People of Michigan v. Brian Ray Soules

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

May 19, 2016

Plaintiff-Appellee,

v No. 326554

Newaygo Circuit Court

BRIAN RAY SOULES, LC No. 13-010558-FH

Defendant-Appellant.

Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of five counts of second-degree

criminal sexual conduct (CSC-II), MCL 750.520c, accosting a minor for an immoral purpose,

MCL 750.145a, and eavesdropping, MCL 750.539d(1)(a). He was sentenced to 29 months to 15

years’ imprisonment for the CSC-II convictions, 17 months to 4 years’ imprisonment for

accosting a minor for an immoral purpose, and 13 months to 2 years’ imprisonment for

eavesdropping. He appeals as of right. We affirm.

Defendant first argues that the trial court improperly allowed evidence of defendant’s

prior bad act to come before the jury by way of a juror question, and failed to follow the

procedures required by MCR 2.513(I) when handling questions submitted by the jury.

Additionally, defendant claims that these errors violated his constitutional right to due process.

We agree that the trial court erred, but do not agree that defendant is entitled to a new trial on

this basis.

Generally, this Court reviews for an abuse of discretion a challenge to the admission of

evidence. People v Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007). However, at trial,

defendant’s counsel failed to object to the evidence, leaving the issue unpreserved. People v

Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We review unpreserved evidentiary

issues for plain error affecting substantial rights. People v Fackelman, 489 Mich 515, 537; 802

NW2d 552 (2011). To show plain error, three requirements must initially be met: 1) error must

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

substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We also

reviewed unpreserved constitutional claims for plain error. People v Vandenberg, 307 Mich App

57, 61; 859 NW2d 229 (2014).

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In response to a question submitted by the jury, the victim’s grandmother testified that,

on one occasion, defendant pushed her down the stairs. Defendant asserts that this evidence was

inadmissible pursuant to MRE 404(b) and MRE 402. Under MRE 404(b), evidence of other

crimes, wrongs, or acts is admissible only if the evidence is (1) offered for a proper purpose

rather than to prove the defendant’s character or propensity to commit the crime, (2) relevant to

an issue or fact of consequence at trial, and (3) sufficiently probative to prevail under the

balancing test of MRE 403. People v Hoffman, 225 Mich App 103, 105; 570 NW2d 146 (1997).

We agree the evidence was inadmissible under MRE 404(b) because it was not admitted by

either party for a proper purpose, id., and was not relevant to any issues in the case. MRE 401;

MRE 402.

However, while defendant has demonstrated that error occurred, he has not demonstrated

that the error affected his substantial rights. To show that the plain error affected defendant’s

substantial rights, defendant must show that the error was outcome-determinative. Carines, 460

Mich at 763. Here, we do not agree that the evidence affected the outcome of the trial. The

testimony regarding defendant’s past act was brief, unrelated to defendant’s charges, and none of

the other witnesses testified about any violent behavior by defendant. Moreover, the record

contained significant evidence that supported each of defendant’s convictions. There was

nothing in the record to support that defendant was prejudiced by the bad acts evidence in a way

that impacted the outcome of the trial. Accordingly, defendant has failed to demonstrate plain

error affecting his substantial rights with respect to the other acts evidence.

Defendant also claims that the trial court failed to comply with the procedural

requirements of MCR 2.513(1). Defendant waived this issue when he affirmatively expressed

satisfaction with how the court handled the jury questions. See People v Kowalski, 489 Mich

488, 503; 803 NW2d 200 (2011). However, because defendant also alleges an ineffective

assistance claim relating to this error, we review the claim in that context. When an ineffective

assistance of counsel claim is unpreserved, “this Court’s review is limited to mistakes apparent

from the record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate

ineffective assistance of counsel, a defendant must show that his or her attorney’s performance

fell below an objective standard of reasonableness under prevailing professional norms and that

this performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836

NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011).

“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors,

the result of the proceedings would have been different.” Nix, 301 Mich App at 207.

MCR 2.513(1) requires that the court “employ a procedure that ensures that . . . the

parties have an opportunity outside the hearing of the jury to object to the questions.” Here, the

record is clear that the trial court failed to provide the parties an opportunity to object outside the

presence of the jury. The trial court erred by failing to follow the requirements of MCR 2.513(I).

However, there was not a reasonable probability that, but for counsel’s errors, the result of the

proceedings would have been different. Nix, 301 Mich App at 207. Again, the evidence related

to a peripheral issue not relevant to defendant’s charged crimes, there was no other evidence that

defendant exhibited violent behavior, and the testimony was brief. Accordingly, we reject

defendant’s claim of error.

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We similarly reject defendant’s claim that his counsel was ineffective for failing to object

to the jury question that led to the objectionable evidence. Again, defendant cannot show

prejudice. We also note that it was not clear from the question itself that the inquiry would lead

to objectionable evidence. Further, once the witness made the statement, counsel may have

reasonably decided not to object, so as to not draw attention to the evidence. See People v

Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (to show ineffective assistance of

counsel, defendant must overcome the heavy presumption that trial counsel employed effective

trial strategy). In addition, for the same reasons discussed above, we reject defendant’s claim

that his constitutional right to due process was violated because defendant cannot establish plain

error affecting substantial rights.

Defendant next argues that the prosecution committed prosecutorial misconduct when it

elicited testimony about the victim’s credibility. Defendant also argues that the trial court

improperly asked the prosecution’s expert witness whether the victim was telling the truth.

While we agree that error occurred, we conclude that defendant is not entitled to a new trial on

this basis.

We first address defendant’s claim of prosecutor misconduct. Because defendant did not

object to the prosecutor’s conduct at trial, this issue is unpreserved and review is limited to plain

error affecting substantial rights. People v Gaines, 306 Mich App 289, 308; 856 NW2d 222

(2014). Error requiring reversal will not be found when a curative instruction could have

displaced any prejudicial effect of the prosecutor’s misconduct. People v Johnigan, 265 Mich

App 463, 467; 696 NW2d 724 (2005). “Given that a prosecutor’s role and responsibility is to

seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant

was denied a fair and impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546

(2007). “It is generally improper for a witness to comment or provide an opinion on the

credibility of another witness.” Id. at 71.

Defendant asserts that it was prosecutorial misconduct for the prosecutor to ask the

victim’s mother about the victim’s truthfulness. At trial, the prosecutor asked the victim’s

mother whether she believed her daughter when she indicated that she found surveillance

cameras hidden in her bedroom; the victim’s mother testified that she believed the victim. Also,

the prosecutor asked the victim’s mother what she thought when the victim indicated that she

was abused; the victim’s mother again testified that she believed the victim. A prosecutor “is

entitled to attempt to introduce evidence that he legitimately believes will be accepted by the

court, as long as that attempt does not prejudice the defendant.” People v Noble, 238 Mich App

647, 660-661; 608 NW2d 123 (1999). However, it is improper for a prosecutor to question

witnesses about the veracity of testimony given by other witnesses. People v Williams, 153

Mich App 582, 590; 396 NW2d 805 (1986), citing People v Buckey, 424 Mich 1, 17; 378 NW2d

432 (1985).

To the extent the questions asked the victim’s mother to comment on the victim’s

veracity, they were improper. Williams, 153 Mich App at 590-591. Nevertheless, there was no

plain error affecting defendant’s substantial rights. Any prejudicial effect could have been

alleviated by a timely objection and curative instruction, so defendant is not entitled to relief on

appeal. Johnigan, 265 Mich App at 467. Moreover, the trial court specifically instructed the

jury that it was their duty to determine the credibility of witnesses.

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Defendant also asserts that he was denied a fair and impartial trial when the trial court

questioned the prosecution’s expert witness regarding the victim’s credibility. Because

defendant did not object to judicial misconduct at trial, we review this claim for plain error

affecting substantial rights. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011).

The trial court has the right to interrogate witnesses. MRE 614(b). “As long as the questions

would be appropriate if asked by either party and, further, do not give the appearance of

partiality . . . a trial court is free to ask questions of witnesses that assist in the search for truth.”

People v Davis, 216 Mich App 47, 52; 549 NW2d 1 (1996). But, inappropriate questioning of

witnesses can constitute a form of judicial misconduct. People v Stevens, 498 Mich 162, 172;

869 NW2d 233 (2015). An expert witness may not vouch for the veracity of a victim. Dobek,

274 Mich App at 71. However, “[w]hen the credibility of the particular victim is attacked by a

defendant, . . . it is proper to allow an explanation by a qualified expert regarding the

consistencies between the behavior of that victim and other victims of child sexual abuse.”

People v Peterson, 450 Mich 349, 375; 537 NW2d 857 (1995).

Here, the court asked expert witness Sandra Terwilliger, a limited license psychologist

who met with the victim, whether victims respond differently to counseling when they are lying.

Terwilliger testified that it is not unusual for children to appear withdrawn when first discussing

their abuse and to open up and share greater details over time as they become more comfortable.

The trial court asked a string of questions regarding whether it was possible to discern whether a

victim was telling the truth based on the way a victim acts during counseling. The trial court’s

questions and the psychologist’s answers were sometimes general, referring to “they” or

“people,” and sometimes more specific, referring to “she.” After reviewing the record, we agree

that there were moments in Terwilliger’s testimony where she seemed to improperly vouch for

the victim’s credibility. However, we note that the testimony is not clear on whether Terwilliger

expressed an opinion regarding the victim’s veracity—certainly not to the extent suggested by

defendant. After Terwilliger testified, the trial court clearly and specifically instructed the jury

that her testimony could not be considered an opinion that the victim was telling the truth.

Again, “[i[t is well established that jurors are presumed to follow their instructions.” People v

Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Given the ambiguity of the testimony and

the trial court’s instructions, we do not agree that this error impacted defendant’s substantial

rights. Accordingly, defendant failed to show plain error, and reversal is not warranted.

Defendant also argues that his counsel was ineffective for failing to object to testimony

from the victim’s mother and Terwilliger’s testimony regarding the victim’s credibility. We

agree that defense counsel’s performance was deficient in this regard, but do not agree that these

errors necessitate a new trial. Again, we review unpreserved claims of ineffective assistance of

counsel for errors apparent on the record. Heft, 299 Mich App at 80. As explained, the victim’s

mother improperly testified that she believed the victim and her friends. Additionally,

Terwilliger’s also seemed to improperly vouch for the victim’s credibility at times in her

testimony. Thus, we agree that, in failing to object to these instances, defense counsel’s

performance fell below an objective standard of reasonableness under prevailing professional

norms. However, defendant has failed to show that there was a reasonable probability that, but

for counsel’s failure to object to the credibility testimony, the result of the proceeding would

have been different. The prosecution offered significant evidence to corroborate the victim’s

testimony, which served to bolster her credibility, and the trial court specifically instructed the

jury that it was their duty to determine the credibility of witnesses. Again, jurors are presumed

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to follow their instructions. Graves, 458 Mich at 486. Defendant has failed to demonstrate that

there was a reasonable probability that the result of the proceeding would have differed had his

counsel objected to the testimony about the victim’s truthfulness. Accordingly, defendant’s

claim fails.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Kirsten Frank Kelly

/s/ Karen M. Fort Hood

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