           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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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 19, 2019
              Plaintiff-Appellee,

v                                                                  No. 343484
                                                                   Livingston Circuit Court
PANAGIS SYRIGOS,                                                   LC No. 17-024535-FH

              Defendant-Appellant.


Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

        Defendant was convicted, following a jury trial, of two counts of second-degree criminal sexual
conduct (CSC II), MCL 750.520c(1)(a) (victim under 13 years of age); MCL 750.520c(1)(b)(ii)
(offender related to the victim), and two counts of assault with intent to commit CSC II, MCL
750.520g(2). He was sentenced to serve concurrent terms of 4 to 15 years in prison for the CSC II
convictions and 2 to 5 years in prison for the assault convictions. Defendant appeals as of right, and we
affirm.

                                           I. BASIC FACTS

        The complainant, MU, lived in Michigan with her mother. She liked to visit with her aunt and
uncle, defendant, a couple times a month. During the visits, they would make crafts, visit antique stores
and parks, watch movies, and play video games. When the complainant was 15-years old, she was
playing video games with defendant when he took her hand and placed it on his upper thigh. The
complainant returned her hand to her phone, but defendant kept moving her hand back to his lap,
making her feel confused and uncomfortable. Later that day, defendant took the complainant’s feet,
rubbed them, and placed them closer to his groin until her feet touched his erect penis. The complainant
left to go to the bathroom and sat further away from defendant when she returned. Additionally, at a
Mardi Gras party at defendant’s home, defendant touched the complainant’s thigh and moved his hand
to her rear end and “rubbed it in circles,” although there were other people present. Finally with regard
to charged conduct, the complainant testified she was seated next to defendant on a futon when her aunt
left to pick up a pizza. Defendant began to tickle the complainant. When her shirt rose up, defendant
began to rub her stomach and moved his hand toward her vagina.



                                                   -1-
        The complainant also testified regarding an uncharged act when she attended a movie with
defendant, and he moved the armrest to touch her thigh and her vagina with one hand and “cupped” her
breast with the other. The complainant currently lived in Arkansas after asking to live with her father.
Eventually, the complainant disclosed defendant’s conduct to a teacher after having a nightmare that she
told her parents of the abuse, but they did not believe her, and defendant’s abuse continued. Although
defendant did not testify, his counsel proffered that the complainant’s inability to recall certain details,
such as the name of the movie that she saw, indicated that the conduct described was merely a dream,
and it was implausible that defendant would engage in such conduct in the presence of others. Despite
this theory, defendant was convicted as charged.

                           II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first alleges that the trial court violated his due process rights because the 16-year old
complainant was permitted to testify when accompanied by a support dog, contrary to statutory
authority, and that counsel was ineffective for failing to object. Defendant also contends that trial
counsel was ineffective for failing to exercise a peremptory challenge to remove a juror that was a
victim of child sexual abuse. We disagree.

        “Whether a defendant received ineffective assistance of trial counsel presents a mixed question
of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
“Generally, this Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of law.” People v Lane, 308 Mich App 38, 67-68; 862 NW2d 446 (2014). Because there was
no Ginther1 hearing held in the trial court, appellate review is limited to mistakes apparent on the record.
People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

        To demonstrate that trial counsel was not effective, the defendant must show “(1) that defense
counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable
probability that counsel’s deficient performance prejudiced the defendant.” Lane, 308 Mich App at 68.
“There is a presumption that defense counsel was effective, and a defendant must overcome the strong
presumption that counsel’s performance was sound trial strategy.” People v Johnson, 293 Mich App 79,
90; 808 NW2d 815 (2011). “Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d
120 (2010). The burden of establishing the factual predicate for a claim of ineffective assistance is on
the defendant. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                                           A. SUPPORT DOG

        We first note that defendant waived his due process claim of error by affirmatively approving the
trial court’s decision to allow the complainant to testify while accompanied by the support dog in
conjunction with a jury instruction regarding the lack of consideration given to the presence of the
animal. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). Furthermore, defendant’s
ineffective assistance of counsel claim is without merit.



1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                    -2-
         In People v Johnson, 315 Mich App 163, 171, 175-178; 889 NW2d 513 (2016), this Court held
that, although a Michigan statute permitted the use of a support “person” to accompany a witness, the
trial court had the inherent authority to control courtroom procedure and allow a support animal “to ease
the situation for a traumatized or fearful young witness while at the same time allowing the jury and the
defendant to view the witness while testifying.” The Johnson Court also rejected a challenge to the
effective assistance of counsel on due process grounds. Id. at 179-182. The Court noted that courtroom
procedures may be deemed inherently prejudicial, but where there was no indication that the support dog
was visible to the jury, no indication that the dog barked, growled or otherwise interrupted the
proceedings, or made his presence known to the jury, such that a challenge to a due process violation by
counsel would have been meritless. Id. at 181-182.

        Similarly, in the present case, the trial court arranged for the then 16-year old complainant to
take the stand with the support dog. The dog’s handler was off to the side, approximately ten feet away.
According to the trial court, the dog would not be visible to the jury unless possibly it wagged its tail.
The trial court instructed the complainant and the dog’s handler not to stand up for the jury’s entrance to
avoid disrupting the dog. Finally, when the jury entered the courtroom, the trial court gave an
instruction regarding the purpose of the dog in relationship to the witness and the lack of consideration
the jury should give the dog. Under the circumstances, defense counsel’s objection to the use of the
support animal on due process grounds would have been meritless.

        Defendant further contends that the permitted use of a support animal was limited by this Court
in People v Shorter, 324 Mich App 529, 542; 922 NW2d 628 (2018), to prohibit “a fully abled adult
witness” from being accompanied by a support animal while testifying. Additionally, the Legislature
amended MCL 600.2163a(4) to provide for the use of both support persons and support animals, but
limited their use to witnesses under the age of 16, over the age of 16 with a developmental disability, or
a vulnerable adult, MCL 600.2163a(1)(g). Because the complainant had turned 16-years old two
months before trial commenced, defendant contends the Shorter decision as well as MCL
600.2163a(1)(g) require reversal and remand for a new trial without the use of a support animal.

       However, we apply the law in effect at the time defendant committed the crime. See People v
Becoats, 181 Mich App 722, 727; 449 NW2d 687 (1989). The complainant estimated that the incidents
occurred between the ages of 13 and 15 years old, and utilized seasons and holidays to place the
occurrences in context.2 The Johnson decision was issued on April 9, 2016. Defendant was tried on
February 26-27, 2018, when the complainant was 16-years and two months old. The Shorter decision
was issued on June 7, 2018. Furthermore, the Legislature amended MCL 600.2163a effective January
14, 2019, to expressly allow for the use of support animals and to limit witness usage by age,
developmental disability, and vulnerability. Thus, at the time of defendant’s trial, the Johnson Court
was the prevailing authority on the use of support animals and provided that an animal’s use was



2
  Because of the complainant’s estimation of the date of the offenses, we cannot conclude the exact date
of every charged crime, however, time is not of the essence or a material element in criminal sexual
conduct cases where the victim is a child. People v Dobek, 274 Mich App 58, 83; 732 NW2d 546
(2007). More importantly, on appeal, defendant relies on changes to the law that were decided after the
trial was held in this case.


                                                    -3-
appropriate “to ease the situation for a traumatized or fearful young witness.” In the present case, the
complainant testified to sexual acts when she was between the ages of 13 and 15, and the offender was
her uncle. Additionally, her report of the sexual assaults divided her family. In light of the trial court’s
inherent authority to control courtroom procedure and allow the support animal in accordance with the
applicable caselaw available at the time, we find no error. Therefore trial counsel was not ineffective
under the circumstances.

                                         B. JURY SELECTION

         Trial counsel was also not ineffective for failing to peremptorily excuse “juror M.” During jury
selection, several jurors disclosed that they were child victims of sexual assault or their own children
had been the victims of sexual assault during childhood. During juror introductions, “juror J” became so
upset he was called to the bench and excused from the proceedings. During juror questioning of the
ability to be impartial, “juror S” disclosed that his two-year child was molested by a relative, but opined
that he could nonetheless remain impartial. Additionally, “juror ES” disclosed that she had been
assaulted at age 13, her attacker was never prosecuted, and she could not sit on this jury. “Juror R”
disclosed that she adopted children that were abused by their biological parents, and she could not set
aside prejudice under the circumstances. “Juror K” disclosed that she was abused as a child and could
not be certain that she would be impartial. Thus, the court dismissed four of these potential jurors for
cause in light of their emotional responses. However, “juror M,” challenged in this appeal, also
disclosed that she had been the victim of sexual assault as a child, but was nonetheless selected to serve
during the trial. “Juror M” stated that although she was sexually assaulted when she was an elementary
school-aged child, it did not affect her ability to be impartial towards either party. Defense counsel later
followed up by asking “juror M” how she felt when she heard what the subject of the case would be, and
she responded “Nothing . . . heart wrenching or anything like that,” and further indicated that she felt she
had put the matter behind her “20 years ago” when she was a college student.

       Moreover, defendant’s claim that trial counsel was ineffective for failing to dismiss “juror M” is
not supported by the record. Trial counsel asked additional questions of the juror after she was
questioned by the trial court, and apparently, he reasonably believed that her responses were truthful.
Given counsel’s reaction to the other jurors who disclosed similar information, it appears that counsel
was deliberate and made an individualized evaluation and determined that “juror M” could be fair. It
was not unreasonable for trial counsel to have determined that it made strategic sense to keep “juror M,”
as she not only disclosed that she had been assaulted but also indicated that she felt she had “moved
beyond” the experience and did not have an emotional reaction to the subject of the case. The record
does not show that trial counsel was ineffective during jury selection.

                                     III. OTHER ACTS EVIDENCE

       Next, defendant alleges that the trial court improperly admitted evidence pursuant to MCL
768.27a of an uncharged incident of sexual contact, and the overwhelming prejudice of this evidence
requires reversal. We disagree.

        The trial court’s decision to admit other-acts evidence is reviewed for an abuse of discretion.
People v Henry, 315 Mich App 130, 140; 889 NW2d 1 (2016). MCL 768.27a provides that in sexual
assault cases, “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.” In People v

                                                    -4-
Watkins, 491 Mich 450, 475; 818 NW2d 296 (2012), our Supreme Court held that MCL 768.27a
irreconcilably conflicted with MRE 404(b), and that the statute prevailed over the court rule. However,
the Court stated that the statute remained subject to MRE 403. While the MRE 403 analysis included a
propensity analysis, the possibility that the jury might conclude that the defendant had a propensity did
not weigh against admission. Id. at 486-487. Further, the Court stated that in determining whether this
evidence should be excluded under MRE 403 as overly prejudicial, a court should consider:

       (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. This list of considerations is meant to be
       illustrative rather than exhaustive. [Id. at 487-488.]

        In the instant case, defendant claims that the complainant’s testimony regarding the incident in
the movie theater was “minimally relevant” to the charged offenses and likely caused the jury to convict
defendant in what was otherwise a “relatively weak” case. Although defendant correctly notes that the
trial court did not conduct an extensive propensity analysis of the evidence on the record, the trial court
did not abuse its discretion by admitting the evidence pursuant to MCL 768.27a, MRE 403, and Watkins.

        At trial, defendant argued that the complainant’s claims that he had touched her breast and
vaginal area at the movie theater were “more serious” than the conduct that formed the basis of the
charged offenses, and thus was more prejudicial than probative of the charged offenses. This argument
is not persuasive. The incidents underlying the charged offenses included conduct that was prohibited
under the statute, as did the incident at the movie theater. See MCL 750.520a(f), (q); MCL 750.520c.
The complainant testified that when she was at defendant’s home, he repeatedly placed her hand on his
upper thigh; rubbed her feet against his (clothed) penis; touched, rubbed, and grabbed her buttocks;
touched and rubbed her “bare” stomach; and put his hand beneath the waistband of her leggings. Thus,
the record clearly supports a finding that the incident in Ann Arbor was quite similar to the charged
incidents. Accordingly, it was not unfairly prejudicial for this reason.

       Similarly, it does not seem likely that the jury confused the issues or was misled by the other-acts
evidence. See MRE 403. The evidence was similar enough to the charged conduct that it was not likely
the jury was confused about the issues before them, and defendant cites no such record evidence.
Further, the court tried to mitigate any confusion when it instructed the jury that if it found that the
defendant had committed the other acts, it could “consider them in deciding if the defendant committed
[the] offenses for which” he was on trial, but could not find him guilty solely on the basis of its
conclusions regarding the other-acts evidence. Lastly, the record does not support a finding that the
evidence should have been excluded based on “considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” See MRE 403.

         Defendant argues that the other acts differed from the charged offenses too much to be
admissible based on the considerations set forth in Watkins. We are not persuaded by this argument.
First, the movie theater incident occurred during the same time period as some of the charged offenses.
See Watkins, 491 Mich at 487. The complainant testified that two of the incidents underlying the
charged offenses occurred when she was visiting defendant and other relatives in Michigan in December
2016, when she was 15 years old, while all of the other incidents underlying the charged offenses, as

                                                    -5-
well as the other-acts incident, occurred between 2013 and 2015, when she was a middle school student
in Michigan. Thus, some of the charged offenses occurred in close temporal proximity to the other acts
incident. See id.

        Next, the Court in Watkins suggested that courts should consider whether other-acts evidence
should be excluded under MRE 403 based on the “infrequency” of the acts. Watkins, 491 Mich at 487.
While the particular form of sexual contact described by the complainant in her testimony regarding the
other-acts evidence only occurred during that incident, all of the incidents were sufficiently similar in
nature that the court was not required to exclude the evidence based on “the infrequency of the other
acts.” Id. Additionally, the complainant testified that the other acts incident occurred the day after one
of the incidents that resulted in the charged offenses. Thus, there were no intervening acts that would
cause a court to conclude that the evidence was not admissible pursuant to MRE 403. See id.

         Finally, the Court in Watkins stated that a trial court should consider the reliability of the
evidence and the “lack of need for evidence beyond the complainant’s and the defendant’s testimony” in
deciding whether to admit the other-acts evidence. Watkins, 491 Mich at 487-488. These considerations
are not directly applicable in the instant case. The only evidence presented concerning the charged
offenses or the other acts incident was the complainant’s testimony. Defendant exercised his right not to
testify, and no other evidence was presented by the defense. Thus, there was no issue regarding the
“reliability” of the other acts evidence that would not also apply to evidence of the charged offenses.
Because the reliability of the evidence rested on the complainant’s credibility, this was an issue that the
court properly left for the jury to decide. See People v Musser, 494 Mich 337, 349; 835 NW2d 319
(2013). Thus, the trial court did not abuse its discretion by admitting the other-acts evidence.

                                IV. PROSECUTORIAL MISCONDUCT

       Finally, defendant submits that the prosecutor committed misconduct in her closing argument by
improperly commenting on defendant’s right not to testify and thereby shifted the burden of proof from
the prosecution to defendant. We disagree.

        While discussing the complainant’s testimony that defendant had placed her hand on his upper
thigh, the prosecutor stated, “There’s no evidence to contradict that. She wasn’t impeached on it. No
one ever questioned whether or not the count was true.” Defendant argues that these statements
improperly suggested that he should have presented evidence or testified in his own defense to counter
the complainant’s testimony. Defense counsel did not the object to the closing argument. Unpreserved
claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights. People v
Norfleet, 317 Mich App 649, 660 n 7; 897 NW2d 195 (2016). “Reversal is warranted only when plain
error resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings, independent of defendant’s innocence.” People v
Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003). Where a curative instruction would
have alleviated the prejudicial effect of any prosecutorial questioning or comment, error requiring
reversal has not occurred. Id. at 449. Instances of prosecutorial misconduct are to be evaluated “on a
case-by-case basis, reviewing the prosecutor’s comments in context and in light of the defendant’s
arguments.” Lane, 308 Mich App at 62-63.

       Citing People v Centers, 141 Mich App 364, 377-378; 367 NW2d 397 (1985), defendant
contends that a prosecutor exceeds the bounds of proper argument when she argues that the evidence

                                                    -6-
was not contradicted or explained if contradiction or explanation could only come from the defendant.
However, after Centers was decided, a panel of this Court held that a prosecutor may comment that
evidence is undisputed or uncontradicted, even where the defendant is the only person who could
provide contradictory testimony. See People v Guenther, 188 Mich App 174, 177; 469 NW2d 59
(1991). Essentially, a prosecutor is prohibited from arguing that a defendant’s silence is evidence of his
guilt. People v Fields, 450 Mich 94, 110-111; 538 NW2d 356 (1995). “Although a defendant has no
burden to produce any evidence, once the defendant advances evidence or a theory, argument on the
inferences created does not shift the burden of proof.” Id. at 115. Therefore, the prosecutor may
comment or observe that the evidence against the defendant is uncontroverted or undisputed. Id.

        When considered in context, the prosecutor in this case did not comment upon defendant’s
silence or suggest that it was evidence of his guilt. Rather, the statements highlighted the fact that the
complainant was not impeached by her prior statements during cross-examination and that no other
evidence had contradicted her. The prosecutor also noted that on cross-examination, the only
discrepancies or inconsistencies that defense counsel was able to find in the complainant’s story were
questions regarding whether she had previously testified that defendant had put his hand “at the
waistband or below the waistband,” and whether during prior testimony she had previously referred to a
“nightmare” as a “dream.” Viewed in context, the prosecutor’s statements were not improper
commentary upon defendant’s constitutional right not to testify. The statements constituted proper
argument that based on the evidence, the jury should decide that the complainant was credible.
Moreover, after citing to the lack of contrary evidence, the prosecutor noted that the jury still had to
conclude whether it believed the complainant’s testimony.

       Affirmed.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Deborah A. Servitto




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