STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 19, 2016
               Plaintiff-Appellee,

v                                                                   No. 325949
                                                                    Emmet Circuit Court
DONOVAN WAYNE FLUHART,                                              LC No. 14-004041-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and HOEKSTRA and SHAPIRO, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of two counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(f) (force or coercion causing personal injury), one
count of second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(f) (force or
coercion causing personal injury), and one count of assault with intent to commit sexual
penetration, MCL 750.520g(1). Defendant was sentenced as a habitual offender, second offense,
MCL 769.10, to concurrent prison terms of 15 to 50 years for the two CSC I convictions, 7 to
22½ years for the CSC II conviction, and 3 to 15 years for the assault conviction. Defendant
appeals as of right. For the reasons explained in this opinion, we affirm defendant’s convictions,
but remand with regard to his sentence pursuant to People v Lockridge, 498 Mich. 358; 870
NW2d 502 (2015).

         In July of 2014, defendant and the victim spent the evening with some mutual friends in a
trailer, drinking and smoking marijuana. At some point, the victim went to take a shower alone.
After the others in the trailer left or had gone to sleep, defendant went into the bathroom
uninvited and then sexually assaulted the victim. Sometime after defendant left, the victim
called a friend to tell her about the incident, the victim went to the hospital where she underwent
a sexual assault exam, and the assault was reported to the police.

        When interviewed by the police, defendant admitted to a sexual encounter with the
victim, but he maintained that the events were consensual. He asserted that there had perhaps
been a “misunderstanding” or that the victim made the allegations because defendant “kind of
treat[ed] her like a slut.” At trial, defense counsel argued that the sex was consensual. The jury
convicted defendant as noted above, and defendant now appeals as of right.

                            I. SUFFICIENCY OF THE EVIDENCE


                                                -1-
        Defendant first argues that there was insufficient evidence to support his CSC I
convictions. In particular, defendant asserts that the prosecutor failed to present sufficient
evidence of “personal injury” to the victim, in the form of either physical injury or mental
anguish, as required to maintain defendant’s convictions under MCL 750.520b(1)(f). Regarding
physical injury, defendant argues that the victim suffered no vaginal injuries and only some
minor bruises and scratches, which the prosecution failed to connect to the sexual assaults. In
terms of mental anguish, defendant concedes that the victim was crying and hysterical following
the incident, but defendant argues that such a reaction is typical of a victim of sexual assault and
insufficient to establish “mental anguish” within the meaning of MCL 750.520b(1)(f).

        “A claim of insufficient evidence is reviewed de novo, in a light most favorable to the
prosecution, to determine whether the evidence would justify a rational jury’s finding that the
defendant was guilty beyond a reasonable doubt.” People v McGhee, 268 Mich. App. 600, 622;
709 NW2d 595 (2005). Circumstantial evidence and reasonable inferences therefrom are
sufficient to establish the elements of a crime. People v Ericksen, 288 Mich. App. 192, 196; 793
NW2d 120 (2010). “It is the jury's duty to determine the weight to be accorded any inferences,”
and this Court will “not interfere with the jury's assessment of the weight and credibility of
witnesses or the evidence.” People v Dunigan, 299 Mich. App. 579, 582; 831 NW2d 243 (2013).

       Defendant was convicted under MCL 750.520b, which states, in pertinent part:

       (1) A person is guilty of criminal sexual conduct in the first degree if he or she
       engages in sexual penetration with another person and if any of the following
       circumstances exists:

                                              * * *

       (f) The actor causes personal injury to the victim and force or coercion is used to
       accomplish sexual penetration. . . . [MCL 750.520b (emphasis added).]

“Personal injury” under the statute “means bodily injury, disfigurement, mental anguish, chronic
pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL
750.520a(n). Bodily injury, mental anguish, and the other conditions “are merely different ways
of defining the single element of personal injury” and “if the evidence of any one of the listed
definitions is sufficient, then the element of personal injury has been proven.” People v Asevedo,
217 Mich. App. 393, 397; 551 NW2d 478 (1996).

        To constitute bodily injury, the physical injuries suffered “need not be permanent or
substantial.” People v Mackle, 241 Mich. App. 583, 596; 617 NW2d 339 (2000). For example,
evidence that the victim sustained “bruises, welts, or other marks,” even if not particularly
serious, may be sufficient to support a conviction. People v Himmelein, 177 Mich. App. 365, 377-
378; 442 NW2d 667 (1989). Bodily injury need not occur simultaneously with the sexual
penetration, but there must be circumstances that connect the personal injury to the assault. See
Mackle, 241 Mich. App. at 598-600.

       In comparison, to prove mental anguish, “the prosecution is required to produce evidence
from which a rational trier of fact could conclude, beyond a reasonable doubt, that the victim
experienced extreme or excruciating pain, distress, or suffering of the mind.” People v Petrella,
                                                -2-
424 Mich. 221, 259; 380 NW2d 11 (1985). In determining the existence of “mental anguish,” a
reviewing court may consider whether (1) the victim was upset, crying, sobbing, or hysterical
during or after the assault; (2) the need for psychiatric or psychological care or treatment; (3)
interference with the victim’s ability to conduct a normal life, such as absence from the
workplace; (4) fear for the victim’s life or safety; (5) feelings of anger and humiliation; (6) use of
prescription medication to treat anxiety, insomnia or other symptoms; (7) evidence that the
emotional or psychological effects of the assault were long-lasting; (8) a lingering fear, anxiety,
or apprehension about being in vulnerable situations; and (9) the fact that the assailant is the
victim’s natural father. Id., at 270-271. The list is not exhaustive and no single factor listed
above is necessary to a finding of mental anguish. Id.

        In this case, the evidence was sufficient to establish both bodily injury and mental
anguish. With respect to bodily injury, the victim testified that, as a result of the assault, she had
bruises on her ankle, underneath her arm, by her collarbone, and on her left thigh. The sexual
assault nurse examiner (SANE) testified that the victim had scratches in the middle and top of
her back, a bruise on her right elbow, a bruise and abrasion on her right knee, and bruises on both
shins. Pictures of many of these injuries, taken four days after the assault, were admitted into
evidence. While it does not appear that any of the injuries were permanent or particularly
serious, this evidence of the victim’s injuries was sufficient to establish “bodily injury.” See
Mackle, 241 Mich. App. at 596; Himmelein, 177 Mich. App. at 377.

        Insofar as defendant suggests that the victim’s injuries could not be linked to the sexual
assaults because the SANE nurse did not “date” the injuries and because there was testimony of
the victim scratching herself on the way to the hospital, his argument is without merit. The
victim’s “scratching” would not explain her numerous bruises. And, in any event, the victim in
fact testified that her injuries resulted from the sexual assaults. The credibility of this testimony
was for the jury. Dunigan, 299 Mich. App. at 582. In sum, though her injuries were relatively
minor, there was sufficient evidence to establish that the victim suffered bodily injury in
connection with the sexual assaults perpetrated by defendant. See Mackle, 241 Mich. App. at 596.

        Turning to “mental anguish,” several of the Petrella factors are present and the evidence
was sufficient to establish that the victim suffered mental anguish. For example, there was
evidence from the victim and her friends that, after the assault, the victim was crying, screaming,
and “freaking out” because of what happened. One friend testified that he could not even
understand the victim at times because she was crying so hard. Another friend testified that the
victim was “hysterical” and shaking on the way to the hospital, she was scratching and “itching
at her skin as if she wanted to peel it off,” and she had a “very weakened state of mind.” The
nurse who examined the victim testified that the victim was crying and mad at times during the
evaluation. The victim also experienced feelings of anger and humiliation, testifying that she
was “really disgusted” and angry that someone would do this to her. She explained that, after the
attack, it took her a week to “feel . . . clean again.” The victim also described being frightened
during the attack, and there was evidence that these feelings of fear lingered after the attack. A
friend testified that the victim had night terrors and, for months, she would “be afraid for




                                                 -3-
someone to even be close to her.”1 In addition, at the time of trial, the victim described the long-
lasting effects of the attack, testifying that the assault “ruined the chance of [her] even having
anything to do with a man again.” Given this testimony, there was sufficient evidence presented
from which a rational trier of fact could have found that the victim suffered “mental anguish.”
Overall, the evidence was sufficient to support defendant’s CSC I convictions.

                                   II. PEOPLE V LOCKRIDGE

        Next, defendant argues that judicial fact-finding, with respect to offense variables (OV) 3
(bodily injury) and 4 (serious psychological injury), mandatorily increased his minimum
sentence range under the sentencing guidelines. Given that the trial court sentenced defendant
within the resulting range, defendant requests a Crosby2 remand in light of the recent Michigan
Supreme Court decision in Lockridge. In contrast, the prosecutor argues on appeal that a remand
is not warranted. According to the prosecutor, the jury’s verdict supported the scoring of OVs 3
and 4 because, under MCL 750.520b(1)(f), the jury’s verdict necessitated a finding of “personal
injury,” which includes “mental anguish” to justify the scoring of OV 4 and “bodily injury” to
support the scoring of OV 3.

        In Lockridge, the Court concluded that Michigan’s legislative sentencing guidelines
violate the Sixth Amendment right to a jury trial to the extent that the guidelines require judicial
fact-finding in the scoring of the OVs and that judicial fact-finding mandatorily increases the
floor of the guidelines minimum sentence range. Lockridge, 498 Mich. at 364-365, 383, 388-389.
To remedy this defect, the Court declared that, while courts must continue to consult the
guidelines at sentencing, the guidelines are now “advisory only.” Lockridge, 498 Mich. at 391-
392. Under Lockridge, an unpreserved claim, such as defendant’s, is reviewed for plain error,
and to warrant relief a defendant must make a “threshold showing of potential plain error” on
appeal, which then entitles him to a Crosby remand to determine whether the defendant suffered
prejudice. Lockridge, 498 Mich. at 395, 398; People v Stokes, __ Mich App __, __; __ NW2d __
(2015) (Docket No. 321303), slip op at 11. In particular, to merit a Crosby remand, a defendant
alleging a claim of unpreserved error must demonstrate: (1) that his “guidelines minimum
sentence range was actually constrained by the violation of the Sixth Amendment,” i.e., that his
“OV level was calculated using facts beyond those found by the jury or admitted by the


1
  To the extent that defendant argues that the victim’s mental anguish is the result, at least in part,
of prior sexual assaults that the victim experienced, that argument is pure speculation and it was
for the jury, having heard evidence of the victim’s prior assaults, to determine whether defendant
caused the victim’s mental anguish. Additionally, we note that a defendant need not be the sole
cause of a victim’s injuries and one “takes his victim as he finds her,” meaning that “any special
susceptibility of the victim to the injury at issue” does not exonerate a defendant. People v
Brown, 197 Mich. App. 448, 451-452; 495 NW2d 812 (1992) (finding that the defendant, who
sexually assaulted the victim when he came upon her after she had been kidnapped and sexually
assaulted by other men, was a cause of some part of the victim’s personal injury, even if the
precise amount of injury he inflicted could not be determined).
2
    United States v Crosby, 397 F3d 103 (CA 2 2005).


                                                 -4-
defendant and that a corresponding reduction in the defendant's OV score to account for the error
would change the applicable guidelines minimum sentence range,” and (2) that the defendant
was not subject to an upward departure. Lockridge, 498 Mich. at 394-395, 399.

        In this case, for his most serious offense of CSC I, as a second offense habitual offender,
defendant had a recommended minimum sentencing range of 108 to 225 months. See MCL
777.62; MCL 777.21(3)(a); MCL 777.16y. This range was based on defendant’s total OV score
of 40 points, which placed him in OV level III (40-59 points). Defendant’s 40 point OV score
included 5 points for OV 3 and 10 points for OV 4. The trial court sentenced defendant within
the recommended sentencing range, imposing a sentence of 15 to 50 years’ imprisonment.

        Based on these facts, we conclude that defendant has made a threshold showing of
possible prejudice entitling him to a Crosby remand under Lockridge. First, defendant was not
subjected to an upward departure. Second, he has made a showing that judicial fact-finding with
respect to OVs 3 and 4 affected his minimum sentence range under the legislative guidelines.

       In this regard, OV 3 covers “physical injury to victim,” and 5 points must be scored if
“[b]odily injury not requiring medical treatment occurred to a victim.” MCL 777.33(1)(e).3 In
comparison, OV 4 relates to “psychological injury to a victim,” and 10 points must be scored if a
“serious psychological injury requiring professional treatment occurred to a victim.” MCL
777.34(1)(a). The trial court scored OV 3 at 5 points and OV 4 at 10 points.

        Assuming arguendo that jury findings of “bodily injury” and “mental anguish” for
purposes of MCL 750.520b(1)(f) can be considered synonymous with “bodily injury” and
“serious psychological injury” for purposes of scoring OV 3 and OV 4 respectively, it is
nonetheless plain that, in this case, the trial court engaged in judicial fact-finding when scoring
these variables. That is, as discussed, MCL 750.520b(1)(f) requires a finding of “personal
injury,” which may take a number of forms including both “bodily injury” and “mental anguish.”
At trial, the prosecutor presented evidence of both bodily injury and mental anguish, and the trial
court instructed the jury on both “mental anguish” and “personal injury.” However, bodily
injury and mental anguish “are merely different ways of defining the single element of personal
injury,” and, when instructed on multiple theories, jury unanimity is not required regarding
which specific type of “personal injury” occurred. Asevedo, 217 Mich. App. at 397.
Consequently, while the jury clearly made a finding of “personal injury,” there is no way to
discern whether the jury’s verdict represents a finding of bodily injury and/or a finding of mental



3
  Defendant argues on appeal that the trial court erred by scoring OV 3 because “bodily injury” is
an element of CSC I under MCL 750.520b(1)(f) and OV 3 may not be scored “if bodily injury is
an element of the sentencing offense.” MCL 777.33(2)(d). Contrary to this argument, bodily
injury is not necessarily an element of CSC I; rather, as charged, “personal injury” is an element
of the offense, and it encompasses, among other things, bodily injury and mental anguish. MCL
750.520a(n); Asevedo, 217 Mich. App. at 397. Because there was sufficient evidence of mental
anguish in this case, bodily injury was not needed to establish the “personal injury” element, and
it was not improper for the trial court to score five points for OV 3 based on bodily injury.


                                                -5-
anguish. For this reason, we cannot conclude that the scoring of either OV 3 or OV 4 was
supported by the jury’s verdict. Nor were these facts admitted by defendant.

        Further, the scoring of these variables affected defendant’s minimum sentence range. As
scored, defendant’s total OV score was 40 points, which is within level III. See MCL 777.62.
Without the scoring of OVs 3 (five points) and 4 (10 points), defendant would have a total OV
score of 25 points, which falls within OV level II (20-39 points) with a corresponding guideline
range of 81 to 168 months. See MCL 777.62; MCL 777.21(3)(a); MCL 777.16y. Because the
scoring of these variables affected the recommended minimum sentencing range, and the trial
court sentenced defendant within the resulting range, defendant has made a threshold showing of
potential plain error warranting a Crosby remand. See Lockridge, 498 Mich. at 394-395, 399.

       The precise procedure to be followed on remand was set forth in Lockridge as follows:

       [O]n a Crosby remand, a trial court should first allow a defendant an opportunity
       to inform the court that he or she will not seek resentencing. If notification is not
       received in a timely manner, the court (1) should obtain the views of counsel in
       some form, (2) may but is not required to hold a hearing on the matter, and (3)
       need not have the defendant present when it decides whether to resentence the
       defendant, but (4) must have the defendant present, as required by [MCR 6.245],
       if it decides to resentence the defendant. Further, in determining whether the
       court would have imposed a materially different sentence but for the
       unconstitutional constraint, the court should consider only the circumstances
       existing at the time of the original sentence. [Lockridge, 498 Mich. at 398
       (footnote, quotation marks, and citation omitted).]

                                III. PROSECUTORIAL ERROR

        Defendant next argues that several instance of prosecutorial error denied him a fair trial.4
In particular, defendant argues that the prosecutor impermissibly (1) referenced facts in his
opening statement that were not proven during trial, (2) usurped the jury’s role and expressed a
personal belief in defendant’s guilt, and (3) denigrated defendant as well as his defense theory.

        A defendant must raise a timely and specific objection in the trial court in order to
preserve the issue of prosecutorial error on appeal. People v Unger, 278 Mich. App. 210, 234-
235; 749 NW2d 272 (2008). Because defendant failed to preserve his claim, the issue is
unpreserved and reviewed for plain error. People v Callon, 256 Mich. App. 312, 329; 662 NW2d
501 (2003). “[W]e cannot find error requiring reversal where a curative instruction could have
alleviated any prejudicial effect.” Id. at 329-330.

        The test of prosecutorial error is whether the defendant was denied a fair and impartial
trial. People v Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001). “[A] prosecutor’s


4
 Defendant raises the remaining issues in a Standard 4 brief. See Michigan Supreme Court
Administrative Order 2004–6, Standard 4.


                                                -6-
comments must be read as a whole and evaluated in light of defense arguments and the
relationship they bear to the evidence admitted at trial.” Callon, 256 Mich. App. at 330.
“Prosecutors are typically afforded great latitude regarding their arguments and conduct at trial.”
Unger, 278 Mich. App. at 236. “They are generally free to argue the evidence and all reasonable
inferences from the evidence as it relates to their theory of the case.” Id. However, a prosecutor
may not express a personal opinion regarding defendant’s guilt or denigrate defendant with
intemperate remarks. People v Bahoda, 448 Mich. 261, 282-283; 531 NW2d 659 (1995). An
opening statement in particular “is the appropriate time to state the facts that will be proved at
trial.” Ericksen, 288 Mich. App. at 200. If a prosecutor indicates during his opening statement
that he intends to prove a particular fact and then fails to do so at trial, reversal is not warranted
unless the defendant can show bad faith or prejudice. People v Wolverton, 227 Mich. App. 72, 76;
574 NW2d 703 (1997).

        In this case, defendant first argues that he was denied a fair trial when the prosecutor
stated several allegedly “unfound” facts during his opening statement. Specifically, defendant
complains about two statements the prosecutor made while describing the events that occurred in
the bathroom. The prosecutor said: “He picks her up forcibly; puts her legs around him” in the
shower and “he then takes her out of the shower forcefully and physically and lays her on the
ground . . . .” The prosecutor committed no error in making either statement. Although the
victim may not have used the word “forcibly” during her description of the assault, it is clear
from her testimony that force was used and that the incident occurred as the prosecutor described
during his opening statement. The victim testified that defendant “put [her] up on the bathroom
wall and kind of like put [her] legs around him.” She also testified that defendant “pulled [her]
out of the shower,” and later that he “flipped [her] over” onto her back. Given the victim’s
testimony at trial, the prosecutor’s opening statements appropriately provided “a fair view of
what the evidence would show.” Ericksen, 288 Mich. App. at 200.

        Similarly, defendant also complains that the prosecutor said during opening statement
that the victim’s “good friend . . . comes over; gets there as soon as she can; it takes her some
time; sees her crying, heaped over in the other bathroom . . . .” Defendant asserts that the
prosecutor said that the friend “found [the victim] crying in the bathroom on the floor,” but that
the friend testified at trial that she found the victim “passed out.” Again, the prosecutor
committed no error in making these statements. First, defendant is factually incorrect about the
prosecutor’s statement. The prosecutor never used the word “found.” Second, the prosecutor’s
description was a fair representation of the friend’s testimony. The friend testified that when she
arrived the victim was not “necessarily sleeping, but she like had her eyes closed and was laying
on the ground,” and that when the victim became more aware she “was just kind of like
hyperventilating, and kind of hysterical.” Overall, we see nothing improper in the prosecutor’s
opening statement and, even if the prosecutor had indicated in his opening statement that he
would prove these particular facts and then failed to do so, reversal would not be warranted
because defendant has not shown bad faith or prejudice. Wolverton, 227 Mich. at 76.

       Next, defendant asserts that the prosecutor inappropriately stated during closing argument
that defendant was not an “honest person,” and that he was “a liar,” “a cheat,” and “a




                                                 -7-
manipulator.”5 Defendant contends that by making these remarks the prosecutor expressed his
personal opinion of defendant’s guilt, usurped the jury’s role, and denigrated defendant as well
as his defense theory. Taken in context, the prosecutor made the remarks in the course of
discussing defendant’s various excuses for his conduct and his inconsistent remarks to police.
For example, the prosecutor stated:

       He knows of no reason why [the victim’s] making this up. He’s given numerous
       opportunities by the detective to explain, why would she do this? Why would she
       fall asleep, cry rape? I don’t know. I don’t know. Beats me, when you find out,
       tell me. That’s what he says, over and over again.

                And then this thing about, [I do not need to rape someone because] “I can
       get it from my wife anytime I want it. In fact she wanted it that night.” So why
       the heck is he naked in the shower with our victim? He admits cheating on his
       wife before. He’s not an honest person. . . . [T]hen, inexplicably, he says, “But I
       haven’t [cheated] recently”--even though he’s claiming he did it that night. He
       said, “I did it early on when the relationship was still fresh.” . . . He’s cheating on
       [his wife] while [their relationship] is still fresh. This shows you something about
       this guy’s morals, and he wants you to believe him. He’s a liar, a cheat, a
       manipulator. He says he treated [the victim] like a slut. That’s the only reason he
       could think of as to why she might say this. He treated her like a slut – so he
       admits that. He [said he] “f------ her and left.” But at another point, he says, “I
       helped her up and I gave her a hug.”

        Contrary to the arguments raised by defendant, when considered as a whole, the
prosecutor did not express a personal opinion of defendant’s guilt, usurp the jury’s role, or
impermissibly denigrate defendant and his defense. Rather, the prosecutor’s remarks were, in
context, an argument, based on the evidence presented, that defendant’s claim of consent was not
worthy of belief. See People v Howard, 226 Mich. App. 528, 548; 575 NW2d 16 (1997). The
prosecutor was not required to confine his arguments to the blandest of all possible terms, People
v Dobek, 274 Mich. App. 58, 66; 732 NW2d 546 (2007), and the use of pejorative terms like
“liar” or “manipulator” did not render this argument improper. Cf. Steanhouse, slip op at 17.

        Moreover, even assuming some impropriety in the prosecutor’s remarks, defendant
would still not prevail because a timely objection and cautionary instruction could have cured
any prejudice from the prosecutor’s brief comments. See Callon, 256 Mich. App. at 329-330. In
fact, the trial court instructed the jury that the attorney’s statements were not evidence; that the
jury should only accept things that an attorney said that are supported by the evidence or by its
own common sense; and that the jury was to decide the facts of the case, including whether to
believe a witness, based on the evidence. “Jurors are presumed to follow their instructions, and
instructions are presumed to cure most errors.” People v Abraham, 256 Mich. App. 265, 279; 662



5
  Defendant also asserts that the prosecutor called him a “bad guy,” but we were unable to find
that statement on or near the page of the trial transcript cited by defendant.


                                                -8-
NW2d 836 (2003). Accordingly, defendant has not established prejudice, and his claim of
prosecutorial error is without merit.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Lastly, argues that counsel provided ineffective assistance by (1) failing to object to the
instances of prosecutorial error detailed above, and (2) failing to inform defendant of his right to
take a polygraph examination before trial as set forth in MCL 776.21(5).

        Defendant failed to preserve his claim of ineffective assistance by moving for a new trial
or requesting an evidentiary hearing. People v Snider, 239 Mich. App. 393, 423; 608 NW2d 502
(2000). In the absence of a motion for new trial or an evidentiary hearing, our review is limited
to the existing record. People v Thomas, 260 Mich. App. 450, 456; 678 NW2d 631 (2004).

       To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. People v Mack, 265 Mich. App. 122, 129; 695 NW2d
342 (2005). “Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise.” People v Solmonson, 261 Mich. App. 657, 663; 683 NW2d 761
(2004). Defendant also bears the burden of establishing the factual predicate of his claim.
People v Douglas, 496 Mich. 557, 592; 852 NW2d 587 (2014).

        In this case, defendant first claims that counsel was ineffective for not objecting to all of
the prosecutor’s statements discussed above. However, insofar as the prosecutor’s statements
were proper, any objection would have been futile and counsel cannot be ineffective for failing
to raise a meritless objection. Snider, 239 Mich. App. at 425. Moreover, given that any potential
prejudicial effect from the statements was cured by the trial court’s instructions, Unger, 278
Mich. App. at 235, defendant cannot establish that the outcome of the proceedings would have
been different had his counsel objected to the prosecutor’s allegedly improper statements. Mack,
265 Mich. App. at 129.

        There is likewise no merit to defendant’s claim that his trial counsel was ineffective for
failing to inform him that he had a right to take a polygraph examination.6 This Court’s review
is limited to mistakes apparent on the record, and, on the instant record, there is no evidence that
counsel failed to inform defendant that he could take a polygraph examination, no evidence that
defendant would have passed a polygraph examination, and no evidence that the charges would
have been dropped even if defendant had passed a polygraph examination. Accordingly, because
none of these things are apparent on the record, defendant has not established the factual
predicate of his claim, and he has not carried his burden of showing that counsel’s performance
fell below an objective level of reasonableness. See Douglas, 496 Mich. at 592. Likewise, given



6
 Pursuant to MCL 776.21(5), a defendant charged with a criminal sexual conduct offense “shall
be given a polygraph examination or lie detector test if the defendant requests it.”


                                                -9-
that there is no evidence that defendant would have passed such a test or avoided trial by taking
such a test, defendant cannot establish that a polygraph examination would have affected the
outcome of the trial. Mack, 265 Mich. App. at 129. Indeed, “even if defendant had taken and
passed a polygraph test, the results would not have been admissible at trial.” People v Phillips,
469 Mich. 390, 397; 666 NW2d 657 (2003). On this record, defendant’s claim of ineffective
assistance of counsel must fail.

      Defendant’s convictions are affirmed but we remand for proceedings consistent with
Crosby and Lockridge. We do not retain jurisdiction.



                                                           /s/ Michael J. Talbot
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Douglas B. Shapiro




                                              -10-