PEOPLE OF MI V OSCAR Y HARRIS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 7, 2003
Plaintiff-Appellee,
V
No. 232191
Wayne Circuit Court
LC No. 99-007777
OSCAR Y. HARRIS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
V
No. 232192
Wayne Circuit Court
LC No. 99-007776
OSCAR Y. HARRIS,
Defendant-Appellant.
Before: Smolenski, P.J., and Talbot and Wilder, JJ.
PER CURIAM.
In these consolidated appeals, defendant appeals as of right from his jury trial convictions
of three counts of first-degree criminal sexual conduct, MCL 750.520b(1)(c) (sexual penetration
occurring during the commission of a felony), three counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(e) (sexual penetration by an actor armed with a weapon), two counts
of armed robbery, MCL 750.529, two counts of possession of a firearm during the commission
of a felony, MCL 750.227b, one count of carjacking, MCL 750.529a, and one count of
kidnapping, MCL 750.349. We affirm defendant’s convictions, but remand this case to the trial
court to enter a corrected judgment of sentence.
I. Ineffective Assistance of Counsel
First, defendant argues that he was denied the effective assistance of counsel based on
several alleged errors. We disagree.
-1-
Our review of defendant’s ineffective assistance claim is limited to errors apparent on the
record because no Ginther1 hearing was held. People v Williams, 223 Mich App 409, 414; 566
NW2d 649 (1997). In order to prevail on a claim that counsel was ineffective, a defendant must
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 Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
The defendant must overcome the presumption that the challenged action might be considered
sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).
Defendant first claims that trial counsel was ineffective in failing to keep the two cases
severed from each other. We disagree. The prosecution moved to present evidence of the
incidents in one case as MRE 404(b) evidence in the other case, and the trial court subsequently
granted the prosecution’s motion. Following this ruling, defendant’s attorney at that time2,
moved to join the cases and to try them simultaneously. The trial court granted this motion.
At trial, defense counsel attempted to distinguish between the crimes committed against
the two victims, working on a theory that the victims had misidentified their attacker. Defendant
challenges this strategy, speculating that the admission of such evidence would not have had the
same prejudicial effect at separate trials as they might have had in these consolidated trials.
Nevertheless, defendant does not assert that the “other acts” evidence was inadmissible. “[T]his
Court will not second-guess counsel regarding matters of trial strategy, and even if defense
counsel was ultimately mistaken, this Court will not assess counsel’s competence with the
benefit of hindsight.” People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843
(1999). We find that trial counsel’s decision to try the cases together in an attempt to distinguish
the cases in support of defendant’s theory of misidentification was not ineffective assistance.
Defendant next claims that he was deprived of effective assistance of counsel because
defense counsel was allegedly unprepared for trial. The only basis for this allegation is the fact
that trial counsel became involved in these cases approximately two months prior to trial.
“When making a claim of defense counsel’s unpreparedness, a defendant is required to show
prejudice resulting from this alleged lack of preparation.” People v Caballero, 184 Mich App
636, 640; 459 NW2d 80 (1990). In the instant case, defendant has failed to demonstrate how he
was prejudiced from trial counsel’s alleged lack of preparation.
Next, defendant asserts, in propria persona, that trial counsel was ineffective because she
failed to call certain witnesses at trial. Prior to jury voir dire, trial counsel advised the trial court
that the day before trial defendant had requested that trial counsel present four witnesses at the
trial. There is no evidence that defendant had requested any of his prior counsel to secure these
witnesses for trial. In addition, the prosecution had not listed or endorsed these individuals as
witnesses, and the record does not support defendant’s assertion that they were res gestae
witnesses. Accordingly, we cannot find that defendant has overcome the presumption that the
decision not to request the trial court to permit these individuals to be added as witnesses on the
first day of trial was trial strategy. Leonard, supra at 592.
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
2
Defendant was eventually represented by a total of five attorneys.
-2-
Defendant next argues, in propria persona, that trial counsel committed several errors
regarding DNA evidence. First, defendant claims that trial counsel was ineffective because she
failed to make a particularized showing of need for the appointment of a DNA expert when she
requested such an expert, and that trial counsel failed to adequately cross-examine the
prosecution’s DNA expert. We disagree. In Leonard, supra at 583-584, this Court stated that “a
defendant is not entitled to a DNA expert without making a particularized showing of a need for
the expert.” Here, defendant broadly asserts that such a particularized showing was not made.
At trial, during the cross-examination of the prosecution’s DNA expert, trial counsel elicited
testimony that, although defendant could not be excluded as a donor, the report did not positively
identify defendant as a donor either. The inconclusive results, therefore, neither bolstered nor
detracted from defendant’s or the prosecution’s theory of the case. As defendant could not be
positively identified or excluded as a contributor of the DNA material based on the testimony of
the prosecution’s expert witness, defendant has failed to demonstrate a particularized need for
the appointment of a DNA expert. Further, defendant has failed to overcome the presumption
that trial counsel’s cross-examination of the DNA expert was sound trial strategy. Leonard,
supra at 592.
Defendant next argues, in propria persona, that trial counsel was ineffective for failing to
request statistical analysis evidence regarding the DNA evidence. In People v Coy, 243 Mich
App 283, 301-302; 620 NW2d 888 (2000), this Court held that there must be some qualitative or
quantitative interpretation or statistical analysis indicating the significance of a potential DNA
match when DNA evidence is presented. Specifically, the Coy Court determined that expert
witness testimony that the defendant’s DNA was consistent with a mixed blood sample was
inadmissible because there was no statistical evidence to clarify the significance of the possible
DNA match. Id. However, the Coy Court emphasized that “by no means should our decision be
construed to suggest that the admission of DNA testing evidence lacking the accompanying,
interpretive statistical analysis in every case represents error requiring reversal.” Id. at 313.
We find that the instant case may easily be distinguished from Coy, and that trial
counsel’s failure to request such statistical analysis did not deprive defendant of the effective
assistance of counsel. In Coy, the sole purpose of the DNA evidence was to place the defendant
at the scene of the murder. There was no testimony that positively put the defendant in the
victim’s apartment at the time of the murder. Id. at 304-305. In the instant case, the first victim
testified that defendant jumped into her car and ordered her to drive at gunpoint. The victim
drove to a secluded area, at defendant’s direction, where defendant robbed and sexually assaulted
her. These incidents took place during daylight hours. Finally, the victim was able to identify
defendant in a photographic array, and also positively identified defendant as the person who
robbed and assaulted her at trial. Similarly, the second victim testified that defendant ordered
her into the car at gunpoint. Defendant drove to a secluded area where he robbed and sexually
assaulted the second victim. Again, these incidents occurred during daylight hours. Finally, this
victim was also able to identify defendant in a photographic array, and also identified defendant
as the person who robbed her and assaulted her at trial. Because there was significant other
evidence to support defendant’s convictions, we question the effect that the statistical analysis
evidence would have had on the trial. Accordingly, defendant has failed to overcome the
presumption that the challenged inaction was trial strategy. Leonard, supra at 592.
-3-
Defendant also argues, in propria persona, that trial counsel was ineffective for failing to
require the prosecution to establish that generally accepted laboratory procedures were followed.
Defendant relies on People v Adams, 195 Mich App 267, 277; 489 NW2d 192 (1992), mod on
other grounds 441 Mich 916 (1993), to support his argument. The Adams Court stated, “Given
the overall acceptance of the technique in other jurisdictions, we hold that trial courts may take
judicial notice of the reliability of DNA identification testing . . . [N]evertheless, before a trial
court admits the test results into evidence, the prosecutor must establish in each particular case
that the generally accepted laboratory procedures were followed.” Id. Defendant merely states
that trial counsel’s failure to request the prosecution to establish that the generally accepted
laboratory procedures were followed in this case rendered her ineffective. Defendant sets forth
no challenge to the reliability of the testimony relating to the DNA evidence and has not
demonstrated that the expert did not follow proper procedures in conducting the DNA tests.
Finally, there was other significant evidence supporting defendant’s convictions. Accordingly,
defendant has failed to overcome the presumption that the challenged inaction was trial strategy.
Leonard, supra at 592.
Defendant next argues, in propria persona, that trial counsel was ineffective for failing to
request DNA testing of the car utilized in both assaults because the assailant’s DNA could have
been left in the car, which would have exonerated defendant. In People v Sawyer, 215 Mich App
183, 192; 545 NW2d 6 (1996), this Court held that reversal was not required where the trial court
refused to order DNA testing of a semen stain on the complainant’s underwear. The Sawyer
Court determined that the defendant’s exculpatory theory about the evidence was highly
speculative. Id. Similarly, we find defendant’s exculpatory theory about the evidence highly
speculative. In light of the significant identification evidence presented at trial and the
speculative nature of defendant’s newly proposed defense theory, we conclude that trial counsel
was not ineffective on this basis. Additionally, we conclude that defendant has failed to
demonstrate that there were cumulative errors requiring reversal of his convictions.
II. Sufficiency of the Evidence
Defendant next contends that there was insufficient evidence to support his convictions of
first-degree criminal sexual conduct while armed and armed robbery, on the basis there was no
evidence that defendant was armed at the time of the sexual assaults or the robberies. We
disagree. “When reviewing a claim regarding the sufficiency of the evidence, this Court
examines the evidence in a light most favorable to the prosecution to determine if a rational jury
could find that the essential elements of the offense were proved beyond a reasonable doubt.”
People v Joseph, 237 Mich App 18, 20; 601 NW2d 882 (1999).
MCL 750.520b(1)(e) states, “A person is guilty of criminal sexual conduct in the firstdegree if he or she engages in sexual penetration with another person and if . . . [t]he actor is
armed with a weapon or any article used or fashioned in a manner to lead the victim to
reasonably believe it to be a weapon.” In People v Proveaux, 157 Mich App 357, 361-362; 403
NW2d 135 (1987), this Court determined that the defendant was “armed” for purposes of MCL
750.520b(1)(e) when defendant had possession of a knife when he began his assault on the
victim. Id. at 362. Eventually, the victim somehow got the knife out of the defendant’s hand and
threw it toward some bushes or the street. Id. at 359-360. The defendant hit the victim, and had
sexual intercourse with the victim. Id. at 360. This Court stated the following:
-4-
It is enough that defendant began the assault with a knife, putting the
victim in fear and traumatizing her. The sexual penetration was part of a
continuing event beginning with the armed assault. Undoubtedly, the Legislature
intended to discourage the use of weapons by elevating forcible sexual
penetration to a first-degree offense when the offender is armed. The possession
of a weapon makes the sexual assault more reprehensible, increases the victim’s
danger, and lessens the victim’s chances of escape. People v Hurst, 132 Mich
App 148, 152; 346 NW2d 601 (1984). The statutory purpose of a higher penalty
for the more reprehensible crime must continue through the assault even if the
accused is disarmed in this fashion. A policy that prevents conviction of the firstdegree offense merely because at some point during the criminal transaction the
offender lost his weapon would not be consonant with the Legislature’s intent. A
rule requiring actual or constructive possession of the weapon through the course
of the sexual assault would mean that a defendant could first subdue the victim
with a weapon and then discard it before actual penetration. Such a rule would
mean that the victim’s actions in defending herself lessened the crime’s
seriousness. [Proveaux, supra at 362-363.]
In accordance with the Proveaux Court’s reasoning, we find that, although the two
victims did not see the weapon during the time of the sexual assaults, this had no effect on
whether the elements of first-degree criminal sexual conduct had been met. The first victim
testified that while she was waiting for her friend in the party store parking lot, defendant entered
the car and put a revolver to her neck. The victim testified that she was scared, and that
defendant held the revolver to her neck as he directed her to drive to a secluded construction site.
The second victim testified that defendant pointed a revolver at her, told her to get into the car,
and threatened to kill her. Defendant later told the second victim that he would not hurt her if
she did what he said. Although neither victim saw the gun during the sexual assault, the fact that
defendant began the assault with a weapon and put them in fear is sufficient to support the
charge. Proveaux, supra at 362.
Furthermore, in the instant case, there was no evidence that defendant no longer had the
weapon in his possession or that either victim disarmed defendant. “Circumstantial evidence and
reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.”
People v Whitehead, 238 Mich App 1, 14; 604 NW2d 737 (1999). Thus, the sexual assault of
each victim was part of a continuing event beginning with an armed assault. See Proveaux,
supra at 362. Accordingly, after reviewing the evidence in a light most favorable to the
prosecution, we find there was sufficient evidence to support defendant’s convictions of firstdegree criminal sexual conduct under MCL 750.520b(1)(e).
Similarly, the evidence was sufficient to support defendant’s convictions for armed
robbery. “The elements of armed robbery are (1) an assault and (2) a felonious taking of
property from the victim’s person or presence (3) while the defendant is armed with a dangerous
weapon.” People v Watkins, 247 Mich App 14, 33; 634 NW2d 370 (2001). “The offense of
assault requires proof that the defendant made either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
Id. In the case involving the first victim, the assault occurred when defendant put the gun to the
victim’s neck and instructed her to drive and the felonious taking of the victim’s property
-5-
occurred when defendant took her money without permission. Although the victim testified that
she did not know where the gun was at the time her money was taken, the jury could infer that
defendant retained possession of the gun at that time of the robbery as there was no indication
that defendant disposed of the gun or was otherwise deprived of the possession of the gun.
The second victim testified that defendant ordered her into the car at gunpoint and
threatened that he would not hurt her if she did what he said. This testimony was sufficient to
establish an assault. The felonious taking element was demonstrated by the victim’s testimony
that defendant took her money without permission. Although the second victim also did not
know where the gun was located at the time of the taking, the jury could infer that defendant
retained possession of the gun at the time of the robbery since again there was no indication that
defendant disposed of the gun or was otherwise deprived of the possession of the gun at the time
of the robbery. Accordingly, there was sufficient evidence to support defendant’s convictions of
armed robbery when reviewing the evidence in the light most favorable to the prosecution.
Whitehead, supra at 14.
III. Double Jeopardy
Defendant argues that his six first-degree criminal sexual conduct convictions constitute
multiple punishments for the same offense in violation of double jeopardy. We agree.
In Docket No. 232192, defendant was charged with four counts of first-degree criminal
sexual conduct on the basis of two sexual assaults involving penetration supported by alternative
theories, MCL 750.520b(1)(c) (sexual penetration occurring during the commission of a felony)
and MCL 750.520b(1)(e) (actor armed with a weapon). In Docket No. 232191, defendant was
charged with two counts of first-degree criminal sexual conduct, on the basis of one sexual
assault involving penetration supported by alternative theories, MCL 750.520b(1)(c) (sexual
penetration occurring during the commission of a felony) and MCL 750.520b(1)(e) (actor armed
with a weapon). Defendant was convicted by a jury of a total of six counts of first-degree
criminal sexual conduct.
In People v Mackle, 241 Mich App 583, 601; 617 NW2d 339, this Court held that “[t]he
double jeopardy prohibition includes subjecting a defendant to multiple punishments for a single
offense.” The Mackle Court noted the following:
In People v Bigelow, 229 Mich App 218; 581 NW2d 744 (1998), this
Court concluded that separate convictions and sentences for both premeditated
murder and felony murder, both of which arose from a single instance of criminal
conduct, violated the rule against double jeopardy. Id. at 220. The Court
remedied the double jeopardy problem by directing the lower court to amend the
judgment of sentence to reflect a single conviction and a single sentence for a
crime that was supported by two separate theories. Id. at 221-222. We likewise
remand this case to the trial court so that it may reflect that two alternate theories
supported each of the six counts of CSC I. Accordingly, we further direct the trial
court to vacate six of defendant’s twelve sentences for CSC I. [Mackle, supra at
601.]
-6-
We find the Mackle “remedy” applicable to this case. Therefore, we remand this case to
the trial court to amend the judgment of sentence to reflect that two alternate theories supported
defendant’s conviction on two counts in Docket No. 232192, and one count in Docket No.
232191. Additionally, we further direct the trial court to vacate two of defendant’s sentences for
first-degree criminal sexual conduct in Docket No. 232192, and one of defendant’s sentences for
first degree criminal sexual conduct in Docket No. 232191..
Additionally, although not raised on appeal, we find that defendant was improperly
sentenced to one count of kidnapping, MCL 750.349, in Docket No. 232192. Defendant was not
charged with kidnapping, and the jury was not instructed regarding the elements of kidnapping
for the charges relating to either victim. Finally, the verdict forms did not contain a count for
kidnapping. MCR 6.429(A) provides, “[t]he court may correct an invalid sentence, but the court
may not modify a valid sentence after it has been imposed except as provided by law.” In
People v Thomas, 447 Mich 390, 393; 523 NW2d 215 (1994), the Michigan Supreme Court
stated, “[w]here a court imposes a sentence that is partially invalid, the Legislature has provided
that the sentence is not to be ‘wholly reversed and annulled,’ but rather is to be set aside only ‘in
respect to the unlawful excess.’” Id., quoting MCL 769.24. In accordance with Thomas and
MCR 6.429(A), we also instruct the trial court to vacate defendant’s sentence for kidnapping in
Docket No. 232192. MCR 7.216(A)(7).
We affirm defendant’s convictions and remand this case for correction of defendant’s
sentence in accordance with this opinion. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
