People of Michigan v. Michael Allen Frew Sr ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 8, 2016
Plaintiff-Appellee,
v No. 324961
Calhoun Circuit Court
MICHAEL ALLEN FREW, SR., LC No. 2014-001929-FC
Defendant-Appellant.
Before: SERVITTO, P.J., and GADOLA and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a jury trial of two counts of first-
degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b)(ii) (defendant related to victim).
The trial court sentenced defendant as a second habitual offender, MCL 769.10, to concurrent
prison terms of 14 to 40 years. We affirm defendant’s convictions, but remand for resentencing.
I. BACKGROUND FACTS
Defendant was accused of sexually abusing his daughter beginning when she was eight or
nine years old and continuing until she reached the age of 16. The victim did not disclose the
abuse until 2014, after she moved into the home of her foster mother. Defendant denied any
misconduct. At trial, he argued that the victim fabricated the abuse because defendant refused to
release his parental rights over her. He asserted that the victim wanted to live independently
outside of his home. The victim testified that she sent defendant a text message asking him to
release his parental rights, then learned about an independent living option, and finally disclosed
the abuse to her foster mother.
II. ANALYSIS
A. PRIOR CONSISTENT STATEMENTS
Defendant first argues that the trial court improperly admitted hearsay statements during
the foster mother’s testimony, which he now argues should not have been admitted because the
statements did not fall within the hearsay exclusion of MRE 801(d)(1)(B). Defendant cites
several pages of the foster mother’s trial testimony that he contends contained inadmissible
hearsay. Within the cited transcript excerpt, defendant raised a hearsay objection to the foster
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mother’s testimony that the victim “told [her] that [defendant] would hit her with shoes,” which
the trial court sustained. The objection was sustained as to some, but clearly not all, of the foster
mother’s testimony cited by defendant. At trial, defendant did not raise any arguments pursuant
to MRE 801(d)(1)(B). Accordingly, this issue is unpreserved. See People v Considine, 196
Mich. App. 160, 162; 492 NW2d 465 (1992) (“To preserve an evidentiary issue for appellate
review, a party must object timely at trial and specify the same ground for objection as is
asserted on appeal.”). We review unpreserved issues for plain error. People v Carines, 460
Mich. 750, 763-764; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id. at 763.
“Hearsay is defined as an out-of-court statement offered in evidence to prove the truth of
the matter asserted.” People v Tanner, 222 Mich. App. 626, 629; 564 NW2d 197 (1997), citing
MRE 801(c). Generally, hearsay is not admissible. MRE 802. However, pursuant to
MRE 801(d)(1)(B), testimony concerning a witness’s prior consistent statement “offered to rebut
an express or implied charge against the declarant of recent fabrication or improper influence or
motive” does not constitute hearsay even though it would otherwise fall within the definition.
See People v Rodriquez, 216 Mich. App. 329, 331-332; 549 NW2d 359 (1996). Nonetheless, a
“statement made after the motive to fabricate arose does not fall within the parameters of the
hearsay exclusion for prior consistent statements.” Id. at 332 (emphasis added).
As a preliminary matter, it is unclear what specific testimony defendant is challenging.
In the transcript pages cited by defendant, the foster mother mentioned her own history of being
sexually molested, discussed the time and location the victim disclosed defendant’s abuse to her,
described the victim’s demeanor during the disclosure, and provided a general summary of the
abuse the victim disclosed. The trial court sustained defendant’s objection to the foster mother’s
particular testimony concerning what the victim “told” her about the specifics of defendant’s
physical abuse. Defendant cannot abdicate to this Court the responsibility of making a rational
argument, which would necessarily include identifying the particular testimony that the trial
court allegedly admitted in error. See People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d
480 (1998) (“An appellant may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.”).
In any event, even if the victim’s alleged motive to fabricate the abuse, i.e., causing
defendant to release his parental rights, arose before the victim disclosed the abuse to her foster
mother, which would mean that the victim’s assertions of abuse were not admissible as prior
consistent statements under MRE 801(d)(1)(B),1 any error in admitting the evidence was
harmless. An evidentiary error does not warrant reversal unless it is “more probable than not
that the error was outcome determinative.” People v Lukity, 460 Mich. 484, 496; 596 NW2d 607
(1999). The victim testified extensively about defendant’s abuse. The foster mother’s testimony
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It bears repeating that this testimony was not specifically admitted under MRE 801(d)(1)(B)
because defendant never raised or mentioned this subrule in the trial court.
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was mere cumulative evidence because she simply reiterated the victim’s testimony that she had
been abused. See Rodriquez, 216 Mich. App. at 332 (holding that the erroneous admission of
prior consistent statements was harmless error when the testimony “only reiterated the
complainant’s testimony that she had been abused”). Moreover, the victim’s testimony alone
was sufficient to sustain defendant’s convictions. See People v Szalma, 487 Mich. 708, 724 n 36;
790 NW2d 662 (2010); MCL 750.520h (“The testimony of a victim need not be corroborated in
prosecutions under [MCL 750.520b to 520g].”). In light of the victim’s testimony, defendant has
not shown the requisite prejudice.2
B. HABITUAL OFFENDER SENTENCING ENHANCEMENT
Defendant next argues that the trial court erred by sentencing him as a second habitual
offender because the conviction used for the enhancement did not precede the sentencing
offense. Defendant failed to preserve this issue in the trial court, so our review is for plain error
affecting substantial rights. People v Loper, 299 Mich. App. 451, 457; 830 NW2d 836 (2013).3
MCL 769.10(1) provides that “[i]f a person has been convicted of a felony . . . and that
person commits a subsequent felony within this state, the person shall be punished upon
conviction of the subsequent felony and sentencing.” The parties agree that the trial court erred
by sentencing defendant as a second habitual offender. Defendant was convicted of two counts
of CSC I in relation to conduct that occurred during the summer of 2013. Defendant was not
arrested for his enhancement offense of attempted resisting and obstructing a police officer
pursuant to MCL 750.81d(1) until December 21, 2013, and he was not convicted of the offense
until January 2, 2014. A defendant’s prior conviction must precede the commission of the
sentencing offense in order to enhance a sentence under the habitual offender statutes. People v
Sanders, 91 Mich. App. 737, 744; 283 NW2d 841 (1979). Accordingly, plain error occurred.
Further, the plain error affected defendant’s substantial rights because the second habitual
offender enhancement increased his minimum sentencing guidelines range from 81 to 135
2
Defendant suggests that admission of the evidence also violated his constitutional due process
rights, but he gives the issue only cursory treatment with minimal citation to authority.
Therefore, we consider the issue abandoned on appeal. See Kelly, 231 Mich. App. at 640-641.
3
Plaintiff argues that defendant waived this issue at sentencing when, after a discussion
concerning the points assigned under a prior record variable, defense counsel acknowledged that
defendant would be sentenced “as a habitual second offender.” Considering the record as a
whole, we are not convinced that defense counsel’s statement constituted consent to defendant’s
habitual offender status. See People v Kowalski, 489 Mich. 488, 503; 803 NW2d 200 (2011)
(holding that defense counsel’s expression of satisfaction with a trial court’s decision constituted
waiver). Nor did defendant repeatedly admit his status as a second habitual offender. See
People v Siterlet, 496 Mich. 919; 840 NW2d 372 (2013) (holding that a defendant waived any
error regarding his habitual offender enhancement by “repeatedly admitting his status as a fourth
habitual offender”). Therefore, defendant did not waive this claim of error.
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months to 81 to 168 months,4 and the trial court sentenced defendant at the very top of the
guidelines range (168 months). The trial court did not state any intent to depart from the
guidelines. Moreover, the trial court’s plain error resulted in defendant receiving at least an
additional 33 months on his sentence, which “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Carines, 460 Mich. at 763-764 (quotation marks and citation
omitted; alteration in original). Therefore, defendant is entitled to resentencing.
We affirm defendant’s convictions, but remand for resentencing consistent with this
opinion. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
/s/ Colleen A. O’Brien
4
MCL 777.62; MCL 777.21(3)(a).
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