Opinion
361834
10-19-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES EDWARD WRIGHT-JOHNSON, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2020-000780-FH
Before: Cavanagh, P.J., and Riordan and Patel, JJ.
PER CURIAM
Defendant appeals as of right his jury-trial convictions for seven counts of third-degree criminal sexual conduct (CSC-III) with a person 13 to 15 years old, MCL 750.520d(1)(a), four counts of fourth-degree criminal sexual conduct (CSC-IV) with a person 13 to 15 years old, MCL 750.520e(1)(a), and one count of assault with intent to commit sexual penetration (AWICSP), MCL 750.520g(1). The trial court sentenced defendant to 7 to 15 years' imprisonment on each CSC-III conviction, 15 to 24 months' imprisonment on each CSC-IV conviction, and 79 months to 10 years' imprisonment for the AWICSP conviction.
On appeal, defendant contends that his convictions should be reversed and a new trial is warranted because: (1) the trial court violated defendant's constitutional right to a fair trial and Michigan law, and abused its discretion, by improperly admitting the prosecution's other-acts evidence; (2) the trial court violated defendant's constitutional right of confrontation and abused its discretion by preventing defense counsel from questioning the victim on a particular matter; and (3) the trial court abused its discretion by allowing the prosecution to recall two witnesses after defendant rested his case. We conclude that none of defendant's arguments warrant appellate relief, and affirm.
I. BACKGROUND
Defendant's convictions arise from sexually abusing a minor child, DC, while defendant was a youth pastor at the child's church and DC was 14 and 15 years old. Defendant became a mentor to DC in 2014 during DC's freshman year of high school, and the two participated in various activities together, both in and outside of church.
DC testified that sometime during his freshman year of high school (in 2015 or 2016 when he was 14 years old), he and defendant, while at defendant's house, started kissing, and defendant groped DCs buttocks and then had DC perform oral sex on defendant. DC testified that, also during his freshman year when he was 14 years old, he slept over for a night at defendant's house, at which time he and defendant engaged in more groping, kissing, and four more instances of oral sex. DC stated that defendant also attempted to initiate anal sex but never completed the act, and at one point inserted a finger into DCs anus. Lastly, DC testified that another incident occurred during his sophomore year of high school when he was 15 years old. DC stated that he slept over again at defendant's house, and he and defendant engaged in more groping, kissing, and one more instance of oral sex. Defendant denied sexually assaulting or inappropriately touching DC in any way. According to defendant, when he began to step back from mentoring at the church and tried transitioning the role of being DCs mentor to someone else, DC began to feel rejected and believed that defendant was "making excuses instead of spending time with him."
Before trial, the prosecution filed a notice to use similar-acts evidence under MCL 768.27a. Specifically, the prosecution sought to introduce evidence that defendant committed other uncharged sexual offenses against DC in Wayne County and Oakland County during the same approximate timeframe as the conduct at issue here. Defendant countered that the prosecution's proposed evidence was inadmissible because, notwithstanding MCL 768.27a, it was unduly prejudicial under People v Watkins, 491 Mich. 450; 818 N.W.2d 296 (2012). Defendant also argued that MCL 768.27a violated due process under the Michigan Constitution, Const 1963, art 6, § 1. The trial court granted the prosecution's request to admit its proposed other-acts evidence, determining that the other acts were sufficiently similar to the charged conduct in this case to allow admission.
Later, defendant moved to introduce his own other-acts evidence regarding allegations in a separate criminal complaint that DC had an intimate relationship with defendant's brother around the same time as the conduct alleged in this case. Defendant sought "to explore this 'issue' or these 'relationships' during trial," arguing that evidence concerning DCs relationship with defendant's brother was relevant to DCs credibility and "tend[ed] to show the propensity to lie." The trial court denied defendant's motion, concluding that defendant failed to give a sufficient offer of proof, and that the evidence was either irrelevant or prohibited under Michigan's rape-shield statute.
Defendant's jury trial was held over four days in March 2022. After defendant rested his defense, the prosecution recalled DC and his mother as rebuttal witnesses. Defense counsel objected, asserting that the issues to be raised were already addressed during the witnesses' prior testimony and arguing that it was improper to allow rebuttal testimony to repeat the same facts already testified to by the witnesses. The court overruled defendant's objection without explaining its decision. Both DC and his mother testified in rebuttal. Subsequently, defendant was convicted and sentenced as described earlier. This appeal followed.
II. STANDARDS OF REVIEW
"This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion." People v Abcumby-Blair, 335 Mich.App. 210, 238; 966 N.W.2d 437 (2020). "A trial court abuses its discretion only when [its] decision falls outside the range of principled outcomes." Id. (quotation marks and citation omitted). "To the extent that the trial court's evidentiary decision involves underlying questions of law, such as whether a statute precludes admissibility of evidence, this Court reviews those questions of law de novo." People v Sharpe, 502 Mich. 313, 324; 918 N.W.2d 504 (2018). "A preserved trial error in the admission of evidence does not constitute grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative." People v Solloway, 316 Mich.App. 174, 192; 891 N.W.2d 255 (2016) (quotation marks and citation omitted).
Whether a defendant's due process rights under the Fourteenth Amendment were violated is a constitutional question that this Court reviews de novo. People v Wilder, 485 Mich. 35, 40; 780 N.W.2d 265 (2010). Likewise, "[w]hether a defendant's Sixth Amendment right of confrontation has been violated is a question of constitutional law that this Court reviews de novo." People v Bruner, 501 Mich. 220, 226; 912 N.W.2d 514 (2018). However, because defendant never raised in the trial court his due process right to a fair trial under the Fourteenth Amendment and never specifically objected to the exclusion of his requested questioning on Confrontation Clause grounds, these issues underlying defendant's first two evidentiary challenges are unpreserved.
Unpreserved constitutional claims are reviewed for plain error affecting a defendant's substantial rights. See People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). To avoid forfeiture under plain error review,
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. . . . Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings[] independent of the defendant's innocence. [Id. (quotation marks and citations omitted).]
III. ANALYSIS
A. THE PROSECUTION'S OTHER-ACTS EVIDENCE
Defendant argues that the trial court violated his constitutional right to a fair trial and Michigan law, and abused its discretion, by improperly admitting the prosecution's other-acts evidence. We disagree.
According to defendant, a correct application of Watkins, 491 Mich. 450, shows the evidence regarding his uncharged sexual conduct with DC was unduly prejudicial and thus inadmissible. Specifically, defendant argues, DCs testimony regarding the uncharged sexual activities between him and defendant was "only marginally relevant," "very unreliable, and [thus] posed a danger of unfair prejudice and confusion of the issues." The additional testimony did nothing to help the jury's understanding of this case, and it allowed the prosecution "to fill in holes in [its] case that [it] otherwise could not fill." And defendant claims, albeit not explicitly, that the trial court's improper admission of other-acts evidence violated his constitutional due process right to a fair trial under the Fourteenth Amendment to the United States Constitution.
MCL 768.27a(1) states:
Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. . . .See also People v Duenaz, 306 Mich.App. 85, 101; 854 N.W.2d 531 (2014) ("Our Legislature has decided that evidence of other sexual assaults on children is relevant in a case in which a defendant is charged with committing a sexual offense against a minor. Such allegations . . . do tend to make the complainant's story more believable by showing propensity to commit the charged offense.") (citations omitted).
Our Supreme Court held in Watkins, 491 Mich. 450, that MCL 768.27a and MRE 404(b) irreconcilably conflict, but that the Legislature intended the statute, a valid enactment of substantive law, to supersede the court rule. Id. at 455, 471-475. Evidence that is relevant because it shows propensity is admissible under MCL 768.27a, whereas evidence relevant only because it shows propensity is excluded by MRE 404(b). Id. at 470-472. But the Watkins Court held that evidence otherwise admissible under MCL 768.27a still remains subject to the requirements of MRE 403. Id. at 481. MRE 403 states that, 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."
The Watkins Court provided guidance to trial courts in applying MCL 768.27a and the balancing test of MRE 403. First, the propensity inference of the evidence must be weighed in favor of the evidence's probative value. Watkins, 491 Mich. at 486-487. Second, the Court provided the following illustrative, nonexhaustive list of factors that may lead a trial court to exclude evidence under MRE 403:
(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. [Id. at 487-488.]
Here, the trial court "applied the proper standard by asking whether the evidence was more prejudicial than probative," and correctly found that the evidence regarding defendant's uncharged sexual conduct with DC was "similar to the present crimes" or "of the same general category" of conduct. See Duenaz, 306 Mich.App. at 100-101. The uncharged conduct with DC involved repeated sexual conduct essentially identical to that for which defendant was charged here, and with the same minor, over the same timeframe. Specifically, DC testified that, during 2015 and 2016, he and defendant engaged in additional sexual activity, two times each in Oakland County and in Wayne County. And like the charged offenses here, DC testified that these incidents involved kissing, groping, and oral sex. While the reliability of the prosecution's other-acts evidence potentially favored exclusion given DCs uncorroborated testimony regarding the various assaults in this case, one Watkins factor cutting against the trial court's decision is insufficient for us to rule on appeal that it was outside the range of reasonable and principled outcomes.
The evidence was prejudicial to the extent that it corroborated DCs story, but not unfairly prejudicial. DC merely testified to the basic facts of the uncharged assaults, without any particular inflammatory details, and defendant countered that no assaults ever happened. DCs description of the specific uncharged conduct was brief and not particularly graphic, and he clearly separated these events from the charged conduct at issue here. Accordingly, there was no danger of confusion of the issues, misleading the jury, undue delay, or other considerations mentioned in MRE 403. The trial court's admission of this evidence, therefore, did not violate Michigan law and was a proper exercise of the court's discretion.
Regarding defendant's vague argument that admission of the prosecution's other-acts evidence violated his due process right to a fair trial, we disagree. Even when a trial court improperly admitted a defendant's confession, the United States Supreme Court has held that due process was not violated if the evidentiary error was harmless. Schneble v Florida, 405 U.S. 427, 430, 432; 92 S.Ct. 1056; 31 L.Ed.2d 340 (1972) ("[a] defendant is entitled to a fair trial but not a perfect one") (citation omitted; alteration in original). Here, there was no error, let alone any outcome-determinative error, in the trial court admitting the prosecution's other-acts evidence. Moreover, defendant's only authority to support his statement that improper reference to a defendant's prior acts violates federal law (1) is nonbinding, and (2) did not involve other-acts evidence. See Washington v Hofbauer, 228 F.3d 689, 699-700 (CA 6, 2000) (granting the defendant's habeas petition because, in relevant part, the prosecutor engaged in misconduct by excessively berating the defendant's character before the jury). In sum, the other-acts evidence here was properly admitted, and defendant was not denied his due process right to a fair trial. See Duenaz, 306 Mich.App. at 101 ("[W]e conclude that the trial court did not abuse its discretion by admitting the [other-acts] evidence in light of the various factors regarding admissibility under MCL 768.27a and MRE 403. Watkins, 491 Mich. at 487-488. On the basis of the foregoing, we conclude that the other acts evidence was properly admitted, and defendant was not denied his due process right to a fair trial.")
B. PRECLUDED QUESTIONING OF DC
Defendant argues that the trial court violated his constitutional right of confrontation and abused its discretion by preventing defense counsel from questioning DC regarding DCs relationship with defendant's brother. We disagree.
According to defendant, he showed DCs "motivation to lie" such that this evidence was admissible as an exception to Michigan's rape-shield statute as discussed in People v Hackett, 421 Mich. 338, 348; 365 N.W.2d 120 (1984). Defendant contends that the jury had insufficient evidence to fully assess defendant's theory of the case that DC was not credible.
The rape-shield statute, MCL 750.520j, 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.Similarly, MRE 404(a)(3) provides an exception to the general rule excluding character evidence for, in a case involving criminal sexual conduct, "evidence of the alleged victim's past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease . . . ."
"The rape-shield statute bars, with two narrow exceptions, evidence of all sexual activity by the complainant not incident to the alleged rape." Duenaz, 306 Mich.App. at 91 (quotation marks and citations omitted). "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." Id. at 91-92; see also Ohio v Clark, 576 U.S. 237, 243; 135 S.Ct. 2173; 192 L.Ed.2d 306 (2015) ("The Sixth Amendment's Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' ").
However, "[i]n addition to the enumerated exceptions within the rape-shield statute [under MCL 750.520j(1)(a) and (b)], [certain] evidence of a complainant's sexual conduct may be admitted to preserve the defendant's constitutional right to confrontation." Sharpe, 502 Mich. at 325 n 6. In Hackett, 421 Mich. 338, the Michigan Supreme Court gave three examples of when a defendant's constitutional right to confrontation requires admission of evidence otherwise barred by the rape-shield statute: (1) "for the narrow purpose of showing the complaining witness' bias"; (2) when the evidence is probative of "a complainant's ulterior motive for making a false charge"; and (3) "to show that the complainant has made false accusations of rape in the past." Id. at 348.
The determination of admissibility is entrusted to the sound discretion of the trial court. In exercising its discretion, the trial court should be mindful of the significant legislative purposes underlying the rape-shield statute and should always favor exclusion of evidence of a complainant's sexual conduct where its exclusion would not unconstitutionally abridge the defendant's right to confrontation.
* * *
The defendant is obligated initially to make an offer of proof as to the proposed evidence and to demonstrate its relevance to the purpose for which it is sought to be admitted. Unless there is a sufficient showing of relevancy in the defendant's offer of proof, the trial court will deny the motion. If there is a sufficient offer of proof as to a defendant's constitutional right to confrontation, as distinct simply from use of sexual conduct as evidence of character or for impeachment, the trial court shall order an in camera evidentiary hearing to
determine the admissibility of such evidence in light of the constitutional inquiry previously stated. . . . [Id. at 349-350.]
As an initial matter, defendant does not argue that DC was biased or made any past accusations of rape actually determined to be false. The question, therefore, is whether defendant made a sufficient showing that DC had an ulterior motive for making a false charge in this case, and that defendant's proposed questioning of DC was relevant to this issue. Answering in the negative, we conclude that the trial court correctly determined defendant's offer of proof to be insufficient for admission of his proposed questioning.
The record admittedly includes some evidence suggesting that DC had an ulterior motive for making false charges against defendant. Specifically, defendant testified at trial that DC became upset with defendant when he retreated from his mentorship role in DCs life, presumably causing him to falsely accuse defendant. But defendant never made this connection in his offer of proof; rather, he just vaguely and conclusively asserted that DCs allegations of similar abuse against defendant's brother in an unrelated criminal complaint impaired DCs veracity and truthfulness in this case. Defendant also never raised before the trial court, in his offer of proof or otherwise, his right of confrontation as relevant to this evidence.
Although People v Williams, 191 Mich.App. 269, 273; 477 N.W.2d 877 (1991), involved a false accusation claim rather than a claim alleging a motive to falsely accuse, we deem it instructive. See id. at 273 ("[W]e do not believe that the defendant was able to make the requisite offer of proof to justify introduction of the evidence. Accordingly, he is not entitled to a reversal of his conviction."). In Williams, this Court reasoned as follows:
[The] defendant has been unable to offer any concrete evidence to establish that the victim had made a prior false accusation of being sexually abused by her uncle. Rather, what defense counsel endeavored to do was to put the victim's mother and, apparently, one other witness on the witness stand and question them under oath concerning the truth or falsity of the victim's prior accusation, in hopes that their answers would reveal that the prior accusation was false. In short, defense counsel had no idea whether the prior accusation was true or false and no basis for believing that the prior accusation was false. Counsel merely wished to engage in a fishing expedition in hopes of being able to uncover some basis for arguing that the prior accusation was false.
However, as the Supreme Court stated in Hackett, . . . an evidentiary hearing in this regard should not be utilized as a fishing expedition. In short, if defendant had evidence of a prior false accusation, that could be presented to the court. But defendant was not entitled to have the court conduct a trial within the trial to determine whether there was a prior accusation and whether that prior accusation was true or false. Accordingly, . . . the trial court . . . reached a correct conclusion in excluding defendant's proffered evidence and in declining defendant's request for an evidentiary hearing. [Id. at 273-274 (footnote omitted).]
As in Williams, in this case defendant's offer of proof and associated relevancy argument was too speculative to support admission of his proposed questioning, particularly in light of the rape-shield statute and its purpose to exclude most testimony of a victim's prior or unrelated sexual activity. See also Duenaz, 306 Mich.App. at 93 ("[The] defendant's theory of relevance was just that[, i.e., just a theory]. . . . [T]he evidence is not at all probative of the victim's credibility. Its admission would have only created a real danger of misleading the jury and an obvious invasion of the victim's privacy.") (quotation marks and citation omitted). Specifically, defendant never offered any concrete evidence with his offer of proof to establish that DC had an ulterior motive for making a false charge in this case. Rather, he just conclusively and vaguely implied that DCs separate allegations against, and/or his relationship with, defendant's brother showed DCs motivation to lie.
We agree with the trial court that defendant's requested questioning was essentially a fishing expedition. Like in Williams, and particularly given the vagueness of defendant's offer of proof in the trial court, it appears that defendant merely hoped his proposed questioning would uncover a sufficient basis for arguing that DC was motivated to falsely accuse defendant. For these reasons, the exclusion of this evidence was not outside the range of principled outcomes. Further, this exclusion of evidence did not violate defendant's right of confrontation, so there was no constitutional error, let alone plain constitutional error, warranting reversal.
C. REBUTTAL TESTIMONY
Defendant argues that the trial court abused its discretion by allowing the prosecution to recall DC and his mother after defendant rested his case. We disagree.
Specifically, defendant argues that the court improperly allowed this extrinsic evidence that was already covered in the prosecution's case-in-chief. Because the witnesses' rebuttal testimony was cumulative and not narrowly focused on refuting defendant's statements, the trial court admitted this evidence in error. According to defendant, this error affected his substantial rights, and reversal is warranted.
"Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. The question whether rebuttal is proper depends on what proofs the [other party] introduced . . . ." People v McGhee, 268 Mich.App. 600, 638; 709 N.W.2d 595 (2005) (quotation marks and citation omitted; alterations in original). "[T]he test of whether rebuttal evidence was properly admitted is . . . whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant." People v Thorpe, 504 Mich. 230, 254; 934 N.W.2d 693 (2019) (quotation marks and citation omitted; alterations in original). "As long as evidence is responsive to material presented by the defense, it is properly classified as rebuttal, even if it overlaps evidence admitted in the prosecutor's case in chief." People v Figgures, 451 Mich. 390, 399; 547 N.W.2d 673 (1996).
Here, although some rebuttal testimony overlapped with testimony from the prosecution's case-in-chief, both witnesses' rebuttal testimony was limited and explicitly responded to the characterization of certain facts and issues by defendant during his testimony. Notably, defendant testified that DCs mother texted him just as much as DC to complain about her home situation, and that she at times contacted him to initiate the one-on-one activities between him and DC. In rebuttal, DCs mother testified that she would occasionally contact defendant for help speaking with DC about issues in the child's life and at home, but not often. She denied requesting any one- on-one activities between defendant and DC, stating that such occurrences were always arranged between DC and defendant. DC's mother did reiterate that she initially reached out to defendant when she first started at the church.
Similarly, DC testified in rebuttal that his one-on-one meetings with defendant were initially coordinated by both him and defendant, and then later mostly by defendant. DC acknowledged that he and defendant would sometimes discuss DC's problems at home during their encounters. DC also testified regarding the home of Reanell Shannon, defendant's friend with whom he briefly lived after getting divorced in 2016. According to DC, he had been over at Shannon's home with defendant, who entered with a key, at least five times in addition to two times that defendant assaulted him there. This was an explicit counter to defendant's testimony that he never had a key to Shannon's house and was only there with DC one time. The rebuttal testimony of both witnesses was brief and limited to these narrow issues. Given the foregoing, the rebuttal evidence introduced properly responded to evidence and impressions from defendant's testimony, and admission was within the trial court's discretion.
In any event, defendant conclusively asserts that the trial court's error affected his substantial rights and warrants reversal, with no citation to specific facts in the record or any authority supporting this conclusion. See People v Payne, 285 Mich.App. 181, 195; 774 N.W.2d 714 (2009) ("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 [an issue] only cursory treatment with little or no citation of supporting authority.") (quotation marks and citation omitted); People v Harris, 261 Mich.App. 44, 50; 680 N.W.2d 17 (2004) ("An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue.") Accordingly, defendant fails to show any outcome-determinative error that would warrant reversing his convictions. See Solloway, 316 Mich.App. at 192.
Affirmed.