People of Michigan v. David Troy Zarn ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 22, 2016
Plaintiff-Appellee,
v No. 323279
Wayne Circuit Court
DAVID TROY ZARN, LC No. 13-008592-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 323280
Wayne Circuit Court
DAVID TROY ZARN, LC No. 13-008758-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.
PER CURIAM.
In docket number 323279, 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) (person under 13
years of age), and second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (person
under 13 years of age). Defendant was sentenced to 30 to 70 years’ imprisonment for the CSC I
convictions to be served consecutive to 15 to 25 years’ imprisonment for the CSC II conviction.
In docket number 323280, defendant appeals as of right his jury trial conviction of CSC I, MCL
750.520b(1)(a) (person under 13 years of age). Defendant was sentenced to 30 to 70 years’
imprisonment for the CSC I conviction. These cases were consolidated for the efficient
administration of the appellate process.1 We affirm defendant’s convictions, but remand for a
1
People v Zarn, unpublished order of the Court of Appeals, issued September 17, 2014.
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Crosby2 hearing in accordance with People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015).
This case arises from allegations of prolonged sexual abuse by defendant against his
stepdaughters, T.S. and L.S. Defendant married the complainants’ mother, Jennifer Zarn, in
2000, shortly after Jennifer divorced the complainants’ biological father, Richard Shene. The
complainants lived in Michigan with defendant and Jennifer until 2006, at which point Jennifer,
defendant, and the complainants moved to Pennsylvania. Complainants testified at trial that
defendant sexually abused them while they lived in both Michigan and Pennsylvania. Both
complainants testified that the abuse in Michigan included defendant forcing complainants to
perform oral sex on him. In 2012, T.S. told her boyfriend about the abuse, which ultimately led
to an investigation, during which both complainants disclosed abuse. The case proceeded to
trial, and defendant was convicted of all charged crimes, which he now appeals.
Defendant first argues that he is entitled to resentencing because the trial court engaged in
impermissible judicial fact-finding to score the sentencing guidelines, that the trial court failed to
correctly score several OVs, that the court violated the Ex Post Facto Clause by applying MCL
750.520b, and that the trial court lacked substantial and compelling reasons for upward departure
from the sentencing guidelines. We remand for a Crosby hearing, but reject defendant’s
additional arguments challenging his sentences.
Generally, “[f]or an issue to be preserved for appellate review, it must be raised,
addressed, and decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App
376, 382; 741 NW2d 61 (2007). Here, defendant failed to preserve several errors claimed on
appeal. Defendant did not object to the scoring of the guidelines at sentencing on the basis of
Alleyne v United States, 570 US___; 133 S Ct 2151, 2163; 186 L Ed 2d 314 (2013). Defendant
did not assert that the trial court violated the Ex Post Facto Clause when it considered MCL
769.34(2). Finally, defendant did not object to the alleged judicial misconduct at sentencing.
People v Sardy, 216 Mich App 111, 117-118; 549 NW2d 23 (1996). Accordingly, these issues
are unpreserved. Defendant’s claims relating to the scoring of OVs and the court’s upward
departure were preserved for appeal.
Appellate review of unpreserved errors is limited to plain error affecting substantial
rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A sentence that
departs from the applicable guidelines range will be reviewed by an appellate court for
reasonableness. Lockridge, 498 Mich at 392. When reviewing a scoring issue, the trial court’s
factual determinations are reviewed for clear error and must be supported by a preponderance of
the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). The court’s
application of the facts to the statutory scoring conditions is a question of statutory interpretation
that is reviewed de novo on appeal. Id.We initially address defendant’s unpreserved Lockridge argument. In Alleyne, 133 S Ct
at 2163, the United States Supreme Court held that because “mandatory minimum sentences
2
United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).
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increase the penalty for a crime,” any fact that increases the mandatory minimum is an “element”
that must “be submitted to the jury and found beyond a reasonable doubt.” In Lockridge, 498
Mich at 364, our Supreme Court held that Michigan’s sentencing guidelines were
constitutionally deficient under Alleyne to the extent that “the guidelines require judicial fact-
findings beyond facts admitted by the defendant or found by the jury to score offense variables
(OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the
‘mandatory minimum’ sentence under Alleyne.” To remedy the constitutional violation, the
Court severed MCL 769.34(2) to the extent that it makes the sentencing guidelines, as scored
based on facts beyond those admitted by the defendant or found by the jury, mandatory. Id. The
Court explained that a sentencing court must still score the guidelines to determine the applicable
guidelines range, but a guidelines range calculated in violation of Alleyne is now advisory only.
Id. at 365.
Here, the jury did not make the necessary findings to support the scoring of OV 3
(physical injury), OV 4 (psychological injury), OV 10 (predatory behavior), and OV 13
(continuing pattern of criminal behavior). Further, defendant made no admissions sufficient to
establish these variables. Therefore, the “facts admitted by defendant or found by the jury
verdict were insufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he [] was sentenced[,]”
resulting in a violation of defendant’s Sixth Amendment rights. Id. at 395. However, the
Lockridge Court explained that defendants who received an upward departure sentence could not
establish plain error because the trial court did not rely on the minimum sentence range. Id. at
394; see also People v Steanhouse, ___ Mich App ___, ____; ___ NW2d ___ (2015); slip op at
21 (Docket No. 318329). Rather, “a sentence that departs from the applicable guidelines range
will be reviewed by an appellate court for reasonableness.” Lockridge, 498 Mich at 392.
In Steanhouse, this Court determined the appropriate procedure for considering the
reasonableness of a departure sentence. The Court ultimately adopted the principle of
proportionality standard articulated in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Under this standard, “a given sentence [could] be said to constitute an abuse of discretion if that
sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the
trial court to be proportionate to the seriousness of the circumstances surrounding the offense and
the offender.” Id. at 636. “As such, trial courts were required to impose a sentence that took
‘into account the nature of the offense and the background of the offender.’ ” Steanhouse, ___
Mich App at ___; slip op at 23, citing Milbourn, 435 Mich at 651.
Factors previously considered by Michigan courts under the proportionality
standard included, among others, (1) the seriousness of the offense; (2) factors not
considered by the guidelines, such as the relationship between the victim and the
aggressor, the defendant’s misconduct while in custody, the defendant’s
expressions of remorse, and the defendant’s potential for rehabilitation; and (3)
factors that were inadequately considered by the guidelines in a particular case.
[Steanhouse, ___ Mich App at ___; slip op at 24 (citations omitted).]
Pursuant to Steanhouse, because the law and analysis for upward departure sentences has
changed since defendant’s sentencing, remand for a Crosby hearing is proper because “the trial
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court was unaware of and not expressly bound by a reasonableness standard rooted here in the
Milbourn principle of proportionality.” Id. at ___; slip op at 25.
Accordingly, we remand the matter to the trial court to follow the Crosby procedure
outlined in Lockridge. Id. at ___; slip op 25. We note that “defendant may elect to forego
resentencing by providing the trial court with prompt notice of his intention to do so” due to the
possibility that defendant may receive a more severe sentence on remand. People v Stokes, ___
Mich App ___, ___; ___ NW2d ___ (2015); slip op at 11-12 (Docket No. 321303). If
notification is not received, the trial court must consider whether the court would have imposed a
materially different sentence but for the constitutional error. Lockridge, 498 Mich at 397. “If the
trial court determines that the answer to that question is yes, the court shall order resentencing.”
Id.
Despite our determination that remand is appropriate, analysis of the remaining issues is
necessary as they may arise in the case of resentencing. We next address defendant’s challenges
to the trial court’s scoring of OVs 3, 10, and 13.
OV 3 addresses physical injury to a victim, and was scored at five points during
sentencing. MCL 777.33(1). OV 3 should be scored at five points when “[b]odily injury not
requiring medical treatment occurred to a victim.” MCL 777.33(1)(e). Defendant asserts that
forcing a young child to perform oral sex does not constitute bodily injury. However, the trial
court relied on L.S.’s testimony that she gagged and threw up when forced to perform oral sex to
support the five point score. We agree with the trial court that gagging L.S. to the point that she
was physically ill constituted physical injury not requiring medical treatment. No error occurred.
OV 10 scores exploitation of a vulnerable victim, and should be scored at 15 points when
predatory conduct was involved. MCL 777.40(1)(a). “Predatory conduct” means preoffense
conduct directed at a victim for the primary purpose of victimization. Defendant contends that
OV 10 was improperly scored at 15 points, and should have only been scored at 10 points for
exploitation of the victim’s youth. Here, the complainants testified that, soon after defendant
married Jennifer and began living with the complainants, he established himself as a father figure
to the complainants, who were very young. He then began to engage in grooming behavior.
Both complainants testified that he performed examinations of their bodies and utilized physical
discipline. He would instruct them not to flinch or move when being touched. T.S. testified that
after he performed sexual acts, he would hug her and tell her he loved her. Defendant’s ongoing
conduct of sexual abuse was primed by his simultaneous loving and violent behavior toward
complainants, which ultimately proved very predatory in nature.
The trial court scored OV 13 at 50 points. OV 13 should be scored 50 points when “[t]he
offense was part of a pattern of felonious criminal activity involving 3 or more sexual
penetrations against a person or persons less than 13 years of age.” MCL 777.43(1)(a). The
instructions provide that “all crimes within a 5-year period, including the sentencing offense,
shall be counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a).
However, conduct used to score this variable should not be scored in OV 11 or OV 12. MCL
777.43(2)(c). The trial court scored 50 points for OV 11. A 50-point score is appropriate where
“[t]wo or more criminal sexual penetrations occurred.” MCL 777.41(1)(a). Defendant does not
dispute that there was error in scoring OV 11, but argues that the trial court scored the same
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conduct (the additional two sexual penetrations against T.S. for which defendant was convicted)
under OV 13. However, the trial court stated on the record that in scoring OV 13, it relied on the
complainants’ testimony that defendant’s conduct was ongoing for several years, encompassing
many sexual penetrations not accounted for in OV 11. Accordingly, the trial court did not err
because it relied on separate penetrations when scoring OV 13.
Defendant next asserts that the trial court violated the Ex Post Facto Clause of the
Michigan and federal constitutions. We disagree. The Ex Post Facto Clauses of the United
States and Michigan Constitutions bar the retroactive application of a law if the law: (1) punishes
an act that was innocent when the act was committed; (2) makes an act a more serious criminal
offense; (3) increases the punishment for a crime; or (4) allows the prosecution to convict on less
evidence. People v Earl, 495 Mich 33, 37; 845 NW2d 721 (2014). MCL 769.34(2) provides
that “the minimum sentence imposed by a court of this state . . . shall be within the appropriate
sentence range under the version of those sentencing guidelines in effect on the date the crime
was committed.” Here, defendant complains of the trial court’s reference to MCL
750.520b(2)(b), enacted in 2006 after the crimes were committed, which provides a 25-year
minimum sentence for CSC I when the victim is under 13 years old. Contrary to defendant’s
assertion, the trial court did not apply MCL 750.520b. The prosecutor and trial court merely
referenced the change in the law when discussing the trial court’s discretion to depart upward
from the sentencing guidelines. The trial court stated that the amendment of the statute further
illustrated the inadequacy of the sentencing guidelines as applied to this case. The trial court did
not follow the law or apply it. Moreover, the trial court still provided reasons for upward
departure separate from its reference to MCL 750.520b. Thus, no error occurred.
The prosecutor concedes that the trial court erroneously imposed consecutive sentences
pursuant to MCL 750.520b(3).3 MCL 750.520b was amended in 2006 to allow for consecutive
sentences in CSC cases such as this one. However, defendant’s crimes were committed before
the statute was amended. Thus, we agree with the prosecutor that, on remand, the trial court
should amend defendant’s judgment of sentence to reflect concurrent sentences.
Finally, defendant claims that he was denied a fair sentencing because of judicial
misconduct. Specifically, defendant claims that the trial court exhibited bias when it refused to
allow Jennifer to address the court at sentencing. First, we note that the trial court did not stop
Jennifer from addressing the court. While the judge initially refused to allow Jennifer to speak,
she then stated: “You know what? Let her. Go ahead.” Defense counsel then declined multiple
times. Because defense counsel effectively withdrew his request, this issue was waived. See
People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). Further, we are not convinced
that defendant was entitled to have Jennifer speak at the sentencing hearing. MCR
6.425(E)(1)(c) provides that only defendant, defendant’s lawyer, the prosecutor, and the victim
must have “an opportunity to advise the court of any circumstances they believe the court should
consider in imposing sentence.” Defendant relies on MCR 6.425(E)(1)(b), which provides that
the trial court must “give each party an opportunity to explain, or challenge the accuracy or
3
Defendant did not raise this argument on appeal.
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relevancy of, any information in the presentence report, and resolve any challenges.” However,
our review of the record reveals that defendant was afforded this opportunity to address the
presentence investigation report (PSIR) and raised no challenges. Furthermore, defendant
provided an explanation of the information Jennifer wished to share with the court, all which was
duplicative of testimony already in the record. Indeed, Jennifer testified at trial as to many of the
things she wished to state, and her statement was also contained in the PSIR. While the trial
court did express an incredulous tone and demeanor when defense counsel requested that
Jennifer speak, comments that are critical of or hostile to counsel and the parties are generally
not sufficient to establish judicial bias. People v Jackson, 292 Mich App 583, 598; 808 Mich
541 (2011). For these reasons, defendant was not denied a full and fair sentencing on this basis.
Defendant next argues that he was denied the effective assistance of counsel. We
disagree. Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law. People v Lockett, 295 Mich App 165, 186; 814 NW2d
295 (2012). The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id., citing People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). While defendant preserved this issue, the trial court did not hold an
evidentiary hearing, so this Court’s review is limited to the facts on the record. People v Chapo,
283 Mich App 360, 369; 770 NW2d 68 (2009), citing People v Wilson, 242 Mich App 350, 352;
619 NW2d 413 (2000).
“To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290;
806 NW2d 676 (2011). “To demonstrate prejudice, a defendant must show the probability that,
but for counsel’s errors, the result of the proceedings would have been different.” Nix, 301 Mich
App at 207.
Defendant raises several instances of alleged ineffective assistance of counsel. Defendant
first asserts that defense counsel was ineffective for failing to request a limiting instruction
regarding the introduction of other acts evidence. Specifically, the jury should have been
instructed not to use the other acts evidence—the testimony of the events that occurred in
Pennsylvania—to conclude defendant was a bad person and, thus, committed the crimes. Before
trial, the prosecution brought a motion to admit evidence that defendant sexually abused the
complainants in Pennsylvania pursuant to MRE 404(b) and MCL 768.27a. As discussed infra,
this evidence was properly admitted pursuant to MRE 404(b) and MCL 768.27a. Defendant’s
argument here lacks merit because evidence admitted pursuant to MCL 768.27a is admissible “to
show a defendant’s character and propensity to commit the charged crime[.]” People v Watkins,
491 Mich 450, 470; 818 NW2d 296 (2012). Furthermore, while defendant claimed that no
distinction was made between the Michigan acts and Pennsylvania acts during trial, the trial
court explained in a jury instruction that evidence of sexual misconduct for which defendant was
not on trial had been admitted, and that the jury must not convict defendant solely on the basis
that the jury thought defendant was guilty of other bad conduct. While defendant contends the
trial court did not read the correct instruction, defense counsel expressly approved the instruction
given, thus waiving the issue. Kowalski, 489 Mich at 503. Moreover, instructional error is only
grounds for reversal when it resulted in a miscarriage of justice. Given the trial court’s
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instruction on MRE 404(b) as opposed to MCL 768.27a, no miscarriage of justice resulted from
the instructions. In addition, the prosecutor’s opening statement did not refer to the other acts
evidence improperly. The evidence was already deemed admissible, and the prosecutor
explained that the evidence of the Pennsylvania acts would provide context and corroboration for
the complainants’ allegations. We do not agree that the prosecutor’s comments suggested that
the jury consider the evidence for an improper purpose. Accordingly, defendant was not denied
effective assistance on this ground.
Second, defendant claims that defense counsel was ineffective for failing to object to the
admission of evidence. Defendant asserts that the prosecution elicited bad acts evidence not
properly noticed before trial. According to defendant, the testimony that Jennifer was
investigated regarding T.S. breaking her leg as a baby, admitted during the prosecutor’s redirect
examination of Richard, was improper. We disagree. First, on cross-examination defense
counsel questioned Richard regarding signs of physical abuse by Jennifer, and the prosecution’s
questions were responsive to that inquiry. A “prosecutor may fairly respond to an issue raised by
the defendant.” People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Further, the
testimony was brief, and the trial court clarified that any investigation resulted in no charges
being brought. Accordingly, even if the admission was error, there was no reasonable
probability that the outcome of defendant’s trial would have been different had counsel objected.
Nix, 301 Mich App at 207. Further, there was no record support for defendant’s claim that the
prosecutor used Jennifer to show defendant’s guilt by association or engaged in a civic duty
argument to divert the jury’s attention from defendant’s guilt. While evidence regarding Jennifer
was admitted, the defense contributed to such evidence and much of the prosecution’s evidence
and arguments relating to Jennifer were responsive in nature. Furthermore, based on our review
of the entire record, the prosecution’s primary focus was properly on defendant and his behavior,
not Jennifer.
Defendant also asserts that defense counsel should have objected to the suggestion that
defendant had child pornography on the hard drive of his computer. We disagree. Charles
Balogh, investigator for the Luzerne County District Attorney’s office in Pennsylvania, testified
that, frequently, there is a correlation between child pornography and child sex abusers. We
agree with the trial court that the fact that Balogh did not find child pornography on defendant’s
computer was beneficial to defendant’s case, and cut against Balogh’s credibility. Furthermore,
while defendant claims that Balogh suggested that defendant had child pornography on his
computer but “wiped” the hard drive, we disagree. While that inference could have been drawn
from the evidence presented, Balogh did not testify as to that. For the same reason, we reject
defendant’s assertion that defense counsel should have objected to Balogh’s testimony that
suggested defendant stole security cameras from his job. Balogh only testified that the cameras
in defendant’s home were the same as those used in the casino where defendant worked. He did
not testify or suggest that defendant stole the cameras, and this evidence was later rebutted by
defendant’s testimony that the cameras in the home were not the same as those in the casino.
Further, we agree with the trial court that the testimony regarding defendant’s possession of
security cameras actually bolstered his claim about why he had such large storage capacity on his
personal computer. We disagree that defense counsel should have objected to Balogh’s
“opinion” testimony regarding the Christmas Eve photograph of L.S. This testimony was merely
Balogh’s perception of the photograph, admissible pursuant to MRE 701, and showed why this
particular photograph captured his attention during the investigation. Moreover, the photograph
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was admitted for the jury to view and evaluate. There was no record support for defendant’s
assertion that the prosecutor admitted the photograph improperly to suggest it was child
pornography. Rather, it appears the prosecution admitted the photograph to demonstrate the
relationship as it existed between defendant and the complainants.
Defendant contends that defense counsel should have objected to photographs admitted
that showed complainants at different ages, claiming that the photographs were intended to
garner sympathy from the jury. We disagree. The photographs were relevant to illustrate to the
jury the children’s ages at the time of the offenses, which spanned multiple years. Furthermore,
defendant also presented photographs of the complainants, which cuts against his claim.
Defendant next contends that defense counsel should have objected to Allison Cave’s,
Child Protective Services (CPS) intake supervisor for Luzerne County, Pennsylvania, opinion
testimony regarding the results of the CPS investigation because it was inadmissible hearsay.
Defendant contends that the testimony improperly bolstered the complainants’ credibility,
relying on People v Douglas, 496 Mich 557; 852 NW2d 587 (2014). However, Cave did not
comment on the complainants’ credibility, such as in Douglas. Cave clearly testified that her
testimony was based solely on the conclusion of CPS, and not on her opinion on the veracity of
the complainants’ allegations. Further, the testimony was admitted to show the next steps of the
investigation, not to prove the truth of the matter asserted, so it was not hearsay. MRE 801. For
the same reason, we reject defendant’s claim that defense counsel should have objected to Harry
Zearfoss’s, guidance counselor at T.S.’s school, testimony that T.S. told him she was being
molested and Balogh’s testimony that the district court found there was probable cause to issue
search warrants. This testimony was admitted to show what came next in the investigation, not
to prove the truth of whether defendant committed the crimes.
Defendant next claims that counsel should have objected to several arguments made by
the prosecution, including the prosecutor’s statement that he was surprised defendant moved into
the home Richard and Jennifer had lived in together. As defense counsel states, it is difficult to
see how this statement was prejudicial. While he claims that “the prosecution [] wanted the jury
to draw a negative conclusion,” he cannot articulate how the statement negatively impacted
defendant. Accordingly, there was no reasonable probability that defense counsel’s failure to
object to this brief, isolated statement made a difference in the outcome of trial. Nix, 301 Mich
App at 207. Defendant also contends that during rebuttal argument, the prosecutor improperly
suggested that it was inappropriate for a 16-year-old girl to sit in an adult’s lap. This argument
was responsive to defendant’s claims that the complainants should have told Jennifer of the
abuse, and was used to argue that Jennifer ignored the signs of abuse and that it was clear that
she would have been loyal to defendant if complainants told her of the abuse. This was a
permissible argument responding to defendant’s claims. Brown, 279 Mich App at 135. The
record does not support defendant’s assertion that the prosecutor suggested to the jury that the
complainants would have to move back to Pennsylvania if they did not convict defendant. The
prosecutor sated “let’s remember this is the person you’re saying the complainants are supposed
to go to.” When read in context, it is clear the prosecutor is referring to whether the
complainants could have gone to Jennifer to disclose the abuse, not suggesting that the
complainants would be returned to her custody.
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Finally, defendant raises claims relating to defense counsel’s errors in his attempts to
present an expert witness, Dr. Katherine Okla, at trial. In denying defendant’s motion for a new
trial on these grounds, the trial court held that, even assuming defense counsel had made more
strenuous efforts to obtain the expert witness, it would not have impacted the court’s holding.
The court concluded that the case was solely based on the credibility of the witnesses, and that
expert testimony would not aid the trier of fact given the age of the complainants. Defense
counsel is not ineffective for failing to raise a meritless argument or futile objection. People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Accordingly, defense counsel was
not ineffective on these grounds.
Defendant also claims defense counsel failed to properly investigate his proposed
defense—that because the complainants excelled in school, they could not have been abused.
According to defendant, had he consulted Dr. Okla, she would have informed him that good
grades and sexual abuse were not inconsistent, so defense counsel would not have been
“blindsided” by Cave’s and Zearfoss’s testimony to the contrary. We are not convinced by
defendant’s argument. In the trial court, defendant requested that Dr. Okla be allowed to testify
regarding characteristics of children who have been sexually abused, which refutes defendant’s
claim of defense counsel’s failure to consult Dr. Okla on these matters. In addition, even if there
was no correlation between good grades and children who were sexually abused, admission of
evidence that the complainants were doing well in school and were well adjusted still
corroborated defendant’s claim that they were lying. This strategy was not objectively
unreasonable, particularly considering the fact that Cave and Zearfoss were not expert witnesses,
and testified only briefly of their opinions based on their experience. Further, defense counsel’s
theory was a matter of trial strategy, which this Court does not second guess. People v Russell,
297 Mich App 707, 716; 825 NW2d 623 (2012).
Defendant next argues that the trial court abused its discretion in the admission of
evidence. We disagree. This Court reviews for an abuse of discretion a preserved challenge to
the admission of evidence. People v Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007). “A
trial court abuses its discretion when it chooses an outcome that is outside the range of
reasonable and principled outcomes.” Id.Defendant claims the trial court made several evidentiary errors. First, defendant
contends that the trial court erred in denying defendant’s request for expert witness testimony.
Defendant requested to admit the testimony of Dr. Okla, who would testify that the complainants
were subject to suggestive interview techniques, including repeated interviews. The trial court
denied the request. Defendant asserts that the trial court’s denial constituted a predetermination
that the complainants were credible.
MRE 702 permits expert witness testimony when it “will assist the trier of fact to
understand the evidence or to determine a fact in issue[.]” Here, the trial court held that an
expert witness was not necessary to assist the jury in understanding the issues. The only issue in
the case was credibility and the trial court held that the complainants were beyond the age where
they would fall victim to suggestive interviews. Ultimately, we conclude that the trial court did
not abuse its discretion based on the circumstances. Here, the allegedly suggestive interviews
were never admitted. Rather, the jury was directly presented with the complainants’ testimony,
which they had to decide was true or not. Contrary to defendant’s claims, the trial court did not
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predetermine that the complainants were telling the truth—the court left the issue for the jury.
While defendant asserts that the complainants were underage, and, thus, still children, we are
inclined to agree with the trial court regarding the age and susceptibility of the complainants. At
the time of trial, T.S. was 16 years old and L.S. was 14 years old. In the case relied on by
defendant to support his position, People v Trakhtenberg, 493 Mich 38; 826 NW2d 136 (2012),
the child victim was only eight years old. The complainants here were of an age where they
would understand the difference between a truth and a lie, and continued to clearly contend that
defendant sexually abused them at the time of trial. This was a straightforward case based solely
on the credibility of the witnesses.
Because it is the province of the jury to determine whether a particular witness
spoke the truth or fabricated a cock-and-bull story, it is improper for a witness or
an expert to comment or provide an opinion on the credibility of another person
while testifying at trial. Such comments have no probative value, because they do
nothing to assist the jury in assessing witness credibility in its fact-finding mission
and in determining the ultimate issue of guilt or innocence . . .. As a result, such
statements are considered superfluous and are inadmissible lay witness opinion on
the believability of a witness’s story because the jury is in just as good a position
to evaluate the witness’s testimony. [People v Musser, 494 Mich 337, 349; 835
NW2d 319 (2013).]
Further, it has been held that an expert witness may not opine that a complainant has not been
coached or was being truthful, as it improperly comments on the credibility of the witness.
Douglas, 496 Mich at 583. Here, the true purpose of the expert testimony would have been to
attack the credibility of the complainants, and would have only served to distract the jury from
its ultimate responsibility of determining their credibility. Accordingly, the trial court did not
abuse its discretion.
Second, defendant asserts that the trial court erred in allowing evidence that Jennifer was
a bad mother. Specifically, defendant points to Cave’s testimony that Jennifer did not believe
the complainants’ allegations and that the complainants were removed from the home.
Defendant claims that this evidence was not relevant pursuant to MRE 401. However, defendant
consistently argued that the complainants were not credible because they never disclosed the
abuse to Jennifer. The fact that Jennifer did, in fact, not believe complainants was certainly
relevant in response. Further, the evidence was relevant to show the next steps in the
investigation. Additionally, Jennifer later testified regarding the same facts, rendering admission
harmless. MCL 769.26.
Third, defendant contends that the trial court erred in admitting the bad acts evidence of
defendant’s alleged misconduct in Pennsylvania. Specifically, defendant asserts that the trial
court applied the wrong analysis when considering the admissibility of the evidence pursuant to
MCL 768.27a. MCL 768.27a(1) provides that “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.” Here, the evidence at issue, testimony by the complainants that
defendant had molested them multiple times in Pennsylvania, plainly falls within the scope of
MCL 768.27a. However, evidence admissible pursuant to MCL 768.27a may still be excluded
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under MRE 403 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.” Watkins, 491 Mich at 481, 486.
[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. [Id. at 487.]
The Watkins Court further held that “[t]here 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.” Id. at 487-488.
Defendant contends that had the trial court applied the proper analysis, it would have
denied the admission of the other acts evidence. Specifically, defendant asserts that the evidence
of the Pennsylvania acts took up far more time at trial than did any of the events that took place
in Michigan. However, we do not agree that the fact that testimony from the events in
Pennsylvania was more extensive than the testimony regarding the Michigan events rendered the
evidence overly prejudicial. Not only were the complainants younger when they lived in
Michigan, but they also lived in Pennsylvania longer. Additionally, much of the evidence
regarding events in Pennsylvania related to the disclosure of the abuse and subsequent
investigation, as opposed to testimony regarding the substance of the abuse itself. Accordingly,
the trial court did not abuse its discretion in admitting the other acts evidence at trial.
Fourth, defendant asserts that he was denied the right to elicit evidence in support of his
defense. Specifically, defendant complains that he was not allowed to question his mother,
Marge Zarn, regarding whether T.S. had ever confided information concerning sexual assaults or
whether T.S. lingered in the shower. First, we note that Marge did testify that the complainants
never confided in her regarding any abuse, contrary to defendant’s claim. Additionally, when
the trial court denied his request to further question the witness, defense counsel had already
been allowed a direct examination and a redirect examination. The proceeding had already gone
over the estimated time for trial, and the judge had expressed that the questioning of minor
witnesses was taking too much time. Pursuant to MRE 611(a), “[t]he court shall exercise
reasonable control over the mode and order of interrogating witnesses and presenting evidence
so as to . . . avoid needless consumption of time.” Here, the trial court did not abuse its
discretion because the fact that complainants never confided in Marge regarding the abuse was
already in the record, and whether Marge knew if T.S. lingered in the shower was a minor,
immaterial detail.
Fifth, defendant claims that the trial court abused its discretion in determining that no
Brady violation occurred. During Richard’s direct examination, he testified that L.S. had stated
that she wanted to commit suicide. Defendant objected and moved for a mistrial, arguing that he
should have been informed of this information before trial, especially because it directly rebutted
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his theory of the case. The prosecutor stated that he had learned that information three to four
days before trial during an interview with Richard, and was under no obligation to turn the
information over to the defense because it was work product. The trial court denied defendant’s
request for a mistrial.
Defendant correctly states that a criminal defendant has a due process right to obtain
exculpatory evidence possessed by the prosecution if it would raise a reasonable doubt about the
defendant’s guilt. Brady v Maryland, 373 US 83, 27; 83 S Ct 1194; 10 L Ed 2d 215 (1963). To
establish a Brady violation, a defendant must prove that: “(1) the prosecution has suppressed
evidence; (2) that is favorable to the accused; and (3) that is material.” People v Chenault, 495
Mich 142, 150; 845 NW2d 731 (2014). “Evidence is favorable to the defense when it is either
exculpatory or impeaching.” Id. To establish materiality, a defendant must show that “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Id.The trial court did not err in ruling that the prosecutor did not violate Brady. First, we
note that information obtained from an interview is not subject to mandatory disclosure by the
prosecutor. See People v Holtzman, 234 Mich App 166, 168-169; 593 NW2d 617 (1999).
Furthermore, the evidence at issue was not exculpatory or impeaching. Defendant contends that
the evidence was exculpatory because it was further evidence of L.S.’s attention seeking
personality. However, no evidence was admitted that L.S. exhibited attention seeking behavior,
or that was the reason she was making the allegations. Rather, it was asserted that she was
bringing the allegations because she wanted to support T.S. Further, the evidence that was
admitted showed the effects of the disclosure on L.S., not whether her claims were true or false.
For the same reasons, the evidence was not material, as there was not a reasonable probability
that if the information was disclosed the result of the proceeding would have been different.
Defense counsel’s theory that because the girls were doing well in school during the time they
claimed to be abused was still viable even considering the new information, as the suicidal
thoughts did not begin until after the complainants disclosed the abuse. Accordingly,
defendant’s claim fails.
Finally, even assuming the trial court erred in relation to any of defendant’s claims, he
has failed to establish that any of these errors merit reversal. Pursuant to MCL 769.26:
No judgment or verdict shall be set aside or reversed or a new trial be granted by
any court of this state in any criminal case, on the ground of misdirection of the
jury, or the improper admission or rejection of evidence, or for error as to any
matter of pleading or procedure, unless in the opinion of the court, after an
examination of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice.
Throughout his brief, defendant attempts to ignore the clear and direct testimony of both
complainants regarding defendant’s sexual misconduct. While there were ancillary issues that
may have minorly impacted credibility, the paramount issue in the case was whether the jury
believed the allegations as testified to by complainants. We are not convinced that the issues
raised by defendant impacted the case significantly given the complainants’ testimony. Finally,
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defendant makes cursory arguments that any admission of hearsay evidence violated his rights
under the confrontation clause. Because there were no errors in the admission of evidence,
defendant’s rights under the confrontation clause were not violated.
Defendant next argues that the prosecutor engaged in misconduct. We disagree. Because
defendant did not object to the prosecutor’s conduct at trial, this issue unpreserved and review is
limited to plain error affecting substantial rights. People v Gaines, 306 Mich App 289, 308; 856
NW2d 222 (2014). Error requiring reversal will not be found when a curative instruction could
have displaced any prejudicial effect of the prosecutor’s misconduct. People v Johnigan, 265
Mich App 463, 467; 696 NW2d 724 (2005).
Defendant asserts that the prosecutor engaged in misconduct by (1) obtaining a
conviction based on the conduct of Jennifer, (2) asking the jury to infer that defendant stole
security cameras from his employer, possessed child pornography, and obstructed justice, and (3)
committing a Brady violation by withholding evidence. We previously discussed defendant’s
claim regarding a Brady violation, supra, and determined that no such violation occurred. As
such, this claim is not discussed further.
“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Questions of
prosecutorial misconduct are decided on a case-by-case basis, and a prosecutor’s remarks must
be evaluated in context, including the defense arguments, and their relationship to the evidence
admitted at trial. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014); Dobek, 274
Mich App at 64. “Prosecutors have discretion on how to argue the facts and reasonable
inferences arising therefrom, and are not limited to presenting their arguments in the blandest
terms possible.” People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011).
We first address whether the prosecutor obtained defendant’s conviction by convincing
the jury that Jennifer was a bad mother. A defendant’s opportunity for a fair trial can be
jeopardized when the prosecutor interjects issues broader than the defendant's guilt or innocence.
Dobek, 274 Mich App at 63-64. However, we disagree with defendant’s assertion. As discussed
previously, much of the evidence relating to Jennifer was admitted in response to defendant’s
own admitted evidence. Brown, 279 Mich App at 135. In addition, a full review of the record
shows that the prosecutor focused on defendant, his relationship with complainants, and his
actions toward complainants, as opposed to Jennifer.
Defendant specifically complains that the prosecutor improperly admitted evidence that
Jennifer had not contacted the complainants. During Richard’s testimony, he testified that,
pursuant to an order in Michigan, Jennifer was permitted to contact the complainants’ by
telephone but had not done so. Defendant objected, arguing that there was a bond condition in
Pennsylvania that prevented contact between the complainants and Jennifer, but a dispute arose.
Later, it was clarified that Jennifer could not contact the complainants pursuant to the bond
condition, and the jury was informed. Defendant claims that Richard’s contrary testimony had
already prejudiced the jury. However, we disagree. Whether Jennifer had called the
complainants was an ancillary issue, and only briefly discussed at trial. Further, the jury was
told the correct information, curing any error. Additionally, the record shows that the prosecutor
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did not know about the bond condition in Pennsylvania at the time he questioned Richard,
supported by the supplemental testimony of Balogh during Richard’s testimony. “A prosecutor’s
good-faith effort to admit evidence does not constitute misconduct.” Dobek, 274 Mich App at
70.
Defendant next asserts that the prosecutor asked the jury to infer that defendant stole the
cameras from his employer, possessed child pornography, and obstructed justice. As discussed
infra, the prosecutor did not ask the jury to infer any of these things. The prosecutor admitted
testimony from witnesses, but the witnesses did not testify to the inferences asserted by
defendant, nor did the prosecutor argue these inferences at any point in the case. Accordingly,
defendant’s claim fails. We conclude that the prosecutor did not engage in misconduct.
Defendant next argues that he was denied his right to a fair trial because of judicial bias.
“The question whether judicial misconduct denied defendant a fair trial is a question of
constitutional law that appellate court reviews de novo.” People v Stevens, 498 Mich 162, 164;
869 NW2d 233 (2015).
The United States and Michigan Constitutions both guarantee a defendant the right to a
fair and impartial trial. See US Const, Am VI; Const 1963, art 1, § 20. A defendant must
overcome a heavy presumption of judicial impartiality when claiming judicial bias. Jackson,
292 Mich App at 598. In Stevens, 498 Mich at 164, our Supreme Court clarified the proper
analysis under which a claim of judicial misconduct is to be reviewed:
A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
pierces the veil of judicial impartiality. A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the totality of
the circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party. [Citations omitted.]
A fact-specific inquiry is required. Id. at 171. “A single inappropriate act does not necessarily
give the appearance of advocacy or partiality, but a single instance of misconduct may be so
egregious that it pierces the veil of impartiality.” Id. A reviewing court must first consider the
nature or type of judicial conduct asserted. Id. at 172. Judicial misconduct includes the belittling
of counsel, inappropriate questioning of witnesses, providing improper strategic advice to one
side, or biased commentary in front of the jury. Id. at 172-173. However, the trial court is also
required to “exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.” MRE 611(a).
Defendant points to several instances where he alleges the trial court exhibited bias.
First, the trial court pierced the veil of judicial impartiality when it identified herself as a former
sex crimes prosecutor, which showed the jury she was interested in obtaining a conviction. We
disagree. The judge identified herself as a former prosecutor during jury selection whenever a
potential juror member identified themselves as a victim of a sex crime. “The purpose of voir
dire is to elicit enough information for development of a rational basis for excluding those who
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are not impartial from the jury.” People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994).
The trial court has discretion in both the scope and conduct of voir dire. Id.; MCR 6.412(C).
Here, the judge was attempting to ensure that no potential juror member was familiar with her by
way of her former role as a prosecutor. There was absolutely no record evidence, besides her
identification of herself as a former prosecutor for the purpose of voir dire, that she was “keenly
interested in obtaining the conviction of defendant.” Accordingly, defendant’s claim lacks merit.
Defendant raises several allegations relating to the trial court’s questioning of witnesses.
The trial court has the right to interrogate witnesses. MRE 614(b). The court may question
witnesses to elicit additional information or clarify the witness’s testimony. People v Davis, 216
Mich App 47, 49-50; 549 NW2d 1 (1996). “The principle limitation on a court’s discretion over
matters of trial conduct is that its actions not pierce the veil of judicial impartiality.” Id. at 50.
The court must ensure that its questions are not “intimidating, argumentative, prejudicial, unfair,
or partial.” Id. (citation omitted). Defendant also complains that the court’s evidentiary holdings
and commentary during the trial. Absent deep-seated favoritism or antagonism making the
exercise of fair judgment impossible, judicial rulings or opinions are not valid grounds for
alleging bias. Gaines, 306 Mich App at 313-314.
After reviewing the record, we conclude that the trial judge’s conduct did not pierce the
veil of judicial impartiality. Stevens, 498 Mich at 164. Considering the totality of the
circumstances, it is not reasonably likely that the trial judge’s conduct improperly influenced the
jury by creating the appearance of advocacy or partiality against defendant. Id. The tone and
demeanor of the trial judge was respectful for the most part. While there were times when the
trial judge appeared to express impatience with defendant, comments that are critical of or
hostile to counsel and the parties are generally not sufficient to pierce the veil of impartiality.
Jackson, 292 Mich App at 598.
While we have concluded that defendant’s claim lacks merit, we address defendant’s
specific arguments for completeness. Defendant asserts that the judge improperly asked T.S.
what she meant during a portion of her testimony. Defendant claims the testimony at issue
concerned other acts evidence that occurred in Pennsylvania, and was not related to the charged
crimes. However, the judge may clarify witness testimony, and the court is not limited because
the evidence was admitted pursuant to MRE 404(b). Davis, 216 Mich App at 49-50. Similarly,
when the court questioned Zearfoss about whether abused children could succeed in school, the
court was exercising its power to elicit additional information. Although Zearfoss’ statement
was damaging to the defense, the court’s question itself was neutral, and the court is not limited
from asking questions because the answer may be unfavorable to defendant. Defendant claims
the court limited his examination of Cave regarding the complainants’ “achievements.”
However, the record reflects that defendant was attempting to question Cave regarding whether
sexually abused children can have psychological problems, which the court correctly ruled was
beyond the scope of Cave’s knowledge because she was not an expert witness. Defendant claims
the court interrupted defendant’s questioning of Dakota Vaughn, T.S.’s boyfriend, which made
the jury to think less of defense counsel and encouraged the prosecutor to object to the line of
questioning. However, the court merely ruled that the question asked by defendant was
impermissible, and told defense counsel he could create a record outside the presence of the jury.
The court’s comments were neutral. Indeed, a discussion was then held and the information was
deemed admissible. The exchange regarding the evidence in front of the jury was brief and non-
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confrontational. Defendant claims that the judge chastised him multiple times, including an
instance when she told him to learn the rules of evidence before he objected again. During the
five day trial, these instances were infrequent and brief. Again, comments that are critical of or
hostile to counsel and the parties are generally not sufficient to pierce the veil of impartiality.
Jackson, 292 Mich App at 598.
Defendant complains that the court improperly questioned Richard about how the case
was initiated in Michigan, establishing that the judge knew Sergeant Burnadette Dunbeck,
bolstering the credibility of Richard and the prosecutor. We disagree. During Richard’s
testimony, defense counsel suggested that Richard used his connections as a police officer to
arrange a meeting with sex crimes unit. The prosecutor did not question Richard regarding how
he arranged the meeting. The court then questioned him on that issue, and it was revealed he had
spoken to Dunbeck. The record as a whole shows that the court’s question was to clarify and
elicit information, and the court’s brief statement that she knew Dunbeck was not to suggest she
had a special relationship, but to continue to clarify the situation for the jury.
Defendant complains he was improperly limited to 45 minutes for closing argument.
This does not establish judicial bias, as the prosecutor was also time limited, and defendant
points to nothing additional that he would have argued had he been given more time. Defendant
again complains that he was limited in his questioning of Marge, but, as discussed supra, the trial
court did not abuse its discretion in prohibiting defendant’s questioning, and the trial court’s
holding did not exhibit bias. The questions posed to Jennifer by the court did not exhibit bias.
The trial court’s questioning regarding T.S.’s broken leg was brief, and clarified that no charges
were brought against Jennifer, which was beneficial to defendant. Contrary to defendant’s
claims, the record did not show that the judge’s questions indicated that she believed the
complainants. The judge’s questioning of defendant whether he knew how to wipe a computer
was within the court’s power to elicit information. Finally, the judge’s reference to the
“infamous bathroom incident,” did not exhibit bias. In context, considering the judge’s tone and
demeanor, it seemed she was commenting on the amount of time and attention that had been put
on this minor incident. Indeed, “infamous” does not have an inherently negative connotation.
Defendant was not denied a fair trial based on judicial bias. To the extent a specific
instance raised by defendant was not addressed, we have reviewed it, and determined that it
lacked merit.
We affirm defendant’s convictions, but remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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