People of Michigan v. Michael John Franklin
330600
Mich. Ct. App.Jun 27, 2017Background
- Defendant Michael John Franklin was convicted by a jury of four counts of first-degree criminal sexual conduct (MCL 750.520b(1)(b)(ii)) for repeatedly sexually abusing his daughter beginning when she was 13; assaults occurred in the family home and later at the paternal grandmother’s house.
- The victim (16 at trial) testified defendant licked her genital area (including clitoris) on at least two occasions and penetrated her with his penis on at least two occasions; DNA from semen on a living-room couch cushion matched defendant.
- Defense contested credibility and argued the victim’s descriptions showed only touching “on” (not penetration).
- Defendant raised claims on appeal: insufficiency of evidence as to cunnilingus/penetration; prosecutorial misconduct (rebuttal remarks about anatomy); improper scoring of OV 11 at sentencing; and ineffective assistance of counsel.
- The Court of Appeals affirmed convictions and sentence, rejecting each appellate claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for cunnilingus-counts | Prosecution: victim’s testimony that defendant licked her vagina/clitoris established cunnilingus (sexual penetration). | Franklin: prosecution failed to prove "penetration" because licking was only "on" the vagina, not an intrusion. | Affirmed: cunnilingus is statutory sexual penetration; victim’s testimony that defendant licked urethral/vaginal area and clitoris was sufficient. |
| Prosecutor misconduct (rebuttal anatomy remarks) | Prosecution: remarks responded to defense argument and were permissible argument. | Franklin: prosecutor injected personal anatomical opinion and stated facts not in evidence. | No plain error: remarks were responsive, jury instruction cured any potential prejudice, and dispute over "on" vs "in" was legally immaterial. |
| Scoring of OV 11 (50 vs 25 points) | Prosecution: record supports multiple penetrations arising from same course of conduct so 50 points proper. | Franklin: no evidence two or more penetrations arose from a single sentencing offense; OV 11 should be 25. | No reversible error: record supports 50 points; even if error, defendant’s sentence fell within the (altered) guidelines and court relied on its own reasons, so no prejudice. |
| Ineffective assistance of counsel | N/A (State defends adequacy). | Franklin: counsel erred by not objecting to rebuttal comments and OV 11 scoring and by omissions in cross-examination. | Denied: failures were not objectively unreasonable or prejudicial; strategic choices and evidentiary support for OV 11 undermine ineffective-assistance claim. |
Key Cases Cited
- Reese v. People, 491 Mich. 127 (de novo sufficiency review and standard for viewing evidence in light most favorable to prosecution)
- Legg v. People, 197 Mich. App. 131 (defendant’s mouth touching urethral opening, vaginal opening, or labia establishes cunnilingus)
- Harris v. People, 158 Mich. App. 463 (no separate penetration requirement when cunnilingus is performed)
- Carines v. People, 460 Mich. 750 (plain-error review for unpreserved prosecutorial-misconduct claims)
- Johnson v. People, 474 Mich. 96 ("arising out of" standard for grouping penetrations under OV 11)
- Lockridge v. People, 498 Mich. 358 (advisory nature of sentencing guidelines)
- Francisco v. People, 474 Mich. 82 (resentencing relief when guidelines range is altered by scoring error)