PEOPLE OF MI V CHRISTOPHER GALLAGHER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 13, 2001
Plaintiff-Appellee,
v
No. 222982
Oakland Circuit Court
LC No. 98-163855-FC
CHRISTOPHER GALLAGHER,
Defendant-Appellant.
Before: Saad, P.J., and Holbrook, Jr. and Murphy, JJ.
MEMORANDUM.
Defendant appeals as of right from a jury conviction of two counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(a), for which he was sentenced to concurrent terms
of twenty to forty years in prison, and one count of second-degree criminal sexual conduct, MCL
750.520c(1)(a), for which he was sentenced to eight to fifteen years in prison. We affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant first contends that the trial court erroneously admitted other acts evidence
under MRE 404(b)(1). We review the trial court’s decision for an abuse of discretion. People v
Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998).
We agree that evidence that defendant once spat in his wife’s face was irrelevant. It did
not explain the victim’s delay in reporting the sexual abuse because the victim never said that she
was afraid defendant would harm her if she revealed what had happened. However, given that
the victim testified unequivocally that defendant had sexually abused her, that a doctor found
physical evidence of vaginal penetration, and that the doctor’s physical findings were not
inconsistent with anal penetration, it is unlikely that the error in admitting evidence of the
spitting incident was outcome determinative. Therefore, reversal is not required. People v
Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
Defendant next contends that the prosecutor engaged in misconduct by arguing that
defendant’s testimony contradicted that of a Children’s Protective Services worker. Claims of
prosecutorial misconduct are decided on a case-by-case basis. This Court examines the record
and evaluates the alleged improper remarks in context to determine whether the defendant was
denied a fair and impartial trial. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342
(1995).
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Because the Protective Services worker never testified to the condition of defendant’s
house, the prosecutor improperly argued facts not in evidence when she argued that defendant’s
testimony about the condition of his house contradicted the testimony of the Protective Services
worker. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994). However, the court
sustained the objection and later instructed the jury that the lawyers’ arguments were not
evidence, which was sufficient to dispel any prejudice. People v Bahoda, 448 Mich 261, 281;
531 NW2d 659 (1995). In light of the instruction and the fact that the condition of defendant’s
house was a collateral issue, it is unlikely that the error affected the jury’s decision and therefore
reversal is not warranted. People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d
538 (1994).
Affirmed.
/s/ Henry William Saad
/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
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