Great weight of the evidence; Convictions of CSC I under MCL 750.520b(1)(a) & CSC II under MCL 750.520c(1)(a); Credibility; People v Solloway; Ineffective assistance of counsel; Impeaching witnesses; Failure to move to review counseling records; Failure to request a specific unanimity jury instruction; Deficient performance; Prejudice

The court held that defendant’s CSC I and II convictions were not against the great weight of the evidence because a reasonable jury could find the victim’s (TS) testimony credible. It also found that defendant’s trial counsel was not ineffective related to impeaching TS and her mother or failing to move to inspect TS’s counseling records. But it concluded that his trial counsel was ineffective for failing to request a specific unanimity instruction on the CSC II charge, and that defendant was prejudiced as a result. Thus, while it affirmed his CSC I conviction, it vacated his CSC II conviction and remanded for further proceedings on that count only. As to his great weight of the evidence argument, the court noted that no evidence contradicted TS’s testimony “that defendant committed several sexual acts constituting CSC I, i.e., fellatio, or CSC II, such as making TS touch defendant’s penis, touching TS’s genitals, and rubbing [his] penis against TS’s vagina.” Thus, defendant could “only rely on the argument that TS’s credibility was undermined by impeachment. Credibility issues undermine a verdict only when the ‘testimony contradicts indisputable facts or laws,’ is ‘patently incredible or defies physical realities,’ is ‘material and . . . so inherently implausible that it could not be believed by a reasonable juror,’ or ‘has been seriously impeached and the case is marked by uncertainties and discrepancies.’” The court found that TS’s testimony did “not even approach any of those stringent standards.” It also rejected most of his ineffective assistance of counsel claims. But it agreed with the trial court “that defendant’s trial counsel provided deficient representation” by failing to request a specific unanimity instruction on the CSC II count. While the trial court determined that defendant was not prejudiced by the deficient performance, the court concluded otherwise. The trial court instructed the jury that, to convict defendant of CSC II, the jurors “had to find that defendant ‘intentionally touched [TS’s] genital area or intentionally made [TS] touch his genital area.’ Those two options did not include fellatio, which was mentioned only in the explanation of the” CSC I charge (Count 1). Given that “jurors are presumed to follow their instructions, . . . the jury could not have convicted” him of CSC II based on the same evidence that supported his CSC I conviction.