                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 14, 2017
                Plaintiff-Appellee,

v                                                                   No. 329676
                                                                    Macomb Circuit Court
MICHAEL ANGELO DITRAPANI,                                           LC No. 2014-003849-FC

                Defendant-Appellant.


Before: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(2)(b), and two counts of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(2)(b). We affirm.

                         I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant contends that defense counsel rendered ineffective assistance of counsel on a
number of grounds. We disagree. Because defendant did not raise this claim in the trial court,
and this Court denied his motion to remand for a Ginther1 hearing, our review is limited to errors
apparent on the record. See People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
Thus, if the record does not contain sufficient detail to support the claim, defendant has
effectively waived the issue. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

        Criminal defendants have a right to effective assistance of counsel under both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. To prevail on an
ineffective assistance of counsel claim, the defendant must show: (1) that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms, and (2)
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012) (quotation
marks and citation omitted). “Effective assistance of counsel is presumed, and the defendant



1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


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bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820
NW2d 229 (2012) (quotation marks and citation omitted).

                              A. FAILURE TO MAKE A MOTION

       Defendant first argues that he received ineffective assistance of counsel because defense
counsel failed to file a motion to adjourn trial and to revisit defendant’s previous request for a
forensic investigation “of the complainants’ and witnesses’ electronics,” after counsel learned of
additional evidence supporting that request. We disagree.

        Prior to defendant’s trial, defense counsel filed a motion requesting a forensic
examination of various electronic devices and social networking/media sites used by the two
minor victims and their mother on the ground that such analysis “may” show that the allegations
against him were fabrications. The trial court denied this request, holding that the request
constituted a “fishing expedition” and was not necessary to defendant’s defense. Subsequently,
defendant argues, defense counsel learned that defendant had “caught” the two minor victims,
ages 12 and 13, “hiding” in a bathroom while they chatted and exchanged photographs with an
older man they had met on a dating website. Defendant argues that, after learning this
information, defense counsel should have “immediately filed a motion to adjourn the trial, and to
revisit defendant’s motion for forensic investigation.” Defendant claims that, because counsel
failed to do so, he was denied information necessary to his defense.

        The decision whether to make a motion is a matter of trial strategy and professional
judgment entrusted to a defendant’s trial counsel. People v Traylor, 245 Mich App 460, 463;
628 NW2d 120 (2001). And it is clear from the record in this case that defense counsel may
reasonably have concluded that the trial court would not revisit defendant’s request for a
“forensic investigation” because counsel had already argued that such an investigation might
lead to evidence helpful to the defense and the trial court disagreed. This purportedly “new”
information was not likely to cause the trial court to rule differently. That is, even if the victims
were “chatting” with an older man on a social website using their electronic devices as defendant
claimed, such evidence would not tend to discredit or refute the victims’ claims that defendant
sexually assaulted them and the manner in which they alleged he did so. “[T]rial counsel cannot
be faulted for failing to raise an objection or motion that would have been futile.” People v Fike,
228 Mich App 178, 182; 577 NW2d 903 (1998). Therefore, on this record, we cannot conclude
that defense counsel’s failure to renew the motion fell below an objective standard of
reasonableness under prevailing professional norms. See Vaughn, 491 Mich at 669.

                         B. CROSS-EXAMINATION OF WITNESSES

        Defendant also contends that he received ineffective assistance of counsel because
defense counsel failed to adequately cross-examine the two victims and another minor-witness,
ES, AS, and ED, as to whether “they had encountered anything of a sexual nature on the internet,
or on social media.” We disagree.

        “Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Additionally,
“[d]ecisions regarding what evidence to present and whether to call or question witnesses are

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presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d
887 (1999). “We will not substitute our judgment for that of counsel on matters of trial strategy,
nor will we use the benefit of hindsight when assessing counsel’s competence.” People v Unger,
278 Mich App 210, 242-243; 749 NW2d 272 (2008). “A sound trial strategy is one that is
developed in concert with an investigation that is adequately supported by reasonable
professional judgments.” People v Grant, 470 Mich 477, 486; 684 NW2d 686 (2004). However,
“[c]ounsel may provide ineffective assistance if counsel unreasonably fails to develop the
defendant’s defenses by adequately impeaching the witnesses against the defendant.” People v
Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014).

        In his brief on appeal, defendant argues that if defense counsel had adequately cross-
examined ES, AS, and ED on their exposure to “anything of a sexual nature on the internet, or on
social media,” there is a reasonable probability that the jury would have acquitted him. In other
words, the crux of defendant’s argument is that such elicited information may have discredited
their testimony. Contrary to defendant’s argument, the record reveals that defense counsel
questioned ES, AS, and ED on their use of electronics and specifically their use of “Amigo,”
which ES explained was “an app for talking to strangers.” And defense counsel successfully
elicited testimony from ED that defendant had caught ES chatting with an older man on Amigo.
Defense counsel also elicited testimony from all three witnesses regarding the details of each
alleged sexual assault incident in an attempt to illustrate discrepancies between each witness’s
reporting of those incidents. Defense counsel was not required to further question ES, AS, and
ED because the cross-examination of each witness was a matter of trial strategy that we will not
second-guess. See Unger, 278 Mich App at 242-243; Rockey, 237 Mich App at 76. Therefore,
on this record, we cannot conclude that defense counsel’s cross-examination of the witnesses fell
below an objective standard of reasonableness under prevailing professional norms. See
Vaughn, 491 Mich at 669.

        C. FAILURE TO OBJECT TO ALLEGED PROSECUTORIAL MISCONDUCT

       Finally, defendant argues that he received ineffective assistance of counsel because
defense counsel failed to object on the basis of alleged prosecutorial misconduct. We disagree.

        As discussed in more detail below, the prosecutor’s line of questioning posed to the
mother of the two victims and the prosecutor’s statements made during closing and rebuttal
arguments were proper and did not constitute prosecutorial misconduct. See People v Meissner,
294 Mich App 438, 456; 812 NW2d 37 (2011). Because the prosecutor’s statements were
proper, defense counsel was not required to make a meritless objection. See Fike, 228 Mich App
at 182. Accordingly, defendant fails to establish a claim for ineffective assistance of counsel.
See Vaughn, 491 Mich at 669.

                            II. PROSECUTORIAL MISCONDUCT

       Next, defendant contends that the prosecutor committed misconduct when she improperly
vouched for the credibility of the two victims and appealed to the jurors’ sympathy. We
disagree. A defendant must “contemporaneously object and request a curative instruction” to
preserve an issue of prosecutorial misconduct for appellate review. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Defense counsel did not object at any point during the

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trial on the basis of prosecutorial misconduct, and did not request a curative instruction from the
trial court. Thus, defendant’s claims are unpreserved and reviewed for plain error affecting his
substantial rights. People v Kowalski, 489 Mich 488, 505-506; 803 NW2d 200 (2011); People v
Gibbs, 299 Mich App 473, 482; 830 NW2d 821 (2013).

        “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
“[A]llegations of prosecutorial misconduct are considered on a case-by-case basis, and the
reviewing court must consider the prosecutor’s remarks in context.” Bennett, 290 Mich App at
475. The prosecutor’s comments are evaluated “in light of defense counsel’s arguments and the
relationship of these comments to the admitted evidence.” People v Seals, 285 Mich App 1, 22;
776 NW2d 314 (2009).

        A prosecutor is generally given “great latitude regarding his or her arguments and
conduct at trial,” People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010), and is not
required to confine his or her “argument to the blandest possible terms,” People v Dobek, 274
Mich App 58, 66; 732 NW2d 546 (2007). Moreover, “[c]urative instructions are sufficient to
cure the prejudicial effect of most inappropriate prosecutorial statements.” Seals, 285 Mich App
at 22. “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).

                    A. VOUCHING FOR CREDIBILITY OF WITNESSES

        Defendant argues that the prosecutor improperly vouched for the credibility of ES and
AS when she posed the following question to their mother, Catherine: “After the CARE House
interview, on September 11, 2014[,] did there come a time when you became more sure of the
truth in the allegation?”

       “[A] prosecutor may not vouch for the credibility of a witness or suggest that he or she
has some special knowledge that the witness is testifying truthfully.” People v Roscoe, 303 Mich
App 633, 649; 846 NW2d 402 (2014). But here, considering the prosecutor’s statements in
context, the prosecutor did not improperly vouch for the credibility of ES and AS. First, with
respect to Catherine’s testimony, defendant mischaracterizes the prosecutor’s question as an
attempt to elicit improper opinion testimony. In relevant part, the following exchange occurred
between the prosecutor and Catherine:

              [Prosecutor]: Prior to the allegations being made, was there ever a time
       when the girls told you what was happening?

               [Catherine]: No.

             [Prosecutor]: Had they told you that something was happening, how
       would you have reacted? What would you have done?

              [Catherine]: If they had told me that something was happening I would
       have taken all four girls, taken them out of the home and called [the] police and
       then sorted it out later.


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                [Prosecutor]: Was there ever a time when you and Paul had been working
       during the day at [sic] the Defendant had been home with the girls that you would
       get home from work and there had been one of these days when, you know, they
       all [sic] been fussing at each other and been kind of a rough day within the house
       that the girls rushed up to you and, you know, blurted out, “he grabbed me?”
       Anything of that nature that, you know, caused you any concern?

               [Catherine]: No.

               [Prosecutor]: After the CARE House interview, on September 11, 2014[,]
       did there come a time when you became more sure of the truth in the allegation?

               [Catherine]: Yes.

               [Prosecutor]: When was that?

               [Catherine]: It would have been on the following Monday.

               [Prosecutor]: The Monday after the CARE House interview?

               [Catherine]: Yes.

         Based on the prosecutor’s line of questioning, she was not trying to elicit opinion
testimony as to whether ES’s and AS’s accusations were truthful as defendant suggests; rather,
the prosecutor was trying to establish a foundation setting forth the timeline of when Catherine
first learned of the specific details of the allegations. Because Catherine testified that she was
initially unaware of the specific details surrounding the CPS complaint, the prosecutor’s line of
questioning was permissible to further develop Catherine’s testimony and to establish when she
first became aware that ES’s and AS’s allegations were that defendant sexually assaulted them.
See People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003) (“The prosecutor’s
good-faith effort to admit evidence does not constitute misconduct.”). Thus, defendant fails to
demonstrate that plain error has occurred. See Kowalski, 489 Mich at 505-506.

         Defendant also argues that the prosecutor committed misconduct when she made the
following statements during her closing argument: (1) “[T]hey are being truthful because they
are telling you exactly what happened to them, and they don’t have any reason to make it up,”
(2) “[W]hat happened to them is what they told you happened to them,” and (3) “They don’t
have any reason to lie. They have nothing to gain by lying in this case.” By making these
statements in her closing argument, defendant contends the prosecutor improperly injected her
personal opinion that the victims’ testimony was truthful.

        However, “a prosecutor may comment on his own witnesses’ credibility during closing
argument, especially when there is conflicting evidence and the question of the defendant’s guilt
depends on which witnesses the jury believes.” People v Thomas, 260 Mich App 450, 455; 678
NW2d 631 (2004). And, here, the prosecutor did not improperly vouch for the credibility of ES
and AS by commenting on the credibility of her witnesses, especially in light of the conflicting
evidence presented at trial. More specifically, both ES and AS testified that defendant sexually
assaulted them. Defendant took the stand and denied ever touching either victim. Instead,

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defendant testified that he believed Catherine was using ES and AS “as a pawn to get [him] out
of [Paul Simpson’s] house permanently.” Because of this conflicting evidence, defendant’s guilt
depended on which witnesses the jury believed, and thus, the prosecutor’s statements were not
improper. See id.

        Moreover, the trial court instructed the jurors to only consider the evidence presented at
trial and not the lawyers’ statements and arguments, and reminded them that their job included
determining the credibility of each witness. These instructions were sufficient to cure any
potential prejudicial effect, and defendant fails to rebut the presumption that the jury followed
the court’s instructions. See Abraham, 256 Mich App at 279.

                          B. APPEAL TO THE JURY’S SYMPATHY

       Next, defendant argues that the prosecutor improperly appealed to the jury’s sympathy,
and as a result, prejudiced defendant. More specifically, defendant challenges the following
arguments made by the prosecutor during her closing argument: (1) “You all now have the
opportunity to view him in a different light than the character witnesses who still think that he is
God’s greatest gift,” and (2) “Your decision today is not going to restore [ES] and [AS] to their
former self but it can certainly put them on the path to moving forward.” Additionally,
defendant challenges the following statements made by the prosecutor during her rebuttal
argument:

              I want you to think about the case as a puzzle. Everybody has done
       puzzles, whether you do small puzzles or big puzzles, some times [sic] you get to
       the end there is [sic] some pieces missing. And let’s say that you are doing a
       puzzle with the American flag on it. One of the huge thousand piece puzzles.

                                              * * *

               In this case the analogy of the missing pieces are the inconsistencies in the
       case and there were inconsistencies. We know that. And we all acknowledge
       that, but the question is [sic] the end of the day when you go back to deliberate
       about the testimony, those inconsistencies. Those missing puzzle pieces is [sic]
       not enough for you not to know the big picture of being the American flag.

       “Appeals to the jury to sympathize with the victim constitute improper argument.”
People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). Although a prosecutor may
not argue facts unsupported by the evidence or mischaracterize the evidence presented, the
prosecutor may argue reasonable inferences from the evidence. Id. at 588.

       At trial, defendant presented two character witnesses—his brother Anthony and his
nephew. First, Anthony took the stand. When asked by defense counsel how he would describe
his brother, Anthony responded, “he’s big hearted, but he has a mean streak.” Defendant’s
nephew took the stand next. When defense counsel asked him how he would describe defendant,
his nephew responded, “Loving, caring uncle. You know stern, but respectful.” Both witnesses
acknowledged that they had no personal knowledge of the sexual assault incidents involving
defendant. Based on this evidence presented at trial, it was reasonable for the prosecutor to
comment on the jury’s opportunity to view the credibility of these witnesses, and thus, defendant
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failed to establish that plain error occurred. See Kowalski, 489 Mich at 505-506; Watson, 245
Mich App at 588.

        Additionally, the prosecutor’s statement, “Your decision today is not going to restore
[ES] and [AS] to their former self but it can certainly put them on the path to moving forward,”
was a reasonable inference based on the evidence presented at trial. Both ES and AS testified to
their own separate sexual assault incidents involving defendant. Each one also testified that they
were under 13 years old when these incidents occurred. Thus, based on this evidence, it was
reasonable for the prosecutor to comment and infer that, because of their age and exposure to
sexual assault, they could find comfort in the jury returning a guilty verdict. Accordingly,
defendant failed to establish that plain error occurred. See Kowalski, 489 Mich at 505-506;
Watson, 245 Mich App at 588.

        Finally, the prosecutor’s statements referencing a puzzle of the American flag did not
constitute misconduct. A review of the record reveals that the prosecutor’s statements were in
response to defense counsel’s statement made during his closing argument that the evidence
could be viewed as being similar to a jig-saw puzzle. Because the prosecutor’s statements were
made in response to defense counsel’s reference during his closing argument, there is no error.
See Watson, 245 Mich App at 593.

        Moreover, the trial court instructed the jurors not to let sympathy or prejudice influence
their decision and not to consider the lawyers’ statements and arguments as evidence when
making a decision. These instructions were sufficient to cure any potential prejudicial effect of
any alleged error, and defendant fails to rebut the presumption that the jury followed the court’s
instruction. See Abraham, 256 Mich App at 279. Accordingly, defendant has failed to show that
he was denied a fair and impartial trial as a consequence of prosecutorial misconduct. See
Brown, 279 Mich App at 134.

       Affirmed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Kirsten Frank Kelly




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