Following a jury trial, defendant was convicted of one count of criminal sexual conduct in the first degree (CSC-I), MCL 750.520b(1)(a) (victim under 13 years old). The trial court sentenced defendant to life in prison. Defendant appeals by leave granted.
The complainant in this matter, MO, was born on September 23, 2002. MO’s mother was in a dating relationship with defendant and moved in with him in May 2007, bringing MO with her. Defendant and MO were often left alone together. On April 16, 2008, MO, then five years old, was playing with CL, a boy who lived in her neighborhood. CL went to his brother’s car to get a toy from the trunk; CL’s little brother and MO accompanied him. The children found DVDs depicting naked people on the cover engaging in sex acts. MO picked up one of the DVDs, and CL indicated that she should not be looking at it. According to CL, MO said that her dad made her “suck his wiener every night” and that he “videotapes them, like, doing it.” CL understood that MO was referring to defendant as her dad. MO also told CL that defendant called what they did together the humping game. Shortly after, defendant arrived to take MO home.
Right after defendant took MO home, CL told his mother what MO had reported to him. She called the police. Brent
Robert Krist, a detective with the Warren Police Department, was assigned as the co-officer-in-charge and investigated defendant’s background. He learned that defendant had been convicted in Illinois of charges relating to other sexual conduct involving minors. Subsequently, a search warrant for defendant’s home was obtained and executed, resulting in the seizure of a laptop, a video camera, five Hi8 tapes for the video camera, and nudist videotapes.
As part of this investigation, Krist worked with Donald Raymo, a federal agent with the Department of Homeland Security in the cybercrimes division, which typically investigates child-pornography allegations. Raymo had been investigating a person named Bryan Brown. When he learned defendant was the subject of a criminal sexual behavior investigation, Raymo agreed to engage in a joint investigation, offering to process the electronic evidence related to this case. According to Raymo, one of the videos seized from defendant’s home included a 10-minute segment that constituted child pornography; that section of the video was located midway through the tape and was preceded by a black screen, indicating that it had been taped over. It was followed by footage of a wedding. This tape was played for the jury at trial.
At trial, MO testified that defendant put his “private parts” in hers and that it felt bad when he did. MO indicated this happened in her mother’s bed. However, MO could not recall ever seeing defendant with a camera and denied making a movie with defendant.
During the trial, defendant’s Illinois convictions for sexual misconduct involving minors were introduced without objection. In addition, the prosecution introduced the testimony of KD, who had been coached by defendant as a gymnastics student in 1997 when she was approximately five years old. KD testified that defendant would grab her and pull her close and then put his hand underneath her leotard and touch her vaginal area on the outside.
Defendant testified on his own behalf. He described his relationship with MO’s mother and MO as a “[v]ery loving family” and said that MO was the “daughter [he] always wished [he] had.” Defendant testified he never thought about MO sexually. He denied putting his “privates” in MO’s and further denied ever having MO perform fellatio on him. Defendant acknowledged that he had previously been a gymnastics teacher in Illinois and had pleaded guilty with respect to the convictions introduced earlier. He denied being sexually attracted to five-year-old girls or children in general. Defendant stated that it was a coincidence that MO was close in age to the girls involved in his prior convictions.
II. PROSECUTORIAL MISCONDUCT
First, defendant claims that the prosecution engaged in prosecutorial misconduct. We disagree.
In order to preserve a claim of prosecutorial misconduct for appellate review, a defendant must have timely and specifically objected below, unless objection could not have cured the error. People v Unger,
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Dobek,
Defendant first argues that he was denied a fair trial when the prosecutor elicited testimony from Krist and Raymo indicating he was the subject of a federal child-pornography investigation. Defendant specifically argues that this evidence was irrelevant and served only to paint defendant as a bad man by implying that he was the target of a federal investigation into child pornography.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. This is a broad definition, allowing the admission of evidence that is helpful in throwing light on any material point. People v Aldrich,
Defendant next argues that the prosecutor engaged in misconduct by injecting other acts evidence for the purpose of showing that defendant had the propensity to commit crimes. He takes issue with references to his arrest for possession of marijuana and drug paraphernalia. Defendant specifically argues that the subject of drugs tends to inflame the passions of a jury and thus was unfairly prejudicial. Evidence is unfairly prejudicial when it presents a danger that marginally probative evidence will be given undue or preemptive weight by the jury. People v Ortiz,
Defendant finally argues that he was a denied a fair trial when the prosecutor argued he must have committed the charged offense because he was a pedophile. This argument is without merit. A review of the record demonstrates that the prosecutor never referred to defendant as
In any event, even if this Court were to conclude that the prosecutor engaged in misconduct, defendant would not be entitled to a reversal of his conviction. Defendant cannot show that “the plain, forfeited error resulted in the conviction of an actually innocent defendant or . . . seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s innocence.” People v Carines,
III. ADMISSION OF EVIDENCE
Next, defendant claims that the trial court denied him a fair trial by failing to exercise its duty to ensure that the challenged evidence was not more prejudicial than probative. We disagree.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Aldrich,
At trial, the jury heard testimony from defendant’s former gymnastics student that he had improperly touched her when she was five years old. The jury was also informed that defendant had pleaded guilty to four counts of sexually abusive activity involving minors. This evidence was introduced pursuant to both MRE 404(b) and MCL 768.27a.
MRE 404(b)(1) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
MRE 404(b) is a rule of inclusion rather than a rule of exclusion. People v Katt,
MCL 768.27a provides in pertinent part that, “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” MCL 768.27a(1). “A defendant’s propensity to commit criminal sexual behavior can be relevant and admissible under the statutory rule to demonstrate the likelihood of the defendant committing criminal sexual behavior toward another minor.” People v Petri,
Defendant primarily argues that the challenged evidence should have been excluded because the trial court “ [abdicated” its duty to evaluate and balance the probative value of the proposed evidence against its prejudicial effect in deciding whether to admit it. A review of the record demonstrates that this claim cannot succeed.
The trial court specifically recognized its duty to weigh the probative value of defendant’s past convictions against the potential for unfair prejudice, and it determined that the record before it provided no reason to exclude the evidence. Defendant’s argument that the trial court failed to appropriately analyze the proffered evidence is without merit.
Defendant also argues that KD’s testimony describing defendant’s conduct toward her was not sufficiently similar to the charged conduct. A showing of similarity might be required if the evidence had simply been admitted pursuant to MRE 404(b). However, this argument fails to recognize that the evidence was also admitted under MCL 768.27a. Moreover, the testimony indicated that defendant targeted girls of MO’s specific age and accordingly, was arguably more probative than prejudicial.
Likewise, defendant’s intimation that the length of time between his conduct toward KD and the charged offense should have been a factor in determining its admissibility is not persuasive. MCL 768.27a does not contain a temporal limitation. The remoteness of the other act affects the weight of the evidence rather than its admissibility. People v McGhee,
IV EFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant claims that he was denied the effective assistance of counsel when trial counsel failed to object to misconduct on the part of the prosecution. We disagree.
A claim of ineffective assistance of counsel presents a mixed question of law and fact. People v LeBlanc,
To prevail on a claim of ineffective assistance of counsel, defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Rodgers,
Defendant’s claim that he was denied the effective assistance of counsel is premised on his assertion that the prosecution engaged in misconduct to which counsel posed no objection. The alleged misconduct centered on the admission of evidence pertaining to the federal investigation of child pornography and evidence of drug and drug paraphernalia possession.
However, even if this Court were to agree that trial counsel should have objected to any of the alleged instances of misconduct, defendant is not entitled to a new trial when he cannot demonstrate that the allegedly deficient performance affected the outcome of trial. In light of the overwhelming evidence establishing defendant’s guilt of the charged offense, notably MO’s testimony and the video footage that defendant concedes depicts him and MO, defendant’s claim cannot succeed.
V RIGHT TO TRIAL
Next defendant argues that he was punished by the trial court for exercising his right to trial. We disagree.
A sentencing court cannot base its sentence on a defendant’s decision to exercise his constitutional right to a jury trial. People v Earegood,
VI. LIFE IMPRISONMENT FOR CSC-I
Finally, defendant claims that his sentence of life imprisonment without the possibility of parole constitutes cruel and unusual punishment or that, in the alternative, his sentence constitutes an impermissible departure from the sentencing guidelines. We disagree with both arguments.
Defendant failed to challenge the constitutionality of MCL 750.520b(2)(c) below. Thus, this claim is not preserved for appellate review. People v Eccles,
Defendant’s sentence was imposed pursuant to MCL 750.520b(2)(c), which mandates the penalty of life imprisonment without the possibility of parole for a defendant over the age of 17 who commits CSC-I involving a victim less than 13 years of age when the defendant was previously convicted of a similar sex crime with a victim less than 13 years of age. Legislatively mandated sentences are presumptively proportional and presumptively valid. People v Williams,
In People v Hall,
Our Supreme Court has held that the graduated system of punishment adopted by the Legislature demonstrates a careful consideration and balancing of the age of the victim and the nature of the sexual conduct. People v Cash,
In addition, a number of states authorize or mandate life in prison without parole for similar offenses. Texas requires a mandatory life sentence without the possibility of parole for repeat sexual offenders involving a victim who is a minor. See Tex Penal Code Ann 12.42(c)(4). Similarly, Louisiana mandates life in prison at hard labor without the possibility for parole for aggravated rape, which includes penetration of a minor, even for a first time offense. See La Rev Stat Ann 14:42(D)(1).
Defendant’s claim that his sentence constituted a departure from the sentencing guidelines without being supported by substantial and compelling reasons is without merit. Although the sentencing information report related to this case included a recommendation for a minimum sentence range of 126 to 210 months in prison, defendant’s argument fails to recognize that the sentencing guidelines range does not apply to crimes for which there is a mandatory sentence. MCL 769.34(5). Moreover, imposition of a mandated sentence does not constitute a departure from the guidelines. See People v Izarraras-Placante,
Affirmed.
Notes
People v Brown, unpublished order of the Court of Appeals, entered September 30, 2010 (Docket No. 297728).
Such crimes are punishable by imprisonment for life or any term of years, hut not less than 25 years. MCL 750.520b(2)(b).
In Kennedy v Louisiana,