PEOPLE OF MI V ROBERT NORMAN VERBRUGGEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 11, 2002
Plaintiff-Appellee,
v
No. 231970
Macomb Circuit Court
LC No. 00-002217-FC
ROBERT NORMAN VERBRUGGEN,
Defendant-Appellant.
Before: Griffin, P.J., and Gage and Meter, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of six counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(f), and one count second-degree criminal sexual
conduct (CSC II), MCL 750.520c(1)(f). He was sentenced to concurrent prison terms of 210 to
540 months for each CSC I conviction and 86 to 180 months for the CSC II conviction.
Defendant appeals as of right. We affirm.
I
Defendant first argues that he was denied a fair and impartial trial because of
prosecutorial misconduct. We disagree.
Because defendant failed to timely object to the alleged improper conduct below, this
Court reviews this claim for a plain, i.e., clear or obvious, error that likely affected the outcome
of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); People v
Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). Also, reversal is warranted only if the
plain, unpreserved error resulted in the conviction of an actually innocent defendant or if the
error seriously affected the fairness, integrity, or public reputation of judicial proceedings
independent of the defendant's innocence. Carines, supra at 763.
Defendant argues that, during closing and rebuttal arguments, the prosecutor improperly
vouched for the victim’s credibility, characterized the defense as “lies,” and referred to some
defense witnesses as “liars.” Viewed as a whole and in context, the challenged conduct does not
rise to the level of error requiring reversal. A prosecutor may not vouch for the credibility of a
witness by conveying that he has some special knowledge that the witness is testifying truthfully,
or express his personal opinion about the defendant’s guilt. See People v Knapp, 244 Mich App
361, 382; 624 NW2d 227 (2001). In making the challenged remarks here, the prosecutor was
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arguing that, based on the evidence, the claims made by defendant and the defense witnesses
were inconsistent and contradictory, while the victim’s testimony was consistent with the
reasonable inferences from the evidence. This was not improper. A prosecutor may argue from
the facts that a witness is credible or that the defendant or another witness is not worthy of belief.
People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996); People v Fisher, 220
Mich App 133, 156; 559 NW2d 318 (1996). Also, a prosecutor may use “hard language” when
it is supported by evidence and is not required to phrase arguments and inferences in the blandest
possible terms. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996).
Further, the challenged remarks were responsive to the evidence produced at trial
(including defendant’s own testimony) and to defense counsel’s arguments, and the remarks
were reasonable inferences based on the evidence. See People v Duncan, 402 Mich 1, 16; 260
NW2d 58 (1977), People v Kennebrew, 220 Mich App 601, 607-608; 560 NW 2d 354 (1996),
and Fisher, supra at 156. During trial, defendant, as well as two defense witnesses, admitted that
they had lied to the police during the investigation. In addition, defendant and his wife testified
that the victim was lying and that the victim was angry with defendant and his wife for various
reasons.
To the extent that any of the challenged remarks could be viewed as improper, the trial
court cured any prejudice by instructing the jury that it should only consider the evidence, that
the lawyers’ statements and arguments were not evidence, and that it was the jury’s duty to
determine the credibility of the witnesses. People v Long, 246 Mich App 582; 588; 633 NW2d
843 (2001). Accordingly, defendant has failed to demonstrate an outcome-determinative plain
error, Carines, supra at 763, and this issue does not warrant reversal.
II
Defendant claims that his conviction must be reversed because the prosecutor improperly
proffered “other acts” evidence without complying with the requirements of MRE 404(b).
Because defendant failed to object to the admission of this evidence below, this Court reviews
this claim for plain error affecting defendant’s substantial rights. Carines, supra at 763.
At trial, the victim testified that, while defendant was digitally penetrating her vagina, he
said, “Why don’t you shave. If you did shave, you’d look like a ten-year-old and I’ve f**ked
ten-year-olds before.” This testimony involves defendant’s alleged statement, as opposed to an
act. “[A] prior statement does not constitute a prior bad act coming under MRE 404(b) because
it is just that, a prior statement and not a prior bad act.” People v Rushlow, 179 Mich App 172,
176; 445 NW2d 222 (1989), citing People v Goddard, 429 Mich 505, 514-515; 418 NW2d 881
(1988). Accordingly, defendant has failed to demonstrate plain error, and reversal is
unwarranted.1 Carines, supra at 763.
III
1
Apart from relying on MRE 404(b), defendant has not argued that the evidence was
inadmissible on any other basis. We nevertheless note that defendant’s statement was admissible
under MRE 801(d)(2), as an admission of a party opponent. See People v Kowalak, 215 Mich
App 554, 556-557; 546 NW2d 681 (1996).
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Defendant’s final claim is that defense counsel was ineffective because he failed to
object, pursuant to MRE 404(b), to the admission of the “other acts” evidence concerning his
alleged sexual acts with ten-year-olds. Because defendant failed to make a testimonial record in
the trial court in connection with a motion for a new trial or an evidentiary hearing, this Court’s
review of this issue is limited to mistakes apparent on the record. People v Sabin (On Second
Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). “To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was below an objective standard of reasonableness under prevailing norms and that there is a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different.” Id. A defendant must also overcome the presumption that the challenged action or
inaction was trial strategy. People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).
As discussed previously, the statement attributed to defendant did not constitute “other
acts” evidence, Rushlow, supra at 176, and, therefore, defense counsel had no basis on which to
make a MRE 404(b) objection. Counsel was not required to make a meritless objection. People
v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Further, defendant’s statement was
admissible as an admission of a party opponent. MRE 801(d)(2); Kowalak, supra at 556-557.
Finally, in light of the other evidence introduced at trial and the jury’s rejection of defendant’s
alibi defense, it is unlikely that, but for trial counsel’s alleged inaction, the outcome would have
been different. Effinger, supra at 69. Accordingly, defendant has failed to establish that defense
counsel rendered ineffective assistance.
Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Patrick M. Meter
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