PEOPLE v. WACLAWSKI, 286 Mich. App. 634

DONOFRIO, J. Defendant appeals as of right his jury trial convictions of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c, five counts of using a computer to produce child sexually abusive material, MCL 752.797(3), and one count of producing child sexually abusive material, MCL 750.145c(2).

The trial court sentenced defendant to 209 to 480 months’ imprisonment for the CSC-I conviction, 86 to 180 months’ imprisonment for both CSC-II convictions, and 95 to 240 months’ imprisonment for each of the remaining convictions, all sentences running concurrently. Because none of defendant’s arguments on direct appeal or contained in his Standard 4 brief merit relief, we affirm. i Defendant was initially arrested in Illinois when he traveled to that state to meet with a person he thought was a 14-year-old boy.

Defendant had “met” the boy through Internet chat room communications (electronic messages) and arranged to meet him for sex. The boy was in fact a police detective, and when defendant arrived at the assigned location he was arrested. When arrested, defendant admitted possessing child pornography on his computer. Subsequently, detectives in Michigan searched defendant’s home and office computers, revealing various pornographic images depicting underage boys and defendant.

The current charges resulted from a search of defendant’s computers, which revealed hundreds of images of male child pornography, some three dozen of which were taken in defendant’s home and depicted three boys. The three boys had all spent the night at defendant’s home on multiple occasions when no other adults were present. Three of the images, taken on August 23, 2001, allegedly depicted defendant performing fellatio on a 14-year-old boy with the first initial K. Other photographs, taken on March 1, 2000, allegedly depicted R a 12-year-old boy, with his penis being measured with a ruler.

Photographs taken on June 15, 2001, allegedly depicted M, a 10-year-old boy, who was also photographed with his penis being measured with a ruler. Discovery of these pictures resulted in the Michigan charges against defendant. The Attorney General’s office prosecuted the case and filed a notice seeking to admit evidence of online electronic messages (chats) defendant exchanged with two underage boys named “Coty” and “Jason” located in Ohio and Illinois, respectively. Both “Coty” and “Jason” were in fact police officers. The prosecutor argued that the evidence was admissible pursuant to MRE 404(

b) to prove defendant’s intent, motive, scheme, plan, or system in perpetrating criminal sexual acts. Defendant moved the trial court to suppress all evidence of his online chats in Ohio and Illinois. The trial court granted defendant’s motion to exclude the evidence in an opinion and order issued February 6, 2007, finding that the acts in Ohio and Illinois were “substantially different” from the acts alleged in the instant case and, therefore, the probative value was substantially outweighed by the danger of unfair prejudice.

The prosecutor applied for leave to appeal and moved to stay circuit court proceedings pending an interlocutory appeal. This Court granted the prosecutor’s application and motion for a stay in an unpublished order entered February 14, 2007 (Docket No. 276094). In an unpublished opinion issued October 11,2007, this Court reversed the circuit court’s February 6, 2007, order excluding other acts evidence and remanded the matter to the circuit court for trial. People v Waclawski, unpublished opinion per curiam of the Court of Appeals, issued October 11, 2007 (Docket No. 276094).

The Internet chats constituting the challenged “other acts evidence” were well documented by the panel that handled the interlocutoiy appeal in the previous unpublished decision of this Court, thus, we include a portion of the fact

section of that opinion detailing defendant’s internet chats: On February 25, 2006, defendant contacted “jason_12parma” in a chat room, and they exchanged messages for about 45 minutes, discussing fellatio and a possible future sexual encounter. Defendant asserted that he was a 42-year-old man from Monroe, and “Jason” claimed to be a 12-year-old boy living in Ohio. “Jason” was actually an undercover police officer.

Defendant and “Jason” communicated online on February 28,2006, March 4,2006, and March 6, 2006, discussing fellatio and the possibility of getting together so that defendant could perform fellatio on “Jason.” On March 4, 2006, defendant asked “Jason” if he had been circumcised and whether he had ever measured his penis. When “Jason” stated that he had never measured it, defendant asked him to estimate its size. On March 10, 2006, “Jason” contacted defendant and they communicated for about 90 minutes, discussing fellatio and arrangements they had made to meet on the following Friday.

Defendant stated that he would find a “nice hotel” and perform fellatio on “Jason.” On March 13, 2006, “Jason” contacted defendant, and they chatted about fellatio, masturbation, and the upcoming plans. On March 15, 2006, “Jason” contacted defendant, and they chatted about fellatio, masturbation, and they confirmed the upcoming plans for that Friday, March 17, 2006. Apparently, defendant did not arrive at the prearranged location on that date. Rather, he traveled to Wheaton, Illinois, for a similar encounter.

On March 4, 2006, defendant contacted “cotyme_91” in a chat room, and they exchanged messages for about 50 minutes, discussing fellatio, and specifically, defendant performing fellatio on “Coty.” “Coty” lived in Illinois and claimed to be a 14-year-old boy. “Coty” was actually an undercover police officer. On March 15, 2006, “Coty” contacted defendant, and they chatted online, discussing defendant performing fellatio on “Coty” and a possible encounter the following weekend. “Coty” stated that his penis was small, and defendant asked how small.

On March 17, 2006, “Coty” and defendant made arrangements to meet at a park in Wheaton on March 18, 2006, and go to defendant’s hotel room, where defendant planned to perform fellatio on “Coty.” When defendant arrived at the meeting place, he was arrested. In July 2006, defendant was convicted of indecent solicitation of a child, 720 Ill Comp Stat 5/11-6, and sentenced to two years in prison. [Id. at 2.] In reversing the circuit court’s order excluding the other acts evidence, this Court found that “the circuit court’s discretion was exercised within an erroneous legal framework.” Id. at 4.

This Court then remanded the case back to the trial court for reconsideration of the issue in light of this Court’s opinion. Id. On remand, at a hearing on November 2, 2007, the trial court revisited the other acts evidence issue and reversed itself, holding that it would allow the evidence under MRE 404(b) “insofar as it is logically relevant.” The matter eventually proceeded to a jury trial where defendant was convicted as charged. Defendant now appeals as of right.

II Defendant first argues that this Court must dismiss the charges against him because the prosecution failed to bring him to trial within 120 days of its request for disposition under the Interstate Agreement on Detainers (IAD), MCL 780.601. “We review for an abuse of discretion a trial court’s decision on a motion to dismiss.” People v Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005). A court abuses its discretion when it selects an outcome outside the range of reasonable and principled outcomes.

People v Uphaus (On Remand), 278 Mich App 174, 181; 748 NW2d 899 (2008). “However, we review for clear error a trial court’s attributions of delay.” Stone, supra at 242. “Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made.” Id. “Additionally, we review de novo the

interpretation and application of statutes.” Id. There are two subparts to this issue on appeal. First, there is the question whether the 120-day or the 180-day deadline set by the IAD applies to the facts of this case. It does not appear that the trial court ever addressed this question. Next, the second question involves the application of either the 120-day or the 180-day deadline to the procedural history of this case and whether pursuant to the IAD the trial court abused its discretion when it denied defendant’s motion for dismissal of the charges against him for violating his rights under the IAD.

A “ ‘Forty-eight States, [including Michigan,] the Federal Government, and the District of Columbia . .. have entered into the Interstate Agreement on Detainers ....’” People v Swafford, 483 Mich 1, 8; 762 NW2d 902 (2009), quoting Alabama v Bozeman, 533 US 146, 148; 121 S Ct 2079; 150 L Ed 2d 188 (2001). “The purpose of the IAD is to facilitate the prompt disposition of outstanding charges against an inmate incarcerated in another jurisdiction.” People v Patton, 285 Mich App 229, 232; 775 NW2d 610 (2009). In Michigan, the IAD was enacted into law by MCL 780.601.

Article III (extradition instituted by the prisoner — time limit 180 days) and

Article IV (extradition instituted by the prosecutor — time limit 120 days) of the IAD are relevant to whether the 120-day or the 180-day period applies in this case:

Article III (

a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers’ jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. (

b) The written notice and request for final disposition referred to in paragraph (

a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. (

c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based. (

d) Any request for final disposition made by a prisoner pursuant to paragraph (

a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner.

Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. (

e) Any request for final disposition made by a prisoner pursuant to paragraph (

a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (

d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law. (

f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (

a) hereof shall void the request.

Article IV (

a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with

Article V(

a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: And provided further, That there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. (

b) Upon receipt of the officer’s written request as provided in paragraph (

a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor. (

c) In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, hut for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. (

d) Nothing contained in this

Article shall he construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (

a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery. (

e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to

Article V(

e) hereof, such indictment, information or complaint shall not he of any further force or effect, and the court shall enter an order dismissing the same with prejudice. [Emphasis added.] The parties are at odds about which document triggered the IAD and, as a result, which time line applies in the matter, 120 days or 180 days. The trial court did not make any findings in this regard. Defendant argues that the prosecutor initiated the application of the IAD’s procedures pursuant to

Article IV of the IAD on August 10,2006, when the prosecutor sent a request for custody of defendant to the Illinois Department of Corrections (IDOC) through a standard Form V of the IAD “Request for Temporary Custody,” in order to bring defendant back to Michigan to face the untried charges. The form lists the charges against defendant and states that the prosecutor “requests] temporary custody of the prisoner pursuant to

Article IV(

a) of the Interstate Agreement on Detainers (IAD).” The form was addressed to the prison warden and is signed by the prosecuting officer as well as a 40th District Court judge. Defendant further asserts that he made no valid request for extradition pursuant to the IAD. It appears from the record that on September 8, 2006, defendant completed Form I of the IAD “Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition,” and Form II of the IAD “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints.” Form I demands that he be brought to trial within 180 days pursuant to

Article IV of the IAD. Defendant alleges that the IDOC failed to mail his Form I to the 40th District Court. The prosecutor’s brief on appeal indicates that the IDOC did not send the defendant’s Form I request. For all these reasons, defendant asserts that the IAD mandates that he be brought to trial within 120 days of his arrival in Michigan subject only to tolling for delays requested by the defense pursuant to

Article IV of the IAD. The prosecutor responds that the 180-day period under

Article III controls in this case because defendant did not acknowledge the prosecutor’s

Article IV request and instead filed his own demand to be tried on the instant charges in Michigan under

Article III. The prosecutor contends that defendant acted contrary to his right to be tried within 120 days of his arrival in Michigan under

Article IV when he demanded to face the Michigan charges within 180 days of his request under

Article III. The prosecutor asks this Court to hold that by initiating his own

Article III request defendant waived his right to the shorter 120-day period. The prosecutor cites no Michigan law for this proposition and instead cites cases from other states and federal districts. The prosecutor also does not address the Form I mailing situation, wherein it appears that defendant’s Form I request was never mailed by the IDOC or received by the district court.

The prosecutor ignores this Court’s holding in People v Gallego, 199 Mich App 566, 574; 502 NW2d 358 (1993), that “[o]nce a detainer is filed, it is then that the IAD is triggered and compliance with the provisions of the agreement is required.” This Court recently cited Gallego in its holding in Patton, supra.

The Patton Court stated, “There is no exact definition of the term ‘detainer,’ but ‘it has generally been recognized to mean written notification filed with the institution in which a prisoner is serving a sentence advising that the prisoner is wanted to face pending charges in the notifying state.’ ” Patton, supra at 232 n 1, quoting Gallego, supra at 574.

There is no doubt that the prosecutor sent a request for custody of defendant to Illinois on August 10, 2006, through a standard Form V of the IAD “Request for Temporary Custody,” in order to bring defendant back to Michigan to face the untried charges before any action was taken on defendant’s part. The form clearly lists the charges against defendant and states that the prosecutor “requests] temporary custody of the prisoner pursuant to

Article IV(

a) of the Interstate Agreement on Detainers (IAD).” The form was addressed to Warden Deirdre Battaglia and is signed by the prosecuting officer as well as a 40th District Court judge on August 10, 2006. Pursuant to both Patton and Gallego, Form V of the IAD meets the generally recognized requirements of the term “detainer.” Patton, supra at 232 n 1, quoting Gallego, supra at 574. As such, pursuant to Gallego once the prosecutor initiated Form V, “ ‘the IAD is triggered and compliance with the provisions of the agreement is required.’ ” Patton, supra at 232, quoting Gallego, supra at 574. Because

Article IV of the IAD was triggered by the prosecutor’s completion and submission of Form V compliance with the triggered provision is required, and therefore the appropriate time limit is 120 days pursuant to

Article IV(c). Id. B Next, we must address whether the trial court abused its discretion is declining to dismiss the charges against defendant because of the prosecutor’s failure to bring defendant to trial within the IAD’s proper time line, which we have just determined is 120 days pursuant to

Article IV(c). A prisoner who is transferred to Michigan under

Article IV(

c) of the IAD must be tried within 120 days of his or her arrival in the state, MCL 780.601. “Failure to strictly comply with the 120-day provision requires the trial court to dismiss any charges brought against the defendant under the IAD.” Stone, supra at 243. “However . . . the 120-day time limit may be tolled for any period that is the result of any necessary or reasonable continuance for good cause shown in open court with the defendant or the defendant’s counsel present.” Id. “[S]uch a continuance includes any period of delay caused by the defendant’s request or ordered to accommodate the defendant.” Id. IAD

Article IV(

c) states specifically, “In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” MCL 780.601. “ [I]f a delay is caused by the defendant’s request or in order to accommodate the defendant, the period of delay attributable to defendant is not used in calculating the 120-day time period.” People v Cook, 95 Mich App 645, 653; 291 NW2d 152 (1980).

Here, the parties disagree on the assignment of days throughout the protracted proceedings. We have scoured the record and present the following

summary of the procedural history of the case. The Illinois court sentenced defendant on July 20, 2006, and defendant remained incarcerated in Illinois under the jurisdiction of the IDOC. On August 10, 2006, the Michigan Attorney General’s office requested that defendant be transferred to Michigan custody pursuant to the IAD, MCL 780.601. Defendant was extradited to Michigan on October 10, 2006. After defendant requested adjournment of the preliminary examination three times, the district court bound defendant over for trial on December 8, 2006.

Trial was scheduled to start January 17, 2007, then adjourned to February 15, 2007. In the mean time, the prosecutor filed a notice seeking to admit evidence of defendant’s online chats with “Coty” and “Jason” pursuant to MRE 404(b). Defendant moved in the trial court to suppress evidence of his online chats and the trial court did so in an opinion and order issued February 6, 2007. The prosecutor applied for leave to appeal and moved to stay circuit court proceedings pending an interlocutory appeal. This Court granted the prosecutor’s application and motion for a stay in an order entered February 14, 2007.

This Court reversed the trial court’s order excluding other acts evidence and remanded the matter to the circuit court for trial on October 11, 2007. People v Waclawski, unpublished opinion per curiam of the Court of Appeals, issued October 11, 2007 (Docket No. 276094).

On remand, at a hearing on November 2, 2007, the trial court revisited the other acts evidence issue and reversed itself, holding that it would allow the evidence under MRE 404(b) “insofar as it is logically relevant.” Immediately following remand, defendant moved in the trial court to dismiss all charges against him on the basis of the denial of his rights under the protections of the IAD. The trial court considered defendant’s motion at a hearing held November 13, 2007.

Defendant argued that under the IAD, the state was required to bring defendant to trial within either 120 or 180 days and that both of those periods had passed even if one deducted delays and adjournments attributable to defendant are deducted. Defendant specifically argued that the delay in bringing him to trial because of the interlocutory appeal in Docket No. 276094 — a total of 239 days from February 14 to October 11, 2007 — was attributable to the prosecutor.

Defendant pointed out that the prosecutor knew of the time restraints placed by the IAD, yet still pursued the appeal and a stay of proceedings pending appeal even though the challenged other acts evidence was not necessary for trial. It was defendant’s position that because well over 180 days had passed, the circuit court no longer had jurisdiction over the charges and defendant was entitled to dismissal with prejudice. The prosecutor argued that dismissal was appropriate only where the prosecution committed egregious mistakes and that delays over the time limits were allowed where reasonable and for good cause.

The prosecutor argued specifically that the Court of Appeals obtained jurisdiction over the matter when it granted the application and effectively found good cause to delay the trial when it granted a stay of circuit court proceedings pending appeal. Furthermore, the prosecutor contended that because any effective continuance was granted for good cause, the time limits set by the IAD were tolled and defendant was not denied his right to a speedy trial under the statute.

The trial court denied defendant’s motion, explaining as follows: This court cannot find any bad faith on behalf of the People and your motion is denied .... I believe that the People acted in good faith. The Court of Appeals in its wisdom took as long as they took for whatever reason. This court was always prepared to proceed to trial. And I don’t believe that a liberal construction would mandate that the People’s ability to appeal what obviously was an error on this court’s

part in its

interpretation of the law should be held against the state of Michigan and its People. The circuit court signed a handwritten order denying defendant’s motion on November 13, 2007. That order set a trial date of December 13, 2007. Defendant then moved to stay the trial pending an interlocutory appeal to this Court. The trial court considered that motion at a hearing held November 16, 2007. In a handwritten order signed November 16, 2007, the trial court denied defendant’s motion to stay the trial but adjourned the trial date to January 15, 2008.

The order states that the delay caused by this adjournment should be attributed to defendant. Defendant indeed applied to this Court for leave to appeal the trial court’s November 13, 2007, order denying his motion to dismiss the charges against him on the basis of the denial of his right to a speedy trial under the IAD. Defendant moved for immediate consideration and to stay circuit court proceedings because his trial was scheduled to begin on January 15, 2008.

This Court denied defendant’s application for leave to appeal “for failure to persuade the Court of the need for immediate appellate review” in an order dated January 11, 2008. People v Waclawski, unpublished order of the Court of Appeals, entered January 11, 2008 (Docket No. 282315). While his application was pending in this Court, on January 7, 2008, defendant moved to substitute counsel and the trial court granted that request and appointed new counsel to represent him.

The trial court adjourned the trial until an undetermined date and used the former January 15, 2008, trial date to conduct a pretrial conference. At the January 15, 2008, pretrial conference, defendant’s attorney requested an additional week to review the trial materials. The pretrial conference was adjourned until January 24, 2008. Defendant’s counsel informed the trial court on January 24, 2008, that he had not completed his review of the record and requested an extension. As a result of the defense request, the trial court adjourned the status conference until February 19, 2008.

On February 19, 2008, the trial court set defendant’s trial for March 25, 2008. But on March 17, 2008, defendant requested another adjournment to prepare for trial. The trial court initially denied the request, but reconsidered after the prosecutor expressed concern that defense counsel would not be ready for trial. The trial court ultimately agreed and stayed trial until May 6, 2008. Defendant’s jury trial finally commenced on May 6, 2008.

In the interest of clarity, we have assigned responsibility for all the days of the procedural history of the case to either the prosecutor or defendant as charged at each relevant event in the record leaving a space for “days in question.” In doing so, we followed the rule articulated in Cook, supra at 652-653, that delays attributable to the defendant are charged against the defendant as well as the dictates of MCR 1.108 in setting forth the following time schedule.

DATES EVENT DAYS TO DEFENDANT (DAYS TOLLED) DAYS TO PROSECUTOR (DAYS RUN) DAYS IN QUESTION 10/10/2006 Defendant arrives in Michigan. 10/10/2006-10/24/2006 Time between defendant’s arrival in MI and first hearing on 10/24/2006. 14 10/24/2006-11/17/2006 On 10/24/2006 defendant requests that his preliminary examination be adjourned to 11/17/2006. 24 11/17/2006-12/1/2006 On 11/17/2006 defendant requests adjournment of his preliminary exam to 12/1/2006. 14 12/1/2006-12/8/2006 Defendant and his attorney failed to attend the scheduled hearing on 12/1/2006.

Defense attorney had filed a motion in advance of that day and the trial court granted it stating explicitly that the delay would he charged against defendant. 7 12/8/2006-1/11/2007 Defendant was bound over for trial on 12/8/2006 and his trial date was scheduled for 1/17/2007.

Defendant was arraigned in circuit court on 12/18/2006. 34 1/11/2007-2/14/2007 On 1/11/2007 defendant requests adjournment of trial date to 2/15/2007 because defense counsel stated that he was not ready for trial. 34 2/14/2007-10/11/2007 COA grants prosecutor’s motion for leave to appeal and stays trial. 239 10/11/2007-11/2/2007 COA remands case to trial court and stay is lifted in the trial court. 22 11/2/2007-11/13/2007 On 11/2/2007 defendant requests that the trial court not set a trial date until the next hearing on 11/13/2007 in order to wait for a decision on defendant’s motion regarding the IAD and defendant himself states that “this case is nowhere near ready to be tried.” 11 11/13/2007-11/16/2007 On 11/13/2007 trial date is set for 12/13/2007. 3 11/16/2007-1/15/2008 On 11/16/2007 defendant requests a stay to file an application for leave to appeal to the COA which the trial court denied, but instead granted an adjournment of the 12/13/2007 trial date to 1/15/2008.

Then, defendant’s request for new counsel was granted on 1/7/2008 and the 1/15/2008 trial date was converted into a pretrial conference date. 60 1/15/2008-1/24/2008 Trial did not commence as scheduled on 1/15/2008 because defendant’s new counsel requested additional time to review the file to determine what discovery was needed before a new trial date could be set. 1/24/2008-2/19/2008 On 1/24/2008 defendant requested additional time to review the remainder of the discovery materials and coordinate with previous counsel.

The trial court granted the request and set a final pretrial date for 2/19/2008. 26 2/19/2008-3/17/2008 On 2/19/2008 trial date is set for March 25, 2008. 27 3/17/2008-5/6/2008 On 3/17/2008 defense counsel requests adjournment of trial until 5/6/2008 in order to adequately prepare for trial. 50 5/6/2008 Jury trial commences 0 TOTAL 235 100 239 A total of 574 days passed from the time defendant was extradited to Michigan on October 10, 2006, to his trial date of May 6, 2008.

After reviewing the record, it is clear that 127 days passed from October 10, 2006, to February 14, 2007, when this Court issued its order granting leave and staying circuit court proceedings in Docket Number 276094, 239 days passed from this Court’s February 14, 2007, order to the date of its October 11, 2007, opinion in Docket Number 276094, and 208 days from October 11, 2007, to the trial date on May 6, 2008. Defendant argues that under

Article IV(

a) and (

c) of the IAD, the prosecutor and the circuit court were required to bring him to trial within 120 days of his being extradited to Michigan on October 10, 2006. Our review of the record reveals that because the prosecutor was responsible for only 100 days (20 less than 120), the sole relevant issue is whether the 239-day period when trial was stayed by this Court is somehow attributed to the prosecutor and counted toward the 120-day deadline set by

Article IV In the trial court, the prosecutor contended that because any effective continuance was granted for good cause, the time limits set by the IAD were tolled and those days did not count against the prosecutor. The trial court agreed and denied defendant’s motion on November 13, 2007. The goal of judicial

interpretation of a statute is to ascertain and give effect to the intent of the Legislature. People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). “ ‘The first step in that determination is to review the language of the statute itself.’ ” Id. (citation omitted). Thus, if the language is clear, no further construction is necessary or allowed to expand what the Legislature clearly intended to cover. People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). Again,

Article IV(

c) of the IAD states specifically, “In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” MCL 780.601. While the prosecution sought leave to appeal, it did so to correct the circuit court’s erroneous decision on defendant’s motion to exclude evidence, and the issue on appeal was resolved in the prosecutor’s favor.

This Court granted the application and stay of proceedings on the basis of its determination that the prosecutor’s appeal had potential merit and clearly was one that needed to be resolved before the case went to trial. As such, the stay granted by this Court’s February 14, 2007, order was a continuance that was both “necessary” and “reasonable” and was granted “for good cause shown” by a “court having jurisdiction of the matter” as required by the plain language of

Article IV(c). See, also, People v Meyers (On Remand), 124 Mich App 148, 156; 335 NW2d 189 (1983) (Pretrial delay caused by the need to obtain a transcript necessary to resolve a defendant’s pretrial motion was found “necessary” and “reasonable” and tolled the running of the 120-day period under the IAD.) Thus, the 239-day delay when trial was stayed by this Court is not attributed to the prosecutor and is likewise not counted toward the 120-day deadline set by

Article IV We find further support for our holding on this issue in

Article IX of the LAD which states that, “[t]his agreement shall be liberally construed so as to effectuate its purposes.” Again, the prosecution sought leave to appeal the circuit court’s decision on the evidentiary issue in an attempt to right the circuit court’s incorrect decision on defendant’s motion to exclude the other acts evidence. This Court granted the application and stay because it believed that the prosecutor’s appeal had merit and plainly needed to be resolved before the case proceeded to trial.

Should the trial be lost after the prosecutor was denied the right to submit legally admissible evidence, jeopardy would have attached precluding an appeal on the evidentiary point. People v Henry, 248 Mich App 313, 318; 639 NW2d 285 (2001) (both the United States Constitution and the Michigan Constitution prohibit placing a defendant twice in jeopardy for a single offense).

While defendant argues that the prosecutor could go forward without the improperly excluded evidence, the people have a right to a “criminal justice system in which the discovery of the truth [is] facilitated.” People v Yost, 483 Mich 856, 859 (2009) (MARKMAN, J., concurring). The discovery of the truth relies on a process whereby all legally admissible evidence is admitted allowing the fact-finder a true picture of the events.

Defendant has not provided any reason for us to ignore these pillars of the criminal law and instead interpret the IAD, a statutory time relief rule, in such a manner so as to allow a jury trial to proceed riddled with error to defendant’s strategic advantage. It can even be said that defendant in fact created the circumstance that necessitated the delay when he sought to exclude the relevant other acts evidence.

We cannot allow a defendant to trigger a situation whereby he or she creates an opportunity for the defendant to deny the people their right to have the defendant sentenced for his or her criminal deeds in contravention of the aims of the criminal law. Ultimately, this Court resolved the issue on interlocutory appeal in favor of the prosecutor. Under the specific circumstances presented in the instant case, the language of the statute is plain and it controls, meaning that no further construction is necessary. Borchard-Ruhland, supra at 284. We also take this opportunity to point out that the requirement in

Article IV(

c) that good cause be shown in “open court [with] the prisoner or his counsel being present” is simply inapplicable to this Court. This Court does not conduct oral argument hearings in application matters. The requirement that a continuance be granted only in open court with the presence of defendant or counsel is obviously meant to limit adjournments granted ex parte to the prosecutor. As a general rule this Court will not consider ex parte applications and motions. See Court of Appeals IOP 7.209(I).

The docket entries in Docket Number 276094 show that defendant was given the opportunity to respond to the prosecutor’s application and motion and filed an answer to the application before it was submitted to the panel, which effectuates the same purpose. Furthermore, in this particular case, defendant, an attorney and former prosecutor, stated on the record at a hearing before the trial court on January 7, 2008, that he was aware that he did not have a right to appear at a proceeding before the Court of Appeals. Given

Article IX’s instruction that the IAD’s provisions should be liberally construed to effectuate its purpose, this Court’s February 14, 2007, order is not deemed outside the scope of LAD

Article IV(

a) and (

c) merely because it was entered without the physical presence of defendant or his counsel. Because of the dearth of law on this issue, the prosecutor raises alternative grounds to affirm the trial court’s conclusion that the 239-day delay caused by the prosecutor’s interlocutory appeal to this Court should not be assigned to the prosecutor and not count toward the running of the 120-day deadline set by the LAD.

The prosecutor urges this Court to apply the body of law applicable to the speedy trial rules because both the LAD and the speedy trial rules effectuate the same purpose, citing United States v Odom, 674 F2d 228, 231-232 (CA 4, 1982).

The prosecutor also cites United States v Cephas, 937 F2d 816, 819 (CA 2, 1991), wherein it is stated: Given the similarities in the case-law development of excludable time under the two acts, and in the interests of consistent judicial administration, we now expressly hold that the “for good cause shown” standard of the detainer act should encompass the same conditions and circumstances as the rules for excludable time under the speedy-trial act. [Id.\ Indeed, this Court has held that the time the prosecution takes to successfully pursue an interlocutory appeal is “taken out of the calculation” for purposes of an alleged speedy trial violation.

People v Missouri, 100 Mich App 310, 321; 299 NW2d 346 (1980). (See

Section III of this opinion for a full discussion of the rules relating to speedy trial requirements). We do conclude that the bodies of law are analogous and find the speedy trial cases instructive.

For all these reasons, we conclude that the circuit court did not clearly err by holding that the 239-day delay caused by this Court’s February 14, 2007, order staying proceedings would not count toward the running of the 120-day deadline set by the IAD. hi Defendant next argues that he was deprived of his Sixth Amendment right to a speedy trial when 19 months lapsed between his arrest and the commencement of his trial as a result of delays largely attributable to the prosecution. The determination whether a defendant was denied a speedy trial is a mixed question of fact and law.

People v Walker, 276 Mich App 528, 540; 741 NW2d 843 (2007), vacated in part on other grounds 480 Mich 1059 (2008). The factual findings are reviewed for clear error, while the constitutional issue is a question of law subject to review de novo. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). In addition, this Court must determine whether any error was harmless beyond a reasonable doubt. Walker, supra at 540. Violation of the constitutional right to a speedy trial requires dismissal of the charge with prejudice. MCR 6.004(A); Walker, supra at 541.

Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20; see also MCL 768.1; MCR 6.004(A). In determining whether a defendant has been denied this right, this Court applies a four-part balancing test. Williams, supra at 261-262. The four factors include: “(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.” Id. The first and fourth factors are critical to our analysis.

If the total delay, which runs from the date of the defendant’s arrest until the time that trial commences, id. at 261, is under 18 months, then the burden is on the defendant to show that he or she suffered prejudice. People v Cain, 238 Mich App 95, 112; 605 NW2d 28 (1999). However, if the delay is over 18 months, prejudice is presumed and the burden is on the prosecution to rebut the presumption. Id. Applying these principles to the present matter, we cannot conclude, despite the length of delay in this matter, that the trial court erred by finding that defendant’s right to a speedy trial was not violated. A.

LENGTH OF DELAY Because the length of the delay between the issuance of defendant’s arrest warrant on April 11, 2006, and the start of his trial on May 9, 2008, was approximately 24 months, the delay was presumptively prejudicial and the burden is on the prosecution to rebut the presumption. Cain, supra at 112. Although the length of delay in this case is considerable, there is no set number of days between a defendant’s arrest and trial that is determinative of a speedy trial claim.

Williams, supra at 261; also see People v Cutler, 86 Mich App 118, 126-127; 272 NW2d 206 (1978) (37-month delay, but no violation); People v Smith, 57 Mich App 556, 563-567; 226 NW2d 673 (1975) (19-year delay, but no violation). In any case, this factor weighs in defendant’s favor and, because the delay in this case is presumptively prejudicial, it is necessary for us to examine the remaining factors. Williams, supra at 262. B. REASONS FOR DELAY In assessing the reasons for delay, this Court must examine whether each period of delay is attributable to the defendant or the prosecution.

Walker, supra at 541-542. “Unexplained delays are charged against the prosecution. Scheduling delays and docket congestion are also charged against the prosecution.” Id. at 542. However, “Although delays inherent in the court system, e.g., docket congestion, are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial.” Williams, supra at 263 (citations and quotation marks omitted). In the chart above in

part 11(

B) of this opinion we clearly delineated whether certain delays were the fault of the prosecutor or defendant. The only amount of time we must include here that is not in the chart is the time between defendant’s arrest warrant being issued in Michigan on April 11, 2006, and his arrival in Michigan on October 10, 2006. Defendant could not be arrested in Michigan because he was already detained in Illinois on other criminal charges. Defendant pleaded guilty to the Illinois charges on July 27, 2006.

On August 10, 2006, the prosecutor then initiated the IAD process in order to have defendant extradited to Michigan to face the charges pending against him here. Clearly defendant needed to be brought back to Michigan to face the charges in Michigan but that could not happen until the Illinois matter was resolved and the administrative process of the IAD instituted. We therefore assign the days between April 11, 2006, and July 27, 2006, to defendant because defendant was unavailable to be tried in Michigan at that time as a result of his own criminal behavior, arrest, and detention.

After defendant pleaded guilty to the Illinois charges he became available for transfer to Michigan and thus, we assign the days beginning on July 28, 2006, until October 10, 2006, to the prosecutor. On the whole, these delays simply cancel each other out. The remainder of the reasons for the delays are easily discemable from the record and we have outlined them in the chart above in

part 11(

B) of this opinion. The prosecutor was responsible for 100 days of delay from the time defendant arrived in Michigan until his trial, defendant was responsible for 235 days of delay, and the remaining 239 days are a result of the delay associated with the interlocutory appeal brought to this Court by the prosecutor. As a result, defendant’s main contention is that the delay caused by the prosecutor’s interlocutoiy appeal that was pending before this Court for 239 days should be weighed against the government.

However, this Court has held that the time the prosecution takes to successfully pursue an interlocutory appeal is “taken out of the calculation.” Missouri, supra at 321. Thus, we do not assign this delay any weight in favor of either the prosecutor or defendant. Because the 239 day delay is not attributable to either party, this factor weighs against defendant because he was responsible for more than twice the number of days than the prosecutor. C. ASSERTION OF RIGHT There is some consternation between the parties about when defendant asserted his right to a speedy trial.

Defendant states that he submitted his demand for a speedy trial to the 40th District Court on July 20, 2006, from the Illinois jail. However the prosecutor points out that the only demand for a speedy trial that is contained in the court record is dated as having been received by the Macomb Circuit Court on December 27, 2007. Because defendant’s claim that he submitted his demand for a speedy trial on July 20, 2006, is not supported by the record, we must credit only the request by defendant that is supported by the record, and that is the one dated December 27, 2007.

The trial court did not even address the matter until a hearing on April 28, 2008, only a few weeks before trial. Because defendant’s trial began little more than five months after he filed his December 27, 2007, speedy trial demand, this factor weighs only the slightest in defendant’s favor. D. PREJUDICE With respect to prejudice, in his brief on appeal, defendant does not offer much of an explanation regarding how he was prejudiced by the delay. The prosecutor states that defendant was not prejudiced at all by the delay between the date of the arrest warrant and his trial date.

In assessing this factor, this Court recognizes that “there are two types of prejudice^] prejudice to the person and prejudice to the defense.” People v Wickham, 200 Mich App 106, 112; 503 NW2d 701 (1993). “Prejudice to the defense is the more serious concern, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Williams, supra at 264 (quotation marks and citations omitted).

Our Supreme Court has repeatedly recognized in the context of lengthy pretrial incarcerations that the most significant concern is whether the defendant’s ability to defend himself or herself has been prejudiced. Id. Defendant makes no claim that because of the delay he was somehow unable to defend himself. To the contrary, the record shows that throughout the time defendant was awaiting trial he was represented by three different attorneys at his request, and that his attorneys continued to request more time in order to prepare for trial.

Defendant himself once admitted to the trial court that the case was nowhere near ready to be tried. The prosecutor points out that there is no indication that a potential defense witness was lost or that other exculpatory evidence was misplaced during the delay. After reviewing the record, we conclude that defendant was not prejudiced by the delay. Accordingly, this factor weighs heavily against defendant. E.

CONCLUSION Although a 24-month delay is presumptively prejudicial and defendant did assert his right to a speedy trial, because the reasons for the delay weighed against defendant and defendant’s ability to prepare a defense was not prejudiced, we conclude that the trial court properly held that defendant’s right to a speedy trial was not violated! iv Defendant next argues that he is entitled to a new trial on the basis that the trial court abused its discretion by allowing the jury to be exposed to unfairly prejudicial other acts evidence and he notes that even a cursory review of the record reveals that one of the primary reasons defendant stands convicted is the evidence admitted over defense objection that defendant sent sexually explicit electronic messages over the Internet to individuals he believed were minors.

The admissibility of other acts evidence is within the trial court’s discretion and will be reversed on appeal only when there has been a clear abuse of discretion. People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998); People v McGhee, 268 Mich App 600, 609; 709 NW2d 595 (2005). A court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007).

The determination whether the probative value of evidence is substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment of the presentation, credibility, and effect of the testimony. People v Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002). Defendant specifically contends that he is entitled to a new trial because the trial court abused its discretion by allowing the jury to be exposed to unfairly prejudicial other acts evidence of his online chats in Ohio and Illinois under MRE 404(b).

He asserts that review of the chats reveals that the conduct involved was entirely dissimilar from the charged offenses. The prosecutor responds that the trial court acted properly within its discretion by admitting the other acts evidence because it was probative with regard to defendant’s intent to commit first-degree criminal sexual conduct as well as his common scheme of targeting minor male victims. Use of other acts as evidence of character is excluded, except as allowed by MRE 404(b), to avoid the danger of a conviction based on a defendant’s history of misconduct.

People v Starr, 457 Mich 490, 495; 577 NW2d 673 (1998); People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005). A prosecutor may not introduce evidence of other crimes, wrongs, or acts in order to prove a defendant’s character or propensity for criminal behavior. MRE 404(b); People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). However, the evidence may be “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing

an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.” MRE 404(b)(1). Our Supreme Court in People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004), stated as follows: In People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), this Court articulated the factors that must be present for other acts evidence to be admissible. First, the prosecutor must offer the “prior bad acts” evidence under something other than a character or propensity theory.

Second, “the evidence must be relevant under MRE 402, as enforced through MRE 104(b) [.]” Id. Third, the probative value of the evidence must not be substantially outweighed by unfair prejudice under MRE 403. Finally, the trial court, upon request, may provide a limiting instruction under MRE 105. “MRE 404(b) ‘permits the admission of evidence on any ground that does not risk impermissible inferences of character to conduct.’ ” People v Watson, 245 Mich App 572, 576; 629 NW2d 411 (2001), quoting Starr, supra at 496.

After reviewing the record, we conclude that the challenged evidence clearly demonstrates both intent and identity, as well as common scheme, plan, or system.

Evidence that defendant questioned two persons that he believed to be male children under the age of 15 in Illinois and Ohio about their penis size, solicited them for the purpose of performing fellatio, arrived in Illinois with a digital camera, and admitted to the Illinois police that he intended to use the camera to take sexually explicit pictures of “Coty” shows that defendant intended to perform fellatio on K and measure the penises of M and E The evidence also demonstrates defendant’s intent to photograph these incidents and defendant’s identity as the person who in fact performed the acts depicted in the photographs.

Regarding common scheme, plan, or system, clearly defendant selected male children under the age of 14 as his target victims, he had specific desires to inquire regarding their penis size, measure their penis size with a ruler, perform fellatio on them, and take sexually explicit photographs of the victims. Furthermore, defendant pleaded not guilty to all charges brought against him in Michigan. All elements of a criminal offense are “in issue” when a defendant pleads not guilty. Crawford, supra at 389. Relevant evidence must be related to a fact that is of consequence to the action.

People v Sabin (After Remand), 463 Mich 43, 57; 614 NW2d 888 (2000). Because the evidence of defendant’s possession of a digital camera in Illinois and his online chats with “Jason” and “Coty” regarding fellatio and penis size make it more likely that defendant performed fellatio on K, measured the penises of M and R and photographed the incidents it is plainly relevant. MRE 401; MRE 402. The probative value of the evidence is not outweighed by the danger of unfair prejudice under MRE 403.

Unfair prejudice occurs “when there is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it would be inequitable to allow use of the evidence.” People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002). On defendant’s computer, the police found three photographs of someone performing fellatio on K, a 14-year-old boy, photographs of R a 12-year-old boy, who was photographed with his penis being measured, and photographs of M, a 10-year-old boy, who was photographed with his penis being measured.

As discussed above, the evidence of the online chats in Ohio and Illinois supply proof that defendant intended to perform fellatio on K who was the same age as “Coty” and two years older than “Jason.” The evidence of the chats and the digital camera also supply proof that defendant intended to measure the penises of M, who was two years younger than “Jason” and four years younger than “Coty,” and I] who was the same age as “Jason” and two years younger than “Coty.” Further, this evidence provides proof that defendant was the person portrayed in the photographs and that he intended to photograph all these incidents.

In sum, the evidence fulfilled purposes of supplying proof of intent, identity, and common scheme, plan, or system and it was relevant and more probative than prejudicial.

To the extent that the prosecution also offered evidence of the Ohio and Illinois chats to prove defendant’s identity as the perpetrator, in People v Ho, 231 Mich App 178, 186; 585 NW2d 357 (1998), this Court stated: Although the VanderVliet Court adopted a new test for admission of evidence under MRE 404(b), the four-part test of People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982), remains valid to show logical relevance where similar-acts evidence is offered to show identification through modus operandi. People v McMillan, 213 Mich App 134, 138; 539 NW2d 553 (1995).

The Golochowicz test requires that (1) there is substantial evidence that the defendant committed the similar act (2) there is some special quality of the act that tends to prove the defendant’s identity (3) the evidence is material to the defendant’s guilt, and (4) the probative value of the evidence sought to be introduced is not substantially outweighed by the danger of unfair prejudice. Golochowicz, supra at 307-309. Here, there is substantial evidence that defendant committed the other acts in Illinois and Ohio.

He was convicted of indecent solicitation of a child in Illinois, and he used the same screen name to communicate with “Jason” in Ohio. The online chats in Ohio and Illinois, coupled with the discovery of defendant’s digital camera in Illinois and his admission to the Illinois police that he intended to use the camera to take sexually explicit pictures of “Coty,” show a special quality or circumstance because they show defendant’s fixation on the penis size of prepubescent boys and his preoccupation with performing fellatio on them, as well as his desire to photograph these acts.

Defendant argues that as a result of the admission of the other acts evidence the jury convicted him because he was a “bad man.” But, the trial court provided a comprehensive limiting instruction to the jury that the prior acts evidence could only be considered for very limited purposes. “It is well established that jurors are presumed to follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). After reviewing the record, this Court concludes that the trial court’s decision to admit the evidence under MRE 404(

b) was within the range of principled outcomes and not an abuse of discretion. V Next, defendant argues that his conviction for first-degree criminal sexual conduct must be vacated because there was a violation of due process guarantees when the trial court instructed the jury that mere touching could be sufficient to support a guilty verdict and when the jury was not instructed on which act was proven beyond a reasonable doubt. He further asserts that defense counsel was ineffective by failing to request the unanimity instruction.

The prosecutor responds that the jury instructions make clear that the prosecutor must demonstrate entry into defendant’s mouth by the victim’s penis and asserts that no error occurred. Issues of law arising from jury instructions are reviewed de novo on appeal, but a trial court’s determination whether an instruction was applicable to the facts of the case is reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).

The reviewing court must balance the general tenor of the instructions in their entirety against the potentially misleading effect of a single isolated sentence. People v Freedland, 178 Mich App 761, 766; 444 NW2d 250 (1989). Over defense counsel’s objection, the trial court read the following jury instruction on the elements of first-degree criminal sexual conduct: The Defendant is charged with the crime of first-degree criminal sexual conduct. To prove this charge, the Prosecutor must prove each of the following elements beyond a reasonable doubt.

First, that the Defendant engaged in a sexual act that involved entry into Defendant’s mouth hy [K’s] penis. Any entry, no matter how slight, is enough. It does not matter whether the sexual act was completed or whether semen was ejaculated and/or the Prosecutor must prove beyond a reasonable doubt the touching of [K’s] genital organs with the Defendant’s mouth or tongue. Second, that the alleged sexual act occurred under circumstances that also involved child sexually abusive activity, production.

A trial judge must instruct the jury as to the applicable law, and fully and fairly present the case to the jury in an understandable manner. McGhee, supra at 606; People v Moore, 189 Mich App 315, 319; 472 NW2d 1 (1991).

To prove CSC I under MCL 750.520b(l)(a), the prosecution was required to show that defendant engaged in sexual penetration with another person under the age of thirteen. “Sexual penetration” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” MCL 750.520a(r). “Fellatio” is not defined in the statute, but this Court has interpreted the act of fellatio to require the entry of a penis into another person’s mouth.

People v Reid, 233 Mich App 457, 480; 592 NW2d 767 (1999). The Reid Court interpreted fellatio not to consist of merely any oral contact with the male genitals. Id. (“ ‘[F]ellatio’ does not consist merely of ‘any oral contact with the male genitals,’ but rather requires entry of a penis into another person’s mouth.”) (emphasis and citation omitted). The prosecutor urges that Reid must be overruled because its

interpretation of fellatio is inconsistent with the plain language of the statute. We agree that the Reid Court’s

interpretation of fellatio is fundamentally flawed and contrary to the plain language of the statute. Again, if the plain language of the statute is clear and unambiguous, no further construction is necessary, and this Court must enforce the statute as written. Borchard-Ruhland, supra at 284. Because “fellatio” is not defined in the statute, this Court may look to a dictionary definition. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 427; 751 NW2d 8 (2008).

Random House Webster’s College Dictionary (1997), p 478, defines “fellatio” as “oral stimulation of the penis.” In this case, the prosecutor has provided three photographs that were shown to the jury during trial. We have viewed the photographs and one of them shows an image of what is alleged to be defendant’s face perpendicular to the victim’s penis with his tongue out of his mouth in contact with the victim’s penis. We conclude on the basis of the image in the photograph that defendant was indeed orally stimulating the victim’s penis with his tongue.

Therefore, under the dictionary definition, what is depicted in the photograph would constitute fellatio. However, what is depicted in the photograph would not constitute fellatio as interpreted by this Court in Reid, supra at 480. We conclude that the definition of “fellatio” as adopted by Reid is incorrect because it ignores the plain meaning of the term and therefore the language of the statute. That being said, this Court is bound by its own decision in Reid, by virtue of MCR 7.215(J)(1).

However, this issue may be decided more simply when considering that two other photographs depicting fellatio were shown to the jury at trial. We have reviewed the photographs. Both of the other photographs show images depicting defendant with his mouth open and the victim’s penis inside defendant’s mouth. The pictures clearly depict fellatio as interpreted by Reid. Reid, supra at 480. Even if somewhat imperfect, instructions do not create error if they fairly presented the issues to be tried and sufficiently protected the defendant’s rights. People v Clark, 274 Mich App 248, 255-256; 732 NW2d 605 (2007).

The instructions must include all the elements of the crime charged and any material issues, defenses, and theories for which there is supporting evidence. McGhee, supra at 606.

Given the photographic evidence admitted in this case, the trial court’s use of the phrase “touching of [the victim’s] genital organs with Defendant’s mouth or tongue” in instructing the jury does not defeat the required showing of penetration, when the trial court also instructed that fellatio required “entry into Defendant’s mouth by [the victim’s] penis.” Again, when reviewing a trial court’s jury instructions, this Court must look at the instructions as a whole, rather than the potentially misleading effect of a single isolated sentence. Aldrich, supra at 124.

Even if somewhat imperfect, instructions do not create error if they fairly present the issues to be tried and sufficiently protect the defendant’s rights. Id. We conclude that while somewhat imperfect, the jury instructions make clear that the prosecutor must demonstrate entry into defendant’s mouth by the victim’s penis and, as a result, fairly presented the issues to be tried and sufficiently protected defendant’s rights. Id. We find no error. Defendant also argues that the trial court erred by failing to give a specific unanimity instruction and that his attorney was ineffective for failing to request one.

Because defendant failed to request a special unanimity instruction, or challenge the trial court’s failure to give such an instruction, this issue is unpreserved. Thus, our review is limited to plain error affecting defendant’s substantial rights. Knox, supra at 508. “A defendant has the right to a unanimous verdict and it is the duty of the trial court to properly instruct the jury on this unanimity requirement.” People v Martin, 271 Mich App 280, 338; 721 NW2d 815 (2006). In this case, the trial court gave a general unanimity instruction, which is usually sufficient. Id.

But as further explained in Martin, the trial court must give a specific unanimity instruction where the state offers evidence of alternative acts allegedly committed hy the defendant and “1) the alternative acts are materially distinct (where the acts themselves are conceptually distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the factual basis of defendant’s guilt.” [Id., quoting People v Cooks, 446 Mich 503, 524; 521 NW2d 275 (1994).] Defendant does not provide any factual or legal basis to show why a general unanimity instruction was insufficient in this case.

We cannot analyze what defendant has not presented. “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).

Without defendant’s explaining his argument, this Court must conclude that the general unanimity instruction was sufficient. Martin, supra at 338. Similarly, defendant has provided no basis for his ineffective assistance of counsel claim that was based on this issue. Defendant has not shown error. VI Defendant argues that he is entitled to resentencing because the trial court misscored offense variables (OV) 4, 9, 10, and 12. Defendant also argues that he is entitled to resentencing on counts 2 through 9 because his sentences amounted to an upward departure unsupported by substantial and compelling reasons.

The prosecutor responds that the trial court scored the offense variables consistent with the evidence introduced at trial and did not abuse its discretion during sentencing. Preserved scoring issues are reviewed “to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). Defendant preserved this issue by objecting to the scoring of Offense Variables 4, 9, 10, and 12 in the trial court.

Generally, the application of statutory sentencing guidelines is reviewed de novo. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). The sentencing court has discretion in determining the number of points to be scored provided that there is evidence on the record that adequately supports a particular score, People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002), and thus this Court reviews the scoring to determine whether the sentencing court properly exercised its discretion and whether the evidence adequately supported a particular score.

People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). In general, “[s]coring decisions for which there is any evidence in support will be upheld.” People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). A. OV 4 Defendant first argues that the 10 points scored for, MCL 777.34, OV 4 was incorrect. He argues specifically that the score is erroneous because no support exists for it in the record. OV 4 deals with the degree of psychological injury suffered by a crime victim. MCL 777.34. Ten points are properly scored when serious psychological injury requiring professional treatment occurred to a victim.

People v Hicks, 259 Mich App 518, 535; 675 NW2d 599 (2003); MCL 777.34. The fact that professional treatment was not sought is not conclusive when scoring the variable. People v Wilkens, 267 Mich App 728, 740; 705 NW2d 728 (2005); MCL 777.34(2). The trial court stated as follows in regard to OV 4 during sentencing: It’s quite clear, whether the victim has sought treatment for the injury is not conclusive and it simply says may require professional treatment.

After hearing the testimony, after seeing their demeanor, after witnessing not only their testimony but also the taped statements made by them, I am confident that it would be illogical to assume that they did not suffer some type of psychological trauma and that they will continue to do so. Defendant’s argument that there is no support in the record for the scoring of 10 points is belied by the record. K testified that defendant had been a friend and a father figure to him and that defendant exploited that relationship to sexually abuse him and that he was “pretty angry” about what happened to him.

K’s mother also indicated that K was angry and that he had tried to block out memory of the abuse. On the basis of the testimony and the trial court’s observations, the trial court reasonably concluded that the victims suffered serious psychological injury as a result of defendant’s abuse and properly scored defendant at 10 points for OV 4. B. OV 9 Defendant argues that no points should have been scored for OV 9, MCL 777.39, because only one victim was placed in danger on the dates in question in this case.

Defendant claims that the events involving K are alleged to have occurred on August 23, 2001, and there are no photos of P or M with that date. Further, defendant claims that the events involving P are alleged to have occurred on March 1, 2000, and there are no photos of K or M from that date. And finally, defendant asserts that the events involving M are alleged to have occurred on June 15, 2001, and there are no photos of K or P from that date.

He states that on these dates there was only one victim and that no others were present and thus no others could have been “placed in danger of injury or loss of life as a victim.” MCL 777.39(2)(a). MCL 777.39 provides, in pertinent part:

(1) Offense variable 9 is number of victims. Score offense variable 9 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (

c) There were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss...........................10 points

(2) All of the following apply to scoring offense variable 9: (

a) Count each person who was placed in danger of physical injury or loss of life or property as a victim. In People v Sargent, 481 Mich 346, 351; 750 NW2d 161 (2008), our Supreme Court found that it was improper for a trial court to score OV 9 at 10 points where the alleged second victim claimed that the defendant had sexually molested her in a separate, uncharged offense.

During its discussion, the Court stated, “[W]hen scoring OV 9, only people placed in danger of injury or loss of life when the sentencing offense was committed (or, at the most, during the same criminal transaction) should be considered.” Id. at 350.

The Court noted situations where scoring for multiple victims would be appropriate even where only one conviction resulted, stating, “For example, in a robbery, the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present at the scene of the robbery who were placed in danger of injury or loss of life.” Id. at 350 n 2.

This language was consistent with the holding in People v Morson, 471 Mich 248, 253, 261-262; 685 NW2d 203 (2004), where the Court held that 10 points were properly assessed under OV 9 when the defendant, who waited in a car while her friend robbed a person using a gun provided by the defendant, endangered two victims during the armed robbery, the woman who was robbed and another man standing nearby who was shot by the perpetrator. See also id. at 277 (YOUNG, J., concurring in part and dissenting in part).

Here, the trial court found in the instant case as follows in regard to OV 9: [I]t’s clear to me that is [sic] doesn’t matter whether the person was actually a victim, as long as there were more than one person placed in danger. At any point in time, from what I recall throughout the testimony, there was more than one person placed in danger because more than one person spent the night in the home. While defendant attempts to make an argument that piggybacks our Supreme Court’s holding in Sargent, supra, the facts here are substantially different from those in Sargent.

Here, there was significant evidence that both M and P would sometimes spend the night at defendant’s home with K. Simply because there are no pictures of M and P on the night that K was assaulted does not mean that they were not present and the same goes for the other victims. On the basis of the testimony, it seems more reasonable that the other boys were sleeping while defendant was assaulting his chosen victim. There was even testimony from P that he woke up one night and saw defendant kneeling down by K’s bed.

Clearly the record demonstrates that defendant had a choice of victims when K and his friends would stay the night at his house while sometimes watching pornography and drinking alcohol provided by defendant, and also supports the conclusion that defendant would choose a victim while the other boys were present.

We conclude that the trial court properly scored defendant 10 points for OV 9 because the record supports the inference that at least two other victims were placed in danger of physical injury when the sentencing offenses were committed. c. ov 10 Defendant next argues regarding OV 10, MCL 777.40, that the record does not establish by a preponderance of the evidence that there was predatory conduct within the meaning of OV 10 and thus the trial court erred when it scored defendant at 15 points for exploitation of victim vulnerability because “predatory conduct” was involved.

Offense variable 10 is exploitation of a vulnerable victim. It provides for the following scoring: (

a) Predatory conduct was involved.................15 points (

b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status................................................................10 points (

c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious...............................................................5 points (

d) The offender did not exploit a victim’s vulnerability .......................................................................0 points “[T]o be considered predatory, the conduct must have occurred before the commission of the offense.” People v Cannon, 481 Mich 152, 160; 749 NW2d 257 (2008). “In addition, preoffense conduct must have been directed at a victim ‘for the primary purpose of victimization.’ ” Id. at 161, quoting MCL 777.40(3)(a). Our Supreme Court set forth the following analytical questions to determine whether the conduct in question was predatory:

(1) Did the offender engage in conduct before the commission of the offense?

(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?

(3) Was victimization the offender’s primary purpose for engaging in the preoffense conduct? [Id. at 162.] “If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 ....” Id. The trial court stated as follows when it found predatory conduct and assessed defendant the maximum of 15 points: Predatory conduct is an offender’s pre-offense conduct directed at a victim for the primary purpose of vietimization [MCL 777.40(3)(a)].

As indicated by the Prosecutor, this trial transcript is replete with Defendant’s continued predatory conduct in establishing a long-term relationship with these young men, a relationship wherein they looked at him as kind of a big brother, kind of like the mature adult, somebody that they could go to, somebody that allowed them to behave in whatever manner they wanted to while they were in him home, because he didn’t have any restrictions while they were in his home.

They were allowed, even though they testified they didn’t overindulge, they were allowed to drink, they were allowed to smoke, they were allowed to do whatever they wanted to. Hence, he established a predatory con

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