                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED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

v                                                                 No. 325264
                                                                  Newaygo Circuit Court
JOHN THOMAS WIREMAN,                                              LC No. 14-010737-FC

                Defendant-Appellant.


Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(b) (victim at least 13 but less than 16 years
of age and related to the actor or a member of the same household).1 We affirm.

                                       I. BACKGROUND

       The victim testified at trial that when she was between 12 and 15 years old, she visited
her cousin Melissa’s apartment in White Cloud every weekend. Defendant was Melissa’s
husband at the time. The victim often babysat Melissa’s children while Melissa left the
apartment to run errands. During such times, the victim and defendant were the only people in
the apartment except for the very young children. The victim testified that when she was 12 or
13 years old, defendant put his hand down her pants and put his finger inside her vagina while
they were alone in the White Cloud apartment. The victim further testified that when she was
between 13 and 15 years old, defendant forced her to perform fellatio on him and he engaged in
vaginal and anal intercourse with her. She testified that these encounters occurred nearly every
time she visited the apartment.

                                 II. PROSECUTORIAL ERROR

        Defendant first argues on appeal that the prosecutor committed misconduct2 when he
elicited certain testimony from Sara Smith, a worker from Child Protective Services (CPS).


1
    Defendant was acquitted of three counts of third-degree CSC, MCL 750.520d.


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Defendant argues that Smith’s testimony constituted improper vouching for the victim’s
credibility. We review defendant’s unpreserved claim of prosecutorial error for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). The
test for prosecutorial error is “whether a defendant was denied a fair and impartial trial.” People
v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). We decide issues of prosecutorial error
on a case by case basis, considering the record as a whole and evaluating the prosecutor’s
remarks in context. Id. at 64. A defendant may not base a claim of prosecutorial error on a
prosecutor’s good-faith efforts to admit evidence. People v Noble, 238 Mich App 647, 660-661;
608 NW2d 123 (1999). “The 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.” Id.

        Subject to MRE 403, a prosecutor may offer any relevant evidence. MRE 402; People v
Mills, 450 Mich 61, 70; 537 NW2d 909, mod 450 Mich 1212 (1995). A witness’s credibility is
always an appropriate topic of consideration for the jury. People v Coleman, 210 Mich App 1, 8;
532 NW2d 885 (1995). However, “[i]t is generally improper for a witness to comment or
provide an opinion on the credibility of another witness, because credibility matters are to be
determined by the jury.” Dobek, 274 Mich App at 71. “Such comments have no probative value
because they do nothing to assist the jury in assessing witness credibility in its fact-finding
mission and in determining the ultimate issue of guilt or innocence.” People v Musser, 494 Mich
337, 349; 835 NW2d 319 (2013) (citations and quotation marks omitted).

        Defendant specifically argues that the prosecutor erred by eliciting testimony from Smith
that she interviewed the victim using the Michigan Forensic Interviewing Protocol (MFIP).
Smith testified that the MFIP was used for the purpose of obtaining truthful information from
child interviewees. The record does not reveal that, by eliciting the testimony, the prosecutor
was attempting to have Smith improperly vouch for the victim’s credibility. Rather, the
prosecutor was merely trying to clarify the process by which Smith interviewed the victim,
which is relevant “to a fact-finder trying to determine the weight and credibility of the victim’s
account of the charged offenses.” People v Tesen, 276 Mich App 134, 144; 739 NW2d 689
(2007). Smith did not provide an opinion on the credibility of the victim by describing the
MFIP. Accordingly, defendant has not shown that the prosecutor’s conduct was anything other
than a good-faith effort to admit evidence.

         Defendant next argues that the prosecutor erred by eliciting the following testimony from
Smith:

                Q. Did you open a file, a case, or what do you call it?



2
  This Court recently explained that although the phrase “prosecutorial misconduct” has become
a term of art in criminal appeals, the term “misconduct” is only properly applied in extreme
instances in which a prosecutor’s conduct is illegal or violates the rules of professional conduct.
People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015). Claims such as those
presented here are more fairly characterized as claims of “prosecutorial error.” Id. at 88.


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               A. Yes, we substantiated; meaning we found preponderance of evidence
       in our case.

        The Michigan Supreme Court recently held that a CPS worker’s testimony that a victim’s
“allegations had been substantiated” “violated the well-established principle that ‘it is improper
for a witness or an expert to comment or provide an opinion on the credibility of another person
while testifying at trial.’ ” People v Douglas, 496 Mich 557, 583; 852 NW2d 587 (2014),
quoting Musser, 494 Mich at 349.3 However, there is no indication that the prosecutor elicited
this testimony in bad faith. The prosecutor simply asked Smith whether she opened a case to
provide context for the events. See People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996).
Smith then provided a nonresponsive answer. A witness’s nonresponsive answer to a
prosecutor’s question does not constitute prosecutorial error unless the prosecutor knew,
encouraged, or conspired with the witness to provide the unresponsive testimony. See People v
Hackney, 183 Mich App 516, 531; 455 NW2d 358 (1990). Because nothing in the record
suggests that the prosecutor knew or encouraged Smith’s nonresponsive answer, defendant has
not established prosecutorial error in this regard.

       However, we agree with defendant that the prosecutor erred when, immediately after
Smith provided the nonresponsive testimony that CPS substantiated its case against defendant,
he questioned Smith about the people CPS interviewed during its investigation. Specifically, the
prosecutor asked Smith how many people CPS interviewed, whether CPS interviewed Melissa
and defendant’s children, whether CPS interviewed defendant’s children with other women,
whether those children had reached puberty, and whether CPS interviewed anyone besides the




3
  It is unclear from Douglas whether a statement that CPS “substantiated” its case against a
defendant, standing alone, is impermissible. In Douglas, 496 Mich at 583, the CPS worker’s
testimony that a complainant’s “allegations had been substantiated” was also accompanied by a
statement that “there was no indication that [the complainant] was coached or being untruthful.”
The Supreme Court concluded that this constituted improper vouching for the complainant’s
credibility. Id. In this case, as it would be in any criminal prosecution, it seems apparent that all
in the chain of events leading to trial, from the victim’s grandmother, to CPS, the police, the
prosecutor, the magistrate, and the district judge at the preliminary exam, concluded that the
allegations against defendant had been “substantiated” to some degree. The testimony of a CPS
worker that she had “substantiated” the allegations, without more, seems merely to be stating the
obvious fact that she found merit in the complainant’s allegations against defendant. Making
such a statement at trial would not seem unduly prejudicial to a defendant because it is not a
direct commentary on the complainant’s truthfulness. However, in light of the fact that Smith
testified that CPS substantiated its case against defendant, and identified the evidentiary standard
used (i.e., suggesting that in the worker’s mind a preponderance of all the evidence in the case
indicated the defendant’s guilt), we conclude that this testimony rose to the level of improper
vouching under Douglas.


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victim who was not a blood relative of defendant. Smith answered that CPS interviewed eight of
defendant’s children during its investigation and provided various details regarding the children.4

        Considering the circumstances of this case, we conclude that Smith’s testimony was
inadmissible under MRE 403. The testimony regarding CPS’s additional interviews had some
probative value because it served to bolster the victim’s credibility by implying that the
children’s interviews supported the allegations against defendant. See Coleman, 210 Mich App
at 8. However, the probative value of the testimony was limited because Smith did not testify
regarding what the children actually said. Because Smith gave this testimony immediately after
testifying that CPS substantiated its case against defendant, we conclude that the marginally
probative value of the evidence was substantially outweighed by the danger that the jury would
give the testimony preemptive or undue weight by concluding that CPS’s interviews of the
children yielded evidence that allowed it to substantiate its case against defendant. See Douglas,
496 Mich at 583. Giving Smith’s testimony such weight would be “substantially out of
proportion to its logically damaging effect.” Mills, 450 Mich at 75-76 (quotation marks and
citation omitted). For these reasons, the testimony was inadmissible under MRE 403. The
prosecutor exhibited a “pattern of eliciting inadmissible testimony” by asking Smith several
questions regarding CPS’s interviews of children other than the victim. People v Watson, 245
Mich App 572, 587; 629 NW2d 411 (2001) (quotation marks and citation omitted). Therefore,
we conclude that the prosecutor erred in this one respect.

       Nonetheless, reversal is not required because the prosecutor’s error did not affect the
outcome of the proceedings. Carines, 460 Mich at 763. The jury convicted defendant of three
counts of CSC I under MCL 750.520b(1)(b), which states in relevant part the following:

                 (1) A person is guilty of criminal sexual conduct in the first degree if he or
          she engages in sexual penetration with another person and if any of the following
          circumstances exists:

                                                * * *

                  (b) That other person is at least 13 but less than 16 years of age and any of
          the following:

                 (i) The actor is a member of the same household as the victim.

                 (ii) The actor is related to the victim by blood or affinity to the fourth degree.

       Defendant does not dispute that the victim was at least 13 but less than 16 years old at the
time of the alleged sexual abuse, that he was a member of the same household as the victim, or
that he was related to the victim by affinity. Rather, defendant only disputes that the sexual
abuse took place. The victim provided extensive and detailed testimony at trial regarding the
abuse, and a victim’s testimony need not be corroborated in a prosecution for CSC I.


4
    We note that Smith did not testify as to what any of the children said during their interviews.


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MCL 750.520h; People v Phelps, 288 Mich App 123, 132; 791 NW2d 732 (2010). Smith also
testified that the victim’s grandmother indicated that the victim told her defendant once
threatened the victim for sex. Further, Melissa’s testimony corroborated the victim’s testimony
that the victim and defendant were often the only people in the White Cloud apartment, except
for Melissa’s young children. Additionally, although Smith’s testimony regarding the CPS
interviews of children other than the victim was improper, Smith did not testify regarding what
specific information the children provided, and she did not explicitly comment on the victim’s
credibility.

        Moreover, to the extent that defendant was prejudiced by Smith’s testimony, the trial
court’s jury instructions cured any error. After Smith testified about CPS substantiating its case
against defendant by a preponderance of the evidence, the trial court instructed the jury that the
presumption of defendant’s innocence “continues throughout the trial and entitles the defendant
to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that he is guilty.”
The court’s instruction emphasized that the jury was required to use the stricter beyond a
reasonable doubt standard, as opposed to the preponderance of the evidence standard mentioned
by Smith. “Jurors are presumed to follow their instructions, and instructions are presumed to
cure most errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

        Additionally, we will not find error requiring reversal if a curative instruction could have
alleviated any prejudicial effect. People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818
(2003). In this case, a curative instruction to the jury to disregard Smith’s nonresponsive
testimony regarding the substantiated CPS case and her testimony about interviewing children
other than the victim could have alleviated the prejudicial effect of the testimony. Further, the
prosecutor did not argue or imply during closing argument or rebuttal that the CPS interviews of
children other than the victim bolstered the victim’s credibility. For all of the above reasons, we
conclude that the prosecutor’s error did not affect the outcome of the proceedings, so reversal is
not required. See Carines, 460 Mich at 763.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that defense counsel was ineffective for failing to object to Smith’s
challenged testimony. “Whether a person has been denied effective assistance of counsel is a
mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). We review a trial court’s factual findings for clear error, and review
constitutional questions de novo. Id. Review of unpreserved ineffective assistance claims, like
the one presented here, is limited to errors apparent on the record. People v Matuszak, 263 Mich
App 42, 48; 687 NW2d 342 (2004).

        To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that, but for counsel’s
errors, there is a reasonable probability that the outcome of the trial would have been different.
People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). A defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy. People v Riley, 468
Mich 135, 140; 659 NW2d 611 (2003). “Counsel is not ineffective for failing to make a futile
objection.” People v Horn, 279 Mich App 31, 39-40; 755 NW2d 212 (2008).


                                                -5-
        Defendant first challenges his counsel’s failure to object to Smith’s testimony regarding
the MFIP interview. As explained above, this testimony was admissible, so any objection would
have been futile. Defendant next challenges his counsel’s failure to object to Smith’s testimony
that CPS substantiated its case against defendant, and Smith’s testimony regarding the CPS
interviews of children other than the victim. We agree that defense counsel’s performance fell
below an objective standard of reasonableness when she failed to object to this inadmissible
testimony. See Douglas, 496 Mich at 583-585 (holding that defense counsel’s failure to object
to a CPS worker’s testimony that “allegations had been substantiated” fell below an objective
standard of reasonableness). Contrary to the prosecution’s argument on appeal, defense
counsel’s failure to object was not supported by any sound or reasonable trial strategy. See id. at
586 (“We see no sound strategy in counsel’s failure to object to the vouching testimony . . . .”).

        Nonetheless, defendant has not shown that there is a reasonable probability that the
outcome of the proceedings would have been different absent counsel’s errors. As discussed
above, the victim provided detailed and extensive testimony about defendant’s sexual abuse and
Melissa corroborated the victim’s testimony that she and defendant were often alone together.
Although Smith’s testimony was improper, she did not explicitly comment on the victim’s
credibility, and after her testimony, the trial court provided a jury instruction that we presume
cured any error. Under these circumstances, defendant has not shown that reversal is warranted.

        Finally, defendant’s argument that our Supreme Court’s holding in Douglas, 496 Mich
557, requires reversal also fails. In Douglas, the defendant was convicted of CSC after a trial
that was replete with evidentiary errors. Id. at 564-566. Specifically, the trial court erroneously
admitted two out-of-court statements made by the child victim, and defense counsel did not
object to three witnesses offering inadmissible testimony vouching for the child’s credibility. Id.
at 566. The court noted that the error in admitting the testimony was not harmless because the
testimony “added clarity, detail, and legitimacy to” the victim’s testimony in a case that “hinged
wholly on the credibility of [the victim’s] allegations.” Id. at 581, 586. The errors in this case
are not so encompassing or cumulative that they warrant reversal.

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ Stephen L. Borrello
                                                            /s/ Michael F. Gadola




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