Opinion
353635
01-13-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRAD JOSEPH GNIEWEK, Defendant-Appellant.
UNPUBLISHED
Tuscola Circuit Court LC No. 18-014425-FC
Before: Swartzle, P.J., and K. F. Kelly and Redford, JJ.
Per Curiam.
A jury convicted defendant of nine counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (sexual penetration accomplished by force or coercion and causing personal injury), and the trial court sentenced defendant to 23 to 60 years' imprisonment for each conviction and ordered that the sentence for the first count be served consecutively and preceding the sentence for the second count with the remaining sentences to be served concurrently. We affirm.
I. FACTUAL BACKGROUND
The prosecution charged defendant of committing nine counts of sexual assault accomplished by force or coercion against his former wife, CC, that caused her personal injury during their marriage between 2005 and 2010. CC left defendant and initiated divorce proceedings in 2015.
CC testified that defendant began the sexual abuse shortly after the birth of the couple's first child and continued over the next 10 years. The couple had five children during their marriage. Defendant threatened to take their children away if she did not perform requested sexual acts which included varying degrees of violence and coercion. In August 2015, CC reported defendant to the police, left defendant, and went into hiding with the children. The charged offenses occurred in Tuscola County where the couple had lived for years, but the prosecution also presented evidence of additional, uncharged acts that occurred after the couple moved to Sanilac County in 2011.
Because defendant did not timely file a witness list, the trial court did not permit him to call any witnesses other than himself to testify in his own defense at trial. Defendant denied the allegations and defended by asserting that CC fabricated her story as part of her decision in 2015 to leave defendant, divorce him, and gain custody of the children. Defendant characterized the case as "a setup."
Defendant's original trial resulted in a mistrial after defense counsel elicited from a law enforcement officer during cross-examination defendant's participation in a polygraph examination. Defendant moved for a mistrial and the trial court granted the motion. The trial court conducted a second trial in January 2019, which resulted in the jury's conviction of defendant on all counts. Defendant moved for a new trial but the trial court denied the motion. On appeal, defendant raises issues in both a brief filed by his appellate counsel and in a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4 ("Standard 4 brief).
II. ISSUES RAISED BY APPELLATE COUNSEL
A. PROSECUTORIAL MISCONDUCT
Defendant first argues that reversal is required because of several instances of prosecutorial misconduct. We disagree.
Because defendant failed to object at trial respecting his appellate claims, they are unpreserved. People v Abraham, 256 Mich.App. 265, 274; 662 N.W.2d 836 (2003). A preserved claim of prosecutorial misconduct is generally reviewed de novo to determine if the defendant was denied a fair and impartial trial. People v Thomas, 260 Mich.App. 450, 453; 678 N.W.2d 631 (2004). We review unpreserved claims of prosecutorial misconduct, however, for plain error affecting substantial rights. Abraham, 256 Mich.App. at 274. In People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999) (quotation marks, alteration, and citations omitted), our Supreme Court explained:
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.
Further, we will not reverse if the prejudicial effect of the prosecutor's conduct could have been cured by a timely instruction from the trial court. People v Williams, 265 Mich.App. 68, 70-71; 692 N.W.2d 722 (2005).
Claims of prosecutorial misconduct are decided case by case and the challenged conduct must be viewed in context. People v McElhaney, 215 Mich.App. 269, 283; 545 N.W.2d 18 (1996). The test for prosecutorial misconduct is whether the conduct denied defendant a fair trial. People v Bahoda, 448 Mich. 261, 266-267; 531 N.W.2d 659 (1995). A prosecutor is afforded great latitude during closing argument. "A prosecutor may not make a statement of fact to the jury that is unsupported by evidence, but she is free to argue the evidence and any reasonable inferences that may arise from the evidence." People v Ackerman, 257 Mich.App. 434, 450; 669 N.W.2d 818 (2003); see also Bahoda, 448 Mich. at 282. A prosecutor is not required to phrase his or her arguments in the blandest of terms but may use "hard language" when the evidence supports it. Bahoda, 448 Mich. at 282; People v Ullah, 216 Mich.App. 669, 678; 550 N.W.2d 568 (1996). However, the prosecutor must refrain from making prejudicial remarks. Bahoda, 448 Mich. at 283.
Defendant first argues that the prosecutor improperly questioned him about his extramarital affairs. On direct examination by defense counsel, defendant admitted that he had an affair and filed for divorce, and he claimed that CC then threatened to disappear and take the children so that defendant could not see them. When the prosecutor cross-examined defendant, she asked him if he valued CC, loved her, and treated her as an equal. Defendant responded that he wanted to provide the kind of marriage for her taught in the Bible. The prosecutor then asked defendant why he cheated on CC and whether he had more than one affair, even though he conceded that having an affair went against the Bible's teachings. Defendant admitted that he used the affair and a provision of the Bible regarding affairs to try to get out of his marriage to CC. The prosecutor continued this line of questioning by asking defendant if his current wife had been married when defendant first met her, which defendant admitted. The prosecutor also asked defendant if a person named "Pam" had also been married when defendant met her. Defendant denied having a relationship with Pam during her marriage but he admitted that they began dating after the divorce.
Cross-examination tests a witness's credibility and exposes weakness in a witness's account and cross-examiners are afforded wide latitude. People v Evans, 335 Mich.App. 76, 90; 996 N.W.2d 402 (2020).
One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the credibility of the witness. [Id., quoting People v Dellabonda, 265 Mich. 486, 499-500; 251 N.W. 594 (1933).]
Defendant argues that the prosecutor engaged in improper questioning because it elicited irrelevant, "unfounded," and substantially more prejudicial than probative evidence. Prosecutorial misconduct, however, cannot be predicated on good-faith efforts to admit evidence. People v Noble, 238 Mich.App. 647, 660; 608 N.W.2d 123 (1999). "The prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be accepted by the court, as long as that attempt does not prejudice the defendant." Id. at 660-661.
In this case, defendant had already admitted on direct examination that he had an affair while married to CC. The prosecutor's line of questioning sought relevant evidence, given defendant's testimony on direct examination that he had been a good husband who treated CC as his equal and tried to provide a biblical type marriage, and that he would not force CC to engage in sex as part of her duty to act as a "godly wife." The record reflects that the prosecutor used defendant's history of affairs to show that he sought to rely on a biblical "loophole" to seek a divorce. Defendant explained his relationships with other women and denied that he engaged in an affair with his current wife or a person named Pam while either woman had been married. The record does not support defendant's contention that the prosecutor's questions were irrelevant or unduly prejudicial. The prosecutor did not commit misconduct by cross-examining defendant regarding his extramarital affairs about which he admitted on direct examination. Therefore, defendant has failed to meet his burden of establishing plain error.
Defendant also argues that the prosecutor improperly denigrated him for not establishing a career and for holding more than 15 jobs in 10 years. On cross-examination, defendant testified that a husband should be the head of the household the same way that God is head of the church and that a husband should provide for his family. Following defendant's denial that he failed to provide for his family, and denial that he held many jobs or could not keep a job, the prosecutor questioned defendant about many different jobs he had worked over the years. Defendant admitted that he had held about 15 jobs during the first 10 years of his marriage to CC. The record indicates that the prosecutor attempted to show that defendant felt inadequate because of his lack of a career and his inability to support his family, and that he used his control and power over CC to make himself feel better as a man. The record indicates that the prosecutor acted in good faith pursuing that line of questioning to cross-examine defendant to reveal reasons for his abusive and controlling behavior as described by CC and to impeach his credibility. Such evidence had relevance and probative value in establishing facts pertaining to defendant's conduct and the veracity of CC's testimony that defendant, because of his career failures, abused and controlled her for years. Accordingly, the line of questioning was not improper. Noble, 238 Mich.App. at 660. Therefore, defendant has failed to meet his burden of establishing plain error.
Next, defendant argues that the prosecutor improperly vouched for the credibility of two witnesses, Rebecca Walker and Anne Parsell. We disagree.
It is improper for a prosecutor to express personal knowledge or a personal belief regarding the credibility of a witness, or to vouch for the credibility of a witness by implying some special knowledge about the witness's truthfulness. Bahoda, 448 Mich. at 276; People v Meissner, 294 Mich.App. 438, 456; 812 N.W.2d 37 (2011); Thomas, 260 Mich.App. at 455. A prosecutor, however, may argue from the evidence that a witness is credible. Thomas, 260 Mich.App. at 455. The challenged remarks involved permissible arguments, grounded in the evidence, for why the jury should find that witnesses Walker and Parsell were credible. The prosecutor did not suggest that she had any special knowledge, unknown to the jury, that the witnesses told the truth. Therefore, defendant has failed to meet his burden of establishing plain error.
Defendant also argues that the prosecutor improperly shifted the burden of proof by arguing during rebuttal that defendant failed to demonstrate that CC lied during her testimony. "A prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof. Also, a prosecutor may not comment on the defendant's failure to present evidence because it is an attempt to shift the burden of proof." People v Fyda, 288 Mich.App. 446, 463-464; 793 N.W.2d 712 (2010).
In this case, viewed in context, the prosecutor responded to defense counsel's attacks on the veracity of CC's testimony and supporting documents. The prosecutor acknowledged that defendant claimed that CC fabricated documents offered in support of her testimony, but argued that the evidence did not support defendant's claims that the documents were fabricated, and further argued that defendant had not persuasively shown that CC falsely testified and manufactured her allegations. These were proper responses to defendant's attacks on CC's credibility. See also People v Kennebrew, 220 Mich.App. 601, 608; 560 N.W.2d 354 (1996) (an otherwise improper remark may not rise to an error requiring reversal when the prosecutor is responding to defense counsel's argument). Accordingly, defendant has failed to establish prosecutorial misconduct. Therefore, he has failed to meet his burden of establishing plain error.
Next, defendant argues that the prosecutor improperly elicited comments from Detective Sergeant Watson regarding defendant's demeanor during his interview. Defendant challenges the following line of questioning:
Q. What do you mean he wanted to lead the conversation? Tell me about that. What made you think that?
A. When I speak to people, when I try and have a free dialogue with somebody, it—you can—or I can tell if somebody is trying to steer me or if somebody is trying to control the conversation by either maybe not directly answering my questions or going on to different subjects, and that seemed to be— I wasn't getting necessarily direct answers when I was speaking with him until I'd kind of bring him back and we would go back to the subject that I was talking to him on.
Q. So he was being evasive with you? Is that what I'm understanding?
A. Yes.
* * *
Q. You mentioned earlier that he was being evasive?
A. Yes.
Q. During the course of your interview with the defendant, did you feel like he was giving you complete information about these stories he told?
A. No.
Q. Why not?
A. He seemed to cap [sic] every time we would talk that he—that these things occurred but then she agreed to these things. And then as we—we would be talking. I would be asking him questions, and he wouldn't be answering—he wouldn't be giving me an answer. If I would ask him a direct question, he wouldn't give me a direct answer. He would kind of sidestep it. And then when I'd bring it
back to him and when he realized that I had certain information, then he would acknowledge that, well, yes, that did occur but then she agreed to that. I didn't feel like I was ever getting a full explanation of anything.
Defendant argues that this testimony amounted to improper commentary on his credibility. We disagree.
"It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, since matters of credibility are to be determined by the trier of fact." People v Smith, 158 Mich.App. 220, 230; 405 N.W.2d 156 (1987). In this case, the witness did not directly comment on defendant's credibility but merely explained defendant's evasive responses to questions during his interview. If the questioning could be considered objectionable, a timely objection and curative instruction could have alleviated any perceived prejudice. Because defendant did not object at trial or seek a curative instruction, appellate relief is not warranted. "[A] party may not harbor error at trial and then use that error as an appellate parachute[.]" People v Szalma, 487 Mich. 708, 726; 790 N.W.2d 662 (2010) (citation omitted).
Defendant also argues that the prosecutor improperly argued facts not in evidence by remarking during closing argument that CC often had "nightmares of being in a bedroom where the defendant" stood "with a gun just waiting to kill her." The record, however, reflects that CC testified at trial that she had nightmares about defendant. She explained that the nightmares were short because she would wake in a panic believing that defendant would kill her. She described one or two dreams where defendant actually had a gun. Her last such dream occurred about two weeks before trial and she continued to fear defendant. The prosecutor's remarks during closing argument were supported by CC's trial testimony. Therefore, defendant has failed to meet his burden of establishing plain error.
Defendant also argues that the prosecutor improperly referred to him as a "monster." Considering the extensive evidence presented at trial of defendant's violent physical and sexual abuse, the prosecutor's use of "hard language" in her arguments was not improper. Ullah, 216 Mich.App. at 678. CC's testimony describing the severity and pervasiveness of defendant's sexual abuse over numerous years supported the prosecutor's characterization of defendant. Even if we conclude that defendant has established plain error in this regard, we are not convinced that defendant has established prejudice, i.e., that the error affected the outcome of the trial court proceedings. The prosecution presented substantial evidence from which the jury could find defendant guilty beyond a reasonable doubt of the charged offenses and he has failed to show that the plain, forfeited error resulted in the conviction of an actually innocent defendant or that the error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of his innocence.
Defendant also claims that the prosecutor improperly accused defense counsel of acting illegally in her rebuttal argument. At the conclusion of his closing argument, defense counsel stated the following:
Now the last thing that I'm gonna disagree upon with the prosecutor, and I'd like to leave you with this: That it tells you the mindset of the government, okay? The assistant prosecutor told you it was your job to go back into that jury
room and to start out with criminal sexual conduct-first degree and then if you couldn't reach consensus on that, that you would then go to criminal sexual conduct in the third degree. And she asked you not to compromise, okay? What your obligation is is to go back into that jury room—and the judge is gonna tell you that my client enjoys the presumption of innocence and that innocence follows him throughout this trial until you return a verdict otherwise. So when you go back into that jury room, I'm gonna suggest to each and every one of you that where you start is not guilty because as Brad sits here today, he is not guilty, and the only way it can change from something other than not guilty to every one of the counts is if you believe that the prosecutor has met their burden of proof as to each and every one of the elements. And that's proof beyond a reasonable doubt. And it's my position on behalf of my client that they haven't done that and you're not gonna get—you don't need to get any further than Brad Gniewek—Brad Gniewek—is not guilty.
The prosecutor began her rebuttal argument by stating:
I got a lot to say in response to that, but I'm gonna start off with, first and foremost, what he just asked you to do is against the law. You will be given the law by the judge. You may not start out with not guilty, and him suggesting that it's the mindset of the government that we ask you to do that and that it's somehow perverse of me to ask you to start with criminal sexual conduct in the first-degree, that is not true at all. He just asked you to violate the Court's instruction before you were ever even given it.
The Court is going to tell you in Criminal Jury Instruction 3.11 in Paragraph (6), "In this case, there are several different crimes that you may consider. When you discuss the case, you must . . ."—must means you have no other choice. ". . . You must consider the crime of Criminal Sexual Conduct-First Degree first."
He just asked you to violate the law. Please don't do that. Please follow the instructions that the judge gives you because they are the law and they are the law that you are to follow.
Viewed in context, the prosecutor's remarks were directly responsive to defense counsel's argument regarding how the jury should conduct its deliberations. Although defense counsel could properly remind the jury that defendant enjoyed the presumption of innocence, defense counsel appears to have strayed slightly regarding the order in which the jury could consider the charged offenses and the lesser included offenses. The prosecution appears to have taken issue with that portion of defense counsel's argument and responded. Considering the responsive nature of the remarks, they were not improper. Kennebrew, 220 Mich.App. at 608. Moreover, although the prosecutor characterized defense counsel's remarks as being inconsistent with the law, the prosecutor also asked the jury to "[p]lease follow the instructions that the judge gives you because they are the law and they are the law that you are to follow." The record reflects that the trial court later instructed the jury on how it should consider the charges and defendant does not contend that the court's instructions were improper. Even supposing that defendant has established plain error in this regard, defendant, nevertheless, has failed to demonstrate prejudice, i.e., that the error affected the outcome of the lower court proceedings. Defendant has not shown that the plain, forfeited error resulted in the conviction of an actually innocent defendant or that the error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of his innocence. Accordingly, he is not entitled to relief.
B. EXPERT TESTIMONY
Defendant next argues that Anne Parsell, a licensed professional counselor who treated CC and diagnosed her with posttraumatic stress disorder (PTSD), improperly provided expert testimony without being qualified as an expert. Because defendant did not object to the challenged testimony at trial, this issue is unpreserved and our review is limited to plain error affecting defendant's substantial rights. Carines, 460 Mich. at 763-764.
In People v Spaulding, 332 Mich.App. 638, 658; 957 N.W.2d 843 (2020), this Court explained:
Generally, expert testimony is not admissible unless the trial court first determines that the expert's theories, methodology, and underlying data are reliable under MRE 702, which in turn, incorporates the standards of reliability that the United States Supreme Court established in Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579; 113 S.Ct. 2786; 125 L Ed2d 469 (1993). See Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 779-781; 685 N.W.2d 391 (2004). The trial court is not tasked with determining whether the proposed expert's evidence is true or universally accepted. Chapin v A & L Parts, Inc, 274 Mich.App. 122, 127; 732 N.W.2d 578 (2007). The evidence must also have some rational benefit to the trier of fact's ability to resolve a fact at issue in the matter. Daubert, 509 U.S. at 591-592. A "Daubert hearing" is simply an evidentiary hearing under MRE 702 and MCL 600.2955 specifically to make the threshold determination "that the trier of fact is not called on to rely in whole or in part on an expert opinion that is only masquerading as science." Chapin [v A & L Parts, Inc], 274 Mich.App. [122, ] 139[; 732 N.W.2d 578 (2007)].
Parsell's testimony went beyond describing her treatment of CC and the children, and could be characterized as expert testimony. In particular, Parsell discussed domestic-violence abuse victims in general, the cycle of abuse, the cycle of violence, and explained why victims of domestic violence often remain with their abuser. Before permitting expert testimony, the trial court must find that the evidence is from a recognized discipline, it is relevant and helpful to assist the trier of fact, and it is presented by a witness qualified by "knowledge, skill, experience, training, or education." People v Christel, 449 Mich. 578, 587; 537 N.W.2d 194 (1995), quoting MRE 702.
MRE 702 defines an expert in general terms, and expertise can be satisfied by a wide array of qualifications. A witness is qualified as an expert by virtue of knowledge, skill, experience, training, or education in a pertinent field. "[W]ithin the scope of the rule are not only experts in the strictest sense of the word, . . . but also the large group sometimes called 'skilled' witnesses. . . ." [People v Beckley, 434 Mich. 691, 711; 456 N.W.2d 391 (1990).]
Whether a witness is qualified to testify as an expert is generally left to the trial court's discretion. Christel, 449 Mich. at 592 n 25. The record in this case discloses that Parsell, a licensed professional counselor, had a master's degree in professional counseling. She had practical experience from working with individuals, groups, and families to address mental illnesses, disorders, and other conditions. To obtain her license, she completed her master's degree and an internship, and also completed 3, 000 hours of supervised work under a trained supervisor, and then passed an examination. She obtained her first license in 2010, and renewed her license every three years. The record, therefore, discloses that Parsell had the requisite training, education, and experience to testify as an expert in the area of professional counseling. Further, expert testimony is admissible when it is relevant and helpful to the jury. Christel, 449 Mich. at 592. Defendant does not address how Parsell's testimony lacked relevance or failed to help the jury to understand the facts of this case. Parsell's testimony regarding domestic-violence victims in general and the cycles of abuse and violence associated with domestic violence provided the jury assistance in understanding why CC remained with defendant despite the many years of abuse that she described.
Although the prosecution did not seek the trial court's qualification of Parsell as an expert, defendant did not object to her testimony on the ground that she lacked qualification to render expert testimony. Even if the trial court erred by permitting Parsell to provide expert testimony without first being qualified as an expert, because the record demonstrates that Parsell had the requisite knowledge and experience to qualify her as an expert to provide the testimony in question, and the testimony was otherwise admissible, the trial court committed harmless error and defendant has failed to establish that the plain, forfeited error resulted in the conviction of an actually innocent defendant or that the error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of his innocence. Accordingly, defendant is not entitled to relief.
Defendant further argues that some of Parsell's testimony exceeded permissible limitations and improperly invaded the jury's province by offering an opinion about the credibility of CC's allegations of sexual abuse and her PTSD-related symptoms. Again, defendant failed to preserve this issue with an appropriate objection at trial. Accordingly, our review is limited to plain error affecting defendant's substantial rights. Carines, 460 Mich. at 763-764.
Parsell testified in both trials and her testimony was similar in both trials. At defendant's first trial, a defense objection was interposed to Parsell's testimony, voir dire of the witness was conducted by defense counsel, the jury was excused, and a hearing without the presence of the jury took place before the trial court overruled the defense objection but gave limiting instructions to the prosecutor before the jury returned. At defendant's second trial, defendant raised a limited objection that Parsell's testimony regarding CC's statements to her while seeking treatment were inadmissible hearsay. No other basis of objection was raised. "An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground." People v Stimage, 202 Mich.App. 28, 30; 507 N.W.2d 778 (1993). Therefore, defendant's limited hearsay objection did not preserve his appellate claim that Parsell's testimony improperly vouched for the credibility of CC's allegations of sexual abuse. We note, the testimony that defendant now objects to is the testimony from his second trial in this case. Defendant's first trial proceeded from December 18-20, 2018; and following a defense motion, resulted in a mistrial. His second trial was from January 8-11, 2019, and resulted in defendant being convicted as charged.
Defendant relies on People v Thorpe, 504 Mich. 230; 934 N.W.2d 693 (2019), in which our Supreme Court addressed limitations on the permissible use of expert testimony in a case involving sexual abuse of children. In that case, the Court held it improper for an expert witness to testify that children usually do not lie when reporting sexual abuse because that type of testimony involves vouching for the complainant's credibility. Id. at 235. In the companion case, People v Harbison, the Court held that "examining physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence that corroborates the complainant's account of sexual assault or abuse because such testimony vouches for the complainant's veracity and improperly interferes with the role of the jury." Id.
This case is distinguishable from Thorpe because it does not involve a medical doctor's testimony and it involves an adult victim, not a child. Because the prosecution offered Parsell's testimony principally to explain why CC did not leave the marriage or report the abuse earlier, this case is more in line with Christel, 449 Mich. at 578, in which the Court addressed the scope of expert testimony related to battered-partner syndrome. Regardless, an expert witness offering testimony in a sexual assault case is generally prohibited from commenting on whether the complainant actually suffered sexual abuse, whether the complainant was truthful, or whether the defendant is guilty. In Christel, 449 Mich. at 580, the Court summarized the limitations on expert testimony involving battered partners as follows:
Generally, battered woman syndrome testimony is relevant and helpful when needed to explain a complainant's actions, such as prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting the abuse, or recanting allegations of abuse. If relevant and helpful, testimony regarding specific behavior is permissible. However, the expert may not opine whether the complainant is a battered woman, may not testify that defendant was a batterer or guilty of the instant charge, and may not comment on the complainant's truthfulness. Moreover, the trial court, when appropriate, may preclude expert testimony when the probative value of such testimony is substantially outweighed by the danger of unfair prejudice.
More recently, in Spaulding, 332 Mich.App. at 659-660, this Court addressed the admissibility of expert testimony regarding domestic abuse that is based on a recognized discipline, stating:
The gravamen of defendant's argument appears to be that Black-Pond's testimony and expertise regarding domestic violence and how victims and abusers tend to act and react was irrelevant to defendant's charge of stalking, but the jury would have nevertheless regarded her testimony as devastating to the defense. As
discussed earlier, defendant's stalking was inextricably intertwined with his history of abusive behavior toward AA. [People v Sholl, 453 Mich. 730, 742; 556 N.W.2d 851 (1996)]; [People v Jackson, 498 Mich. 246, 263-265; 869 N.W.2d 253 (2015)]. Furthermore, defendant raises no serious challenge to Black-Pond's qualifications and expertise, nor do we think he could, and it is well-established that battered-partner syndrome "is from a recognized discipline." People v Christel, 449 Mich. 578, 592; 537 N.W.2d 194 (1995), citing People v Wilson, 194 Mich.App. 599, 603; 487 N.W.2d 822 (1992). It has also long been recognized that the behavior of victims of varying kinds of trauma often appears irrational and confusing to most people; and expert testimony is admissible and appropriate to explain that behavior with no need to engage in an analysis of scientific reliability. People v Beckley, 434 Mich. 691, 715-716, 719-721; 456 N.W.2d 391 (1990) (opinion by Brickley, J.); id. at 734 (Boyle, J., concurring); Christel, 449 Mich. at 590-591; People v Peterson, 450 Mich. 349, 369; 537 N.W.2d 857 (1995).
Consequently, counsel would have had no grounds for requesting a Daubert hearing into the scientific reliability of Black-Pond's testimony. Furthermore, Black-Pond's testimony was relevant and necessary because an understanding of the psychological and practical dynamics between abusers and victims cannot be presumed to be common knowledge. As a consequence, jurors might naturally question why a victim would remain with an abuser. In turn, they might then also question the victim's credibility or draw inaccurate conclusions about the victim's motives or intentions. Credibility of a witness is almost always at issue, and, thus, evidence bearing on that credibility is always relevant. People v Lyons, 51 Mich. 215, 216; 16 N.W. 380 (1883); In re Dearmon, 303 Mich.App. 684, 696-697; 847 N.W.2d 514 (2014). Black-Pond's expert testimony offered an explanation for why AA's counterintuitive behavior both during and after her relationship with defendant was, in fact, normal and expected for a victim of abuse. Any request for a Daubert hearing would have been meritless, and the failure to request one cannot, therefore, be a basis for finding counsel ineffective. See People v Riley (After Remand), 468 Mich. 135, 142; 659 N.W.2d 611 (2003).
In this case, Parsell testified regarding the characteristics of domestic-violence victims which provided the jury insight into why CC remained in her marriage with defendant. Parsell treated CC and diagnosed her with PTSD based on the symptoms CC manifested. Defendant argues that Parsell improperly testified regarding her PTSD diagnosis because Parsell based the diagnosis solely on CC's allegations, and by so testifying improperly conveyed to the jury that Parsell found CC's allegations truthful.
The record indicates that the prosecutor asked Parsell to describe CC's demeanor and she testified that CC would not make eye contact and displayed a flat affect when describing her history with defendant. She explained that such symptoms are common among abuse survivors. Parsell also testified that CC reacted out of her need to protect her children, not for herself. Parsell concluded that CC's defenses had been broken down for so long that she could not fight or protect her children if she fled. Parsell also formed the opinion that CC's religious faith affected her ability to leave defendant. Parsell testified that CC endured as a way to protect her children. Parsell found that CC manifested all the signs of symptoms associated with PTSD. Like the expert in Spaulding, Parsell provided relevant and necessary testimony because an understanding of the psychological and practical dynamics between abusers and victims is not presumed common knowledge and such testimony assisted the jury in understanding the dynamics of CC's relationship with defendant and her counterintuitive behavior.
During her rebuttal argument, the prosecutor relied in part on Parsell's testimony to urge the jury to find CC credible. To the extent that some of Parsell's testimony could be viewed as improperly vouching for CC's credibility, defendant has failed to demonstrated that the error affected his substantial rights. The prosecution principally offered Parsell's testimony for the permissible purpose to assist the jury in understanding why a person in CC s position would remain in her marriage and not report the abuse even though sexually abused over many years. The record reflects that, contrary to defendant's contention, the case was not solely a credibility contest between defendant and CC where Parsell's opinion regarding CC's credibility improperly influenced the jury. The prosecution presented substantial other evidence corroborating CC's accounts of the abuse that she suffered at defendant's hands for many years. For example, the couple's own daughter described hearing CC yell for help and scream when defendant and CC were locked in their bedroom. CC also made multiple prior consistent statements regarding the abuse to Karla Johnson, Rebecca Walker, and Sandra Wright, long before she reported the abuse and charges were filed. Additionally, CC documented the abuse in notes that she prepared over the years and kept hidden at her workplace so defendant could not find them. Parsell's limited testimony, to the extent that it may have improperly vouched for CC's credibility, was not outcome-determinative. Defendant, therefore, has not demonstrated that any error affected his substantial rights.
C. DEFENDANT'S WITNESS LIST
Defendant argues that the trial court erred when it precluded him from calling any witnesses as a sanction for failing to file a witness list before trial. We disagree.
"A trial court's decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008) (citations omitted). Defendant also claims that the trial court's ruling deprived him of his constitutional right to present a defense. We review constitutional claims de novo. People v Kurr, 253 Mich.App. 317, 327; 654 N.W.2d 651 (2002).
On the first day of defendant's first trial, defense counsel acknowledged that the defense never filed a witness list. Counsel requested that he still be permitted to call defendant's parents, Terry and Stanley Gniewek, as witnesses at trial. The prosecutor objected because defendant never filed a witness list. Although defense co-counsel, William Amadeo, claimed that he never received a copy of the court's scheduling order after he began representing defendant approximately two months earlier, the trial court noted on the record that the public court file contained a copy of the scheduling order relieving the prosecutor of any obligation to provide it. The trial court refused to allow defendant to rely on a late-filed witness list, stating:
So the issue is as to whether or not these two witnesses can testify. The Scheduling Order which the Court entered on March 19th of 2018 provides that discovery is pursuant to MCR 6.201. There is a 30-day cutoff prior to trial date.
I mean Mr. Amadeo filed an Appearance on October 10th. Today is December 18th. There's no reason why there wasn't a witness list filed. I've never—I don't know. I mean I was a defense attorney for 20 years. Whether you have a scheduling order or not, you file a witness list. There's—there's no witness list in this file. So I don't know what the prosecutor did, but you didn't file a witness list. So those witnesses are not testifying. Now, of course, that doesn't prohibit Mr. Gniewek from testifying because he's entitled to.
After the court declared a mistrial at defendant's first trial, it refused to change its previous ruling to allow defendant to call witnesses at the second trial because the deadline for filing his witness list had been missed.
MCR 6.201(A)(1) provides that a final witness list is due 28 days before trial. The record indicates that defendant failed to timely file a witness list before trial. Therefore, the prosecution did not have notice of any witnesses the defense intended to call at trial. Although defense counsel claimed that he e-mailed a witness list to the prosecutor, even that had been untimely because defense counsel sent it just nine days before the start of trial. Because it is undisputed that defendant failed to abide by the trial court's scheduling order and the court rule, and did not timely file a witness list before trial, the trial court did not abuse its discretion by refusing to allow defendant to call witnesses as a sanction for not following the court's scheduling order. In his brief on appeal, defendant identifies witnesses who he claims would have impacted his defense, including the person who attempted to serve a divorce complaint on CC, and psychologist Mark Zaroff, Ph.D., who performed a psychological evaluation of CC. Not only did defendant fail to timely file a witness list naming these persons, when he raised this issue in the trial court, defendant only expressed an intent to call his parents. He never requested or expressed an intent to call any other witnesses in support of his defense. Although the trial court had discretion to permit the late endorsement of a witness, defendant cannot demonstrate that the trial court abused its discretion by precluding him from calling witnesses who he never requested to call below.
We also reject defendant's related argument that the trial court's ruling denied him his constitutional right to present a defense. A defendant has a constitutionally guaranteed right to present a defense, which includes the right to call witnesses. U.S. Const, Am VI; Const 1963, art 1, § 20; People v Hayes, 421 Mich. 271, 278-279; 364 N.W.2d 635 (1984). Although the trial court's ruling barred defendant from calling witnesses, the trial court based its ruling on defense counsel's failure to follow the court's scheduling order. In People v King, 297 Mich.App. 465, 473-474; 824 N.W.2d 258 (2012), this Court explained:
There is no doubt that based on the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process or Confrontation Clauses, "the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v Kentucky, 476 U.S. 683, 690; 106 S.Ct. 2142; 90 L.Ed.2d 636 (1986) (citation omitted); see also People v Aspy, 292 Mich.App. 36, 48-49; 808 N.W.2d 569 (2011). "Few rights are more fundamental than that of an accused
to present evidence in his . . . own defense." [People v Unger, 278 Mich.App. 210, 249; 749 N.W.2d 272 (2008)]. But this right is not unlimited and is subject to reasonable restrictions. United States v Scheffer, 523 U.S. 303, 308; 118 S.Ct. 1261; 140 L.Ed.2d 413 (1998) (opinion by Thomas, J.). The right to present a complete defense "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v Mississippi, 410 U.S. 284, 295; 93 S.Ct. 1038; 35 L.Ed.2d 297 (1973). Michigan, like other states, "has a legitimate interest in promulgating and implementing its own rules concerning the conduct of trials." [People v ]Unger, 278 Mich.App. [210, ] 250[; 749 N.W.2d 272 (2008)]. And our Supreme Court has "broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Scheffer, 523 U.S. at 308 (opinion by Thomas, J.). Thus, an "accused must still comply with 'established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'" People v Hayes, 421 Mich. 271, 279; 364 N.W.2d 635 (1984), quoting Chambers, 410 U.S. at 302.
The trial court barred defendant from calling witnesses for not complying with the deadline for filing witness lists. The court's ruling was neither arbitrary nor unreasonable because the deadline prevents parties from being surprised at trial by the late addition of witnesses. Moreover, the record reflects that defendant presented a defense and his counsel advocated vigorously on his behalf. Accordingly, the trial court's ruling did not infringe on defendant's constitutional right to present a defense.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that the trial court erred by denying his motion for a new trial on the issue of ineffective assistance of counsel. We disagree.
Two attorneys represented defendant at trial, William McCririe III and Amadeo, both of whom testified at the evidentiary hearing conducted by the trial court. Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's factual findings are reviewed for clear error. Id. Whether the facts as found by the trial court establish a violation of the defendant's right to the effective assistance of counsel is a question of constitutional law, which is reviewed de novo. Id.
A claim of ineffective assistance of counsel premised on the failure to call witnesses is analyzed under the same standard as all other claims of ineffective assistance of counsel, i.e., a defendant must show that "(1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). Defendant must overcome the strong presumption that the challenged action "was born from a sound trial strategy." Id. at 52. Further, "defendant necessarily bears the burden of establishing the factual predicate for his claim." People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001) (citation omitted).
Defendant first argues that his counsel denied him effective assistance by failing to timely file a witness list which led to the trial court precluding him from calling defense witnesses. We agree that counsel's failure to timely file a witness list fell below an objective standard of reasonableness. We are not persuaded, however, that a reasonable probability exists that the outcome of defendant's trial would have been different. The prosecution presented substantial evidence at trial from which the jury could find defendant guilty beyond a reasonable doubt. Further, the evidence presented at the posttrial evidentiary hearing fails to establish that the trial court clearly erred by finding that defendant failed to establish that he suffered prejudice because of defense counsel's defective performance.
Defendant did not call at the evidentiary hearing any witnesses who he complains he could not call at trial. Therefore, he failed to establish a factual record in support of his claim that the witnesses would have provided favorable testimony that could have made a different outcome reasonably probable. In any event, the evidentiary hearing testimony of defendant's trial counsel also supports the trial court's finding that defendant was not prejudiced by counsel's failure to timely file a witness list. The record discloses that the only witnesses who defense counsel contemplated calling at trial were defendant's parents, particularly defendant's mother, who possibly could have contradicted some of CC's testimony. However, defense counsel explained that in his professional opinion their testimony would have appeared to be self-serving and biased because of their relationship to defendant. Counsel also agreed that because defendant's parents would not be viewed as objective witnesses, they could have hurt defendant's case. Therefore, counsel did not think he would have actually called them to testify, even if he had been permitted to do so.
Defendant also complains that counsel's failure to timely file a witness list precluded him from calling Mark Zaroff, Ph.D., a licensed psychologist, who performed a psychological evaluation of CC in February 2017 and would have testified that she suffered from obsessive compulsive disorder with histrionic and narcissistic personality features. Defendant complains further that defense counsel's failure to file a witness list prevented him from calling Craig Mauer, a process server who attempted to serve a divorce complaint on CC in 2012 and would have testified that CC made statements then about wanting to maintain a relationship with defendant.
The testimony at the evidentiary hearing, however, indicates that defense counsel did not seriously consider calling either of these persons as witnesses at trial. Indeed, regarding Dr. Zaroff, the trial court had previously ruled that his report and conclusions about CC's mental state were inadmissible. We are not convinced that the trial court erred in that regard because the fact that a victim suffers from mental illness is not relevant to impeach the victim's credibility, nor would such testimony establish a defense to the charged offenses. Regarding Mauer, besides questionable relevance to the issues in this case, the record reflects that CC admitted at trial that she refused to accept service of the divorce papers in 2012, and she explained that she had been reluctant to leave defendant at that time because she wanted to protect her children. Defense counsel agreed that Mauer's proposed testimony would have been cumulative of CC's admission that she refused to accept service of the divorce papers. Mauer's proposed testimony would not have impeached CC's explanation of her reluctance to leave defendant at that time.
In light of this record, defendant has not established prejudice by counsel's failure to timely file a witness list. That is, defendant has not demonstrated a reasonable probability that the outcome of his trial would have been different if he had not been foreclosed from calling witnesses. Moreover, although defendant now claims that he would not have testified if he called witnesses, defense counsel's testimony at the evidentiary hearing indicated that he did not seriously consider calling other witnesses, except for possibly defendant's parents, the value of which counsel agreed would have been questionable and possibly detrimental to defendant's case. In any event, defendant independently made the decision to testify. Accordingly, the trial court did not err by rejecting this ineffective-assistance claim.
Next, defendant argues that trial counsel provided ineffective assistance by not using a peremptory challenge to remove a juror who admitted being a personal friend of one of the prosecution's witnesses, Walker. The record indicates that both the prosecutor and defense counsel questioned the juror about the nature of his relationship with Walker and her family. The juror indicated that the relationship would not affect his ability to remain fair and impartial.
The decision whether to challenge or excuse a juror is a matter of trial strategy, and a court generally will not substitute its judgment for that of counsel or use the benefit of hindsight to assess counsel's performance. People v Unger, 278 Mich.App. 210, 258; 749 N.W.2d 272 (2008). As explained in Unger:
Perhaps the most important criteria in selecting a jury include a potential juror's facial expressions, body language, and manner of answering questions. However, as a reviewing court, we cannot see the jurors or listen to their answers to voir dire questions. For this reason, this Court has been disinclined to find ineffective assistance of counsel on the basis of an attorney's failure to challenge a juror. [Unger, 278 Mich.App. at 258 (quotation marks and citations omitted).]
In this case, the trial court correctly found that defense counsel's decision not to challenge or excuse the juror despite the juror's acknowledged relationship with a prosecution witness and her family arose from counsel's trial strategy. The record indicates that defense counsel questioned the juror about his relationship with the witness to determine whether the juror could be fair and impartial. The juror assured that he could and would remain fair and impartial and disclosed nothing that revealed an inability to fulfill his role as a juror. We are not convinced that defense counsel provided defendant ineffective assistance in this regard.
Defendant also argues that defense counsel provided ineffective assistance by not moving for a change of venue from Caro, CC's hometown. Defense counsel testified at the evidentiary hearing that he considered filing a motion for a change of venue but he did not do so because of the high hurdle to obtain a change of venue and because he was not aware of any information that showed that defendant could not receive a fair and impartial trial in the existing venue.
A defendant generally must be tried in the county or city where the crime was committed. People v McBurrows, 504 Mich. 308, 313; 934 N.W.2d 748 (2019). Exceptions to this rule exist if good cause is shown by either party. People v Jendrzejewski, 455 Mich. 495, 499-500; 566 N.W.2d 530 (1997); MCL 762.7. Good cause to change venue may exist due to pretrial publicity. As explained in Unger:
The right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent' jurors. Therefore, it may be appropriate to change the venue of a criminal trial when widespread media coverage and community interest have led to actual prejudice against the defendant. Community prejudice amounting to actual bias has been found where there was extensive highly inflammatory pretrial publicity that saturated the community to such an extent that the entire jury pool was tainted, and, much more infrequently, community bias has been implied from a high percentage of the venire who admit to a disqualifying prejudice. Changes of venue might be required in cases involving extensive egregious media reporting, a barrage of inflammatory publicity leading to a pattern of deep and bitter prejudice against the defendant, and a carnival-like atmosphere surrounding the proceedings. Changes of venue might also be required in cases involving highly inflammatory attention to sensational details. [Unger, 278 Mich.App. at 254 (quotation marks, alterations, and citations omitted).]
Defendant argues that the community sentiment was decidedly against him because CC's family lived in Caro. Defendant, however, failed to produce any evidence that his case garnered widespread publicity or that community sentiment prejudiced his ability to be tried before a fair and impartial jury. During voir dire, some potential jurors indicated that they knew defendant, CC, and others associated with them or this case, but defense counsel acknowledged that he did not see any indication that defendant would be deprived of a fair and impartial jury to hear the case. Because defendant failed to establish factual support for his claim of inability to obtain a fair and impartial jury in Tuscola County, he cannot establish that defense counsel performed defectively by not moving for a change of venue. Similarly, he cannot establish a reasonable probability that any such motion would have been successful. Accordingly, defense counsel did not provide ineffective assistance by not moving for a change of venue.
E. MCL 768.27b
The prosecution charged defendant with multiple counts of CSC-I for acts committed in Tuscola County between 2005 and 2010. Defendant argues that the trial court erred by permitting the prosecution to introduce evidence of other uncharged acts that occurred after defendant and CC moved away from Tuscola County in 2010 and before CC reported defendant's conduct in 2015. These uncharged acts were offered under MCL 768.27b, as evidence of other acts of domestic violence. MCL 768.27b provides in relevant part:
(1) Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.
* * *
(6) As used in this section:
(a) "Domestic violence" or "offense involving domestic violence" means an occurrence of 1 or more of the following acts by a person that is not an act of self-defense:
(i ) Causing or attempting to cause physical or mental harm to a family or household member.
(ii) Placing a family or household member in fear of physical or mental harm.
(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.
(iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(b) "Family or household member" means any of the following:
(i ) A spouse or former spouse.
* * *
(c) "Sexual assault" means a listed offense as that term is defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
In People v Katt, 468 Mich. 272, 278; 662 N.W.2d 12 (2003), our Supreme Court explained:
The decision whether to admit evidence is within a trial court's discretion. This Court reverses it only where there has been an abuse of discretion. However, the decision frequently involves a preliminary question of law, such as whether a rule of evidence or statute precludes the admission of the evidence. We review questions of law de novo. Therefore, when such preliminary questions are at issue, we will find an abuse of discretion when a trial court admits evidence that is inadmissible as a matter of law. [Citations omitted.]
Under MCL 768.27b(1), the trial court could admit evidence of defendant's commission of other acts of domestic violence or sexual assault for any purpose for which it was relevant, subject to exclusion under MRE 403. On appeal, defendant does not dispute that the challenged evidence qualified for admission under MCL 768.27b, but he argues that it should have been excluded under MRE 403 as unfairly prejudicial. We disagree.
To determine if evidence admissible under MCL 768.27b should be excluded under MRE 403, the trial court must perform a balancing test and consider the following factors, among others:
[T]he time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case,
the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [People v Daniels, 311 Mich.App. 257, 273; 874 N.W.2d 732 (2015), quoting People v Blackston, 481 Mich. 451, 462; 751 N.W.2d 408 (2008).]
"Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence." Blackston, 481 Mich. at 462. In People v Watkins, 491 Mich. 450; 818 N.W.2d 296 (2012), our Supreme Court considered the application of MRE 403 in the context of evaluating the admissibility of evidence offered under MCL 768.27a, which is similar to MCL 768.27b, but applies to cases involving other acts of sexual misconduct with a minor.
[W]hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference. In reaching this conclusion, we join several federal courts that have addressed this issue with respect to FRE 414 and 403.
This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Watkins, 491 Mich. at 487-488 (citation omitted).]
Defendant argues that the trial court failed to conduct a balancing test to determine whether the evidence should be excluded under MRE 403. However, the trial court specifically addressed the admissibility of the evidence and whether it should be excluded under MRE 403 at defendant's first trial, and it reaffirmed that ruling at defendant's second trial.
Defendant has not shown that the trial court erred by refusing to exclude the evidence under MRE 403. The other incidents between defendant and CC were committed after the charged acts. They were relevant to provide an understanding of the history of defendant and CC's relationship, including an explanation for why CC eventually left defendant and decided to pursue the charges in this case. Indeed, without the evidence, the jury would have been left with an approximate five-year gap in the time line. The jury knew that the charged offenses allegedly were committed between 2005 and 2010, and that CC did not leave defendant and pursue charges against him until 2015. The challenged evidence provided the jury an understanding of what transpired during the five-year period between 2010 and 2015. The other acts were substantially similar to conduct that gave rise to the charged offenses. Under these circumstances, defendant has not shown that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Accordingly, the trial court did not abuse its discretion by admitting the evidence under MCL 768.27b.
F. HEARSAY
Defendant argues that the trial court erred when it allowed the prosecution to present testimony regarding CC's out-of-court statements to witnesses Johnson and Walker concerning defendant's physical and sexual abuse during her marriage. Defendant argues that the statements were inadmissible hearsay. Defendant preserved this issue with respect to Johnson's testimony, but did not object to the challenged statements during Walker's testimony, thereby failing to preserve that portion of this issue. We review the trial court's decision to admit Johnson's testimony for an abuse of discretion, Katt, 468 Mich. at 278, and review the challenged portion of Walker's testimony for plain error affecting defendant's substantial rights, Carines, 460 Mich. at 763-764.
Walker's and Johnson's testimonies involved statements that CC made to them earlier in her marriage, well before CC decided to leave defendant and divorce him in 2015. The statements were offered as prior consistent statements under MRE 801(d)(1)(B), which provides that a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
A consistent statement made after the motive to fabricate arose is not admissible under MRE 801(d)(1)(B). People v McCray, 245 Mich.App. 631, 642; 630 N.W.2d 633 (2001).
In defense counsel's opening statement, he suggested that it made no sense that CC would wait until August 2015 to report allegations of sexual abuse that allegedly occurred between 2005 and 2010. Defense counsel urged the jury to consider CC's motivation for testifying and argued that the case served as a setup. At trial, defense counsel cross-examined CC in an effort to establish that she fabricated her allegations and lacked credibility. Through defendant's testimony, defense counsel presented a scenario that the couple had a good marriage, but that CC used the children against him in their divorce. Defense counsel questioned the timing of the allegations, which were made around the time that CC left defendant and filed for divorce in 2015. The record indicates that the defense pursued the theory that CC's motive to fabricate the allegations arose in 2015, when she decided to leave and divorce defendant. CC's earlier statements to Johnson and Walker, which were consistent with her 2015 allegations, were admissible as prior consistent statements to rebut the defense implication that the more recent allegations were fabricated. Accordingly, the trial court did not abuse its discretion by admitting CC's statements to Johnson and defendant has failed to establish plain error in the admission of CC's statements to Walker.
Within this issue, defendant also refers to Parsell's testimony describing statements that CC made to her, and he seemingly argues that the statements were not admissible, but he does not provide any substantive argument explaining why the testimony lacked admissibility. Defendant, therefore, abandoned his claim that CC's statements to Parsell were inadmissible. See People v McGraw, 484 Mich. 120, 131 n 36; 771 N.W.2d 655 (2009) ("Failure to brief an issue on appeal constitutes abandonment."); People v Green, 313 Mich.App. 526, 535; 884 N.W.2d 838 (2015) ("An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.").
Moreover, contrary to what defendant implies, CC's statements to Parsell were not admitted as prior consistent statements under MRE 801(d)(1). Rather, the trial court admitted CC's out-of-court statements to Parsell under the medical-treatment exception to the hearsay rule, MRE 803(4). Defendant fails to address this exception. The record indicates that Parsell's testimony involved statements made by CC during her treatment with Parsell, and because defendant offers no argument for why the medical-treatment exception should not apply, he has not established any error respecting that testimony.
G. SENTENCING
Defendant raises several claims of sentencing error. We conclude that defendant is not entitled to resentencing.
Initially, although defendant asserts that defense counsel objected at sentencing to the scoring of several offense variables, he fails to offer any substantive argument on appeal addressing the scoring of any of those variables other than to contend that they should have been assessed zero points without any explanation. By failing to address the scoring of the sentencing guidelines offense variables, defendant has abandoned any claim that the guidelines were improperly scored. McGraw, 484 Mich. at 131 n 36; Green, 313 Mich.App. at 535.
Defendant also argues that the trial court imposed disproportionate and unreasonable sentences. Defendant's sentences for each count that the jury found him guilty, however, fall within the applicable sentencing guidelines range of 171 to 285 months (i.e., 14.25 years to 23.75 years). Because defendant's sentences are within the guidelines range, they are not subject to review for reasonableness. Rather, under MCL 769.34(10), this Court is required to affirm the sentences absent a scoring error or reliance on inaccurate information when imposing the sentence. People v Schrauben, 314 Mich.App. 181, 196; 886 N.W.2d 173 (2016); see also People v Anderson, 322 Mich.App. 622, 636-637; 912 N.W.2d 607 (2018). As indicated, defendant abandoned any claim that the guidelines were improperly scored, and having failed to present any evidence or substantive argument, he has failed to establish that the trial court relied on inaccurate information. Therefore, defendant's sentences are not subject to review for reasonableness.
Defendant further argues that his 23-year minimum sentences when aggregated because of consecutive sentencing amount to cruel or unusual punishment in violation of the United States and Michigan Constitutions. U.S. Const, Am VIII; Const 1963, art 1, § 16. The limitation on review in MCL 769.34(10) does not apply to defendant's constitutional challenge to his sentences. People v Powell, 278 Mich.App. 318, 323; 750 N.W.2d 607 (2008). However, a sentence within the guidelines range is considered presumptively proportionate. Id.; see also People v Armisted, 295 Mich.App. 32, 51; 811 N.W.2d 47 (2011). A proportionate sentence is neither cruel nor unusual, Powell, 278 Mich.App. at 323; see also People v Bowling, 299 Mich.App. 552, 558; 830 N.W.2d 800 (2013).
Defendant argues that his sentences are disproportionate because, if the trial court had not overruled his objections to the scoring of the guidelines, his guidelines range would have been 108 to 180 months. Because defendant has not provided any basis for concluding that the guidelines were incorrectly scored, we reject this argument. "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." People v Harris, 261 Mich.App. 44, 50; 680 N.W.2d 17 (2004) (citation omitted).
Defendant further argues that, because the trial court imposed a consecutive sentence, he is subject to an aggregate minimum sentence of 46 years, almost twice the high end of the sentencing guidelines range. However, where consecutive sentences are imposed, the appropriate inquiry is whether each individual sentence is proportionate, not the aggregate amount of time of the combined sentences. People v Baskerville, 333 Mich.App. 276, 291; 963 N.W.2d 620 (2020). In Baskerville, this Court explained that, "because the individual sentences do not exceed the maximum punishment allowed for each sentence, which is life imprisonment, . . . the aggregate of the sentences is not disproportionate." In this case, violation of MCL 750.521b(1)(f) carries a maximum sentence of life in prison under MCL 750.521b(2)(a). Therefore, because the individual sentences do not exceed the maximum punishment allowed for each sentence, the aggregate of the sentences is not disproportionate.
A sentence constitutes cruel or unusual punishment when it is grossly disproportionate to the seriousness of the circumstances surrounding the offense and the offender. See People v Bullock, 440 Mich. 15, 32; 485 N.W.2d 866 (1992). In determining whether a punishment is so disproportionate as to be constitutionally cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty, and compares the penalty to that imposed for other crimes in this state and to the penalty imposed for the same offense in other states. People v Benton, 294 Mich.App. 191, 204; 817 N.W.2d 599 (2011). This Court has held that the 25-year mandatory minimum sentence under MCL 750.520(2)(b) for certain CSC-I crimes does not constitute cruel or unusual punishment under the Eighth Amendment or Const 1963, art 1, § 16. Benton, 294 Mich.App. at 203-207.
In this case, evidence established that defendant sexually abused CC for numerous years. Moreover, defendant avoided prosecution for years because he convinced CC that Michigan law did not prohibit him from sexually assaulting his wife. The fact that defendant did not have a prior felony record is not a mitigating factor under the circumstances of this case involving repeated physical and sexual abuse for over a decade. Defendant has failed to establish that his individual sentences are disproportionate. Defendant also has failed to establish that his 23-year minimum sentences are out of line with other sentences imposed in this state or other states under like circumstances. Therefore, for all of these reasons, defendant has not shown that his sentences are unconstitutionally cruel or unusual.
Defendant also challenges the trial court's imposition of a consecutive sentence for one of his CSC-I convictions. Because defendant did not raise this sentencing issue in his statement of questions presented in his brief, it is not properly presented for appellate review. MCR 7.212(C)(5); People v Anderson, 284 Mich.App. 11, 16; 772 N.W.2d 792 (2009). In any event, defendant has not established any error in this regard.
Defendant's only challenge to the trial court's imposition of a consecutive sentence is that it based its decision on the prosecutor's mischaracterization of evidence at trial. The trial court imposed a consecutive sentence under MCL 750.520b(3), which provides that, in cases involving first-degree criminal sexual conduct, "[t]he court may order a term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." At sentencing, the trial court explained:
It's the sentence and judgment of the Court as to Count I, 23 years on the minimum, 60 years on the max, credit for 58 days already served.
Pursuant to MCL 750.520b(3), this count shall run consecutive to the sentence for Count II which is arising out of the same transaction, specifically an incident occurring in July/August of 2005 which was testified to at the time of the trial by the victim and constituted the basis for Counts I and II of the Information.
Defendant suggests that the trial court imposed a consecutive sentence in reliance on the prosecutor's representation that he kidnapped his children. Nothing in the record supports this argument. The trial court explained that it imposed a consecutive sentence because Counts I and II arose out of the same incident, which is a permissible ground for imposing a consecutive sentence under MCL 750.520b(3). The trial court never mentioned anything about kidnapping. Defendant does not contend that the trial court lacked the authority to impose a consecutive sentence, and he does not address the trial court's stated reason for imposing a consecutive sentence. Accordingly, defendant failed to establish that the trial court erred.
III. DEFENDANT'S STANDARD 4 BRIEF
A. DOUBLE JEOPARDY
Defendant argues that the trial court erred by denying his motion to dismiss on double-jeopardy grounds after the trial court declared a mistrial at defendant's first trial. We disagree.
"A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo." People v Nutt, 469 Mich. 565, 573; 677 N.W.2d 1 (2004). However, the trial court's findings of fact, such as whether defendant consented to a mistrial or whether the prosecutor's conduct goaded the defendant into moving for a mistrial, are reviewed for clear error. People v Dawson, 431 Mich. 234, 258; 427 N.W.2d 886 (1988). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made." People v Dendel, 481 Mich. 114, 130; 748 N.W.2d 859 (2008).
At defendant's first trial, defense counsel asked a police witness whether the witness had interviewed other people. The witness responded, "I was present at the polygraph, and I had talked to him when I was setting up the polygraph." Thereafter, defense counsel moved for a mistrial because of the officer's references to a polygraph. The trial court granted the motion, explaining:
The matter's before the Court on the defendant's motion for mistrial based on testimony of Trooper Tuohey wherein there was an indication, response to the two questions referencing a polygraph. As has been pointed out by defense attorney, the central issue in this case is credibility of the victim and the defendant. Previously, Detective Sergeant Watson had testified, who I'm assuming was the polygraph operator if there was a polygraph administered, and she had testified to some level of impression as far as whether or not the defendant was truthful and her impression that he was not fully responding to questions, not fully disclosing the information that she was requesting from him.
So the Court has reviewed the case of People versus Welke, 342 Mich. 164, which is a Michigan Supreme Court case which is pretty similar to this situation. And so looking at the situation where we have the detective sergeant from the state police giving her impressions as to whether or not the defendant was being truth— not per se truthful but whether or not he was fully disclosing and—and there was some question as to the truthfulness of what he was disclosing to her, we now have mention of a polygraph from a trooper, not the person that administered the polygraph, same police agency, so considering the totality of the circumstances, the Court finds that there's a manifest necessity displayed here and I cannot conceive any other approach or remedy that would adequately protect the defendant's constitutional right to a fair jury. And so the Court is going to reluctantly grant the mistrial.
Now, that being said, the Court also finds that obviously the defendant consented to the mistrial because he's the individual that moved for the mistrial.
Later, defendant moved to dismiss the charges on double-jeopardy grounds. Defendant argued that the trial court failed to follow MCR 6.417, that it granted the mistrial without ever giving him the opportunity to personally comment on that remedy, and that it merely implied that he had consented to a mistrial due to manifest necessity. Defendant denied that he actually consented to a mistrial. The trial court denied defendant's motion to dismiss, stating:
All right. So the case law is pretty clear that where the defendant consents to the granting of a mistrial, it does not affect double jeopardy. There's a plethora of cases that stand for that.
There's also case law that stands for defense counsel's consent—wherein in this case we have defense counsel making the motion—constitutes consent. I don't think that there's any language in this court rule that changes any of that.
I've already found manifest necessity. So you can do whatever you want with that, but I'm not even gonna [sic] address that issue.
And so the Court considers and denies the motion based on the record that was made at the time of the granting of the mistrial as well as today's record.
Under both the federal and Michigan constitutions, a defendant is prohibited from twice being placed in jeopardy for the same offense. U.S. Const, Ams V, XIV; Const 1963, art 1, § 15; People v Echavarria, 233 Mich.App. 356, 362; 592 N.W.2d 737 (1999). It is well established that a retrial is not barred by double jeopardy where the defendant requests or consents to a mistrial, unless the prosecutor engaged in conduct that was intended to provoke or goad the defendant into requesting a mistrial. People v Lett, 466 Mich. 206, 215; 644 N.W.2d 743 (2002). A retrial is always permitted when the mistrial is caused by manifest necessity. Id. As explained in Echavarria, 233 Mich.App. at 363:
Manifest necessity is not a precisely defined concept and must be determined case by case. . . . Manifest necessity "appears to refer to the existence of sufficiently compelling circumstances that would otherwise deprive the defendant of a fair trial or make its completion impossible." People v Rutherford, 208 Mich.App. 198, 202; 526 N.W.2d 620 (1994). Therefore, "[a] trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial."
Defendant argues that he did not consent to a mistrial. He further argues that prosecutorial misconduct was the true reason a mistrial was necessary and, therefore, he should not have been retried. We find no merit to these arguments. In Dawson, 431 Mich. at 235-236, our Supreme Court addressed a double-jeopardy claim in the context of prosecutorial misconduct, stating:
The double jeopardy provisions of the Michigan and federal constitutions protect an accused from being twice put in jeopardy for the same offense. "Being twice put in jeopardy" includes being subjected to a retrial after the initial prosecution ends in a mistrial. An exception to the double jeopardy bar has been made, and retrials allowed, where the prosecutorial or judicial errors requiring the mistrial appear to have been innocent or were beyond the prosecutor's control. A general exception has also been made where the mistrial was granted on the defendant's motion or with his consent. Where prosecutorial conduct provoked the defendant's motion for mistrial, however, the Double Jeopardy Clause has sometimes been held to bar retrial.
Double jeopardy does not bar a defendant's retrial where the defendant consented to the mistrial and was not goaded into consenting by intentional misconduct by the prosecutor. People v Tracey, 221 Mich.App. 321, 326; 561 N.W.2d 133 (1997). In this case, it is undisputed that defense counsel moved for a mistrial after his interrogation of the witness elicited the objectionable testimony. Moreover, no ground exists for concluding that the prosecutor engaged in misconduct or did anything to goad defendant into moving for the mistrial. Under these circumstances, double-jeopardy protections did not bar defendant's retrial.
Defendant argues that the trial court failed to follow MCR 6.417 when granting a mistrial. That rule provides:
Before ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.
This rule was adopted approximately three months before defendant's trial. According to the staff comment, the rule was adopted in response to the Supreme Court's consideration of People v Howard, 500 Mich. 888; 886 N.W.2d 645 (2016), which involved a prosecutor's motion for a mistrial in a case where the defendant never expressly consented to a mistrial which necessitated consideration whether the defendant impliedly consented to the motion. The intent of MCR 6.417 is to eliminate uncertainly regarding a party's consent to a mistrial. In this case, unlike Howard, there is no uncertainty regarding defendant's consent to the mistrial.
In People v Benton, 402 Mich. 47, 54-55; 260 N.W.2d 77 (1977), our Supreme Court explained:
It is established that if the defendant himself moves for or consents to the declaration of a mistrial he will ordinarily be deemed to have waived any double jeopardy claim. In determining whether the defendant has consented to a mistrial, the United States Supreme Court declared, in a case where the defendant's mistrial motion was assertedly occasioned by judicial error, that "(t)he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed." United States v Dinitz, 424 U.S. 600, 607-609; 96 S.Ct. 1075; 47 L.Ed.2d 267 (1976). This Court, on the authority of Dinitz, has declared that the defendant must "do something positively in order to indicate he or she is exercising that primary control." Defendant's silence or failure to object to a declaration of mistrial does not constitute the requisite affirmative showing on the record. [Citations omitted.]
In this case, defendant moved for the mistrial. Accordingly, he exercised primary control of the course to be followed. His request for a mistrial constituted consent to the trial court granting the relief he requested. Accordingly, double jeopardy did not bar his retrial. Therefore, the trial court did not err by denying defendant's motion to dismiss.
B. EXPERT TESTIMONY
In his Standard 4 brief, defendant challenges the propriety of Parsell's testimony describing her treatment of CC and her PTSD diagnosis, and whether such testimony improperly vouched for CC's credibility. As previously explained in Part II(B), to the extent that some of Parsell's testimony could be viewed as improperly vouching for CC's credibility, the testimony was not outcome-determinative, and therefore, defendant has failed to establish grounds for relief.
Defendant also revisits the issue whether Detective Sergeant Watson improperly commented on defendant's credibility when she testified that defendant evaded answering questions during his interview. As previously explained in Part II(A), the witness did not improperly comment on defendant's credibility by explaining defendant's conduct during his interview. Moreover, to the extent that the questioning could be considered objectionable, a timely objection and curative instruction could have alleviated any perceived prejudice. Therefore, defendant is not entitled to appellate relief.
C. INSUFFICIENT EVIDENCE
Defendant argues that the prosecution presented insufficient evidence to support his CSC-I convictions. We disagree.
We review de novo a challenge to the sufficiency of the evidence. People v Hammons, 210 Mich.App. 554, 556; 534 N.W.2d 183 (1995). We view the evidence in a light most favorable to the prosecution to determine whether the prosecution presented sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v Wolfe, 440 Mich. 508, 514-515; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Circumstantial evidence and any reasonable inferences that can be drawn from the evidence may be sufficient to prove the elements of a crime. People v Abraham, 234 Mich.App. 640, 656; 599 N.W.2d 736 (1999). "This Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses." People v Williams, 268 Mich.App. 416, 419; 707 N.W.2d 624 (2005). "Any conflict in the evidence must be resolved in the prosecutor's favor." People v Jackson, 292 Mich.App. 583, 587-588; 808 N.W.2d 541 (2011).
The elements of CSC-I are (1) the defendant engaged in sexual penetration, (2) with one or more aggravating circumstances present. See MCL 750.520b(1); People v Duenaz, 306 Mich.App. 85, 106; 854 N.W.2d 531 (2014). In this case, defendant was charged with violating MCL 750.520b(1)(f), which provides that an actor is guilty of CSC-I where the actor engages in sexual penetration with another person and "[t]he actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration." The statute provides that force or coercion includes, but is not limited to, any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim. [MCL 750.520b(1)(f)(i)-(v).]
"Personal injury" is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ." MCL 750.520a(n).
On appeal, defendant does not dispute that he engaged in acts of sexual penetration with CC, but he argues that the acts were consensual, and thus were not accomplished by force or coercion. He further argues that the evidence failed to show that he caused a personal injury to CC. We disagree.
At trial, CC testified that the sexual abuse started shortly after their first child's birth. According to CC, defendant followed her into their bedroom, slapped her, and forced her into different positions. She cried and asked defendant to stop, but "he just kept going." According to CC, that incident was "just the first of thousands" during their marriage. CC recounted another incident around Christmas in 2005, when defendant again engaged in rough sex and began biting her. She told him to stop, but he would not. In February 2006, defendant took her clothes off and started to perform oral sex on her, biting her very hard in her vaginal area. She tried to push him away, but he told her to "deal with it," did not stop, and just bit her harder. Defendant then "rammed" his penis into her mouth and throat, and she again tried to push him away. She had difficulty breathing, but defendant did not stop until she threw up. CC recalled another incident in March 2007 when defendant followed her into the bedroom, put her on her stomach on the bed, pulled her legs apart into a "V" shape, and inserted his penis into her vagina with such force that it felt like it was going through her stomach. CC was crying and asked defendant to stop, but he would not stop and instead complained that her crying and yelling was waking up their child. CC testified that in October 2009, defendant picked a fight with her for no apparent reason. That night, after CC went to bed, defendant entered the bedroom, put his penis in her mouth, bit her nipples, and then shoved his fingers into her vagina. CC told defendant that he was hurting her and asked him to stop, but he would not stop and instead flipped her around and began to have intercourse with her in a manner that caused her head to repeatedly strike the headboard on the bed.
In addition to describing many incidents where defendant ignored her crying and requests to stop, CC testified that defendant often threatened to take her children away if she did not learn to like his sexual demands, or he would tell her that she just needed to "deal with it." He also told her that her body belonged to him and she needed to submit to him, and that the law in Michigan allowed him to do whatever he wanted to his wife. On one occasion, when defendant became dissatisfied with CC's lack of cooperation during sex, defendant left for a period of time with one of the children and, when he returned, he told CC that if she did not "cooperate and learn to like the sex he did," he would not come back the next time. CC also described one occasion when she pulled defendant's hair to get him to stop biting her and he told her that if she ever did that again, she would be sorry.
Analysis of the record establishes that the prosecution presented sufficient evidence from which the jury could find beyond a reasonable doubt that defendant committed the charged offenses by repeatedly engaging in acts of sexual penetration by force and that he used threats of taking the children or causing physical harm to CC to coerce her into submitting to his sexual demands. Evidence also sufficed to establish that he even led CC to believe that, as his wife, she could not lawfully refuse his sexual demands.
Respecting the personal injury element, CC testified that defendant acted aggressively and "really rough" during sex. She testified that he slapped her and forced her body into different painful positions, bit her lip so hard that she had a sore for several days, engaged in intercourse without her consent after which her vaginal area hurt for several days, was bruised, and caused her to have a hard time sitting. CC described other incidents where defendant bit her nipples or vaginal area causing her pain despite her entreaties that he stop. In addition to CC's testimony describing different bodily injuries she sustained during some of the sexual encounters, the prosecution presented evidence to satisfy the mental anguish component of the definition of personal injury. "To prove mental anguish, 'the prosecution is required to produce evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that the victim experienced extreme or excruciating pain, distress, or suffering of the mind.'" People v Mackle, 241 Mich.App. 583, 596-597; 617 N.W.2d 339 (2000), quoting People v Petrella, 424 Mich. 221, 259; 380 N.W.2d 11 (1985). Parsell testified that she began treating CC in August 2015. CC displayed moderate to severe anxiety and depression, and manifested observable symptoms of PTSD linked to trauma arising from CC's interpersonal relationship with defendant and the sexual violence she endured. Viewed in a light most favorable to the prosecution, the evidence satisfied the personal injury element of the charged offenses.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that defense counsel provided ineffective assistance by not properly investigating this case and for not calling witnesses, particularly an expert witness. To the extent that these claims were not raised below or at the evidentiary hearing, our review is limited to errors apparent in the record. People v Petri, 279 Mich App 407, 410; 760 N.W.2d 882 (2008).
Although defendant complains that additional witnesses were not discovered because of defense counsel's inadequate investigation, the only witness he mentions, Dr. Zaroff, was known to the defense. Moreover, as explained in Part II(D), the trial court found that defendant had not been prejudiced by the inability to call Dr. Zaroff because his proposed testimony was inadmissible. Defendant does not explain why that ruling was erroneous. Defendant does not explain what additional investigation counsel should have performed. Defendant has the burden to establish factual support for his claim of ineffective assistance of counsel. People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999). Because defendant has not presented any factual support for his claim that further investigation by defense counsel might have made a difference in the trial's outcome, this claim cannot succeed.
E. RAPE-SHIELD STATUTE
Defendant complains that the trial court erroneously applied the rape-shield statute, MCL 750.520j, to limit his cross-examination of CC. The record does not support this claim. Defendant does not identify where the trial court made a ruling limiting his cross-examination of CC and a review of CC's testimony does not reveal any instance where the trial court applied the rape-shield statute to limit defendant's cross-examination of her.
We note that the trial court cited the rape-shield statute as a ground for limiting defendant's testimony regarding "other sexual acts that are not charged or part of the 27b evidence" when defendant sought to testify regarding consensual sexual activity between him and CC for the purpose of having children. MCL 750.520j(1) provides:
(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's
sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
In Duenaz, 306 Mich.App. at 91-92, this Court explained:
The rape-shield statute bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape. Because the statute excludes evidence that in most cases would be only minimally relevant, the statute's prohibitions do not deny or significantly diminish a defendant's right of confrontation. Moreover, evidence of a complainant's sexual history also is usually irrelevant as impeachment evidence because it has no bearing on character for truthfulness. This is especially so in this case, given that the evidence was not intended to show bias, motive, or a pattern of false accusations. Under the statutory language, if one of the exceptions in the statute applies, the trial court must determine whether the inflammatory or prejudicial nature of the evidence outweighs its probative value. [Quotation marks, ellipsis, and citations omitted.]
The trial court did not abuse its discretion by barring defendant's proposed testimony under MCL 750.520j(1). No dispute existed that defendant and CC were married for several years and had five children during their marriage. CC had already admitted in her testimony that even after the abuse began, she planned to have more children with defendant, and therefore, she willingly engaged in consensual sex with defendant for the purpose of having more children. It was not necessary for the jury to hear defendant's testimony regarding their consensual sexual activity, none of which formed the basis for any charged offenses. Moreover, the trial court's ruling did not deny defendant the right to present a defense because he was not precluded from arguing that CC's claims of sexual abuse were not credible since she remained with defendant and planned to have more children with him after the abuse began.
F. JUDICIAL ERRORS
Defendant argues that various errors by the trial court entitle him to a new trial. Defendant did not object or otherwise raise any of these claims of error in the trial court. Therefore, they are unpreserved and we review them for plain error affecting defendant's substantial rights. Carines, 460 Mich. at 763-764.
Defendant first argues that the trial court failed to adequately question jurors about their exposure to publicity about this case, and instead simply asked jurors who had heard about the case if they could remain fair and impartial. Preliminarily, defendant has not demonstrated that this case received a great deal of publicity. In any event, this case is distinguishable from People v Tyburski, 445 Mich. 606; 518 N.W.2d 441 (1994), which defendant cites. In Tyburski, the trial court refused to allow the parties to participate in voir dire, and the Supreme Court found that the trial court failed to conduct a sufficiently probing voir dire to uncover potential juror bias and "did nothing more to assess bias than to ask the jurors themselves whether they could be fair." Id. at 609-611, 628. Contrary to what defendant suggests, Tyburski does not hold that it is improper for a court to ask a juror whether he or she can be fair and impartial. Tyburski ruled that the trial court did not conduct a sufficiently probing voir dire to elicit enough information from potential jurors to make an independent judgment of their abilities to be impartial. Id. at 620, 629-630. In this case, unlike in Tyburski, the trial court left the voir dire questioning mostly to the attorneys, who were free to explore any potential bias. The trial court dismissed nine potential jurors for cause because they identified themselves as victims of sexual abuse or domestic violence. Defendant does not identify any instance where the trial court limited defense counsel questioning of jurors to uncover potential bias. Accordingly, defendant has not established any plain error in this regard.
Defendant next complains that the trial court failed to instruct the jury on the limited, permissible use of evidence of uncharged acts of domestic violence committed by defendant. The record does not support this argument. As the prosecutor points out, the trial court instructed the jury as follows in its final instructions:
The prosecution has introduced evidence of claimed acts of domestic violence by the defendant for which he is not on trial.
Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed such acts.
If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the offenses for which he is now on trial.
You must not convict the defendant here solely because you think he is guilty of other bad conduct. The evidence must convince you beyond a reasonable doubt that defendant convic—the defendant committed the alleged crime or you must find him not guilty.
Because the trial court properly instructed the jury on the use of uncharged acts of domestic violence, defendant has failed to establish plain error.
Defendant also asserts that the trial court prevented him from offering evidence that CC had previously falsely accused him of child abuse. Defendant fails to cite to the record showing where the trial court barred such evidence. By failing to provide a citation to the record in support of this claim of error, defendant has abandoned it. McGraw, 484 Mich. at 131 n 36; Green, 313 Mich.App. at 535.
G. PROSECUTORIAL MISCONDUCT
Defendant raises additional claims of prosecutorial misconduct. Because defendant did not object to the challenged conduct, request a curative instruction, or otherwise raise any of these claims below, they are unpreserved. Therefore, we review for plain error affecting substantial rights. Abraham, 256 Mich.App. at 274; see also Carines, 460 Mich. at 763-764.
Defendant first argues that the prosecutor allowed false testimony to stand uncorrected when CC and her brother-in-law testified falsely about an instance when defendant left the family home with the children because the brother-in-law described the incident as having occurred during the daytime, whereas CC testified that defendant left the home in the middle of the night. It is well established that a prosecutor may not knowingly use false testimony to obtain a conviction. People v Smith, 498 Mich. 466, 475-476; 870 N.W.2d 299 (2015). To this end, a prosecutor has a constitutional duty to inform the trial court and the defendant when a government witness offers perjured testimony; a prosecutor must correct false evidence when it is presented. People v Lester, 232 Mich.App. 262, 276-277; 591 N.W.2d 267 (1998), overruled on other grounds in People v Chenault, 495 Mich. 142, 152; 845 N.W.2d 731 (2014). Further, when false testimony arises a prosecutor's obligation is to correct it. Lester, 232 Mich.App. at 276-277. However, merely because testimony conflicts with another witness's testimony does not lead to the conclusion that the prosecutor knowingly elicited perjured testimony. See People v Bass, 317 Mich.App. 241, 275; 893 N.W.2d 140 (2016) (recognizing that the fact that a witness's trial testimony was inconsistent with her prior statement does not establish that her trial testimony was in fact false).
In this case, defendant has not demonstrated the falsity of either of the challenged testimonies. CC testified that defendant left the home in the middle of the night, but she also said that his absence extended into the morning hours when she asked her brother-in-law to become involved. Although defendant notes that the brother-in-law testified that the sun was out when he searched for defendant, that testimony was not inherently inconsistent with CC's testimony. The witnesses' testimonies indicated that defendant left the house during the night and his absence continued into the morning, after it was daylight, when the brother-in-law became involved. The jury was presented with each witness's understanding of the time line related to the incident and could determine if inconsistency existed and whether the witnesses were credible. Under these circumstances, defendant has not established any plain error related to this regard.
Defendant also asserts that witnesses were allowed to testify without having personal knowledge of what occurred between him and CC. As defendant observes, MRE 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." However, defendant does not identify any specific testimony where a witness was allowed to testify without personal knowledge of the subject of their testimony. Defendant states that any activity between him and CC occurred within the privacy of their home. CC, however, served as the primary witness regarding that activity. She obviously had personal knowledge of the events of sexual and physical abuse that occurred. Defendant's and CC's daughter also testified regarding her personal knowledge of instances of conduct between defendant and CC. Other witnesses testified regarding certain statements CC made to them about her relationship with defendant. Although these witnesses would not have had personal knowledge of the events described by CC, they testified from personal knowledge regarding CC's prior consistent statements made to them. Accordingly, defendant has not shown any plain error in this regard.
Defendant also argues that the prosecutor improperly accused defense counsel of making an improper argument and of misleading the jury regarding how it should consider the various charges during deliberations. This issue involves the same remarks that we previously addressed in Part II(A) and we need not address the issue again.
H. AMENDMENT OF SENTENCE
Defendant argues that the trial court erred by sua sponte amending his judgment of sentence to add a requirement that he be subject to lifetime electronic monitoring. We disagree.
Having been convicted of CSC-I, defendant was subject to MCL 750.520b(2)(d), which provides that "[i]n addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n." (Emphasis added.) When the trial court initially signed defendant's judgment of sentence in February 2019, it neglected to check the box providing that defendant was subject to lifetime electronic monitoring. It later corrected this error by issuing an amended judgment of sentence in March 2019, which included a check mark in the box for lifetime electronic monitoring.
Defendant argues that the trial court lacked the authority to amend the judgment of sentence sua sponte, without a motion filed by either party. Defendant relies on People v Comer, 500 Mich. 278, 292-300; 901 N.W.2d 553 (2017), in which the Court held that the trial court erred by sua sponte correcting a judgment of sentence regarding lifetime monitoring because MCR 6.429 did not allow the court to act in the absence of a motion filed by one of the parties. However, after deciding Comer, our Supreme Court amended MCR 6.429(A), effective September 1, 2018, to add a provision that "[a]ny correction of an invalid sentence on the court's own initiative must occur within 6 months of the entry of the judgment of conviction and sentence."
The trial court sentenced defendant in February 2019, after MCR 6.429(A)'s amendment. The amended rule allows trial court's to correct an invalid sentence on its own initiative within six months after entry of a defendant's judgment sentence. Under MCL 750.520b(2)(d), electronic monitoring was mandatory upon defendant's conviction of CSC-I. Thus, defendant's sentences were invalid to the extent that the trial court had neglected to order electronic monitoring, and its amended judgment of sentence corrected the error in March 2019, well within the six-month period permitted by MCR 6.429(A). Therefore, defendant's claim that the trial court lacked the authority to issue the amended judgment of sentence fails.
Affirmed.