PEOPLE OF MI V LONNIE LIVI WELCH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 13, 2000
Plaintiff-Appellee,
v
No. 218603
Cass Circuit Court
LC No. 98-009342-FC
LONNIE LIVI WELCH,
Defendant-Appellant.
Before: Bandstra, C.J., and Jansen and Whitbeck, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL
750.520b(1)(a); MSA 28.788(2)(1)(a). He was thereafter sentenced to seventeen to forty years’
imprisonment. He appeals as of right and we affirm.
I
Defendant first argues that the trial court, in questioning prospective jurors concerning their
ability to believe the testimony of a child over that of an adult, bolstered the credibility of the child
complainant in this case.
Because defendant failed to object at trial to the trial court’s voir dire, this issue has not been
preserved for appeal. People v White, 168 Mich App 596, 604; 425 NW2d 193 (1988). Therefore,
in order to avoid forfeiture of this issue, defendant must demonstrate plain error that was prejudicial, that
is, error that could have affected the outcome of the trial. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999); People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994).
After reviewing the now disputed remarks of the trial court during voir dire in context of the
entire voir dire, it is apparent that the trial court merely attempted to elicit the jurors’ true feelings
regarding whether each could determine the case impartially. Contrary to defendant’s implication that in
doing so the trial court bolstered the credibility of the complainant in this matter, we note that the trial
court never expressed its own opinion concerning the merits of the case against defendant, nor the
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credibility of any witness. Rather, the trial court repeatedly ensured that the jurors understood that it
was they alone who were to judge the “believability” of the witnesses who were to testify before them.
Therefore, because we find no error in the voir dire conducted by the court at trial, defendant
has failed to demonstrate a plain error that affected the outcome of the trial.
II
Defendant next argues that the prosecutor, during his closing argument, improperly argued facts
not admitted as evidence during trial and in doing so shifted the burden of proof concerning the truth or
falsity of such facts to defendant. While we agree that the challenged remarks were improper,1 because
defendant did not object to the prosecutor’s remarks at trial, our review is precluded unless a curative
instruction could not have eliminated possible prejudice or failure to consider the issue would result in a
miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
After review of the challenged remarks, we find that although the remarks were improper, any
prejudice could have been cured by an instruction from the trial court prompted by a timely defense
objection. Moreover, the complainant’s allegation was corroborated by defendant’s former friend who
testified that defendant admitted to him that he had “sexual intercourse” with the complainant and that he
had later threatened her not to tell anyone. Finally, we note that the trial court properly instructed the
jury that the lawyers’ statements and arguments were not evidence and that the jury “should only accept
things the lawyers say that are supported by the evidence or by your own common sense and general
knowledge.” Thus, the trial court’s instructions dispelled any prejudice. People v Bahoda, 448 Mich
261, 281; 531 NW2d 659 (1995).
III
Defendant next argues that the prosecutor presented insufficient evidence to prove his guilt
beyond a reasonable doubt.
In reviewing the sufficiency of the evidence, this Court considers the evidence in the light most
favorable to the prosecutor and determines whether a 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).
In order to establish defendant’s guilt of the charged crime, the prosecutor was required to
prove that defendant sexually penetrated the complainant at a time when she was under the age of
thirteen. See MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). At trial, the complainant testified that
during an overnight stay at defendant’s apartment in the summer of 1996, when she was eleven years
old, she awoke to find that defendant had removed her pants and had begun to penetrate her vagina
with his penis. While this evidence alone, if the jury chose to believe the complainant’s testimony, was
1
The prosecutor concedes on appeal that the challenged remarks were improper, but that the remarks
were harmless.
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sufficient to convict defendant of the charged crime, the prosecution also presented testimony from
defendant’s former friend, who indicated that defendant had bragged to him of having “sexual
intercourse” with the complainant during that time period.
Defendant argues, however, that because no rational trier of fact could believe such testimony
his conviction must be reversed. Specifically, defendant argues that inasmuch as the offense was alleged
to have occurred while defendant’s wife and child were asleep inside the apartment, and yet neither of
these persons were awakened by the alleged assault, the “physical makeup of the tiny apartment” belies
the testimony offered by these witnesses and thereby renders such testimony incredible. However,
when addressing an issue concerning the sufficiency of the evidence this Court will not interfere with the
jury’s role of determining the weight of evidence or the credibility of witnesses. Wolfe, supra, pp 514
515. In this case, if the jurors chose to believe either the testimony of the complainant or defendant’s
former friend, they would be justified in convicting defendant of first-degree criminal sexual conduct
because the elements of the charge were established.
Therefore, we conclude that when viewed in a light most favorable to the prosecutor, the
evidence presented at trial was sufficient to allow the jury to find defendant guilty of first-degree criminal
sexual conduct.
IV
Lastly, defendant argues that his seventeen-year minimum sentence violates the principle of
proportionality.
Defendant was convicted by jury of raping an eleven-year-old friend of his daughter while she
was sleeping during an overnight stay at his apartment. According to the complainant, after learning that
local authorities had been informed of defendant’s conduct, he threatened that if she told anyone what
he had done, he would find and kill her. Further, the presentence investigation report indicates that
defendant was convicted in 1986 of second-degree criminal sexual conduct, also involving a minor. The
presentence report also indicates that this prior conviction is significantly similar to the present offense in
that in the prior case, defendant, after sexually assaulting the minor victim in her bedroom, threatened the
child with violence if she were to tell anyone of his conduct. Noting this fact during sentencing, the trial
court opted to impose a minimum sentence within the middle of the recommended guidelines range of
ten to twenty-five years.
Considering the seriousness of the offense in conjunction with defendant’s prior conviction, and
the fact that the sentence is well within the minimum guidelines range, we cannot conclude that the trial
court abused its discretion in sentencing defendant. People v Houston, 448 Mich 312; 532 NW2d
508 (1995); People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). The sentence is not
disproportionately severe. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
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Affirmed.
/s/ Richard A. Bandstra
/s/ Kathleen Jansen
/s/ William C. Whitbeck
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