                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 22, 2018
               Plaintiff-Appellee,

v                                                                   No. 333916
                                                                    Macomb Circuit Court
JONATHAN ERNEST MANWELL,                                            LC No. 2015-002139-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and SHAPIRO, 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)(i) and (ii), and two counts of second-
degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b)(i) and (ii). The trial court
sentenced defendant to concurrent prison terms of 15 to 30 years for each CSC-I conviction, and
10 to 15 years for each CSC-II conviction. We affirm.

                                I. FACTS AND PROCEEDINGS

         Defendant was convicted of sexually abusing his daughter, DM. Defendant was not
involved in DM’s life until she was about eight years old. DM grew up with her mother, CM,
her stepfather DB, and two siblings who were born to CM and DB. CM reunited with defendant
and married him in 2012, after she divorced DB. According to testimony at trial, DM grew
emotionally close to defendant after he became a part of her life. Defendant spent time with DM
in her bedroom at night, talking with her after she went to bed. DM sometimes urged defendant
to stay. CM allegedly resented defendant’s exclusive attention to DM. At trial, DM testified that
she valued her closeness with defendant, but claimed he sometimes engaged in inappropriate
conduct with her. When she was 12 years old, he began having explicit conversations with her
about sex. According to DM, when she was 14 years old, defendant sometimes fondled, licked,
and kissed her breasts, and also digitally penetrated her vagina. These incidents took place in her
bedroom during defendant’s nighttime visits, and also in a recreation room in the basement. DM
testified that during the years in which the abuse occurred, there were also time periods when
defendant did not abuse her.

        DM did not disclose the abuse until March 18, 2017. On March 17, DM was the victim
of a bullying incident by another girl at school. When defendant learned about the incident that
night, he reacted angrily and blamed DM because he believed that DM gave the girl “ammo” to
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bully her. Nonetheless, DM asked defendant to stay with her at bedtime. Defendant stayed in
her room, and fell asleep in DM’s bed. DM testified at trial that she fell asleep and awoke to find
that defendant had his hand in her pants and was touching her vaginal area. Later, when CM
came for defendant, he spent the rest of the night in the living room, where he and CM slept.

        The next morning at school, DM told four of her friends at school that defendant sexually
molested her. DM also told two teachers. The school contacted the police and Child Protective
Services (CPS). Jennifer Raleigh, a CPS investigator, and Jean Reid, a police officer,
interviewed DM at the school. Detective John Newman also later interviewed DM and CM.
Defendant also voluntarily agreed to be interviewed by Newman.

       Defendant initially accepted a plea agreement to plead no contest to one charge of fourth-
degree CSC (CSC-IV), but he later withdrew the plea after stating that he had “found the
answer” and “proved it out completely.” Defendant was charged with three counts of CSC-I,
two counts of CSC-II, and one count of third-degree criminal sexual conduct (CSC-III). A jury
convicted defendant of the CSC-I and CSC-II charges, but acquitted him of the CSC-III charge.

                                         II. HEARSAY

        Defendant argues on appeal that six witnesses — two of DM’s friends, her teacher, the
CPS investigator Raleigh, and the police witnesses Reid and Newman — improperly repeated
DM’s statements relating the sexual abuse. Defendant argues that this testimony was
inadmissible hearsay. Although a trial court’s decision to admit or exclude testimony is
generally reviewed for an abuse of discretion, People v Bynum, 496 Mich 610, 623; 852 NW2d
570 (2014), defendant failed to preserve these claims because he did not object to the challenged
testimony at trial, MRE 103(a)(1). Therefore, we review this issue for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
“On plain error review, the defendant has the burden to show (1) ‘error’; (2) that the error was
‘plain,’ meaning ‘clear or obvious’; (3) and that the error affected substantial rights or caused
prejudice, meaning ‘that the error affected the outcome of the lower court proceedings.’ ”
People v Lawhorn, 320 Mich App 194, 197 n 1; ___ NW2d ___ (2017), quoting Carines, 460
Mich at 763.

        Defendant also argues that defense counsel was ineffective for failing to object to the
challenged testimony. Because defendant did not raise a claim of ineffective assistance of
counsel in the trial court and no evidentiary hearing was held pursuant to People v Ginther, 390
Mich 436; 212 NW2d 922 (1973), our review of that claim “is limited to errors apparent on the
record.” People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999). “Effective assistance
of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” People v
Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). To obtain a new trial based on a claim of
ineffective assistance counsel, the “defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).

       We disagree with defendant’s argument that the challenged testimony was inadmissible
hearsay. Hearsay is defined as “a statement, other than the one made by the declarant while

                                                -2-
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
MRE 801(c). Generally, hearsay is inadmissible. MRE 802. Excluded from the definition of
hearsay are prior statements of a witness where “[t]he declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement, and the statement is . . . consistent
with the declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive . . . .” MRE 801(d)(1)(B).

        The defense theory at trial was that DM fabricated the allegations of sexual abuse and
told her friends that defendant sexually abused her because she was angry at him because of his
reaction to the bullying incident. Her friends then encouraged her to tell a teacher and gave her
an ultimatum that they would tell a teacher if she did not, which then led to CPS and the police
becoming involved. According to defendant, DM’s story “snowballed” as she repeated it to
teachers, CPS, and police officers. These authority figures uncritically believed DM’s
allegations and assured her they would protect her. Defense counsel advanced this theory in
opening statement and closing argument, and in his cross-examination of prosecution witnesses.
In opening statement, defense counsel stated:

              [T]he story starts evolving. Then she tells. Of course, now she has to tell
       the counselor. She doesn’t know all this happening. You have to tell the
       counselor. You have to tell CPS worker. Those of you don’t, Child Protective
       Services was brought in any time children are involved.

               And then she has to tell other people through the system. We have a
       hearing in the case. She appears there for the first time. She used the word
       finger, my dad fingers me. She never used that word before. Now it has
       escalated to penetration.

Counsel further stated, “It’s just sad and the way our system and everything is. Once you say
something all this trickling starts.” Defense counsel vigorously cross-examined DM regarding
the course of events after she disclosed the abuse to her friends. In his closing argument, defense
counsel argued that DM’s inconsistent statements were likely caused by other persons
influencing her. Counsel stated:

               Another inconsistent about, Ms. Shkreli tried, pressed hard as she could to
       have Detective Newman say penetration on the 17. There was no, and she
       indicated there was not, consistently from what I understand, up until later. Then
       all of a sudden the people are talking to her, talking about the elements of the
       crime, make it more serious. You start talking about fingering and things like
       that, so forth, things about that to the point the allegations aren’t even, I mean,
       consistent.

Counsel argued that DM’s teacher used her own words, not DM’s words, when testifying about
DM’s disclosure. Defense counsel argued that after DM confided in her friends, the disclosure
became a “snowballing incident.”

       DM’s statements to her friends, teacher, Raleigh, Reid, and Newman were relevant to
rebut the defense theory, which was based on an alleged disconnect between DM’s original

                                                -3-
statements and motives and the course of the criminal investigation. In addition, DM’s
statements were admissible under MRE 801(d)(1)(B) to show that DM’s reports were mostly
consistent over the course of March 18, 2015, and the following days. Accordingly, defendant
has failed to establish that the statements qualify as plain error affecting his substantial rights.

        We also reject defendant’s related claim that defense counsel was ineffective for failing
to object to the various statements. Failing to object to inadmissible hearsay may qualify as an
objectively unreasonable error. People v Shaw, 315 Mich App 668, 674; 892 NW2d 15 (2016).
Conversely, “[f]ailing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010) (citation omitted).

       In this case, defense counsel pursued a reasonable strategy of arguing that the allegations
were a product of DM falsely accusing defendant of abuse because she was angry with him, but
without intending to get the police or other authority figures involved, and then unwittingly
finding herself in a position of having to defend her false accusations and being unable to retract
the accusations as teachers, CPS, and the police became involved. Against this backdrop,
defense counsel’s failure to object was not objectively unreasonable. “[T]his Court will not
second-guess defense counsel’s judgment on matters of trial strategy.” People v Benton, 294
Mich App 191, 203; 817 NW2d 599 (2011). “A failed strategy does not constitute deficient
performance.” People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008).

                 III. OPINION TESTIMONY BY RALEIGH AND NEWMAN

       Defendant next complains that Raleigh and Newman were improperly allowed to testify
as experts, despite not being formally qualified as experts pursuant to MRE 702. Because
defendant did not object to Raleigh’s and Newman’s testimony at trial, we review defendant’s
claims for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763. We
review defendant’s related claim that defense counsel was ineffective for not objecting to the
testimony for “errors apparent on the record.” Avant, 235 Mich App at 507.

       MRE 701 provides:

               If the witness is not testifying as an expert, the witness’ testimony in the
       form of opinions or inferences is limited to those opinions or inferences which are
       (a) rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

       MRE 702 provides:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based upon sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.


                                                -4-
         Defendant argues that Raleigh’s and Newman’s testimony was improper because they
lacked the requisite qualifications to testify regarding the characteristics of sexual abuse victims.
He cites People v Kowalski, 492 Mich 106; 821 NW2d 14 (2012), a case in which the defendant
sought to present expert testimony in support of his argument that he was coerced into making a
false confession. Id. at 111-112. The prosecutor moved to exclude this testimony on the ground
that it was not reliable under MRE 702 and Daubert v Merrill Dow Pharm, Inc, 509 US 579; 113
S Ct 2786; 125 L Ed 2d 469 (1993). Kowalski, 492 Mich at 113-114. The trial court excluded
the testimony as unreliable, and because the “highly questionable” probative value of the
testimony was outweighed by the danger of unfair prejudice under MRE 403. Kowalski, 492
Mich at 117. Our Supreme Court concluded that the trial court erred in “presum[ing] that the
average juror possessed the knowledge to evaluate factors that might lead to a false confession.”
Id. at 128-129. The Court held “that because the claim of a false confession is beyond the
common knowledge of the ordinary person, expert testimony about this phenomenon is
admissible under MRE 702 when it meets the other requirements of MRE 702.” Id. at 129. The
Court “caution[ed] . . . that like other expert testimony explaining counterintuitive behavior, the
admissibility of expert testimony pertaining to false confessions is not without limitations.” Id.
at 129. The expert would not be permitted to “vouch for the veracity of a defendant recanting a
confession, or give an opinion as to whether defendant was telling the truth when he made the
statements to the police.” Id. at 129 (citation and quotation marks omitted). However, the Court
agreed that one expert’s testimony was not admissible because it was not sufficiently reliable
under MRE 702 and Daubert. Id. at 134-138.

       Turning to the instant case, we note preliminarily that some of the testimony challenged
by defendant was elicited by defense counsel. It was defense counsel who elicited Raleigh’s
testimony that child victims do not exaggerate or misrepresent the frequency of abuse or what
they feel during an assault. A defendant waives appellate review of an issue “to which the
aggrieved party contributed by plan or negligence.” People v Gonzalez, 256 Mich App 212, 224;
663 NW2d 499 (2003) (citation and quotation marks omitted). Accordingly, defendant cannot
claim error based on testimony that his own counsel elicited from Raleigh.

        Kowalski and the general principles of MRE 702 and Daubert do not apply to defendant’s
remaining claims of improper testimony. Raleigh’s and Newman’s testimony was not based on
scientific, technical, or specialized knowledge. In the testimony cited by defendant, Raleigh and
Newman indicated that their answers were based on their own experience in interviewing sexual
abuse complainants. Their opinions were based on their own perceptions, bringing it within
MRE 701.

         Defendant argues that if Raleigh and Newman were qualified as experts, their testimony
was improper because he did not attack DM credibility on the basis that her behavior was
inconsistent with sexual abuse. Defendant relies on People v Peterson, 450 Mich 349; 537
NW2d 857 (1995), in which a social worker testified that the victim “showed behavior
manifestations that were symptomatic of sexual abuse.” Id. at 355. A second social worker
testified that “the victim’s behavior was consistent with children who have been sexually
abused.” Id. A clinical psychologist, who also was the child’s foster parent, testified that the
child’s “symptoms were consistent with those of a sexual abuse victim.” Id. at 356. The Court
concluded that “[w]hen the credibility of the particular victim is attacked by a defendant, we
think it is proper to allow an explanation by a qualified expert regarding the consistencies

                                                -5-
between the behavior of that victim and other victims of child sexual abuse.” Id. Applying these
principles to the Peterson case, the Supreme Court held that the expert witnesses were
improperly permitted to vouch for the victim’s veracity by stating statistics supporting the rarity
of false allegations of sexual abuse. The Court acknowledged that “neither witness stated that
the child victim was telling the truth,” but stated that

       the risk here goes beyond such a direct reference. Indeed, as we have cautioned
       before, the jury in these credibility contests is looking “to hang its hat” on the
       testimony of witnesses it views as impartial. Such references to truthfulness as go
       beyond that which is allowed under MRE 702. [Id. at 376.]

The Court further noted that testimony that the victim’s behavior was consistent with the
behavior of typical sexual abuse victims was improper because “the defendant never argued that
the victim’s behavior was inconsistent with that of a typical victim of child sexual abuse . . . .”
Id. at 376-377. The Court concluded, however, that the erroneous admission of the evidence was
harmless “in light of the overwhelming evidence against the defendant.” Id. at 380-381.

        In this case, Raleigh’s and Newman’s opinion testimony was not offered as expert
testimony, but was admissible as lay opinion testimony under MRE 701. Nonetheless, the
principles limiting expert testimony regarding typical conduct of sexual abuse victims where the
defendant does not argue that the victim’s conduct was inconsistent with sexual abuse would
seem to also apply to lay opinion testimony under MRE 701. If a witness testifies based on
experience that a complainant’s behavior is typical of victims, there is a danger that the jury will
“‘hang its hat’ on the testimony of [knowledgeable] witnesses it views as impartial,” Peterson,
450 Mich at 376, whether the testimony is offered as expert testimony under MRE 702, or lay
opinion testimony under MRE 701. Accordingly, we agree that such testimony should be limited
to the purpose of rebutting a defendant’s attack on the complainant’s credibility based on
conduct of the complainant that is seemingly inconsistent with the allegations of the defendant’s
misconduct.

        Defendant challenges testimony by Newman that was elicited on redirect examination by
the prosecutor. On cross-examination, defense counsel commented that defendant’s demeanor
and mannerisms in his video interview were similar to DM’s demeanor and mannerisms
described in her own interview. Defense counsel suggested that it would be inconsistent to infer
from defendant’s demeanor that he was lying, but infer from DM’s similar demeanor that her
statements were truthful. The prosecutor responded to this strategy by eliciting Newman’s
testimony that it was typical for a complainant to avoid eye contact. The prosecutor asked
Newman what he inferred, with reference to his experience. Newman’s testimony that he
inferred from DM’s conduct that she was confused and ashamed explained why he interpreted
DM’s conduct differently from how he interpreted defendant’s conduct. Newman’s additional
statement that DM was reluctant to get “her buddy” into trouble further explains Newman’s
reaction to DM’s conduct. In this context, Newman’s testimony cannot be construed as
vouching for DM’s credibility based on his experience or expertise. On the contrary, Newman’s
inference that DM felt shame, confusion, and guilt over her betrayal of defendant could be
construed as equally consistent with the defense theory that her allegations against defendant
were fabricated. DM’s statement that defendant was her buddy was not a reference to Newman’s
experience, but a circumstance specific to DM that explained her demeanor and actions.

                                                -6-
       Defense counsel had questioned DM about her efforts to spend “dad and daughter time”
alone with defendant, and her efforts to persuade defendant to spend time with her when he was
watching a movie with the family. He asked:

              And you want the ladies and gentlemen of the jury to believe that you did
       this while the so-called abuse was going on. He’s coming into your room,
       touching you, where you don’t want to be touched. And then you’re going the
       next day –

              You do what? You then going to the next say saying: Dad, I want to vent
       to you. Let’s go for a walk.

Defense counsel asked DM if “the tug of war” between her and CM over defendant’s attention
had been going on until March 18, 2015. On recross-examination, defense counsel asked again
if DM and CM vied against each other for defendant’s attention. He asked, “In response to
questioning [by the prosecutor] you indicated that part of the reason was when he wasn’t so-
called molesting you in between weeks and he was a fine dad, play catch, take care of you; is
that correct?” These lines of questioning were intended to attack DM’s credibility with the
insinuation that her attachment to defendant was inconsistent with her allegations of sexual
abuse. Thus, viewed in context, defendant has failed to establish a plain error affecting his
substantial rights with respect to Raleigh’s testimony that sexual abuse victims often cling to
their abuser.

       Regarding defendant’s related claim of ineffective assistance of counsel, to the extent that
defense counsel elicited some of the challenged testimony, the record discloses that the
testimony was elicited as part of a strategy of showing that a complainant’s reports of sexual
abuse cannot always be taken literally. Counsel also attempted to highlight that the same
behavior characteristics that defendant displayed during his police interview, which were used to
suggest that defendant was not credible, also applied to DM’s behavior during her interviews.
Counsel also elicited Raleigh’s admission that she was not in a position to tell the jury whether
DM’s allegations were truthful. These lines of questioning were clearly strategic and defendant
has not overcome the presumption of sound strategy. The fact that counsel’s strategy may not
have been successful does not establish that counsel was ineffective. Petri, 279 Mich App at
412.

         With respect to testimony elicited by the prosecutor, because there was no improper
expert testimony, or improper use of lay opinion testimony, defense counsel was not ineffective
for failing to object.

     IV. WITNESSES’ TESTIMONY BOLSTERING COMPLAINANT’S CREDIBILITY

        Defendant further complains that Raleigh’s and Newman’s testimony was improperly
used to bolster DM’s credibility. Again, defendant’s failure to object to their testimony or to
otherwise raise this issue at trial renders this issue unpreserved, limiting our review to plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 763. Our review of defendant’s
related claim of ineffective assistance of counsel is limited “to errors apparent on the record.”
Avant, 235 Mich App at 507.

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         Michigan adheres to 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 People v
Musser, 494 Mich 337, 349; 835 NW2d 319 (2013). Raleigh testified that victims commonly
cannot keep track of how many times abuse occurs. It was defense counsel, not the prosecutor,
who elicited Raleigh’s testimony that she never caught a child lying about the feeling of abuse,
and that children tend to underestimate, rather than exaggerate, the frequency of abuse.
Accordingly, defendant cannot claim error based on this testimony. Gonzalez, 256 Mich App at
224.

        Raleigh’s testimony that DM’s demeanor and posture during her interview was typical of
victims did not constitute vouching for DM’s credibility because Raleigh did not associate DM’s
demeanor and behavior with credibility. Raleigh’s testimony that victims have difficulty
quantifying past incidents of sexual abuse, if the abuse occurs more than once or twice, was
relevant to whether DM’s inability to specify the number of incidents affected her credibility.
Raleigh’s testimony that abused children often “cling to the abuser” and seek the abuser’s
attention was relevant to rebut defendant’s theory that DM’s devotion to defendant was
inconsistent with abuse. Raleigh did not, however, testify that these factors established that
abuse in fact occurred.

         Defendant argues that Raleigh indirectly vouched for DM’s credibility when Raleigh
testified that her job was to investigate and substantiate reports of sexual abuse. Defendant
argues that this testimony allowed the jury to infer that Raleigh had concluded that DM’s
allegations were truthful, because criminal charges were brought against defendant. In any
criminal trial, there is a risk that a jury might believe a defendant is guilty because the police and
other persons in an investigatory capacity believe that; otherwise, there would be no trial. The
jury is, therefore, given instructions to protect the defendant from this impermissible inference.
The trial court instructed the jury on the presumption of innocence. The trial court advised the
jury that “[t]he fact that the Defendant is charged with a crime and is on trial is not evidence,”
and that “the fact that he is charged with more than one crime is not evidence.” Jurors are
presumed to follow the trial court’s instructions. People v Unger, 278 Mich App 210, 235; 749
NW2d 272 (2008). Furthermore, Raleigh conceded on cross-examination by defense counsel
that she did not know if DM’s allegations were truthful. This testimony dispelled any suggestion
that Raleigh’s experience as a forensic interviewer enabled her to determine DM’s credibility.

        Defendant argues that Newman improperly testified that defendant was lying when he
denied abusing DM. Defense counsel asked Newman on cross-examination if Newman had
found, during his follow-up investigation, “anything that he said to be inconsistent [or] to have
been a lie?” Newman replied, “Yes, that he didn’t touch his daughter.” Defense counsel elicited
this testimony by asking Newman an open-ended question whether defendant had said anything
that Newman believed to be false. Because defense counsel invited this testimony, he waived
any claim of error. Gonzalez, 256 Mich App at 224. Defendant also cites Newman’s testimony
that he inferred from DM’s demeanor that she felt ashamed and confused, and that she stated that
she did not want to get defendant into trouble because he was her buddy. This testimony did not
involve an opinion regarding DM’s credibility.



                                                 -8-
       Contrary to defendant’s argument, the prosecutor did not argue that DM was credible
because Raleigh and Newman had said she was credible. The prosecutor relied on Raleigh’s
testimony regarding behavior traits of a sexual assault victim to argue that DM’s clinginess with
defendant was not inconsistent with sexual abuse. This argument was responsive to defendant’s
attempt to use DM’s devotion to defendant to attack her credibility.

        In sum, defendant has failed to establish that Raleigh’s and Newman’s testimony
discussed in this issue constituted plain error affecting his substantial rights. Therefore,
defendant’s related claim of ineffective assistance of counsel also cannot succeed. Failing to
raise a meritless objection does not constitute ineffective assistance. Ericksen, 288 Mich App at
201.

          V. NEWMAN’S STATEMENTS DURING DEFENDANT’S INTERVIEW

        Defendant argues that he was prejudiced by the admission of his video-recorded
interview with Newman because Newman’s statements during the interview improperly vouched
for DM’s credibility. Defendant did not object to the admission of the video recording at trial.
Therefore, this issue is unpreserved, MRE 103(a)(1), and our review is limited to plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 763. Review of defendant’s
related claim of ineffective assistance of counsel is limited “to errors apparent on the record.”
Avant, 235 Mich App at 507.

        Defendant argues that playing the unredacted video recording of his interview with
Newman was unfairly prejudicial because Newman made statements vouching for DM’s
credibility. He relies on our Supreme Court’s decision in Musser, 494 Mich 337, in which the
Court addressed a similar claim. The Court observed that it is well settled in Michigan and other
jurisdictions that a witness’s opinion on the credibility of another person is inadmissible because
such testimony has no probative value. Id. at 348-349. The Court framed the issue as “whether
the rule barring testimony regarding the credibility of another person excludes out-of-court
statements to the same effect that are contained in the recordings or transcripts of an
interrogation.” Id. at 349. The Court stated that “[i]n such a case, the contents of the recording
or transcript are not automatically admissible,” because they trigger evidentiary rules, including
the rules on admission of hearsay. Id. at 349-350. The prosecutor argued that the detectives’
statements were not hearsay because they were offered “solely to provide context for defendant’s
statements that the prosecution wished to admit as an admission by a party opponent under MRE
801(d)(2).” Id. at 350. The Court held that it was “unnecessary to adopt a bright-line rule for the
automatic exclusion of out-of-court statements made in the context of an interrogation that
comment on another person’s credibility because the issue can be adequately addressed by our
existing rules of evidence.” Id. at 353. The Court concluded:

       [W]e hold that where the proponent of the evidence offers an interrogator’s out-
       of-court statements that comment on a person’s credibility for the purpose of
       providing context to a defendant’s statements, the interrogator’s statements are
       only admissible to the extent that the proponent of the evidence establishes that
       the interrogator’s statements are relevant to their proffered purpose. See MRE
       401. Even if relevant, the interrogator’s statements may be excluded under MRE
       403 and, upon request, must be restricted to their proper scope under MRE 105.

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       Accordingly, to ensure a defendant’s right to a fair trial, trial courts “must
       vigilantly weed out” otherwise inadmissible statements that are not necessary to
       accomplish their proffered purpose. [Id. at 353-354.]

The Court further commented on the application of MRE 403, which requires the trial court to
weigh the probative value of evidence against the danger of unfair prejudice. “Consistent with
these principles, a trial court must therefore evaluate the probative value of the out-of-court
statements in providing context to a defendant’s statements and the resulting prejudice to a
defendant, before the interrogator’s out-of-court statements are presented to the jury.” Id. at 357.
The Court cautioned that “a trial court should be particularly mindful that when a statement is
not being offered for the truth of the matter asserted and would otherwise be inadmissible if a
witness testified to the same at trial, there is a ‘danger that the jury might have difficulty limiting
its consideration of the material to [its] proper purpose[].” Id. at 357, quoting Stachowiak v
Subczynski, 411 Mich 459, 465; 307 NW2d 677 (1981). The Court acknowledged that child
sexual abuse cases present “ ‘special considerations’ given ‘the reliability problems created by
children’s suggestibility’ ” which create special concerns that the jury might give undue weight
to an investigating officer’s out-of-court statement “where the determination of a defendant’s
guilt or innocence hinges on who the jury determines is more credible—the complainant or the
defendant.” Id. at 357-358, quoting Peterson, 450 Mich at 371. The trial court should observe
MRE 105, which requires the trial court to grant a party’s request that the interrogator’s remarks
are admissible only to provide context to a defendant’s statement. Musser, 494 Mich at 358.

        The Court in Musser held that “the trial court abused its discretion by admitting all the
detectives’ statements to the jury.” Id. at 359. The problematic statements were the statements
that “kids have a hard time lying about this stuff,” and the statements about the harm suffered by
the complainant. Id. at 360-361. The Court analyzed the effect of the erroneous admission by
the standard applicable to “nonconstitutional, preserved evidentiary errors,” namely that such
errors “are not grounds for reversal unless they undermined the reliability of the verdict.” Id. at
363. The Court concluded that “they did” because the “assessing witness credibility was the
pervasive issue for the jury.” Id. at 364. The Court also concluded that the trial court’s “belated
limiting instruction did not cure the error.” Id. The Court vacated the defendant’s convictions
and remanded the case to the trial court. Id. at 366.

        In this case, defendant does not cite any specific statement by Newman in the interview.
“An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Payne, 285 Mich App 181, 195; 774 NW2d 714
(2009) (citation omitted). However, our review of the recorded interview fails to disclose any
statements by Newman comparable to the objectionable statements in Musser. During the
interview, Newman advised defendant of the nature of the allegations reported by DM and told
defendant that DM’s accusations were partly corroborated by CM’s statements, and defendant’s
admissions, that defendant and DM had often spent time alone in DM’s bedroom. In none of
these instances, however, did Newman say anything that could be construed as a declaration that
he had determined that DM’s accusations were credible. At one point, Newman did state, “I’m
trying to figure [this] out because everyone tells me you and your daughter are buddies. Because
18-year-old [sic] girls don’t just make up this stuff.” But unlike the detectives’ statements in
Musser, this statement was brief and isolated. Moreover, the statement was not directed

                                                 -10-
specifically at Newman’s impression of DM’s credibility. The statement that “girls don’t just
make up this stuff” suggests that fabrication is unusual but not non-existent. More significantly,
Newman never indicated that he or any other persons charged with investigating sexual abuse
allegations had any means of determining whether a complainant was credible. Newman’s
statements in the video were necessary to understanding the course of the interview, and to
provide context for understanding defendant’s statements and conduct. With the single
exception noted above, Newman did not pass judgment on DM’s credibility. Accordingly, the
probative value of the unredacted video recording was not outweighed by the danger of unfair
prejudice. Defendant has not established a plain error affecting his substantial rights.

        Defendant also argues that defense counsel was ineffective for failing to move to
suppress or partially redact the video recording. As indicated, however, the only possibly
objectionable portion involved Newman’s statement that “girls don’t just make up this stuff.”
Because this statement was brief and isolated, failing to request redaction was not an objectively
unreasonable error. Moreover, there is no reasonable probability that this isolated statement was
a decisive factor in the jury’s determination of defendant’s or DM’s credibility. Trakhtenberg,
493 Mich at 51.

                           VI. PROSECUTORIAL MISCONDUCT

        Defendant raises multiple claims of prosecutorial misconduct, none of which were
preserved with an appropriate objection at trial. People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010). “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). “The
defendant bears the burden of demonstrating that such an error resulted in a miscarriage of
justice.” Id. “[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. “Unpreserved claims of prosecutorial misconduct are reviewed for plain error
affecting substantial rights.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011).

                          A. VOUCHING FOR DM’S CREDIBILITY

       Defendant does not identify specific statements by the prosecutor in support of this claim
of error. He instead paraphrases the prosecutor’s arguments, but his characterizations of the
prosecutor’s statements are inaccurate. Defendant asserts that the prosecutor “told the jury that
DM had no reason to lie” in her opening statement. The prosecutor actually stated:

               During the course of the trial I encourage you to think about whether or
       not [DM] has a motive to lie. Was she being disciplined? Did she want dad out
       of the house?

              I don’t think the evidence is going to suggest that. I think the evidence is
       going to suggest the opposite. That [DM] loves her dad, wants the bond with him,
       doesn’t even want him to get into trouble.

Defendant’s argument fails to consider the context of the prosecutor’s statements. Defendant
asserts that the prosecutor stated in closing argument that DM was telling the truth, that DM was
“very credible,” that DM had no reason to lie, and that defendant was “a liar and a weirdo.” In
                                              -11-
closing argument, the prosecutor addressed defendant’s theory that DM fabricated the allegations
out of resentment that her parents had disciplined her for conduct occurring several months
before March 18, 2015. The prosecutor stated:

              Does [DM] seem that sophisticated? Does she seem like she is a puppet
       master? She had all the, everybody in trouble, lose somebody who is absent her
       whole life? Somebody that she loved? Someone she clung to?

               No. It does not make sense. It does not hold water because it is not true.

               What is true is what [DM] tells you.

        “Although a prosecutor may not argue a fact to the jury that is not supported by evidence,
a prosecutor is free to argue the evidence and any reasonable inferences that may arise from the
evidence.” People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). Prosecutors
“should not . . . express their personal opinion of a defendant’s guilt, and must refrain from
denigrating a defendant with intemperate and prejudicial remarks.” People v Bahoda, 448 Mich
261, 282; 531 NW2d 659 (1995). A prosecutor “may not vouch for the credibility of his
witnesses by implying that he has some specialized knowledge of their truthfulness. But 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)
(citation omitted).

        The prosecutor’s statements came within the parameters of permissible argument. The
prosecutor did not suggest that she had any special knowledge, unknown to the jury, that DM
was credible. Instead, she argued that the totality of the evidence supported a finding that DM
was credible, because she had no motive to lie or to end her relationship with defendant. The
prosecutor also argued that defendant unreasonably suggested that DM had planned a scenario in
which her false accusations would lead to criminal proceedings and child protective proceedings.
This argument appears to misapprehend the defense theory. Defendant was not attempting to
argue that DM had planned anything, but instead that she had made false accusations to her
friends without realizing the consequences that would follow. The salient point, however, is that
the prosecutor’s argument did not suggest that she had any special knowledge of DM’s
credibility.

        Defendant argues that the prosecutor unfairly denigrated him by stating that he was “a
weirdo” and “weird or creepy.” Viewed in context, these pejoratives referred to defendant’s
seemingly bizarre exhibition on the witness stand and in the police video. They were not random
insults aimed at distracting the jury from the evidence. In any event, the prosecutor did not argue
that the jury should find defendant guilty because he was weird, but rather because the evidence
supported his guilt.

       Defendant also states that the prosecutor improperly asked him on cross-examination if
he knew that a victim of sexual abuse was more likely to become a perpetrator of sexual abuse.
This occurred when the prosecutor questioned defendant about his belief that a gynecologist had
examined DM when she was 14 years old and found that she had not been sexually abused. The

                                               -12-
prosecutor asked defendant if he was a trained nurse. Defendant replied that he was not. The
prosecutor then questioned defendant as follows:

               Q. So you have never been trained in what sexual abuse looks like or feels
       like?

               A. I know exactly what sexual abuse feels and looks like. Thank you.

               Q. How do you know that?

               A. Because I was.

               Q. Is that why you did it to [DM]?

               A. That is why I would never do that to any child ever.

               Q. You know, it’s more common when someone has been sexual[ly]
       assaulted?

               A. That is not, that is –

                       I don’t understand that. I am not even saying –

               Q. Let’s go back to the nurse question.

        “[P]rosecutorial misconduct cannot be predicated on good-faith efforts to admit
evidence.” People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Defendant does
not explain why the prosecutor’s question was improper. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
Payne, 285 Mich App at 195 (citation omitted). In any event, the prosecutor asked the question
as a follow up to defendant’s unanticipated statement that he had been sexually abused.
Defendant expressed confusion at the question and did not answer it. The prosecutor effectively
withdrew the question. To the extent the question was improper, it did not affect defendant’s
substantial rights because the prosecutor did not pursue an answer.

                      B. APPEALS TO SYMPATHY AND CIVIC DUTY

       Defendant argues that the prosecutor improperly encouraged the jury to convict him
based on sympathy for the victim and a civic duty to protect the community. He cites statements
from the prosecutor’s opening statement, in which the prosecutor suggested that DM was too
young and innocent to have realized when the abuse began because she did not initially
understand that defendant’s conduct was sexually abusive. Defendant also refers to the
prosecutor’s statements that she was proud of DM because DM “spoke her freedom” despite
losing her family. In addition, defendant refers to the prosecutor’s statement suggesting that
defendant covered his face during his video-recorded interview because he felt shame and guilt
for harming DM. The prosecutor stated:


                                               -13-
       He feels shame. He feels guilt as he should because [DM] is the way she is, not
       because she was bullied, not because she struggles with the sexuality. Him
       abusing her could be a reason as to why [DM] is the way she is. [DM] is alone.
       [DM] is lost. [DM] is medicated because of the Defendant. She has no one. She
       has you. And I hope that you’re going to be there for her. I hope that you convict
       him as charged, thank you.

        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).
“[P]rosecutors may use ‘hard language’ when it is supported by evidence and are not required to
phrase arguments in the blandest of all possible terms.” People v Ullah, 216 Mich App 669, 678;
550 NW2d 568 (1996). “Emotional language may be used during closing argument and is an
important weapon in counsel’s forensic arsenal.” Id. at 679 (citation omitted). But “[a]
prosecutor may not appeal to the jury to sympathize with the victim. . . . Nor may a prosecutor
urge the jury to convict as part of its civic duty or on the basis of its prejudices.” Unger, 278
Mich App at 237. However, improper remarks may be harmless where the comments “were
relatively brief and did not likely deflect the jury’s attention from the evidence presented in this
case.” Id.

         Defendant compares the prosecutor’s statements to statements found to be unfairly
prejudicial in People v Dalessandro, 165 Mich App 569; 419 NW2d 609 (1988). In
Dalessandro, the defendant was convicted of assault with intent to do great bodily harm less than
murder and child torture arising from physical abuse of his girlfriend’s infant son. The child
presented in the emergency room with numerous injuries, including bruises and fractures in
various states of healing, and a three-inch laceration on his leg. The child was malnourished and
underweight. Id. at 571-572. The improper comments included the statements “Look at the
pictures of this little innocent baby. Look at the terror on his face, the sadness in those eyes” and
“[The child’s] injuries . . . are revolting . . . [and] sickening. They shouldn’t happen to a dog, let
alone a ten month old baby.” Id. at 580-581. The prosecutor referred to the victim as a “pitiful
little ten month old child” and an “innocent little baby [who] was crying out in pain.” Id. at 581.
Although the defendant did not object to the statements, this Court concluded that failure to
address the issue would constitute a miscarriage of justice, and that the improper statements
warranted a new trial. Id. at 578-579.

        In People v Swartz, 171 Mich App 364; 429 NW2d 905 (1988), the defendant sexually
assaulted a corrections officer at the prison where he was incarcerated. The prosecutor described
the case to be “as serious a case as you will ever see or ever hear,” and remarked that “there was
something taken from this woman that will never be returned, and it was taken at knife point.”
The jury was urged not to forget during deliberations that “[s]he had to come here on the last two
days and bare her soul to you.” The prosecutor stated that although he and the jury could “walk
out of here today and leave this behind us,” the assault was “something [the victim] is going to
carry forever.” Id. at 372. This Court held that these statements “appear to be improper appeals
to the jury for sympathy,” but concluded that they were “not . . . grounds for a new trial because
their prejudicial effect could have been cured with a timely requested cautionary instruction.” Id.
at 372-373.



                                                -14-
         Defendant was charged with sexually abusing his own daughter. DM showed
conspicuous signs of emotional stress during her testimony. The prosecutor could not
realistically present evidence and argue her case in an entirely neutral and detached manner, nor
was she required to pretend the subject matter was as prosaic as a parking violation. Ullah, 216
Mich App at 678. Given these circumstances, the prosecutor’s opening remarks describing DM
as a “young, innocent girl” were mildly emotional, but markedly less so than the references to
the “pitiful little ten month old child” and “innocent little baby [who] was crying out in pain” in
Dalessandro, 165 Mich App 569. The prosecutor’s suggestion that DM was too naïve to
recognize the impropriety of defendant’s conduct was a reasonable comment in view of
defendant’s alleged conduct and the family’s history. Similarly, the prosecutor’s comment that
she was proud of DM for confronting defendant’s abuse, even at the cost of losing her family,
was not immoderate.

        The prosecutor’s statements that DM was “the way she is” because of defendant’s abuse,
and not because of other unfortunate circumstances in DM’s life, were properly focused on the
evidence and the defense theory. Defendant attempted throughout the trial to undermine DM’s
testimony by insinuating that she was emotionally disturbed, confused about her sexuality,
tormented by bullies, and traumatized by abuse from her stepfather. The prosecutor’s statement
that defendant’s abuse caused DM’s difficulties was rationally and fairly related to responding to
this defense strategy. The statements “DM is alone” and “DM is lost,” followed by the
prosecutor’s entreaty to “be there” for DM, arguably could be construed as an improper appeal to
sympathy. But, the prosecutor’s argument did not resort to the type of gratuitous rhetoric
demonstrated in Dalessandro, and the balance of the prosecutor’s argument focused on the
evidence and why the jury should give credence to DM’s testimony. Accordingly, any perceived
prejudice could have been cured if defendant had raised a timely objection. Even without an
objection, the trial court instructed the jury that it “must not let sympathy or prejudice influence
your decision.” Under the circumstances, this instruction was sufficient to protect defendant’s
substantial rights.

                           C. SHIFTING THE BURDEN OF PROOF

        Defendant argues that the prosecutor improperly shifted the burden of proof to defendant
in her cross-examination and closing argument. “A prosecutor may not imply in closing
argument that the defendant must prove something or present a reasonable explanation for
damaging evidence because such an argument tends to shift the burden of proof.” Fyda, 288
Mich App at 463-464. “However, where a defendant testifies at trial or advances, either
explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the
defendant, comment on the validity of the alternate theory cannot be said to shift the burden of
proving innocence to the defendant.” People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995).

        Defendant cites a line of questioning in which the prosecutor cross-examined him about
his statements in his interview with Newman suggesting DM’s reasons to lie. “[P]rosecutorial
misconduct cannot be predicated on good-faith efforts to admit evidence.” Noble, 238 Mich App
at 660. Whether this issue is viewed as a claim of evidentiary error or prosecutorial misconduct,
the prosecutor did not attempt to shift the burden of proof to defendant. Defendant’s theory of
defense was that DM fabricated the allegations. The prosecutor was entitled to explore the
factual basis for that theory. The prosecutor did not ask defendant to explain why DM would lie.

                                               -15-
A defendant is entitled to protection against compelled self-incrimination and thus may choose
not to testify. People v Clary, 494 Mich 260, 278-279; 833 NW2d 308 (2013); Fields, 450 Mich
at 108. However, if a defendant elects to waive his Fifth Amendment rights and testify, “[h]e
cannot reasonably claim that the Fifth Amendment gives him not only this choice but . . . an
immunity from cross-examination on the matters he has himself put in dispute.” Fields, 450
Mich at 109, quoting Brown v United States, 356 US 148, 155-156; 78 S Ct 622; 2 L Ed 2d 589
(1958).

       Defendant also claims improper shifting of the burden of proof during the prosecutor’s
closing argument. Having reviewed the challenged remarks, we conclude that the prosecutor
permissibly addressed defendant’s attempt to advance the theory that DM falsely accused
defendant of sexual abuse because she resented being disciplined for her misconduct. Fields,
150 Mich App at 115. The challenged remarks did not shift the burden of proof.

    D. ASKING WITNESSES TO COMMENT ON OTHER WITNESSES’ CREDIBILITY

         Michigan adheres to 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.” Douglas, 496 Mich at 583. Defendant argues that the prosecutor improperly asked CM
to assess defendant’s and DM’s credibility. He cites the following portions of the prosecutor’s
examination of CM regarding DM’s testimony that CM chose to support defendant rather than
DM:

               Q. You do have a relationship with the Defendant?

               A. Yes.

               Q. You don’t have a relationship with your daughter?

               A. I’m not allowed to see my daughter right now. They are to –

               Q. You are saying you would?

               A. Yes, I would.

             Q. So the statement that your daughter makes that you’re siding with the
       Defendant over her, would be more true than it is false?

               A. I’m in a tight situation.

               Q. You would say you’re neutral in this situation?

               A. Yes.

               Q. You don’t have any say of it one way or the other?

               A. I don’t know how to answer that.

               Q. Okay. Why do you think [DM] would say you are siding with him?
                                               -16-
              A. I don’t know. I haven’t talked to my daughter in a year.

                                             * * *

             Q. During the pendency of this whole trial have you been talking to the
       Defendant.

              A. Yes.

              Q. And have you told him that we’re going to get through it and I love
       you?

              A. Yes.

              Q. You have said that to him. So you are then taking his side?

              A. No, I’m not taking anybody’s side.

              Q. Okay. When you say: Honey, we’ll get through this. In talking to the
       Defendant, that means we’ll get through this against [DM]. Isn’t that a fair
       assessment?

              A. The truth will come out.

              Q. The truth will come out. What is the truth?

              A. I don’t know the truth.

These questions were not aimed at eliciting CM’s opinion of defendant’s or DM’s credibility.
The clear purpose of these questions was to probe CM’s bias and CM’s motivations for her
testimony. CM was a significant witness, because she was present in the home during some of
the occasions when defendant allegedly abused DM, including the night of March 17, 2015, the
incident that triggered DM’s decision to disclose the abuse. CM’s testimony was also significant
because she had ample opportunity to observe defendant and DM’s relationship. Although some
of these questions implicated CM’s beliefs regarding DM’s allegations against defendant, none
of these questions asked CM to comment on whether any other witness was credible.

        The prosecutor questioned defendant about consistencies in CM’s and DM’s testimony
regarding DM’s sleeping position on March 17. These questions, like the questions to CM, did
not elicit defendant’s opinion of DM’s or CM’s credibility. They addressed similarities and
differences among these three witnesses’ testimony. Defendant, having opted to testify, opened
himself to cross-examination. Defendant, CM, and DM all testified in specific detail regarding
the events of March 17, 2015.          Questioning defendant about the consistencies and
inconsistencies between their testimony does not equate asking defendant to comment on any
witness’s credibility.

      In sum, defendant has failed to establish his claims of prosecutorial misconduct.
Accordingly, his related claims that defense counsel was ineffective for failing to object to the

                                              -17-
prosecutor’s conduct also cannot succeed. Counsel is not required to make a futile objection.
Ericksen, 288 Mich App at 201.

                          VII. DEFENDANT’S STANDARD 4 BRIEF

        Defendant has filed a pro se supplemental brief, filed pursuant to Supreme Court
Administrative Order No. 2004-6, Standard 4, in which he provides a lengthy and detailed
discussion of the events beginning with March 18, 2015, when DM disclosed the abuse to her
friends and teachers. Most of the discussion refers to facts never introduced as evidence in this
case. Essentially, defendant maintains that CPS social workers, the foster care worker, CM’s ex-
husband DB, and other members of CM’s family, all conspired to frame defendant for abuse
actually committed by DB. Defendant maintains that a report by a neuropsychologist, Dr. Ryan,
was completed in the spring of 2015, but concealed from the court because Dr. Ryan found that
DB, not defendant, was the perpetrator of abuse. Defendant accuses the prosecutors of
concealing evidence of DM’s gynecological examination when she was 14 years old because the
exam report exonerated him. He states that Raleigh and Newman falsely denied that DM was
not brought for a medical examination after she disclosed the sexual abuse, and that they failed
to disclose the report of the actual examination because it was exculpatory. Defendant asserts
that DM told Dr. Ryan that her “dad” committed the abuse, but she was referring to DB, not
defendant. Defendant opines that DM’s medication and therapy caused her to blur DB and
defendant “into one paradoxical, seemingly singular persona Dr. Ryan referred to as a
‘phenomenon.’ ”

        From the morass of statements in defendant’s Standard 4 brief, none of which are
supported by evidence in the lower court record, we can discern one cogent argument, namely,
that the prosecution suppressed forensic reports and other evidence that would have exonerated
defendant, in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
Due process claims, including claims of Brady violations, are reviewed de novo on appeal.
People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016). But, unpreserved claims
of constitutional error are reviewed under the plain-error standard. People v Shafier, 483 Mich
205, 211; 768 NW2d 305 (2009).

       “The Supreme Court of the United States held in Brady that ‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” People v Chenault, 495 Mich 142, 149; 845 NW2d 731 (2014). To establish a
Brady violation, a defendant must prove: (1) that the prosecution suppressed evidence; (2) the
evidence was favorable to the accused; and (3) viewed in its totality, the evidence is material.
Chenault, 495 Mich at 149. In this case, there is no record evidence that the prosecution was in
possession of the neuropsychologist’s report or the other materials that defendant refers to in his
Standard 4 brief. In addition, there is no record evidence to prove the contents of the allegedly
suppressed reports. Consequently, defendant cannot establish a plain error affecting his
substantial rights. Shafier, 483 Mich at 211.

       Defendant further asserts that the Warren Police Department, Newman, Raleigh, and
even his own counsel suppressed the allegedly exculpatory forensic reports. Again, however,
defendant has not established any factual support for these claims. Defendant further argues that

                                                -18-
trial counsel was ineffective for refusing to present a defense based on the theory that DM was
manipulated into accusing defendant of abuse committed by DB, and that others had conspired to
frame defendant for DB’s conduct. Because defendant has not demonstrated any factual support
for this theory of defense, there is no basis for finding that trial counsel committed an objectively
unreasonable error by failing to pursue it, or that there is a reasonable probability that the
outcome of defendant’s trial would have been different if counsel had attempted to advance
defendant’s conspiracy defense. Trakhtenberg, 493 Mich at 51.

       Affirmed.



                                                              /s/ Kathleen Jansen
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro




                                                -19-
