Opinion
361833
05-11-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. QUARTEZ QEMOND GREEN, Defendant-Appellant.
UNPUBLISHED
Midland Circuit Court LC No. 20-008481-FH
Before: BOONSTRA, P.J., and GADOLA and YATES, JJ.
PER CURIAM
Defendant appeals by right his jury-trial convictions of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration of incapacitated victim), and fourthdegree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(c) (sexual contact with incapacitated victim). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 18 months to 30 years for the CSC-III conviction and 18 months to 4 years for the CSC-IV conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On November 15, 2019, JP invited several people, including her fiance, two other friends, and defendant, to her home for a social gathering. All of the parties consumed alcohol and spent the night at JP's home. JP became highly intoxicated and passed out on a couch in her living room at approximately 6:00 a.m. the following morning. JP's fiance testified that he attempted to wake her up so that she could sleep in her bedroom, but that she was unresponsive, so he covered her with a blanket and left her on the couch. Defendant was asleep on a separate couch; JP's fiance also covered him with a blanket.
JP testified that she woke up to find defendant touching her vaginal area and penetrating her vagina with his fingers as he lay behind her on the couch. JP's shorts and underwear had been removed and were at the end of the couch by her feet. JP testified that she had initially believed that the person touching her was her fiance; when she realized that it was defendant touching her, she immediately jumped off the couch. JP confronted defendant and told him to leave her house, which he did. Immediately thereafter, JP told her fiance and family what had happened and reported the assault to the police. She participated in a sexual assault examination later that evening, and several samples were collected. An expert in forensic DNA analysis testified that although the vulvar swab samples only revealed the presence of her fiance's DNA (likely because JP had consensual sex with him within five days of the examination), the breast swab sample indicated that defendant's DNA was present on JP's breasts.
Defendant testified on his own behalf and claimed that his actions were consensual. Defendant stated that JP had invited him to join her on the couch, had pulled his arm around her so that their hands were interlocked, and began touching her own vagina. Defendant interpreted this as a sign that she wanted to engage in sexual behavior with him, so he began touching her vagina. Defendant testified that after a couple of minutes, JP suddenly jumped up, yelled at him, and told him to leave. Defendant testified that nothing led him to believe that JP was unconscious or an unwilling participant. However, on cross-examination, defendant admitted that he later sent a text message to JP in which he admitted that he had touched her vagina, that he knew that he should not have done so, and that he did not want JP to feel as though he "took advantage" of her.
The jury convicted defendant as described. This appeal followed.
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecution committed prosecutorial misconduct by disparaging defendant, defense counsel, and the defense strategy. Specifically, defendant argues that the prosecution called defendant a "liar" during its closing argument and disparaged defense counsel during its rebuttal argument, and that those comments were improper. We disagree.
In People v Cooper, 309 Mich.App. 74, 87-88; 867 N.W.2d 452 (2015), lv den 498 Mich. 896 (2015), this Court drew a distinction between "prosecutorial misconduct" and "prosecutorial error," concluding that "prosecutorial misconduct" should be limited to the extreme instances that go well beyond a mere "technical or inadvertent error at trial." Because defendant claims that the prosecution repeatedly and deliberately disparaged defendant and defense counsel during its closing argument, rather than committed a technical or inadvertent error, we will refer to his claim as one of prosecutorial misconduct. See id.
Because defendant did not object to the prosecution's statements at trial, we review this unpreserved claim for plain error affecting substantial rights. People v Savage, 327 Mich.App. 604, 615-616; 935 N.W.2d 69 (2019); see also People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Claims of prosecutorial misconduct are reviewed "on a case-by-case basis by examining the record and evaluating the remarks in context ...." People v Mann, 288 Mich.App. 114, 119; 792 N.W.2d 53 (2010) (quotation marks and citation omitted; ellipsis in original). Prosecutors are "accorded great latitude regarding their arguments and conduct." People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995) (quotation marks and citation omitted). However, the prosecution "may not personally attack defense counsel," People v McLaughlin, 258 Mich.App. 635, 646; 672 N.W.2d 860 (2003), or "suggest that defense counsel is intentionally attempting to mislead the jury," People v Unger, 278 Mich.App. 210, 236; 749 N.W.2d 272 (2008) (quotation marks and citation omitted).
In its closing argument, the prosecution stated that defendant had "a lot of reason to lie" and that he was trying to "save his own skin here." When reviewing these remarks in context, the prosecution's statements were not improper. See Mann, 288 Mich.App. at 119. Defendant had testified on his own behalf to provide his version of the events surrounding the incident. By doing so, defendant put his credibility at issue just like every other witness who testified. See People v Clary, 494 Mich. 260, 278-279; 833 N.W.2d 308 (2013). The prosecution was permitted to argue from the facts presented at trial that defendant, as a testifying witness, was "unworthy of belief." People v Dobek, 274 Mich.App. 58, 67; 732 N.W.2d 546 (2007). The record shows that the prosecution asked the jury to compare JP's and defendant's motives when considering who was more credible. This was consistent with the latitude allowed to prosecutors in their arguments, and nothing here suggests that the prosecution drew any unreasonable inferences from or made impermissible commentary on the presented evidence and denied defendant a fair trial. See Bahoda, 448 Mich. at 266-267, 284-285.
Additionally, nothing suggests that the prosecution personally attacked defense counsel in its rebuttal argument. The prosecution specifically referred to defense counsel by name on a handful of occasions, but it only did so to draw the jury's attention to specific arguments that defense counsel made during his closing argument. For example, the prosecution stated: "You know-and [defense counsel's] argument that, you know, we don't believe in our case or we don't know, you know, what happened, therefore, we just charged everything, is simply not true." The prosecution also pointed out that defense counsel "didn't really address what his client said" and theorized that it was because "some of the things his client said, don't make any sense." The prosecution's remarks during rebuttal "must be considered in light of defense counsel's comments," and "an otherwise improper remark may not rise to an error requiring reversal when the prosecutor is responding to the defense counsel's argument." Unger, 278 Mich.App. at 238 (quotation marks, citations, and alteration omitted). The prosecution was permitted to respond to defense counsel's arguments, and it is clear that the prosecution was responding to defense counsel's suggestion that the prosecution's case was weak. Further, it was not improper for the prosecution to point out that defense counsel did not focus his closing argument on defendant's testimony; the prosecution was permitted to argue that the jury should reject defense counsel's theory of the case based on conflicting evidence presented at trial. See People v Howard, 226 Mich.App. 528, 544-545; 575 N.W.2d 16 (1997). Because defendant has not demonstrated that the prosecution's comments were improper, defendant has not demonstrated that any plain error occurred.
Moreover, even assuming that some or all of the prosecution's comments were improper, defendant has failed to show that a timely curative instruction would not have alleviated the harm. See People v Watson, 245 Mich.App. 572, 586; 629 N.W.2d 411 (2001). The jurors were instructed by the court that they could base their verdict only on the evidence and that the lawyers' statements, arguments, and commentary are not evidence. Jurors are presumed to follow their instructions. See Unger, 278 Mich.App. at 235. Defendant has not shown plain error affecting his substantial rights. See Carines, 460 Mich. at 763. Similarly, defendant has not demonstrated that he was prejudiced by the cumulative effect of any minor errors. See McLaughlin, 258 Mich.App. at 649; Dobek, 274 Mich.App. at 106.
III. DOUBLE JEOPARDY
Defendant also argues that his conviction of both CSC-III and CSC-IV violated the prohibition against double jeopardy. We disagree.
Because defendant did not raise his double-jeopardy challenge in the trial court, this issue is unpreserved. See People v Barber (On Remand), 332 Mich.App. 707, 712; 958 N.W.2d 288 (2020). However, generally "a double jeopardy issue presents a significant constitutional question that will be considered on appeal regardless of whether the defendant raised it before the trial court." Id. (quotation marks and citation omitted). We review an unpreserved double-jeopardy claim for plain error affecting substantial rights. Id. at 713.
Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. Id.; U.S. Const, Am V; Const 1963, art 1, § 15. "The prohibition against double jeopardy protects individuals in three ways: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." People v Miller, 498 Mich. 13, 17; 869 N.W.2d 204 (2015) (quotation marks and citation omitted). Only the protection against multiple punishments is at issue in this case, because defendant was only subjected to a single prosecution. See id.
"The multiple punishments strand of double jeopardy is designed to ensure that courts confine their sentences to the limits established by the Legislature and therefore acts as a restraint on the prosecutor and the Courts." Id. at 17-18 (quotation marks and citations omitted). "Where the Legislature specifically authorizes cumulative punishment under two statutes, the multiplepunishments strand is not violated." Barber, 332 Mich.App. at 713. However, "where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, it will be a violation of the multiple punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single trial." Miller, 498 Mich. at 18. When the Legislature's intent is not clear, reviewing courts should "apply the 'abstract legal elements' test articulated in [People v Ream, 481 Mich. 223; 750 N.W.2d 536 (2008)] to ascertain whether the Legislature intended to classify two offenses as the 'same offense' for double jeopardy purposes." Miller, 498 Mich. at 19. Under the abstract legal elements test, two offenses are not the same offense "if each offense has an element that the other does not." Ream, 481 Mich. at 240.
An individual is guilty of CSC-III if that person "engages in sexual penetration with another person" and "knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless." MCL 750.520d(1)(c). An individual is guilty of CSC-IV if that person "engages in sexual contact with another person" and "knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless." MCL 750.520e(1)(c). A person is physically helpless when he or she "is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act." MCL 750.520a(m).
"Sexual contact" means an "intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts" in a manner that "can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for: (i) [r]evenge[,] (ii) [t]o inflict humiliation[, or] (iii) [o]ut of anger." MCL 750.520a(q). "Sexual penetration" means "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." MCL 750.520a(r). Therefore, each offense contains an element the other does not. See People v Duenaz, 306 Mich.App. 85, 107; 854 N.W.2d 531 (2014) (holding that dual convictions for first-degree criminal sexual conduct and second-degree criminal sexual conduct did not violate a defendant's double-jeopardy rights because one requires a sexual penetration while the other requires a sexual contact, which includes a sexual purpose). Because the same distinction applies to the two charges in this case, defendant has not established that CSC-III and CSC-IV constitute "the same offense" for double-jeopardy purposes. Miller, 498 Mich. at 17.
Moreover, although defendant argues that he engaged in only a single sexual act, JP testified that she woke up to find defendant digitally penetrating her vagina, and that her underwear had been removed. Additionally, the DNA expert testified that defendant's DNA was found on JP's breasts. Therefore, the jury could have concluded that defendant engaged in "sexual contact" by touching JP's vaginal area or the clothing covering her vaginal area, or by touching her breasts; the jury could have further concluded that defendant engaged in "sexual penetration" by digitally penetrating JP's vagina. That one act may have immediately followed the other does not merge the two into a single act. Because defendant engaged in two separate acts of criminal sexual conduct, double jeopardy is not implicated. Id.
IV. JURY INSTRUCTIONS AND VERDICT FORM
Defendant also argues that he is entitled to a new trial because the jury verdict form failed to conform to the jury instructions that the trial court gave to the jury. However, defendant waived his right to appeal any error with respect to the jury instructions or the verdict form because defense counsel expressly stated that he was satisfied with the proposed jury instructions. See People v Spaulding, 332 Mich.App. 638, 653; 957 N.W.2d 843 (2020) ("A party's explicit and express approval of jury instructions as given waives any error and precludes appellate review."); see also People v Eisen, 296 Mich.App. 326, 330; 820 N.W.2d 229 (2012) (holding that a jury verdict form "is treated as . . . part of the package of jury instructions," and an issue with the verdict form is considered an instructional error). Moreover, we have reviewed the jury verdict form, and, contrary to defendant's assertion, it was consistent with the jury instructions and clearly permitted the jury to render a general not-guilty verdict for each of the charged offenses.
Affirmed.