People of Michigan v. Christopher Dewayne Whitlock ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 9, 2019
Plaintiff-Appellee,
v No. 341560
Oakland Circuit Court
CHRISTOPHER DEWAYNE WHITLOCK, also LC No. 2017-263204-FH
known as CHRISTOPHER DWAYNE
WHITLOCK,
Defendant-Appellant.
Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions of three counts of second-degree criminal
sexual conduct (CSC-II) MCL 750.520c(2)(b). Defendant was sentenced, as a fourth-offense
habitual offender, MCL 769.12, to concurrent sentences of 15 to 50 years for each CSC-II
conviction. We affirm.
I. RELEVANT FACTUAL BACKGROUND
The complainant, CC, who is the daughter of defendant’s girlfriend, was just short of 11
years old and in sixth grade at the time of defendant’s trial. She testified at the trial that
defendant was her mother’s boyfriend and had moved into the family home. CC testified that
defendant began calling her his secret girlfriend, and then began touching her vagina while
tickling her, and asking her to tickle him back around his penis.
On one occasion, when CC’s mother was gone and CC’s brother was sleeping, defendant
tickled CC legs under her clothes then sent her to bed in her bedroom and followed her. While
CC was lying in bed, defendant asked if she ever wondered what his penis looked like and then
took his belt off and made her look at it. Defendant asked if she wanted to touch it, and she did.
CC testified that it felt “really weird and sort of hairy.” Defendant dared her to kiss it and, when
she said no, he kissed her vagina and started rubbing it. Defendant then asked if CC wanted him
to kiss her as he kisses her mommy. When CC said yes, defendant kissed her with his tongue in
her mouth. Defendant also asked her if she wanted to take a shower with him. While defendant
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was in CC’s bed and about to tuck her in, defendant said, “Oh, don’t tell your mom about this
because then I’ll go to jail.”
On another occasion, when CC was cleaning up her room, defendant came in and told her
to lift up her shirt. When she did, defendant pulled down her pants and underwear. As
defendant was looking at CC’s private parts, he told her they were pretty. CC recalled that
defendant pulled down her pants on four or five different occasions. Another time, defendant
came into CC’s bedroom while CC was naked after having taken a shower and proceeded to
watch CC get dressed. Defendant then asked CC if she wanted to watch him get dressed, and she
said no.
CC testified that the last time something happened with defendant, she had been cleaning
her room. Defendant came in and offered to help. When CC stood up on her bed, defendant
rubbed up against her chest with his belt and his penis inside his pants. Defendant pulled down
her pants and underwear and touched her vagina with his hand. He then touched her chest on top
of her clothes. Defendant told CC that there was nothing to feel “weird” about, that she was
beautiful, and that he loved her and her mom. Then he went to help her mom cook dinner.
CC then told her brother what had been going on, and he told her to tell their mom.
When CC asked her mom if they could talk, they went into her mom’s bedroom and CC told her
mom some of the things that had happened. Defendant came in and asked if they needed
anything, and they said no. Then CC and her mom took defendant to work. After that, they
went to the police station, where her mom talked to a police officer. The next day, someone
named Jennifer1 came to the house and CC told Jennifer what had happened. She also went to
Care House and talked to Brittany.2
Defendant was ultimately convicted by a jury of three counts of CSC-II, and was
sentenced as a fourth-offense habitual offender to 15 to 50 years’ imprisonment. This appeal
followed.
II. OTHER-ACTS EVIDENCE
First, we address defendant’s argument in his brief on appeal that the trial court abused its
discretion by admitting other-acts evidence under MCL 768.27a. Specifically, defendant takes
issue with evidence of acts that CC had alleged against him beyond those that were charged. We
disagree.
“We review the trial court’s ultimate decision regarding admissibility of evidence for an
abuse of discretion.” People v Duenaz, 306 Mich. App. 85, 90; 854 NW2d 531 (2014). An abuse
of discretion occurs when the trial court chooses an outcome that falls outside the allowable
range of principled outcomes. Id.
1
Jennifer Yemec, Children’s Protective Services Investigator for the Department of Health and
Human Services.
2
Brittany Bartkowiak, Child Forensic Interviewer for Care House.
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MCL 768.27a3, which supersedes MRE 404(b), provides that other-acts evidence is
admissible:
[I]n a criminal case in which the defendant is accused of committing a listed
offense4 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. If the prosecuting attorney intends to offer
evidence under this section, the prosecuting attorney shall disclose the evidence to
the defendant at least 15 days before the scheduled date of trial or at a later time
as allowed by the court for good cause shown, including the statements of
witnesses or a summary of the substance of any testimony that is expected to be
offered. [MCL 768.27a(1).]
In sum, MCL 768.27a allows the admission of other-acts evidence regarding other sexual abuse
committed by defendant against minors to prove that defendant has the propensity to commit the
charged offense. People v Watkins, 491 Mich. 450, 470; 818 NW2d 296 (2012). Therefore,
CC’s testimony regarding defendant asking CC if she would like to see his penis, defendant
exposing his penis to CC, defendant having CC touch his penis, defendant kissing CC on the lips
like he would kiss her mother, defendant touching CC’s chest and breasts, defendant removing
CC’s clothes and looking at her vagina, and defendant touching CC’s vagina with his mouth or
hands would be admissible under MCL 768.27a for any matter to which it was relevant, even as
propensity evidence.
MCL 768.27a is, however, subject to balancing under MRE 403, meaning that evidence
admissible under MCL 768.27a may be excluded if “ ‘its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . .
.’ ” Watkins, 491 Mich. at 481, quoting MRE 403. When evaluating whether evidence that would
normally be admissible under MCL 768.27a should be excluded as unfairly prejudicial, trial
courts must consider whether the evidence will “inject[ ] considerations extraneous to the merits
of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock,” in addition to the danger that
“marginally probative evidence will be given undue or preemptive weight by the jury.” People v
Cameron, 291 Mich. App. 599, 611; 806 NW2d 371 (2011) (quotation marks and citation
omitted). Moreover, in Watkins, our Supreme Court enumerated several considerations for the
trial court to weigh when balancing the probative value versus the prejudicial effect of the
evidence in question. Specifically, our Supreme Court listed:
3
MCL 768.27a also includes a notice requirement. The prosecution did provide defendant with
the proper notice required under the statute, and defendant does not argue otherwise on appeal.
4
A “listed offense” is defined under the statute by reference to the Sex Offenders Registration
Act, MCL 28.721 et seq. MCL 768.27(2)(a). Defendant does not contest that he was charged
with a listed offense as defined by the statute, nor does not contest that the other-acts evidence
would qualify as another listed offense.
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(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 acts, and (6) the lack of need for
evidence beyond the complainant's and the defendant's testimony. [Watkins, 491
Mich. at 487-488.]
Defendant argues that the other-acts evidence admitted had little probative value and was
highly prejudicial because the other acts were never charged and the only evidence of the other
acts was CC’s testimony. He also argues that the trial court erred by not considering certain
factors provided for the consideration of trial courts by our Supreme Court in Watkins.
However, defendant’s argument rests on the fact that the trial court stated some of the alleged
other-acts were dissimilar from the charged offenses. Defendant does not discuss the other five
Watkins factors, and Watkins does not require a trial court to document its consideration of every
factor, as defendant appears to argue. The Watkins Court simply listed the factors and referred to
them as a non-exhaustive “list of considerations.” Watkins, 491 Mich. at 456.
We conclude that the probative value of CC’s testimony was not substantially
outweighed by the danger of unfair prejudice. First, the evidence was relevant because it showed
defendant’s propensity to sexually abuse CC, and that he was “grooming” her for the eventual
sexual assaults that comprised the CSC-II charges. See Watkins, 491 Mich. at 487 where our
Supreme Court stated that “courts must weigh the propensity inference in favor of the evidence’s
probative value rather than its prejudicial effect.” Second, the relevant Watkins factors weigh in
favor of admittance. The other-acts were not remote in time, and were similar in that they
involved the same victim and a series of escalating sexual acts towards or involving CC. Finally,
the trial court properly instructed the jury on the proper consideration of other-acts evidence.
Accordingly, the other-acts evidence was properly admitted.
III. PROSECUTORIAL ERROR
Defendant next advances several arguments in his brief on appeal and in his Standard 4
Brief on Appeal regarding several instances of prosecutorial error5. Although each will be
addressed in turn, we do not find any to require reversal.
Initially, we note that defendant failed to preserve this issue by objecting to any alleged
prosecutorial error, and failing to request any curative instructions. People v Bennett, 290 Mich.
5
We note that defendant uses the term “prosecutorial misconduct” to describe the prosecutor’s
alleged errors. However, this Court has previously explained that, “although the term
‘prosecutorial misconduct’ has become a term of art often used to describe any error committed
by the prosecution, claims of inadvertent error by the prosecution are ‘better and more fairly
presented as claims of “prosecutorial error,” with only the most extreme cases rising to the level
of prosecutorial misconduct.’ ” People v Jackson (On Reconsideration), 313 Mich. App. 409, 425
n 4; 884 NW2d 297 (2015), quoting People v Cooper, 309 Mich. App. 74, 87-88; 867 NW2d 452
(2015). Accordingly, we use the term “prosecutorial error” herein.
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App 465, 475; 802 NW2d 627 (2010). Unpreserved claims of prosecutorial error are reviewed
for plain error. People v Ackerman, 257 Mich. App. 434, 448; 669 NW2d 818 (2003). To show
plain error, “the defendant must demonstrate that: (1) an error occurred, (2) the error was plain,
i.e., clear or obvious, and (3) the plain error affected the defendant's substantial rights.” People v
McLaughlin, 258 Mich. App. 635, 645; 672 NW2d 860 (2003). A defendant's substantial rights
are affected if the error affected the outcome of the proceedings. Id. Reversal is not warranted
where a curative instruction could have alleviated any prejudicial effect occasioned by the
prosecutor's conduct. People v Callon, 256 Mich. App. 312, 329; 662 NW2d 501 (2003).
“[T]he 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).
A defendant's opportunity for a fair trial can be jeopardized when the prosecutor
interjects issues broader than the defendant's guilt or innocence. People v Rice
(On Remand), 235 Mich. App. 429, 438; 597 NW2d 843 (1999). Issues of
prosecutorial misconduct are decided case by case, and this Court must examine
the entire record and evaluate a prosecutor's remarks in context. People v
Thomas, 260 Mich. App. 450, 454; 678 NW2d 631 (2004). “The propriety of a
prosecutor's remarks depends on all the facts of the case.” People v
Rodriguez, 251 Mich. App. 10, 30; 650 NW2d 96 (2002). A prosecutor's
comments are to be evaluated in light of defense arguments and the relationship
the comments bear to the evidence admitted at trial. People v Brown, 267 Mich
App 141, 152; 703 NW2d 230 (2005). Otherwise improper prosecutorial conduct
or remarks might not require reversal if they address issues raised by defense
counsel. Jones, supra at 353. [Dobek, 274 Mich. App. at 63–64.]
A. VOUCHING FOR THE COMPLAINANT’S CREDIBILITY
First, defendant argues in his brief on appeal that the prosecutor improperly vouched for
the complainant’s credibility. We disagree.
“Although a prosecutor may not vouch for the credibility of a witness, a prosecutor may
argue and make reasonable inferences from the evidence to support a witness’s truthfulness.”
People v Cain, 299 Mich. App. 27, 36; 829 NW2d 37 (2012). A prosecutor may also argue from
the facts that a particular witness should be believed, as long as the prosecutor does not “vouch
for the credibility of witnesses by claiming some special knowledge with respect to their
truthfulness.” People v McGhee, 268 Mich. App. 600, 630; 709 NW2d 595 (2005) (internal
citations omitted). However, in arguing about a witness’s credibility, a prosecutor may not
“place[ ] the prestige of her position or her own integrity behind the testimony.” Id. at 633.
Here, after explaining to the jury that it would be their job to weigh and judge witness
credibility, the prosecutor stated that, in this credibility contest, CC had nothing to gain by lying.
He added that CC had nothing to gain from a guilty verdict except a sense of vindication and the
ability to move on with her life. The prosecutor argued that defendant, on the other hand, had
everything to gain from lying, and, in direct contrast to CC, did not answer questions in a
straightforward manner, but argued with the attorney and attempted to evade the questions.
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The prosecutor’s characterization of CC’s testimony as compared to defendant’s – that
CC had nothing to lose by testifying truthfully but defendant had everything to gain from lying –
was a small portion of the prosecutor’s closing argument. Moreover, the prosecutor never
implied that this opinion was based on any special knowledge of the truthfulness of CC’s
testimony, but rather was based on the facts in evidence, and the jury should view CC’s
testimony as credible. Accordingly, we conclude that these statements do not constitute
prosecutorial error and did not deprive defendant of a fair and impartial trial.
B. ELICITING SYMPATHY
Second, defendant argues in his brief on appeal that the prosecutor improperly played on
the jury’s emotions by eliciting sympathy for CC. We disagree.
Although a prosecutor is generally afforded great latitude, the prosecutor may not appeal
to the jury to sympathize with the victim. People v Unger, 278 Mich. App. 210, 236; 749 NW2d
272 (2008). Here, defendant takes issue with the prosecutor referring to CC as a “sweet innocent
girl” in his opening statement. However, based on our review of the record, nothing indicates
that referring to CC once in this way during opening statements shows the prosecutor’s intent to
evoke sympathy from the jury. Moreover, a contemporaneous objection paired with a curative
instruction would have alleviated any prejudice. Callon, 256 Mich. App. at 329. We therefore
see no error in the prosecutor’s statement.
Defendant attempts to analogize his case to People v Dalessandro, 165 Mich. App. 569,
581; 419 NW2d 609 (1988). However, not only is Dalessandro no longer binding on this Court,
MCR 7.215(J)(1)6, it is factually distinguishable. In Dalessandro, the victim was a 10-month-
old baby boy who had been severely abused by his mother and her boyfriend, the defendant. Id.
at 571. Throughout his closing argument, the prosecutor attempted to elicit the jury’s sympathy
for the child by repeatedly calling the victim a “little innocent baby,” a “little babe, totally
innocent little baby . . . crying out in pain,” and “this pitiful little ten month old child.” Id. at
581. This Court explained that by constantly referring to the victim as “the poor innocent baby”
in closing arguments, the prosecutor “injected the element of sympathy for [the victim] into the
case.” Id. Here, the prosecutor referred to CC once during opening statements as a “sweet
innocent girl,” he did not constantly reference her in that way. Accordingly, Dalessandro is
distinguishable, and we conclude that the comment was harmless and lacking prejudicial effect.
C. PRESENTING UNSUPPORTED THEORIES
Third, defendant argues in his brief on appeal that the prosecutor presented two theories
for which there was no basis in fact. We disagree.
6
“A panel of the Court of Appeals must follow the rule of law established by a prior published
decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed
or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in
this rule.” MCR 7.215(J)(1).
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“A prosecutor may not make a factual statement to the jury that is not supported by the
evidence.” Dobek, 274 Mich. App. at 66. Prosecutors are, however, “free to argue the evidence
and all reasonable inferences arising from it as they relate to [the prosecution’s] theory of the
case.” Id. “The prosecution has wide latitude in arguing the facts and reasonable inferences, and
need not confine argument to the blandest possible terms.” Id. As discussed previously, it is
proper for the prosecution to comment upon, and draw inferences from, any witness’s testimony,
and to argue that the witness is not believable. People v Pegenau, 447 Mich. 278, 299; 523
NW2d 325 (1994).
Defendant first takes issue with the prosecution advancing the theory during closing
arguments that defendant was trying to groom CC for future sexual activity by telling her that he
loved her mom, he loved her, she was beautiful, and there was nothing weird about what he was
doing. Specifically, the prosecutor stated during closing arguments:
And, the last thing I want to talk to you about is really at the end of the day you
need to evaluate [CC’s] testimony in light of all the facts and the defendant’s
testimony. And, [CC’s] testimony and if you think about it, it makes common
sense. I mean use your own common sense and experience, that’s what the Judge
is going to ask you to do. Okay, have you—as jurors using your common sense,
experience, ever seen a 10-year-old girl come up with complex allegations about
being sexually abused and then coming up with statements such as I love your
mom, I love you, you’re beautiful, that there’s nothing weird about this. Okay,
that is grooming behavior, that’s sophisticated behavior, that’s behavior designed
to establish this bond with the victim, to put himself in a position where he can
test boundaries with her, he can push those boundaries, he can see the reactions,
and he can have some built in excuses if she does come forward. I mean this was
a complex action by the Defendant.
As the prosecution argues, this portion of the prosecutor’s closing argument was based entirely
on facts in evidence and the inferences arising thereof. The prosecution’s theory of the case was
that defendant groomed CC for sexual abuse by starting with the relatively innocuous behavior
of tickling, then gradually incorporating inappropriate touch into the tickling, then escalating to
behavior that would be unmistakable as criminal sexual conduct to an adult. Because the
prosecutor merely used testimony to explain plaintiff’s theory of the case, this argument was
proper. Id.
Defendant next argues that the prosecutor referenced facts not in evidence during his
rebuttal to defendant’s closing arguments when he referred to an interview defendant gave the
police that was never provided to the jury. The prosecutor argued:
You know, compare that to what the defendant supposedly has to remember to
keep his story straight. Although we didn’t hear the whole statement and you
didn’t hear the whole statement he made to Detective Hemming, you just have the
defendant’s word that it was consistent with what he testified to in court. And, I
think I pointed out a few of those inconsistencies and you can judge for yourself
about those inconsistencies and things he did and said.
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Clearly defendant’s testimony concerning parts of the detective’s report was in evidence, and the
prosecutor did not introduce facts not in evidence. What he did was to ask the jury to infer from
the inconsistencies revealed during defendant’s cross-examination (between what he told the
detective and what he told the jury) that there may have been other such inconsistencies as well.
In short, he was arguing that the evidence gave rise to the inference that defendant was not
believable. Again, this is entirely proper. Pegenau, 447 Mich. at 299.
Additionally, prosecutor’s argument was made in rebuttal to defense counsel’s closing
argument, where defense counsel argued that defendant’s testimony was credible because it was
consistent and added that it was equally important that defendant had told the jury the same thing
that he had told Detective Hemming when he spoke with him in February. “Otherwise improper
prosecutorial conduct or remarks might not require reversal if they address issues raised by
defense counsel.” Dobek, 274 Mich. App. at 64 (citation omitted).
D. CONSCIOUSNESS OF GUILT
Fourth, in his Standard 4 Brief on Appeal, defendant argues that it was improper for the
prosecutor to say or imply that defendant had consciousness of guilt because he stayed in contact
with the lead investigator in the months following his interview. We disagree.
In closing arguments, the prosecutor highlighted that defendant would stay in touch with
the lead detective on the case over the course of two months, even though defendant had not yet
been charged. Defendant claimed it was because he wanted to know if and when a warrant
would be issued so that he could turn himself in, but he also testified that he was checking in
because he had an “awesome” relationship with CC’s mother, and wanted to know why it was
ending “just like that for no reason whatsoever.” By highlighting the inconsistencies in
defendant’s testimony, the prosecutor did infer that defendant had a guilty conscious. However,
these arguments related to matters already in evidence and to the prosecutor’s theory of the case.
See People v Mullins, 322 Mich. App. 151, 173; 911 NW2d 201 (2017) (quotation marks and
citation omitted), where this Court articulated that “prosecutors are given great latitude regarding
their arguments and are free to argue the evidence and all reasonable inferences from the
evidence as they relate to their theory of the case.” According, we conclude that the prosecution
made no outcome-determinative error.
E. IMPROPER ARGUMENT REGARDING GUILT
Fifth, defendant argues in his Standard 4 Brief on Appeal that the prosecutor improperly
told the jury that its verdict should be guilty despite the existence of reasonable doubt and, in so
doing, exceeded the scope of defendant’s closing argument. We disagree.
Defendant refers to the last statement in the prosecutor’s closing argument in rebuttal:
“And, you know, I think [CC] provided you with a statement, I think the other evidence in this
case supports exactly what she was telling you guys it [sic] happened, and your verdict should be
guilty.” We have examined the prosecutor’s rebuttal argument in context, in light of arguments
made by the defense, and in light of the evidence introduced at trial. Brown, 267 Mich. App. at
152. First, the prosecutor responded directly to the defense attorney’s theory of the case, as
expressed in defendant’s closing argument. Next, he addressed defense counsel’s argument that
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the complainant’s testimony should not be believed because it was inconsistent. During this
portion of his rebuttal, the prosecutor also discussed the inconsistencies in defendant’s testimony,
arguing that it was he, not the complainant, who was unworthy of belief. Finally, the prosecutor
discussed the burden of proof because he perceived that the defense attorney was “hanging his
hat” on the jury having “imaginary doubt or possible doubt.” In so doing, the prosecutor
explained what reasonable doubt means, stressing that the jury needed to follow Michigan law as
the judge would explain it to them in the jury instructions. Accordingly, the statement “your
verdict should be guilty,” when viewed in context, expressed that the evidence supported a
finding of guilt under the law and, therefore, the jury should follow the law and find defendant
guilty. In this context, the statement was proper. See Unger, 278 Mich. App. at 236. According,
we conclude that the prosecution made no outcome-determinative error.
F. MISREPRESENTING FACTS
Finally, defendant argues in his Standard 4 Brief on Appeal that the prosecutor
misrepresented the testimony of forensic interviewer Brittany Bartkowiak during closing
argument. We disagree.
Bartkowiak testified that a forensic interview is designed to be “truth-seeking,
developmentally sensitive, and unbiased.” Bartkowiak explained that pursuant to the Michigan
Forensic Interviewing Protocols, forensic interviewers “generate a set of alternative hypotheses”
to aid the investigation by ruling out those alternatives if possible. In this case, there were four
alternative hypotheses: nothing happened; defendant was the wrong suspect; the touches were
either accidental or playful; and the child had witnessed these touches done to someone else.
Bartkowiak testified that she did rule out all of these alternatives during her interview with CC.
Bartkowiak explained that in the event that the child makes a disclosure of abuse, the interviewer
first asks the child to say everything from the beginning to the end before asking questions and
clarifying what the child said. Then they start with open-ended questions and get more specific
as the interview continues because children are suggestible.
Our review of the record shows that during closing arguments, the prosecutor
summarized, and commented on, Bartkowiak’s testimony, stating that the forensic interviewer is
not there to confirm or prove the allegations; rather, she is a neutral third party following the
state-mandated interview protocol in order to test other hypotheses that might disprove the
allegations. Again, it is proper for the prosecution to comment upon, and draw inferences from,
any witness’s testimony. Mullins, 322 Mich. App. at 173. According, we conclude that the
prosecution made no outcome-determinative error.
G. CUMULATIVE EFFECT OF ERRORS
Defendant argues that the cumulative effect of the prosecutor’s misconduct requires
reversal. We disagree.
“[T]he cumulative effect of a number of minor errors may in some cases amount to error
requiring reversal.” People v Cooper, 236 Mich. App. 643, 659-660; 601 NW2d 409 (1999).
However, where the errors (or arguable errors) were individually of little consequence, reversal
is not warranted. Id. at 660. Here, the only prosecutorial error was the use of some prejudicial
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language that did not rise to the level of denying defendant his due process right to a fair trial.
Therefore, there was no cumulative error requiring reversal in this case.
Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Michael J. Riordan
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