                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 10, 2016
               Plaintiff-Appellee,

v                                                                   No. 327923
                                                                    Kent Circuit Court
HOUSTON HENRY CHARLTON III,                                         LC No. 14-011611-FH

               Defendant-Appellant.


Before: OWENS, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

       Defendant was convicted by a jury of domestic assault, MCL 750.81(2), third offense,
MCL 750.81(4). The trial court sentenced defendant as a fourth-offense habitual offender, MCL
769.12, to 2.5 to 25 years’ imprisonment. Defendant appeals as of right. Because the evidence
was sufficient to support defendant’s conviction, his evidentiary challenges are without merit, the
prosecutor did not commit misconduct, and defendant was not denied the effective assistance of
counsel, we affirm.

        The victim in this case is defendant’s on-and-off again girlfriend and the mother of his
two children. In November of 2014, the victim reported to police that defendant attacked her in
the bathroom of their home because defendant was angry that the victim was “getting fixed up”
for work. He called her several names, “grabbed her by the shoulders, threw her against the
wall, then took her head and slammed it against the wall three times.” He then grabbed her
throat and strangled her “to the point where she thought that she was going to lose
consciousness.” Afterward, he “threw” her into the bedroom and told the family he would kill
them if they called the police. The police officer to whom the victim spoke observed that the
victim had “scratches and marks” on her neck. When police went to the home to arrest
defendant, they also found a hole in the bathroom wall at approximately the victim’s head height.
In addition to her report to the police, the victim made similar statements to a Children’s
Protective Services (CPS) worker.

        However, the victim largely recanted her allegations at trial. The victim testified that
there was an argument that evening about her wearing false eyelashes to work, during which
defendant called her names and “used an aggressive tone.” The victim testified that defendant
“hit [the] wall out of anger.” According to the victim’s trial testimony, after defendant hit the
wall, the victim was “scared” and she “thought” the argument would become “physical,” but it

                                                -1-
did not. She testified that she made a false report to the police because she wanted defendant
“out of [her] house.” Under MCL 768.27c, the prosecutor introduced the victim’s statements to
police as substantive evidence and, under MCL 768.27b, the prosecutor introduced evidence of
other acts of domestic violence perpetrated by defendant on the victim. The jury also heard
expert testimony on domestic violence and reasons why a victim may recant a report of abuse.
The jury convicted defendant of domestic violence. Defendant now appeals as of right.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence to support his conviction. In
particular, defendant maintains that the case is entirely dependent on the victim’s credibility.
Defendant contends that, because the victim recanted her claim of domestic violence, her trial
testimony to the effect that there was no assault must necessarily have raised a reasonable doubt
and thus there was insufficient evidence to justify defendant’s conviction.

        This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). “We examine the evidence in a
light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and
determine whether a rational trier of fact could have found that the essential elements of the
crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793
NW2d 120 (2010). “Circumstantial evidence and reasonable inferences that arise from such
evidence can constitute satisfactory proof of the elements of the crime.” People v Williams, 268
Mich App 416, 419; 707 NW2d 624 (2005). “Further, we will not interfere with the jury's role
of determining the weight of the evidence or the credibility of witnesses.” People v Ortiz, 249
Mich App 297, 300-301; 642 NW2d 417 (2001).

       To convict defendant of domestic assault, the prosecution was required to prove that
defendant and the victim were associated in one of the ways set forth in MCL 750.81(2) and that
defendant assaulted or assaulted and battered the victim. People v Cameron, 291 Mich App 599,
614; 806 NW2d 371 (2011). The term “battery” refers to “an intentional, unconsented and
harmful or offensive touching of the person of another, or of something closely connected with
the person.” Id. (quotation omitted). “[T]he courts have defined an assault as an attempt to
commit a battery or an unlawful act that places another in reasonable apprehension of receiving
an immediate battery.” Id. (quotation omitted).

        In this case, the victim testified at trial that she had a dating relationship and children in
common with defendant, MCL 750.81(2), and defendant does not dispute these facts. Instead,
the issue on appeal is whether the evidence was sufficient to establish that defendant assaulted or
assaulted and battered the victim. Relevant to this issue, the victim testified at trial that
defendant called her names using “an aggressive tone” and hit a wall, leaving a hole. The victim
also testified that she believed the argument would turn physical and that she was “scared.”1 The


1
 Even without the evidence of the victim’s statements to police, the victim’s trial testimony that
she was “scared” and thought the altercation would turn “physical” because defendant used
aggressive tones and engaged in an overt act of violence by hitting a wall could support a finding

                                                 -2-
victim’s daughter and defendant’s mother, who were also in the home, confirmed that there was
an argument between defendant and the victim on the night in question. In addition to this trial
testimony, the statements of the victim to police indicated that defendant slammed the victim’s
head against the wall, grabbed her by the throat, “began to strangle her,” and threatened that he
would kill the family if anyone called the police. If believed, this evidence plainly demonstrated
the occurrence of an assault or assault and battery on the victim. Cf. Cameron, 291 Mich App at
615; People v Meissner, 294 Mich App 438, 454; 812 NW2d 37 (2011).

        Although defendant argues that the victim’s reports to police cannot be credited in light
of her trial testimony, the issue is obviously one of credibility and we will not interfere with the
jury’s assessment of credibility. See Ortiz, 249 Mich App at 300-301. Moreover, we note that
defendant’s argument fails to view the evidence in a light most favorable to the prosecution and
ignores evidence bolstering the credibility of the reports made to police. For example, an officer
observed scratches and marks on the victim’s throat, supporting the victim’s report that
defendant strangled her; and police found a hole in the bathroom wall at the height of the
victim’s head, supporting her assertion that he slammed her head into the wall. Further, the
evidence showed that defendant had a history of violence against the victim, which could be
reasonably seen as increasing the credibility of the victim’s report of domestic violence and
making it more likely that defendant once again acted with violence toward the victim. See
Cameron, 291 Mich App at 609-612. Overall, the victim’s credibility was a question for the jury
and, viewing the evidence in a light most favorable to the prosecution, a rational jury could
conclude that defendant assaulted and battered the victim. Therefore, the evidence was sufficient
to prove that defendant committed domestic assault.

                                   II. EVIDENTIARY ISSUES

        Next, defendant raises a variety of evidentiary issues. At trial, defendant objected only to
the introduction of the statements made by the victim’s daughter to CPS. Thus, that claim is
preserved and is reviewable for an abuse of discretion. People v Mahone, 294 Mich App 208,
212; 816 NW2d 436 (2011). The rest of defendant’s evidentiary claims are unpreserved and are
reviewed for plain error affecting defendant’s substantial rights.2 People v Benton, 294 Mich
App 191, 202; 817 NW2d 599 (2011). To the extent defendant weaves constitutional challenges
into these evidentiary arguments, those constitutional arguments are likewise unpreserved and
reviewed for plain error. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

of assault. That is, assault does not require an actual touching, but may be accomplished “where
an actor engages in some form of threatening conduct designed to put another in apprehension of
an immediate battery.” People v Reeves, 458 Mich 236, 240-241; 580 NW2d 433 (1998).
2
 On appeal, defendant argues that, if there is error, he is entitled to a new trial because the effect
of these purported evidentiary issues should be decided by a jury rather than this Court.
Apparently, defendant would have us automatically reverse in every case where a trial error
occurs regardless of whether the error affected the outcome. This argument is baseless. “Rules
of automatic reversal are disfavored, for a host of obvious reasons,” and, absent a rare structural
error, a jury’s verdict will not be set aside by an appellate court without a consideration of the
effect of the error. People v Mosko, 441 Mich 496, 502; 495 NW2d 534 (1992); MCL 769.26.


                                                 -3-
                                       A. MCL 768.27b

       First, defendant argues that the trial court erred by admitting testimony under MCL
768.27b because MCL 768.27b violates the separation of powers doctrine by interfering with the
Supreme Court’s constitutional authority to make rules governing the practice and procedures of
the courts. The Michigan Supreme Court has previously considered and rejected this precise
argument. People v Mack, 493 Mich 1, 3; 825 NW2d 541 (2012). See also People v Schultz,
278 Mich App 776, 779; 754 NW2d 925 (2008). Thus, defendant’s separation of powers
argument is without merit.

        Second, defendant contends that he was denied due process because the evidence
introduced under MCL 768.27b involves propensity evidence, which defendant asserts is
fundamentally unfair in light of the effect that other bad acts evidence may have on a jury.
However, defendant provides no authority for the proposition that due process categorically
prohibits the introduction of propensity evidence, and we know of no such authority. See Bugh v
Mitchell, 329 F3d 496, 512 (CA 6, 2003) (“There is no clearly established Supreme Court
precedent which holds that a state violates due process by permitting propensity evidence in the
form of other bad acts evidence.”). By enacting MCL 768.27b, the Legislature made a
permissible policy choice to allow juries to consider other acts evidence for propensity purposes
in certain cases. See Cameron, 291 Mich App at 609-610; People v Pattison, 276 Mich App
613, 620; 741 NW2d 558 (2007). To protect defendants from undue prejudice, evidence offered
under MCL 768.27b remains subject to a balancing test under MRE 403. See MCL 768.27b(1).
MRE 403 provides an adequate safeguard, and there is nothing fundamentally unfair about
allowing propensity evidence to be introduced pursuant to MCL 768.27b. Cf. United States v
LeMay, 260 F3d 1018, 1026 (CA 9, 2001).

        Third, defendant next argues that the evidence was not admissible under MCL 768.27b
because MCL 768.27b only allows for the introduction of “relevant” evidence and whether
defendant committed past acts of domestic violence is irrelevant to whether he assaulted the
victim in this case unless the evidence is used for an impermissible propensity purpose. In
making this argument, defendant relies on the general prohibition on propensity evidence, he
misconstrues MCL 768.27b, and he ignores binding caselaw which holds that propensity
evidence is relevant and admissible under MCL 768.27b. In particular, while there is a general
prohibition on using other acts evidence for propensity purposes,3 by its express terms, in a
domestic violence case, MCL 768.27b allows for the introduction of other acts of domestic
violence “for any purpose for which it is relevant,” which includes showing a defendant’s
“character or propensity to commit the same act.” People v Railer, 288 Mich App 213, 220; 792
NW2d 776 (2010). Thus, contrary to defendant’s arguments, propensity evidence is not
irrelevant or improper under MCL 768.27b. See generally People v Watkins, 491 Mich 450,
470; 818 NW2d 296 (2012) (“[A] defendant's propensity to commit a crime makes it more
probable that he committed the charged offense.”).




3
    See People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998).


                                               -4-
        It follows that, in the present case, the fact that defendant committed prior acts of
domestic violence against the victim—including pushing her, pulling out her hair weave, and
slapping her in the face—was relevant as required by MCL 768.27b.4 The evidence was relevant
to show defendant’s propensity to commit an act of domestic violence against the victim, Railer,
288 Mich App at 219-220, it was relevant to the jury’s assessment of the victim’s credibility,
Cameron, 291 Mich App at 612, and it allowed the jury to weigh defendant’s behavioral history
and to view the case in the larger context that defendant’s background affords, Schultz, 278 Mich
App at 779. Therefore, contrary to defendant's arguments on appeal, the evidence was relevant.

         Fourth, defendant argues that the probative value of the other acts testimony was
substantially outweighed by unfair prejudice, meaning that the evidence should have been
excluded under MRE 403. However, in making this argument, defendant persists in the
mistaken assertion that any propensity use of the evidence is improper and must weigh against
admission of the evidence. In actuality, given that MCL 768.27b allows evidence to be
introduced for propensity purposes in cases of domestic violence, when applying the MRE 403
balancing test in the context of MCL 768.27b, “courts must weigh the propensity inference in
favor of the evidence's probative value rather than its prejudice effect.” Watkins, 491 Mich at
487. Weighing the evidence’s propensity inference in favor of admission, it is plain that MRE
403 did not require exclusion of the contested evidence. Although the other acts evidence was
damaging, it was not particularly graphic or inflammatory, and it did not interfere with the jury’s
ability to logically weigh the evidence. Cf. Railer, 288 Mich App at 220-221. Overall, the trial
court did not abuse its discretion when it allowed the prosecutor to introduce evidence of
defendant’s prior bad acts.

                                        B. MCL 768.27c

        Next, defendant argues that the he was denied his right to a fair trial because the victim’s
statements to police and CPS were inadmissible under MCL 768.27c.5 Specifically, defendant
contends that the statements were inadmissible under MCL 768.27c because: (1) the statement
to police was not made close in time to the alleged assault, (2) the statement to the CPS worker
was not made to a “law enforcement officer,” (3) and the statements to police were not made
under circumstances indicative of trustworthiness.



4
  Defendant was charged with an offense involving domestic violence as defined by MCL
768.27b. The victim falls into the category of “family or household member” because she had a
dating relationship with defendant and a child in common. MCL 768.27b(5)(b). The prior acts
presented by the prosecution at trial occurred within the past 10 years and qualify as acts of
domestic violence. Therefore, MCL 768.27b applies to this case.
5
  In passing, defendant asserts that the separation of powers arguments he identified with respect
to MCL 768.27b apply equally to MCL 768.27c, such that the statute is an improperly enacted
means of changing a rule of evidence. These arguments are without merit for the same basic
reasons discussed supra in relation to MCL 768.27b. See generally Meissner, 294 Mich App at
445 (“Our Legislature enacted MCL 768.27c as a substantive rule of evidence reflecting specific
policy concerns about hearsay in domestic violence cases.”).


                                                -5-
       Under MCL 768.27c, evidence of a statement by a declarant is admissible if:

       (a) The statement purports to narrate, describe, or explain the infliction or threat
       of physical injury upon the declarant.

       (b) The action in which the evidence is offered under this section is an offense
       involving domestic violence.

       (c) The statement was made at or near the time of the infliction or threat of
       physical injury. . . .

       (d) The statement was made under circumstances that would indicate the
       statement’s trustworthiness.

       (e) The statement was made to a law enforcement officer.

MCL 768.27c(2) provides that circumstances relevant to the issue of trustworthiness may
include, but are not limited to:

       (a) Whether the statement was made in contemplation of pending or anticipated
       litigation in which the declarant was interested.

       (b) Whether the declarant has a bias or motive for fabricating the statement, and
       the extent of any bias or motive.

       (c) Whether the statement is corroborated by evidence other than statements that
       are admissible only under this section.

        Here, the trial court did not err by admitting the statements. The incident occurred at
approximately 8:30 p.m. on the evening of November 17, 2014 and the victim made her
statement to police, i.e., “a law enforcement officer,” at about 2:00 a.m. on November 19.6 This
was near in time to the infliction of physical injury as required to fulfill the temporal requirement
of MCL 768.27c(1)(c). See Meissner, 294 Mich App at 448-449; see also People v Quitiquit,
155 Cal App 4th 1, 9; 65 Cal Rptr 3d 674 (2007). The statement was also made under
circumstances that would indicate the statement’s trustworthiness. The victim’s statements were
corroborated by other evidence, including the marks on her person, her daughter’s statement to
police,7 and the hole in the bathroom wall. Further, the police described the victim’s demeanor
as upset when she made her report, and there is nothing on the record to suggest that the victim


6
 The victim actually called the police closer in time to the incident, but was told to come in
person to make a full report and she went to the police as soon as she was able.
7
 Even if the child’s statements to police that defendant slammed her mother against the wall was
not admissible as substantive evidence at trial because the child was not the victim of the assault,
see MCL 768.27c(1)(a), the child’s corroborating statements could be considered incident to a
preliminary evidentiary ruling by the trial court. See MRE 104(a).


                                                -6-
made the statement to the police in anticipation of litigation. Cf. Meissner, 294 Mich App at
449-450. It is true that the victim testified that she fabricated her report to police because she
wanted defendant out of her house, which provides some evidence of a motive to lie. However,
it is not necessary that all three factors under MCL 768.27c(2) support a finding of
trustworthiness. See Meissner, 294 Mich App at 449. Overall, considering all the
circumstances, the trial court did not err by finding that the statement to police was trustworthy
and thus it was admissible under MCL 768.27c.8 Defendant has failed to demonstrate plain error
affecting his substantial rights. Carines, 460 Mich at 763.

        In terms of the victim’s statement to CPS, defendant argues that the victim’s statement
was inadmissible under MCL 768.27c because the CPS worker was not “law enforcement” as
required by the statute. First, the record does not state whether the statement was admitted under
MCL 768.27c as substantive evidence or under MRE 613 for impeachment purposes, meaning
that we cannot determine whether plain error occurred. Nevertheless, even if the trial court
erroneously admitted the victim’s statement to CPS under MCL 768.27c, defendant has failed to
establish that he was prejudiced by the error. The CPS worker offered similar testimony to that
given by the police, and, on the facts of this case, we fail to see how defendant was prejudiced by
the admission of this cumulative evidence. See People v Rodriquez, 216 Mich App 329, 332;
549 NW2d 359 (1996). Defendant has not shown plain error. Carines, 460 Mich at 763.

                                          C. HEARSAY

         Defendant also argues that the victim’s daughter’s prior inconsistent statements were
inadmissible hearsay that could not be used for impeachment purposes. At trial, the child
testified that on the night in question she was asleep, she heard arguing, and then her mother
woke her up. She testified that she “forgot” what she saw after she woke up and that she
remembered “nothing.” The child also said that she did not remember telling police or CPS that
defendant hit the victim’s head into a wall. Consequently, the trial court admitted evidence that
the victim made prior statements to authorities for impeachment purposes. See MRE 607; MRE
613; People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995) (“When a witness claims not
to remember making a prior inconsistent statement, he may be impeached by extrinsic evidence
of that statement.”).

       Defendant now argues this decision was erroneous because, even if the impeachment
evidence demonstrates that the child lied about whether she made past statements, this fact alone
would not help the prosecutor’s case and the prosecutor’s true aim was to elicit a denial from the
child as a means of placing her damaging past statements before the jury. See People v
Stanaway, 446 Mich 643, 693; 521 NW2d 557 (1994). In this respect, “[a] prosecutor cannot use


8
  Defendant also argues that the trial court made an improper statement to the jury to the effect
that the victim’s prior statement to the police was “reliable.” Considering the trial court’s
instruction on this point as a whole, the trial court plainly and accurately instructed the jury that
they did not have to accept the victim’s statement to police. We can discern no error in the trial
court’s remarks that would entitle defendant to relief. See People v Aldrich, 246 Mich App 101,
124-125; 631 NW2d 67 (2001).


                                                -7-
a statement that directly tends to inculpate the defendant under the guise of impeachment when
there is no other testimony from the witness for which his credibility is relevant to the case.”
People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997). However, this rule does not
apply in this case because the child’s testimony regarding the events in the home that evening
was inconsistent with that of other witnesses at trial. Cf. id. For example, defendant’s mother
stated that the child was downstairs with her that evening and the victim indicated that the child
came to the bathroom at one point to tell her that dinner was ready. Given these various
statements regarding the child’s whereabouts that evening, her location was an issue at trial and
the child’s credibility with respect to her assertion that she was “asleep” was relevant. Thus, the
trial court did not abuse its discretion by admitting evidence of her prior inconsistent statements
for impeachment purposes.9 See id. at 683-684.

                                   D. EXPERT TESTIMONY

        Defendant next argues that the prosecution’s domestic violence expert improperly
expressed an opinion on whether the victim was lying to protect defendant. An expert may not
vouch for the veracity of a victim. People v Musser, 494 Mich 337, 349; 835 NW2d 319 (2013);
People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). However, expert testimony on
patterns of domestic violence may be admissible and useful “when a complainant endures
prolonged toleration of physical abuse and then attempts to hide or minimize the effect of the
abuse, delays reporting the abuse to authorities or friends, or denies or recants the claim of
abuse.” People v Christel, 449 Mich 578, 592; 537 NW2d 194 (1995).

        Here, the expert testified that it was common for a victim to recant previous claims of
abuse and, in response to a line of inquiry initiated by defense counsel regarding whether victims
ever “lie,” the expert indicated that she had been personally involved in only one case where she
had reason to believe that the victim was lying. While the expert offered these general
observations about domestic violence and her experience with victims, she did not testify that the
victim in this case was telling the truth. In fact, the expert specifically testified that she had
never talked to, or worked with, the victim. Thus, there is nothing to support that the expert
improperly commented on the victim’s veracity, and defendant has not shown plain error.

                            III. PROSECUTORIAL MISCONDUCT

       Defendant next argues that several of the prosecutor’s comments constituted
prosecutorial misconduct. Unpreserved claims of prosecutorial misconduct, such as defendant’s
claims in this case, are reviewed for plain error affecting substantial rights.10 People v Brown,


9
  Moreover, although the prosecutor offered the statements for impeachment purposes, to the
extent the child told police that defendant threatened the “family” by telling them he would kill
“them” if police came, these threats of violence against the child would potentially be admissible
under MCL 768.27c(1)(a).
10
  Defendant disputes the applicability of any standard of review that does not result in automatic
reversal of his conviction if there is a finding of prosecutorial misconduct. As we have noted,
“[r]ules of automatic reversal are disfavored, for a host of obvious reasons.” Mosko, 441 Mich at

                                                -8-
279 Mich App 116, 134; 755 NW2d 664 (2008). “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.” People v Callon, 256 Mich App 312,
329; 662 NW2d 501 (2003). “Further, we cannot find error requiring reversal where a curative
instruction could have alleviated any prejudicial effect.” Id. at 329-330.

         Prosecutorial misconduct claims are decided on a case-by-case basis, and challenged
remarks must be read in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18
(1996). “Prosecutors are typically afforded great latitude regarding their arguments and conduct
at trial.” People v Unger, 278 Mich App 210, 236; 749 NW2d 272, 293 (2008). “They are
generally free to argue the evidence and all reasonable inferences from the evidence as it relates
to their theory of the case.” Id. However, a prosecutor may not express a personal opinion
regarding defendant's guilt or denigrate defendant with intemperate remarks. People v Bahoda,
448 Mich 261, 282–283; 531 NW2d 659 (1995). A prosecutor also may not argue facts not in
evidence. Stanaway, 446 Mich at 686. Likewise, “[a] prosecutor's clear misstatement of the law
that remains uncorrected may deprive a defendant of a fair trial.” People v Grayer, 252 Mich
App 349, 357; 651 NW2d 818 (2002). “However, if the jury is correctly instructed on the law,
an erroneous legal argument made by the prosecutor can potentially be cured.” Id.

        Defendant first asserts that the prosecutor committed misconduct by misstating the law
during closing arguments when she told the jury that the law considers prior statements made by
a victim of domestic violence to be “credible.” More fully, the prosecutor stated:

               What is interesting, and the Judge instructed you at the point when [the
       officer] was going to testify about her statements, is that what are the
       circumstances or the criteria that those statements are admissible for you to
       consider, and the Judge will instruct you that you can consider those as evidence
       of whether or not these crimes were committed. The statement has to be made to
       law enforcement, and then the other component is the statement has to be
       regarding an allegation of domestic violence.

               So ask yourself this: Why does the law allow those, and why does the law
       consider those to be credible statements for you as jurors to decide? Ask yourself
       that. And I think the answer is pretty clear. Because you got an insight when you
       heard [the expert] testify yesterday what this involves, what these types of crimes
       involve and what these type of consistent and constant actions toward victims of
       domestic violence have to deal with and what their very common responses are.

                                               ***

              [The victim’s] response and what she did here and what she did at the
       prelim is so typical. It is so common and consistent to the point that the law


502. And, more particularly, it is well-settled that claims of prosecutorial misconduct are
amendable to plain error review. Brown, 279 Mich App at 134.


                                               -9-
       recognizes and says you can find credible, you can rely on a statement to the
       police about a crime of domestic violence . . . .

        Viewing the comments as a whole, we find that the prosecutor’s remarks were perhaps
poorly worded and imprecise, but not a clear misstatement of the law. Cf. People v Abraham,
256 Mich App 265, 276; 662 NW2d 836 (2003). That is, pursuant to MCL 768.27c, statements
made under circumstances indicative of the “statement's trustworthiness” may be admitted as
substantive evidence. However, while such statements are admissible, whether the statement
should be believed is ultimately an issue for the jury and there is certainly no presumption that
the statements are “credible.” Consequently, it would be improper for the prosecutor to indicate
that the jury must believe the prior statements or to inform the jury there is some presumption of
believability. But, in this case, while the prosecutor discussed the “credibility” of the statements,
the prosecutor stopped short of suggesting the jury was required to believe the statements or that
the law created a presumption that the statements were credible. To the contrary, while
discussing the credibility of the statements, the prosecutor noted the statements were “admissible
for [the jury] to consider,” for the jury to “decide,” and that the jury “can find” the statements
credible. In other words, on the whole, the prosecutor’s remarks do convey the fact that the jury
was to assess the credibility of the past statements in light of the circumstances in which they
were made. Indeed, elsewhere, the prosecutor repeatedly asked the jury to decide whether it
believed the victim’s testimony or her statement to police.11 Thus, considered as a whole, the
prosecutor’s remarks did not deprive defendant of a fair trial. Grayer, 252 Mich App at 357.
Additionally, the trial court instructed the jury that the lawyer’s arguments were not evidence
and, when the court admitted the victim’s past statements, it specifically instructed the jury that
they could decide whether or not to believe the victim’s statements to police. Jurors are
presumed to follow their instructions, and defendant is not entitled to relief under a plain error
standard of review. See Callon, 256 Mich App at 329.

       Defendant’s other claims of prosecutorial misconduct are also without merit. Defendant
contends that the prosecutor argued facts not in evidence when she argued that it was tempting to
“judge” the victim for wanting to stay with defendant, that the victim recanted because she
needed him to help raise the children and because she had an exaggerated idea of what
defendant’s punishment would be, and that the situation was sad because the children observed


11
  Defendant suggests that the prosecutor shifted the burden of proof by asking the jury to decide
which statement it believed and expressed a personal opinion of the victim’s credibility by
urging them to believe the victim’s statements to police, in part because the victim’s conduct fit
the pattern described the domestic violence expert. These arguments are without merit. There
was nothing improper in the prosecutor’s framing of the principal issue in this case as a contest
between the victim’s past statements and her trial testimony, and the prosecutor was free to
comment on witness credibility and to argue that the victim’s statement to police was more
credible in light of the corroborating evidence. See People v Thomas, 260 Mich App 450, 455;
678 NW2d 631 (2004). In any event, the trial court instructed the jury on the burden of proof,
the presumption of innocence, and the assessment of witness credibility, alleviating any
prejudicial effect. See Callon, 256 Mich App at 329.


                                                -10-
domestic violence. Contrary to defendant’s arguments, the record supports that the prosecutor’s
comments were based on evidence presented during trial and reasonable inferences arising
therefrom. For example, the evidence showed that the victim previously continued a relationship
with defendant after other acts of domestic violence, that defendant “helps out a lot” with the
kids, that defendant sometimes helped with rent and food bills, that the victim did not want
defendant to face “consequences” in this case, that the children were in the home when the
assault occurred and that the victim spoke to authorities partly because she did not want the
children to “witness [defendant’s] anger.” Thus, the arguments were proper.

        Defendant also argues that the prosecutor expressed a personal belief in defendant’s guilt
when she stated in her opening statement that defendant hit the victim, pushed her head into a
wall, and strangled her. The prosecution’s opening statement “is the appropriate time to state the
facts that will be proved at trial.” Ericksen, 288 Mich App at 200. Thus, it was not improper for
the prosecutor to set out the facts of the case that she intended to prove. Id. Defendant also
argues that the prosecutor denigrated defendant and the defense by telling the jury that the
victim’s trial testimony was a “charade.” But, a prosecutor may argue from the facts and
testimony regarding whether witnesses are credible or worthy of belief, and prosecutors “need
not confine argument to the blandest possible terms.” Dobek, 274 Mich App at 66. Here, the
prosecutor’s comment regarding the strength and credibility of the evidence was not an improper
denigration of the defense. Cf. id at 67.

        Furthermore, even assuming some merit to any of defendant’s claims of prosecutorial
misconduct, defendant has not established that it affected his substantial rights. First, any
prejudice caused by these remarks could have been alleviated by timely objections and requests
for curative instructions. Unger, 278 Mich App at 235. Second, any prejudice was in fact
alleviated by the trial court’s instructions. Therefore, there was no plain error affecting
defendant’s substantial rights, and reversal is not warranted.12 Id.

                      IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that he was denied the effective assistance of counsel when his
trial counsel failed to object to the unpreserved evidentiary issues and prosecutorial statements
that defendant now challenges on appeal. To establish the ineffective assistance of counsel, a
defendant must show (1) that counsel’s representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. People v Putman, 309 Mich App 240, 248;
870 NW2d 593 (2015). In this case, defendant’s claim fails because has not shown that any
evidence was improperly admitted at trial or that the prosecutor’s comments were improper.
Consequently, objection by counsel would have been futile, and “[f]ailing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.”


12
   Insofar as defendant suggests that the cumulative effect of the prosecutor’s errors merits
reversal, this argument fails because defendant has not shown error and, without error, there can
be no cumulative effect. Dobek, 274 Mich App at 106.


                                              -11-
Ericksen, 288 Mich App at 201. Thus, he has not established his ineffective assistance of
counsel claim. See id.; Putman, 309 Mich App at 248.

      Affirmed.



                                                      /s/ Donald S. Owens
                                                      /s/ Joel P. Hoekstra
                                                      /s/ Jane M. Beckering




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