Tukel, P.J.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jon P. Wojtala, Chief of Research, Training, and Appeals, and Brittany Taratuta, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker ) for defendant.

Before: Tukel, P.J., and Jansen and Cameron, JJ.

Tukel, P.J.

Defendant appeals as of right his jury-trial conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b (multiple variables); unlawful imprisonment, MCL 750.349b ; and domestic violence, MCL 750.81(2). Defendant was sentenced to concurrent terms of 7 to 20 years’ imprisonment for CSC-I and 2 to 15 years’ imprisonment for unlawful imprisonment, as well as a term of 65 days in jail, time served, for domestic violence. On appeal, defendant argues that the trial court erred by denying his motion for a mistrial following testimony by a police officer regarding defendant's criminal history. Defendant additionally argues that the trial court erred by sentencing him, in part, on the basis of conduct of which he had been acquitted. We disagree and therefore affirm defendant's convictions and sentence.

I. UNDERLYING FACTS

This case arises from an altercation between defendant and the victim, his wife. Defendant and the victim were living separately when the incident occurred. On the evening in question, the victim arrived home to her apartment and discovered defendant inside, uninvited. According to the victim, defendant had a gun and repeatedly threatened to kill the victim and himself. At one point, defendant grabbed the victim by the throat. The victim testified that she attempted to calm defendant down for several hours and complied with everything defendant asked of her out of fear for her own safety. The victim further testified that her compliance with defendant's directives included having sex with defendant, taking a shower with defendant the following morning, and accompanying defendant to get coffee the morning after the incident occurred. The victim stated that she wanted to escape from defendant throughout the entirety of the encounter, but was too afraid to do so.

During the victim's testimony at trial, defense counsel asked her when she and defendant had last been physically intimate before the incident occurred. The victim responded that her sexual relationship with defendant "ended the weekend that, I don't know if I can say, but he had to go to jail for a weekend for violation of probation. When he got out of jail I believe that was the end of the intimacy ...." Defense counsel did not object to this response.

The following day of trial, Detective Joseph Carr of the Wyandotte Police Department testified that he executed the search warrant of defendant's home after the victim reported the incident. On redirect examination, the following exchange occurred:

[The prosecutor ]: So you went through all those steps before [SWAT (Special Weapons and Tactics)] just came and knocked [defendant's] door down?

[Detective Carr ]: Prior to the execution of the search warrant we had a briefing with the [SWAT] team which we went over the circumstances of the case and some of [defendant's] criminal history.

Defense counsel immediately objected and subsequently moved for a mistrial. The trial court denied defendant's motion for a mistrial but offered to give a curative jury instruction and to strike Detective Carr's answer. Defense counsel chose to recross-examine Detective Carr in lieu of the trial court striking the answer. The trial court also provided a curative jury instruction, and defense counsel expressed satisfaction with the instruction. Defendant was then convicted and sentenced as detailed earlier. This appeal followed.

II. MOTION FOR A MISTRIAL

Defendant argues that Detective Carr's testimony about his criminal history was so prejudicial that the trial court erred by denying defendant's motion for a mistrial. We disagree.

A. STANDARD OF REVIEW

We review a trial court's denial of a motion for a mistrial for an abuse of discretion. People v. Schaw , 288 Mich. App. 231, 236, 791 N.W.2d 743 (2010). "This Court will find an abuse of discretion if the trial court chose an outcome that is outside the range of principled outcomes." Id. "A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant's ability to get a fair trial." People v. Dickinson , 321 Mich. App. 1, 18, 909 N.W.2d 24 (2017) (quotation marks and citation omitted). Thus, "[f]or a due process violation to result in reversal of a criminal conviction, a defendant must prove prejudice to his or her defense." Id. (quotation marks and citation omitted). And the extent of the prejudice is a critical factor: "[T]he moving party must establish that the error complained of is so egregious that the prejudicial effect can be removed in no other way." Id. (quotation marks and citation omitted); see also People v. Caddell , 332 Mich. App. 27, 37, 955 N.W.2d 488 (2020).

B. ANALYSIS

Defendant relies heavily on People v. Holly , 129 Mich. App. 405, 415, 341 N.W.2d 823 (1983), which was decided before November 1, 1990, and therefore lacks precedential authority. See MCR 7.215(J)(1). In Holly , a police officer was asked on cross-examination whether the defendant had said anything more than what the officer had written down when taking defendant's statement. The officer responded that Holly had admitted involvement in at least one other armed robbery. Id. at 414-415, 341 N.W.2d 823. This Court stated, "[W]hen an unresponsive remark is made by a police officer, this Court will scrutinize that statement to make sure the officer has not ventured into forbidden areas which may prejudice the defense. Police witnesses have a special obligation not to venture into such forbidden areas." Id. at 415-416, 341 N.W.2d 823 (citation omitted). The Court further added: "Being a police sergeant and the officer in charge of the case, he should have known better than to volunteer such information. Inadmissible evidence tying a defendant to other crimes is highly prejudicial." Id. at 416, 341 N.W.2d 823. Holly has been cited by a handful of published opinions, but no majority opinion in any of those decisions has cited Holly for its view of the "special obligation" police witnesses have to avoid testifying about "forbidden areas," such as a defendant's criminal history. We think Holly ’s analysis is faulty, and we expressly reject it. The proper analysis for a motion for mistrial depends principally, if not exclusively, on whether a defendant has been prejudiced by an irregularity or error. After its statement regarding the "special obligation" of police witnesses, the Holly Court in fact ignored most of what it had said about improper police testimony and engaged in what was essentially a proper analysis focused on prejudice; consequently, the Court upheld the conviction. The Court stated, "In the present case, the evidence was especially prejudicial. [The defendant] testified that he was not actually involved in the robbery, but did what he did because he feared [the codefendant]. His story's believability is substantially reduced if one knows that [the defendant] previously participated in other armed robberies." Id. at 416, 341 N.W.2d 823. Nevertheless, while it acknowledged the "undeniable prejudice of the testimony," the Court affirmed the defendant's convictions, explaining that "[t]he evidence against him was simply too strong." Id.

Holly ’s analysis demonstrates the weakness of its statements about what it termed improper police officer testimony. This Court determined that police officer testimony about Holly's participation in other robberies was prejudicial error but not error requiring reversal. That conclusion about the ultimate effect on the verdict of any improper officer testimony was not affected by the fact that the testimony had been given by a police officer. An analysis of prejudice focuses on the effect of what took place (the hearing of improper testimony), rather than whether an officer acted improperly by testifying to certain facts; in other words, in Holly , it was the disclosure of defendant's criminal history or involvement in other robberies which prejudiced him, not the identity of the witness who testified to those facts. Holly gave no reason in support of evaluating an officer's testimony for impropriety under a different standard than would be used to evaluate any other witness's testimony; it certainly cannot be because a jury is more likely to believe an officer's testimony, as the law provides, and juries are instructed, that an officer's testimony is to be judged "by the same standards you use to evaluate the testimony of any other witness." M. Crim. JI 5.11 (police witness).

The facts of this case bear out the deficiencies in Holly ’s analysis. In this case, defendant's wife testified that he had been jailed for a probation violation. If the jury's verdict would have been affected because that testimony was "so egregious that the prejudicial effect can be removed in no other way" than by the granting of a mistrial, Dickinson , 321 Mich. App. at 18, 909 N.W.2d 24, then the identity of the witness who provided the testimony would not matter. Indeed, it is often family members and close associates of a defendant who are most familiar with the facts regarding a defendant's criminal activity. Yet, as the holding in Holly demonstrated, the case turned on the fact that the other evidence was "simply too strong" for the defendant to have been prejudiced; it did not matter to the final result that the testimony was provided by a police officer because the testimony did not affect the verdict. Indeed, if such testimony had instead been given by the defendant's wife, as in this case, it would not have obviated the necessity of determining whether the testimony had prejudiced the defendant.

Holly had other flaws as well. While we agree wholeheartedly that police witnesses (and all witnesses) have an obligation not to venture into forbidden areas of testimony, Holly , 129 Mich. App. at 415-416, 341 N.W.2d 823, the key point is in regards to testimony which is "forbidden." An area of testimony is only "forbidden" if the court rules it inadmissible. While many things, including a defendant's criminal history, are generally inadmissible, there are exceptions for all such rules. By way of example, in certain instances, "evidence of other crimes, wrongs, or acts" of a defendant are admissible. MRE 404(b). When a defendant testifies, his or her criminal history may be admissible for impeachment purposes. MRE 609(a)(2). Holly erred by creating a blanket assumption that a police officer will in all instances know precisely what has been ruled admissible and what has been ruled "forbidden." While it will sometimes be true that a police officer will know precisely what has been deemed inadmissible, it is not invariably so. We suggest that it would be a good practice for a trial court ruling on the admissibility of testimony to instruct the prosecutor to inform the officer regarding what has been ruled inadmissible prior to an officer's testimony.

Applying the principles governing a motion for mistrial here, we conclude that defendant was not prejudiced by the officer's testimony. As discussed earlier, defendant's criminal history was referenced twice at trial. The first time was when the victim mentioned it, in response to defense counsel's question asking when she and defendant stopped having an intimate relationship. In response to that question, the victim testified that the turning point was when defendant had gone to jail for the weekend for a probation violation. Defense counsel did not object to this testimony. The victim's testimony implicitly informed the jury that defendant had a criminal record, but no specific details were offered. Defendant's criminal history was then addressed a second time by Detective Carr, who testified that the SWAT team reviewed "some of [defendant's] criminal history" before it attempted to apprehend defendant at his home. Detective Carr's testimony had the potential to prejudice defendant, but two remedies were used at trial to mitigate any prejudicial effect of the detective's testimony.

First, the trial court offered to strike Detective Carr's testimony, but defense counsel chose a different remedy, electing instead to question Detective Carr about defendant's criminal history. During this cross-examination, Detective Carr testified that defendant did not have a criminal record of convictions for domestic violence, violence against women, or anything "involving firearms." Second, prior to deliberations, the trial court instructed the jury to disregard all comments regarding defendant's possible criminal history, stating:

You have heard evidence that the defendant may have a criminal history. You are not to consider this evidence at all in your deliberations. To repeat once more, when determining the facts and evidence in this case you must not use it to decide whether you believe the defendant is guilty of any of the [crimes he] has been charged with.

Defense counsel expressed satisfaction with this jury instruction. Accordingly, both cross-examination and a limiting instruction were employed at trial to cure any prejudice arising from Detective Carr's testimony about defendant's criminal history. These remedies were sufficient to cure the prejudicial effect of the detective's testimony. To begin with, as noted by the trial court, by the time of Detective Carr's testimony regarding defendant's criminal history the jury already had heard, by virtue of the victim's testimony, that defendant had a criminal history. As noted, defendant did not object to that testimony. In addition, the jury was instructed to ignore all evidence related to defendant's criminal history. The jury is presumed to have followed the trial court's instruction, and the instruction was sufficient to cure any prejudice caused by Detective Carr's testimony. See People v. Waclawski , 286 Mich. App. 634, 710, 780 N.W.2d 321 (2009). The curative instruction effectively struck the challenged testimony because the trial court directed the jury to disregard any evidence that defendant had a criminal history. Furthermore, neither the victim's nor Detective Carr's testimony provided any specifics about defendant's criminal history, other than to state that defendant had not been convicted previously of any of the same offenses for which he was on trial—domestic violence, violence against women, or firearms offenses. That instruction directly addressed any issue with the most damaging form of propensity evidence—the type that implies that a defendant must be guilty because they had committed the same crime before. Given the various steps taken to mitigate any prejudice, including that defense counsel was permitted to choose a method of mitigation over one suggested by the trial court, it certainly was not the case that "the error complained of is so egregious that the prejudicial effect can be removed in no other way" than the granting of a mistrial. Dickinson , 321 Mich. App. at 18, 909 N.W.2d 24 (quotation marks and citation omitted); see also Caddell , 332 Mich. App. at 37, 955 N.W.2d 488. Thus, we cannot conclude that the trial court abused its discretion by denying defendant's motion for a mistrial. See Schaw , 288 Mich. App. at 236, 791 N.W.2d 743.

III. SENTENCING

Defendant argues that he is entitled to resentencing because the trial court erroneously relied on conduct for which he had been acquitted. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

"To preserve a sentencing issue for appeal, a defendant must raise the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals." People v. Anderson , 322 Mich. App. 622, 634, 912 N.W.2d 607 (2018) (quotation marks and citation omitted). Defendant did none of these. Thus, the issue is unpreserved.

Unpreserved issues are reviewed for plain error. People v. Cain , 498 Mich. 108, 116, 869 N.W.2d 829 (2015).

To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the

defendant's innocence. [ People v. Carines , 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999) (quotation marks, citations, and brackets omitted).]

"A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable dispute.’ " People v. Randolph , 502 Mich. 1, 10, 917 N.W.2d 249 (2018), quoting Puckett v. United States , 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009).

B. ANALYSIS

In People v. Beck , 504 Mich. 605, 629-630, 939 N.W.2d 213 (2019), our Supreme Court held that trial courts cannot make factual findings at sentencing based on "acquitted conduct." Trial courts, however, retain discretion to consider uncharged conduct at sentencing. Id. at 626-627, 939 N.W.2d 213. " ‘Acquitted conduct’ means any ‘conduct ... underlying charges of which [the defendant] had been acquitted.’ " People v. Roberts (On Remand) , 331 Mich.App. 680, 688, 954 N.W.2d 221 (2020), reversed on other grounds by 506 Mich. 938, 949 N.W.2d 455 (2020), quoting United States v. Watts , 519 U.S. 148, 149, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (alterations in original). See also People v. Stokes , 333 Mich. App. 304, 308–309, 963 N.W.2d 643 (2020) (quoting Roberts ). Consequently, "a sentencing court must consider a defendant as having undertaken no act or omission that a jury could have relied upon in finding the essential elements of any acquitted offense were proved beyond a reasonable doubt." Roberts (On Remand) , 331 Mich.App.at 688, 954 N.W.2d 221. But " Beck expressly permits trial courts to consider uncharged conduct and any other circumstances or context surrounding the defendant or the sentencing offense." Id. Furthermore, Beck does not "preclude all consideration of the entire res gestae of an acquitted offense." Id. at 691, 954 N.W.2d 221. For example, under Beck , a trial court can find at sentencing that a defendant acted with reckless disregard for the safety of others even if the defendant was acquitted of a crime for similar activity requiring a specific-intent mens rea. Id. at 692, 954 N.W.2d 221. Such factual findings at sentencing are permissible because they are not findings of acquitted conduct; rather, they are essentially findings of uncharged conduct. See id. (holding that even though a defendant was acquitted of aiding and abetting a shooting outside a nightclub, the trial court could still find that the defendant had acted with reckless disregard by bringing a concealed weapon to the nightclub). Additionally, "a sentencing court may review a [presentence investigation report] containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant," but if "the sentencing court specifically reference[s] acquitted offenses as part of its sentencing rationale, a Beck violation [is] apparent." Stokes , 333 Mich. App. at 311–312, 963 N.W.2d 643. Finally, "[i]n the absence of evidence presented by a defendant demonstrating that a sentencing court actually relied on acquitted conduct when sentencing the defendant, the defendant is not entitled to resentencing." Id. at 312, 963 N.W.2d 643.

Defendant argues that the trial court erroneously relied on acquitted conduct at sentencing because the trial court referenced defendant's alleged use of a gun and stated that the use of a gun was the basis for defendant's CSC-I conviction. According to defendant, the trial court's reference to the use of a gun constituted improper reliance on acquitted conduct because the jury had acquitted defendant of each firearm-related charge. Defendant's argument is unpersuasive.

At sentencing, the trial court acknowledged that the jury did not find defendant guilty of each count. The trial court noted, however, that defendant was convicted of a violent offense, stating:

Now, [defense counsel], you've described that this isn't a violent offense. A person doesn't have to be kicked, stabbed, shot or something to be violent. The fact that a gun is used in this court's mind makes it a violent offense. And ultimately it was the basis for the charge of [CSC-I]. And certainly could [the victim] have ran out of the house, I suppose she could have. Does that mean that she

was—didn't feel like she was forced to stay against her will? I don't think that that's the case. And I think trying to—I think indicating that doesn't take into account the real fear that victims of domestic violence have frankly. And while that fear can't always be articulated sometimes it doesn't always make sense. It's a real fear based on past conduct, based on words, based on communications that are between the two parties.

Frankly, unless you were there you don't know what happened, it's all speculation. But [the victim] testified, she testified under oath and the jury accepted her statements as true in finding the defendant guilty of [CSC-I] as well as unlawful imprisonment.

The trial court ultimately determined that sentencing defendant at the high end of the sentencing guidelines range was appropriate "based on all the facts and circumstances. And, really based on the lifelong effect that this is going to have on [the victim]."

Defendant has not demonstrated that the trial court actually relied on acquitted conduct when imposing his sentence. Unlike in Beck , the trial court sentenced defendant within the sentencing guidelines range. See Beck , 504 Mich. at 610, 939 N.W.2d 213. Defendant does not challenge the trial court's scoring of any specific offense variables (OVs), and none of the OVs scored by the trial court involved the use of a gun. See MCL 777.38 (scoring OV 8); MCL 777.40 (scoring OV 10). This case also differs from Beck in that the trial court did not base its sentencing decision on its own conclusion that defendant had committed one of the acquitted charges by a preponderance of the evidence. See Beck , 504 Mich. at 629-630, 939 N.W.2d 213. Rather, the trial court's comment about the gun referred to defense counsel's argument that the trial court should not impose consecutive sentences because, as defense counsel stated, "This is not someone who injured [the victim] during the course of this. This was not a violent offense by its very nature." The trial court did not impose a consecutive sentence in this case, but it did apparently believe that a gun was used, which amounted to a finding of fact contrary to acquitted conduct, as defendant was acquitted of multiple firearms offenses in this case. See Roberts (On Remand) , 331 Mich. App. at 688, 954 N.W.2d 221. Consequently, the trial court erred by stating that a gun was used in this case.

Nevertheless, the trial judge's statement that a gun was used in this case, without more, does not amount to a Beck violation requiring resentencing. For there to be a Beck violation, the trial court's reference to the gun would have to have been part of its sentencing rationale. See Stokes , 333 Mich. App. at 312, 963 N.W.2d 643. The trial court made reference to defendant's use of a gun only in response to defense counsel's argument that defendant had not committed a violent offense. Then the trial court concluded that, even though it would not impose a consecutive sentence, "the high end of the guidelines would be the more appropriate sentence based on all the facts and circumstances" as well as the long-term effects defendant's conduct had on the victim. On the basis of the record before this Court, defendant failed to demonstrate that the trial court relied on defendant's use of a gun as one of the "facts and circumstances" that informed its sentencing decision; the record bears out only that the trial court relied on the long-term effect that defendant's conduct had on the victim. Defendant has the burden of establishing that he was prejudiced by the trial court's error. See Carines , 460 Mich. at 763-764, 597 N.W.2d 130. Defendant has failed to establish, however, that the trial court would have imposed a different sentence if it had not found that he used a gun during the commission of his offenses. Such a showing is required for defendant to meet the high burden of establishing prejudice under the plain-error standard. Thus, although the trial court erred by finding that a gun was used in this case, reversal is not warranted because defendant has not established that this finding prejudiced him. See id.

IV. CONCLUSION

The trial court was within its discretion in denying defendant's motion for mistrial, and although it erred at sentencing, that error was not prejudicial to defendant. For the reasons stated in this opinion, defendant's convictions and sentences are affirmed.

Jansen and Cameron, JJ., concurred with Tukel, P.J.