            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 24, 2020
               Plaintiff-Appellee,

v                                                                    No. 343795
                                                                     Oakland Circuit Court
DENNIS LEROY WALLACE,                                                LC No. 2017-265503-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and GADOLA, JJ.

PER CURIAM.

       Defendant was convicted by a jury of first-degree criminal sexual conduct (CSC I), MCL
750.520b(1)(a) and (2)(b)) (victim under age 13), and two counts of second-degree criminal sexual
conduct (CSC II), MCL 750.520c(1)(a) and (2)(b)) (victim under age 13), and was sentenced as a
fourth-offense habitual offender, MCL 769.13, to natural life for the CSC I conviction and 10 to
30 years for each of the CSC II convictions. Defendant appeals as of right. We affirm.

                             I. BRIEF FACTUAL BACKGROUND

         Defendant’s convictions arise out of his sexual abuse of his daughter. The prosecution
presented evidence that defendant sexually assaulted his daughter from the time that she was four
years old through the beginning of college. The crimes at issue pertained to three separate assaults
that occurred when the victim was 10 or 11 years old: she testified regarding two instances of
touching and one of digital penetration. Numerous witnesses testified that defendant had admitted
to the inappropriate touching. Also, defendant had sent the victim an e-mail in which he made
admissions. His theory of defense largely focused on the CSC I charge. Specifically, he claimed
that, although he may have engaged in sexual contact with his daughter, no penetration occurred
when she was 10 or 11 years old. Consequently, this matter came down to a credibility contest
between the victim and defendant.




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                                           II. ANALYSIS

                             A. EVIDENCE OF OTHER BAD ACTS

        The victim testified to numerous instances of sexual abuse apart from the charged crimes.
Defendant argues that this other acts evidence should have been excluded pursuant to MRE 403.
“The decision whether [other acts] evidence is admissible is within the trial court’s discretion and
will only be reversed where there has been a clear abuse of discretion.” People v Crawford, 458
Mich 376, 383; 582 NW2d 785 (1998). “An abuse of discretion occurs . . . when the trial court
chooses an outcome falling outside this principled range of outcomes.” People v Norfleet, 317
Mich App 649, 664; 897 NW2d 195 (2014), quoting People v Babcock, 469 Mich 247, 269; 666
NW2d 231 (2003). “At its core, an abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will be more than one
reasonable and principled outcome[.]” Id. So, “[w]hen the trial court selects one of these
principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the
reviewing court to defer to the trial court’s judgment.” Id.

       In this case, the evidence was admitted under both MRE 404(b) and MCL 768.27a. MRE
404(b)(1) provides as follows:

       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.

MCL 768.27a provides, in relevant part: “[I]n a criminal case in which the defendant is accused of
committing a listed offense 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.” For purposes of this case, it is uncontested that CSC I and CSC II are listed offenses.
However, even if relevant, evidence under the court rule, People v Roscoe, 303 Mich App 633,
645-646; 846 NW2d 402 (2014), as well as the statute, People v Watkins, 491 Mich 450, 481; 818
NW2d 296 (2012), must be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice under an MRE 403 analysis.

       The MRE 403 balancing test permits the trial court to exclude the admissible evidence of
other acts “ ‘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.’ ” Id.; Watkins, 491 Mich at 481. This Court has
described the proper approach under MRE 403 as follows:

       [T]his Court must make two distinct inquires under the balancing test of MRE 403.
       First, this Court must decide whether introduction of . . . prior-bad-acts evidence at
       trial was unfairly prejudicial. Then, this Court must apply the balancing test and
       “weigh the probativeness or relevance of the evidence” against the unfair prejudice.


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       Upon completion of this second inquiry, this Court can determine whether the trial
       court abused its discretion in allowing . . . prior bad acts into evidence. [People v
       Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (footnote omitted).]

“[U]nfair prejudice refers to the tendency of the proposed evidence to adversely affect the
objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock.” People v Pickens, 446 Mich 298, 337; 521 NW2d 797
(1994) (citations omitted). The analysis under Rule 403 often involves the balancing of several
factors, including the following: (1) the “time required to present the evidence and the possibility
of delay,” (2) “whether the evidence is needlessly cumulative, how directly the evidence tends to
prove the fact for which it is offered,” (3) “how essential the fact sought to be proved is to the
case,” (4) “the potential for confusing or misleading the jury,” and (5) “whether the fact can be
proved in another manner without as many harmful collateral effects.” People v Blackston, 481
Mich 451, 462; 751 NW2d 408 (2008). The Michigan Supreme Court has likewise identified the
following factors as being relevant to the analysis:

       (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. [Watkins, 491 Mich at
       487-488.]

In weighing these factors, courts should “weigh in favor of the evidence’s probative value the
extent to which the other-acts evidence supported the victim’s credibility and rebutted the
defense’s attack thereof.” Id. at 492. Moreover, as the Michigan Supreme Court has explained,
“when applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the
propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.”
Id. at 487. Consequently, “other acts evidence admissible under MCL 768.27a may not be
excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity
inference.” Id.

        In this case, evidence of defendant’s sexual assaults against the victim before and after the
charged crimes was highly probative of the prosecution’s case. First and foremost, the other acts
committed while the victim was still a minor could be used under MCL 768.27a to show that
defendant had a propensity to commit such acts against minors. Moreover, the evidence of other
acts during the victim’s childhood into her adulthood demonstrated that defendant had pursued his
sexual interest in the victim for practically her entire life. Likewise, this evidence directly
undermined the defense theory that, although defendant admitted to inappropriately touching the
victim, he never engaged in penetration. With the other acts evidence, the prosecution was able to
present evidence that defendant had engaged in penetration over a several-year period, including
penetration with both his fingers and his penis. It additionally demonstrated that defendant made
attempts to conceal penetration.

       Contrary to defendant’s assertions, the record does not reflect that the other acts evidence
“dominated” the trial or that the evidence was unfairly prejudicial. Instead, the specific details
regarding the assaults at issue were established, and then the other acts evidence was relied on to


                                                -3-
demonstrate that these were simply some of the instances that were part of defendant’s sexual
attraction for, and lengthy history of assaults against, the victim. Nothing in the record supports
the notion that the evidence under MRE 404(b) and MCL 768.27a “warped the jury,”
“overshadowed the actual facts of this case and [the victim’s] spotty memory,” “misled the jury
and placed undue weight on the impact of these other acts,” or “guaranteed that the jury would be
diverted from a rational consideration of [the victim’s] testimony.” Indeed, all of the relevant
factors generally weigh in favor of admitting the other acts evidence. To begin, the other acts and
the acts at issue were similar and part of the same pattern. Also, they were within a pertinent time
frame of the acts at issue because they were all part of defendant’s long-term sexual interest in the
victim. Additionally, there were no intervening acts, the other acts evidence was equally as strong
as the evidence of the acts at issue, and the other acts evidence played a crucial role in the
prosecution’s case because this matter ultimately came down to a credibility contest. Id.

        Moreover, the prosecutor did not rely on the other acts evidence during her opening and
closing arguments to assert that defendant was a bad person. And the trial court instructed the jury
to “be very careful to consider it for only one limited purpose, that is, to help you judge the
believability of testimony of [the victim] regarding the acts for which the defendant is now on
trial” and to “not convict the defendant here solely because you think he’s guilty of other bad
conduct.” This Court presumes that this instruction was, in fact, followed. See, e.g., People v
Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003) (“Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.”). Accordingly, we find no error
warranting relief with respect to this issue.

                       B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Between his principal brief on appeal and his pro se brief filed pursuant to Administrative
Order No. 2006-4, Standard 4, defendant identifies four alleged instances of ineffective assistance
of counsel. He moved for a remand in this Court, which was denied; therefore, “[this Court’s]
review is limited to mistakes apparent on the record.” People v Payne, 285 Mich App 181, 188;
774 NW2d 714 (2009). “The determination whether a defendant has been denied the effective
assistance of counsel is a mixed question of fact and constitutional law.” People v Seals, 285 Mich
App 1, 17; 776 NW2d 314 (2009), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). Findings of fact are reviewed for clear error, and questions of constitutional law are
reviewed de novo. Id.

        To prevail on an ineffective-assistance argument, “[a] defendant must first show that
defense counsel’s performance was deficient and, second, that counsel’s deficient performance
prejudiced the defense.” Payne, 285 Mich App at 188 (citations and internal quotation marks
omitted). The issue “[w]hether defense counsel’s performance was deficient is measured against
an objective standard of reasonableness.” Id. (citation omitted). And “[t]o demonstrate prejudice,
the defendant must show the existence of a reasonable probability that, but for counsel’s error, the
result of the proceeding would have been different.” Id. at 188-189 (citation and internal quotation
marks omitted).




                                                -4-
                                     1. JURY INSTRUCTION

        Defendant first argues that defense counsel failed to request a lesser-included offense jury
instruction on CSC II with respect to the CSC I charge. However, CSC II is not a lesser included
offense of CSC I. See, e.g., People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997)
(holding that CSC II is a cognate lesser offense of CSC I “because CSC II requires proof of an
intent not required by CSC I—that defendant intended to seek sexual arousal or gratification”).
Because it is a cognate lesser offense, not a necessarily included lesser offense, defendant’s
argument that a CSC II instruction was required fails. “Instructions on cognate lesser offenses are
not permitted.” People v Lowery, 258 Mich App 167, 173; 673 NW2d 107 (2003). Accordingly,
defendant has not established that counsel’s performance was deficient in this regard.

                                      2. JURY SELECTION

        Defendant also argues defense counsel should have ensured the removal of Juror 153 who
disclosed that she “was sexually assaulted by a friend probably six years ago.” However, this juror
repeatedly stated that her experience would have no impact on this case, that she had “[n]o
concerns” with her ability to be fair, that defendant was presumed innocent, that this case would
not open up any wounds from the prior incident, that she would judge all of the elements fairly,
and that she would support a not guilty verdict if the necessary elements were not established.
Nothing in the record indicates that Juror 153 was biased in any way. Moreover, a “juror’s promise
to keep the matters of her personal life separate from defendant’s case [i]s sufficient to protect
defendant’s right to a fair trial.” People v Johnson, 245 Mich App 243, 256; 631 NW2d 1 (2001).
When a juror asserts that he or she can be fair, and the trial court accepts that assurance, there can
be “no reasonable probability that the outcome of the case would have been different” had that
juror been struck. Id. at 259-260. Furthermore, “an attorney’s decisions relating to the selection
of jurors generally involve matters of trial strategy, which [appellate courts] normally decline to
evaluate with the benefit of hindsight.” Id. at 259. There is nothing in the record to support
defendant’s assertion that Juror 153 was biased or that defense counsel made a tactical mistake,
much less an unreasonable one, in declining to strike Juror 153. Accordingly, defendant has
established neither his attorney’s deficient performance nor the requisite prejudice to support an
ineffective assistance of counsel claim.

                                     3. MEDICAL RECORDS

        In his Standard 4 brief, defendant asserts that defense counsel should have investigated the
victim’s medical records. According to defendant, these records would have demonstrated “that
her hymen was still intact and undisturbed” before leaving for college and that the victim’s cutting
herself was not related to his sexual assaults against her. Factually, defendant has not provided
any evidence to show that any records existed that would have established these matters.
Moreover, he has not demonstrated that such evidence would prove a lack of penetration.
Defendant’s failure to adequately support the factual predicate of his argument constitutes
abandonment. See, e.g., 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 . . . .”). Not surprisingly, defendant has also not cited any
caselaw to support the notion that CSC I might require proof of a ruptured or disturbed hymen.
Again, his failure to do so constitutes abandonment of the issue. Kelly, 231 Mich App at 640-641


                                                 -5-
(explaining that a defendant may not “give only cursory treatment with little or no citation of
supporting authority” to the issues that he or she raises on appeal).

        Moreover, this Court has routinely declined to substitute its judgment for that of counsel
on matters of trial strategy, including decisions regarding which evidence to present. People v
Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). “[D]ecisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy[.]” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (citation, internal
quotation marks, and one alteration omitted). Ultimately, “the failure to call witnesses only
constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense.”
Id. Had trial counsel investigated the victim’s medical records and identified records supporting
defendant’s assertions, defendant would only have been able to establish an outcome-
determinative failure if trial counsel had failed to present that evidence at trial. But such a decision
would have been precisely the type of strategic decision envisioned. Further, it cannot be said that
such a strategic decision deprived defendant of a substantial defense given the absence of any
indication that a nonruptured or undisturbed hymen would support a defense to CSC I.

                                4. POLYGRAPH EXAMINATION

        Defendant’s last ineffective-assistance argument focuses on his assertion that defense
counsel should have been present for his polygraph examination. Although primarily faulting
counsel for not being there, he also takes issue with law enforcement’s decision to conduct the
polygraph without counsel, its decision to ask him questions before beginning the examination,
and its failure to tell him that his high blood pressure and heart condition could impact his results.
According to defendant, these actions violated his constitutional rights.

        The right to counsel is guaranteed under both the United States Constitution and the
Michigan Constitution. See US Const, Am V, Am VI; Const 1963, art 1, §§ 17, 20. This right
attaches once criminal proceedings have been initiated and is operative at all “critical stages” of
the proceeding, which certainly includes situations where a criminal defendant is questioned by
law enforcement. Montejo v Louisiana, 556 US 778, 786; 129 S Ct 2079; 173 L Ed 2d 955 (2009).
Once the right attaches, however, it may be waived: “Our precedents also place beyond doubt that
the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment
of the right is voluntary, knowing, and intelligent.” Id.

        Here, it is undisputed that defendant did, in fact, waive his right to counsel before
answering questions at the polygraph examination. Moreover, defendant’s admissions during his
polygraph examination were duplicative of other testimony and evidence, including defendant’s
e-mail to the victim, that corroborated the victim’s testimony about the alleged assaults.
Consequently, even if this evidence had been excluded, nothing supports the notion that the result
of the proceeding would have been any different. Payne, 285 Mich App at 188-189. Accordingly,
defendant has failed to establish ineffective assistance of counsel.

                              C. PROSECUTORIAL MISCONDUCT

      Defendant next argues that the prosecutor committed misconduct during closing argument.
“Claims of prosecutorial misconduct are generally reviewed de novo to determine whether the


                                                  -6-
defendant was denied a fair trial.” People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243
(2013). However, where, as here, a defendant fails to object, “unpreserved claims of prosecutorial
misconduct are reviewed for plain error.” People v Watson, 245 Mich App 572, 586; 629 NW2d
411 (2001).

       “Generally, [p]rosecutors are accorded great latitude regarding their arguments and
conduct.” People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (citation and internal
quotation marks omitted). This means that they can “argue the evidence and all reasonable
inferences from the evidence as it relates to [their] theory of the case.” Id. (citations and internal
quotation marks omitted). However, “prosecutors should not resort to civic duty arguments that
appeal to the fears and prejudices of jury members or express their personal opinion of a
defendant’s guilt, and must refrain from denigrating a defendant with intemperate and prejudicial
remarks.” Id. Issues of prosecutorial misconduct are considered “on a case-by-case basis by
examining the record and evaluating the remarks in context, and in light of defendant’s
arguments.” Thomas, 260 Mich at 454.

         Defendant first points to the prosecutor’s argument that it was “appalling” for defendant to
suggest that the victim did not remember the sexual assaults at issue in this case. In response to
defense counsel’s closing argument that the victim was “not a particularly good historian about
where this thing, this digital penetration occurred,” the prosecutor argued that it was “appalling”
to suggest that she could not “remember” and “must be mistaken” about digital penetration,
emphasizing that the victim actually recalled quite a few details about all of the assaults she
testified about. A prosecutor’s remarks are to be taken in light of the defendant’s arguments.”
People v Ackerman, 257 Mich App 434, 453-454; 669 NW2d 818 (2003) (citation and internal
quotation marks omitted). Here, there was nothing improper about calling the defense attempt to
impeach the victim’s credibility “appalling.” Although that adjective may be a bit colorful,
prosecutors are not required to “phrase [their] argument in the blandest of all possible terms.”
People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989) (citations omitted). Rather, they
are prohibited from “inflaming the prejudices of a jury,” but are, in fact, required to advocate and
“vigorously argue” on behalf of the people. Id. That is precisely what the prosecutor did here.
And, even if the word “appalling” was too colorful, this Court has recognized that such a brief
expression of frustration, in the context of an argument and trial as a whole, is “too fleeting and
unremarkable to constitute an obvious error that denied defendant a fair trial.” People v
McLaughlin, 258 Mich App 635, 647; 672 NW2d 860 (2003).

        The second comment is equally unremarkable in context. The prosecutor argued that the
victim “could have been on the stand for three days, if not longer, given all the abuse that she
endured.” Again, this was directly responsive to the defense argument that the victim’s statements
to law enforcement were inconsistent with her testimony at trial, which expressly included
assertions that the victim failed to disclose certain details. See Ackerman, 257 Mich App at 453-
454. The prosecutor was simply asserting that there was a reasonable explanation for the fact that
the victim’s disclosures to law enforcement and her trial testimony may not have been exhaustive
of every single detail about every single instance of abuse.

       Additionally, contrary to defendant’s argument, the circumstances presented here are not
comparable to those presented in People v Dalessandro, 165 Mich App 569; 419 NW2d 609
(1988). In that case, the prosecutor called the defense’s theory “a sham,” “a sham meant to mislead


                                                 -7-
you,” “a bunch of lies,” “disreputable,” “lies,” and various other things. Id. at 579. This Court
described that argument as one that “attacked defense counsel and suggested to the jury that
defense counsel was intentionally trying to mislead the jury.” Id. at 580. The prosecutor also
impermissibly asked the jury to sympathize with the victim. Id. at 581. The prosecutor’s two
unremarkable comments at issue here are simply not comparable to those at issue in Dalessandro.

                                      III. CONCLUSION

       “A defendant is entitled to a fair trial, not a perfect one.” People v Solloway, 316 Mich
App 174, 201; 891 NW2d 255 (2016). In our view, defendant received a fair trial. For all of the
reasons set forth above, we reject defendant’s appellate arguments and affirm his convictions and
sentences.

       Affirmed.



                                                           /s/ Jane M. Beckering
                                                           /s/ David H. Sawyer
                                                           /s/ Michael F. Gadola




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