Opinion
No. 303746
11-08-2012
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DANIEL JAMES PARRISH, Defendant-Appellant.
UNPUBLISHED
Muskegon Circuit Court LC No. 10-059247-FC
Before: WILDER, P.J., and O'CONNELL and K.F. KELLY, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions for first-degree criminal sexual conduct (CSC I), MCL 750.520b, and assault with intent to do great bodily harm less than murder, MCL 750.84. We affirm.
In the early morning hours of April 18, 2010, defendant and the victim were alone in the garage of the home of defendant's mother. Defendant became angry with the victim and slammed her to the garage floor and began hitting her. Defendant then picked up a nearby box cutter knife and threatened to kill the victim if she did not perform fellatio on him. Defendant inserted his penis into the victim's mouth, but did not ejaculate. Thereafter, defendant slammed the victim to the ground again and continued to assault her. Eventually, defendant allowed the victim to go inside the house and the assault ceased. The victim eventually called police, and defendant was arrested that morning. At trial, defendant acknowledged physically assaulting the victim, but denied sexually penetrating her or threatening her with the box-cutter knife.
On appeal, defendant argues that the prosecution presented insufficient evidence to support his conviction. We disagree. This Court reviews de novo a claim of insufficient evidence. People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Moreover, "when reviewing claims of insufficient evidence, this Court must make all reasonable inferences and resolve all credibility conflicts in favor of the jury verdict." People v Solmonson, 261 Mich App 657, 661; 683 NW2d 761 (2004).
"Due process requires that the prosecutor introduce sufficient evidence that could justify a trier of fact in concluding that defendant is guilty beyond a reasonable doubt." People v Fisher, 193 Mich App 284, 287; 483 NW2d 452 (1992). Under MCL 750.520b(1), a person is guilty of CSC I if he "engages in sexual penetration with another person . . . under circumstances involving the commission of any other felony," MCL 750.520b(1)(c), while armed with a weapon, MCL 750.520b(1)(e), or if he "causes personal injury to the victim and force or coercion is used to accomplish sexual penetration," MCL 750.520b(1)(f). Fellatio constitutes "sexual penetration" under the statute. MCL 750.520a(r).
"It is a well established rule that a jury may convict on the uncorroborated evidence of a CSC victim." People v Lemmon, 456 Mich 625, 642 n 22; 576 NW2d 129 (1998); see also MCL 750.520h ("The testimony of a victim need not be corroborated in prosecutions under sections 520b to 520g."). Here, the victim testified that defendant inserted his penis into her mouth and forced her to perform fellatio. Moreover, the victim testified that the sexual penetration occurred amidst defendant's physical assault of her and while he wielded a knife and threatened to kill her if she resisted the sexual penetration. Such testimony supported a finding that defendant's sexual penetration occurred "under circumstances involving the commission of any other felony," MCL 750.520b(1)(c), that defendant was armed with a weapon, MCL 750.520b(1)(e), and that defendant "cause[d] personal injury to the victim and force or coercion [was] used to accomplish sexual penetration," MCL 750.520b(1)(f). Accordingly, the victim's testimony was sufficient to support the jury's finding that defendant committed CSC I. MCL 750.520h; Lemmon, 456 Mich at 642 n 22.
On appeal, defendant maintains that the victim's testimony was insufficient evidence because she was not a credible witness. However, "[q]uestions of credibility are left to the trier of fact and will not be resolved anew by this Court." People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999). Therefore, we find that there was sufficient evidence to support the jury's finding that the prosecution proved the essential elements of CSC I beyond a reasonable doubt. Wolfe, 440 Mich at 515.
Defendant next argues that his trial counsel was ineffective for failing to object to the trial court's scoring of prior record variable seven (PRV 7) and offense variable one (OV 1). We disagree. We review defendant's unpreserved ineffective assistance of counsel claim for plain errors apparent in the record. People v Snider, 239 Mich App 393, 420, 423; 608 NW2d 502 (2000). "[T]his Court presumes that a defendant received effective assistance of counsel, and the defendant bears a heavy burden to prove otherwise." People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001). In order to establish ineffective assistance of counsel, a defendant must show "(1) that counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Yost, 278 Mich App 341, 387; 749 NW2d 753 (2008). Moreover, "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Defendant contends that the trial court should have scored PRV 7 at 10 points instead of 20 points because defendant only had one subsequent or concurrent felony conviction.However, as defendant acknowledges in his brief on appeal, even if the trial court would have scored PRV 7 at ten points instead of 20 points, his PRV level and, thus, his recommended minimum sentence range would remain the same. See MCL 777.62. Accordingly, because trial counsel's alleged error in failing to object to the scoring of PRV 7 did not alter defendant's recommended minimum sentence range under the legislative guidelines, defendant fails to demonstrate any prejudice resulting from the alleged error. Yost, 278 Mich App at 387. Moreover, we disagree that PRV 7 was improperly scored where defendant pleaded guilty to a subsequent felony. Thus, counsel's failure to object to the scoring, was also not objectively unreasonable.
Under PRV 7, a trial court scores 20 points for two or more subsequent or concurrent felony convictions and ten points for 1 subsequent felony conviction. MCL 777.57(a) and (b).
Defendant also contends that his trial counsel should have objected to the trial court's scoring of OV 1 at 15 points for the aggravated use of a weapon. According to defendant, the trial court should have scored OV 1 at zero points because, in light of the jury's acquittal of his felonious assault charge, the jury found that he did not use a weapon during the assault. Under MCL 771.31(1)(c), the trial court may score 20 points for OV 1 where "the victim had a reasonable apprehension of an immediate battery when threatened with a knife . . . ." Initially, we note that defendant's logic is flawed given that his acquittal of felonious assault may plainly be explained by the jury's finding that he assaulted the victim with the intent to inflict great bodily harm less than murder, rather than a finding that defendant did not have a weapon during the assault. See MCL 750.82. Moreover, "[a] sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score." People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
The victim testified that defendant wielded a box-cutter knife with the blade exposed, held it up to her neck, threatened to kill her if she resisted his sexual advances, and that she was afraid for her life. The only direct evidence that defendant did not threaten the victim with a knife was defendant's own testimony. However, defendant also admitted that he initially lied to the police about assaulting the victim. Accordingly, we find that the record adequately supported the trial court's scoring of OV 1, Hornsby, 251 Mich App at 468, and trial counsel was not ineffective for failing to object, Ericksen, 288 Mich App at 201.
In defendant's standard 4 brief, he raises several issues. First, his statement of questions presented asserts that his trial counsel was ineffective for failing to object "to the taking and preservation of exculpatory evidence . . . ." However, defendant's standard 4 brief contains no facts or argument regarding his claim that trial counsel was ineffective for failing to object to the taking and preservation of exculpatory evidence. Thus, defendant has abandoned this ineffective assistance of counsel claim and we decline to review it. People v Coy, 258 Mich App 1, 19-20; 669 NW2d 831 (2003) ("Where a defendant raises an issue in his statement of questions presented but fails to argue the merits in his brief, the issue is abandoned.").
Defendant also argues in his standard 4 brief that his appellate counsel was ineffective because counsel's only argument for reversal of his convictions was that the prosecution failed to present sufficient evidence to support defendant's CSC I conviction. We disagree. "[T]he test for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Hence, defendant must show that his appellate counsel's decision not to raise a [particular] claim . . . fell below an objective standard of reasonableness and prejudiced his appeal." People v Uphaus, 278 Mich App 174, 186; 748 NW2d 899 (2008) (citation omitted).
Defendant fails to offer what arguments appellate counsel should have raised in lieu of, or in addition to, his sufficiency of the evidence challenge. Moreover, as discussed in this opinion, we find that the additional arguments defendant raises in his standard 4 brief are without merit. Given that "[a]ppellate counsel may legitimately winnow out weaker arguments in order to focus on those arguments that are more likely to prevail" and that defendant has not shown any meritorious argument that appellate counsel erroneously neglected, defendant has not shown that appellate counsel's performance "fell below an objective standard of reasonableness and prejudiced his appeal." Id. at 186-187.
Finally, defendant argues in his standard 4 brief that the prosecution violated his due process right to a fair trial by failing to disclose exculpatory evidence. We disagree. "A defendant pressing an unpreserved claim of error must show a plain error that affected substantial rights, and the reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Parker, 288 Mich App 500, 509; 795 NW2d 596 (2010).
A criminal defendant has a due process right to obtain exculpatory evidence possessed by the prosecutor if it would raise a reasonable doubt about the defendant's guilt. In order to establish a Brady violation, a defendant must prove: (1) that the state possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence nor could the defendant have obtained it with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. [People v Cox, 268 Mich App 440, 448; 709 NW2d 152 (2005) (citations omitted).]
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
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Defendant, in his standard 4 brief, does not allege any exculpatory evidence that the prosecution possessed and failed to disclose. Instead, he simply notes certain DNA tests of the victim that medical and police personnel did not conduct. On the basis of defendant's standard 4 brief and the lower record, we find that defendant has not established the existence of any exculpatory evidence that the prosecution failed to disclose, let alone a reasonable probability that the outcome of his trial would have been different had the prosecution disclosed this evidence. Id. Accordingly, defendant failed to establish any plain error. Affirmed.
Kurtis T. Wilder
Peter D. O'Connell
Kirsten Frank Kelly