                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 16, 2014
               Plaintiff-Appellee,

v                                                                  No. 317905
                                                                   Midland Circuit Court
WALTER WESLEY ANSCHUTZ, JR.,                                       LC No. 12-005161-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and CAVANAGH and METER, JJ.

PER CURIAM.

        Defendant Walter Wesley Anschutz, Jr., appeals by right his jury convictions of first-
degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b), and second-degree criminal
sexual conduct (CSC II), MCL 750.520c(1)(b). The trial court sentenced Anschutz to serve
concurrent terms of 96 months to 25 years in prison for the CSC I conviction and 38 months to
15 years for the CSC II conviction. Because we conclude there were no errors warranting relief,
we affirm.

                                       I. BASIC FACTS

         The complainant, Anschutz’ daughter, who was sixteen years old at the time of trial,
testified that her father touched her inappropriately on three separate occasions between the fall
of 2011 and winter of 2012. The first incident occurred when she was in her bedroom at night.
He walked in and touched her in the area of her vagina over her pajamas. About six months
later, he touched the inside of her vagina with his finger “for a few seconds.” The third incident
occurred when her father walked into her bedroom and touched her breast over her clothing. The
complainant told a friend and a school counselor, which ultimately led to an investigation and the
charges at issue.

                           II. SUFFICIENCY OF THE EVIDENCE

        Anschutz first argues the evidence was insufficient to support his convictions because the
complainant was not credible and the only other evidence admitted at trial was his statement,
which was inadmissible under the corpus delicti rule. This Court reviews a challenge to the
sufficiency of the evidence by reviewing “the record evidence de novo in the light most
favorable to the prosecution to determine whether a rational trier of fact could have found that


                                               -1-
the essential elements of the crime were proved beyond a reasonable doubt.” People v Roper,
286 Mich App 77, 83; 777 NW2d 483 (2009).

         Anshutz’ argues that his daughter’s trial testimony had so many internal inconsistencies
and her prior statements were so inconsistent that the jury should have disregarded them.
However, Anschutz’ citations refer to consistent testimony or inconsistencies that are immaterial.
The prior inconsistent statements involve testimony where the complainant claimed during her
initial forensic interview that Anschutz had not touched her inappropriately and stated during a
subsequent forensic interview that he had inappropriately touched her regularly for a year. She
acknowledged at trial that she was not honest during the first forensic interview; she stated that
she lied because she did not want her father to be taken away from her and also because he had
promised not to touch her again. After the interview, he broke his promise, so she then stated in
her second forensic interview that the abuse had occurred more often than it had because she
wanted to make sure he would be removed from her family’s home. Although she admitted that
she had not been truthful in the prior interviews, it was not unreasonable for the jury to find her
credible:

               “[An appellate court] must remember that the jury is the sole judge of the
       facts. It is the function of the jury alone to listen to testimony, weigh the evidence
       and decide the questions of fact. . . . Juries, not appellate courts, see and hear
       witnesses and are in a much better position to decide the weight and credibility to
       be given to their testimony.” [People v Wolfe, 440 Mich 508, 514-515; 489
       NW2d 748 (1992), quoting People v Palmer, 392 Mich 370, 375-376; 220 NW2d
       393 (1974).]

       A rational trier of fact could believe the complainant’s explanations and her testimony
about the events at issue. And viewing the testimony in the light most favorable to the
prosecution, her testimony was sufficient to establish the elements for both convictions. Roper,
286 Mich App at 83.

         Anschutz also argues that, under the corpus delicti rule, the prosecution had to prove the
elements of the offense on the basis of the complainant’s testimony before introducing his
statements to officers. The purpose of the corpus delicti rule is to prevent a defendant’s
confession from being used to convict him or her of a crime that did not actually occur. People v
Konrad, 449 Mich 263, 269; 536 NW2d 517 (1995). Under the rule, a prosecutor may not admit
a defendant’s confession “unless there is direct or circumstantial evidence independent of the
confession establishing (1) the occurrence of the specific injury . . . and (2) some criminal
agency as the source of the injury.” Id. at 269-270. Here, there was adequate independent
evidence to establish the occurrence of the criminal sexual conduct and the criminal agency—
namely, Anschutz’ daughter’s testimony. Therefore, the trial court did not violate the corpus
delicti rule by allowing the prosecutor to show the jury the videotape of Anschutz’ interview or
by admitting his written statement confessing that he had touched his daughter’s “privates.”




                                                -2-
                  III. DEFECTIVE NOTICE; INEFFECTIVE ASSISTANCE

        Anschutz next argues that he was prejudiced by a lack of specificity of the dates for the
offenses given in the information. According to him, the range of dates given was so long that
he was effectively denied notice and the ability to present a defense. He similarly argues that his
trial lawyer’s failure to object to the information or move to separate the charges amounted to
ineffective assistance of counsel.

       The prosecution gave notice in the original information that the charged offenses, one
count of CSC II and one count of criminal sexual conduct in the third degree, occurred between
January 1, 2010 and May 31, 2012. In the amended information, the prosecution charged
Anschutz with two additional counts of CSC I, and provided that the offenses were committed in
“1996 & 2010-2012.” Anschutz maintains he was denied his constitutional right to present a
defense—such as alibi—and denied the ability to present “details” to counter the complainant’s
version of events given the length of time alleged in the information.

        An Information must include “(a) [t]he nature of the offense stated in language which
will fairly apprise the accused and the court of the offense charged;” and “(b) [t]he time of the
offense as near as may be. No variance as to time shall be fatal unless time is of the essence of
the offense.” MCL 767.45(1). “Time is not of the essence, nor is it a material element, in
criminal sexual conduct cases involving a child victim.” People v Dobek, 274 Mich App 58, 83;
732 NW2d 546 (2007). In addition, Anschutz’ desire to provide an alibi defense does not “make
time of the essence.” Id. The information met the minimum requirements under the statute and
the length of time at issue did not prejudice Anschutz.

       Anshutz also argues that he was denied his due process right to adequate notice because
he was charged with just two counts of CSC, while his daughter testified that he engaged in three
instances. He does not explain how the number of counts denied him proper notice of the
charges against him. The amended information adequately lists each count and describes the
nature of the allegations.

        He also argues that he was denied his constitutional right to separate trials on the
individual charges and that his lawyer’s failure to move to sever the charges amounted to
ineffective assistance. According to Anschutz, joinder was not appropriate because the
information did not specify that all of the charges arose out of the same transaction, and because
the complainant did not claim that the charged incidents occurred on the same day. His
argument rests on an apparent misunderstanding of law, as the incidents underlying charges need
not be alleged to have occurred on the same day in order to be tried together.

        Joinder is appropriate if the offenses are related, meaning that they are based on “(a) the
same conduct or transaction, or (b) a series of connected acts, or (c) a series of acts constituting
parts of a single scheme or plan.” MCR 6.120(B)(1). Here, the complainant testified that she
was alone in her bedroom during two of the incidents when Anschutz came in and touched her
inappropriately. Each incident occurred in the family home, and she testified that her parents
played loud music and drank alcohol before each time. This testimony was sufficient to connect
the acts as part of a single scheme; therefore, joinder was appropriate. Id.


                                                -3-
        The joinder also did not prejudice Anschutz. Our Supreme Court has held that joinder is
not a constitutional right. People v Williams, 483 Mich 226, 241; 769 NW2d 605 (2009).
Rather, it is “a discrete, nonconstitutional concept that should not be conflated with the
constitutional double jeopardy protection.” Id. (citation and internal quotation marks omitted).
Since joinder and severance are both governed by MCR 6.120 and are related concepts, it
follows that severance is not a constitutional right either. Because defendant did not have a
constitutional right to severance and the charges were properly tried together, Anschutz’ trial
lawyer cannot be faulted for failing to move to sever. See People v Riley, 468 Mich 135, 142;
659 NW2d 611 (2003).

                                  IV. SPECIFIC UNANIMITY

        Anshutz further contends the trial court improperly instructed the jury on the requirement
of a unanimous verdict. He notes that his daughter testified to two separate incidents of CSC II,
once when he touched her clothed breast and once when he touched her genitals over her clothes.
He asserts that because the jury was not required to specify which act served as the basis of its
conviction, its guilty verdict may not have been unanimous. As our Supreme Court has
explained, a specific unanimity instruction is not required in every case where more than one act
is presented as evidence of the actus reus of a single criminal offense: “The critical inquiry is
whether either party has presented evidence that materially distinguishes any of the alleged
multiple acts from the others. In other words, where materially identical evidence is presented
with respect to each act, and there is no juror confusion, a general unanimity instruction will
suffice.” People v Cooks, 446 Mich 503, 512-513; 521 NW2d 275 (1994).

         As an illustration of materially distinct evidence, the Court in Cooks discussed People v
Yarger, 193 Mich App 532, 534; 485 NW2d 119 (1992), in which the 15-year-old complainant
testified that she had engaged in consensual fellatio with the defendant, after which the defendant
vaginally penetrated her. Although the defendant was charged with a single count of third-
degree criminal sexual conduct, the Yarger Court noted that “[t]he complainant’s trial testimony,
if accepted as true, would have supported two separate convictions of third-degree criminal
sexual conduct, each based on a separate sexual penetration.” Id. at 536. The Court in Yarger
found that “because only a single count of third-degree criminal sexual conduct was submitted to
the jury, error occurred when the jury was not instructed that it must unanimously agree on
which act(s) was proven beyond a reasonable doubt” because the possibility existed that “six
jurors were convinced that fellatio had occurred, but not intercourse, while the other six jurors
held the opposite view.” Id. at 537 (emphasis in original).

        Unlike Yarger, in this case “neither party presented materially distinct proofs regarding
any of the alleged acts,” so there was no “factual basis for the specific unanimity instruction[.]”
Cooks, 446 Mich at 528. The complainant testified that Anschutz touched her twice over her
clothing, once on her breast and once on her vagina. While the facts of these incidents are not
identical, they may reasonably be described as materially identical because both incidents
involved an act of intimate touching over her clothing. In addition, the circumstances
surrounding the incidents were similar, as she testified that both acts occurred in her bedroom
after her father had been drinking. The trial court did not err by failing to give a specific
unanimity instruction because the facts of the incidents were materially identical, so a general
unanimity instruction was sufficient.

                                                -4-
                                 V. RECANTED TESTIMONY

        Anschutz argues that the trial court erred in denying his motion for a new trial based on
recanted testimony and that he was denied his right to fully question his daughter as to the extent
of her untruthfulness at trial during his post-trial motion hearing. This Court reviews a trial
court’s decision whether to grant a new trial for an abuse of discretion. People v Miller, 482
Mich 540, 544; 759 NW2d 850 (2008). A trial court abuses its discretion when it selects an
outcome falling outside the principled range of outcomes. People v Babcock, 469 Mich 247,
269; 666 NW2d 231 (2003).

        Following trial, the court held an evidentiary hearing on the basis of a letter Anschutz
wrote to the court claiming that his daughter had recanted her trial testimony. At the hearing,
Anschutz’ daughter testified that during a meeting before trial with the prosecutor, the prosecutor
played the videotape of her forensic interview, paused it at the point in the interview where she
had claimed that her father had touched her beneath her clothes, and gave her a “really . . . weird
look” and told her that if she did not repeat those allegations in her trial testimony she would “be
getting into trouble.” She expressed that this caused her some consternation because her father
never touched her beneath her clothes. She claimed, however, that she did not share this
information with the prosecutor during the meeting.

        Although we agree that Anschutz’ daughter seems to have recanted at least a portion of
her trial testimony, we nevertheless conclude that the trial court did not abuse its discretion when
it denied Anschutz’ motion for a new trial. In order to warrant a new trial premised on newly
discovered evidence, the defendant must show: “(1) the evidence itself, not merely its
materiality, is newly discovered, (2) the evidence is not merely cumulative, (3) the evidence is
such as to render a different result probable on retrial, and (4) the defendant could not with
reasonable diligence have produced it at trial.” People v Canter, 197 Mich App 550, 559; 496
NW2d 336 (1992). “[W]here newly discovered evidence takes the form of recantation
testimony, it is traditionally regarded as suspect and untrustworthy.” Id.

         Anschutz has not established that his daughter’s testimony is newly discovered evidence
that entitles him to a new trial under the test set forth in Canter. At trial, Anschutz presented
evidence that his daughter had recanted her allegations before trial. His daughter’s half-sister
testified that the complainant had confided to her that “she felt bad” about Anschutz’ legal
situation because “he didn’t do it.” Anschutz’ lawyer also questioned the complainant about the
inconsistency between her statement at the forensic interview that her father had touched her
inappropriately “every other day for a year” when she was in eighth grade, and her trial
testimony that the incidents had occurred just three times. The prosecutor also elicited testimony
from the complainant that, after she told a friend about Anschutz’ conduct, she initially “told
everybody [else] that nothing ever happened.” Although the complainant did not claim at trial
that she had fabricated the allegations underlying the CSC I charge as she did during the hearing,
Anschutz was nevertheless able to demonstrate that her story had changed several times in the
various settings in which she had told it. Furthermore, by introducing her half-sister’s testimony,
Anschutz was able to argue that at one time the complainant had recanted her allegations. Thus,
the complainant’s testimony was not newly discovered evidence. Further, given the unreliable
nature of recantation evidence, we conclude the trial court did not abuse its discretion by denying
Anschutz’ motion for new trial. Babcock, 469 Mich at 269.

                                                -5-
                                VI. PROSECUTORIAL ERROR

        Anschutz argues that the prosecutor erred by eliciting improper opinion testimony from
the investigating officer on the following issues: his conclusions regarding Anschutz’ body
language and certain statements he made during his interview; his description of the format of
forensic interviews because it implied that “truth is obtained” by using that protocol; and his
testimony regarding the reason for and frequency of children recanting allegations of sexual
abuse. Anschutz also argues that it was improper for the prosecutor to refer to this testimony in
her closing argument.

        A lay witness may offer opinion testimony under MRE 701 if his or her opinions are “(a)
rationally based on the perception of the witness and (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” The officer’s testimony about his
general experiences with other suspects in similar circumstances was admissible under the court
rule. Similarly, his general observations as to the behavior of child victims of sexual abuse and
the format of a forensic interview were permissible under the court rule. It was not improper for
the prosecutor to elicit this testimony, or for the trial court to admit it.

        Anschutz’ claim that the prosecutor erred when she cited statements made by the officer
during her closing argument is not persuasive. “A prosecutor’s comments are to be evaluated in
light of defense arguments and the relationship the comments bear to the evidence admitted at
trial.” Dobek, 274 Mich App at 64. Because the cited comments were based on evidence
properly introduced at trial, they were not improper, and Anschutz is not entitled to relief. Id. at
66 (noting that a prosecutor is free to argue the evidence and all the reasonable inferences arising
from it).

       There were no errors warranting relief.

       Affirmed.

                                                             /s/ Michael J. Kelly
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Patrick M. Meter




                                                 -6-
