Prosecutor’s references to the “victim” during voir dire; MCL 750.520a(s); Ineffective assistance of counsel; Failure to raise a futile objection; Sufficiency of the evidence for CSC III under MCL 750.520d(1)(b) & CSC IV under MCL 750.520e(1)(b); Force or coercion; People v Green; Witness credibility; Mandatory minimum sentence for a CSC I conviction; Presumptive proportionality of a within-guidelines sentence; People v Posey

The court found that defendant failed to show any error as to the prosecutor’s references to the “victim” during voir dire and thus, his claim defense counsel was ineffective for failing to object also failed. It further held that there was sufficient evidence to support his CSC III and IV convictions. Finally, it rejected his claim that his 25-year mandatory minimum sentence for CSC I was an abuse of discretion because it was disproportionate. Thus, it affirmed his convictions and sentences. As to the prosecution’s use of the word “victim,” the court noted that defense counsel also used this word “during voir dire to ask a similar question.” And it concluded the “prosecution’s single reference to one of the complainants as a ‘victim’ was appropriate because MCL 750.520a(s) provides that ‘“[v]ictim” means the person alleging to have been subjected to’” CSC. Defendant next argued there was insufficient evidence for his CSC III conviction because victim-TG “consented to the activity, there was no evidence of force or coercion, and TG was not a credible witness.” The court disagreed. While “there were some discrepancies in TG’s testimony, a reasonable juror could determine that force or coercion was used. . . . TG testified that he did not want [to] cuddle defendant and had made it clear to [him] numerous times that he did not like to do so. TG testified that he told defendant to stop while he was massaging him, that the oral sex was nonconsensual, and that he felt ‘cornered.’ TG’s credibility was a question for the jury.” Defendant made similar assertion as to his CSC IV conviction, which involved victim-CN. The court again disagreed. It first rejected his claim there was no evidence of a “sexual touching.” It noted that he “had been sharing sexually suggestive texts with CN, and defendant does not suggest that the touching was unintentional. [He] also groped CN’s buttocks after CN had told him that touching his penis made him uncomfortable, and after leaving, defendant texted CN, ‘Guess I got mixed signals.’ A jury may rely on circumstantial evidence and reasonable inferences as proof of the elements of a crime.” The court found the “jury could reasonably infer that defendant’s groping of CN’s penis and buttocks was done for a sexual purpose” and could also “determine that [he] used surprise to overcome CN to engage in sexual contact, which is sufficient to establish force or coercion.”