Sufficiency of the evidence for a CSC I conviction under MCL 750.520b(1)(a) (victim under 13); Jury instructions as to a dismissed count & the penetration element of CSC I; Ineffective assistance of counsel; Failure to raise a futile objection; Right to a speedy trial; The Barker v Wingo factors

The court concluded that sufficient evidence supported defendant’s CSC I conviction, and he was not entitled to a new trial based on erroneous jury instructions. Also, defense counsel was not ineffective for failing to raise a futile objection to the instructions. Finally, the trial court did not abuse its discretion by denying his motion to dismiss based on a speedy-trial violation. Defendant argued there “was no credible evidence at trial that [his] tongue was touching [the complainant’s] vagina.” She testified that he ‘“wiggled my butt’ with his tongue while she was on the couch.” Her father testified she “had told him that defendant had licked her ‘butt’ while babysitting her, and that, when he asked her to show him where defendant licked, she pointed to her vagina and said that her pants were down at the time. Later that day, the complainant reported to a sexual assault nurse examiner that she was at the emergency room ‘because he licked my butt.’” During therapy after the incident, she “told her therapist that she did not want to go to the babysitter’s home any longer because defendant licked her with her pants down more than once while she was there, and she pointed to her vaginal area. A forensic scientist reported that DNA testing strongly indicated that defendant’s DNA was present in saliva found in the panel of the complainant’s underwear, and on a vulvar swab taken of the complainant’s anatomy during an” exam. Even though she “was five years old at trial and did not use the proper technical nomenclature for her anatomy, when viewed in a light most favorable to the prosecution, reasonable jurors could conclude beyond a reasonable doubt that the evidence established that defendant licked the complainant’s vagina.” He contended that “he explained the presence of his DNA on the complainant’s vagina during his statement to the police, and in his testimony that he had used his saliva to moisten bathroom tissue. The jury, however, had the duty and the best ability to determine” his credibility. He alternatively argued that assuming “the evidence established that he licked the complainant’s vagina, there was no evidence that his tongue actually went beyond mere contact to actual penetration.” But she described him “performing cunnilingus on her genitalia. DNA evidence obtained from a vulvar swab also established that defendant had done so. Such evidence supported the jury’s determination that” he committed CSC I.