COA 368192 PEOPLE OF MI V JOHN CLINT BURCH Opinion - Per Curiam - Unpublished 5/11/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee/Cross-Appellant,
UNPUBLISHED
May 11, 2026
2:52 PM
v No. 368192
Clinton Circuit Court
JOHN CLINT BURCH, LC No. 2021-011034-FC
Defendant-Appellant/Cross-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 374419
Clinton Circuit Court
JOHN CLINT BURCH, LC No. 2021-011034-FC
Defendant-Appellee.
Before: KOROBKIN, P.J., and RIORDAN and MARIANI, JJ.
PER CURIAM.
Defendant, John Clint Burch, was convicted following a jury trial on two counts of first-
degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(i) (victim at least 13 but less than
16 years old and actor is member of same household). He appeals by right, contending that he
received ineffective assistance of counsel when his trial counsel did not object to the admission of
hearsay testimony. The prosecution, meanwhile, appeals defendant’s amended judgment of
sentence, arguing that defendant should have been assessed 50 points under offense variable (OV)
11, MCL 777.41 (criminal sexual penetration), and that the trial court erred in concluding that it

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was not authorized to impose consecutive sentences.1 For the reasons set forth in this opinion, we
affirm.
I. BACKGROUND AND FACTS
Defendant is the victim’s stepfather and was living with the victim when defendant began
sexually assaulting the victim. The assaults occurred in defendant’s bedroom and involved penile-
vaginal penetration and digital-vaginal penetration. The victim, who testified at trial, reported the
sexual assaults to a counselor, and Children’s Protective Services (CPS) then became involved.
CPS contacted the police, who interviewed defendant twice. Initially, defendant denied the
allegations; but in a second police interview, defendant admitted that he had penile-vaginal sexual
intercourse with the victim and signed a confession stating that he “had penis to vaginal sex with
[the victim] between 2-5 times” in his bedroom. The victim was examined by Dr. Stephen Guertin,
who took the victim’s medical history and conducted a physical examination. Dr. Guertin’s report
summarizing the examination results was admitted into evidence. During the trial, Dr. Guertin
testified about those results, including statements the victim made to Dr. Guertin about defendant.
A jury convicted defendant of two counts of CSC-I and the trial court initially sentenced
defendant to two consecutive sentences of 225 months to 40 years’ imprisonment. Defendant
subsequently filed a motion for new trial and to correct an invalid sentence. Defendant argued, in
pertinent part, that he was deprived of the effective assistance of counsel when his trial counsel
failed to object to Dr. Guertin’s testimony as inadmissible hearsay. Defendant also argued that he
was entitled to be resentenced because 50 points were incorrectly assessed under OV 11, MCL
777.41 (criminal sexual penetration), and because the trial court lacked authority to impose
consecutive sentences.
The trial court held a Ginther2 hearing on defendant’s ineffective-assistance-of-counsel
claim. Defendant’s trial counsel testified that defendant had “demanded that [his trial counsel]
introduce Dr. Guertin’s evidence at this trial. It was not a close call.” In particular, trial counsel
testified that defendant believed his defense would be helped, not harmed, by statements the victim
made to Dr. Guertin indicating that the victim did not experience certain physical indications of
sexual penetration at the time of the conduct, combined with Dr. Guertin’s observations during his
examination. Trial counsel further testified that defendant’s “whole case was based upon Dr.
Guertin’s testimony and admitting Dr. Guertin’s report.” Trial counsel also explained that he
believed the victim’s statements were not hearsay because they were made for medical purposes
and that whether the testimony was improper hearsay “was not an issue with” defendant. Trial
counsel additionally stated that he did not have any opinion on the admissibility of Dr. Guertin’s
report and testimony because defendant “was adamant” in wanting them admitted. The trial court
ultimately held that Dr. Guertin’s testimony as to what the victim reported during the examination
1 The prosecution also filed a cross-appeal. Because the prosecution’s appeal and cross-appeal
raise the same issues, we will not address them separately in this opinion.
2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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constituted inadmissible hearsay, but that defendant was not prejudiced given defendant’s signed
confession and because the victim’s testimony was consistent with Dr. Guertin’s testimony.
Regarding defendant’s challenge to his sentence, the trial court agreed with defendant that
OV 11 was incorrectly assessed at 50 points and that consecutive sentencing was improper,
reasoning that given “the lack of specificity and the lack of clear dates and times and instances of
when the sexual acts occurred[,]” there was insufficient evidence to allow the court to conclude
“that these acts occurred out of the same transaction.” The trial court therefore scheduled a hearing
to resentence defendant. Defendant’s updated presentence investigation report assessed 0 points
for OV 11 and calculated defendant’s minimum sentencing guidelines range to be 81 to 135
months’ imprisonment. The trial court resentenced defendant to a minimum of 120 months’
imprisonment for each CSC-I conviction, to be served concurrently.
Both parties now appeal. Defendant challenges the trial court’s ruling on his ineffective-
assistance-of-counsel claim and the prosecution challenges the changes made to defendant’s
sentence.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he is entitled to a new trial due to ineffective assistance of counsel.
We disagree.
“A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
People v Jones, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket No. 362854); slip op at 9.
We review a trial court’s findings of fact for clear error and “the ultimate constitutional issue
arising from an ineffective assistance of counsel claim de novo.” Id. (quotation marks and citation
omitted).
The United States and Michigan Constitutions guarantee criminal defendants the right to
effective assistance of counsel. People v Yeager, 511 Mich 478, 488; 999 NW2d 490 (2023),
citing Const 1963, art 1, § 20, US Const, Am VI, and Strickland v Washington, 466 US 668, 686;
104 S Ct 2052; 80 L Ed 2d 674 (1984). “To establish a claim of ineffective assistance of counsel
a defendant must show [1] that counsel’s performance was deficient and [2] that counsel’s deficient
performance prejudiced the defense.” People v Fyda, 288 Mich App 446, 450; 793 NW2d 712
(2010). Put another way, “to obtain a new trial because of ineffective assistance of counsel, a
defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that th[e] outcome would have been different.” Yeager, 511 Mich at 488 (quotation marks and
citation omitted). Our Supreme Court has explained that a reasonable probability that the outcome
would have been different “is a probability sufficient to undermine confidence in the outcome.”
Id. (quotation marks and citation omitted). “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.” Strickland, 466 US at 697.

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In this case, the prejudice prong of the ineffective-assistance inquiry is dispositive.
Defendant argues that his trial counsel performed deficiently by failing to object to Dr. Guertin’s
hearsay testimony about what the victim stated during Dr. Guertin’s examination. But even if
counsel performed deficiently, defendant had not demonstrated that there is a reasonable
probability that the outcome of defendant’s trial would have been different.
Two features of this case drive our analysis. First, the victim’s testimony about the assaults
was corroborated by defendant’s signed confession. And “[a] confession is like no other evidence.
Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence
that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself,
the most knowledgeable and unimpeachable source of information about his past conduct.’ ”
Arizona v Fulminante, 499 US 279, 296; 111 S Ct 1246; 113 L Ed 2d 302 (1991) (citation omitted;
alterations in original). Therefore, even if counsel had objected to Dr. Guertin’s hearsay testimony
and the trial court had refused to admit the testimony into evidence, it is unlikely the jury would
have reached a different verdict in light of the great weight carried by defendant’s confession to
the same allegations to which the victim testified. Thus, any error or deficiency by defendant’s
trial counsel in failing to object to the admission of Dr. Guertin’s testimony is “[in]sufficient to
undermine confidence in the outcome.” Yeager, 511 Mich at 488.
Second, trial counsel repeatedly testified at the Ginther hearing that defendant personally
and adamantly insisted that Dr. Guertin’s report and testimony come into evidence so that trial
counsel could cross-examine Dr. Guertin regarding the victim’s allegations in a manner designed
to elicit doubt as to defendant’s guilt. Arguably, if the evidence could have been excluded on
hearsay grounds, then trial counsel had an obligation to at least inform and advise defendant of
that option. But there is no record evidence that, had trial counsel done so, defendant would have
supported an objection to the hearsay testimony rather than continuing to demand that it come into
evidence. “The defendant has the burden of establishing the factual predicate of his ineffective
assistance claim.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). Yet defendant
did not testify at the Ginther hearing (other than to waive attorney-client privilege) or submit an
affidavit in support of his motion for new trial, and trial counsel’s testimony that defendant was
“adamant” about the evidence coming in went unrefuted. Thus, again, even if trial counsel
performed deficiently, defendant has not demonstrated that but for such deficiency there is a
reasonable probability that the outcome of the trial would have been different. See Yeager, 511
Mich at 488; Douglas, 496 Mich at 598. We therefore need not opine on the alleged deficiency of
counsel’s performance and conclude that defendant’s ineffective-assistance-of-counsel claim is
without merit. See Strickland, 466 US at 697.
B. SENTENCING
1. OV 11
The prosecution contends that the trial court erred in assessing defendant 0, rather than 50,
points under OV 11. We disagree.
“This Court reviews for clear error a trial court’s findings in support of a particular score
under the sentencing guidelines but reviews de novo whether the trial court properly interpreted
and applied the sentencing guidelines to the findings.” People v Teike, 348 Mich App 520, 525;

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19 NW3d 733 (2023) (quotation marks and citation omitted). “Clear error exists when this Court
is left with a definite and firm conviction that a mistake was made.” Id. at 526 (quotation marks
and citation omitted). “A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence investigation
report, admissions made by a defendant during a plea proceeding, or testimony taken at a
preliminary examination or trial.” People v Johnson, 298 Mich App 128, 131; 826 NW2d 170
(2012). “Under the sentencing guidelines, the circuit court’s factual determinations must be
supported by a preponderance of the evidence.” Teike, 348 Mich App at 526 (cleaned up).
MCL 777.41 provides, in relevant part, that a defendant should be assessed 50 points under
OV 11 when “[t]wo or more criminal sexual penetrations occurred” and 0 points when “[n]o
criminal sexual penetration occurred.” MCL 777.41(1)(a) and (c). “Vaginal penetration, fellatio,
and cunnilingus are considered separate sexual penetrations when scoring OV 11 under MCL
777.41.” Johnson, 298 Mich App at 132. MCL 777.41 further mandates the “[s]cor[ing] [of] all
sexual penetrations of the victim by the offender arising out of the sentencing offense” and that
“the 1 penetration that forms the basis of a first- . . . degree criminal sexual conduct offense” not
be included in the defendant’s OV 11 score. MCL 777.41(2)(a) and (c). “The Michigan Supreme
Court has defined ‘arising out of,’ as used in MCL 777.41, as something that springs from or
results from something else, has a connective relationship, a cause and effect relationship, of more
than an incidental sort with the event out of which it has arisen.” Johnson, 298 Mich App at 132
(quotation marks and citation omitted). “[T]his requires that there be such a relationship between
the penetrations at issue and the sentencing offenses.” People v Johnson, 474 Mich 96, 101; 712
NW2d 703 (2006).
In the present case, the prosecution argues that defendant should have been assessed 50
points under OV 11 because “it is more likely than not” that the other acts of penetration on which
evidence was presented “occurred during the acts of sexual intercourse forming the basis of the
charged offenses.” We are not persuaded. Although the victim did testify that there were “two or
three” instances of penile-vaginal penetration and that there was digital penetration, we find no
clear error in the trial court’s determination that a preponderance of the evidence did not show that
two or more additional penetrations “arose out of” either of defendant’s sentencing offenses. The
victim was unable to recall any specific incidents of abuse nor the exact number of assaults, and
the victim gave only a general time frame and described what time of day and where the assaults
occurred. Defendant’s confession did not provide more details beyond him having penile-vaginal
sex with the victim “between 2-5 times,” and the interviewing detective’s testimony did not
provide further details. Given the lack of evidence establishing a connective relationship between
defendant’s additional criminal sexual penetrations and the sentencing offenses, the trial court
properly assessed defendant 0 points under OV 11. See Johnson, 298 Mich App at 130, 132.
2. CONSECUTIVE SENTENCING
The prosecution additionally argues that the trial court erred in finding that there was an
insufficient factual basis to authorize a consecutive sentence, and thus remand is warranted to
allow the trial court to reinstate a consecutive sentence in its discretion. Again, we disagree.
“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Johnson, 350 Mich App 560, 568;

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___ NW3d ___ (2024) (Docket No. 362236) (quotation marks and citation omitted). “Whether a
consecutive sentence may be imposed is a question of statutory interpretation that we review de
novo.” People v Parker, 319 Mich App 410, 414; 901 NW2d 632 (2017). “A sentencing court’s
underlying factual findings in support of a sentence are reviewed for clear error.” People v Taylor,
510 Mich 112, 128; 987 NW2d 132 (2022). If the facts and the law allow a trial court to choose
between concurrent and consecutive sentencing, we review a trial court’s decision for abuse of
discretion. See People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016). “A trial court
necessarily abuses its discretion when it makes an error of law.” People v Wiley, 324 Mich App
130, 165; 919 NW2d 802 (2018).
“MCL 750.520b(3) provides that when a defendant is convicted of a charge of CSC-I, the
trial court may order [the] term of imprisonment imposed under this section to be served
consecutively to any term of imprisonment imposed for any other criminal offense arising from
the same transaction.” People v Bailey, 310 Mich App 703, 723; 873 NW2d 855 (2015) (quotation
marks omitted; alterations in original). “[A]n ongoing course of sexually abusive conduct
involving episodes of assault does not in and of itself render the crimes part of the same
transaction.” Id. at 725. “For multiple penetrations to be considered as part of the same
transaction, they must be part of a continuous time sequence, not merely part of a continuous
course of conduct.” Id. (quotation marks and citations omitted). Penetrations that “immediately
follow[]” each other are part of a continuous time sequence. See People v Ryan, 295 Mich App
388, 403; 819 NW2d 55 (2012).
As observed with respect to the trial court’s assessment under OV 11, although there was
evidence of penetration in this case, the victim did not recount specific instances of penetration
and testified only regarding the general timeline and the times of day when the assaults occurred.
There was thus no clear error in the trial court’s finding a lack of evidence that the multiple
penetrations occurred immediately following one another so as to be part of a continuous time
sequence and accordingly the same transaction. See id.; Bailey, 310 Mich App at 725. Having
made such a finding, the trial court was legally correct in concluding that it therefore did not have
authority, and thus no discretion, to impose consecutive sentences. Johnson, 350 Mich App at
568; Bailey, 310 Mich App at 726. So it necessarily did not err or abuse its discretion by imposing
concurrent sentences.
III. CONCLUSION
Because defendant has not established that his trial counsel’s allegedly deficient
performance prejudiced defendant, defendant is not entitled to a new trial. And because the trial
court did not clearly err in finding that the evidence supported assessing defendant 0 points under
OV 11 and sentencing defendant to concurrent terms of imprisonment, resentencing is not
warranted.
Affirmed.
/s/ Daniel S. Korobkin
/s/ Michael J. Riordan
/s/ Philip P. Mariani

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