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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOSHUA J. FIELDS, Defendant-Appellant.

UNPUBLISHED January 12, 2012

No. 301385 Muskegon Circuit Court LC No. 10-054902-FH

Before: HOEKSTRA, P.J., and MARKEY and BORRELLO, JJ. PER CURIAM. Defendant appeals as of right his jury trial conviction for fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e(1)(b). The trial court sentenced defendant to 40 days in jail with credit for one day, and 36 months' probation. We affirm. Defendant worked as a massage therapist for Nail Care Studio. On November 3, 2009, the victim came to the studio to receive a massage. The victim testified that during the course of the massage, defendant, without warning or the victim's permission, pulled down her underwear and briefly rubbed her upper genital area; he also touched her left breast. The victim told defendant that what he had done was inappropriate, and defendant apologized. Thereafter, the victim paid for the massage and left the studio. The victim reported the incident to the police on November 9, 2009. During their investigation, the police recorded a telephone conversation between the victim and defendant in which defendant admitted that he was attracted to the victim and apologized for his "inappropriate" behavior. Defendant said that he was "very ashamed." At trial, the jury listened to the recorded telephone call. The prosecution charged defendant with two separate counts of CSC IV: Count I, touching the victim's genital area; Count II, touching the victim's left breast. The jury found defendant guilty of Count I, but not guilty of Count II. Defendant first argues that the trial court committed error requiring reversal by failing to give the jury a specific unanimity instruction. We disagree. Defendant did not preserve this issue for appeal because he did not request a specific unanimity instruction or object to the trial court's instruction based on the lack of a specific unanimity instruction. People v Gadomski, 232 Mich App 24, 29-30; 592 NW2d 75 (1998). We review this unpreserved claim for plain error affecting a defendant's substantial rights. People v Grayer, 252 Mich App 349, 352; 651 NW2d 818 (2002). -1-

To convict defendant of CSC IV, the prosecution was required to prove that defendant used force or coercion to accomplish the sexual contact. MCL 750.520e(1)(b). The statute lists alternative circumstances that constitute force or coercion. MCL 750.520e(1)(b)(i) through (v). The prosecution argued the evidence showed two forms of force or coercion: that defendant achieved the sexual contact in a manner or for a purpose that was medically unethical or by the element of surprise. MCL 750.520e(1)(b)(iv) and (v). Defendant argues on appeal that the trial court was required to give a specific unanimity instruction that instructed the jury that it must unanimously agree on at least one of the prosecution's two theories of force or coercion. Both the United States and Michigan Constitutions guarantee a criminal defendant the right to a unanimous verdict. People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994); US Const, Am VI; Const 1963, art 1,

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