PEOPLE OF MI V KAWAN PAYNE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2001
Plaintiff-Appellee,
v
No. 221489
Muskegon Circuit Court
LC No. 98-042530-FC
KAWAN PAYNE,
Defendant-Appellant.
Before: Neff, P.J., and Doctoroff and Wilder, JJ.
PER CURIAM.
Defendant was charged with first-degree criminal sexual conduct (CSC), MCL 750.520b,
but was convicted of the lesser offense of second-degree CSC, MCL 750.520c, following a jury
trial. He was sentenced as a fourth habitual offender, MCL 769.12, to a term of twenty to fifty
years’ imprisonment. He appeals as of right. We affirm.
Defendant argues that the evidence failed to show that the alleged contact was committed
for purposes of sexual gratification and, therefore, does not support a conviction for seconddegree CSC. We disagree. “The test for determining the sufficiency of evidence in a criminal
case is whether the evidence, viewed in a light most favorable to the people, would warrant a
reasonable juror in finding guilt beyond a reasonable doubt.” People v Nowack, 462 Mich 392,
399; 614 NW2d 78 (2000). In order to support a conviction for second-degree CSC, the jury
must determine that “the defined conduct, when viewed objectively, could reasonably be
construed as being for a sexual purpose.” People v Piper, 223 Mich App 642, 645-647; 567
NW2d 483 (1997); see MCL 750.520a(k).
The evidence indicated that defendant forcibly knocked the victim to the ground and
dragged her to a more secluded area between some houses. He asked her if he could “get some
of that,” and also asked if she had ever had sex with a black man or had ever been raped. He
then told her to take off her pants and, when she refused, he beat her and choked her so severely
that she lost consciousness for a period of time. By the time the victim regained consciousness,
defendant had pulled off her pants and shoes and was attempting to penetrate her vagina with his
penis. He admitted that he rubbed her vaginal area with his penis. However, he apparently could
not achieve an erection and got off her. The victim testified that defendant then inserted two
fingers into her vagina. When viewed objectively, defendant’s conduct could reasonably be
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construed as being for a sexual purpose. Thus, there was sufficient evidence of a sexual purpose
to support defendant’s conviction for second-degree CSC.
Next, defendant argues that he was denied the effective assistance of counsel. To warrant
a remand for a new trial on a claim of ineffective assistance of counsel, defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that the
representation so prejudiced defendant that he was denied his right to a fair trial. People v Hoag,
460 Mich 1, 5; 594 NW2d 57 (1999); People v Ho, 231 Mich App 178, 191; 585 NW2d 357
(1998). Decisions concerning which witnesses to call, what evidence to present, or the
questioning of witnesses are considered part of trial strategy. In order to overcome the
presumption of sound trial strategy, the defendant must show that his counsel's failure to prepare
for trial resulted in counsel's ignorance of, and hence failure to present, valuable evidence that
would have substantially benefited the accused. People v Bass (On Rehearing), 223 Mich App
241, 252-253; 565 NW2d 897 (1997), vacated in part on other grounds 457 Mich 866 (1998);
People v Kelly, 186 Mich App 524, 526; 456 NW2d 569 (1990).
Limiting our review to the available record, we find no basis for concluding that
defendant’s various statements to the police were not voluntarily made. See People v Walker
(On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Nor is there any basis to conclude that
defendant’s statements, which were not recorded, were inadmissible. People v Eccles, 141 Mich
App 523, 524-525; 367 NW2d 355 (1984). Counsel is not required to argue a meritless motion
or make a groundless objection. People v Rodriguez, 212 Mich App 351, 356; 538 NW2d 42
(1995). Third, the record does not factually support defendant’s claim that there was any
improper contamination or planting of evidence with respect to the blood on the victim’s blue
jeans. Fourth, although defendant argues that defense counsel failed to call certain witnesses or
present certain evidence, because the substance of this evidence is unknown, defendant has not
demonstrated that counsel’s failure to call witnesses or present evidence deprived him of a
substantial defense that might have made a difference in the outcome of the trial. Nor has
defendant overcome the presumption that counsel’s decision not to call witnesses and to advise
defendant not to testify was part of defense counsel’s sound trial strategy. People v Mitchell, 454
Mich 145, 163; 560 NW2d 600 (1997); People v Williams, 240 Mich App 316, 331-332; 614
NW2d 647 (2000). Finally, where the evidence showed that the victim clearly saw defendant’s
face over a period of several minutes, defendant has failed to demonstrate that defense counsel
was ineffective for failing to demand a pre-trial line-up. See People v Davis, 241 Mich App 697,
702-703; 617 NW2d 381 (2000).
Next, the trial court did not err when it instructed the jury on the cognate lesser included
offense of second-degree CSC. The evidence was sufficient to support a conviction of seconddegree CSC. People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997); People v Bailey,
451 Mich 657, 668; 549 NW2d 325 (1996); People v Ora Jones, 395 Mich 379, 388-390; 236
NW2d 461 (1975). Also, defendant had adequate notice that he would be required to defend
against a charge of second-degree CSC. People v Darden, 230 Mich App 597, 600-601; 585
NW2d 27 (1998); People v Snell, 118 Mich App 750, 759; 325 NW2d 563 (1982). Further, there
is no indication that the jury’s verdict was an improper compromise verdict or a product of
misunderstanding. People v Smielewski, 235 Mich App 196, 201-202; 596 NW2d 636 (1999).
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Defendant’s claim that the prosecutor knowingly presented perjured testimony is without
merit. People v Lester, 232 Mich App 262, 277, 279; 591 NW2d 267 (1998); People v Canter,
197 Mich App 550, 558; 496 NW2d 336 (1992). Defendant has failed to demonstrate anything
more than inconsistencies in the testimony, which relate to credibility. People v Lemmon, 456
Mich 625, 642-643; 576 NW2d 129 (1998); People v Wolfe, 440 Mich 508, 514-515; 489 NW2d
748 (1992), amended 441 Mich 1201 (1992). Further, defendant has failed to demonstrate that
the prosecutor suppressed exculpatory evidence or material statements. Lester, supra at 281-282.
We also reject defendant’s claim that reversal is required because of evidentiary error.
The record reveals that the trial court admitted the challenged testimony, under a proper
instruction, for a limited, nonhearsay purpose. See People v Lukity, 460 Mich 484, 488; 596
NW2d 607 (1999) (setting forth the standard of review for alleged errors regarding the admission
of evidence). Furthermore, even if the evidence was improperly admitted, it is not more probable
than not that the admission of the testimony was outcome determinative. Id. at 495-496.
Finally, defendant is not entitled to resentencing. The court considered proper factors at
sentencing and sufficiently articulated its reasons for the sentence. MCR 6.425(D)(2)(e); People
v Fleming, 428 Mich 408, 417-418, 428; 410 NW2d 266 (1987); People v Terry, 224 Mich App
447, 455-456; 569 NW2d 641 (1997). Also, defendant’s habitualized sentence does not violate
the principle of proportionality. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1
(1990).
Affirmed.
/s/ Janet T. Neff
/s/ Martin M. Doctoroff
/s/ Kurtis T. Wilder
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