People
v.
Jones

This case is not covered by Casetext's citator
STATE OF MICHIGAN COURT OF APPEALSFeb 11, 2014
No. 306331 (Mich. Ct. App. Feb. 11, 2014)

No. 306331 No. 306334

02-11-2014

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WILLIAM ANTHONY JONES, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WILLIAM ANTHONY JONES, Defendant-Appellant.


UNPUBLISHED


Muskegon Circuit Court

LC No. 11-060134-FH


Muskegon Circuit Court

LC No. 11-060200-FC

Before: WHITBECK, P.J., and HOEKSTRA and GLEICHER, JJ. PER CURIAM.

In these consolidated appeals, defendant, William Anthony Jones, appeals as of right his convictions, following separate jury trials, of failing to comply with the Sex Offenders Registration Act, second offense (Docket No. 306331), and of first-degree home invasion and three counts of first-degree criminal sexual conduct during the commission of a felony (CSC I) (Docket No. 306334). The trial court sentenced Jones as a fourth-offense habitual offender to serve concurrent terms of (1) 42 months' to 15 years' imprisonment for failing to comply with the Sex Offenders Registration Act, (2) 51 to 80 years' imprisonment for each count of CSC I, and (3) 18 to 30 years' imprisonment for home invasion. We affirm.

I. FACTS


A. JONES'S HOME INVASION AND CSC I TRIAL (DOCKET NO. 306334)


1. BACKGROUND FACTS

The complainant lived in a cabin in a resort called the Glen. Lynn Glaser, one of the owners of the Glen, testified that she hired Jones to do miscellaneous maintenance jobs around the Glen's cabins. Lynn Glaser testified that she had overheard Jones tell another student that he had been convicted of a felony in Tennessee, but she later learned that the statement was untrue. Lynn Glaser admitted that she had previously described Jones as being like an adopted son to her, that she had assisted Jones in hiring a lawyer, and that her daughter was paying for Jones's lawyer.

According to the complainant, she stayed with her mother from November 14 to November 17, 2010. On November 19, 2010, the complainant's sister went into labor and the complainant stayed at the hospital until November 20, 2010. On November 20, 2010, the complainant returned to her cabin and the complainant's daughter visited until about 4:00 p.m.

2. THE SEXUAL ASSAULT

The complainant testified that she took Tylenol PM between 8:00 and 9:00 p.m. on the evening of November 20, 2010, and she fell asleep. According to the complainant, she woke early in the morning of November 21 with a man standing over her. The complainant testified in detail about multiple instances of nonconsensual sexual penetration, during which the man used lubricant that did not belong to the complainant, ejaculated on her body, and forced her to take a shower. She believed that the man had entered her cabin through the window because she could feel cold air coming from her son's bedroom while she was on her way to the shower.

The complainant testified that the room was dark and the man covered her head with a sheet and with a musty-smelling cloth. However, she testified that she believed that the man was at least six feet tall, smoked, and was African American. During the sexual assault, the man looked through her phone and asked her questions about her family. The complainant testified that the man threatened her family, covered her with a blanket, and left. The complainant testified that she waited until she could no longer hear the man, then locked the door and the windows and called the police.

During the recording of the complainant's 911 telephone call, the complainant told the operator that she had been assaulted and that she believed that the man was the maintenance man. The complainant testified that she suspected that Jones was her assaulter because he "creeped [her] out" and was the only African American man that she knew in the neighborhood.

3. THE POLICE INVESTIGATION

Police Deputies Kurt Medendorf and Amy Fekken testified that, when they arrived, the complainant was visibly upset and told them that she suspected that the maintenance man had assaulted her, and he lived in a "brick" house on the top of the nearby hill. Deputy Medendorf testified that he went to the house on the top of the hill, where the Glasers' daughter told him that Jones did not live there, but lived at 5265 Nestrom Road and drove a Ford Explorer.

According to Deputy Medendorf, he went to the Nestrom Road house, which was a "brick" house, and discovered a Ford Explorer in the driveway that had been recently driven. He "pounded" on the door to the garage, but received no answer. After obtaining a warrant, officers eventually found Jones in the guesthouse above the garage, underneath a bed and wedged into the bed frame. The officers also found an empty container of personal lubricant in a trash can.

4. PHYSICAL EVIDENCE

Detective Brian Harris testified that he looked around the cabin. Detective Harris found that a cinderblock was under the southeastern window, which was closed but had no screen. Detective Harris found the screen about 15 feet away, damaged and "oddly out of place." Detective Harris testified that the window's "louver type blinds" were damaged, broken in half, and crisscrossed. Deputy Medendorf testified that he found Jones's footprints under the window.

Lynn Glaser testified that Jones had recently cleaned spiders from around the complainant's cabin and that the blinds in the complainant's cabin had been "trashed" by a previous tenant. The complainant testified that, when she moved in to the cabin, her blinds were "in perfect order." Moser also testified that some time after the complainant moved out of the cabin, she noticed that there was a screen propped against the cabin with a cut in it.

According to Deputy Medendorf, there was a steak knife in the cup holder of the Ford Explorer's front console. Lynn Glaser testified that she let Jones borrow the truck but that the knife, which she used to cut fruit while traveling, belonged to her.

5. JONES'S INTERVIEW WITH DETECTIVE SOWLES

Detective Brent Sowles testified that he interviewed Jones. Sowles testified that Jones originally stated that he had been convicted of a felony in Tennessee, but a subsequent check revealed that he had not committed any felonies in Tennessee.

Detective Sowles testified that the first time that he asked Jones where he had been at the time of the sexual assault, Jones told him that he had spent the evening at a tavern in Muskegon, and then "hooked up" with "Melissa." Jones told Detective Sowles that he had not left the guesthouse until police arrived. At trial, Melissa Sweeney testified that she had a sexual relationship with Jones but was not with him on the night that he was arrested.

Detective Sowles testified that the second time he asked Jones if Jones had left the guesthouse, Jones claimed that he had left the guesthouse after Melissa left at around 2:30 a.m. to purchase beer at a gas station. Detective Sowles testified that a person cannot purchase beer at the gas station after 2:30 a.m.

According to Detective Sowles, after he told Jones that he was investigating an incident at one of the cabins in the Glen, Jones told him that he went to the complainant's cabin for a "booty call" and they had consensual sexual intercourse. Jones told Detective Sowles that he and the complainant had been engaged in a sexual relationship for more than a month.

6. EVIDENCE OF THE COMPLAINANT'S PRIOR RELATIONSHIP WITH JONES

Melissa Sweeney testified that beginning in October 2010, she spent about two nights a week at the guesthouse at 5265 Nestrom Road with Jones. Sweeney testified that she and Jones had a sexual relationship. According to Sweeny, three days before she left the guesthouse, she saw the complainant leaving the Nestrom Road house. Sweeney testified that the complainant's hair was "two-toned" and "blond in front." Sweeney testified that Jones's attorney had asked her to look at a picture on the Internet, and Sweeney was almost positive that the person in the picture was the person that she saw at the Nestrom Road house. The picture was admitted into evidence, and the woman in the picture has two-toned blonde hair.

The complainant's daughter testified that the picture was a photograph of the complainant taken two years before the assault. The complainant and the complainant's daughter testified that the complainant wore her hair brown with highlights at the time of the assault. In a picture taken at the hospital on November 20, 2010, the complainant's hair is brown with highlights.

7. OTHER ACTS EVIDENCE


a. COUNSEL'S MOTIONS TO EXCLUDE THE EVIDENCE

Before trial, the prosecutor stated his intent to introduce other acts testimony from two witnesses—"Jane Doe," a complainant in a previous case, and Lori Cuti—and informed the trial court it intended to present Cuti's testimony in rebuttal if Jones testified. Defense counsel challenged the admission of the evidence. The trial court ruled that Jane Doe's testimony was admissible because the similarities between Doe's and the complainant's assaults showed evidence of a common plan or scheme, but it reserved its ruling on the admissibility of Cuti's testimony.

On the first day of trial, defense counsel requested a ruling on the admission of Cuti's testimony because the ruling would "change everything in this case," including counsel's opening statement. The trial court continued to reserve its ruling on Cuti's proposed testimony. After the prosecutor's opening statement, defense counsel decided to proceed with his opening, in which he stated that Jones would testify that he and the complainant had a consensual sexual relationship and did have sexual intercourse on November 21, 2010, but had a fight.

At the opening of Jones's case, the trial court ruled that whether Cuti's testimony was admissible was "a close call," but that "there is sufficient connectability between the two situations" on the basis of the circumstances of each incident. Defense counsel said that he was "shocked" at the trial court's ruling, and stated, "Never did we think you would let that in."

In the middle of Jones's case, the prosecutor subsequently indicated that it intended to call Cuti to rebut Jones's consent defense, which he had supported with Sweeny's and Lynn Glaser's testimonies that a relationship existed between Jones and the complainant. Defense counsel asserted that Cuti's testimony was not a proper rebuttal because Sweeny and Lynn Glaser only impeached the complainant and did not offer direct evidence of consent. The trial court ruled that Cuti's testimony was proper rebuttal evidence because Lynn Glaser had testified that the knife did not belong to Jones and had testified concerning Jones's felony in Tennessee.

b. JANE DOE'S TESTIMONY

During the prosecutor's case in chief, Jane Doe testified that she lived with her mother in Muskegon Heights in August 1981. Doe testified that she had seen Jones from time to time in the neighborhood where she lived. Doe testified that she woke up one morning between 4:30 a.m. and 5:00 a.m. when a man put his hand over her mouth. Doe testified that Jones placed a knife at her throat and told her not to say anything or he would kill her. Jones then sexually assaulted her.

According to Doe, Jones had a stocking hat covering his face. She asked Jones to remove the stocking hat at one point, and he did. Doe eventually escorted Jones out of the house at his request, and then reported to her mother that she had been assaulted.

Officers who responded to the scene discovered a knife sheath on Doe's bedroom floor and found that a window was open with shoe marks beneath it on the siding of the house. Detective John Scott testified at Jones's 1981 trial that he spoke with Jones, who originally offered two different alibis, but admitted on the third interview that he had gone to Doe's house. Detective Scott testified that Jones claimed that he had consensual sexual intercourse with Doe and they had been engaged in a sexual relationship. At his trial in 1981, Jones testified that Doe was fabricating the rape allegation because Doe had seen him with another girl.

c. LORI CUTI'S TESTIMONY

During rebuttal, Cuti testified that, in 2004, Jones contacted her over the phone about test driving a vehicle that she was selling. She asked Jones to come to her house to view the vehicle. At that time, Cuti's boyfriend was not home.

According to Cuti, she drove Jones around on a test-drive because he did not have a license. During the drive, Jones told her that he had previously been convicted of a felony and made her feel uncomfortable. Cuti gave Jones a ride to his sister's house, at his request. A few days later, Jones called and asked to look at the vehicle again, but Cuti was not home. Several days after that, at about 10:00 p.m., Jones knocked on Cuti's front door and asked if she wanted to have drinks with him. Cuti told him no and not to show up again, and she slammed the door on him.

About a week and a half later, Cuti woke up around 2:00 or 3:00 a.m. because she could not breathe. She threw up her hands and her boyfriend, who was sleeping beside her, woke up and said that she had scratched his face. She went to the bathroom to get peroxide, and saw that the screen had been cut out of the bathroom window. She and her boyfriend called 911 and, in better light, it appeared to her that her boyfriend's face had been cut, not scratched. Cuti told police that she suspected Jones was the person who broke into her house.

Cuti testified that police found condoms in her bedroom that did not belong to her and her boyfriend and were not there when they had gone to bed. Kory Luker, an officer who investigated the break-in at Cuti's home, testified that the prosecutor did not charge Jones because no physical evidence tied him to the home invasion and because Cuti had identified someone else in a photographic lineup.

8. PROCEDURAL HISTORY

Before trial, defense counsel requested an in camera review of the complainant's medical records, stating that he wanted to determine whether the complainant had been diagnosed as bipolar. During voir dire, the trial court informed the jury that it may hear evidence "about psychological issues that some people may or may not have," and asked the jury whether it would be able to follow an instruction that it could not use the evidence for improper purposes. The trial court subsequently ruled that it would not allow defense counsel to review the complainant's medical records.

The prosecutor and defense counsel jointly moved for a mistrial. The prosecutor expressed concern that the jury would not expect that one of the witnesses had psychological issues and the complainant would be the witness to whom the jurors would apply their expectation. Defense counsel expressed concern that the jury was now "tainted" because it would expect to hear that a witness had psychological issues and there would be no evidence on that point. The trial court denied the parties' requests for a mistrial and, despite the trial court's invitation to submit a curative instruction, neither party did so.

Ultimately, the jury found Jones guilty of three counts of CSC I and one count of first-degree home-invasion.

B. JONES'S SEX OFFENDERS REGISTRATION ACT TRIAL (DOCKET NO. 306331)

Jones is a sex offender and is required to register his address. Detective Sowles testified that in April 2010, Jones registered his address as 2916 Baker Street, Muskegon Heights. In October 2010, Jones changed his registered address to 3319 Mona Street, Muskegon Heights. On November 16, 2010, Jones changed his registered address to 323 East Sherman Street, Muskegon Heights.

La'Keysha Hudson testified that she was living at 323 East Sherman Street from August 2010 to May 2011, and that Jones did not live with her. Jones testified that he mistakenly registered his address as 323 East Sherman Street and changed his driver's license to that address because he had previously lived there with his niece, Tina Jewitt, from September 2007 to April 2010. Jones testified that he moved back in with Jewitt in November 2010, when Jewitt was living around the corner from 323 East Sherman Street. David Wolti, who owns the property at 323 East Sherman, testified that Jewitt lived in the house from August 2007 to February 2010, but Jones did not live with her.

On November 21, 2010, Jones was arrested at 5265 Nestrom Road, Whitehall. Lynn Glaser testified that she lives part-time at her house across from the Glen and part-time at 5265 Nestrom Road. According to Lynn Glaser, she employed Jones for miscellaneous jobs at the Glen and the Nestrom Road house. The Nestrom Road house had a guesthouse above the garage where Jones spent some nights, but he did not live there full- or half-time.

Glenn Glaser, Lynn Glaser's husband, testified that Jones spent one or two nights a week at 5265 Nestrom Road but was not a full time resident. Glenn Glaser testified that Jones could not be a full-time resident because the guesthouse is not winterized.

Detective Sowles testified that he interviewed Jones after Jones was arrested. The prosecutor played a portion of Jones's interview for the jury. In the recording, Jones told Detective Sowles that he was living at 5265 Nestrom Road and that he had been living there for about six months. Jones told Detective Sowles that, before living at Nestrom Road, he had previously lived with a woman in Glen Oaks Apartments, Muskegon. At trial, Jones testified that he told Detective Sowles that he only lived at 5265 Nestrom Road "sometimes." However, in the interview recording, Jones does not use the word "sometimes."

The jury found Jones guilty of willfully failing to register as a sex offender.

II. SEX OFFENDER REGISTRATION ACT (DOCKET NO. 306331)


A. JURY INSTRUCTIONS


1. STANDARD OF REVIEW AND ISSUE WAIVER

"A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." However, a defendant may waive his or her challenge to jury instructions.

People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002); MCL 768.29; see US Const, Am VI, XIV.

A waiver is an "intentional relinquishment or abandonment of a known right." A waiver is distinct from a forfeiture, which is "'the failure to make the timely assertion of a right.'" If defense counsel affirmatively approves the trial court's jury instructions on the record, defense counsel's approval extinguishes any error.

Id. (quotation marks and citations omitted). See United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

Carter, 462 Mich at 215, quoting Olano, 507 US at 733.

2. APPLYING THE STANDARDS

Jones asserts that the trial court erred by failing to give the jury a special unanimity instruction. We conclude that Jones has waived his challenge to the jury instructions.

Counsel affirmatively approves the trial court's instructions when counsel agrees with the trial court's use of a particular instruction. Here, the trial court reviewed the final draft of the jury instructions with the prosecutor and defense counsel. Defense counsel challenged other instructions, but did not challenge the unanimity instruction. At the end of the discussion, the trial court asked, "Anything else about the jury instructions that we need to memorialize . . . ?" Defense counsel responded, "No I don't think so."

United States v Griffin, 84 F3d 912, 924 (CA 7, 1996). See Carter, 462 Mich at 215-216.

The trial court later instructed the jury that "[a] verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agrees on that verdict." The trial court then dismissed the jury to begin deliberations, and asked the parties whether there was "anything about the jury instructions . . .?" Defense counsel responded, "No."

Counsel indicated that he did not have any challenges to the trial court's instructions, including its use of the general unanimity instruction. We conclude that defense counsel's response approved of the trial court's jury instructions and constituted waiver of any challenge.

B. INEFFECTIVE ASSISTANCE OF COUNSEL


1. STANDARD OF REVIEW

A defendant's ineffective assistance of counsel claim "is a mixed question of fact and constitutional law." This Court reviews for clear error the trial court's findings of fact, and reviews de novo questions of law.

Id.

A defendant must move for a new trial or evidentiary hearing to preserve a claim that his or her counsel was ineffective. When the trial court has not conducted a hearing to determine whether a counsel was ineffective, our review is limited to mistakes apparent from the record. This Court reviews unpreserved issues for plain error affecting a defendant's substantial rights.

People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611 (2003).

2. LEGAL STANDARDS

A criminal defendant has the fundamental right to effective assistance of counsel. To prove that his defense counsel was not effective, the defendant must show that (1) defense counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that counsel's deficient performance prejudiced the defendant.

US Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984).

Strickland v Washington, 466 US 668, 690, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).

To show that counsel's performance fell below an objective standard of reasonableness, the defendant must demonstrate that "counsel made an error so serious that counsel was not functioning as an attorney[.]" A defendant was prejudiced if, but for defense counsel's errors, the result of the proceeding would have been different.

Strickland, 466 US at 687; People v Briseno, 211 Mich App 11, 16-17; 535 NW2d 559 (1995).

Pickens, 446 Mich at 312.

3. APPLYING THE STANDARDS

Jones contends that counsel was ineffective because he failed to request a special unanimity instruction. The prosecutor contends that Jones was not entitled to such an instruction. We agree with Jones that, here, trial counsel should have requested a specific unanimity instruction because the prosecutor presented materially difference evidence concerning two separate acts constituting a single offense.

Though the Fourteenth Amendment to the United States Constitution does not mandate unanimous jury verdicts for noncapital criminal prosecutors in state courts, the Michigan Constitution grants criminal defendants the right to a unanimous jury verdict. To protect this right, the trial court must properly instruct the jury concerning unanimity. The jury must unanimously agree on which acts the defendant committed. A defendant is entitled to a special unanimity instruction if

Const 1963, art 1, § 14; People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994).

Cooks, 446 Mich at 511.

People v Yarger, 193 Mich App 532, 537; 485 NW2d 119 (1992).

more than one act is presented as evidence of the actus reus of a single criminal offense. The critical inquiry is whether either party has presented evidence that materially distinguishes any of the alleged multiple acts from the others.


Cooks,
446 Mich at 512.

Here, the prosecutor alleged that Jones committed a single act—willfully failing to register as a sex offender. The prosecutor alleged that Jones committed that act in one of two ways: (1) residing at 5265 Nestrom Road without changing his address, or (2) falsely informing law enforcement that he lived at 323 East Sherman Road when he changed his address on November 16, 2010. Concerning the first act, the prosecutor provided Jones's taped interview stating that he had lived at 5265 Nestrom Road for six months. Jones claimed that he told Detective Sowles that he only lived at Nestrom Road "sometimes." Concerning the second act, the prosecutor asserted that Jones informed the registry and the Michigan Secretary of State that he was living at 323 East Sherman Road. Jones admitted that he did not live at 323 East Sherman Road, but testified that his registration of that address was an honest mistake.

Thus, the prosecutor presented different evidence concerning each of the alleged acts because the prosecutor's evidence involved two different statements by Jones at two different times. Further, Jones presented difference defenses to each of the alleged acts. We conclude that this evidence materially distinguished the two acts, and thus Jones was entitled to a special unanimity instruction.

To show that counsel's performance fell below an objective standard of reasonableness, however, the defendant must demonstrate that "counsel made an error so serious that counsel was not functioning as an attorney[.]" A party's failure to request a jury instruction can constitute trial strategy. We strongly presume that counsel rendered adequate assistance and made reasonable professional judgments. Additionally, we must affirmatively entertain the possible reasons for counsel's actions. This Court will not substitute its judgment for that of defense counsel, or review this issue with the benefit of hindsight.

Strickland, 466 US at 687; Briseno, 211 Mich App at 16-17.

See People v Gonzalez, 468 Mich 636, 644-645; 664 NW2d 159 (2003).

People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012); Strickland, 466 US at 690.

Id.; Cullen v Pinholster, 563 US ___, ___; 131 S Ct 1388, 1407; 179 L Ed 2d 557 (2011).

Despite presuming that counsel made reasonable professional judgments and affirmatively entertaining the possible reasons for counsel's actions, we are unable to posit a single logical reason for why counsel would deliberately fail to request a special unanimity instruction in this case. An instruction that the jury must unanimously agree concerning which theory of the case the prosecutor proved beyond a reasonable doubt would have been consistent with the evidence and Jones's theory of the case, and it could not have damaged Jones's case. Nor does the prosecutor provide us with any cogent reason why counsel may have failed to request this instruction. We conclude that counsel's failure to request a special unanimity instruction was objectively unreasonable.

See Gonzalez, 468 Mich at 645 (stating reasons why failing to request a jury instruction was reasonable).

However, we conclude that counsel's error did not prejudice Jones. A defendant was prejudiced if, but for defense counsel's errors, the result of the proceeding would have been different.

Pickens, 446 Mich at 312.

Here, the evidence included that Jones told Detective Sowles that he had been living at 5265 Nestrom Road for six months and, before that, he had lived at an address that he had not registered. Contrary to Jones's testimony at trial, the recording does not reflect that he told Detective Sowles that he "sometimes" lived at 5265 Nestrom Road. Further, the jury asked no questions and returned a verdict in under two hours. And when the trial court polled the jury to ensure that the verdict was unanimous, each juror affirmed that the guilty verdict was his or her own individual decision. We conclude that it is not reasonably probable that, had defense counsel requested a special unanimity instruction, the result of the proceeding would have been different.

III. HOME INVASION AND SEXUAL ASSAULT (DOCKET NO. 306334)


A. VOIR DIRE


1. STANDARD OF REVIEW

This Court reviews for an abuse of discretion the trial court's decision on a motion for a mistrial. The trial court abuses its discretion when its outcome falls outside the range of reasonable and principled outcomes.

Id.; People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

2. LEGAL STANDARDS

The trial court should only grant a mistrial for "an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial" and when "the prejudicial effect of the error cannot be removed in any other way."

Schaw, 288 Mich App at 236, quoting People v Haywood, 209 Mich App 217, 228; 530 NW2d. 497 (1995).

People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008).

3. APPLYING THE STANDARDS

Jones asserts that the trial court's question to the jury venire during voir dire deprived him of a fair trial by improperly exposing the jury venire to facts not in evidence. We disagree.

First, the trial court's hypothetical did not expose the jury to any extraneous material that likely affected its verdict. The defendant must establish that an extraneous influence "created a real and substantial possibility that [it] could have affected the jury's verdict." To do so, the defendant must show a direct connection between the extraneous influence and the jury's verdict.

People v Budzyn, 456 Mich 77, 88-89; 556 NW2d 229 (1997).

Id.

Here, the trial court asked whether the jury would be able to only use psychological evidence to the extent that it might be instructed to use it, for instance as it might relate to "somebod[y's] ability to see or hear or remember or things like that." There was nothing in the trial court's statement or instruction that specifically linked the possible psychological evidence to any witness, including Jones. At the point at which the trial court asked the jury whether it would be able to use evidence of psychological issues only for the purposes it instructed them, the trial court had informed the venire of 30 potential witnesses in the case. Thus, we conclude that the trial court did not expose the jury to any influence—much less a fact—that likely affected the verdict in any way.

Second, even assuming that the jury tied the trial court's statement to Jones, we conclude that the trial court properly denied the parties' motions for a mistrial when its jury instructions could—and did—cure any effect of the implications of the trial court's statement on its verdict.

This Court presumes that proper jury instructions cure most errors in the proceedings. Here, despite the trial court's offer to issue a specific curative instruction concerning its statement, neither party requested a curative instruction. The trial court ultimately instructed the jury that (1) it was only to return a verdict in this case on the basis of the evidence, (2) only the sworn testimony of the witnesses and the exhibits were evidence in this case, and (3) the trial court's comments, rulings, and instructions were not evidence. Thus, any potential prejudicial effect of the trial court's statement during voir dire was cured by the jury instructions.

We conclude that the trial court's decision to deny the parties' joint motion for a mistrial did not fall outside the range of reasonable and principled outcomes in this case.

B. INEFFECTIVE ASSISTANCE OF COUNSEL


1. STANDARD OF REVIEW

As discussed above, a defendant must move the trial court for a new trial or evidentiary hearing to preserve the defendant's claim that his or her counsel was ineffective. When the trial court has not conducted a hearing to determine whether a defendant's counsel was ineffective, our review is limited to mistakes apparent from the record. This Court reviews unpreserved issues for plain error affecting a defendant's substantial rights.

Ginther, 390 Mich at 443; Unger, 278 Mich App at 242.

Riley, 468 Mich at 139.

Carines, 460 Mich at 764.

2. LEGAL STANDARDS

A criminal defendant has a fundamental right to the effective assistance of counsel. To prove that his defense counsel was not effective, the defendant must show that (1) defense counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that counsel's deficient performance prejudiced the defendant.

US Const, Am VI; Const 1963, art 1, § 20; Cronic, 466 US at 654.

Strickland, 466 US at 690, 694; Pickens, 446 Mich at 302-303.

The defendant must overcome the strong presumption that defense counsel's performance constituted sound trial strategy. A defendant was prejudiced if, but for defense counsel's errors, it is reasonably probable that the result of the proceeding would have been different.

3. APPLYING THE STANDARDS

Jones contends that defense counsel was ineffective for stating during his opening that Jones would testify and summarizing Jones's expected testimony on the basis that it was foreseeable that Jones would decline to testify because the trial court would admit Cuti's testimony. We disagree.

The content of a defendant's opening statement is a matter of trial strategy. We give defense counsel wide discretion in matters of trial strategy because counsel may be required to take calculated risks to win a case. We strongly presume that counsel rendered adequate assistance and made reasonable professional judgments. We must affirmatively entertain the possible reasons for counsel's actions.

Pickens, 446 Mich at 325.

Vaughn, 491 Mich App at 670; Strickland, 466 US at 690.

Id.; Cullen, 563 US at ___; 131 S Ct at 1407.

We conclude that defense counsel's decision to mention Jones's possible testimony during his opening statement was a calculated risk and that defense counsel made a reasonable professional judgment. Defense counsel's mention of a witnesses's expected testimony in an opening statement, when counsel subsequently fails to call the witness, may constitute an unreasonable professional judgment. Trial counsel is ineffective when he or she fails to adequately investigate the witness and the legal issues surrounding the proposed testimony before mentioning the testimony in an opening statement.

See English v Romanowski, 602 F3d 714, 729 (CA 6, 2010); Ouber v Guarino, 293 F3d 19, 27 (CA 1, 2002).

English, 602 F3d at 729 (defense counsel failed to learn of witness's problems as a witness before trial); Ouber, 293 F3d at 28-29 (inexcusable for defense counsel to realize that keeping defendant off the witness stand was an option only after the first day of trial).

This is not a case in which counsel failed to investigate the witnesses or the potential legal issues surrounding the testimony that he mentioned in his opening statement. Here, defense counsel repeatedly attempted to secure a ruling on the admissibility of Cuti's testimony before trial. During arguments to the trial court, defense counsel indicated that the admissibility of Cuti's testimony would have a strong effect on his trial strategy, including his opening statement. Immediately before trial, the trial court indicated that Cuti's testimony may or may not be admissible as other acts evidence. Trial court stated that it would rule on the admissibility of Cuti's statement after the prosecutor presented a few witnesses, indicating its belief that defense counsel would reserve his opening statement. However, defense counsel indicated that he had not yet determined whether he would reserve his opening statement.

After the prosecutor's opening statement, defense counsel stated that he had decided to proceed with giving his opening statement. In his opening statement, defense counsel informed the jury that Jones would testify that the parties were engaged in a consensual sexual relationship, but had a fight on the evening of November 20, 2010. Defense counsel did not mention that Cuti would testify or summarize Cuti's potential testimony.

When the trial court, after noting that the question was close, subsequently ruled that evidence of Cuti's testimony was admissible, defense counsel expressed shock. During an offer of proof, Jones stated that he understood that if he testified, the prosecutor could cross-examine him about Cuti's incident, and informed the trial court that he had decided not to testify.

As indicated by Jones in his offer of proof, his decision to testify hinged on the admissibility of Cuti's testimony. And, as we will discuss below, the admissibility of Cuti's statement presented a close evidentiary question for the trial court. At the time of his opening statement, defense counsel's belief that the trial court would rule the statement inadmissible was reasonable. Thus, defense counsel's belief at the beginning of trial that Jones would testify was also reasonable. Further, because the trial court indicated that it would reserve its ruling on the admissibility of Cuti's testimony until after the prosecutor presented witnesses, defense counsel was faced with a dilemma—he could either make an opening statement on the basis of his anticipation of the trial court's ruling, or he could allow the prosecutor's theory of the case to go unrebutted until Jones's case in chief. Given these circumstances, we conclude that counsel's decision to mention Jones's proposed testimony during his opening statement was not objectively unreasonable.

Further, we conclude that defense counsel's statements in opening did not prejudice Jones's case. A defendant was prejudiced if, but for defense counsel's errors, the result of the proceeding would have been different.

Pickens, 446 Mich at 314.

Here, many of the facts that defense counsel stated the jury would hear from Jones were provided by other witnesses. For instance, defense counsel stated that the jury would hear that Jones took care of the complainant's cabin and regularly went onto her property. Lynn Glaser subsequently testified consistent with defense counsel's statement. Defense counsel also stated that Jones would inform the jury that he and the complainant were engaged in a consensual sexual relationship but had a fight on the evening of November 20, 2010, and that Jones would tell the jury about private details of the complainant's life. Detective Sowles testified that, during his interview with Jones, Jones explained to him that he and the complainant had had a consensual sexual relationship for about a month and a half, and Jones was able to provide him with personal information about the complainant. Thus, to the extent that the jury did not hear from Jones the facts that defense counsel mentioned in his opening, the jury heard most of these facts from other witnesses.

Further, the trial court's instructions mitigated any prejudicial effect of his failure to testify. Here, the trial court instructed the jury that Jones had an absolute right not to testify and that his decision not to do so should not affect its verdict in any way. This Court presumes that jurors follow their instructions. We conclude that it is not reasonably probable that, but for defense counsel's mention in his opening statement that Jones would testify, the result of Jones's trial would have been different.

Graves, 458 Mich at 486.

C. OTHER ACTS EVIDENCE


1. STANDARD OF REVIEW

This Court reviews for an abuse of discretion preserved challenges to the trial court's evidentiary rulings, including challenges to the trial court's admission of rebuttal evidence. The trial court abuses its discretion when its outcome falls outside the range of principled outcomes. We review de novo the preliminary questions of law surrounding the admission of evidence, such as whether a statute or rule of evidence bars admitting it.

Babcock, 469 Mich at 269.

Layher, 464 Mich at 761.

2. LEGAL STANDARDS

Generally, MRE 404(b)(1) prohibits a party from introducing evidence of another party's other crimes, wrongs, or acts to prove that person's character or propensity to engage in that type of action. However, MRE 404(b)(1) is a rule of inclusion, not exclusion. The trial court properly admits other acts evidence if the proponent establishes that (1) it is offering the evidence for a proper purpose, (2) the evidence is relevant to a fact of consequence at trial, and (3) the evidence is not substantially more prejudicial than probative.

MRE 404(b)(1); People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993).

VanderVliet, 444 Mich at 64.

People v Sabin (After Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000).

Proper purposes include

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 . . . .

Relevant evidence is evidence that has any tendency to make a fact of consequence more or less probable. But even when the evidence is relevant, the trial court may not admit it if the danger of its prejudicial effect substantially outweighs its probative value.

MRE 404(b)(1); MCL 768.27.

MRE 401; Sabin, 463 Mich at 56-57.

MRE 403; Sabin, 463 Mich at58.

3. INTERACTION OF MCL 768.27 AND MRE 404(b)

Jones contends that the trial court erred by concluding that MCL 768.27 would allow the trial court to admit evidence inadmissible under MRE 404(b). We decline to address this issue.

This Court will not reverse a conviction on the basis of a harmless error. Here, regardless of the trial court's conclusion regarding the legal effect of MCL 768.27, the trial court also addressed Jones's claims concerning the prosecutor's other-acts evidence with an analysis under MRE 404(b). The trial court alternatively determined that the other-acts evidence was admissible under the court rule. Therefore, we decline to address this issue because, even were we to address it, any error would not affect the outcome of this case.

MCR 2.613; People v Lyon, 227 Mich App 599, 612-613; 577 NW2d 124 (1998).

4. DOE'S TESTIMONY


a. PURPOSE

Jones contends that the trial court improperly admitted Doe's testimony because it did not provide evidence of a common plan or scheme. We disagree.

Other acts are admissible as part of a defendant's common scheme if the defendant's actions show "common features indicating a common design" to an extent that "indicate[s] the existence of a plan rather than a series of similar spontaneous acts[.]" Common schemes need not be identical and need only show sufficient common features to support the inference that such features are part of a general plan.

Id. at 64-65.

Jones contends that Doe's act did not contain sufficient similar features to the complainant's act. Here, dissimilarities existed between the acts, including that (1) Jones placed a knife on Doe's throat, but did not put a knife on the complainant's throat, (2) Jones eventually allowed Doe to see his face, (3) Jones did not engage in any conversation with Doe, (4) Jones did not require Doe to shower or rinse her mouth, and (5) Doe escorted Jones out of her house.

However, there were extensive similarities between the two acts. Each woman testified that Jones was a casual acquaintance from her respective neighborhood. Jones assaulted both women during the early morning hours, after entering the woman's residence through a window. Jones attempted to hide his identity from each woman: in Doe's case, by using a stocking hat, and in the complainant's case, by covering her face. Doe testified that Jones held a knife at her throat; a steak knife was discovered in the Explorer that Jones had driven to the complainant's house. Jones attempted to explain each woman's accusation by stating that he had a prior sexual relationship with her. Substantial similarities exist between these acts to indicate that Jones had a common plan for committing sexual assaults: to enter a woman's residence through a window during the early morning hours, conceal his identity, and explain the woman's subsequent accusation by saying that he had a prior sexual relationship with her. We conclude that the trial court did not err by determining that these acts were sufficiently similar to show the existence of Jones's common plan or scheme for sexually assaulting women.

b. RELEVANCE

Jones contends that Doe's testimony was irrelevant because (1) Doe testified concerning events in 1981, (2) Doe's act was not relevant to the whether the complainant consented. We disagree.

"Whether evidence which is otherwise admissible should be excluded for remoteness also rests largely in the discretion of the trial court." The "temporal proximity of other acts evidence to the charged crime" is an analytical consideration that may lead a trial court to exclude evidence when balancing its probative value and prejudicial effect under MRE 404(b). Temporal remoteness may reduce the probative value of other-acts evidence. However, there is no time limitation on the admission of evidence under MRE 404(b), and the remoteness of a prior act affects its weight, not its admissibility.

People v Oliphant, 399 Mich 472, 494-495 n 10; 250 NW2d 443 (1976) (quotation marks and citation omitted).

Id.

Here, the trial court did consider the remoteness of the offense as it related to the relevance of the evidence. The trial court determined that the remoteness of the offense did not bar its admission because Jones was in prison for 22 of the 30 years between the incidents. Here, the time gap went to the weight of the evidence, not its admissibility, given that Jones was in prison for much of the intervening time. The jury was clearly aware that Doe's testimony related to an incident in 1981. We conclude that the trial court's decision did not fall outside the reasonable and principled range of outcomes.

Though evidence that affects the credibility of the victim is generally relevant, evidence of sexual acts between the defendant and other persons is not admissible under MRE 404(b) to bolster a complainant's credibility. However, the trial court may admit other-acts evidence when a defendant's use of a common plan tends to show that it is less likely that the complainant consented to the conduct, including schemes that a defendant uses "to give the appearance of consent and make proof of nonconsent difficult." This evidence is logically relevant to show that it is more likely that the defendant committed an assault.

People v King, 297 Mich App 465, 476-477; ___ NW2d ___ (2012).

Oliphant, 399 Mich at 491. See People v Drohan, 264 Mich App 77, 84; 689 NW2d 750 (2004).

Id. at 87; Sabin, 463 Mich at 66-68. See VanderVliet, 444 Mich at 63-64, 70-71.

Here, the similarities between Doe's offense and the complainant's tended to show that the complainant did not consent to the conduct. Further, the circumstances tended to show that Jones employed a system—entrance through windows, the use of a knife and threats, and subsequent explanations that the women were engaged in prior secret relationships with Jones—to make it appear that the women did consent to the conduct. Thus, the evidence tended to show that Jones's consent defense was less likely to be true. We conclude that the trial court did not err by concluding that Doe's testimony was admissible other-acts evidence.

5. CUTI'S TESTIMONY


a. PURPOSE

Jones contends that Cuti's evidence was not admissible for a proper purpose. We disagree.

As discussed above, other acts are admissible as part of a defendant's common scheme if the defendant's actions show "common features indicating a common design" to an extent that "indicate[s] the existence of a plan rather than a series of similar spontaneous acts[.]" Here, Cuti's act was similar to the complainant's in several important respects. Cuti knew Jones as a casual acquaintance. Cuti's home was broken into in the early hours of the morning, through a window with a cut screen, as was the complainant's home. Cuti testified that she woke up unable to breathe; the complainant testified that she woke up with Jones's hand over her mouth. Cuti testified that her boyfriend's face had been cut; police officers found a steak-knife in the cupholder of Jones's vehicle.

However, Cuti's testimony differed from the complainant's in several important respects. Most importantly, Cuti was not sexually assaulted, though Cuti found condoms in her bedroom that did not belong to her. Further, Jones did not admit to being in Cuti's home and did not offer a consent explanation.

Whether Cuti's testimony provided sufficient points of similarity to indicate a common plan or scheme presented a close evidentiary question for the trial court. As the Michigan Supreme Court has repeatedly stated, "The trial court's decision on close evidentiary questions cannot by definition be an abuse of discretion." Because there were several points of similarity between Cuti's act and Doe's act, this case presents a close evidentiary question, and we conclude that the trial court did not abuse its discretion by admitting the evidence.

Layher, 464 Mich at 761 (quotation marks and citation omitted). See Sabin, 463 Mich at 67.

b. RELEVANCE

Jones first contends that the trial court erred by admitting Cuti's testimony because no direct evidence linked him to Cuti's act and, thus, the evidence was irrelevant. We disagree.

The United States Supreme Court has indicated that evidence of another act is not relevant unless "the jury can reasonably conclude that the act occurred and that the defendant was the actor." In determining whether the evidence is sufficient, the trial court must "examine[] all the evidence in the case and decide[] whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence."

Huddleston v United States, 485 US 681, 689; 108 S Ct 1496; 99 L Ed 2d 771 (1988).

Id.

Here, the conditional fact is Jones's identity as the actor. Jones contends that insufficient evidence linked him to the act because Cuti based her accusation of Jones on a hunch. However, the trial court must examine all the evidence in the case to determine whether the jury could reasonably find that Jones was the actor.

Here, the evidence in the case included that Cuti—like Doe and the complainant—was a casual acquaintance of Jones. Like the complainant, Jones made Cuti uncomfortable and she suspected him of committing the crime. Further, the similarities between Cuti's testimony and the facts in the complainant's case—detailed above—provided further circumstantial evidence that it was Jones who invaded her home. Thus, considering all the evidence in the case, the jury could reasonably find by a preponderance of the circumstantial evidence Jones was the person who invaded Cuti's home. We conclude that the trial court did not abuse its discretion by admitting the evidence.

Jones additionally argues that Cuti's evidence was irrelevant for the same reasons that Doe's evidence was irrelevant. For the same reasons as we rejected Jones's assertion as it related to Doe, we reject it as it related to Cuti. Cuti testified that she discovered condoms in her bedroom, indicating that the person who invaded her home intended to commit a sexual assault. The evidence of the similar plan—entering the home of a casual acquaintance without permission through a window with a cut screen during the early morning hours and waking the woman in her bed—are logically relevant to whether the complainant was sexually assaulted. Thus, Cuti's evidence of Jones's common plan or scheme for committing sexual assaults was relevant to show that it was less likely that the complainant consented to the conduct.

c. USE AS REBUTTAL EVIDENCE

Jones contends that the trial court erred when it determined that Cuti's testimony was proper rebuttal testimony. We disagree.

"Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same." Evidence is proper as rebuttal evidence if it is responsive to evidence introduced or theories developed in the other party's case in chief.

Figgures, 451 Mich at 399 (quotation marks and citations omitted).

Id.

We agree that the trial court erred when it admitted the evidence on the grounds that Lynn Glaser testified that the knife in the Explorer belonged to her and that she overheard Jones state that he committed a felony in Tennessee, but later learned that it was not true. Nothing in Cuti's testimony tended to contradict, explain, or disprove these statements, and it did not tend to directly weaken or impeach it. Cuti's testimony did not explain or disprove that the knife in the Explorer belonged to Lynn Glaser, nor did it illuminate the veracity of Lynn Glaser's statement that Jones did not commit a felony in Tennessee. Thus, we conclude that the trial court abused its discretion when it admitted Cuti's testimony as rebuttal testimony. Cuti's testimony was not proper rebuttal testimony, at least on the grounds stated by the trial court.

However, this Court will not reverse a verdict on the basis of a harmless error. This Court may only reverse the trial court's improper admission of evidence if "in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice."

The purpose of limiting rebuttal testimony is to "preclude the trial from turning into a trial on secondary issues," not to protect the defendant's constitutional rights. "If the evidentiary error is a nonconstitutional, preserved error, then it is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative." An error was outcome determinative if it "undermined the reliability of the verdict." This Court must evaluate the error in light of the weight and strength of the untainted evidence.

Figgures, 451 Mich at 398.

Feezel, 486 Mich at 192 (quotation marks and citation omitted).

Id. (quotation marks and citation omitted).

Id.

We conclude that this error was not more probably than not outcome determinative. The untainted evidence against Jones included that: the complainant testified in detail concerning the offense; Jones matched the description of the perpetrator; Jones's footprints were under the window; the officers found Jones hiding under his bed; Jones subsequently offered conflicting explanations for his whereabouts on the evening, including explanations that other trial testimony blatantly contradicted; the offense against the complainant was extremely similar to the previous offense that Jones perpetrated against Doe. Further, Cuti's testimony was brief, did not contain horrific details, and, for the reasons discussed above, would have been admissible as other-acts evidence in the prosecutor's case in chief. In light of the weight and strength of the untainted evidence, we are not convinced that the admission of Cuti's rebuttal testimony undermined the reliability of the verdict. Thus, we conclude that the admission of Cuti's testimony was not outcome determinative and constituted harmless error.

6. PROBATIVE VALUE AND PREJUDICIAL EFFECT

Jones asserts that the prejudicial effect of Doe's and Cuti's testimonies substantially outweighed the probative value of those testimonies. Jones bases his assertions on his prior assertions that the evidence was unreliable and used for the improper purpose of showing that Jones was a "bad seed" and that the jury likely concluded that Jones did not receive enough punishment for the Doe incident or "got away with" the Cuti incident. We disagree.

Neither "the fear of prejudice" nor the fact that the evidence is damaging renders evidence unfairly prejudicial. The prejudicial effect of the evidence substantially outweighs its probative value when evidence is only marginally probative and there is a danger that the trier of fact may give it undue or preemptive weight, or when use of the evidence is inequitable.

People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998); People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).

For the reasons described above, this evidence was probative on the issue of consent. Further, when taken together, the testimonies were more than marginally probative because the strong similarities between all three incidences tended to establish that Jones had a common plan or scheme for committing sexual assaults, which in turn tended to establish that Jones sexually assaulted the complainant because he employed the same scheme.

Additionally, the possible prejudicial effect of the evidence was mitigated by the trial court's instruction regarding the use of this evidence. Here, the trial court instructed the jury as follows:

You have heard evidence that was introduced to show that the defendant committed improper acts for which he is not on trial. If you believe this evidence you must be very careful only to consider it for certain purposes. You may only think about whether this evidence tends to show A: that the defendant had a reason to commit the crime; B: that the defendant acted purposefully, that is not by accident or mistake or because he misjudged the situation; C: that the defendant used a plan, system or characteristic scheme that he has used before or since. You must not consider this evidence for any other purpose. For example, you must not decide that it shows that the defendant is a bad person or that he is likely to commit crimes. You must not convict the defendant here because you think he is guilty of other bad conduct.

As stated above, this Court presumes that jurors follow their instructions.

Graves, 458 Mich at 486.

We conclude that the trial court did not err when it determined that the prejudicial effect of this evidence did not substantially outweigh its probative value.

D. PROSECUTORIAL MISCONDUCT


1. STANDARD OF REVIEW AND ISSUE PRESERVATION

Generally, this Court reviews de novo claims of prosecutorial misconduct. To preserve a claim of prosecutorial misconduct, the defendant must "timely and specifically" challenge the alleged misconduct before the trial court, unless an objection would not have cured the error or the error caused a miscarriage of justice. Here, Jones challenged the prosecutor's statement that Lynn Glaser did not bring in any pictures to show that her house did not have any brick on it as arguing facts not in evidence. Thus, this issue is preserved.

People v Unger (On Remand), 278 Mich App 210, 234-235; 749 NW2d 272 (2008).

However, Jones did not contend that any of the prosecutor's statements improperly (1) commented on his failure to testify, (2) denigrated the defense, or (3) implied that he had special knowledge of the facts. Thus, these issues are unpreserved. We review unpreserved claims of prosecutorial misconduct for plain error affecting the defendant's substantial rights.

2. LEGAL STANDARDS

A prosecutor can deny a defendant's right to a fair trial by making improper remarks that infringe on a defendant's constitutional rights or by making remarks that "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." The prosecutor has committed misconduct if the prosecutor abandoned his or her responsibility to seek justice and, in doing so, has denied the defendant a fair and impartial trial. We must evaluate instances of prosecutorial misconduct on a case-by-case basis, reviewing the prosecutor's comments in context.

Donnelly v DeChristoforo, 416 US 637, 643; 94 S Ct 1868 (1974). See People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995).

Id. at 64.

3. APPLYING THE STANDARDS

First, Jones contends that the prosecutor committed misconduct by arguing facts not in evidence when the prosecutor asserted that Lynn Glaser took photographs of three sides of her house, but omitted the side that had brick on it. We agree that this argument was improper, but conclude that the error did not undermine the reliability of the verdict in this case.

Here, the prosecutor argued that Lynn Glaser had only photographed three sides of her house in an attempt to mislead the jury regarding whether her house was a "brick" house:

. . . what does [Lynn Glaser] do? She takes three pictures of the house, three sides of the house. Which three sides? The three sides that don't have brick. Does the fourth side have brick? It sure does. What were they trying to pull on you? Then I asked well where are the pictures, they've been here all week. We don't have the pictures. What happened to the pictures? Why can't I show youthe pictures that Lynn Glaser was going to use to try to fool you into thinking that her house that has always had brick on it suddenly is not a brick house. . . .

Defense counsel responded that the issue was unimportant:
It's on the 911 tape when [the complainant]'s calling in, and he lives in the brick house. [The prosecutor] wants to make a big deal about the brick house. But we know the house on Nestrom is completely brick and you know as far as the pictures no pictures were ever shown to you; no pictures were ever suggested to you and, again, we're asking for straws.

In rebuttal, the prosecutor stated that defense counsel failed to address the issue:
Well I asked him a question at the end of my first [argument] and he had plenty of time to answer that. Where's those pictures? What happened to those pictures that Ms. Glaser brought here to show that her house didn't have any brick on it? What happened to them? He had a chance to answer that and he won't answer that.

Defense counsel then challenged the prosecutor's rebuttal statement on the basis that it argued facts that were not in evidence.

We agree that the trial court erred when it overruled defense counsel's objection. The prosecutor may not argue the effect of testimony that is not in evidence. On cross-examination, Lynn Glaser admitted that she had reviewed pictures of her house three or four days before trial. She testified that the pictures did not show all four sides of her house. She testified that a part of the side of her house has bricks on it. She answered "[n]o" when asked whether "the side that was left off was the side with all the bricks on it[.]" Neither party admitted or offered the pictures of Lynn Glaser's house into evidence. Lynn Glaser never testified that she brought pictures to show that her house did not have any brick on it. Thus, no testimony supported even an inference that Lynn Glaser brought pictures to trial to show that her house did not have brick on it, and we agree that the prosecutor improperly argued facts not in evidence in his rebuttal closing argument.

People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994).

Prosecutorial misconduct is a nonconstitutional error unless the misconduct violated a defendant's specific constitutional right or infected the trial with unfairness. A defendant has the burden to establish that it is more probable than not that preserved, nonconstitutional error was outcome determinative.

People v Blackmon, 280 Mich App 253, 260-261, 269; 761 NW2d 172 (2008).

Id. at 270.

Considering only the challenged statement in rebuttal that "Ms. Glaser brought [pictures] here to show that her house didn't have any brick on it," we conclude that Jones has not established that the error infected his trial with unfairness or that it was outcome determinative. At the outset, we note that the most damaging of the prosecutor's statements were contained in the prosecutor's closing argument—which Jones did not challenge below—not the statement in the prosecutor's rebuttal argument that is at issue here.

We recognize that the improper argument may have affected the jury's interpretation of Lynn Glaser's credibility as a witness. The importance of the statement was not that Lynn Glaser's house had brick on it, it was the implication that Lynn Glaser was willing to attempt to mislead the jury. However, we are not convinced that this reflection on Lynn Glaser's credibility was likely outcome determinative. The prosecutor's argument was one among a variety of arguments that Lynn Glaser might be biased in favor of Jones, including that (1) Lynn Glaser viewed Jones like an adopted son, (2) the Glasers provided Jones with housing, let him borrow a vehicle, and assisted him in securing defense counsel, (3) Lynn Glaser did not consistently testify concerning where Jones lived between his first and second trials, and (4) the complainant intended to sue Lynn Glaser for hiring Jones and an acquittal could affect the outcome of that lawsuit.

Additionally, the challenged argument was cumulative to the prosecutor's arguments in his original closing, which defense counsel did not challenge. Generally, this Court will not reverse on the basis of error that a party contributed to by plan or negligence. When challenging the statement in the prosecutor's rebuttal argument, defense counsel stated that he "let it go last time." Defense counsel's statement indicates that he made a deliberate choice to allow the prosecutor to argue in his original closing that Lynn Glaser "was going to use to try to fool you into thinking that her house that has always had brick on it suddenly is not a brick house." Given that the jury had already heard this argument in the prosecutor's original closing, the effect of its inclusion in the rebuttal statement as well was mitigated. Thus, because of the extensive, proper arguments concerning Lynn Glaser's credibility, as well as the cumulative nature of the improper argument, we conclude that the prosecutor's improper argument concerning the photographs did not likely affect the outcome of the case. Thus, the prosecutor's improper argument does not warrant reversal.

4. OTHER STATEMENTS

As noted above, the remainder of Jones's challenges to the prosecutor's closing statements are unpreserved. Thus, our review is for plain error affecting Jones's substantial rights. An error is plain if it is clear or obvious. An error affects the defendant's substantial rights when that error prejudices the defendant.

See Carines, 460 Mich at 764.

Id. at 763.

Id.; Unger, 278 Mich App at 235.

a. DENIGRATION OF THE DEFENSE

Jones contends that the prosecutor committed prosecutorial misconduct by contending that the defense team was trying to "pull something" on the jury. We disagree.

A prosecutor may not argue that defense counsel is intentionally attempting to mislead the jury because the argument undermines the defendant's presumption of innocence. The full context of the prosecutor's question—"What were they trying to pull on you?"—is provided above. Given that the context of the statement refers repeatedly to Lynn Glaser, we conclude that the statement is not a clear or obvious denigration of defense counsel.

Further, curative instructions are "sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements." We will not find error requiring reversal if a curative instruction could have alleviated the effect of the prosecutor's misconduct. Because defense counsel could have clarified and cured the prejudicial effect of this potentially inappropriate remark with a timely jury instruction, we conclude that this error did not prejudice Jones.

Id. at 235.

Id.

b. COMMENTARY ON JONES'S SILENCE

Jones contends that the prosecutor committed prosecutorial misconduct by inappropriately commenting on Jones's failure to testify. We disagree.

A prosecutor may not comment on a defendant's failure to testify because the defendant has the right not to incriminate him- or herself. Here, the prosecutor argued that the complainant "had the guts to testify":

The first point on why [the complainant's] testimony proves this case, I call it the category of the truth will out. Why do we believe her? Because she took the stand, she raised her hand, she took the oath, she sat there and she testifiedhonestly. She subjected herself to cross-examination and I submit [defense counsel] didn't do anything to her.
* * *

The first category is truth will out. She testified; she had the guts to testify. Secondly, the power of the details. Third, what's the one or two critical details that she uses? The most incredible detail that she uses, the most distinctive, important detail that she gives us is that she says I don't know who did it; I didn't see his face. . . .

When read in context, the prosecutor's statement that the complainant "had the guts to testify" was contained within numerous other reasons that the prosecutor gave the juror for why they should find her testimony credible. The statement concerned the complainant's credibility; it was not a clear or obvious reference to Jones's failure to testify. Thus, we conclude that admission of the prosecutor's does not constitute plain error.

Additionally, the prosecutor argued:

The last thing I want to say is just this. The testimony of the victim in this case is uncontroverted about what happened. The defense lawyers wants to stand here and say a bunch of things but just like remember we talked [sic] in jury selection about you know the defense lawyer asks a question and if you don't get the answer, you know the question is not the evidence. What the lawyers say out here, what I'm saying right now and what [defense counsel] says, is not evidence either. The only evidence about the defendant's position is in that statement to the police. That's the only evidence before you. And that statement to the police is comingled with lies.

When read in context, the prosecutor's statement that the victim's testimony was "uncontroverted" is contained among arguments concerning the admissibility of defense counsel's statements and a commentary on the facts in evidence. From the context of this statement, it is not a clear or obvious comment on the defendant's failure to testify. Instead, the prosecutor urged the jury to weigh each side's evidence and consider only the evidence when deciding the case. These arguments are proper, and so their admission did not constitute plain error. Thus, we conclude that admission of the prosecutor's does not constitute plain error.

C. FACTS NOT IN EVIDENCE

Jones contends that the prosecutor committed misconduct by denigrating the defense and arguing facts not in evidence when the prosecutor stated that Sweeney lied about where she saw the complainant. We disagree.

A prosecutor may not make a statement of fact to the jury that is unsupported by the evidence. And a prosecutor may not argue that defense counsel is intentionally attempting to mislead the jury. However, the prosecutor may argue all facts and reasonable inferences from the evidence, and need not do so in the blandest possible terms. And the prosecutor may argue from the facts that a witness should or should not be believed.

People v Parker, 288 Mich App 500, 510; 795 NW2d 596 (2010).

The prosecutor argued that Sweeney was lying about having seen the complainant at Jones's home a few days before the sexual assault:

All right, let's talk about Melissa Sweeney's testimony. . . . On Thursday afternoon the 18th, 2 days before the rape, 2½ days she says that she's over there couch surfing with the defendant and she's leaving in the afternoon and she sees this woman show up and she's 80 to 90 percent sure that it's [the complainant] because they took her into the office on Saturday afternoon and they showed her a computer picture. . . . [S]he describes her hair, she says not exactly the same as this, but she's describing her as having two-toned hair with blond hair in the front. . . . [M]idnight on Saturday the 20th [the complainant's] sister has a baby. So [the complainant] goes to the hospital and a date-stamped picture was taken. That's what she really looked like and she doesn't have any blonde hair. She has some carmel [sic] highlight. She doesn't have a blonde—she doesn't have two-toned hair. She doesn't have blonde hair in the front. They got caught lying, just like he trusted that she would for him. They got caught in another lie because they relied on an old picture from a [F]acebook entry two years old.


We conclude that the prosecutor's argument did not clearly reference facts not in evidence. Here, the complainant's daughter testified that the photograph was two years old, and Sweeney testified that she had viewed the photograph on the Internet. That the photograph was a Facebook photograph was a reasonable inference from this evidence. Further, even if the prosecutor argued a fact not in evidence by stating that the photograph was from Facebook—as opposed to some other Internet website—there is simply no indication that this particular fact prejudiced Jones.

We also conclude that the prosecutor's statement that "they got caught lying" was not a denigration of defense counsel. The prosecutor is permitted to argue concerning whether a witness should be believed. Read in context, the prosecutor's statement that "they" were lying was a reference to Sweeny and Jones, not to defense counsel. Thus, we conclude that the prosecutor's statement in closing that "they got caught lying" did not constitute plain error.

See McGhee, 258 Mich App at 630.

Jones contends that the prosecutor committed misconduct by stating that the Glasers were paying for Jones's lawyer. The prosecutor contended that "the Glasers are paying for his lawyer. Room for finding any bias there?" Here, Lynn Glaster testified that she assisted her daughter in finding a lawyer for Jones, and testified that her daughter was paying for Jones's lawyer. Thus, the prosecutor's contention that the Glasers were paying for Jones's lawyer did not constitute plain error because it was not clearly or obviously a reference to a fact not in evidence.

Jones contends that the prosecutor committed misconduct when he stated that Lynn Glaser was a perjurer because there were no facts in the evidence to support his assertion. We disagree.

At the sexual assault trial, Lynn Glaser testified that Jones lived at the guest house on Nestrom Road in November 2010. The prosecutor then asked Lynn Glaser whether it was true that she had previously testified that Jones did not live at the Nestrom Road house, and Lynn Glaser responded that "semantics were involved." Because Lynn Glaser's failure to deny that she had previously testified that Jones lived at the Nestrom Road house could be considered an implicit admission, the prosecutor's statement that Lynn Glaser was a perjurer was a reasonable inference from the evidence.

d. PROSECUTOR'S BELIEF IN WITNESS'S VERACITY

Jones contends that the prosecutor committed misconduct by expressing his own belief of Lynn Glaser's veracity. We disagree.

A prosecutor may not convey that he or she has special knowledge or facts indicating a witness's truthfulness. Here, the prosecutor argued regarding Lynn Glaser, "I can't think of in 27 years a witness that's been caught in more lies." The prosecutor's statement conveyed his belief, on the basis of his personal experience, that Lynn Glaser was not a credible witness. Thus, this statement was clearly improper.

Bahoda, 448 Mich at 277; Ackerman, 257 Mich App at 448.

However, we conclude that this error did not affect Jones's substantial rights. An error affects a defendant's substantial rights if it affected the outcome of his or her proceedings. Here, the prosecutor's reference to his personal experience was isolated. Defense counsel did not challenge the statement, and a timely and specific jury instruction could have cured its prejudice. Further, the trial court later instructed the jury that it was up to the individual jurors to determine which witnesses to believe, and the trial court instructed the jury that the lawyers' statements and arguments were not evidence. These instructions likely mitigated any prejudicial effect of the prosecutor's improper argument. Finally, as discussed above, the prosecutor made several admissible arguments concerning Lynn Glaser's credibility. Considering the case as a whole, we conclude that this statement did not affect the outcome of Jones's proceedings, and thus its admission does not constitute plain error.

See Unger, 278 Mich App at 235-236.
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IV. CONCLUSIONS

In Docket No. 306334, we conclude that the trial court did not err by denying the parties' motion for a mistrial after it asked the jury during voir dire whether it would be able to impartially consider any psychological evidence. We conclude that defense counsel did not render Jones ineffective assistance during his opening statement because counsel based these statements on a reasonable conclusion that Cuti's testimony would be inadmissible and Jones would testify. We conclude that the trial court did not abuse its discretion in admitting the testimonies of Cuti and Doe as other-acts evidence because these testimonies were relevant to whether the complainant consented to the conduct in this case. And finally, we conclude that prosecutorial misconduct does not warrant reversal in this case.

In Docket No. 306331, we conclude that Jones waived his challenge to the jury instructions. We also conclude that Jones has failed to establish ineffective assistance of counsel because it is not reasonably probable that the result of the proceeding would have been different had counsel requested the instruction.

We affirm.

William C. Whitbeck


Joel P. Hoekstra


Elizabeth L. Gleicher