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People v. Moten6/10/2003
nless a failure to review the issue would result in a miscarriage of justice. See People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
When credibility is an issue, a prosecutor may draw the jury's attention to those facts that make the defense's witnesses, including a defendant, less believable. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). A prosecutor need not illustrate credibility flaws in bland terms, but rather may vividly contrast the opposing witnesses' credibility. Id. In this case, the prosecutor's comments do not amount to more than a request that the jury compare the witnesses' motives to fabricate, so they were not objectionable.
Defendant next argues that he was deprived of his right to counsel when his trial counsel failed to object to these errors and preserve an objection to the inadmissibility of defendant's prior statement. To the contrary, defendant's trial counsel did adequately preserve the issue concerning defendant's statement because the context of the questioning adequately reflected the substance of the statement. See MRE 103(a)(2). Moreover, because the issues raised by defendant do not amount to error, his trial counsel was not required to object to them. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Finally, defendant argues that the trial court erred when it assigned him fifty points on offense variable (OV) 7. We disagree. Whether a sentence imposed by a trial court accords with the statutory guidelines is a question of law reviewed de novo. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). When evidence supports a score that a trial court gives a defendant on a particular variable, however, this Court will not disturb that score absent an abuse of the trial court's discretion. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Former MCL 777.37, in effect at the time of defendant's sentencing before amendment by 2002 PA 137, provides that a defendant warrants fifty points on OV 7 when the defendant's conduct constitutes "aggravated physical abuse." Evidence in this case indicated that defendant secretly entered the victim's home and waited in a spare room. Defendant then suddenly grabbed the victim as she passed by and lifted her into her bedroom where he forced her to perform and submit to sexual acts. Under these circumstances, the trial court had sufficient evidence on which to base a score of fifty points for OV 7.
Affirmed.
E. Thomas Fitzgerald
Joel P. Hoekstra
Peter D. O'Connell
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