Jury composition; Prior juror service; MCL 600.1307a(1)(d); Waiver; People v King; People v Hubbard (After Remand); Actual prejudice; MCL 600.1354(1); Sufficiency of the evidence; Great weight of the evidence; CSC I; MCL 750.520b(1)(a); People v Lockett; Sexual penetration; MCL 750.520a(r); Victim under 13; Digital penetration; Fellatio; Cunnilingus; People v Fisher; Lesser included offense; MCL 750.520b(1)(b); People v Bearss; Upward departure sentence; Mandatory minimum; MCL 750.520b(2)(b); Proportionality; People v Steanhouse; People v Dixon-Bey; Mitigating factors; Right to trial; People v Gonzalez

The court held that: 1) defendant waived his jury-composition challenge, 2) two of his CSC I convictions were supported by sufficient evidence, but one was not, and 3) the trial court did not abuse its discretion by imposing upward-departure sentences. A jury convicted him of multiple CSC offenses arising from his sexual abuse of his daughter. The trial court imposed concurrent prison terms, including 30 to 570 months for each CSC I conviction involving sexual penetration when the victim was under 13. On appeal, the court first held that his jury-composition challenge was waived because defense counsel expressed satisfaction with the jury after being told some jurors had served the prior week, which “extinguished any error” and any appellate objection. It also found no showing that those jurors denied him an impartial jury because “jurors are presumed to be impartial” and he failed to show prejudice. The court next held that sufficient evidence supported the CSC I convictions based on digital penetration and fellatio because the jury could credit testimony and admissions placing those acts when the victim was in seventh grade and 12 years old. But the court held that the CSC I conviction based on cunnilingus was unsupported because both accounts placed that act in the victim’s eighth-grade year, and concluding otherwise would require “conjecture.” Thus, the court vacated that conviction and remanded for entry of a conviction under MCL 750.520b(1)(b). The court also held that the upward-departure sentences were proportionate because the guidelines did not adequately account for defendant’s “serial sexual abuse of his own daughter” and his “manipulation and deception.” Finally, it rejected his claim that he was punished for going to trial, concluding the trial court considered the impact on the victim and other proper sentencing factors rather than penalizing him for exercising a constitutional right. Affirmed in part, vacated in part, and remanded.