Opinion
No. 346224 No. 346225
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EDWARD WALLACE EMERY, 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 UNPUBLISHED Washtenaw Circuit Court
LC No. 17-000883-FC; 17-000884-FC Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e(1)(a), two counts of domestic violence, MCL 750.812, unlawful imprisonment, MCL 750.349b, first-degree home invasion, MCL 750.110a(2), and assault with intent to do great bodily harm or by strangulation (AWIGBH), MCL 750.84. Defendant was sentenced to 16 months to 2 years of imprisonment for the CSC IV conviction, 43 and 44 days in the county jail for the two domestic violence convictions, 57 months to 15 years of imprisonment for the unlawful imprisonment conviction, 57 months to 20 years of imprisonment for the first-degree home invasion conviction, and 38 months to 10 years of imprisonment for the AWIGBH conviction. We affirm.
Defendant also was charged with kidnapping, MCL 750.349, but was acquitted.
I. FACTS & PROCEDURAL HISTORY
This case arises out of a physical altercation between defendant and the victim, his girlfriend. The night before the incident, the victim and defendant spent the night in Pittsfield Township at the victim's parents' house while they were out of town. The next day, defendant and the victim attended a friend's party at a restaurant in Ann Arbor.
When they left the restaurant, defendant drove the victim's car back to her parents' house. On the way, they yelled at each other and engaged in a physical altercation. When they arrived at the house, defendant dragged the victim by her arm into the house and threw her into her parents' shower. He turned on the faucet and pushed her head under the water. He picked her up, carried her over his shoulder up the stairs to her old bedroom where he threw her onto the bed, climbed on top of her, and held her down. When the victim began to have trouble breathing, he let her get up off the bed. She then tried to run out of the house, but defendant caught her halfway down the driveway and carried her back to her parents' bedroom. He threw her onto the bed, and she bounced, hit the headboard, and stood up. Defendant grabbed her and ripped her bra off. He pushed her onto the bed and straddled her again. He then yelled at her that this all was her fault, that she was being crazy, and demanded that she answer him. She refused to answer, and defendant pressed his thumbs into her eye sockets until she screamed. She still would not answer him, and he twisted her nipples and asked if she liked that. He tried to kiss her twice, but she shook her head side to side. Then, he asked if she wanted him to leave and she said yes.
Defendant next went upstairs in the house. The victim followed him intending to get herself a shirt. Defendant once again pushed her, this time into the upstairs bathroom, closed the door, and would not let her out. After a few seconds, he opened the door and told her that he was breaking up with her. He went to her old bedroom to get his things, and she grabbed a nearby shirt, put it on, and ran out of the house. She went to a neighbor's house, rang the doorbell and banged on the door, but there was no answer. She saw defendant come out of her parents' house, get into his car, and then drive away. The victim then called her father, who called some family friends to take the victim to the hospital.
At the hospital, the victim told a nurse and physician's assistant what happened. She had bruises on her legs, right foot, left eye, cheek, neck, arms, hands, back, and buttocks. She also had a cut lip and bite marks on her hands. At the hospital, the victim spoke with an Ann Arbor Police detective, with an Ann Arbor Police officer, and with a Pittsfield Township Police officer.
Defendant initially was charged with second-degree criminal sexual conduct (CSC II) (personal injury), MCL 750.520c(1)(f), two counts of domestic violence, MCL 750.81(2), and AWIGBH, MCL 750.84. On the day of the preliminary examination, the prosecution moved to add charges of unlawful imprisonment, MCL 750.349b, kidnapping, MCL 750.349, and first-degree home invasion, MCL 750.110a(2). After hearing the victim's testimony at the preliminary examination, the district court bound defendant over on the charges of CSC II, domestic violence, AWIGBH, and unlawful imprisonment, but declined to bind defendant over on the kidnapping and first-degree home invasion charges.
A month before trial, the prosecution moved to amend the felony information to add the two charges which the district court did not bind over. The circuit court granted the motion but declined to find that the district court had abused its discretion, and found that defendant was not prejudiced by the court's ruling because he knew of the prosecution's intent to add the charges as early as the preliminary examination. Thus, the trial court ruled, defendant could not claim any unfair surprise.
Ultimately, defendant was charged with CSC II, domestic violence, unlawful imprisonment, kidnapping, first-degree home invasion in case number 17-883-FC for his conduct at the victim's parents' house in Pittsfield Township. In case number 17-884-FH, he was charged with domestic violence and AWIGBH for his conduct in Ann Arbor during the car ride from the restaurant to the house. The cases were consolidated.
Before trial, defendant moved to obtain the victim's employment records because, he contended, the records would demonstrate that the victim previously had made false allegations of sexual misconduct at two of her places of employment. The prosecution argued that defendant was not entitled to this discovery, had not shown good cause, and simply was on a "fishing expedition." The trial court agreed with the prosecution and denied defendant's motion.
Following a jury trial, defendant was convicted of CSC IV, MCL 750.520e(1)(a), domestic violence, MCL 750.812, unlawful imprisonment, MCL 750.349b, and first-degree home invasion, MCL 750.110a(2) in case number 17-883-FC. In case number 17-884-FH, he was convicted of domestic violence, MCL 750.812, and AWIGBH, MCL 750.84. Defendant was acquitted of the kidnapping charge.
At the sentencing hearing, the trial court assessed 50 points for offense variable (OV) 7 (aggravated physical abuse) pursuant to MCL 777.37(1)(a). Defendant objected, and argued that he twisted the victim's nipples and pressed his thumbs into her eyes to get the victim's attention—not to torture her. The prosecution argued that the assessment of 50 points was appropriate, given the totality of the circumstances, i.e., the extended time period over which the incident occurred. The trial court agreed with the prosecution, and defendant then was sentenced within the calculated guidelines range of 16 months to 2 years of imprisonment for the CSC IV conviction, 43 and 44 days in the county jail for the two domestic violence convictions, 57 months to 15 years of imprisonment for the unlawful imprisonment conviction, 57 months to 20 years of imprisonment for the first-degree home invasion conviction, and 38 months to 10 years of imprisonment for the AWIGBH conviction.
II. ANALYSIS
Defendant raises numerous grounds for reversal. We consider each argument in turn, and reject them all.
A. AMENDMENT OF FELONY INFORMATION
Defendant first argues the trial court applied the incorrect legal standard when it permitted the prosecutor to amend the felony information adding the charges of first-degree home invasion and kidnapping, and that he was prejudiced because he was found guilty of first-degree home invasion when that charge should not have been before the jury. We disagree.
We review a trial court's decision to amend a felony information for an abuse of discretion. People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014).
A district court's decision to bind over a defendant is reviewed for an abuse of discretion. People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). However, "[a] trial court may permit amendment of the information at any time to correct a variance between the information and the proofs, unless doing so would unfairly surprise or prejudice the defendant." People v Unger, 278 Mich App 210, 221; 749 NW2d 272 (2008), citing MCL 767.76 and MCR 6.112(H). In the instant matter, the trial court allowed the amendment of defendant's information to conform to the evidence presented at the preliminary examination. Defendant now argues that he suffered prejudice because he was convicted of first-degree home invasion when the district court did not originally bind him over on the charge.
While, unacceptable prejudice includes unfair surprise, inadequate notice, or inadequate opportunity to defend, People v Hunt, 442 Mich 359, 364; 501 NW2d 151 (1993), here, the trial court did not commit error in permitting the amendment of the information. This is because defendant fails to identify any unacceptable prejudice arising from his trial on the additional charges. Thus, his claim of error is without merit.
B. DISCOVERY OF THE VICTIM'S EMPLOYMENT RECORDS
Defendant next argues he was denied his constitutional right to cross-examine the victim regarding her credibility when the trial court denied his request to subpoena the victim's employment records. We disagree.
We review constitutional claims de novo. Duenaz, 306 Mich App at 90. "A trial court's decision regarding discovery is reviewed for abuse of discretion." People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). An accused does not have a constitutional right to discovery in a criminal case. People v Dickinson, 321 Mich App 1, 18; 909 NW2d 24 (2017). In criminal matters, discovery is limited to those items expressly set forth in MCR 6.201. Unless MCR 6.201 requires production of information or the party seeking discovery demonstrates good cause, the trial court is without authority to mandate discovery. People v Greenfield (On Reconsideration), 271 Mich App 442, 448-449; 722 NW2d 254 (2006).
MCR 6.201 does not require production of a victim's employment records, and therefore, defendant was required to show good cause for them to be discovered. Defendant argues that the victim's employment records might contain some evidence that the victim had previously made allegations of sexual misconduct at two of her workplaces and that those allegations may have been false. Defendant offers his own speculation on the content of the records and the veracity of the alleged prior complaints and nothing more. Therefore, he fails to show good cause. Greenfield (On Reconsideration), 271 Mich App at 451 (the failure to produce evidence that does not fall within any category of discoverable evidence under MCR 6.201 does not constitute good cause to support a discovery order); People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994) (when a discovery request is made disclosure should not occur when the record reflects that the party seeking disclosure is on a fishing expedition to see what may turn up), citing Bowman Dairy Co v United States, 341 US 214, 221; 71 S Ct 675; 95 L Ed 879 (1951). Accordingly, the trial court did not abuse its discretion when it denied defendant's motion, and defendant did not suffer any constitutional deprivation as a result. People v Solloway, 316 Mich App 174, 198; 891 NW2d 255 (2016).
C. JURY SELECTION
Defendant next argues that the trial court abused its discretion when it improperly dismissed for cause five prospective jurors and then denied defendant's for cause challenge of another prospective juror. We disagree.
Defendant's argument is unpreserved because he did not exhaust his peremptory challenges or refuse to express satisfaction with the empaneled jury. See People v Tyburski, 196 Mich App 576, 583 n 5; 494 NW2d 20 (1992), aff'd 445 Mich 606 (1994). Unpreserved issues are reviewed under the plain error standard, whereby defendant must show that: (1) an error occurred; (2) the error was plain, and (3) the plain error affected defendant's substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). A trial court's rulings on challenges for cause based on bias are reviewed for an abuse of discretion. People v Williams, 241 Mich App 519, 521; 616 NW2d 710 (2000).
Prospective jurors "may be excused for cause based on a demonstrated bias for or against a party, if the venireman shows a state of mind that will prevent the juror from rendering a just verdict, or if the venireman has opinions that would improperly influence the juror's verdict." Williams, 241 Mich App at 521; see also MCR 2.511(D). However, as a general rule, disqualification is not required when potential jurors agree to put aside biases or personal opinions and to render a verdict based on the evidence presented in court. See People v Johnson, 245 Mich App 243, 256; 631 NW2d 1 (2001). "Jurors are presumptively competent and impartial, and the party alleging the disqualification bears the burden of proving its existence." Id. Although a juror's expressed lack of prejudice and ability to render an impartial verdict are all that is required to uphold selection of the juror, we must defer to the trial court's superior ability to assess from a venireman's demeanor whether the person would be impartial. People v Hughes, 85 Mich App 8, 18; 270 NW2d 692 (1978); Williams, 241 Mich App at 522.
During jury selection, prospective jurors were informed that the victim's testimony did not require corroboration, and if it proved guilt beyond a reasonable doubt, it was sufficient evidence to convict. Then they each were asked if they would have any problem following that instruction, and many of them expressed hesitation, confusion, and doubt. Five jurors were excused for cause after informing the trial court that they could not follow the trial court's instruction. Defense counsel tried to reframe this issue as one of reasonable doubt, but further questioning demonstrated that the excused jurors had difficulty with the instruction itself. Another juror initially expressed some difficulty with the instruction, but the trial court did not excuse him for cause after he explained that he understood the instruction and could follow it. Although it could be argued this juror's answers resembled the answers given by the excused jurors, we cannot conclude that the trial court abused its discretion by not excusing him for cause, as defendant now claims. Unger, 278 Mich App at 258 (perhaps the most important criteria in selecting a jury include a potential juror's facial expressions, body language, and manner of answering questions, and a reviewing court cannot see the jurors or listen to their answers to voir dire questions).
Defendant also takes issue with the trial court's denial of his for-cause challenge of a juror who stated that she was a rape survivor with post-traumatic stress disorder (PTSD) and that she might have difficulty concentrating if something presented during trial triggered her PTSD-related anxiety. Defendant dismissed this juror via peremptory strike, but because he failed to exhaust his peremptory strikes, he cannot now show reversible error. People v Lee, 212 Mich App 228, 248-49; 537 NW2d 233 (1995) (reversible error occurs only when the aggrieved party exhausted all peremptory challenges and demonstrated the desire to excuse another subsequently summoned juror). Neither has defendant demonstrated that the alleged error affected the outcome of his trial. People v Vaughn, 491 Mich 642, 665; 821 NW2d 288 (2012). Accordingly, defendant's claim of error is without merit.
D. JURY SUBSTITUTION AND INSTRUCTIONS
Defendant next argues that the trial court abused its discretion when it prematurely excused a juror who indicated that she could not continue deliberations due to a migraine and then failed to properly instruct the jury with the replacement juror to begin deliberations anew after the juror substitution. We disagree.
MCL 768.18 provides:
Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from further service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12. [Emphasis added.]
Defendant objected to the trial court's decision to dismiss the juror, but did not request an additional jury instruction, and therefore, this issue is unpreserved. People v Asevedo, 217 Mich App 393, 398; 551 NW2d 478 (1996) (an objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground). We review unpreserved challenges to jury instructions for plain error affecting a party's substantial rights. People v Everett, 318 Mich App 511, 526-27; 899 NW2d 94 (2017). A trial court's decision to remove a juror will be reversed only when there has been a clear abuse of discretion which occurs "only when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification or excuse for the ruling made." People v Tate, 244 Mich App 553, 559; 624 NW2d
Juror 10 could not continue with deliberations because she was suffering from a migraine. The trial court replaced her with an alternate in order to prevent an unnecessary delay. Under these circumstances, the trial court's decision was justified and does not constitute an abuse of discretion. See Tate, 244 Mich App at 560 (a trial court does not abuse its discretion by dismissing a juror who cannot continue with deliberations due to a medical condition).
The trial court complied with MCR 6.411, which requires that the court "instruct the jury to begin its deliberations anew" when an alternate juror joins their ranks. Although the record does not indicate that the trial court issued such an instruction to the jury after the substitution was made, it was instructed on this point before its original deliberations began. Specifically, the trial court stated:
At this time now that the bailiff has just appeared, if we could have the counsel approach the clerk and to draw the names of the two jurors who will now be excused. To the two of you, thank you very much you're your time and attention, but guess what you're not off the hook. I'm going to ask you to continue to not discuss the case with anyone until you know what the verdict is. And the reason for that is if we were to continue let's say into tomorrow and one or more of you became ill, had an emergency, we might have to call back one or two of you who are excused and restart our negotiations. So until such time as you know what the
verdict is, please don't talk about the case.As, jurors are presumed to follow instructions, People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011), there is no requirement that the trial court reinstruct the jury with all of its instructions once an alternate juror is seated. People v Parker, 230 Mich App 677, 680-681; 584 NW2d 753 (1998) (holding that a trial court does not abuse its discretion when it fails to repeat instructions addressing areas not covered by a jury's specific request). Additionally, any error is harmless because the alternate juror sat through the entire trial, and nothing prevented the jury from beginning its deliberations anew. See Tate, Mich App at 567-568 (finding the trial court committed harmless error when the alternate sat through the entire trial, the trial court instructed the jury to share its deliberations with the alternate, and nothing prevented the jury from beginning anew).
After the alternate juror was seated, defendant argues that the speed with which the jury reached a verdict shows that the alternate juror was coerced to reach a verdict. Prior to the alternate juror, the jury deliberated for about three hours and twenty minutes. After the alternate juror was empaneled, the jury deliberated for about three hours and twenty-five minutes more before it returned the verdict. Thus, contrary to defendant's contention, deliberations with alternate juror lasted approximately as long as they had with the juror who was excused. It is pure speculation and conjecture that the alternate juror was coerced, and defendant cannot demonstrate that he was prejudiced by the substitution. Mahone, 294 Mich App at 218.
E. PRIOR ACTS
Defendant next argues that the trial court committed error requiring reversal when it allowed the prosecution to admit defendant's prior acts of domestic violence into evidence after the prosecutor failed to provide adequate pretrial notice. We disagree.
We review for an abuse of discretion a trial court's decision to admit evidence. People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017).
Under MRE 404(b) and MCL 768.27b prior acts of domestic violence are admissible for certain purposes, but the prosecution must give proper pretrial notice or demonstrate "good cause." A failure to provide proper notice does not give rise to reversible error if the evidence was substantively admissible. See People v Jackson, 498 Mich 246, 278-279; 869 NW2d 253 (2015) (failure to provide notice is harmless error because the other-acts evidence is substantively admissible); People v Dobek, 274 Mich App 58, 88; 732 NW2d 546 (2007) (reversal is not warranted on the basis of lack of notice under MRE 404(b)(2) where the other-acts evidence is substantively admissible); People v Hawkins, 245 Mich App 439, 455-456; 628 NW2d 105 (2001) (failure to comply with MRE 404(b)(2) does not result in reversible error where the other-acts evidence is substantively admissible). Where defense counsel opens the door by eliciting testimony from the victim about the defendant's nature, the prosecution is permitted to question the victim about the defendant's pertinent character trait. See People v Whitfield, 425 Mich 116, 128; 388 NW2d 206 (1986) (finding no abuse of discretion where upon defense counsel's questioning, the victim extolled defendant's virtue as a peaceable person and unwittingly furnished the foundation for the prosecutor to acquaint the jury with matters which otherwise could not be admitted into evidence).
It is undisputed that the prosecution did not satisfy the notice requirement, but instead, proceeded under a theory of "good cause." During cross-examination, defense counsel questioned the victim about her relationship with defendant. Specifically, she was asked about her living arrangements with defendant, her plans to marry him, her plans to conceive a child with him, her most recent sexual encounter with him prior to the alleged assault, and whether the relationship had "ups and downs." The prosecutor objected to the line of questioning based on its lack of relevance. In response, defense counsel argued that the victim had testified about her relationship with defendant on direct examination, and that he was trying to flesh out the depth of their relationship and establish that the victim and defendant were close. The trial court overruled the objection. On redirect, over defense counsel's objections, the prosecutor asked about the "ups and downs" and asked the victim to describe the "downs." The victim testified that defendant was verbally abusive, and once he had held her down on the bed, put his hand over her mouth, and tore the tissue between her lip and gum.
Defendant makes only a cursory argument that the other-acts evidence was substantively inadmissible. However, the record clearly demonstrates that defense counsel elicited testimony from the victim about the "ups and downs" of her relationship with defendant and opened the door for the prosecutor on redirect of the victim. The prosecutor was entitled to rebut the evidence the defendant elicited and then question the victim about the "downs." MCL 768.27b; MRE 404(a)(1); MRE 405(a); Whitfield, 425 Mich at 128. Thus, defendant's argument is without merit.
F. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor committed several acts of misconduct. We disagree.
Where issues of prosecutorial misconduct are preserved, we review them de novo to determine if the defendant was denied a fair and impartial trial. People v Thomas, 260 Mich App 450, 453; 678 NW2d 631 (2004). Unpreserved issues are reviewed under the plain error standard. Carines, 460 Mich at 764. They are considered on a case-by-case basis by examining the record and evaluating the remarks in context, and in light of defendant's arguments. Thomas, 260 Mich App at 454. Generally, prosecutors are accorded great latitude regarding their arguments and conduct and are free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
First, defendant argues that the prosecutor misstated the law with respect to the severity of the charges. During closing arguments, defense counsel remarked that the prosecutor had over-charged defendant to persuade the jury to acquit defendant of the more serious charges or only convict him on the lesser included charges. In rebuttal, the prosecutor stated that the charges were appropriate, and that other factors which were not present in this case would have elevated the severity of the charges, e.g., the use of a weapon, the involvement of a minor, or great bodily harm. Defendant contends that because he was facing a potential life-sentence if convicted of the kidnapping charge, the prosecutor's statement was misleading.
Defendant objected to the prosecutor's remarks on the severity of the charges and consistency of the victim's testimony. Therefore, those issues are preserved, People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011), but defendant's remaining arguments are unpreserved, Asevedo, 217 Mich App at 398.
However, it is clear from the context of the remarks that the prosecutor intended to address the arguments made by defense counsel. In other words, the record shows defense counsel tried to play up the severity of the charges presumably in the hope that the jury would find the lesser included charges and/or acquittal a more reasonable outcome. On rebuttal, the prosecutor tried to ameliorate defense counsel's characterization of the charges. "A prosecutor may fairly respond to an issue raised by the defendant." People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Moreover, the jury was instructed to consider the evidence, and that lawyers' statements and arguments are not evidence. "Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements." People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Therefore, any error is harmless.
Defendant next takes issue with the prosecutor's statements that the charges against defendant were appropriate because the trial court judge found them to be so subsequent to defendant's preliminary examination. Defendant contends, by making this statement the prosecutor was appealing to the jury's civic duty. Prosecutors should not resort to civic duty arguments that appeal to the fears and prejudices of jury members. Bahoda, 448 Mich at 282-283. However, the prosecutor's remarks here were made in response to defense counsel's statements that the charges brought against defendant were inappropriate and, therefore, do not constitute prosecutorial misconduct, Brown, 279 Mich App at 135. Further, because the jury was instructed to consider the evidence only and that the lawyers' statements and arguments are not evidence, any error was harmless, Abraham, 256 Mich App at 279.
Next, defendant argues that the prosecutor impermissibly vouched for the victim's credibility. A prosecutor should not vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning the truthfulness of a witness, Bahoda, 448 Mich at 279, but a prosecutor may comment on the credibility of his own witness during closing argument, especially when there is conflicting evidence and the question of the defendant's guilt depends on which witnesses the jury believes, Thomas, 260 Mich App at 455. During closing arguments, defense counsel argued for over an hour that the victim lied, fabricated, contrived, exaggerated, and grossly embellished, her testimony which was filled with falsehoods and inconsistencies, and thereby raised the issue of the victim's credibility. As such, the prosecutor was permitted to respond as to the victim's veracity. Brown, 279 Mich App at 135. Moreover, any error is harmless because the jury was instructed that it was to determine the facts of the case, and the credibility of the testimony presented. Abraham, 256 Mich App at 279 (instructions are presumed to cure most errors and juries are presumed to follow their instructions).
Defendant next claims that the prosecutor argued facts that were not in evidence when he remarked that the victim's statement to the Ann Arbor Police detective was consistent with her trial testimony. "Although a prosecutor may not argue facts not in evidence or mischaracterize the evidence presented, the prosecutor may argue reasonable inferences from the evidence." People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). Defendant's argument is not supported by the record. The victim testified that her statements, including those she gave to the detective, were consistent with her trial testimony, and the Ann Arbor Police officer testified that he had reviewed the detective's file related to the case, and that the victim's trial testimony was consistent with her interview statements. Accordingly, defendant has not established the factual predicate for his claim. People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). Additionally, the prosecutor's remarks were responsive to defense counsel's assertions during closing arguments that the victim's trial testimony contained details that were omitted from her statements to the detective, and were therefore proper. Brown, 279 Mich App at 135.
Finally, defendant argues that he was denied a fair trial because of the cumulative effect of the alleged errors. "The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted." Dobek, 274 Mich App at 106. "Absent the establishment of errors, there can be no cumulative effect of errors meriting reversal." Id. Because any errors were harmless, defendant was not denied a fair trial and this claim fails.
G. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next makes the unpreserved argument that he was denied the effective assistance of counsel because his trial counsel failed to object to the prosecutor's use of witness testimony to bolster the victim's credibility. We disagree.
"This Court reviews an unpreserved ineffective-assistance-of-counsel claim for errors apparent on the record." People v Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019) (citation omitted). "Generally, an ineffective-assistance-of-counsel claim presents a mixed question of fact and constitutional law." Id. Constitutional questions are reviewed de novo, and findings of fact are reviewed for clear error. Id. "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Lanzo Const Co, 272 Mich App 470, 473; 726 NW2d 746 (2006).
Criminal defendants are entitled to the effective assistance of counsel. Hoang, 328 Mich App at 63. To prevail on a claim of ineffective assistance of counsel, a defendant must show "(1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant." People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
To satisfy the first prong, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness. People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy. People v Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). To establish prejudice, defendant must show a reasonable probability that the outcome would have been different but for counsel's errors. Strickland, 466 US at 694. A reasonable probability need not be a preponderance of the evidence; rather, a "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. A defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defendant argues that his trial counsel was ineffective for failing to object to testimony concerning statements that the victim made to an Ann Arbor Police officer because such evidence constituted prior consistent statements that served to bolster the victim's credibility. This claim fails on both Strickland prongs.
First, defendant fails to show that defense counsel's performance fell below an objective standard of reasonableness. Although it is generally improper for a witness to comment or provide an opinion on the credibility of another witness, Dobek, 274 Mich App at 71, the Ann Arbor Police officer and the victim's friend each testified as to the victim's interview statements which were consistent with her trial testimony. Thus, they did not directly comment on the victim's veracity, id., or suggest some special knowledge with respect to the victim's truthfulness, Bahoda, 448 Mich at 276, or argue from the facts that the victim was credible or that the defendant or another witness was not worthy of belief, People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). Additionally, "[t]he admission of a prior consistent statement through a third party is appropriate if the requirements of MRE 801(d)(1)(B) are satisfied." Jones, 240 Mich App at 706. Defendant does not argue how the statements violated MRE 801(d)(1)(B), and therefore, he has not shown that an objection was warranted. Counsel is not ineffective for failing to make a futile objection. People v Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002). Additionally, defendant fails to overcome the presumption that trial counsel's performance was sound trial strategy because defense counsel pointed out in great detail on cross-examination perceived inconsistencies in the victim's statements. Ackley, 497 Mich at 388. Thus, defense counsel's failure to object was not objectively unreasonable. Trakhtenberg, 493 Mich at 51.
MRE 801(d)(1)(B) provides that a statement is not hearsay if it is a prior consistent statement of a testifying witness that is "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." To be admissible under this rule,
(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant's challenged in-court testimony; and (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose. [People v Jones, 240 Mich App 704, 707; 613 NW2d 411 (2000) (quotation marks omitted).]
Second, defendant has not demonstrated prejudice as a result of defense counsel's failure to object. Strickland, 466 US at 694. The jury was instructed to determine the credibility of witness testimony and to weigh the testimony of police officers with the same standard as all other witnesses. Jurors are presumed to follow their instructions, and instructions cure most errors. Abraham, 256 Mich App at 279. Thus, defendant has not shown that "it was reasonably probable that, but for this testimony, the outcome of the defendant's trial may have been different." People v Douglas, 496 Mich 557, 588; 852 NW2d 587 (2014).
Defendant also argues that defense counsel was ineffective for failing to object to the prosecutor's comments on the victim's credibility. However, as discussed supra, the prosecutor's comments were made in response to defense counsel's remarks about the victim's credibility. Thus, they were not improper, Brown, 279 Mich App at 135, and defense counsel was not ineffective for failing to make a futile objection, Milstead, 250 Mich App at 401. Accordingly, defendant is not entitled to relief based on ineffective assistance of trial counsel.
H. OFFENSE VARIABLE SCORING
Defendant argues that the trial court abused its discretion when it scored 50 points for OV 7 (aggravated physical abuse), and that trial counsel was ineffective for failing to object when the trial court scored ten points for OV 10 (exploiting a domestic relationship), and five points for OV 12 (contemporaneous felony). We disagree.
Defendant objected to scoring 50 points for OV 7, and this issue is therefore preserved. Cameron, 291 Mich App at 617 (an issue must be raised, addressed, and decided by the trial court to be properly preserved). Defendant challenges the scoring of ten points for OV 10 and five points for OV 12 under a theory of ineffective assistance of counsel. Defendant failed to move for a new trial or a Ginther hearing, and therefore, review is limited to errors apparent on the record. People v Buie, 298 Mich App 50, 61; 825 NW2d 361 (2012).
People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
When reviewing a trial court's scoring decision, "factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. People v Lampe, 327 Mich App 104, 111; 933 NW2d 314 (2019). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id.
MCL 777.37(1)(a) provides that 50 points be assessed when a "victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." OV 7 is designed to respond to particularly heinous instances in which the criminal acted to increase a victim's fear by a substantial or considerable amount. People v Rodriguez, 327 Mich App 573, 577-78; 935 NW2d 51 (2019). OV 7 does not provide that a sentencing court may look outside the sentencing offense to past criminal conduct in scoring OV 7. Id.
Defendant was scored 50 points for OV 7 in connection with case number 17-883-FC, which concerned his conduct at the victim's parents' house in Pittsfield Township. Defendant argues that because the trial court stated that it had "to take into account all the evidence" that had been submitted and had to consider what was outlined "in some detail by counsel" it impermissibly considered pre-offense conduct that defendant committed in case number 17-884-FC, which concerned the car ride from the restaurant in Ann Arbor to the house.
However, the trial court stated that it considered what was outlined by counsel during the sentencing hearing. Defense counsel discussed details of the sexual assault and when defendant pressed his thumbs into the victim's eyes. The prosecution discussed the bruises that covered the victim's body because defendant had dragged her into the house and from room to room once inside, threw her into the shower, sexually assaulted her, and dug his thumbs into her eyes. Thus, the conduct described by the parties and considered by the trial court occurred at the house, and there is no indication that the trial court considered defendant's conduct from case number 17-884-FC when it scored 50 points for OV 7.
Defendant also argues that OV 7 was not properly scored because his conduct was not as severe as other cases where OV 7 was more appropriately scored at 50 points. When scoring OV 7, the relevant questions are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and if so (2) whether the conduct was intended to make a victim's fear or anxiety greater by a considerable amount. Hardy, 494 Mich 430. Here, defendant picked up the victim, threw her into the shower, poured cold water over her head so that she struggled to breathe, dragged her throughout the house, ripped her clothes off her, twisted her nipples, and pressed his thumbs into her eyes until she screamed. The victim testified that defendant pressed his thumbs into her eyes "hard enough to hurt" but not enough to gouge out her eyes, and that she believed he did this to scare her. Under these circumstances, the trial court did not clearly err when it determined that defendant engaged in conduct beyond the minimum required to commit the offense, and his conduct was intended to increase the victim's fear. Thus, the trial court properly scored 50 points for OV 7.
See, e.g., People v Wilson, 265 Mich App 386, 369-399; 695 NW2d 351 (2005) (the victim described a brutal attack, involving punching, slapping, choking, and threats with weapons; the victim received a laceration to her hand, which required eight stitches, and she was confined to a wheelchair and then to the use of a cane for several weeks after the attack); People v Kegler, 268 Mich App 187, 190-191; 706 NW2d 744 (2005) (defendant admitted that she removed the victim's clothes and placed his naked body outside to humiliate the victim, and assisted in placing the victim's body in the trunk of her car); People v James, 267 Mich App 675, 680; 705 NW2d 724 (2005) (the defendant repeatedly stomped the victim's face and chest after the victim was lying unconscious on the ground, and the victim was deprived of oxygen for a period of four to six minutes causing significant brain damage resulting in a comatose state with little or no chance of ever regaining consciousness).
Defendant only challenges his sentences for case number 17-883-FC which relate to his conduct at the house in Pittsfield Township. In that case, his OV score totaled 125. Defendant's guidelines range would change only if OV 7 were scored at zero points and either OV 10 or OV 12 were scored at zero points and, of course, if all three OVs were scored at zero points. Thus, because we conclude that OV 7 was properly scored 50 points, any changes to the scoring of OV 10 and OV 12 would not change defendant's minimum guidelines range. Defendant argues that trial counsel was ineffective for failing to object when the trial court scored ten points for OV 10 (exploiting a domestic relationship), and five points for OV 12 (contemporaneous felony). Because we conclude that OV 7 was properly scored, his minimum guidelines range would not change if OV 10 and OV 12 were both scored at zero points. Thus, defendant cannot succeed on Strickland's prejudice prong. Strickland, 466 US at 694 (to establish prejudice, defendant must show a reasonable probability that the outcome would have been different but for counsel's errors). Thus, this claim also fails.
III. CONCLUSION
Defendant has not shown that he is entitled to relief on any of his claims. The trial court did not abuse its discretion by granting the prosecution's motion to amend the information. The trial court properly denied his motion for leave to obtain the victim's employment records, and it did not abuse its discretion when it dismissed for cause five prospective jurors who indicated that they could not follow instructions. Defendant dismissed another prospective juror using a peremptory strike, but did not exhaust his peremptory strikes, and therefore cannot show reversible error due to the trial court's failure to dismiss that juror for cause. The prosecutor's remarks did not amount to prosecutorial misconduct and were otherwise harmless error. The prosecutor was permitted to introduce evidence of defendant's prior acts of domestic violence against the victim because defense counsel opened the door to that line of questioning, and the prosecutor was entitled to introduce rebuttal evidence. Therefore, defendant cannot show that trial counsel was ineffective for failing to object to the prosecutor's remarks. Defendant's additional claims of ineffective assistance of counsel fail because he cannot show that counsel committed error, or that he suffered any prejudice as a result. Additionally, the trial court did not err when it scored OV 7, and resentencing is not required. Accordingly, we affirm.
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle