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People v. Dahlstrom12/1/2005
rousal or gratification, a sexual purpose, or in a sexual manner for revenge, to inflict humiliation, or out of anger. The victim testified that defendant ripped, grabbed, pinched, and pulled at her breasts while referring to her as a "whore" and a "slut." The evidence shows that defendant expressed that he assaulted the victim because he believed that she was sexually involved with another man. This supports an inference that defendant was touching her breasts for revenge, to inflict humiliation, or out of anger.
Defendant also maintains that this Court must overturn his CSC II convictions on double jeopardy grounds because his CSC I and CSC II convictions arose out of the same incident. As the prosecutor correctly states, defendant failed to properly present this issue for review by setting it forth in his statement of questions presented. People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000). However, we also reject this double jeopardy argument on its merits. Here, separate and distinct conduct supported each of defendant's convictions. Specifically, defendant used force to digitally penetrate the victim and to make sexual contact with both her right and left breasts. Although the force used to accomplish all three sexual contacts and the resulting personal injury were intermingled, this fact does not prevent defendant's convictions of the separate charges. See People v Martinez, 190 Mich App 442, 444-445; 476 NW2d 641 (1991). Accordingly, we conclude that defendant's convictions for CSC I and CSC II were each based on distinct conduct and that the Legislature intended that each crime be punished separately.
II. Sentencing
Defendant also asserts that he is entitled to resentencing based on certain alleged scoring errors and because the trial court relied on certain information in the Presentence Information Report (PSIR). However, defense counsel affirmatively stated at sentencing that both she and defendant reviewed the PSIR and found it "to be factually accurate." Thus, this issue has been waived. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Defendant also argues, for the first time on appeal, that he is entitled to resentencing under Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). In People v Claypool, 470 Mich 715; 684 NW2d 278 (2004), a majority of the Justices of our Supreme Court opined that Blakely is inapplicable to guidelines scoring in Michigan's sentencing scheme. Id. at 730-731 n 14 (Taylor, J., joined by Markman, J.), 741 (Cavanagh, J.), 744 (Weaver, J.). Defendant argues that the decision in Claypool should be revisited because it was only stated in dicta, but this Court has specifically rejected that contention. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004), lv gtd 472 Mich 881 (2005). Accordingly, defendant's Blakely argument fails.
III. Prosecutor's Conduct
Defendant argues that misconduct by the prosecutor deprived him of a fair trial. Because defendant did not timely object to any of the actions he now claims constitute prosecutorial misconduct, appellate review is precluded unless an objection could not have cured the error or a failure to review the issue would result in a miscarriage of justice. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). Further, appellate review of this unpreserved issue is only for plain error affecting substantial rights. Id.
Many of the claims of error defendant asserts within this issue actually relate to alleged evidentiary errors and not prosecutorial misconduct. " rosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence." People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (
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