People of Michigan v. James Patrick Oconnell

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

November 5, 2015

Plaintiff-Appellee,

v No. 321939

Oakland Circuit Court

JAMES PATRICK O’CONNELL, LC No. 2013-247621-FC

Defendant-Appellant.

Before: METER, P.J., and WILDER and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of two counts of first-degree

criminal sexual conduct (CSC), MCL 750.520b(1)(a) and (2)(b) (victim under 13 years of age

and defendant 17 years of age or older), and two counts of second-degree CSC, MCL

750.520c(1)(a) and (2)(b) (victim under 13 years of age and defendant 17 years of age or older).

The trial court sentenced defendant to 25 to 50 years’ imprisonment for each first-degree CSC

conviction and 15 to 22 years’ imprisonment for each second-degree CSC conviction. We

affirm.

I. FACTS AND PROCEEDINGS

This case arises from allegations that defendant sexually abused the victim, a minor,

during his volunteer work at St. Augustine Lutheran Church and preschool.

A. TRIAL TESTIMONY

The victim was seven years old at the time of trial. She recalled attending preschool at

St. Augustine sometime between the ages of two and five. Defendant was the person “who

cleaned stuff.” She testified that defendant “did a bad thing” while she attended the preschool.

According to the victim, defendant would kiss her “at St. Augustine maybe and maybe when we

went to his house.” When asked whether there were adults around when it happened at St.

Augustine, the victim said, “I forgot.” When asked specifically what she did with defendant, she

testified that he would lick her “privacy place.” The victim did not recall how old she was the

first time that defendant did this, but she thought she might have been two or three years old.

The victim testified, “I do remember the garage and when nobody was around in the building

and sometimes he would scratch my privacy place under the marble table.” She went to the

garage alone with defendant. The victim stated that sometimes she would go on walks with

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defendant and he would “scratch” her privacy place sometimes on her bare skin and sometimes

on top of her clothes. The victim did not remember how many times defendant licked her

privacy place, but she thought it happened every day.

The victim was afraid to tell her parents because she thought they would be mad at her.

The first time that the victim’s mother asked her if anyone had touched her, the victim did not

tell her mother. However, the second time her mother asked, the victim told her mother. The

victim told her mother that defendant “licks her pee pee place.” The victim also testified that she

and her mother went to defendant’s house once and, while her mother was downstairs, defendant

licked her privacy place in his bedroom. The victim also saw defendant’s privacy place and

licked it while they were by the woods at St. Augustine. When asked about the incidents in the

garage, the victim testified that she would lie on a blue plastic box that was by a window so

defendant could see if anyone was coming. The victim testified that defendant gave her a book

and marbles.

The victim’s mother testified that the victim began attending St. Augustine when she was

four years old. The victim attended St. Augustine on Tuesday and Thursdays, and her father

would drop her off and pick her up during the first year. The second year, the victim attended St.

Augustine on Mondays, Wednesday, and Fridays, and the victim’s mother did more of the

dropping off and picking up. At that time, the victim’s mother began having more interactions

with defendant. She understood that defendant was partly a maintenance person and partly a

teacher’s aide. Defendant would be around the children, talking to them and hugging them. The

victim’s mother did not realize at the time that he was a volunteer. One day, the victim’s mother

observed the victim and other children hanging on defendant’s legs. She also recalled defendant

picking up the victim and hugging her, which made the victim’s mother uncomfortable because

of the victim’s age. Defendant was friendly and would tell the victim’s mother about things he

was doing with the children or the school. He also invited the victim’s mother to his house

several times to see an eagle statue that he had carved. In hindsight, the victim’s mother

believed that defendant’s behavior was predatory. Defendant also asked if he could take the

victim to the movies. Defendant told the victim’s mother that she should sign up the victim to

help with the garden at the school in the summer and that the victim’s mother did not have to

stay. In 2012, the victim’s mother went to pick up the victim from Vacation Bible School and

the victim was out in the garden with defendant. The incident, along with “some other things,”

led the victim’s mother to ask the victim if anyone had ever touched her. Sometime before

Vacation Bible School, the victim’s mother and the victim stopped at defendant’s house to see

the eagle statue. At one point, the victim’s mother used the bathroom and left the victim alone

with defendant for a few minutes.

The victim’s mother twice asked the victim whether anyone had ever touched her. The

first time, sometime after Vacation Bible School in 2012, the victim’s mother asked the victim if

anyone had ever touched her in her privacy place. She did not mention defendant’s name, but

she did ask because of what she observed with defendant. The victim did not disclose anything.

In the fall of 2012, when the victim no longer attended St. Augustine, defendant stopped by the

victim’s family’s house to drop off a book as a gift for the victim. Defendant said that he

stopped by other children’s houses and brought them books as well. Subsequently, while they

were out of town, defendant stopped by their house and left a marble in their mailbox.

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In May 2013, the victim’s mother was discussing summer camps with her coworker and

the coworker pointed out that sometimes people who do inappropriate things with children tell

the children to lie. After that conversation, the victim’s mother decided to again ask the victim if

anyone had ever touched her in her privacy area. The victim said “don’t be angry,” and the

victim’s mother said that she would not be angry and asked if it was another child. The victim

shook her head no and then said that it was defendant. When the victim’s mother asked what she

meant, the victim stuck out her tongue and pointed at it. After the victim’s mother called her

father and the victim’s father, they took the victim to the police station. The victim’s mother did

not pepper the victim with questions. Within the following week, the victim went to the Care

House for an interview.

The victim’s father testified that he saw defendant occasionally when he dropped off or

picked up the victim. He understood defendant to be actively involved at the church, mainly

with maintenance. He would observe the victim say goodbye to defendant and talk with him.

The victim’s father did not have any concerns or suspicions about inappropriate behavior

involving defendant until defendant visited their home unexpectedly. At that time, he was not

really suspicious, but he thought the visit was odd. The second red flag was when defendant

visited their home for a second time, but they were not home. The victim’s father recalled

talking with defendant about issues they were having with rodents in their basement, but he did

not ask defendant to come over and do any work.

Diana Allen attended St. Augustine and met defendant there. In approximately 2007 or

2008, Diana Allen and her grandchildren attended a spring or fall cleanup at the church. Diana

Allen left her granddaughter, who was four years old, on the playground. When Diana Allen

looked over, she saw defendant holding her granddaughter’s hand and walking her away from

the playground toward the wooded area. Diana Allen called her granddaughter over and kept her

near her the rest of the time. On another occasion, Diana Allen saw her granddaughter place her

hand into defendant’s pocket. When asked what she was doing, her granddaughter stated that

she was getting candy. Diana Allen’s grandson said that he had also taken candy from

defendant’s pocket. Diana Allen was also involved with the afterschool latchkey program and

she observed defendant on the playground with the children with one of the girls on his

shoulders.

Diana Allen’s husband, Orville Allen, worked with defendant doing maintenance at the

church. Orville Allen once saw his grandson go into defendant’s pocket for candy. Orville

Allen told defendant that he thought it was inappropriate. On one or two occasions Orville

Allen saw defendant with a group of kids out in the garden with no teacher present. Orville

Allen and defendant may have “bumped heads” regarding their work, but there was never an

argument between them. Defendant took over Orville Allen’s position as head trustee at the

church.

Sarah Breidenich’s youngest daughter attended St. Augustine’s preschool for a few

weeks in 2011. Breidenich stopped her daughter’s attendance after observing defendant playing

on the playground with the children one day when she came to pick up her daughter. A

preschool teacher was on the other side of the playground, but Breidenich was concerned.

Defendant then began interacting with Breidenich’s oldest daughter, asked her questions, and

gave her a magazine. Breidenich thought it was odd because at other preschools no one is

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allowed to interact with the children unless they are a parent picking up a child. Although the

director of the preschool assured Breidenich that defendant was fine, that he was never left alone

with the children, and that he loves children, Breidenich still did not feel comfortable.

Charlene Goshgarian was the director of the preschool. Defendant performed work for

her when she was starting up the preschool. Goshgarian considered defendant and his wife as

her friends. At some point, defendant also began helping with the children, but not on a regular

basis. Goshgarian never observed defendant take children to the garden by himself. Defendant

was not allowed to take children to the garden, playground, or marble room by himself. There

was never a time when the teachers would not know where a child was. It would not have been

possible for a child to disappear with defendant. When the investigation of this case began,

Goshgarian was interviewed by law enforcement. After her second interview, she felt that the

questions were one-sided and that the detective was looking for specific information about

defendant. Goshgarian told the detective that if defendant took the children to the garden a

teacher should have been with him, but Goshgarian could not say that a teacher was always

present because she did not observe it. After Breidenich withdrew her daughter from the

preschool, Goshgarian emphasized to the teachers that no volunteer should be left alone with the

children.

Detective Kristine Shuler was the officer in charge of this case. She testified that in the

course of investigating sexual assault cases, if she determines that there is not enough evidence,

then criminal charges will not be brought. Detective Shuler interviewed defendant. Defendant

said that there were times when he would be left alone with a group of children in the fellowship

hall playing with the marbles. He also stated that there were times that he would take children to

the garden alone. Defendant stated that the rule that volunteers were not to be alone with

children was not always followed. He indicated that it was possible that one time during

Vacation Bible School he was alone with the victim in the garden for a short period of time.

Defendant said that he gave all the children a marble at the end of the school year, he often had

candy, and he brought the victim a book to her home. Defendant said that the victim did come to

his house and that he and the victim were alone in his bedroom for a short period of time,

approximately 10 to 15 seconds. He subsequently stated that he did not recall being alone in the

bedroom with the victim. Defendant also said that he went to the victim’s house because of a

rodent problem and he brought the victim a book. It happened to be near the time of the victim’s

birthday. He also dropped off a marble or marbles on one occasion. Defendant indicated that

there was a time when children took candy from his pockets.

Detective Shuler testified that, during the Care House interview, the victim said “I think”

numerous times. However, Detective Shuler believed it was apparent that “I think” was just a

term the victim used, part of her normal language. When asked by the jury whether anyone else

was considered as a possible abuser, Detective Shuler stated that “[t]here was never any

indication during this entire investigation that the suspect was anyone else other than . . .

defendant.”

Numerous witnesses testified on defendant’s behalf at trial, including Dr. Katherine Okla,

who was qualified as an expert in forensic psychology, with expertise in suggestibility, forensic

interviewing techniques, and memory research. Dr. Okla reviewed the police reports and

forensic interview, but did not interview the victim. Dr. Okla would not, and could not, say

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whether the victim was lying. Dr. Okla testified that memories are not always accurate and

children are particularly susceptible to social influences. She further testified that a false belief is

not a lie, but “an actual belief that’s not accurate or a belief that something happened in a

particular way when that’s not really how it happened.” False memories are not difficult to

develop, and can develop without a person understanding or recognizing it. Social pressures

impact memory; examples include tone of incrimination and reinforcement. Dr. Okla testified

that if there is “interviewer bias you are more likely to get less accurate information and you can

shape it to get particular responses based on what you think happened.” Interviewer bias can

exist when a mother talks to her child. She testified that “mom’s [sic] are understandably not

neutral. They also are not typically aware of how suggestibility works or what interviewing

techniques are more or less likely to get reliable or accurate information.” Dr. Okla also testified

that just because a child remembers more details does not mean the memory is more accurate.

Dr. Okla gave a summary of the protocol to be used in interviewing a child. She

explained that after introducing the surroundings and explaining the ground rules, the next step is

a “practice narrative” regarding past events in order to assess the child’s language skills and

memory. Then the child should be asked to give a “free narrative” of what happened, followed

by a clarification phase. Dr. Okla did not recall seeing a practice narrative done with the victim

and she believed it should be have been done because of her age and because she was “fairly off

topic.” Dr. Okla testified that the victim “was moving around the room,” sometimes giving

unresponsive statements, and “it would have been important to get a sense of how closely she

could give a detailed description of a past event.” Dr. Okla testified that “repeated questions

even when the child says they don’t have a memory means that you’re not satisfied and that you

want them to come up with something.” Dr. Okla was critical of the interviewer’s questions of

the victim and testified that the interviewer should have reminded the victim that she should not

guess. The victim’s use of the terms “I think” and “I would say” should have been clarified

because they “might just be a matter of speech,” but they could mean that she really did not

know. Dr. Okla noted the interviewer’s repeated questions to the victim after the victim had

given an answer, which suggested that the interviewer wanted another answer. The purpose of

the interview is to get the most accurate information.

Defendant also testified at trial. He denied ever licking the victim’s vagina, intentionally

touching her vagina, or having the victim lick his penis. Defendant began volunteering at the

preschool approximately four years earlier. The first year he was only at the preschool

approximately 8 to 12 times and he mostly fixed toys. The next year he began greeting parents

and helping with lunch. His volunteering was not consistent; he might be there one day a week

or not be there for three weeks. During the 2011-2012 schoolyear, defendant was at the

preschool sporadically on Tuesdays and Thursdays, and only once in a while on Mondays,

Wednesdays, and Fridays, which were the days that the victim attended. Defendant recalled

during Vacation Bible School in 2012 telling the victim’s mother, who was in the preschool

hallway, that he was going to take the victim to the garden. By the time they were in the middle

of the parking lot, the victim’s mother was following behind. Defendant never took the victim

out of the classroom. He was never left alone with one student, but was occasionally left with a

group of students for a brief period of time. When they played marbles in the fellowship hall

during the 2011-2012 schoolyear, defendant would be left alone with a group of children for 5 to

10 minutes. The doors to the fellowship hall would always be left open and people would come

in an out all the time. When defendant took children to the garden there was always a teacher

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following close behind. He did not specifically recall being alone with the children in the garden

for a period of time. Defendant testified that he could not fit under the marble table.

Defendant testified that when the victim and her mother came to his house, they went

upstairs and the victim jumped on his bed. The victim’s mother told her that was not

appropriate. They then looked at defendant’s son’s room and on the way back defendant went in

his own room to get some marbles. The victim followed him, but her mother was standing right

there in the hallway. Defendant was very surprised that the victim was making these allegations.

Defendant never told the victim’s mother that he wanted to take the victim to the movies. He

was equally friendly with other families as with the victim’s family. Defendant never told the

victim’s mother that he would take care of the victim while the victim’s mother watered the

garden. Defendant purchased a book on a trip to the Mediterranean. One day he was driving and

saw the victim’s home and decided to stop. He brought in the book and a business card, but he

did not intend to give the victim the book before that time. He was there for 15 or 20 minutes

and they discussed playing marbles. He then came back another time and dropped off his

business card and some marbles. Defendant testified that he did not leave a note with the value

of the marbles. However, at trial, defendant recognized the note as one that was written by the

preschool teacher when defendant gave a marble to every child at the end of the year. Defendant

never had candy in his pockets that the children would take at the preschool. However, once

Orville Allen’s grandson took candy out of his pocket at church on Sunday. Orville Allen was

present when this happened and was not mad at defendant. Defendant was surprised when he

was arrested because he offered to turn himself in if a warrant was issued. Instead, while he and

his wife were on a bike ride, two police cars boxed them in. Defendant testified that this was

unnecessary.

The prosecution called Sarah Killips as a rebuttal witness. Killips was qualified as an

expert in forensic interviewing and suggestibility research. Killips testified that there were

several portions of the Care House interview transcript that said “inaudible.” When she

reviewed the video recording she had to play it multiple times and increase the volume, but she

was confident that she was able to fill in a number of the inaudible portions. There was also “a

decent amount” that she could not fill in. Killips described the interview process. She testified

that the interviewer was attempting “to figure out where exactly certain types of touches

happened which can be difficult with young children.” She explained that in order to get the

information without suggesting anything, the interviewer rephrased her question. Killips

testified that this interview was not perfect. Killips testified that at one point the interviewer

asked the victim a closed multiple choice question, which is less preferred that other types of

questions. However, the victim then said, “none of those,” so the question was not damaging.

Killips was asked to discuss the question posed to the victim, “how was [defendant’s] body.”

She testified that children are often literal and she was not surprised that the victim answered

which a physical description (“he has black hair”), rather than a body position. Killips agreed

that the goal is to obtain as much of the truth as the child can tell you. When asked about the

victim’s demonstration during the interview (she lied down on the couch when talking about how

she got on defendant’s bed), Killips testified that children do not always have the vocabulary for

discussing sexual acts so they try to demonstrate. Killips agreed that sexual assault may not

necessarily be traumatic to a child who does not even know that certain body parts are private or

that something happening to those private parts might be bad.

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When asked by the jury if she discusses her opinions and conclusions with law

enforcement after the interview, Killips stated that “[i]n Oakland County we have a really great

advocacy center. Not everywhere does. Not everywhere has interviewers who are trained well.”

Defendant counsel stated that she should answer the question, which the trial court read again,

and Killips stated that “[s]ome investigators aks for the forensic interviewer’s opinion on various

topics.” Defense counsel again stated that the question was just whether she gives her opinion

and Killips stated that she often did.

Detective Shuler was also called in rebuttal and explained that defendant was arrested in

the manner that he was because there was mention during the investigation that defendant was

contemplating suicide and he possibly had access to a firearm. Defense counsel objected, but the

trial court ruled that defense counsel opened the door to the question by asking about the arrest.

B. PROCEDURAL HISTORY

Defendant was charged with two counts of first-degree CSC and two counts of second-

degree CSC. On November 8, 2013, the prosecution filed a notice of its intent to introduce other

acts evidence at trial pursuant to MRE 404(b) and a motion in limine to admit such evidence at

trial. The prosecution argued that other acts evidence was relevant to show opportunity, intent,

scheme, plan, or system of doing an act. In the brief in support of the motion, the prosecution

identified the witnesses it intended to call to testify regarding other acts—Diana Allen,

Breidenich, Chanel Kizzi, and Orville Allen. Defendant responded that Diana Allen’s purported

testimony that she saw defendant walking alone with her granddaughter toward the woods and

Breidenich’s testimony that she saw defendant playing alone with the children on the playground

was not MRE 404(b) evidence and that it should be admitted at trial without any limiting

instruction. Defendant argued that Chanel Kizzi’s testimony that she saw children sit on

defendant’s lap was irrelevant, but other witnesses would testify that they saw children sit on his

lap. Finally, defendant argued that Orville Allen’s testimony that he saw his grandson reach in

defendant’s pocket for candy was irrelevant, but, regardless, was not a bad act.

On November 12, 2013, defendant filed a motion to amend the protective order, which

had been entered by the district court and allowed defense counsel to have a copy of the

videorecording. Defendant claimed that the videorecording contained 91 words or sections that

were “inaudible” and defendant wished to consult an audio forensic expert to determine whether

the audio quality could be improved, as the audio recording could not currently be used

effectively by the defense. He argued that, without enhancement of the recording, he would be

denied an effective attorney, a fair trial, effective use of an expert, and due process. Defense

counsel conferred with an audio and video computer forensic consultant who believed it may be

possible to produce a better recording, but it would be necessary to download the recording to his

equipment, enhance it, and reproduce an enhanced version. Defendant requested that the trial

court allow these steps to be taken. The prosecution responded that MCL 600.2163a does not

allow a video to be copied, except within certain parameters and under a protective order. The

prosecution argued that defendant’s request was, therefore, not permitted by statute.

On November 13, 2013, defendant filed a motion to quash or, in the alternative, for a

competency hearing of the victim. Defendant argued that, based on the Care House interview,

there were issues regarding the victim’s competency because her memory was unreliable. The

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prosecution responded that the district court judge ruled that the victim was competent, and that

while the victim would have to answer certain foundational questions at trial in order to ensure

that she was competent to testify, no separate hearing was required.

On November 27, 2013, a hearing was held on several motions. The trial court ruled that

the statute did not allow defendant’s request regarding the videorecording. The trial court ruled

that it would determine whether the victim was competent and any other matters could be

handled during cross-examination. The prosecution agreed to allow the testimony of Diana

Allen and Breidenich as relevant evidence. With regard to Kizzy, the trial court ruled that the

defense could challenge her testimony on cross-examination.1 The trial court further ruled that

Orville Allen’s testimony would be admitted if it was relevant.

On March 26, 2014, defendant filed a motion to limit the prosecution’s rebuttal expert.

Defendant argued that Killips should not be permitted to testify about research and studies, and if

she is allowed, the defense should be allowed surrebuttal. The prosecution argued, among other

things, that the motion was premature.

On March 28, 2014, defendant filed an emergency motion to dismiss or, in the

alternative, adjourn trial. Defense counsel stated that, in preparation for trial, she recently

became aware that witness interviews were recorded and this was not previously disclosed. The

witnesses stated that the police report did not accurately reflect what they told law enforcement,

so the recordings of the interview are highly favorable, exculpatory material. Although defense

counsel believed the assistant prosecutor in this case did not have the evidence, he had a duty to

discover any evidence favorable to defendant that was in the possession of the police.

Defendant’s jury trial began on April 7, 2014. During defense counsel’s opening

statement, she argued that this case was about “tunnel vision,” and that the victim’s mother as

well as law enforcement had “tunnel vision” in this case. In addition to the testimony described

above, the transcript of Care House interview was admitted and played for the jury. Defendant

requested that the video be played and the transcript be used because it would be hearsay for the

prosecutor to introduce it.

After the prosecution rested its case, defendant moved for a directed verdict on all

charges. The trial court denied the motion.

Defense counsel agreed to allow the prosecution’s potential rebuttal expert sit in the

courtroom for Dr. Okla’s testimony. Defense counsel indicated that she filed a motion for

surrebuttal if the rebuttal expert was allowed to testify, and the trial court did not rule on the

motion. Defense counsel subsequently argued that she would only be introducing evidence

regarding suggestibility and memory issues, not characteristics of sexually abused children or

patterns of disclosure, and the rebuttal testimony should be limited accordingly. The trial court

indicated that it would allow rebuttal testimony on “delay in reporting information, adding

additional information, disclosures by a child who may have suffered a traumatic event, rebutting

1

Kizzy was not, however, called as a witness at trial.

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that her testimony is false and based on outside influences and suggestibility and the forensic

interview.” Defense counsel stated, “Okay.” Defense counsel then stated that she did not ask

about delayed disclosure, and the trial court stated, “You did. You talked about adding different

information later on.”

During closing argument, the prosecutor stated:

You need to go back there and you need to decide do you believe [the

victim] or do you believe the defendant.

Why do people lie? To avoid consequences. That’s why people lie.

Who had the motive to lie in this case? Defendant. The defendant. Even

he himself when he got up there and testified gave you no reason why [the victim]

would be lying about these actions.

The prosecutor also argued:

There are way too many coincidences and red flags in this case. And I

wrote down the ones that I could think of and I’m sure that you all thought of, of

not these same ones, other ones.

Defendant volunteering at this preschool. Defendant giving kids marbles

and candy. Defendant taking kids to the playground when he’s not a teacher.

Defendant being at this school as often as he was. Defendant swinging kids

around by their arms. Giving piggyback rides to these children. Being alone with

the kids during marble time which he admitted himself. Being alone with the kids

in the garden again, which he admitted himself. Trying to take Diana Allen’s

granddaughter into the woods. Kids taking candy from the defendant’s pocket.

Defendant admitting that that rule about being alone with kids was not always

followed. . . .

* * *

This was too many red flags. A quarter of this amount would be too many

red flags.

The prosecutor indicated for the record that, during its deliberations, the jury requested

the Care House interview and the parties agreed to have it played from the hard drive, rather than

the disk, so that it would play without skipping. On April 15, 2014, the parties entered a

stipulation that, for clarity purposes, the jury could watch the Care House video from the court

computer’s hard drive, rather than from the disk admitted at trial. The jury also requested “better

speakers to hear clearly,” and external speakers were provided.

The jury found defendant guilty of all charges. On May 7, 2014, the trial court sentenced

defendant 25 to 50 years’ imprisonment for the fist-degree CSC convictions and 15 to 22 years’

imprisonment for the second-degree CSC convictions.

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II. INEFFECTIVE ASSISTANCE OF COUNSEL

First, defendant contends that defense counsel was ineffective in (1) admitting the

videotaped forensic interview as a trial exhibit and permitting witnesses to repeat the victim’s

allegations made during that interview; (2) stipulating to allow the videotaped forensic interview

to be taken into the jury room and replayed by the jurors without any supervision or instructions

from the trial court; (3) failing to object to Detective Schuler’s and Killips’s testimony vouching

for the veracity of the victim and offering opinions of defendant’s guilt by relying on the prestige

of law enforcement; (4) failing to object to the prosecutor’s misconduct during closing argument;

and (5) stipulating to the admission of speculative testimony of other parents that defendant had

unhealthy and abnormal interactions with children. We disagree.

“[A] defendant must move the trial court for a new trial or evidentiary hearing to preserve

the defendant’s claim that his or her counsel was ineffective.” People v Lane, 308 Mich App 38,

68; 862 NW2d 446 (2014). Because defendant did not move for a new trial or evidentiary

hearing in the trial court, this issue is unpreserved. “A defendant’s claim of ineffective

assistance of counsel ‘is a mixed question of fact and constitutional law.’ Generally this Court

reviews for clear error the trial court’s findings of fact and reviews de novo questions of law.”

Lane, 308 Mich App at 67-68 (citations omitted). However, “[w]hen the trial court has not

conducted a hearing to determine whether a defendant’s counsel was ineffective, our review is

limited to mistakes apparent from the record.” Id. at 68.

“To prove that his defense counsel was not effective, the defendant must show that (1)

defense counsel’s performance fell below an objective standard of reasonableness and (2) there

is a reasonable probability that counsel’s deficient performance prejudiced the defendant.” Lane,

308 Mich App at 68. “A defendant was prejudiced if, but for defense counsel’s errors, the result

of the proceeding would have been different.” Id. “There is a presumption that counsel was

effective, and a defendant must overcome the strong presumption that counsel’s challenged

actions were sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452

(2015). “This Court ‘will not substitute [its] judgment for that of counsel on matters of trial

strategy, nor will [this Court] use the benefit of hindsight when assessing counsel’s competence.’

” Id. (citation omitted). “The defendant . . . bears the burden of establishing the factual

predicate for his claim.” Id. (citation and quotation marks omitted).

A. STIPULATION TO ADMIT VIDEOTAPED RECORDING AND PERMITTING

WITNESSES TO REPEAT ALLEGATIONS

Defense counsel admitted the videotaped forensic interview of the victim as her exhibit,

specifically stating that the defense was requesting that the video be played and the transcript be

used because it would be hearsay for the prosecutor to do so. Defense counsel subsequently

called Dr. Okla, an expert in forensic psychology, with expertise in suggestibility, forensic

interviewing techniques, and memory research, who reviewed the forensic interview and offered

her opinions thereon. Defense counsel’s theory at trial was that the interview was not properly

conducted and the victim was not telling the truth during the interview. Defense counsel

specifically elicited testimony from Dr. Okla that the victim was unresponsive and said, “I

think,” numerous times in the interview. Dr. Okla was critical of the interviewer’s failure to

conduct a practice narrative with the victim and her repetition of questions. Therefore, defense

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counsel used the forensic interview to support her theory at trial. As the prosecution points out,

defendant’s expert could not have offered her opinions on the interview if the interview was not

admitted into evidence. See MRE 703 (“The facts or data in the particular case upon which an

expert bases an opinion or inference shall be in evidence.”). Accordingly, defendant has failed to

overcome the strong presumption that her decision to admit the videotaped recording was sound

trial strategy. See Cooper, 309 Mich App at 80.

Similarly, defense counsel repeated the victim’s allegations in order to show the

interviewer’s questions and elicit Dr. Okla’s testimony that such repeated questions were

dangerous. Therefore, defense counsel’s decision to refer to specific allegations made by the

victim during the forensic interview was part of her strategy to challenge the interview and

defendant fails to overcome the strong presumption that this was sound trial strategy. See

Cooper, 309 Mich App at 80.

Finally, defendant challenges defense counsel’s failure to object to Killips’s testimony in

which she also repeated the allegations of the victim made during the forensic interview. As

discussed below in Issue III, Killips’s testimony properly rebutted Dr. Okla’s testimony. Given

that Killips’s testimony was within the proper scope of rebuttal, an objection by defense counsel

would have been futile. “Counsel is not ineffective for failing to make a futile objection.”

People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

B. STIPULATION TO ALLOW VIDEOTAPED INTERVIEW TO BE TAKEN INTO THE

JURY ROOM

During the jury’s deliberations, it requested to see the videotaped interview. The parties

stipulated that, for clarity purposes, the jury could watch the Care House video from the court

computer’s hard drive, rather than from the disk admitted at trial. The trial court did not provide

any specific instructions to the jury regarding the videotaped interview. Defendant argues that

while “similar challenges have not been located in Michigan jurisprudence,” other states had

disapproved of allowing the jury to have unfettered use of such interviews, particularly in child

sexual assault cases. The concern is that the jury may have unfairly emphasized this testimony

over the trial testimony. See State v Burr, 195 NJ 119, 134; 948 A2d 627 (2008) (holding that

precautionary procedures should be applied when a jury requests to replay a videotaped pretrial

interview that has been introduced into evidence). However, given defendant’s admission that

there is no Michigan caselaw holding that the provision of a videotaped interview to the jury is

impermissible, defense counsel’s failure to object was not objectively unreasonable. See Lane,

308 Mich App at 68. In fact, MCR 2.513(P) provides in relevant part:

If, after beginning deliberation, the jury requests a review of certain testimony or

evidence that has not been allowed into the jury room under subrule (O), the court

must exercise its discretion to ensure fairness and to refuse unreasonable requests,

but it may not refuse a reasonable request. The court may make a video or audio

recording of witness testimony, or prepare an immediate transcript of such

testimony, and such tape or transcript, or other testimony or evidence, may be

made available to the jury for its consideration.

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Thus, the trial court was required to provide the evidence requested by the jury during

deliberations, unless the request was unreasonable. Nonetheless, even if allowing a jury to have

unfettered access to a videorecorded interview might be improper in some cases, defendant has

failed to overcome the presumption that defense counsel’s action was sound trial strategy in this

case. See Cooper, 309 Mich App at 80. Again, defense counsel admitted the recording as a

defense exhibit and drew attention to numerous parts of it throughout her case. It would have

been reasonable strategy for defense counsel to want the jury to be able to view those portions

again during its deliberations. This Court will not substitute its judgment for that of defense

counsel or use the benefit of hindsight. See id. Along those same lines, given that the

videorecording had already been played for the jury, the jury was provided the transcript of the

interview, and there was already significant testimony about the interview, there is no reasonable

probability that defendant was prejudiced by the jury’s unsupervised access to the recording.

See Lane, 308 Mich App at 68.

C. FAILURE TO OBJECT TO TESTIMONY

Defendant contends that defense counsel was ineffective in failing to object to certain

testimony at trial. First, he argues that defense counsel should have objected to Killips’s

testimony that the goal of the forensic interview is to obtain as much of the truth as the child

could provide. Defendant argues this testimony implied that a child’s statement during a

forensic interview is truthful and constituted improper vouching. This testimony was followed

by Killips’s testimony that the interviewers were well-trained. Defendant claims that this

testimony improperly relied on the prestige of law enforcement. Defendant further argues that

Detective Shuler offered her personal opinion of defendant’s guilt by testifying that no one else

was ever considered as a suspect and that if she did not feel that there was enough evidence to

support a charge she would not submit a case for prosecution. Defendant claims that this

testimony also improperly relied on the prestige of law enforcement.

“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. An

expert may not vouch for the veracity of a victim.” People v Dobek, 274 Mich App 58, 71; 732

NW2d 546 (2007) (citations omitted). Moreover, “a witness cannot express an opinion on the

defendant’s guilt or innocence of the charged offense[.]” People v Fomby, 300 Mich App 46,

53; 831 NW2d 887 (2013) (citation and quotation marks omitted). Finally, “[i]t is error for the

prosecutor to place the prestige of his office or that of the police behind the contention that a

defendant is guilty.” People v Lucas, 138 Mich App 212, 221; 360 NW2d 162 (1984).

Killips’s testimony, when read in context, merely indicated that the goal of a forensic

interview is to obtain the truth. She did not vouch for the victim’s credibility and, in fact,

specifically testified that she was not there to testify regarding whether the victim was telling the

truth or whether defendant was guilty. Because her testimony was not improper, an objection

would have been futile; therefore, defense counsel was not ineffective. See Thomas, 260 Mich

App at 457.

When Killips testified that the Oakland County advocacy center was “really great” and

the interviewers are “trained well,” defense counsel did object that Killips was not answering the

question. The trial court agreed and read the question again, and defense counsel again objected,

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resulting in Killips answering the question that was asked. Because defense counsel did object to

this testimony, defendant has failed to establish the factual predicate for this claim. See Cooper,

309 Mich App at 80. Although the unresponsive testimony was not stricken from the record,

defendant fails to establish a reasonable probability that the failure to strike this testimony

affected the outcome of the trial. Even Killips herself testified that the interview was not perfect.

With regard to Detective Shuler’s testimony that no one else was ever considered as a

suspect, this testimony was consistent with defense counsel’s theory that the police had “tunnel

vision.” Accordingly, defendant has failed to overcome the strong presumption that defense

counsel’s failure to object was sound trial strategy. See Cooper, 309 Mich App at 80.

With regard to Detective Shuler’s testimony that if she did not feel that there was enough

evidence to support a charge she would not submit a case for prosecution, she was merely

indicating that over the approximately 50 sexual assault cases she investigates each year many

are not presented for criminal charges because it is determined that there was a misunderstanding

or the alleged touching was for hygiene purposes. Therefore, Detective Shuler was not

specifically commenting on this case, and even if the testimony did imply that Detective Shuler

believed there was sufficient evidence to bring criminal charges in this case, contrary to

defendant’s assertion, it did not constitute an improper comment on his guilt because it merely

referred to bringing charges. Detective Shuler did not opine whether defendant was, in fact,

guilty of those charges. Accordingly, defense counsel was not ineffective in failing to object and

defendant cannot show that the testimony affected the outcome of the proceedings. See Lane,

308 Mich App at 68.

D. FAILURE TO OBJECT TO ALLEGED PROSECUTOR MISCONDUCT DURING

CLOSING ARGUMENTS

Next, defendant contends that defense counsel was ineffective in failing to object during

closing argument to the prosecutor’s statements shifting the burden of proof to defendant and

encouraging the jury to improperly rely on MRE 404(b) testimony. Defendant specifically refers

to the prosecutor’s argument that defendant had a motive to lie—in order to avoid

consequences—and that defendant failed to give any reason why the victim would be lying.

A prosecutor may not imply in closing argument that the defendant must

prove something or present a reasonable explanation for damaging evidence

because such an argument tends to shift the burden of proof. Also, a prosecutor

may not comment on the defendant’s failure to present evidence because it is an

attempt to shift the burden of proof. However, a prosecutor’s argument that

inculpatory evidence is undisputed does not constitute improper comment. A

prosecutor may also argue that the evidence was uncontradicted even if the

defendant is the only person who could have contradicted the evidence. [People v

Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010) (citations omitted).]

“Moreover, attacking the credibility of a theory advanced by a defendant does not shift the

burden of proof.” People v McGhee, 268 Mich App 600, 635; 709 NW2d 595 (2005).

-13-

The prosecutor’s argument that defendant failed to give any reason why the victim would

be lying can reasonably be interpreted as argument that the victim’s testimony was undisputed

and as attacking defendant’s theory at trial. Defendant testified that he was surprised that the

victim was making these accusations. Because the argument was not improper, defense

counsel’s objection would have been futile. See Thomas, 260 Mich App at 457. However, even

if the argument did impermissibly shift the burden of proof to defendant, “declining to raise

objections, especially during closing argument, can often be consistent with sound trial strategy.”

People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Defense counsel may not have

wanted to draw attention to the fact that there was no evidence of a motive for the victim to lie.

Moreover, the trial court instructed the jury that the prosecution must prove every element of the

crime beyond a reasonable doubt and “[t]he Defendant is not required to prove his innocence or

to do anything.” “Jurors are presumed to follow their instructions, and it is presumed that

instructions cure most errors.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436

(2011). Accordingly, defendant has failed to establish that but for counsel’s failure to object,

there is a reasonable probability that the result of the trial would have been different. See Lane,

308 Mich App at 68.

Defendant also argues that defense counsel should have objected to the following

argument made by the prosecutor in closing:

There are way too many coincidences and red flags in this case. And I

wrote down the ones that I could think of and I’m sure that you all thought of, of

not these same ones, other ones.

Defendant volunteering at this preschool. Defendant giving kids marbles

and candy. Defendant taking kids to the playground when he’s not a teacher.

Defendant being at this school as often as he was. Defendant swinging kids

around by their arms. Giving piggyback rides to these children. Being alone with

the kids during marble time which he admitted himself. Being alone with the kids

in the garden again, which he admitted himself. Trying to take Diana Allen’s

granddaughter into the woods. Kids taking candy from the defendant’s pocket.

Defendant admitting that that rule about being alone with kids was not always

followed. . . .

* * *

This was too many red flags. A quarter of this amount would be too many

red flags.

The prosecutor went on to argue that defendant is a nice guy and that is how he was able to

commit these crimes.

“Although a prosecutor may not argue facts not in evidence or mischaracterize the

evidence presented, the prosecutor may argue reasonable inferences from the evidence.” People

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v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). The prosecutor’s argument merely

summarized the evidence presented in this case,2 and made reasonable inferences from that

evidence. As noted by the prosecutor, defendant actually admitted many of the acts that the

prosecutor characterized as “red flags.” Contrary to defendant’s assertion, the prosecutor did not

argue that the jury should find defendant guilty based on his character. Rather, the prosecutor

argued that, in hindsight, defendant’s actions that seemed nice at the time were actually part of

him grooming the victim and allowed him the opportunity to commit the crimes. The

prosecutor’s argument can also reasonably be interpreted as responding to defendant’s theory

that these acts were innocent. Because the prosecutor’s argument was not improper, defense

counsel’s failure to object was not objectively unreasonable and any objection would have been

futile. See Lane, 308 Mich App at 68; Thomas, 260 Mich App at 457.

E. STIPULATION TO ADMIT AND FAILURE TO CHALLENGE TESTIMONY

Lastly, defendant argues that defense counsel was ineffective in stipulating to the

admission of the testimony of two witnesses and failing to challenge the trial court’s decision to

admit the testimony of two other witnesses. Defense counsel stipulated to the admission of the

testimony of Diana Allen and Breidenich. Defense counsel argued below that this evidence was

not MRE 404(b) evidence, but simply evidence that the prosecution could present at trial. At

trial, Diana Allen testified that in approximately 2007 or 2008, she and her grandchildren

attended a spring or fall cleanup at the church. Diana Allen left her granddaughter, who was four

years old, on the playground. When Diana Allen looked over, she saw defendant holding her

granddaughter’s hand and walking her away from the playground toward the wooded area. On

another occasion, Diana Allen saw her granddaughter place her hand into defendant’s pocket.

When asked what she was doing, her granddaughter stated that she was getting candy.

Breidenich testified at trial that she stopped her daughter’s attendance after observing defendant

playing on the playground with the children, even though a preschool teacher was on the other

side of the playground.

Defendant has failed to establish that defense counsel’s conduct was objectively

unreasonably because Diana Allen’s and Breidenich’s testimony was consistent with defendant’s

trial testimony that there were times that he was alone with children and his theory that his

interactions with the children were innocent. Accordingly, defense counsel could have

reasonably believed that this testimony supported the defense theory. Therefore, defendant fails

to overcome the presumption that defense counsel’s conduct was sound trial strategy. See

Cooper, 309 Mich App at 80. Moreover, even if defense counsel had successfully challenged the

testimony of Diana Allen and Breidenich, there is no reasonable probability that the outcome of

the trial would have been different absent such testimony. See Lane, 308 Mich App at 68.

Regarding Orville Allen’s testimony that he saw his grandson take candy out of

defendant’s pocket and observed defendant take a group of children to the garden alone on one

or two occasions, as well as Detective Shuler’s testimony that she arrested defendant because she

2

The admission of certain testimony, and defense counsel’s stipulation to admit certain

testimony, is discussed below.

-15-

had information that he was suicidal and possibly had access to a firearm, defense counsel did

object to the testimony, although not on MRE 404(b) grounds. However, as discussed further

below in Issue IV, there is no indication that the evidence was admitted under MRE 404(b), and,

regardless, the evidence was properly admitted. Accordingly, any objection would have been

futile. See Thomas, 260 Mich App at 457.

III. ENHANCEMENT OF VIDEORECORDED STATEMENT

Next, defendant contends that the trial court erred in refusing to allow defense counsel

the opportunity to enhance the audio of the forensic interview because there were over 90

inaudible sections and Michigan law does not categorically prohibit the incidental copying

needed for enhancement. Alternatively, defendant argues that if MCL 600.2163a does prohibit

such copying, then it is unconstitutional. We disagree.

Defendant sought to have the videorecording enhanced in a pretrial motion, which the

trial court denied. Therefore, the statutory interpretation issue is preserved. See People v

Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007) (“For an issue to be

preserved for appellate review, it must be raised, addressed, and decided by the lower court.”).

“[W]e review de novo the interpretation and application of statutes.” People v Stone, 269 Mich

App 240, 242; 712 NW2d 165 (2005). “[A] preserved, nonconstitutional error is not a ground

for reversal unless ‘after an examination of the entire cause, it shall affirmatively appear’ that it

is more probable than not that the error was outcome determinative.” People v Lukity, 460 Mich

484, 496; 596 NW2d 607 (1999). “An error is deemed to have been ‘outcome determinative’ if

it undermined the reliability of the verdict. In making this determination, the reviewing court

should focus on the nature of the error in light of the weight and strength of the untainted

evidence.” People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000) (citations omitted).

Defendant, however, did not argue in the trial court, as he does now on appeal, that MCL

600.2163a(9) is unconstitutional; therefore, this issue is unpreserved. See Metamora Water Serv,

Inc, 276 Mich App at 382. Unpreserved claims of constitutional error are reviewed for plain

error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130

(1999).

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. The third requirement generally requires a

showing of prejudice, i.e., that the error affected the outcome of the lower court

proceedings. “It is the defendant rather than the Government who bears the

burden of persuasion with respect to prejudice.” Finally, once a defendant

satisfies these three requirements, an appellate court must exercise its discretion in

deciding whether to reverse. 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. at 763 (citations

omitted).]

MCL 600.2163a(9) provides:

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A custodian of the videorecorded statement may release or consent to the

release or use of a videorecorded statement or copies of a videorecorded statement

to a law enforcement agency, an agency authorized to prosecute the criminal case

to which the videorecorded statement relates, or an entity that is part of county

protocols established under section 8 of the child protection law, 1975 PA 238,

MCL 722.628, or as otherwise provided by law. The defendant and, if

represented, his or her attorney has the right to view and hear a videorecorded

statement before the defendant’s preliminary examination. Upon request, the

prosecuting attorney shall provide the defendant and, if represented, his or her

attorney with reasonable access and means to view and hear the videorecorded

statement at a reasonable time before the defendant’s pretrial or trial of the case.

In preparation for a court proceeding and under protective conditions, including,

but not limited to, a prohibition on the copying, release, display, or circulation of

the videorecorded statement, the court may order that a copy of the

videorecorded statement be given to the defense. [Emphasis added.]

We need not decide here whether the statute prohibits copying in all cases or the

constitutionality of such a prohibition, because we conclude that any error in denying defendant

the opportunity to copy and enhance the audio of the videorecorded statement in this case was

not outcome determinative. See Lukity, 460 Mich at 496. There is testimony in the record from

Killips that, by increasing the volume and replaying the inaudible sections, it was possible to

determine what was said at many, but not all, of those sections. A review of the transcript also

shows that, after many of the sections noted as “inaudible,” the interviewer repeated what the

victim said in a question to the victim or asked the victim to repeat what she said. While other

sections were not clarified by the interviewer, the experts in this case reviewed the

videorecording and were able to offer their opinions. In particular, defendant’s expert, Dr. Okla,

was able to reach conclusions and testify at trial. Dr. Okla never indicated that the inaudible

sections affected her analysis or ability to testify in this case. Defendant only speculates that

enhancement of the audio could have also enhanced Dr. Okla’s testimony. Finally, we cannot

presume, based on the jury’s request for speakers during deliberations, that the jury was unable

to determine what the victim said at any critical part of the interview or that such inability

affected its verdict. For these reasons, we conclude that the trial court’s refusal to allow

defendant the opportunity to copy and enhance the recording did not undermine the reliability of

the verdict. See Elston, 462 Mich at 766. Also for these reasons, we conclude that defendant

fails to show that any error affected the outcome of the lower court proceedings. See Carines,

460 Mich at 763.

IV. ADMISSION OF REBUTTAL TESTIMONY

Defendant also argues that the trial court erred in allowing the prosecution’s rebuttal

witness, Killips, to testify beyond the proper scope of rebuttal. We disagree.

“We do not disturb a trial court’s decision regarding the admission of rebuttal testimony

absent an abuse of discretion.” People v Steele, 283 Mich App 472, 485-486; 769 NW2d 256

(2009). “An abuse of discretion occurs when the trial court chooses an outcome that falls outside

the range of principled outcomes.” People v Gonzalez-Raymundo, 308 Mich App 175, 186; 862

NW2d 657 (2014).

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“Rebuttal evidence is limited to refuting, contradicting, or explaining evidence presented

by the opposing party.” People v Humphreys, 221 Mich App 443, 446; 561 NW2d 868 (1997).

Defendant first argues that Killips improperly discussed the victim’s allegation that defendant

scratched her privacy place and improperly commented on the ability of a child to understand a

particular question. However, the prosecutor referred to this allegation in his question regarding

the victim’s answer to “how was [defendant’s] body.” The prosecutor indicated in his question

that the victim responded by stating that defendant has black hair. Based on this, Killips testified

that children can be literal and make mistakes in answering questions. This testimony was

proper rebuttal testimony because it refuted Dr. Okla’s testimony that the child was unresponsive

at times, by explaining why one of the victim’s answers might seem unresponsive when it was

really just a misunderstanding.

Defendant also argues that Killips improperly testified that she disagreed with Dr. Okla’s

interpretation of the victim’s answer regarding how many times the victim put her mouth on

defendant’s penis. However, given that she was expressly disagreeing or contradicting Dr.

Okla’s testimony, this was clearly proper rebuttal testimony.

Defendant next contends that Killips improperly repeated the victim’s demonstrative

allegations. However, the prosecutor was asking Killips whether the victim’s demonstrations

were a concern. This testimony was also proper rebuttal because Dr. Okla testified that the

victim was moving around the room and was unresponsive at times. Relatedly, defendant argues

that Killips improperly offered her beliefs regarding children’s possession of sexual vocabulary

and understanding of sexual matters. However, Killips was explaining why children might do

demonstrations. Accordingly, this testimony also refuted Dr. Okla’s testimony that the child was

unresponsive.

Defendant also contends that Killips improperly described the nature of the forensic

interview. Dr. Okla testified regarding the parts of a forensic interview and that one part of the

interview, the practice narrative, was missing. Killips testified about the parts of the forensic

interview of the victim in this case. When defense counsel objected to questions related to the

interview, the trial court ruled that the testimony was directly responsive to Dr. Okla’s testimony

about whether there was a practice narrative. Killips explained that there was “somewhat of a

narrative about the summer and what usually happens when she goes to [her] grandparents[’]

house.” Accordingly, the trial court did not abuse its discretion in concluding that this was

proper rebuttal testimony.

Defendant next argues that Killips improperly stated her interpretation of what the

interviewer was trying to establish through the interview. Killips testified that after the ground

rule stage of the interview, the interviewer asked the victim to tell her why she was there for the

interview. Killips explained that then “there was some discussion and then moving on through

various acts, they attempt to figure out where exactly certain types of touches happen which can

be difficult with young children.” However, in general, Killips testimony about the various

stages of the forensic interview in this case refuted Dr. Okla’s testimony that the interview was

flawed.

Defendant further argues that Killips improperly interpreted the interviewer’s questions

and speculated regarding the reasons for those questions. Killips explained that, at times, the

-18-

victim said that she did not understand the question and the interviewer rephrased so the victim

could answer. Killips testified that “[w]hen you ask the same exact question over and over it is a

problem, but when you ask a different question it’s a different question.” This testimony

specifically contradicted Dr. Okla’s testimony that it was improper for the interviewer to repeat

questions. Accordingly, this was proper rebuttal testimony.

Lastly, defendant argues that Killips improperly described various forms of questions that

may be used during a forensic interview. On the page cited by defendant, Killips testified

regarding the victim’s literal response to the question “how was [defendant’s] body,” which, as

discussed above, properly refuted Dr. Okla’s testimony that the child was unresponsive at times.

V. ADMISSION OF TESTIMONY

Finally, defendant contends that the trial court erred in allowing the testimony of Diana

Allen, Breidenich, Orville Allen, and Detective Shuler under MRE 404(b). We disagree.

Defense counsel stipulated to the admission of the testimony of Diana Allen and

Breidenich at trial. Accordingly, defendant’s claim regarding this testimony is waived. See

People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Defendant, however, raises a claim

of ineffective assistance of counsel. For the reasons discussed above in Issue I, this argument

fails.

With regard to Orville Allen’s testimony, defendant argued below that his testimony was

irrelevant and, regardless, was not an other act within MRE 404(b). However, the trial court

allowed the testimony at trial. Defendant argues on appeal that Orville Allen’s testimony was

other acts testimony, but was not admissible under MRE 404(b). Therefore, this claim is

unpreserved. See People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (“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.”). Similarly, defense

counsel objected at trial to Detective Shuler’s testimony that defendant was contemplating

suicide and had possible access to a firearm. She did not, however, object on MRE 404(b)

grounds, and the trial court ruled that defense counsel opened the door to the testimony.

Therefore, defendant’s claim that this was improper MRE 404(b) testimony is unpreserved. See

Aldrich, 246 Mich App at 113. This Court reviews unpreserved evidentiary error for plain error

affecting substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).

There is no indication that Orville Allen’s testimony was admitted under MRE 404(b).

Although the prosecution filed a motion to admit Orville Allen’s testimony under MRE 404(b),

defendant argued that it was not other acts evidence. At the hearing on the prosecution’s motion,

the trial court ruled that Orville Allen’s testimony would be admitted if it was relevant. At trial,

his testimony was admitted without objection. Defendant now objects to Orville Allen’s

testimony that he saw his grandson take candy out of defendant’s pocket and that he observed

defendant taking groups of children to the garden by himself on one or two occasions. Given

that this testimony was not admitted under MRE 404(b), defendant fails to establish plain error.

Moreover, defendant fails to establish that any error in the admission of the testimony affected

his substantial rights in light of the other testimony at trial, including defendant’s testimony that

Orville Allen’s grandson took candy out of his pocket on one occasion, but Orville Allen was

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present and was not mad, and that defendant would take groups of children out to the garden, but

there was always a teacher following behind.

Similarly, Detective Shuler’s testimony was not admitted under MRE 404(b). Her

testimony was not mentioned in the prosecutor’s motion and it was offered in rebuttal.

Specifically, it rebutted defendant’s testimony that his arrest was unnecessary because he was

going to turn himself in. Detective Shuler explained that they arrested defendant because they

had information that defendant was contemplating suicide and had possible access to a firearm.

Therefore, defendant fails to establish plain error affecting his substantial rights in the admission

of this testimony.

Affirmed.

/s/ Patrick M. Meter

/s/ Kurtis T. Wilder

/s/ Amy Ronayne Krause

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