                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 18, 2015
               Plaintiff-Appellee,

v                                                                    No. 317826
                                                                     Wayne Circuit Court
ROBERT MICHAEL KAPLAN,                                               LC No. 12-011968-FH

               Defendant-Appellant.


Before: METER, P.J., and CAVANAGH and WILDER, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions by a jury of three counts of assault and
battery, MCL 750.81, and one count of fourth-degree criminal sexual conduct, MCL
750.520e(1)(b) (sexual contact by use of force or coercion). The trial court sentenced him to one
year of probation for each of his assault-and-battery convictions and to five years of probation,
with the first 30 days in jail, for his fourth-degree criminal sexual conduct conviction. We
affirm.

       Defendant first contends that this Court should find a “structural error” requiring reversal
because the trial court allowed the jury to ask questions of the witnesses. We disagree.

        “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Service, Inc, 276 Mich App 376, 382;
741 NW2d 61 (2007). Defendant did not object when the trial court allowed the jury to ask
questions of the witnesses. Therefore, the issue is not preserved. This Court reviews
unpreserved issues for plain error affecting a defendant’s substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999). In order for a defendant to obtain relief, he must
show that (1) an error occurred, (2) the error was clear or obvious, and (3) the plain error affected
substantial rights. Id. The third prong requires a showing of prejudice, i.e., that the error
affected the outcome of the proceedings. Id.

       MCR 2.513(I) provides:

              The court may permit the jurors to ask questions of witnesses. If the court
       permits jurors to ask questions, it must employ a procedure that ensures that such
       questions are addressed to the witnesses by the court itself, that inappropriate
       questions are not asked, and that the parties have an opportunity outside the

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       hearing of the jury to object to the questions. The court shall inform the jurors of
       the procedures to be followed for submitting questions to witnesses.

In People v Heard, 388 Mich 182, 187-188; 200 NW2d 73 (1972), the Michigan Supreme Court
permitted trial courts, in their discretion, to allow jurors to ask questions of trial witnesses. The
Heard Court stated:

       The practice of permitting questions to witnesses propounded by jurors should
       rest in the sound discretion of the trial court. It would appear that in certain
       circumstances, a juror might have a question which could help unravel otherwise
       confusing testimony. In such a situation, it would aid the fact-finding process if a
       juror were permitted to ask such a question. We hold that the questioning of
       witnesses by jurors, and the method of submission of such questions, rests in the
       sound discretion of the trial court. [Id.]

        In this case, defendant does not argue that the trial court failed to employ an appropriate
procedure for the juror questions or that any juror question was improper; rather, defendant
argues that, “as a matter of law reform,” the practice of permitting jurors to ask questions of trial
witnesses should stop. In support of this proposition, defendant relies on the Minnesota Supreme
Court’s decision in State v Costello, 646 NW2d 204, 215 (Minn, 2002). However, we are not
bound by the decisions of courts of other states. People v Jackson, 292 Mich App 583, 595 n 3;
808 NW2d 541 (2011). Instead, “the [Michigan] Court of Appeals and the lower courts are
bound by the precedent established by the [Michigan] Supreme Court . . . .” Metamora Water
Service, Inc, 276 Mich App at 387-388. Given that Heard and MCR 2.513(I) permit the trial
court to allow jurors to ask questions of trial witnesses, defendant has not established plain error.
Carines, 460 Mich at 763-764.

        Defendant next argues that he was denied the effective assistance of counsel because of
counsel’s failure to object to Dearborn Police Officer Leah Bronson’s testimony and his failure
to object during the prosecution’s closing arguments. We disagree.

        When, as in the present case, a defendant does not move for a new trial in the trial court
on the basis of ineffective assistance of counsel, appellate review is limited to mistakes apparent
on the record. People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001). Whether
a defendant has been deprived of the effective assistance of counsel presents a mixed question of
fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). A
trial court’s findings of fact are reviewed for clear error, and questions of constitutional law are
reviewed de novo. Id.

        To establish ineffective assistance of counsel, a defendant must show that “(1) defense
counsel’s performance was so deficient that it fell below an objective standard of reasonableness
and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced
the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). A defendant is
prejudiced if, but for defense counsel’s errors, the result of the proceedings would have been
different. Id. at 81. Effective assistance of counsel is presumed, and a defendant bears a heavy
burden of proving otherwise. People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012).
Counsel is not required to raise meritless objections. Id. at 329.

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        Defendant first contends that he was denied the effective assistance of counsel when trial
counsel failed to object to Officer Bronson’s testimony because, according to defendant, it
amounted to an opinion of guilt. “A witness may not opine about the defendant’s guilt or
innocence in a criminal case.” Heft, 299 Mich App at 81. In Heft, id. at 81-83, this Court
determined whether counsel was ineffective for failing to object to police officers’ testimony
that, according to the defendant, amounted to opinions of guilt. In Heft, evidence indicated that
the police detained the defendant because one of the officers “didn’t think that [the defendant]
was being truthful” when he gave an innocent explanation for his behavior. Id. at 82. Another
officer testified that the defendant’s exculpatory statement regarding his actions did not make
sense. Id. at 81-82. This Court stated that the police officers “did not opine about [the
defendant’s] guilt but, instead, were explaining the steps of their investigations from their
personal perceptions.” Id. at 83, citing MRE 701. The Court further explained that any
objection would have been meritless and that counsel was not ineffective for failing to raise a
meritless objection. Heft, 299 Mich App at 83.

       Officer Bronson testified:

               [The Prosecutor]: Okay. After your investigation is completed, what’s
       the role of an officer in charge?

               [Officer Bronson]: Then I write a - - it’s called a warrant request. It’s
       basically an investigator’s report detailing all of the probable cause for the crime
       and why I believe that this person is the one who committed it and that there is a
       crime that actually happened and not what specifically, like what the acts were.
       Not like the type - - what the - - what the judge had said earlier about criminal
       sexual conduct. I don’t use those kind of words. I use like the actual acts. So I
       compile an investigator’s report and sent that to the prosecutor’s office.

               [The Prosecutor]: Now other than - - and that’s what you did?

               [Officer Bronson]: Yes.

Reading the testimony in context, it is apparent that Officer Bronson was merely explaining, in
general, the steps of her job and investigatory process and not answering a direct yes-or-no
question about defendant’s guilt. Indeed, Officer Bronson explained that, as the officer in
charge, she wrote a warrant request after the completion of the investigation. She indicated that
a warrant request was an “investigator’s report” detailing the probable cause for a crime and that
she sent this report to the prosecutor’s office. This Court has stated that explanations about
investigatory steps are proper, id., and the testimony here about Officer Bronson’s job process
was analogous. We find that any objection to the testimony would have been meritless. Because
ineffective assistance of counsel cannot be predicated on counsel’s failure to raise a meritless
objection, Eisen, 296 Mich App at 329, counsel’s failure to object to the testimony did not fall
below an objective standard of reasonableness. Moreover, even if it had, we cannot find that
Officer Bronson’s brief reference to her warrant request affected the outcome of the proceedings,
in light of the other evidence presented.




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         Defendant also contends he was denied the effective assistance of counsel when trial
counsel failed to object to the prosecutor’s comments during closing argument, which allegedly
shifted the burden of proof to defendant. “A prosecutor may not imply in closing argument that
the defendant must prove something or present a reasonable explanation for damaging evidence .
. . . Also, a prosecutor may not comment on the defendant’s failure to present evidence because
it is an attempt to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793
NW2d 712 (2010) (citation omitted). “However, a prosecutor’s argument that inculpatory
evidence is undisputed does not constitute improper comment.” Id. at 464. “A prosecutor may
. . . argue that the evidence was uncontradicted even if the defendant is the only person who
could have contradicted the evidence.” Id.

       During closing argument, the prosecutor stated:

               Evidence on this case is that [the victim] was in a study in this house, and
       she was pushed against the wall and that at the time she’s pushed against the wall,
       Mr. Kaplan kisses her, slips his hand under that sundress, under her shorts, and
       put fingers into her vagina. That’s the evidence and that was the testimony of [the
       victim]. Where is the contradiction of that? Did you hear any evidence, was
       anything presented to you that contradicts that, anything?

Later, the prosecutor stated:

               She told you that she was pushed down to her knees in that study and that
       some time during that interaction, Mr. Kaplan’s penis had been exposed and that
       he pushes her head down by her hair, and then his penis goes into her mouth.
       That’s the second count. Where is the evidence that that did not happen?

The prosecutor’s arguments regarding contradicting evidence merely amounted to arguments that
the inculpatory evidence was undisputed, which does not constitute improper comment. Fyda,
288 Mich App at 463-464. Accordingly, any objection would have been futile, and counsel’s
performance did not fall below an objective standard of reasonableness.

        Even if counsel’s failure to object to the closing comments fell below an objective
standard of reasonableness, any prejudicial effect was cured by the trial court’s instructions. The
trial court instructed the jury that defendant was “presumed to be innocent,” that “[t]he
prosecutor must prove each element of the crime beyond a reasonable doubt,” and that defendant
was “not required to prove his innocence or to do anything.” The trial court also instructed the
jury that the parties’ arguments were not evidence and that the case was to be decided on the
evidence presented. Because the trial court properly instructed the jury and jurors are presumed
to follow their instructions, defendant has not established that he was prejudiced. People v
Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). Defendant was not denied the
effective assistance of counsel.

       Affirmed.

                                                            /s/ Patrick M. Meter
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Kurtis T. Wilder
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