Opinion
352523
09-30-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARNELL SCOTT ANDERSON, Defendant-Appellant.
UNPUBLISHED
Barry Circuit Court LC No. 2019-000223-FC
Before: Murray, C.J., and M. J. Kelly and O'Brien, JJ.
PER CURIAM.
Defendant appeals as of right from jury convictions of three counts of third-degree criminal sexual conduct (CSC-III) under MCL 750.520d(1)(d) (person related by blood or affinity to the third degree), and two counts of fourth-degree criminal sexual conduct (CSC-IV) under MCL 750.520e(1)(d) (person related by blood or affinity to the third degree). The trial court sentenced defendant to 16 to 30 years' imprisonment for each of the CSC-III convictions and to 267 days in jail for each of the CSC-IV convictions. Defendant raises a number of issues on appeal, none of which require reversal. We therefore affirm the trial court's judgment of sentence.
The jury acquitted defendant of three counts of first-degree criminal sexual conduct (CSC-I) under MCL 750.520b(1)(b) (person at least 13 but less than 16 years old), and two counts of second-degree criminal sexual conduct (CSC-II) under MCL 750.520c(1)(b) (person at least 13 but less than 16 years old). The prosecutor dismissed a fourth count of CSC-III.
A. CHOICE OF COUNSEL
Defendant first argues that the trial court abused its discretion by denying his request for an adjournment to allow his newly retained counsel to prepare for trial. Defendant asserts that the trial court's decision denied him his constitutional rights to the counsel of his choice and to present a defense. According to defendant, this error is structural and requires reversal and remand for a new trial.
This Court reviews for an abuse of discretion a trial court's decision whether to grant a continuance. People v Echavarria, 233 Mich.App. 356, 368; 592 N.W.2d 737 (1999). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Strickland, 293 Mich.App. 393, 397; 810 N.W.2d 660 (2011) (quotation marks and citation omitted).
Every criminal defendant has a constitutionally guaranteed right to the assistance of counsel. See U.S. Const, Am VI; Const 1963, art 1, § 20; People v Russell, 471 Mich. 182, 187-188; 684 N.W.2d 745 (2004). "This guaranteed right encompasses a defendant's right to effective assistance of counsel, the right to self-representation, the right of indigent defendants to have appointed counsel in felony prosecutions, and the right to choice of counsel." People v Aceval, 282 Mich.App. 379, 386; 764 N.W.2d 285 (2009) (citations omitted). However, the right to one's choice of counsel is not absolute; a court must balance a defendant's right to choice of counsel against the public's interest in the prompt and efficient administration of justice. Id. at 386-387, citing in part United States v Gonzalez-Lopez, 548 U.S. 140, 151-152; 126 S.Ct. 2557; 165 L.Ed.2d 409 (2006).
In Echavarria, 233 Mich.App. at 369, this Court identified the following factors to consider when "reviewing a trial court's decision to deny a defense attorney's motion to withdraw and a defendant's motion for an adjournment to obtain another attorney":
(1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision.
There is no dispute that defendant asserted a constitutional right to counsel of choice. See id. On the first day of trial, defendant asked the trial court for an adjournment to give his newly retained counsel (who was neither identified nor present) time to familiarize himself with the case and to prepare for trial. According to defendant, the change in attorneys was necessary to provide him with the representation that he needed. Defendant did not articulate why he thought he was not receiving the representation that he needed, but the record indicates that defendant was dissatisfied that neither of his appointed attorneys was able to negotiate a plea offer that defendant found acceptable.
Assuming that wanting to proceed with an attorney of his choice rather than with an appointed attorney is a legitimate reason for defendant to assert his right to choice-of-counsel, defendant arguably was negligent in asserting that right. Defendant was arraigned on March 12, 2019, and assigned counsel the next day. Defendant had nearly six months before his initial trial date of September 14, 2019, and four months from the first time that he rejected a plea offer, and just under six weeks from the time that he expressed a desire to fire his first appointed attorney, to obtain his choice of counsel. Therefore, we agree with the trial court that, if defendant preferred to choose his own counsel rather than accept appointed counsel, he had time to retain an attorney of his choosing before the first day of trial.
Regarding the fourth Echavarria factor, defendant accurately notes that the trial court did not find that defendant's request for an adjournment was a delaying tactic. As to the fifth factor, this Court discussed prejudice in People v Suchy, 143 Mich.App. 136, 145; 371 N.W.2d 502 (1985), explaining that:
The quantum and type of evidence or information which is needed to demonstrate prejudice is not capable of exact or precise definition. Because there are no set rules or formulas for resolving the issue of prejudice, that determination must rest upon an evaluation of the facts of each individual case. What may constitute prejudice in one case may be wholly insufficient in another.
Defendant relies on Suchy, and our Supreme Court's decision in People v Wilson, 397 Mich. 76; 243 N.W.2d 257 (1976), to argue that he did not have to point to a specific piece of evidence to show prejudice, and that a defendant is prejudiced if he loses a possible defense.
In Wilson the Court "reversed a defendant's conviction because the trial court had refused to grant the defendant a reasonable continuance in order to prepare for the testimony of expert witnesses who were endorsed on the day of trial." Suchy, 143 Mich.App. at 146-147. Wilson involved allegations of rape, a defendant who insisted that there had been consent, and a late-added expert witness who was a chemist. The Supreme Court held that because the defendant "might have lost a possible defense (i.e., no intercourse occurred) by his alleged inability to adequately cross-examine the chemist[, ]" defendant had made an adequate showing of prejudice. Wilson, 397 Mich. at 83.
In Suchy, four days before the start of the defendant's trial on charges that included first-degree murder and conspiracy to commit first-degree murder and arson, the defendant's former codefendants entered into a plea agreement in exchange for their testimony against the defendant. The codefendants' statements provided the first direct evidence against the defendant, and changed the nature of the trial through damaging allegations about the defendant's conduct and revelations of previously unknown facts, including the identity of a "hit man." The trial court denied defense counsel's motion for an adjournment to prepare for the information contained in the plea agreement. The matter proceeded to trial, and the defendant was convicted. On appeal, this Court reversed the defendant's convictions and remanded for a new trial, concluding in pertinent part that in light of the new information contained in the former codefendants' statements and the fact that the defendant obtained those statements just four days before trial, the defendant "had, within the meaning of Wilson, demonstrated prejudice." Suchy, 143 Mich.App. at 148.
The observation in Wilson that the defendant "adequately demonstrated prejudice," Wilson, 397 Mich. at 83, and this Court's observation in Suchy, that the defendant had "within the meaning of Wilson, demonstrated prejudice," Suchy, 143 Mich.App. at 147, illustrates that, although defendants are not required to prove prejudice in order to satisfy the fourth Echavarria factor, defendants are required to demonstrate that "there is reason to believe that [they] may have been prejudiced." Wilson, 397 Mich. at 83 (Levin, J., concurring). Here, defendant makes no effort to demonstrate prejudice from the trial court's denial of his motion to adjourn, and there is no record evidence that defendant was dissatisfied with his appointed attorney's trial strategy or trial preparation.
In conclusion, although defendant asserted his right to choice of counsel, he did not do so on the basis of any bona fide dispute between himself and his appointed counsel, but because of his preference for an attorney he had selected over one that was appointed. Although this is a legitimate basis for asserting one's right to choice of counsel, defendant had seven months to obtain counsel, but negligently waited until the first day of trial to seek an adjournment so that the counsel whom he had purportedly retained could prepare for trial. In addition, defendant has made no effort to show how the trial court's denial of his motion prejudiced him "within the meaning of Wilson." Id. at 147. After consideration of the Echavarria factors, and mindful of the trial court's expressed concerns, the trial court's denial of defendant's motion for an adjournment was not an abuse of its discretion.
B. FAIR-CROSS-SECTION CHALLENGE
Defendant, who is African-American, contends that the systematic exclusion of African-Americans from jury venires violates his right to equal protection, and that he established a prima facie case of the violation of the Sixth Amendment's guarantee of a defendant's right to be tried by an impartial jury drawn from a fair cross-section of the community. As a result, defendant asserts that his conviction should be reversed and the matter remanded for a new trial before a jury that meets constitutional requirements.
A "venire" is "[a] panel of persons selected for jury duty from among whom the jurors are to be chosen." Black's Law Dictionary (7th ed).
This issue comes to this Court unpreserved, meaning we review for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich. 750, 764; 597 N.W.2d 130 (1999). To prevail under plain error review, defendants must establish that error occurred, that the error was obvious, and that it affected their substantial rights. Id. at 763. An error affected substantial rights if it "affected the outcome of the proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks and citation omitted).
"The Sixth Amendment of the United States Constitution guarantees a defendant the right to be tried by an impartial jury drawn from a fair cross section of the community." People v Bryant, 491 Mich. 575, 595; 822 N.W.2d 124 (2012). In Duren v Missouri, 439 U.S. 357, 364; 99 S.Ct. 664; 58 L.Ed.2d (1979), the Court provided the following framework to evaluate a fair-cross-section challenge:
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
To make a prima facie case of a violation of the Sixth Amendment's fair-cross-section requirement, a defendant must establish all three prongs of the Duren test. Bryant, 491 Mich. at 597. Then, the burden shifts to the government to justify this "infringement by showing attainment of a fair cross-section to be incompatible with a significant state interest." Duren, 439 U.S. at 368.
It is undisputed that African-Americans "are a distinct group in the community" for purposes of determining whether there is a violation of the Sixth Amendment's fair-cross-section requirement. Therefore, defendant has established the first prong of the Duren test.
The second prong of the Duren test requires a showing that" 'representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community[.]'" Bryant, 491 Mich. at 582, quoting Duren, 439 U.S. at 364. This showing requires data on the number of African-Americans in the community and the number of African-Americans in Barry County venires, as well as statistical analyses of that data to determine whether it shows disproportionate representation. If the statistical analyses show that African-Americans are disproportionately represented in Barry County venires, then establishing the third prong of the Duren test requires defendant to demonstrate that the underrepresentation is due to the systematic exclusion of the group in the jury-selection process. See Duren, 439 U.S. at 364; Bryant, 491 Mich. at 582. To do this requires information about Barry County's jury-selection process.
Defendant provides none of the basic data, analyses, or information required to establish the second and third prongs of the Duren test. Without data on the number of African-Americans in Barry County or on Barry County venires, defendant cannot show whether African-Americans are disproportionately represented in venires. And even if African-Americans are disproportionately represented in Barry County venires, without information about Barry County's jury-selection process, defendant cannot show that any disproportionate representation results from the way the county selects its juries.
Without establishing the second and third prongs of the Duren test, defendant cannot establish a prima facie case of a violation of the Sixth Amendment's fair-cross-section requirement. Accordingly, defendant's fair-cross-section argument fails and, along with it, defendant's assertion that the trial court violated his constitutional right to equal protection.
C. DISCOVERY VIOLATIONS
Defendant also contends that the prosecution violated the rules of discovery by not timely disclosing the existence of the second cell phone that PR used to take a photo purportedly showing a bruise on her face caused by defendant, the existence of the photograph printed from that photo, and the fact that defendant owned a gun.
Although defendant objected to PR's testimony that the photograph showed a bruise caused by defendant and to Holly's testimony that the police took defendant's gun out of the attic, neither objection alleged a discovery violation. "An objection based on one ground is usually considered insufficient to preserve an appellate attack based on a different ground." People v Kimble, 470 Mich. 305, 309; 684 N.W.2d 669 (2004). Accordingly, defendant's arguments about discovery violations on the basis of the prosecution's introduction into evidence of the photograph and of information about his gun ownership are unpreserved. We review unpreserved error for plain error affecting defendant's substantial rights. Carines, 460 Mich. at 764. Defense counsel observed that he had not heard about a second cell phone before PR testified about it at trial, which is sufficient to preserve defendant's argument of a discovery violation regarding PR's second cell phone. This Court reviews "a trial court's decision regarding the appropriate remedy for a discovery violation for an abuse of discretion." People v Dickinson, 321 Mich.App. 1, 17; 909 N.W.2d 24 (2017).
MCR 6.201 controls discovery in a criminal case. People v Phillips, 468 Mich. 583, 588; 663 N.W.2d 463 (2003). MCR 6.201(A)(6) requires the prosecution to provide, on defendant's request, "a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request." The party complaining of a discovery violation must show actual prejudice. See People v Greenfield, 271 Mich.App. 442, 456 n 10; 772 N.W.2d 254 (2006).
Defendant made a demand for discovery that included a demand for copies of any photographs in the possession of the prosecuting attorney, "whether or not intended to be introduced at trial." The demand also included a request for a "description of and opportunity to inspect any tangible physical evidence that the prosecution may introduce at trial, including documents, photographs, or other paper." The photograph at issue fell within the parameters of defendant's demand for discovery and should have been disclosed to the defense. However, even if the prosecution should have disclosed the photograph, defendant has not established that actual prejudice resulted from the failure to disclose. To establish "actual prejudice" under MCR 6.508(D)(3)(b)(i)(A) defendant must show a "reasonably likely chance of acquittal" if not for the alleged error. Defendant has failed to show how, in light of PR's testimony and the corroborating testimonies and evidence, any alleged error in admitting the photograph would have affected the jury's verdict of guilty. Accordingly, defendant is not entitled to relief.
Regarding PR's second cell phone, PR testified during direct examination, and affirmed on cross-examination, that she never gave it to the prosecution because she "got rid of it." Because the prosecution could not disclose or introduce a cell phone that it did not have, the prosecution did not violate MCR 2.601(A)(6) by not disclosing the cell phone Although disclosure of the cell phone may have been a natural consequence of disclosing the photograph, nothing in MCR 2.601(A)(6) required the prosecution to disclose an item that neither the prosecution nor PR possessed. Defendant has not established a discovery violation with regard to PR's second cell phone.
The issue of defendant's gun ownership is not properly presented for appeal because it was not raised in the statement of the questions presented in defendant's appellate brief. MCR 7.212(C)(5); People v Anderson, 284 Mich.App. 11, 16; 772 N.W.2d 792 (2009). Nevertheless, his assertion of a discovery violation on the basis of the prosecution's alleged failure to disclose that defendant owned a gun is without merit. As the prosecution points out, it could hardly have come as a surprise to defendant that he owned a gun. Nor could it have come as a surprise that the prosecution knew that defendant owned a gun, considering that the prosecution's numerous plea offers included an agreement not to file felon-in-possession charges.
We conclude that defendant has failed to establish that the prosecution committed discovery violations by not disclosing that PR had a second cell phone and that defendant owned a gun. Although the prosecution should have disclosed the photograph made from the selfie PR took with her second cell phone, because defendant fails to show how this violation affected the outcome of the trial, he is not entitled to relief. Having established no discovery violations meriting relief, defendant's due-process argument also fails.
D. PREARREST AND POSTARREST SILENCE
Defendant next argues that the prosecution violated his right to due process by using his prearrest and postarrest silence as substantive evidence of his guilt. Once again, defendant is mistaken.
According to defendant the prosecutor inappropriately referred to his prearrest silence during his opening statement and closing argument. Defendant did not object to the prosecutor's comments; therefore, these arguments are unpreserved, see People v Pipes, 475 Mich. 267, 277; 715 N.W.2d 290 (2006), and are reviewed for plain error affecting defendant's substantial rights.
The prosecutor began his opening statement as follows:
Attempts were made to persuade [defendant] to "Well, give us your bank records," you know, if-because [PR] said that she used his debit card, so it was requested of him, "Tell us where your bank is; give us your bank records," and, you know, "If you didn't do it, then provide those." They never came.
The prosecutor revisited the issue in his closing argument, stating: "But that Plan B is corroboration of her recounting of the sexual abuse. That was found. Had to be done the hard way, and so Exhibit Number 3 are the bank records of [defendant] . . . ."
The prosecutor's comment in his opening statement impermissibly suggested to the jury that defendant forewent an opportunity to prove his innocence. The prosecutor's comment in his closing statement, although inoffensive in isolation, clearly harkened back to the notion that defendant could have proved his innocence by producing the requested records; the fact that he did not is evidence of his guilt. Despite the impropriety of the prosecutor's comments, defendant has given us no reason to doubt that any prejudice arising from the comments was cured by the trial court's instructions to the jury.
In its final instructions, the trial court told the jury that, when deciding the case, it could only consider evidence that had been properly admitted, which not include the lawyers' statements and arguments. The court further instructed the jury that defendant is presumed innocent and does not have to prove his innocence, and that the prosecution has the burden to prove each element of the charged crimes beyond a reasonable doubt. "Jurors are presumed to follow their instructions and instructions are presumed to cure most errors." People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003). The fact that the jury acquitted defendant of the CSC-I and CSC-II charges is convincing evidence that the jury listened to and followed the court's instructions regarding the presumption of innocence and the prosecution's burden of proof.
The second instance that defendant claims the prosecutor referred inappropriately to his prearrest silence occurred during the testimony of Detective Ingram, when the prosecutor's line of questioning prompted the detective to recount the efforts that he made to persuade defendant to provide certain bank records. Defense counsel objected to the questions, concerned that evidence of defendant's refusal to cooperate would lead to an inference of guilt. The trial court allowed the questioning to continue to see if it was going in the direction that defense counsel anticipated. A few questions later, defense counsel objected again and asked the trial court to strike the entire exchange. The trial court agreed, explaining:
Yes, I think what we have demonstrated here is that the Defendant exercised his right not to speak to the police or to say anything, which as we brought out I think in the preliminary phases of this case is perfectly within his right. So I think given those circumstances the defense's position is well taken.
The record shows that the trial court granted defendant all the relief that he requested. Defendant did not indicate then, nor has he argued on appeal, that the relief granted was inadequate. Because the trial court granted the relief requested by defendant, it is reasonable to infer that defendant approved the trial court's action, thus, extinguishing any claim of error with regard to that action. See People v Carter, 462 Mich. 206, 215; N.W.2d 144 (2000). Accordingly, there is nothing left for us to review, or any relief left to grant.
Defendant also asserts that the prosecutor violated his right to due process by using his postarrest silence as evidence of guilt. However, the "postarrest silence" to which defendant refers is his "decision to take the case to trial and not enter into a plea agreement" Defendant cites no authority for his assumption that the decision to go to trial rather than to accept a plea agreement constitutes "postarrest silence." "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 Bosca, 310 Mich.App. 1, 16; 871 N.W.2d 307 (2015).
For the foregoing reasons, we conclude that defendant has not established a due-process violation arising from the prosecutor's alleged use of his prearrest and postarrest silence.
E. OTHER-ACTS EVIDENCE
For his next argument, defendant contends that the trial court abused its discretion by admitting evidence of his drug use and gun possession. Defendant characterizes this as other-acts evidence that was relevant only to his character. Further, he asserts that the "high-volume and cumulative nature" of the evidence intensified its prejudicial effect and extinguished any reasonable doubt about defendant's guilt that the jury may have entertained. Because defendant did not object to the challenged testimony on the basis that it was impermissible MRE 404(b) evidence, this issue is unpreserved. See Kimble, 470 Mich. at 309. Plain error review applies. Carines, 460 Mich. at 763.
MRE 404(b)(1) prohibits the use of "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." Defendant argues that testimony concerning his gun ownership and his drug use was "other-acts" evidence for purposes of MRE 404(b). It was not. The only two people who testified that defendant had a gun in the attic were PR and Holly. PR briefly mentioned defendant's gun while describing what the police officers did when they came to her house, stating that they "looked in [her] room and in the attic where [defendant's] gun was . . . ." PR's testimony about the gun was not offered to prove defendant's character or to show defendant's propensity to act in conformity with that character. See MRE 404(b)(1).
Similarly, Holly's testimony was not offered to prove defendant's character or to show action in conformity therewith. See MRE 404(b)(1). The prosecutor asked Holly on redirect examination whether she provided a gun to the police, to which defendant objected on relevance and that it went beyond the scope of redirect examination. The prosecutor explained that the question was relevant because PR testified that she was scared and that she was afraid that defendant would "come back and hurt her [PR], perhaps kill her." The prosecutor's remarks indicate that Holly's testimony that defendant had a gun in the attic was not offered for the improper purpose of showing defendant's character or his propensity to act in accordance with his character, but to explain PR's fear that defendant was going to kill or hurt her after she disclosed defendant's sexual abuse.
Even if testimony about the gun was erroneously admitted, defendant has not established that the error affected the outcome of the trial. See Carines, 460 Mich. at 763. Defendant asserts that the prosecution "called several witnesses just to establish that [defendant] had a gun in the home and that [defendant] allegedly used drugs." This simply is not true. As already indicated, apart from PR's and Holly's brief testimonies about the gun, no one else mentioned it, and nothing else was said about it. Further, the prosecutor did not, as defendant asserts in his brief to this Court, devote "just about as much time to trying to prove" defendant's gun ownership as he did to proving the charges against defendant. And two isolated references to the gun, made while explaining what the police did when they responded to Holly's report of defendant's sexual abuse of PR, can hardly be described as "high-volume and cumulative."
Nor was testimony about defendant's drug use other-acts evidence under MRE 404(b). Defendant's drug use played a role in his sexual abuse of PR. PR testified that defendant first showed her his penis when he was "drunk or high," that, when defendant could not get an erection because of drug use, she would stimulate him manually or orally in an effort to help him achieve an erection, and that he once gave her drugs in a pipe. Further, defense counsel recognized that testimony referring to defendant's drug use was not improper, as is demonstrated by his statement that he did not object to references to drugs, just to "going on and on" about it.
Defendant refers to two places in the record where he claims the trial court allowed testimony about his drug use over his objections. The first is PR's testimony that, after the family moved to Hastings, she would drive defendant to Grand Rapids to get drugs. Defendant objected on the basis that this was the first he was hearing of this type of activity, and the trial court sustained defendant's objection, telling the prosecutor that he had made his point and indicating that he should move on. This example does not support defendant's assertion that the trial court admitted testimony about defendant's drug use over defendant's objections.
The second instance involved the prosecutor's use of a Children's Protective Services (CPS) report, which recorded Holly's statement that she knew about defendant's drug use about three years into their relationship, to impeach Holly's trial testimony that she did not know about defendant's drug use until this case began. Defendant objected to the line of questioning twice, and the trial court indicated both times that the prosecutor should move on. However, once the prosecutor indicated that he was using the CPS report to impeach Holly's trial testimony regarding her knowledge of defendant's drug use, the trial court agreed that that was "certainly something that can be impeached." Although the trial court admitted testimony about defendant's drug use over defense counsel's objections, defendant does not challenge the trial court's indication that the prosecution was making proper use of Holly's prior statements to impeach her contradictory trial testimony. Defendant is not entitled to relief on this issue.
F. STANDARD 4 BRIEF
Defendant submitted a Standard 4 brief in which he raised five issues, none of which are preserved or have any merit, and only three of which lend themselves to legal analysis.
1. PROSECUTORIAL MISCONDUCT
Defendant first asserts that the prosecutor violated his right to due process by using "false or perjured testimony." This Court reviews unpreserved claims of prosecutorial misconduct to determine whether the claimed error amounted to plain error that affected the defendant's substantial rights. See People v Gibbs, 299 Mich.App. 473, 482; 830 N.W.2d 821 (2013). An error affected substantial rights if it "affected the outcome of the proceedings." Carines, 460 Mich. at 763.
The factual predicate for defendant's arguments of prosecutorial misconduct is a statement made by the prosecutor during opening statements implying that two different text messages sent by defendant to PR were actually one message. Specifically, the prosecutor began his opening by stating:
"Come here." "Can I lay with you?" That came from a 49 year old man, step-dad, to a 17-year old stepdaughter. Darnell Anderson sent that text to [PR]. That particular text over Facebook Messenger occurred in the fall of last year. . . . That was the, an example of how he would request sexual interaction. But, it didn't start there.
Defendant contends that the messages "Come here" and "Can I lay with you?" were separate texts sent at different times, but the prosecutor presented them as a single text in order to sway the jury.
The opening statement provides the prosecutor with the opportunity to state the facts that he or she believes will be proved at trial. See People v Ericksen, 288 Mich.App. 192, 200; 793 N.W.2d 120 (2010). A prosecutor's statements about the facts to be proved at trial will not constitute error-even if no evidence is presented at trial-as long as the prosecutor made the statement in good faith and it did not prejudice the defendant's trial. People v Wolverton, 227 Mich.App. 72, 75-77; 574 N.W.2d 703 (1997).
Defendant does not explain how presenting his two texts as if they were one would persuade the jury of defendant's guilt any more than would presenting them as two separate texts. Although defendant implies bad faith on the part of the prosecutor when he asserts that the prosecutor intentionally misrepresented the two statements as one in order to sway the jury, the record suggests that the prosecutor's comments were true in essence if not in form. Defendant does not claim that the individual texts attributed to him are false, or that he did not send the texts to PR, or that these texts were not representative of how defendant informed PR that he wanted sex. This essential truthfulness of the individual texts weighs in favor of concluding that the prosecutor's comment was made in good faith and, therefore, does not constitute error.
Further, if the comment did constitute error, it likely was cured by the trial court's instructions that the lawyers' arguments and statements were not evidence for the purpose of determining defendant's guilt. As already indicated, "[j]urors are presumed to follow their instructions and instructions are presumed to cure most errors." Abraham, 256 Mich.App. at 279.
Lastly, even if we assume for the sake of argument that the prosecutor's comment was plain error, defendant fails to show how, considering the evidence presented at trial, the prosecutor's comment "affected the outcome of the proceedings." Carines, 460 Mich. at 763. Defendant has failed to establish prosecutorial misconduct requiring reversal.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next contends that he received ineffective assistance from defense counsel. Because defendant did not move in the trial court for a new trial or an evidentiary hearing, our review is limited to mistakes apparent from the record. See People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012).
To establish ineffective assistance of counsel, a defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and, (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Smith v Spisak, 558 U.S. 139, 149; 130 S.Ct. 676; 175 L.Ed.2d 595 (2010); People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). The defendant bears the burden to prove the factual predicate of his claim that defense counsel did not provide effective assistance. See People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999).
Defendant asserts that defense counsel rendered constitutionally deficient performance by failing to investigate, failing to get information from defendant's cell phone, and failing to call an expert witness. Defendant does not suggest what defense counsel failed to investigate, what relevant information defense counsel should have extracted from defendant's own phone, or what type of expert testimony would have benefited his case. Nor does defendant explain how defense counsel's claimed omissions prejudiced him. Our review of the record indicates that defense counsel competently represented defendant in plea negotiations, pursued a plausible defense theory, and supported that theory with the submission of pictures, social media posts, and other such evidence, the vigorous cross-examination of key prosecution witnesses, and the calling of a defense witness. There is a strong presumption that defense counsel rendered effective assistance, see People v Traver, 328 Mich.App. 418, 422; 937 N.W.2d 398 (2019), and nothing in the record convinces us that defense counsel is not entitled to that presumption. Defendant did not meet his burden to prove the factual predicate of his argument. See Hoag, 460 Mich. at 6.
Affirmed.