People of Michigan v. Shae Lynn Mullins , 322 Mich. App. 151 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
November 30, 2017
Plaintiff-Appellee, 9:00 a.m.
v No. 334098
Berrien Circuit Court
SHAE LYNN MULLINS, LC No. 2015-000156-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ.
SWARTZLE, P.J.
Defendant Shae Lynn Mullins convinced her daughter (PD) to tell a school teacher that
PD’s father had sexually abused the girl. Defendant did so with the expectation that she would
get sole or primary custody of PD. The plan quickly unraveled, and defendant was charged and
ultimately convicted of contributing to the delinquency of a minor and making a false report of
felony child abuse.
On appeal, defendant argues that she is not criminally liable for making a false report
because she did not make the report herself, but instead the report was made by PD to a school
teacher, who then reported the matter to the school principal, who in turn reported the matter to
Child Protective Services (CPS). Because defendant used PD and the school officials as
“innocent agents,” we conclude that defendant can still be held criminally liable as a principal for
making a false report of felony child abuse. Concluding that defendant’s remaining claims of
error are similarly without merit, we affirm her convictions.
I. BACKGROUND
Defendant and Louis Dominion have a daughter, PD, born in 2006. The parents have
never been married, and they have been involved in extensive custody litigation over PD since
2007. Dominion became PD’s primary caregiver in January 2009 with defendant having
parenting time every other weekend. In November 2013, while PD was visiting defendant,
defendant told PD that, if PD told a teacher at school that Dominion “hurt [her] private parts”
and locked her in a closet, then PD would be able to spend more time with defendant. There was
also testimony that suggested that defendant offered to buy PD a new horse if she made this
allegation at school.
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Shortly after this discussion, PD told a teacher that Dominion “hurts [her] and has hurt
[her] private parts.” PD’s teacher reported the statement to the school’s principal, who reported
the incident to CPS. PD was later interviewed about the allegations, and she admitted that
defendant told her to lie.
Defendant was charged with contributing to the delinquency of a minor, MCL 750.145,
and making a false report of felony child abuse, MCL 722.633(5). The district court, however,
refused to bind defendant over to the circuit court on the charge of making a false report of child
abuse. The district court concluded that defendant could not be guilty under MCL 722.633(5)
because defendant did not personally make a false report of child abuse. The district court
compared the language of MCL 722.633(5) to the language of the false crime report statute,
MCL 750.411a. MCL 722.633(5) states that “[a] person who intentionally makes a false report
of child abuse or neglect under the act knowing that the report is false is guilty of a crime.” For
its part, MCL 750.411a contains similar language, and states that a “person who intentionally
makes a false report of the commission of a crime, or intentionally causes a false report of the
commission of a crime to be made . . . knowing the report is false, is guilty of a crime.” Under
the principle that the expression of one thing implies the exclusion of other things, coupled with
the principle that laws dealing with the same subject should be interpreted harmoniously, the
district court concluded that the inclusion of the phrase “or intentionally causes a false report of
the commission of a crime to be made” in MCL 750.411a, and the omission of similar language
from MCL 722.633(5) must be given effect. Thus, it held that the Legislature did not intend to
make punishable a person’s intentionally causing a false report of child abuse to be made when
that person does not personally make the report.
The prosecution appealed the district court’s decision to the circuit court, and the circuit
court reversed. In doing so, the circuit court noted that, under the common-law theory of
innocent agent, a person was liable for the commission of a crime as a principal when the person
used an “innocent other” as an instrumentality to commit the offense. The circuit court
commented that MCL 722.633 and MCL 750.411a were codified in different chapters of the
compiled laws and that the additional language present in MCL 750.411a was the result of the
Legislature’s 2004 amendment to MCL 750.411a. Because that amendment was enacted 20
years after MCL 722.633(5) was first enacted, the trial court declined to read MCL 750.411a as
conclusive evidence that the Legislature intended to abrogate the common-law doctrine of
innocent agent by way of MCL 722.633(5). Accordingly, the circuit court allowed the charge of
making a false report of child abuse to proceed to trial.
Before trial, the prosecution noticed defendant of its intent to introduce evidence that, in
2008, defendant made three false reports that Dominion was sexually abusing PD. Defendant
objected to the introduction of this evidence, and the trial court ultimately concluded that the
evidence was admissible under MRE 404(b):
[T]he Court finds that evidence of the Defendant’s prior allegations or complaints
of sexual abuse of [the child] by [Dominion] to CPS, the resulting CPS
investigation, resulting parenting time suspension during the CPS investigation,
and ultimate disposition of the investigation, are logically relevant to show
Defendant’s motive and intent to commit the charged offense (intention [sic] false
reporting of felony child abuse, MCL §722.633(5)). Similarly, to the extent that it
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appears the object of the charged act (i.e. Defendant falsely reporting the child
abuse through her daughter) remains at issue, the Court finds that those “other
acts” have the requisite concurrence and combination of common features, to
support the [prosecution’s] purpose of showing Defendant’s plan or scheme.
Thus, as to these stated “other acts” involving Defendant initiating reports to CPS,
the Court finds that the [prosecution has] satisfied their burden of establishing
admissibility under MRE 404(b).
At trial, the jury heard evidence that, on three occasions in 2008, defendant took PD to a
doctor after PD returned from Dominion’s care. Defendant informed the doctor that she had
observed redness and swelling in PD’s vaginal area, and the doctor reported the concerns to CPS.
CPS initiated investigations of each complaint, all of which were unsubstantiated. The jury also
heard evidence that these complaints led CPS to file a petition in 2008 against both defendant
and Dominion to place PD in foster care while CPS investigated the false allegations. Evidence
of this latter petition was not noticed by either party before trial.
The jury ultimately found defendant guilty of making a false report of felony child abuse
and contributing to the delinquency of a minor. For these convictions, the trial court sentenced
defendant to seven days in county jail and two years’ probation.
Defendant appealed her convictions as of right.
II. ANALYSIS
A. DEFENDANT WAS PROPERLY CHARGED AND CONVICTED
AS A PRINCIPAL UNDER MCL 722.633(5)
We first address defendant’s argument that under traditional canons of statutory
construction, she should not have been charged, let alone convicted of making a false report of
felony child abuse because she did not personally make the report and she did not speak to a
mandatory reporter. “This Court reviews de novo issues of statutory interpretation.” People v
Gardner, 482 Mich. 41, 46; 753 NW2d 78 (2008). “The fundamental task
of statutory construction is to discover and give effect to the intent of the Legislature.” People v
Ambrose, 317 Mich. App. 556, 561; 895 NW2d 198 (2016) (internal quotation marks and citation
omitted). “The statute’s words are the most reliable indicator of the Legislature’s intent and
should be interpreted based on their ordinary meaning and the context within which they are
used in the statute.” Id. (internal quotation marks and citation omitted). Judicial construction of
a statute is only appropriate if reasonable minds could differ regarding the statute’s meaning.
People v Stone Transport, Inc, 241 Mich. App. 49, 50-51; 613 NW2d 737 (2000).
1. MCL 722.633(5) IS NOT LIMITED TO MANDATORY REPORTERS
Defendant argues that she cannot be held criminally liable under MCL 722.633(5)
because defendant and PD were not mandatory reporters and the statute only criminalizes false
reports by mandatory reporters. She buttresses this argument with a second point—because
other provisions of Michigan law criminalize false reports of criminal activity by non-mandatory
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reporters, MCL 722.633(5) must be read to be limited solely to mandatory reporters of felony
child abuse or neglect. We reject both arguments.
With respect to her first argument, MCL 722.633(5) provides in pertinent part: “A
person who intentionally makes a false report of child abuse or neglect under this act knowing
that the report is false is guilty of a crime . . . .” Defendant argues that the phrase “under this
act” refers to mandatory reporters as defined in the Child Protection Law, and therefore the
Legislature clearly intended to limit the scope of the statute to only those designated reporters.
MCL 722.623(1) identifies the specific categories of persons who are required to report child
abuse under the act, and neither a parent nor a child is included. Given this, defendant maintains
that she cannot be found guilty under MCL 722.633(5).
Defendant’s argument suffers from a fundamental flaw—while the Child Protection Law
mandates that certain persons report suspected child abuse, the law does not preclude a person
who is not a mandatory reporter from reporting suspected child abuse. In fact, the Child
Protection Law explicitly contemplates these reports. Specifically, MCL 722.624 provides, “In
addition to those persons required to report abuse or neglect under [MCL 722.623], any person,
including a child, who has reasonable cause to suspect child abuse or neglect may report the
matter to the department or a law enforcement agency.” A person who chooses, but is not
required, to make a report would still be doing so “under this act,” i.e., under the authority of
MCL 722.624.
Defendant suggests that such a reading would render the phrase “under this act”
superfluous. But, just because the reading would encompass all instances of false reporting to
CPS of child abuse or neglect—those made by mandatory reporters and non-mandatory reporters
alike—this does not mean that “under this act” is without content. Rather, the phrase clarifies
that the activity criminalized by MCL 722.633(5) is the making of a specific report to CPS as
authorized by the Child Protection Law, as opposed to some other kind of report not involving
abuse or neglect of a child or made to some person or entity other than CPS or law enforcement.
As to defendant’s second argument, while she contends that other provisions of Michigan
law criminalize false reports by non-mandatory reporters, this contention lends no weight to her
position. It is well-established that the same activity can violate more than one criminal
provision. See People v Ford, 262 Mich. App. 443, 447-448; 687 NW2d 119 (2004) (recognizing
that the Legislature may choose to punish the same activity under multiple criminal provisions).
Even if her activity might have violated another provision criminalizing false reports, it does not
follow that her activity could not also have violated the Child Protection Law, MCL 722.633(5).
Accordingly, because the Child Protection Law expressly contemplates reporting of child
abuse by mandatory and non-mandatory reporters, the plain meaning of MCL 722.622(5)’s
reference to “[a] person who intentionally makes a false report of child abuse or neglect under
this act” covers both mandatory and non-mandatory reporters.
2. THE DOCTRINE OF INNOCENT AGENT APPLIES TO MCL 722.633(5)
Defendant next argues that she is not liable under MCL 722.633(5) because she did not
personally make the false report of child abuse. The district court agreed with defendant,
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concluding that (a) the inclusion of language in a similar statute (MCL 750.411a) that
criminalizes a false report of a crime by (i) a person who actually makes the report as well as (ii)
a person who causes such a report to be made, and (b) the omission of language in MCL
722.633(5) involving those who cause a report to be made, means that the Legislature intended
to hold liable only the former (i) and not the latter (ii) with respect to false reports of child abuse.
While not without some logical force, we ultimately agree with the circuit court that the better
understanding of MCL 722.633(5) covers both groups.
In construing a statute, the Court’s analysis begins with the plain meaning of the statutory
language itself. If the plain meaning of the language is clear, then the Court’s analysis is at an
end, and there is no need to reach for canons of construction for aid. People v Borchard-
Ruhland, 460 Mich. 278, 284; 597 NW2d 1 (1999); Stone Transport, 241 Mich. App. at 51. The
Legislature, like the other branches of our government, is bound to the dictates of Michigan’s
Constitution of 1963, including Article III § 7 mandating that common-law doctrines remain in
force until they are “changed, amended or repealed” by statute. This means that statutes must be
read in light of the common law except to the extent that the Legislature has abrogated or
modified it. J & L Inv Co v Dep’t of Natural Resources, 233 Mich. App. 544, 549; 593 NW2d
196 (1999); see also Dawe v Bar-Levar, 485 Mich. 20, 28; 780 NW2d 272 (2010) (“The common
law remains in force until modified . . . [and] the Legislature is assumed to know the common
law when it enacts a related statutory provision . . . .”).
This Court does not lightly infer that our Legislature intended to abrogate or modify the
common law. Rather, this Court presumes that the common law remains intact, even when the
Legislature enacts a statute on the same or a similar subject. See Butler v City of Grand Rapids,
273 Mich. 674, 679; 263 N.W. 767 (1935). When the Legislature intends to change the common
law, its language must clearly indicate that intent. See id.
Turning to the language of MCL 722.633(5), it is clear that the Legislature intended to
criminalize a person’s making of a false report of felony child abuse or neglect. It is equally
clear that the Legislature did not intend to change, amend, or repeal any aspect of the common
law by enacting MCL 722.633(5). Thus, the statute must be read in light of the well-established
common-law doctrine of the “innocent agent.” Under this doctrine, when a defendant uses
another innocent person to accomplish a crime on the defendant’s behalf, the defendant is guilty
of the crime as a principal, rather than under any of the accomplice-liability theories. See People
v Hack, 219 Mich. App. 299, 303; 556 NW2d 187 (1996). Under the doctrine, the innocent agent
is not the one who actually commits the offense, but is a mere “instrumentality” through which
the defendant commits the offense. Id.; see also People v Fisher, 32 Mich. App. 28, 33; 188
NW2d 75 (1971) (noting in a larceny case that the asportation element need not be effectuated by
the perpetrator of the crime, but may be accomplished by an innocent agent).
This Court has found the following passage from Dressler, Understanding Criminal Law,
2nd ed, § 30.06(B)(1), p 446, helpful to understand the concept:
If D coerces X to commit a theft by threatening X’s life, X will be acquitted of
larceny on the ground of duress. Today, and according to common law principles,
D may be convicted of larceny. X was D’s innocent instrumentality. Therefore,
at common law, D was the principal in the first degree of the offense.
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Conceptually, D’s guilt is not founded on accomplice-liability principles. Instead,
D is directly liable for committing the crime through the instrumentality; D’s guilt
is not derived from another culpable person. X’s acquittal, therefore, presents no
bar to the conviction of the only culpable party. [See Hack, 219 Mich. App. at
303.]
Considering the facts of this case in line with the innocent-agent doctrine, we find no
error with charging and convicting defendant under MCL 722.633(5). As the trial evidence
showed, defendant repeatedly used PD and others as agents to make false reports of child abuse
against PD’s father. As a result, on at least three occasions, PD has been removed from her
father’s care, and, on at least one occasion, PD was removed from the care of both her parents
and placed into foster care. With respect to the charged offense, defendant used PD to report to
her teacher, who then reported the matter to the school principal, who in turn reported the matter
to CPS. Neither PD, the teacher, nor the school principal intended to make a false report;
instead, they were acting as the innocent agent of defendant’s malicious plan. Nor was the chain
of agents too attenuated under the facts of this case, as PD was a minor and both the teacher and
principal were mandatory reporters under MCL 722.623, meaning that they had no choice or
discretion under the law but to report the allegations in accordance with the Child Protection
Law.
Because we conclude that MCL 722.633(5) is not ambiguous with respect to holding
liable someone who uses an innocent agent to make a false report of child abuse, we need not
resort to the canons of construction used by the district court and suggested by defendant. The
district court correctly noted that MCL 722.633(5) shares a similar subject with MCL 750.411a,
as both criminalize the making of false reports of certain criminal activity. And, the district court
applied a common canon of construction that instructs that where language is included in one
provision but omitted from a related provision, then the Legislature intended for that omission to
be given effect by courts. People v English, 317 Mich. App. 607, 615; 897 NW2d 184 (2016).
But, as explained earlier, these canons are not necessary when the plain meaning of the statutory
language is clear.
Moreover, we note in passing that the phrase “intentionally causes a false report” was not
added to MCL 450.411a until 2004. 2004 PA 104. The current version of MCL 722.633(5) that
does not have that phrase was first enacted in 1975 and later amended in 1996. 1975 PA 238;
1996 PA 309. One could argue that had the Legislature intended to keep MCL 722.633(5)
consistent with MCL 7450.411a, it would have enacted identical amendments to both statutes in
2004. This would, however, stretch the canon of in pari materia too thin. There are likely many
reasons—policy- and non-policy alike—why the Legislature would chose to amend one section
of law without at the same time amending a related section, including interest, resources, politics,
attention, etc. Reflecting this reality, our Court has limited the canon to instances “when the
‘related statute’ is a prior enactment.” English, 317 Mich. App. at 616 (emphasis added). When
the related statute was enacted or amended after the statute at issue, the canon is generally
inapplicable. Id. As the Supreme Court has observed, “It is one thing to infer legislative intent
through silence in a simultaneous or subsequent enactment, but quite another to infer legislative
intent through silence in an earlier enactment, which is only ‘silent’ by virtue of the subsequent
enactment.” People v Watkins, 491 Mich. 450, 482; 818 NW2d 296 (2012).
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Under the law, defendant was criminally liable as a principal, not an agent. We find no
error in charging and convicting defendant of making a false report of felony child abuse.
B. OTHER-ACTS EVIDENCE
Defendant also raises several claims of trial error under the Michigan Rules of Evidence.
“The decision whether to admit evidence is within the trial court’s discretion and will not be
disturbed absent an abuse of that discretion.” People v McDaniel, 469 Mich. 409, 412; 670
NW2d 659 (2003). An abuse of discretion occurs “when the court chooses an outcome that falls
outside the range of principled outcomes.” People v Douglas, 496 Mich. 557, 565; 852 NW2d
587 (2014) (internal quotation marks and citation omitted). Yet, when “the decision involves a
preliminary question of law, which is whether a rule of evidence precludes admissibility, the
question is reviewed de novo.” McDaniel, 469 Mich. at 412. “A preserved error in the admission
of evidence does not warrant reversal unless after an examination of the entire cause, it shall
affirmatively appear that it is more probable than not that the error was outcome determinative.”
People v Burns, 494 Mich. 104, 110; 832 NW2d 738 (2013) (internal quotation marks and
citation omitted).
1. NO ABUSE OF DISCRETION IN ADMITTING OTHER-ACTS EVIDENCE
Defendant argues that the trial court abused its discretion in admitting evidence related to
the 2008 CPS investigations involving allegations that Dominion sexually abused his daughter.
Under MRE 404(b)(1):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible 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 when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
In People v Sabin, 463 Mich. 43, 55-56; 614 NW2d 888 (2000), our Supreme Court held that a
trial court does not abuse its discretion if its admission of other-acts evidence meets the three-
part test articulated in Huddleston v United States, 485 U.S. 681, 691-692; 108 S. Ct. 1496; 99 L. Ed.
2d 771 (1988), that was adopted in People v VanderVliet, 444 Mich. 52, 74; 508 NW2d 114
(1993). Under that test:
First, the prosecutor must offer the other acts evidence under something other
than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third, under MRE 403, a determination
must be made whether the danger of undue prejudice substantially outweighs the
probative value of the evidence in view of the availability of other means of proof
and other facts appropriate for making decision of this kind under Rule 403.
[Sabin, 463 Mich. at 55-56 (selected internal citations and quotation notation
omitted).]
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See also People v Denson, 500 Mich. 385, 316-317; 902 NW2d 306 (2017) (explaining that, to be
admissible under MRE 404(b), other-acts evidence must be offered for a proper purpose as well
as be logically relevant (i.e., material and probative), and the probative value must not be
substantially outweighed by unfair prejudice).
The evidence from prior CPS investigations showed that on three separate instances in
2008, defendant sought medical attention for PD after observing redness and swelling in PD’s
vaginal area. Every instance immediately followed a weekend in which Dominion had parenting
time with PD. The physician, a mandatory reporter of child abuse, contacted CPS, and then CPS
and the police opened an investigation into Dominion involving possible sexual abuse.1
Dominion’s parenting time was suspended during each investigation. After each investigation
was closed as unsubstantiated, Dominion’s parenting time resumed. In the instant case,
defendant instructed PD to tell a teacher, a mandatory reporter, that Dominion “hurt [her]
privates.” PD indicated that defendant told her to make the false allegation so that she could
spend more time with defendant.
In both the charged and uncharged conduct, instead of personally lodging a complaint
with CPS, defendant used PD to make or infer an allegation of abuse to a mandatory reporter,
who would then be legally required to report the abuse to CPS. In each instance, CPS would
initiate an investigation of Dominion, and PD would be removed from her father’s direct care.
Given the similar victims—PD and Dominion—as well as the similar pattern—defendant,
through PD, caused a report to be made to CPS and an investigation of Dominion inevitably
followed—the uncharged conduct from 2008 was logically relevant under MRE 404(b) to show
defendant’s common plan, scheme, or system in using PD to make a false allegation of sexual
abuse against Dominion in 2013. We likewise find that the uncharged conduct was also relevant
to show defendant’s motive for causing the false report to be made in the instant case in that the
false report could cause CPS to remove PD from Dominion’s care.
Regardless of its relevance, defendant also argues that the other-acts evidence was unduly
prejudicial to her defense such that it should have been excluded under MRE 403. “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 Crawford, 458 Mich. 376, 398; 582 NW2d
785 (1998). As discussed above, the other-acts evidence involving the initiating of the three CPS
investigations in 2008 was highly probative to show that defendant used a continuing plan or
scheme to use CPS investigations to suspend Dominion’s parenting time so that she would have
full or primary custody of her daughter. Although this evidence was prejudicial to defendant, it
was not unfairly prejudicial or otherwise so prejudicial that an instruction to the jury under MRE
105 would not cure it. See VanderVliet, 444 Mich. at 55. Accordingly, we conclude that the trial
court did not abuse its discretion in admitting the other-acts evidence.
2. DEFENDANT OPENED THE DOOR TO THE 2008 CPS PETITION TESTIMONY
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Defendant argues that the prosecution did not offer any evidence to show that the physician
actually called CPS. This argument is without merit as defendant herself testified that the
physician contacted CPS after defendant brought PD to the physician’s office.
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Defendant also argues that testimony regarding the 2008 CPS petition filed against her
was inadmissible because the prosecution never noticed her of its intent to admit such evidence
and because the evidence’s probative value was substantially outweighed by the danger of unfair
prejudice. Under MRE 404(b)(2), absent good cause, a prosecutor must provide advance notice
of the general nature of evidence it intends to introduce at trial. Despite defendant’s claim of
insufficient notice, the record indicates that it was defendant herself who introduced the specific
allegations of the 2008 CPS petition at trial. Dominion briefly testified about the 2008 CPS
petition as it involved him but did not testify about the allegations in the petition. Specifically,
Dominion testified in relevant part:
Q. Now, did anything change in custody in terms of [your daughter]?
A. It got to the point where the CPS . . . finally petitioned the Court to
take [my daughter] away from her parents.
Q. And after—that was after the third unsubstantiated allegation?
A. That was past the third one. It was in October of 2008.
Q. And did you cooperate with that?
A. Yes, I did.
Q. And then did you get—after that was all taken care of, did you receive
time with [your daughter]?
A. After that was taken care of, she was put into foster care. [My
daughter] was put in foster care so that they could evaluate myself and the other
parent.
Q. Okay. We are not going to get into that part of it. We’re not going
to . . . .
* * *
Q. Eventually, when that case was taken care of, did you end up getting
custody, having time with [your daughter]?
A. Yes.
This testimony provides only a timeline regarding his custody of PD, and therefore did not
implicate the notice provisions of MRE 404(b).
Rather, it was defendant who introduced testimony implicating MRE 404(b) when
defense counsel questioned defendant whether the petition was in response to her making false
allegations to CPS, and she responded that she did not remember:
Q. . . . at that point, was there a petition filed at all?
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A. Yes.
Q. and at some point in 2008, did that petition become about you?
A. Yes.
Q. That came about whether you were making false allegations or
something else? Do you know what the petition was about?
A. I don’t remember the specific what—what it was actually about, I just
remember that it was—it was about me and if I was doing something to cause [my
daughter’s] injuries or they’d come—it was something about botched evidence.
On cross-examination, the prosecutor asked defendant additional questions about the
2008 CPS petition. Defense counsel objected to the relevance of the testimony. The trial court
overruled the objection, stating “No, I’m going to allow it. It’s related to—you brought up the
petition.” Defendant does not take issue on appeal with this ruling, and we likewise find no
error. Because defendant was the party who first pursued the substantive allegations involving
the 2008 petition, any prejudice flowing from the evidence was of defendant’s own making. We
find defendant’s claim to be without merit.
3. THE PROSECUTOR’S CLOSING ARGUMENT WAS NOT IMPROPER
Finally, defendant asserts that the prosecutor committed misconduct in his closing
argument by asserting that defendant essentially had a propensity for making false reports of
sexual abuse to CPS. “Because the challenged prosecutorial statements in this case were not
preserved by contemporaneous objections and requests for curative instructions, appellate review
is for outcome-determinative, plain error.” People v Unger, 278 Mich. App. 210, 235; 749 NW2d
272 (2008). Prosecutorial misconduct issues are decided on a case-by-case basis. People v
Grayer, 252 Mich. App. 349, 357; 651 NW2d 818 (2002). This Court reviews “the prosecutor’s
statements in context to determine whether the defendant was denied a fair and impartial trial.”
Id. The prosecutor’s statements “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). Generally, prosecutors are given great latitude regarding
their arguments and are “free to argue the evidence and reasonable inferences from the evidence
as they relate to their theory of the case.” People v Seals, 285 Mich. App. 1, 22; 776 NW2d 314
(2009).
During closing, the prosecutor made several references to the investigations in 2008. He
stated that defendant used other persons to get CPS involved and argued that defendant had been
making false reports of sexual abuse since 2008. Although the arguments were not made in the
blandest of terms, they were consistent with the evidence to show defendant’s common scheme,
plan, or system of falsely reporting child abuse and to show defendant’s motive to make the
instant allegations. The prosecutor did not commit misconduct in his closing argument.
Even if there had been misconduct, the trial court instructed the jury that “[t]he lawyers’
statements, argument, and any commentary are not evidence. They are only meant to help you
understand the evidence and each side’s legal theories. You should only accept the things the
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lawyers say that are supported by the evidence or by your own common sense and general
knowledge.” Jurors are presumed to follow the court’s instructions, and instructions are
presumed to cure most errors. People v Mahone, 294 Mich. App. 208, 212; 816 NW2d 436
(2011). Accordingly, defendant has not shown any outcome-determinative error involving the
prosecutor’s closing.
III. CONCLUSION
MCL 722.633(5) prohibits a person, through an innocent agent, from making a false
report of felony child abuse, whether or not the person is a mandatory reporter. Defendant used
her daughter and school officials to make a false report of felony child abuse against her
daughter’s father, and by doing so, defendant violated MCL 722.633(5), and we find no error by
the trial court notwithstanding defendant’s claims to the contrary. Similarly finding no error
with respect to the trial court’s evidentiary rulings, we affirm defendant’s convictions.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey
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