                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 1, 2015
               Plaintiff-Appellee,

v                                                                    No. 320065
                                                                     Wayne Circuit Court
NASSER MOHAMAD BAZZI,                                                LC No. 13-007077-FC

               Defendant-Appellant.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

      Defendant appeals as of right his jury trial convictions of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(a), two counts of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(1)(a), and two counts of fourth-degree criminal sexual conduct (CSC-
IV), MCL 750.520e(1)(a). The trial court sentenced defendant to 135 months to 22 years for
each CSC-I conviction, 10 to 15 years for each CSC-II conviction, and one to two years for each
CSC-IV conviction, all sentences to be served concurrently. We affirm.

                                                 I

                                                 A

         Defendant’s convictions arise out of instances of sexual abuse against his niece during
her childhood and teenage years. Before the victim married her husband in November 2011, she
lived with her mother, Afrah Hamid, and eight siblings in the family home in Dearborn,
Michigan. Her father also lived with the family until his death. Various family members
testified that defendant was a frequent visitor and often spent the night in available spaces in the
family home, including the room shared by the victim and four of her sisters.

       The victim testified that defendant started to abuse her when she was 11 years old and
described multiple instances of sexual abuse at trial.1 In the context of explaining her


1
  The prosecution witnesses and defense witnesses provided different accounts of the details of
the home and plausibility of the victim being alone with defendant at specific times throughout
her childhood and teenage years.


                                                -1-
relationship with defendant, the victim explained that, when her father was not present,
defendant disciplined the children and even hit them, without objection from her mother. The
victim further explained that avoiding disrespect is very important in Lebanese-American
culture, and the men in her family are like kings, whereas women are like servants. As a result,
she continued to interact with defendant after the abuse began and behaved according to her
culture’s expectations because, otherwise, she feared that defendant or her mother would “make
a problem out of it.”

        Despite the fact that defendant threatened to kill her if she revealed his abuse, and that
talking about molestation was not a “comfortable” subject within her family, the victim testified
that she eventually began to reveal the abuse that had occurred. The victim explained that her
family repeatedly urged her to maintain her secrecy after she revealed the abuse, reasoning that it
could cause embarrassment. The victim further clarified that, if a man knows a woman has been
“touched before[,] . . . it’s like you’re trash . . . like you’re not worthy to marry a good man.”

       Zeina Hamid, the wife of the victim’s brother, Ahmad Hamid, recalled overhearing a
conversation at her house between the victim’s sisters (Latefa and Fatema Hamid) and the
victim’s friend (Hoda Fawaz) about the molestation.2 She later directly confronted the victim
about the abuse, but, at the urging of Latefa, Fatema and Hoda, did not report the conduct.3
Zeina testified that the victim’s mother and sister, Laila Hamid, subsequently warned her to
maintain the secrecy for the sake of the girls’ reputations and their abilities to marry. At trial,
Laila admitted that she warned Zeina to stay out of her family’s business.

         When the victim was engaged in August 2011, and began planning her wedding, her
mother wanted defendant to sing at the wedding.4 The victim testified that the victim confronted
her mother directly about the abuse in order to explain why she did not want defendant to sing.
At trial, the mother testified that the victim never told her that defendant had abused her and only
indicated that he abused others. Additionally, the mother stated that the victim’s accusations that
defendant abused others were merely suspicions, with no personal observations, and constituted
a sin in their religion.



2
   Zeina testified that the victim’s family generally did not like her, and defendant’s witnesses
offered similar testimony. Latefa explained that her mother accepted Zeina as Ahmad’s wife, but
“always made us keep a certain distance away from her.” Defense counsel elicited testimony
from the victim’s sister, Mariam Hamid, that their parents did not want Ahmad to marry Zeina.
3
    Latefa, Fatema, and Hoda denied any such conversations.
4
  On direct examination, the victim admitted that her family did not like her husband. Everyone
but Ahmad objected to the wedding, but her mother ultimately gave her permission to marry, and
the family attended the ceremony. The victim’s mother explained that, despite her daughter’s
choice for a husband, she wanted to be at the wedding to support her. The family purchased
wedding gifts for the victim, but the victim never collected them from the family home. The
victim also prevented her family from throwing a shower for her and shopping for her wedding
dress, and several witnesses testified that she was standoffish at her wedding.


                                                -2-
         According to the victim, she secretly recorded a subsequent conversation with her mother
about defendant’s abuse two or three weeks after she first revealed the abuse to her mother
because of her mother’s lack of support with regard to the allegations and a fear that she would
be accused of lying. The recording was primarily in Arabic, and the record demonstrates a
dispute among the witnesses and an interpreter regarding the English translation of the
conversation. The victim testified that, during that conversation, she again told her mother that
defendant abused her and others, but her mother angrily expressed concerns about “how this
would look if people found out in the community,” stating that the victim should lie about it,
even if she had a gun pointed to her head, and take the information to her grave. Likewise,
Ahmad confirmed that that his mother and sister “were talking about how [defendant] molested
her and pretty much, you know, my mom was telling her to stay quiet, not tell anybody.” The
prosecutor also elicited testimony that, in the recording, the victim mentioned whom she had
previously told about the abuse. In contrast, Latefa claimed that her mother never told the victim
to lie, and Laila and the mother testified that they did not hear any reference to the victim or her
sisters being abused on the recording. Instead, they testified that the victim had only stated that
the defendant had abused “somebody else” or “other people,” and that the mother had only told
the victim to stop talking about her suspicions, which were not based on anything that the victim
witnessed herself.5

        After the victim’s wedding in November 2011, Ahmad noticed that his family was
treating the victim and Zeina differently. When he confronted the victim, she revealed
defendant’s abuse. Ahmad testified that, afterward, he discussed the abuse with their mother,
who urged him to keep the secret to preserve his sisters’ ability to marry. Ahmad also discussed
the abuse with his brothers and his father’s brothers, who called a family meeting at one of their
homes the next day.

         The victim testified that, at the family meeting, (1) she discussed the abuse that she had
suffered, (2) Mariam admitted to having heard the victim’s allegations once before, and, (3)
although they initially denied that defendant had abused them, Fatema and Latefa ultimately
revealed that they were victims as well. Ahmad and Zeina, as well as the victim’s aunt (Soufa
Moukdad) and her uncle (Moustafa Hamid), testified similarly on rebuttal that, at the meeting,
the victim, Fatema, and Latefa revealed that defendant had abused them; these witnesses
explained that the victim’s sisters initially denied the abuse, but admitted it after an uncle
suggested a polygraph examination. According to the victim, the meeting ended with the family
crying and hugging one another. The victim testified that she did not go to the police afterward
because she lacked the necessary confidence and self-esteem; she was also trying to give her
sisters time to process their revelations.

       Defendant’s witnesses testified very differently regarding the family meeting. They
maintained that Fatema and Latefa denied any abuse throughout the meeting, despite the
suggestion of a polygraph and Ahmad’s “very explosive” behavior and tendency to gesture



5
  Ali Hamid also testified that he heard the tape, but he did not remember what his mother and
sister said on the tape.


                                                -3-
toward his waist—where a gun could have been stored in a holster—when the sisters refused to
change their stories. Likewise, Fatema and Latefa again testified at trial that defendant never
abused them.

        The victim testified that, after the meeting, her mother, sisters, and two brothers (Hassan
and Ali Hamid) never talked to her again. Although she admitted that her mother attempted to
contact her while she was pregnant, the victim did not respond. She suspected that her mother
only wanted to save face in the community. Ahmad similarly had little contact with his family
after the meeting and explained that he lost respect for his mother, who was most worried about
“hiding everything.”

         In June 2012, the victim recorded her feelings about defendant’s conduct in a diary. She
testified that she did not specifically describe what occurred during the molestation. In her diary,
she also discussed her family’s attempts to interfere with her marriage.

        Ahmad testified that, in January 2013, which was approximately one year after the family
meeting, he could no longer maintain the family’s secret. Despite his mother’s warnings that his
sisters would be blacklisted, he reported the abuse of his sisters by defendant to the police so that
he would not “do something crazy” and “go to jail.” Afterward, his mother cut off all ties with
him. The investigating officer testified that she reached out to Laila, Fatema, Latefa, and
Mariam, but only Mariam responded, indicating that she did not want to be involved.

                                                     B

        At trial, the prosecutor indicated during her opening statement that “there were
allegations that came out and there was [sic] some disclosures” at the family meeting.
Subsequently, during his opening statement, defense counsel asserted that although the victim
claimed to the police that defendant also abused Laila, Fatema, and Latefa, “[n]ever was
[defendant] ever confronted with having touched one of those younger sisters.” He later asserted
that Ahmad used a gun and threatening conduct at the family meeting “to solicit and demand and
extract confessions from the girls[, but even] . . . in the face of . . . all those threats[,] all the girls
are consistent, nothing ever happened to us, what are you doing and why are we here and why
are we going through this?” Subsequently, witnesses offered conflicting testimony regarding
whether the victim’s sisters were abused by defendant and whether the sisters disclosed that they
were abused during the family meeting. During their testimony, the sisters consistently
maintained that they were not sexually abused by defendant. The defense did not make a timely
objection to the prosecutor’s opening statement or to any of the references to defendant’s abuse
of the other sisters during the prosecution’s case-in-chief. During his closing argument, the
defense argued that the victim was not credible in making her allegations against defendant
because she lied when she claimed that her sisters had made similar allegations.

        Additionally, the prosecutor elicited the following testimony from the victim’s brother,
Ali:

               Q. Now, you said you would never -- you’d never of thought that your
        uncle would do something, correct, to your sisters?

                A. No, I wouldn’t of.
                                                    -4-
               Q. And you don’t want that to be true, is that correct?

               A. It’s not true.

               Q. Fair to say you wouldn’t want that to be true, correct?

               A. It’s not true.

               Q. Sir, yes or no, is it fair to say that you wouldn’t want that to be true?

               A. Yes.

              Q. Okay. And if it were true that would mean that you, as an older
       brother, failed to protect your younger sisters, isn’t that correct?

               A. It’s a hypothetical. I’m not even going to answer it.

             Q. Would that mean you failed, as an older brother, to protect your
       younger sisters?

               A. No, I don’t think so.

               Q. If your uncle who was living in the house was molesting your sisters --

               A. No.

               Q. -- you wouldn’t feel guilty at all?

               A. No.

        Also during trial, defense counsel attempted to elicit testimony, which the trial court
excluded, regarding the details of a variety of matters, including, inter alia, the family’s
dissatisfaction with the victim’s husband; the criminal record of the victim’s husband; the
family’s disapproval of Zeina before she married Ahmad; the family’s relationship and contact
with Zeina and Ahmad after their marriage; the interactions between the victim’s mother and
Ahmad’s and Zeina’s child; an instance during which Ahmad allegedly assaulted his mother;
defendant’s relationship with the victim’s father; an instance during which defendant
“demanded” that the victim dance with him; whether Ahmad apologized after the family
meeting; how Latefa would have responded if she had told her mother that she had been abused
and her mother did not believe her; whether the victim changed her phone number after her
wedding; and the mother’s contact and relationship with the victim before and after the wedding.

        Following the parties’ closing arguments, the trial court specifically instructed the jury,
“If you believe that a witness previously made a statement inconsistent with his or her testimony
at this trial[,] the only purpose to which that earlier statement can be considered by you is in
deciding whether the witness testified truthfully in court. The earlier statement is not evidence
that what the witness said earlier is true.”



                                                 -5-
       Following his trial and sentencing hearing, defendant filed a motion for a new trial and
request for a Ginther6 hearing, which the trial court denied. Subsequently, defendant filed in this
Court a motion to remand for an evidentiary hearing in order to further develop the factual
record. On January 23, 2015, this Court denied the motion, stating:

                 The Court orders that the motion to remand pursuant to MCR 7.21l(C)(I)
         is DENIED. Defendant-appellant previously moved for a new trial and requested
         an evidentiary hearing under MCR 7.208(8) on the same grounds raised in the
         motion to remand, which the trial court denied. Defendant-appellant has not
         demonstrated that the trial court should have conducted an evidentiary hearing on
         the issues raised in his motion for a new trial. The majority of the arguments
         involve matters that can be reviewed based on the existing trial record. On the
         remaining issue involving the trial court’s ruling limiting cross-examination
         regarding motive or bias, defendant-appellant has not supported his motion with
         an affidavit or offer of proof to establish how he would further develop the record
         on that issue on remand. [People v Bazzi, unpublished order of the Court of
         Appeals, entered January 23, 2015 (Docket No. 320065).]

                                                 II

        Except as noted below in Part V, all of defendant’s claims of evidentiary error and
prosecutorial misconduct are unpreserved, as defendant failed to make a timely objection to the
evidence that he challenges on appeal and failed to object to the alleged instances of
prosecutorial misconduct. MRE 103(a)(1); People v Metamora Water Serv, 276 Mich App 376,
382; 741 NW2d 61 (2007). We review unpreserved issues for plain error affecting substantial
rights. People v Vandenberg, 307 Mich App 57, 61; 859 NW2d 229 (2014), citing People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To demonstrate such an error, the
defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the
plain error affected [the defendant’s] substantial rights,” which “generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763.

        Additionally, our review of defendant’s ineffective assistance of counsel claims is limited
to errors apparent from the lower court record because a Ginther hearing was not held in the trial
court. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007) (citations omitted). “A
claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s
findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate
constitutional issue arising from an ineffective assistance of counsel claim de novo.” People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008), citing People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002).

         Effective assistance of counsel is presumed, and defendant bears a heavy burden
         of proving otherwise. To demonstrate ineffective assistance, defendant must


6
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                 -6-
       show: (1) that his attorney’s performance fell below an objective standard of
       reasonableness, and (2) that this performance so prejudiced him that he was
       deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
       existence of a reasonable probability that, but for counsel’s error, the result of the
       proceeding would have been different.” [People v Gaines, 306 Mich App 289,
       300; 856 NW2d 222 (2014) (citations omitted).]

“A defendant must also show that the result that did occur was fundamentally unfair or
unreliable.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012).

                                                III

       Defendant first argues that the trial court erred by admitting evidence that the victim
alleged that he not only abused her, but also her sisters. Defendant contends that this was
improper other-acts evidence and inadmissible hearsay. We disagree.

        The record discloses that defendant first opened the door for evidence regarding these
allegations in his opening statement. See People v Bates, 91 Mich App 506, 510; 283 NW2d 785
(1979) (stating, in the context of other-acts evidence, that a defendant may put a matter into
“issue by opening argument, cross-examination, or the presentation of affirmative evidence”).
He cannot now complain of an error that he precipitated. To hold otherwise would allow
defendant to harbor error as an appellate parachute. See People v Carter, 462 Mich 206, 214-
216; 612 NW2d 144 (2000); People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001)
(“A defendant will not be heard to introduce and use evidence to sustain his theory at trial and
then argue on appeal that the evidence was prejudicial and denied him a fair trial”); People v
Green, 228 Mich App 684, 691; 580 NW2d 444 (1998) (“A defendant should not be allowed to
assign error on appeal to something his own counsel deemed proper at trial.”).7 Therefore,
defendant’s argument is without merit.8



7
 We reject defendant’s claim that the prosecutor first introduced this challenged evidence in her
opening statement, as the prosecutor’s statement did not include any reference to abuse
perpetrated by defendant against the victim’s sisters.
8
  We also reject defendant’s argument that reversal is required regardless of whether the defense
opened the door to the evidence given the mandatory notice requirement under MRE 404(b)(2).
Even if a prosecutor plainly errs by failing to provide notice, a defendant still must show that the
error affected his substantial rights, i.e., that the error affected the outcome of the trial court
proceeding; reversal is only warranted “when the plain, forfeited error resulted in the conviction
of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” Carines, 460 Mich at 763 (quotation marks and
citations omitted). On the record before us, we conclude that defendant has failed to establish
prejudice from the prior-acts evidence, especially given the consistent, in-court statements of the
victim’s sisters that defendant did not abuse them, and the defense’s use of the victim’s
allegations involving her sisters to undercut the victim’s credibility.


                                                -7-
       Defendant also asserts that defense counsel was ineffective for either failing to object to,
or by introducing, the victim’s statements regarding the alleged abuse against her sisters. We
disagree.

        Here, because defense counsel opened the door to the challenged evidence, any objection
to the prosecutor’s questioning on the same topic would have been futile; thus, defense counsel’s
failure to object did not constitute ineffective assistance. People v Unger, 278 Mich App 210,
256; 749 NW2d 272 (2008). Furthermore, to the extent that defendant suggests that defense
counsel was ineffective for introducing the challenged evidence, decisions regarding what
evidence to present are generally presumed to be matters of trial strategy. LeBlanc, 465 Mich at
578; People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defense counsel introduced
evidence of the victim’s allegations that defendant abused her sisters, but then elicited testimony
from her sisters that they were never abused. As such, it is apparent that defense counsel used
this evidence to support a defense theory that the victim’s allegations involving her sisters were
not credible and, therefore, the victim’s allegations against defendant were not credible. Thus,
because defendant has not overcome the strong presumption of reasonable trial strategy, which
this Court will not second-guess, defendant has failed to establish that defense counsel was
ineffective. Horn, 279 Mich App at 39.

                                                IV

        Defendant next argues (1) that it was improper to admit testimony regarding whether the
victim’s brother, Ali, would feel guilty or feel as though he failed to protect his sisters if the
allegations against defendant were true, and (2) that the evidence elicited by the prosecutor that
sexual abuse could tarnish a woman’s reputation in the victim’s culture was irrelevant and
constituted improper reputation evidence.9 We disagree.

                                                A

         On appeal, defendant describes the prosecution’s questioning of Ali with regard to how
he would feel if the allegations against defendant were true as “guilt-assuming hypotheticals”
that impermissibly attacked defendant’s character and violated defendant’s right to be presumed
innocent. Contrary to this characterization, Ali did not testify regarding defendant’s character or
reputation in the community or his own character or reputation in the community. Instead, Ali
testified regarding his own feelings about what he would and would not want to be true and
whether he would personally feel guilty for not protecting his sisters from defendant’s abuse. As
such, defendant’s reliance on authority regarding guilt-assuming hypotheses by character
witnesses is inapposite because, here, Ali was a fact witness, and he was not testifying about
defendant’s reputation in the community.



9
  We reject defendant’s argument that there was any claim at trial in violation of MRE 404 that
the victim possessed a chaste or virtuous character. The prosecutor only argued that the victim
was motivated by her family to keep the sexual abuse—which signified a lack of virtue in her
culture—a secret.


                                                -8-
        If the prosecutor had established that believing the allegations against defendant would
have made Ali feel guilty, the prosecutor could have argued that Ali was motivated to disbelieve
those allegations and, thus, provided biased testimony on behalf of defendant. “A witness’s bias
is always relevant.” People v McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005).
However, Ali denied that he would feel any guilt and reiterated during the questioning that the
allegations against defendant were untrue and that the prosecutor’s questions were
“hypothetical.” Therefore, defendant has failed to establish that this line of questioning was
prejudicial and affected his substantial rights. Carines, 460 Mich at 763. Likewise, defendant’s
claim of ineffective assistance on this basis must fail because an objection would have been
futile, see Unger, 278 Mich App at 256, and defendant has failed to establish that he was
prejudiced by this line of questioning, see Gaines, 306 Mich App at 300.

                                                  B

       With regard to defendant’s argument that the testimony regarding a woman’s reputation
in Lebanese-American culture was irrelevant, evidence is relevant under MRE 401 when it has a
tendency to make a material fact that is of consequence to the action more or less probable.
People v Sabin, 463 Mich 43, 56-57; 614 NW2d 888 (2000). Contrary to defendant’s claim,
“[m]ateriality . . . does not mean that the evidence must be directed at an element of a crime or
an applicable defense. A material fact is one that is ‘in issue’ in the sense that it is within the
range of litigated matters in controversy.” Id. at 57 (citations and quotation marks omitted).

         From the outset of the case, beginning with his opening statement, defense counsel
attacked the victim’s credibility by arguing that her delay in reporting the allegations indicated
that the allegations were untrue. As such, any explanations for the delay were relevant to
whether the victim was fabricating the allegations. The victim testified that, in her culture, if a
man knows that a woman has been “touched before[,] . . . it’s like you’re trash . . . like you’re not
worthy to marry a good man.” Additionally, the victim testified that when her family finally
learned about the abuse, she was repeatedly warned to keep the information a secret in order to
protect her reputation. The jury could infer that, as a result of this cultural belief, the victim did
not reveal the abuse immediately, and even when she did reveal the abuse, the information was
contained within the family for months for the same reason before Ahmad sought help from the
police. Thus, the evidence regarding the perception of sexual abuse in the victim’s culture was
relevant, and its admission was not plain error. Moreover, defense counsel was not ineffective
for failing to object because any objection would have been futile. Unger, 278 Mich App at 256.

                                                  V

       Next, defendant argues that many of the trial court’s rulings on the admission of evidence
during defense counsel’s cross-examination of the prosecution’s witnesses and direct
examination of the defense witnesses denied him the constitutional rights to present a defense
and confront the witnesses against him. We disagree.

        When an issue is preserved, we review a trial court’s evidentiary ruling for an abuse of
discretion. People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). Preliminary
questions of law underlying the trial court’s ruling, such as whether a rule of evidence precludes
admissibility, are reviewed de novo. Id. A preserved evidentiary error is presumed to be

                                                 -9-
harmless, and defendant bears the burden of proving otherwise. People v Lukity, 460 Mich 484,
493-495; 596 NW2d 607 (1999). This Court only reverses if, “ ‘after an examination of the
entire cause, it shall affirmatively appear’ that it is more probable than not that the error was
outcome determinative.” Id. at 495-496, quoting MCL 769.26. The “examination of the entire
cause” encompasses evaluating the error in the context of the untainted evidence. Lukity, 460
Mich at 495.

        A defendant’s constitutional right to present a defense and confront his accusers is
secured by the right to cross-examination guaranteed by the Confrontation Clause. US Const,
Am VI; Const 1963, art 1, § 20; People v Adamski, 198 Mich App 133, 138; 497 NW2d 546
(1993). However, the right to present a defense and cross-examine witnesses is not absolute.
See People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984); People v Arenda, 416 Mich 1,
8; 330 NW2d 814 (1982). “A witness may be cross-examined on any matter relevant to any
issue in the case,” MRE 611(c); see also People v Layher, 464 Mich 756, 764; 631 NW2d 281
(2001), but neither the Confrontation Clause nor due process confers an unlimited right to admit
all relevant evidence or cross-examine on any subject, Adamski, 198 Mich App at 138. Rather, a
court has wide latitude to impose reasonable limits on cross-examination based on concerns such
as prejudice, confusion of the issues, or questioning that is only marginally relevant, among
others. Id.; People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1992). Likewise, a
defendant is not permitted to introduce irrelevant evidence, MRE 402, and a trial court may
properly exclude evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence,” MRE 403.

        To the extent that defendant provides a specific basis for his claims of evidentiary error,
the thrust of his argument is that the trial court erroneously precluded him from eliciting
evidence demonstrating that the prosecution’s witnesses had reasons or motivations to lie, which
was relevant in response to the prosecution’s theory of the case that her witnesses, particularly
the victim and Ahmad, lacked a motive to lie about the allegations against defendant. For the
following reasons, we find no basis for reversal.

        Defendant challenges the preclusion of defense counsel’s question to Mariam regarding
whether she discussed her dissatisfaction with the victim’s “choice of husband” and Laila’s
testimony that the victim’s husband had a criminal record. The trial court ruled that the evidence
regarding Mariam’s dissatisfaction with the victim’s husband was not relevant and struck Laila’s
statement regarding the victim’s criminal history from the record. Defendant elicited evidence
throughout trial in support of his theory that the family’s disapproval of the victim’s husband
motivated her to fabricate the allegations of abuse. As such, any testimony from Mariam and
Laila about the same subject would have been cumulative, and defendant does not argue how the
family’s specific reason for disliking the victim’s husband—an alleged criminal record—was
material to his case. Therefore, even if we assume, arguendo, that the trial court erroneously
excluded this evidence, defendant cannot establish that it is more probable than not that the
exclusion of this evidence was outcome-determinative, as defendant’s theory of the case was
adequately presented by other witnesses and arguments. Lukity, 460 Mich at 495.

       Defendant also cites excluded questions regarding the family’s disapproval of Zeina; the
family’s relationship with Ahmad and Zeina after their marriage; whether Zeina knew that the

                                               -10-
victim’s mother did not want Zeina to influence her daughters; and the extent of Zeina’s contact
with the women in the family. The prosecutor objected to these questions on several grounds,
including relevance. Even if this evidence was relevant, inter alia, to demonstrate Ahmad’s and
Zeina’s motivation to lie about defendant because they had a poor relationship with the family, it
would have been cumulative. The record demonstrates that the same questions were asked of
other witnesses, and defense counsel relied on their responses in his arguments to the jury
regarding the defense’s theory of the case. Thus, even if we assume, without deciding, that the
trial court erred in excluding the testimony regarding these matters, defendant cannot establish
that it is more probable than not that the exclusion of this evidence was outcome-determinative.
Lukity, 460 Mich at 495.

        Defendant cites questions by defense counsel regarding the interactions of the victim’s
mother with Ahmad’s and Zeina’s child and whether they accused her of hurting their son. But,
again, the record already demonstrated that a conflict existed between Ahmad and Zeina and the
rest of his family. Although the couple’s belief that the mother abused their son may have
demonstrated their bias against the mother, defendant fails to explain how this bias was material
to any alleged bias against defendant; rather, defendant elicited testimony that Ahmad and
defendant had been great friends, who often socialized together. As such, defendant once again
cannot establish that it is more probable than not that the exclusion of this evidence was
outcome-determinative. Lukity, 460 Mich at 495.

        Defendant cites numerous other trial court rulings without any analysis regarding why the
trial court abused its discretion in excluding the evidence. “It is not enough for an appellant in
his brief simply to announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments,
and then search for authority either to sustain or reject his position.” People v Kevorkian, 248
Mich App 373, 389; 639 NW2d 291 (2001) (quotation marks and citation omitted).
Accordingly, we conclude that these additional claims of evidentiary error are abandoned.

                                                VI

         Defendant argues that the victim’s diary entries were inadmissible hearsay, that the
elicitation of this evidence amounted to prosecutorial misconduct, and that defense counsel
provided ineffective assistance by failing to object to the diary entries. We disagree.

          MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by the person as an assertion.” MRE 801(a). Hearsay is not admissible, except
as specifically provided by the rules of evidence. MRE 802.

       With regard to prior consistent statements, MRE 801(d) provides, in relevant part:

               (d) Statements which are not hearsay. A statement is not hearsay if–

              (1) Prior statement of witness. The declarant testifies at the trial or
       hearing and is subject to cross-examination concerning the statement, and the
       statement is . . . (B) consistent with the declarant’s testimony and is offered to
                                               -11-
       rebut an express or implied charge against the declarant of recent fabrication or
       improper influence or motive . . . .

In People v Jones, 240 Mich App 704, 706-707; 613 NW2d 411 (2000), this Court, quoting
United States v Bao, 189 F3d 860, 864 (CA 9, 1999), held that the party offering a prior
consistent statement must establish four elements:

       (1) the declarant must testify at trial and be subject to cross-examination; (2) there
       must be an express or implied charge of recent fabrication or improper influence
       or motive of the declarant’s testimony; (3) the proponent must offer a prior
       consistent statement that is consistent with the declarant’s challenged in-court
       testimony; and, (4) the prior consistent statement must be made prior to the time
       that the supposed motive to falsify arose. [Quotation marks omitted.]

        First, defendant contests the second element of the inquiry, arguing that defense counsel’s
challenges to the victim’s credibility in his opening statement were insufficient to constitute
express or implied charges of fabrication because he had not yet cross-examined the victim and
his opening statement was in response to the prosecution’s opening statement. This Court
rejected this same argument in Jones, holding that the second element was satisfied by defense
counsel’s comments during her opening statement that the witness’s testimony resulted from
improper influence or motive. Jones, 240 Mich App at 707-708. Although defendant asserts
that Jones was wrongly decided, we are bound by that decision. See MCR 7.215(J)(1).
Therefore, we reject defendant’s claim given the express and implied charges in defense
counsel’s opening statement that the victim’s allegations against defendant were fabricated.

        Second, defendant contests the fourth element, asserting that the victim did not compose
the diary entries before the time that the supposed motive to falsify arose. We agree that, by the
time the victim wrote the diary entries in 2012, the alleged motive to falsify—retribution for her
family’s disapproval of her husband—had already arisen. However, even if the diary entries
were therefore hearsay, such that the admission of the diary entries constituted plain error,
defendant cannot establish that the evidence affected his substantial rights. The victim’s
testimony regarding the specific instances of sexual abuse by defendant, standing alone, was
sufficient to support defendant’s convictions. See MCL 750.520h; People v Hallak, ___ Mich
App ___, ___; ___ NW2d ___ (2015) (Docket No. 317863); slip op at 4. The victim testified
that she only made general allegations of abuse and explained how she felt afterward in her
diary. The record demonstrated that the victim made similar, general allegations to her sisters, to
her friend, to her family at a meeting, and to her husband. Defendant does not argue on appeal
that this evidence also should have been excluded. In light of this cumulative evidence in the
record, we conclude that any error in the admission of the diary entries did not affect defendant’s
substantial rights because defendant has not shown that the admission of the evidence affected
the outcome of the proceedings. Carines, 460 Mich at 763.

       We further reject defendant’s claim of prosecutorial misconduct because he does not
argue that this evidence was presented in bad faith, see People v Dobek, 274 Mich App 58, 70;
732 NW2d 546 (2007) (“A prosecutor’s good-faith effort to admit evidence does not constitute
misconduct.”), and a cautionary instruction could have cured any prejudice, People v Ackerman,
257 Mich App 434, 449; 669 NW2d 818 (2003). Additionally, we reject defendant’s claim of

                                               -12-
ineffective assistance.10 We will not second-guess defense counsel’s strategy, which included
not objecting to the diary entries and using evidence from the same entries to attack the victim’s
credibility—including that the victim wrote that defendant only “tried to do things” to her and
left her alone when she asked—and support the defense theory that the victim blamed defendant
as retribution for the discord in her family related to her marriage. LeBlanc, 465 Mich at 578;
Horn, 279 Mich App at 39. Likewise, there is no indication that defendant was prejudiced by
defense counsel’s failure to object to the statements in the diary for the reasons stated above.

                                                VII

      Defendant argues that testimony regarding the contents of the recorded conversation
between the victim and her mother constituted inadmissible hearsay. We disagree.

        As stated above, MRE 801(c) defines hearsay as “a statement, other than the one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” The victim testified that she recorded a conversation between herself and her
mother about defendant’s abuse of her so that her mother could not later accuse her of lying
about the incidents. The prosecutor elicited testimony that, in the recording, the victim
mentioned whom she previously told about the abuse. The victim and Ahmad also testified that,
in the recording, their mother angrily expressed concerns about “how this would look if people
found out in the community” and encouraged the victim to lie about it. Contrary to defendant’s
claim on appeal, we find that the contents of the recording were not offered to prove the truth of
the statements it contained (i.e., that defendant abused the victim or that the victim’s reputation
in the community was actually at risk). Although the prosecutor did not have an opportunity to
explain the reason why the evidence was offered because defendant failed to object to the
testimony, the statements made by the parties during their opening statements and closing
arguments and the context of the prosecutor’s elicitation of the evidence indicates that the
testimony was offered to explain why the victim maintained her secrecy and did not go to the
police.11 “An out-of-court statement introduced to show its effect on a listener, as opposed to



10
   Defendant argues for the first time in his reply brief that defense counsel was ineffective when
he failed to object to the diary entries because defense counsel never asserted in his opening
statement that the victim’s allegations were recently fabricated. Defendant did not raise this
argument in his brief on appeal, and this argument is not responsive to the prosecution’s brief.
Therefore, we decline to address it. See MCR 7.212(G) (“Reply briefs must be confined to
rebuttal of the arguments in the appellee’s or cross-appellee’s brief and must be limited to 10
pages, exclusive of tables, indexes, and appendices, and must include a table of contents and an
index of authorities.”). However, we note that the remarks in defense counsel’s opening
statement also implied that the victim had a motive to falsify based on her family’s, and
defendant’s, disapproval of her husband. Jones, 240 Mich App at 706-707 (“[T]here must be an
express or implied charge of recent fabrication or improper influence or motive of the declarant’s
testimony . . . .” [Emphasis added.]).
11
   In making this conclusion, we find significant the fact that the victim’s testimony regarding the
statements in the recording did not include a description of defendant’s abuse. Although she

                                                -13-
proving the truth of the matter asserted, does not constitute hearsay under MRE 801(c).” Gaines,
306 Mich App at 306-307. Therefore, it was not plain error to admit evidence of these
statements from the recording.

         Likewise, to the extent that Ahmad described the subject matter of the recording during
his testimony, our review of the record indicates the testimony regarding the contents of the tape
was not offered to prove the truth of the statements, but to show the effect they had on the
victim’s reporting of the incident. See Gaines, 306 Mich App at 306-307. Furthermore, the
context of the prosecutor’s examination of Ahmad indicates that the statement was also intended
to show the recording’s effect on Ahmad, which resulted in him speaking with his mother and
contacting his brothers and uncles, who initiated a family meeting. Id. Therefore, we conclude
that it was not plain error to admit the victim’s and Ahmad’s testimony regarding the statements
in the recording.

       Defendant also challenges the prosecutor’s elicitation of testimony from Zeina about the
recording. However, Zeina merely testified that she heard the recording, that she did not have a
copy of the recording until shortly before trial, and that she did not recall sharing the recording
with the police. None of this evidence involved out-of-court statements. MRE 801. Therefore,
we reject defendant’s claim that Zeina’s testimony constituted inadmissible hearsay.

        Additionally, defendant challenges testimony from the victim’s mother, Ali,12 and Latefa
on cross-examination by the prosecutor, which indicated that the victim said in the recording that
defendant only abused “somebody else” or “other people.”13 Because it was the prosecutor’s
burden to prove that defendant abused the victim, we conclude that it was not her intent with this
testimony to show that defendant only abused others. Therefore, the statements were not offered
for their truth and, therefore, did not constitute inadmissible hearsay. MRE 801(c). Rather, this
testimony demonstrated that defendant’s witnesses testified in a way to further conceal a family
secret and further explained why the victim would have delayed reporting.

        Moreover, we reject defendant’s claim of prosecutorial misconduct because he has failed
to establish that the prosecutor offered the recording in bad faith, Dobek, 274 Mich App at 70,
and, to the extent that defendant argues that defense counsel was ineffective by failing to object

testified that the topic of the conversation was “what [defendant] did to me,” the rest of her
testimony concerned why she recorded the conversation, how her mother reacted to the news,
and other topics that they discussed during the conversation (e.g., how the situation would appear
if other individuals in the community were aware of it and to whom the victim had disclosed her
allegations).
12
  The portion of the transcript cited by defendant only indicates that Ali confirmed that he had
heard the recording; Ali stated that he could not remember what was said.
13
   Defendant claims the introduction of statements in the recording about “other people” or
“somebody else” was more prejudicial than probative under MRE 403. But as discussed earlier,
defendant’s strategy was to claim that the victim lied about defendant’s abuse of others and,
therefore, similarly lied when she claimed that defendant abused her. Because the challenged
evidence also supported defendant’s strategy, we reject defendant’s claim.


                                               -14-
to evidence of the recording, any objection would have been futile because it was not
inadmissible hearsay for the reasons stated above. Unger, 278 Mich App at 256.

        Finally, we find no basis for reversal based on defendant’s claim that the jury
impermissibly used the statements regarding the recording and the sisters’ out-of-court
statements at the family meeting as substantive evidence of his guilt. The trial court instructed
the jury that it may only consider prior inconsistent statements in order to determine whether the
witness testified truthfully in court, specifically stating that “[t]he earlier statement is not
evidence that what the witness said earlier is true.” “Juries are presumed to follow their
instructions,” People v Rodgers, 248 Mich App 702, 717; 645 NW2d 294 (2001), and defendant
has failed to rebut that presumption.

                                               VIII

        Lastly, defendant asserts that the prosecution improperly bolstered the credibility of the
out-of-court statements made by the victim’s sisters at the family meeting by eliciting testimony
that the victim’s sisters changed their stories after a suggestion was made that they take a
polygraph examination regarding whether they were abused. We disagree.

        “Normally, reference to a polygraph test is not admissible before a jury. Indeed, it is a
bright-line rule that reference to taking or passing a polygraph test is error.” People v Nash, 244
Mich App 93, 97; 625 NW2d 87 (2000) (citations omitted). But the mere mention of the word
“polygraph” does not necessarily require reversal. Id. at 98, citing People v Rocha, 110 Mich
App 1, 8-9; 312 NW2d 657 (1981); People v Kosters, 175 Mich App 748, 754; 438 NW2d 651
(1989).

               [R]eference to polygraph examinations need not always constitute
       reversible error. A reference may be a matter of defense strategy, the result of a
       nonresponse answer, or otherwise brief, inadvertent and isolated. [T]his Court
       has analyzed a number of factors to determine whether reversal is mandated . . .
       (1) whether defendant objected and/or sought a cautionary instruction; (2)
       whether the reference was inadvertent; (3) whether there were repeated
       references; (4) whether the reference was an attempt to bolster a witness’s
       credibility; and (5) whether the results of the test were admitted rather than
       merely the fact that a test had been conducted. [Rocha, 110 Mich App at 8-9
       (citations omitted); see also Nash, 244 Mich App at 98.]

       Here, the references were not inadvertent or isolated. The prosecutor specifically elicited
testimony from several prosecution witnesses about whether anyone at a family meeting
suggested the use of a polygraph examination when the sisters denied any abuse. And the
reference to the polygraph examination could have added to the credibility of the prosecution’s
witnesses, who claimed that the sisters finally admitted that defendant abused them after the
polygraph was suggested. But there was no evidence that a polygraph was actually given. Thus,
no results were considered by the jury. In addition, defendant did not object to the evidence or
request a cautionary instruction. Rather, defendant used the evidence to support his defense
theory. The defense witnesses testified that the sisters’ claims that they were never abused
remained consistent throughout the family meeting—even in the face of what they described as

                                               -15-
violent threats by Ahmad and the suggestion that they take a polygraph. The jury could infer
from this testimony that the sisters were truthful and that they would not have otherwise
undergone such pressure to protect a lie.

         Because the defense relied on the polygraph references to support its argument that its
witnesses were credible, defendant cannot establish that this evidence affected his substantial
rights, i.e., that it was outcome-determinative. Carines, 460 Mich at 763. To the extent that
defendant claims that the prosecutor’s elicitation of the challenged testimony amounted to
misconduct, again, “[a] prosecutor’s good-faith effort to admit evidence does not constitute
misconduct,” Dobek, 274 Mich App at 70, and there is no indication that the prosecution elicited
the testimony in bad faith or that the prosecutor suggested that she had special knowledge of the
witnesses’ credibility based on the references to a polygraph, see People v Bennett, 290 Mich
App 465, 477; 802 NW2d 627 (2010). Moreover, in light of defense counsel’s clear strategy to
use the suggestion to take a polygraph examination as additional evidence that the sisters, who
testified on defendant’s behalf, were unwavering, defendant has failed to overcome the strong
presumption that defense counsel’s failure to object to the challenged evidence was a reasonable
trial strategy. Horn, 279 Mich App at 39; Unger, 278 Mich App at 242. Likewise, for the
reasons stated above, there is no indication that the outcome of the trial would have been
different but for defense counsel’s failure to object to the challenged evidence. Gaines, 306
Mich App at 300.

       Affirmed.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ Amy Ronayne Krause




                                              -16-
