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April 21, 2005
v No. 254640
Wayne Circuit Court

LC No. 03-009003-01



Defendant appeals as of right his jury trial convictions for one count of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(b), and one count of second-degree criminal
sexual conduct (CSC II), MCL 750.520c(1)(b). The jury acquitted defendant of four additional
counts of CSC I. Defendant was sentenced to concurrent prison terms of twelve to twenty years
for CSC I and seven and one-half to fifteen years for CSC II. We affirm.
Defendant first argues that he was denied a fair trial because of prosecutorial misconduct.
We disagree. Defendant did not object to any of the allegations of prosecutorial misconduct.
Therefore, we review to determine if there was plain error that affected defendant?s substantial
rights. People v Rodriguez, 251 Mich App 10, 32; 650 NW2d 96 (2002). ?Reversal is warranted
only when plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings.? People v Callon,
256 Mich App 312, 329; 662 NW2d 501 (2003). Additionally, this Court will not find error
requiring reversal where a curative instruction by the trial court could have alleviated any
prejudice to the defendant. Id. at 329-330.
Defendant argues that the prosecutor improperly questioned him about the credibility of
certain witnesses. We agree that it is improper for the prosecutor to ask a witness, including the
defendant, to comment on the credibility of another witness. People v Buckey, 424 Mich 1, 17;
378 NW2d 432 (1985). However, the questions ?are curable with a limiting instruction? from
the court. People v Messenger, 221 Mich App 171, 180; 561 NW2d 463 (1997). Here, the trial
court sua sponte instructed the jury that it was to disregard testimony from a witness that another
witness was truthful or untruthful and that the jury alone was to determine credibility. Because
jurors are presumed to follow the instructions given, People v Rodgers, 248 Mich App 702, 717;
645 NW2d 294 (2001), the curative instruction alleviated any possible prejudice to defendant.
Messenger, supra at 180.

Defendant next argues that the prosecutor engaged in misconduct by making remarks
during her rebuttal closing statement that were meant to appeal to the jury?s sympathy for the
victim and her mother. People v Wise, 134 Mich App 82, 104; 351 NW2d 255 (1984). We have
reviewed the challenged comments and do not find them to be a blatant and improper appeal to
the jury?s sympathy. Counsel was not suggesting that the jury should convict regardless of the
evidence. Rather, the comments were tied to the evidence presented at the trial and were clearly
made in response to characterizations raised in defense counsel?s closing argument.
Defendant also argues that the cumulative effect of the errors denied him a fair trial.
However, ??only actual errors are aggregated to determine their cumulative effect,?? People v
Rice (On Remand), 235 Mich App 429, 448; 597 NW2d 843 (1999), quoting People v Bahoda,
448 Mich 261, 292 n 64; 531 NW2d 659 (1995). Having found only one instance of harmless
error, defendant?s argument fails.
We also reject defendant?s argument that his counsel was ineffective for failing to object
to the above alleged instances of prosecutorial misconduct. Because there was no Ginther1
hearing held in the trial court, this Court?s review is limited to mistakes that are apparent from
the lower court record. People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611
(2003). Because the prosecutor?s rebuttal argument was proper, defendant?s trial counsel could
not have been ineffective for failing to object to it. Counsel is not ineffective for failing to make
a meritless objection. Id. at 142. Although we conclude it was error for the prosecutor to
question defendant about the credibility of other witnesses, this error was not prejudicial to
defendant, primarily because the trial court gave a curative instruction to the jury, even without
an objection by defense counsel. Therefore, defendant cannot show that ?there is a reasonable
probability that . . . the result of the proceeding would have been different? had counsel objected
to the prosecutor?s questioning. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984).
Defendant finally argues that he is entitled to resentencing based on the United States
Supreme Court?s decision in Blakely v Washington, 542 US___; 124 S Ct 2531, 2536; 159 L Ed
2d 403 (2004). However, our Supreme Court in People v Claypool, 470 Mich 715, 730 n 14;
684 NW2d 278 (2004), specifically opined that Blakely does not affect Michigan?s sentencing
scheme. Defendant argues that our Supreme Court wrongly concluded that Blakely does not
apply and urges us to reject it. However, this Court is bound by the decision in Claypool. See
People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004).
/s/ Richard Allen Griffin
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra


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