People of Michigan v. Gary Lloyd Geister ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 21, 2023
Plaintiff-Appellee,
v No. 362131
Kalamazoo Circuit Court
GARY LLOYD GEISTER, LC No. 2020-001778-FC
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
Defendant, Gary Lloyd Geister, was convicted after a jury trial of two counts of first-
degree criminal sexual conduct, MCL 750.520b(2)(b), and thereafter was convicted as a third-
offense habitual offender. He was sentenced to 25 to 40 years in prison. Defendant appeals as of
right. We affirm.
I. FACTS
Defendant was convicted of sexually assaulting his step-granddaughter, KS. In December
2019, when KS was ten years old, she told her mother and stepfather, Danielle and Andrew Geister,
that defendant had sexually abused her on several occasions while he was babysitting her, her
younger sister, and her two younger brothers. Defendant is the father of Andrew Geister.
According to Danielle, KS and her other daughter are her children from a previous relationship,
while Andrew is the father of her two sons.
Danielle testified that defendant’s relationship with all four of the children was that of a
grandparent, and that defendant frequently offered to babysit the children. Danielle testified that
when defendant babysat the younger boys (his biological grandchildren) at his home, he would
regularly ask that KS also stay at his home to help him care for the boys. The babysitting usually
occurred at defendant’s home, where defendant installed a swing set and a trampoline1 for the
1
Defendant testified that the trampoline was purchased by Danielle and Andrew.
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children. Defendant told Danielle and Andrew that when the children stayed overnight the girls
shared a bedroom, the boys shared a separate bedroom, and defendant slept in a third bedroom.
Danielle noticed, however, that as time went by KS spent more time in defendant’s bedroom and
that KS’s belongings were in defendant’s bedroom; defendant and KS explained to her that KS
liked to use defendant’s computer and liked to keep her belongings separate from her sister’s
belongings.
Danielle testified that she was concerned because defendant gave the girls more privileges
than he gave the boys. Defendant also gave the children very generous gifts, and defendant’s gifts
to KS were more elaborate than the gifts to the other children. Danielle also was concerned
because defendant would kiss the children on the lips, which Danielle thought was unsanitary for
the children; Andrew spoke to defendant about the kissing. Danielle also testified that when she
would pick the children up from defendant’s house, she noticed that the three younger children
often were outside playing, but defendant and KS were always in the house.
In December 2019, defendant agreed to babysit the four children at the family’s home while
Danielle and Andrew went Christmas shopping. When Danielle and Andrew returned home, KS
was waiting up to see them. Danielle testified that KS seemed reluctant to go to bed, then began
crying and told Andrew about defendant’s past abuse. Danielle testified that KS at first was
inconsolable, but once she was calmer KS also told Danielle about the abuse. The conversation
lasted one to two hours; eventually, KS was able to go to sleep. After KS was asleep, at about
12:00 p.m. or 1:00 a.m., Danielle and Andrew called the police and reported what KS had told
them.
Andrew testified that on the night in question, after KS informed him of the abuse he called
defendant, but defendant did not answer the phone. The next morning, Andrew drove to
defendant’s house and confronted defendant with the accusations. Andrew testified that he was
not specific about the abuse but suggested to defendant that the allegations were regarding sexual
abuse. Andrew testified that defendant neither admitted nor denied the accusations, but did not
ask for details about the accusations. Defendant was very apologetic and said he was sorry again
and again.
KS, who was 12 years old at the time of trial, testified that defendant began abusing her
when she was in fourth grade, or perhaps as early as third grade. She testified that the abuse
occurred at defendant’s house when she and her siblings would spend the night. KS testified that
when they began spending the night at defendant’s house she shared a bedroom with her sister, but
later transitioned to defendant’s bedroom at defendant’s suggestion; during this time defendant
would sleep on the couch in the living room. KS testified that at night, shortly after she would go
to bed, defendant would enter the bedroom and lie on the bed. Defendant would remove all of her
clothing or her night gown, and would touch her lips, face, and vagina with his hands, lips, and
tongue, and would also touch her buttocks with his hands. She testified that she and defendant
were alone in the bedroom at these times and that her siblings were asleep in the other bedrooms
as far as she knew. She further testified that the abuse occurred “practically like every night” that
she slept at defendant’s house. KS also testified that defendant sometimes would tell her she was
beautiful and tell her that he wished he could marry her. KS further testified that defendant often
yelled at her siblings but not at her, that her siblings had an earlier bedtime than she did, that she
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was allowed to use the electronic tablet more than her siblings did, and that when defendant gave
them money to buy snacks, defendant always gave her more money than he gave her siblings.
KS corroborated her parents’ testimony that on a night in December 2019, she told her
parents that defendant had been sexually abusing her. She testified that she had wanted to tell
someone earlier, but had been afraid to do so. In response to questions on cross-examination, KS
testified that she did not remember quarreling with defendant or with her mother over her use of
the iPad, nor did she remember being in trouble at school during the fifth grade.
MS, the sister of KS, was ten-years-old at the time of trial. MS testified that when she and
her siblings stayed the night at defendant’s house, she and KS sometimes slept in the same room,
but sometimes KS slept in defendant’s room; MS also testified that sometimes defendant slept on
the couch and sometimes he slept in his bedroom, but MS was not sure if defendant and KS slept
in defendant’s bedroom at the same time. MS testified that when defendant gave the children
money to buy snacks, he gave KS more money than he gave the other siblings.
Detective Jeff Jerzyk with the Kalamazoo Township Police Department testified that he
interviewed defendant on January 20, 2020. Defendant denied the allegations of sexual abuse and
told Jerzyk that he was “flabbergasted” that KS would invent the allegations. Detective Jerzyk
testified that defendant told him that he babysat for KS and her siblings on December 17, 2019, so
that Danielle and Andrew could finish their Christmas shopping. Defendant told Jerzyk that he
and KS had a disagreement that night. Defendant explained that he had been planning to give the
children electronic tablets for Christmas and in preparation, he advised KS about the proper use of
a tablet; defendant reported that KS had gotten into trouble earlier for improper use of a tablet.
Jerzyk testified that defendant reported that KS did not like the advice and became annoyed, and
defendant told KS not to be rude. Regarding the sleeping arrangements for the children at
defendant’s home, Jerzyk testified that defendant stated that he moved KS from the girls’ bedroom
to his bedroom because the girls sometimes quarreled. Defendant also confirmed to Jerzyk that
he usually sent the younger children to bed first, and KS would go to bed last. During the
interview, defendant told Jerzyk that KS was mature and that she was “10 going on 40.”
The prosecution called Thomas Cottrell as an expert witness. Cottrell testified that he was
the Chief Programming Officer for the YWCA West Central Michigan, overseeing programming
to address domestic violence, sexual assault, and child sexual abuse. The trial court qualified
Cottrell as an expert in the field of child sexual abuse dynamics and offender characteristics.
Cottrell testified that a perpetrator of child sexual abuse often “grooms” a child victim by engaging
in behavior that is intended to reduce the likelihood that the victim will resist the sexual abuse or
report the abuse. Grooming may include threats, making the child feel responsible or guilty,
flattery, making the child feel obligated by giving the child gifts, giving the child special privileges,
and making the child victim feel special.
Cottrell also testified that it is not unusual for a child victim to delay reporting sexual abuse
for months or years, often because they are traumatized or did not appreciate that the conduct was
inappropriate. Cottrell testified that most delays in reporting sexual abuse arise from the child
doing a kind of cost/benefit analysis, weighing whether the consequences of telling are worse than
the consequences of remaining silent. As a child grows older, the child experiences the abuse
differently and may conclude that reporting the abuse is preferable. Cottrell also testified that it is
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not unusual that a child victim would not be able to recount the day the abuse began or the number
of times the abuse occurred.
Defense counsel’s theory at trial was that KS was lying about the abuse because she was
angry with defendant for lecturing her about the use of an electronic tablet. During cross-
examination of Cottrell, defense counsel asked the following questions, and Cottrell responded as
follows:
Q. In your experience, have you ever had cases where the sexual abuse was not
founded or the child had in some way, you know, either lied about what happened
or made it up in an effort to gain something from that?
A. I have a small fraction of cases, yes, where that has indeed happened.
Q. And what are the circumstances there that you’ve observed?
A. I’ve had children fabricate abuse when a sibling was abused and they
thought that sibling was getting some special attention by coming to therapy and
playing with the toys that were in my office and so the other child would allege
sexual abuse so they could come and play too and it was pretty clear that that abuse
didn’t happen.
I’ve had children who, [an] older child in the case I’m thinking of, disclose
sexual abuse when actually what was going on in the household was domestic
violence but the mother would not get herself safe so the child fabricated sexual
abuse allegation so that the authorities would come in and the other dynamic in the
household could be revealed that really it was [] domestic violence abuse.
I’ve had children, teen males who . . . alleged abuse when they were actually
the perpetrators of abuse but fancied themselves or believed that they were victims
and [] the more we got into the case, we realized that they were actually the assailant
against a parent.
I’ve had a few cases of Munchausen’s by proxy where a parent through
some very deliberate coaching and essentially brain-washing convinced the child
to disclose about the other parent and the child did so without any affect that would
normally be connected to sexual abuse but disclosed abuse and this was very much
focused on the parent getting attention for the child’s disclosure which is what
Munchausen’s by proxy is [,] essentially create an ill child so the parent gets
attention and in this case, it was creat[e] an ill child through allegations of sexual
abuse.
Defendant testified at trial, denying the allegations of sexual abuse. He testified that when
the children stayed at his house, he gave KS his bedroom because she and MS quarreled when they
shared a bedroom, but that he always slept on the couch in the living room. Defendant testified
that KS was “like 10 going on 40. She’s just very, very smart and more mature for her age than
most kids her age.” When asked whether that was good or bad, defendant explained “[i]t’s a good
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thing and it’s a bad thing because she can be sweet, kind, considerate, pushy, manipulative and
wants to get her own way sometimes but primarily, she’s a good girl.” Defendant further testified
that he gave the children privileges according to their ages, so KS as the oldest child received
greater privileges.
Defendant testified that on the night of December 17, 2019, he babysat the children at their
home. That evening, he gave KS advice about proper use of the tablet he planned to give her for
Christmas; when she became annoyed by his advice, he told her that she was being rude.
Defendant testified that after he returned home on December 17, 2019, Andrew called him and
they talked for three minutes about the alleged abuse, which defendant testified he denied. He
testified that the next morning, Andrew came to his home and again told him about the allegations.
Defendant agreed that he said he was sorry, but that he meant he was sorry about the allegations
and about Andrew having to come to his house early in the morning. When asked if KS had a
motive to make false accusations, defendant testified that KS was being pressured by her mother
to talk to her biological father about his drinking, and that KS may have made the allegations to
avoid the conversation with her biological father. Defendant also testified that KS in the past had
lied to her parents and had lied at school. Defendant testified that the previous time he babysat the
children, Andrew had told him that KS did not want to go to defendant’s house.
At the conclusion of the evidence and arguments, the trial court instructed the jury.
Regarding Cottrell’s testimony, the trial court stated:
You have heard Thomas Cottrell’s opinion about the behavior of sexually
abused children. You should consider that evidence only for the very limited
purpose of deciding whether [KS’s] acts and words after the alleged crime were
consistent with those of sexually abused children. That evidence cannot be used to
show that a crime charged here was committed or that the defendant committed it,
nor can it be considered an opinion by Thomas Cottrell that [KS] is telling the truth.
The jury convicted defendant of two counts of first-degree criminal sexual conduct. Defendant
now appeals.
II. DISCUSSION
Defendant contends that he was denied the effective assistance of counsel at trial because
defense counsel elicited damaging testimony from the prosecution’s expert witness on cross-
examination that would not have been admissible on direct examination. We disagree that defense
counsel was ineffective.
To preserve a claim of ineffective assistance of counsel, a defendant must move in the trial
court for a new trial or an evidentiary hearing, People v Heft, 299 Mich App 69, 80; 829 NW2d
266 (2012), or timely move for remand in this Court. People v Abcumby-Blair, 335 Mich App
210, 227; 966 NW2d 437 (2020). In this case, the parties agree that defendant’s allegation of error
is unpreserved. This Court reviews an unpreserved assertion of error for plain error affecting the
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Substantial rights are affected when the lower court proceedings were affected by the error. People
v Burger, 331 Mich App 504, 516; 953 NW2d 424 (2020). “Reversal is warranted only when plain
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error resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” Id. (quotation marks and citation
omitted). This Court reviews an unpreserved assertion of ineffective assistance of counsel for
errors apparent on the record. People v Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019).
A defendant is constitutionally entitled to the effective assistance of counsel. People v
Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021). The effective assistance of counsel is
presumed, and the defendant’s burden to prove otherwise is a heavy one. Id. To establish that
counsel was ineffective, the defendant must prove that (1) counsel’s performance fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant,
meaning that there is a reasonable probability that the outcome would have been different but for
the deficient performance. People v Jurewicz, 506 Mich 914, 195 (2020), citing People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001) (quotation marks and citation omitted).
A claim of ineffective assistance of counsel focuses on “deficiencies in the defense
counsel’s decision-making.” People v Randolph, 502 Mich 1, 14; 917 NW2d 249 (2018).
Decisions about trial strategy are within the broad discretion of trial counsel. People v Pickens,
446 Mich 298, 325; 521 NW2d 797 (1994). A court is required to determine whether defense
counsel’s strategic decision was made after an incomplete investigation. Trakhtenberg, 493 Mich
at 52. If defense counsel’s strategy is reasonable, then his or her performance is not deficient.
Randolph, 502 Mich at 12. A deficiency prejudices the defendant when there is a reasonable
probability that but for counsel’s error, the verdict would have been different. Id. at 9.
In this case, defendant contends that he was denied effective assistance of counsel because
defense counsel elicited damaging testimony from the prosecution’s expert witness on cross-
examination. In cases of alleged sexual abuse, “(1) an expert may not testify that the sexual abuse
occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert may not testify
whether the defendant is guilty.” People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995).
An expert may testify, however, “regarding typical symptoms of child sexual abuse for the sole
purpose of explaining a victim’s specific behavior that might be incorrectly construed by the jury
as inconsistent with that of an abuse victim or to rebut an attack on the victim’s credibility.” Id.
at 373.
“[E]xpert witnesses may not testify that children overwhelmingly do not lie when reporting
sexual abuse because such testimony improperly vouches for the complainant’s veracity.” People
v Thorpe, 504 Mich 230, 235; 934 NW2d 693 (2019). Thorpe involved two consolidated cases;
in one of the consolidated cases, Thorpe, the prosecution presented Thomas Cottrell as an expert
witness who was permitted by the trial court to testify as an expert in the area of child sexual abuse
and disclosure. On cross-examination, defense counsel asked the witness whether children can lie
or manipulate, and the witness agreed that they could. Id. at 239. The prosecution on redirect
asked the expert witness “what, in your experience, if you can say, is the percentage of children
who actually do lie [about the sexual assault itself].” Id. Over objection by defense counsel, the
witness responded that “…probably two to four percent of the cases that we get hav[e] children
alleging . . . sexual abuse when abuse did not actually occur.” Id. at 240. Cottrell then discussed
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two scenarios in which children are likely to lie about sexual abuse, neither of which was a scenario
present in that case. Id.
The defendant in that case was convicted, and this Court affirmed his convictions. Our
Supreme Court reversed and remanded to the trial court for a new trial. Id. at 266. The Court
stated:
We conclude that [the defendant] has shown that it is more probable than
not that a different outcome would have resulted without [the expert’s] testimony
that children lie about sexual abuse 2% to 4% of the time. In [People v] Peterson
[, 450 Mich 349; 537 NW2d 857 (1995)], this Court observed that nearly identical
testimony allowed “the experts in that case [to] improperly vouch [] for the veracity
of the child victim.” Here, not only did [the witness] opine that only 2% to 4% of
children lie about sexual abuse, but he also identified only two specific scenarios
in his experience when children might lie, neither of which applies in this case. As
a result, although he did not actually say it, one might reasonably conclude on the
basis of [the expert’s] testimony that there was a 0% chance [the child] had lied
about sexual abuse. In so doing, [the expert] for all intents and purposes vouched
for [the child’s] credibility. [Thorpe, 504 Mich at 259 (footnotes omitted).]
The Court also explained:
[The defendant’s] trial was a true credibility contest. There was no physical
evidence, there were no witnesses to the alleged assaults, and there were no
inculpatory statements. The prosecution’s case consisted of [the child’s]
allegations, testimony by her mother regarding [the child’s] disclosure of the
alleged abuse and behavior throughout the summer and fall of 2012, and [the
witness’] expert testimony. [The defendant] testified in his own defense and denied
the allegations. Additionally, [the defendant’s mother] testified about other reasons
for [the child’s] behavior during the summer and fall of 2012; namely, that her
mother had started a new relationship and become pregnant and that [the defendant]
had decided to no longer have parenting time with [the child]. Because the trial
turned on the jury’s assessment of [the child’s] credibility, the improperly admitted
testimony wherein [the expert witness] vouched for [the child’s] credibility likely
affected the jury’s ultimate decision. Under these circumstances, we conclude that
[the defendant] has shown that it is more probable than not that a different outcome
would have resulted without [the expert’s] improper testimony. [Id. at 260.]
In this case, the prosecution called Cottrell, who testified about the dynamics of child
sexual abuse and offender characteristics. On direct examination, Cottrell did not testify about the
probability that a child witness would lie about sexual abuse. During cross-examination, however,
defense counsel asked Cottrell the following questions, and Cottrell responded as follows:
Q. In your experience, have you ever had cases where the sexual abuse was not
founded or the child had in some way, you know, either lied about what happened
or made it up in an effort to gain something from that?
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A. I have a small fraction of cases, yes, where that has indeed happened.
Q. And what are the circumstances there that you’ve observed?
A. I’ve had children fabricate abuse when a sibling was abused and they
thought that sibling was getting some special attention by coming to therapy and
playing with the toys that were in my office and so the other child would allege
sexual abuse so they could come and play too and it was pretty clear that that abuse
didn’t happen.
I’ve had children who, [an] older child in the case I’m thinking or, disclose
sexual abuse when actually what was going on in the household was domestic
violence but the mother would not get herself safe so the child fabricated sexual
abuse allegation so that the authorities would come in and the other dynamic in the
household could be revealed that really it was [] domestic violence abuse.
I’ve had children, teen males who are alleging abuse, alleged abuse when
they were actually the perpetrators of abuse but fancied themselves or believed that
they were victims and [] the more we got into the case, we realized that they were
actually the assailant against a parent.
I’ve had a few cases of Munchausen’s by proxy where a parent through
some very deliberate coaching and essentially brain-washing convinced the child
to disclose about the other parent and the child did so without any affect that would
normally be connected to sexual abuse but disclosed abuse and this was very much
focused on the parent getting attention for the child’s disclosure which is what
Munchausen’s by proxy is [,] essentially create an ill child so the parent gets
attention and in this case, it was creat[e] an ill child through allegations of sexual
abuse.
Defendant argues that defense counsel’s performance fell below an objective standard of
reasonableness; our Supreme Court’s decision in Thorpe was issued in July 2019, Cottrell was the
prosecution’s expert in Thorpe, and the testimony elicited here was similar to the evidence our
Supreme Court found detrimental in Thorpe. Although there was a strategic reason to ask the first
question about whether children ever lie about sexual abuse, there was no apparent strategic reason
to ask the open-ended question about the circumstances under which that might occur. Defendant
argues that defense counsel should have been aware of Thorpe, and thereby should have been
aware of the answer Cottrell, the expert in Thorpe, was likely to give.
We observe, however, that Cottrell’s testimony in this case differs from his testimony in
Thorpe. Cottrell did not testify in the specific way that was found prejudicial in Thorpe; he did
not suggest that children lie about sexual abuse so rarely and in such specific circumstances that
there is effectively zero chance that a child is lying. Cottrell in this case testified that “I have a
small fraction of cases, yes, where that has indeed happened” that children lied about sexual abuse.
Counsel thus obtained a response from Cottrell that children do sometimes lie and, in fact, had lied
in some of his cases, which supported the defense theory at trial that KS lied. That defense counsel
also obtained a less favorable answer to his follow-up question was perhaps a result of bad strategy,
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bad cross-examination skills, or a simple mistake, but does not rise to the level of objectively
unreasonable.
Moreover, the record in this case does not support a finding that defense counsel’s
performance, even if deficient, prejudiced defendant because there is not a reasonable probability
that the outcome would have been different but for defense counsel eliciting this testimony from
Cottrell. The record provides ample evidence to support defendant’s conviction. KS, who was 12
years old at the time of trial, was clear and unequivocal in her testimony. She testified that
defendant began sexually abusing her when she was in third or fourth grade, and that the abuse
occurred “practically like every night” that she slept at defendant’s house. KS testified that when
they began spending the night at defendant’s house she shared a bedroom with her sister, but later
moved to defendant’s bedroom at his suggestion. KS’s sister, MS, confirmed the sleeping
arrangements at defendant’s house. KS explained that defendant would send the other children to
bed in other rooms, and she would be allowed to stay up later. Then, shortly after she would go to
bed in defendant’s bedroom, defendant would enter the room and sexually assault her while the
other children were asleep in other rooms. KS described the abuse in detail.
Defendant’s conduct, as described by KS and her mother, fits the description of
“grooming” as explained by Cottrell on direct examination. KS testified that defendant would tell
her she was beautiful and that he wished he could marry her, and often yelled at her siblings but
not at her. She was allowed to use the electronic tablet more than her siblings, and when defendant
gave them money to buy snacks, defendant always gave her more money than he gave her siblings.
MS confirmed KS’s testimony that when defendant gave the children money to buy snacks, he
gave KS more money than he gave the other children.
KS’s mother, Danielle, testified that when defendant babysat the younger boys at his home,
he would regularly ask that KS also stay at his home to help. The babysitting usually occurred at
defendant’s home, where defendant installed a swing set and a trampoline for the children.
Danielle also testified that when she would pick the children up from defendant’s house, she
noticed that the three younger children were often outside playing, but defendant and KS were
always in the house. Danielle testified that she was concerned because defendant gave the girls
more privileges than he gave the boys, and gave gifts to KS that were more elaborate than the gifts
to the other children.
Further supporting KS’s accusations is defendant’s response when Andrew Geister
confronted him. Andrew testified that when he confronted defendant with the accusations, he was
very general that the accusations involved sexual abuse, but did not describe the alleged abuse.
Defendant neither admitted nor denied the accusations, was very apologetic, saying he was sorry
again and again, but did not ask for details about the accusations.
At trial, defendant denied the allegations and suggested that KS had a history of lying. He
confirmed, however, KS’s testimony that he directed her to sleep in his bedroom, and confirmed
that he gave KS greater privileges. Defendant suggested that KS was lying out of anger because
she was annoyed that he attempted to give her advice about proper use of the tablet he was planning
to give her as a Christmas gift. Defendant also testified, however, that KS was “like 10 going on
40,” which is the same phrase he used to describe KS to Detective Jerzyk. Defendant further said
about KS that “She’s just very, very smart and more mature for her age than most kids her age.”
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Defendant’s description of KS suggests that he viewed KS as an adult, not a child. When asked at
trial whether KS’s maturity was good or bad, defendant explained “[i]t’s a good thing and it’s a
bad thing because she can be sweet, kind, considerate, pushy, manipulative and wants to get her
own way sometimes but primarily, she’s a good girl,” suggesting that defendant was frustrated that
KS was growing less compliant as she grew older and was less persuadable with the gift of a tablet.
At the conclusion of the evidence and arguments, the trial court instructed the jury.
Regarding Cottrell’s testimony, the trial court stated:
You have heard Thomas Cottrell’s opinion about the behavior of sexually
abused children. You should consider that evidence only for the very limited
purpose of deciding whether [KS’s] acts and words after the alleged crime were
consistent with those of sexually abused children. That evidence cannot be used to
show that a crime charged here was committed or that the defendant committed it,
nor can it be considered an opinion by Thomas Cottrell that [KS] is telling the truth.
“Jurors are presumed to follow their instructions, and jury instructions are presumed to cure most
errors.” People v Zitka, 335 Mich App 324, 348; 966 NW2d 786 (2020) (quotation marks and
citation omitted).
As discussed, to establish that counsel was ineffective, the defendant must prove that (1)
counsel’s performance fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defendant, meaning that there is a reasonable probability that the
outcome would have been different but for the deficient performance. Jurewicz, 506 Mich at 195.
A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”
Carbin, 463 Mich at 600. We conclude that the record demonstrates ample support for the jury’s
conviction of defendant and there is not a reasonable probability that the outcome would have been
different but for the deficient performance. Defendant therefore failed to establish that he was
denied the effective assistance of counsel, and similarly failed to establish plain error.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola
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