Specific unanimity jury instruction; People v Cooks; People v Gadomski; Distinguishing People v Yarger; Ineffective assistance of counsel; Failure to make a futile motion or objection; Sentencing; Scoring of OV 10; MCL 777.40(1)(a); “Predatory conduct” (MCL 777.40(3)(a)); People v Cannon; Upward departure from the guidelines; Proportionality; People v Dixon-Bey; Whether references to an acquitted charge should have been removed from the presentence investigation report; Morales v Michigan Parole Bd

The court held that defendant was not entitled to a specific unanimity jury instruction. Further, the trial court did not err in scoring 15 points for OV 10 and the upward departure sentence it imposed did not violate the principle of proportionality. And the court rejected his ineffective assistance of counsel claims. He was convicted of four counts of CSC II involving three victims, and sentenced to 86 months to 15 years. The court concluded that while “each act was proved distinctly from the others with different instances of sexual assault, the acts were not conceptually distinct; all the acts were part of the same theory that defendant committed” CSC against the victims. It noted that “the elements listed in MCL 750.520c constitute alternative means of proving a single” CSC II offense. In Gadomski, it determined a defendant is properly convicted of this crime “‘even if some of jurors believed that he committed the offense solely based on one aggravating circumstance, while the rest of the jurors believed that he committed the offense based on another one of the aggravating circumstances.’ In this case, the trial court did not plainly err by giving the general unanimity instruction.” The court found defendant’s reliance on Yarger was misplaced because this case was distinguishable where he was charged with four counts of CSC II and one count of CSC I, and convicted of the CSC II counts “based on testimony regarding at least five separate acts; defendant was not charged with only a single count of CSC and convicted based on testimony alleging multiple acts.” As to his sentencing, the court held that a “preponderance of the evidence established that defendant’s conduct falls squarely within the statutory definition of predatory conduct. [He] argues that hugging and kissing the victims, taking them to the zoo, and watching movies together is normal, nonpredatory behavior. Under ordinary circumstance, such behavior would be normal, but the evidence in this case established that [he] used such to lure his victims into a sense of security and trust, and then he abused that trust by sexually assaulting each one of them.” In addition, the “trial court imposed its departure sentence because the guidelines did not adequately factor in several aspects of defendant’s conduct and offenses in this case. Under the circumstances presented in this case, [it] crafted appropriate sentences.” Affirmed.