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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Plaintiff-Appellee, UNPUBLISHED January 27, 2015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: M URPHY , P.J., and M ETER and S ERVITTO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of tw o 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, MC L 750.92. Defendant was sentenced, as a second-offense habitual offender, MCL 769.10, t o seven to 25 years’ imprisonment for each of the first-degree CSC convictions, 47 m onths to 22 years and six months’ imprisonment for the se cond-degree CSC conviction, and 17 months to seven years and six months’ imprisonment for the a ttempted first-degree CSC con viction. We affirm.

Defendant contends that the prosecutor engaged in misconduct b y referencing and arguing issues pertaining to the c redibility of specific witnes ses. “In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously ob ject 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 prosecut orial misconduct, the issue is not preserved for appellate review. Unpreserved claims are reviewe d 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

1 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 defenda nt “is related to the victim by blood or affinity to the four th degree.” MCL 750.520b(1)(b); s ee also MCL 750.520c(1)(b).-2- misconduct are considered on a case-by-case basis, and the revi ewing 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 com ments 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 def ense counsel’s argument.” People v Unger , 278 Mich App 210, 238; 749 NW 2d 272 (2008) (citations and quo tation marks omitted).

The instances of alleged prosecutorial misconduct encompass th e following. During opening arguments the prosecuto r, indicating defendant would su ggests reasons why the victim would falsely assert such claims, stated:

Which leaves us with this, there will be no valid reason on th is record that you will be able to come up with as to why she could make up su ch egregious acts against her father. You will fin d 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, dev iant, 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 p rosecutor, 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 pr ove. This is an opening stateme nt, not a closing argument. . . . . Confine yourself to an opening statement.”

Defendant additionally cites as misconduct statements by the p rosecutor during his closing argument and rebuttal. F irst, defendant contends the p rosecutor misrepresented the burden of proof to be applied, suggesting it was the responsibi lity of defense counsel to establish
reasonable doubt. This statemen t by the prosecutor was in the context of discussing the necessity of determining the credibility of the witnesses due to the natu re of the crimes alleged, which occur in private, and suggesting that defense counsel would “ar gue all kinds of alleged reasonable doubt” and asserting th at this standard does not mea n “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, i t was asserted that the jury was to focus on “find[ing] the truth.” Anot her incident of alleged miscondu ct involves a lengthy statement by the prosecutor identifying portions of defendant’s testimony th at apparently showed a lack of veracity and arguing for the jury to disbelieve defendant and f ind the victim credible. Finally, defendant alleges as misconduct a statement by the prosecutor d uring rebuttal closing argument again suggesting defendant had a motive to lie and was not cred ible and suggesting that the investigating detective, D. L. S umpter, and the Department of H uman Services (DHS) worker, Brenda McClellan, given their prof essional stature, were worthy of belief.

The incidents alleged do not comprise misconduct by the prosec utor. While a prosecutor is not permitted to vouch for the credibility of witnesses “by implying that he has some special-3- knowledge of their truthfulness,” it does not comprise miscondu ct for a prosecutor to comment “on his own witnesses’ credibility during closing argument espe cially when there is conflicting evidence and the question of the defendant’s guilt depends on w hich 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 regardi ng the victim’s lack of motivation to lie are viewed in context and in light of the con tent 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 prose cutor 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 “respon sive nature,” the prosecutor’s comments were not improper because they constituted a comment o n the evidence and theories
set forth at trial. Id . at 455-456. In addition, “any pr ejudice caused by the remark s could have been alleviated by a curative instruction given on a timely obj ection.” Id . at 455.

Specifically addressing the prosecutor’s comments regarding de fendant’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 questi oned. People v Fields , 450 Mich 94, 110; 538 NW2d 356 (1995). The prosecutor’s comments regard ing defendant’s truthfulness pertained to discrepancies and in consistencies concerning defen dant’s testimony. As such, the prosecutor’s statements pertaining to defendant’s motivations d id not constitute misconduct. A prosecutor is permitted to “argue from the evidence and its rea sonable inferences in support of a witness’s credibility.” Bennett , 290 Mich App at 478. Further, a prosecutor is not required t o confine his or her argument to the blandest of all possible ter ms. See People v Fyda , 288 Mich App 446, 462; 793 NW2d 712 (2010). Contrary to defendant’s ass ertion, the ruling in People v Buckey , 424 Mich 1; 378 NW2d 432 (1985), do es not support his appella te argument. In Buckey

, the Michigan Supreme Court specifically stated, “It is well est ablished 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 comme nts 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 p roof to a defendant. People v

Abraham , 256 Mich App 265, 273; 662 NW2d 836 (2003). When viewed in c ontext, the prosecutor’s statements pertaining to defense counsel’s creatio n of reasonable doubt did not comprise an improper shifting of the burden, but rather a comme nt on the evidence and the arguments of the defense pertaining to the credibility of witne sses. 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 comme ntary on weaknesses in defendan t’s case did not comprise prosecutorial misconduct. People v McGhee , 268 Mich App 600, 635; 709 NW2d 595 (2005).-4- As noted, defendant did not objec t to any of the allegedly imp roper statements by the prosecutor. “[E]rror requiring reversal” cannot be found “wher e a curative instruction could have alleviated any prejudicial effect.” People v Callon , 256 Mich App 312, 329-330; 662 NW2d 501 (2003). Further, the tr ial court specifically instruc ted the jury that its deliberations were restricted solely to the evidence presented during the tri al and that the questions and arguments of counsel did not comprise evidence. Jurors are pre sumed to follow their
instructions. Abraham , 256 Mich App at 279. Defendant has failed to show that the prosecutor’s closing arguments a ffected his substantial rights. 2

In terms of the alleged misconduct of the prosecutor during op ening statements, again defendant did not object and e rror requiring reversal cannot be predicated on these comments.

See Callon , 256 Mich App at 329-330. The trial court interrupted the dis course by the prosecutor, instructing the prosecutor to “confine” his comment s “to an opening statement” and not closing arguments. While technically not a proper presenta tion or statement given the purpose of opening arguments, the discourse was halted by the t rial court and did not recur. This limited instance is insufficient to demonstrate that the prosec utor’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 ch allenging 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 sentenci ng or in a subsequent motion; instead, at sentencing defendant denied the existence of any is sues 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 quotati on marks omitted). Defendant affirmatively denied having any “issues co ncerning scoring of the sentencing guidelines.” Defendant effectively waived any asser tion of error premised on his express approval of the guideline s scoring in the trial court. Id

.

In his Standard 4 brief, defenda nt contends that his trial cou nsel was ineffective for not adequately pursuing various mechanisms to impeach witnesses. T o properly preserve a claim of

2 Arguably, the prosecutor’s comments in closing regarding the v ictim’s “tenacity” and entitlement to praise for her courage borders on an improper sy mpathy 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 cont ext, the prosecutor’s arguments were directed to the victim’s credibilit y. At least in part, this addressed defendant’s suggestion that the victim had fabricated her alleg ations. As such, the prosecutor was arguing a reason for the jury to find the victim credible a nd not simply making a plea to sympathize with the victim. The trial court also instructed th e jury that it was not permitted “to let sympathy or prejudice influe nce your decision.” We find no plain error requiring reversal.-5- ineffective assistance of counsel, a defendant is required to m ove 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 defendan t 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 “u npreserved 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 co mprises 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 rev iewed for clear error, while it s constitutional determinations are subject to review de novo. People v Johnson , 293 Mich App 79, 90; 808 NW2d 815 (2011).

Although defendant attaches numer ous documents or partial docu ments 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 deter mining ineffective assistance of counsel. It is well recognized:

It is not enough for an appellant in his brief simply to annou nce a position or assert an error and then leave it up to this Court to discov er and rationalize the basis for his claims, or unravel and elaborate for him his argu ments, 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 appell ate well begin to flow. Failure to brief a question on appeal is tantamount to a bandoning 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

3 With regard to the one document that defendant refers to in th e 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 ha ve 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 t ime of March 2012, and defendant admits that the document in question was from 2009, making it i rrelevant for the purpose he

asserts.