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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DAVID GADDIS STUCKEY, Defendant-Appellant.

UNPUBLISHED February 19, 2009

No. 281764 Shiawassee Circuit Court LC No. 07-005024-FC

Before: Sawyer, P.J., and Servitto and M. J. Kelly, JJ. PER CURIAM. Defendant appeals as of right his jury convictions of first-degree criminal sexual conduct, MCL 750.520b(1)(a) (engaging in sexual penetration with a person under the age of thirteen) (CSC I), and second-degree criminal sexual conduct, MCL 750.520c(1)(a) (engaging in sexual contact with a person under the age of thirteen) (CSC II). The trial court sentenced defendant to 5 to 20 years in prison for his CSC I conviction, and to 5 to 15 years in prison for his CSC II conviction. Because we conclude that there were no errors warranting relief, we affirm. Defendant first argues that the prosecutor committed misconduct when she suggested that defendant and his wife were bad parents during her closing argument. These comments, defendant contends, deprived him of a fair trial. Because defendant's trial counsel did not object to these comments, the claim of error is unpreserved. See People v Nimeth, 236 Mich App 616, 625; 601 NW2d 393 (1999). We review unpreserved claims of prosecutorial misconduct for plain error affecting the defendant's substantial rights. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004). The test of prosecutorial misconduct is whether, when examining the prosecutor's remarks in context, the defendant was denied a fair and impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the guilt or innocence of the accused. People v Rice (On Remand), 235 Mich App 429, 438; 597 NW2d 843 (1999). Although a prosecutor is not allowed to argue facts not in evidence, Watson, 245 Mich App at 588, prosecutors are free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case, People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008).

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During closing argument, the prosecutor commented on defendant's testimony, and that of defendant's wife, Annette, and his daughter, Heather: It's a classic example of when all else fails just deny. They have formed a circle around the family unit and they're gonna' stick together

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