PEOPLE OF MI V TERRY JOE LEONARD SR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 10, 1998
Plaintiff-Appellee,
v
No. 195251
Ingham Circuit Court
LC No. 95-69350 FC
TERRY JOE LEONARD, SR.,
Defendant-Appellant.
Before: McDonald, P.J., and O’Connell and Smolenski, JJ.
PER CURIAM.
Defendant was convicted by jury of first-degree criminal sexual conduct, MCL 750.520b(1)(a);
MSA 28.788(2)(1)(a), and second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA
28.788(3)(1)(a), and sentenced to concurrent terms of imprisonment of eight to twenty-five years and
three to fifteen years, respectively. Defendant appeals as of right. We affirm.
Defendant’s convictions arose from two separate acts of sexual molestation of defendant’s then
ten-year-old stepdaughter. The victim testified that defendant entered her bedroom, placed his hand
under her clothing and inserted a finger into her vagina. The victim also testified that defendant entered
her bedroom on another occasion and fondled her through her clothing.
Defendant first argues that the prosecutor improperly vouched for the credibility of the victim in
her opening statement and closing argument. Appellate review of allegedly improper prosecutorial
remarks is precluded absent an objection unless a curative instruction could not have eliminated the
prejudicial effect or where failure to consider the issue would result in a miscarriage of justice. People v
Howard, ___ Mich App ___; ___ NW2d ___ (Docket No. 172633, issued 11/25/97) slip op p 7.
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Id.
Questions involving prosecutorial misconduct are decided on a case-by-case basis, and this Court must
evaluate each question within the context of the particular facts of the case. Id.
Defendant failed to object to the prosecutor’s remarks. Because a curative instruction could
have eliminated the prejudicial effect and failure to consider the issue would not result in a miscarriage of
justice, appellate review of the remarks is precluded. Howard, supra.
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Defendant argues that testimony of a doctor who conducted a medical examination of the victim
was improperly admitted because he vouched for the credibility of the victim. The decision whether to
admit evidence is left to the discretion of the trial court. People v Hoffman, 225 Mich App 103, 104;
570 NW2d 146 (1997). This Court will find an abuse of discretion only when an unprejudiced person,
considering the facts on which the trial court acted, would say there was no justification or excuse for
the ruling. Id.
In a criminal sexual conduct case involving a child complainant, an expert witness may not testify
that the sexual abuse occurred, may not vouch for the veracity of a victim, and may not testify whether
the defendant is guilty. People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995). An expert
witness may testify in the prosecution’s case in chief regarding typical and relevant symptoms of child
sexual abuse for the sole purpose of explaining a victim’s specific behavior that might be incorrectly
construed by the jury as inconsistent with that of an actual abuse victim. Id.
The doctor’s testimony concerning the use and importance of a history taken from the victim
was properly offered as general background information to convey to the jury how he evaluates
suspected victims of child abuse. With regard to the doctor’s testimony concerning the recanting of
sexual abuse allegations, he testified that the victim’s recanting in this case was consistent with that of
child sexual abuse victims generally and the testimony was properly offered to rebut an inference that the
victim’s postincident behavior was inconsistent with that of a real victim. The victim first reported to her
teacher that she was being sexually abused in her home by her brother, stepbrother and defendant.
When the victim subsequently spoke with a Children’s Protective Services worker, she only indicated
that she had been abused by her brother and stepbrother. Under these circumstances, the doctor may
properly testify regarding whether the victim’s recantation is consistent with the behavior of a child
sexual assault victim. The doctor did not testify that the sexual abuse occurred, vouch for the veracity of
the victim, or testify whether defendant was guilty. In accordance with Peterson, the doctor testified
with regard to the consistencies between the behavior of the victim and other victims of child sexual
abuse to rebut an attack on the victim’s credibility.1
Defendant complains about the doctor’s testimony regarding the presence of a social worker or
police officer during his taking of a history from a victim and his practice of allowing those individuals to
also ask the victim questions. However, the testimony was elicited by defense counsel during the
doctor’s cross-examination. Defendant may not assign error on appeal to something that his own
counsel deemed proper at trial. People v Barclay, 208 Mich App 670, 673; 528 NW2d 842 (1995);
People v McCurdy, 185 Mich App 503, 507; 462 NW2d 775 (1990).
Defendant also argues that the prosecution improperly elicited a denial from defendant on cross
examination for the sole purpose of calling a rebuttal witness to offer prejudicial testimony that should
have been introduced in the prosecution’s case-in-chief. A trial court’s decision regarding the admission
of rebuttal testimony will not be disturbed absent an abuse of discretion. People v Humphreys, 221
Mich App 443, 446; 561 NW2d 868 (1997). Rebuttal evidence is limited to refuting, contradicting, or
explaining evidence presented by the opposing party. Id. The test of whether rebuttal evidence was
properly admitted is not whether the evidence could have been offered in the prosecution’s case-in
chief, but, rather, whether the evidence is properly responsive to evidence introduced or a theory
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developed by the defendant. People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996). A
denial cannot be elicited by the prosecutor on cross-examination of a defense witness simply to facilitate
the admission of new evidence. Id. at 401.
During defendant’s cross-examination, the prosecutor asked defendant whether he was upset
with the victim for telling her teacher that he had sexually abused her. Defendant responded that he had
never displayed any anger or displeasure towards the victim. He also denied that he had displayed any
anger or displeasure about what was going on at the victim’s school. During the prosecution’s rebuttal,
a secretary at the victim’s school testified that defendant caused several disturbances at the school.
Defendant’s motion to strike the testimony on the basis that it was irrelevant was granted, and the trial
court struck the testimony and instructed the jury to disregard it. Because the secretary’s rebuttal
testimony was in response to defendant’s denial on cross-examination that he had caused disturbances
at the victim’s school and facilitated the admission of new evidence, the trial court’s decision to strike
the testimony was a proper exercise of its discretion. Figgures, supra. The jurors were instructed to
disregard the testimony in their deliberations. As a general rule, jurors are presumed to follow their
instructions. People v Torres (On Remand), 222 Mich App 411, 423; 564 NW2d 149 (1997).
There was no reversible error.
Affirmed.
/s/ Gary R. McDonald
/s/ Peter D. O’Connell
/s/ Michael R. Smolenski
1
Moreover, the trial court gave the jury a limiting instruction at defendant’s request concerning expert
witness testimony in child sexual conduct cases. CJI2d 20.29.
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