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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 27, 2015 

v No. 317821 

Emmet Circuit Court 

CHRISTOPHER GRAGORY WINOWIECKI, LC No. 12-003657-FC 

 Defendant-Appellant. 

Before: MURPHY, P.J., and METER and SERVITTO, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of two counts of first-degree 

criminal sexual conduct (CSC), MCL 750.520b(1)(b)1; one count of second-degree CSC, MCL 

750.520c(1)(b); and one count of attempted first-degree CSC, MCL 750.92. Defendant was 

sentenced, as a second-offense habitual offender, MCL 769.10, to seven to 25 years’ 

imprisonment for each of the first-degree CSC convictions, 47 months to 22 years and six 

months’ imprisonment for the second-degree CSC conviction, and 17 months to seven years and 

six months’ imprisonment for the attempted first-degree CSC conviction. We affirm. 

 Defendant contends that the prosecutor engaged in misconduct by referencing and 

arguing issues pertaining to the credibility of specific witnesses. “In order to preserve an issue of 

prosecutorial misconduct, a defendant must contemporaneously object and request a curative 

instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). Because 

defendant failed to object to the alleged instances of prosecutorial misconduct, the issue is not 

preserved for appellate review. Unpreserved claims are reviewed by this Court for plain error 

affecting substantial rights. People v Walker (On Remand), 273 Mich App 56, 65-66; 728 NW2d 

902 (2006). 

 The test for prosecutorial misconduct is whether the defendant was denied a fair trial. 

People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “[A]llegations of prosecutorial 

 

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 The victim “is at least 13 but less than 16 years of age” and either (1) the defendant “is a 

member of the same household as the victim,” or (2) the defendant “is related to the victim by 

blood or affinity to the fourth degree.” MCL 750.520b(1)(b); see also MCL 750.520c(1)(b). 
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misconduct are considered on a case-by-case basis, and the reviewing court must consider the 

prosecutor’s remarks in context.” Bennett, 290 Mich App at 475. “No error requiring reversal 

will be found if the prejudicial effect of the prosecutor’s comments could have been cured by a 

timely instruction.” People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001) (citation 

and quotation marks omitted). “[A]n otherwise improper remark may not rise to an error 

requiring reversal when the prosecutor is responding to the defense counsel’s argument.” People 

v Unger, 278 Mich App 210, 238; 749 NW2d 272 (2008) (citations and quotation marks 

omitted). 

 The instances of alleged prosecutorial misconduct encompass the following. During 

opening arguments the prosecutor, indicating defendant would suggests reasons why the victim 

would falsely assert such claims, stated: 

 Which leaves us with this, there will be no valid reason on this record that 

you will be able to come up with as to why she could make up such egregious acts 

against her father. You will find her to be a sincere, honest, likeable, and 

innocent child. 

 On the other hand, you will find that the Defendant will have a very strong 

motive to deny these charges. As you know, it’s abhorrent, deviant, unnatural 

conduct that is extremely embarrassing for anyone to admit. As well as having 

criminal ramifications if you do admit it. 

The trial court interrupted the prosecutor, asking counsel to “approach the bench.” At the 

conclusion of the bench conference, the trial court indicated, “It is pure unadulterated argument 

not what you’re intending to prove. This is an opening statement, not a closing argument. . . . . 

Confine yourself to an opening statement.” 

 Defendant additionally cites as misconduct statements by the prosecutor during his 

closing argument and rebuttal. First, defendant contends the prosecutor misrepresented the 

burden of proof to be applied, suggesting it was the responsibility of defense counsel to establish 

reasonable doubt. This statement by the prosecutor was in the context of discussing the necessity 

of determining the credibility of the witnesses due to the nature of the crimes alleged, which 

occur in private, and suggesting that defense counsel would “argue all kinds of alleged 

reasonable doubt” and asserting that this standard does not mean “beyond all doubt.” The 

prosecutor indicated that the job of the jury was “to render a verdict based on the truth of the 

case . . . not to go back . . . and look for doubt.” Rather, it was asserted that the jury was to focus 

on “find[ing] the truth.” Another incident of alleged misconduct involves a lengthy statement by 

the prosecutor identifying portions of defendant’s testimony that apparently showed a lack of 

veracity and arguing for the jury to disbelieve defendant and find the victim credible. Finally, 

defendant alleges as misconduct a statement by the prosecutor during rebuttal closing argument 

again suggesting defendant had a motive to lie and was not credible and suggesting that the 

investigating detective, D. L. Sumpter, and the Department of Human Services (DHS) worker, 

Brenda McClellan, given their professional stature, were worthy of belief. 

 The incidents alleged do not comprise misconduct by the prosecutor. While a prosecutor 

is not permitted to vouch for the credibility of witnesses “by implying that he has some special 
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knowledge of their truthfulness,” it does not comprise misconduct for a prosecutor to comment 

“on his own witnesses’ credibility during closing argument especially when there is conflicting 

evidence and the question of the defendant’s guilt depends on which witnesses the jury 

believes.” People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). When the closing

comments regarding the detective and the DHS worker and regarding the victim’s lack of 

motivation to lie are viewed in context and in light of the content of defendant’s defense that he 

did not engage in the alleged behaviors and that the victim had reasons to fabricate her 

allegations, it was not improper for the prosecutor to comment on the lack of motivation for 

McClellan, Sumpter, and the victim to be untruthful. The prosecutor did not imply special 

knowledge regarding the veracity of these individuals; rather, he argued that they had no reason 

to lie. Based on the context of the comments and their “responsive nature,” the prosecutor’s 

comments were not improper because they constituted a comment on the evidence and theories 

set forth at trial. Id. at 455-456. In addition, “any prejudice caused by the remarks could have 

been alleviated by a curative instruction given on a timely objection.” Id. at 455. 

 Specifically addressing the prosecutor’s comments regarding defendant’s credibility, it is 

understood that “[a] prosecutor may argue from the facts that a witness is credible or that a 

witness is not worthy of belief.” Unger, 278 Mich App at 240. Any testifying witness is subject 

to having his or her credibility impeached and testimony questioned. People v Fields, 450 Mich 

94, 110; 538 NW2d 356 (1995). The prosecutor’s comments regarding defendant’s truthfulness 

pertained to discrepancies and inconsistencies concerning defendant’s testimony. As such, the 

prosecutor’s statements pertaining to defendant’s motivations did not constitute misconduct. A 

prosecutor is permitted to “argue from the evidence and its reasonable inferences in support of a 

witness’s credibility.” Bennett, 290 Mich App at 478. Further, a prosecutor is not required to 

confine his or her argument to the blandest of all possible terms. See People v Fyda, 288 Mich 

App 446, 462; 793 NW2d 712 (2010). Contrary to defendant’s assertion, the ruling in People v 

Buckey, 424 Mich 1; 378 NW2d 432 (1985), does not support his appellate argument. In Buckey, 

the Michigan Supreme Court specifically stated, “It is well established that the prosecutor may 

comment upon the testimony and draw inferences from it and may argue that a witness, 

including the defendant, is not worthy of belief.” Buckey, 424 Mich at 14-15. The Court 

emphasized, “Opportunity and motive to fabricate testimony are permissible areas of inquiry of 

any witness.” Id. at 15. In this instance the prosecutor’s statements or comments were on the 

content of defendant’s “testimony in relation either to his own earlier inconsistent testimony . . ., 

or to the testimony of other witnesses. . . .” Id. 

 With regard to the alleged improper shifting of the burden of proof, we note that a 

prosecutor is not permitted to attempt to shift the burden of proof to a defendant. People v 

Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003). When viewed in context, the 

prosecutor’s statements pertaining to defense counsel’s creation of reasonable doubt did not 

comprise an improper shifting of the burden, but rather a comment on the evidence and the 

arguments of the defense pertaining to the credibility of witnesses. A prosecutor is permitted to 

fairly respond to an issue raised by a defendant. See Fields, 450 Mich at 110-111. The 

prosecutor’s attack on the theory of the defense did not serve to improperly shift the burden of 

proof and the reference or commentary on weaknesses in defendant’s case did not comprise 

prosecutorial misconduct. People v McGhee, 268 Mich App 600, 635; 709 NW2d 595 (2005). 
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 As noted, defendant did not object to any of the allegedly improper statements by the 

prosecutor. “[E]rror requiring reversal” cannot be found “where a curative instruction could 

have alleviated any prejudicial effect.” People v Callon, 256 Mich App 312, 329-330; 662 

NW2d 501 (2003). Further, the trial court specifically instructed the jury that its deliberations 

were restricted solely to the evidence presented during the trial and that the questions and 

arguments of counsel did not comprise evidence. Jurors are presumed to follow their 

instructions. Abraham, 256 Mich App at 279. Defendant has failed to show that the 

prosecutor’s closing arguments affected his substantial rights.2

 In terms of the alleged misconduct of the prosecutor during opening statements, again 

defendant did not object and error requiring reversal cannot be predicated on these comments. 

See Callon, 256 Mich App at 329-330. The trial court interrupted the discourse by the 

prosecutor, instructing the prosecutor to “confine” his comments “to an opening statement” and 

not closing arguments. While technically not a proper presentation or statement given the 

purpose of opening arguments, the discourse was halted by the trial court and did not recur. This 

limited instance is insufficient to demonstrate that the prosecutor’s comments affected 

defendant’s substantial rights. 

 Next, defendant contends he is entitled to resentencing due to the improper scoring of the 

sentencing offense variables. To properly preserve an issue challenging the scoring of the 

guidelines, the issue must be raised at sentencing, in a proper motion for resentencing, or in a 

proper motion to remand. MCL 769.34(10); People v Jackson, 487 Mich 783, 795-796; 790 

NW2d 340 (2010). Defendant did not raise the issue at sentencing or in a subsequent motion; 

instead, at sentencing defendant denied the existence of any issues with regard to the scoring of 

the guidelines. A waiver is an “intentional relinquishment or abandonment of a known right.” 

People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (citations and quotation marks 

omitted). Defendant affirmatively denied having any “issues concerning scoring of the 

sentencing guidelines.” Defendant effectively waived any assertion of error premised on his 

express approval of the guidelines scoring in the trial court. Id. 

 In his Standard 4 brief, defendant contends that his trial counsel was ineffective for not 

adequately pursuing various mechanisms to impeach witnesses. To properly preserve a claim of 

 

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 Arguably, the prosecutor’s comments in closing regarding the victim’s “tenacity” and 

entitlement to praise for her courage borders on an improper sympathy argument. A prosecutor 

is not permitted to ask jurors to sympathize with the victim or to suggest placing themselves in 

the victim’s position. People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001); People 

v Cooper, 236 Mich App 643, 653; 601 NW2d 409 (1999). However, in context, the 

prosecutor’s arguments were directed to the victim’s credibility. At least in part, this addressed 

defendant’s suggestion that the victim had fabricated her allegations. As such, the prosecutor 

was arguing a reason for the jury to find the victim credible and not simply making a plea to 

sympathize with the victim. The trial court also instructed the jury that it was not permitted “to 

let sympathy or prejudice influence your decision.” We find no plain error requiring reversal. 
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ineffective assistance of counsel, a defendant is required to move for a new trial or seek an 

evidentiary hearing in accordance with People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

People v Armisted, 295 Mich App 32, 45-46; 811 NW2d 47 (2011). Because defendant has not 

moved for a new trial or a Ginther hearing, his claim of ineffective assistance of counsel is not

properly preserved for appellate review. This Court reviews “unpreserved claims of ineffective 

assistance of counsel for errors apparent on the record.” Id. at 46. The determination of whether 

a person has been denied the effective assistance of counsel comprises a mixed question of fact 

and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial 

court’s factual findings are reviewed for clear error, while its constitutional determinations are 

subject to review de novo. People v Johnson, 293 Mich App 79, 90; 808 NW2d 815 (2011). 

 Although defendant attaches numerous documents or partial documents to his brief, in his 

argument section he references only one of the attachments and cites no legal authority to 

support his contention, other than the basic standard for determining ineffective assistance of 

counsel. It is well recognized: 

 It is not enough for an appellant in his brief simply to announce a position 

or assert an error and then leave it up to this Court to discover and rationalize the 

basis for his claims, or unravel and elaborate for him his arguments, and then 

search for authority either to sustain or reject his position. The appellant himself 

must first adequately prime the pump; only then does the appellate well begin to 

flow. Failure to brief a question on appeal is tantamount to abandoning it. 

[People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) (citations 

and quotation marks omitted).] 

“Appearance in pro per does not excuse all application of court rules[.]” Bachor v Detroit, 49 

Mich App 507, 512; 212 NW2d 302 (1973). We find that defendant’s claim of ineffective 

assistance of counsel is waived.3

 Affirmed. 

/s/ William B. Murphy 

/s/ Patrick M. Meter 

/s/ Deborah A. Servitto 

 

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 With regard to the one document that defendant refers to in the argument portion of his brief, 

we note that the document states that the victim’s mother was “trying to get full custody of her 

children . . . .” Defendant contends that the mother should have been impeached and otherwise 

confronted with this document because at trial she denied that she was seeking full custody. 

However, the portion of the trial transcript to which defendant refers indicates that the mother 

was asked at trial if she was seeking full custody around the time of March 2012, and defendant 

admits that the document in question was from 2009, making it irrelevant for the purpose he 

asserts.