Double jeopardy; Retrial after a mistrial; Distinguishing People v Benton & People v Beck; Information amendment; MCL 767.76; Prejudice; Comparing People v Stricklin; “Variance in the type of penetration” in a CSC case; Unanimity jury instruction; People v Chelmicki; People v Gadomski; Ineffective assistance of counsel; Failure to object & to request certain instructions; Futile objection or request; Trial strategy; Involuntary conduct while asleep instruction; Strict liability offense; MCL 750.520b(2)(b)(i) & (ii); Great weight of the evidence; Evidence of defendant’s suicide attempt & police standoff; MRE 403; Sentencing; Scoring of OVs 10 & 19; MCL 777.40(1)(a); MCL 777.49(c); PSIR errors

The court held that defendant’s double jeopardy rights were not violated when he was retried after a mistrial due to a deadlocked jury. Further, the trial court did not abuse its discretion in allowing an amendment to the information, or err in not giving a special unanimity jury instruction or an instruction on involuntary conduct. The court rejected defendant’s ineffective assistance of counsel and great weight of the evidence claims. His challenge to the admission of evidence of his suicide attempt and police standoff also failed. The court upheld the scoring of OV 10 at 15 points and OV 19 at 10 points, but remanded for correction of the PSIR. Defendant was convicted of CSC I under MCL 750.520b(1)(b)(ii). Relying on Benton and Beck, he argued on appeal “that his right of protection from double jeopardy was violated when he was retried after the mistrial.” However, neither of those cases involved “mistrials on grounds of deadlocked juries. They involved trial errors requiring analysis of whether a mistrial was a manifest necessity.” In this case, there was “no doubt that a deadlocked jury manifestly necessitated a mistrial.” Thus, there was no merit in this issue. He also argued that the trial court improperly granted the prosecution’s motion to amend the information and that it “should have given a unanimity instruction.” As to the information amendment, the court found that Stricklin was analogous to this case. It also involved an information amendment “‘to reflect a variance in the type of penetration’ rather than a new crime.” In addition, the timing of the prosecution’s motion to amend here presented “a more compelling case for approval of the amendment than the facts in Stricklin.” The motion here was made 34 days before the start of the second trial. As to an unanimity instruction, the prosecution did not present “evidence of multiple, distinct, alternative acts as evidence of the actus reus of the charged offense.” Rather, the prosecution argued that the victim “might have been confused about what she saw and felt during the charged instances, given that the incidents occurred in the dark, and that they began while she was asleep.” The court concluded that “defendant was not entitled to a special unanimity instruction.” As to an involuntary conduct instruction, “Michigan law has not recognized a sexsomnia defense.” The court affirmed his convictions and sentences.