PEOPLE OF MI V LEWIS OTTO MCPHERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 21, 2001
Plaintiff-Appellee,
v
No. 218725
Charlevoix Circuit Court
LC No. 98-036209-FH
LEWIS OTTO MCPHERSON,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for second-degree criminal sexual
conduct, MCL 750.520c(1)(a) [sexual contact with a person under the age of thirteen].
Defendant was sentenced as a second habitual offender, MCL 769.10, to fifteen to twenty-two
and one-half years’ imprisonment. We affirm.
Defendant first argues that the evidence was insufficient to sustain his conviction. In
particular, defendant claims that the prosecution failed to establish that he had a sexual purpose
when he intentionally touched the victim’s intimate parts. See MCL 750.520a(k); MCL
750.520c(1)(a); People v Piper, 223 Mich App 642, 645, 646-647; 567 NW2d 483 (1997). We
disagree. In a sufficiency claim, this Court considers the evidence in a light most favorable to the
prosecutor to determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400;
614 NW2d 78 (2000).
The evidence established that: (1) defendant touched the victim between her legs and on
her breasts by putting his hand down her pants and under her clothing; (2) defendant employed
threats to silence the nine-year-old victim and other child witnesses; (3) incidents of touching
occurred when defendant was in a position of authority over the victim, as well as the other child
witnesses; (4) the victim’s ten-year-old brother, who witnessed incidents of defendant touching
the victim, described the touching as sexual in nature; (5) defendant did not inappropriately touch
the victim’s brother; (6) defendant attempted to bribe the victim to allow him to touch her
intimate parts; and (7) in one instance, defendant forced the victim into his camper and onto his
bed and improperly touched her. Considering the evidence in a light most favorable to the
prosecutor, a rational trier of fact could reasonably construe defendant’s contacts with the
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victim’s intimate parts as being for the purpose of sexual arousal or gratification and, thus, was
sufficient to sustain the conviction. Nowack, supra; Piper, supra at 647.
Next, defendant raises several claims of ineffective assistance of counsel. Because
defendant did not move for a Ginther1 hearing, this Court's review is limited to errors apparent
on the record. People v Lee, 243 Mich App 163, 183; 622 NW2d 71 (2000).
To establish a claim of ineffective assistance of counsel, a defendant must affirmatively
show that counsel’s performance fell below an objective standard of reasonableness and that, but
for defense counsel’s errors, there was a reasonable probability that the result of the proceeding
would have been different. People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994);
People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). The defendant has to
overcome the presumption that the challenged actions might be considered sound trial strategy.
People v Charles Williams, 240 Mich App 316, 331-332; 614 NW2d 647 (2000).
First, defendant argues that his counsel’s trial strategy of establishing an alibi for one
specific incident was completely useless. Defendant’s argument is without merit. The evidence
established that defendant improperly touched the victim over a period of months; however, only
one incident was specified by a particular date. Consequently, it appears that the trial strategy
was to establish an alibi for that date and, thus, discredit the other general, nonspecific testimony.
Further, in support of that theory, defense counsel attempted to establish that the victim’s
brother’s testimony was a product of his animosity toward defendant, and that the victim’s
testimony was incredible because she was allegedly known to tell untruths. We will not secondguess the trial strategy merely because it backfired. People v Barnett, 163 Mich App 331, 338;
414 NW2d 378 (1987).
Second, defendant argues that his counsel failed to appropriately cross-examine
witnesses. Defendant primarily argues that his counsel did not aggressively cross-examine the
child witnesses. However, a review of the record reveals that defense counsel elicited sufficient
information to illustrate inconsistencies and lack of specificity in their testimony. Trial strategy
considerations, including antagonizing the jury and limiting additional damaging testimony, were
reasonable concerns potentially mitigated by defense counsel’s tactical decisions. Further, how
to cross-examine witnesses is a matter of trial strategy that we will not second-guess. See In re
Ayres, 239 Mich App 8, 23; 608 NW2d 132 (1999).
Third, defendant complains that his counsel was ineffective for failing to file a motion in
limine “or request a hearing” regarding alleged MRE 404(b) evidence. However, defendant has
not properly presented this issue for appellate review but has merely announced his position,
leaving it to this Court to discover and rationalize the basis for his claims. Consequently, we
decline to address this issue. See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998).
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Fourth, defendant claims that the brevity of his counsel’s opening and closing arguments
demonstrate a lack of interest in the case. However, opening and closing arguments are a matter
of trial strategy. See In re Ayers, supra; People v Harlan, 129 Mich App 769, 779; 344 NW2d
300 (1983). Further, the entire trial was brief and the record demonstrates that defense counsel’s
closing argument focused on the inconsistencies and lack of specificity in the trial testimony. In
sum, defendant has failed to demonstrate that his counsel's performance was objectively
unreasonable and so prejudicial as to deprive him of a fair trial.
Next, defendant claims instructional errors warrant reversal. Defendant argues that the
trial court failed to provide proper and adequate instruction regarding prior inconsistent
statements, other uncharged sex acts, and the prosecutor’s burden to prove the time frame and
venue as charged in the information. However, defendant failed to object to the instructions
given; therefore, this issue is forfeited unless defendant demonstrates plain error that was
outcome determinative. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999);
People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994).
First, defendant argues that the trial court should have read standard jury instruction,
CJI2d 4.5, regarding “impeachment by prior inconsistent statements.” However, defendant fails
to specify instances of impeachment through the use of any prior inconsistent statements that
justify such instruction. Our review of the record reveals that the trial court’s failure to instruct
the jury using CJI2d 4.5 was not plain error that was outcome determinative.
Second, defendant argues that the trial court failed to instruct the jury regarding other,
uncharged sex acts that were testified about by the victim and her brother. Again, defendant fails
to cite any specific reference in the record to support his claim that there was testimony regarding
uncharged, sexual touchings for which no cautionary instruction was given. The instructions that
were given accurately informed the jury about how to view and consider the trial testimony;
therefore, reversal is not warranted. See Lee, supra.
Third, defendant argues that the trial court erred in failing to instruct the jury on venue
and the relevant time frame of defendant’s alleged conduct. However, the testimony relevant to
these issues was not in dispute. Defendant’s theory of defense was that the assaults did not
occur, at any place or any time. Further, defendant failed to request such instruction. Under
these circumstances, this issue is forfeited. See People v Belanger, 120 Mich App 752, 758; 327
NW2d 554 (1982). Therefore, defendant’s claim that his trial counsel was ineffective for failing
to seek the jury instructions discussed above fails. See People v Cooper, 236 Mich App 643,
659; 601 NW2d 409 (1999).
Finally, defendant argues that resentencing is required because the trial court failed to
consider all of the proper goals of sentencing, sentenced him vindictively, and imposed a
disproportionate sentence. We disagree. We review sentencing decisions for an abuse of
discretion. People v Hansford (After Remand), 454 Mich 320, 323-324; 562 NW2d 460 (1997).
First, defendant argues that the trial court failed to articulate its consideration of
defendant’s potential for reformation or rehabilitation when he was sentenced. Although a
sentencing court must articulate on the record the criteria considered and reasons supporting its
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sentencing decision, it need not expressly mention each goal of sentencing when imposing
sentence. People v Rice (On Remand), 235 Mich App 429, 445-446; 597 NW2d 843 (1999).
However, contrary to defendant’s argument, in this case the sentencing court specifically noted:
(1) defendant’s prior conviction for attempted second-degree criminal sexual conduct; (2)
defendant’s failure to participate in the sex offender therapy program during that previous five
year incarceration; (3) that these allegations arose shortly after his release from prison, and (4)
defendant’s denial of wrongdoing in this case. Consequently, it is apparent from the record that
the trial court considered defendant’s potential for reformation or rehabilitation, as well as the
other goals of sentencing, in imposing sentence; therefore, defendant’s argument is without
merit.
Second, defendant argues that the sentence was vindictive because defendant previously
received a lesser sentence in a related case than the sentence that was imposed in this case.
However, defendant’s argument that the greater sentence is presumed to be vindictive is
misguided. This is not a case where defendant was resentenced for the same crime and the
second sentence was greater, which would invoke a presumption of vindictiveness. See People v
Mazzie, 429 Mich 29, 35; 413 NW2d 1 (1987); People v Lyons (After Remand), 222 Mich App
319, 323-324; 564 NW2d 114 (1997). Defendant was sentenced once for his crime against the
victim in this case. Comparing the sentence imposed in this case with the sentence imposed in a
different case is an inappropriate comparison and does not give rise to a presumption of
vindictiveness.
Finally, defendant argues that his sentence was disproportionate. We disagree. We
review the proportionality of a defendant's sentence for an abuse of discretion. People v Knapp,
244 Mich App 361, 389; 624 NW2d 227 (2001). An abuse of discretion occurs if the sentence is
disproportionate to the seriousness of the circumstances surrounding the offense and the
offender. People v Crawford, 232 Mich App 608, 621; 591 NW2d 669 (1998).
In this case, defendant lived on the property where the victim lived, baby-sat for the nineyear-old victim, sexually assaulted her over a period of more than a year, required the victim’s
brother and others to watch the assaults, employed threats to silence the victim and other child
witnesses, attempted to bribe the victim to persuade her to allow him to touch her intimate parts,
and applied force, on at least one occasion, to accomplish his criminal purpose. Defendant had
recently been released from prison following a conviction for attempted second-degree criminal
sexual conduct involving a seven-year-old child when he began sexually assaulting the victim, as
well as two other children. Considering defendant’s history and the circumstances of this
offense, defendant’s sentence of fifteen to twenty-two and one-half years was proportionate and
did not constitute an abuse of discretion.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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