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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 14, 2021
Plaintiff-Appellee,
v No. 350522
Oakland Circuit Court
GIOVONTAE O’NEAL JACKSON, LC No. 2018-267911-FC
Defendant-Appellant.
Before: LETICA, P.J., and GLEICHER and O’BRIEN, JJ.
PER CURIAM.
A jury convicted defendant of two counts each of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b(1)(e), unlawful imprisonment, MCL 750.349b, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b, for luring two teenage
boys from a park into a residential basement where he sexually assaulted them. Defendant
contends that his trial attorneys failed to adequately advise him at the plea-bargaining phase, that
the prosecutor improperly commented on his failure “to provide an innocent explanation” for the
charged conduct, and that the court improperly admitted statements made by defendant without
being adequately advised of his rights. Defendant also challenges the scoring of his sentencing
guidelines. These challenges are all without merit. We affirm.
I. BACKGROUND
One spring evening, 15-year-old CM and 16-year-old MP went to a park to play basketball.
Defendant approached and introduced himself as “G,” a friend of CM’s older brother. Defendant
played basketball with the boys and then provided them marijuana. Defendant invited the boys
back to his house to smoke more marijuana, play video games, and call girls. At his home,
defendant led CM and MP into his basement bedroom. Defendant showed the boys a pistol with
a laser-sight attachment and an extended magazine. He then put the gun on his hip.
Defendant left the room and asked CM to follow him. Away from MP, defendant
“grabbed” CM and “pulled” him into the bathroom. Once inside, defendant threatened CM, pulled
down CM’s pants, and performed fellatio on CM against his will. Defendant eventually allowed
CM to leave the room and he returned to MP in the bedroom. The boys contemplated escaping,
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but defendant came to the bathroom door wearing his gun. Defendant ordered both CM and MP
into the bathroom and he forced MP to submit to fellatio as well. Defendant then removed the
boys to his bedroom and ordered them to lay down on the bed. Defendant again performed fellatio
on the boys. Defendant finally permitted the boys to leave. They ran to a nearby gas station and
called MP’s mother.
CM’s father reported the attack to authorities the following day. Both CM and MP
described defendant, indicated that he had an eight-ball tattoo on his forearm, and provided the
location of the house where they were assaulted. The boys viewed a facial photographic lineup
and an array of photographs depicting eight-ball tattoos on men’s forearms. Both CM and MP
positively identified defendant’s tattooed arm. CM “immediately” selected defendant in the facial
photos, but MP was not as certain. During a later search of defendant’s home, officers found the
weapon described by CM and MP. Forensic analysis of CM’s underwear led to DNA from saliva.
Defendant was established as a contributor to that sample. Defendant’s DNA was also found on
the handle of the pistol.
II. ASSISTANCE OF COUNSEL
Defendant argues that his attorneys were constitutionally ineffective during the plea-
bargaining phase for underestimating the sentencing guidelines defendant would face if convicted
at trial. Had he realized the true magnitude of the sentence he faced after trial, defendant asserts,
he may have accepted the plea offer.
Defendant did not file a motion for a new trial and has not sought remand to do so. In any
event, we can adequately review defendant’s challenge on the existing record. See People v Heft,
299 Mich App 69, 80; 829 NW2d 266 (2012). A claim of ineffective assistance of counsel includes
two components: “First, the defendant must show that counsel’s performance was deficient. . . .
Second, the defendant must show that the deficient performance prejudiced the defense.”
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To establish
that counsel’s performance was deficient, a defendant must show that counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms. People v
Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). To establish prejudice, the defendant
must demonstrate a reasonable probability that, but for counsel’s errors, the result of the
proceedings would have differed. Id. at 663-664.
In the plea-bargaining context, defense counsel is obligated “to properly advise [the]
defendant regarding the nature of the charges or the consequences of the guilty plea and the
possible defenses to the charges to which the defendant is pleading guilty, so defendant has the
ability to make an intelligent and informed choice from among his alternative courses of action.”
People v White, 331 Mich App 144; ___ NW2d ___ (2020) (Docket No. 346901); slip op at 2
(quotation marks and citation omitted).
When a defendant claims to be prejudiced by rejecting a plea offer based on
ineffective assistance of counsel, the defendant must show (1) that but for the
ineffective advice of counsel there is a reasonable probability that the plea offer
would have been presented to the court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it in light of intervening
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circumstances); (2) that the court would have accepted its terms; and (3) that the
conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed. [Id., slip op at 3
(quotation marks and citation omitted).]
About five months before trial in this case, defendant’s retained attorney, Carl Jordan, filed
a motion to withdraw because defendant could not afford his attorney fees. Before Jordan
withdrew, he asked the prosecutor to place a plea offer they had discussed on the record. The
prosecutor stated that defendant was charged with two counts each of first-degree CSC, unlawful
imprisonment, and felony-firearm. He reported that since the preliminary examination, DNA
evidence had linked defendant to the crimes. The prosecutor continued:
[I]n terms of a resolution, I did talk to [Jordan]. And the defendant was
originally charged with two counts [of first-degree CSC]; and I did talk to his prior
lawyer, Mr. Hatchett, and I advised him that should the defendant wish to plea, that
the People would not add any additional charges and that the People would support
a Cobbs[1] to the bottom of the guidelines. The defendant did not want to take
advantage of that. We held the exam. And the defendant now stands charged with
the six counts.
Right now, the guidelines, as potentially calculated, are about 14[¼] years
to 35 years, should he be convicted and should the OVs come out favorable to the
People. Now, in terms of a resolution, the People are willing to dismiss all but [the
two counts of first-degree CSC], and the potential guidelines range could be as low
as 10[½] years; and the People would not object to a Cobbs to the bottom of the
guidelines. [Emphasis added.]
Following a brief, off-the-record conversation with defendant, Jordan stated:
Your Honor, [defendant] understands everything that was just put on the record
regarding the guidelines and the prosecutor’s willingness to not object to the low
ends being given to [defendant]; however, [defendant] has said to me that it does
not make a difference; he would still like to exercise his right to a trial.
Defendant affirmed the accuracy of Jordan’s statement.
On the first day of trial, the prosecutor indicated that the plea offer was still open. The trial
court stated, “[A]nd so we’re clear, the bottom of the guidelines under that offer would be [10½]
years?” The prosecutor agreed. The trial court stated that if defendant were convicted at trial, his
sentencing guidelines range would be “just over 14 years to 35 years, plus the two [consecutive
years for felony-firearm] . . . [s]o that would be looking at 37 years . . . at the top.” Defendant was
sworn in, and his attorney, Richard Taylor, questioned him as follows:
1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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Q. Do you understand that the plea agreement is that you could plead either
guilty or no contest to the two counts of [first-degree CSC]? You understand that?
A. Yes.
Q. And in exchange for that plea, the remaining charges, the [felony-
firearm] as well as the unlawful imprisonment charges, those charges will be
dismissed?
A. I understand.
Q. And you understand that if those charges are dismissed, the calculation
of your guidelines right now would be, at the bottom end, . . . [10½] years?
A. I understand.
Q. And if those other charges are included, the minimum of your guidelines
will be 14 and (indiscernible)?
A. I understand.
Q. Understanding that, and that the [c]ourt would enter into a Cobbs
agreement with you upon a plea for the bottom of the guidelines as relates to the
two [first-degree CSC] charges at [10½] years . . . ?
A. I understand.
Q. And at this date, understanding that and hearing all that, it is your desire
that you decline the plea agreement and go to trial?
A. Yes, sir.
At sentencing, defendant’s sentencing guidelines range was calculated at 18 years, 9
months to 46 years, 10 months. The trial court granted the prosecution’s request for a 35-year
minimum sentence for the first-degree CSC convictions. The court further sentenced defendant to
terms of 10 to 30 years’ imprisonment for each unlawful imprisonment conviction, and two
consecutive two-year prison terms for the felony-firearm convictions.
Defendant has not established that his attorneys gave him constitutionally deficient advice
about the risks of rejecting the prosecution’s plea offer. On two occasions, the prosecutor stated
that he was willing to dismiss the unlawful imprisonment and felony-firearm charges and that he
would not object to minimum sentences of 10½ years for each count of first-degree CSC. On both
occasions, the parties estimated that defendant’s minimum sentences for CSC-I could be as high
as 35 years if he were convicted at trial. And on both occasions, defendant personally affirmed on
the record that he knowingly and voluntarily rejected the offer of 10½-year minimum sentences
for offenses that could be sentenced as high as 35 years.
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Although the parties underestimated defendant’s minimum sentencing guidelines range
before trial, this did not render any of defendant’s attorneys constitutionally deficient. Neither
defense counsel nor the prosecutor had the clairvoyance to predict with absolute accuracy how the
trial court would score the sentencing guidelines or what sentences the court would ultimately
impose. The defense attorneys reasonably relied on the prosecutor’s estimate of defendant’s likely
sentences under the plea-offer and trial-conviction scenarios. And the prosecutor’s estimates were
not drastically off; the minimum sentencing guidelines range shifted by only one cell.
Even if counsel’s performance was deficient, defendant did not establish the necessary
prejudice to warrant relief. Defendant maintained his innocence throughout the proceedings, even
at sentencing, and he twice rejected a very favorable plea agreement. Defendant has proffered no
reasonable explanation for why he would have accepted the plea offer if only his attorneys had
predicted his ultimate sentencing guidelines more accurately.
III. ADMISSION OF POLICE INTERVIEW
Defendant further contends that the trial court improperly admitted into evidence a video
recording of his interview with the investigating detective because the detective failed to advise
him of his Miranda2 rights first. Our review is limited to plain error affecting defendant’s
substantial rights as defendant failed to raise a contemporaneous objection or even to seek
suppression before trial. See People v Clark, 330 Mich App 392, 414; 948 NW2d 604 (2019).
“Miranda warnings are not required unless the accused is subject to a custodial
interrogation.” People v Steele, 292 Mich App 308, 316; 806 NW2d 753, 758 (2011). “Generally,
a custodial interrogation is a questioning initiated by law enforcement officers after the accused
has been taken into custody or otherwise deprived of his or her freedom of action in any significant
way.” Id., citing Yarborough v Alvarado, 541 US 652, 661; 124 S Ct 2140; 158 L Ed 2d 938
(2004). “The key question” in determining whether a custodial interrogation took place “is
whether the accused could have reasonably believed that he or she was not free to leave.” Id.
Defendant’s May 31, 2018 interview was not a custodial interrogation for Fifth
Amendment purposes. The detective asked defendant if he was willing to come to the station and
defendant voluntarily appeared. The detective advised defendant multiple times that he was not
under arrest, that the door to the interview room was unlocked, and that defendant was free to leave
at any time. Defendant repeatedly indicated that he understood. When defendant learned that CM
and MP had accused him of sexual assault, defendant actually did end the interview and left. The
detective did not try to stop him; in fact, he stated, “That’s fine.”
Given the nature of this encounter, the detective was not required to advise defendant of
his Miranda rights or to ensure that defendant waived them. Therefore, the videotape of the May
31, 2018 interview was admissible at trial despite that no such warnings were given. Defendant is
not entitled to relief.
2
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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IV. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor impermissibly asked the jury to infer defendant’s
guilt from his “silence” with the police. Specifically, defendant challenges the prosecutor’s
comments during closing argument that if there were an “innocent” explanation, defendant would
have provided that explanation in his interviews with the police instead of denying all knowledge
of the incident.
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999). Defendant failed
to preserve his challenge by raising a contemporaneous objection to the prosecutor’s statements,
limiting our review to plain error affecting defendant’s substantial rights. See People v Bennett,
290 Mich App 465, 475; 802 NW2d 627 (2010).
At trial, the investigating detective testified that he interviewed defendant on May 31, 2018,
and again after the preliminary examination in October 2018. Even after seeing MP and CM at
the exam, defendant “denied knowing these kids, never saw them, never heard of them, doesn’t
know anything about them.” No further mention was made of these interviews until closing
argument. The prosecutor then argued, “[I]f this was some other innocent situation, if they were
just playing basketball and something else went on, other than what the victims told you, certainly
the defendant would have told [the detective] that. But the defendant knew what he did.” The
prosecutor continued by arguing that defendant had a full picture of “what the situation is” by the
October interview and “could have then provided a statement to explain his version of what
happened.” “[W]hy wouldn’t he do that, unless he knows he’s guilty of what he did,” the
prosecutor inquired.
The prosecutor’s argument did not amount to misconduct. A prosecutor may not comment
on a defendant’s postarrest, post-Miranda-warning silence. People v Clary, 494 Mich 260, 271;
833 NW2d 308 (2013). But defendant was not silent. Rather, defendant denied any wrongdoing
or acquaintance with the victims. “Where a defendant makes statements to the police after being
given Miranda warnings, the defendant has not remained silent, and the prosecutor may properly
question and comment with regard to the defendant’s failure to assert a defense subsequently
claimed at trial.” Avant, 235 Mich App at 509.
Defendant’s rights were not so prejudiced in this case. Indeed, in closing arguments, a
prosecutor is permitted to argue any reasonable inference from the evidence but may not introduce
new or improper evidence. People v Unger, 278 Mich App 210, 236, 241; 749 NW2d 272 (2008).
As explained earlier, defendant’s statements denying any knowledge of the incident in the May
31, 2018 interview were admissible because they were made voluntarily during a noncustodial
interview. As defendant raised no objection or appellate challenge to the admission of his October
2018 statements, we presume that defendant was advised of and waived his rights. The prosecutor
properly commented on the actual statements made by defendant during those interviews,
statements expressly denying involvement in the incident. Because defendant’s Miranda rights
either did not apply or were voluntarily waived on the occasions in question, the prosecutor was
free to “comment with regard to the defendant’s failure to assert a defense subsequently claimed
at trial.” Avant, 235 Mich App at 509.
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If the prosecutor made any improper comment in his closing argument, he did so when he
asserted that “[m]ost people that are innocent, they’ll go in, they’ll talk to the police, they’ll tell
them what happened.” That comment was not supported by any evidence in the record. However,
this Court “cannot find [plain] error requiring reversal where a curative instruction could have
alleviated any prejudicial effect.” Unger, 278 Mich App at 235 (quotation marks and citation
omitted). The trial court clearly instructed the jury that the comments of the attorneys were not
evidence and that they “should only accept things that the lawyers say that are supported by the
evidence or by your own common sense and general knowledge.” “Curative instructions are
sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors
are presumed to follow their instructions.” Id. (citations omitted).
In any event, defendant cannot establish that he was prejudiced by the prosecutor’s
comments because the evidence strongly indicated his guilt. CM and MP both testified that a man
with an 8-ball tattoo on his forearm offered them marijuana and invited them back to his house,
where he performed oral sex on them at gunpoint. The police found a 9-milimeter handgun with
an extended magazine and a laser-sight, as described by CM and MP, in defendant’s basement.
DNA analyses revealed that defendant had contributed salivary DNA to stains on the outside and
inside of CM’s underwear. None of this evidence was meaningfully impeached or rebutted.
Accordingly, defendant is not entitled to relief.
V. SENTENCING GUIDELINES
Defendant finally argues that the trial court erroneously assessed 15 points for OV 8 (victim
asportation or captivity) and 15 points OV 10 (exploitation of vulnerable victim). “Whether the
facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate court
reviews de novo.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Under the
sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and
must be supported by a preponderance of the evidence.” Id.
MCL 777.38(1)(a) provides for the assessment of 15 points for OV 8 when “[a] victim was
asported to another place of greater danger or to a situation of greater danger or was held captive
beyond the time necessary to commit the offense.” Defense counsel asserted that 15 points was
insupportable in this case because MP and CM voluntarily accompanied defendant into his
basement. Although MP and CM agreed to accompany defendant, defendant lured the boys from
a public park to a secluded basement on false pretenses. Accepting defendant’s argument as true
would forgive predators for luring children into vans with candy; this was not the Legislature’s
intent. Defendant gained the trust of MP and CM through a pretended connection. He impaired
their faculties with marijuana. And then he lured the boys to his basement abode with promises
of marijuana, video games, and girls. Assessing points under OV 8 is warranted whenever a
defendant removes a victim to a place where a sexual assault is less likely to be discovered and
interrupted. People v Barrera, 500 Mich 14, 21-22; 892 NW2d 789 (2017). Defendant asported
his victims by subterfuge, and a 15-point score for OV 8 was warranted.
MCL 777.40 provides for the assessment of points for “exploitation of a vulnerable
victim.” MCL 777.40(1) requires the assessment of 15 points for “[p]redatory conduct,” and 10
points when “[t]he offender exploited a victim’s physical disability, mental disability, youth or
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agedness, or a domestic relationship, or the offender abused his or her authority status.” The court
assessed 15 points in this case, but defendant asserts that only 10 points were warranted. However,
the record supports that defendant engaged in “[p]redatory conduct,” i.e., “preoffense conduct
directed at a victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). “Predatory
conduct” for purposes of OV 10 has also been defined as “behavior that precedes the offense,
directed at a person for the primary purpose of causing that person to suffer from an injurious
action or to be deceived.” People v Cannon, 481 Mich 152, 161; 749 NW2d 257 (2008). In
illustration of those elements, our Supreme Court cited a case in which the defendant invited a
victim to accompany him to a store but instead forced her to smoke marijuana for two hours before
taking her to an unfamiliar house and sexually assaulting her. Id. at 263. Our Supreme Court
stated, “Clearly, the preoffense conduct of driving the victim around while forcing her to smoke
marijuana was undertaken to make the victim an easier target for the sexual assault. Thus, it was
done for the primary purpose of victimization.” Id.
Defendant’s conduct in this case resembles the case cited in Cannon. Defendant sought
out teenage boys at a local park. He tricked the boys into believing he was a family friend and
gave them marijuana to intoxicate them and make them easier targets. Defendant gave the boys a
false excuse to accompany him: a friendly evening of playing video games, calling girls, and
smoking marijuana. He did this to get the boys alone in a basement where he could sexually assault
them without interruption and with little chance of escape. The court’s assessment of 15 points
was more than adequately supported.
We affirm.
/s/ Anica Letica
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O’Brien
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