People of Michigan v. David Reymundo Orosco ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 16, 2015
Plaintiff-Appellee,
v No. 319523
Ingham Circuit Court
DAVID REYMUNDO OROSCO, LC No. 13-000067-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.
PER CURIAM.
Defendant, David Reymundo Orosco, was convicted following a jury trial of four counts
of criminal sexual conduct, second degree (CSC-2nd), MCL 750.520c(1)(b), and was sentenced
to serve 85 months to 30 years in prison on each count, with all sentences to run concurrently.
Defendant was also ordered to submit to global positioning system monitoring. He appeals as of
right. We affirm.
I. BACKGROUND FACTS
Defendant’s convictions arise out of sexual abuse perpetrated on the victims, V.R. and
M.R., who were the grandchildren of and were later adopted by defendant’s wife. V.R. testified
that one night when she was 11 years old, she had been sleeping in her bedroom when she was
awakened by defendant, who had lifted her nightshirt and was touching her breasts. V.R.
testified that a few weeks later defendant found her in her sister’s bedroom at night and touched
her breasts again. After this incident, according to V.R., defendant touched her breasts
“practically every week.” V.R. testified that the incidents eventually escalated to defendant
touching her genitals at night.
V.R. testified that one night when she was awakened by defendant approaching her, she
told him to “stop” in a loud voice, and defendant left her alone. However, she was later
awakened again when she noticed defendant “spooning” or holding M.R., her sister. M.R.
recalled that during this incident, she was awakened by defendant, who was lying next to her and
touching her buttocks. M.R. testified that she pushed defendant’s hand away twice and he put it
back both times. V.R. took M.R. upstairs, and the next morning V.R. told her grandmother about
defendant’s assaults. V.R. testified that her grandmother sent defendant to “rehab” following her
disclosure, but he returned to the family home after a few months. Eventually, V.R. confided in
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an aunt, who removed V.R. and M.R. from their grandmother’s home to her home. V.R. testified
that she decided to report her allegations against defendant soon after moving in with her aunt.
At trial, the victims’ mother testified, pursuant to MCL 768.27a, that she had also been
sexually abused by defendant when she was a child. She testified that defendant began abusing
her by touching her genital area over her clothes when she was in elementary school. She also
described other incidents in which defendant woke her up at night and touched and stared at her
breasts, as well as another incident when defendant made her touch his genitals. She said that
when she was a teenager, defendant forced her to engage in intercourse on one occasion, and that
the abuse ended about two years before her eighteenth birthday. As discussed in more detail
below, she testified that she could not recall the dates of any of the incidents, but remembered
that they happened during her childhood. With prompting, she was able to recall how old she
was on certain dates when defendant was incarcerated during her childhood, but she testified that
she could not be sure when the abuse occurred. She only recalled that defendant abused her
before and after he was incarcerated.
Defendant testified on his own behalf at trial. He testified that he was often incarcerated
during the victims’ mother’s youth, and that it would have been impossible for him to have
abused her because he was incarcerated. He also denied touching the victims in a sexual manner.
He noted that he “might touch [V.R.] when I have blackouts.” He later clarified that he never
touched her in a sexual manner, and that any touching occurred merely because he was trying to
brace his fall. Defendant claimed that he suffered from blackouts for many years.
II. JUDICIAL BIAS
Defendant argues that the trial judge informed the jury of her opinion through her
supportive comments to the victims and her aggressive, hostile questioning of defendant.
According to defendant, the court’s conduct “pierced the judicial veil of impartiality,” and
denied him a fair trial. Defendant did not raise his claim before the trial court. Accordingly, our
review is for plain error affecting substantial rights. People v Jackson, 292 Mich. App. 583, 597;
808 NW2d 541 (2011). Defendant also argues that to the extent counsel did not object, he
provided ineffective assistance. Defendant moved this Court for remand and raised an issue
regarding counsel’s performance in regard to the trial court’s comments. This Court denied the
motion, and our review of defendant’s ineffective assistance of counsel claim is limited to the
facts contained in the record. People v Horn, 279 Mich. App. 31, 38; 755 NW2d 212 (2008).
A defendant’s right to a fair and impartial trial is guaranteed by the Sixth Amendment of
the United States Constitution, and article 1, § 20 of the Michigan Constitution. People v
Conley, 270 Mich. App. 301, 307; 715 NW2d 377 (2006). Although a trial court may question
witnesses in order to clarify testimony or elicit additional relevant information, the court’s
discretion in questioning witnesses is not unlimited. MRE 614(b); People v Conley, 270 Mich
App 301, 308; 715 NW2d 377 (2006). “If the trial court’s conduct pierces the veil of judicial
impartiality, a defendant's conviction must be reversed.” Conley, 270 Mich. App. at 308 (citation
and quotation omitted). In determining whether the trial court’s comments pierced the veil of
judicial impartiality, we consider “whether the trial court's conduct or comments were of such a
nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and
impartial trial.” Id. (citation and quotation marks omitted).
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A. STATEMENTS TO THE VICTIMS
After V.R. testified, the trial court instructed her—as it had done with other witnesses
because of a sequestration order—not to speak with anyone about her testimony, particularly
other witnesses in the case. The court informed her, however, that if she wished to speak “with
any treatment provider, a counselor or therapist . . . in regard to this testimony, that’s subject to
different rules, and you certainly can talk with them.” The court also reminded V.R. that her
discussions with a counselor were confidential, and asked her if she was currently seeing a
counselor. When V.R. responded that she was, the court stated, “[s]o if you wanted to talk with
your counselor about today’s testimony, that would be okay. I would understand that. But it
cannot be talked about with anybody else. Do you understand?” Following M.R.’s testimony,
the court had a similar, though less extensive, exchange, informing her that she could not discuss
the case with anyone, save for a counselor or therapist.
Defendant argues that the judge’s statements improperly showed sympathy towards the
victims and indicated that the judge believed their testimony had been truthful. We do not agree.
The court’s comments were instructive rather than improperly sympathetic in nature. When read
in context, it is clear that the court merely informed the victims that it was permissible for them
to speak about their testimony to a mental health professional, although it was impermissible for
them to speak about it to anyone else for any other purpose. Moreover, we note that the trial
court’s comments to V.R. about a counselor came after defense counsel elicited testimony about
V.R. seeing a counselor and making statements to that counselor. Thus, information that V.R.
was seeing a counselor was already before the jury. We also note that the victims were relatively
young in this case. The trial court’s statement to them simply clarified what they could and
could not do. Overall, the trial court’s comments did not show bias or impartiality, and were not
of such a nature as to deprive defendant of his right to a fair trial. See Conley, 270 Mich. App. at
308.
B. QUESTIONS POSED TO DEFENDANT
Defendant also argues that the court pierced the veil of judicial impartiality when it
questioned him about his blackouts during direct examination. At the outset of defendant’s
testimony, he informed the trial court that English was not his primary language, and that he
often had difficulties speaking English. The trial court reassured defendant that any language
deficiencies would not be an issue, and that either the court or the attorneys would ask questions
to clarify defendant’s answers, if necessary. During the course of defendant’s testimony, the trial
court stepped in to clarify answers defendant gave during direct examination or cross-
examination.
Defendant first notes, and takes issue with, a discussion that occurred during his direct
examination. Defense counsel asked defendant whether he had ever touched V.R. in a “sexual
way.” Defendant responded that he “might touch [V.R.] when I have blackouts.” Defense
counsel attempted to ask defendant whether he had touched V.R. in a sexual manner during his
blackouts, but defendant did not respond directly to this question. Rather, defendant indicated
that he had tried to “grab something to hold on [to]” during his blackouts to keep himself. The
court then interjected as follows:
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Q. [THE COURT]: Sir, I am confused. How could you know what you
hit? You are telling me or the Court, the Jurors, that you blackout and you don’t
remember anything, but it also sounds like you are saying in answer to counsel’s
question that you only hit the girls while you are having a seizure.
A. [DEFENDANT]: No, no, no. I didn’t say that.
Q. Sir, what do you remember specifically in terms of touching or not
touching the girls?
A. I never touched them girls, not even, nothing. I never touched them
girls ever, ever. I didn’t touch [the victims’ aunt]. I didn’t touch any of them.
Q. And you wouldn’t know what you touched if you blacked out, because
you don’t remember the blackouts, is that a fair statement?
A. The only time, one time they, the only time—
Q. Sir, listen to my question. Is it a fair statement that you don’t know
what you did or didn’t touch when you blackout because you don’t remember
your blackouts, is that right?
A. Yes.
Q. Thank you.
A trial court is permitted to interrogate witnesses. MRE 614(b). As part of this
interrogation, the trial court may question witnesses in order to clarify testimony. People v
McDonald, 303 Mich. App. 424, 437; 844 NW2d 168 (2013). “However, the trial court must
exercise caution and restraint to ensure that its questions are not intimidating, argumentative,
prejudicial, unfair, or partial.” People v Conyers, 194 Mich. App. 395, 405; 487 NW2d 787
(1992). In the instant case, the record does not show that the trial court’s questions were
intimidating, argumentative, or that they otherwise showed partiality. The court did not invade
the prosecutor’s role or question defendant’s credibility. Rather, the court’s questions were
restricted to the narrow issue of whether defendant was able to recall his actions during his
blackouts. It was proper for the court to clarify defendant’s testimony, as his answers to defense
counsel’s questions on this issue were confused and nonresponsive. See id. And, we note that
the trial court’s remarks may have been beneficial to defendant, as the trial court got defendant to
respond to the previously unanswered question of whether his touching of V.R. was in a sexual
manner; defendant responded in the negative. Left unanswered, such a question could have been
very damaging to defendant. The court’s questions did not violate defendant’s due process
rights. See Conley, 270 Mich. App. at 307-308.
Defendant also objects to the court’s questions regarding his use of alcohol and
prescription drugs, and whether his consumption of either contributed to his blackouts. On
cross-examination, the prosecutor inquired into the cause of defendant’s blackouts. The
prosecutor initially questioned whether alcohol could have caused the blackouts. Defendant,
who had not previously made any statements about medication, provided a nonresponsive
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answer, as he stated: “No. When I take my medication, I don’t drink alcohol. I don’t drink
alcohol. I drink beer.” Later, defendant testified that he did not drink beer every day, but,
immediately thereafter, conceded that he drank two or three beers per day. At this point, the trial
court interjected, asking defendant whether he had ever mixed alcohol with his medication;
defendant answered in a non-responsive manner by stating that he began to take medication
while living at a certain residence. The court responded as follows:
Q. My question really revolves around this, were you taking medication
and drinking alcohol while you were on that medication?
A. I was taking Vicodins [sic] for my pain, because I got arthritis. . . .
Q. Okay. So when you were taking those, and I am not an expert on
medicine, but I have seen a few bottles of Vicodin, and usually Vicodin says do
not mix with alcohol?
A. Yes.
Q. Were you mixing it with alcohol? Were you having beer while you
were taking the Vicodin?
A. I was—
Q. You are not going to get in trouble with me. I just want to be clear
about what you are testifying to.
A. I was getting Vicodins from Cristo Rey Center because I was not 65
years old.
Q. I don’t care where you were getting it. My only question was were
you taking prescribed medication at the time you are telling us you were also
drinking about three beers a day, yes or no?
A. Yes, I was.
Q. Thank you.
Defendant argues that during this exchange the court was “pushing” him in order to
challenge his credibility. He characterizes the questioning as “intimidating, argumentative,
prejudicial, unfair, [and] partial.” Although to some extent the tone of the court’s questioning is
a subjective determination, we do not agree with defendant that the court’s questions were
improper. The court’s questions clarified defendant’s testimony as to whether he had consumed
alcohol while taking prescription medication. Far from being intimidating or argumentative, the
court assured defendant that he would not “get in trouble” with the court for mixing prescription
medication with alcohol, or for the manner in which he had obtained his medication. The court’s
questions were narrowly focused to clarify defendant’s testimony regarding the reason for his
blackouts. Up to the point the trial court questioned defendant, his testimony was quite unclear
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on this point. We do not find that the trial court’s questioning crossed the line to intimidating,
argumentative, prejudicial, unfair, or partial questioning. See Conyers, 194 Mich. App. at 405.
C. COUNSEL’S FAILURE TO OBJECT
Defendant contends that his trial counsel was ineffective for failing to object to the trial
court’s questions and comments noted above. However, because we find no error in the trial
court’s conduct, any objection by defense counsel would have been meritless. Counsel is not
required to make a meritless objection. People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d
120 (2010).
III. INEFFECTIVE ASSISTANCE OF COUNSEL; EVIDENCE OF A SUBSTANTIAL
DEFENSE
Defendant argues next that trial counsel was constitutionally ineffective for failing to
properly investigate or seek admission of evidence regarding prior allegations of sexual abuse
allegedly made by V.R. against another individual. According to defendant, defense counsel was
also ineffective for failing to introduce documentary evidence showing the dates of defendant’s
prior periods of incarceration. With regard to the latter, defendant contends that the documentary
evidence of his incarceration dates would have refuted the other-acts evidence offered by the
victims’ mother.
The accused has the right under the federal and state constitutions to the effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington, 466
U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). To prevail on his ineffective assistance of
counsel claim, defendant must show “that counsel’s performance fell below objective standards
of reasonableness and that, but for counsel’s error, there is a reasonable probability that the result
of the proceedings would have been different.” People v Swain, 288 Mich. App. 609, 643; 794
NW2d 92 (2010). Defendant must overcome the strong presumption that counsel’s decisions
were the product of sound trial strategy. People v LeBlanc, 465 Mich. 575, 578; 640 NW2d 246
(2002).
A. EVIDENCE OF A PRIOR ACCUSATION OF SEXUAL ASSAULT
Defense counsel attempted to introduce evidence that V.R. had made a prior accusation
of sexual assault against another individual through the testimony of the investigating detective
in this case. The detective stated that she was aware of the allegation, but believed that it had
been asserted by a worker from Child Protective Services (CPS) rather than by either of the
victims. The CPS worker had not been listed by either party as a witness, and the trial court
determined that the allegation was inadmissible hearsay. The trial court denied defense
counsel’s request to try to locate the CPS worker and present her as a witness, but allowed
counsel to make an offer of proof and attempt to “change [the court’s] mind.” Defense counsel
never made an offer of proof at trial. Likewise, he failed to provide an affidavit or any record of
the CPS worker’s alleged testimony with his appellate brief.
As an initial matter, we reject defendant’s claim of ineffective assistance predicated on an
alleged failure to produce the CPS worker as a witness because defendant failed to produce any
affidavit or offer of proof with regard to the content of her testimony. He has not established that
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the victim made a prior allegation, let alone that the prior allegation was false. Accordingly, he
fails to establish the factual predicate for his claim, and we find it to be without merit. See
People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999). He cannot establish that counsel’s failure
to call the CPS worker deprived him of a substantial defense. See People v Dixon, 263 Mich
App 393, 398; 688 NW2d 308 (2004).
Moreover, even assuming the CPS worker could testify about a prior allegation of sexual
abuse committed by the individual on V.R., problems remain with defendant’s claim. First, he
has not specified whether the prior allegation of abuse was a false allegation. If not a prior false
allegation, its admission would likely be barred by MCL 750.520j, the rape-shield law. We do
not agree with defendant’s assertion that the law does not apply to prior acts against children, see
People v Arenda, 416 Mich. 1, 6, 13; 330 NW2d 814 (1982); People v Morse, 231 Mich. App.
424, 430; 586 NW2d 555 (1998), and defendant has not articulated a reason why the statute
would not apply. Moreover, to the extent he alleges on appeal that the prior allegation was false,
we again note defendant failed to provide any offer of proof in this regard. False allegations of
sexual abuse or sexual assault do not implicate the rape-shield law. People v Jackson, 477 Mich.
1019, 1019; 726 NW2d 727 (2007); People v Hackett, 421 Mich. 338, 348-349; 365 NW2d 120
(1984). However, in order to offer evidence of a victim’s prior false accusation, the defendant
must first make an offer of proof regarding the evidence, including the falsity of the accusation,
and demonstrate its relevance. People v Adamski, 198 Mich. App. 133, 142; 497 NW2d 546
(1993); People v Williams, 191 Mich. App. 269, 273; 477 NW2d 877 (1991). Here, defendant
never alleged that the prior accusation was false, much less submitted an offer of proof with
regard to falsity. As such, defendant cannot demonstrate that the testimony of the CPS worker
would have been admissible, or that he was deprived of a substantial defense. See Adamski, 198
Mich. App. at 142. See also Dixon, 263 Mich. App. at 398.1
B. DOCUMENTARY EVIDENCE OF DEFENDANT’S INCARCERATION
We also reject defendant’s claim that defense counsel was ineffective for failing to
present documentary evidence of defendant’s periods of incarceration in order to rebut the other-
acts testimony offered by the victims’ mother. At trial, and outside the presence of the jury, the
prosecutor informed the trial court that defense counsel indicated to her that he had records of
defendant’s various prison terms. The prosecutor, contending that she had never seen the records
before trial, objected to any proposed use of the documents. In response, defense counsel
acknowledged that he had information concerning defendant’s numerous dates of prior
incarceration. Defense counsel stated, however, that he did not have any intention of admitting
the documents because he never intended to make defendant’s criminal record an issue in the
case. He even doubted whether the records were admissible. However, defendant’s counsel
indicated that his strategy had subsequently changed mid-trial. He noted that, during the victims’
mother’s testimony on direct examination, she mentioned defendant’s prior criminal record,
1
Given that defendant was unable to show that the evidence existed, much less that it was
relevant, i.e., it was a prior false accusation, we reject his attendant claim that he was denied his
right of confrontation. See Hackett, 421 Mich. at 348-351.
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indicating that defendant abused her before and after he was imprisoned.2 Because the victims’
mother had mentioned defendant’s prior criminal history, defense counsel stated that “the cat’s
out of the bag,” and opined that he had no choice but to change his strategy and to argue that
defendant’s incarceration made it improbable or impossible that he abused the victims’ mother.
He assured the prosecutor and the trial court, however, that he would seek to introduce evidence
of defendant’s criminal record through defendant’s own trial testimony, and would not use the
documents.
On the final day of trial, defendant testified on his own behalf. He dedicated part of his
testimony to rebutting the other-acts evidence offered by the victims’ mother. This consisted of
him testifying about his extensive criminal history and the times he was allegedly incarcerated.
According to defendant, he was incarcerated in 1974 and was released in April 1977. He was
then extradited to Texas, where he was incarcerated once again, this time from September 1977
until April 1981. Thereafter, he moved to Michigan to be with the victims’ grandmother and
mother. He was in Michigan for less than a week before he got into a bar fight that ended in the
death of another man. Defendant testified that he faced a homicide charge, and pleaded guilty to
second-degree murder. He testified that he was incarcerated in 1981 as a result, and was released
in 1984 for reasons that are not pertinent to this appeal. Some of the years of defendant’s alleged
incarceration generally lined up with the timeframes during which the victims’ mother testified
that the other-acts abuse occurred.
On appeal, defendant argues that defense counsel should have sought admission of
documents that allegedly confirmed the dates of his incarceration. He argues that defense
counsel “failed to understand” how to admit them. Defendant further claims that he was
prejudiced by counsel’s failure because his incarceration records would have provided
documentary proof which strongly suggested that the victims’ mother lied to the jury. The
alleged documents are not part of the trial court record. On appeal, we granted defendant’s
motion to expand the record to include his incarceration records. See People v Orosco,
unpublished order of the Court of Appeals, entered March 24, 2015 (Docket No. 319523). We
note, however, that defendant has provided only a portion of the records he claims exist. He
produced a single document from the Texas Department of Corrections indicating that he was
incarcerated on August 18, 1978, and that he was released on April 13, 1981.
We find no merit in defendant’s claim that his trial counsel was ineffective in regard to
the alleged documents. First, we note that trial counsel’s initial strategy of refraining from
mentioning defendant’s incarceration as a means of rebutting the other-acts testimony by the
victims’ mother was the product of sound trial strategy; thus, there would have been no need to
use the documents at trial. The victims’ mother testified that she was uncertain about any of the
dates on which the abuse occurred, given that it happened long ago and she had subsequently
consumed substantial amounts of alcohol and illegal drugs. She recalled general times when the
2
Defense counsel noted that he had previously planned on rebutting the victims’ testimony and
the victims’ mother’s testimony by calling the victims’ grandmother as a witness. However, for
reasons that are not pertinent to this appeal, the victims’ grandmother was not called as a witness.
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abuse occurred during her childhood, but was uncertain of the dates. She testified that she was
only certain about dates that occurred after the year “2000 and up,” and only with regard to
“certain years” in that timeframe. The record reveals that all of the conduct that comprised the
other-acts testimony occurred well before 2000. In light of the victims’ mother’s uncertainty
about any of the dates on which the abuse occurred, we find trial counsel’s strategy of not
wanting to introduce defendant’s criminal record—and thus not using the alleged documents—
was not objectively unreasonable. See LeBlanc, 465 Mich. at 578 (employing a strong
presumption that counsel’s decisions were the product of sound trial strategy). Defendant had an
extensive criminal history; that history included serious crimes such as drug offenses and
second-degree murder. It was well within the range of professional conduct to adopt a strategy
of not introducing such evidence. This is particularly so in light of the fact that the victims’
mother testified that she was uncertain about any dates, and only gave general estimations as to
when the other-acts evidence occurred. Essentially, the records would have had very little value
in rebutting her claims, and would have exposed the jury to defendant’s extensive criminal
history.
Regardless, any argument about counsel’s performance with regard to the documents
does not entitle defendant to relief. Defendant has produced only one document for our review:
the document showing he was incarcerated in Texas from 1977 until April 1981. As noted
above, the victims’ mother testified that she was unsure about any of the dates on which the
other-acts evidence occurred; she just knew that the acts occurred sometime during her
childhood. Given the nature of the victim’s uncertainty of the dates that the abuse occurred, and
the short period of time stated in the documentary evidence, defendant has not shown that he was
deprived of a defense, let alone a substantial defense. See Dixon, 263 Mich. App. at 398. And, to
the extent defendant’s argument on appeal relies on other alleged records of his incarceration, he
has failed to provide such records, thereby failing to satisfy his burden of establishing the factual
predicate for his claim. See Hoag, 460 Mich. at 6. Further, assuming the records exist, their
value is overstated by defendant. Given the victim’s inability to remember any specific dates on
which the other-acts evidence occurred, and that defendant has not alleged that he was
incarcerated for the entirety of the victims’ mother’s childhood, the incarceration records would
not have provided, as defendant contends an “alibi” for the other-acts evidence.
IV. OTHER-ACTS EVIDENCE
Next, defendant argues that the trial court improperly admitted the other-acts testimony
of the victims’ mother. Although defendant acknowledges that propensity evidence is
admissible in cases involving a sexual offense against a minor under MCL 768.27a, he argues
that this testimony was more prejudicial than probative and was not admissible under MRE 403.
Defendant further argues that the trial court committed plain error by failing to analyze the
evidence pursuant to the factors set forth in People v Watkins, 491 Mich. 450; 818 NW2d 296
(2012), or pursuant to any other form of MRE 403 analysis. We disagree, and find that the court
did not abuse its discretion by admitting the evidence.
MCL 768.27a(1) provides that “in a criminal case in which the defendant is accused of
committing a listed offense against a minor, evidence that the defendant committed another listed
offense against a minor is admissible and may be considered for its bearing on any matter to
which it is relevant.” However, evidence that falls under the purview of the statute may still be
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excluded under MRE 403. See Watkins, 491 Mich. at 481. MRE 403 only warrants exclusion of
evidence that is unfairly prejudicial, meaning that the evidence has “an undue tendency to move
[the finder of fact] to decide on an improper basis, commonly, though not always, an emotional
one.” People v Uribe, __ Mich App __; __ NW2d __ (Docket No. 321012, issued May 12,
2015), slip op 10 (citation and quotation omitted). Other-acts evidence may not be excluded
under MCL 768.27a because it would allow a jury to make a propensity inference. Id. at 10.
Likewise, evidence should not be excluded under MRE 403 simply because it portrays depraved
or loathsome acts. Id.
In Watkins, 491 Mich at 487-488, the Court listed “several considerations that may lead a
court to exclude” other-acts evidence under MRE 403, including:
(1) the dissimilarity between the other acts and the charged crime, (2) the
temporal proximity of the other acts to the charged crime, (3) the infrequency of
the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
evidence supporting the occurrence of the other acts, and (6) the lack of need for
evidence beyond the complainant’s and the defendant’s testimony. This list of
considerations is meant to be illustrative rather than exhaustive.
At the hearing on defendant’s motion to suppress, the trial court heard argument on several of the
factors, and stated that it agreed with the prosecutor’s analysis of the factors.
We agree with the trial court that the other-acts evidence was admissible. The other-acts
evidence was highly probative in this case. The evidence concerned sexual abuse perpetrated
against a minor who lived in defendant’s household and who was approximately the same age as
the victims in the instant case at the time the abuse began. The abuse shared very similar
features with regard to all victims as well. Notably, at the early stages of the abuse, defendant
approached the victims while they were asleep and made unwanted sexual contact with them.
That the abuse later escalated against the victims’ mother, after several years, does not convince
us that the acts were too dissimilar. We are similarly not persuaded by defendant’s arguments
regarding a lack of temporal proximity between the other-acts evidence and the charged acts. As
defendant asserts, the approximately thirty year time period between the final incident
comprising the “other acts” evidence and the trial date is lengthy, but lack of temporal proximity
is not a bar to the admission of this type of evidence. In People v Brown, 294 Mich. App. 377,
387; 811 NW2d 531 (2011), we held that “[t]he remoteness of the other act affects the weight of
the evidence rather than its admissibility.” Also, given the similarity between the acts—at least
with regard to how the abuse started against the victims’ mother—we do not find the lack of
temporal proximity fatal in this case. See id. Lastly, we are not persuaded by defendant’s
argument that the other-acts evidence should have been excluded because it did not result in a
conviction. MCL 768.27a expressly permits the introduction of other-acts evidence that did not
result in a conviction. See Watkins, 491 Mich. at 489. The trial court did not abuse its discretion
when it admitted the evidence.
V. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor made improper statements during closing argument
in an attempt to elicit sympathy for the victims and to inflame the jurors’ passions against him by
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making “generalizations about child molesters.” “Issues of prosecutorial misconduct are decided
case by case, and this Court must examine the entire record and evaluate a prosecutor’s remarks
in context.” People v Dobek, 274 Mich. App. 58, 64; 732 NW2d 546 (2007). The prosecutor’s
comments are evaluated in light of the evidence and defense arguments, and “[o]therwise
improper prosecutorial conduct or remarks might not require reversal if they address issues
raised by defense counsel.” Id. Because defendant did not preserve his claims, reversal is
warranted only if an objection could not have cured the alleged error. People v Unger, 278 Mich
App 210, 234-235; 749 NW2d 272 (2008). Defendant also alleges that his trial counsel was
ineffective for failing to object to the prosecutor’s comments. We previously denied defendant’s
motion to remand on this issue, and our review of his ineffective assistance of counsel claim is
limited to the facts contained in the record. See Horn, 279 Mich. App. at 38.
During closing argument, defense counsel argued that his task was difficult because in
“these sorts of cases . . . all it takes is that accusation. Children are inherently believable. Young
people aren’t going to lie about such a thing. Of course it’s truthful. They’re young people, and
they’re crying.” Defense counsel also asserted that “[i]n cases like these they often don’t even
report the incidents for years. . . . If they report these things early, well, then maybe there’s some
fact that disproves the case.” Defense counsel stated that this case could have involved the
“perfect accusation” because people are inclined to believe children, and because there was no
evidence of the abuse, aside from the victims’ testimony.
During rebuttal, the prosecutor noted that defense counsel referred to a “perfect
accusation,” then asked “[i]s this the perfect accusation or the perfect crime?” She continued:
Because crimes like this don’t happen in front of video cameras. Crimes like this
are committed by cowards who approach children in the night, children who are
dependent on them, and children who have nothing to prove that it happened
except their words. So with all due respect to [defense counsel] saying this is the
perfect accusation, this is, in fact the perfect crime. Because when people who do
this pick their targets, they’re picking people who are vulnerable and people who
have so much to lose if no one believes them.
The prosecutor’s comments referring to perpetrators of sexual crimes in general terms
were an appropriate response to defense counsel’s argument referencing minor victims of sexual
crimes in general terms. In the context of defense counsel’s argument, the prosecutor’s
comments were not improper. Dobek, 274 Mich. App. at 64. In addition, we reject defendant’s
assertion that the prosecutor asked jurors to sympathize with the victims. Rather, the prosecutor
simply referenced the facts of the case—that defendant approached the victims at night, while
they were sleeping—in making her argument. She was not required to make her argument in the
blandest possible terms. See id. at 67.
Defendant also argues that the prosecutor’s comment during her rebuttal argument—that
V.R. was “entitled” to have engaged in “bad things” as a teenager because of the abuse she had
endured—was an improper attempt to elicit sympathy for V.R. He also takes issue with
comments the prosecutor made concerning the lack of an alleged motivation by V.R. and M.R. to
lie. However, these arguments were clearly a response to defense counsel’s statements in closing
when he suggested that V.R. had lied during her testimony. During his closing argument,
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defense counsel stated, “[V.R.] was admittedly angry. She was into drugs. She was hanging out
with the wrong people. She testified throughout that she didn’t really like living in her
grandma’s house.” Defense counsel further commented that V.R. “wasn’t happy with her TV.
She wasn’t happy with her phone. . . . If it benefitted her in any way, shape, or form as a
teenager who was angry to say something to get herself out of the house or to get something she
wanted, that’s how this starts.”
In context, the prosecutor merely responded to defendant’s arguments. Her claim that the
victim was entitled to have engaged in unsavory activities was clearly a response to defense
counsel’s claim that the victim was not worthy of belief because of those same activities.
Further, the prosecutor responded to defense counsel’s assertions about V.R. being an “angry”
teenager rather than a victim by asking the jury to consider whether it was probable that the
victims had fabricated their allegations for personal gain: “Ask yourself what the payoff is for
those girls? The payoff is that they know they have the truth on their side and the evidence has
supported that.” We find no impropriety in these comments when reviewed in context.
Defendant next argues that the prosecutor denigrated him by arguing that his testimony
was not worthy of belief. After summarizing some of defendant’s testimony, the prosecutor
stated, during rebuttal argument:
And I ask you, are you comfortable believing the words of a man who has
molested three children? If he has touched any of those ladies, his moral compass
isn’t exactly pointing up. Do you think he would come in here and think twice
about lying to 12 strangers?
A prosecutor is permitted to “argue from the facts that a witness is credible or that the defendant
or another witness is not worthy of belief.” People v Howard, 226 Mich. App. 528, 548; 575
NW2d 16 (1997). Here, the prosecutor’s argument came in the context of summarizing the facts
of the case, and arguing that, based on those facts, defendant was not worthy of belief. This was
not improper. See id. To the extent the comments may have crossed the line, any prejudice to
defendant could have been cured by a timely objection. See Unger, 278 Mich. App. at 234-235.
Defendant also contends that the prosecutor made an improper civic duty argument and
unfairly appealed to the sympathy of the jury. He notes that during closing argument, the
prosecutor stated that:
The power has shifted in this case. The power has shifted from two little girls
who didn’t have a mom in their house to protect them, to coming into a
courtroom, giving their testimony, and asking 12 strangers who never met them
between, [sic] before this week, to make a decision. When parents fail, when
grownups fail, the justice system does not. And I know this week has been long,
and we appreciate your patience, but I hope you see after listening to the
testimony of the People in this case that this is why this is so important. Because
when you have no voice, this is the voice. So we ask you to come back and return
a verdict of guilty on every single one of these counts.
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Later, during rebuttal, the prosecutor—who had stated from the beginning of opening statements
that this case was about “mothers and daughters and survivors”— argued that:
This case is about mothers and daughters and survivors. The mothers who fails
us, the mothers who may fail us initially but come back later and do what a mom
needs to do. . . . The daughters who put their faith in each other and in their aunts
and in their moms to do the right thing. The evidence sits in those four chairs that
are sitting in the audience right there. And they’ve poured their lives out in front
of you, and we ask you based on the details and the evidence and your gut
reaction because what you believe is the facts. And if the facts that you believe
prove this case beyond a reasonable doubt, then that is a conviction.
We do not agree with defendant’s assertion of error. Again, the prosecutor is not
required to make her argument in the blandest of possible terms. See Dobek, 274 Mich. App. at
67. Considering the prosecutor’s remarks as a whole, the prosecutor did not ask the jury to
convict out of a sense of civic duty or sympathy, but instead asked the jury to convict based on
the evidence. And, regarding the argument in this case about how the “power” had shifted, we
note that much was made during trial—by both sides—about how the victims were afraid to
disclose the abuse because they did not feel supported by the adults in their lives. Moreover,
even if the prosecutor’s comments were improper, the trial court instructed the jury that the
comments of the prosecutor were not evidence. Jurors are presumed to follow the court’s
instructions, and instructions are presumed to cure most errors. People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003).
Because we find that none of the prosecutor’s comments warranted an objection, we
reject defendant’s attendant claim of ineffective assistance of counsel. See Ericksen, 288 Mich
App at 201 (counsel is not required to make meritless objections).
VI. CUMULATIVE ERROR
Finally, defendant argues that the cumulative effect of the alleged errors denied him a fair
trial. While this Court has held that the cumulative effect of a number of minor errors may in
some cases amount to error requiring reversal, as we discussed above, there was no error;
moreover, any error or arguable error in the instant case had little if any effect on the outcome of
the case. Thus, we find that defendant is not entitled to reversal on this basis. See People v
Cooper, 236 Mich. App. 643, 659-660; 601 NW2d 409 (1999).
Affirmed.
/s/ Michael J. Riordan
/s/ Pat M. Donofrio
/s/ Jane M. Beckering
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