PEOPLE OF MI V DANIEL ALLEN DREW JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 10, 2009
Plaintiff-Appellee,
V
No. 286825
Oakland Circuit Court
LC No. 2008-219534-FH
DANIEL ALLEN DREW, JR.,
Defendant-Appellant.
Before: Murphy, P.J., and Meter and Beckering, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of assault with intent to commit criminal
sexual conduct in the second degree, MCL 750.520g(2). The trial court sentenced defendant as a
second-offense habitual offender, MCL 769.10, to serve a term of imprisonment of three to
seven and one-half years. Defendant appeals as of right. We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
I. Facts
Complainant identified herself as 14 years old and in the eighth grade. She identified
defendant as her father, who was divorced from her mother. Complainant testified that, while
she was in the fifth grade, she was visiting defendant at the home of her aunt, and she and
defendant were sitting on a couch watching a movie, when defendant began rubbing her stomach
area, then went progressively higher. Complainant stated that she blocked defendant’s access to
her upper chest, because defendant “would have touched me in a way I didn’t want to.”
According to complainant, defendant later suggested that they keep their “little secret.” The
witness specified that defendant twice tried, but failed, to force her arms out of his way.
Complainant additionally testified that, while lying side-by-side on the couch with defendant, she
felt something on her “butt,” then specified that it was defendant’s “penis,” while defendant was
“[k]ind of like scooting forward,” making her very uncomfortable.
Complainant testified that on a subsequent visit defendant again started rubbing her
stomach area, in response to which she telephoned her mother and asked to come home.
Complainant recounted that after she got home she told her mother of defendant’s inappropriate
touching, and that she then ceased seeing defendant.
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Defendant was charged with criminal sexual conduct in the second degree1 along with
assault with intent to commit criminal sexual assault in the second degree, but the jury found him
guilty of only the latter.
II. Prosecutorial Misconduct
Defendant argues that certain arguments from the prosecuting attorney denied him a fair
trial. Defendant raised no objections at trial to the prosecutorial arguments of which he now
makes issue, thus leaving such issues unpreserved. Our review is thus limited to ascertaining if
there was plain error affecting substantial rights. People v Carines, 460 Mich 750, 761-764; 597
NW2d 130 (1999). Moreover, even if such an error is shown, the reviewing court should reverse
only when the defendant is actually innocent or the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings. Id. at 763-764. This Court has held that “‘[r]eview
of alleged prosecutorial misconduct is precluded unless the defendant timely and specifically
objects, except when an objection could not have cured the error, or failure to review the issue
would result in a miscarriage of justice.’” People v Unger, 278 Mich App 210, 234-235; 749
NW2d 272 (2008), quoting People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).
Defendant first argues that the prosecuting attorney improperly attempted to elicit
sympathy for the victim by way of the following passage from the opening statement:
And she is going to tell you that in many respects, she wished those
visitation[s] never happened, because the man that she wanted to know, the man that
she loved, the man who was her biological father, instead of reconnecting with her,
chose to use that time to sexually molest her.
Defendant asserts that the prosecuting attorney underscored the impropriety in closing argument:
And that excitement and the joy of being able to connect with her father,
was torn apart when the defendant, instead of engaging in behavior that is loving
and kind and caring, decided to use a time when they were lying on the couch
watching television, to satisfy his own deviant desires.
A prosecutor may not urge a jury to convict out of sympathy for the victim. See People v
Swartz, 171 Mich App 364, 372; 429 NW2d 905 (1988), and People v Wise, 134 Mich App 82,
104; 351 NW2d 255 (1984). However, a prosecutor is free to argue from the evidence, including
all reasonable inferences arising from it. People v Marji, 180 Mich App 525, 538; 447 NW2d
835 (1989), remanded on other grounds sub nom People v Thomas, 439 Mich 896 (1991). A
prosecutor need not confine argument to the “‘blandest of all possible terms.’” Marji, supra at
538, quoting People v Cowell, 44 Mich App 623, 628-629; 205 NW2d 600 (1973). Accordingly,
minimal argument that may tend to arouse sympathy for the victim is not prejudicial where, as
here, the bulk of the prosecutor’s arguments was properly tied to the evidence and applicable
law. See People v Siler, 171 Mich App 246, 258; 429 NW2d 865 (1988), superceded on other
grounds as stated in People v Orr, 275 Mich App 587 (2007) (“[a] prosecutor’s closing argument
1
MCL 750.520c(1)(a).
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should be considered in its entirety”). We conclude that the commentary here challenged fairly
reflected the prosecutor’s theory of the case, and had little potential to cause undue sympathies
for the victim. Further, the trial court instructed the jury not to let sympathy or prejudice
influence its decision. “It is well established that jurors are presumed to follow their
instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). For these reasons,
these prosecutorial statements warrant no appellate relief.
Defendant also protests that the prosecuting attorney improperly argued that
complainant’s testimony was “uncontradicted as it relates to what happened on that couch in the
defendant’s aunt’s home,” on the ground that only defendant could have contradicted complainant’s
account, and thus that the prosecuting attorney improperly used defendant’s decision not to testify in
arguing for guilt.
Although commentary to the effect that the prosecution’s evidence went unrebutted can
act as a reminder that the defendant chose not to testify, such comments should be reviewed in
context to determine whether they were “manifestly intended to be . . . of such a character that
the jury necessarily took them to be a comment on the failure of defendant to testify.” People v
Guenther, 188 Mich App 174, 179; 469 NW2d 59 (1991). Our review of the entire argument
reveals that the prosecutor’s remarks about complainant’s account’s being uncontroverted did
not at all focus attention on defendant’s silence. Instead, the argument emphasized the strength
of the prosecution’s case, not any weakness on the part of the defense. Further, the trial court
instructed the jury that defendant had an absolute right not to testify, and that it must not allow his
exercise of that right in this instance to affect the verdict in any way.
For these reasons, we reject defendant’s unpreserved claim of prosecutorial misconduct.
III. Offense Variable 13
Defendant argues that the trial court improperly scored Offense Variable (OV) 13. The
trial court assessed defendant 25 points for OV 13, which concerns continuing patterns of
criminal behavior. This is the total prescribed where the offense in question “was part of a
pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL
777.43(1)(c).
At sentencing, defense counsel objected to that score, protesting that defendant had only
two crimes against a person, which should bring a score of zero. A person identified as a
probation officer, presumably the one who prepared defendant’s presentence investigation report,
replied, “the defendant was convicted of the one crime in question. It was additionally reported
that she reported to authorities that he touched her in the same way on two separate occasions,
totaling three.” The court overruled the defense objection without elaboration.
“This Court will uphold the trial court’s scoring of the guidelines if there is evidence to
support it.” People v Phillips, 251 Mich App 100, 108; 649 NW2d 407 (2002), aff’d 469 Mich
390 (2003). Information relied upon may come from various sources, including some that would
not be admissible at trial, e.g., a presentence investigator’s report. People v Potrafka, 140 Mich
App 749, 751-752; 366 NW2d 35 (1985). See also MRE 1101(b)(3) (the rules of evidence do
not apply to sentencing proceedings).
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Defendant asserts, without elaboration or citation of authority, that “the two separate
charges constitute only one scorable charge.” Defendant is mistaken. “For determining the
appropriate points under this variable, all crimes within a 5-year period, including the sentencing
offense, shall be counted regardless of whether the offense resulted in a conviction.” MCL
777.43(2)(a). Complainant described two separate occasions where defendant rubbed her
suggestively, with designs on reaching her breasts, and reported that on one of those occasions
he pressed his erect penis against her rectal area. The trial court did not err in counting both
incidents for purposes of scoring OV 13. See People v Wilkens, 267 Mich App 728, 743-744;
705 NW2d 728 (2005); People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001).
At the preliminary examination, complainant described the same kind of improper
contacts coming from defendant, stated that she had visited defendant “[a]bout four” times, and
added that “it happened every time I was over there.” Defendant argues that such innuendoes
concerning how many times he engaged in improper behavior with her, beyond the matters over
which he was charged, were insufficient to conclude for purposes of sentencing that he had
committed three or more crimes against a person in the specified period. We need not decide
that question, however, because an adequate basis for the scoring of OV 13 is apparent on the
record without recourse to additional allegations of sexual misconduct by defendant against his
daughter.
At sentencing, defense counsel stated that defendant’s presentence investigation report
was “factually accurate,” and thus that the defense proposed “no additions or deletions.” That
concededly accurate report lists among defendant’s earlier convictions one for resisting or
assaulting a police officer, dating from 2002. That, plus the two offenses underlying the instant
proceedings, add up to three crimes against a person within a five-year period.
For these reasons, we reject defendant’s challenge to the trial court’s decision to assess
25 points for OV 13.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Jane M. Beckering
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