                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      June 21, 2016
               Plaintiff-Appellee,

v                                                                     No. 326569
                                                                      Washtenaw Circuit Court
GOVIT POOCHUAY,                                                       LC No. 14-000593-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and OWENS and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions of assault with a dangerous weapon (felonious
assault), MCL 750.82; interfering with electronic communications, MCL 750.540(4); and
domestic assault, MCL 750.81(2). The trial court sentenced defendant as a third-offense habitual
offender, MCL 769.11, to 23 months to 8 years’ imprisonment for felonious assault, 16 months
to 4 years’ imprisonment for interfering with electronic communications, and 93 days in jail for
domestic assault. We affirm.

        This case arises from an incident in which defendant, during an argument with his
girlfriend, Sylvania Aiken, and her mother, Margaret Mack, head-butted Aiken, cut her with a
knife, and took their cellular telephones when they attempted to call the police. On appeal,
defendant first argues that he was denied his right to a fair and impartial jury because the jury
allowed sympathy and prejudice to influence its verdict. This Court reviews defendant’s
unpreserved claim challenging the impartiality of the jury for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A
criminal defendant has a constitutional right to be tried by an impartial jury. People v Miller,
482 Mich 540, 547; 759 NW2d 850 (2008). But jurors are presumed to be impartial, and it is
incumbent on the defendant to establish the contrary “or at least that the [jury]’s impartiality is in
reasonable doubt.” Id at 550. “[W]hen citizens have been sworn to tell the truth, and testify
under oath that they can be impartial, the initial presumption is that they are honoring their oath
and are being truthful.” People v DeLisle, 202 Mich App 658, 663; 509 NW2d 885 (1993).

       Here, while the jury was deliberating, it asked the trial court whether it could read a
statement to the defendant before reading the verdicts. The trial court informed the jury that it
could not, but further told them that after the jury was discharged, any member of the jury could



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remain and make a statement if he or she so desired. After the jury was discharged and excused,
an unidentified juror addressed defendant as follows:

       Mr. Poochuay, the jury is saddened by the events that took place in your home on
       July 27th, 2014. It is particularly sad and disturbing that your nine-year-old
       daughter Samiya witnessed the most important people in her life behaving in
       unacceptable manners that have been described in this trial.

       We also find it sad that your children have been put in a position to have to testify
       in a jury trial against their father.

       The jury believes that on July 27th you were provoked by Ms. Mack and also
       provoked in some ways by Ms. Aiken. We are sympathetic to how difficult it
       must have been to hear the things said to you and in the ways those things were
       said. Nonetheless, it was your responsibility as an adult to control your emotions
       and behaviors especially since your nine-year-old child was present.


        On appeal, defendant claims that this statement revealed that the jury allowed their
personal feelings and prejudices to influence their deliberations and verdict, which denied
defendant a fair and impartial jury as guaranteed by the state and federal constitutions.
Defendant on appeal does not explain how the statement supports an inference that the jury was
not impartial and free from prejudice in reaching its verdicts, and this Court finds no support for
such an inference. The statement evidenced that the juror did not like that a child witnessed the
crimes and that the juror felt sympathy for defendant, but that the facts of the case required
conviction because defendant did not control his emotions and behaviors. Nothing in the juror’s
statement evidences that any member of the jury was not impartial or was prejudiced against
defendant. Jurors are presumed to be impartial, and defendant has failed to carry his burden of
establishing that there is a reasonable doubt regarding the impartiality of any juror. Miller, 482
Mich at 550. Furthermore, the jury took an oath to “render a true verdict only on the evidence
introduced, and in accordance with the instructions of the Court,” and the trial court instructed
the jury that “[y]ou must not let sympathy or prejudice influence your decision.” It is presumed
that the jurors honored their oath and did not base their verdict on sympathy or prejudice.
DeLisle, 202 Mich App at 663. On this record, defendant has not shown that the jury allowed
personal feelings and prejudices to influence their deliberations and verdict; there is no plain
error affecting defendant’s substantial rights to support reversal. Carines, 460 Mich at 763-764.

        On appeal, defendant also claims that he was denied his right to a fair trial by several
statements that the prosecutor made during his closing argument. This Court reviews
unpreserved claims of prosecutorial misconduct for plain error. People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). We consider such claims on a case-by-case basis, reviewing
the prosecutor’s remarks in context. Id. Prosecutors are generally accorded wide latitude with
respect to making their arguments to the jury. People v Bahoda, 448 Mich 261, 282; 531 NW2d
659 (1995). A prosecutor may argue the evidence and any reasonable inference from the
evidence, id., and may respond to issues that the defense raises, People v Brown, 279 Mich App
116, 135; 755 NW2d 664 (2008). “The prosecutor is free to argue from the evidence and its
reasonable inferences in support of a witness’s credibility.” Bennett, 290 Mich App at 478; see

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also People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). Nonetheless,
“prosecutors should not resort to civic duty arguments that appeal to the fears and prejudices of
jury members or express their personal opinion of a defendant’s guilt.” Bahoda, 448 Mich at
283-284. Further, a prosecutor cannot vouch for the credibility of prosecution witnesses by
implying some special knowledge regarding the witnesses’ truthfulness. Id. at 276, 286.

        According to defendant, the prosecutor improperly made a personal plea for a guilty
verdict and vouched for the evidence during his closing argument when he stated:

       I’m asking that you find the defendant guilty of the felonious assault. Did he
       assault her with a dangerous weapon? Absolutely. I don’t think any of us has a
       doubt that a knife is a dangerous weapon. Did he physically assault her?
       Absolutely. He cut her arm. Did he put her in fear of being assaulted with a
       dangerous weapon? Well, I’m pretty sure if somebody says I’m going to kill you
       after they just cut you and they’re chasing you with a knife, they’re continuing to
       felony -- to assault you with that dangerous weapon.


Considering the challenged statement in context, we agree it does not represent the prosecutor’s
personal opinion regarding defendant’s guilt or the strength of his case. The prosecutor’s
arguments, based on the evidence presented at trial, were that each of the elements of felonious
assault was met. It is entirely proper for a prosecutor to argue the evidence and reasonable
inferences arising from the evidence as they relate to the prosecutor’s theory of the case.
Bahoda, 448 Mich at 282. “The prosecution has wide latitude in arguing the facts and
reasonable inferences, and need not confine argument to the blandest possible terms.” People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). Importantly, the challenged arguments are
based on the evidence and are thus not improper. Id.; Bahoda, 448 Mich at 282. Further, any
possible unfair prejudice was removed when the trial court instructed the jury that “you may only
consider the evidence that has been properly admitted in this case” and that “[t]he lawyer’s
statements and arguments are not in evidence.” See People v Unger, 278 Mich App 210, 237-
238; 749 NW2d 272 (2008). There was no plain error affecting defendant’s substantial rights.
Carines, 460 Mich at 763-764.

       On appeal, defendant also claims that the prosecutor improperly vouched for prosecution
witnesses when he stated:

       The defense attorney tried to argue about the reliability of these witnesses. These
       witnesses came in here and did the best they could to recall the events and explain
       them to you. To recall what happened four months ago. Regardless of how much
       the defense attorney tried to -- to muck up Ms. Mack’s testimony and confuse her
       and go back and forth on little details, she was consistent in what she saw. What
       she saw was a felonious assault, a larceny in the building, and interfering with
       electronic communications device, a domestic violence, and assault and battery.
       Don’t let the defense attorney confuse you with these minor issues and overlook
       the big picture as far as what actually happened here.




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A prosecutor “cannot vouch for the credibility of his witnesses to the effect that he has some
special knowledge concerning a witness’ truthfulness.” Bahoda, 448 Mich at 276. However, the
challenged statements are devoid of any suggestion by the prosecutor that he had any special
knowledge concerning the witnesses’ truthfulness. This Court considers allegations of
prosecutorial misconduct in context, Bennet, 290 Mich App at 475, and in this case there was
conflicting testimony by defendant, Aiken, and Mack that called their credibility into question.
Thus, the prosecutor could properly comment on his own witnesses’ credibility, especially
because credibility was at issue. Id. at 478. Furthermore, any possible prejudice was removed
when the trial court instructed the jury that it “may only consider the evidence that has been
properly admitted in this case” and that “[t]he lawyer’s statements and arguments are not in
evidence.” Unger, 278 Mich App at 237-238. Thus, defendant has not shown the existence of
plain error affecting his substantial rights. Carines, 460 Mich at 763-764.

         Finally, defendant argues on appeal that the prosecutor impermissibly shifted the burden
of proof when he stated during closing argument “[d]o we have any evidence at all that can
corroborate the defendant’s story? No.” This claim is without merit. “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.”
People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010). But when a defendant
testifies at trial or advances an alternate exculpatory theory of the case, the prosecutor’s
comments on the validity of the alternate theory do not “shift the burden of proving innocence to
the defendant.” People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). When a defendant
testifies in his own defense, the defendant’s “ ‘credibility may be impeached and his testimony
assailed like that of any other witness.’ ” Id. at 110 (citation omitted). In this case, the
prosecutor’s statement commented on the validity of the story to which defendant testified,
challenging the validity of that story when it is considered with the other evidence admitted at
trial. Thus, the prosecutor’s statement was proper and did not shift the burden of proof. Fields,
450 Mich at 115. Furthermore, in addition to instructing the jury that the lawyers’ statements
and arguments were not evidence, the trial court also instructed the jury that “[t]he prosecutor
must prove each element of the crime beyond a reasonable doubt” and that defendant “is not
required to prove his innocence or to do anything.” Jurors are presumed to follow their
instructions. Unger, 278 Mich App at 235. Defendant has not shown plain error affecting his
substantial rights. Carines, 460 Mich at 763-764.

       We affirm.

                                                           /s/ Jane E. Markey
                                                           /s/ Donald S. Owens
                                                           /s/ Mark T. Boonstra




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