People of Michigan v. Wade Patrick Grost ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 21, 2023
Plaintiff-Appellee,
v No. 362598
Ingham Circuit Court
WADE PATRICK GROST, LC No. 21-000112-FH
Defendant-Appellant.
Before: HOOD, P.J., and JANSEN and FEENEY, JJ.
PER CURIAM.
A jury found defendant guilty of one count of fourth-degree criminal sexual conduct (CSC-
IV), MCL 750.520e(1)(b) (sexual contact accomplished by force or coercion). The trial court
sentenced defendant to serve 240 days in jail, followed by 60 months of probation. Defendant
appeals by right. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In March 2020, defendant invited the victim to his birthday party, which was held at his
friend’s apartment. According to the victim, she told defendant that she did not wish to be
romantically involved. Defendant touched and held onto her against her will while swimming in
the apartment complex pool. Later, in the apartment, the victim had multiple drinks and fell asleep
with a friend in the living room. The victim testified that she woke up to find defendant touching
her and kissing her stomach. Defendant was holding the victim’s shirt above her left breast and
was touching her body with his hands and his mouth. Defendant put the victim’s hand on his bare
penis, and defendant also touched the victim’s thigh, but the victim pushed his hand away and told
him no.
Defendant testified that he had touched the victim’s breasts the night before when they
were “cuddling, spooning, [and] making out.” Defendant agreed that his hand touched the victim’s
stomach and breast area and her breast above her bra, and that he kissed the victim’s neck.
Defendant believed that the contact was consensual because the victim did not push him away and
she said she was okay with cuddling. The next morning, defendant woke up to find the victim
lying next to him. Defendant realized that the victim’s shirt had “ridden up to [her] upper stomach
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area” so he kissed her stomach and said, “[G]ood morning beautiful.” Defendant denied putting
the victim’s hand on his penis, and he stated that he tried to wake the victim up by touching her
shoulder and kissing her cheeks, at which point the victim got up and asked defendant to stop, and
defendant said okay.
The prosecutor presented evidence of defendant’s prior convictions of using a computer to
communicate with another to commit a crime and accosting a minor for immoral purposes, which
stemmed from his interaction with a citizen sting operation conducted by a private organization
devoted to exposing child predators. Defendant had responded to an ad on a dating website and
engaged in text messaging of a sexual nature with a person posing as a 15-year-old girl. Defendant
agreed to meet with the girl to engage in sexual activity. When defendant arrived at the meeting
location, he was confronted by an individual with the sting operation, who provided law
enforcement with the text messages and video footage.
II. OTHER-ACTS EVIDENCE
Defendant argues that the trial court abused its discretion by admitting evidence of
defendant’s previous convictions under MCL 768.27b. Defendant contends that the previous
convictions were highly prejudicial and were not sufficiently similar to the charged offense. We
disagree.
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Smith, 336 Mich App 79, 105; 969 NW2d 548 (2021). An abuse of discretion occurs when the
trial court chooses an outcome falling outside the “principled range of outcomes.” People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). The abuse-of-discretion standard recognizes
that there may not be a single correct outcome. Id. As long as the trial court chooses a principled
outcome, the reviewing court should accord deference to the trial court’s judgment. Id.“[W]hether a rule or statute precludes admission of evidence is a preliminary question of law that
this Court reviews de novo.” People v Propp, 508 Mich 374, 383; 976 NW2d 1 (2021).
Under MRE 404(b)(1), “[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith.” Under the rules
of evidence, such evidence may be admitted only “for other purposes, such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident . . . .” MRE 404(b)(1). The Legislature created exceptions to the
provisions of MRE 404 through the enactment of MCL 768.27a (involving listed offenses against
a minor) and MCL 768.27b. MCL 768.27b(1) provides:
Except as provided in [MCL 768.27b(4)1], in a criminal action in which the
defendant is accused of an offense involving domestic violence or sexual assault,
evidence of the defendant’s commission of other acts of domestic violence or
1
MCL 768.27b(4) limits the admissibility of evidence of other acts that occurred more than 10
years before the charged offense.
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sexual assault is admissible for any purpose for which it is relevant, if it is not
otherwise excluded under Michigan rule of evidence 403.
Evidence of other acts of sexual assault may be admitted “because a full and complete
picture of a defendant’s history tends to shed light on the likelihood that a given crime was
committed.” People v Cameron, 291 Mich App 599, 610; 806 NW2d 371 (2011) (quotation marks,
citation, alteration, and ellipsis omitted). MCL 768.27b allows for admission of such evidence at
trial “as long as the evidence satisfies the ‘more probative than prejudicial’ balancing test of MRE
403.” Id. MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
To make this determination, the trial court must first decide whether introduction of the evidence
would be unfairly prejudicial, then “weigh the probativeness or relevance of the evidence against
the unfair prejudice.” Cameron, 291 Mich App at 611 (quotation marks and citation omitted).
“Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence
will be given undue or preemptive weight by the jury.” People v Musser, 494 Mich 337, 357; 835
NW2d 319 (2013) (quotation marks, citation, and alteration omitted).
In determining whether to exclude evidence under MRE 403 that is otherwise admissible
under MCL 768.27a, the trial court may consider factors including
(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. [People v Watkins, 491
Mich 450, 487-488, 818 NW2d 296 (2012)2.]
Whether the conduct resulted in a conviction or charges may also be relevant. Id. at 489. Each
piece of evidence must be considered individually and in the context of the entire trial. Id.
In this case, the trial court admitted the evidence of defendant’s previous convictions under
MRE 403 because the previous convictions were similar in nature to the charged sexual assault
that occurred in 2020. The previous convictions involved predatory conduct toward a female who
defendant believed was 15 years old. In this case, during an interview with a Michigan State Police
2
We note that in Propp, 508 Mich at 385, our Supreme Court noted that Watkins involved
application of MCL 768.27a and not MCL 768.27b, and stated that this Court in People v Propp,
330 Mich App 151; 946 NW2d 786 (2019), rev’d in part, vacated in part 508 Mich 374 (2021),
had unnecessarily referred to Watkins when addressing the application of MCL 768.27b(3), which
had no corollary in MCL 768.27a and was not at issue in Watkins. However, our Supreme Court’s
reasoning in Propp regarding MCL 768.27b(3) is not pertinent to this case.
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detective, defendant told the detective that the victim, although an adult, had “a 15-year-old
cognition,” and “that it more than likely dropped below that when she had been drinking.” He met
the victim at the Special Olympics. The similarity between the previous convictions and the
charged sexual assault weighs in favor of admissibility.
Even though the conduct leading to the previous convictions occurred approximately two
years before the sexual assault in the present case, this Court has noted that “the temporal divide”
between the prior act and the charged offense, “standing alone, does not preclude the evidence’s
admission,” depending on how similar the acts were. People v Solloway, 316 Mich App 174, 194-
195; 891 NW2d 255 (2016) (determining that a temporal divide of 12 years did not preclude the
admission of other-acts evidence given the similarity of the other act and the charged conduct,
which both “involved defendant entering the victim’s bedroom in the middle of the night, climbing
on top of him, and engaging in some sort of inappropriate touching.”). When considering the
similarity between the previous convictions and the sexual assault in the present case, the two-year
temporal divide between the assaults does not weigh in favor of exclusion.
Finally, the trial court mitigated any prejudice toward defendant when it instructed the jury
to not consider the evidence of defendant’s previous convictions unless “you find that the
Defendant actually committed such act” and to “not convict the Defendant here solely because you
think he is guilty of bad conduct.” See People v Mardlin, 487 Mich 609, 629; 790 NW2d 607(2010) (“A limiting instruction generally suffice[s] to enable the jury to compartmentalize
evidence and consider it only for its proper purpose . . . .”) (quotation marks and citation omitted;
alterations in original); People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011) (stating
that a jury is presumed to have followed the court’s instructions). Accordingly, we find no abuse
of discretion in the admission of defendant’s previous convictions under MCL 768.27b.
III. VOUCHING FOR WITNESS CREDIBILITY
Next, defendant argues that the prosecutor deprived him of a fair trial by vouching for the
credibility of the victim and the victim’s friend and by suggesting that defendant is a liar during
her closing argument. In the alternative, defendant argues that his trial counsel was ineffective for
failing to object to the prosecutor’s closing argument. We disagree.
“Generally, a claim of prosecutorial misconduct is a constitutional issue reviewed de
novo.” People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). However, because
defendant failed to preserve his argument, “this Court’s review is limited to plain error affecting
defendant’s substantial rights.” Solloway, 316 Mich App at 197. “To obtain relief, it must be
found that (1) an error occurred, (2) the error was plain or obvious, and (3) the plain error affected
the defendant’s substantial rights. The defendant bears the burden of establishing that his
substantial rights were affected.” Id. (citation omitted).
“Generally, prosecutors are accorded great latitude regarding their arguments and
conduct.” People v Cooper, 309 Mich App 74, 90; 867 NW2d 452 (2015) (quotation marks,
citation, and alteration omitted). “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
Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007). “A prosecutor may not make a factual
statement to the jury that is not supported by the evidence, but he or she is free to argue the evidence
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and all reasonable inferences arising from it as they relate to his or her theory of the case.” Id.
at 66 (citations omitted). A prosecutor is “permitted to argue from the facts that defendant or
defendant’s witnesses were unworthy of belief.” Id. at 67. Similarly, “[a] prosecutor may argue
from the facts that a witness is credible or that a witness is not worthy of belief.” People v Unger,
278 Mich App 210, 240; 749 NW2d 272 (2008). “[P]rosecutorial arguments regarding credibility
are not improper when based on the evidence, even if couched in terms of belief or disbelief.” Id.A review of the prosecutor’s closing argument in context does not support defendant’s
assertion that the prosecutor vouched for the credibility of the victim or the victim’s friend. The
prosecutor did not reference any individualized knowledge that she had about the victim or the
victim’s friend; rather, she connected her statements back to the evidence presented during trial.
Specifically, the prosecutor explained how the victim did not talk with defendant for two years,
and the prosecutor asked the jury what the victim had to gain “by coming in here, telling you all
what’s happened to her, being emotional and vulnerable on the stand.” The prosecutor mentioned
that the victim’s friend did not know defendant, and the prosecutor noted that the victim and the
victim’s friend had nothing to gain by telling the jury what happened. The prosecutor outlined the
discrepancies in defendant’s testimony and noted that defendant minimized his involvement with
the victim. Finally, the prosecutor noted that the victim’s sexual assault nurse examination
revealed the presence of male DNA in the places where defendant said that he kissed the victim.
The prosecutor’s statements fell within her great latitude to argue her theory of the case. See
Cooper, 304 Mich App at 90. Trial counsel’s failure to object to the prosecutor’s statements did
not amount to ineffective assistance of counsel, because objecting to the statements would have
been futile. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Affirmed.
/s/ Noah P. Hood
/s/ Kathleen Jansen
/s/ Kathleen A. Feeney
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