Opinion
350926
09-30-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TRACY ADAM YAGER, Defendant-Appellant.
UNPUBLISHED
Kent Circuit Court LC No. 18-005395-FH
Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.
PER CURIAM.
Defendant, Tracy Adam Yager, appeals as of right his jury conviction of second-degree criminal sexual conduct involving a victim under 13 years of age. MCL 750.520c(2)(b). The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to serve 62 months to 221/2 years in prison and ordered him to submit to lifetime monitoring under MCL 750.520n. Because defendant fails to identify any error warranting relief, we affirm.
I. FACTS
Defendant was convicted of sexually assaulting the daughter of his girlfriend with whom he resided at the time of the incident. The victim, who was 13 years old at the time of trial, asserted that defendant sexually assaulted her one day when she was eight or nine years old. The victim testified that on that day her mother was at work and defendant was acting as her caregiver. She testified that defendant was sitting on the couch in their living room and that he told her to sit on his lap. The victim testified that she complied, and defendant put his hand underneath her underwear and touched her "front private," moved his hand around, and put his finger inside her body. She testified that this continued for about 15 minutes until defendant's sons, who were playing video games in the basement, came upstairs to get a drink from the kitchen. Although the sons did not enter the living room, she could hear their footsteps on the stairs. Defendant stopped his assault, then resumed the assault when the two boys returned to the basement. The victim testified that she could smell alcohol on defendant's breath, and that he was slurring his words. The victim testified that she eventually got up and told defendant that she had to retrieve something from her room. She then came back with drawing supplies in an effort to distract defendant. When defendant told her to sit in his lap again, she refused and locked herself in her bedroom.
The victim testified that she did not report the abuse at the time because she was afraid. Later, when the victim was in the sixth grade, a teacher discussed with the class "good touches and bad touches." She told the teacher about the assault, and the school informed the victim's mother, the police, and child protective services.
When interviewed, defendant told police that he did not recall the incident but that it was possible that it had occurred when he was too intoxicated to remember. Defendant was charged with second-degree criminal sexual conduct involving a victim under 13 years of age, MCL 750.520c(2)(b), and as a second-offense habitual offender, MCL 769.10. Defendant was convicted after a jury trial. After sentencing, defendant moved for a new trial or a Ginther hearing, alleging that his defense counsel at trial was ineffective. The trial court denied defendant's motion. Defendant now appeals, challenging his conviction and challenging the trial court's denial of his motion for a new trial.
People v Ginther, 390 Mich. 436, 442-443; 212 N.W.2d 922 (1973).
II. DISCUSSION
A. EXPERT TESTIMONY
Defendant contends that the trial court erred by permitting Thomas Cottrell to testify as an expert during defendant's trial, asserting that Cottrell's testimony was unreliable. Defendant asserts that Cottrell's testimony was not founded on sufficient facts or data, was not the product of reliable principles and methods, was founded on anecdotal evidence, and was not applied reliably to the facts of this case. We disagree.
To preserve a claim of evidentiary error, a defendant must object before the trial court asserting the same ground later asserted on appeal. People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). In this case, at trial defense counsel stated that she had no objection to Cottrell testifying as an expert in child sexual abuse dynamics and offender dynamics. Defense counsel later objected to certain testimony by Cottrell, asserting the grounds that he was improperly bolstering the victim's testimony and improperly addressing facts specific to the case, but did not assert the same ground that defendant now asserts on appeal, being that Cottrell's testimony was unreliable. Accordingly, defendant did not preserve this claim of error. See id. We review an unpreserved assertion of error, whether the alleged error is constitutional or nonconstitutional, for plain error affecting the defendant's substantial rights, and will reverse only if the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. at 252-253.
Defendant asserts on appeal that Cottrell's testimony violated his right to due process and, for that reason, the prosecution has the burden to demonstrate that the error was harmless beyond a reasonable doubt. He alternatively argues that the harmless error rule stated under People v Lukity, 460 Mich. 484; 596 N.W.2d 607 (1999), applies to this issue. Because defendant failed to preserve this claim of error, however, the plain error standard applies even if asserting constitutional error. Thorpe, 504 Mich. at 252-253.
When considering whether to admit expert testimony, the trial court must determine whether the "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." MRE 702. A trial court determining whether to admit expert testimony under MRE 702 acts as a gatekeeper to ensure that the testimony is both relevant and reliable. People v Kowalski, 492 Mich. 106, 120; 821 N.W.2d 14 (2012). The trial court must ensure that the testimony "(1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case." Id. An expert's testimony is relevant if the proffered testimony involves understanding the import of evidence that is "beyond the ken of common knowledge." See People v Bynum, 496 Mich. 610, 626; 852 N.W.2d 570 (2014).
Defendant argues that Cottrell's testimony did not meet the reliability requirements of MRE 702. Defendant also asserts that Cottrell was unqualified to testify as an expert because he testified in other cases that were later reversed on appeal. Defense counsel at trial, however, stated that she had no objection to Cottrell's testifying as an expert in child sexual abuse dynamics and offender dynamics. Defendant's failure to object to Cottrell's qualifications as an expert or his methods precludes him from raising that objection on appeal. People v Alexander, 56 Mich.App. 400, 402; 223 N.W.2d 750 (1974) (stipulation to an expert's qualifications precludes the party from challenging the expert's qualifications or methods on appeal); see also, generally, People v Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (2000) (A party who expressly agrees with an issue in the trial court cannot take a contrary position on appeal).
MRE 702 incorporates the standards for determining the reliability of expert testimony articulated in Daubert, and requires a trial court to determine that each aspect of a proposed expert's testimony, including the underlying principles and methodology, is reliable. People v Carll, 322 Mich.App. 690, 700-701; 915 N.W.2d 387 (2018). The trial court's inquiry is flexible and depends on the type of expert testimony offered. Id.
Daubert v Merrell Dow Pharmaceuticals, 509 U.S. 579; 113 S.Ct. 2786; 125 L.Ed.2d 469 (1993).
In People v Peterson, 450 Mich. 349, 352-353; 537 N.W.2d 857 (1995), our Supreme Court set forth the scope of permissible expert testimony involving victims of child sexual abuse. The Court held that an expert "may testify regarding typical symptoms of child sexual abuse for the sole purpose of explaining a victim's specific behavior that might be incorrectly construed by the jury as inconsistent with that of an abuse victim or to rebut an attack on the victim's credibility." Id. at 373. The Court held that when the defense attacks a child victim's credibility, it would be "proper to allow an explanation by a qualified expert regarding the consistencies between the behavior of that victim and other victims of child sexual abuse." Id. at 375. Our Supreme Court, however, prohibited experts from offering three categories of testimony: an expert may not testify that the sexual abuse occurred; an expert may not vouch for the veracity of the victim; and, an expert may not testify whether the defendant is guilty. Id. at 352.
We note that in this case, although defendant asserts that Cottrell's testimony was unreliable, defendant's assertion is a general criticism that does not identify which statements are alleged to be unreliable. In any event, a review of the record indicates that the expert testimony was within the boundaries of expert testimony permitted in a case involving a minor victim of alleged sexual assault. The victim exhibited behaviors that ordinary persons might consider to be inconsistent with having been the victim of sexual abuse; she had trouble identifying the date of the assault, did not immediately report the abuse, and had a nervous smile when disclosing the abuse to a forensic interviewer. The defense maintained throughout the proceedings that the victim was lying, either in an attempt to distract others from her deteriorating grades, or because she had been coached by her mother. Accordingly, the prosecution could properly elicit testimony of behaviors of other survivors of sexual assault. Id. at 373-374.
Cottrell testified at trial that delayed disclosure was a common behavior among victims of child sexual abuse. He explained that the child victim might put in place measures that they believe will avoid the threat, which would eliminate the need to reveal the abuse. The child might also believe that disclosure will cause discord or that he or she will not be believed, and that maintaining a predictable life is more important than disclosing the abuse. He also testified that children may not disclose abuse because they believe that they will be blamed for the abuse, but when they are taught that such abuse is not their fault and that they will not be shamed, the children will choose to disclose the abuse.
Cottrell also testified that children do not mark time in the same way that adults do. Accordingly, one would not normally expect a child to have a specific memory of a date or age; the child might recall that he or she was smaller or might try to work out when it might have happened by reference to something else. He also testified that victims of trauma will sometimes have a nervous smile that does not match the gravity of the story that the victim is recalling.
Defendant contends that Cottrell's testimony is suspect because he has testified as an expert in cases that have been reversed, in part based upon his testimony. In Thorpe, for example, our Supreme Court reversed and remanded for a new trial after Cottrell had been permitted to testify that in the cases in which his organization had been involved only 2% to 4% of the children made false disclosures. Thorpe, 504 Mich. at 259-260. The Court concluded that testimony about false disclosure rates amounted to vouching for the victim. Id. In this case, however, Cottrell only testified about disclosure rates after defense counsel specifically asked him to state that number; accordingly, defendant cannot now ask for appellate relief as a result of that testimony. See People v Jones, 468 Mich. 345, 352 n 6; 662 N.W.2d 376 (2003). Because defendant has not identified any other testimony by Cottrell that fell outside the range of permissible expert testimony in cases of child sexual abuse, defendant has not identified plain error arising from Cottrell's testimony in this case.
Further, because Cottrell was qualified to testify as an expert, gave permissible expert testimony, and did not violate the limitations placed on such testimony, defense counsel was not ineffective for failing to object to Cottrell's admission as an expert. See People v Riley, 468 Mich. 135, 142; 659 N.W.2d 611 (2003).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was denied the effective assistance of counsel at trial and that the trial court abused its discretion by denying his motion for new trial or for an evidentiary hearing to expand the record regarding his claim. We disagree.
A criminal defendant is entitled to the effective assistance of counsel under the United States and Michigan Constitutions. People v Schrauben, 314 Mich.App. 181, 189-190; 886 N.W.2d 173 (2016). The effective assistance of counsel is presumed, and the defendant bears the burden of proving that counsel's representation was ineffective. Id. at 190. To be entitled to a new trial on the basis of ineffective assistance of counsel, the defendant must establish that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. People v Vaughn, 491 Mich. 642, 669; 821 N.W.2d 288 (2012). When reviewing a claim of ineffective assistance of counsel, we must objectively determine whether, in light of all the circumstances, the identified acts or omissions of counsel were "outside the wide range of professionally competent assistance." People v Jackson (On Reconsideration), 313 Mich.App. 409, 431; 884 N.W.2d 297 (2015) (quotation marks and citation omitted).
When a defendant's claim of ineffective assistance depends on facts that are not apparent on the record alone, the defendant is required to make a testimonial record at an evidentiary hearing to expand the record. See People v Ginther, 390 Mich. 436, 442-443; 212 N.W.2d 922 (1973). A Ginther hearing is only warranted, however, if the defendant sets forth additional facts that demonstrate that development of a record is necessary to determine whether defense counsel was ineffective. See People v Williams, 275 Mich.App. 194, 200; 737 N.W.2d 797 (2007). A trial court is not obligated to conduct an evidentiary hearing when the defendant presents nothing more than speculation in support of his or her request for an evidentiary hearing. See People v Rose, 289 Mich.App. 499, 531; 808 N.W.2d 301 (2010). We review for an abuse of discretion a trial court's decision whether to hold an evidentiary hearing, such as a Ginther hearing. People v Franklin, 500 Mich. 92, 100; 894 N.W.2d 561 (2017). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id.
Defendant contends that his counsel at trial was ineffective because counsel did not exercise a peremptory challenge to excuse a juror, refused to permit defendant to testify, did not pursue defendant's right to take a polygraph, failed to inform the trial court that a juror was falling asleep, failed to explain the plea offer, failed to call witnesses, failed to object to the expert testimony, and failed to seek a mistrial. Defendant, however, fails to establish that counsel was ineffective or to identify any question of fact necessitating an evidentiary hearing.
1. PEREMPTORY CHALLENGE
Defendant contends that he was entitled to an evidentiary hearing to explore defense counsel's decision not to use a peremptory challenge to excuse Juror 9. We disagree.
Defense counsel initially moved to excuse Juror 9 for cause because the juror stated that she had been the victim of a sexual assault and that she might have a bias in favor of the victim. The trial court denied the motion after Juror 9 indicated that she would follow her oath to decide the case on the evidence. Thereafter, defense counsel used defendant's peremptory challenges to excuse five prospective jurors. The record shows that defense counsel consulted with defendant before exercising the last three challenges and indicates sound strategic reasons to excuse the prospective jurors. At the end of the first day of trial, defense counsel learned that Juror 9 had had a more visceral reaction to voir dire than previously thought. On the second day of trial, defense counsel renewed her motion to remove Juror 9 for cause, but the trial court denied the renewed motion because Juror 9 stated that she could set aside her personal feelings and decide the case on the evidence.
The record does not support the conclusion that defense counsel's use of the peremptory challenges fell below an objective standard of reasonableness. Defendant's motion did not identify any evidence or otherwise make an offer of proof from which one might conclude that defense counsel's decision to excuse a different prospective juror instead of Juror 9 was not a sound strategic decision. The trial court therefore correctly determined that defendant's speculation was not sufficient to justify an evidentiary hearing. See Rose, 289 Mich.App. at 531.
2. RIGHT TO TESTIFY
Defendant next argues that he was entitled to an evidentiary hearing regarding whether defense counsel provided competent advice about his right to testify. We disagree.
A defendant in a criminal case has an absolute right to testify. People v Bonilla-Machado, 489 Mich. 412, 419; 803 N.W.2d 217 (2011). Counsel must advise the defendant of the right to testify, but the ultimate decision whether to testify at trial remains with the defendant. Id. The trial court must grant a defendant's request to testify even if contrary to the advice of defendant's counsel. People v Simmons, 140 Mich.App. 681, 685; 364 N.W.2d 783 (1985).
Defendant's affidavit accompanying his motion for a new trial suggests that he discussed his right to testify with defense counsel before trial and defense counsel advised defendant not to testify. Apparently, in September 2015 defendant was hit by a truck and sustained head injuries that impeded his memory. When interviewed by police in connection with the alleged assault in this case, defendant told police that he did not remember the alleged assault but that it was possible that he assaulted the victim while intoxicated. Given defendant's statement to police and his memory difficulties, defense counsel had a strategic basis for advising defendant not to testify.
Further, in his motion for new trial defendant did not describe his proposed testimony and how it might have affected the outcome of the proceedings. Again, defendant told police that he had no recollection of sexually assaulting the victim, but that he drank alcohol heavily during that time and it was possible that he assaulted the victim but could not recall the event. It is therefore unclear what testimony defendant could offer in his own defense. In the absence of proffered testimony, the trial court did not abuse its discretion when it denied defendant's request for a hearing to further explore defense counsel's decision not to call defendant as a witness. See Franklin, 500 Mich. at 100.
3. POLYGRAPH TEST
Defendant next contends that he was entitled to an evidentiary hearing to examine defense counsel's reason for not requesting that defendant undergo a polygraph test. We disagree.
A defendant who is alleged to have committed a crime under MCL 750.520b to MCL 750.520e, or MCL 750.520g, has the right to a polygraph examination, upon request, under MCL 776.21(5) at any time before conviction. People v Anderson, 331 Mich.App. 552, 566; 953 N.W.2d 451 (2020). In his motion for new trial, defendant asserted that defense counsel at trial discouraged him from taking a polygraph test, telling him that the cost was prohibitive and that the results of the test would be inadmissible. Defendant has not identified why it was ineffective for counsel to advise against taking a polygraph test. Defendant told police that he did not remember whether he assaulted the victim. Had defendant taken a polygraph test, the best possible outcome would have been that the test showed that defendant was being truthful, that is, that he truthfully did not remember whether he assaulted the victim. Such a result, however, would not support the conclusion that defendant was not guilty, but only that he did not remember the incident.
By contrast, defendant may have made incriminating statements during a polygraph test. Consequently, in this case a polygraph test offered no potential benefit and substantial risk to defendant. Defense counsel therefore was not ineffective for not requesting a polygraph test. See People v Sclafani, 132 Mich.App. 268, 271-272; 347 N.W.2d 30 (1984) (recognizing that in most instances advising a defendant to take a polygraph is a matter of strategy, but may be a serious mistake under certain circumstances). Further, as the trial court correctly noted, defendant did not present a question of fact necessitating a hearing regarding counsel's advice to him to decline to take a polygraph test. Consequently, the trial court did not abuse its discretion when it declined to hold an evidentiary hearing on this issue. See Franklin, 500 Mich. at 100.
4. SLEEPING JUROR
Defendant next contends that defense counsel provided ineffective assistance because she failed to alert the trial court that a juror slept through a portion of his trial. We disagree.
In his affidavit in support of his motion for new trial, defendant asserted that he alerted defense counsel that a juror was sleeping, and defense counsel dismissed his concern, explaining that objecting would annoy the trial court and require the trial judge to admonish the juror. The trial court rejected defendant's motion for new trial or evidentiary hearing on this basis because defendant did not identify the sleeping juror, nor did defendant state when and for how long the juror slept or what evidence the juror allegedly missed.
Assuming that defendant's averments established a question of fact regarding whether a juror fell asleep, the averments did not establish a potential question of fact regarding whether defense counsel's purported response to defendant's request fell below an objective standard of reasonableness and prejudiced him. See People v Dunigan, 299 Mich.App. 579, 586-587; 831 N.W.2d 243 (2013) (recognizing that a reasonable lawyer may properly decide to retain a sleeping juror as a matter of trial strategy). In the absence of any offer of proof concerning the particular circumstances-such as the point at which the juror fell asleep, the length of his or her slumber, and the juror's identity-the trial court would have had to speculate how an attorney might have responded under similar circumstances, and the potential for prejudice. The trial court therefore did not abuse its discretion in this case. See Franklin, 500 Mich. at 100.
5. PLEA OFFER
Defendant also contends that the trial court abused its discretion by denying his motion for an evidentiary hearing to explore whether defense counsel failed to give him proper advice on a plea offer. Defendant asserted that defense counsel told him that the prosecutor offered to drop the felony charge and agree to a one-year cap on his time in jail. When defendant asserted his innocence and stated that he did not want to plead guilty, defense counsel advised him not to accept the plea offer. Defendant argued that he would have accepted the plea offer if he had understood the length of the possible sentence. The trial court rejected the need for an evidentiary hearing to explore these allegations because defendant did not establish a question of fact regarding whether there was an actual plea offer that he would have accepted, given that defendant continued to assert his innocence.
The trial court correctly determined that defendant could not establish a claim of ineffective assistance premised on defense counsel's advice not to plead guilty to an offense so long as he maintained his innocence. See People v White, 331 Mich.App. 144, 152-153; 951 N.W.2d 106 (2020). Although defendant suggests that perhaps he could have pleaded no contest to an offense, he did not establish a question of fact that the prosecutor made a plea offer involving a plea of no contest. Because defendant failed to establish that there was a question of fact regarding whether defense counsel properly advised him about a particular plea offer, the trial court did not abuse its discretion by denying defendant's motion. See Franklin, 500 Mich. at 100.
6. FAILURE TO CALL WITNESSES
Defendant next contends that the trial court abused its discretion when it denied his request for an evidentiary hearing to explore why defense counsel did not call defendant's sons to testify at trial, asserting that defense counsel was ineffective because she failed to do so. The trial court rejected the need for an evidentiary hearing to address that claim because defendant failed to establish the relevance and admissibility of his sons' expected testimony. Again, we agree with the trial court.
The only evidence at trial concerning defendant's sons came from the victim. She testified that they were home during the incident, playing video games in the basement, and came upstairs only once, but did not enter the living room where the sexual assault was occurring. Defendant asserts that his sons' testimony was essential to his case, but he did not make an offer of proof as to his sons' expected testimony. Given the victim's testimony, it is highly unlikely that defendant's sons could have offered any exculpatory testimony regarding defendant. The trial court did not abuse its discretion when it denied defendant's request for an evidentiary hearing. See Franklin, 500 Mich. at 100.
7. FAILURE TO CHALLENGE EXPERT TESTIMONY
Defendant next contends that he was entitled to an evidentiary hearing to examine defense counsel's failure to object to expert testimony by Thomas Cottrell on the ground that Cottrell's testimony did not meet the requirements of MRE 702. The trial court rejected defendant's request because defendant failed to identify the challenge that he claimed defense counsel should have asserted. Defendant asserted that defense counsel was ineffective for failing to object to Cottrell's testimony, without any further elaboration, which the trial court correctly determined was inadequate to justify an evidentiary hearing. Defendant's one-sentence argument merely established that he disagreed with defense counsel's decision. Consequently, the trial court did not abuse its discretion when it refused to order an evidentiary hearing on that basis. See Franklin, 500 Mich. at 100.
8. FAILURE TO SEEK A MISTRIAL
Defendant also contends that the trial court should have held an evidentiary hearing to determine why defense counsel failed to move for a mistrial after observing a violation of the court's sequestration order. Because defendant did not raise this ground for granting an evidentiary hearing in the trial court, the trial court cannot be said to have abused its discretion by failing to grant a hearing concerning this issue. See People v Jones, 44 Mich.App. 633, 638; 205 N.W.2d 611 (1973).
C. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor made improper remarks during closing argument, thereby depriving him of a fair trial. Defendant argues that the prosecutor improperly appealed to the jury's sympathy, improperly bolstered the victim's credibility, and argued facts that were not in evidence. We disagree.
The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Brown, 294 Mich.App. 377, 382; 811 N.W.2d 531 (2011). We consider the propriety of a prosecutor's remarks in the context of all the facts of the case. Id. at 383. Claims of prosecutorial misconduct are preserved by a contemporaneous and specific objection. People v Clark, 330 Mich.App. 392, 433; 948 N.W.2d 604 (2019). If the prejudicial effect of an improper prosecutorial statement could have been alleviated by a timely objection and curative instruction, reversal is not warranted. People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008). Because defendant in this case failed to contemporaneously object and request a curative instruction for the prosecutor's statements, we review this issue for outcome-determinative, plain error. Clark, 330 Mich.App. at 433.
The purpose of closing argument at trial is to permit the attorneys to comment upon the evidence and argue their theories to the jury. People v Finley, 161 Mich.App. 1, 9; 410 N.W.2d 282 (1987). During closing argument, a prosecutor may argue all reasonable inferences arising from the evidence introduced at trial. People v Dobek, 274 Mich.App. 58, 66; 732 N.W.2d 546 (2007). A prosecutor may not improperly appeal to the jury to sympathize with the victim, however, People v Watson, 245 Mich.App. 572, 591; 629 N.W.2d 411 (2001), nor may the prosecutor invite the jurors to suspend their powers of judgment and decide the case on the basis of sympathy or civic duty. See People v Lane, 308 Mich.App. 38, 66; 862 N.W.2d 446 (2014).
In this case, during closing argument the prosecutor related a story about how as a child her father had taken care of her, but in stark contrast defendant in this case had assumed the role of the victim's father and then betrayed that trust. The prosecutor also commented that the victim cried on the stand because she was concerned that the jury would not believe her testimony. Defendant argues that the prosecutor's argument was an improper appeal to convict on the basis of sympathy for the victim. We conclude that, examined in context, the prosecutor's remarks were not improper. See People v Bahoda, 448 Mich. 261, 267 n 7; 531 N.W.2d 659 (1995) (stating that remarks must be analyzed in context). The prosecutor's remarks about her own childhood were not an appeal to the jury to suspend its judgment, but a reminder of the role that parental figures play in a child's life. The prosecutor's comment about the victim being concerned that her testimony would not be believed was offered as an explanation for why the victim cried when defense counsel asked repeatedly how old she was at the time of the incident, not a plea for the jury to accept her testimony out of sympathy.
Defendant next contends that the prosecutor improperly vouched for the victim's credibility when she attacked the defense theory that the victim had been coached to make a false allegation. A prosecutor may not vouch for the credibility of a witness. People v Reed, 449 Mich. 375, 398; 535 N.W.2d 496 (1995). However, the prosecutor is free to argue from the facts that a witness is credible, or that the defendant or another witness is not worthy of belief. People v Howard, 226 Mich.App. 528, 548; 575 N.W.2d 16 (1997). In addition, the prosecutor is entitled to respond to the arguments of the defense. Here, a review of the record indicates that the prosecutor's remarks were in direct response to arguments made by the defense. In her closing argument, defense counsel warned the jury about the implications of believing the victim because her story was inconsistent. Examined in context, the prosecutor's remarks cannot be characterized as an attempt to get the jury to suspend its judgment. See Lane, 308 Mich.App. 38, 66. In rebutting the defense theory, the prosecutor argued that the victim was credible, and that the defense theory that the victim had been coached to make a false allegation was not supported by the record. These remarks were proper argument from the evidence.
Defendant also argues that the prosecutor engaged in misconduct by denigrating defense counsel. During the defense's closing argument, defense counsel suggested that police had interrogated defendant without advising him of his Miranda rights. The prosecutor objected to the suggestion that the interview had been improper, and the trial court sustained the objection. A prosecutor may not attack defense counsel in such a way that suggests that defense counsel is trying to mislead the jury. See People v Dalessandro, 165 Mich. 569, 580; 419 N.W.2d 609 (1988). However, our review of the record of this exchange reveals no improper attack by the prosecutor.
Defendant also contends that the prosecutor denigrated defense counsel when she argued in rebuttal that the defense's theory of the case was not supported by the evidence. The prosecutor told the jury that it should reject the defense theory that the victim made a false allegation of sexual abuse because that theory was weak. Read in context, there was nothing improper about this remark.
Defendant also argues that the cumulative effect of the prosecutor's remarks warrants a new trial. This Court reviews a cumulative error argument by examining the actual errors identified on appeal to determine whether the errors cumulatively deprived defendant of a fair trial. See People v LeBlanc, 465 Mich. 575, 591 n 12; 640 N.W.2d 246 (2002). Because defendant has not identified improper remarks by the prosecutor, however, there is no cumulative error.
D. SUFFICIENCY OF THE EVIDENCE
In his brief submitted under Standard 4, defendant asserts several additional errors, essentially challenging the sufficiency of the evidence supporting his conviction. We review de novo a defendant's challenge to the sufficiency of the evidence, People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020), viewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Harris, 495 Mich. 120, 126; 845 N.W.2d 477 (2014).
Supreme Court Administrative Order 2004-6, Standard 4.
To convict defendant of second-degree criminal sexual conduct, the prosecution was required to establish that defendant had sexual contact with a person under 13 years of age. See MCL 750.520c(1)(a). Sexual contact is defined to mean the "intentional touching of the victim's or actor's intimate parts . . . if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner" for certain specified reasons. MCL 750.520a(q). The victim testified that when she was eight or nine years old, defendant asked her to sit on his lap and then he put his hand down her pants and manipulated her genitalia with his fingers, which reasonably could be construed as being for the purpose of sexual arousal or gratification. See People v Duenaz, 148 Mich.App. 60, 65; 384 N.W.2d 79 (1986) (holding that evidence that the defendant intentionally touched an intimate body part in addition to evidence of the manner of the touch was sufficient evidence that the act could be reasonably construed as being for the purpose of sexual arousal or gratification). The victim's testimony thus was sufficient to establish that defendant was guilty of second-degree criminal sexual conduct. See People v Davis, 241 Mich.App. 697, 700; 617 N.W.2d 381 (2000).
Defendant argues, however, that the evidence was not sufficient to support his conviction because the victim contended that the event occurred at her home when she was 10 years old and in the fourth grade. Defendant asserts that he moved out of the home before the victim was 10 years old, and as a result no reasonable jury could find him guilty of the offense. Defendant argues that although at trial the victim stated that she was younger than 10 years of age when the abuse occurred, her testimony was inconsistent and thus not credible.
Generally, "a jury is free to believe or disbelieve, in whole or in part, any of the evidence presented," People v Russel, 297 Mich. 707, 721; 825 N.W.2d 623 (2012), and we draw all reasonable inferences and determine credibility in support of the jury's verdict. People v Baskerville, 333 Mich.App. 276, 282-283; N.W.2d (2020). In this case, a review of the record indicates that the victim testified that she was not certain how old she was at the time of the assault, that she possibly was eight or nine years old, and that she could not recall the exact date of the incident. The victim otherwise consistently testified that defendant touched her inappropriately, consistently related specific details of the assault, testified that defendant was living in her home at the time, and that defendant's two sons were in the basement playing video games at the time of the assault. Accordingly, a reasonable jury could find the victim's version of events to be credible and find beyond a reasonable doubt that the assault occurred when defendant lived in the victim's home and the victim was under the age of 13. Accordingly, defendant has not identified any grounds for reversal in his brief submitted under Standard 4.
Affirmed.