People of Michigan v. James Michael Franks

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 26, 2019

Plaintiff-Appellee,

v No. 341238

Macomb Circuit Court

JAMES MICHAEL FRANKS, LC No. 2017-000056-FC

Defendant-Appellant.

Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of first-degree felony murder, MCL

750.316(1)(b), and first-degree child abuse, MCL 750.136b(2). The trial court sentenced

defendant to life imprisonment without parole for the murder conviction and to 18 to 30 years’

imprisonment for the child-abuse conviction. Defendant now appeals as of right. For the

reasons set forth in this opinion, we affirm.

I. BACKGROUND

This case arises out of the tragic death of a one-year old child. Defendant was the child’s

father, and Elizabeth Osborne was the child’s mother. At the time of the events at issue,

defendant, Osborne, and the child lived together in the same home. Osborne testified that she

last saw the minor child alive on the morning of June 23, 2016. That morning, she and defendant

changed the child’s diaper. Osborne did not notice any bruises or abrasions on the child’s face,

and she did not notice any bruising on the child’s right upper arm, right ankle, or right foot.

According to Osborne, the child was happy and interacting normally. Osborne testified that she

spent the rest of that day and that night at a friend’s house, although she lied to defendant about

her whereabouts. The next day, June 24, 2016, Osborne went directly from her friend’s house to

work. When she finished her shift at work shortly after 6:00 p.m., Osborne called defendant to

tell him that she was on her way home and that she was waiting for the bus. Osborne testified

that defendant later called her while she was walking home from the bus stop and told her that he

had fallen with the child. Osborne further testified that defendant indicated that the child was

barely moving and barely breathing. Osborne told defendant to call 911.

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First responders arrived at the home where Osborne, defendant, and the minor child lived

after a 911 call had been received reporting that a man and his daughter had fallen down the

stairs after the man had a seizure. Firefighter paramedic Kyle Morrow testified that when he

arrived at the home, the minor child was “battered and bruised, unconscious, and had irregular

respirations.” Morrow described severe bruising to the child’s face and upper right arm, and he

explained that he was concerned about the possibility of a brain injury based on the severe

trauma to the child’s head and the irregular breathing. The child appeared “limp” and was

immediately transported to the hospital by ambulance. Osborne arrived at the house after the

child had already been taken to the hospital. According to Osborne, defendant told her that he

had been trying to take the child upstairs when he “felt a seizure coming on” and fell down the

stairs with the child. Defendant had further explained to her that when he had felt the seizure

coming on, he had knelt down with the child, held onto her with both hands, and tried to lean

forward so he would not fall backward.

Officer Christopher Skradulis testified that when he arrived at the house that night to take

defendant and Osborne to the hospital, defendant told him that he had been taking the child

upstairs to put her to bed, holding her in front of him, when he “became faint” and “grabbed onto

the railing.” According to Skradulis, defendant indicated that this was the last thing he

remembered and that he believed that he had suffered a seizure. Skradulis testified that

defendant also told him that he fell backwards and woke up with the child wrapped in his arms

and next to him. Defendant showed Skradulis the stairway where the fall allegedly occurred and

identified the step where he had felt faint, which was approximately halfway up the stairs.

Skradulis testified that the stairs were carpeted and that there was tile flooring at the bottom of

the stairway. Skradulis subsequently took defendant and Osborne to the emergency department

of the hospital.

Dr. Jeffrey Nigl testified that he was working in the emergency room that night and

treated the minor child when she arrived. Describing his preliminary observations of the child

and her injuries that night, Nigl testified that the child’s gaze was deviated with one eye looking

up and to the right and the other eye looking straight ahead. Nigl explained that this was a sign

of severe neurologic injury. The child also exhibited labored breathing, bruising across the face

and forehead, swollen eyelids that were dark purple in color, and a large hematoma “that was

lifting the skin away on the left back side of her head.” Nigl stated that the hematoma “probably

took up the size of a grapefruit on the back of her head” and “looked like it was a bruise that was

filling up with blood under the skin and pushing the skin away.” Nigl further testified that he

observed “posturing,” meaning that the child’s arms were in a fixed position. According to Nigl,

posturing was an indicator of degenerating neurologic status and worsening brain injury. Nigl

testified that the child also had bruising on her right arm extending from the upper portion of her

arm to her elbow and a large bruise on the front of her right foot. An x-ray taken as part of the

initial process of assessing the child’s injuries also showed a healing fracture of the left clavicle.

Nigl testified that a CAT scan revealed that the child had multiple skull fractures and that

blood was accumulating around her brain and inside her skull. More specifically, there was a

fracture running from the rear bottom portion of the skull up to the front near the forehead. The

fracture crossed over multiple bones in the child’s skull and extended the entire length of the

skull. Nigl stated, “So the back portion of her skull [was] cracked in two.” Nigl, who also

testified as an expert in emergency medicine, opined that this finding was significant because

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studies of accidental injuries in children had shown that accidental injuries typically only result

in small fractures solely to the parietal bone of the skull rather than fractures crossing multiple

bones in the skull. Nigl further testified about the CAT scan image of the child’s head as

follows:

There are also some other features about this that make it very concerning.

When I saw this image it alarmed me. The widening of the suture—

Pardon me, the widening of the fracture next to the suture[1] indicative of a

nonaccidental head injury, meaning that when a patient falls a distance, you

typically don’t see that configuration where the bone is actually pulled apart.

That means that you have fracture underneath. If you have swelling in the brain

which is literally forcing the bone apart.

The other thing about this is that you notice that it crosses over multiple

suture lines and that is also not in any way typical of an accidental injury, even

from a height.

Nigl also indicated that the CAT scan showed a separate suspected “nondisplaced

fracture” to the bottom right portion of the skull, which is “a crack in the bone that doesn’t

completely go through the bone.” In contrast, the other skull fracture was a “complex fracture,

meaning that it is all the way through the bone and the components are starting to shift relative to

one another . . . because [the bone] is not anchored down.” Nigl opined that multiple fractures of

the skull was “one of the huge red flags for this being nonaccidental trauma.”

Next, Nigl testified about the scan of the child’s brain:

The normal anatomy of the brain was disturbing, indicating there is

swelling of the brain. The tissue was, when jarred or hit with from an impact, the

tissue swells. Again, which is part of the reason I saw the bone starting to pull

apart. It’s the brain forcing those pieces of bone that are fractured moving away

from one another.

There is also a large collection of blood that had collected overlying the

brain on the left side that was underneath that fracture line. So there is actually

bleeding inside the skull over the brain.

Nigl further explained:

And one of the most concerning things is when you look at different views

of the brain, sliced down by the computer, you actually see the content of one side

1

Nigl explained that suture lines are a normal part of human anatomy and occur where the

various bones in the skull meet.

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of the brain moving to the other side because of the pressure that the blood exerts

on the tissue. It is called midline shift.

The midline is here. The brain tissue is forced in this direction [left to

right] because the blood is pushing it that way. That is immediately life

threatening.

Nigl testified that based on the severe injuries discovered in the CAT scans, the child was

rapidly taken to the operating room in order to drain the blood away from her brain since this

represented a potentially life threatening injury. Unfortunately, the child died as this procedure

was beginning.

At trial, during the course of describing the child’s various injuries, he clarified that the

bruises on the child’s forehead, eyelids, right side nose and cheek, right arm, and right foot, as

well as the child’s lip injury, were not caused by the medical treatment the child received that

night. Nigl acknowledged that a small red mark under the child’s nose could have been caused

by surgical tape used in the course of her medical treatment. Marrow also testified that he was

not aware of anything that his team would have done in treating the child that would have caused

any of her injuries.

Detective James Twardesky testified that he spoke to defendant at the hospital and at the

police station that night. According to Twardesky, defendant “didn’t seem injured at all.”

Defendant demonstrated how he had been holding the child. Once, he demonstrated holding the

child so the two were face to face. On another occasion, he demonstrated holding the child with

the child’s head above his own head. Twardesky testified that defendant told him one time that

he fell straight back and another time that he tried to run up the stairs when he felt faint and then

grabbed the railing before he fell. Defendant told Twardesky that when he woke up after the fall,

he was at the bottom of the stairs with his right arm extended and the child lying across it.

Twardesky further testified that he investigated the stairway where the fall allegedly occurred

and did not find any marks, scuff marks, bumps, indentations or damage of any kind on the

drywall covered walls of the stairway and surrounding area, other than marks where a baby gate

was situated. Additionally, Officer Sean McKibben testified that he took photographs of

defendant that night, which reflected a lack of any apparent injuries other than some type of red

rash on his back.

Lisa Gasiewicz, a registered nurse, testified that defendant arrived at the emergency room

where she was working and stated that he had recently had a seizure at the top of the stairs.

Defendant was complaining about having pain on the right side of his head, directly above his

ear. Gasiewicz testified that defendant’s vital signs were determined to be within normal limits.

She also testified that, in accordance with the standard of care for a patient who has potentially

suffered a seizure, various tests were performed on defendant. All of the testing, including CT

scan for “any kind of neurological deficit,” yielded results within normal limits. Defendant’s

neurological function was determined to be within normal limits. Gasiewicz also did not detect

any lumps, abrasions, lacerations, bruises, or masses where defendant reported that his head hurt,

and none were noted on the rest of his body. When defendant was discharged that day, he was

diagnosed with acute syncope. Gasiewicz explained that this is a generally diagnosis meaning

that a person fainted or passed out for an unknown reason.

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Dr. Leigh Hlavaty, the deputy chief medical examiner in Wayne County who performed

the autopsy, provided further testimony about the extent of the minor child’s injuries and also

testified as an expert in anatomic pathology and forensic pathology. Hlavaty testified that she

identified bruises to the child’s right cheek, right lower lip, right upper arm, both forearms, left

scalp in front of and behind her ear, right upper back, top right foot, front of the right ankle, both

sides of her forehead, both upper eyelids, and both sides of her nose. Hlavaty also noted an

abrasion on the child’s right temple. The bruise behind the child’s left ear was “very large,”

being “at least a few inches by a few inches.” Hlavaty indicated that there were approximately

nine different injuries to the front of the child’s face. The bruise on the front and outer portion of

the child’s right arm was four inches by two inches. Hlavaty testified that the three faint bruises

on the child’s upper back “being smaller and more round or oval [were] more consistent with

her shoulder being grabbed at some point and this being fingertip bruises as opposed to a large

fist or palm striking her upper back.” According to Hlavaty, the bruise on the child’s foot was

“consistent with a large flat or broad object striking her foot or if her foot was being grabbed it

could result in bruising on the entire front of the foot.”

Hlavaty’s internal examination revealed areas of bleeding under virtually the entire scalp.

Hlavaty testified that the child’s emergency room records indicated that the child had two

separate scalp hematomas in front of and behind her left ear. She explained that these

hematomas would have been underneath the large bruises but that the bleeding had spread

underneath the entirety of the scalp by the time of the autopsy.

Hlavaty’s internal examination also revealed two skull fractures originating from the left

occipital bone in the back of the skull. The first of these fractures was approximately 6 inches in

length, started in the left back of the head underneath the large bruise, extended through the back

of the skull onto the top of the head, and finally ended near the top of the left side of the

forehead. Hlavaty testified that this fracture was a displaced fracture with one edge pushed down

lower than the other edge and that such a displacement can be caused by a force being applied

unevenly with greater force to one side or by the head striking an object with an edge. The

second fracture also started in the left occipital bone about half an inch from the first fracture.

However, it extended through the base of the skull, through the right occipital bone and into the

right temporal bone in the base of the skull before terminating approximately in line with the

right ear. This fracture was also six inches long. Finally, Hlavaty also found subdural and

subarachnoid bleeding on the surface of the brain and bruising to the brain itself. These injuries

were located on the left and left back of the brain, underneath the location of the two skull

fractures. Hlavaty opined that the bruise on the left back of the head and the bruise on the left

side of the head were caused by different impacts but that the two fractures could have resulted

from either a single impact to the left back of the head or two separate impacts. Hlavaty also

opined that there “were at least three impact[s] to[] [the child’s] head, to her face, her forehead,

to the left side and the left back of her head.”

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Regarding the large bruise on the child’s right arm, Hlavaty testified that she discovered a

deep subcutaneous hemorrhage2 underneath the injury that extended down to the bone and

wrapped around the outside of the arm from front to back. There was only a thin area on the

inner arm that was not injured. Hlavaty opined that this injury was caused by a force that

“almost entirely encircled her upper arm” and that the complete injury could not be explained by

the child’s arm being slammed into something like a door or door jamb. She further testified that

it was “an injury we typically see when a child’s arm is forcibly grabbed.” Additionally, Hlavaty

found subcutaneous hemorrhages on the back of the left forearm, the right upper back, and the

right lower back. She also found bruising on the back surface of both lungs.

According to Hlavaty, all of the above injuries were “fresh or acute.”3 However, she also

discovered that the child had a fracture to the inner third of her left clavicle that was in the

process of healing. Based on the bone’s stage of healing, Hlavaty determined that the fracture

was approximately 4 weeks old. Hlavaty testified that such a fracture to this portion of the

clavicle was very rare in children of any age and that it is typically only seen in one-year-old

children in three situations: child abuse, cancer of the bone, and metabolic bone disease. Hlavaty

stated that the autopsy excluded the presence of cancer and metabolic bone disease. Hlavaty

opined that such a fracture can be caused by forcing the arm back and twisting up. Hlavaty

testified that a one-year-old child could not fracture the inner third of the child’s clavicle by

accident and that an accidentally caused clavicle injury in a child that young would occur in a

different portion of the clavicle. Nonetheless, Hlavaty indicated that she could not actually know

how the injury occurred or who caused it.

Hlavaty also was unable to locate any medical records indicating that treatment had been

sought for the child’s clavicle injury. According to Hlavaty, the child’s clavicle injury would

have been noticeable to a caretaker because the bump from the healing process would have been

visible through the child’s skin, although a person without medical training might not know that

it was a clavicle injury.

Hlavaty concluded that the cause of the child’s death was blunt force trauma to the head

and that the manner of death was homicide. Hlavaty opined that the alleged fall down the stairs

could not explain all of the recent injuries that the child had incurred. She explained:

While the internal fractures and the bleeding were consistent with an impact to the

left back of her head, which could have been caused by her hitting the tile floor.

[Sic.] There were still multiple impacts that were not explained. The one to the

left side of her head that resulted in the bruising and the hematoma, the bruising to

2

Hlavaty explained that a subcutaneous hemorrhage is one that is present in the tissue

underneath the skin, including the muscle.

3

Hlavaty testified that while there is no way to determine the age of a bruise with precision, it is

still possible to tell from the color of the bruise whether it occurred recently or is starting to heal.

Hlavaty opined that none of the child’s external injuries showed signs of healing and that they

were therefore recent.

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her face, the wrap around bruise on her right upper arm. All of these bruisings

that were present on her right leg. All of those are injuries that cannot be

explained by the fall no matter how we could envision it.

Hlavaty testified that it was not easier to fracture a child’s skull than an adult’s skull

because children’s bones have a higher water content and are more flexible than the bones of

adults. She opined that children “can withstand injury that would otherwise cause injuries in an

adult.”

Defendant presented the testimony of David Jamison, a mechanical engineer and

biomedical engineer who was qualified as an expert in biomechanics and biomedicine. Jamison

testified that he attempted to determine whether the child could have suffered multiple impacts

and incurred the multiple injuries present on the child from the type of fall described by

defendant. According to Jamison, defendant would have swung into the wall when he grabbed

the railing and the child would have swung with him since he was holding the child. Based on

how defendant claimed to have been holding the child, she could have hit the left side of her

head and left elbow on the wall during this part of the fall. Jamison testified that while this

analysis would explain the location of the child’s injuries to the left side of her head and left

elbow, he could not determine the severity of the impact and whether it would have caused

enough stress to fracture the bone because he did not have enough information to make this

calculation. Jamison stated that after hitting the wall, defendant and the child would have

continued to fall down the stairs with the back right side of the child’s head eventually striking

the floor. Jamison also could not determine the amount of force with which the child’s head

would have hit the floor. Jamison further opined that the child’s right arm bruising could have

been caused by defendant grabbing and holding onto the child as he fell. Jamison could not

explain the additional bruising to the child’s face by reference to the alleged stairway fall, but

indicated that he concluded this bruising was caused by medical personnel by relying on the

preliminary examination testimony of Hlavaty indicating that certain bruising was consistent

with handling by medical personnel.

Defendant was convicted as previously noted. This appeal ensued.

II. EXPERT OPINIONS ON “CHILD ABUSE”

Defendant first argues that he was denied a fair trial because the prosecution’s three

expert witnesses—Nigl, Hlavaty, and Dr. Marcus DeGraw4—invaded the province of the jury

when they each were permitted to improperly testify that the minor child’s injuries were the

result of child abuse, thus rendering an expert opinion on defendant’s intent as well as his guilt.

A. ISSUE PRESERVATION AND STANDARD OF REVIEW

4

DeGraw testified as an expert in general pediatrics and child abuse pediatrics.

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Defendant did not object in the trial court to any of the testimony he now challenges on

appeal, and we therefore review this unpreserved claim of error for plain error affecting

substantial rights. People v Carines, 460 Mich 750, 761-764; 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 763-764 (quotation

marks and citations omitted; alteration in original).]

B. ANALYSIS

Defendant is correct in his factual assertion that Nigl, Hlavaty, and McGraw each opined

at various points in their testimony that there were indications that the minor child’s injuries

were caused by child abuse.

With respect to Nigl, he opined at several points during his testimony that the child’s

injuries were indicative of “abuse.” However, considering Nigl’s testimony in its totality, the

clear focus of his testimony was on explaining the severity of the child’s injuries that he

observed while treating her at the hospital and, particularly, the serious nature of her head and

brain injuries.

Furthermore, Nigl opined on multiple occasions during his testimony that injuries of this

nature were not consistent with an accidental fall from a height. In doing so, Nigl explained his

reasons for reaching that conclusion, including that there was a fracture that crossed over

multiple bones in the skull rather than being confined solely to the parietal bone as was typical in

injuries caused by accidental falls, that this particular fracture was a complex fracture, that this

fracture was “widening,” that there also were multiple skull fractures, and that there was an

associated brain injury. Nigl testified that it was rare for brain injuries to occur with skull

fractures caused by accidental falls and that this “type of injury is much more consistent with the

force that I would see in a motor vehicle collision.” Nigl stated, “That level of force is not seen

in accidental trauma.” Nigl opined that considering the combination of these observed injuries

permitted a more confident conclusion that they were nonaccidental. Nigl also testified about the

life threatening nature of the child’s brain injuries that were discovered upon her admission to

the hospital. Finally, Nigl opined that defendant’s explanation for how the injuries occurred was

“very sparse” compared to the amount of information he typically received when treating an

injured child.

On cross-examination, defense counsel elicited testimony from Nigl admitting that he did

not have any information about how the impact actually occurred, that he did not have any

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training in engineering, and that he was not describing the manner of the fall through application

of engineering principles.

Turning to the testimony of Hlavaty, she concluded that the manner of death was

homicide. Hlavaty explained to the jury that the medical examiner’s definition of homicide is

that the death was caused by another person. She also opined that the older clavicle injury was

“suspicious for child abuse”5 and that inconsistencies in defendant’s explanations indicated that

there was “child abuse going on.” However, Hlavaty further explained and clarified:

A. But with regard to trying to ascertain if this could have been a stairwell

fall, because there were inconsistency [sic] and not a whole lot of information

present, we had to try and envision this from happening from every single step

and from striking any and all of the walls or surfaces in order to try and eliminate

the stairway as the way that she got her injuries.

Q. So you actually were trying to make all of those injuries that you

observed fit the scenario given?

A. Yes

Q. And were you able to do that?

A. No. While the internal fractures and the bleeding were consistent with

an impact to the left back of her head, which could have been caused by her

hitting the tile floor. There were still multiple impacts that were not explained.

The one to the left side of her head that resulted in the bruising and the hematoma,

the bruising to her face, the wrap around bruise on her right upper arm. All of

these bruisings that were present on her right leg. All of those are injuries that

cannot be explained by the fall no matter how we could envision it.

On cross-examination, Hlavaty confirmed that she did not make any determination on

intent or whether the injuries were intentionally caused to the victim. She also testified that she

could not determine how the object causing the blunt force trauma came into contact with the

child. Hlavaty indicated that she did not use any mathematical calculations or engineering

principles in her analysis. Defense counsel also elicited testimony from Hlavaty that the child’s

skull fracture and bleeding on her brain could be explained by a fall down the stairs if the left

back of the child’s head hit the tile floor. However, Hlavaty explained that even if the child’s

head bounced, that would not explain the other impact sites such as the one on the left side of the

head. She also opined that the type of the injuries to the left side of the child’s head could not be

explained by an impact with the wall.

5

Hlavaty also testified that when fractures to the inner third of the clavicle are observed in a one-

year-old child, “assuming that you can rule out the child has cancer or metabolic bone disease,

then the cause is child abuse.”

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DeGraw, the prosecution’s third expert witness, testified that the combination of the older

clavicle injury and the newer multiple blunt force injuries to the child’s head and other areas,

along with no adequate explanation for how the injuries occurred, was “highly concerning for

child abuse.” DeGraw also testified that the nature of the child’s injuries and the presence of

injuries from multiple impact points was not consistent with the explanation that was offered by

defendant. DeGraw further explained that under a scenario like the one defendant described, he

would expect that the adult also would have suffered a significant head injury. As with the other

two experts, defense counsel elicited testimony from DeGraw on cross-examination indicating

that he did not have any engineering training and did not apply engineering principles in his

analysis. DeGraw also admitted that the child’s clavicle injury might not have been evident to

her parents and that he could not rule out the possibility that such an injury was caused by

accident.

The testimony of the prosecution’s three experts was plainly erroneous to the extent that

each opined that there were indications of child abuse. While a medical expert testifying in a

case of alleged child abuse may permissibly offer an opinion that the evidence shows that the

child’s injuries were inflicted and not accidental, the expert may not opine that the inflicted

trauma constituted “child abuse” and may not offer an opinion on the accused’s intent or guilt.

People v McFarlane, 325 Mich App 507, 522-523; 926 NW2d 339 (2018).6 This Court

explained in McFarlane:

Notwithstanding the propriety of a diagnosis of inflicted trauma, we

conclude that in cases involving allegations of abuse, an expert goes too far when

he or she diagnoses the injury as “abusive head trauma” or opines that the

6

Defendant on appeal seems to also equate an expert’s opinion that the child’s injuries were

nonaccidental with an opinion that child abuse occurred, arguing that the former is just as

improper as the latter. Thus, defendant maintains that it was error for the prosecution’s experts

to offer both of these opinions. Defendant is incorrect. There is a distinction, albeit a somewhat

subtle one, between these two types of expert opinions:

[A] physician may properly offer an opinion that, when the medical evidence is

considered along with the child’s history, the child’s injuries were inflicted rather

than caused by accident or disease because a jury is unlikely to be able to assess

the medical evidence. Expressing an opinion that the trauma was inflicted or not

accidental does not impermissibly invade the province of the jury because the

expert is not expressing an opinion regarding the defendant’s guilt or whether the

defendant had a culpable state of mind, which the expert may not do. Instead, the

expert is interpreting the medical evidence and offering the opinion that the

trauma was caused by human agency, and the jury is free to reject that opinion on

the basis of the evidence adduced at trial, including a contrary opinion by another

expert. [McFarlane, 325 Mich App at 522-523 (citations omitted).]

Therefore, it was not erroneous for the prosecution’s experts to opine about whether the child’s

injuries were inconsistent with having been caused by an accidental fall down the stairs.

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inflicted trauma amounted to child abuse. The ordinary understanding of the term

“abuse”—as opposed to neglect or carelessness—implies a level of willfulness

and moral culpability that implicates the defendant’s intent or knowledge when

performing the act that caused the head trauma. An expert may not offer an

opinion on the intent or criminal responsibility of the accused. [Id. at 523.]

Furthermore, contrary to the State’s erroneous assertions on appeal, this legal principle is

not a new one. It is well established that an expert may not “render a legal conclusion regarding

whether abuse in fact occurred.” People v Beckley, 434 Mich 691, 729; 456 NW2d 391 (1990)

(opinion by BRICKLEY, J.). “The conclusion whether abuse occurred is outside the scope of

expertise, and therefore not a proper subject for expert testimony. The jury must make its own

determination from the totality of the evidence whether the complainant was . . . abused.” Id.

See also People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995), amended 450 Mich

1212 (1995) (reaffirming the holding in Beckley “that (1) an expert may not testify that the

sexual abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert

may not testify whether the defendant is guilty”).7 It almost goes without saying that in a case

such as the instant one involving charges of child abuse, an expert’s opinion that the victim’s

injuries were the product of child abuse constitutes a legal conclusion improperly couched as an

expert opinion. Therefore, the expert testimony opining about indications of child abuse was

improper and constituted plain error.

Nonetheless, defendant has not demonstrated that reversal is required because we are

convinced from our review of the record that these errors did not affect the outcome of the

proceedings. See Carines, 460 Mich at 763.

First, defendant’s theory of accident was supported at trial by the presentation of expert

testimony from a biomedical engineer to explain how the child could have incurred her various

injuries during the type of fall described by defendant. Defense counsel also conducted thorough

and effective cross-examination of the prosecution’s experts that was directed at showing their

respective lack of knowledge about the mathematical and engineering principles that could

explain how certain injuries are incurred. This cross-examination paved the way for the defense

expert in biomechanics and biomedicine to explain how the fall described by defendant could

account for the child’s injuries. Defense counsel also obtained concessions from the prosecutor’s

experts on cross-examination regarding the limitations of their opinions, specifically including

the inability to make any determinations related to how the injuries actually occurred or the

intent with which any injury could have been inflicted. Defense counsel thus effectively rebutted

the improper implications of the prosecution experts’ references to child abuse by conducting

thorough cross-examination and presenting a defense expert supporting defendant’s accident

theory.

7

Although both Beckley and Peterson involved the context of child sexual abuse, there is no

appreciable difference between prohibiting an expert from opining in the form of a legal

conclusion that “child sexual abuse” actually occurred and prohibiting an expert from opining in

the form of a legal conclusion that “child abuse” actually occurred.

-11-

Furthermore, all three prosecution experts testified that the nature of the child’s injuries

was inconsistent with being caused by an accident or the type of accidental stairway fall

described by defendant. Each provided their reasons for their respective conclusion; they noted

the location and severity of the various injuries, as well as the presence of multiple injuries from

distinct impacts. The testimony about the extreme severity of the child’s injuries was

compelling. So was testimony by the experts that injuries of that nature were unlikely to have

been caused by an accident, and that the type of fall described by defendant could not account for

all of the child’s various injuries. There was evidence that the child’s fatal injuries were incurred

between the time that Osborne left the home on June 23 and when first responders arrived at the

home on the evening of June 24. The child was solely in the care of defendant at this time.

Accordingly, we do not believe that the references to child abuse would have been information

that affected the jury’s deliberations and ultimate decision when considered in light of the

overwhelming evidence of defendant’s guilt and defense counsel’s effective mitigation of any

inappropriate prejudice that might otherwise have been caused by such improper testimony.

Defendant has therefore failed to demonstrate plain error requiring reversal.

In the alternative, defendant argues that defense counsel was ineffective for failing to

object to the improper expert opinion testimony regarding indications of “child abuse.”

A claim of ineffective assistance of counsel presents a mixed question of fact and

constitutional law. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). We review a

court’s factual findings for clear error and questions of law de novo. Id. Although defendant

preserved this issue by moving this Court to remand for purposes of an evidentiary hearing

regarding this ineffective assistance of counsel claim, see People v Sabin (On Second Remand),

242 Mich App 656, 658-659; 620 NW2d 19 (2000), we denied defendant’s motion.8 Because no

evidentiary hearing was held, our review is limited to the appellate record. Id. at 659.

“[E]stablishing ineffective assistance requires a defendant to show (1) that trial counsel’s

performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.”

People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), citing Strickland v Washington, 466

US 668, 688; 104 S Ct 205280; L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 338; 521

NW2d 797 (1994). Counsel performs deficiently if counsel’s representation was below an

objective standard of reasonableness under prevailing professional norms. Strickland, 466 US at

688-689. “Prejudice means ‘a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ ” Randolph, 502 Mich at 9,

quoting Strickland, 466 US at 694.

Although defense counsel in this case clearly operated throughout the trial in pursuit of a

trial strategy aimed at showing that the injuries were the result of an accidental fall, it does not

seem that objecting to the prosecution’s experts’ opinions that child abuse occurred would have

been inconsistent with that strategy. As previously discussed, the impropriety of such testimony

8

People v Franks, unpublished order of the Court of Appeals, entered April 17, 2019 (Docket

No. 341238).

-12-

is well-established. It does not appear that there was any legitimate strategic reason for failing to

object to this improper testimony under the circumstances of this case,9 and defense counsel

performed deficiently in this regard. Strickland, 466 US at 688-689.

However, the same considerations that led us to conclude that defendant failed to meet

the prejudice prong of the plain-error test also lead us to conclude that defendant has failed to

show that but for defense counsel’s failure to object to this evidence, there is a reasonable

probability that the outcome would have been different. Randolph, 502 Mich at 9. Because

defendant has not shown the requisite prejudice in this context, defendant has also not

demonstrated that he received ineffective assistance of counsel. Strickland, 466 US at 700

(“Failure to make the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim.”).

III. EVIDENCE OF THE HEALING CLAVICLE FRACTURE

Next, defendant challenges the trial court’s decision to allow the prosecution to introduce

Hlavaty’s testimony about the child’s four-week-old healing clavicle fracture. Defendant argues

that there was no evidence showing that defendant caused the child’s older clavicle injury and

that Hlavaty’s testimony about the clavicle injury was improper prior bad acts evidence that was

inadmissible under both MRE 404(b)10 and MCL 768.27b.11

A. ISSUE PRESERVATION AND STANDARD OF REVIEW

Defendant preserved12 this issue through a pretrial motion opposing the prosecution’s

notice of its intent to introduce other-acts evidence under MRE 404(b) and MCL 768.27b; the

trial court denied defendant’s motion with respect to Hlavaty’s testimony.

9

We acknowledge that under some circumstances, there may be reasonable strategic reasons for

deciding not to object to an obvious error and that counsel’s performance would not be deficient

in such a scenario. See Randolph, 502 Mich at 12. However, there does not appear from the

record to have been a reasonable strategic reason for the decision not to object to the improper

expert opinion testimony regarding indications of child abuse in the instant case. Regardless, as

explained in the body of this opinion, we also conclude that the performance of defense counsel

did not result in prejudice for purpose of the ineffective assistance of counsel test.

10

The recent amendment to MRE 404(b)(2) is not implicated in this appeal.

11

This statute has been amended since defendant’s trial. These amendments, which make

provisions for other acts of sexual assault in sexual assault cases, have no bearing on any of the

issues raised in this case. See 2018 PA 372. Accordingly, we simply quote from the analytically

pertinent portions of the current version of the statute in this opinion because this language has

not changed.

12

“In order to preserve the issue of the improper admission of evidence for appeal, a party

generally must object at the time of admission.” People v Knox, 469 Mich 502, 508; 674 NW2d

366 (2004).

-13-

“Preserved evidentiary rulings are reviewed for an abuse of discretion.” People v Unger,

278 Mich App 210, 216; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court

chooses an outcome that falls outside the range of reasonable and principled outcomes.” Id. at

217. However, our review is de novo if the trial court’s decision involves a preliminary question

of law, such as whether admission is precluded by a rule of evidence. People v Mardlin, 487

Mich 609, 614; 790 NW2d 607 (2010).

B. ANALYSIS

As an initial matter, it is apparent from the trial court’s written opinion and order in

which it announced its ruling on the admissibility of this testimony that the trial court did not

rely on MCL 768.27b as authority for permitting the prosecution to introduce Hlavaty’s

testimony about the healing clavicle injury. This statute provides in pertinent part that “in a

criminal action in which the defendant is accused of an offense involving domestic

violence[,] . . . evidence of the defendant’s commission of other acts of domestic violence . . . is

admissible for any purpose for which it is relevant, if it is not otherwise excluded under

Michigan rule of evidence 403.” MCL 768.27b(1). In this case, the prosecution sought to

introduce Hlavaty’s testimony about the existence of the clavicle injury and how such an injury

could be incurred, but there was no assertion in the pretrial proceedings that Hlavaty would

somehow be able to testify that defendant caused this injury. Therefore, this proposed testimony

did not involve “evidence of the defendant’s commission of other acts of domestic violence” that

could be deemed admissible under MCL 768.27b(1). The trial court’s opinion and order does

not mention the proposed testimony of Hlavaty in the section involving application of MCL

768.27b. Because there is no decision by the trial court on this particular issue for us to review,

we need not address this particular part of defendant’s appellate argument further. “Generally,

appellate review is limited to issues the trial court decided.” People v Herrick, 277 Mich App

255, 259; 744 NW2d 370 (2007).

Next, to the extent that the trial court relied on MRE 404(b) as a ground for admitting

Hlavaty’s testimony about the clavicle injury, it erred. MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,

or absence of mistake or accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the

conduct at issue in the case.

Our Supreme Court has held that the following four-part test applies to evaluating the

admissibility of other-acts evidence under MRE 404(b):

First, that the evidence be offered for a proper purpose under Rule 404(b); second,

that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the

probative value of the evidence is not substantially outweighed by unfair

prejudice; fourth, that the trial court may, upon request, provide a limiting

-14-

instruction to the jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114

(1993), amended 445 Mich 1205 (1994).]

In the context of MRE 404(b)(1), this Court has stated that evidence of the existence of a

particular fracture or injury suffered by an alleged child-abuse victim fails to satisfy the

relevancy requirement “[i]n the absence of evidence connecting the fracture to defendant.”

McFarlane, 325 Mich App at 528-530. In this case, as the prosecution admitted during the

hearing on this motion and as was borne out by Hlavaty’s actual testimony at trial, Hlavaty could

not determine exactly how the clavicle injury was incurred and could not state that defendant (or

any other particular individual for that matter) inflicted it. Although Hlavaty was able to testify

about the nature of the injury and that injuries of this type in a one-year-old child are unlikely to

have been caused by accident because of the precise location of the injury, there was no evidence

that defendant inflicted the clavicle injury. 13 Therefore, this evidence was not admissible under

MRE 404(b)(1). McFarlane, 325 Mich App at 530.

However, in its ruling on the admissibility of this evidence, the trial court also cited an

unpublished opinion of this Court14 that relied on Michigan Supreme Court precedent stating that

“evidence underlying the basis of an expert opinion” is generally admissible subject to the

relevancy requirement and MRE 403, Pickens, 446 Mich at 334-336, citing MRE 703 and MRE

705, and that “signs of past physical abuse of [a] child [are] relevant to prove that his subsequent

fatal injuries were not inflicted accidentally,” People v Knox, 469 Mich 502, 513; 674 NW2d 366

(2004). The Pickens Court reasoned that evidence underlying the basis for an expert’s opinion

“is relevant because it places the expert’s opinions into a factual context, thereby enabling the

trier of fact to determine the weight due an expert’s opinion.” Pickens, 446 Mich at 335.

In this case, the prosecution also argued at the hearing that the proposed testimony of

Hlavaty about the clavicle injury was admissible under MRE 702 and MRE 703 because it

formed part of the basis for Hlavaty’s opinion that the manner of death was homicide. Hlavaty

testified at trial consistently with this assertion.

MRE 702 provides:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the

13

Although Osborne testified that she worked 35 to 40 hours a week and that defendant watched

the child while she as at work, Osborne also testified that defendant was not the only person who

took care of the child.

14

People v Threats, unpublished per curiam opinion of the Court of Appeals, issued December

10, 2015 (Docket No. 323097).

-15-

product of reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

MRE 703 provides:

The facts or data in the particular case upon which an expert bases an

opinion or inference shall be in evidence. This rule does not restrict the discretion

of the court to receive expert opinion testimony subject to the condition that the

factual bases of the opinion be admitted in evidence hereafter.

MRE 705 provides:

The expert may testify in terms of opinion or inference and give reasons

therefor without prior disclosure of the underlying facts or data, unless the court

requires otherwise. The expert may in any event be required to disclose the

underlying facts or data on cross-examination.

In this case, Hlavaty’s testimony about the clavicle injury and the unlikelihood that it was

caused by accident was relevant for the narrow purposes of evaluating her conclusion that the

manner of the child’s death was homicide, Pickens, 446 Mich at 335, and showing that the

child’s subsequently incurred fatal injuries were not the result of accident, Knox, 469 Mich at

513. Hlavaty testified that she discovered this injury during the course of the autopsy she

performed on the child and that her opinion that the manner of death was homicide was based in

part on her conclusions about the nature of this particular injury, in addition to her conclusions

about the child’s more recent injuries. “The facts or data in the particular case upon which an

expert bases an opinion or inference shall be in evidence.” MRE 703. The relevancy of this

particular evidence was heightened in this case by defendant’s claimed defense of accident,

which gave Hlavaty’s opinion that the manner of death was homicide—as opposed to accident—

even greater significance. See MRE 401 (“ ‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”).

Turning to MRE 403, this rule states that 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.” “Rule 403 does not prohibit prejudicial evidence; only

evidence that is unfairly so.” People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).

“Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence

will be given undue or preemptive weight by the jury.” Id. Unfair prejudice refers to a situation

where (1) “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,” and (2) “it

would be inequitable to allow the proponent of the evidence to use it.” People v Mills, 450 Mich

61, 75-76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995) (quotation marks and citation

omitted).

In this case, the evidence of the clavicle fracture was probative for showing that the

child’s recent injuries were inflicted by someone because the presence of a prior nonaccidentally

-16-

incurred injury made it more likely that the subsequent, recent injuries were also not the result of

an accident. Thus, the evidence was probative for allowing the jury to evaluate the weight to

give to Hlavaty’s opinion that the manner of death was homicide, i.e., that the death was caused

by another person. The clavicle injury evidence, if limited to its proper purposes as described

above, would not be unfairly prejudicial; Hlavaty did not purport to claim that defendant caused

the prior clavicle injury, and there was no evidence connecting defendant to the infliction of that

injury. The clavicle injury merely constituted one of the many autopsy findings that informed

Hlavaty’s opinion and which she admittedly could not attribute to being caused by any particular

individual. Such a presentation of this evidence does not present a risk that jurors would weigh

the evidence “substantially out of proportion to its logically damaging effect.” Id. at 75

(quotation marks and citation omitted). Accordingly, the trial court articulated a proper basis in

its pretrial ruling for admitting this evidence.

However, the crux of defendant’s appellate argument seems to actually be that this

evidence nonetheless became unfairly prejudicial as a result of the prosecutor’s improper use of

the admitted clavicle injury evidence at trial. Defendant maintains that the prosecutor used the

clavicle evidence as improper prior bad acts evidence, citing the prosecutor’s closing arguments

that the clavicle injury was evidence of child abuse and that defendant was the individual who

caused the injury by inflicting this abuse on the child. It is improper for a prosecutor to use

evidence that there were signs of past physical abuse to the child “to convince the jury that

defendant had caused those prior injuries, despite the absence of any evidence that defendant had

committed the past abuse.” Knox, 469 Mich at 513. Our Supreme Court has explained that

[e]vidence is unfairly prejudicial when there exists a danger that marginally

probative evidence will be given undue or preemptive weight by the jury. In the

context of prior bad acts, that danger is prevalent. When a juror learns that a

defendant has previously committed the same crime as that for which he is on

trial, the risk is severe that the juror will use the evidence precisely for the

purpose that it may not be considered, that is, as suggesting that the defendant is a

bad person, a convicted criminal, and that if he “did it before he probably did it

again.” [Crawford, 458 Mich at 398 (citation omitted).]

In ruling the clavicle injury evidence admissible, the trial court expressly stated that

defendant could request an appropriate limiting instruction to the effect that there was no

evidence that the prior clavicle injury was caused by a criminal act or, if it was inflicted by a

criminal act, who committed it. It does not appear that such an instruction was given, although

the trial court did instruct the jury that it “must not convict the Defendant here solely because

you think he is guilty of other bad conduct” and that the “evidence must convince you beyond a

reasonable doubt that the Defendant committed the alleged crime or you must find him not

guilty.”15 Thus, the trial court’s pretrial ruling cannot be understood to have sanctioned the use

15

The trial court also instructed the jury as follows:

The prosecution has introduced evidence of claimed acts of domestic

violence by the Defendant, for which he is not on trial. Before you may consider

-17-

of the clavicle evidence for all of the purposes subsequently argued by the prosecutor at trial,

namely that defendant caused the clavicle injury.

Understood in this light, defendant’s appellate argument essentially amounts to a claim of

prosecutorial misconduct premised on the prosecutor’s improper expansion of the purpose for

which the clavicle evidence could permissibly be used. Defendant did not object at trial to the

statements now challenged on appeal. “Review of alleged prosecutorial misconduct is precluded

unless the defendant timely and specifically objects, except when an objection could not have

cured the error, or a failure to review the issue would result in a miscarriage of justice.” Unger,

278 Mich App at 234-235 (quotation marks and citation omitted). A defendant’s failure to

contemporaneously object and request curative instructions at the trial court level in response to

allegedly improper prosecutorial statements results in plain error review on appeal. Id. at 235.

“[W]e cannot find error requiring reversal where a curative instruction could have alleviated any

prejudicial effect.” Id. (quotation marks and citation omitted).

In this case, as previously discussed, the clavicle injury evidence was not admissible as

other-acts evidence under MRE 404(b)(1) because there was no evidence linking defendant as

the cause of this prior injury, even though the clavicle injury evidence was admissible as part of

the underlying basis for Hlavaty’s expert opinion.16 Thus, it was error for the prosecutor to

attempt to use the clavicle injury evidence for an improper, inadmissible purpose after the trial

court had ruled the evidence admissible for a different, more limited purpose. However, had

defendant timely objected, a suitable curative instruction could have been given instructing the

jury to only consider the evidence for its narrow, proper purpose. This would have cured the

impropriety. Accordingly, defendant has not shown error requiring reversal on this ground.

Unger, 278 Mich App at 235. “Curative instructions are sufficient to cure the prejudicial effect

of most inappropriate prosecutorial statements, and jurors are presumed to follow their

instructions.” Id. (citation omitted).

such alleged acts as evidence against the Defendant, you must find that the

Defendant actually committed such act.

If you find that the Defendant did commit those acts, you may consider

them in deciding if the Defendant committed the offenses for which he is now on

trial.

By arguing during closing that defendant caused the prior clavicle injury, the prosecutor

essentially characterized the prior clavicle injury evidence as evidence of prior acts of domestic

violence, see MCL 768.27b(6)(a)(i), although without any evidence that defendant committed an

act causing the clavicle injury. A prosecutor may argue reasonable inferences from the evidence

but “may not argue facts not in evidence or mischaracterize the evidence presented.” People v

Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001).

16

Evidence may be admissible for one purpose but not admissible for another purpose. MRE

105.

-18-

IV. EVIDENCE OF UNCHARGED INSTANCES OF DOMESTIC VIOLENCE

Next, defendant argues that the trial court erred by admitting evidence that defendant

previously committed acts of domestic violence against Osborne that were never reported and for

which he was never charged with a crime. This evidence was presented at trial through the

testimony of Osborne and one of Osborne’s coworkers. Osborne testified that defendant had

slapped her “a few times,” that she did not remember many of these physical assaults because

she had “blocked them out,” and that there had been “at least over 50” physically abusive

incidents during their four-year relationship. She reported that she had bruising on her neck from

an incident where defendant hit her and held her down on the bed around the neck, as well as

bruises on her face from another incident. She had told a coworker of the violence. The

coworker testified that she had picked Osborne up from home after a fight with defendant; the

coworker observed bruises on Osborne’s neck and eye, and she reported that Osborne was

crying, shaking, and distraught.

A. ISSUE PRESERVATION AND STANDARD OF REVIEW

The admissibility of this evidence was addressed in the same motions and trial court

opinion and order discussed above with respect to the clavicle injury evidence. Defendant

preserved his appellate challenge through his pretrial motion opposing the admission of this

evidence,17 which the trial court denied; the court ruled that the evidence of prior incidents of

domestic violence was admissible under both MCL 768.27b and MRE 404(b). We review

preserved evidentiary issues for an abuse of discretion, Unger, 278 Mich App at 216, but

preliminary questions of law are reviewed de novo, Mardlin, 487 Mich at 614.

B. ANALYSIS

As previously noted, the trial court determined that this evidence was admissible under

both MCL 768.27b and MRE 404(b). MCL 768.27b provides in pertinent part as follows:

(1) . . . in a criminal action in which the defendant is accused of an offense

involving domestic violence[,] . . . evidence of the defendant’s commission of

other acts of domestic violence . . . is admissible for any purpose for which it is

relevant, if it is not otherwise excluded under Michigan rule of evidence 403.

* * *

(6) As used in this section:

(a) “Domestic violence” or “offense involving domestic violence” means

an occurrence of 1 or more of the following acts by a person that is not an act of

self-defense:

17

Knox, 469 Mich at 508.

-19-

(i) Causing or attempting to cause physical or mental harm to a family or

household member.

(ii) Placing a family or household member in fear of physical or mental

harm.

* * *

(iv) Engaging in activity toward a family or household member that would

cause a reasonable person to feel terrorized, frightened, intimidated, threatened,

harassed, or molested.

(b) “Family or household member” means any of the following:

(i) A spouse or former spouse.

(ii) An individual with whom the person resides or has resided.

(iii) An individual with whom the person has or has had a child in

common.

(iv) An individual with whom the person has or has had a dating

relationship. As used in this subparagraph, “dating relationship” means frequent,

intimate associations primarily characterized by the expectation of affectional

involvement. This term does not include a casual relationship or an ordinary

fraternization between 2 individuals in a business or social context.

On appeal, defendant has not explained why he believes this evidence was not admissible

under MCL 768.27b, and he has not provided any substantive analysis on this issue. Instead,

defendant focuses on MRE 404(b) and argues that the evidence was improper propensity

evidence. Therefore, defendant has abandoned any challenge to the trial court’s decision to

admit the evidence under MCL 768.27b. “An appellant may not merely announce his position

and leave it to this Court to discover and rationalize the basis for his claims, nor may he give

only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231

Mich App 627, 640-641; 588 NW2d 480 (1998).

Moreover, to the extent that defendant appears to argue that the evidence of previous

domestic violence was nonetheless inadmissible because it was not relevant, MRE 402, or

because its probative value was substantially outweighed by a risk of unfair prejudice, MRE 403,

defendant has not shown that the trial court abused its discretion.

MRE 402 states in pertinent part that “[e]vidence which is not relevant is not admissible.”

“Relevant evidence” is that which has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” MRE 401. MRE 403 provides that 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

-20-

presentation of cumulative evidence.” These rules of evidence are also expressly incorporated

within the language of MCL 768.27b(1), quoted above.

Turning to defendant’s arguments, the fundamental premise of defendant’s general

argument against the admissibility of this evidence—that it was improperly used to show

defendant’s bad character and propensity for violence—is legally unsound with respect to

admissibility under MCL 768.27b. This statute “in certain instances expands the admissibility of

domestic-violence other-acts evidence beyond the scope permitted by MRE 404(b)(1).” People

v Mack, 493 Mich 1, 2; 825 NW2d 541 (2012). Unlike MRE 404(b)(1), “[t]he language of MCL

768.27b clearly indicates that trial courts have discretion to admit relevant evidence of other

domestic assaults to prove any issue, even the character of the accused, if the evidence meets the

standard of MRE 403.” People v Cameron, 291 Mich App 599, 609; 806 NW2d 371 (2011)

(quotation marks and citation omitted; emphasis added). “[P]rior-bad-acts evidence of domestic

violence can be admitted at trial because a full and complete picture of a defendant’s history . . .

tend[s] to shed light on the likelihood that a given crime was committed.” Id. at 610 (quotation

marks and citation omitted; ellipsis and alteration in original).

Evidence that defendant had committed previous acts of domestic violence against

Osborne tends to make it more likely that defendant would act violently toward another member

of his family, including the child victim in this case, which would in turn make it more likely that

he intentionally inflicted the child’s injuries as opposed to those injuries having been caused by

an accidental fall. Therefore, this evidence was relevant. See People v Watkins, 491 Mich 450,

470; 818 NW2d 296 (2012) (“[T]his Court has long recognized that a defendant’s character and

propensity to commit the charged offense is highly relevant because an individual with a

substantial criminal history is more likely to have committed a crime than is an individual free of

past criminal activity.”) (quotation marks and citation omitted). The language in MCL

768.27b(1) making this type of evidence “admissible for any purpose for which it is relevant”

thus clearly permits evidence of defendant’s propensity to commit the charged crime. Cameron,

291 Mich App at 609; see also Watkins, 491 Mich at 470 (recognizing that similar language in

MCL 768.27a “permits the use of evidence to show a defendant’s character and propensity to

commit the charged crime, precisely that which MRE 404(b) precludes”).

Next, admissibility of this evidence was not barred by MRE 403. In the context of

applying MRE 403 to the admissibility of evidence under MCL 768.27b, the propensity

inference arising from the other-acts evidence is to be weighed in favor of the evidence’s

probative value rather than its prejudicial effect. See Watkins, 491 Mich at 487 (explaining how

to apply MRE 403 in the context of MCL 768.27a, a statute analogous to MCL 768.27b but

involving criminal cases where the defendant is accused of committing “a listed offense against a

minor”). In this case, applying the approach set forth by our Supreme Court, the domestic

violence other-acts evidence was highly probative. There also was nothing inappropriately

inflammatory about the other-acts evidence that would have caused the jury to lose sight of the

conduct for which defendant was actually on trial, and the trial court additionally instructed the

jury with respect to the other-acts evidence that it was not to convict defendant for the charged

offenses solely on the basis of other bad conduct. Thus, there was no danger of unfair

prejudice—i.e., that marginally probative evidence would be given undue weight, Crawford, 458

Mich at 398, or that the jury would base its decision on extraneous considerations such as bias,

sympathy, anger, or shock, Cameron, 291 Mich App at 611.

-21-

Therefore, the trial court did not abuse its discretion by admitting this evidence under

MCL 768.27b. Because the evidence was admissible under MCL 768.27b, it is unnecessary for

us to address the admissibility of this evidence under MRE 404(b). People v Pattison, 276 Mich

App 613, 616; 741 NW2d 558 (2007). Defendant has not shown error requiring reversal with

respect to the admission of evidence of prior acts of domestic violence.

V. GENERAL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Next, defendant argues that defense counsel was ineffective in additional ways not

discussed above.

Our review of these issues is limited to the appellate record since there was no

evidentiary hearing. Sabin, 242 Mich App at 659. “[E]stablishing ineffective assistance requires

a defendant to show (1) that trial counsel’s performance was objectively deficient, and (2) that

the deficiencies prejudiced the defendant.” Randolph, 502 Mich at 9, citing Strickland, 466 US

at 688; Pickens, 446 Mich at 338.

First, defendant argues that defense counsel was ineffective by failing to call a medical

expert to testify and rebut the testimony of the prosecution’s three medical experts. Defendant

also maintains that it was insufficient to only call an expert in biomedicine and biomedical

engineering. Further, defendant contends that the particular expert obtained by defense counsel

was inadequate due to a lack of experience testifying in court. “An attorney’s decision whether

to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v Payne, 285

Mich App 181, 190; 774 NW2d 714 (2009). “A defendant must meet a heavy burden to

overcome the presumption that counsel employed effective trial strategy,” and the failure to call

a witness can generally “constitute ineffective assistance of counsel only when it deprives the

defendant of a substantial defense.” Id. (quotation marks and citation omitted).

In this case, although defense counsel did not present an expert in medicine, defense

counsel did call Jamison, a biomedical engineer to testify as an expert in the areas of

biomechanics and biomedicine. Defense counsel presented Jamison as an expert witness to

testify about how the child’s injuries could be explained by the type of fall described by

defendant through the application of mathematical and engineering principles. Furthermore,

defense counsel thoroughly cross-examined each of the prosecution’s experts and specifically

elicited testimony about their respective lack of training in engineering and application of

engineering principles to inform their analyses. It was clear that defense counsel’s strategy was

to show the jury that it was necessary to look to the field of engineering to explain the type of

forces and actions that could have caused the child’s injuries and whether an accidental fall could

account for those injuries. In pursuit of this strategy, defense counsel attempted to show that the

prosecution’s experts lacked the requisite knowledge to opine about whether an accidental fall

down the stairs could have caused the child’s injuries. On appeal, defendant has not identified

any medical expert who could have provided testimony that would have been helpful to the

defense. Defendant also has not explained on appeal how the expert testimony of Jamison was

harmful to the defense or, in particular, how the fact that this was Jamison’s first time testifying

in court had a negative impact on Jamison’s ability to present his expert opinion.

-22-

In essence, defendant’s appellate argument amounts to an attempt to propose an

alternative strategy that he believes should have been pursued at trial. “There are countless ways

to provide effective assistance in any given case,” and “[e]ven the best criminal defense

attorneys would not defend a particular client in the same way.” Strickland, 466 US at 689.

“We will not substitute our judgment for that of counsel on matters of trial strategy, nor will we

use the benefit of hindsight when assessing counsel’s competence.” Unger, 278 Mich App at

242-243. “The fact that the strategy chosen by defense counsel did not work does not constitute

ineffective assistance of counsel.” People v Williams, 240 Mich App 316, 332; 614 NW2d 647

(2000). Defendant has thus failed to overcome the strong presumption that defense counsel

employed sound trial strategy regarding the choice of expert witness in this case. Furthermore,

defendant has also failed to advance any argument, beyond mere assertion, that coherently

demonstrates that but for defense counsel’s strategic choices on this matter, the outcome of the

trial would have been different. Defendant has not demonstrated that he received ineffective

assistance of counsel based on counsel’s decision regarding the presentation of expert testimony.

Strickland, 466 US at 700.

Next, defendant asserts that defense counsel was ineffective for (1) failing to present

evidence “to oppose the false narrative” that defendant was “emotionless” following the incident

that led to the child’s death, (2) failing to present evidence to oppose the “false narrative”

promoted by the prosecution that defendant was faking his medical condition related to fainting

and seizures, and (3) failing to obtain and present his work records that would have shown that

he was not the child’s primary caretaker when the clavicle injury occurred. Defendant further

advances a vague, conclusory argument that defense counsel was ineffective for failing to object

to allegedly improper statements made by the prosecutor.

As an initial matter, defendant has not cited any legal authority to support his assertions

that the above actions demonstrate that he received constitutionally ineffective assistance of

counsel. These arguments are therefore abandoned. Kelly, 231 Mich App at 640-641.

Moreover, even assuming that defense counsel had taken the above actions in accordance with

defendant’s expressed viewpoint on appeal,18 defendant nonetheless has not demonstrated that

but for these supposed failures, the outcome of his trial would have been different in light of the

overwhelming evidence that the child’s multiple recent and serious injuries could not be fully

explained by an accidental fall down the stairs as claimed by defendant. Therefore, defendant

has not demonstrated that defense counsel provided ineffective assistance on this basis.

Strickland, 466 US at 700.

VI. PROSECUTORIAL MISCONDUCT

18

We note, however, that defendant did present evidence to support his contentions regarding his

medical condition. We also note that there was no evidence from which it could be determined

precisely when the clavicle was injured, so we do not see how defendant’s work records would

have established anything of value. Moreover, as discussed earlier in this opinion, there was no

evidence that defendant caused the clavicle injury.

-23-

Next, defendant argues that the prosecutor made multiple improper remarks throughout

trial constituting prosecutorial misconduct.

First, defendant argues that the prosecutor denigrated the defense in both opening

statement and closing arguments. However, as defendant admits on appeal, there was no

objection at trial to any of the statements now cited by defendant on appeal. Because a timely

objection and appropriate curative instruction would have eliminated any prejudice from these

statements, even if they constituted improper remarks, defendant is not entitled to relief based on

these statements. Unger, 278 Mich App at 235. Moreover, considering that review of these

unpreserved appellate challenges is for “outcome-determinative[] plain error,” id., defendant has

not provided any cogent rationale beyond mere assertions for how the allegedly improper

statements affected the outcome of the trial in light of the overwhelming evidence of defendant’s

guilt.

Next, defendant argues that the prosecutor improperly suggested that defendant was

“faking” with respect to his medical condition. However, this was a somewhat legitimate

inference from the evidence presented through prosecution witnesses regarding their

observations of defendant during times when he claimed he was having a syncopal episode or

some form of seizure. Prosecutors “are generally free to argue the evidence and all reasonable

inferences from the evidence as it relates to their theory of the case.” Id. at 236. Defendant

therefore has not shown that there was misconduct regarding this argument.

Defendant additionally argues that the prosecutor committed misconduct by asking a

witness whether she purchased marijuana from defendant on the day of the incident, which

defendant argues was intentionally designed to inflame the jury. At trial, defense counsel

immediately objected to this question before the witness could answer, and a discussion was held

outside the presence of the jury. The trial court sustained the objection. After the jury was

brought back into the court room, the trial court instructed the jury that there was “no evidence

whatsoever with respect to marijuana” and that the jury was to completely disregard the

question. This curative instruction was sufficient to eliminate any prejudice caused by the

prosecutor’s improper remark. “Curative instructions are sufficient to cure the prejudicial effect

of most inappropriate prosecutorial statements, and jurors are presumed to follow their

instructions.” Id. at 235 (citation omitted). Accordingly, we do not believe that the remark at

issue denied defendant a fair trial. People v Noble, 238 Mich App 647, 660; 608 NW2d 123

(1999) (stating that the test for claims of prosecutorial misconduct is “whether defendant was

denied a fair trial”).

VII. MOTION FOR A MISTRIAL

Finally, defendant argues that the trial court erred by not granting a mistrial after the

prosecutor (1) elicited testimony from Osborne that she left defendant’s name off the victim’s

birth certificate because he had outstanding warrants and (2) asked a witness whether defendant

had sold her marijuana when she visited him earlier on the day that the child victim died. The

trial court sustained defendant’s objections in each of these instances, but denied defendant’s

accompanying motions for a mistrial.

-24-

This Court reviews a trial court’s decision denying a motion for a mistrial for an abuse of

discretion. People v Dickinson, 321 Mich App 1, 18; 909 NW2d 24 (2017). “An abuse of

discretion occurs when the trial court chooses an outcome that is outside the range of principled

outcomes.” Id. “A mistrial is warranted only when an error or irregularity in the proceedings

prejudices the defendant and impairs his ability to get a fair trial.” People v Waclawski, 286

Mich App 634, 708; 780 NW2d 321 (2009) (quotation marks and citation omitted).

Defendant’s appellate challenge in this case is based on two instances during trial where

defendant moved for a mistrial. First, during Osborne’s testimony, the following exchange

occurred between the prosecutor and Osborne:

Q. Now during the time period that you lived with your mother . . . Tell

me what you relationship with the defendant was like?

A. It wasn’t very great. I had a lot of restrictions that I put on myself.

Q. What kind of restrictions were you putting on yourself?

A. I didn’t put him on [the child’s] birth certificate because he still had

warrants at the time.

Defense counsel immediately objected, the jury was excused, and defense counsel moved

for a mistrial. An extended discussion was held outside the presence of the jury, during which

the prosecutor argued that Osborne’s answer was nonresponsive to the question. The trial court

denied defendant’s motion for a mistrial and instructed the jury as follows once the jury returned

to the courtroom:

[Defense counsel] objected to the witness’s last response. I have sustained that

objection.

The witness had said in response to a question by [the prosecutor], she

didn’t put him on the birth certificate because he still had warrants.

I am striking that answer from the record. You are to disregard it,

meaning you are to consider her testimony as if that statement has never been

made. It is totally irrelevant to this proceeding.

Moreover, this is a lay witness who would have no personal knowledge

whatsoever with respect to whether or not the Defendant even had warrants. And

warrants, the Court observes, could be something as mundane as unpaid parking

tickets.

So with that, totally disregard the statement.

Next, during the testimony of a different prosecution witness who was a friend of

defendant’s, the following exchange occurred between the prosecutor and the witness during

questioning about the witness visiting defendant on the morning of June 24, 2016:

-25-

Q. What did you do?

A. I dropped off the car seat

Q. Did you smoke weed?

A. Not that I remember

Q. Did you pay him for any weed?

Defense counsel immediately objected, the jury was excused, and defense counsel again

moved for a mistrial. A discussion outside the presence of the jury ensued, and the trial court

stated:

I mean, there is no question that that was an improper question,

particularly without any foundation whatsoever as to that alleged event. I mean,

the objection should be sustained.

The trial court denied defendant’s motion for a mistrial and instructed the jury as follows upon

its return to the courtroom:

Ladies and gentlemen, I have sustained the objection to the question. “Did

you pay for the marijuana.”

I will instruct you to disregard the question, and to the extent the witness

answered or attempted to answer it, disregard her answer.

At this juncture, there is no evidence whatsoever with respect to

marijuana.

So you are to disregard it as if it wasn’t, as if you didn’t hear it.

Both instances involved isolated comments that were addressed through sufficient

curative instructions by the trial court. Defense counsel objected promptly, preventing these

incidents from becoming more damaging. The court’s curative instructions adequately made it

clear to the jurors that they were not to consider the improper comments as evidence against

defendant and, in the case of the marijuana comment, specifically noted that no evidence had

actually been introduced that defendant had used marijuana in any event. Jurors are presumed to

follow their instructions, and sufficient curative instructions can alleviate possible prejudice from

isolated, improper comments such that a mistrial is not required. Waclawski, 286 Mich App at

709-710. We conclude in this case that because of the isolated nature of the improper comments

and the adequacy of the curative instructions, defendant’s ability to get a fair trial was not

impaired. Id. at 708-710. The trial court did not abuse its discretion by denying defendant’s

motion for a mistrial.

-26-

Affirmed.

/s/ Stephen L. Borrello

/s/ Kirsten Frank Kelly

/s/ Deborah A. Servitto

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