Opinion
No. 350822
02-11-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSHUA MANUEL MIGUEL, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-268956-FC Before: GLEICHER, P.J., and K. F. KELLY and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration of victim under 13 years of age), and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with victim under 13 years of age). He was sentenced to 25 to 50 years' imprisonment for each count of CSC-I, and 10 to 15 years' imprisonment for CSC-II. Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from defendant's sexual abuse of the victim, the daughter of his live-in girlfriend, AG, between 2012 and 2016. Defendant and AG met online in 2012, in light of their similar religious beliefs. After defendant obtained employment, he moved in with AG and her two children, the victim, then seven years old and TG, then five years old, in the fall of 2012. Initially, defendant shared a bedroom with AG, and the victim and TG slept in a bedroom across the hall. The two children slept in beds separated by a nightstand. The victim testified that defendant initiated sexual contact when she was seven years old by rubbing his penis on her buttocks. She recalled that on several occasions he rubbed her vagina through her clothing. On one occasion, the four were gathered to watch a movie, and defendant rubbed the victim's genital area with his penis, causing the victim to leave the room. Defendant later told the victim that it was "exercise for her mom," although the victim was unsure of what that meant. Following a "daddy-daughter date" to Build-A-Bear workshop, defendant touched her vagina until she felt pain.
Defendant's relationship with AG deteriorated, and he began sleeping in the victim's bed regularly. Defendant's abuse of the victim progressed from over the clothing touching, to under the clothing, and finally to undressing the victim and penetration. When she was 10 years old, the victim awoke to defendant, lying behind her, taking off her pants and underwear. Defendant put on a condom and attempted to insert his penis into the victim's vagina. The victim tried to push him off, and defendant became angry because he could not successfully insert his penis. The next day, AG found the condom in the toilet, but defendant attributed the condom to a friend. On multiple occasions, he removed the victim's pants and licked her vagina. The victim and TG treated defendant as a father-figure, and he told the victim that it would ruin their family if she disclosed the abuse. On one occasion, TG woke up and went to use the bathroom. He thought that he saw both the victim and defendant naked. When TG later asked the victim if the incident was real or a dream, she hesitated before answering that it was a dream.
In early 2016, the defendant and AG ended their relationship, and he moved out of the home although they maintained a friendship. The following year, the victim revealed the sexual abuse to AG. The night before the disclosure, the victim had attended a sleepover where a girl had tried to touch the victim's vagina against her will. The victim had her biological father pick her up from the sleepover and bring her to AG's home. AG questioned the victim about what transpired at the sleepover, but she did not answer. AG took the victim's phone, as she regularly did, and read text messages between the victim and her friend, Anthony, that discussed the attempted digital penetration. AG initially became angry because she thought that Anthony was the perpetrator, but calmed down after the victim explained the sleepover incident. AG then asked the victim if she had anything else to disclose, and she revealed the acts of sexual abuse committed by defendant. AG called defendant and questioned him about molesting her child. Defendant purportedly responded that if he did it, he did not remember it. In a subsequent conversation, AG claimed that defendant admitted committing the sexual abuse.
Defense counsel's theory at trial was that AG was a strict, angry parent, and that the victim fabricated the allegations against defendant to get out of trouble. However, the victim and AG denied the allegation that the victim was in trouble at the time she made the disclosure against defendant. When AG began to testify at trial, she was asked to point to defendant and identify him by his clothing. AG pointed and identified defendant as "the guy that [sic] violated my child," cursed at him, and walked toward him, but was intercepted by court deputies as she sobbed. The trial court removed the jury from the courtroom and admonished AG to compose herself to prevent "being charged with anything." Although defense counsel moved for a mistrial following the outburst, the trial court denied the motion, concluding that it would instruct the jury to disregard the comments and the conduct of AG and that it would not have any role in their deliberations. Despite defendant's challenge to the credibility of the victim and questioning the feasibility of committing the abuse in proximity to TG and AG, the jury convicted defendant of all charges. Defendant now appeals.
II. WITNESS OUTBURST
Defendant alleges that he was denied a fair trial in light of AG's emotional outburst on the witness stand because a curative instruction was insufficient to cure the prejudicial effect of the outburst. We disagree.
"This Court reviews for an abuse of discretion a trial court's ruling whether to grant a mistrial." People v Waclawski, 286 Mich App 634, 708; 780 NW2d 321 (2009). A trial court abuses its discretion when it chooses an outcome outside the range of principled outcomes. Id.
A mistrial should only be granted for an irregularity that prejudices the rights of a defendant and impedes his ability to obtain a fair trial. People v Dickinson, 321 Mich App 1, 18; 909 NW2d 24 (2017). A due process violation will not result in the reversal of a criminal conviction unless the defendant can prove prejudice to the defense. Id. Additionally, the defendant must demonstrate that the error complained of is so egregious that the removal of the prejudicial effect can occur in no other way. Id. "When a motion for a mistrial is premised on the unsolicited outburst of a witness, it should be granted only where the comment is so egregious that the prejudicial effect cannot be cured." People v Bauder, 269 Mich App 174, 195; 712 NW2d 506 (2005), overruled in part on other grounds by People v Burns, 494 Mich 104, 112-113; 832 NW2d 738 (2013). "Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." Id. (citations omitted).
In People v Gonzales, 193 Mich App 263, 264-265; 483 NW2d 458 (1992), the defendant's attorney asked a sexual-assault complainant whether a letter was written in her handwriting. The complainant had an emotional outburst and stated, "You get the letters analyzed. I have never slept with the scum and what happened to me is not right, and I'm through cooperating with you; do you understand me? He's . . . [a] murderer, and I don't care if I blew this case." Id. at 265. This Court held that the trial court did not abuse its discretion in denying the defendant's subsequent motion for a mistrial because the complainant's outburst was not solicited by the prosecutor, did not result from an erroneous admission of evidence, and the jury was properly instructed to disregard the statement. Id. at 266.
Similarly, in Bauder, this Court concluded that the unsolicited outburst by a person accusing the defendant of murdering his sister was not grounds for appellate relief. The defendant did not dispute that he killed the victim, only that the offense did not satisfy the charge of first-degree murder. Further, the trial court questioned the jurors regarding their ability to disregard the outburst and remain fair and impartial. Then, the trial court instructed the jury that the outburst was not evidence. Bauder, 269 Mich App at 195.
In the present case, when the prosecutor asked AG to identify defendant in court, she pointed to defendant then asserted that he "violated my child." AG then stood, pointed at defendant, continued her allegations of abuse, and used expletives. The trial court ordered the jury removed from the courtroom as court deputies approached to restrain AG. AG then stated to defendant, "You know you did it," and began sobbing. The trial court instructed AG to compose herself or possibly face charges for her conduct. Defense counsel moved for a mistrial, citing the possibility that the jury would feel pressured to convict by sympathizing with the victim and her family. The trial court ruled that it would provide a jury instruction advising that the comments and conduct of AG must be disregarded and not play any role in the deliberations. Further, in closing instructions, the trial court advised that the jury must not let sympathy or prejudice influence the verdict and only properly admitted evidence must be considered.
We conclude that the trial court did not abuse its discretion in denying defendant's motion for a mistrial because AG's emotional outburst was not elicited by the prosecutor, it did not introduce any inadmissible evidence, the trial court promptly gave the jury a curative instruction, and defense counsel cited the outburst as support for his theory of the case in his closing argument. There was no indication that the prosecutor's request for an identification of defendant would prompt AG's outburst. Although AG expressed her belief that defendant was guilty in the outburst, she subsequently testified in detail regarding why she believed defendant was guilty. The trial court promptly cleared the court room and restored order. When the jury returned, the trial court instructed that the jury was not to consider the outburst as evidence of defendant's guilt. The trial court's closing instructions also conveyed that sympathy played no role in the verdict and what constituted properly admitted evidence.
Additionally in closing argument, defense counsel offered the outburst as support for his theory of the case. In his opening statement, defense counsel characterized AG as a strict fear-inspiring parent whose angry overreactions to the victim's normal adolescent interest in sexuality were perceived by the victim as threats. Throughout trial, defense counsel sought to show that the victim fabricated the allegations against defendant to redirect AG's anger about text messages of a sexual nature. In his closing argument, defense counsel stated:
I mean, what do we think that that conversation really looked like when [the victim] was accusing [defendant]. Well, we've seen [AG's] demeanor when she gets mad. We've had an opportunity to witness that, and then she comes back in here, and you know, she's very quiet and calm. I mean, that's how she wants us to see her, but we've seen what she can be like, and I can only imagine what that conversation was like. I think that there is no question in this case that the kids—that [the victim] truly feared [AG].
Therefore, defendant was not prejudiced by AG's outburst because it actually supported his theory that the victim's truthfulness was compromised by her fear of AG. Accordingly, the trial court did not abuse its discretion by denying defendant's motion for a mistrial.
III. RIGHT OF CONFRONTATION AND TO PRESENT A DEFENSE
Defendant contends that he was denied his rights of confrontation and to present a defense because it was crucial to cross-examine the victim about whether she fabricated the allegations against defendant to prevent AG from discovering text messages revealing the victim's bisexuality. We disagree.
When a defendant fails to make an offer of proof regarding the substance of excluded evidence, MRE 103(a)(2), error may not be predicated upon the ruling excluding evidence unless a substantial right of the party is affected, MRE 103(a). People v Hampton, 237 Mich App 143, 154; 603 NW2d 270 (1999). "This Court reviews de novo both constitutional claims and preliminary questions of law regarding admissibility of evidence." People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014). "We review the trial court's ultimate decision regarding admissibility of evidence for an abuse of discretion." Id. "An abuse of discretion occurs when trial court's decision is outside the range of principled outcomes." Id.
"The Confrontation Clause of the United States Constitution provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .' " People v Fackelman, 489 Mich 515, 524-525; 802 NW2d 552 (2011), quoting US Const, Am VI (alterations in original). Michigan's constitution affords a criminal defendant this same right. Id., citing Const 1963, art 1 § 20. In addition, "[t]here 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.' " People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012) (quotation marks and citation omitted).
Defendant's rights to confront the witnesses against him and to present a defense were not violated when the trial court prevented defense counsel from using text messages in which the victim allegedly referenced bisexuality to demonstrate that the victim fabricated the allegations against defendant to keep her sexual orientation concealed from AG. As an initial matter, we note that defendant never presented the text messages in an offer of proof to the trial court to demonstrate the actual content and the dates of the text messages. The prosecutor asserted that these text messages were "post-assault, post-disclosure," and therefore, were not relevant. Although defense counsel agreed that sexual orientation was irrelevant, he asserted that it was another "secret" that demonstrated the victim's motivation to lie. However, because defense counsel failed to submit and correlate the text messages addressing sexual orientation to the time frame of the victim's revelations to AG, there is no indication that it could serve as a motivation for her to lie and redirect AG's anger. Therefore, defendant failed to demonstrate plain error affecting his substantial rights arising from the exclusion of this evidence. Hampton, 237 Mich App at 154.
In his brief on appeal, defendant correlates this issue to his motion for an in camera hearing addressing the rape shield statute, MCL 750.520j. Specifically, defendant alleged that the victim gave contradictory statements or testimony by denying sexual contact with a 13-year-old boy and therefore, it was necessary to explore whether the victim made prior false accusations of sexual abuse. This motion made no reference to text messages and sexual orientation. Moreover, at the motion hearing, the prosecutor noted that defense counsel misapprehended the preliminary examination testimony where the victim referred to the sleepover incident as occurring with a female. Defendant's failure to attach the excerpts of the interviews and testimony offered to support his position to the underlying motion prevent appellate review. In light of the absence of the dates of the text messages and the content, he failed to demonstrate that they had any bearing on the victim's motivation to disclose sexual abuse by defendant.
Furthermore, the trial court did not abuse its discretion in excluding the evidence under MRE 403. "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. All relevant evidence is admissible unless there is a legal position to the contrary. See MRE 402. MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In excluding the text messages, the trial court ruled that the evidence's probative value was outweighed by other considerations under MRE 403. Our Supreme Court has instructed:
Assessing probative value against prejudicial effect [under MRE 403] requires a balancing of several factors, including the 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 Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).]
In this case, the trial court reasoned that evidence of the victim's sexual orientation was minimally probative because the messages did not, by themselves, establish that the victim was, in fact bisexual, or the reason that she was uncomfortable discussing the matter with AG. The trial court explained that the invasion of the victim's privacy, and the existence of other avenues by which defendant could examine whether she fabricated the allegations to conceal personal matters from AG, weighed against admitting this evidence. Indeed, defense counsel questioned law enforcement and mental health professionals regarding their contacts with AG and her statements and conduct pertaining to her protection and control of the victim. The trial court's decision did not constitute an abuse of discretion under the circumstances.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan