PEOPLE OF MI V TROY ANTHONY WARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 1, 2007
Plaintiff-Appellee,
v
No. 265839
Oakland Circuit Court
LC No. 2005-202593-FC
TROY ANTHONY WARD,
Defendant-Appellant.
Before: Murphy, P.J., and Smolenski and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions and sentences for two counts of
second-degree criminal sexual conduct (CSC II) (person under 13), MCL 750.520c(1)(a). He
was sentenced as an habitual offender, third offense, MCL 769.11, to concurrent sentences of 85
to 360 months’ imprisonment for each conviction. We affirm.
I. FACTS
Defendant’s convictions arise from events that occurred while he lived with his
girlfriend, the victim (his girlfriend’s seven-year-old daughter), and the couple’s son in an
apartment located in Southfield, Michigan.
The victim testified at trial that defendant sexually abused her two times. The first time
was when she was six years old, sometime after school started and near Halloween of 2004.1
She explained that she and defendant were sitting on the living room couch watching television
in the morning, while her mother and brother were still sleeping, when defendant put his finger
under her gown and panties and touched the outside of her “front private part.” The victim
gestured to show how the defendant touched her—he made “circles” as he touched her. After
the prosecutor reminded the victim that she had testified before, at the preliminary examination,
that defendant had touched her inside her private part, the prosecutor then asked which part
defendant touched, and the victim responded, “I think that was inside.”
1
The victim originally testified that this was a school day, but on cross-examination, she said
that it was a Saturday.
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The victim testified that a second incident occurred around the same time. She stated that
she was in the living room playing catch with defendant, using her baby brother’s ball, when she
hit defendant in the groin area and “hurt” him. After she hit defendant, she touched his “peanut”
though “a hole in his drawers.” When first asked why she touched his “peanut,” she did not
remember. But in response to a leading question, she said that defendant told her to touch it.
She gestured to show how she touched defendant, and she explained that gray “bubbles” came
out of his “peanut” as she touched it.
Defendant told the victim not to tell anyone, but she could not remember when he told
her that. The victim first testified that she did not tell her mother what happened, but when
reminded of her earlier testimony, she remembered testifying that she told her mother. When
asked again whether she told her mother about the abuse, she said that she did. On crossexamination, she testified that she told her mother after the second incident. After she told her
mother, defendant stopped touching her.
On the Sunday after Thanksgiving 2004, the victim told her aunt about the incidents. The
next day, the victim’s father took her to the Southfield Police Department and Botsford
Community Hospital. An emergency room physician, examined the victim but found no
evidence of trauma or of any abnormalities, which he said was true “more often than not” in
cases of abuse.
At trial, defendant’s theory of the case was that the victim’s father encouraged the victim
to make up the allegations against defendant because he was jealous of defendant’s relationship
with the victim’s mother. During testimony, defendant adamantly denied touching the victim
and denied that he watched television or played catch with her. He admitted that he rented the
apartment for the victim’s mother and her children and lived there for about three weeks, but he
testified that he moved out in September because the victim’s mother was having problems with
the victim’s father. Defendant also testified that he was never at the apartment in October or
November 2004; he said he lived with his cousin.2
The jury found defendant not guilty of first-degree CSC but found defendant guilty of
two counts of the lesser-included offense of second-degree CSC. Defendant moved for a new
trial on April 21, 2006. No action was taken on the motion. On July 3, 2006, defendant again
moved for a new trial based on slightly different grounds. The trial court denied the restated
motion for a new trial on July 19, 2006. Defendant now appeals.
II. MOTION FOR NEW TRIAL
Defendant first argues that the trial court erred when it denied his motion for a new trial
based on ineffective assistance of counsel. Defendant claims that counsel was ineffective for
2
Defendant’s cousin testified that defendant lived with her until she “down-sized” in September
2004, but he did not spend every night at the apartment. After September, defendant
occasionally slept on her couch and kept some of his belongings in her home.
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failing to object to the testimony of three witnesses at trial regarding “other,” uncharged bad acts
of penetration between defendant and the victim. We disagree.
A. Standard of Review
A trial court “may grant a new trial on any ground that would support appellate reversal
of the defendant’s conviction or if the court believes that the verdict has resulted in a miscarriage
of justice.” People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000); see also MCR
6.431(B). Whether to grant a new trial is in the trial court’s discretion, and its decision will not
be reversed absent an abuse of that discretion. People v Cress, 468 Mich 678, 691; 664 NW2d
174 (2003). An abuse of discretion occurs when the result is outside the principled range of
outcomes. People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). If counsel was
ineffective, and defendant was prejudiced by counsel’s failure, defendant is entitled to a new
trial. See People v Wilson, 242 Mich App 350, 354; 619 NW2d 413 (2000).
B. Analysis
To prove an ineffective assistance of counsel claim, defendant must establish that
counsel’s performance was deficient under an objective standard of reasonableness, and that, but
for counsel’s error, the result of the proceeding would have been different; therefore, he was
denied a fair trial. People v Grant, 470 Mich 477, 485-486; 684 NW2d 686 (2004). Defendant
bears a “heavy burden” to overcome the presumption that counsel was effective. People v
Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001). Moreover, defendant bears the burden
of proving that counsel’s action or inaction was not sound trial strategy. See People v
Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).
MRE 404(b) limits the admission of evidence of other “bad acts” unless the evidence is
offered for a proper purpose, is relevant, and its probative value is not substantially outweighed
by its potential for unfair prejudice. People v VanderVliet, 444 Mich 52, 65, 74; 508 NW2d 114
(1993), mod 445 Mich 1205 (1994). We conclude that it is not implicated in this case because
the challenged testimony did not actually involve additional or other bad acts. Although
defendant stated in the opening statement that the victim claimed the abuse happened on
numerous occasions, the testimony at trial showed that she consistently spoke about two
incidents, although her claims of what happened in each varied. Cheryl Marks, Dr. Mark Cynar,
and Marita Smith all testified that the victim or her father told them about two incidents. The
victim described one incident that involved defendant putting his finger in her vagina and a
second incident that involved defendant’s penis. The victim’s statements did not describe
additional or “other” bad acts to Marks, Cynar, and Smith; for that reason, MRE 404(b) does not
apply and admitting the testimony was proper because “the facts and circumstances surrounding
the commission of a crime are properly admissible as part of the res gestae.” People v Shannon,
88 Mich App 138, 146; 276 NW2d 546 (1979). An objection would have been meritless because
the admission of the evidence was proper, so counsel was not ineffective for failing to object.
People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
Moreover, counsel’s elicitation of Marks’s testimony and his failure to object when the
prosecution elicited testimony from Dr. Cynar and Smith regarding the victim’s statements was
actually trial strategy. Defendant’s theory of the case was that the victim’s father encouraged her
to fabricate the accusations because he did not like defendant and wished to gain an advantage in
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post-divorce matters. The fact that the victim made numerous allegations and that those
allegations varied, assisted the defense in proving that the victim was not credible and that the
allegations were fabricated.
We are aware that a chosen strategy is not “effective” if it is objectively unreasonable.
People v Dalessandro, 165 Mich App 569, 577-578; 419 NW2d 609 (1988); see also
Washington v Hofbauer, 228 F3d 689, 704 (CA 6, 2000). Counsel is not ineffective, however,
merely because a strategy did not work. People v Stewart (On Remand), 219 Mich App 38, 42;
555 NW2d 715 (1996). Further,
[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight . . . .
[Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674
(1984) (internal citation omitted).]
After our review of the record, we conclude that counsel’s strategy was sound strategy
despite its lack of success. There is no indication that counsel misunderstood the law or that the
strategy was objectively unreasonable. By admitting evidence of the inconsistencies between the
victim’s pretrial allegations and her trial testimony, counsel not only forced the prosecutor to
acknowledge and address the weaknesses of the case against defendant, he also provided
substantial evidence to support the fabrication defense. Without the evidence of the
inconsistencies, counsel’s theory of fabrication would have been much weaker. Although the
victim’s testimony at trial was not perfectly consistent over the course of the examination and
differed in minor respects with her preliminary examination testimony, the jury would likely
have overlooked those minor differences in light of her young age and her presumed nervousness
at having to testify in a courtroom full of strangers. For counsel’s fabrication strategy to
succeed, more significant examples of inconsistencies were required, and the challenged
testimony provided those. Thus, we conclude that, although the strategy included some risk, it
was sound, and counsel was not ineffective for relying upon it. Hofbauer, supra at 704.
Defendant has not demonstrated that his counsel was ineffective. Tommolino, supra at 17.
Thus, the trial court did not abuse its discretion when it denied defendant’s motion for a new
trial. Wilson, supra at 354.
III. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor committed several instances of misconduct in
closing argument, and that even if the individual errors do not require reversal, the cumulative
effect of the errors denied defendant a fair trial. Again, we disagree.
A. Standard of Review
Defendant did not object to the challenged statements at trial; thus, our review is limited
to plain error affecting defendant’s substantial rights. People v Callon, 256 Mich App 312, 329;
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662 NW2d 501 (2003). An error affects defendant’s substantial rights if it is prejudicial, or
seriously affects the fairness, integrity, or public reputation of the judicial proceedings, or it
resulted in the conviction of an actually innocent defendant. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).
When a defendant challenges a statement made in closing argument, we examine the
pertinent part of the record and evaluate the remarks in context to determine if defendant was
denied a fair trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). The
remarks are read as a whole and evaluated in light of defense arguments and their relationship to
the evidence and testimony at trial. People v Brown, 267 Mich App 141, 152; 703 NW2d 230
(2005). Reversal is not required “if the prejudicial effect of the prosecutor’s comments could
have been cured by a timely instruction.” People v Williams, 265 Mich App 68, 71; 692 NW2d
722 (2005).
B. Analysis
Defendant offers three specific instances where the prosecutor improperly bolstered or
denigrated the witnesses’ testimony by referring to his personal experiences. Defendant first
argues that the prosecutor improperly bolstered the credibility of the victim’s aunt when he
argued that her repeated conversations with the victim regarding inappropriate touching were a
reasonable thing to do and that he had a similar conversation with his own seven-year-old
nephew.3 Second, defendant argues that the prosecutor unfairly denigrated the victim’s mother
and improperly judged her behavior when he stated that if his child was the victim, he would
have accompanied her to the hospital and to the police, and he would not have brought a lawyer
when he spoke with the police.4 Defendant finally argues that the prosecutor improperly
expressed his personal view of defendant’s credibility when he noted that, unlike on television,
in his experience, defendants do not break down on the witness stand and confess to the crime.5
3
Specifically, the prosecutor said, “I have a seven-year-old nephew. I don’t have children
myself, but I’ve had that conversation with him. It’s not unusual . . . .”
4
The prosecutor commented as follows:
And lord knows that if it’s my child who my ex is saying that something had
happened to them, I’m going to be there every step of the way even if it’s just to
get the side of the story that she wanted people to hear . . . . I wouldn’t show up .
. . at the police station with an attorney and I certainly would show up at the
minute they were going to the police and anytime my child goes to the doctor’s
office or to the hospital or the emergency room, I’m going to be there to make
sure that she’s treated properly, that she’s seen properly.
5
The prosecutor stated:
And who’s the defendant? He’s a man who testified to you, for you in an
untruthful manner. He was untruthful about pretty much everything. Television
has Matlock get up there and have someone break down and cry on the stand.
That’s not what’s going to happen here, ladies and gentlemen. You don’t get
those moments. In the ten years that I’ve been a prosecutor, I’ve never had a
(continued…)
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Defendant claims that this last argument improperly used the prestige of the prosecutor’s office
to obtain a conviction.
A prosecutor may not vouch for a witness’s credibility in a closing argument to imply
some “special knowledge” of the truthfulness of the witness. Bahoda, supra at 276. However,
“a prosecutor may comment on his own witnesses’ credibility during closing argument,
especially when there is conflicting evidence and the question of the defendant’s guilt depends
on which witnesses the jury believes.” People v Thomas, 260 Mich App 450, 455; 678 NW2d
631 (2004). “‘[P]rosecutors are accorded great latitude regarding their arguments and conduct.’
They are ‘free to argue the evidence and all reasonable inferences from the evidence as it relates
to [their] theory of the case.’” Bahoda, supra at 282 (internal citations omitted).
Here, at oral argument, the prosecutor conceded that the above remarks were improper.
But even with this concession, we conclude that reversal is not required in this case because
defendant has failed to show plain error affecting his substantial rights. The prosecutor’s
conduct was not so egregious that a curative instruction would not have counteracted any
prejudice. People v Dobek, 274 Mich App 58, 66 n 3, 732 NW2d 546 (2007); People v
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). The statements regarding his
conversation with his nephew, the behavior of the victim’s mother and the reference to his
prosecutorial experiences were brief, not inflammatory, and immediately followed by references
to the evidence at trial. Moreover, the jury was instructed both that it must decide the case on the
evidence alone and that the lawyer’s statements were not evidence. The instructions were
sufficient to dispel any unfair prejudice from the challenged comments. People v Green, 228
Mich App 684, 693; 580 NW2d 444 (1998). The jury is presumed to follow the court’s
instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
Defendant’s claim that the prosecutor argued a “fact” not in evidence—that the victim’s
statements were consistent—is also without merit. It is clear from a reading of the remark in
context that the prosecutor simply argued that the victim was as consistent in her retellings of the
abuse as one could expect a seven-year-old child to be. The prosecutor clearly did not disregard
the victim’s inconsistent testimony, but addressed the inconsistencies in closing. The statement
was not improper. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994).
Even where each challenged remark is not so prejudicial on its own that a timely
objection and curative instruction could not have alleviated the prejudice, the cumulative effect
of several minor instances of misconduct may require reversal. People v McLaughlin, 258 Mich
App 635, 649; 672 NW2d 860 (2003). The test is whether the effect of the errors was so
seriously prejudicial that defendant was denied a fair trial. Id.; People v Knapp, 244 Mich App
361, 388; 624 NW2d 227 (2001).
Defendant’s cumulative error argument also fails. To reverse on the grounds of
cumulative error, the errors complained of must be of consequence. People v Cooper, 236 Mich
(…continued)
defendant get up on the stand, deny it, deny it, deny it and then after I ask him
four questions break down in a ball and say I did it.
-6-
App 643, 659-660; 601 NW2d 409 (1999). After a careful review of the record, we conclude
that defendant has not shown errors of consequence which, when combined, had a prejudicial
effect so serious that defendant was denied a fair trial. The evidence against defendant was
sufficient; the remarks did not compromise defendant’s defense; and they were not so powerful
and persuasive that if they had not been made, a juror would have voted for acquittal. Id.
Reversal is not required.
IV. IMPARTIAL JURY
Defendant also argues that his Sixth Amendment right to an impartial jury that reflected a
fair cross-section of the community was violated. We disagree.
A. Standard of Review
“[T]o . . . preserve a challenge to the jury array, a party must raise [the] issue before the
jury is empanelled and sworn.” People v McKinney, 258 Mich App 157, 161; 670 NW2d 254
(2003). Defendant did not object at trial; thus, this issue is unpreserved. Id. We review an
unpreserved constitutional issue for plain error that affects defendant’s substantial rights,
meaning that it is prejudicial, or seriously affects the fairness, integrity, or public reputation of
the judicial proceedings, or resulted in the conviction of an actually innocent defendant.
Carines, supra at 761, 763-764.
B. Analysis
To succeed on a claim of racial discrimination in the composition of the jury venire or
pool that violates the Sixth Amendment, defendant must first show a prima facie case of racial
discrimination. People v Glass, 464 Mich 266, 275; 627 NW2d 261 (2001). To determine if a
prima facie violation of the fair-cross-section requirement of the Sixth Amendment, US Const,
Am VI, has occurred, the court must find:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process. [People v Smith, 463 Mich
199, 215; 615 NW2d 1 (2000), quoting Duren v Missouri, 439 US 357, 364; 99 S
Ct 664; 58 L Ed 2d 579 (1979).]
Defendant has met the first prong of the test because “African-Americans are considered
a constitutionally cognizable group for Sixth . . . Amendment purposes.” People v Hubbard
(After Remand), 217 Mich App 459, 473; 552 NW2d 493 (1996). Defendant has not, however,
met the second and third prongs of the test. Defendant has provided evidence of two incidents
where the jury pool included no African-Americans. Two instances of underrepresentation,
however, is insufficient to show underrepresentation in general. See People v Williams, 241
Mich App 519, 526; 616 NW2d 710 (2000). Likewise, defendant fails to meet the third prong.
“[S]ystematic exclusion cannot be shown by one or two incidents of a particular venire being
disproportionate.” People v Flowers, 222 Mich App 732, 737; 565 NW2d 12 (1997). Thus,
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defendant has not shown a prima facie case of racial discrimination, and his Sixth Amendment
claim fails.
V. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that his counsel was ineffective for failing to raise the issue of the
absence of African-Americans in the jury pool. Again, to succeed on his claim, defendant must
show that counsel’s performance was deficient under an objective standard of reasonableness,
and that, but for counsel’s error, the result of the proceeding would have been different;
therefore, he was denied a fair trial. Grant, supra at 485-486. Here, the lower court record does
not include any evidence that African-Americans were substantially underrepresented in the
venire or that the absence of African-Americans from the jury venire was the result of systematic
exclusion. Thus, there is no evidence that there was a reasonable probability that the result
would have been different if counsel had objected. Id.
VI. SENTENCING GUIDELINES
Defendant next argues that because no medical records, expert testimony, results of
interviews, or other observations of the victim’s behavior were admitted into evidence to prove
that the victim suffered serious psychological injury, the trial court erred in scoring ten points for
offense variable (OV) 4. We disagree.
A. Standard of Review
We review a sentencing court’s scoring of points under the sentencing guidelines for an
abuse of discretion. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Where
there is any evidence to support the court’s scoring decision, it will be upheld. Id.
B. Analysis
The sentencing court must score ten points for OV 4 when the victim suffers “serious
psychological injury requiring professional treatment.” MCL 777.34(1)(a). Or “if the serious
psychological injury may require professional treatment.” MCL 777.34(2). “In making this
determination, the fact that treatment has not been sought is not conclusive.” Id. Contrary to
defendant’s argument, the prosecution was not required to prove that the victim suffered serious
psychological injury by a preponderance of the evidence because defendant did not challenge the
accuracy of the fact. People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886
(1993).
The victim testified at trial that defendant’s abuse made her feel “not good.” Her father
read a statement during sentencing in which he stated that his daughter experienced pain and
suffering from being violated by defendant. He noted that she was “stressed” and would have to
seek professional help for perhaps the rest of her life. Thus, there is evidence in the record to
support the score. See People v Apgar, 264 Mich App 321, 329; 690 NW2d 312 (2004)
(concluding that the victim’s testimony that she was “fearful during the encounter” with the
defendant was sufficient evidence to support a score of ten points). The father’s testimony
provides evidence in the record to support the score, so we affirm the sentencing court’s
decision. Hornsby, supra at 468.
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Defendant’s final argument on appeal, that his sentence violated his constitutional rights
as articulated in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), is
without merit. Our Supreme Court has clearly held that Michigan’s sentencing is indeterminate
and thus, the rulings in Blakely do not affect Michigan’s legislative sentencing guidelines.
People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006).
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Bill Schuette
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