Opinion
No. 347261
04-30-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES EDWARD BARTLETT, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 18-001868-FC Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by right his jury trial conviction of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii) (sexual penetration involving victim at least 13 years of age but less than 16 years old whom the defendant is related to by blood to the fourth degree). The trial court sentenced defendant to 9 to 40 years' imprisonment. We affirm.
This case arose from defendant's sexual abuse of his nephew. The victim testified that the sexual assaults began when he was 13 years old and continued through most of high school. The victim stated that defendant's abuse progressed from defendant's spying on him in the shower, to inappropriate sexual touches that gradually became more aggressive, and ending with digital-anal penetration. According to the victim, this progression occurred over a couple months and then repeated after a penetration. The victim testified that defendant digitally penetrated him three times during a span when he was 13 to 15 years old. The victim stated that all the abuse occurred in a bathroom, during or after a shower, and that most of the incidents took place at defendant's house on 3 Mile Road. The victim indicated that defendant would cut his hair, as he did for other family members, and afterward the victim would at times shower in the home, which is when the sexual assaults occurred.
On appeal, defendant first argues that there was insufficient evidence to prove that the victim was at least 13 years old but less than 16 years of age at the time of the alleged penetrations. More specifically, defendant contends that a couple of defendant's family members testified that they did not move to the house on 3 Mile Road until the summer of 2002, at which time the victim was already 15 years old. Defendant maintains that because the victim's own testimony indicated that digital-anal penetration did not occur until after a progression of other inappropriate sexual behavior and that this period of progression spanned a significant amount of time, the penetrations could only have occurred long after the summer of 2002 when the victim was 16 years old or older.
The victim was born in April 1987.
This Court reviews de novo the issue regarding whether there was sufficient evidence to support a conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and any reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). "All conflicts in the evidence must be resolved in favor of the prosecution." People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
To convict a defendant of CSC-I under MCL 750.520b(1)(b)(ii), the prosecutor must prove the following elements beyond a reasonable doubt: "(1) sexual penetration, (2) a victim who is at least 13 years old but less than 16 years old, and (3) a relationship by blood or affinity to the fourth degree between the victim and the defendant." People v Zajaczkowski, 493 Mich 6, 12; 825 NW2d 554 (2012). "[I]t has long been settled that a complainant's testimony regarding a defendant's commission of sexual acts is sufficient evidence to support a conviction for CSC-I." People v Bailey, 310 Mich App 703, 714; 873 NW2d 855 (2015); see also MCL 750.520h ("The testimony of a victim need not be corroborated in prosecutions under sections 520b and 520g."). Moreover, when there is evidence that conflicts with the testimony of a victim, the jury is free to believe the victim's testimony and disregard or disbelieve the conflicting evidence. People v Smith, 205 Mich App 69, 71; 517 NW2d 255 (1994).
In this case, the victim specifically testified that defendant sexually penetrated him three times and that he was about 13 years old the first time it occurred. When asked if the penetrations also happened when he was 14 years old, the victim responded that the penetrations occurred "[a]nywhere from 13 [years old] to 15 [years old], not older." The victim's explicit testimony was sufficient evidence to allow a rational jury to find that the victim was within the age range required of MCL 750.520b(1)(b)(ii) when the sexual penetrations took place.
Moreover, the victim only testified that "most of" the sexual abuse occurred at the house on 3 Mile Road; therefore, the jury could have found that a penetration occurred but not at that particular house. Also, the victim did not turn 16 years old until April 2003, so even if defendant first moved into the house on 3 Mile Road in the summer of 2002 and the sexual conduct first started then, the victim could have suffered a sexual penetration while he was still 15 years old, even if an initial period of sexual abuse did not include penetration. Further, because it was for the jurors to assess the credibility of the witnesses, they were permitted to disbelieve the testimony of defendant's family members regarding when they moved to the house on 3 Mile Road. In sum, the evidence was sufficient to support the conviction for CSC-I.
Next, defendant argues that other-acts evidence was not properly admitted against him under MCL 768.27a. One of the victim's close childhood friends, PT, testified that when he was 16 or 17 years old somebody touched the tip of his penis and said "boop" while he was lying on a couch in defendant's living room. He did not see who touched him. PT indicated that it happened around 4:00 a.m. and that he was awake but had his eyes closed. PT stated that the touch "seemed intentional," and he believed that it was defendant's voice that said "boop." PT testified that it "would be an awful coincidence" if it were not defendant, but he also admitted that he did not know for certain who touched his penis. Similarly, LA, a friend of defendant's youngest son, testified that when he was 14 years old, defendant woke him up one morning by grabbing his genitals, laughing, and walking away. LA stated that the grab was quick but not an accident. Defendant admitted that he "sack-tapped" LA after LA made a "snarky comment." We shall refer to these two acts as the genital touching incidents, both of which involved touching the clothing covering the teens' penises.
Additionally, LA testified that defendant offered to give him and his friend, EW, marijuana if they showed defendant their penises. Deputy Peter Duncan, the officer who investigated the incident, testified that defendant admitted to telling EW about some marijuana that he had confiscated while working security at a music festival. Deputy Duncan testified that according to the statement defendant gave during the investigation, EW asked defendant if he could have the marijuana, and defendant jokingly responded that EW could have some if he showed defendant his penis. LA testified that defendant gave them the marijuana and that he initially thought defendant's comment was a joke. LA stated, however, that when he went back to defendant's house the next day, defendant told LA in a "serious tone" that he still owed him. LA testified that defendant's comment about owing him made everything real and helped LA to understand the severity of the situation. We shall refer to this act as the marijuana enticement incident.
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). In this case, defendant's arguments regarding the admissibility of the marijuana enticement incident were properly preserved because defendant objected to the admission of the evidence in a motion in limine filed before trial. But defendant did not object to the admission of any additional other-acts evidence under MCL 768.27a. Therefore, defendant's arguments regarding the admissibility of the genital touching incidents were not properly preserved for appellate review.
"This Court reviews a trial court's evidentiary ruling for an abuse of discretion." People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). And a trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. "Preliminary issues of law, including the interpretation of the rules of evidence . . ., are reviewed de novo." Id. "Evidentiary error does not require reversal unless after an examination of the entire cause, it appears more probable than not that the error affected the outcome of the trial." Id. at 199. In determining whether an evidentiary error warrants reversal, this Court "should focus on the nature of the error in light of the weight and strength of the untainted evidence." People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000).
With respect to an unpreserved argument, it is reviewed under the plain-error test, which our Supreme Court in Carines, 460 Mich at 763-764, described as follows:
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 affected the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence. [Citations, quotation marks, and alterations omitted.]
MCL 768.27a(1) provides that "in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant." In People v Watkins, 491 Mich 450, 455-456; 818 NW2d 296 (2012), our Supreme Court construed MCL 768.27a:
We hold that MCL 768.27a irreconcilably conflicts with MRE 404(b), which bars the admission of other-acts evidence for the purpose of showing a defendant's propensity to commit similar acts, and that the statute prevails over the court rule because it does not impermissibly infringe on this Court's authority regarding rules of practice and procedure under Const 1963, art 6, § 5. We also hold that evidence admissible under MCL 768.27a remains subject to MRE 403, which provides that a court may exclude relevant evidence if the danger of unfair prejudice, among other considerations, outweighs the evidence's probative value. In applying the balancing test in MRE 403 to evidence admissible under MCL 768.27a, however, courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect.
Defendant first argues that while he received notice from the prosecution of its intent to introduce the marijuana enticement incident, no notice was given with respect to the genital touching incidents. MCL 768.27a(1) provides that "[i]f the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered." The prosecution claims that about three weeks before trial a detailed notice letter under MCL 768.27a was sent by e-mail to defense counsel that disclosed all of the other-acts evidence as reflected in attached police reports. The letter was not part of the lower court record, but the prosecution attached the letter to its brief on appeal. In a reply brief defendant filed, he accepts he received notice but instead uses the notice as a further basis to support a claim of ineffective assistance of counsel that we address below. Given defendant's concession on notice, we move on to defendant's next argument under MCL 768.27a.
Defendant does not dispute that CSC-I, the charged crime, is a "listed offense" for purposes of MCL 768.27a. See MCL 768.27a(2)(a); MCL 28.722(j) and (w)(iv). To the extent that the genital touching incidents might be viewed as fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e, defendant does not dispute that CSC-IV is a listed offense for purposes of MCL 768.27a. See MCL 768.27a(2)(a); MCL 28.722(j) and (u)(x). And to the extent that the marijuana enticement incident might be viewed as accosting a minor for immoral purposes, MCL 750.145a, defendant does not dispute that accosting a minor is a listed offense for purposes of MCL 768.27a. See MCL 768.27a(2)(a); MCL 28.722(j) and (u)(i).
Defendant does argue that the marijuana enticement incident did not constitute accosting a minor because there was no intent to induce or force LA and EW to commit an immoral act; rather, defendant contends he was just joking. See MCL 750.145a (statute requires proof of an "intent to induce or force [a] child . . . to commit an immoral act"); People v Kowalski, 489 Mich 488, 499; 803 NW2d 200 (2011). With respect to other-acts evidence under MCL 768.27a, the prosecution need not prove that the defendant was convicted of committing the other act. People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008). The prosecution must present substantial evidence that the other act was committed. See People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982) (examining MCL 768.27). Although LA initially believed that defendant's request to have LA and EW show him their penises in exchange for the marijuana was a joke, LA testified that the request became "very real," and he understood the severity of the situation when defendant, "in a serious tone," later told him, " 'remember you still owe me.' " Indeed, LA took defendant's comments so seriously that he never returned to defendant's house after the incident. Therefore, LA's testimony regarding the marijuana enticement incident was adequate evidence to show that defendant intended to induce LA and EW to commit an immoral act.
With respect to the genital touching incidents, defendant contends that there was no evidence that there was either a "sexual purpose" for his acts or to establish that PT was 16 years old or younger. CSC-IV requires proof of "sexual contact," MCL 750.520e(1); "sexual contact" is defined as a touching that is done "for the purpose of sexual arousal or gratification [or] done for a sexual purpose," MCL 750.520a(q). But "sexual contact" also encompasses touching a person in a "sexual manner for . . . [r]evenge . . . [or] [t]o inflict humiliation." MCL 750.520a(q)(i) and (ii). As indicated earlier, defendant admitted that he "sack-tapped" LA after LA made a "snarky comment." This conduct can be characterized as a touching done in a sexual manner for revenge or to inflict humiliation. In regard to PT, we agree there was no evidence that the touching was done for a sexual purpose, done for sexual arousal or gratification, or done in a sexual manner for revenge or to inflict humiliation. Moreover, PT did not see who touched him and ultimately could not say for certain who committed the act. Indeed, it becomes quite clear in reviewing his testimony that PT only came to the conclusion that it was defendant who touched him after he learned about the victim's accusations. PT had no independent recollection that it was defendant. PT apparently believed that because defendant sexually abused the victim, it must have been defendant who touched him. We are not prepared to accept this circular reasoning of identification. There was a lack of substantial evidence that defendant committed CSC-IV against PT and that evidence should not have been admitted.
Defendant next argues that the other-acts evidence should not have been admitted because it was irrelevant given all of the dissimilarities between the other acts and the charged conduct. According to defendant, the other acts were different because they did not involve digital-anal penetration; they were not done in secret; the acts did not entail relatives; they were brief, nonsexual, and done over clothing; the acts did not include using a shower, and they involved, in part, marijuana. Defendant further contends that the probative value of the other-acts evidence was substantially outweighed by the danger of unfair prejudice, MRE 403, where it had minimal probative value because of the dissimilarities and where the lapse of time between the other acts and the charged conduct was much too long.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403. In Watkins, 491 Mich at 486, the Court discussed the interrelationship between MRE 403 and MCL 768.27a:
Our conclusion that other-acts evidence admissible under MCL 768.27a remains subject to MRE 403 gives rise to the question of proper application. As with any balancing test, MRE 403 involves two sides of a scale—a probative side and a prejudicial side. Propensity evidence is prejudicial by nature, and it is precisely the danger of prejudice that underlies the ban on propensity evidence in MRE 404(b). Yet were a court to apply MRE 403 in such a way that other-acts evidence in cases involving sexual misconduct against a minor was considered on the prejudicial side of the scale, this would gut the intended effect of MCL 768.27a, which is to allow juries to consider evidence of other acts the defendant committed to show the defendant's character and propensity to commit the charged crime. To weigh the propensity inference derived from other-acts evidence in cases involving sexual misconduct against a minor on the prejudicial side of the balancing test would be to resurrect MRE 404(b), which the Legislature rejected in MCL 768.27a.
The Supreme Court in Watkins did make clear that it was not rendering the analysis under MRE 403 meaningless, warning as follows:
This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Watkins, 491 Mich at 486-487.]
"All evidence offered by the parties is 'prejudicial' to some extent, but the fear of prejudice does not generally render the evidence inadmissible." People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995). MRE 403 prohibits the admission of marginally probative evidence that will likely be given undue weight—that is, "evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect." Id. at 75-76 (quotation marks and citation omitted).
Logical relevance implicates MRE 401 and 402 and is the "touchstone" relative to the admissibility of other-acts evidence. People v Denson, 500 Mich 385, 400-401; 902 NW2d 306 (2017). "Other-acts evidence is logically relevant if two components are present: materiality and probative value." Id. at 401. "Materiality" requires other-acts evidence to be related to a fact that is of consequence in the case, meaning that the fact sought to be proven must truly be at issue. Id. As to "probative value," "[e]vidence is probative if it tends 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." Id. at 401-402.
The genital touching incident, which not only pertains to LA given our ruling regarding PT, and the marijuana enticement incident showed that defendant had a prurient interest in male teens and their genitals. The evidence of this sexual interest in male teens revealed a character and propensity to engage in inappropriate sexual conduct and behavior with male teens. The other-acts evidence gave credence and credibility to the victim's testimony regarding the sexual abuse. Defendant focuses too heavily on comparing the other-acts evidence to the act of digital-anal penetration. The criminal act of penetration cannot be viewed in a vacuum. While the penetration formed the basis of the CSC-I charge, the victim testified about a period of progression that encompassed: defendant's entering the bathroom while the victim was showering on the pretense of handing him a towel, soap, or shampoo; defendant's spying on him in the shower; defendant's pulling back the shower curtain and talking to, looking at, and eventually touching the victim; defendant's sexually touching the victim more extensively and aggressively after the victim dried off; and defendant's eventually penetrating the victim with his fingers.
A fact of consequence in the case, given defendant's denials, was whether defendant actually engaged in these progressively more serious acts of a sexual nature, which, if established, would make it more believable that defendant ultimately committed digital-anal penetration. And the other-acts evidence made it more probable that defendant participated in these initial behaviors than without the evidence. For example, it was more probable that defendant spied on the victim in the shower upon consideration that he asked EW and LA to show him their penises in exchange for defendant's giving them marijuana. As another example, it was more probable that defendant touched the victim's penis in the shower upon consideration that defendant touched LA's penis. Because the victim became afraid and would "shut down and numb out" in the face of defendant's conduct, defendant escalated the conduct. Consequently, the only truly pertinent distinction between the situations involving the other-acts evidence and defendant's conduct in relation to the victim is that teens EW and LA responded in a manner that did not make defendant comfortable enough to escalate his sexual behavior with them. We conclude that the other-acts evidence was very probative.
Moreover, the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice. Our discussion in the preceding paragraph greatly deflates defendant's argument about the purported dissimilarities. And some of the claimed dissimilarities are of no meaningful significance, e.g., the other acts did not involve a shower. Further, the temporal proximity of the other acts to the charged crime is of no consequence in the context of this case because defendant's prurient interest in male teens, as revealed by the other-acts evidence, would not have varied due to a lapse of time. The infrequency of the other acts as compared to defendant's conduct involving the victim was more a matter of lack of opportunity; defendant was able to groom the vulnerable victim. Additionally, the other-acts evidence was extremely reliable because defendant conceded that the acts occurred. He simply dismissed their importance by claiming that they were done jokingly or innocently. Finally, the other-acts evidence was important as it gave credence to the victim's testimony. Otherwise, the case was solely one of the victim's word against defendant's denials. See Watkins, 491 Mich at 486-487.
The other-acts evidence in this case concerned defendant's subsequent acts, and he argues that because MCL 768.27a does not mention "subsequent" acts like the language in MRE 404(b) and MCL 768.27, subsequent acts are not admissible under MCL 768.27a. We disagree. MCL 768.27a(1) allows for the admission of "evidence that the defendant committed another listed offense against a minor." This plain and unambiguous language places no restriction or prohibition whatsoever on subsequent acts; rather, MCL 768.27a(1) clearly and effectively encompasses prior, contemporaneous, and subsequent acts for admission if the statute is otherwise satisfied. See People v Costner, 309 Mich App 220, 224; 870 NW2d 582 (2015) (the Legislature's intent governs the interpretation of statutes; the intent of the Legislature is expressed in the plain language of the statute; when the statutory language is plain and unambiguous, legislative intent is clearly expressed and judicial construction is neither permitted nor required). Accordingly, we reject defendant's assertion that subsequent acts are not captured by MCL 768.27a.
In sum, with respect to the other-acts evidence, we conclude that the only error was in the admission of the genital-touching incident involving PT. Assuming that the error was plain, we cannot conclude that the error was prejudicial in light of the strength of the untainted evidence. Nor is defendant actually innocent, and the error did not seriously affect the reputation, integrity, or fairness of the proceedings. Carines, 460 Mich at 763-764.
Lastly, defendant argues that trial counsel was ineffective by failing to object to the admission of the other-acts evidence discussed above, by failing to object to testimony that vouched for the credibility of the victim, and by failing to object to improper expert testimony. We disagree.
Whether counsel was ineffective presents a mixed question of fact and constitutional law, which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court recited the governing principles applicable to a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy [a] two-part test . . . . First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the counsel guaranteed by the Sixth Amendment. In so doing, the defendant must overcome a strong presumption
that counsel's performance constituted sound trial strategy. Second, the defendant must show that the deficient performance prejudiced the defense. To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. [Quotation marks and citations omitted.]An attorney's performance is deficient if the representation falls below an objective standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
First, defense counsel did object to the admission of the marijuana enticement incident. Also, evidence of the marijuana enticement incident was properly admitted, and counsel is not ineffective for failing to raise a futile and meritless objection. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Further, testimony regarding the genital touching incident involving LA was also properly admitted into evidence; consequently, defense counsel was not ineffective for failing to object to its introduction. Id. To the extent that counsel's performance was deficient for failing to object to the admission of evidence concerning the genital touching incident involving PT, defendant fails to establish the requisite prejudice in light of the untainted evidence of guilt.
Next, defendant maintains that PT and Detective Daniel Raap vouched for the victim's credibility. "[I]t is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial." People v Musser, 494 Mich 337, 349; 835 NW2d 319 (2013). Credibility determinations are to be made by the jury, not another witness. People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007).
We have already held that PT's testimony should not have been allowed and that the error did not prejudice defendant. Moreover, PT did not vouch for the victim's credibility; rather, PT merely expressed that if it were not defendant who touched his penis, it would be an awful coincidence that defendant and someone else in the house were engaged in improper sexual contact given the victim's claims about defendant's sexual abuse. PT was essentially proceeding on the assumption that the victim was telling the truth, which was why PT concluded that it must have been defendant who touched his penis even though PT was unsure who had done it. This is why PT's other-acts testimony should have been excluded, but it did not amount to vouching for the victim's credibility.
With respect to Detective Raap, defendant initially contends that he vouched for the victim's credibility when he testified that he did not attempt to obtain the victim's psychiatric records because the victim's statements did not contain any discrepancies. Detective Raap testified as follows:
Typically counseling or psychiatric type of treatment for people is considered confidential. Extremely difficult for law enforcement to get a copy of. And through my investigations I've never once had one be admissible into court.
I've never been able to obtain one in the past. And so, therefore, that report was not included in any of this. I also during evaluation of the statements provided by the victim did not see any glaring concerns for there being discrepancies or any need to go further into that.We conclude that Detective Raap was not opining that the victim was telling the truth; instead, he was simply explaining why he did not request the victim's psychiatric records. Indicating that he saw no need from the statements to obtain psychiatric records was not the equivalent of testifying that the victim was not lying.
Defendant also argues that Detective Raap vouched for the victim's credibility when he testified that the grooming process began when defendant masturbated in front of the victim. We do not view this testimony as directly vouching for the victim's credibility. Detective Raap testified that he had investigative experience and training with respect to child CSC cases, including forensic interviewing. He had familiarity with the grooming process some perpetrators employed. The challenged testimony was focused on examining the victim's claims of abuse to see if they fit within the usual steps of the grooming process. Detective Raap did not testify that the victim was telling the truth. In sum, PT and Detective Raap did not vouch for the victim's credibility. Accordingly, defense counsel was not ineffective for failing to raise futile and meritless objections. Snider, 239 Mich App at 425.
Finally, defendant maintains that trial counsel was ineffective for failing to object to some of the testimony by the prosecution's expert Thomas Cottrell. Cottrell is an expert in child sexual abuse dynamics. In People v Peterson, 450 Mich 349, 352-353; 537 NW2d 857 (1995), the Supreme Court, examining the admissibility of expert testimony in sexual abuse cases involving child victims, held as follows:
In these consolidated cases, we are asked to revisit our decision in People v Beckley, 434 Mich 691; 456 NW2d 391 (1990), and determine the proper scope of expert testimony in childhood sexual abuse cases. The question that arises in such cases is how a trial court must limit the testimony of experts while crafting a fair and equitable solution to the credibility contests that inevitably arise. As a threshold matter, we reaffirm our 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. However, we clarify our decision in Beckley and now hold that (1) an expert may testify in the prosecution's case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim's credibility.
Further, "testimony about the typical patterns of behavior exhibited by child sexual offenders" is admissible under MRE 702 to help a jury better understand a child sexual abuse case. People v Ackerman, 257 Mich App 434, 445; 669 NW2d 818 (2003).
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 product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
First, defendant claims that Cottrell engaged in improper vouching when he testified that the victim's behaviors "made sense" or did not "surprise" him. For example, when asked if he would be surprised that the victim never told anyone about the sexual abuse until after he tried to commit suicide, Cottrell stated that he would not be surprised because delayed disclosure is common and occurs for various reasons. The prosecutor also asked if it made sense that the victim delayed disclosure because he was in fear of getting into trouble, in fear of tearing the family apart, and in fear of not being believed. And Cottrell responded that "those are very common statements that adults make as they reflect back on their childhood and why they did not tell." Cottrell's testimony was offered to explain why the victim waited so long to disclose the sexual abuse. The Peterson Court held that "where there are common misperceptions regarding the behavior of the victim on which a jury may draw an incorrect inference, such as . . . delayed reporting, the prosecutor may present limited expert testimony dealing solely with the misperception." Peterson, 450 Mich at 379. Therefore, defense counsel was not ineffective for failing to raise a futile and meritless objection to this testimony. Snider, 239 Mich App at 425.
Next, defendant argues that Cottrell impermissibly testified that the death of the victim's father did not affect the victim's memory of his abuse because Cottrell was not a memory expert. Defendant complains that Cottrell effectively vouched for the credibility of the victim's memory. When asked if the death of the victim's father would have an effect on the victim's memory of the alleged sexual abuse, Cottrell responded:
I'm not seeing a direct connection to know that that would happen. It may change that metric to add is it more comfortable eventually to talk about it, that's a possibility. If part of the victim's issue was this will affect my dad or my dad won't be able to handle it, the passing of dad may change that equation to some extent. Again, disclosure typically happens when holding onto the secret is more painful than releasing the secret. And the death of an individual, change in family structure, a lot of different things can change that equation. So the death of a parent may change that equation, but I don't think it affects the actual memory, it may affect the willingness to disclose the memory.
Cottrell did not pretend to be an expert in memory; rather, he compared the death of the victim's father to an event that might impact the victim's willingness to disclose a memory of abuse, a subject upon which Cottrell was qualified as an expert. Additionally, Cottrell's testimony did not express a belief that the victim's memory was sound. Instead, he merely explained that the death of a victim's parent could potentially affect a victim's willingness to disclose memories of abuse. Because Cottrell's testimony did not rise to the level of vouching for the victim's credibility, it was properly admitted to explain the victim's behavior in delaying disclosure. Thus, counsel was not ineffective for not challenging the testimony. Snider, 239 Mich App at 425.
Next, defendant argues that Cottrell's testimony explaining why the genital touching incidents were less substantial than defendant's abuse against the victim was tantamount to opining that defendant committed all the alleged abuse. Defendant further asserts that Cottrell improperly speculated that defendant groomed others around him to make them believe that the genital touching incidents could occur accidentally. We conclude that these arguments mischaracterize Cottrell's testimony. When asked why the abuse the victim described would be more substantial than the brief genital touching incidents PT and LA described, Cottrell answered as follows:
Well, not talking to those particular people I'm not really sure. What I can tell you is that most sex offenders have a very keen sense of self-preservation in the sense of not wanting to get caught and not wanting to have the abuse revealed, so if there was an inkling that there would be resistance or there would be disclosure most sex offenders would back away and they wouldn't reapproach if they thought they would—it would be revealed.
Cottrell did not opine that defendant touched PT and LA. In fact, he specifically stated that he could not offer an opinion because he did not talk to PT or LA. And recall, defendant himself admitted that he touched LA's genitals. Moreover, Cottrell did not mention the abuse alleged by the victim, so he could not possibly have vouched for his credibility. The testimony concerned typical patterns of behavior child sexual offenders exhibit and was properly admitted. Ackerman, 257 Mich App at 445.
Cottrell further testified that if a perpetrator can establish himself "as someone who is always joking but never active, at least in the eyes of others, then it normalizes that kind of beginning grooming stage behavior, and it offers a plausible explanation as to why it's not grooming, it's just joking." This testimony about the typical patterns of behavior a child sexual offender may exhibit was admissible, id., and defense counsel was not ineffective for failing to raise a futile and meritless objection to the testimony, Snider, 239 Mich App at 425.
Finally, defendant argues that Cottrell's testimony was not admissible because it was too broad and, therefore, did not aid the jury in determining whether defendant was a sexual offender. The generalized nature of Cottrell's testimony, however, is precisely why it was admissible. See Peterson, 450 Mich at 352; Ackerman, 257 Mich App at 445. "[A]n expert may not testify whether the defendant is guilty," Peterson, 450 Mich at 352, and thus Cottrell could only offer testimony regarding "the typical patterns of behavior exhibited by child sexual offenders," Ackerman, 257 Mich App at 445. By never opining that a particular pattern of behavior was always a characteristic of someone who sexually abuses children, Cottrell provided the jury with information about typical sex offender characteristics and behaviors to aid the jurors in their analysis while properly leaving the ultimate determination of defendant's guilt for the jury to decide. Accordingly, once again, defense counsel was not ineffective by failing to raise a futile and meritless objection to the challenged testimony. Snider, 239 Mich App at 425.
We affirm.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra