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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JEREMY JOHN GIBSON, Defendant-Appellant.

UNPUBLISHED September 22, 2009

No. 285486 Monroe Circuit Court LC No. 07-036029-FC

Before: Donofrio, P.J., and Wilder and Owens, JJ. PER CURIAM. Defendant appeals as of right his jury trial conviction for first-degree criminal sexual conduct (multiple variables), MCL 750.520b(1)(f). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 37 to 70 years' imprisonment for the first-degree criminal sexual conduct conviction. We affirm defendant's conviction, but vacate defendant's sentence and remand for resentencing for the reasons explained herein. I. Prosecutorial Misconduct Defendant first argues that the prosecutor violated defendant's constitutional rights when she argued that defendant, who elected to testify at trial, was the only witness with a motive to lie. We disagree. Defendant failed to articulate a timely and specific objection to an allegedly improper statement in order to preserve a claim of prosecutorial misconduct. People v Unger, 278 Mich App 210, 234-235; 749 NW2d 272 (2008). An unpreserved allegation of prosecutorial misconduct is reviewed for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To overcome forfeiture of an issue under the plain error rule, a defendant must demonstrate that: "(1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the defendant." People v Pipes, 475 Mich 267, 279; 715 NW2d 290 (2006). A plain error affects a defendant's substantial rights when the error results in outcome determinative prejudice. Id. Even if a defendant can show that a plain error affected a substantial right, reversal is appropriate only where "the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Carines, supra at 763.

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As a general rule, "prosecutors are accorded great latitude regarding their arguments and conduct." People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Moreover, prosecutors are "free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case." Id. A prosecutor is not required to present her arguments using only the blandest terms possible. People v Matuszak, 263 Mich App 42, 56; 687 NW2d 342 (2004). Moreover, it does not constitute prosecutorial misconduct where the prosecutor argues from the facts that the defendant is unworthy of belief. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Defendant asserts that it was improper for the prosecutor to argue during closing argument that defendant was the only witness with a motive to lie. Defendant argues that these comments constitute an impingement upon his right to testify because a testifying defendant is necessarily motivated to lie in order to avoid conviction. However, when we view the prosecutor's closing argument in context and in light of defendant's arguments, the prosecutor's comments do not rise to the level of prosecutorial misconduct. "Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial." People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Here, the prosecutor argued that the victim, D.F., had no motive to lie regarding her allegation that defendant had sexually assaulted her. Specifically, the prosecutor relied upon the evidence provided by Emma Linzy, a sexual assault nurse examiner, regarding the procedures used to collect evidence following an alleged sexual assault, and argued that if D.F. had fabricated her claim that she did not consent, it was likely that D.F. would have terminated her examination when the procedure became uncomfortable. However, the prosecutor argued further, because D.F. continued to undergo the sexual assault examination, which involved pulling her pubic hair, a vaginal examination and an anal swab, she had no motive to fabricate her testimony. Conversely, defendant, during closing argument, argued that D.F. could have been motivated to fabricate: This is what happened. They had consensual sex in the park, that's all it was. It was no more or no less, and somehow this woman ended up on this treadmill because of what happened. At the hospital her boyfriend's saying, well, you know, you're all upset, you better go down and do this. Maybe she just didn't want to tell her boyfriend what she had done. Maybe she thought it was gonna impact the surgery she was having the next day. I don't know, she didn't say, but it

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