                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 22, 2015
                Plaintiff-Appellee,

v                                                                   No. 322221
                                                                    St. Joseph Circuit Court
JAMES PAUL ZACHARKO, II,                                            LC No. 13-018355-FH

                Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his convictions following a jury trial of 16 counts of third-
degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a) (victim 13 through 15 years old).
The jury acquitted defendant of seven additional counts of CSC III. The trial court sentenced
defendant to concurrent prison terms of 10 to 15 years for each count. We affirm.

        The charges in this case stem from a sexual relationship between defendant and the 14-
year-old daughter of his former girlfriend. At trial, the victim, her mother, the investigating
officer, and an expert witness for each side testified. After defendant’s convictions, defendant
filed a motion for new trial and received a Ginther1 hearing on the issues related to his claims of
ineffective assistance of counsel. After the hearing and additional briefing, the trial court
concluded that none of defendant’s claims had merit. Defendant now appeals.

                            I. EXPERT TESTIMONY – DR. OKLA

        Defendant first claims that the trial court erred in limiting the expert testimony of
Katherine Okla, Ph.D., who testified on his behalf. We review a trial court’s decision to admit
expert witness testimony for an abuse of discretion. People v Matuszak, 263 Mich App 42, 47;
687 NW2d 342 (2004). An abuse of discretion occurs when a court selects an outcome that falls
outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269;
666 NW2d 231 (2003). Ordinarily, a trial court’s decision on a close evidentiary question cannot
constitute an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d


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


                                                -1-
888 (2000). “When the decision regarding the admission of evidence involves a preliminary
question of law, such as whether a statute or rule of evidence precludes admissibility of the
evidence, the issue is reviewed de novo.” People v Washington, 468 Mich 667, 670-671; 664
NW2d 203 (2003).

       During the trial, the trial court limited Okla’s testimony pursuant to what it believed had
been a stipulation between the parties; a purported stipulation that was never reduced to an order
or writing. The court restricted Okla’s expert testimony to the field of behaviors and
characteristics of sexually abused children, which was the sole topic addressed by the
prosecution’s expert witness, James Henry, Ph.D. The trial court concluded that the stipulation
had entailed limiting the testimony of each party’s expert to that particular field or topic.
Defendant sought to have Okla testify with respect to the additional areas of clinical psychology,
child and adolescent development, memory and suggestibility, and forensic interviewing
techniques and protocols, all in the context of claims of child sexual abuse and investigations of
the abuse. We note that there is no dispute that Okla had the expert qualifications to testify on
such matters, and the trial court expressly acknowledged that she was so qualified, but it
nevertheless limited her testimony on the basis of the claimed stipulation.

        At the Ginther hearing, trial counsel for defendant adamantly testified that he had never
agreed to any limitation being placed on Okla’s testimony, except to the extent required by law,
and that he had agreed not to challenge Henry’s qualifications to testify in return for a similar
promise by the prosecutor as to Okla. Regardless, the trial court found that a stipulation between
the parties to limit the scope of Okla’s and Henry’s testimony had indeed taken place. The trial
court opined that in stipulating to the scope of Okla’s testimony, defense counsel had made a
tactical decision that he was not going to seek to have her testify to anything more than Henry
was allowed to address and then hope he could get more in during trial. Moreover, the court
concluded that even if it had held a full hearing to determine whether to limit Okla’s testimony,
absent any consideration of the stipulation, it still would not have permitted her to testify about
forensic interviewing protocols and other areas that defendant had wished to explore. With
respect to forensic interviewing protocols, the trial court observed and ruled that “[t]here was
absolutely no testimony from the [interviewing] officer[]” that he was “familiar with the forensic
protocol[s]” or that he had employed such protocols when interviewing the victim, thereby
rendering Okla’s testimony irrelevant. The trial court further concluded that the excluded
testimony would have confused the jury, because there was “absolutely no requirement that the
police follow the forensic protocol[s].”2

        We initially conclude that, upon careful scrutiny of the entire record, the only evident
stipulation was an agreement by defense counsel to limit Okla’s testimony in accordance with



2
  The investigating officer who interviewed the victim did not delve into details regarding the
interview when he testified at trial. He did explain that a video recording of the interview had
been made, but the recording was not admitted into evidence. The officer did testify, absent any
elaboration, that he had been trained not to ask leading questions when conducting interviews.
The heart of the prosecution’s case rested on the direct testimony of the victim.


                                                -2-
the parameters of the law applicable to experts testifying in sexual abuse cases involving child
victims. This unremarkable agreement was reached after the prosecution had filed a motion in
limine that reflected a concern that Okla was planning to testify “regarding this particular
victim’s veracity,” which of course would have been inadmissible. See People v Douglas, 496
Mich 557, 583; 852 NW2d 587 (2014) (an expert is not permitted to vouch for the veracity of a
victim). The only other possible agreement revealed by the record, as claimed by defense
counsel at the Ginther hearing and as to which there was no evidence to the contrary, was a
stipulation that each other’s expert was indeed an expert who was qualified to testify with respect
to his or her field or fields of claimed expertise. We find no record support for an agreement or
stipulation by defense counsel that Okla’s testimony was to be limited to the subject of behaviors
and characteristics of sexually abused children. Accordingly, we proceed to address the trial
court’s ruling that, regardless of any stipulation, Okla’s proffered testimony regarding forensic
interviewing protocols and suggestibility would have been irrelevant, MRE 401-402, and would
have confused the jury, MRE 403.3

       The admissibility of expert testimony is governed by MRE 702, which 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 on 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.

       “A court considering whether to admit expert testimony under MRE 702 acts as a
gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both
relevant and reliable.” People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012).

        Under the Michigan Child Protection Law, MCL 722.621 et seq., which encompasses
child sexual abuse, “[t]he department and law enforcement officials shall conduct investigations
in compliance with the protocols adopted and implemented as required by subsection (6).” MCL
722.628(4) (emphasis added). And subsection (6) of MCL 722.628 provides:

              In each county, the prosecuting attorney and the department shall adopt
       and implement standard child abuse and neglect investigation and interview
       protocols using as a model the protocols developed by the governor's task force
       on children's justice as published in FIA Publication 794 (revised 8-98) and FIA
       Publication 779 (8-98) [Forensic Interviewing Protocol], or an updated version of
       those publications.



3
  While defendant in his brief on appeal initially mentions all of the various areas of Okla’s
expertise that the trial court excluded her from testifying on, he ultimately focuses his argument
on forensic interviewing protocols and suggestibility.


                                                -3-
         Accordingly, in a CSC case involving a child victim, law enforcement officials must
conduct their investigations in compliance with forensic interviewing protocols adopted within
their counties and modeled on task force publications. And compliance or lack of compliance
with such protocols is certainly a matter that can generally be explored at trial through the
testimony of a qualified defense expert.4 Even absent the statutory provisions, forensic
interviewing protocols with respect to child victims of sexual abuse are generally a relevant topic
of testimony in CSC trials, bearing on issues regarding the accuracy, validity, and potential
tainting of CSC allegations. See People v Trakhtenberg, 493 Mich 38, 54-55; 826 NW2d 136
(2012) (in a CSC case turning solely on credibility, a reasonable attorney would have consulted
with an expert on such matters as forensic interviewing protocols in order to develop a defense).
To the extent that the victim’s interview by the investigating officer conceivably may have
tainted her allegations of sexual acts committed by defendant, the admission of expert testimony
regarding proper forensic interviewing protocols was relevant, as it would have “assist[ed] the
trier of fact to understand the evidence or to determine a fact in issue,” MRE 702. This is also
true in the context of “suggestibility” arising out of the police interview and the interactions and
communications between the victim and her mother about defendant, which at times, according
to some of the evidence, was sexually graphic. With respect to the trial court’s conclusion that
the excluded expert testimony would have confused the jury because the investigating officer
was not required to follow any forensic interviewing protocols, MCL 722.628(4) and (6) directly
establish the error in that proposition.

        Despite the trial court’s error in limiting Okla’s testimony, reversal of defendant’s
convictions is not warranted, given that we cannot conclude that the error affected the outcome
of the proceedings. “No . . . verdict shall be set aside or reversed or a new trial be granted by any
court of this state in any criminal case, on the ground of . . . improper . . . rejection of evidence, .
. . unless in the opinion of the court, after an examination of the entire cause, it shall
affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL
769.26; see also People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999) (Under MCL
769.26, the effect of an error is evaluated by assessing it in the context of the untainted evidence
in order to determine whether it is more probable than not that a different outcome would have
resulted absent the error.).

       Okla was able to give some testimony that supported defendant’s theory of the case,
addressing factual circumstances supported by evidence in the record, but framed as
hypotheticals, and that could reasonably be viewed as undermining the victim’s credibility or the
accuracy of her allegations. Okla testified that it was uncommon for complainants to deny
sexual abuse allegations when specifically asked by others, noting that a “large majority of
children, when they are asked, . . . do give a complete disclosure.” She also indicated that a high
percentage of children who disclose sexual abuse do not later recant the allegations. Okla next


4
  In an affidavit submitted by Okla, which indicated that she had reviewed the videotape of the
victim’s interview by the investigating officer, she averred that “there is no evidence of adhering
to proper forensic interview protocol by engaging in alternative hypothesis-testing regarding the
timing, possible reasons for, and sources of allegations.”


                                                  -4-
testified that when there is a very short period of time between an initial communication by an
alleged perpetrator to a victim and an act of sex between the two, it is not suggestive of
grooming. She further stated that self-harm was not necessarily reflective of abuse and that it
was healthy and appropriate for teenagers to distance themselves from their parents, as opposed
to being indicative of sexual abuse. Okla additionally testified that when a complainant keeps
varying the number of sexual acts that purportedly occurred in discussions with others or in
testimony, “it would . . . raise questions about was there any motivation to distort or
mischaracterize or even intentionally deceive.” When asked whether she would be concerned by
the fact that a complainant had been questioned by several people about allegations of sexual
abuse prior to a police interview, Okla responded, “that’s a huge indication of taint or
suggestibility.” Defense counsel then asked Okla to explain that conclusion, and she testified,
absent objection, as follows:

               In general, if you ask a person questions[,] you are introducing notions or
       concepts, you’re asking them to focus on a particular area or event or detail.
       You’re [sic] emotional reaction, your facial expression, asking a person to even
       imagine doing some action causes your brain to fire in a particular way that makes
       it seem familiar.

               So you – you can add confidence, you can add details, you can change the
       memory – and we do this, all of us do this – you – you construct memories that
       become in your own mind more coherent and more consistent with what you
       think other people want to or believe happened.

        Okla next testified as follows, after defense counsel asked her about research on false
allegations of sexual abuse:

               Like a . . . fake memory, a not . . . accurate memory that have been either
       induced in an experiment or just by interviewing kids after events that show that
       kids do sometimes make wrong, inaccurate statements because they believe what
       they’re saying, and other times that they have made statements that they know
       factually are not true for various different reasons that are, for example, outlined
       in the American Professional Society on the Abuse of Children, where they talk
       about [how] investigators need to be very careful to consider all these possible
       motivations for kids to say things that are not true . . . .

               In order to have a good investigation, whether you want to call it a
       “forensic interview” or not, you have to keep in mind all the possibilities for why
       a child might come to say what they’re saying, and that does sometimes include
       deliberate deceit, but sometimes it’s mistaken.

       Defense counsel next broached the subject of environmental factors that can influence
disclosures of sexual abuse, and Okla testified:

              It’s an alternative explanation or an alternative hypothesis to take into
       account and to try and rule out as an explanation for the motives of making a



                                               -5-
       disclosure, which might be, “I want to get out of trouble,” “I don’t want to have
       this person in my life anymore,” “I need to explain my bad grades.”

               There are all kinds of reasons that are widely published as possible reasons
       to explore as underlying motivations in making disclosures.

               It doesn’t necessarily prove that it’s not . . . true or false, but there are
       things that can affect or influence, as you said, the timing and the nature of the
       disclosure.

        Shortly after this testimony, the trial court itself asked Okla for clarification with respect
to environmental factors influencing the disclosure of sexual abuse, and Okla testified that
environmental factors can be “significant enough that we try in the protocols . . . to make sure to
look into” such factors in order to rule them out.

        As reflected in Okla’s testimony, although the trial court had ruled to limit her testimony
to the area of behaviors and characteristics of sexually abused children, there can be no dispute
that her actual testimony wandered beyond that restriction at numerous points, touching on some
of the very subjects that defendant wished to present to the jury. We recognize that Okla would
have been able to testify in much greater detail on the banned areas of expertise without the
court’s ruling, but we cannot conclude that defendant has established the requisite prejudice to
warrant reversal. This is especially true where, in conjunction with consideration of the
testimony that Okla was allowed to give at trial, the victim was 14 years old when the events
transpired and when she spoke to the investigating officer, not a younger child more easily
susceptible to improper questioning or influence, thereby lessening the danger of taint. And
further, this case did not involve one or just a few sexual acts; rather, defendant and the victim
were involved in an ongoing sexual relationship, entailing a high number of sexual
encounters. Moreover, the investigating officer’s testimony, although brief, indicated that he had
not used leading questions in interviewing the victim and that he had failed to elicit much in
terms of details – there was not even a discussion of oral sex, which was the subject of 12 counts.
Given all of this context, and despite being relevant, expert testimony on forensic interviewing
protocols and suggestibility would have added very little to assessing the accuracy of the victim's
claim that she had sex with defendant. Additionally, the untainted evidence of an improper
relationship between defendant and the victim, evidenced primarily by text messages, was strong
and corroborated much of the victim’s testimony. In a telling text message from defendant to the
victim, he stated, “I promise to see you as much as possible. We just need to be careful.”
Finally, defendant fully engaged in aggressive cross-examination of the victim in an effort to
impeach her credibility, succeeding in part in light of the acquittals on seven counts. In sum,
despite the trial court’s errors, we decline to reverse the verdict on the basis that Okla’s
testimony was impermissibly limited, considering that defendant has not established a




                                                 -6-
miscarriage of justice, i.e., that it is more probable than not that he would have been acquitted on
the charges but for the limitation placed on the scope of Okla’s testimony.5

                           II. EXPERT TESTIMONY – DR. HENRY

       Defendant’s appellate arguments with respect to Henry are largely based on MCR 6.201,
which provides, in pertinent part:

             (A) In addition to disclosures required by provisions of law other
       than MCL 767.94a, a party upon request must provide all other parties:

                                                ...

               (3) the curriculum vitae [CV] of an expert the party may call at trial and
       either a report by the expert or a written description of the substance of the
       proposed testimony of the expert, the expert’s opinion, and the underlying basis of
       that opinion[.]

       Defendant did make a demand for discovery, requesting, in part, the materials and
information set forth in MCR 6.201(A)(3). Defendant claims that he was provided Henry’s CV
and four transcript excerpts of Henry’s prior testimony in other cases, but not a report or a
written description of the substance of Henry’s proposed testimony in this case, nor Henry’s
opinion and the underlying basis of his opinion relative to this case, as mandated by MCR
6.201(A)(3). Defendant argues that defense counsel was ineffective for failing to demand
compliance with MCR 6.201(A)(3). Defendant also contends that the trial court failed to
evaluate the reliability of the data and methodologies, MRE 702, underlying Henry’s opinions
and conclusions. More particularly, defendant raises issues regarding Henry’s testimony about
memory and patterns of and delays in disclosure, which were premised on a study, conducted by
Henry himself, looking at 90 children who had been sexually abused. Defendant further
maintains that defense counsel was ineffective for failing to object to the admission of this
testimony and for failing to effectively cross examine Henry with respect to the testimony.

       Whether a defendant received the effective assistance of counsel is a mixed question of
fact and law that we review, respectively, for clear error and de novo. People v Ackley, 497
Mich 381, 388; __ NW2d __ (2015). “To obtain relief for the denial of the effective assistance of
counsel, the defendant must show that counsel's performance fell short of . . . [an] objective
standard of reasonableness and that, but for counsel's deficient performance, there is a reasonable
probability that the outcome . . . would have been different.” Id. at 389 (citations and quotation


5
  We note that our Supreme Court in Trakhtenberg, 493 Mich 38, a CSC case in which
credibility was paramount, held that defense counsel was ineffective and that the defendant was
prejudiced, where counsel had failed, in part, to utilize an expert regarding forensic interviewing
protocols. However, counsel in Trakhtenberg failed to procure any expert testimony whatsoever,
and the victim there was eight years old, with the case involving just a few instances of sexual
abuse, absent any damaging evidence comparable to the text messages presented here.


                                                -7-
marks omitted). A defendant must overcome the strong presumption that counsel's performance
constituted sound trial strategy, but an appellate court is not permitted to insulate the review of
counsel's performance by simply calling it trial strategy – the strategy must be sound, with
decisions being objectively reasonable. Id. at 388-389. We must determine whether strategic
choices were made after less than complete investigation or if a reasonable decision made an
investigation unnecessary. Id. at 389.

         With respect to the arguments under MCR 6.201(A)(3), Henry gave fairly brief testimony
regarding behaviors and characteristics of sexually abused children, opining on issues related to
delayed disclosure, failure to disclose when first questioned by others, emotional connections
between abusers and the abused, grooming, self-harm, traumatic memory, distancing from
parents, and “testing” reactions through hints and incremental release of information about
abuse. It is important to understand that, as repeatedly pointed out by the prosecutor during the
proceedings, Henry had not been provided any information or documents concerning the facts
specific to this case. Henry’s testimony was extremely general in nature. It is entirely possible
that the partial transcripts of Henry’s testimony from other criminal cases that were provided to
defense counsel covered the very same areas and revealed the very same opinions that Henry
discussed in his testimony here, e.g., there is generally a delay by children in disclosing sexual
abuse, which would explain why the transcripts were given to defense counsel. Those transcripts
could certainly constitute a “written description” of the substance of Henry’s proposed
testimony, his opinions, and the underlying bases of those opinions in this case, satisfying MCR
6.201(A)(3). A “defendant has the burden of establishing the factual predicate for [a] claim of
ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defendant did not submit the transcript excerpts in relationship to the Ginther hearing, nor did
defense counsel testify with respect to the content of those transcript passages. Accordingly,
defendant has not satisfied his burden to establish the factual predicate of his ineffective
assistance claim with respect to his arguments under MCR 6.201(A)(3). Moreover, defendant
has failed to show that he was actually prejudiced by Henry’s general and occasionally helpful
testimony regarding behaviors and characteristics of children who are sexually abused, especially
in light of the untainted evidence of guilt.

        With respect to Henry’s testimony concerning his study of 90 sexually abused children
and his opinions that flowed from the study, defense counsel did not challenge Henry’s
testimony, and we are not prepared to rule that the trial court was obligated, in that situation and
given the nature of Henry’s views, to sua sponte undertake its own analysis under MRE 702 to
determine whether the testimony was based on sufficient facts or data or whether the testimony
was the product of reliable principles and methods. Moreover, in the context of plain-error
analysis, defendant has failed to show that there was a plain error in admitting the evidence, i.e.,
that it was plain and obvious that Henry’s testimony regarding the study and the opinions based
on the study were inadmissible under MRE 702. People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999). Nor has defendant shown the requisite prejudice, or that the testimony
resulted in the conviction of an actually innocent person, or that the testimony seriously affected
the fairness, integrity, or public reputation of the proceedings. Id. In regard to the associated
claim of ineffective assistance of counsel, we agree with the trial court that defense counsel
exercised a reasonable and sound trial strategy by not challenging Henry directly on cross-
examination with respect to the study and his opinions, instead choosing to counter Henry’s
testimony with Okla’s testimony. And, again, the requisite prejudice has not been shown.

                                                -8-
                                   III. THE VERDICT FORM

        Although defendant was originally charged with 26 counts of CSC III, at the conclusion
of trial, the prosecution dismissed three counts, leaving 23 counts, 11 of which concerned
vaginal intercourse and 12 of which concerned oral sex (fellatio). Broken down, the 11 counts
regarding intercourse encompassed eight instances in a field, two instances in the victim’s home,
and one instance in a yard; the 12 counts of oral sex encompassed eight instances in a field, two
instances in the victim’s home, one instance in a yard, and one instance in a car. The jury
convicted defendant on eight counts related to intercourse and eight counts related to oral sex,
acquitting him as to the seven remaining counts. The verdict form listed the 23 counts, with the
first 11 counts expressly pertaining to intercourse and the next 12 counts expressly pertaining to
oral sex, absent any additional indication of the nature, location, date, or circumstances of each
count. On appeal, defendant argues that his due process rights were violated because the verdict
form was deficient, in that, given the lack of specificity relative to each count, the jury may not
have been unanimous on the counts upon which he was convicted. Defendant also argues that
defense counsel was ineffective for failing to demand identification of the factual predicate for
each count on the verdict form.

        Defendant correctly observes that he was entitled to a unanimous jury verdict and that the
trial court was obligated to so instruct the jury. MCR 6.410(B); People v Cooks, 446 Mich 503,
510-511; 521 NW2d 275 (1994). “[W]here materially identical evidence is presented with
respect to each act, and there is no juror confusion, a general unanimity instruction will suffice.”
Cooks, 446 Mich at 512-513. Here, after reciting the language in the verdict form to the jury as
to all 23 counts, the trial court then directed the jury as follows:

               Now you’re going to get the jury instructions to go with you. You’re going
       to get one of these verdict forms that the foreperson will be responsible for. You
       have [to] reach a unanimous verdict on each count, so you have to go count by
       count, and when you have a unanimous verdict you can check the box.

              You have to be in agreement not only with the elements, but also that
       you’re talking about the same occurrence. So one can’t be thinking of one time
       and one can’t be thinking of another. You all have to be talking about the same
       incident and then be unanimous in your decision on that as to guilt or not guilty.
       Do you all understand that? Okay. [Emphasis added.]

Jurors are presumed to follow their instructions. People v Mahone, 294 Mich App 208, 212; 816
NW2d 436 (2011).

        Although each count in the verdict form did not identify, beyond indicating the type of
sex act alleged, the specifics of the sex act, such as when and where it took place, the jurors, in
light of the court’s instruction, were fully aware of the fact that they had to be unanimous and be
discussing the same incident, whether it was oral sex in the field on one day or intercourse in the
house on another day, when addressing each individual count. Indeed, the quoted jury
instruction went beyond a mere general unanimity instruction; it was specific. We cannot
envision any juror confusion under the circumstances; therefore, the trial court did not err and
counsel’s performance was not deficient in relation to the verdict form. Reversal is unwarranted.

                                                -9-
                                IV. CHARACTER EVIDENCE

         Relying on MRE 404(b), defendant next argues that the trial court erred by admitting
improper and prejudicial character evidence and that counsel was ineffective for failing to object
to the evidence or to request redaction. At issue are statements defendant wrote in
communications to the victim and her mother. Two are from text messages he sent to the victim,
which referred to defendant having spent “a few days in jail” and having his “hands covered in
[a] filthy female pot plant.” The other statements are from an email defendant sent to the
victim’s mother, which referenced defendant “getting high” in front of the victim. In the email,
defendant also stated, “[I]f I lose my job I will never get another. I have too much of a record to
ever get hired again.” In considering defendant’s claim following the Ginther hearing, the trial
court concluded that the evidence was admissible and, therefore, it was not unreasonable for
defense counsel not to object to its admission.

        In People v Jackson, 498 Mich 246, 259-260; 869 NW2d 253 (2015), our Supreme Court
recently reiterated the well-established framework for analyzing the admissibility of other-acts
evidence under MRE 404(b):

               “To admit evidence under MRE 404(b), the prosecutor must first establish
       that the evidence is logically relevant to a material fact in the case, as required
       by MRE 401 and MRE 402, and is not simply evidence of the defendant's
       character or relevant to his propensity to act in conformance with his character.
       The prosecution thus bears an initial burden to show that the proffered evidence is
       relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is
       otherwise probative of a fact other than the defendant's character or criminal
       propensity. Evidence relevant to a noncharacter purpose is admissible under MRE
       404(b) even if it also reflects on a defendant's character. Evidence
       is inadmissible under this rule only if it is relevant solely to the defendant's
       character or criminal propensity. Any undue prejudice that arises because the
       evidence also unavoidably reflects the defendant's character is then considered
       under the MRE 403 balancing test, which permits the court to exclude relevant
       evidence if its probative value is substantially outweighed by the danger of unfair
       prejudice. MRE 403. Finally, upon request, the trial court may provide a limiting
       instruction to the jury under MRE 105 to specify that the jury may consider the
       evidence only for proper, noncharacter purposes.” [Citations, ellipses, and
       internal quotation marks omitted.]

        Here, the statements in defendant’s text messages to the victim touching on jail time and
a marijuana plant, as well as the statement in defendant’s email to the victim’s mother about
getting high in front of the victim, were not offered to show defendant’s propensity to use drugs
or to otherwise engage in criminal behavior. Rather, the statements were offered to show the
nature of the relationship between defendant and the victim and were reflective of grooming and




                                               -10-
manipulation by defendant, making the statements relevant to the issues in the case.6 And the
probative value of the evidence was not substantially outweighed by the danger of unfair
prejudice. There was no plain error in admitting these statements, Carines, 460 Mich at 763-
764, and counsel was not ineffective for failing to raise a futile objection, People v Strickland,
293 Mich App 393, 398; 810 NW2d 660 (2011). With respect to the email statement by
defendant that he had too much of a record to get a new job if he were fired, the statement again
was not offered for propensity purposes. Rather, the statement, when read in context, showed
the effort made by defendant to dissuade the victim’s mother from having CSC charges pressed
against him. We also note that the statement could be interpreted as meaning that defendant
would have too much of a record if charges were pressed against him, not that he had too much
of an existing record. Regardless, assuming error in admitting the statement and deficient
performance by counsel, in light of the proper admission of the jail-time statement made by
defendant to the victim, the briefness of the reference, which was buried in an extensive email,
and the trial court’s cautionary and limiting instruction on “other bad acts,” defendant has
entirely failed to establish the necessary prejudice. Reversal is unwarranted.

                 V. LABORATORY REPORT REGARDING FINGERPRINTS

        Defendant finally argues that trial counsel was ineffective for failing to obtain a
fingerprint report and for failing to call the lab analyst as a witness to admit the fingerprint report
as evidence. The report concerned a bag with a phone that was recovered near the victim’s
house. The victim had testified that defendant had been providing her with prepaid cell phones
so that they could continue to communicate after her mother had told defendant to stop
communicating with the victim. There is no dispute that the report existed and established that
defendant’s fingerprints were not on the bag or phone. And there was testimony that the
materials had been sent to a state police lab for testing, but the jury never heard any evidence of
the actual results. Defense counsel had attempted to introduce the fingerprint results through the
testimony of the investigating officer, as opposed to a lab analyst, and the trial court rebuked
counsel’s effort. Defense counsel then employed the strategy of simply indicating to the jury
that, given the failure by the prosecution to show that defendant’s fingerprints were actually on
the bag or phone, the jury could infer that there were no such prints.

        In denying defendant’s claim of ineffective assistance of counsel on this issue, the trial
court determined that trial counsel was aware of the report and its contents and that counsel had
made a strategic decision not to delve into the matter. We question the soundness of this
reasoning. Regardless, assuming deficient performance by counsel, defendant simply cannot
establish the requisite prejudice. The issue was collateral, the lack of defendant’s fingerprints on
the materials was of minimal evidentiary value in the context of all the other circumstances in the
case, and the jury ultimately entered into deliberations with the knowledge that the prosecution




6
  The statement to the victim referencing a “few days in jail” was made in the context of
defendant expressing to the victim that he would protect her and that she would never have to
“take a bullet” if he could help it.


                                                 -11-
did not submit any evidence showing defendant’s prints on the materials despite the testing.
Reversal is unwarranted.

       Affirmed.



                                                        /s/ Donald S. Owens
                                                        /s/ William B. Murphy
                                                        /s/ Joel P. Hoekstra




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