domestic 

violence. Defendant points to no authority that states a specific witness must be identified in the 

notice. The record indicates that the prosecution gave a detailed notice of its intent to introduce 

evidence of the kidnapping in the prosecution’s first notice, six months before the trial. Defense 

counsel unsuccessfully objected to the admission of evidence of the September 2015 kidnapping 

at the pretrial hearing. At trial, Detective Sergeant Johnson testified about his response to the 

initial police report and the success at locating defendant and his daughter. Defendant has not 

 

3 We additionally note, the physical evidence at trial also corroborated CF’s recitation of the rape 

and kidnapping. The surveillance video showed a figure that came out from behind a shed, 

approach her vehicle, and then the vehicle drove away. Further, DNA evidence placed both 

defendant and CF at the scene. DNA pulled off of the cigarette placed CF at the scene of the rape. 

DNA pulled off of the black sweatshirt found on the route CF drove contained DNA of both CF 

and defendant. It also contained sperm connected to defendant.
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argued how this testimony should have been excluded under MCL 768.27b or MRE 403. Because 

the trial court properly admitted the testimony, defense counsel was not required to advocate for a 

meritless position. Matuszak, 263 Mich App at 58. Defendant, therefore, has failed to establish a 

factual predicate for his ineffective assistance of counsel claim.

C. DEFENSE COUNSEL’S PERFORMANCE AT SENTENCING

Defendant argues that defense counsel also provided ineffective assistance at his 

sentencing by failing to inform the trial court that defendant did not kidnap his daughter and that 

his conviction that arose out of that incident was already accounted for under the sentencing 

guidelines. We disagree.

The testimony at trial established that defendant entered his ex-wife’s home without 

consent and kidnapped their daughter. He ultimately pleaded to assault with a dangerous weapon, 

MCL 750.82, related to that incident. Although defense counsel did not specifically argue that the 

sentencing guidelines already accounted for this conduct, the record reveals that the trial court 

understood that the guidelines accounted for the incident. The record further reflects that among 

the various arguments made by defense counsel, she argued that the September 2015 incident 

proved less harmful than it could have been. This Court will not attempt to second-guess defense 

counsel on matters of strategy and counsel is not ineffective merely because her strategy proved 

unsuccessful. See Stewart (On Remand), 219 Mich App at 42.

III. SENTENCING

A. SENTENCE PROPORTIONALITY

Next, defendant argues that the trial court gave undue weight to other-acts evidence when 

it sentenced defendant within the recommended sentencing guidelines range. We disagree.

We review for clear error a trial court’s factual determinations under the sentencing 

guidelines. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear error occurs if 

the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” 

People v Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018) (quotation marks and citation 

omitted). “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.” Hardy, 494 Mich at 438.

The sentencing guidelines are advisory. People v Lockridge, 498 Mich 358, 365; 870 

NW2d 502 (2015). However, “a sentencing court must determine the applicable guidelines range 

and take it into account when imposing a sentence.” Id. If the trial court imposed a minimum 

sentence within the range recommended under the advisory guidelines, that sentence is

presumptively proportionate. MCL 769.34(10); People v Armisted, 295 Mich App 32, 51; 811 

NW2d 47 (2011); see also People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). 

“The principle of proportionality simply ‘requires sentences imposed by the trial court to be 

proportionate to the seriousness of the circumstances surrounding the offense and the offender.’ ” 

People v Lydic, 335 Mich App 486, 501; 967 NW2d 847 (2021), quoting People v Milbourn, 435 

Mich 630, 636; 461 NW2d 1 (1990), and citing People v Steanhouse, 500 Mich 453, 474; 902 

NW2d 327 (2017). We must affirm a sentence that falls within the recommended sentencing
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guidelines range absent an error in scoring or reliance on inaccurate information. Schrauben, 314 

Mich App at 196 & n 1. If the trial court sentenced a defendant based on a scoring error that 

altered the appropriate guidelines range, the defendant is entitled to resentencing using 

appropriately scored guidelines. See People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 

(2006). If the scoring error does not affect the range, the defendant is not entitled to resentencing. 

Id. at 89 n 8.

Defendant does not assert any error in scoring or that the trial court based his sentences on 

inaccurate information. Defendant’s sentence is within the recommended minimum guidelines 

range and is presumptively proportionate. See MCL 769.34(10); Schrauben, 314 Mich App at 196

& n 1. Therefore, we must affirm defendant’s sentence. The record also reveals that the trial court 

properly considered the seriousness of the offenses for which the jury found defendant guilty 

beyond a reasonable doubt and appropriately considered defendant’s lengthy criminal history of 

domestic violence and kidnapping and properly justified the sentences it imposed.

Defendant argues further that his case should be held in abeyance in light of our Supreme 

Court’s order to schedule oral arguments in People v Posey, 508 Mich 940 (2021), because they

ordered the parties to file supplemental briefs addressing among other things:

[W]hether the requirement in MCL 769.34(10) that the Court of Appeals affirm any 

sentence within the guidelines range, absent a scoring error or reliance on 

inaccurate information, is consistent with the Sixth Amendment, the due-process 

right to appellate review, and People v Lockridge, 498 Mich 358; 870 NW2d 502 

(2015); and, if not, . . . whether the appellant’s sentence is reasonable and 

proportionate. [Id.]

Under Schrauben, we must uphold a sentence imposed within a defendant’s sentencing guidelines 

range because of its presumptive proportionality. We are required to follow the precedent of 

published Court of Appeals decisions. MCR 7.215(C)(2). Further, this Court previously denied 

defendant’s motion for abeyance.4 Therefore, we decline to hold defendant’s case in abeyance.

B. THE RIGHT TO ALLOCUTION

Defendant also argues that the trial court violated Michigan Code of Judicial Conduct, 

Canon 3(A)(12) by interrupting defense counsel while arguing for a lower sentence and depriving 

him of his right to allocution. We disagree.

Because defendant did not preserve this issue for appellate review, we review for plain 

error affecting substantial rights. People v Cain, 498 Mich 108, 116; 869 NW2d 829 (2015). 

Under the plain error test, defendant must establish that “(1) error must have occurred, (2) the error 

was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights.” People v 

Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citation omitted). “The third requirement 

generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower 

 

4 People v Wirtjes, unpublished order of the Court of Appeals, entered May 19, 2022 (Docket 

No. 358621).
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court proceedings.” Id. (citation omitted). If the defendant satisfies the first three prongs, “an 

appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted 

only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or

when an error seriously affect[ed] the fairness, integrity or public reputation of judicial 

proceedings independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and 

citation omitted; alterations in original).

We review de novo interpretations of court rules and statutes. People v Dixon-Bey, ___ 

Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 354866); slip op at 2. We also review 

“de novo the scope and applicability of the common-law right to allocute . . . .” People v Petty, 

469 Mich 108, 113; 665 NW2d 443 (2003).

Defendants have a right to allocution. At sentencing, the trial court must “give the 

defendant, the defendant’s lawyer, the prosecutor, and the victim an opportunity to advise the court 

of any circumstances they believe the court should consider in imposing sentence.” 

MCR 6.425(D)(1)(c). The Michigan Code of Judicial Conduct, Canon 3(A)(12) provides that a 

“judge should avoid interruptions of counsel in their arguments except to clarify their 

positions . . . .”

On appeal after remand in Dixon-Bey, this Court vacated the defendant’s sentence and 

remanded for resentencing before a different judge because the trial court imposed an upward 

departure sentence based on acquitted conduct and the trial court violated the defendant’s right to 

allocution at sentencing. Dixon-Bey, ___ Mich App at ___-___; slip op at 3-4. Although charged 

with first-degree murder, the jury found defendant guilty of second-degree murder. Id. at ___; slip 

op at 1. At sentencing, the trial court departed upward from the minimum sentencing guidelines 

range because it believed that the defendant committed first-degree murder. Id. at ___; slip op 

at 2. At resentencing, after both attorneys informed the trial court that it could not factor acquitted 

conduct into sentencing, the trial court directly questioned the defendant about taking 

responsibility for the murder. Id. at ___; slip op at 4. Defense counsel objected but the trial court 

continued until defense counsel posed a further objection. Id. The trial court discontinued

questioning, but the defendant declined to speak further. Id. This Court held that the trial court’s 

conduct violated defendant’s right to allocution because the trial court abandoned its role as an 

impartial magistrate and likely intimidated the defendant causing her to cease her allocution. Id. 

at ___; slip op at 5. This Court concluded that the trial court only provided her with “an illusory 

and superficial opportunity for allocution.” Id.

Defendant argues that his case differs little in practical effect from Dixon-Bey. The record 

in this case reflects that the trial court interrupted defense counsel during allocution after she 

argued that defendant’s conduct differed in severity from other rape scenarios. The trial court 

recounted the trial evidence and asked defense counsel to explain her position that defendant’s 

conduct differed palpably from other rapes. Although the trial court’s interruptions initially sought 

clarification, the court’s colloquy with defense counsel went beyond mere clarification. The 

record, however, indicates that the trial court did not influence defense counsel or prohibit her

from making her argument that the trial court should consider defendant’s conduct less severe than 

a stranger rape scenario as part of its sentencing decision and requested that the trial court impose 

a lower sentence than the court may have been considering.
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In contrast to Dixon-Bey, the trial court did not depart from the sentencing guidelines and 

the trial court did not exchange heated words with defendant to intimidate him. Instead, after his 

counsel concluded her argument the trial court asked defendant if he desired to speak and permitted 

him to do so without interruption. Defendant expressed remorse for his conduct and explained 

that he desired an opportunity to not spend the rest of his life in prison. Defendant acknowledged 

that he had a criminal history and that he had struggled with alcohol addiction. He concluded by 

reiterating that he had remorse for his actions.

The record in this case indicates that the trial court did not offer defendant an illusory or 

superficial opportunity for allocution. The trial court gave defendant the opportunity to exercise 

his right to allocution. Because defendant exercised his right to allocution, we cannot conclude 

that the trial court committed plain error. Further, even if the trial court’s interruption of defense 

counsel’s allocution argument constituted plain error, based on the entire record before this court, 

we are not convinced that the error affected defendant’s substantial rights.

C. THE CONTENTS OF THE PRESENTENCE INVESTIGATION REPORT (PSIR)

Defendant also argues for the first time on appeal that the PSIR contained inaccurate

information. MCL 769.34(10) states in relevant part:

A party shall not raise on appeal an issue challenging the scoring of the sentencing 

guidelines or challenging the accuracy of information relied upon in determining a 

sentence that is within the appropriate guidelines sentence range unless the party 

has raised the issue at sentencing, in a proper motion for resentencing, or in a proper 

motion to remand filed in the court of appeals.

Although defense counsel objected at sentencing to the contents of the PSIR because it 

contained duplicative information and some information that counsel considered irrelevant, 

defendant did not object to the accuracy of the information contained in the PSIR. Further, 

defendant did not raise the issue in a motion for resentencing in the trial court or in a proper motion 

to remand filed in this Court. Defendant argues that the issue of resentencing is preserved because 

he filed a timely motion to remand for resentencing. Defendant’s contention, however, lacks merit. 

Appellate counsel’s motion to remand on the issue of ineffective assistance of counsel was denied 

by this Court. Appellate counsel did not raise the issue of resentencing in that motion. Appellate 

counsel instead later filed an “amended” motion to also request a remand for resentencing. 

However, this Court rejected the amended motion because no provision in the Michigan Court 

Rules permits an amendment to a motion that has already been decided by this Court. The record 

does not show that defendant filed a new motion to remand for resentencing raising the issue for 

appeal. Defendant, therefore, failed to preserve the issue for appeal and is precluded from appellate 

review.

D. RESENTENCING UNDER A NEW JUDGE

Defendant also argues that he is entitled to resentencing under a new judge. We disagree. 

Because defendant is not entitled to resentencing, he is also not entitled to resentencing before a 

new judge.
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IV. STANDARD 4 BRIEF

Defendant filed a pro se Standard 4 brief pursuant to Administrative Order 2004–6, 

Standard 4, raising several additional arguments.

A. PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE

Defendant first argues that the prosecution engaged in misconduct in three ways by

knowingly submitting false evidence, by vouching for the credibility of the key witness, and by 

making false statements during closing arguments. Defendant also argues that defense counsel 

provided ineffective assistance by failing to object to the prosecution’s misconduct during trial. 

We disagree.

We generally review a claim of prosecutorial misconduct de novo to determine whether 

defendant was denied a fair trial. See People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 

(2013). Because this issue is unpreserved, appellate review is limited to plain error. See Cain, 

498 Mich at 116. When a claim of prosecutorial misconduct is unpreserved, we will only review 

the alleged error if a curative instruction could not have remedied the prejudicial effect of the 

prosecutor’s comments or if the failure to consider the issue would result in a miscarriage of 

justice. People v Mayhew, 236 Mich App 112, 122-123; 600 NW2d 370 (1999). A miscarriage 

of justice will not be found if the prejudicial effect of the prosecutor’s comments could have been 

cured by a timely instruction. Id. at 123. Curative instructions are sufficient to cure the prejudicial 

effect of most inappropriate prosecutorial statements. People v Seals, 285 Mich App 1, 22; 776 

NW2d 314 (2009).

“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and 

impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of 

prosecutorial misconduct are decided case by case, and this Court must examine the entire record 

and evaluate a prosecutor’s remarks in context.” Id. at 64. A prosecutor’s remarks are “evaluated 

in light of defense arguments and the relationship they bear to the evidence admitted at trial to 

determine whether a defendant was denied a fair and impartial trial.” People v Brown, 267 Mich 

App 141, 152; 703 NW2d 230 (2005). The defendant bears the burden of proving that he was 

denied a fair and impartial trial. People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014).

A prosecutor has the right to introduce evidence that he or she legitimately believes will be 

accepted by the trial court. As such, a claim of prosecutorial misconduct cannot be predicated on 

a good-faith effort to admit evidence. See People v Noble, 238 Mich App 647, 660-661; 608 

NW2d 123 (1999). However, the prosecution is not permitted to use false evidence to convict a 

defendant. People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). A defendant bears

the burden of establishing that the evidence was in fact false. See People v Bass, 317 Mich App 

241, 272; 893 NW2d 140 (2016).

Defendant first argues that the prosecution engaged in misconduct when it introduced 

photographs of a gun and mask seized from defendant’s house knowing that these items were not 

the gun or mask used during the rape. Before the photographs were admitted into evidence, the 

prosecution asked CF if she recognized the mask and gun. CF answered that she recognized 

neither item as those used in the incident. When these photographs were admitted into evidence, 
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the prosecution asked a detective sergeant if these items were seized from defendant’s house. The 

detective sergeant confirmed that the items were seized from the house.

The prosecution’s closing argument addressed the fact that CF did not identify the mask 

and gun as the items used during the rape:

And keep in mind [CF’s] not just IDing it to ID stuff, she’s IDing it because 

she knows that’s the sweatshirt he was wearing. There was a glove right by. She 

said that’s not the glove he was wearing. Police recovered a gun from [defendant’s] 

house. Says that’s not the gun he had. Recovered a mask. She says that’s not the 

mask he had. She’s not just saying yes to whatever the troopers find, she says yes 

to the sweatshirt because he was wearing it, and she knows that’s what he was 

wearing.

Defendant’s argument does not establish that the prosecution knowingly introduced the 

mask and gun as the items used in the rape. Instead, the prosecution seemed to have introduced 

the gun and mask to establish CF’s credibility by showing that CF did not identify these items as 

being used during the rape. A prosecutor’s good-faith effort to admit evidence does not constitute 

prosecutorial misconduct. Noble, 238 Mich App at 660-661. Because the prosecution did not 

engage in prosecutorial misconduct when it submitted the photographs of the gun and mask for 

evidence, a curative instruction was not required. See Seals, 285 Mich App at 22.

Next, defendant argues that the prosecution impermissibly vouched for the credibility of 

CF during closing arguments. The prosecution may argue the evidence and all reasonable 

inferences arising from it as they relate to its theory of the case. See People v Bahoda, 448 Mich 

261, 282; 531 NW2d 659 (1995). “[T]he prosecutor cannot vouch for the credibility of his 

witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.” 

Id. at 276. “A prosecutor may, however, argue from the facts that a witness is credible or that the 

defendant or another witness is not worthy of belief.” People v Howard, 226 Mich App 528, 548; 

575 NW2d 16 (1997).

The prosecution did not vouch for CF’s credibility claiming some special knowledge.

Rather, the prosecution used the evidence in the record to make an argument that CF was a credible 

witness and victim. Defendant points to nothing in the record that the prosecution even suggested 

that it had special knowledge of CF’s truthfulness. See Bahoda, 448 Mich at 276.

Defendant also argues that the prosecution engaged in misconduct when it falsely stated 

that defendant “decked” CF with a gun during the kidnapping. “A prosecutor may not make a 

factual statement to the jury that is not supported by the evidence, but he or she is free to argue the 

evidence and all reasonable inferences arising from it as they relate to his or her theory of the 

case.” Dobek, 274 Mich App at 66 (citations omitted). However, in closing arguments, 

prosecutors are generally given great latitude and are free to argue the evidence and all reasonable 

inferences from the evidence. People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017). 

Factually erroneous arguments do not warrant reversal when the remark “was isolated, brief, and 

did not affect the outcome of defendant’s trial.” Unger, 278 Mich App 239. At the end of this 

trial, the trial court instructed the jury that “[t]he lawyer’s statements and arguments are not 
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evidence.” See M Crim JI 3.5(3); 3.5(5). “[J]urors are presumed to follow their instructions.” See 

People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).

Defendant briefly argues that the prosecution engaged in prosecutorial misconduct with the 

short statement that “he decked her with a gun.” Defendant simply argues that this statement was 

not true and does not elaborate on why this statement is false. Regardless of its veracity, the 

statement was isolated and brief. See Unger, 278 Mich App at 239. Defendant has made no 

argument that this statement impacted the outcome of the trial. See id.

Because defendant’s claim of prosecutorial misconduct is unpreserved, defendant must 

show that a curative instruction could not have remedied the prejudicial effect of the brief 

statement or that failure to consider the issue would result in a miscarriage of justice. See Mayhew, 

236 Mich App 122-123. Defendant has failed in both respects. The effect of this isolated statement 

during closing argument would be sufficiently cured by an instruction by the trial court. See Seals, 

285 Mich App 22. In fact, the jury instructions provided by the trial court after closing arguments 

informed the jury that arguments made by the attorneys did not constitute evidence. The 

prosecution’s statement did not affect the substantial rights of defendant or affect the outcome of 

the trial.

Because we conclude that no prosecutorial misconduct occurred, defense counsel did not 

provide ineffective assistance of counsel. Defense counsel is not required to advocate for a 

meritless position. Matuszak, 263 Mich App at 58. Therefore, defense counsel was not ineffective 

for failing to object to alleged prosecutorial misconduct.

B. JUDICIAL MISCONDUCT

Defendant also argues in his Standard 4 brief that the trial court engaged in judicial 

misconduct by allegedly stating to the jury that defendant is not innocent, prejudicing the jury 

against defendant. We disagree.

We review de novo whether judicial misconduct denied a defendant a fair trial which is a 

question of constitutional law. People v Stevens, 498 Mich 162, 168; 869 NW2d 233 (2015). 

Because defendant did not object to the trial court’s statement at trial, we review for plain error 

affecting substantial rights. See People v Spaulding, 332 Mich App 638, 652; 957 NW2d 843 

(2020).

Our Supreme Court defined the standard for considering judicial misconduct as follows:

A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct 

pierces the veil of judicial impartiality. [People v ]Wilson, 21 Mich App [36,] 37-

38[, 174 NW2d 914 (1969)] (“If an examination of the record reveals that the veil 

of judicial impartiality was pierced by the trial judge, the case must be reversed.”); 

People v Bedsole, 15 Mich App 459, 462; 166 NW2d 642 (1969) (“The veil of 

judicial impartiality should not have been pierced by the trial judge on this 

occasion.”). A judge’s conduct pierces this veil and violates the constitutional 

guarantee of a fair trial when, considering the totality of the circumstances, it is 

reasonably likely that the judge’s conduct improperly influenced the jury by 
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creating the appearance of advocacy or partiality against a party. [Stevens, 498 

Mich at 170-171.]

In evaluating the totality of the circumstances, we must consider a variety of factors, 

including:

the nature of the judicial conduct, the tone and demeanor of the trial judge, the 

scope of the judicial conduct in the context of the length and complexity of the trial 

and issues therein, the extent to which the judge’s conduct was directed at one side 

more than the other, and the presence of any curative instructions. [Id. at 172.]

Defendant argues that the trial court engaged in judicial misconduct during jury selection

questioning:

The Court: . . . Any of the answers that would’ve been a yes, would’ve been 

something that would make you unable to be fair and impartial?

[Juror]: No.

The Court: You can listen to all this with an open mind?

[Juror]: Yes.

The Court: Defendant’s—

[Juror]: Yes.

The Court: —completely not—innocent right now?

[Juror]: Yes, sir.

Defendant points to the trial court’s brief misstatement, but ignores that the trial court asked 

several potential jurors during voir dire if they believed that defendant was innocent at the start of 

trial. Analysis of the record indicates that the trial court displayed no animosity toward defendant. 

See Stevens, 498 Mich at 172. Further, the trial court instructed the jury in its preliminary 

instructions and again in its final jury instructions that they must presume defendant innocent until 

proven guilty. Defendant has failed to demonstrate that the jury ignored the trial court’s 

instruction.

Defendant also argues that the trial court engaged in judicial misconduct when it refused 

an objection from defense counsel and later sustained a hearsay objection from the prosecution. 

We disagree.

Judicial rulings, as well as a judge’s opinions formed during the trial process, are 

not themselves valid grounds for alleging bias “unless there is a deep-seated 

favoritism or antagonism such that the exercise of fair judgment is impossible.”

[People v Jackson, 292 Mich App 583, 598; 808 NW2d 541 (2011) (citation 

omitted).]
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In the first instance, the trial court rejected defendant’s objection that the prosecution made 

an impermissible remark rather than ask the witness a question. Defendant, however, fails to 

explain how that exchange expressed open hostility toward defendant or defense counsel. 

Defendant also fails to establish the impropriety of the prosecution’s question. Defendant’s 

argument, therefore, lacks merit.

In the second instance, the trial court sustained the prosecution’s objection to defendant’s 

question, “[d]id you ever have any discussion with [CF’s uncle] or exchange where he indicated 

what he thought about . . . .” Again, defendant fails to establish how this exchange prejudiced the 

jury against defendant or how the trial court displayed open hostility toward him or defense 

counsel. The record actually reflects that the trial court properly sustained an objection to hearsay. 

Defense counsel accepted the outcome of the objection without arguing a hearsay exception. 

Defendant has failed to demonstrate that the trial court ruled improperly. Defendant’s argument 

that the trial court’s conduct biased the jury lacks merit. Defendant has failed to show that the trial 

court engaged in judicial misconduct that improperly influenced the jury. See Stevens, 498 Mich 

at 170-171.

Affirmed.

/s/ Kirsten Frank Kelly 

/s/ Mark T. Boonstra 

/s/ James Robert Redford