Prosecutorial misconduct; Sentencing; Scoring of OVs 4 & 10; Use of an incorrect guidelines range

The court held that defendant did not show he was entitled to relief based on prosecutorial misconduct. Also, he failed to explain how the testimony fell “short of the sort of psychological harm sufficient to support a 10-point score for OV 14.” Further, his “challenge to his 10-point score for OV 10” lacked merit. However, resentencing was warranted because he was sentenced based on an incorrect guidelines range. Thus, the court affirmed his convictions, but vacated his sentence and remanded for resentencing. He was convicted of using a computer to commit a crime and capturing or distributing an image of an unclothed person. He “was sentenced, as a fourth habitual offender, to 5 years and 4 months to 30 years in prison (with credit for 279 days).” He first contended “that the prosecutor committed misconduct and denied him a fair trial by (1) improperly suggesting that defendant needed to present evidence at trial to corroborate or substantiate his testimony, and (2) inappropriately bolstering the credibility of a prosecution witness—the victim’s boyfriend.” The court did not see merit in his “claim that the prosecutor improperly shifted the burden of proof.” Defendant failed to show plain error under the applicable settled authority. He “testified at trial, and he and the victim presented the jury with competing versions of events.” Defendant took “issue with various questions the prosecutor asked him during cross-examination that focused on the credibility his offered, and exonerating, version and whether there was any other evidence that would support it.” But as the applicable “caselaw indicates, such probing of defendant’s testimony and theory of the case was permissible, and did not improperly shift the burden of proof to defendant.” He also took issue with an “exchange between the prosecutor and the victim’s boyfriend, regarding Facebook messages that had been exchanged between the boyfriend and defendant[.]” The court held that the “isolated comment challenged here” did not carry any “impermissible implication, and instead simply conveyed to the witness that it was unnecessary to show the notification messages on his phone at that time.” But a change the trial court made in scoring the OVs changed “defendant’s recommended guidelines range—from 29-114 months to 19-76 months.” While his sentence fell “within the correct, reduced range, he is entitled to resentencing in light of that correct range.”