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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UNPUBLISHED 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UNPUBLISHED 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UNPUBLISHED 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. KELLY, P.J., and WILDER and K. F. KELLY, JJ. 

PER CURIAM. 

 In Docket Number 316314, defendant appeals as of right his jury trial convictions of 

first-degree criminal sexual conduct (CSC-1), MCL 750.520b, and assault with a dangerous 
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weapon (felonious assault), MCL 750.82. The trial court imposed consecutive sentences of 25 to 

50 years for the CSC-1 conviction and 30 to 48 months for the felonious assault conviction. 

In Docket Number 316983, defendant appeals as of right his jury trial conviction of 

felonious assault. The trial court sentenced him to time served 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 was 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 the kidnapping and 

sexual assault of 18-year-old LG during the early morning hours of July 1, 2012, in Detroit. LG 

testified that she was walking outside by herself when she observed a white, two-door car 

approaching from behind; its headlights were off. LG dropped her 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 scream and stating, “Yeah, b****, I 

got you now.” LG recalled that defendant forced her into the backseat 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 her neck—holding her “down a little bit”—told her to take off her 

shorts, and commented that she had no underwear on; then he demanded that she suck on his 

penis and put it in her mouth. LG recalled that, afterward, defendant took his penis out of her 

mouth and put it in her vagina, ejaculated, expressed his sexual 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 secluded 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 SANE, the SANE testified that anal 

swabs were nevertheless taken as well because, as a result of gravity, fluids or liquids can seep 

down into the anal sphincter area. By a DNA analyst’s calculations, a minor donor of alpha 

amylase (a saliva enzyme) found on LG’s breasts resembled defendant’s DNA with a frequency 

of 1 in 11.73 trillion African Americans. The DNA analyst further 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 testified that the minor donor of 
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sperm cells found on an anal slide resembled defendant’s DNA with a frequency of 1 in 104.7 

septillion African Americans. 

 Defendant was charged with: (1) kidnapping, (2) CSC-1 (fellatio), and (3) CSC-1 (penis 

in genital opening). The jury convicted him as charged. 

B. Docket Number 316983 

 Defendant’s conviction in Docket Number 320014 arises out of the assault of DM in the 

early morning hours of July 11, 2012, 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 a stranger 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 turned 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 “snatched [her] down” and forced 

her to perform oral sex on his penis with her mouth. She recalled 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 ejaculated, some of which she swallowed and some she spit onto her 

hand. Next, defendant drove to Pearson and told DM to go to the backseat. As she crawled 

through the two front seats, he pushed on her buttocks. DM testified that, defendant exited the 

car, smoked a cigarette, and also appeared to be drinking Vodka; he reentered the car, climbed 

into the backseat, and had sexual intercourse with DM by pushing his penis into her vagina. DM 

recalled that defendant also pulled her bra above her breasts and 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 hospital and a buccal swab, vaginal 

swabs, and a swab of her right hand were retained for DNA analysis. A DNA analyst testified 

that the minor donor of the DNA found on the vaginal swab was very low and defendant’s DNA 

could not be included or excluded as a match. But she concluded 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 in 4.7 septillion people. 

 Defendant was charged with: (1) CSC-1 (fellatio), (2) CSC-1 (penis in genital opening), 

(3) kidnapping, (4) CSC-2 (commission of kidnapping), and (5) felonious assault. The 

prosecutor filed a notice of intent to introduce other-acts evidence under MRE 404(b), 
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specifically the testimony of DB1

 and LG,2 to demonstrate defendant’s common scheme or plan 

and his intent when kidnapping DM. Defense counsel stated on the record that he did not object 

and the trial court allowed their testimony. 

 The defense presented at trial was that all three women consented 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 defendant’s district court proceeding, but she denied that she closed 

it so her messages could not be retrieved. The jury found defendant not guilty of all counts 

except felonious assault. 

C. Docket No. 316314 

 Defendant’s convictions in Docket Number 316314 arise out of the assault of MM on 

August 13, 2012, in Detroit. While she was using a chat room on 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 money, she ultimately agreed because she needed extra money to 

care for her newborn daughter. 

MM was afraid to go alone to Mobil gas station, where she had agreed to meet defendant, 

so she brought a friend, MH. While they waited for defendant, he called and stated 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, defendant drove away quickly and he 

could not follow. 

 MM testified that defendant took her to an unfamiliar residential 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 dark, 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 third stop, after he smoked a 

cigarette or drank something, DB performed oral sex again and, just before defendant ejaculated 

he threatened her and demanded that 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 urged 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 kept her phone. DB testified at 

trial that she never used MocoSpace, but she had participated in a dating chatline on her phone, 

texting with 10 to 20 people in the three days before the incident. She denied arranging to have 

sex with anyone for money. 

2

 LG’s testimony was substantially similar to her testimony at trial in Docket Number 320014. 
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was not sure. MM further testified that, although defendant had 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 that time, she had changed 

her mind and wanted to go; defendant replied that she “wasn’t going 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, defendant told her that he was 

not finished yet and instructed her to get in the backseat of the 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 defendant forcefully pulled off her 

pants and underwear. MM explained at trial, “He ripped my underwear off.”3

 MM testified that 

defendant had her turn over, positioning her on “all fours,” and he inserted his penis into her 

vagina; after a few minutes, defendant 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 toward her car, which MH had 

parked near the gas station. 

 MM was treated at a hospital and swabs from her body were retained for DNA analysis. 

A DNA analyst testified that a donor of sperm cells found on the vaginal cervical swabs matched 

defendant’s DNA with a frequency of 1 in 422.1 trillion African Americans. 

 Defendant was charged with: (1) CSC-3 (fellatio; force or coercion), (2) CSC-1 (penis in 

genital opening; possession of a weapon), and (3) felonious assault. The prosecutor filed a 

notice of intent to introduce other-acts evidence under MRE 404(b), specifically the testimony of 

MT4

 and BW,5 to demonstrate defendant’s common scheme or plan and his intent when 

 

3

 Defense counsel elicited testimony that, at the preliminary examination, when he asked her if 

any of her clothes were ripped, she said they were not. 

4

 MT testified that she met defendant on a social media app on her phone (Megamates) and had 

been interested in dating him. After two weeks of communication 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 ride, 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 younger 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 the clothes in the truck; meanwhile, 
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kidnapping Morris. Defense counsel stated on the record that he did not object and the trial court 

allowed their testimony. 

 The defense presented at trial once again was that all three women 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 1963, 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 reviewed 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 to ask questions of witnesses. If the court permits 

jurors to ask questions, it must employ a procedure that ensures that such 

questions are addressed to the witnesses by the court itself, that inappropriate 

questions are not asked, and that the parties have an opportunity outside the 

hearing of the jury to object to the questions. The court shall inform the jurors of 

the procedures to be followed for submitting questions to witnesses. 

 In People v Heard, 388 Mich 182, 187-188; 200 NW2d 73 (1972), our Supreme Court also held 

that trial courts, in their discretion, may allow jurors to ask questions of witnesses. Regardless of 

defendant held scissors to MT’s neck 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 and 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 met defendant on the website and 

planned to have oral sex and sexual intercourse in exchange for $200. She began consensual oral 

sex in his white, two-door car, but 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 tightly 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 her. 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 thrown in the backseat. 

 
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defendant’s arguments for reform, we are bound to follow this decision 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 “jury was actively involved in 

seeking out facts, filling in any perceived gaps in the prosecutor’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 it 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 regarding the juror questions. 

2 

 Next, defendant argues that the trial court erred by instructing the jury on a manner of 

sexual penetration for CSC-1 that had not been charged. Specifically, 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 prosecutor must prove 

each of the following elements 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 completed 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 not matter whether the 

sexual act was completed or whether semen was ejaculated, and/or entry into 

LG’s mouth by the defendant’s penis. Any entry, no matter how slight, is enough. 

It does not matter whether the sexual act was completed or whether semen was 

ejaculated. 

After the trial court instructed the jury, it asked if there were “any objections or corrections to the 

jury instructions as read to the jury,” and defense counsel responded, “No, your Honor.” 

 “Counsel’s affirmative expression of satisfaction with the trial 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 [ ] that [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 trial court’s instruction is waived. 
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 Defendant also maintains that defense counsel was ineffective because he failed to object 

to the jury instruction regarding the manner of penetration. We 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 bears a heavy burden 

of proving otherwise. To demonstrate ineffective assistance, defendant must 

show: (1) that his attorney’s performance fell below an objective standard of 

reasonableness, and (2) that this performance so prejudiced him that he was 

deprived of a fair trial. “To demonstrate prejudice, the defendant must show the 

existence of a reasonable probability that, but for counsel's error, 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 penetrated her anus with his penis. Rather, she testified that he put 

his penis in her mouth and then penetrated her vagina twice. Her 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 sufficient 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 create a reasonable probability that 

the jury convicted defendant of CSC-1 on the basis of anal penetration. Again, LG did not 

testify regarding any anal penetration and she told the SANE there 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 counsel would have prompted the 

trial court to give the correct jury instruction regarding penile-vaginal penetration. Therefore, 

defendant cannot establish prejudice from defense counsel’s failure to object to the jury 

instruction regarding the manner of penetration. Gaines, 306 Mich App at 300. 

3 

 Defendant argues that the trial court impermissibly enhanced his 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, this Court has previously rejected 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 at sentencing must be admitted 

by a defendant or proven to a jury beyond a reasonable doubt. The 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 
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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 be 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 explained 

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 courts “to establish a minimum sentence 

within a range authorized by law as determined by a jury verdict or a defendant’s plea” as 

opposed to judicial fact-finding used to increase a mandatory minimum 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 counsel was ineffective for 

obtaining consent from defendant’s mother for the police to search defendant’s cellular phone 

and then allowing that search. 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 predicate for his argument, it cannot succeed. 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 constitutional 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 objection 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 relinquishment or abandonment of a known 

right.’ ”) (citation omitted). 

 

6

 An appeal in Herron was held in abeyance pending the Michigan Supreme Court’s decision 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 for leave to appeal to the 

Supreme Court or a Supreme Court order granting leave to appeal does not diminish the 

precedential effect of a published opinion of the Court of Appeals.” MCR 7.215(C). 
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2 

 In a related claim, defendant argues that defense counsel was ineffective for failing to 

object to the other-acts evidence. Defendant preserved his ineffective assistance 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,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 assault because it heard the 

other-acts evidence and did not want to set a “serial rapist” free. But his defense at trial was that 

all three women agreed to have sex and falsely accused him of kidnapping and rape when he 

refused to pay them, and the jury acquitted defendant of the kidnapping 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 reasonable trier of fact could conclude 

that defendant demonstrated consciousness of guilt and attempted 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 of these facts, defendant has failed 

to establish prejudice and we therefore conclude that he was not denied the effective assistance 

of counsel as a result of defense counsel’s decision not to object to the other-acts evidence. 

3 

 In his Standard 4 brief, defendant also argues that defense counsel was ineffective for 

advising him not to testify on the basis that he had a prior conviction 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 predicate 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 constitutional rights to due 

process were violated by the admission of other-acts evidence, specifically the testimony of MT 

and BW. But defendant waived this challenge on appeal when defense counsel expressly stated 

on the record that he had no objection to the prosecutor’s decision 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, 2014 (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 assistance 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 and felonious assault 

because it heard the other-acts evidence and did not want to set a “serial rapist” free, so it 

compromised by acquitting him of CSC-3. But defendant cannot establish that he would also 

have been acquitted of CSC-1 and felonious assault but for defense 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 away quickly—preventing MH 

from following—and took MM to a neighborhood of abandoned houses; a reasonable trier of fact 

could infer that, through his actions, defendant isolated MM and made her vulnerable to 

victimization. Furthermore, MM testified that, with a gun resting 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 trier 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 pointed a gun at her when 

she attempted to exit his car, thereby allowing the jury to conclude that defendant committed 

felonious assault. In light of these facts, defendant has failed to establish prejudice and we again 

conclude that he was not denied the effective assistance of counsel as a result of defense 

counsel’s decision not to object to the other-acts evidence. 

3 

 Next, defendant argues that the trial court erred by instructing the jury regarding the 

consideration of prior inconsistent statements. Specifically, prior inconsistent statements made 

under oath and subject to the penalty of perjury are not hearsay, 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 that 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 ripped her underwear off. On appeal, defendant claims that CJI2d 4.5(2) 

was applicable to these prior statements. CJI2d 4.5(2) provides: 

(2) Evidence has been offered that one or more witnesses in this case previously 

made statements inconsistent with their testimony at this trial. You may consider 

such earlier statements in deciding whether the testimony at this 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, 2014 (Docket 

No. 316314). 
-12- 

And defendant claims that the trial court’s different reading of the instruction was erroneous 

because it did not allow for use of MM’s statement as substantive evidence: 

Evidence has been offered that one or more witnesses in this case previously 

made statements inconsistent with the testimony at this trial. You may consider 

such earlier statements in deciding whether the testimony at this 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.” “Counsel’s affirmative expression of satisfaction with 

the trial court’s jury instruction 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 that, 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 testifying 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 could be used for the purpose of 

deciding whether the witness testified truthfully in court. Therefore, defendant has failed to 

establish prejudice and we conclude that he was not denied the effective assistance of counsel as 

a result of defense counsel’s decision not to object to the trial 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 challenge 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 object and request a curative 

instruction when the prosecutor allegedly vouched for MT’s credibility, 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 denied a fair and impartial 

trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). A prosecutor may not 

vouch for the credibility of a witness by implying that he or she 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 argue the evidence and the reasonable inferences that arise from it. 

People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Here, the prosecutor 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 they 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 circumstance, however, the women 

ultimately did not consent to defendant’s sexual penetrations and assaultive behavior. Moreover, 

the women were “human beings” and, regardless of their previous decisions, they “still 

deserve[d] respect.” The prosecutor’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 advance a 

meritless argument or raise a futile objection does not constitute ineffective assistance of 

counsel.”). 

5 

 Defendant next asserts that he is entitled to a new trial because the prosecutor commented 

on his demeanor in the courtroom during trial. We disagree. 

 During the prosecutor’s examination of MT, she questioned MT regarding defendant’s 

identity and, as defendant argues on appeal, noted that he was laughing: 

Prosecutor. Did he grab you with 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 client is not laughing. 

Prosecutor. Yeah, he is. 

Trial court. Well leave it - - 

Prosecutor. And he’s audibly laughing. 

Trial court. Yeah, I heard something 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, here, any error was harmless. An 

error in the admission or exclusion of evidence will not warrant reversal unless refusal to do so 

appears inconsistent with substantial justice or affects a substantial right of the opposing party. 

MCR 2.613(A). The trial court instructed the jurors that the prosecutor’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 referenced defendant’s demeanor as an identifying characteristic to 

ensure that the person MT described was, in fact, defendant. But this was an isolated occurrence 

and the prosecutor did not argue that defendant’s demeanor demonstrated consciousness of guilt. 
-14- 

The jury was also instructed that it could not convict defendant merely because it concluded that 

defendant was a bad person. Because any error involving the prosecutor’s description of 

defendant’s demeanor was harmless, defendant is not entitled to a new trial. 

6 

 Defendant further argues that his due process rights were violated when the trial court 

admonished defense counsel on the record, in the presence of the 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 it, you know, I was 

perplexed, and I’m still perplexed, it says second count: Is this any sex with gun 

or forced sex with gun? 

This about that. Okay? Logic and common sense. What does that really mean? 

I’m not sure. This gun is not a sex toy. Why would somebody have a gun in the 

car or display a gun - - 

Then, defense counsel interrupted, “Your honor - -,” and the trial 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 jury, defense counsel stated, “And then the other comments the Court 

made about common sense and sex toy was [sic] highly prejudicial and violates [sic] my client’s 

due process [rights] to a fair trial.” Although defense counsel objected to the trial court’s 

comments about common sense and the “gun is not a sex toy,” defense 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.). Therefore, defendant’s unpreserved 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 impartial decisionmaker. Cain 

v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). “A trial judge is presumed 

to be impartial and the party who asserts partiality has a heavy burden of overcoming that 

presumption.” In re MKK, 286 Mich App 546, 566; 781 NW2d 132 (2009). “However, the trial 

court must exercise caution and restraint to ensure that its questions [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 the jury as to a witness’[s] 

credibility, . . . and whether partiality 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 court’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 trial.” MCL 768.29. Here, the trial 

court interrupted defense counsel’s objection, promising it could be done later. To the extent 

defendant argues the trial court’s choice of words aroused suspicion in the mind of the jury, any 
-15- 

perceived prejudice was alleviated by the court’s instructions to the jury that its comments, 

rulings, questions, and instructions were not evidence, and were 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 trial 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 sufficiently justify its sentences, which departed 

from the applicable sentencing guidelines ranges. We agree, in part. 

 First, as we explained earlier in this opinion, defendant’s argument regarding judicial 

fact-finding has been foreclosed by Herron, 303 Mich App at 405. 

 Second, the trial court’s determination that sentencing factors constituted substantial and 

compelling reasons for departure from the guidelines is reviewed 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 present when the sentence assessed is not within the range of principled 

outcomes. Id. 

 “It is well established that ‘[a] court may depart from the appropriate sentence range . . . 

if the court has a substantial and compelling reason for that departure 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 compelling, 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 considerable worth in determining the length 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 appropriate sentence range unless the court finds from the facts . . . 

that the characteristic has been given inadequate or disproportionate weight.’ ” Id. at 300, 

quoting MCL 769.34(3)(b). 

 When there is a departure from the guidelines range, the sentence must be proportionate 

to the seriousness of the defendant’s conduct and criminal history. Smith, 482 Mich at 300. To 

be proportionate, the sentence must 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 guidelines require more than an articulation 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 of the departure.” Id. at 313. In 

Smith, the Supreme Court explained: 

[I]f it is unclear why the trial court made a particular departure, an appellate court 

cannot substitute its own judgment about why the departure was justified. A 

sentence cannot be upheld when the connection between the reasons given for 

departure and the extent of the departure is unclear. When departing, the trial 
-16- 

court must explain why the sentence imposed is more proportionate 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 not 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 provides objective 

factual guideposts that can assist sentencing courts in ensuring that the “ 

‘offenders with similar offense and offender characteristics receive substantially 

similar sentences.’” [Smith, 482 Mich at 309 (footnotes omitted).] 

Here, the minimum sentencing guidelines range for the CSC-1 conviction 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 defendant’s sentences to be served 

consecutively, the felonious assault conviction was also scored and the minimum sentencing 

guidelines range for that conviction was 0 to 17 months. The trial court departed from that range 

by sentencing defendant to 30 to 48 months for the felonious assault conviction. 

 On appeal, defendant does not challenge the trial court’s reasons for departure, but 

instead argues that the trial court failed to justify the extent of each departure. In response, the 

prosecution contends that the trial court provided the requisite 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 conviction because felonious assault is a 

lower crime class than CSC-1. Addressing the prosecution’s second contention, we note that 

MCL 771.21(2) provides, “If the defendant was convicted of multiple 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 report prepared under subsection (1) shall include all 

of the following: 

* * * 

(e) For a person to be sentenced under the sentencing guidelines set forth in [MCL 

777.1 et seq.] all of the following: 

(i) For each conviction for which a consecutive sentence is authorized 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 Mich 905 

(2014), this Court held that the effect of MCL 771.21(2) and MCL 771.14(2)(e) was that “the 

trial court was not required to independently score the guidelines for and sentence the defendant 

on each of his concurrent convictions if the court properly scored and sentenced the defendant 

on the conviction with the highest crime classification.” (Emphasis 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 defendant to consecutive terms of 

imprisonment for his CSC-1 and felonious assault convictions, each must have been 

independently scored, and the prosecution’s contention regarding 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 within the guidelines recommendation 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 applicable 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 counsel was ineffective for 

advising him not to testify on the basis that he had a prior conviction 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 predicate for his argument, it cannot 

succeed. Hoag, 460 Mich at 6. 

 

9

 Because we vacate defendant’s sentence in Docket No. 316314, we decline to address 

defendant’s argument whether the trial court committed plain error affecting defendant’s 

substantial rights by imposing $600 in court costs. Any imposition of costs on remand, however, 

should be made in accordance with MCL 769.1k, as amended by 2014 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 Docket No. 316314 and 

remand for further proceedings in that case, consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Michael J. Kelly 

/s/ Kurtis T. Wilder 

/s/ Kirsten Frank Kelly