Prosecutorial error; Witness questioning; Lay witness opinion testimony; MRE 701; Closing argument; Burden of proof; Vouching; Ineffective assistance of counsel; Failure to make a futile objection; Lifetime electronic monitoring (LEM); Cruel or unusual punishment; People v Hallak; Unreasonable search; Scoring of OV 12; MCL 777.42(1)(a) & (2)(a); People v Carter; Right to resentencing

The court rejected defendant’s prosecutorial error and related ineffective assistance of counsel claims. It also found that his constitutional challenges to imposition of LEM for his CSC II conviction involving a victim under age 13 failed under Hallak. But it held that 25 points were improperly scored for OV 12 and that this error entitled him to resentencing. Thus, it affirmed his conviction, vacated his sentence, and remanded for resentencing. As to his prosecutorial error claims, the court first found that defendant mischaracterized the record in asserting that a witness (C) “expressed an opinion on defendant’s guilt, as a review of” her testimony showed “that she did not opine that the victim was telling the truth. [C’s] testimony merely provided background . . . and context for defendant’s request that [C] provide information about the victim’s mother and grandmother to support his case. [C’s] testimony did not include an opinion that the victim was telling the truth or even discuss the victim’s specific allegations.” Defendant did not establish that the prosecutor plainly erred in questioning C. The court also determined that the prosecutor’s closing argument “statements did not distort the burden of proof by requiring the jury to find that the prosecutor’s witnesses were lying to acquit defendant. Rather, the prosecutor ‘merely attacked the credibility of a theory defendant advanced at trial[.]’” Further, the prosecutor did not vouch for the victim’s credibility. As to defendant’s claims that LEM constituted cruel or unusual punishment or an unreasonable search as applied to him, he did not offer “a legally relevant basis to distinguish his case from Hallak.” But in regard to OV 12, as in Carter, the prosecution here “proved defendant’s intent by arguing that all acts of touching constituted the sentencing offense, and no one otherwise attempted to distinguish any of the acts of touching.” The court concluded “that the trial court clearly erred by treating three of the touchings as separate contemporaneous felonious criminal acts for” OV 12 purposes. And defendant was entitled to resentencing because reducing his OV score by 25 points altered the recommended minimum guidelines range.