PEOPLE OF MI V OSCAR LEE HENSLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 8, 2002
Plaintiff-Appellee,
v
No. 227954
Genesee Circuit Court
LC No. 99-005160-FC
OSCAR LEE HENSLEY,
Defendant-Appellant.
Before: Jansen, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of three counts of first-degree criminal
sexual conduct, MCL 750.520b(1)(a). He was sentenced as a fourth-offense habitual offender,
MCL 769.12, to thirty-five to sixty years’ imprisonment. He appeals as of right. We affirm.
Defendant argues that the trial court erred in admitting evidence of his prior conviction
for unlawfully driving away an automobile (UDAA), MCL 750.413, for impeachment purposes
pursuant to MRE 609. On appeal, defendant asserts that the conviction was inadmissible under
MRE 609(c), because the conviction and release from confinement occurred more than ten years
earlier. However, defendant did not make this argument in the trial court. On the contrary,
defense counsel represented that defendant had been released from prison in June 1999, thus
satisfying MRE 609(c).1 Defendant also argues that the trial court erred in balancing the
probative value against the prejudicial effect of the conviction as required by MRE 609(b).
Despite the age of the conviction, the trial court concluded that, as a theft offense, it was
probative of veracity and that its dissimilarity to the charged offense reduced the potential
prejudice. On balance, the trial court did not abuse its discretion in admitting the prior
conviction. People v Bartlett, 197 Mich App 15, 19; 494 NW2d 776 (1992).
Defendant argues that the prosecutor improperly “shifted the burden of proof” during
closing argument by remarking that defendant had failed to produce witnesses to support his
testimony that he was not alone with the complainant. Where, as here, defendant testifies at trial,
the prosecutor may comment on his failure to call corroborating witnesses. People v Fields, 450
1
Although defendant asserts that the presentence report indicates that he was released in 1988,
he has not submitted a copy of the presentence report on appeal, as required by MCR
7.212(C)(7).
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Mich 94, 115; 538 NW2d 356 (1995); People v Jackson, 108 Mich App 346, 351-352; 310
NW2d 238 (1981). Thus, the prosecutor’s remarks did not improperly “shift the burden of
proof” or deny defendant his right to due process.
Defendant also argues that he was denied his right to due process when the prosecutor
remarked during closing argument that “she [the complainant] knows what will happen if her
perpetrator is let go.” Although defendant argues on appeal that the remark was an improper
“community protection” argument, he did not object on this basis at trial. Therefore, the issue is
not preserved, People v Nantelle, 215 Mich App 77, 86; 544 NW2d 667 (1996), and our review
is limited to plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750,
761-762; 597 NW2d 130 (1999). Because the trial court sustained defense counsel’s objection to
the remark, directed that the remark be stricken, and repeatedly advised the jury that statements
of counsel are not evidence, we conclude that defendant’s substantial rights were not affected by
the remark. People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995).
Lastly, defendant argues that he was denied the effective assistance of counsel because
trial counsel failed to object to (1) alleged hearsay testimony during the testimony of the
complainant’s adoptive mother and a police officer, (2) the prosecutor’s cross-examination of
defendant concerning collateral facts pertaining to his prior UDAA conviction, and (3) the
prosecutor’s community protection remark discussed above. Having considered the alleged
errors by trial counsel, we conclude that none of them were prejudicial. In light of the strong
physical evidence supporting the complainant’s allegations, there is no reasonable probability
that the outcome of the proceeding would have been different but for counsel’s failure to object.
People v Toma, 462 Mich 281, 202-303; 613 NW2d 694 (2000.)
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Patrick M. Meter
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