People of Michigan v. Donna Jean Moreno ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2020
Plaintiff-Appellee,
v No. 345972
Macomb Circuit Court
DONNA JEAN MORENO, LC No. 2016-002055-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 her jury-trial conviction of first-degree child
abuse, MCL 750.136b(2), for which defendant was sentenced to 18 to 60 months’ imprisonment.
We affirm.
In March 2016, defendant and a friend brought defendant’s 10-month-old daughter, XRM,
to an urgent care facility to have XRM’s eyes examined. The examination, as well as subsequent
hospitalizations, brought to light that XRM suffered from interstitial keratitis, or chronic
inflammation of the eyes, along with fractures in her legs, right wrist, and skull. During the police
investigation that followed, defendant offered inconsistent and unsatisfactory explanations for the
child’s injuries. Defendant was ultimately charged with first-degree child abuse, and convicted
and sentenced as indicated above. On appeal, defendant argues that the prosecution presented
insufficient evidence to support her conviction, that the trial court erred in denying a request for a
mistrial over improper prosecutorial questioning, and that the prosecutor made multiple errors that
prejudiced defendant.
I. SUFFICIENCY OF THE EVIDENCE
1
People v Moreno, unpublished order of the Court of Appeals, entered March 20, 2019 (Docket
No. 345972).
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Defendant first asserts that the prosecution presented insufficient evidence to prove that
she caused XRM’s injuries or acted with the requisite intent to do so. We disagree.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Harrison,
283 Mich App 374, 377-378; 768 NW2d 98 (2009). This Court must review the evidence “in the
light most favorable to the prosecution in order to determine whether a rational trier of fact could
have found that the prosecution proved the elements of the crime beyond a reasonable doubt.”
People v Levigne, 297 Mich App 278, 281-282; 823 NW2d 429 (2012). “All conflicts in the
evidence must be resolved in favor of the prosecution, and circumstantial evidence and all
reasonable inferences drawn therefrom can constitute satisfactory proof of the crime.” People v
Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016) (citations omitted). It is the role
of the trier of fact to determine the weight of the evidence and evaluate the credibility of witnesses.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
MCL 750.136b(2) provides, in relevant part, “A person is guilty of child abuse in the first
degree if the person knowingly or intentionally causes serious physical or serious mental harm to
a child.” Thus, “[t]he elements of first-degree child abuse are (1) the person, (2) knowingly or
intentionally, (3) causes serious physical or mental harm to a child.” People v Gould, 225 Mich
App 79, 87; 570 NW2d 140 (1997). The prosecution must establish “not only that defendant
intended to commit the act [that caused harm to the child], but also that defendant intended to
cause serious physical harm or knew that serious physical harm would be caused by her act.”
People v Maynor, 470 Mich 289, 291; 683 NW2d 565 (2004).
First, with respect to causation, police investigators testified that defendant told them that
XRM was constantly—almost exclusively—in defendant’s care. Investigators further testified
that defendant admitted to acting forcibly with XRM out of stress and frustration. Defendant’s
housemate described hearing a “thud” while wearing noise-cancelling headphones and finding
defendant holding XRM with a look of concerned astonishment on her face. The housemate later
observed that XRM’s “eye was clouded, as if she was going blind.” Defendant delayed obtaining
medical services for XRM, and various witnesses who observed that XRM had swelling, bruising,
and peculiarities about the appearance of her eyes reported that defendant offered unconvincing
explanations for those conditions. Defendant later admitted that she lied to the police regarding
where XRM was injured, and provided the police only false information about where she and XRM
actually lived. We conclude that the evidence that defendant was XRM’s exclusive caretaker
during the time in which XRM would have sustained her injuries, that defendant’s housemate
heard a “thud” and then noticed a look of alarm on defendant, that defendant failed to obtain timely
medical attention for XRM, that defendant offered various unconvincing and inconsistent
explanations for XRM’s injuries, and that defendant was dishonest with the police about the
location of her and XRM’s place of residence, is sufficient to support a reasonable inference that
defendant was responsible for XRM’s injuries.
Next, concerning the issue of intent, “[t]his Court has consistently observed that because
of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.”
People v Anderson, 322 Mich App 622, 633; 912 NW2d 607 (2018) (quotation marks and citation
omitted). A defendant’s intent to seriously injure a victim may be inferred from the severity of a
victim’s injuries. People v Mills, 450 Mich 61, 71; 537 NW2d 909, mod on other grounds 450
Mich 1212 (1995). “It is for the trier of fact, not the appellate court, to determine what inferences
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may be fairly drawn from the evidence and to determine the weight to be accorded those
inferences.” People v Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016) (quotation marks and
citation omitted). In this case, two medical experts opined that the severity of XRM’s injuries
fairly ruled out routine childhood accidents and suggested nonaccidental trauma. That medical
testimony, considered along with the indications that defendant failed to seek immediate medical
care in spite of XRM’s clear and obvious injuries, was sufficient to persuade a reasonable juror
that defendant either intended to seriously harm XRM or at least knew that serious harm would
result from her actions.
II. MOTION FOR A MISTRIAL
Defendant next argues that the trial court erred when it denied her motion for a mistrial on
the basis of the prosecutor having asked defendant on cross-examination about contacting
sequestered witnesses. Defendant contends that the prosecutor’s questioning improperly
insinuated that defendant engaged in witness tampering, and that the insinuation prejudiced
defendant. We disagree.
“The trial court’s grant or denial of a mistrial will not be reversed on appeal in the absence
of an abuse of discretion.” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995).
“A trial court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes.” People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011)
(quotation marks and citation omitted). “A mistrial should be granted only for an irregularity that
is prejudicial to the rights of the defendant, and impairs his ability to get a fair trial.” Haywood,
209 Mich App at 228 (citations omitted). That remedy is appropriate only “when the prejudicial
effect of the error cannot be removed in any other way.” People v Horn, 279 Mich App 31, 36;
755 NW2d 212 (2008). “Jurors are presumed to follow instructions, and instructions are presumed
to cure most errors.” People v Petri, 279 Mich App 407, 414; 760 NW2d 882 (2008).
In this case, before the jury entered the courtroom on the last day of trial, the prosecutor
informed the trial court that, on that morning, the friend whom defendant asked to lie to the police
about her living arrangements, and who finished testifying on the previous day, contacted the
prosecution and reported that defendant “had contacted her.” The prosecutor explained that the
contact “wasn’t anything egregious in nature, but it had to do with facts of the case . . . .” The
prosecutor asked the trial court to instruct defendant not to communicate with the other witnesses
in the case. Defense counsel responded that he was unaware of any no-contact provisions or other
such constraints, and, with the trial court’s permission, defense counsel read the text message
defendant sent to her friend into the record: “I just want you to know that I was never mad at you
for telling the truth, it was wrong of me to ask, I’m sorry, the truth was going to come out
anyways.” The trial court then ordered defendant to not contact any of the witnesses or other
persons involved in the case.
Subsequently, the prosecutor asked defendant on cross-examination: “Would you agree
that when there's a trial and the judge orders sequestration of testifying witnesses in the case, it’s
not a good idea to be contacting them[?]” Defense counsel objected, and the jury was excused.
Defense counsel requested a mistrial on the ground that the trial court “ordered” the prosecutor to
“not do what he just did,” and because the jury would “be left with the idea or the impression that
there’s some idea of witness tampering or so on, that is obviously going to be left unexplained
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. . . .” The prosecutor responded that the trial court never ruled on whether defendant could be
questioned about her recent contact with her friend, and that his question was relevant and
probative. The trial court denied the motion for a mistrial, but stated that the prosecutor could not
further question defendant regarding defendant’s contact with the witness, and that it would
instruct the jury at the close of trial that the lawyers’ statements were not to be considered. At the
close of proofs, the trial court instructed the jury as promised:
The lawyers’ statements and arguments are not evidence. They’re only meant to
help you understand the evidence and each side’s legal theories. You should only
accept things the lawyers say that are supported by the evidence or by your own
common sense and general knowledge. The lawyers’ questions to the witnesses
and my questions are also not evidence. You should consider these questions only
as they give meaning to the witnesses[’] answers.
In support of her contention that the trial court erred when it denied the motion for a
mistrial, defendant relies on People v Long, 144 Mich 585, 585-586; 108 NW 91 (1906), wherein
our Supreme Court reversed a conviction because the prosecution introduced testimony of
attempted witness tampering where there was no evidence that the defendant was involved with
the attempted tampering. Defendant also relies on People v Page, 41 Mich App 99, 101-102; 199
NW2d 669 (1972), wherein this Court held that a law enforcement officer’s unresponsive and
irrelevant testimony that the defendant was associated with drug trafficking provided a sufficient
basis to grant the defendant’s motion for a mistrial because police officers normally command the
respect of the jury, the association of the defendant with drug trafficking was inflammatory, and
there was a “less than strong case against the defendant.” Unlike this case, both cases involved
erroneous trial testimony. In this case, however, no evidence ever reached the jury regarding
defendant’s text message to her friend, and because defendant never answered the prosecutor’s
question about contacts with sequestered witnesses, there was no actual evidence of witness
tampering for the jury to consider.
Further, as noted, the trial court instructed the jury that the lawyers’ statements, arguments,
and questions were not evidence. See People v Callon, 256 Mich App 312, 330-331; 662 NW2d
501 (2003) (holding that a trial court’s instruction that the attorney’s statements were not evidence
dispelled any prejudice arising from the prosecutor’s improper comment). Although defendant
contends that the trial court’s general instruction did not cure the prejudice caused by the
insinuation of jury tampering that underlay the challenged question from the prosecutor, because
that question concerned only a general proposition regarding the propriety of contacting
sequestered witnesses, and because it went unanswered, defendant fails to overcome the
presumption that any error was cured by the instruction. See Petri, 279 Mich App at 414.
III. PROSECUTORIAL ERROR2
2
This Court has acknowledged that the term “prosecutorial misconduct” is commonly used in
reference to any allegation of impropriety on the part of a prosecuting attorney, but that claims of
error stemming from allegations of the prosecuting attorney’s inadvertence are “better and more
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Defendant lastly contends that the prosecutor improperly denigrated the defense through
the testimony of its expert witness, that the prosecutor improperly suggested that defense counsel
mischaracterized the law, and that the prosecutor misrepresented the facts in evidence. Defendant
contends that all of these alleged errors were prejudicial. We disagree.
To preserve a claim of prosecutorial error, “a defendant must have timely and specifically
objected below, unless an objection could not have cured the error.” People v Brown, 294 Mich
App 377, 382; 811 NW2d 531 (2011). “[A] defendant must contemporaneously object and request
a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). In this
case, defense counsel objected at the prosecution’s alleged mischaracterization of the law, the trial
court sustained the objection, and counsel asked for no additional remedy. None of the other
instances of alleged prosecutorial error of which defendant now makes issue drew any objection.
For these reasons, defendant’s appellate claims of prosecutorial error are unpreserved.
“Generally, a claim of prosecutorial misconduct is a constitutional issue reviewed de
novo.” People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). However,
unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial
rights. People v Vandenberg, 307 Mich App 57, 61; 859 NW2d 229 (2014). To avoid forfeiture
under the plain-error rule, the defendant must establish that an error occurred, that it was plain,
and that it affected substantial rights. People v Buie, 285 Mich App 401, 407; 775 NW2d 817
(2009). “The third prong requires a showing of prejudice, which occurs when the error affected
the outcome of the lower court proceedings.” People v Putman, 309 Mich App 240, 243; 870
NW2d 593 (2015). The reviewing court should reverse only when the defendant is actually
innocent or the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
“A prosecutor has committed misconduct if the prosecutor abandoned his or her
responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.”
People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014). This Court considers claims of
prosecutorial misconduct on a case-by-case basis, and the prosecutor’s remarks must be considered
in context. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). “Prosecutors are
typically afforded great latitude regarding their arguments and conduct at trial,” and are “generally
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). However,
it is improper for a prosecutor to denigrate a defendant—or defense counsel—with prejudicial
remarks; the focus must remain on the evidence, not on the personalities involved. See People v
Bahoda, 448 Mich 261, 283; 531 NW2d 659 (1995); People v Phillips, 217 Mich App 489, 497-
498; 552 NW2d 487 (1996).
Defendant characterizes some of what the prosecution’s medical expert stated on cross-
examination as improper denigration of the defense. In particular, defense counsel asked the expert
fairly presented as claims of ‘prosecutorial error,’ with only the most extreme cases rising to the
level of ‘prosecutorial misconduct.’ ” People v Cooper, 309 Mich App 74, 88; 867 NW2d 452
(2015).
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if he was familiar with “the Journal of Peri, Perinatology,” and the expert replied that he would
“have to see what you’re saying to understand what you’re saying.” When defense counsel
summarized one of the findings provided in that journal and asked the expert if he agreed, the
expert replied, “I mean you can’t even say the name right. So, I don’t know if you’re interpreting
what they’re writing.” Defense counsel approached the expert with what he offered as a medical
text, and the expert clarified that counsel did not provide “the actual book,” but instead a “kind of
summary pulled out of a web page describing the book.” Additionally, when discussing why
XRM’s bone fractures were not consistent with a diagnosis of congenital syphilis, the expert
replied that defense counsel could “Google all you want” but would not find a “buckle fracture”
or a “brain bruise” attributed to congenital syphilis.
We discern no error stemming from the cross-examination of the prosecution’s expert that
is attributable to the prosecution. Fatal to defendant’s argument is that defendant neither cites
authority for the proposition that testimony elicited by defense counsel might be characterized as
an impropriety attributable to the prosecutor, nor otherwise explains how those exchanges support
any claim of prosecutorial error. A party “ ‘may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.’ ” Henry, 315 Mich App at 148, quoting
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
Defendant additionally asserts that the prosecutor denigrated the defense by stating that the
theories of defense were a “waste of time.” This argument is without merit. The prosecutor asked
his expert during redirect examination whether defense counsel’s questioning about syphilis was
a “waste of time,” and the expert responded affirmatively, noting that there was no indication that
XRM had syphilis. The prosecutor then asked the expert if he would feel differently had a witness
testified that XRM had syphilis, and the expert answered in the negative. During his closing
argument, the prosecutor stated that, even though syphilis had been discussed at trial “so much
more than the crushed bones, the broken skull and the brain bleed,” the expert testified that even
if XRM had been diagnosed with syphilis his conclusions would be the same. The prosecutor thus
encouraged the jury to join the expert in deeming the discussion regarding syphilis “a waste of
everybody’s time.” The prosecutor resorted to that characterization only after establishing that
there was no indication that XRM’s injuries were attributable to a theoretical diagnosis of syphilis,
and that such a diagnosis would not have altered the expert’s conclusions regarding XRM’s
injuries. And we note, “[t]he prosecution has wide latitude in arguing the facts and reasonable
inferences, and need not confine argument to the blandest possible terms.” People v Dobek, 274
Mich App 58, 66; 732 NW2d 546 (2007).
Defendant cites in support of her argument decisions by this Court wherein this Court held
that comments by prosecutors attacking the veracity of defense attorneys’ arguments were
improper, but in those cases the prosecutor actually suggested that the defense attorney was either
attempting to deceive the jury, People v Dalessandro, 165 Mich App 569, 579-580; 419 NW2d
609 (1988), or that the defense attorney was attempting to distract the jury from the truth, People
v Watson, 245 Mich App 572, 592-593; 629 NW2d 411 (2001). Moreover, in a related context,
this Court has held that referring to an argument by the defense attorney as a “red herring” was not
improper denigration of the defense, “but rather a fair argument regarding what the jury should
believe.” People v Blevins, 314 Mich App 339, 356; 886 NW2d 456 (2016). Thus, in this case,
although perhaps the prosecutor’s characterization of the value of the testimony regarding syphilis
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could have been more diplomatic, it accurately reflected the expert’s testimony and made no
insinuations about the intent of the defense. We therefore discern no error.3
Defendant next asserts that the prosecutor erred by arguing during closing arguments that
defendant’s trial counsel mischaracterized the law. During closing argument, defense counsel
explained his personal approach of “14 steps in order to get to proof beyond a reasonable doubt
. . . .” The prosecutor argued to the jury in rebuttal that there were “not . . . 14 steps to
convicting . . . because it’s not the law,” and instead referred to the 14-step approach as “a
mischaracterization” of the law. Defense counsel objected, and the trial court sustained the
objection and stated it would instruct the jury on the law.4 Defendant offers no rationale
concerning how the challenged remarks resulted in prejudice, given that the court promptly
sustained the objection and stated that it would instruct the jury on the law, and given that the
prosecutor thereafter provided no further argument regarding the “14 steps” referred to by defense
counsel. Again, a party “ ‘may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give only cursory treatment with little
or no citation of supporting authority.’ ” Henry, 315 Mich App at 148, quoting Kelly, 231 Mich
App at 640-641.
Defendant lastly contends that the prosecutor mischaracterized the evidence during closing
arguments, particularly with respect to characterizing defendant as a liar and with respect to
characterizing XRM as having been found “screaming in agony.” During trial, defendant admitted
that she lied to the police regarding XRM being injured on a patio chair at her friend’s home, and
about herself and XRM living at that friend’s home. Defendant further admitted that she sent the
police to two homes where she did not live, and that she never provided police with the address of
the home where she did live with XRM. Defendant’s friend also testified that defendant asked her
falsely to tell the police that defendant lived at the friend’s home. During closing arguments, the
prosecutor argued that there was “an underlying framework of lie after lie after lie” pertaining to
defendant, and that defendant “lied to the police and doctors about where she lived,” and “had her
friends lie to the police.” Defendant contends that, in reality, the evidence only indicates that
defendant lied once, and that the misinformation pertaining to where defendant was living also
pertained to where XRM purportedly fell from a chair. However, as noted, defendant admitted to
repeatedly lying to the police about where she lived, as well as about XRM’s being injured by
falling off a chair at her friend’s home, and defendant also asked her friend to lie. The record thus
3
We note defendant’s related argument that the prosecutor’s characterizations of defendant’s
defenses as “excuses,” or as “throwing spaghetti on the wall to see what sticks,” denigrated
defendant’s trial counsel. However, the prosecutor’s arguments did not pertain to any specific
theory put forward by defense counsel, but rather to the “whole laundry list of things” that
defendant herself indicated were the cause of XRM’s injuries, which included “brittle bone, falls
off of [a] bed,” or a “fall while walking.” A prosecutor is generally “permitted to argue from the
facts that defendant or defendant’s witnesses were unworthy of belief,” Dobek, 274 Mich at 67,
and we see no error in the prosecutor having argued that defendant’s inconsistent explanations for
XRM’s injuries lacked credibility for that reason.
4
Notably, defense counsel did not ask the trial court for a curative instruction or any other
additional remedy.
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does not support defendant’s assertion that the evidence permitted the inference that defendant lied
only once in connection with the investigation. Accordingly, there is no merit to defendant’s
assertion that the prosecution mischaracterized the evidence for having argued that defendant was
repeatedly untruthful.
With respect to the characterization of XRM having screamed in agony, as briefly noted
above, defendant’s housemate testified that he heard a thud from his room in the basement of
defendant’s home and, after encountering defendant holding XRM and appearing to be in some
sort of shock, the housemate became concerned enough to hold XRM because “she was crying
and she needed to be consoled.” Further, the prosecution’s expert explained that XRM’s injuries
to her left leg and skull would normally result in “a painful cry” that was distinct from a cry
resulting from hunger. During closing arguments, the prosecutor referred to the housemate having
heard a thud, then to the expert’s testimony, and noted “the pain that that baby was screaming in
agony over . . . it’s crying and screaming that’s different than when a baby’s hungry.” Again,
prosecutors are generally afforded great latitude regarding their arguments,” and “are generally
free to argue the evidence and all reasonable inferences from the evidence as it relates to their
theory of the case.” Unger, 278 Mich App at 236. Although defendant’s housemate did not testify
that XRM was crying specifically in “agony,” the prosecutor argued a reasonable inference that
XRM was crying in pain on the basis of the expert’s testimony regarding XRM’s injuries. We
disagree with defendant that this was a mischaracterization of the evidence.5
Affirmed.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
5
We also note that any error in this regard would have been cured by the trial court’s instruction
to the jury that the lawyers’ statements, arguments, and questions were not evidence. See Petri,
279 Mich App at 414; Callon, 256 Mich App at 330-331.
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