“We agree with the Court of Appeals that abortion evidence, while perhaps incendiary to some, is not so inherently prejudicial in today’s society as to render it inadmissible.”
How later courts described this case
- “We agree with the Court of Appeals that abortion evidence, while perhaps incendiary to some, is not so inherently prejudicial in today’s society as to render it inadmissible.”
Written by the judges who cited it.
The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 12, 2026
Plaintiff-Appellee, 10:03 AM
v No. 365716
Van Buren Circuit Court
SHANE ISAAC CLENDENIN, LC No. 2022-023782-FH
Defendant-Appellant.
Before: LETICA, P.J., and BORRELLO and RICK, JJ.
PER CURIAM.
Defendant appeals as of right his convictions, following a jury trial, of four counts of third-
degree criminal sexual conduct (CSC-III), contrary to MCL 750.520d(1)(a)1 (sexual penetration
with person at least 13 years of age and under 16 years of age). The jury acquitted defendant of
two additional counts of CSC-III. The trial court sentenced defendant as a fourth offense habitual
offender, MCL 769.12, to 99 months to 30 years’ imprisonment for each count, with the sentences
to be served concurrently. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
The complainant was 16 years old at the time of trial. She testified that she had known
defendant since she was “a kid” because her mother was friends with defendant. During the
summer of 2020, when the complainant was 13 years old, the complainant went to defendant’s
house “like every other day” while the complainant’s mother was at work. Generally, the
complainant would go to defendant’s house in the morning and stay until approximately 10:00
p.m. when her mother finished work. The complainant testified that she had a “crush” on
defendant that began when she was “little.” Defendant lived with his son, who was approximately
6 or 7 years old, defendant’s girlfriend and defendant’s nephew who was approximately 15 years
old.
1
The recent amendments to MCL 750.520d did not affect Subsection (1)(a). See 2023 PA 126.
-1-
The complainant testified that one day during that summer, she was riding a four-wheeler
with defendant in the grape field next to his house. Defendant and the complainant were on the
same four-wheeler, and defendant’s son was riding a different four-wheeler. The complainant
testified that defendant had stopped the four-wheeler and as they were talking, they “kind of just
kissed.” According to the complainant, this was their first incident of physical contact.
The complainant testified that the next instance of physical contact occurred in defendant’s
basement on a separate day. She described the basement as large, concrete, and unfinished, with
a wood stove and a bed. The complainant testified that she and defendant had vaginal intercourse,
that she was not “force[d],” and that she intentionally went to the basement with defendant to have
sexual intercourse with him. Defendant’s son was home at the time but his girlfriend was not.
When defendant’s girlfriend returned, the complainant was wearing the girlfriend’s pants because
there was blood on the complainant’s pants.
Next, the complainant testified about another incident that occurred in defendant’s
bathroom. She was “doing [her] hair,” and defendant was next to her. Defendant and the
complainant then had anal intercourse. The complainant testified that “it just kind of happened,”
and it “hurt.”
Additionally, the complainant testified that she and defendant had penile-oral sex more
than two times but fewer than five times.
The complainant testified that she and defendant had vaginal intercourse “[l]ike six” times
and that these incidents occurred in the “barn, the bathroom, downstairs, the car and the four-
wheeler.” She clarified that “downstairs” meant the basement, and she also testified that the
instance of anal intercourse was the only incident that occurred in the bathroom. The complainant
also indicated that she and defendant engaged in vaginal intercourse in defendant’s bedroom while
the complainant’s mother and defendant’s girlfriend were downstairs. According to the
complainant, she was always with defendant and was alone with him “[e]very” time she was at his
house. Defendant’s girlfriend was either “[a]t the store” or “downstairs smoking meth.” The
complainant also clarified that she never had vaginal intercourse with defendant in the barn but
had actually engaged in oral sex with defendant.
Defendant’s girlfriend testified that there was a period of time during the summer of 2020
when the complainant was at the home of defendant approximately “[e]very other day.” The
girlfriend did not “see much [sic] interactions” between defendant and the complainant. She
testified that the complainant had told her that she had a “crush” on defendant, and the girlfriend
“thought it was cute.” She further indicated that she knew of only one time when the complainant
and defendant were at the home without her present. On that occasion, the girlfriend went to the
store and left defendant and complainant at the house. She was gone for approximately an hour
and a half or two hours. When she returned, the complainant was wearing a pair of her pajama
pants and “acting a little standoffish.” She further testified that the complainant did not seem to
want to talk much and was “just acting different.” Defendant was outside.
Defendant testified and denied that he ever had sex with the complainant. Defendant
testified that he went to school with the complainant’s mother and had known the complainant
“since she was born.” During 2020, the complainant’s mother frequently “would come over and
-2-
party” with defendant’s girlfriend. In June 2020, defendant and the complainant’s mother had an
argument and he told the mother to leave and not come back.
Defendant was convicted and sentenced as previously stated. This appeal followed.
II. “FLIGHT” EVIDENCE AND JURY INSTRUCTION
We begin with defendant’s challenge directed at (1) evidence that he was hiding when law
enforcement came to his home to arrest him and (2) a corresponding jury instruction. Defendant
appears to raise two related issues: he first argues that the trial court erred by giving the jury
instruction on flight because there was no evidence to support it, and he secondly argues that the
evidence that was used to justify the flight instruction did not actually constitute “flight” evidence.
At trial, defendant’s girlfriend testified that she learned at some point that there was an
arrest warrant for defendant related to CSC charges. She testified that when law enforcement came
to the house, defendant was in “a sub-wall in the closet.” Defense counsel objected to this
testimony on relevance grounds, and the trial court overruled the objection. She subsequently
explained that defendant had cut out a portion of the wall in a closet and made this hiding area in
the closet. She also testified that it was designed to hide a person. Defendant was hiding in this
spot when law enforcement arrived to arrest him. Defendant testified, however, that he had
fashioned this area for the purpose of hiding marijuana.
A. PRESERVATION AND STANDARD OF REVIEW
Defendant’s appellate argument appears to raise both an evidentiary issue and a jury
instruction issue, although the emphasis of the argument seems to primarily focus on the jury
instruction issue.
“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
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). “An objection based on one ground at
trial is insufficient to preserve an appellate attack based on a different ground.” People v Stimage,
202 Mich App 28, 30; 507 NW2d 778 (1993).
Here, defendant’s trial counsel objected to the girlfriend’s testimony that defendant was in
a sub-wall within a closet when law enforcement arrived at the residence to arrest defendant, but
defendant’s trial counsel objected on the ground of relevance. On appeal, however, defendant
appears to argue that although “flight” evidence is generally admissible, this particular evidence
did not actually constitute “flight” evidence because there was no evidence that defendant was
motivated to hide out of a fear of apprehension. Defendant has therefore failed to preserve this
issue for appeal because he did not object in the trial court on the same ground asserted on appeal.
Aldrich, 246 Mich App at 113; Stimage, 202 Mich App at 30.
With respect to the jury instruction issue, a “party must object or request a given jury
instruction to preserve the error for review.” People v Sabin (On Second Remand), 242 Mich App
656, 657; 620 NW2d 19 (2000).
-3-
Before the final jury instructions were given to the jury, and outside the presence of the
jury, defendant’s trial counsel objected to the “flight” instruction as follows:
Your Honor I would object to instruction 4.4. As the Court knows I’ve objected to
the evidence being submitted in, but I don’t think evidence regarding Mr. Clendenin
hiding in a closet is relevant in any way to this case and I don’t believe it should
have come in. Now admittedly, now that it has, I think the instruction probably is
needed but I did just want to register my objection generally to that evidence
coming in.
The trial court nonetheless gave an instruction to the jury consistent with M Crim JI 4.4,
instructing the jury as follows:
There has been some evidence that the defendant tried to hide or hid after
the alleged crime. This evidence does not prove guilt. A person may run or hide
for innocent reasons such as panic, mistake, or fear. However, a person may also
run or hide because of a consciousness of guilt. You must decide whether the
evidence is true, and if true, whether it shows that the defendant had a guilty state
of mind.
Again, although defendant’s trial counsel nominally objected to the instruction, the
objection was based on a different argument than the one defendant now advances on appeal.
Defendant argues on appeal that the instruction was unwarranted because the evidence that he was
hiding when law enforcement arrived that was admitted at trial did not actually constitute “flight”
evidence, whereas defendant essentially argued in the trial court that this evidence should not have
been admitted in the first place because it was not relevant. Defendant’s trial counsel appeared to
concede that the instruction was warranted based on the evidence that had been admitted, although
counsel maintained his objection to the admissibility of that evidence. Hence, even assuming that
this argument is not waived for appeal, it is—at a minimum—unpreserved because an objection
on one ground is not sufficient to preserve an appellate argument based on a different ground.
Aldrich, 246 Mich App at 113; Stimage, 202 Mich App at 30.
Generally, the “decision whether to admit evidence is within the discretion of the trial court
and will not be disturbed on appeal absent a clear abuse of discretion.” Aldrich, 246 Mich App at
113. However, unpreserved evidentiary issues are reviewed for plain error affecting the
defendant’s substantial rights. People v Brown, 326 Mich App 185, 195; 926 NW2d 879 (2018),
amended on other grounds 326 Mich App 185 (2019). On plain error review, the defendant bears
the burden of showing that (1) error occurred, (2) the error was clear or obvious, and (3) the error
affected the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). To the extent an evidentiary issue involves preliminary questions of law, this
Court reviews questions of law de novo. People v Dobek, 274 Mich App 58, 85; 732 NW2d 546
(2007).
“Claims of instructional error are generally reviewed de novo by this Court, but the trial
court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an
abuse of discretion.” Id. at 82. “Jury instructions are reviewed in their entirety to determine if
error requiring reversal occurred.” People v McKinney, 258 Mich App 157, 162; 670 NW2d 254
-4-
(2003). Unpreserved claims of instructional error, however, are reviewed for plain error. Carines,
460 Mich at 764-765; Aldrich, 246 Mich App at 124-125.
B. ANALYSIS
Based on the nature of defendant’s arguments, it is necessary to first address his second
contention that the evidence that he was hiding within a wall in a closet when law enforcement
arrived at his residence to arrest him did not constitute “flight” evidence on which to justify giving
the jury instruction regarding “flight.”
“Evidence that reflects a defendant’s consciousness of guilt is relevant,” People v Parrott,
335 Mich App 648, 680; 968 NW2d 548 (2021), and “[e]vidence of flight is admissible to support
an inference of ‘consciousness of guilt,’ ” People v Unger, 278 Mich App 210, 226; 749 NW2d
272 (2008) (citation and some quotation marks omitted). “The term ‘flight’ has been applied to
such actions as fleeing the scene of the crime, leaving the jurisdiction, running from the police,
resisting arrest, and attempting to escape custody.” People v Coleman, 210 Mich App 1, 4; 532
NW2d 885 (1995). “ ‘Evidence of an attempt to avoid arrest . . . in a criminal case is relevant,
material, admissible, and can lead to an inference of guilt.’ ” Parrott, 335 Mich App at 680,
quoting People v Biegajski, 122 Mich App 215, 220; 332 NW2d 413 (1982) (ellipsis in original).
To admit flight evidence, it is not necessary for the prosecutor to prove that the defendant
“was ‘motivated’ by fear of apprehension” because it is difficult to prove a person’s motives and
such a requirement would thus make flight evidence rarely admissible. People v Smelley, 485
Mich 1023; 776 NW2d 310 (2010). “It is ultimately for the jury to determine whether a
defendant’s conduct was indicative of consciousness of guilt.” Parrott, 335 Mich App at 680.
Here, the record evidence reflects that defendant was hiding in a cut out portion of the wall
inside a closet when law enforcement arrived at his home with an arrest warrant for the CSC
charges. There was also evidence that defendant made this hiding place and, despite defendant’s
assertions to the contrary, that it was specifically designed to hide a person. A rational juror could
conclude from this evidence that defendant was hiding from the police and attempting to evade
arrest for the CSC charges, which in turn could support an inference of consciousness of guilt.
Parrott, 335 Mich App at 680; Unger, 278 Mich App at 226. Contrary to defendant’s assertion,
the prosecutor was not required to show that defendant was motivated by a fear of apprehension.
Smelley, 485 Mich at 1023.
This Court has previously reached the same conclusion under similar factual
circumstances. In Biegajski, 122 Mich App at 219-220, this Court held that evidence that the
defendant was hiding in the basement when police officers arrived at the defendant’s residence to
arrest him, and that the defendant then lied to the officers about his identity, was admissible as
evidence of an attempt to avoid arrest. Defendant in the present case has thus failed to establish
plain error based on the admission of the evidence he was hiding when law enforcement arrived at
his residence to effectuate the arrest. Carines, 460 Mich at 763.
Next, defendant argues that the trial court erred by giving the jury instruction on “flight.”
Consistent with M Crim JI 4.4, the trial court instructed the jury in relevant part as follows:
-5-
There has been some evidence that the defendant tried to hide or hid after
the alleged crime. This evidence does not prove guilt. A person may run or hide
for innocent reasons such as panic, mistake, or fear. However, a person may also
run or hide because of a consciousness of guilt. You must decide whether the
evidence is true, and if true, whether it shows that the defendant had a guilty state
of mind.
“A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014) (quotation
marks and citation omitted). “Jury instructions must include all the elements of the offenses
charged against the defendant and any material issues, defenses, and theories that are supported by
the evidence.” Dobek, 274 Mich App at 82. “The trial court may issue an instruction to the jury
if a rational view of the evidence supports the instruction.” Armstrong, 305 Mich App at 240.
In this case, the record reflects that defendant concealed himself from law enforcement in
a compartment he constructed within a closet in his residence, specifically designed to harbor a
person. The evidence demonstrates that defendant’s actions were undertaken with the intent to
evade arrest. Accordingly, the trial court’s instruction was amply supported by a rational
interpretation of the evidence. See, Id. Defendant, therefore, has not established plain error with
respect to the jury instruction issued by the trial court. Carines, 460 Mich at 763.
III. SEXUAL HISTORY OF COMPLAINANT
Defendant next argues that it was plainly erroneous to have allowed the prosecutor (1) to
question the complainant about when she lost her virginity, (2) to elicit testimony from the
complainant that she lost her virginity to defendant, and (3) to reference those facts multiple times
during closing arguments. Defendant raises both an evidentiary issue and what appears to be a
claim of prosecutorial misconduct.
A. TRIAL TESTIMONY
As relevant to this issue, defendant’s trial counsel questioned the complainant on cross-
examination as follows:
Q. Okay. So, when this[2] was happening, did you see Mr. Clendenin’s
penis?
A. Yeah.
Q. Did he have his clothes on? Did he have his clothes off?
A. He had his shirt on.
2
The immediately preceding questioning was focused on the incident that occurred in the
basement.
-6-
Q. Shirt on and that was all?
A. Yeah.
Q. Okay. Did you see -- and you said you saw his penis?
A. Mmhmm.
Q. Correct? Had he been circumcised?
A. Yes.
Q. Okay and how do you know that?
A. Cause I seen his dick. I don’t know.
Q. Okay. Okay and when you saw his dick did you see the rest of the front
of him?
A. He had his shirt on.
Q. Okay but he -- but he didn’t have pants on, correct?
A. Right.
Q. Okay, did you notice any scars or marks?
A. No, I didn’t pay attention.
Q. You didn’t pay attention.
A. Not really, no.
Q. Okay. But you didn’t notice anything?
A. Right.
Q. And the second time you had sex? Do you remember?
A. Ma’am I was thirteen.
Q. Do you remember?
A. No.
Q. Okay. Do you remember the third time you had sex?
A. (No verbal answer).
Q. You don’t, do you?
-7-
A. (No verbal response, shaking head no).
Q. Or the fourth time?
A. No.
Defense counsel further questioned the complainant:
Q. Just one quick question. You said when you were in the barn that Mr.
Clendenin showed you his penis, correct?
A. Mmhmm.
Q. When he did that did you see any scars or marks --
A. No.
Q. In that area?
A. I didn’t pay attention, no.
Subsequently, on redirect-examination, the prosecutor questioned the complainant in
relevant part as follows:
Q. Now had -- who -- when did you lose your virginity?
A. Um somewhere in 2020.
Q. And who did you lose your virginity to?
A. Him.
Q. Him being Shane Clendenin?
A. Yes.
Q. And you again were thirteen?
A. Yes.
Defendant testified that he had a combination of scars and stretch marks around his groin
area from issues related to a hernia that occurred 18 years earlier. Defendant explained:
Eighteen years ago I had a bad hernia and it kept ripping and going farther
down towards my testicles and everything swelled up like I had um elephantiasis
where they had to go in and remove some material and put some mesh in and sew
me back up, but that’s – that’s generally what it’s from.
-8-
Defendant also submitted photographs taken by investigator Michael Kalbfleisch that
showed defendant’s scars near his groin area. Kalbfleisch testified that defendant “has scars down
on both legs near his groin area and they were very pronounced, very puffy and very red looking.”
He further testified: “You – you can’t miss them. When I saw them, I was like wow, I was kind
of like set back at first how puffy and just scarred up they were.” Kalbfleisch indicated that the
scarring was more apparent in person than it appeared in the photographs because of the lighting
in the room where he took the photographs. Defendant’s girlfriend also testified that defendant
had scars and stretch marks around his groin area that were noticeable “[i]f you were looking at
it.”
B. EVIDENTIARY ISSUE
Defendant contends that it was plainly erroneous for the prosecutor to (1) question the
complainant about when she lost her virginity and (2) elicit testimony from the complainant that
she lost her virginity to defendant because this evidence was inadmissible for multiple reasons.
“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.” Aldrich,
246 Mich App at 113. Here, as defendant concedes, there was no objection to the challenged
testimony. This evidentiary argument is therefore unpreserved. Id. Unpreserved evidentiary
issues are reviewed for plain error affecting the defendant’s substantial rights. Brown, 326 Mich
App at 195.
Turning first to defendant’s argument that the evidence was inadmissible under the rape-
shield statute, MCL 750.520j provides as follows:
(1) Evidence of specific instances of the complainant’s sexual conduct,
opinion evidence of the complainant’s sexual conduct, and reputation evidence of
the complainant’s sexual conduct shall not be admitted under sections 520b to 520g
unless and only to the extent that the judge finds that the following proposed
evidence is material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value:
(a) Evidence of the complainant’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
(2) If the defendant proposes to offer evidence described in subsection (1)(a)
or (b), the defendant within 10 days after the arraignment on the information shall
file a written motion and offer of proof. The court may order an in camera hearing
to determine whether the proposed evidence is admissible under subsection (1). If
new information is discovered during the course of the trial that may make the
evidence described in subsection (1)(a) or (b) admissible, the judge may order an
in camera hearing to determine whether the proposed evidence is admissible under
subsection (1).
-9-
In People v Sharpe, 502 Mich 313, 327; 918 NW2d 504 (2018), our Supreme Court
explained:
The rape-shield statute generally prohibits the admission of “[(1)]
[e]vidence of specific instances of the complainant’s sexual conduct, [(2)] opinion
evidence of the complainant’s sexual conduct, and [(3)] reputation evidence of the
complainant’s sexual conduct . . . .” MCL 750.520j(1). Although the statute was
enacted in response to the practice of impeaching the complainant’s testimony with
evidence of the complainant’s sexual conduct, the plain language of the statute does
not limit the exclusion of such evidence upon whether the evidence is offered by
the prosecutor or by the defendant. [Alterations and ellipsis in original.]
The present case does not involve opinion or reputation evidence of the complainant’s
sexual conduct. Regarding evidence of specific instances of a complainant’s sexual conduct, the
Sharpe Court held in relevant part that “a specific instance of the complainant’s sexual conduct
must relate to a particular occurrence of the complainant’s sexual conduct.” Id. at 328. Thus, the
Court concluded that evidence of a complainant’s lack of other sexual partners or other sexual
intercourse did not fall within the scope of the rape-shield statute because such evidence
“demonstrates an absence of conduct, not a ‘specific instance’ of sexual conduct.” Id. at 330. The
Sharpe Court further reasoned:
[T]his conclusion is consistent with the purposes of the rape-shield statute. The
rape-shield statute was designed to prevent unwelcome and unnecessary inquiry
into a complainant’s sexual activities, thereby protecting the complainant’s privacy
and protecting the complainant from suffering unfair prejudice based on her sexual
history. . . . There is no indication from our Legislature or in our caselaw that the
rape-shield statute was designed to prevent a complainant’s disclosure of her own
sexual history or its attendant consequences. [Id. at 330-331.]
Here, the challenged testimony from the complainant also relates to an “absence of
conduct” rather than a specific instance of sexual conduct. The evidence therefore does not fall
within the scope of the rape-shield statute, and defendant has failed to demonstrate that admission
of the evidence was plainly erroneous. Id. at 330.
Defendant also argues that the challenged evidence was inadmissible because it was
irrelevant.
At the time of defendant’s trial, MRE 4023 provided that “[a]ll 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,” and
“[e]vidence which is not relevant is not admissible.” As MRE 401 existed at the time of trial,
“relevant evidence” was defined to mean “evidence having any tendency to make the existence of
3
MRE 402 was recently amended, effective January 1, 2024, although the changes appear to be
stylistic without any change in substantive meaning.
-10-
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 401.4
Here, the evidence pertaining to the complainant’s virginity, was introduced by the
prosecution during redirect examination. This line of questioning was in direct response to defense
counsel’s inquiries on cross-examination regarding whether the complainant observed any
distinguishing scars or marks on defendant’s penis. Defense counsel’s cross-examination, coupled
with the subsequent introduction of evidence concerning the defendant’s groin-area scars and
marks, made it evident that the defense’s strategy was to suggest that the charged conduct could
not have occurred as described by the complainant, as she would necessarily have observed these
physical characteristics had the alleged acts transpired as she claimed.
The importance of this factual issue was clearly apparent during closing arguments. The
prosecutor argued in pertinent part:
Defense would like you to think that this thirteen-year-old is going to be
focusing on the stretch marks while she is having sex with a thirty-six-year-old
man. As a matter of fact, this was the time that she had her virginity taken. So, to
suggest that she was going to be focused on stretch marks I think is ludicrous.
Defendant’s trial counsel argued in pertinent part during closing arguments:
The photographs that were presented, Mr. Clendenin tried to be up front and
honest with you. He is very open with you talking about the photographs. He had
the surgery eighteen years ago, so whatever the scars are, whatever you decide is
correct, the scars and the stretch marks were there in 2020. And, we heard
[defendant’s girlfriend] say they were very noticeable, but [the complainant] never
noticed them. I don’t think that should simply be excused if she really had sex as
many times as she said that she did, it can’t be excused as all thirteen-year-old[s]
wouldn’t notice something like that? You can decide what you think.
Finally, in rebuttal, the prosecutor argued:
The defense wants you to focus on these stretch marks and how they would
be absolutely noticeable. Well again ladies and gentlemen, the closest her face got
to his penis was when it was in her mouth as she is giving him oral sex in a barn.
So, if the lighting wasn’t great when the photos were taken, I would submit to you
that maybe the lighting isn’t as great in the barn either. When he is shoving his
penis in her mouth that maybe she’s not focusing on the inside of his thighs.
The prosecution introduced evidence concerning the complainant’s lack of prior sexual
experience to rebut defendant’s argument that the alleged offenses could not have occurred
4
MRE 401 was also amended effective January 1, 2024.
-11-
because the complainant purportedly would have observed certain marks and scars in defendant’s
groin area. Evidence of the complainant’s virginity rendered it more probable that there existed
plausible explanations for why the complainant may not have made observations that another
person, under different circumstances, might have noticed. These factual issues were material, as
they directly implicated the central question—whether the defendant perpetrated the charged
sexual acts against the complainant. Furthermore, a fact is considered material if it is ‘in issue’—
that is, within the scope of contested matters—regardless of whether it constitutes an element of a
crime, cause of action, or defense. See People v Mills, 450 Mich 61, 68; 537 NW2d 909, modified
on other grounds 450 Mich 1212 (1995).
These issues became matters in controversy due to defendant’s efforts to impugn the
complainant’s credibility, specifically by suggesting that she would have noticed defendant’s scars
and stretch marks had the events occurred as described, thereby casting doubt on the veracity of
her testimony. As our Supreme Court has observed, the truthfulness and accuracy of a witness’s
testimony is inherently relevant, as it bears directly on the probability of a consequential fact. Id.
at 72. Thus, the complainant’s account of the alleged sexual acts, and her credibility regarding
those assertions, were highly material to the proceedings. The prosecution’s introduction of the
complainant’s virginity was a direct response to the challenge to her credibility.
It is well-established that any reference to a complainant’s credibility in conjunction with
the complainant’s sexual history—whether such history evidences sexual activity or abstention—
must be undertaken with significant caution. This Court has held that evidence of a complainant’s
other sexual activity is inadmissible to establish consent or for the purpose of impeaching the
complainant’s credibility, as such history bears no logical nexus to the complainant’s propensity
for truthfulness. People v Stull, 127 Mich App 14, 18; 338 NW2d 403 (1983).
This Court has further held that evidence of a complainant’s virginity is inadmissible under
former MRE 404(a)(3) 5 when offered to prove that the complainant did not consent to the charged
sexual acts based on the theory that the complainant was acting in conformity with prior sexual
inexperience. People v Bone, 230 Mich App 699, 702, 703; 584 NW2d 760 (1998). Nevertheless,
the Court in Bone clarified that evidence introduced for another relevant, proper purpose does not
become inadmissible solely because it also demonstrates the complainant’s virginity. Id. at 702 n
3. Our Supreme Court has similarly reasoned that evidence admissible for one purpose does not
become inadmissible merely because it would be precluded for another purpose. People v
VanderVliet, 444 Mich 52, 73; 508 NW2d 114 (1993), amended on other grounds 445 Mich 1205
(1994).
In this matter, the prosecution’s introduction of the complainant’s virginity was not
intended to suggest that the complainant was, in general, more credible or more likely to testify
5
This provision is now contained in MRE 404(a)(2)(C). The current and former provision both
provided an exception to the general prohibition on character evidence used to show action in
conformity with a character or trait, allowing evidence in a criminal sexual conduct case of an
alleged victim’s past sexual conduct with the defendant and evidence of specific instances of
sexual activity showing the source or origin of semen, pregnancy, or disease.
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truthfully, as there exists no logical relationship between sexual history and veracity. Instead, the
evidence was admitted to elucidate factual issues concerning the complainant’s ability to observe
or not observe certain physical characteristics during the alleged incidents, and to provide context
for her observations. That the evidence incidentally referenced the complainant’s lack of sexual
experience does not, by itself, render it inadmissible. See id.; Bone, 230 Mich App at 702 n 3.
Accordingly, defendant has failed to demonstrate that the admission of this evidence
amounted to plain error predicated on a lack of relevance in the specific context of this case. MRE
401; MRE 402; Carines, 460 Mich at 763.
Defendant further contends that, assuming arguendo the evidence was relevant, it was
nonetheless inadmissible under MRE 403. At the time of trial, MRE 403 6 provided: “Although
relevant, evidence may be excluded if its probative value 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.”
Defendant asserts that the evidence was inflammatory and unduly prejudicial. However,
the evidence at issue does not appear to be any more inflammatory or prejudicial than the central
allegation itself—that the defendant, an adult, engaged in sexual acts with a thirteen-year-old child,
which forms the basis of the charged offenses. As our Supreme Court has explained:
All evidence offered by the parties is “prejudicial” to some extent, but the fear of
prejudice does not generally render the evidence inadmissible. It is only when the
probative value is substantially outweighed by the danger of unfair prejudice that
evidence is excluded.
Relevant evidence is inherently prejudicial; but it is only unfair
prejudice, substantially outweighing probative value, which permits
exclusion of relevant matter under Rule 403 . . . . Its major function
is limited to excluding matter of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial effect . . . . It
is not designed to permit the court to “even out” the weight of the
evidence, to mitigate a crime, or to make a contest where there is
little or none.
Similarly, the Court has also stated:
“Unfair prejudice” does not mean “damaging.” Any relevant
testimony will be damaging to some extent. We believe that the
notion of “unfair prejudice” encompasses two concepts. First, the
idea of prejudice denotes a situation in which there exists a danger
that marginally probative evidence will be given undue or pre-
6
MRE 403 was also amended effective January 1, 2024, to make stylistic changes.
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emptive weight by the jury. In other words, where a probability
exists that evidence which is minimally damaging in logic will be
weighed by the jurors substantially out of proportion to its logically
damaging effect, a situation arises in which the danger of
“prejudice” exists. Second, the idea of unfairness embodies the
further proposition that it would be inequitable to allow the
proponent of the evidence to use it. Where a substantial danger of
prejudice exists from the admission of particular evidence,
unfairness will usually, but not invariably, exist. Unfairness might
not exist where, for instance, the critical evidence supporting a
party’s position on a key issue raises the danger of prejudice within
the meaning of MRE 403 as we have defined this term but the
proponent of this evidence has no less prejudicial means by which
the substance of this evidence can be admitted. [Mills, 450 Mich at
75-76 (ellipses in original; some citations omitted.]
In the present matter, the admission of evidence concerning the complainant’s virginity
cannot be characterized as having been introduced solely for its prejudicial or inflammatory effect.
Rather, as previously analyzed in detail, such evidence was adduced in rebuttal to the defense’s
strategy of undermining the complainant’s credibility by implication—specifically, by contending
that, had the complainant’s testimony been truthful, she would necessarily have observed the
defendant’s scars. Furthermore, contrary to defendant’s position on appeal, evidence of an
individual’s virginity or lack thereof is not, in contemporary society, so inherently prejudicial as
to preclude rational jurors from impartially assessing the evidence. Cf. Sharpe, 502 Mich at 333
(“We agree with the Court of Appeals that abortion evidence, while perhaps incendiary to some,
is not so inherently prejudicial in today’s society as to render it inadmissible.”). Defendant has
failed to establish that the probative value of this evidence was substantially outweighed by any
danger of unfair prejudice and thus has not demonstrated plain error on this issue. MRE 403;
Carines, 460 Mich at 763.
C. PROSECUTORIAL MISCONDUCT
Turning next to defendant’s apparent claims of prosecutorial misconduct, defendant
contends that the prosecutor committed misconduct during closing arguments by appealing to the
jurors’ sympathies during three references to the complainant’s loss of virginity. Defendant relies
on the following portions of the prosecutor’s closing argument:
Defense would like you to think that this thirteen-year-old is going to be
focusing on the stretch marks while she is having sex with a thirty-six-year-old
man. As a matter of fact, this was the time that she had her virginity taken. So, to
suggest that she was going to be focused on stretch marks I think is ludicrous.
[Emphasis added.]
She falls in love with him, as you know, young girls might do, and wishes that he
would fall in love with her back. But instead, he takes her to dark places to have
sex with her, a basement. She lost her virginity in a dusty basement on a futon or
a mattress to a thirty-six-year-old man. So, no surprise that [complainant] says she
seemed a little odd when she came back up the stairs, or when she came back and
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she saw her, and she was kind of hesitant and standoffish, that makes sense to me.
She just lost her virginity in your basement. [Emphasis added.]
Claims of prosecutorial misconduct are preserved by making contemporaneous and
specific objections to the challenged conduct in the trial court. Unger, 278 Mich App at 234-235.
Here, defendant also concedes that there were no objections to the challenged prosecutorial
statements. This argument is therefore also unpreserved. Id. Unpreserved claims of prosecutorial
misconduct are also reviewed for plain error. Id. at 235.
Claims of prosecutorial misconduct are generally “decided case by case, and this Court
must examine the entire record and evaluate a prosecutor’s remarks in context.” Dobek, 274 Mich
App at 64. The test is “whether a defendant was denied a fair and impartial trial.” Id. at 63. “A
prosecutor may not appeal to the jury to sympathize with the complainant.” Unger, 278 Mich App
at 237. However, a “prosecutor’s comments are to be evaluated in light of defense arguments and
the relationship the comments bear to the evidence admitted at trial.” Dobek, 274 Mich App at 64.
As previously discussed, the evidence pertaining to the complainant’s virginity was
properly admitted. The prosecutor’s remarks remained within the scope of the permissible
purposes for which the evidence was introduced. Prosecutors are entitled to argue the evidence
and all reasonable inferences therefrom as they relate to their theory of the case. Dobek, 274 Mich
App at 66. Furthermore, the prosecution is afforded broad latitude in arguing the facts and
reasonable inferences and is not required to confine its argument to the most neutral terms. Id.
Accordingly, defendant has failed to establish on appeal that the prosecutor’s statements were
improper. Carines, 460 Mich at 763.
Even assuming, arguendo, that the prosecutor’s statements were improper or prejudicial,
any potential prejudicial effect could have been mitigated by a timely objection and a curative
instruction. This Court has held that reversal is unwarranted where a curative instruction could
have remedied any alleged prejudice, and curative instructions are generally sufficient to cure the
prejudicial effect of most inappropriate prosecutorial statements. Unger, 278 Mich App at 235
(quotation marks and citation omitted).
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues in the alternative that his trial counsel was ineffective by failing to
object to the testimony and closing argument regarding the complainant’s virginity. When there
has not been an evidentiary hearing on a claim of ineffective assistance of counsel, as is the case
here, this Court’s appellate review is “limited to the existing record.” People v Snider, 239 Mich
App 393, 423; 608 NW2d 502 (2000). “A claim of ineffective assistance of counsel presents a
mixed question of fact and constitutional law.” Unger, 278 Mich App at 242. Factual findings
are reviewed for clear error and questions of constitutional law are reviewed de novo. Id.
“A defendant that claims he has been denied the effective assistance of counsel must
establish (1) the performance of his counsel was below an objective standard of reasonableness
under prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
Sabin, 242 Mich App at 659. Based on the analysis above, defendant in this case has not
demonstrated that any of the challenged testimony or prosecutorial argument was inadmissible or
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improper. It is well-settled that trial counsel is “not ineffective for failing to make a futile
objection.” Unger, 278 Mich App at 256.
IV. VOUCHING
Next, defendant argues that two prosecution witnesses impermissibly vouched for the
complainant’s credibility and that plain error occurred. Defendant challenges testimony given by
Sharon Van Dam, a detective with the Van Buren County Sheriff’s Office, who forensically
interviewed the complainant. Defendant also challenges testimony given by Dr. Sarah Brown, a
child abuse pediatrician, who testified as an expert in child sexual assault dynamics.
Defendant concedes that there was no objection to the challenged testimony. These
evidentiary arguments are therefore unpreserved. Aldrich, 246 Mich App at 113. Unpreserved
evidentiary issues are reviewed for plain error affecting the defendant’s substantial rights. Brown,
326 Mich App at 195.
Defendant first argues that the following testimony by Detective Van Dam on direct
examination by the prosecutor violated MRE 701 and improperly vouched for the complainant’s
credibility:
Q. And can you describe [the complainant’s] demeanor during the forensic
interview?
A. She was -- I think she was standoffish with me at first and she was
embarrassed, embarrassed that something like this happened. She didn’t want
anyone to get in trouble, but she needed to tell what happened to her.
Defendant also relies on the following testimony that Van Dam gave during cross-
examination by defendant’s trial counsel:
Q. Okay. And the only where I’m going with the question is you indicated
her demeanor on the day of the interview, but did you know her before that? Do
you know if she was acting differently than she normally would?
A. No, I -- I -- I have a good read on children and -- and she was ashamed.
She was ashamed that –
Q. Okay if you would just answer my question. If you did not know her
prior to that you can’t testify as to whether her demeanor was different than it would
normally be. Correct?
A. That is correct.
On redirect, the prosecutor questioned Van Dam as follows:
Q. You can testify if there was a change in the demeanor. So, if she was at
one point displaying casual, calm, behaviors, and that at some point changes, what
was her demeanor like during the interview?
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A. She at times would cry and like I said, she was not hesitant to tell me but
just -- it was slow moving to tell me what she knew.
At the time of trial, MRE 7017 provided that “[i]f the witness is not testifying as an expert,
the witness’ testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.”
Here, Van Dam’s testimony that the complainant appeared embarrassed and ashamed were
based on her perceptions of the complainant during the interview, which is permissible lay
testimony under MRE 701. Brown, 326 Mich App at 197. It is also unclear how these observations
necessarily constitute “vouching” since a person can be embarrassed or ashamed for any number
of reasons. Defendant has failed to demonstrate that the admission of this testimony was plainly
erroneous. Carines, 460 Mich at 763.
Next, defendant argues that Dr. Brown improperly vouched for the complainant’s
credibility by essentially stating that it was rare for children to lie about sexual abuse, that
unfounded reports of child sexual abuse were due to misunderstandings, and that unfounded
concerns are not common for an event that happened in the past.
In support of this argument, defendant relies on the following testimony by Dr. Brown
given during cross-examination by defendant’s trial counsel:
Q. Okay, you’ve talked about behaviors that you expect to see with children
who have been sexually abused. What behaviors do you see when a child who is
lying about being sexually abused? From your experience.
A. In my experience cases where there’s maybe we would say unfounded
concern about sexual abuse, the concern for sexual abuse is not true, it’s not
typically because the child has simply fabricated abuse. Cases where it’s confusing
are often when a child says something that’s taken in the wrong way and then lots
of questions get asked and the situation becomes very confusing. Sometimes an
adult is very worried that a child has been abused and asks leading questions of the
child to which the child answers in kind of a non-descript way and the adult
becomes more and more concerned that the child’s answers do in fact mean that the
child has been abused. So, I would say again, in light [sic] sexual abuse there’s no
one common pattern of exactly what happened when there’s an unfounded concern
about sexual abuse.
* * *
7
MRE 701 was also amended effective January 1, 2024, to make stylistic changes.
-17-
Q. When there’s a waiting to tell you indicated that sometimes it’s because
the kids are afraid, ashamed, there’s a variety of reasons that they would wait.
Might part of that be that they, that it simply didn’t happen, and they get forced into
it as you’ve testified already that parents or adults sometimes are leading children.
A. In my experience unfounded concerns are not as common for something
that happened way in the past. Unfounded concerns are usually more centered upon
something recent that has sparked the concern.
“It is generally improper for a witness to comment or provide an opinion on the credibility
of another witness, because credibility matters are to be determined by the jury,” and an “expert
may not vouch for the veracity of a complainant.” Dobek, 274 Mich App at 71. Specifically,
regarding cases involving allegations of child sexual abuse, our Supreme Court has held that
“expert witnesses may not testify that children overwhelmingly do not lie when reporting sexual
abuse because such testimony improperly vouches for the complainant’s veracity.” People v
Thorpe, 504 Mich 230, 235; 934 NW2d 693 (2019).
In Thorpe, our Supreme Court reversed and remanded for a new trial based on testimony
from the prosecution’s expert on child sexual abuse and disclosure to the effect that children lie
about sexual abuse in about 2% to 4% of the cases his organization handled. Id. at 239-240. The
testimony was admitted over objection by the defense. Id. The Supreme Court concluded that the
expert had improperly vouched for the credibility of the complainant by testifying that only 2% to
4% of children lie about sexual abuse and further identifying two specific scenarios when children
might lie, neither of which was applicable to the factual circumstances of the case. Id. at 259.
Furthermore, the Court determined that the erroneous admission of this evidence was not harmless,
considering that the prosecution emphasized the improper vouching testimony during closing
rebuttal argument and that the outcome of the trial turned on the jury’s assessment of the
complainant’s credibility. Id. at 259-260.
In People v Sattler-VanWagoner, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket
No. 362433); slip op at 1, the defendant was convicted for sexually assaulting his nine-year-old
daughter. At trial, the prosecution’s expert had testified that “false reporting is ‘statistically very
rare in these types of cases.’ ” Id. at ___; slip op at 2. This Court held that the expert’s testimony
constituted plain error because it was essentially the same statistical vouching testimony prohibited
under Thorpe. Id. at ___; slip op at 3-4, 6. However, this Court nonetheless concluded that the
defendant had not demonstrated outcome determinative prejudice, and affirmed the defendant’s
conviction, because the improper vouching testimony was made during a single, isolated comment
and there was substantial other evidence of the defendant’s guilt. Id. at ___; slip op at 4, 6-7.
This Court in Sattler-VanWagoner summarized the rules applicable to an expert’s
testimony in this context as follows:
But our Supreme Court has held that when a defendant attacks the credibility of the
complainant, a qualified expert may offer testimony to explain the typical behavior
of complainants of child sex abuse. See People v Peterson, 450 Mich 349, 352,
373; 537 NW2d 857 (1995). In child sex abuse cases, an expert may also testify
regarding the typical symptoms of child sexual abuse in order to explain a
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complainant’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an abuse complainant or to rebut a credibility attack.
Thorpe, 504 Mich at 258. Still, an expert may not vouch for the credibility of the
complainant. Peterson, 450 Mich at 373. Commenting on the numerical odds or a
statistical assessment of a witness telling the truth or lying about sexual assault
allegations amounts to vouching. See id.; Thorpe, 504 Mich at 258-259. [Sattler-
VanWagoner, ___ Mich App at ___; slip op at 5.]
In the present matter, Dr. Brown opined, based on her professional experience, that
unfounded allegations of sexual abuse generally stemmed from misunderstandings rather than
deliberate fabrication by the child. Dr. Brown further stated that, in her experience, unfounded
concerns regarding historical child sexual abuse were comparatively rare. Even assuming, without
deciding, that these assertions equated to a claim that false reports are statistically infrequent, Dr.
Brown’s testimony constituted plain error. Id. at ___; slip op at 3-4, 6.
However, as to the prejudice prong, the statements at issue were isolated, were not elicited
by the prosecution, and were non-responsive to defense counsel’s cross-examination, which sought
information regarding child behaviors rather than Dr. Brown’s statistical opinions on the veracity
of child sexual abuse reports.
Furthermore, during closing argument, defense counsel leveraged Dr. Brown’s responses
to demonstrate her alleged partiality towards the prosecution, thereby seeking to undermine her
credibility before the jury. In pertinent part, defense counsel argued as follows:
Yeah, I thought Dr. Brown’s testimony was interesting. Clearly Dr. Brown
testifies for the prosecutor. Dr. Brown is an advocate for children and is very much
biased in that direction. She didn’t even confirm that children lie really, she just
said sometimes there’s a misunderstanding and they try to explain things to people
when they don’t understand. Dr. Brown is biased. You will receive a jury
instruction that explains how to make use of an expert testimony. But I believe that
the evidence supports the fact that [the complainant] possibly had a crush on Mr.
Clendenin, he didn’t know it, and [the complainant] acted on it in her mind. That’s
for you to decide. If you think she did something or she is making this up. She
certainly got a lot of attention, didn’t she?
By contrast, the prosecution did not reference the challenged statements during closing
argument, instead relying on other aspects of Dr. Brown’s testimony that defendant does not allege
constituted improper vouching. Unlike the facts in Thorpe, the vouching testimony at issue here
was neither elicited nor relied upon by the prosecution to secure a conviction. Defense counsel
was able to utilize Dr. Brown’s unsolicited testimony to the defense’s strategic advantage. Thus,
defendant has failed to establish that, but for Dr. Brown’s impermissible testimony, the outcome
of the trial would have been different. Absent outcome-determinative prejudice, plain error
warranting reversal has not been shown. Carines, 460 Mich at 763.
Defendant further contends, in the alternative, that trial counsel’s failure to object to the
alleged vouching testimony amounted to ineffective assistance of counsel. As previously
discussed, Van Dam’s testimony was admissible, and counsel cannot be deemed ineffective for
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failing to make a futile objection. Unger, 278 Mich App at 256. Regarding Dr. Brown’s testimony,
defense counsel capitalized on the non-responsive and potentially prejudicial testimony by
highlighting Dr. Brown’s apparent bias, thereby seeking to undermine her credibility. This
constituted a strategic decision, and appellate courts generally refrain from second-guessing
matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
Defendant has failed to present evidence sufficient to overcome the strong presumption that
counsel’s performance was the product of sound strategy, Unger, 278 Mich App at 243, and has
not demonstrated the denial of effective assistance of counsel.
V. CUMULATIVE ERROR
Defendant also argues that reversal is required based on cumulative error.
“[T]he cumulative effect of several minor errors may warrant reversal where the individual
errors would not.” Unger, 278 Mich App at 261 (quotation marks and citation omitted). “[I]n
order to reverse on the basis of cumulative error, the effect of the errors must [be] seriously
prejudicial in order to warrant a finding that defendant was denied a fair trial.” Id. (quotation
marks and citation omitted; second alteration in original). “[T]he cumulative effect of the errors
must undermine the confidence in the reliability of the verdict before a new trial is granted.”
Dobek, 274 Mich App at 106.
As detailed above, defendant has not established the existence of any reversible errors at
trial. Even assuming, arguendo, that Dr. Brown’s statements constituted improper vouching,
defendant has failed to show resulting prejudice. Accordingly, defendant has not demonstrated
entitlement to appellate relief on the basis of cumulative error, as he has not identified any seriously
prejudicial errors undermining confidence in the verdict’s reliability. Id.; Unger, 278 Mich App
at 261.
VI. STANDARD 4 ISSUES
Defendant has also submitted a Standard 4 brief raising additional issues.
Defendant challenges the admissibility of Dr. Brown’s expert testimony on multiple
grounds. Defendant concedes that this issue is unpreserved and that our review is for plain error.
Brown, 326 Mich App at 195.
First, defendant appears to argue that Dr. Brown’s expert testimony was inadmissible
because the complainant’s “behavior was inconsistent with that of a typical complainant of child
sexual abuse,” and there were no medical findings or physical evidence of sexual abuse. However,
defendant does not acknowledge that “[i]n child sex abuse cases, an expert may also testify
regarding the typical symptoms of child sexual abuse in order to explain a complainant’s specific
behavior that might be incorrectly construed by the jury as inconsistent with that of an abuse
complainant or to rebut a credibility attack.” Sattler-VanWagoner, ___ Mich App at ___ ; slip op
at 5. Defendant does not explain how Dr. Brown’s testimony was inadmissible under this rule and
therefore has failed to demonstrate plain error. Carines, 460 Mich at 763.
Defendant also asserts that Dr. Brown impermissibly vouched for the complainant’s
credibility because there was no evidence of medical or physical findings consistent with sexual
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assault. Defendant appears to rely on People v Smith, 425 Mich 98, 101; 387 NW2d 814 (1986),
in which our Supreme Court addressed the question “whether the trial courts erred so as to require
reversal in allowing the examining physicians to testify that the complainants had been sexually
assaulted.”
As the Supreme Court subsequently explained in Thorpe, the Court in Smith held that “an
examining physician cannot give an opinion on whether a complainant had been sexually assaulted
if the ‘conclusion [is] nothing more than the doctor’s opinion that the complainant had told the
truth,’ ” Thorpe, 504 Mich at 255, quoting Smith, 425 Mich at 109 (alteration in original), but “an
examining physician, if qualified by experience and training relative to treatment of sexual assault
complainants, can opine with respect to whether a complainant had been sexually assaulted when
the opinion is based on physical findings and the complainant’s medical history,” Thorpe, 504
Mich at 255, citing Smith, 425 Mich at 110-112. “Smith only addressed the expert testimony of
the examining physician . . . .” Thorpe, 504 Mich at 255.
Here, Dr. Brown was not the examining physician. She testified that she had not provided
medical care to anyone in this case and had no knowledge of the facts of this case. Smith is thus
inapplicable, and defendant has failed to establish plain error requiring reversal. Carines, 460
Mich at 763.
Finally, defendant argues that he was denied the effective assistance of counsel because his
trial counsel failed to call a key defense witness, failed to object to the testimony and closing
argument regarding the complainant’s virginity, failed to object to Van Dam’s improper vouching
testimony, failed to object to Dr. Brown’s improper vouching testimony, and failed to object to
Dr. Brown’s testimony that was inadmissible for lack of proper foundation.
Because there has not been an evidentiary hearing, this Court’s appellate review is “limited
to the existing record.” Snider, 239 Mich App at 423. As previously stated, a “defendant that
claims he has been denied the effective assistance of counsel must establish (1) the performance
of his counsel was below an objective standard of reasonableness under prevailing professional
norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional
errors, the outcome of the proceedings would have been different.” Sabin, 242 Mich App at 659.
Three of defendant’s standard 4 claims of ineffective assistance of counsel have already
been resolved in the context of the arguments advanced through appellate counsel. As discussed
above, defendant has not shown that he received ineffective assistance of counsel based on a failure
to object to the testimony and closing argument regarding the complainant’s virginity, Van Dam’s
allegedly improper vouching testimony, or Dr. Brown’s allegedly improper vouching testimony.
Turning to defendant’s additional arguments, he first contends that his trial counsel was
ineffective for failing to call Kayne Clendenin as a witness at trial. Defendant argues that remand
for an evidentiary hearing is necessary to determine whether this failure was the result of strategic
decision by his trial counsel. As an offer of proof, defendant has attached a handwritten note that
is labeled as an “affidavit” and was purportedly written by Kayne. The handwritten note is not
notarized or dated, and it essentially states that Kayne would have testified that defendant was
never alone with the complainant.
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Trial counsel’s decisions regarding the presentation of evidence and the calling of
witnesses are presumed to be matters of trial strategy, and this Court does not substitute its
judgment for trial counsel’s strategic decisions. People v Bass, 317 Mich App 241, 278; 893
NW2d 140 (2016). Defendant cannot overcome this presumption merely by asserting that defense
counsel may not have actually had a strategic reason for not calling Kayne. There is no evidence
to overcome the presumption that trial counsel made a strategic decision, and defendant therefore
is not entitled to relief on this claim. Id. at 279. This Court has already denied defendant’s motion
to remand, and defendant has not demonstrated that a factual record must be developed to
determine whether his trial counsel was ineffective, and there accordingly is no reason for this
Court to now remand the matter for an evidentiary hearing. People v Williams, 275 Mich App
194, 200; 737 NW2d 797 (2007).
Next, defendant argues that his trial counsel was ineffective for failing to object to certain
testimony given by Dr. Brown. However, defendant has not demonstrated that any of Dr. Brown’s
testimony was inadmissible. Counsel is “not ineffective for failing to make a futile objection.”
Unger, 278 Mich App at 256. Defendant thus has not demonstrated that relief is warranted.
Affirmed.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michelle M. Rick
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