People of Michigan v. Jesen Bernard Croskey

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 19, 2024

Plaintiff-Appellee,

v No. 364776

Oakland Circuit Court

JESEN BERNARD CROSKEY, LC No. 2020-273662-FH

Defendant-Appellant.

Before: CAMERON, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of fourth-degree criminal sexual

conduct (CSC-IV), MCL 750.520e(1)(a) (victim 13 to 15 years of age, defendant five or more

years older). Defendant was sentenced, as a second habitual offender, MCL 769.10, to 183 days

in jail, and five years’ probation. We affirm.

I. FACTUAL BACKGROUND

This case arises out of defendant’s assault of then 15-year-old complainant; he was 39 years

old at the time. On July 20, 2019, at approximately 11:00 p.m., complainant was visiting the

residence of defendant’s daughter, SD—complainant’s best friend. The two were planning on

spending the night at the home of defendant’s cousin, EC, whom the minor children considered an

“aunt,” to attend church the next morning. Defendant, SD, and complainant entered defendant’s

car to drive to EC’s residence. Defendant was in the driver’s seat and SD was in the front passenger

seat. Complainant was sitting in the middle of the rear passenger seat, with a giant stuffed brown

teddy bear to her left, behind the driver’s seat. SD, however, testified that complainant was initially

sitting immediately behind SD in the right rear passenger seat.

Soon after the parties got into the car, defendant, while in the driver’s seat, turned toward

the rear passenger area, reached out with his arm, and rubbed complainant’s left upper thigh for a

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few seconds.1 Complainant recalled that it was very quick, and thought maybe defendant was just

trying to move the teddy bear. When defendant noticed the shock on complainant’s face, defendant

moved the bear. Complainant contacted her friend, FK, over Snapchat because complainant

trusted FK, and FK was a victim of similar conduct by a different adult. At approximately 11:46

p.m., complainant texted FK that she was “trying not to freak out,” told FK not to say anything,

and that defendant looked at her, touched her, and acted like he was just moving the bear. FK told

complainant to go home, and to tell SD, or FK would tell SD’s mom. Complainant replied, “No,

it’s fine,” because she was concerned how her response would affect the relationship between SD

and defendant.

Approximately 20 to 30 minutes later, when the parties stopped at a restaurant drive-

through, defendant placed his hand on complainant’s left inner thigh, and complainant pushed

defendant’s hand away, but defendant moved his hand to complainant’s outer thigh. Defendant’s

hand was approximately 3 or 4 inches below complainant’s waist. Complainant pushed

defendant’s hand for the second time, and moved all the way to the right of the back seat. A few

moments later, the food arrived. After complainant moved, defendant whispered statements while

attempting to make eye contact with complainant through the rearview mirror. Complainant

attempted to catch SD’s attention by kicking her seat; however, SD did not respond as she was on

her phone and there was loud music playing.

After the parties arrived at EC’s residence, complainant, defendant, and SD went in the

kitchen to eat their food. EC and her children were sleeping in the living room. SD left the kitchen

to retrieve her phone charger from the car. During SD’s absence, defendant turned to complainant,

stating, “It’s not what it looks like, it’s not what it looks like. Come here—no. Come on, come

on.” Complainant stepped away from defendant, and could not make eye contact. SD reentered

the home, defendant left, and SD noticed something was wrong with complainant. Complainant

could not verbally express what upset her, but showed SD the messages that she sent to FK saying

defendant touched her. SD contacted her mother.

SD’s mother awoke to a phone call from SD requesting she pick up the children from EC’s

residence. The children were crying and distraught, but did not disclose what happened. SD’s

mother went to EC’s residence, and complainant and SD got into her vehicle and started to cry.

SD’s mother repeatedly asked what happened, and complainant eventually revealed that defendant

touched her. SD’s mother went to the police station, where the children provided statements,

resulting in the underlying charge against defendant. Following a one-day jury trial, defendant

was convicted of CSC-IV, and sentenced. This appeal followed.

II. PRIOR BAD ACTS

Defendant first argues that the trial court abused its discretion when it permitted the

prosecution to elicit testimony from complainant regarding a prior bad act involving defendant,

1

While complainant advances that defendant improperly touched her twice, once while parked in

front of SD’s residence, and a second time while the parties were at a restaurant drive-through, the

underlying CSC-IV charge only pertains to the latter incident.

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SD, and complainant shopping for homecoming dresses because the prosecution failed to provide

notice for its admission and the related testimony was irrelevant and so overly prejudicial that it

violated defendant’s due-process right to a fair trial. We disagree.

“To preserve an evidentiary issue for review, a party opposing the admission of evidence

must object at trial and specify the same ground for objection that it asserts on appeal.” People v

Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019). During the one-day jury trial, defense counsel

objected to the admission of complainant’s testimony regarding the dress-shopping incident under

MRE 404(b); however, defense counsel did not advance any argument regarding its relevance or

prejudicial nature. Accordingly, any argument related to the admission of complainant’s contested

testimony under MRE 404(b) is preserved for appellate review, but any contention regarding the

testimony’s relevance or resulting prejudice is unpreserved.

“A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion[,]” and such decisions “will not be disturbed unless that decision falls outside the range

of principled outcomes.” Thorpe, 504 Mich at 251-252 (quotation marks and citations omitted).

“A decision on a close evidentiary question ordinarily cannot be an abuse of discretion.” Id. at 252.

“[I]f the [nonconstitutional] issue is preserved, the defendant has the burden of establishing a

miscarriage of justice under a ‘more probable than not’ standard.” Id. When a decision regarding

the admission of evidence involves a preliminary question of law, such as whether a rule of

evidence permits admission of the evidence, we review that issue de novo. People v Mann, 288

Mich App 114, 117; 792 NW2d 53 (2010).

“[W]hen issues are unpreserved, this Court must review the unpreserved claim for plain

error affecting defendant’s substantial rights.” People v Serges, ___ Mich App ___, ___; ___

NW3d ___ (2024) (Docket No. 355554); slip op at 5 (quotation marks and citation omitted). “To

avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have

occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial

rights.” People v Stokes, 333 Mich App 304, 307; 963 NW2d 643 (2020) (quotation marks and

citation omitted). “The third requirement generally requires a showing of prejudice, i.e., that the

error affected the outcome of the lower court proceedings.” Id. (quotation marks and citation

omitted). “Reversal is warranted only when 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 independent of the defendant’s innocence.” Id. (quotation marks

and citation omitted).

Generally, evidence that a defendant committed a prior bad act is inadmissible to prove a

propensity to commit such acts. People v Galloway, 335 Mich App 629, 637; 967 NW2d 908

(2020). For example, MRE 404(b) permits the admission of evidence of other acts to show

“motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,

identity, or absence of mistake or accident,” but prohibits such evidence for propensity purposes.2

2

The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective

January 1, 2024. We rely on the version of the rules in effect at the time this matter was decided,

which was November 2022.

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For other-acts evidence to be admissible under MRE 404(b)(1), the proponent of the evidence must

show: “(1) that the other acts evidence is for a proper purpose (other than to show character and

action in conformity therewith), (2) that the evidence is relevant to an issue of fact that is of

consequence at trial, and (3) that, under MRE 403, the danger of unfair prejudice does not

substantially outweigh the probative value of the evidence.” People v Steele, 283 Mich App 472,

479; 769 NW2d 256 (2009).

During complainant’s trial testimony, the prosecution inquired whether complainant

interacted with defendant before the subject incident. Complainant disclosed that she previously

interacted with defendant on three occasions as he was SD’s father, but they “never really talked.”

When asked whether complainant’s prior interactions with defendant caused her concern,

complainant shared, “Honestly, I always had a bad feeling in my gut but I never wanted to say

anything because that was my best friend, I’m not going to—you know, it’s her family, I just kept

it to myself.” Complainant opted to remain silent regarding her feelings toward defendant because

she did not want to jeopardize SD’s budding relationship with her father. The prosecution

subsequently probed whether defendant previously advanced statements or acted in a way that

“created some bad feelings” for complainant. Complainant responded:

It was one time that we went to the mall and it was for like a school event,

[SD’s], like homecoming, and we were trying on dresses. And I remember he kept

complimenting on the dress very weirdly and he ended up buying the dress for me

and telling me how I looked really good in it. And I just got really bad vibes from

that.

When the prosecution asked whether complainant disclosed the dress-shopping experience to

another person, defense counsel objected under MRE 404(b), to which the trial court replied that

MRE 404(b) was inapplicable.

The trial court did not abuse its discretion when it permitted the prosecution to elicit

testimony from complainant regarding the dress-shopping incident. Fundamentally, the contested

testimony involved defendant’s allegedly improper compliments toward complainant while she

was dress shopping with his daughter, as opposed to any affirmative wrong, act, or crime on

defendant’s part involving complainant or any other party. See contra Galloway, 335 Mich App

at 645 (noting a woman’s testimony detailing that the defendant had strangled and attempted to

rape her as she was jogging through the woods in a park about three months before the female

complainant disappeared constituted inadmissible other-acts evidence under MRE 404(b)); see

also People v Jackson, 498 Mich 246, 262-265; 869 NW2d 253 (2015) (testimony of the

complainant’s aunt delineating the defendant’s previous sexual acts with parishioners, who were

above the age of consent unlike the complainant, fell within the scope of MRE 404(b)).

Furthermore, complainant’s testimony was in response to the prosecution’s questions addressing

complainant’s previous interactions with defendant, and whether defendant exhibited any

concerning behavior during their prior encounters, as opposed to an overt attempt to advance

improper testimony.

Complainant expressed that she consistently maintained a “bad feeling” around defendant,

but she chose to remain silent because complainant did not want to ruin her relationship with SD.

Complainant clarified that these negative emotions arose when she was shopping with SD and

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defendant for homecoming dresses, and defendant was “very weirdly” complimenting

complainant about her dress. Despite defendant’s contentions, complainant’s recollection of the

dress-shopping experience with defendant does not fall within the scope of MRE 404(b), as

complainant’s testimony detailed vague statements made by defendant as opposed to detailing

defendant’s previous acts, and explained why complainant believed defendant had a “bad vibe.”

See id. at 262 (“[B]y its plain terms, MRE 404(b) only applies to evidence of crimes, wrongs, or

acts ‘other’ than the ‘conduct at issue in the case’ that risks an impermissible character-to-conduct

inference. Correspondingly, acts comprised by or directly evidencing the ‘conduct at issue’ are

not subject to scrutiny under MRE 404(b).”).

Defendant further argues complainant’s testimony pertaining to dress shopping was

irrelevant and highly prejudicial under MRE 403, as the challenged statements were deliberately

inserted into the proceedings to establish that defendant had a propensity to improperly interact

with minors. “All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, the Constitution of the State of Michigan, these rules, or other

rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.” MRE

402. Thus, to be admissible, the proponent of the evidence must first establish that the evidentiary

item is relevant under MRE 402. Evidence is relevant if it has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” MRE 401. Even if relevant, evidence may be excluded if

the “probative value” of the evidence is “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” MRE 403.

While defendant advances that complainant’s testimony regarding the dress-shopping

event was irrelevant, the underlying matter concerned defendant’s criminal sexual conduct toward

complainant. Accordingly, the nature of the relationship between the two, in addition to

defendant’s “weirdly complimentary statements” toward complainant before the subject incident,

were critical to the jury’s evaluation of the witness’s credibility. Furthermore, the shopping

incident was relevant to the jury’s determination of whether the element of intent inherent in the

CSC-IV offense was established, as the prosecution was required to demonstrate that defendant

intentionally touched complainant for a sexual purpose; however, defendant contended the

“touching” was accidental. The evidence was relevant as to any possible “grooming” behavior of

defendant toward complainant. Additionally, the challenged testimony was not overtly prejudicial,

as complainant did not describe any inherently egregious conduct by defendant that would inflame

a jury to improperly convict defendant of the CSC-IV offense. “MRE 403 is not intended to

exclude ‘damaging’ evidence because any relevant evidence will be damaging to some extent.”

People v Baskerville, 333 Mich App 276, 287; 963 NW2d 620 (2020). “Rather, MRE 403 excludes

only unfairly prejudicial evidence, meaning there is a serious danger that the jury would give

evidence with relatively little logical relevance undue weight[,]” or if the contested evidentiary

item “would tend to arouse the jury’s emotions to a degree that would preclude proper

consideration of the actual merits of the case.” Id. at 287-288. It is highly doubtful that

complainant’s brief testimony detailing her experience dress shopping with defendant and SD

would lead to such a result. In light of the circumstances, defendant’s evidentiary challenges lack

merit, and he is not entitled to relief.

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III. PROSECUTORIAL MISCONDUCT

Defendant next argues that he was deprived of his right to a fair and impartial trial when

the prosecution improperly vouched for complainant’s credibility, denigrated defendant and

defense counsel, and undermined defendant’s presumption of innocence to obtain a favorable

verdict. We disagree.

Defendant did not contemporaneously object and request a curative instruction for the

alleged prosecutorial misconduct; therefore, this issue is not preserved for appellate review.

People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017). “Claims of prosecutorial

misconduct are generally reviewed de novo to determine whether the defendant was denied a fair

trial.” People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 (2013). “ ‘Because the

challenged prosecutorial statements in this case were not preserved by contemporaneous

objections and requests for curative instructions, appellate review is for outcome-determinative,

plain error.’ ” Mullins, 322 Mich App at 172, quoting People v Unger, 278 Mich App 210, 235;

749 NW2d 272 (2008).

“A prosecutor is the representative not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at

all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that

justice shall be done.” People v Evans, 335 Mich App 76, 89; 966 NW2d 402 (2020) (quotation

marks and citation omitted). Thus, the test of prosecutorial misconduct is whether the defendant

was denied a fair and impartial trial. People v Solloway, 316 Mich App 174, 201; 891 NW2d 255

(2016). This Court reviews claims of prosecutorial misconduct on a case-by-case basis,

“examining the pertinent portion of the record and evaluating the prosecutor’s remarks in context.”

People v Akins, 259 Mich App 545, 562; 675 NW2d 863 (2003) (quotation marks and citation

omitted).

“[T]he propriety of a prosecutor’s remarks will depend upon the particular facts of each

case.” People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). It is well established

that a prosecutor may not “urge the jury to convict as part of its civic duty or on the basis of its

prejudices.” Unger, 278 Mich App at 237. By interjecting such prejudices to the jury, a prosecutor

inappropriately asks the jury to convict the defendant not on the basis of his or her individual guilt

or innocence, but because of the necessity to protect the community from persons like the

defendant and from crimes such as those the defendant is accused of perpetrating. See People v

Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007) (“[a] defendant’s opportunity for a fair

trial can be jeopardized when the prosecutor interjects issues broader than the defendant’s guilt or

innocence.”). Moreover, “[a] prosecutor may not make a statement of fact to the jury that is

unsupported by evidence, but she is free to argue the evidence and any reasonable inferences that

may arise from the evidence.” People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818

(2003). Appeals to the jury to sympathize with the victim constitute improper argument. Unger,

278 Mich App at 237. However, prosecutors are generally afforded great latitude regarding their

arguments and conduct at trial. Id. at 236.

During closing argument, the prosecution delineated the elements of the CSC-IV charge

against defendant, and the relevant facts pertaining to the subject incident. Defense counsel

subsequently responded by highlighting the distinctions between complainant’s trial testimony and

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her preliminary examination testimony, noting there were several details complainant was unable

to recall concerning defendant touching her shin and whether SD was leaning over defendant to

order at the drive-through, thereby blocking defendant from reaching backward to touch

complainant. Defense counsel further asserted that “the mechanics” of how defendant was able to

reach complainant in the rear passenger seat were suspect. Defense counsel additionally stated

that in judging witness credibility, there was a lot of emotion based on what complainant disclosed.

Defense counsel asserted that complainant repeatedly failed to disclose what transpired to any

other person, except FK, despite her close relationship with SD and complainant’s mother,

arguing:

But the fact of the matter is, all of the people, if we are to believe

[complainant] that she was so scared and so frightened and such a panic attack and

this and that, all of the people that she could have immediately told that could have

helped her she did not. Instead, she—she sends this text. He’s trying to touch me.

She doesn’t say he touched me once. She doesn’t say he touched me twice.

Defense counsel reiterated the discrepancies between complainant’s testimonies, informing the

jury that this was not her first time testifying.

In its rebuttal argument, the prosecution responded by stating:

There’s a saying in law school that if you don’t have the facts you argue the

law. And [if] the law is not on your side, you argue the facts. And then when you

don’t have the laws or the facts on your side, you get up and you stomp on the table,

blame everyone else. That is victim blaming. That is excusing the defendant’s

behavior.

[Defense counsel] gets up, reads from [the] preliminary exam transcript

over and over again saying oh, do you remember this, do you remember this little

bitty question. That’s a strategy.

What motivation does [complainant] have, her family, all the witnesses to

come up three and a half years later and just to make this all up? There’s no

motivation to lie. There’s none.

And [defense counsel] asks questions, well, did you talk in the hall, like this

is some grand conspiracy. It’s not. We’re here because of the defendant’s actions,

the defendant’s sexual touching of a 15 year old girl. That’s why we’re here. And

we’re also here because, again, I have to prove the three elements and those were

met.

And I show exhibits and PowerPoints. Because when people get up here

and pound on the table and victim blame, we don’t lose sight of the real story.

The prosecution further argued that while defense counsel repeatedly critiqued complainant’s

failure to initially disclose what transpired to her mother or SD, “[i]n [complainant’s] mind, a 15

year old girl at the time, there are no good options. . . . What do you expect [her] to do? Again,

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it’s victim blaming. That’s all it is.” The prosecution closed by analogizing the presumption of

innocence of a defendant undergoing criminal proceedings to a “cloak of innocence, shroud around

them throughout the entirety of the trial[,]” and asserted, “[a]nd in this case that cloak has been

removed and we all see the defendant for exactly what he is. He’s guilty. He’s guilty.”

Defendant contends that the prosecution improperly vouched for complainant’s credibility,

denigrated defendant and defense counsel, and undermined defendant’s presumption of innocence

to obtain a favorable verdict. To support all of his claims, defendant cites the prosecution’s rebuttal

argument in which the prosecution characterized defense counsel’s theory as “victim-blaming,”

and the prosecution asserted that complainant possessed no motive to lie. We conclude that the

prosecution’s contested statements were not inflammatory or demeaning, rather, the prosecution

properly responded to defense counsel’s critiques of complainant’s credibility, and questioning of

complainant’s conduct during the subject incident. See People v Fyda, 288 Mich App 446, 462;

793 NW2d 712 (2010) (“The fact that the prosecutor employed colorful rhetoric does not make

the response to [the defendant’s] arguments disproportionate,” rather, the prosecution’s comments

properly addressed the weaknesses of the defendant’s theory); see contra Evans, 335 Mich App

at 104 (“the cross-examination was replete with prosecutorial misconduct” when the prosecution

accused the witness “of being a hypocrite, engaging in deceit, purposely appearing dense, lacking

intelligence, and ignoring or hiding evidence to make her opinion more palatable to the jury.”).

The prosecution did not use the term “victim-blaming” to mislead the jury as defendant

advances; rather, the prosecution countered defense counsel’s questioning of complainant’s

behavior throughout the underlying incident. In his closing argument, defense counsel argued that

if complainant was “so scared and so frightened and such a panic attack and this and that,” then

complainant would have contacted a third party other than FK for further assistance. Defense

counsel additionally highlighted minute discrepancies between details cited in complainant’s

preliminary examination testimony, which occurred approximately three years before the one-day

jury trial, and complainant’s recollection of the assault during trial. In response, the prosecution

asserted, in its rebuttal argument, that defense counsel was attempting to shift the blame for the

prohibited sexual contact onto complainant, by questioning her conduct, despite the fact she was

a 15-year-old minor child at that time. See People v Clark, 330 Mich App 392, 435; 948 NW2d

604 (2019) (“it is not improper for a prosecutor to comment on the weakness of a defense theory.”).

While the prosecution asserted, “[a]nd then when you don’t have the laws or the facts on your side,

you get up and you stomp on the table, blame everyone else[,]” to support its “victim-blaming”

contention, the prosecution is not obligated to use the “blandest” possible terminology and is not

forbidden from engaging in hyperbole. People v Blevins, 314 Mich App 339, 355-356; 886 NW2d

456 (2016) (quotation marks and citation omitted).

Accordingly, the prosecution’s remarks were proper commentary on the weakness of

defendant’s theory of the case, and the prosecution did not denigrate defense counsel or otherwise

suggest that defense counsel did not believe his own client. Furthermore, when considered in

context and as a response to defense counsel’s closing argument, the challenged statements during

rebuttal did not amount to commenting that defense counsel was intentionally trying to mislead

the jury. See contra, Unger, 278 Mich App at 238 (stating, “the prosecution also clearly exceeded

the bounds of proper argument when it suggested [] that defense counsel had attempted to ‘confuse

the issue[s]’ and ‘fool the jury’ by way of ‘tortured questioning,’ ‘deliberately loaded questions,’

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and ‘a deliberate attempt to mislead[,]’ ” as the challenged statements were not made during the

prosecution’s rebuttal argument).

Defendant further characterizes the prosecution’s following statements as an improper

vouching of complainant’s credibility: “What motivation does [complainant] have, her family, all

the witnesses to come up three and a half years later and just to make this all up? There’s no

motivation to lie. There’s none.” Generally, the prosecution “may not vouch for the credibility of

a witness by conveying to the jury that he [or she] has some special knowledge that the witness is

testifying truthfully.” Clark, 330 Mich App at 434. However, a “prosecutor may . . . argue from

the facts that a witness is worthy of belief.” Id. Furthermore, “a prosecutor may comment on his

own witnesses’ credibility during closing argument, especially when there is conflicting evidence

and the question of the defendant’s guilt depends on which witnesses the jury believes.” People v

Jackson (On Reconsideration), 313 Mich App 409, 426; 884 NW2d 297 (2015) (quotation marks

and citation omitted).

During its rebuttal argument, the prosecution advanced that despite defense counsel’s

contrary contentions, the jury should determine complainant was credible because she, along with

the remaining witnesses, did not have a reason to lie. The prosecution never asserted it maintained

special knowledge to determine that complainant, and the other witnesses, were telling the truth.

The prosecution merely encouraged the jury to consider the circumstances surrounding the

witnesses’ respective testimonies. Furthermore, this Court has repeatedly opined that an argument

related to why the jury should believe a certain witness on the basis of the facts admitted at trial is

not equivalent to vouching. See Clark, 330 Mich App at 434 (“The prosecutor may, however,

argue from the facts that a witness is worthy of belief.”); see also Jackson, 313 Mich App at 426

(providing that the prosecution was permitted to comment on two of its witnesses’ credibility after

defense counsel repeatedly attacked the witnesses’ truthfulness because of their drug use). This is

particularly true in matters such as the instant case, when the ultimate decision of the jury comes

down to a credibility contest concerning the parties’ witnesses. Jackson, 313 Mich App at 426.

Defendant lastly contends that the prosecution undermined defendant’s presumption of

innocence. During its rebuttal argument, the prosecution closed by analogizing the presumption

of innocence of a defendant undergoing criminal proceedings to a “cloak of innocence, shroud

around them throughout the entirety of the trial[,]” and asserted, “[a]nd in this case that cloak has

been removed and we all see the defendant for exactly what he is. He’s guilty. He’s guilty.”

However, this Court has previously determined that practically identical statements are

permissible. See People v Abraham, 256 Mich App 265, 277; 662 NW2d 836 (2003) (the

prosecution’s statement, “[the defendant] walks in this courtroom cloaked with the presumption

of innocence . . . . But you see, it can be removed[,]” while illustrative, did not shift the burden to

the defendant to prove his innocence, rather, “these statements are largely true—a defendant is

presumed innocent, and, in fact, the prosecution can defeat the presumption with evidence”).

Furthermore, while the prosecution is barred from injecting its personal beliefs or opinions of

defendant’s guilt, People v Johnson, 315 Mich App 163, 201; 889 NW2d 513 (2016), the

prosecution asked the jury to find defendant guilty because the evidence presented in the matter

lifted the “cloak of innocence” off defendant. See People v Lane, 308 Mich App 38, 65; 862

NW2d 446 (2014) (“[t]he prosecutor did not state her personal opinion of [the defendant’s] guilt

or veracity, but rather indicated that the evidence showed that [the defendant] had lied to the police

and was guilty.”).

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However, to the extent the prosecution’s arguments were improper, relief is not warranted

on appeal because, while defendant did not request a curative instruction or propose any particular

language for an instruction, the trial court instructed the jury as follows:

Every crime is made up of parts called elements. The prosecutor must prove

each element of the crime beyond a reasonable doubt. The defendant is not required

to prove his innocence or to do anything.

* * *

Many things are not evidence and you must be careful not to consider them

as such. I will describe some of the things that are not evidence.

The fact that the defendant is charged with a crime and is on trial is not

evidence.

The lawyers’ statements and arguments are not evidence. They are only

meant to help you understand the evidence and each side’s legal theories. You

should only accept things the lawyers say that is supported by the evidence or by

your own common sense and general knowledge.

* * *

As I said before, it is your job to decide what the [facts] of the case are. You

must decide which witnesses you believe and how important you think their

testimony is. You do not have to accept or reject everything a person says. You

are free to believe all, none or part of any person’s testimony.

In deciding which testimony you believe you should rely on your own

common sense and everyday experience. However, in deciding whether you

believe a witness’s testimony, you must set aside any bias or prejudice you may

have and not be influenced by any witness’s disability, gender, gender identity,

race, religion, ethnicity, sexual orientation, age, national origin or socioeconomic

status.

Jurors are presumed to follow their instructions. People v Gayheart, 285 Mich App 202, 210; 776

NW2d 330 (2009). Defendant has not demonstrated that the curative instruction was insufficient

to correct any prejudice caused by the prosecution’s challenged statements. Accordingly, his right

to a fair and impartial trial was not violated.

IV. INADMISSIBLE TESTIMONY

Defendant argues that the trial court abused its discretion when it permitted SD’s mother

to provide hearsay testimony of statements made by complainant after the subject incident, and

when it allowed complainant’s mother to share why she was emotional during her testimony. We

disagree.

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Hearsay is a “statement, other than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c); see

also People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007) (“Hearsay is an unsworn, out-of-

court statement that is offered to establish the truth of the matter asserted”). The declarant is the

person who makes the statement. MRE 801(b). A “statement” is defined, in pertinent part, as “an

oral or written assertion,” MRE 801(a), and the assertion must be capable of being true or false,

People v Propp, 340 Mich App 652, 666; 987 NW2d 888 (2022). Hearsay is generally

inadmissible, unless an enumerated exception applies. MRE 802.

During her testimony, SD’s mother disclosed that she repeatedly asked the minor children,

“what’s going on,” when she picked up complainant and SD from EC’s residence after the subject

incident. SD’s mother testified that, while the parties were in the car, the following conversation

occurred:

[Complainant] said, [SD], I can’t tell your mom, I need you to tell her. I

said what happened. I immediately stopped the car. And the girls started crying

and were very upset still. And I said what happened, someone needs to speak now

and tell me what the hell is going on because I need top [sic]. Because you guys

are way [too] upset for something just stupid to be [sic], you know, to be upset.

* * *

[The minor children] were going back and forth saying you have to tell, you

have to tell. And I said well, one of you need to tell me what’s going on. So that’s

when [complainant] finally said he touched—[defendant] touched me, [SD’s] dad

touched me.

SD’s mother further provided that complainant disclosed “that the first time [complainant] thought

[defendant] was just moving the teddy bear but then the second time he talked—he touched the

leg, that he wasn’t moving the teddy bear. So she didn’t know what was going on.”

The parties do not dispute that SD’s mother’s testimony detailing complainant’s statements

constituted hearsay. Rather, the parties contest whether the statements were admissible under any

of the enumerated hearsay exceptions, specifically as a present sense impression under MRE

803(1). A “present sense impression” under MRE 803(1) is “[a] statement describing or explaining

an event or condition made while the declarant was perceiving the event or condition, or

immediately thereafter.” To qualify as a present sense impression, “(1) the statement must provide

an explanation or description of the perceived event, (2) the declarant must have personally

perceived the event, and (3) the explanation or description must have been made at a time

‘substantially contemporaneous’ with the event.” People v Chelmicki, 305 Mich App 58, 63; 850

NW2d 612 (2014). MRE 803(1) “recognizes that in many, if not most, instances precise

contemporaneity is not possible and hence a slight lapse is allowable.” Id. (quotation marks and

citation omitted).

It is evident that complainant, as the declarant of the contested statements, described the

events that she personally witnessed as the victim of the sexual contact. Accordingly, the pertinent

issue is whether complainant’s statements, which were advanced approximately two hours after

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defendant touched complainant’s thigh at the restaurant drive-through, may be considered

“substantially contemporaneous” with the event. Because of the significant lapse in time between

when the drive-through assault transpired and the arrival of SD’s mother at EC’s residence to pick

up the minor children, complainant’s statements may not be deemed “substantially

contemporaneous” under MRE 803(1). See People v Bowman, 254 Mich App 142, 145-146; 656

NW2d 835 (2002) (the contested statement was “not made merely a few minutes after the

conversation being related took place, but following a drive of an indeterminate length from one

house to another,” and, “[t]o call such an account a ‘present sense impression’ is to rob the phrase

of its meaning, and we will not interpret the language of this evidentiary rule in a sense so contrary

to its ‘fair and natural import’ ”).

However, the challenged hearsay statements were still admissible, as the prosecution

argues on appeal, under MRE 803(2) as excited utterances. “MRE 803(2) provides an exception

to the hearsay rule for a statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition[,]” regardless of whether a

declarant is available. People v Jordan, 275 Mich App 659, 668; 739 NW2d 706 (2007) (quotation

marks and citation omitted). This exception “allows hearsay testimony that would otherwise be

excluded because it is perceived that a person who is still under the sway of excitement precipitated

by an external startling event will not have the reflective capacity essential for fabrication so that

any utterance will be spontaneous and trustworthy.” People v Smith, 456 Mich 543, 550; 581

NW2d 654 (1998) (quotation marks and citation omitted). The requirements for an excited

utterance are: (1) a startling event, and (2) the resulting statement is made while under the

excitement caused by the event. Id. In the instant case, there can be no dispute that complainant’s

statements arose out of, and related to the circumstances of, a startling event—namely, defendant’s

unlawful “touching” of complainant. Complainant disclosed defendant’s conduct to SD’s mother

approximately two hours after the underlying assault, and complainant maintained significant

difficulties voicing what transpired because of her shock. See People v Green, 313 Mich App 526,

537; 884 NW2d 838 (2015) (the complainant’s statements to her mother on the same day as her

contacts with the defendant were admissible under MRE 803(2) because “[t]he statements were

made within hours of [the] defendant leaving the apartment, so there was little time to contrive and

misrepresent his actions”).

Complainant testified that when SD’s mother arrived to pick up the minor children from

EC’s residence, complainant was “distraught” and “felt like what had happened was not real. And

I had just felt upset for my best friend because I knew that what I had to tell her I was going to ruin

her relationship with the defendant.” SD and SD’s mother further testified that complainant was

visibly distressed as she was bawling and hesitant to share details pertaining to the assault, and

complainant remained in an emotional state even when she subsequently arrived at the police

station, where complainant’s mother saw complainant shaking and crying. Considering the

circumstances, it is apparent that complainant was still under the stress or excitement caused by

the event when she revealed to SD’s mother that defendant “touched” her, and the contested

hearsay statements were admissible under MRE 803(2).

Defendant further contests the prosecution’s questioning of the emotional state of

complainant’s mother during her testimony, contending that her response was irrelevant and highly

prejudicial as it did not have any tendency to make the existence of any pertinent fact more or less

probable, but rather, the prosecution elicited her testimony to evoke sympathy from the jury.

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During the testimony of complainant’s mother, the prosecution asked her why she was emotional

while testifying. Complainant’s mother replied:

Yeah. She’s my daughter. Of course. Of course I have to be like that

because she’s my daughter and she got hurt. Her feelings. She is—she’s never

gonna like trust a guy in her life. And any time I take her like with me any—

anyplace and she sees like similar faces, she feels like she’s scar[ed] and she goes

inside the car. She does not want to be in a place like there’s people [that] look[]

like this guy right there.

This challenged testimony was admissible. “The right of confrontation insures that the

witness testifies under oath at trial, is available for cross-examination, and allows the jury to

observe the demeanor of the witness.” People v Washington, ___ Mich ___, ___; ___ NW3d ___

(2024) (Docket No. 165296); slip op at 6 (quotation marks and citation omitted). The significance

of the requirement of a face-to-face confrontation is that it permits the jury to observe the demeanor

of a witness while testifying to assist the jury in evaluating the witness’s credibility. Thus, as

complainant’s mother was noticeably upset during her testimony, the prosecution was within its

rights to provide the jury with clarity regarding her demeanor, as the matter was relevant to

determining the credibility of complainant’s mother. Furthermore, her testimony was not overtly

prejudicial. While complainant’s mother expressed how defendant’s conduct impacted herself and

complainant, potentially evoking an emotional response from the jury, her statements were not the

type that “would tend to arouse the jury’s emotions to a degree that would preclude proper

consideration of the actual merits of the case.” Baskerville, 333 Mich App at 287-288.

Additionally, the trial court instructed the jury, “Remember that you have taken an oath to return

a true and just verdict based only on the evidence and my instructions on the law. . . . [Y]ou must

not let sympathy, bias or prejudice influence your decision.” In light of the circumstances, the trial

court did not abuse its discretion, or otherwise err, when it admitted the contested statements of

SD’s mother and complainant’s mother.

V. JURY INSTRUCTIONS

Defendant also argues that the trial court erred when it denied defendant’s requested jury

instruction of “Accident as Defense to Specific Intent Crime,” M Crim JI 7.3a, thus violating

defendant’s constitutional right to a properly instructed jury and presentation of a defense. We

disagree.

“Claims of instructional error are reviewed de novo.” People v Montague, 338 Mich App

29, 37; 979 NW2d 406 (2021). “This Court reviews the trial court’s determination whether a jury

instruction is applicable to the facts of the case for an abuse of discretion.” Id. (quotation marks

and citation omitted). “An abuse of discretion occurs when the trial court’s decision is outside the

range of principled outcomes.” People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012)

(quotation marks and citation omitted). “[I]f an applicable instruction was not given, the defendant

bears the burden of establishing that the trial court’s failure to give the requested instruction

resulted in a miscarriage of justice.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002).

“The defendant’s conviction will not be reversed unless, after examining the nature of the error in

light of the weight and strength of the untainted evidence, it affirmatively appears that it is more

probable than not that the error was outcome determinative.” Id. at 124-125.

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“A criminal defendant has the right to have a properly instructed jury consider the evidence

against him.” People v Ogilvie, 341 Mich App 28, 34; 989 NW2d 250 (2022) (quotation marks

and citation omitted). “[T]he trial court is required to instruct the jury concerning the law

applicable to the case and fully and fairly present the case to the jury in an understandable manner.”

Montague, 338 Mich App at 37 (quotation marks and citation omitted). “One of the essential roles

of the trial court is to present the case to the jury and to instruct it on the applicable law with

instructions that include . . . any material issues, defenses, and theories that are supported by the

evidence.” People v Craft, 325 Mich App 598, 606-607; 927 NW2d 708 (2018) (quotation marks

and citation omitted). “Although the trial court is not obligated to sua sponte present instructions

regarding a defendant’s theory, the trial court is obligated to give instructions on any theory or

defense supported by the evidence upon request.” Ogilvie, 341 Mich App at 35. However, “[a]

defendant asserting an affirmative defense must produce some evidence on all elements of the

defense before the trial court is required to instruct the jury regarding the affirmative defense.”

People v Guajardo, 300 Mich App 26, 34-35; 832 NW2d 409 (2013) (quotation marks and citation

omitted). An affirmative defense does not negate the elements of a crime, but “seeks to justify,

excuse, or mitigate it.” People v Aspy, 292 Mich App 36, 49; 808 NW2d 569 (2011) (quotation

marks and citation omitted). When reviewing a claim of instructional error, we examine “the

instructions as a whole, rather than piecemeal, to determine whether any error occurred.” People

v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011).

The standard jury instruction provided for offenses encompassed under MCL 750.520e(1),

M Crim JI 20.13, titled “Criminal Sexual Conduct in the Fourth Degree,” provides:

(1) The defendant is charged with the crime of fourth-degree criminal sexual

conduct. To prove this charge, the prosecutor must prove each of the following

elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [touched (name complainant)’s/made,

permitted, or caused (name complainant) to touch (his/her)] [genital

area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.

(3) Second, that this touching was done for sexual purposes or could reasonably be

construed as having been done for sexual purposes.

Defendant requested the addition of M Crim JI 7.3a, titled “Accident as Defense to Specific Intent

Crime,” which states:

The defendant says that [he/she] is not guilty of [state crime] because [he/she] did

not intend to [state specific intent required]. The defendant says that [his/her]

conduct was accidental. If the defendant did not intend to [state specific intent

required], [he/she] is not guilty. The prosecutor must prove beyond a reasonable

doubt that the defendant intended to [state specific intent required].

In the instant case, after the close of proofs, the trial court cited the jury instructions it

planned on providing the jury; neither party objected to the stated instructions. Defense counsel

requested the addition of M Crim JI 7.3a. The court read the instruction aloud to the parties’

counsel, and questioned whether defendant must testify for the instruction to apply. The

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prosecution responded that defenses under Chapter 7 of the Michigan Model Criminal Jury

Instructions “have to be elicited by evidence provided by the defense,” which defendant failed to

do because he did not testify. Defense counsel responded that the “accident defense” may be

established through the prosecution’s witnesses as “the argument or the defense is inadvertent or

accidental touching.” The court agreed with defense counsel’s argument but it expressed, “[t]he

problem is the first four words of the instructions, the defendant says that he is not guilty. So to

me, that’s inferring that he has testified[,]” as opposed to the instruction providing, “the defendant

argues.” The trial court ultimately denied defense counsel’s request to add M Crim JI 7.3a to the

jury instructions.

The trial court did not err when it denied defendant’s requested jury instruction of

“Accident as Defense to Specific Intent Crime,” M Crim JI 7.3a. For the trial court to have

instructed the jury on accident as requested by defendant, there must have been evidence that

defendant acted without an intent to touch complainant’s inner thigh, or the contested touch was

not for sexual purposes, nor could it reasonably be construed as having been done for sexual

purposes. To the extent defendant argues that an instruction on accident should have been given

by the trial court because it was argued by trial counsel, the arguments of counsel do not constitute

evidence, and therefore could not be considered when determining whether factual support exists

for the instruction. Furthermore, even considering the evidence advanced by the prosecution, none

of the witnesses expressly provided that defendant’s conduct could have been “accidental.” The

substance of the testimonies focused on whether defendant was capable of reaching complainant

in the rear passenger seat based on the placement of the parties in the car, and whether complainant

was truthful based on her emotional reaction to the underlying events. We recognize, however,

that complainant testified that after she arrived at EC’s residence, defendant said to her, “[i]t’s not

what it looks like, it’s not what it looks like. Come here—no. Come on, come on[,]” potentially

supporting an accident defense.

Even assuming, arguendo, that the addition of the “accident as a defense” jury instruction

was warranted based on the prosecution’s presentation of proofs, defendant has failed to establish

that the court’s alleged failure to instruct the jury under M Crim JI 7.3a undermined the reliability

of the jury’s verdict. The requested jury instruction was duplicative as the elements of CSC-IV

required the prosecution to establish that defendant intentionally touched complainant for a sexual

purpose, meaning the jury would necessarily need to conclude that the touching was nonaccidental

to convict defendant. Furthermore, the trial court expressly instructed the jury

Now, the defendant is charged [with] criminal sexual conduct fourth degree.

To prove this charge, the prosecutor must prove each of the follow[ing] elements

beyond a reasonable doubt. . . .

First, that the defendant intentionally touched [complainant’s] genital area

and/or groin and/or inner thigh or the clothing covering that area.

Second, that this touching was done for sexual purposes or could reasonably

be construed as having been done for sexual purposes.

* * *

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The defendant’s intent may be proved by what he said, what he did, how he

did it or by any other facts and circumstances in evidence.

Moreover, defense counsel argued that defendant’s conduct was inadvertent or accidental,

such that the exclusion of the contested jury instruction did not prohibit the jury from examining

defendant’s intent. Defense counsel advanced, “The elements that we’re talking about [here] is

whether [defendant] intentionally touched this girl. And I don’t believe the People are going to be

able to prove that. Inadvertently touching an individual, that’s not intentional. Accidentally

touching is not intentionally.” The jury did not appear conflicted or confused in reaching its

verdict, as it determined defendant was guilty of CSC-IV after only 25 minutes of deliberations,

such that further instruction was unwarranted. See People v Walker, 504 Mich 267, 276; 934

NW2d 727 (2019) (“When a jury indicates it cannot reach a unanimous verdict, a trial court may

give a supplemental instruction . . . to encourage the jury to continue deliberating”). In light of the

circumstances, defendant neglected to demonstrate that he is entitled to relief based on any

purported jury-instruction error.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

Lastly, defendant argues that he was deprived of effective assistance of counsel because

his trial counsel neglected to consistently communicate with defendant regarding his trial strategy,

and he failed to ensure EC would serve as a defense witness. Defendant further contends that his

trial counsel was ineffective when he neglected to object during the prosecution’s rebuttal

argument despite its numerous inappropriate statements. We disagree.

To preserve an ineffective-assistance-of-counsel claim for appellate review, a defendant

must move for a new trial or request an evidentiary hearing in the trial court, People v Heft, 299

Mich App 69, 80; 829 NW2d 266 (2012), or file a motion for remand to the trial court for a

Ginther3 hearing, People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020).

Defendant preserved this issue for appeal by filing a motion to remand to the trial court, which

was denied. People v Croskey, unpublished order of the Court of Appeals, entered January 17,

2024 (Docket No. 364776). Therefore, this Court’s review is limited to errors apparent on the

record. Abcumby-Blair, 335 Mich App at 227.

“Generally, whether a defendant had the effective assistance of counsel is a mixed question

of fact and constitutional law.” Heft, 299 Mich at 80 (quotation marks and citation omitted). “This

Court reviews findings of fact for clear error and questions of law de novo.” Id. Clear error exists

if the reviewing court “is left with a definite and firm conviction that the trial court made a

mistake.” Abcumby-Blair, 335 Mich App at 227-228 (quotation marks and citation omitted).

The United States Constitution and Michigan Constitution guarantee a defendant the right

to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. For a defendant to

succeed on an ineffective-assistance-of-counsel claim, the defendant must show “(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 the outcome would have been different.”

3

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

-16-

People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “In examining whether defense

counsel’s performance fell below an objective standard of reasonableness, a defendant must

overcome the strong presumption that counsel’s performance was born from a sound trial

strategy.” Id. at 52. “Yet a court cannot insulate the review of counsel’s performance by calling

it trial strategy.” Id. “Initially, a court must determine whether the strategic choices [were] made

after less than complete investigation, and any choice is reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.” Id. (quotation marks

and citation omitted).

“The inquiry into whether counsel’s performance was reasonable is an objective one and

requires the reviewing court to determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent assistance.” People v

Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). “This

standard requires a reviewing court to affirmatively entertain the range of possible reasons . . .

counsel may have had for proceeding as they did.” Id. (quotation marks and citation omitted).

This Court will not substitute its own judgment for that of counsel or use the benefit of hindsight

in assessing the defense counsel’s competence. Unger, 278 Mich App at 242-243.

Defendant first contends that his trial counsel failed to consistently communicate with

defendant regarding his trial strategy and ensure that EC would serve as a defense witness. “An

attorney’s decision whether to retain witnesses, including expert witnesses, is a matter of trial

strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). Defense counsel has

a “duty to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland v Washington, 466 US 668, 691; 104 S Ct 2052; 80 L Ed

2d 674 (1984). “A sound trial strategy is one that is developed in concert with an investigation

that is adequately supported by reasonable professional judgments.” People v Grant, 470 Mich

477, 486; 684 NW2d 686 (2004). Regarding prejudice, “[w]ithout some indication that a witness

would have testified favorably, a defendant cannot establish that counsel’s failure to call the

witness would have affected the outcome of his or her trial.” People v Carll, 322 Mich App 690,

703; 915 NW2d 387 (2018).

Before the admission of the jury into the courtroom, the parties’ respective counsels were

discussing the proposed exhibit list with the trial court, when defendant asserted that he had a

witness. Defense counsel responded that defendant “indicated to me an [EC], who was the aunt at

the location, who may be called.” When the court shared its concerns that defendant was

attempting to introduce a witness on the day of the jury trial, defense counsel replied that a different

attorney was previously assigned to the matter, and the trial court noted that the witness list

remained fundamentally unchanged since February 2020. The court further stated that the

prosecution maintained a legitimate objection to EC’s late admission as a witness, and defense

counsel was required to make an offer of proof or cite a relevant legal principle to justify her

presentation. Defendant addressed the trial court stating, “I need another lawyer, please,” to which

the court responded, “That’s not how it works, either.” Defendant asserted:

That’s not how it works? He never called me. After—he—that this person

is court-appointed. And I told him I had a court-appointed before. This guy never

called me until it was time to come to court.

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He never asked me about my witness. He never asked me did I have a

witness and none of that. And it’s been three years, I been going with this. I been

missing jobs and getting fired for this situation. I’m getting frustrated.

The trial court then asked whether defense counsel failed to meet with defendant in the

eight months since he was assigned the instant matter, and defense counsel asserted:

That’s not true, your Honor. We have had discussion about this. We have

talked about, you know, who we may call, who we may not. I’ve had conversations

with him regularly.

I mean, you know, prior to each court date we’ve talked. And he has never

indicated that to me up to this point. I mean, I have reviewed the discovery and

discussed it with him and this individual was not an eyewitness to anything.

Defendant subsequently asserted that the contested assault occurred in EC’s residence and she was

an eyewitness to the event. Defendant conceded that he met with defense counsel at least four

times; however, defendant was frustrated that defense counsel did not take notes during their

conversations. Defense counsel expressed that he discussed discovery with defendant to ensure

defendant maintained a copy of the pertinent files, and the two further reviewed the witnesses that

were present during the subject assault. Defendant shared that he did not request EC’s presence

at the trial because defense counsel did not inform defendant that she was required to attend as a

witness. The trial court opined that if EC’s testimony was critical to defendant’s matter, defendant

should have contacted defense counsel and informed him accordingly, and “the fact that [EC] is

not here is very telling because if you thought that you had someone to be called, today is [the]

date and time set for trial. You could have made—if it’s your aunt, you could have said could you

be in court today?” Furthermore, the court instructed defendant on August 31, 2022 of his

November 2022 jury trial date, and defendant should have assumed any witnesses would need to

be present for their testimony.

Defense counsel subsequently moved for the admission of EC as a witness:

Your Honor, based on what my client is saying, he’s indicating that he

wanted this witness here. I don’t think there would be any sort of unfair surprise

or anything to the People if we were to add [EC] to the witness list. Even though

she was not—she’s always been an individual who the People know about . . . .

The prosecution responded that defense counsel failed to amend his witness list within the 30-day

statutory requirement for the prosecution to be aware of EC’s potential testimony, and while

defendant alleged that “he doesn’t know what’s going on here,” defendant maintained a previous

CSC conviction, thus “[h]e knows how the system works.” The court determined that the parties

would proceed with trial as scheduled; however, defense counsel was permitted to make an “offer

of proof and law that says it’s appropriate to have [EC] as a witness, and [he] still [had] that

opportunity [until] sometime this morning.”

Following the prosecution’s close of proofs, defendant reasserted that he wished to present

EC as a witness, despite her absence from the courtroom. Defendant additionally clarified that EC

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was his cousin, not SD’s aunt. The court opined that as defendant and defense counsel were aware

of the jury trial date, and neither party made an offer of proof or established the prejudicial effect

of barring EC’s testimony, the request to present EC as a witness was denied. Defendant continued

to contest the court’s decision regarding EC, in addition to critiquing defense counsel’s

performance, stating, “I clearly told [counsel] about the witness that I have. She’s the eyewitness,

she was not asleep as they keep saying she was asleep. She’s the—pretty much a key witness to

this case.” The court noted defendant’s concerns, reiterated that defendant was informed of the

instant trial date months prior, and allowed defendant to meet with counsel to remedy the matter.

The parties reconvened, and defense counsel informed the court that he “need[ed] to make

a motion regarding this witness,” referring to EC, noting his confusion regarding whether EC was

SD’s aunt or defendant’s cousin, because in their discussions, defendant did not clarify that the

cousin he was referring to was EC, or identify her as the owner of the Pontiac residence. However,

defense counsel simultaneously advanced that during his review of the relevant discovery, he

believed that EC would present “extraneous testimony not regarding the incident at hand.”

Defense counsel expressed that if he knew the cousin defendant was requesting to serve as a

witness was EC, he would “have filed a witness list adding her and requesting and subpoenaing

her, having her appear.” The court reiterated that defense counsel was assigned to the instant

matter six months earlier, and stated, “if you’re not having communications with your client, I

don’t know what to tell you.” Defense counsel clarified that the fundamental miscommunication

arose from the fact he was unaware that EC was actually the cousin defendant desired to have as

a witness, as EC had been consistently referred to as SD’s “aunt.” Defense counsel further

expressed, “[i]n this situation, considering my client’s right to present a defense, if he feels that

this witness is relevant, this is the person that he wants here, I would ask the Court to allow us an

opportunity to—to present that witness to testify at this late stage.”

The prosecution responded that defense counsel failed to cite any caselaw to support the

addition of a witness this late into the proceedings, or provided any indication how her testimony

would be beneficial to defendant’s case. Defense counsel replied that EC was mentioned during

the preliminary examination, and she was discussed by every witness during their respective trial

testimonies. The trial court opined that despite defense counsel’s contentions that he was unaware

the cousin defendant was referring to was EC, defense counsel still knew “of her importance

because you have been quoting that [preliminary] exam transcript all morning. So you knew about

her importance. Whether or not your client ever stated to you, it’s still your case to run.” The

court further expressed that it was required to enforce the applicable discovery rules against both

parties fairly, and while it maintained discretion to add witnesses, “I think that discretion is much

more limited when we’re at 2:30 in the afternoon and this is the first time it’s—well, [there’s] still

been no offer of proof, frankly, except the fact that she’s been mentioned by the other witnesses.”

Defense counsel asked whether he was permitted to make an offer of proof, but the trial court

denied his request.

Addressing defendant’s contention that his counsel failed to effectively communicate with

him, we first note that defendant conceded that he met with defense counsel at least four times.

Defense counsel additionally provided that, in the six months he was assigned defendant’s case,

defense counsel contacted defendant before every hearing, in addition to discussing discovery with

defendant to ensure he maintained a copy of the pertinent files, in addition to reviewing the

witnesses that were present during the subject assault. However, despite their allegedly consistent

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contact, there was a significant miscommunication regarding the identity of defendant’s desired

witness, EC, and her relationship to defendant. Defense counsel noted his confusion regarding

whether EC was SD’s aunt or defendant’s cousin, because in their discussions, defendant did not

clarify that the cousin he was referring to was EC, or identify her as the owner of the residence

where he brought the children. However, defense counsel simultaneously advanced that during

his review of the relevant discovery, he believed that EC would present “extraneous testimony not

regarding the incident at hand.” Defense counsel expressed that if he recognized the cousin

defendant was requesting to serve as a witness was EC, he would “have filed a witness list adding

her and requesting and subpoenaing her, having her appear.” But defense counsel only advanced

such a sentiment due to defendant’s adamancy to have EC serve as a witness, as defense counsel

expressed, “[i]n this situation, considering my client’s right to present a defense, if he feels that

this witness is relevant, this is the person that he wants here, I would ask the Court to allow us an

opportunity to—to present that witness to testify at this late stage.” Nonetheless, it is concerning

that in the six months before the jury trial, defense counsel neglected to clarify the identity of

defendant’s proposed witness.

As the trial court aptly highlighted, regardless of defense counsel’s contentions that he was

unaware the cousin defendant was referring to was EC, defense counsel still knew “of her

importance because you have been quoting that [preliminary] exam transcript all morning. So you

knew about her importance. Whether or not your client ever stated to you, it’s still your case to

run.” As the underlying matter was fundamentally a credibility contest, it was questionable for

defense counsel not to, at minimum, investigate the witness defendant desired to present. It is

evident that defense counsel did not even seek the name of defendant’s proposed witness as

defense counsel would have immediately recognized that EC was the “aunt” the minor children

were referring to, and the owner of the home. See Trakhtenberg, 493 Mich at 52 (“Counsel always

retains the duty to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.”) (quotation marks and citation omitted). However, while

defense counsel did not seek further information regarding the then-anonymous cousin defendant

desired to present as a witness, defense counsel did investigate whether EC would be a viable

witness, despite his lack of knowledge regarding her biological relationship to defendant. After

his investigation, defense counsel expressed that he determined EC would present “extraneous

testimony not regarding the incident at hand.” See id. (the defendant “must overcome the strong

presumption that counsel’s performance was born from a sound trial strategy.”).

Thus, while certain aspects of defense counsel’s conduct were dubious, defense counsel

conducted an adequate investigation of the underlying matter by inquiring into EC’s knowledge

of the subject, and recognizing all the parties present or relevant to the subject incident, i.e.,

complainant, defendant, SD, SD’s mother, complainant’s mother, FK, and EC. See contra id.

at 54-55 (when the defendant’s trial counsel failed to identify the factual predicate of each of the

five charged counts or consult with key witnesses, and defense counsel’s inadequate investigation

contributed to her failure to sufficiently develop a defense, “defense counsel’s performance was

constitutionally deficient because a sound defense strategy cannot follow an incomplete

investigation of the case when the decision to forgo further investigation was not supported by

reasonable professional judgment.”). Furthermore, even at trial, the prosecution, defense counsel,

and the court were all under the impression that EC was SD’s aunt, as opposed to defendant’s

cousin, until SD’s mother and defendant clarified the matter during the proceeding.

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This Court has broadly determined that “[d]ecisions regarding what evidence to present

and whether to call or question witnesses are presumed to be matters of trial strategy, and this

Court will not substitute its judgment for that of counsel regarding matters of trial strategy.”

People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). Regardless of whether defense

counsel categorized EC as defendant’s cousin or SD’s aunt, he ultimately determined her

testimony was unnecessary after adequately investigating the underlying matter, and defendant did

not indicate how EC’s testimony was otherwise pertinent. Thus, without further information

regarding the nature of the proposed testimony, as defendant has not made an offer of proof

detailing what EC would testify about, we cannot conclude that defense counsel’s performance

fell below an objective standard of reasonableness because defendant failed to establish the factual

predicate for his claim.

To the extent that defense counsel’s performance was deficient, defendant has failed to

establish that “but for counsel’s deficient performance, a different result would have been

reasonably probable.” People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). While

defendant asserted, during the trial proceeding, “I clearly told [counsel] about the witness that I

have. She’s the eyewitness, she was not asleep as they keep saying she was asleep. She’s the—

pretty much a key witness to this case[,]” defendant, both during trial and on appeal, neglects to

indicate what EC could have testified about. See People v Muhammad, 326 Mich App 40, 63; 931

NW2d 20 (2018) (because the “defendant bears the burden of demonstrating both deficient

performance and prejudice, the defendant necessarily bears the burden of establishing the factual

predicate for his claim.”) (quotation marks and citation omitted). The evidentiary record provides

that EC’s only first-hand knowledge would be her observations of complainant after the sexual

contact had occurred. Multiple witnesses testified that EC was unaware of what transpired because

she was asleep when complainant, SD, and defendant arrived at her home. Moreover, complainant

detailed that while the minor children were waiting for SD’s mother to arrive, EC woke up and she

saw complainant and SD crying in her home, but neither minor child informed EC what occurred.

Complainant just stated that she “needed to go home and [SD’s] mom was coming to pick them

up.” SD’s mother additionally shared that she did not attempt to enter EC’s home to investigate

further because she knew “[e]verybody was asleep in the house” and “[n]obody knew what was

going on. [Defendant’s] cousin [EC] didn’t even know what was going on.” See Carll, 322 Mich

App at 703 (“Without some indication that a witness would have testified favorably, a defendant

cannot establish that counsel’s failure to call the witness would have affected the outcome of his

or her trial.”). Ultimately, defendant failed to establish the factual predicate of his claim by making

an offer of proof showing that EC would have testified favorably, and he failed to show a

reasonable probability that the outcome of the case would have differed had it not been for defense

counsel’s failed strategy. Therefore, he is not entitled to relief.

Defendant further argues that his trial counsel was ineffective when he neglected to object

during the prosecution’s rebuttal argument despite its numerous inappropriate statements.

However, for the reasons explained prior, because the prosecution’s statements were proper, and

the trial court’s jury instructions were sufficient to dispel any possible prejudice, there is no

reasonable probability that counsel’s failure to object affected the outcome of defendant’s trial.

See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a

meritless argument or raise a futile objection does not constitute ineffective assistance of

counsel.”). Accordingly, defendant has not established a claim of ineffective assistance of counsel.

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Affirmed.

/s/ Thomas C. Cameron

/s/ Kathleen Jansen

/s/ Brock A. Swartzle

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