Prosecutorial misconduct; Vouching for witness’s credibility; Appealing to the sympathy of the jury; MRE 401 & 402; Use of the word “victim”; Prejudice; Prosecutorial misconduct; Distinguishing People v Stanaway; Denigrating defense counsel during rebuttal argument; Cumulative error; Ineffective assistance of counsel; Referring to complainant as the “victim” or “alleged victim” during jury selection; Failure to object to the alleged prosecutorial misconduct; Sentencing; Scoring of PRV 6, OV 4, & OV 10

The court held that the prosecutor did not commit misconduct, that defendant was not entitled to a new trial on the basis of cumulative error or denied the effective assistance of counsel, and that the trial court did not err in assessing 10 points under PRV 6, 10 points for OV 4, and 5 points under OV 10. He was convicted of CSC I, kidnapping, and unarmed robbery for sexually assaulting the victim, 64-year-old BR, at a convenience store, and stealing another woman’s money. He was sentenced as a fourth-offense habitual offender to 70 to 150 years for each count of CSC I, 30 to 75 years for kidnapping, and 9 to 75 years for unarmed robbery. On appeal, the court found the prosecutor did not improperly vouch for BR’s credibility, noting that nothing in the prosecutor’s closing argument “even suggested that she had ‘some special knowledge of the witness’s truthfulness.’” She simply “argued from the facts that BR was credible.” The court noted that defendant’s and BR’s testimony “differed on whether the sexual encounter was consensual, which was a central issue at trial.” As such, it was proper for the prosecutor to comment on BR’s credibility. The prosecutor “did not commit misconduct by vouching for BR’s credibility, and [her] comments manifestly did not rise to the level of plain error.” The court also found the prosecutor did not commit misconduct by appealing to the sympathy of the jury when she asked BR a question about BR’s personal background. The “fact that BR’s answer went beyond the scope of the prosecutor’s question and offered additional information cannot provide the basis for a valid claim of prosecutorial misconduct.” Further, the prosecutor’s use of the word “victim” at trial did not prejudice defendant. The court has “repeatedly rejected the contention that Stanaway has any bearing upon the propriety of using the word ‘victim’ to describe the complaining witness at a criminal trial where the defendant faces charges of" CSC. Instead, it has “regularly relied upon the definition of ‘victim’ in MCL 750.520a(s) as the governing rule for referring to a ‘victim’ in trials on charges of [CSC],” and did so again here “by stating that the prosecutor did not err in referring to the complaining witness as a ‘victim.’” The prosecutor’s “repeated use of the term ‘victim’ in this case did not rise to the level of plain error.” It also did not affect defendant’s substantial rights because the evidence “established beyond all doubt that the sexual encounter between defendant and the complaining witness was not consensual.” Finally, any error as to the prosecutor’s use of the word “victim” was addressed by the trial court’s jury instruction that “[t]he lawyers’ statements and arguments are not evidence.”