If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 22, 2020
Plaintiff-Appellee,
v No. 348515
Jackson Circuit Court
JANAFER LYNN MAYNARD, LC No. 13-004841-FC
Defendant-Appellant.
Before: O’BRIEN, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right her jury-trial convictions of five counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(2)(b).1 The trial court sentenced defendant to
consecutive terms of 30 to 80 years’ imprisonment for Counts 1 and 2, and concurrent terms of 15
to 40 years’ imprisonment for Counts 3, 4, and 5. We affirm defendant’s convictions, but remand
for the trial court to either articulate its justifications for the departure sentence and for imposing
consecutive sentences, or to resentence defendant.
I. BACKGROUND
This case arose from defendant’s involvement in acts of sexual abuse that her husband,
Richard Maynard, committed against their three-year-old daughter. In May 2013, defendant
reported to law enforcement that she observed a rash on the victim’s vagina, and that the victim
had mimicked sexual acts with her toys and watched pornography. In an interview with two
detectives, defendant reported that she previously observed Richard in the shower with the victim,
moving the victim’s vagina back and forth on his erect penis. Defendant also reported that, on
three occasions, she observed Richard move his finger in and out of the victim’s vagina when he
changed her diaper. Additionally, defendant reported that she was aware that Richard took pictures
1
The jury found defendant not guilty of two additional counts of CSC-I.
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of the victim’s vagina for sexual purposes. Defendant said that she also took pictures of the
victim’s vagina, but insisted that it was to document rashes.
During the interview, defendant also disclosed that she was involved in sexual acts with
Richard and the victim. Defendant reported that, on multiple occasions, Richard rubbed his penis
on the victim’s chest and vagina, and put a portion of his penis into the victim’s vagina. According
to defendant, she would hold the victim’s hands to comfort the victim while Richard held the
victim’s legs and penetrated the victim’s vagina with his penis.
At defendant’s trial, Richard confirmed that defendant observed him showering with the
victim as he attempted to penetrate the victim, and that defendant participated in the sexual abuse
of the victim by holding the victim’s arms as he penetrated the victim’s vagina. Richard also
testified that defendant suggested that they include the victim in sexual acts because defendant
“wanted to spice up [their] sex life.” The jury found defendant guilty of five counts of CSC-I, and
the trial court sentenced defendant as stated. Defendant now appeals.
II. VOLUNTARINESS OF CONFESSION
Defendant argues that the trial court improperly admitted her statements that she made
during the interview with the detectives because, under the totality of the circumstances, her
statements were involuntary. We disagree.
Because defendant did not move the trial court to suppress her statements to the detectives,
this issue is not preserved. People v Snider, 239 Mich App 393, 406; 608 NW2d 502 (2000). This
Court reviews unpreserved challenges for plain error affecting substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error
rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear
or obvious, 3) and the plain error affected substantial rights.” Id.
Initially, we note that defendant does not contest whether she was in custody or whether
she was given proper Miranda2 warnings. Instead, she limits her argument on appeal to whether
her statements to the detectives were voluntarily made. We accordingly limit our analysis only to
the issue raised by defendant on appeal.3
2
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
3
It would be improper for this Court to address arguments not raised by defendant on appeal. In
Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959), our Supreme Court
explained, “Failure to brief a question on appeal is tantamount to abandoning it.” And as explained
by our Supreme Court in Michigan Gun Owners, Inc v Ann Arbor Pub Sch, 502 Mich 695, 709-
710; 918 NW2d 756 (2018):
In our adversary system, in both civil and criminal cases, in the first instance and
on appeal, we follow the principle of party presentation. That is, we rely on the
parties to frame the issues for decision and assign to courts the role of neutral arbiter
of matters the parties present. [Quotation marks and citation omitted.]
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In Mincey v Arizona, 437 US 385, 398; 98 S Ct 2408; 57 L Ed 2d 290 (1978), the Supreme
Court of the United States explained that “any criminal trial use against a defendant of his
involuntary statement is a denial of due process of law, even though there is ample evidence aside
from the confession to support the conviction.” (Quotation marks and citation omitted.) See also
People v Cipriano, 431 Mich 315, 331; 429 NW2d 781 (1988) (explaining that “the use of an
involuntary statement in a criminal trial, either for impeachment purposes or in the prosecution’s
case in chief, violates due process”). In Cipriano, 431 Mich at 333-334, the Michigan Supreme
Court explained:
The test of voluntariness should be whether, considering the totality of all the
surrounding circumstances, the confession is the product of an essentially free and
unconstrained choice by its maker, or whether the accused’s will has been
overborne and his capacity for self-determination critically impaired. The line of
demarcation is that at which governing self-direction is lost and compulsion, of
whatever nature or however infused, propels or helps to propel the confession.
In determining whether a statement is voluntary, the trial court should
consider, among other things, the following factors: the age of the accused; his lack
of education or his intelligence level; the extent of his previous experience with the
police; the repeated and prolonged nature of the questioning; the length of the
detention of the accused before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether there was an unnecessary
delay in bringing him before a magistrate before he gave the confession; whether
the accused was injured, intoxicated or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep, or medical attention;
whether the accused was physically abused; and whether the suspect was threatened
with abuse. [Quotation marks, citations, and alteration omitted.]
“The ultimate test of admissibility is whether the totality of the circumstances surrounding the
making of the confession indicates that it was freely and voluntarily made.” Id. at 334.
Viewing the totality of the circumstances of the interview, we conclude that defendant’s
confession was voluntarily made. Defendant agreed to be interviewed by the detectives. At the
time of the interview, defendant was 36 years old and had a high school education. Nothing
suggests that either defendant’s age or her education level influenced her decision to be
interviewed by the detectives or otherwise affected the statements that she made. In fact, the
detectives explained that they attempted to tailor the interview to accommodate defendant’s
deficiencies: the detectives asked defendant open-ended and direct questions, and conducted the
interview at a slower pace to accommodate defendant’s verbal deficiencies. Additionally,
defendant was not detained before the interview; she told the detectives that she did not have means
to get to the interview, and the detectives accommodated defendant’s request to provide
transportation to the interview. Defendant was not injured, intoxicated or drugged, or in ill health
when she gave her statement, nor was she deprived of food, sleep, or medical attention. Further,
defendant stated that she was sexually abused by Richard, but still chose to make her statements,
including statements incriminating Richard, despite any threat of harm from Richard. Although
certain factors support that defendant’s statements were involuntary—for instance, the detectives’
questioning of defendant was somewhat prolonged (approximately six hours with four 10-20
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minute breaks) and there is nothing in the record documenting that defendant had extensive
experience with the police—determining whether a statement was voluntary is a multi-factor test.
As stated, the ultimate query that we must resolve is “whether the totality of the circumstances
surrounding the making of the confession indicates that it was freely and voluntarily made.” Id.
at 334. Considering the totality of the circumstances surrounding defendant’s interview and the
statements she made during the interview, we conclude that defendant’s statements to the
detectives were voluntarily made. Accordingly, the admission at trial of statements made by
defendant during her interview was not error, let alone plain error affecting substantial rights. 4
III. SENTENCES
Defendant argues—and the prosecution agrees—that the trial court abused its discretion
when it imposed a departure sentence and when it imposed consecutive sentences. We also agree.
This Court reviews a departure from the sentencing guidelines range for reasonableness.
People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be
applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of
discretion.” People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). A trial court abuses
its discretion when it chooses an outcome falling outside the range of principled outcomes. People
v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
A sentence fulfills the principle of proportionality if it reflects the seriousness of the offense
and the background of the offender, regardless of whether it departs from or adheres to the
guidelines’ recommended range. People v Dixon-Bey, 321 Mich App 490, 521; 909 NW2d 458
(2017). Nonetheless, if a trial court imposes a sentence that departs from the sentencing
guidelines’ range, the court must provide “adequate reasons for the extent of the departure sentence
imposed.” Steanhouse, 500 Mich at 476. Relevant factors for determining whether a departure
sentence is proportionate include (1) whether the guidelines accurately reflect the seriousness of
the crime, (2) factors not considered by the guidelines, and (3) factors considered by the guidelines
but given inadequate weight. Dixon-Bey, 321 Mich App at 525.
Here, the trial court’s 30-year minimum sentence unquestionably departed from
defendant’s minimum recommended sentence. Defendant had no prior convictions, so nothing
4
On appeal, defendant stresses that she was a “vulnerable” person of low intelligence who was
susceptible to the interrogation techniques used by the detectives. While we are not unsympathetic
to defendant’s argument, our inquiry must consider the totality of the circumstances surrounding
the interview. For the reasons explained, when considering all of the factors listed in Cipriano,
431 Mich at 334, we believe that it was not plain error to admit at trial the statements voluntarily
made by defendant during her interview with the detectives.
Defendant also argues that her counsel was ineffective for not moving to suppress the
statements she made during her interview with the detectives on grounds that her statements were
involuntarily made. As explained above, the statements were not involuntarily made, so an
objection on that ground would have been meritless, and counsel was not ineffective for not raising
the objection. See People v Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011).
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about defendant’s background supported a departure sentence. In explaining its sentence, the trial
court focused on the nature of defendant’s offense, stating that this was “probably the most
disturbing case I’ve—I’ve ever had to sit and preside over as a Judge.” The trial court then
reiterated facts of the case: that defendant assisted Richard in the sexual acts towards the victim,
did not report Richard’s sexual abuse of the victim, and engaged in the sexual abuse of the victim
for approximately six months. Many of the things that the trial court talked about, however, were
considered by the guidelines. For instance, OV 10 contemplated the victim’s youth and the abuse
of defendant’s authority status as the victim’s parent, MCL 777.40(1)(b), and OV 11 and OV 13
considered that two or more criminal sexual penetrations occurred and that defendant’s conduct
was a part of a pattern of felonious criminal activity involving three or more sexual penetrations,
MCL 777.41(1)(a); MCL 777.43(2)(d). Moreover, the trial court appeared to acknowledge that
defendant’s recommended sentence reflected the seriousness of a CSC-I offense, stating that the
“[l]aw is tough on Criminal Sexual Conduct in the first degree.” Lastly, when the trial court
imposed the sentence, it did not acknowledge that defendant’s sentence departed from the
sentencing guidelines, and consequently “gave no explanation for the extent of the departure,”
which it was required to do. People v Smith, 482 Mich 292, 305-306; 754 NW2d 284 (2008).
Accordingly, the trial court did not adequately justify the departure sentence it imposed. On
remand, the trial court must either articulate its reasons for the departure sentence or resentence
defendant.
When sentencing defendant, the trial court also ordered that defendant’s departure
sentences run consecutive to one another. In Michigan, concurrent sentencing is the norm, and a
trial court may not impose a consecutive sentence unless authorized by the Legislature. See People
v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012). In MCL 750.520b(3), the Legislature
expressly authorized trial courts to impose consecutive sentences for CSC-I convictions, so the
trial court was authorized to impose consecutive sentences in this case. When a trial court imposes
authorized consecutive sentences, it must articulate its rationale for the consecutive sentences in
order to facilitate appellate review. See People v Norfleet, 317 Mich App 649, 664-665; 897
NW2d 195 (2016).
The trial court here gave no explanation for why it imposed consecutive sentences, which
precludes this Court from reviewing whether consecutive sentencing was proper. See id. See also
People v Broden, 428 Mich 343, 350-351; 408 NW2d 789 (1987) (explaining that a sentencing
court must “articulate on the record its reasons for imposing the sentence given” in order to allow
appellate courts to review the sentence). We therefore remand for the trial court to either articulate
its rationale for imposing consecutive sentences or to resentence defendant.5
5
Defendant also argues that her trial counsel was ineffective for not providing mitigating evidence
at the sentencing hearing. To establish ineffective assistance, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). In People v Bailey,
330 Mich App 41, 63; 944 NW2d 370 (2019), this Court explained that “trial courts are not
required to expressly or explicitly consider mitigating factors at sentencing.” Because trial courts
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Affirmed in part, but remanded for the trial court to either articulate its justifications for
the departure sentence and for imposing consecutive sentences, or to resentence defendant. We
do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Michael J. Kelly
/s/ James Robert Redford
are not required to consider mitigating factors at sentencing, it was not objectively unreasonable
for defense counsel to not provide such evidence to the trial court at sentencing. Moreover, the
mitigating evidence that defendant refers to in her appellate brief was presented during defendant’s
trial and in her presentence investigation report, and it is unclear how defendant’s trial counsel’s
decision to not repeat this evidence at her sentencing hearing, even if objectively unreasonable,
would have probably changed the outcome at sentencing.
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