Defendant was convicted by a jury of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), (2)(b), and was acquitted of another count of CSC-I. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 25 to 40 years in prison. On appeal, defendant argues that the prosecutor made several comments that constituted misconduct, and that the trial court abused its discretion by denying his request for a jury instruction on second-degree criminal sexual conduct (CSC-II), a cognate offense. We affirm.
I. PROSECUTORIAL ERROR
Defendant first argues that comments made by the prosecutor during his closing and rebuttal arguments were improper because they denigrated the defense and argued facts not based on evidence. Further, according to defendant, the comments prejudiced him by vouching for the complainant's credibility while suggesting that defendant and the defense were not credible. Trial counsel did not object to any of the cited comments, which defendant argues constituted ineffective assistance of counsel. We conclude that, when considered in context, the prosecutor's comments were not improper, and that defense counsel was not ineffective for failing to object to them.
A prosecutor may not vouch for the credibility of a witness. People v Reed, 449 Mich. 375, 398; 535 N.W.2d 496 (1995) (opinion by BOYLE, J.). However, the prosecutor's comments must be read as a whole and "evaluated in light of the relationship or lack of relationship they bear to the evidence admitted at trial." Id. at 398-399 (citation and quotation marks omitted). Our review of the prosecutor's comments does not turn on whether any "magic words" were used: "The crucial inquiry is not whether the prosecutor said `We know' or `I know' or `I believe,' but rather whether the prosecutor was attempting to vouch for the defendant's guilt." Id. at 399. Additionally, prosecutors should refrain from making arguments that appeal to the jury's civic duty, and "must refrain from denigrating a defendant with intemperate and prejudicial remarks." People v Bahoda, 448 Mich. 261, 282-283; 531 N.W.2d 659 (1995). Any such comments made during closing argument will be reviewed in context "to determine whether they constitute error requiring reversal." Id. at 283.
Defendant first argues that the following comment constituted improper vouching for the complainant's credibility:
We do not view this statement as a reference to the complainant's credibility, but rather as a comment on the nature of the facts presented. The prosecutor essentially argued that while a stereotypical version of a sexual assault against a child might involve the stranger on the playground, in the instant case the complainant had testified that someone she knew had assaulted her—or, as the prosecutor put it, "[a] person of trust and authority over a child violat[ed] that very sacred bond." In other words, the prosecutor was suggesting that sexual assault of children does not necessarily occur at the hands of strangers, but is more likely to be perpetrated by a person the child knows, and that the complainant's actions made sense in light of this fact. Additionally, the prosecutor presented an expert forensic interviewer who testified that children often delay disclosure when the person who abused them was a loved one or family member. When viewed in context of the evidence and arguments presented at trial, the prosecutor's assertion that the case concerned a "real world" sexual assault, and by extension, that the complainant's behavior should be understood in this context, was not improper.
Similarly, the prosecutor did not improperly vouch for the complainant's credibility when he stated:
These statements were based on evidence admitted at trial. The complainant's mother testified that the complainant had lied about small things, such as whether she had completed her homework; thus, the prosecutor apparently sought to reframe this testimony. Additionally, the prosecutor's use of the word "believe" did not automatically indicate improper vouching. Reed, 449 Mich at 399 (opinion by BOYLE, J.). Notably, the prosecutor did not state that "he believed" the complainant, but rather that he intended to explain to the jury why they "should believe" the complainant. Pursuant to Reed, this was not improper vouching.
Next, defendant argues that the prosecutor disparaged the defense when he stated: "We're not in the business of fabricating eyewitnesses or calling people that don't offer additional help to jurors."
Defendant also asserts that the prosecution improperly appealed to the jury's sympathy and civic duty by stating:
We disagree with defendant's characterization that this was a request to convict defendant in order to protect children. Here again, we conclude that the comments were a reasonable response to defense counsel's arguments. Defense counsel argued that "[w]e will all be celebrating Independence Day this weekend, . . . and we celebrate the freedoms that we all enjoy and that we all are entitled to," including the right to "the presumption of innocence maintained unless there's proof beyond a reasonable doubt." In rebuttal argument, the prosecutor made the above comments. When considered in context, these comments were not an improper appeal to the jury's sympathy or civic duty, but rather a response to defense counsel's argument regarding the "freedoms" to which persons are entitled in the United States. Thus, the prosecutor's comments were not error. See Bahoda, 448 Mich at 282-283; People v Kennebrew, 220 Mich.App. 601, 608; 560 N.W.2d 354 (1996) (holding that "an otherwise improper remark may not rise to an error requiring reversal when the prosecutor is responding to the defense counsel's argument").
Finally, defendant takes issue with the following:
We conclude that these comments were a permissible reference to the evidence of defendant's prior sexual misconduct, admitted at trial pursuant to MCL 768.27a. In People v Watkins, 491 Mich. 450, 476; 818 N.W.2d 296 (2012), the Michigan Supreme Court held that MCL 768.27a "reflects a substantive legislative determination that juries should be privy to a defendant's behavioral history in cases charging the defendant with sexual misconduct against a minor." The prosecutor's comment was part of a proper summary of the prosecution's presentation of the case, which included N.L.'s testimony that defendant had sexually assaulted her and that the alleged assaults were not reported to law enforcement. The comments were not, as defendant contends, an encouragement to the jury to convict defendant because defendant had allegedly assaulted N.L. and had never been punished for it. Thus, these comments were not error.
Because the prosecutor's statements were not error, defendant's argument that trial counsel was ineffective for failing to preserve this issue by timely objecting to the prosecutor's statements is not persuasive. See People v Gist, 188 Mich.App. 610, 613; 470 N.W.2d 475 (1991) (defense counsel was not ineffective for failing to object where an objection would have been pointless).
II. JURY INSTRUCTIONS
Defense counsel requested, at trial, a jury instruction on CSC-II. According to the defense, the instruction was appropriate based on testimony at trial, ostensibly from the investigating detective, that defendant had accidentally touched the complainant on her breast. The trial court declined defense counsel's request because CSC-II was not a lesser included offense of CSC-I, as required by People v Cornell, 466 Mich. 335; 646 N.W.2d 127 (2002). In addition, the court noted that the touching element was "not really a disputed element in this case here because [complainant did not claim there was a mere touching and] the defendant has said, `I didn't do it at all.' . . . `I didn't touch her in any way;'" the court found that the only disputed element was whether the first-degree CSC was "completed." The court also noted that the prosecutor had not charged defendant with touching the complainant's breast, incidentally or purposefully. Thus, because "[t]here was no incidental touching except as it might relate to the breast, and the breast has not been charged," the court concluded that there was no support in the record for an instruction on a lesser offense.
In Cornell, the Court held that "a requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." Id. at 357. MCL 768.32(1) provides, in pertinent part, as follows:
The Court stated that pursuant to this interpretation, "the defendant's due process notice rights are not violated because all the elements of the lesser offense have already been alleged by charging the defendant with the greater offense." Cornell, 466 Mich at 354-355 (citation and quotation marks omitted).
In People v Nyx, 479 Mich. 112, 116; 734 N.W.2d 548 (2007) (opinion by TAYLOR, C.J.), the Court considered whether the prosecutor was entitled to an instruction on sCSC-II when the defendant had been charged with CSC-I. Nyx, at 116. The Court concluded that the prosecutor was not entitled to the instruction because "[t]he elements of CSC II are not all subsumed within CSC I;" thus, CSC-II was not a lesser included offense of CSC I and the defendant could not be convicted of CSC-II consistent with MCL 768.32. Id. at 117. The Nyx Court further stated:
"A cognate lesser offense is one that shares elements with the charged offense but contains at least one element not found in the higher offense." Id. at 118 n 14 (citation omitted). Consistent with Cornell and other cases, the Court held in Nyx that "MCL 768.32(1) precludes a judge or a jury from convicting a defendant of a cognate lesser offense. . . ." Id. at 121.
Here, defendant acknowledges that, under Cornell, MCL 768.32(1) does not permit cognate offense instructions. Cornell, 466 Mich at 359. Defendant does not argue that Cornell was incorrectly decided, but argues that this Court should conclude that Cornell and Nyx do not preclude an instruction on the cognate offense of CSC-II under the "unique circumstances" of this case. The "uniqueness" of defendant's case is apparently the fact that the defense, rather than the prosecution, requested an instruction on a cognate offense. However, defendant has not pointed to any authority that supports his contention that a defendant may ask the fact-finder to consider a cognate offense. Certainly, our Supreme Court was concerned with protecting a defendant's right to adequate notice in Cornell and Nyx, as defendant argues; however, the Court also clearly indicated that its intention was to clarify its interpretation of MCL 768.32(1). See Id. at 357 ("We believe that this analysis is consistent with our prior case law and equally applicable to MCL 768.32."); Nyx, 479 Mich at 122-123 (opinion by TAYLOR, C.J.) (declining plaintiff's request to hold that instructions on cognate offenses should be given in cases where the Legislature has divided crimes into degrees: "We are persuaded that the bright-line rule of Cornell, which simply precludes conviction of cognate lesser offenses no matter the charge, is consistent with MCL 768.32(1) and is thus preferable"). Because defendant's argument that our Supreme Court did not intend for MCL 768.32 to preclude instructions on cognate offenses in cases where the instruction was requested by the defense is not supported by relevant authority, he was not entitled to an instruction on CSC-II.
Defendant also argues that application of Cornell and Nyx to the instant case prevented him from presenting his preferred defense, in violation of his constitutional rights. We note that a defendant's right to present a defense is not unlimited, and are not persuaded that the trial court's decision was in error. "It is well established that the right to assert a defense may be limited by `established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'" People v Shahideh, 482 Mich. 1156, 1164 n 15 (2008) (TAYLOR, C.J., concurring), quoting Chambers v Mississippi, 410 U.S. 284, 302; 93 S.Ct. 1038; 35 L Ed 2d 297 (1973). The Court's decision in Cornell was designed to promote reliability in the interpretation of MCL 768.32(1), as well as fairness in the application of the rule in various criminal cases. Moreover, defendant's right to present the defense he now asserts was not impeded by the court's decision. Defendant was still free to argue that he had accidentally touched the complainant on her breast. Had the jury believed this argument, defendant would presumably have been acquitted of CSC-I, which would have been a more desirable result for him than a conviction for CSC-II. Defendant is not entitled to reversal.