Opinion
361560
10-19-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NORMAN ADAM LUECK, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-009624-01-FC
Before: K. F. KELLY, P.J., and JANSEN and CAMERON, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with a person under 13 years of age). Defendant was sentenced to 5 to 15 years' imprisonment. We affirm.
I. BACKGROUND
This case arises from the sexual assault of a nine-year-old victim. At the time of the assault the victim was living with her aunt and uncle. Defendant, who was a friend of the family, entered the victim's bedroom while she was sleeping and sexually assaulted her. The victim initially reported defendant touched her buttocks and penetrated her vaginal opening. Defendant was arrested and charged with one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with a person under 13 years of age), and one count of CSC-II.
At trial, the victim testified defendant touched her "thighs" and "butt" with his hands when she was in bed. The victim said she had difficulty recalling events because of the amount of time that had passed since the assault. The victim also testified she had tried to forget the assaults. The victim's aunt testified the victim had reported that defendant touched her vaginal area and buttocks. According to the victim's uncle, the victim reported defendant had "cupped" her vaginal area.
After the prosecution rested, defendant moved for a directed verdict on the CSC-I charge, arguing there was no evidence of penetration. The trial court granted the motion. Thereafter, defendant testified in his own defense. Defendant denied sexually assaulting the victim, but acknowledged he went into her bedroom in the early morning hours of November 18, 2019. During cross-examination, defendant was confronted with his 2017 conviction of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(c) (sexual contact with a "mentally incapable, mentally incapacitated, or physically helpless" person). In that case, defendant sexually assaulted his niece, who was then 18 years old.
We previously held this evidence was admissible under MCL 768.27b. People v Lueck, unpublished order of the Court of Appeals, entered August 17, 2021 (Docket No. 356706).
Defendant was convicted of CSC-II and was sentenced as described above. He was also ordered to pay $1,300 in court costs. This appeal followed. Thereafter, defendant moved the trial court for a new trial or, in the alternative, for a Ginther hearing. Defendant also moved for resentencing and to have information concerning his acquitted conduct removed from his presentence investigation report (PSIR). The motions before the trial court were denied.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
II. JURY INSTRUCTIONS
Defendant argues the trial court plainly erred by failing to give a specific unanimity instruction to the jury. In the alternative, defendant argues defense counsel was ineffective for failing to request a specific unanimity instruction. We disagree.
A. UNANIMITY INSTRUCTION
1. PRESERVATION AND STANDARD OF REVIEW
A claim regarding jury instructions is preserved "by challenging [that] aspect of the jury instructions in the trial court." People v Czuprynski, 325 Mich.App. 449, 466; 926 N.W.2d 282 (2018). Because defendant did not object to the issue now challenged on appeal, it is unpreserved. See id. We review for plain error affecting defendant's substantial rights. People v Swenor, 336 Mich.App. 550, 564; 971 N.W.2d 33 (2021). A defendant must show that:
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 affect[ed] 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) (alteration in original; quotation marks and citations omitted).]
2. LAW AND ANALYSIS
Const 1963, art 1, § 14, provides criminal defendants the right to a unanimous jury verdict. People v Cooks, 446 Mich. 503, 510-511, 511 n 11; 521 N.W.2d 275 (1994); see also MCR 6.410(B). "In order to protect a defendant's right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement." Cooks, 446 Mich. at 511. In Cooks, our Supreme Court held that "a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense." Id. at 512.
[I]f alternative acts allegedly committed by defendant are presented by the state as evidence of the actus reus element of the charged offense, a general instruction to the jury that its decision must be unanimous will be adequate unless 1) the alternative acts are materially distinct (where the acts themselves are conceptually distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the factual basis of defendant's guilt. [Id. at 524.]
Defendant was convicted of CSC-II. "The elements of CSC-II are: (1) the defendant engaged in sexual contact, (2) with a person under 13 years of age." People v Duenaz, 306 Mich.App. 85, 106; 854 N.W.2d 531 (2014). The statutory definition of "sexual contact,"
[I]ncludes the 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, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner. . . . [MCL 750.520a(q).]
" 'Intimate parts' includes the primary genital area, groin, inner thigh, buttock, or breast of a human being." MCL 750.520a(f). Thus, a person commits CSC-II when he or she engages in "sexual contact" with a victim under one or more circumstances, i.e., having "sexual contact" with "the primary genital area, groin, inner thigh, buttock, or breast" of a person who is less than 13 years of age. See People v Allen, 507 Mich. 597, 607 n 16; 968 N.W.2d 532 (2021) ("the word 'or' is a 'disjunctive, used to indicate a disunion, a separation, an alternative' ") (citation omitted). Importantly, "[w]hen a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory." People v Johnson, 187 Mich.App. 621, 629-630; 468 N.W.2d 307 (1991).
The trial court read the following preliminary instruction to the jury:
[D]efendant is charged with the crime of Second Degree Criminal Sexual Conduct. And to prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
First, that the defendant intentionally touched [the victim's] genital area, or the clothing covering that area.
Or second, that this was done for sexual purposes or could reasonably be construed as having been done for sexual purposes.
Third, that [the victim] was less than 13 years old at the time.
Since no one can predict the course of a trial, these instructions may change at the end of the trial. And at the close of the trial, I will provide you with a copy of my Final Instructions for your deliberations.
At the beginning of trial, the prosecutor was relying on one theory to support the CSC-II charge: defendant had sexual contact with the victim's vaginal area. The trial court instructed the jury: "A verdict must be unanimous. That means that every juror must agree on it, and it must reflect the individual decision of each juror."
During the victim's testimony, she testified defendant had touched her "thighs" and "butt" with his hand. The victim could not recall if defendant had touched her anywhere else. The testimony of the victim's aunt and uncle supported that defendant had touched the victim's vaginal area and buttocks. Thereafter, the prosecutor's theory changed. Specifically, the prosecutor presented the jury with alternative theories, i.e., defendant committed CSC-II by having sexual contact with the victim's "butt," "thighs," and "vagina." At the conclusion of trial, the jury was instructed:
The defendant is charged in Count 2 with Criminal Sexual Conduct in the Second Degree. And to prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
First, that the defendant intentionally touched [the victim's] genital area, inner thighs, or buttocks, or the clothing covering that area.
Second, that this was done for sexual purposes, or could reasonably be construed as having been done for sexual purposes.
And third, that [the victim] was less than 13 years old.
A verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agrees on that verdict.
In the jury room, you will discuss the case among yourselves, but ultimately each of you will have to make up your own mind. Any verdict must represent the individual, considered judgment of each juror.
Defendant argues the alternative acts alleged by the prosecutor were materially distinct, thereby mandating a specific unanimity instruction. We disagree. The facts in this case are analogous to the facts in People v Cooks. In that case, the defendant was charge with a single act even though the 10-year-old victim testified about three separate, but similar, sexual acts the defendant had perpetrated on her over the course of several days. Cooks¸446 Mich. 503 at 506-508. The prosecutor presented evidence that the defendant anally penetrated the victim "in the same house over an unspecified three-day period in January 1989, while only she and [the] defendant were in the room." Id. at 508-509, 528. The Cooks Court noted the defendant "did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act." Id. at 528. Instead, the defendant "merely denied the existence of any inappropriate behavior," which left the jury with "the sole task" of determining "the credibility of the victim with respect to the pattern of alleged conduct." Id. After concluding the acts were not materially distinct so as to require a specific unanimity instruction, the Cooks Court also noted there was no evidence of "juror confusion or disagreement over the existence of any of the alternative acts. . . ." Id. at 529.
In this case, the multiple acts alleged by the prosecutor were tantamount to a continuous course of conduct. Specifically, the prosecutor presented evidence defendant had sexual contact with the victim's vaginal area, inner thighs, or buttocks within the same criminal transaction. Unlike in Cooks¸ where the alleged acts occurred over three days, all of the alleged sexual contacts charged in this case occurred in the victim's home within a short window of time in the early morning hours of November 18, 2019. Like the defendant in Cooks, defendant did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act. Instead, similar to the defendant in Cook, defendant in this case denied the existence of any inappropriate behavior, which left the jury with "the sole task" of determining "the credibility of the victim with respect to the pattern of alleged conduct." Id. at 528. There is also no evidence the jury was confused or disagreed about the basis for defendant's guilt. Indeed, the jury returned with a unanimous verdict, finding defendant guilty of CSC-II. Because defendant's constitutional right to a unanimous verdict was not implicated, plain error did not occur.
B. ASSISTANCE OF COUNSEL
1. STANDARD OF REVIEW
"The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). "Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made." People v Davis, 509 Mich. 52, 68; 983 N.W.2d 325 (2022) (quotation marks and citation omitted). In the absence of an evidentiary hearing, this Court's review of ineffective assistance claims is generally limited to mistakes apparent from the existing record. People v Seals, 285 Mich.App. 1, 19-20; 776 N.W.2d 314 (2009).
2. LAW AND ANALYSIS
The Sixth Amendment of the United States Constitution guarantees that criminal defendants receive effective assistance of counsel. Strickland v Washington, 466 U.S. 668, 687-688; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).
In order to establish the right to a new trial premised on ineffective assistance of counsel, a defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness under 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [People v Abcumby-Blair, 335 Mich.App. 210, 228; 966 N.W.2d 437 (2020) (quotation marks and citations omitted).]
Under the objective-reasonableness prong, "[t]here is a presumption that counsel was effective, and a defendant must overcome the strong presumption that counsel's challenged actions were sound trial strategy." Id. at 236-237 (quotation marks and citations omitted; alteration in original). "This standard requires a reviewing court to affirmatively entertain the range of possible reasons . . . counsel may have had for proceeding as they did." Id. at 237 (quotation marks and citations omitted; alteration in original). "This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight." Id. (quotation marks and citation omitted).
In this case, defendant argues defense counsel was ineffective because he failed to request a specific unanimity instruction. However, for the reasons discussed above, a specific unanimity instruction was not required. "[T]rial counsel cannot be faulted for failing to raise an objection or motion that would have been futile." People v Fike, 228 Mich.App. 178, 182; 577 N.W.2d 903 (1998). Therefore, defendant is not entitled to relief on his ineffective assistance of counsel claim.
III. CLOSING ARGUMENT
Defendant argues he was denied a fair trial because the prosecutor committed misconduct by arguing during closing argument that defendant lacked credibility because he was on trial. In the alternative, defendant argues defense counsel was ineffective for failing to object to the prosecutor's argument. We conclude defendant is not entitled to relief on appeal.
We have recognized that although "prosecutorial misconduct" is a commonly accepted term of art in criminal appeals, it is a misnomer when referring to allegations that do not involve violations of the rules of professional conduct or illegal activity. People v Cooper, 309 Mich.App. 74, 87-88; 867 N.W.2d 452 (2015). Less egregious conduct involving inadvertent or technical error is more properly characterized as "prosecutorial error." Id. at 88. Because defendant does not allege a violation of the rules of professional conduct, or illegal activity by the prosecutor, we refer to defendant's allegations using the term "prosecutorial error."
A. PROSECUTORIAL ERROR
1. STANDARD OF REVIEW
To preserve an argument regarding prosecutorial error, a defendant must object to the prosecutor's argument and request a curative instruction in the trial court. People v Unger, 278 Mich.App. 210, 234-235; 749 N.W.2d 272 (2008). Because defendant did not do so in this case, the argument is unpreserved. See id. We therefore review for plain error affecting substantial rights. Swenor, 336 Mich.App. at 564. The plain error standard of review is outlined above.
2. LAW AND ANALYSIS
"The United States Constitution and the Michigan Constitution each guarantee that a criminal defendant receives due process of law. U.S. Const, Am XIV; Const 1963, art 1, § 17." People v Horton, 341 Mich.App. 397, 401; 989 N.W.2d 885 (2022). "A prosecutor has committed [error] if the prosecutor abandoned his or her responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial." People v Lane, 308 Mich.App. 38, 62; 862 N.W.2d 446 (2014).
A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant's guilt or innocence. Issues of prosecutorial [error] are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context. The propriety of a prosecutor's remarks depends on all the facts of the case. A prosecutor's comments are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence admitted at trial. [People v Dobek, 274 Mich.App. 58, 63-64; 732 N.W.2d 546 (2007) (quotation marks and citations omitted).]
It is well settled that "[a] prosecutor may not vouch for the credibility of his [or her] witnesses by suggesting that he [or she] has some special knowledge of the witnesses' truthfulness." Seals, 285 Mich.App. at 22. Prosecutorial vouching occurs when a prosecutor makes personal assurances of a witness's veracity or when a prosecutor claims to have personal information or "special knowledge" of which the jury is unaware, lending to the credibility of a witness. People v Bahoda, 448 Mich. 261, 276; 531 N.W.2d 659 (1995). A prosecutor is, however, permitted to argue the evidence and all reasonable inferences drawn from the evidence. Id. at 282. Importantly, it is not considered prosecutorial error 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 N.W.2d 631 (2004). Thus, a "prosecutor may argue from the facts that a witness should be believed." Seals, 285 Mich.App. at 22 (quotation marks and citation omitted).
In this case, defendant denied he had inappropriately touched the victim, which necessarily implied the victim was lying. During cross-examination, the prosecutor asked: "Now, Sir, obviously you're aware that you're on trial in this case; right?" Defendant responded: "Obviously." The prosecutor then asked: "And you don't want to be found guilty of these charges?" Defendant responded: "No, I do not."
At this point, the jury had not yet been instructed the CSC-I charge was not to be considered. The trial court read that instruction with the final jury instructions.
During closing arguments, the prosecutor informed the members of the jury it was their role "to judge the credibility of witnesses, determine the facts of the case, and apply those facts to the law. . . ." The prosecutor further argued evidence supported defendant committed CSC-II by touching the victim's "butt," "thighs," and "vagina." With respect to credibility, the prosecutor argued the victim's testimony was corroborated by the other witnesses' testimony. The prosecutor noted that part of their testimony was that the victim was emotional when she made the disclosures to them. While the prosecutor acknowledged the victim testified at trial that she could not recall certain details, the prosecutor noted: "From the day that [the victim] was the victim of sexual assault at the hands of the defendant, to the day she testified, 854 days have gone by. November 18th, 2019, to March 21st, 2022, 2 years and 4 months have gone by." The prosecutor also referenced the victim's testimony that she had attempted to forget about the assaults.
The prosecutor argued defendant was the only witness who had "a legitimate and actual motive to lie. . . ." The prosecutor then recounted:
I asked [defendant] one simple question: "You're on trial; right?"
He said, "Yeah."
"And you don't want to be found guilty; right?"
"Yep."
Other than that, what other motive to lie did you hear from [the victim]? None. She liked this guy, according to all the witnesses. She would play with him. They would interact. He would come around this house. It was fine. There was [sic] no issues beforehand with the defendant being there.
We know she was in foster care. I think it's a fair statement that she liked being at her aunt and uncle's house. We heard some testimony about how she was going to be moved or rehomed in a few months. . . . But what happens after she disclosed it? She was removed that day. That was a negative consequence to disclosure. It's not a motive to lie about anything.
The prosecutor never expressed personal knowledge that the testimony of the prosecutorial witnesses was truthful or asserted that he had "special knowledge" of their credibility. See Bahoda, 448 Mich. at 276. Instead, the prosecutor emphasized the testimony of other witnesses concerning the timing of the victim's disclosures and that her emotional demeanor during the disclosures supported the victim's version of events, i.e., that defendant had engaged in sexual contact with one or more of her intimate parts. The prosecutor also argued the victim was credible because she had no motive to lie and was essentially punished for her disclosures. Indeed, the evidence supports the victim was removed from the care of her aunt and uncle, with whom she had a good relationship, and was placed in foster care.
As already stated, it is not considered prosecutorial error 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." Thomas, 260 Mich.App. at 455. While defendant is correct the prosecutor argued that defendant had a motive to lie, "[a] prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief[.]" People v Launsburry, 217 Mich.App. 358, 361; 551 N.W.2d 460 (1996). In this case, defendant alleged the victim fabricated the allegations against him, but agreed during cross-examination he did not want to be convicted of CSC-II. The prosecutor's comments concerning the credibility of the witnesses was proper because the question of defendant's guilt depended on which witnesses the jury believed. See Thomas, 260 Mich.App. at 455. Contrary to defendant's arguments on appeal, the prosecutor did not improperly vouch for the credibility of witnesses. Therefore, the prosecutor's remarks did not constitute plain error. Additionally, because the prosecutor did not commit error, defense counsel was not required to object to the prosecutor's closing argument. Defendant is therefore not entitled to relief on his ineffective assistance of counsel claim. See Fike, 228 Mich.App. at 182 ("trial counsel cannot be faulted for failing to raise an objection . . . that would have been futile").
Defendant also argues the prosecutor's argument "directly interfered" with defendant's "ability to defend himself and testifying [sic] in his own defense by telling the jury he was lying because he was on trial." However, defendant testified in his own defense. Additionally, the prosecutor was entitled to cross-examine defendant. Fitzpatrick v United States, 178 U.S. 304, 315; 20 S.Ct. 944; 44 L.Ed. 1078 (1900) (holding a prosecutor is entitled to cross-examine a criminal defendant "with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime"). This argument is without merit.
IV. SENTENCING CHALLENGES
Defendant next argues he is entitled to resentencing because his right to due process was violated because the trial court improperly based his sentence on conduct for which he was acquitted. In the alternative, defendant argues remand is appropriate so information relating to acquitted conduct can be stricken from the PSIR. We disagree.
A. STANDARD OF REVIEW
"This Court reviews de novo a question of constitutional law." People v Warner, 339 Mich.App. 125, 157; 981 N.W.2d 733 (2021) (quotation marks and citation omitted).
B. LAW AND ANALYSIS
1. CONSIDERATION OF ACQUITTED CONDUCT
In People v Beck, 504 Mich. 605, 629; 939 N.W.2d 213 (2019), our Supreme Court held "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." "Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime." Id. at 609. Defendant in this case argues the trial court violated the principle articulated in Beck because the trial court reviewed the PSIR, and the PSIR contained information about defendant's acquitted conduct, i.e., conduct relating to the CSC-I charge. While the PSIR does contain information about defendant allegedly penetrating the victim's vaginal opening, in People v Stokes, 333 Mich.App. 304, 310; 963 N.W.2d 643 (2020), this Court expressly rejected the argument that a defendant's right to due process is violated where a PSIR contains information about previously acquitted conduct. The Stokes Court held the relevant inquiry is whether the trial court considered the acquitted conduct when fashioning a sentence. Id. at 310-312. Specifically, the Stokes Court held: "We hold that a sentencing court may review a PSIR containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant." Id. at 311.
There is no indication the trial court in this case considered conduct relating to the CSC-I charge when fashioning defendant's sentence for the CSC-II conviction. Instead, the trial court focused on defendant's history of preying on young women. The trial court noted defendant's 2017 CSC-IV conviction involved his niece, and the sentencing offense involved a nine-year-old, who "was practically family. . . ." At the beginning of the sentencing hearing, the trial court noted defendant was convicted of CSC-II and acquitted of CSC-I. The PSIR reflected this as well. The trial court did not reference penetration during the sentencing hearing. Importantly, before handing down the sentence, the trial court stated: "I'm not going to take into account anything you were acquitted of." The record simply does not support defendant's argument that the trial court relied on acquitted conduct when fashioning defendant's sentence in relation to the CSC-II conviction. Because defendant cannot establish his due-process rights were violated, he is not entitled to resentencing. See Stokes, 333 Mich.App. at 312 ("Because no evidence in the record . . . establishes that the sentencing court relied on acquitted conduct referenced in the PSIRs when sentencing defendant, defendant has failed to establish his claims of error.").
2. INFORMATION CONTAINED IN THE PSIR
Defendant also argues this Court should remand to the trial court so information concerning the acquitted conduct can be stricken from the PSIR. However, based on the holding in Stokes, it does not follow that information about acquitted conduct cannot appear in a detailed report of the history of the case in a PSIR. As explained by the Stokes Court:
[A] sentencing court may review a PSIR containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant. Beck supports this conclusion. In Beck, our Supreme Court remanded for resentencing because the sentencing court unquestionably "relied" on acquitted conduct for its sentencing decision. A sentencing court that reviews a PSIR that merely contains information about acquitted conduct, however, does not necessarily rely on such information when sentencing a defendant. There must be some evidence in the record that the sentencing court relied on such information to warrant finding a Beck violation. Had the sentencing court specifically referenced acquitted offenses as part of its sentencing rationale, a Beck violation would be apparent. But when PSIRs prepared by the Department of Corrections merely refer to an acquittal by a jury of offenses in a separate case, and the sentencing court does not refer to or expressly rely upon such acquitted offenses as part of its sentencing rationale, this Court cannot conclude that the sentencing court committed a Beck violation because such a conclusion would rest on speculation that acquitted conduct influenced the sentencing court's decision. [Stokes, 333 Mich.App. at 311-312 (citation omitted).]
Under Stokes, information about the victim need not be stricken from the PSIR merely because it involves acquitted conduct. See id. Consequently, defendant is not entitled to a remand to strike the information related to the victim's allegation of vaginal penetration from the PSIR.
We acknowledge our Supreme Court has ordered oral argument on the application in People v Montez, __Mich __; 979 N.W.2d 334 (2022), and has directed the parties to brief the issue "whether references to acquitted conduct in the defendant's presentence investigation report (PSIR) violated his right not to be sentenced on the basis of conduct of which he was acquitted, as articulated in People v Beck, 504 Mich. 605[; 939 N.W.2d 213] (2019) . . . ." To the extent this order raises a question about the continuing viability of Stokes, "a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals." MCR 7.215(C)(2). The Court in Montez did not grant leave. Instead, it ordered oral arguments on the application for leave to appeal. Therefore, as of the date of this opinion, we remain bound by the guidelines articulated in Stokes. See MCR 7.215(J)(1).
Next, defendant argues the PSIR's inclusion of the victim's statement that defendant penetrated her vaginal opening should not have been included because it violated his right to a sentence based on accurate information. Defendant is correct that irrelevant or inaccurate information should not be included in a PSIR. See People v Waclawski, 286 Mich.App. 634, 690; 780 N.W.2d 321 (2009). However, a PSIR is "an information-gathering tool," and its scope is "necessarily broad." Morales v Mich. Parole Bd, 260 Mich.App. 29, 45-46; 676 N.W.2d 221 (2003) (citation omitted).
Under MCR 6.425(A)(1)(b), a PSIR must include "a complete description of the offense and the circumstances surrounding it[.]" (Emphasis added.) One such "circumstance[] surrounding" an offense is the investigation of that offense, and such information is not excludable merely because the investigation also involved other alleged criminal conduct. As detailed in the PSIR, the victim originally alleged that defendant had penetrated her vaginal opening. The victim also alleged that defendant had touched her buttocks. These allegations led to defendant being charged with CSC-I and CSC-II. The victim testified at the preliminary examination that defendant had touched her buttocks with his hand and penetrated her vagina. Although the victim testified at trial that she only recalled defendant touching her thighs and her buttocks, it is undisputed that the victim initially alleged that vaginal penetration had occurred. Thus, this information was properly included in the broad scope of the PSIR under MCR 6.425(A)(1)(b). Further, defendant acknowledged at sentencing the information contained in the PSIR was accurate. Therefore, defendant's argument that he was denied his right to a sentence based on accurate information is without merit. Defendant is not entitled to remand for correction of the PSIR.
V. COURT COSTS
Finally, defendant argues MCL 769.1k(1)(b)(iii) violates a defendant's due-process right to appear before an impartial judge and prevents the judicial branch from carrying out its constitutionally assigned functions of maintaining impartiality. Defendant also argues MCL 769.1k(1)(b)(iii) violates separation-of-powers principles. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant must challenge the constitutionality of a statute in the trial court to preserve the issue for appellate review. People v Vandenberg, 307 Mich.App. 57, 61; 859 N.W.2d 229 (2014). Defendant did not challenge the constitutionality of the trial court's assessment of court costs against him at sentencing. While defendant argues the issue is nonetheless preserved because he moved for resentencing in the trial court, we disagree. By its plain language, MCR 6.429(C) only applies when the alleged sentencing error concerns either "the scoring of the sentencing guidelines" or "the accuracy of information relied upon in determining a sentence. . . ." Because the issue raised by defendant is outside the scope of MCR 6.429(C), his motion for resentencing did not preserve this issue for appeal. See Vandenberg, 307 Mich.App. at 61. Indeed, "[t]he purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice." People v Mayfield, 221 Mich.App. 656, 660; 562 N.W.2d 272 (1997). In this case, nothing prevented defendant from timely raising this argument in the trial court, but defendant waited until after an appeal had been filed to make a claim of error. Because the issue is unpreserved, we review for plain error affecting substantial rights. See Vandenberg, 307 Mich.App. at 61.
B. LAW AND ANALYSIS
Defendant brings a facial challenge to the constitutionality of MCL 769.1k(1)(b)(iii). "The party challenging a statute's constitutionality has the burden of proving its invalidity." People v Trinity, 189 Mich.App. 19, 21; 471 N.W.2d 626 (1991). "Statutes are presumed to be constitutional unless their unconstitutionality is readily apparent." People v Sands, 261 Mich.App. 158, 160; 680 N.W.2d 500 (2004). This Court's "overriding goal for interpreting a statute is to determine and give effect to the Legislature's intent. The most reliable indicator of the Legislature's intent is the words in the statute. The Legislature is presumed to have intended the meaning it plainly expressed in the statute." People v Parrott, 335 Mich.App. 648, 657; 968 N.W.2d 548 (2021) (quotation marks and citations omitted).
"A facial challenge [to the constitutionality of a statute] involves a claim that a legislative enactment is unconstitutional on its face, in that there is no set of circumstances under which the enactment is constitutionally valid." People v Wilder, 307 Mich.App. 546, 556; 861 N.W.2d 645 (2014). In relevant part, MCL 769.1k(1) states:
If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred by statute or sentencing is delayed by statute:
(a) The court shall impose the minimum state costs as set forth in [MCL 769.1j].
(b) The court may impose any or all of the following:
(i) Any fine authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.
(ii) Any cost authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.
(iii) Until May 1, 2024, any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case, including, but not limited to, the following:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court buildings and facilities. [Emphasis added.]
As relevant to this appeal, in People v Johnson, 336 Mich.App. 688, 700-701; 971 N.W.2d 692 (2021), this Court concluded MCL 769.1k(1)(b)(iii) is constitutional. Specifically, in Johnson, the defendant brought a facial challenge to the constitutionality of MCL 769.1k(1)(b)(iii), arguing the statute encourages judges to convict defendants to raise money to fund the courts and, therefore, its enforcement violates defendants' due-process right to be tried before an impartial decision-maker. Id. at 692-693. The defendant also argued MCL 769.1k(1)(b)(iii) violates the constitutional principle of the separation of powers between coordinate branches of government because the funding arrangement created by the statute prevents judges from accomplishing their constitutionally assigned function of assuring criminal defendants are afforded due process of law in the proceedings against them. Id. at 701. Defendant in this case raises identical arguments on appeal.
The Johnson Court rejected both of the arguments outlined above. Id. at 700-701. In rejecting the due-process argument, this Court identified the general principle for deciding cases in which the entity that levies fines also receives the revenue as follows:
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law. [Id. at 697, quoting Tumey v Ohio, 273 U.S. 510, 532; 47 S.Ct. 437; 71 L.Ed. 749 (1927).]
The Johnson Court held MCL 769.1k(1)(b)(iii) is constitutional because the Michigan Constitution prohibits judges from being paid from the revenue generated through assessing costs on convicted defendants and there is no direct nexus between the costs received and any particular expenditures. Johnson, 336 Mich.App. at 701-702. This Court also rejected the argument that MCL 769.1k(1)(b)(iii) presents an unconstitutional violation of the separation of powers because the defendant could not show a "nexus" between the judge's salary and the fees imposed upon him. Id. at 701-702.
The issues raised by defendant in this case are identical to those raised in Johnson. Because we are bound by the ruling in Johnson, MCR 7.215(J)(1), defendant cannot establish plain error. Defendant is therefore not entitled to relief on this issue.
Affirmed.