           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



In re TODD MARTIN HOFFMAN, JR., Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 10, 2019
              Petitioner-Appellee,

v                                                                 No. 345923
                                                                  Wayne Circuit Court
TODD MARTIN HOFFMAN, JR.,                                         Family Division
                                                                  LC No. 16-522509-DL
              Respondent-Appellant.


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

PER CURIAM.

        In this juvenile delinquency case, respondent appeals as of right the order of disposition
committing him to Wayne County Children and Family Services for placement and care following the
trial court’s adjudication of respondent as responsible for third-degree criminal sexual conduct (CSC-
III), MCL 750.520d(1)(a), for sexually abusing TW. We affirm.

                                           I. BASIC FACTS

        In the late afternoon of an unspecified day in the summer of 2016, then 13-year-old TW was
alone in her family’s apartment watching television in the living room. Respondent, a friend of TW’s
older brother, DP, came to the apartment and asked if anyone was home. TW told respondent that she
was the only person in the apartment. He proceeded to push her down onto a mattress on the floor in the
living room. Then, respondent pulled down TW’s pants, pulled down his own pants, flipped TW onto
her stomach, and penetrated her with his penis. TW screamed and unsuccessfully attempted to get
respondent off of her. After respondent finished penetrating TW, he left without saying a word. When
TW went to the bathroom to clean herself up she noticed that she was bleeding. Shortly after this sexual
assault, TW developed a rash in her “lower area,” but was afraid to disclose it to her mother.




                                                  -1-
       TW had previously been sexually abused by a family member, 1 and that report of abuse upset her
mother. Because TW’s mother considered respondent to be “like a son,” TW was afraid to report
respondent’s sexual assault because she did not know what her mother’s reaction would be.
Additionally, TW blamed herself for the assault, believing she could have fought harder to prevent it.

        Within a couple of months of the sexual assault by respondent, TW was removed from her
mother’s care and placed in a facility. At the facility, TW participated in “journaling” with her
counselor; the two would communicate back and forth by writing in a notebook. TW disclosed the
sexual abuse that occurred in her past, and the counselor shared the information with TW’s therapist
who reported the incident to the police. Also after being placed in the facility, TW disclosed the rash,
and a medical evaluation revealed that TW had chlamydia, a sexually transmitted disease. She believed
that respondent gave her the disease because her symptoms occurred after his assault upon her.

        Detroit Police Officer Brian Herndon received a referral from child protective services (CPS) to
investigate TW’s claims. He scheduled a “Kids Talk” interview for TW, but noted that he was
concurrently investigating a case involving TW’s brother, DP. During the interview, TW disclosed
information regarding DP and “Todd.” Officer Herndon investigated “Todd” to discover his full name
and his location and requested a petition be filed against respondent. Officer Herndon learned that TW’s
brother, DP, began abusing her at a young age, it lasted for several years, and he pleaded guilty to the
sexual abuse. Following trial, the court found beyond a reasonable doubt that respondent was
responsible for third-degree CSC. From this decision, respondent appeals.

                                II. PROSECUTORIAL MISCONDUCT

       Respondent first contends that the prosecutor improperly bolstered TW’s credibility by eliciting
testimony from Officer Herndon regarding DP’s sexual abuse to portray TW as “a perpetual victim,”
information designed to “tip the scales” in her favor where there was no corroborating witnesses or
physical evidence. We disagree.

        To preserve an issue for appellate review in juvenile delinquency proceedings, the issue must be
raised in the trial court. In re Hildebrant, 216 Mich App 384, 388; 548 NW2d 715 (1996).
Additionally, “to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously
object and request a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d 627
(2010). Respondent failed to argue at trial that the prosecutor’s comments were improper and concedes
that the issue is unpreserved on appeal.

       “Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed de
novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279 Mich App
116, 134; 755 NW2d 664 (2008). Unpreserved issues, however, are reviewed for plain error. In re
Tiemann, 297 Mich App 250, 257; 823 NW2d 440 (2012), citing People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999).



1
  Although TW did not specifically identify DP as her assailant, she noted that the incident was upsetting
for her mother because it involved a “son” and “daughter.”


                                                   -2-
       To avoid forfeiture under the plain error rule, three requirements must 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. The third requirement generally requires a showing of
       prejudice, i.e., that the error affected the outcome of the lower court proceedings.
       [Carines, 460 Mich at 763 (quotation marks, citations, and brackets omitted).]

The appellant bears the burden of persuasion with respect to prejudice. See id. at 763 (“It is the
defendant rather than the Government who bears the burden of persuasion with respect to prejudice.”)
(quotation marks and citation omitted).

         Because juvenile delinquency proceedings are analogous to criminal proceedings, “this Court
routinely looks to the adult criminal code and cases that interpret it so long as they are not in conflict or
duplicative of a juvenile code provision.” In re Kerr, 323 Mich App 407, 414; 917 NW2d 408 (2018)
(citation and quotation marks omitted). “Generally, to prevail on a claim of prosecutorial misconduct, a
defendant must show that he was denied a fair and impartial trial.” People v Solloway, 316 Mich App
174, 201; 891 NW2d 255 (2016). A prosecutor’s comments should be considered in this context, but
“[a] defendant is entitled to a fair trial, not a perfect one.” Id. Prosecutorial comments must be viewed
“in light of defense arguments and the relationship they bear to the evidence admitted at trial,” Brown,
279 Mich App at 135 (citation omitted), and the propriety of such comments is dependent on “the
particular facts of each case,” People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003) (citation
omitted). Because “[t]he goal of a defense objection to improper remarks by the prosecutor is a curative
instruction,” appellate review of such remarks is generally precluded where the defendant failed to
request a curative instruction “unless the prejudicial effect of the remark[s] was so great that it could not
have been cured by an appropriate instruction.” People v Cross, 202 Mich App 138, 143; 508 NW2d
144 (1993) (citations omitted); see also People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994)
(noting that a defendant’s failure to timely object to improper remarks by the prosecution deprives the
trial court of an opportunity to administer a curative instruction). Likewise, reversal is unwarranted
where a “curative instruction could have alleviated any prejudicial effect.” Callon, 256 Mich App at
329-330 (citations omitted). Finally, prosecutorial misconduct “cannot be predicated on good-faith
efforts to admit evidence.” Solloway, 316 Mich App at 203.

         Respondent submits prosecutorial misconduct occurred by Officer Herndon’s testimony because
it improperly bolstered and made TW’s testimony more credible. We disagree. Officer Herndon
testified regarding the request by CPS to conduct an investigation, his concurrent investigation into
allegations against DP, and the reason he began to investigate respondent. Specifically, after TW was
removed from her family and placed in a facility, she received counseling and medical treatment. Her
treatment revealed she was infected with chlamydia, a sexually transmitted disease, which TW
associated with the sexual assault by respondent because the symptoms appeared in proximity to the act.
During the journaling process with her counselor, TW disclosed the sexual abuse that prompted the CPS




                                                    -3-
report to the police and the Kids Talk2 interview. Because TW only referred to respondent as “Todd,”
Officer Herndon was tasked with learning his full name and location.

        There is no indication that the prior sexual abuse of TW committed by DP was improperly
admitted by the prosecutor to bolster TW’s credibility. Rather, the testimony about the disclosure of the
prior sexual abuse was relevant to provide a foundation with regard to how the police investigation later
included respondent. The record lacks any argument or insinuation by the prosecutor that other
allegations of sexual abuse that resulted in a guilty plea by DP rendered TW’s allegations against
respondent credible. The prosecutor also failed to argue that TW was a “perpetual victim.” Rather, in
closing argument, the prosecutor noted that TW failed to report respondent’s sexual assault in proximity
to its occurrence and could not recall specific details, such as the exact date of the assault and her
clothing at the time. The prosecutor attributed the delay in reporting and the inability to recall specific
details to the lack of family support following the prior abuse disclosure, and did not attempt to bolster
the credibility of the allegations against respondent by a prior unrelated sexual assault committed by a
family member. Additionally, there is no indication that the officer’s testimony was elicited in bad faith.
Solloway, 316 Mich App at 203. Thus, when the prosecutor asked Officer Herndon whether respondent
was mentioned in a Kids Talk interview conducted to investigate DP, it was not prosecutorial
misconduct. Bennett, 290 Mich App at 477 (the prosecutor’s questioning did not constitute misconduct
“but merely provided a context for the jury of the officer’s investigation and how it eventually led to
defendants.”)

        Finally, even if we assume that the prosecutor elicited this testimony to improperly bolster the
credibility of TW, the testimony was disclosed in a bench trial. “A judge, unlike a juror, possesses an
understanding of the law which allows him to ignore [evidentiary] errors and to decide a case based
solely on the evidence properly admitted at trial.” People v Taylor, 245 Mich App 293, 305; 628 NW2d
55 (2001) (quotation marks and citation omitted). As such, the trial judge is presumed to have found
respondent responsible for CSC-III on the basis of the evidence, not the prosecutor’s comments.
Furthermore, even if we assume that the trial judge failed to disregard the prosecutor’s impropriety, any
error was not clear and obvious. Consequently, the error was not plain. See Carines, 460 Mich at 763.
Additionally, respondent has not shown that the prosecutor’s comments affected the outcome of trial.
This claim of error does not entitle respondent to appellate relief.

                                   III. ADMISSION OF EVIDENCE

       Next, respondent asserts that the trial court plainly erred by admitting irrelevant evidence that
respondent’s name was mentioned during a Kids Talk interview, while investigating DP, and by
admitting irrelevant evidence about DP sexually abusing TW in the past. We disagree.

       When preserved, this Court “review[s] for an abuse of discretion a trial court’s decision to
exclude evidence.” In re Kerr, 323 Mich App at 411. Respondent concedes that the issue is



2
  Although respondent’s counsel mentioned that he viewed the Kids Talk interview, and it is apparent
from the record that the parties were aware of the content of the interview, it was not preserved in the
lower court record.


                                                   -4-
unpreserved. Unpreserved issues are reviewed for plain error.        Carines, 460 Mich at 763; In re
Tiemann, 297 Mich App at 257.

        “[T]he Michigan Rules of Evidence apply in juvenile-delinquency trials.” In re Kerr, 323 Mich
App at 413. “Generally, all relevant evidence is admissible at trial.” People v Aldrich, 246 Mich App
101, 114; 631 NW2d 67 (2001). Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” People v Martzke, 251 Mich App 282, 293; 651 NW2d 490 (2002)
(citation and quotation marks omitted). “Under this broad definition, evidence is admissible if it is
helpful in throwing light on any material point.” Aldrich, 246 Mich App at 114.

        Under MRE 403, however, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” “MRE 403 does not prohibit prejudicial evidence; rather, it prohibits evidence that is
unfairly prejudicial. In essence, evidence is unfairly prejudicial when there exists a danger that
marginally probative evidence might be given undue weight by the jury.” People v Dixon-Bey, 321
Mich App 490, 513; 909 NW2d 458 (2017). Finally, “[t]he credibility of a witness is an issue that is of
the utmost importance in every case.” People v McIntire, 232 Mich App 71, 102; 591 NW2d 231, 246
(1998), rev’d on other grounds 461 Mich 147 (1999). See also In re Dearmon, 303 Mich App 684, 696;
847 NW2d 514 (2014) (“[e]vidence bearing on a witness’s credibility is always relevant.”).

        Respondent argues that evidence of respondent’s name being mentioned during a Kids Talk
interview conducted during an investigation of DP was not relevant. The purpose of the Kids Talk
interview was to explore the allegations of sexual abuse raised by TW to her counselor through
journaling. Respondent assumes, without citation to the record, that the purpose of the interview was
limited to an investigation of DP. However, TW testified that she used the notebook to disclose events
that occurred “in her past,” and identified “Todd” as an assailant, a disclosure that caused Officer
Herndon to also investigate respondent. Thus, the evidence was relevant and in accordance with the
reason for the interview.

        Respondent also argues that evidence of DP sexually abusing TW in the past was not relevant,
but prejudicial. We disagree. Again, TW testified that a prior report of sexual abuse was not acted upon
by her mother. Upon discovering a medical condition, TW was scared to report it to her mother because
of the consequences. Once removed from her home environment, TW reported the medical condition
and eventually journaled her prior abuse by DP and respondent. Thus, the revelation of abuse by DP
was relevant to show how the police investigation led to respondent. Further, because the admission of
this evidence occurred in a bench proceeding where the trial judge presumptively possesses an
understanding of the law and decides a case solely based on properly admitted evidence, Taylor, 245
Mich App at 305, this claim of error is without merit.

       Affirmed.

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


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