PEOPLE OF MI V ATHIR NAJIB QARANA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 27, 2004
Plaintiff-Appellee,
v
No. 243435
Wayne Circuit Court
LC Nos. 01-013436-01;
01-013437-01
ATHIR NAJIB QARANA,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Gage, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of two counts of criminal sexual conduct
in the fourth degree, MCL 750.520e(1)(b) (use of force), and one count of assault with intent to
commit criminal sexual conduct involving penetration, MCL 750.520g(1). He was sentenced to
concurrent terms of sixteen months to two years on the CSC-4 convictions and to thirty-eight
months to ten years on the assault conviction. Defendant was acquitted of a fourth count which
charged third-degree criminal sexual conduct, MCL 750.520d(1)(b) (digital penetration achieved
by force). Defendant now appeals and we affirm.
Defendant’s convictions arise out of two separate, unrelated incidents at the party store he
owns in Livonia, The Brass Mug. Although separately charged, the two cases were joined for
trial. In the first case, the victim, HG, testified that she stopped at defendant’s store to use the
pay phone. Defendant was working behind the counter, came out around the counter and
approached her from behind. He then put his hand up her shirt and fondled her breasts.
Defendant then pushed HG over the counter and put his hand down her pants, digitally
penetrating her vagina. The incident ended when a customer came into the store. HG testified
that she did not consent to defendant’s activities. This incident resulted in one of the CSC-4
convictions and the acquittal on CSC-3.
The second incident occurred when CK went to The Brass Mug to make a purchase. As
she was checking out at the register, defendant came out from behind the counter and asked CK
to touch him in the genital area, which she refused to do. Defendant grabbed CK tightly and
kissed her; CK told him to stop. Instead, defendant reached under her shirt and fondled her
breasts, touching her for a minute or two. He then put his hand down the front of her pants. As
he was trying to get his hand deeper, CK managed to get his hand out of her pants before he
reached her vagina. Defendant then stuck his hand down the back of her pants and also took the
victim’s hand and rubbed it on his crotch. As with the other incident, it was without the victim’s
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consent and ended when a customer entered the store. This incident resulted in the other CSC-4
conviction and the assault conviction.
Defendant first argues that he was denied a fair trial by several comments made by the
prosecutor during closing argument. Specifically, defendant complains of the following
statements made during the prosecutor’s closing argument:
I’ve listened to the case carefully and, quite frankly, I’ve been trying to
figure out what the defense is to this. I’ve been trying to figure it out. So I’d ask
you to listen carefully to Mr. O’Connell, so we’ll both learn what the defense is.
But what I can gather is, blame the victim. Blame the victim.
***
For that, she deserved to be molested by him is, apparently, the defense in
this case. Because there is no other defense that I heard in this case. There is no
other defense.
***
Ask yourselves, how could they [the two victims] have possibly come up
with the exact same story, unless it happened?
Once you resolve that issue, this case is over and done with and he’s guilty
of all four counts.
***
Why would [HG] have put herself through what she did, gone to the point
of going to the hospital to, basically, be raped again by a doctor or a nurse . . ..
***
If it walks like a duck, talks like a duck, it’s a duck. It’s a rapist.
Proof beyond a reasonable doubt. The Judge is going to instruct you on
that. I have to prove this case to you, beyond a reasonable doubt. I accept that.
Quite frankly, it’s not that hard to prove this case, beyond a reasonable doubt. I
want to talk about what I don’t have to do, though. I don’t have to prove this
beyond a shadow of a doubt. And the reason I mention that is I hear that stupid
expression on T.V. all the time. You’ll never hear the Judge say it. You’ll never
hear Mr. O’Connell say it. And you never will hear me say beyond a shadow of a
doubt. Throw it out of your mind. The term does not exist, except for T.V. I
don’t have to prove it beyond a shadow of a doubt. I don’t even know what that
means.
Defendant also complains of the following statements made by the prosecutor in rebuttal:
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If in this country you can be assaulted because you go out and buy booze
and cigarettes at that party store, then I – then our victims are guilty, as counsel
wants to make them out to be.
This is a classic case of blame the victim. Didn’t even talk about his
client. Didn’t even talk about him. Why? There’s nothing to say. There’s
nothing to say.
***
This case comes – [defense counsel] says I’ve to the difficult job [sic]. I
completely disagree. I’ve got the easiest job in the world on this case. I come up
and I put up two credible witnesses and police officers. Counsel has the tough job
in this case. He’s got to try to find and manufacture a defense.
In this country you’re allowed – everybody has the right to a trial by jury.
It doesn’t give you a right to a defense. I ask you, I implore you to do your job
and to return the only verdict you can and that’s guilty of all counts.
Counsel goes through this whole thing about [HG] and I can’t – couldn’t
help myself. Why would she go through this? Why would she sit out there put
herself [sic] – to get even with her boyfriend she would wet herself on the
sidewalk. To get even with her boyfriend, she would subject herself to going to
the police department, for God knows how long, and being interviewed that night.
To get even with her boyfriend she’s going to go to the hospital and have a pelvic
examination performed on her. To get even with her boyfriend, she went to 16th
District Court and testified and was subjected to cross-examination. Because of
the fun of that, she came down here on the hottest day of the year and probably
paid sixteen dollars for parking so she could go through this. There’s no
motivation, ladies and gentlemen. It’s nonsense. Nonsense. It doesn’t make
sense.
Depending upon the particular statement, defendant argues that these statements denigrated
defense counsel and the defense, shifted the burden of proof, commented on defendant’s right to
remain silent, improperly commented on the credibility of prosecution witnesses, misstated the
law, or was otherwise inappropriate or disparaging.
In no instance were any of these comments objected to at trial. Therefore, we review
defendant’s claims under the plain error rule. People v Carines, 460 Mich 750; 602 NW2d 576
(1999). To avoid forfeiture of an issue under the plain error rule, three requirements must be
met: 1) there must have been an error, 2) the error must be plain, i.e., obvious or clear, and 3)
the substantial rights were affected by the error. Id. at 763. The last requirement generally needs
a showing of prejudice, that the error affected the outcome. Id. The burden of showing
prejudice rests with the defendant, not the prosecutor. Id. And even where the defendant meets
this burden, we must exercise our discretion to determine if reversal is warranted, which occurs
only when the error results in the conviction of an actually innocent person or when the error
seriously affects the fairness, integrity or public reputation of the proceedings independent of the
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defendant’s innocence. Id., quoting United States v Olano, 507 US 725, 736-737; 113 S Ct
1770; 123 L Ed 2d 508 (1993).
For the most part, we see no plain or obvious error in the comments by the prosecutor.
The only comments that are somewhat troubling are those that suggest that defendant had the
difficult job of coming up with a defense. A criminal defendant, of course, has no obligation to
present a defense, and to the extent that the prosecutor suggested otherwise, that was improper.
People v Bass (On Rehearing), 223 Mich App 241, 247; 565 NW2d 897 (1997), vacated in part
on other grounds 457 Mich 866; 577 NW2d 667 (1998). But in any event, even if we regard this
as a plain or obvious error, or even if we regard any of the other challenged statements as plain
or obvious error, defendant has not demonstrated any prejudice meriting reversal. As explained
in Carines, supra, the burden rests with defendant to demonstrate how he was prejudiced by the
error. In this case, defendant makes no such showing beyond a merely conclusory statement that
he was prejudiced. For the most part, the statements defendant now challenges were merely
arguments regarding why the prosecutor’s witnesses were believable. At most, it might be said
that the comments suggesting that defense counsel had a difficult job because he had to
manufacture a defense for defendant was potentially prejudicial in shifting the burden of proof to
defendant. But even in that respect, defendant falls short of demonstrating prejudice. The
statement was not particularly egregious and the jury did, in fact, acquit defendant on one of the
four charges.
Furthermore, even if we were to conclude that defendant has, in fact, demonstrated
prejudice, we still must exercise our discretion in determining whether reversal is required.
Reversal is required only if the error resulted in the conviction of an actually innocent defendant
or if the error seriously affects the fairness, integrity or public reputation of the proceedings.
Carines, supra at 763. There is no showing here that defendant is actually innocent. Moreover,
none of the statements, even if error, seriously affects the fairness, integrity or public reputation
of the proceedings. Again focusing on the comments which suggest defendant had to prove a
defense, those comments were relatively innocuous and were made during rebuttal in response to
defense counsel’s argument that the prosecutor had a difficult time proving guilt. While the
prosecutor could perhaps have worded his response better, without a suggestion that defendant
had something to prove, we cannot say that the prosecutor’s statement seriously affected the
fairness, integrity or public reputation of the proceedings.
For the above reasons, we conclude that defendant has not satisfied his burden under the
plain error rule.
Defendant next argues that there was insufficient evidence to support the assault with
intent to commit criminal sexual conduct involving penetration charge and that the trial court
erred in denying his motion for directed verdict. Specifically, defendant argues that although
there was evidence that he put his hand down the pants of CK, there was no evidence that he did
so intending to digitally penetrate her, and, therefore, the trial court should have granted a
directed verdict on this charge. We disagree.
We review a claim of insufficiency of the evidence by looking at the evidence in the light
most favorable to the prosecution and determining whether a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. People v Hardiman, 466 Mich 417, 421; 646
NW2d 158 (2002). In the case at bar, CK testified that defendant had put his hand down her
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pants and that he was moving his hand towards her vagina, but that she was able to remove his
hand before he reached her vagina. Furthermore, the jury also heard testimony from HG that
defendant had digitally penetrated her in the other incident. Defendant does point out that he
was acquitted on the charge of digitally penetrating HG. But that overlooks the fact that the
ruling on the directed verdict motion obviously came before the jury’s verdict. At the point the
trial judge had to determine whether to submit the assault count to the jury, looking at the
evidence in the light most favorable to the prosecutor, the jury could have concluded that
defendant had penetrated HG and was intending to do the same to CK given the similarity of the
two offenses. Furthermore, defendant’s argument that the jury must not have believed HG when
she testified that defendant penetrated is merely speculative. That certainly may be the reason
that the jury acquitted defendant on the CSC-3 charge. But that certainly is not the only
possibility. For example, the jury may have erroneously believed that they had to decide
between the two charges with respect to HG and picked CSC-4, perhaps thinking it was the more
serious offense. The point is that any analysis as to why the jury acquitted defendant on the
CSC-3 charge is mere speculation and would be an exercise in looking at the evidence in the
light most favorable to defendant, not in the light most favorable to the prosecutor.
In short, when the evidence is viewed in the light most favorable the prosecutor, the jury
could reasonably have concluded from that evidence that defendant intended to digitally
penetrate CK had she not been successful in removing his hand from the front of her pants, and,
therefore, the trial court properly denied the motion for directed verdict.
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Hilda R. Gage
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