                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 19, 2016
               Plaintiff-Appellee,

v                                                                  No. 326554
                                                                   Newaygo Circuit Court
BRIAN RAY SOULES,                                                  LC No. 13-010558-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.


PER CURIAM.

       Defendant appeals as of right his jury trial convictions of five counts of second-degree
criminal sexual conduct (CSC-II), MCL 750.520c, accosting a minor for an immoral purpose,
MCL 750.145a, and eavesdropping, MCL 750.539d(1)(a). He was sentenced to 29 months to 15
years’ imprisonment for the CSC-II convictions, 17 months to 4 years’ imprisonment for
accosting a minor for an immoral purpose, and 13 months to 2 years’ imprisonment for
eavesdropping. He appeals as of right. We affirm.

        Defendant first argues that the trial court improperly allowed evidence of defendant’s
prior bad act to come before the jury by way of a juror question, and failed to follow the
procedures required by MCR 2.513(I) when handling questions submitted by the jury.
Additionally, defendant claims that these errors violated his constitutional right to due process.
We agree that the trial court erred, but do not agree that defendant is entitled to a new trial on
this basis.

        Generally, this Court reviews for an abuse of discretion a challenge to the admission of
evidence. People v Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007). However, at trial,
defendant’s counsel failed to object to the evidence, leaving the issue unpreserved. People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We review unpreserved evidentiary
issues for plain error affecting substantial rights. People v Fackelman, 489 Mich 515, 537; 802
NW2d 552 (2011). To show plain error, three requirements must initially be met: 1) error must
have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We also
reviewed unpreserved constitutional claims for plain error. People v Vandenberg, 307 Mich App
57, 61; 859 NW2d 229 (2014).


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        In response to a question submitted by the jury, the victim’s grandmother testified that,
on one occasion, defendant pushed her down the stairs. Defendant asserts that this evidence was
inadmissible pursuant to MRE 404(b) and MRE 402. Under MRE 404(b), evidence of other
crimes, wrongs, or acts is admissible only if the evidence is (1) offered for a proper purpose
rather than to prove the defendant’s character or propensity to commit the crime, (2) relevant to
an issue or fact of consequence at trial, and (3) sufficiently probative to prevail under the
balancing test of MRE 403. People v Hoffman, 225 Mich App 103, 105; 570 NW2d 146 (1997).
We agree the evidence was inadmissible under MRE 404(b) because it was not admitted by
either party for a proper purpose, id., and was not relevant to any issues in the case. MRE 401;
MRE 402.

        However, while defendant has demonstrated that error occurred, he has not demonstrated
that the error affected his substantial rights. To show that the plain error affected defendant’s
substantial rights, defendant must show that the error was outcome-determinative. Carines, 460
Mich at 763. Here, we do not agree that the evidence affected the outcome of the trial. The
testimony regarding defendant’s past act was brief, unrelated to defendant’s charges, and none of
the other witnesses testified about any violent behavior by defendant. Moreover, the record
contained significant evidence that supported each of defendant’s convictions. There was
nothing in the record to support that defendant was prejudiced by the bad acts evidence in a way
that impacted the outcome of the trial. Accordingly, defendant has failed to demonstrate plain
error affecting his substantial rights with respect to the other acts evidence.

        Defendant also claims that the trial court failed to comply with the procedural
requirements of MCR 2.513(1). Defendant waived this issue when he affirmatively expressed
satisfaction with how the court handled the jury questions. See People v Kowalski, 489 Mich
488, 503; 803 NW2d 200 (2011). However, because defendant also alleges an ineffective
assistance claim relating to this error, we review the claim in that context. When an ineffective
assistance of counsel claim is unpreserved, “this Court’s review is limited to mistakes apparent
from the record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate
ineffective assistance of counsel, a defendant must show that his or her attorney’s performance
fell below an objective standard of reasonableness under prevailing professional norms and that
this performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836
NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011).
“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors,
the result of the proceedings would have been different.” Nix, 301 Mich App at 207.

        MCR 2.513(1) requires that the court “employ a procedure that ensures that . . . the
parties have an opportunity outside the hearing of the jury to object to the questions.” Here, the
record is clear that the trial court failed to provide the parties an opportunity to object outside the
presence of the jury. The trial court erred by failing to follow the requirements of MCR 2.513(I).
However, there was not a reasonable probability that, but for counsel’s errors, the result of the
proceedings would have been different. Nix, 301 Mich App at 207. Again, the evidence related
to a peripheral issue not relevant to defendant’s charged crimes, there was no other evidence that
defendant exhibited violent behavior, and the testimony was brief. Accordingly, we reject
defendant’s claim of error.



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         We similarly reject defendant’s claim that his counsel was ineffective for failing to object
to the jury question that led to the objectionable evidence. Again, defendant cannot show
prejudice. We also note that it was not clear from the question itself that the inquiry would lead
to objectionable evidence. Further, once the witness made the statement, counsel may have
reasonably decided not to object, so as to not draw attention to the evidence. See People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (to show ineffective assistance of
counsel, defendant must overcome the heavy presumption that trial counsel employed effective
trial strategy). In addition, for the same reasons discussed above, we reject defendant’s claim
that his constitutional right to due process was violated because defendant cannot establish plain
error affecting substantial rights.

        Defendant next argues that the prosecution committed prosecutorial misconduct when it
elicited testimony about the victim’s credibility. Defendant also argues that the trial court
improperly asked the prosecution’s expert witness whether the victim was telling the truth.
While we agree that error occurred, we conclude that defendant is not entitled to a new trial on
this basis.

        We first address defendant’s claim of prosecutor misconduct. Because defendant did not
object to the prosecutor’s conduct at trial, this issue is unpreserved and review is limited to plain
error affecting substantial rights. People v Gaines, 306 Mich App 289, 308; 856 NW2d 222
(2014). Error requiring reversal will not be found when a curative instruction could have
displaced any prejudicial effect of the prosecutor’s misconduct. People v Johnigan, 265 Mich
App 463, 467; 696 NW2d 724 (2005). “Given that a prosecutor’s role and responsibility is to
seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant
was denied a fair and impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546
(2007). “It is generally improper for a witness to comment or provide an opinion on the
credibility of another witness.” Id. at 71.

        Defendant asserts that it was prosecutorial misconduct for the prosecutor to ask the
victim’s mother about the victim’s truthfulness. At trial, the prosecutor asked the victim’s
mother whether she believed her daughter when she indicated that she found surveillance
cameras hidden in her bedroom; the victim’s mother testified that she believed the victim. Also,
the prosecutor asked the victim’s mother what she thought when the victim indicated that she
was abused; the victim’s mother again testified that she believed the victim. A prosecutor “is
entitled to attempt to introduce evidence that he legitimately believes will be accepted by the
court, as long as that attempt does not prejudice the defendant.” People v Noble, 238 Mich App
647, 660-661; 608 NW2d 123 (1999). However, it is improper for a prosecutor to question
witnesses about the veracity of testimony given by other witnesses. People v Williams, 153
Mich App 582, 590; 396 NW2d 805 (1986), citing People v Buckey, 424 Mich 1, 17; 378 NW2d
432 (1985).

        To the extent the questions asked the victim’s mother to comment on the victim’s
veracity, they were improper. Williams, 153 Mich App at 590-591. Nevertheless, there was no
plain error affecting defendant’s substantial rights. Any prejudicial effect could have been
alleviated by a timely objection and curative instruction, so defendant is not entitled to relief on
appeal. Johnigan, 265 Mich App at 467. Moreover, the trial court specifically instructed the
jury that it was their duty to determine the credibility of witnesses.

                                                -3-
         Defendant also asserts that he was denied a fair and impartial trial when the trial court
questioned the prosecution’s expert witness regarding the victim’s credibility. Because
defendant did not object to judicial misconduct at trial, we review this claim for plain error
affecting substantial rights. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011).
The trial court has the right to interrogate witnesses. MRE 614(b). “As long as the questions
would be appropriate if asked by either party and, further, do not give the appearance of
partiality . . . a trial court is free to ask questions of witnesses that assist in the search for truth.”
People v Davis, 216 Mich App 47, 52; 549 NW2d 1 (1996). But, inappropriate questioning of
witnesses can constitute a form of judicial misconduct. People v Stevens, 498 Mich 162, 172;
869 NW2d 233 (2015). An expert witness may not vouch for the veracity of a victim. Dobek,
274 Mich App at 71. However, “[w]hen the credibility of the particular victim is attacked by a
defendant, . . . it is proper to allow an explanation by a qualified expert regarding the
consistencies between the behavior of that victim and other victims of child sexual abuse.”
People v Peterson, 450 Mich 349, 375; 537 NW2d 857 (1995).

        Here, the court asked expert witness Sandra Terwilliger, a limited license psychologist
who met with the victim, whether victims respond differently to counseling when they are lying.
Terwilliger testified that it is not unusual for children to appear withdrawn when first discussing
their abuse and to open up and share greater details over time as they become more comfortable.
The trial court asked a string of questions regarding whether it was possible to discern whether a
victim was telling the truth based on the way a victim acts during counseling. The trial court’s
questions and the psychologist’s answers were sometimes general, referring to “they” or
“people,” and sometimes more specific, referring to “she.” After reviewing the record, we agree
that there were moments in Terwilliger’s testimony where she seemed to improperly vouch for
the victim’s credibility. However, we note that the testimony is not clear on whether Terwilliger
expressed an opinion regarding the victim’s veracity—certainly not to the extent suggested by
defendant. After Terwilliger testified, the trial court clearly and specifically instructed the jury
that her testimony could not be considered an opinion that the victim was telling the truth.
Again, “[i[t is well established that jurors are presumed to follow their instructions.” People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Given the ambiguity of the testimony and
the trial court’s instructions, we do not agree that this error impacted defendant’s substantial
rights. Accordingly, defendant failed to show plain error, and reversal is not warranted.

        Defendant also argues that his counsel was ineffective for failing to object to testimony
from the victim’s mother and Terwilliger’s testimony regarding the victim’s credibility. We
agree that defense counsel’s performance was deficient in this regard, but do not agree that these
errors necessitate a new trial. Again, we review unpreserved claims of ineffective assistance of
counsel for errors apparent on the record. Heft, 299 Mich App at 80. As explained, the victim’s
mother improperly testified that she believed the victim and her friends. Additionally,
Terwilliger’s also seemed to improperly vouch for the victim’s credibility at times in her
testimony. Thus, we agree that, in failing to object to these instances, defense counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. However, defendant has failed to show that there was a reasonable probability that, but
for counsel’s failure to object to the credibility testimony, the result of the proceeding would
have been different. The prosecution offered significant evidence to corroborate the victim’s
testimony, which served to bolster her credibility, and the trial court specifically instructed the
jury that it was their duty to determine the credibility of witnesses. Again, jurors are presumed

                                                   -4-
to follow their instructions. Graves, 458 Mich at 486. Defendant has failed to demonstrate that
there was a reasonable probability that the result of the proceeding would have differed had his
counsel objected to the testimony about the victim’s truthfulness. Accordingly, defendant’s
claim fails.

       Affirmed.

                                                           /s/ Colleen A. O’Brien
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Karen M. Fort Hood




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