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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 7, 2015

v No. 316314 Wayne Circuit Court CHRISTOPHER LEE JOHNSON, LC No. 12-010789-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED

v No. 316983 Wayne Circuit Court CHRISTOPHER LEE JOHNSON, LC No. 12-010595-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED

v No. 320014 Wayne Circuit Court CHRISTOPHER LEE JOHNSON, LC No. 13-001600-01-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and W ILDER and K. F. K ELLY , JJ.

P ER C URIAM

. In Docket Number 316314, defendant appeals as of right his jur y trial convictions of first-degree criminal sexual conduct (CSC-1), MCL 750.520b, and assault with a dangerous-2- weapon (felonious assault), MC L 750.82. The trial court impose d consecutive sentences of 25 to 50 years for the CSC-1 convict ion and 30 to 48 months for the f elonious assault conviction.

In Docket Number 316983, defendant appeals as of right his jury trial conviction of felonious assault. The trial cou rt sentenced him to time serve d for that conviction.

In Docket Number 320014, defendant appeals as of right his jury trial convictions of kidnapping, MCL 750.349, and two counts of CSC-1. Defendant wa s sentenced to 15 to 30 years in prison for each count, and the trial court ordered him to serve the sentence for one count of CSC-1 consecutive to the sentence for kidnapping. We affirm , in part, and vacate and remand, in part.

I

A. Docket Number 320014

Defendant’s convictions in Docket Number 320014 arise out of t he kidnapping and sexual assault of 18-year-old L G during the early morning hours of July 1, 2012, in Detroit. LG testified that she was walking outside by herself when she obse rved a white, two-door car approaching from behind; its headlights were off. LG dropped h er book bag and prepared to walk faster, but the car’s passenger, who LG did not know, but later identified as defendant, exited and grabbed her, covering her mouth so she could not scr eam and stating, “Yeah, b****, I got you now.” LG recalled that defendant forced her into the b ackseat and grabbed her book bag, and then the driver drove off with defendant in the front passenger seat.

LG further testified that, when the driver arrived at an area secluded among trees and abandoned houses nearby, he stopped, defendant climbed over his seat to reach her in the backseat, put his hand around he r neck—holding her “down a litt le bit”—told her to take off her shorts, and commented that she had no underwear on; then he dem anded that she suck on his penis and put it in her mouth. LG recalled that, afterward, de fendant took his penis out of her mouth and put it in her vagina, ejaculated, expressed his sexua l satisfaction, and announced he was taking a break. LG testified that, after some time passed, defendant inserted his penis into her vagina again and ejaculated a second time.

The driver subsequently took defendant and LG to another seclu ded area, where defendant ordered LG to exit the vehicle and gave her book bag back. The men left and LG realized her cellular phone was no longer in the book bag. She testified that she borrowed a phone to call her mother and the police. When she was taken to the hospital, a sexual assault nurse examiner (SANE) took swabs of her mouth, breasts, vagina, the labia minora, and labia majora. Although LG did not report anal penetration to the SAN E, the SANE testified that anal swabs were nevertheless taken as well because, as a result of g ravity, fluids or liquids can seep down into the anal sphincter area. By a DNA analyst’s calculat ions, a minor donor of alpha amylase (a saliva enzyme) found on LG’s breasts resembled defen dant’s DNA with a frequency of 1 in 11.73 trillion African Americans. The DNA analyst furt her testified that the minor donor of sperm cells found on the vaginal swab resembled defendant’s DNA with a frequency of 1 in 132.8 billion African Americans. Finally, the DNA analyst test ified that the minor donor of-3- sperm cells found on an anal slide resembled defendant’s DNA wi th a frequency of 1 in 104.7 septillion African Americans.

Defendant was charged with: (1 ) kidnapping, (2) CSC-1 (fellati o), and (3) CSC-1 (penis in genital opening). The jur y convicted him as charged.

B. Docket Number 316983

Defendant’s conviction in Docket Number 320014 arises out of t he assault of DM in the early morning hours of July 11, 201 2, in Detroit. DM had been in her home watching television with her siblings and a cousin, and talking on the phone to her boyfriend, but went outside to get some fresh air around 12:30 a.m. DM did not see anyone outside , but noticed a white, two-door car across the street. DM testified that defendant, who was astranger to her at the time, exited the driver side of the car and walked across the street toward her neighbor’s house. He was wearing jeans with paint on them. DM recalled that, as she tur ned and walked toward her house, defendant grabbed her hair from the back and pulled her toward the car; he held a box cutter against DM’s neck and pushed her into the front passenger seat of the car, threatening to “stab” her face if she yelled.

DM testified that, after defendant started to drive, he “snatc hed [her] down” and forced her to perform oral sex on his penis with her mouth. She recal led that he pulled off her dress at that time, and at some point, he parked the car on Capital. DM testified that defendant was not wearing a condom and he ejaculate d, some of which she swallowed and some she spit onto her hand. Next, defendant drove to Pearson and told DM to go to th e backseat. As she crawled through the two front seats, he pushed on her buttocks. DM tes tified that, defendant exited the car, smoked a cigarette, and also appeared to be drinking Vodka ; he reentered t he car, climbed into the backseat, and had sexual intercourse with DM by pushin g his penis into her vagina. DM recalled that defendant also pu lled her bra above her breasts a nd touched one with his hand and covered the other with his mouth. DM testified that defendant ejaculated, retrieved a towel from the floor of the car, and used it to clean himself and the car.

DM testified that defendant allowed her to dress and drove her back to her neighborhood, dropping her off about eight to ten houses away from her home; although he returned her phone, the battery had been removed. DM subsequently went to the hosp ital and a buccal swab, vaginal swabs, and a swab of her right hand were retained for DNA analy sis. A DNA analyst testified that the minor donor of the DNA found on the vaginal swab was v ery low and defendant’s DNA could not be included or exclude d as a match. But she conclude d that the major DNA types from the sperm fraction of the sample collected from DM’s right hand resembled defendant’s DNA with a frequency of 1 i n 4.7 septillion people.

Defendant was charged with: (1) CSC-1 (fellatio), (2) CSC-1 ( penis in genital opening), (3) kidnapping, (4) CSC-2 (commi ssion of kidnapping), and (5) f elonious assault. The prosecutor filed a notice of int ent to introduce other-acts evi dence under MRE 404(b),-4- specifically the testimony of DB 1 and LG, 2 to demonstrate defendant’s common scheme or plan and his intent when kidnapping DM. Defense counsel stated on t he record that he did not object and the trial court allo wed their testimony.

The defense presented at trial was that all three women consen ted to sexual penetration by defendant. Defense counsel elicited testimony that DM had a MocoSpace account, but she testified that she only spoke with women on it and did not chat with defendant or promise to have sex with him on that website. DM admitted that she closed her MocoSpace account sometime after testifying at defe ndant’s district court proceed ing, but she denied that she closed it so her messages could not be retrieved. The jury found defe ndant not guilty of all counts except felonious assault.

C. Docket No. 316314

Defendant’s convictions in Docket Number 316314 arise out of t he assault of MM on August 13, 2012, in Detroit. While she was using a chat room o n MocoSpace.com, defendant (a stranger to MM at the time) asked her if she wanted to make “a little extra money.” In a private message, he suggested paying her for “conversation or pleasure. ” Even though she knew defendant likely wanted sex for m oney, she ultimately agreed be cause she needed e xtra money to care for her newborn daughter.

MM was afraid to go alone to Mobi l gas station, where she had a greed to meet defendant, so she brought a friend, MH. While they waited for defendant, he called and stat ed that he had changed his mind. MM testified that, as she prepared to drive away, however, defendant called again and said, “as long as it will be just us two, you can get in my car then”; she agreed on the condition that MH could follow in her car. MH testified that, although he planned to follow, as he was moving from the passenger seat to the driver seat, defen dant drove away quickly and he could not follow.

MM testified that defendant took her to an unfamiliar resident ial area with abandoned houses; when he parked the car, he asked MM what she wanted to do and she replied that she

1 DB testified that defendant grabbed her as she walked in the d ark, placed what felt like a gun to her temple, and forced her into a white, two-door car, and took her to several places, where he parked and demanded that she perform oral sex on him; at his th ird stop, after he smoked a cigarette or drank something, DB performed oral sex again and, just before defendant ejaculated he threatened her and demanded tha t she swallow his semen. DB testified that defendant smoked or drank something, and then had sexual intercourse with her by inserting his penis into her vagina without a condom and ejaculating. Although she had urge d defendant to stop, he refused, and ultimately he drove her to a dark street, pushed her out of the car, and threw her clothes and purse out of the window to her before driving away; defendant k ept her phone. DB testified at trial that she never used MocoSpace, but she had participated i n a dating chatline on her phone, texting with 10 to 20 people in the three days before the incid ent. She denied arranging to have sex with anyone for money.

2 LG’s testimony was substantiall y similar to her testimony at t rial in Docket Number 320014.-5- was not sure. MM further testified that, although defendant ha d showed her $150 that they had agreed would be payment for her services, he did not give it to her. Defendant took a drink of liquor and lit a cigarette.

MM testified that defendant then unzipped his pants, but by th at time, she had changed her mind and wanted to go; defendant replied that she “wasn’t g oing anywhere.” MM testified that defendant then grabbed the back of her neck with his hand and forced her mouth onto his penis. MM explained at trial that she did not scream, but she told defendant that she “didn’t want to.”

MM recalled that after she repeatedly asked to go home, defend ant told her that he was not finished yet and instructed her to get in the backseat of t he car; meanwhile defendant retrieved a gun from his left side and put it on the dashboard. MM testified that defendant told her to take her clothes off; she removed her shirt and then def endant forcefully pulled off her pants and underwear. MM explaine d at trial, “He ripped my und erwear off.” 3 MM testified that defendant had her turn over, positioning her on “all fours,” an d he inserted his penis into her vagina; after a few minutes, defe ndant ejaculated and stopped.

MM testified that defendant moved to the front seat and drove them back to a place nearby the gas station where they had met. MM testified that, although defendant threw her clothes to the backseat so she could dress, he pointed the gun at her, stated she was not going anywhere, threw her cellular phone , shoes, and glasses out the window, and started to drive away. MM testified that she pushed the passenger seat forward, grabbed the passenger door handle, jumped out of the moving car, and ran in her socks towa rd her car, which MH had parked near the gas station.

MM was treated at a hospital and swabs from her body were reta ined for DNA analysis. A DNA analyst testified that a donor of sperm cells found on th e vaginal cervical swabs matched defendant’s DNA with a freque ncy of 1 in 422.1 trillion AfricanAmericans.

Defendant was charged with: (1) CSC-3 (fellatio; force or coe rcion), (2) CSC-1 (penis in genital opening; possession of a weapon), and (3) felonious ass ault. The prosecutor filed a notice of intent to introduce other-acts evidence under MRE 404 (b), specifically the testimony of MT 4 and BW, 5 to demonstrate defendant’s common scheme or plan and his inten t when

3 Defense counsel elicited testimony that, at the preliminary ex amination, when he asked her if any of her clothes were ri pped, she said they were not.

4 MT testified that she met defendant on a social media app on h er phone (Megamates) and had been interested in dating him. After two weeks of communicatio n by phone, defendant picked her up in his white, two-door car with another, younger man in the backseat, and defendant promised to get her hair done for her birthday. During their r ide, defendant stated that he had a girlfriend, which MT did not know, so she asked to go home. MT testified that defendant went “crazy” and grabbed her by the neck. MT recalled that the youn ger man helped defendant move MT to the backseat, the men switched places, and defendant held his hands around her neck until she undressed. MT further recalled that the younger man put th e clothes in the truck; meanwhile,-6- kidnapping Morris. Defense counsel stated on the record that h e did not object a nd the trial court allowed their testimony.

The defense presented at trial once again was that all three w omen consented to sexual penetration by defendant. The jury found defendant not guilty of CSC-3, but guilty of CSC-1 and felonious assault.

II

A. Docket Number 320014

1

In Docket Number 320014, defendant first argues that the trial court violated his constitutional right to Due Process, US Const, Am XIV; Const 19 63, art 1, § 17, by allowing jurors to ask questions of witnesses during the trial. Because defendant did not object to this practice at trial, defendant’s argument is unpreserved and revi ewed for plain error affecting his substantial rights. People v Gaines , 306 Mich App 289, 297; 856 NW2d 222 (2014).

MCR 2.513(I) provides:

The court may permit the jurors t o ask questions of witnesses. If the court permits jurors to ask questions, it must employ a procedure that ensure s that such questions are addressed to the w itnesses by the court itself, t hat inappropriate questions are not asked, and that the parties have an opportuni ty outside the hearing of the jury to object to the questions. The court shall inform the jurors of the procedures to be followed f or submitting questions to witne sses.

In People v Heard , 388 Mich 182, 187-188; 200 NW2d 73 (1972), our Supreme Court also held that trial courts, in their disc retion, may allow jurors to ask questions of witnesses. Regardless of

defendant held scissors to MT’s n eck and forced her to put her mouth on his penis. MT testified that, later, he also threatened her with scissors as he put his penis in her vagina. Ultimately, the men took MT back to her neighborhood and returned her clothes a nd cellular phone when she got out of the car. She did not promptly report this assault to the police because she initially planned to try to “get somebody to hurt him.”

5 BW, who used MocoSpace for prostitution, testified that she me t defendant on the website and planned to have oral sex and sexua l intercourse in exchange for $200. She began co nsensual oral sex in his white, two-door car, bu t then defendant became angry because she used a condom. BW testified that defendant pointed an object, which felt like a gun, at the back of her head. She recalled that she was scared as he held the back of her neck ti ghtly to shove her head down. BW testified, at that point, she no longer wanted to have oral sex with defendant. When defendant told her to get in the backseat, she was afraid he would kill h er. She exited the car and grabbed a box cutter from the floor of the passenger seat and swung it at him until she could retrieve her purse, which defendant had t hrown in the backseat.-7- defendant’s arguments for reform, we are bound to follow this d ecision by the doctrine of stare decisis and conclude that a trial court may allow jurors to ask questions of witnesses during a trial. Trademark Properties v Fed Nat’l Mtg Ass’n , ___ Mich App ___; ___ NW2d ___ (2014).

Defendant argues that the questions demonstrated that the “jur y was actively involved in seeking out facts, filling in a ny perceived gaps in the prosecu tor’s proofs, and deliberating before the conclusion of the case.” But in Heard , our Supreme Court explained that the purpose of allowing jurors to ask questions is to “help unravel otherwise confusing testimony” and to “aid the fact-finding process.” 388 Mich at 187-188. In addition, the trial court instructed the jury that it could not discuss the case until the trial court sent i t to the jury room for that purpose. Jurors are presumed to follow their instructions. People v Powell , 303 Mich App 271, 274; 842 NW2d 538 (2013). Defendant has not offered any evidence that the jury began deliberating in this case before the close of the trial and has thus failed to show plain error affecting his substantial rights regard ing the juror questions.

2

Next, defendant argues that the trial court erred by instructi ng the jury on a manner of sexual penetration for CSC-1 that had not been charged. Specif ically, defendant was charged with two counts of CSC-1 on the basis of fellatio and penis to vagina penetration. But the trial court instructed the jury that the charge could be established with evidence of penetration by defendant’s penis in LG’s anus:

The defendant is charged with two counts of the crime of first- degree criminal sexual conduct, Counts 2 and 3. To prove this charge, the pros ecutor must prove each of the following eleme nts beyond a reasonable doubt:

First, that the defendant engaged in a sexual act that involved entry into LG’s genital opening by the defendant’s penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was complete d or whether semen was ejaculated and/or entry into LG’s anal opening by the defendant’s penis. Any entry, no matter how slight, is enough. It does no t matter whether the sexual act was completed or whether semen was ejaculated, and/o r entry into LG’s mouth by the defendant’s pe nis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whet her semen was ejaculated.

After the trial court instructe d the jury, it asked if there we re “any objections or corrections to the jury instructions as read to t he jury,” and defense counsel res ponded, “No, your Honor.”

“Counsel’s affirmative expression of satisfaction with the tri al court’s jury instruction waived any error.” People v Chapo , 283 Mich App 360, 372-373; 770 NW2d 68 (2009). As our Supreme Court has held, when defense counsel states, “I have no objections,” that is an “express and unequivocal indication [ ] th at [defense counsel] approved of the instructions” and waived
any error. People v Kowalski , 489 Mich 488, 505; 803 NW2d 200 (2011). Accordingly, defendant’s challenge to the tria l court’s instruction is waive d.-8- Defendant also maintains that defense counsel was ineffective because he failed to object to the jury instruction regarding the manner of penetration. W e disagree. Because no Ginther hearing was held, People v Ginther , 390 Mich 436, 442-443; 212 NW2d 922 (1973), review is limited to errors apparent on the record. People v Jordan , 275 Mich App 659, 668; 739 NW2d 706 (2007).

Effective assistance of counsel is presumed, and defendant bear s a heavy burden of proving otherwise. To demonstrate ineffective assistance, d efendant must show: (1) that his attorney’s performance fell below an objecti ve standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. “To demonstrate prejudice, the defen dant must show the existence of a reasonable probability that, but for counsel's e rror, the result of the proceeding would have been different.” [ Gaines , 306 Mich App at 300 (citation and quotation marks omitted).]

The result would not have been different if defense counsel had objected to the instruction. LG did not testify that defendant p enetrated her anus with his pen is. Rather, she testified that he put his penis in her mouth and then penetrated her vagina twice. H er testimony about these three penetrations, alone, was sufficient to support defendant’s two convictions for CSC-1 on the basis of fellatio and penis to vagina penetration. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000); People v Newby , 66 Mich App 400, 405; 239 NW2d 387 (1976) (“A complainant’s eyewitness testimony, if believed by the trier of fact, is suff icient evidence to convict.”). The presence of DNA resembling defendant’s DNA on the vaginal swab further evidenced penis to vagina penetration. Contrary to defendant’s argument on appeal , the fact that sperm cells found on the anal slide also resembled defendant’s DNA does not creat e a reasonable probability that the jury convicted defendant of CSC-1 on the basis of anal pene tration. Again, LG did not testify regarding any anal penetration and she told the SANE th ere was none. Further, the anal swab was only taken because, when there is vaginal penetration, fluids can seep down into the anal sphincter area. Moreover, timely objection by defense cou nsel would have prompted the trial court to give the correct jury instruction regarding peni le-vaginal penetration. Therefore, defendant cannot establish prejudice from defense counsel’s fai lure to object to the jury instruction regarding th e manner of penetration. Gaines , 306 Mich App at 300.

3

Defendant argues that the trial court impermissibly enhanced h is sentence based on facts not found by the jury when it scored various offense variables. Defendant contends this was in violation of Alleyne v United States , ___ US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013). However, as defendant concedes, t his Court has previously rejec ted this argument.

According to Apprendi v New Jersey , 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny, United States v Booker , 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d 621 (2005); Blakely v Washington , 542 US 296, 311-313; 124 S Ct 2531; 159 L Ed 2d 403 (2004), any fact that increases a defendant’s maximum penalty a t sentencing must be admitted by a defendant or proven to a jury beyond a reasonable doubt. T he United States Supreme Court recently extended this rule to mandatory minimum sentences in Alleyne . In that case, the Court found that “any fact that increases the mandatory minimum is an ‘element’ that must be-9- submitted to the jury.” Id . But, the Court indicated that its Alleyne decision did not mean that every fact influencing judicial discretion in sentencing must b e proven to a jury beyond a reasonable doubt. Id . at 2163.

In People v Herron , 303 Mich App 392, 403-404; 845 NW2d 533 (2013), this Court declined to apply Alleyne to Michigan’s indeterminate sentencing scheme. This Court exp lained that a recommended guidelines range used to establish a minimum sentence in Michigan differs from a mandatory minimum sentence as discussed in Alleyne

. Id . Thus, Michigan’s scheme falls within the broad discretion traditionally afforded to trial cou rts “to establish a minimum sentence within a range authorized by law as determined by a jury verdic t or a defendant’s plea” as opposed to judicial fact-finding used to increase a mandatory m inimum floor. Id . at 405. Thus, defendant’s argument has been foreclosed by Herron

. 6

4

Last, in his Standard 4 brief, defendant argues that defense co unsel was ineffective for obtaining consent from defendant’s mother for the police to sea rch defendant’s cellular phone and then allowing that search. Defendant’s argument is depende nt upon facts outside the record for which defendant has failed to provide supporting proof. Be cause defendant has not established the factual predicate for his argument, it cannot s ucceed. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999).

B. Docket Number 316983

1

In Docket Number 316983, defendant first claims that his const itutional rights to due process were violated by the admission of other-acts evidence, specifically the testimony of DB and LG. But defendant waived any challenge to the admission of this evidence on appeal when defense counsel expressly stated on the record that he had no o bjection to the prosecutor’s decision to call MRE 404(b) witnesses. See People v Carines , 460 Mich 750, 763; 597 NW2d 130, 138 (1999) (defining waiver as an “ ‘intentional relinquis hment or abandonment of a known right.’ ”) (citation omitted).

6 An appeal in Herron was held in abeyance pending the Michigan Supreme Court’s deci sion in People v Lockridge , 496 Mich 852; 846 NW2d 925 (2014). See People v Herron , ___ Mich ___; 846 NW2d 924 (2014). However, “[t]he filing of an application f or leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a publishe d opinion of the Court of Appe als.” MCR 7.215(C).-10- 2

In a related claim, defendant argues that defense counsel was ineffective for failing to object to the other-acts evidence. Defendant preserved his ine ffective assistance of counsel claim for review when he moved this Court to remand this case f or an evidentiary hearing; however, because defendant’s motion was denied, 7 our review is limited to mistakes apparent on the record. Jordan , 275 Mich App at 667.

Defendant claims the jury only convicted him of felonious assa ult because it heard the other-acts evidence and did not want to set a “serial rapist” f ree. But his defense at trial was that all three women agreed to have sex and falsely accused him of k idnapping and rape when he refused to pay them, and the jury acquitted defendant of the ki dnapping and CSC charges. Regardless, defendant cannot establish that he would also have been acquitted of felonious assault but for defense counsel’s decision not to object to the other-acts evidence. DM testified that defendant held a box cutter to her neck and threatened to “stab” her if she screamed for help; she was so afraid that she remained quiet. In addition, a reas onable trier of fact could conclude that defendant demonstrated con sciousness of guilt and attempte d to prevent DM from seeking help by removing her cellular phone battery from her phone. A cellular phone battery and box cutters were recovered during a search of his home. In light o f these facts, defendant has failed to establish prejudice and we therefore conclude that he was no t denied the effective assistance of counsel as a result of defe nse counsel’s decision not to obj ect to the other-a cts evidence.

3

In his Standard 4 brief, defenda nt also argues that defense co unsel was ineffective for advising him not to testify on the basis that he had a prior co nviction for a crime of theft or dishonesty, which could lead to impeachment by the prosecutor. Defendant’s argument is dependent upon facts outside the record for which defendant has failed to provide supporting proof. Because defendant has not established the factual predi cate for his argument, it cannot succeed. Hoag , 460 Mich at 6.

C. Docket Number 316314

1

In Docket Number 316314, defendant again claims that his const itutional rights to due process were violated by the adm ission of other-acts evidence, specifically the testimony of MT and BW. But defendant waived this challenge on appeal when def ense counsel expressly stated on the record that he had no obj ection to the prosecutor’s deci sion to call MRE 404(b) witnesses. Carines , 460 Mich at 763.

7 People v Johnson , unpublished order of the Court of Appeals, entered July 8, 20 14 (Docket No. 316983).-11- 2

Defendant also argues that defense counsel was ineffective for failing to object to the other-acts evidence. Defendant preserved his ineffective assis tance of counsel claim for review when he moved this Court to remand this case for an evidentiary hearing; however, because defendant’s motion was denied, 8 our review is limited to mistakes apparent on the record. Jordan , 275 Mich App at 667.

Defendant again claims the jury only convicted him of CSC-1 an d felonious assault because it heard the other-acts evidence and did not want to se t a “serial rapist” free, so it compromised by acquitting him of CSC-3. But defendant cannot e stablish that he would also have been acquitted of CSC-1 a nd felonious assault but for defe nse counsel’s decision not to object to the other-acts evidence. MM and MH testified that MM agreed to go in defendant’s car if MH could follow in her car behind them, but defendant sped a way quickly—preventing MH from following—and took MM to a neighborhood of abandoned house s; a reasonable trier of fact could infer that, through his actions, defendant isolated MM an d made her vulnerable to victimization. Furthermore, MM testified that, with a gun rest ing on the dashboard, defendant forcefully removed her clothes, positioned her on “all fours,” and he inserted his penis into her vagina. On the basis of MM’s testimony, alone, a reasonable tr ier of fact could conclude that defendant engaged in sexual penetration while armed with a gun. Davis , 241 Mich App at 700; Newby , 66 Mich App at 405. Moreover, MM testified that defendant po inted a gun at her when she attempted to exit his car, thereby allowing the jury to con clude that defendant committed felonious assault. In light of these facts, defendant has faile d to establish prejudice and we again conclude that he was not denied the effective assistance of cou nsel as a result of defense counsel’s decision not to object t o the other-acts evidence.

3

Next, defendant argues that the trial court erred by instructi ng the jury regarding the consideration of prior inconsis tent statements. Specifically, prior inconsistent statements made under oath and subject to the penalty of perjury are not hearsa y, MRE 801(d)(1)(A), and thus properly can be used as substantive evidence. See People v Malone , 445 Mich 369, 378; 518 NW2d 418 (1994) (statements tha t are not hearsay under MRE 801( d)(1) may be used as substantive evidence). Defense counsel elicited testimony from MMorris that she testified at the preliminary examination that none of her clothes were ripped by defendant, but at trial, she testified that defendant rippe d her underwear off. On appeal, defendant claims that CJI2d 4.5(2) was applicable to these prior statements. CJI2d 4.5(2) provide s:
(2) Evidence has been offered that one or more witnesses in thi s case previously made statements inconsistent with their testimony at this trial . You may consider such earlier statements in deciding whether the testimony at th is trial was truthful and in determining the facts of the case. [Emphasis added.]

8 People v Johnson , unpublished order of the Court of Appeals, entered July 31, 2 014 (Docket No. 316314).-12- And defendant claims that the tr ial court’s different reading o f the instruction was erroneous because it did not allow for use of MM’s statement as substanti ve evidence:

Evidence has been offered that one or more witnesses in this ca se previously made statements inconsistent with the testimony at this trial. You may consider such earlier statements in deciding whether the testimony at th is trial was truthful in determining the facts of the case. [Emphasis added.]

But after the trial court instructed the jury, it asked if the parties had any objections, and defense counsel responded, “No, your Honor.” “C ounsel’s affirmative expressi on of satisfaction with the trial court’s jury ins truction waived any error.” Chapo , 283 Mich App at 372-373.

Defendant also argues that defense counsel was ineffective by failing to object to the instruction as read. But, again, defendant cannot establish th at, but for the trial court’s instruction, the outcome would have been different. Defendant only argues on appeal that consideration of MM’s statements about whether her clothing was ripped could have affected the jury’s determination regarding whether MM was credible when tes tifying that she saw defendant’s gun on the dashboard before he sexually penetrated her vagina. But the trial court instructed the jury that any prior inconsistent statements coul d be used for the purpose of deciding whether the witness test ified truthfully in court. Th erefore, defendant has failed to establish prejudice and we concl ude that he was not denied the effective assistance of counsel as a result of defense counsel’s d ecision not to object to the tri al court’s reading of the instruction on prior inconsistent statements.

4

Defendant argues that the prosecutor improperly vouched for MT ’s credibility by stating in closing argument, “Then you have [MT]. I’m going to challen ge any one of you to go back and say that that woman was not telling you the truth. If she were prostituting we would just tell you.” We disagree.

To preserve a claim of prosecutor error for appellate review, a defendant must make a contemporaneous objection and request a curative instruction. People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). Because defendant did not objec t and request a curative instruction when the prosecutor allegedly vouched for MT’s cred ibility, defendant’s claim of prosecutor error is unpreserved. We review unpreserved claims of prosecutor error for plain error affecting defendant’s substantial rights. Id

. The test for prosecutor error is whether the defendant was den ied a fair and impartial trial. People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). A prosecutor may n ot vouch for the credibility of a w itness by implying that he or s he has some special knowledge of the witness’s truthfulness. People v Thomas , 260 Mich App 450, 455; 678 NW2d 631 (2004). But the prosecutor is free to ar gue the evidence and the reason able inferences that arise from it. People v Seals , 285 Mich App 1, 22; 776 NW2d 314 (2009). Here, the prosecuto r argued, based on the facts in the record and the applicable law, that MT had no reason to lie about whether she was prostituting herself. MM and BW had both testified that th ey had agreed to have sex with defendant in exchange for money. The prosecutor argued that MT ’s situation was different-13- because she had been chatting with defendant and thought he was interested in having a relationship with her. The prosecutor argued that in each circ umstance, however, the women ultimately did not consent to defendant’s sexual penetrations a nd assaultive behavior. Moreover, the women were “human beings” a nd, regardless of their previous decisions, they “still deserve[d] respect.” The pros ecutor’s argument did not amount to error.

Defendant also claims that defense counsel was ineffective by failing to object to the prosecutor’s argument about MT’s truthfulness. But because we conclude the prosecutor’s argument was not improper, defense counsel was not ineffective for failing to object to it. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advan ce a meritless argument or raise a futile objection does not constit ute ineffective assistance of counsel.”).

5

Defendant next asserts that he is entitled to a new trial beca use the prosecutor commented on his demeanor in the courtr oom during trial. We disagree.

During the prosecutor’s examina tion of MT, she questioned MT r egarding defendant’s identity and, as defendant argue s on appeal, noted that he was laughing:

Prosecutor . Did he grab you wit h one hand or both hands?

Turner . Both hands.

Prosecutor . And we’re talking about the man right here who’s laughing; is that correct[?]

Defense counsel . Objection, your Honor, my c lient is not laughing.

Prosecutor . Yeah, he is.

Trial court . Well leave it - -

Prosecutor . And he’s audibly laughing.

Trial court . Yeah, I heard somet hing too. Move on, please.

We need not determine whether a prosecutor errs as a matter of law by commenting on the demeanor of a non-testifying criminal defendant because, he re, any error was harmless. An error in the admission or exclusion of evidence will not warran t reversal unless refusal to do so appears inconsistent with substantial justice or affects a subs tantial right of the opposing party. MCR 2.613(A). The trial court inst ructed the jurors that the p rosecutor’s statements and questions were not evidence and that it should only decide the case based on the evidence. The jury was presumed to follow its instructions. Powell , 303 Mich App at 274. Moreover, in her question, the prosecutor referen ced defendant’s demeanor as an identifying characteristic to ensure that the person MT described was, in fact, defendant. B ut this was an isolated occurrence and the prosecutor did not argue that defendant’s demeanor demo nstrated consciousness of guilt.-14- The jury was also instructed that it could not convict defendan t merely because it concluded that defendant was a bad person. B ecause any error involving the prosecutor’s description of defendant’s demeanor was harmle ss, defendant is not entitled to a new trial.

6

Defendant further argues that his due process rights were viol ated when the trial court admonished defense counsel on the record, in the presence of th e jury, during deliberations. We disagree.

During deliberations, the trial court responded to a question from the jury:

The other question that you sent here, which when I looked at i t, you know, I was perplexed, and I’m still perplexed, it says second count: Is t his any sex with gun or forced sex with gun?

This about that. Okay? Logic and common sense. What does tha t really mean? I’m not sure. This gun is not a sex toy. Why would somebody h ave a gun in the car or display a gun - -

Then, defense counsel interrupted, “Your honor - -,” and the tr ial court stated, “Please shut up. Okay? You’ll get a chance to respond to anything that I say by making an objection. Okay?” Outside the presence of the jur y, defense counsel stated, “And then the other com ments the Court made about common sense and sex toy was [sic] highly prejudicia l and violates [sic] my client’s due process [rights] to a fair t rial.” Although defense counse l objected to the trial court’s comments about common sense and the “gun is not a sex toy,” def ense counsel did not object to the court’s request that defense counsel “shut up.” People v Bulmer , 256 Mich App 33, 35; 662 NW2d 117 (2003) (An objection on one ground is insufficient to preserve an appellate challenge based on a different ground.). Th erefore, defenda nt’s unpreserv ed argument is reviewed for plain error affecting substantial rights. Gaines , 406 Mich App at 297.

Due process requires that all parties have an unbiased and imp artial decisionmaker. Cain v Dep’t of Corrections , 451 Mich 470, 497; 548 NW2d 210 (1996). “A trial judge is pr esumed to be impartial and the party who asserts partiality has a heav y burden of overcoming that presumption.” In re MKK , 286 Mich App 546, 566; 781 NW2d 132 (2009). “However, the tr ial court must exercise caution and restraint to ensure that its qu estions [and comments] are not intimidating, argumentative, prejudicial, unfair, or partial.” People v Conyers , 194 Mich App 395, 405; 487 NW2d 787 (1992). “The test is whether the “judge ’s questions and comments may well have unjustifiably aroused suspicion in the mind of th e jury as to a witness’[s] credibility, . . . and whether pa rtiality quite possibly could have influenced the jury to the detriment of defendant’s case.” Id. (citation and quotation marks omitted).

Defendant only cites the trial c ourt’s isolated admonishment of defense counsel to argue that the trial court’s conduct denied him a fair trial. Cf Conyers , 194 Mich App at 398 (judge’s repeated improper and impartial comments and questions denied the defendant a fair trial). But it is a judge’s duty “to control all proceedings during the tri al.” MCL 768.29. Here, the trial court interrupted defense counsel’s objection, promising it cou ld be done later. To the extent defendant argues the trial court’s choice of words aroused susp icion in the mind of the jury, any-15- perceived prejudice was alleviat ed by the court’s instructions to the jury that its comments, rulings, questions, and instruc tions were not evidence, and wer e not intended to influence the jury or express the trial court’s personal opinion. Again, we presume the jury followed its instructions. Powell , 303 Mich App at 274. Accordingly, defendant is not entitled to a new trial on the basis of the tri al court’s comment.

7

Defendant argues that he is entitled to resentencing because: (1) the trial court impermissibly enhanced his sentence based on facts not found by the jury when it scored various offense variables, and (2) the trial court failed to sufficient ly justify its sentences, which departed from the applicable sentencing gui delines ranges. We agree, in part.

First, as we explained earlier in this opinion, defendant’s ar gument regarding judicial fact-finding has been foreclosed by Herron , 303 Mich App at 405.

Second, the trial court’s determination that sentencing factor s constituted substantial and compelling reasons for departure from the guidelines is reviewe d for an abuse of discretion, “as is the amount of the departure.” People v Smith , 482 Mich 292, 300; 754 NW2d 284 (2008). An abuse of discretion is prese nt when the sentence assessed is not within the range of principled
outcomes. Id

. “It is well established that ‘[a] court may depart from the ap propriate sentence range . . . if the court has a substantial and compelling reason for that d eparture and states on the record the reasons for departure.’ ” People v Anderson , 298 Mich App 178, 183; 825 NW2d 678 (2012), quoting MCL 769.34(3). In order to be substantial and compelli ng, the reasons upon which the trial court relied must be objective and verifiable. Smith , 482 Mich at 299. The reasons for departure must “be of considerab le worth in determining the len gth of the sentence and should keenly or irresistibly grab the court’s attention.” Id . The trial court may not base a departure from the guidelines on an “ ‘offense characteristic or offender characteristic already taken into account in determining the approp riate sentence range unless th e court finds from the facts . . . that the characteristic has been given inadequate or disproport ionate weight.’ ” Id . at 300, quoting MCL 769.34(3)(b).

When there is a departure from the guidelines range, the sente nce must be proportionate to the seriousness of the defendant’s conduct and criminal hist ory. Smith , 482 Mich at 300. To be proportionate, the sentence m ust be more appropriate to the offense and the defendant than a sentence within the guidelines range would have been. Id . at 318. When a sentence is a departure, “the statutory guideli nes require more than an artic ulation of reasons for a departure; they require justification for the particular departure made.” Id . at 303. Therefore, the trial court “must justify on the record both the departure and the extent o f the departure.” Id . at 313. In Smith , the Supreme Court explained:

[I]f it is unclear why the trial court made a particular depart ure, an appellate court cannot substitute its own judgment about why the departure was justified. A sentence cannot be upheld when the connection between the reaso ns given for departure and the extent of the departure is unclear. When depa rting, the trial-16- court must explain why the sentence imposed is more proportiona te than a sentence within the guidelines recommendation would have been. [ Id . at 304 (footnotes omitted).]

Regarding reference to the sentencing range grid, the Smith Court stated:

Certainly, a trial court that is contemplating a departure is n ot required to consider where a defendant’s sentence falls in the sentencing range grid . However, we think that reference to the grid can be helpful, because it pro vides objective factual guideposts that can assist sentencing courts in ensurin g that the “ ‘offenders with similar offense and offender characteristics re ceive substantially similar sentences.’” [ Smith , 482 Mich at 309 (footnotes omitted).]

Here, the minimum sentencing guidelines range for the CSC-1 con viction was 117 to 225 months. The trial court departed from that range by sentencing defendant to 25 to 50 years for the CSC-1 conviction. Because the trial court ordered defendan t’s sentences to be served consecutively, the felonious ass ault conviction was also scored and the minimum sentencing guidelines range for that convict ion was 0 to 17 months. The t rial court departed from that range by sentencing defendant to 30 to 48 m onths for the felonious as sault conviction.

On appeal, defendant does not challenge the trial court’s reas ons for departure, but instead argues that the trial court failed to justify the exten t of each departure. In response, the prosecution contends that the trial court provided the requisit e substantial and compelling reasons for exceeding the guidelines range, and that the trial court was not required to score the sentencing guidelines for defendant’s felonious assault convict ion because felonious assault is a lower crime class than CSC-1. Addressing the prosecution’s sec ond contention, we note that MCL 771.21(2) provides, “If the defendant was convicted of mult iple offenses, subject to [MCL 771.14], score each offense as provided in this part.” To that end, MCL 771.14(2) provides, in pertinent part:

A presentence investigation re port prepared under subsection (1 ) shall include all of the following:

* * *

(e) For a person to be sentence d under the sentencing guideline s set forth in [MCL 777.1 et seq .] all of the following:

( i ) For each conviction for which a consecutive sentence is autho rized or required, the sentence grid in [MCL 777.61 et seq .] that contains the recommended minimum sentence range.

( ii ) Unless otherwise provided in subparagraph ( i ), for each crime having the highest crime class, the sentence grid in [MCL 777.61 et seq .] that contains the recommended minimum sentence range.-17- ( iii ) Unless otherwise provided in subparagraph ( i ), the computation that determines the recommended minimum sentence range for the crime having the highest crime class.

In People v Lopez , 305 Mich App 686, 690-692; 854 NW2d 205 (2014), lv den 497 Mi ch 905 (2014), this Court held that the effect of MCL 771.21(2) and MC L 771.14(2)(e) was that “the trial court was not required to independently score the guideli nes for and sentence the defendant on each of his concurrent convictions if the court properl y scored and sentenced the def endant on the conviction with the highest crime classification.” (Emp hasis added). However, as clear from the plain language of MCL 771.14(2)(e)( i ), each consecutive sentence imposed must be individually scored. Because the trial court sentenced defenda nt to consecutive terms of imprisonment for his CSC-1 and felonious assault convictions, e ach must have been independently scored, and the prosecution’s contention regardin g the applicability of MCL 771.14(2)(e)( ii )-( iii ) is without merit.

Addressing defendant’s argument, we agree that the trial court gave no explanation for the particular departures and the trial court failed to justify why the sentences imposed are more proportionate than sentences wit hin the guidelines recommendati on would have been. We therefore vacate defendant’s sentences in Docket Number 316314 and remand for resentencing. On remand, the trial court must sentence defendant within any a pplicable sentencing guidelines ranges for both his CSC-1 and felonious assault convictions, or articulate on the record a substantial and compelling reason for departure and justify the extent of the departure, in accordance with Smith , 482 Mich at 309. 9

8

In his Standard 4 brief, defendant again argues that defense co unsel was ineffective for advising him not to testify on the basis that he had a prior co nviction for a crime of theft or dishonesty, which could lead to impeachment by the prosecutor. Defendant’s argument is dependent upon facts outside the record for which defendant has failed to provide supporting proof. Because defendant has not established the factual predi cate for his argument, it cannot succeed. Hoag , 460 Mich at 6.

9 Because we vacate defendant’s sentence in Docket No. 316314, w e decline to address defendant’s argument whether the trial court committed plain er ror affecting defendant’s substantial rights by imposing $600 in court costs. Any imposi tion of costs on remand, however, should be made in accordance with MCL 769.1k, as amended by 201 4 PA 352, People v Konopka , ___ Mich App ___; ___ NW2d ___ (Docket Number 319913; March 3 , 2015), and People v Cunningham , 496 Mich 145, 159; 852 NW2d 118 (2014).-18- III

We affirm defendant’s convictions, but vacate his sentence in D ocket No. 316314 and remand for further proceedings in that case, consistent with th is opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly /s/ Kurtis T. Wilder /s/ Kirsten Frank Kelly