PEOPLE OF MI V BRIAN CHRISTOPHER BUYSSEE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 1, 2008
Plaintiff-Appellee,
v
No. 267469
Wayne Circuit Court
LC No. 04-011598-01
BRIAN BUYSSEE,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/Cross-Appellee,
v
No. 274748
Wayne Circuit Court
LC No. 04-011598-01
BRIAN CHRISTOPHER BUYSSEE,
Defendant-Appellee/CrossAppellant.
Before: Zahra, P.J., and White and O’Connell, JJ.
PER CURIAM.
A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC),
MCL 750.520b, three counts of contributing to the delinquency of a minor, MCL 750.145, and
one count of allowing a minor to use alcohol, MCL 750.141a(2). The trial court sentenced
defendant to concurrent terms of 10 to 25 years’ imprisonment on each CSC count, 90 days for
each count of contributing to the delinquency of a minor, and 30 days for the count of allowing a
minor to use alcohol.
On defendant’s motion for new trial, the trial court vacated defendant’s first-degree CSC
convictions, and reduced them to third-degree CSC. On resentencing, the court sentenced
defendant to concurrent terms of 85 months to 15 years.
In Docket No. 274748, the prosecution appeals by leave granted the trial court’s order
vacating defendant’s convictions of first-degree CSC, asserting that the court erroneously
concluded that there was insufficient evidence of coercion to support CSC I convictions.
-1-
Defendant cross-appeals, challenging the jury instruction regarding coercion and asserting
ineffective assistance of counsel. In Docket No. 267469, defendant appeals as of right, asserting
error in the admission of prior acts, prosecutorial misconduct and other challenges.
We reverse the trial court’s order vacating defendant’s CSC I convictions and reducing
them to CSC III, and reject defendant’s challenges on cross-appeal.
Docket No. 274748
I
At trial, the prosecution advanced three alternative theories of CSC I, MCL 750.520b.
Two of the three theories require that a defendant be “in a position of authority over the victim
and used this authority to coerce the victim to submit.” MCL 750.520b(1)(b)(iii) and MCL
750.520b(1)(h)(ii). The prosecution asserts that it presented sufficient evidence of coercion, in
that defendant was the sole parental figure at a teenage sleepover, got the 14-year-old victim
drunk, isolated her in his bedroom, and then sexually penetrated her while she was passed out.
This Court reviews de novo the trial court’s determination that insufficient evidence
existed to support defendant’s CSC I convictions. People v Lueth, 253 Mich App 670, 680; 660
NW2d 322 (2002). This Court reviews the trial court’s factual findings for clear error. MCR
2.613(C), People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
In a criminal case, due process requires that a prosecutor introduce evidence sufficient to
justify a trier of fact in concluding that the defendant is guilty beyond a reasonable doubt.
People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). In reviewing the sufficiency
of the evidence, the evidence is viewed in the light most favorable to the prosecution to
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. Id.
The essential elements of the two CSC I theories involving coercion are: 1) the
defendant engages in sexual penetration with the victim; 2) the complainant is between 13 and
16 years old; and 3) the defendant “is in a position of authority over the victim and used this
authority to coerce the victim to submit,” MCL 750.520b(1)(b)(iii); and 1) the defendant
engages in sexual penetration with the victim; 2) the complainant is mentally incapable, mentally
disabled, or mentally incapacitated, physically helpless; and 3) the defendant “is in a position of
authority over the victim and used this authority to coerce the victim to submit.” MCL
750.520b(1)(h)(ii).
The trial court granted defendant’s motion for new trial, finding that the evidence was
insufficient to establish the element of coercion, vacated defendant’s CSC I convictions and
reduced them to CSC III:1
1
The defense conceded that the evidence was sufficient to convict of CSC III.
-2-
The testimony of [the complainant] was not that she gave in to a show of
authority by the Defendant but she woke up and found him on top of her. That’s
in the transcript of October 31st. The evidence that he coerced her, that is
evidence that he used his authority to get her to have – to agree to have sex with
him is nonexistent in some respects.
Now considering the Reid cases Premo and Asevedo, all of which citations have
been provided to our reporter, and considering the definitions section of 750.520 -.520. We talked about coercion, the mental anguish, the sleeping situation, I’ve
heard all of the arguments, I’m still not convinced that there was sufficient
evidence of first degree criminal sexual conduct, . . . , and I’m going to reverse
and dismiss the first degree criminal sexual conduct, reduce it to third degree
CSC. . . .
A
On appeal and below the prosecution relies on People v Reid, 233 Mich App 457; 592
NW2d 767 (1999), and People v Premo, 213 Mich App 406; 540 NW2d 715 (1995), arguing that
in both cases, the victims did not give in to a show of authority by the defendant at the point of
assault, and that the defendant instead used his position of authority to get the victim in a
position to be unable to resist, and that was held sufficient to prove coercion.
In Reid, the defendant was convicted of two counts of CSC I under MCL
750.520b(1)(b)(iii), one of the charged theories in the instant case, which provides:
A person is guilty of criminal sexual conduct in the first degree if he or she
engages in sexual penetration with another person and if any of the following
circumstances exists:
***
(b) That other person is at least 13 but less than 16 years of age and any of
the following:
(iii) The actor is in a position of authority over the victim and used this
authority to coerce the victim to submit.
The defendant in Reid was charged with performing fellatio on the fifteen year-old complainant
and having the complainant perform it on him. The defendant knew the complainant’s father and
offered to “counsel” the complainant, who was having problems in school. The defendant
claimed to have counseled young persons before, through his church. After several meetings, the
defendant asked the complainant to spend the night at the defendant’s parents’ house. On the
way there, the defendant bought the complainant the brand of cigarettes he knew the complainant
smoked. Once at the defendant’s parents’ house, they played on the computer for hours, and
then the defendant gave the complainant three or four glasses of “7 Up” that tasted funny,
according to the complainant. After several glasses, the complainant saw the defendant pour
vodka into his glass of pop, and started feeling dizzy, hot, sweaty and light-headed. The
defendant instructed the complainant to urinate into a bottle because he did not want his parents
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awakened by use of the upstairs bathroom. The defendant at some point told the complainant
that he (the complainant) was drunk and should take off his shirt and pants so he would not get
them dirty if he got sick. The complainant did so and lay on the bed. The defendant started
fondling him and asked that he do the same to the defendant, and eventually the complainant
performed oral sex on the defendant. The complainant testified that he felt dizzy and lightheaded when he performed oral sex on the defendant. The defendant challenged the sufficiency
of the evidence.
The Reid Court concluded there was sufficient evidence to conclude that the defendant
was in a position of authority over the complainant, as the defendant had told the complainant’s
father that he had been a counselor at a church and both of the complainant’s parents testified
that their understanding was that the defendant was spending time with their son to counsel him.
On the issue whether there was sufficient evidence to support a finding that the defendant used
that position of authority to coerce the complainant to submit to the charged acts, this Court
noted:
It is important to bear in mind that, “[f]orce or coercion is not limited to physical
violence but is instead determined in light of all the circumstances.” People v
Brown, 197 Mich App 448, 450; 495 NW2d 812 (1992).
While not exactly on point because they did not expressly involve an allegation of
use of a position of authority to coerce a victim to submit, two previous opinions
from this Court regarding what constitutes coercion are highly instructive: People
v Regts, 219 Mich App 294; 555 NW2d 896 (1996), and People v Premo, 213
Mich App 406; 540 NW2d 715 (1995). In Premo, at 410-411, quoting Black’s
Law Dictionary (5th ed), 234, the panel stated that coercion “ ‘ may be actual,
direct, positive, as where physical force is used to compel act [sic] against one’s
will, or implied, legal or constructive, as where one party is constrained by
subjugation to other to do what his free will would refuse.’” (Emphasis supplied.)
In Regts, supra at 295-296, this Court, noting the discussion of “implied, legal or
constructive” coercion in Premo, stated:
In the case at bar, defendant, as the victim’s psychotherapist, manipulated
therapy sessions to establish a relationship that would permit his sexual
advances to be accepted without protest. That is, he subjugated the victim
into submitting to his sexual advances against her free will. Accordingly,
the circuit court properly reinstated charges with respect to all “coercion”
theories.
Viewing the evidence in the light most favorable to the prosecution, defendant
placed himself, with regard to the complainant, in a role highly analogous for
present purposes to that of a psychotherapist with a patient. . . . Having
established a position of trust with the complainant’s parents, defendant invited
the complainant to spend the night at the house of defendant’s parents. . . . A
reasonable jury could infer from this evidence that defendant manipulated his
“counseling” role with the complainant—“a position of authority”—in order to
have the complainant alone where defendant could sexually assault him.
-4-
According to the complainant, on the night of the incidents, defendant, while
acting in this position of authority over the complainant, gave the complainant
beverages that he “spiked” with alcohol and had the complainant consume these
beverages to the point of becoming heavily intoxicated. A reasonable jury could
infer that this was done with the intent to reduce the complainant’s inclination or
ability to resist engaging in sexual activity with defendant. The complainant’s
testimony strongly reflects that he was disoriented at the time of the acts of
fellatio and that he was, in large part, mechanically following the commands of
defendant with regard to his actions or lack of resistance. He described himself as
feeling as if he were in a “bad dream” during the encounter. Viewing the
evidence most favorably to the prosecution in light of all the circumstances . . .
defendant used a position of authority over the complainant to engineer a quite
elaborate series of events to place the complainant in a confused and disoriented
condition and then took advantage of the complainant’s condition to perform
fellatio on the complainant and to instruct successfully the complainant to
perform fellatio on him. This is sufficient evidence for a rational factfinder to
conclude that the complainant was “constrained by subjugation,” Premo, supra at
411, and, thus, coerced into submitting to these acts of sexual penetration by
defendant through use of his position of authority over the complainant.
***
In this regard, a common feature of the situation with the teacher in Premo and
the psychotherapist in Regts is that the victims were in a position of special
vulnerability with respect to the defendants. Similarly, in this case, a reasonable
jury could have found that defendant exploited the special vulnerability attendant
to his relationship with the complainant to abuse him sexually. [Reid, 233 Mich
App at 468-473.]
In Premo, the defendant appealed the circuit court’s denial of his motion to quash charges
of 4th degree CSC. Three young women testified at the preliminary examination that in three
separate incidents the defendant, a teacher at Ferndale High School, pinched their buttocks while
they were in the school. The defendant was charged under then MCL 750.520e(1)(a), which
provides that a person is guilty of CSC in the 4th degree if he engages in sexual contact with
another and “force or coercion is used to accomplish the sexual contact.” The defendant
contended that pinching the victims’ buttocks was insufficient to satisfy the requirement that
force or coercion be used to accomplish sexual contact.
This Court affirmed, holding that the defendant’s conduct “constitutes both force and
coercion.” Regarding “force,” this Court concluded that the act of pinching requires the actual
application of physical force, and thus satisfied MCL 750.520b(1)(f)(i), which at that time was
incorporated by reference in the 4th degree CSC statute, MCL 750.520e(1)(a). See n 2, infra.
The Premo Court also concluded that the defendant’s conduct constituted coercion under
MCL 750.520e(1)(a):
As an alternative basis to affirm the circuit court’s denial of defendant’s motion to
quash, we also conclude that defendant’s conduct constituted coercion under
-5-
MCL 750.520e(1)(a). . . The district court determined that defendant’s conduct
constituted coercion because defendant was in a position of authority over his
victims. Apparently, the district considered defendant to be in a position of
authority because he was a teacher and the victims were students. Although the
circuit court did not address whether defendant’s conduct constitutes coercion, we
conclude that it does. Defendant’s conduct was not included in the enumerated
examples of coercion in MCL 750.520b(1)(f)(i)-(iv)[2]. . . However, the
Legislature did not limit the definition of force or coercion to the enumerated
examples in the statute. MCL 750.520e(1)(a). . . Furthermore, the existence of
force or coercion is to be determined in light of all the circumstances and is not
limited to acts of physical violence. People v Malkowski, 198 Mich App 610,
613; 499 NW2d 450 (1993)[, overruled on other grounds People v Edgett, 220
Mich App 686; 560 NW2d 360 (1996)]. Coercion
may be actual, direct, or positive, as where physical force is used to
compel act against one’s will, or implied, legal or constructive, as where
one party is constrained by subjugation to other to do what his free will
would refuse. [Black’s Law Dictionary (5th ed), 234.]
We believe that defendant’s actions constituted implied, legal, or constructive
coercion because, as a teacher, defendant was in a position of authority over the
student victims and the incidents occurred on school property. Defendant’s
conduct was unprofessional, irresponsible, and an abuse of his authority as a
teacher. Accordingly, we conclude that defendant’s conduct in this case is
2
At the time Premo was decided, MCL 750.520b(1)(f)(i)-(iv) provided:
Force or coercion includes but is not limited to any of the following
circumstances:
(i) When the actor overcomes the victim through the actual application of
physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use
force or violence on the victim, and the victim believes that the actor has
the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate
in the future against the victim, or any other person, and the victim
believes that the actor has the ability to execute this threat. As used in this
subdivision, “to retaliate” includes threats of physical punishment,
kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of
the victim in a manner or for purposes which are medically recognized as
unethical or unacceptable.
-6-
sufficient to constitute coercion under MCL 750.520e(1)(a) . . . [Premo, 213 Mich
App at 410-411.]
The final two paragraphs quoted immediately supra were quoted with approval in Reid, supra.
Reid was also quoted with approval in People v Knapp, 244 Mich App 361, 369; 624
NW2d 227 (2001), a CSC II case in which the defendant, a Reiki instructor, was convicted of
sexual contact with one of his students, who was between 13 and 16 years old. In Knapp, as in
the instant case, the prosecution was required to prove that the defendant was “ in a position of
authority over the victim and [] used this authority to coerce the victim to submit.” MCL
750.520c(1)(b)(iii). The Knapp Court noted:
Here, we address the identical question of what constitutes coercion, but unlike
Reid, we must answer this question for purposes of the CSC II statute, an issue
that has not been reviewed by our courts in a published opinion. We believe that
the holding in Reid is persuasive and equally applicable to CSC II. Therefore we
similarly hold that a defendant’s conduct constitutes coercion where, as here, the
defendant abuses his position of authority to constrain a vulnerable victim by
subjugation to submit to sexual contact.
***
In Reid, this Court specifically held that coercion by a person in a position of
authority does not require a showing of physical violence but can be shown
through evidence of the exploitation of a victim’s special vulnerability. Reid,
supra at 472. The Court concluded that the defendant placed himself in a position
of acting as a therapist by offering to counsel the complainant about his problems.
Id. at 470. This Court also found that the defendant spent time with the
complainant on the night of the sexual conduct in order to further that counseling
relationship and manipulated that role in order to assault the complainant. Id.
The court observed that the defendant’s relationship with the complainant was
similar to a teacher-student relationship in which the victim is “in a position of
special vulnerability” with the defendant and that the “defendant exploited the
special vulnerability to his relationship with the complainant to abuse him
sexually.” Id. at 472.
***
As noted above, the characteristic dominant and subordinate roles in any teacherstudent relationship places the student in a position of special vulnerability. We
find the circumstances of this case particularly illustrative of this point.
Complainant was the only young adolescent in a class taught and attended by
adults. Given his age, the unconventional nature of the “curriculum,” and the
trust defendant fostered with complainant’s mother, complainant was highly
susceptible to abuse. Under these circumstances, we find that defendant exploited
and abused his position of authority to compel an extremely vulnerable youth to
engage in sexual contact. This clearly constitutes coercion for purposes of this
section of the CSC II statute. [Knapp, 244 Mich App at 360-361.]
-7-
Thus, this Court has held that coercion is to be determined in light of all the
circumstances, is not limited to physical violence, and can be “implied, legal or constructive, as
where one party is constrained by subjugation to do what his free will would refuse.” Reid,
supra; Premo, supra at 410-411. In light of these cases, we conclude that the prosecution
presented sufficient evidence to support that defendant was in a position of authority and used
that authority to coerce the victim to submit.
B
There was evidence that defendant was in a position of authority over the victim. He was
the only adult, picked the girls up and was with them the entire evening, instructed them not to
use the computer dust in the car, provided food for them by taking them to dinner, provided the
alcohol, and purported to take care of the complainant when she was sick. The issue, then, is
whether there was adequate evidence that he used this authority to coerce the victim to submit.
“Subjugate” is defined:
1. to bring under complete control or subjection; conquer; master. 2. to make
submissive or subservient; enslave.
[Random House Webster’s College
Dictionary (1995).]
There was evidence that defendant gave the complainant at least three double shots of
Peppermint Schnapps, telling her that it would help her stomach. He then let the victim lay on
his bed so that she would be in an air-conditioned room, and rubbed her legs. Apparently, while
she was sleeping, he suggested that the other girls leave the room, and eventually physically
moved his daughter into a different room while she was sleeping. The complainant awoke to
both incidents occurring. We conclude that although the complainant was not awake when the
penetrations occurred, there was evidence that her submission was coerced in the sense that she
became drunk and passed out due in part to the alcohol provided by defendant pursuant to his
authority as the adult host, and was isolated in defendant’s bedroom due to defendant having
exercised his authority as the adult to exclude his daughter and position himself next to the
complainant.3
Thus, the trial court erred in concluding that there was insufficient evidence to find
coercion sufficient to support CSC I convictions.
II
The prosecution also contends that it presented sufficient evidence on the “mental
anguish” theory of guilt of CSC I, and that the trial court thus erred by finding insufficient
evidence of CSC I. We agree.
3
We observe that the prosecution correctly notes that the Legislature provided under subsection
(h), MCL 750.520b(1)(h), that a physically helpless victim (which includes a sleeping victim)
may be coerced into submission by virtue of a defendant’s abuse of authority, although,
logically, someone who is physically helpless does not “give in to a show of authority.”
-8-
The third alternative theory of CSC I the prosecution advanced at trial was MCL
750.520b(1)(g), which requires that the defendant “causes personal injury to the victim, and the
actor knows or has reason to know that the victim is . . . physically helpless.” There is no dispute
that the complainant was “physically helpless,” as the statute defines that term to include being
asleep. MCL 750.520a(l). The statute defines “personal injury” as bodily injury, disfigurement,
mental anguish, chronic pain, pregnancy, disease, or loss of impairment of a sexual or
reproductive organ. MCL 750.520a(m). The prosecution maintains that it presented sufficient
evidence of mental anguish, and does not argue it presented evidence of any other “personal
injury” under the statute.
“Mental anguish” is not defined in the statute, but has been held to mean “extreme or
excruciating pain, distress or suffering of the mind.” See Gillespie, 4 Michigan Criminal Law
and Procedure, § 131A:26, citing People v Swinford, 150 Mich App 507; 389 NW2d 462 (1986).
CJI2d 20.10, under which this jury was instructed almost verbatim provides:
(2) Personal injury means bodily injury . . . or mental anguish. Mental anguish
means extreme pain, extreme distress, or extreme suffering, either at the time of
the event or later as a result of it.
Complainant testified that she was disgusted by defendant’s conduct, and humiliated, and
that after the incidents and while still at defendant’s apartment, she was afraid and did not feel
safe being in the house with him. She testified that what happened to her was upsetting. She
cried on the stand when she testified that as defendant was having sex with her he said to her “go
ahead and come, you know you deserve it,” and when asked how that remark made her feel she
answered “completely disgusted.” She testified that having to undergo a rape examination was
humiliating, and that after she got home, she called her boyfriend and that when she answered
the door to let him in, she started crying. She testified that she was unable to maintain her
friendship with defendant’s daughter because she looks too much like defendant, and that it was
difficult to talk about what happened that night.
The court properly instructed the jury on the issue,4 and taking into account the jury’s
ability to observe the complainant’s demeanor while testifying, we conclude there was sufficient
evidence to establish personal injury through mental anguish.
4
The trial court stated:
Personal injury means bodily injury, disfigurement, chronic pain, pregnancy,
disease, loss or impairment of a sexual or reproductive organ or mental anguish.
Mental anguish means extreme pain, extreme distress or extreme suffering, either
at the time of the event or later as a result of it.
Here are some of the things you may think about in deciding whether [the
complainant] suffered mental anguish:
Was [the complainant] upset, crying or hysterical during or after the event?
(continued…)
-9-
III
Defendant’s Cross-Appeal
Defendant asserts that the trial court committed error requiring reversal in instructing the
jury regarding coercion that it “may find conduct that is irresponsible and an abuse of authority
to be coercive.”5 Defendant raised this issue in his motion for new trial, and the trial court
concluded that it did not plainly err in giving the unobjected-to instruction.6
(…continued)
Did she need psychological treatment?
Did the incident interfere with [the complainant’s] ability to work or lead a
normal life?
Was [the complainant] afraid that she or someone else would be hurt or killed?
Did she feel angry or humiliated?
Did [the complainant] need medication for anxiety, insomnia or other symptoms?
Did the emotional effect of the incident last a long time?
Did [the complainant] feel scared afterward about the possibility of being attacked
again?
There are not the only things you should think about. No single factor is
necessary. You must think about all the facts and circumstances to decide
whether [the complainant] suffered mental anguish.
5
The trial court instructed the jury:
THE COURT: Alternative theories:
The Defendant is charged with two counts of criminal sexual conduct in
the first degree. The prosecution has charged the Defendant under three
alternative theories. That means that there are three different ways of looking at
the evidence that could result in a conviction for criminal sexual conduct in the
first degree.
An example of this is the use of three different recipes to make chocolate cookies.
Although slightly different ingredients are used and the three batches of cookies
may taste a little different, they are all still chocolate chip cookies.
You should consider each of the alternative theories separately to determine if the
prosecution has proven all of the elements of that theory beyond a reasonable
doubt. You do not have to all agree on which of the three theories that the
(continued…)
-10-
(…continued)
prosecution has proven beyond a reasonable doubt. Just all agree that the
prosecution has proven all of the elements of one of the three alternative theories
beyond a reasonable doubt.
[1st theory-750.520b(1)(b)(iii)]
The Defendant is charged with the crime of first-degree criminal sexual conduct.
To prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt:
First, that the Defendant engaged in a sexual act that involved entry into [the
complainant]’s genital opening by the Defendant’s penis and/or finger. Any
entry, no matter how slight, is enough. It does not matter whether the sexual act
was completed or whether semen was ejaculated.
Second, that [the complainant] was 13, 14 or 15 years old at the time of the
alleged act.
Third, that at the time of the alleged act, the Defendant was in a position of
authority over [the complainant] and used this authority to coerce [the
complainant] to submit to the sexual act alleged. It is for you to decide whether,
under the facts and circumstances of this case, the Defendant was in a position of
authority.
Coercion exists where one is made to do something their free will would not
ordinarily let them do. You may find conduct that is irresponsible and an abuse of
authority to be coercive.
[2d alternative theory – MCL 750.520b(1)(g)]
The Defendant is charged with the crime of first-degree criminal sexual conduct.
To prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt:
First, that the Defendant engaged in a sexual act that involved entry into
[the complainant]’s genital opening by the Defendant’s penis and/or finger. Any
entry, no matter how slight, is enough. It does not matter whether the sexual act
was completed or whether semen was ejaculated.
Second, that the Defendant caused personal injury to [the complainant].
Third, the prosecutor must prove that [the complainant] was mentally
incapable or physically helpless at the time of the alleged act. Mentally incapable
means that [the complainant] was suffering from a mental disease or defect that
made her unable to understand what she was doing. Physically helpless means
(continued…)
-11-
(…continued)
that [the complainant] was unconscious, asleep or physically unable to
communicate that she didn’t want to take part in the alleged act.
Fourth, that the Defendant knew or should have known that [the
complainant] was mentally incapable or physically helpless at the time of the
alleged act.
[3d alternative theory-MCL 750.520b(1)(h)(ii)]
The Defendant is charged with the crime of first-degree criminal sexual conduct.
To prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt:
First, that the Defendant engaged in a sexual act that involved entry into
[the complainant]’s genital opening by the Defendant’s penis and/or finger. Any
entry, no matter how slight, is enough. It does not matter whether the sexual act
was completed or whether semen was ejaculated.
Second, the prosecutor must prove that [the complainant] was mentally
incapable or physically helpless at the time of the alleged act. Mentally incapable
means that [the complainant] was suffering from a mental disease or defect that
made her unable to understand what she was doing. Physically helpless means
that [the complainant] was unconscious, asleep or physically unable to
communicate that she didn’t’ want to take part in the alleged act.
Third, that the Defendant knew or should have known that [the
complainant] was mentally incapable or physically helpless at the time of the
alleged act.
Fourth, that at the time of the alleged act, the Defendant was in a position
of authority over [the complainant] and used his authority to coerce [the
complainant] to submit to the sexual act alleged. It is for you to decide whether
under the facts and circumstances of this case, the Defendant was in a position of
authority.
Coercion exists where one is made to do something their free will would not
ordinarily let them do. You may find conduct that is irresponsible and an abuse of
authority to be coercive.
6
We note that the prosecutor in closing argument echoed the trial court’s instruction, without
defense objection:
What does that mean, coerce? Here’s what coercion is. Coercion exists where
one is made to do something, their free will would not ordinarily let them do.
You may find conduct this [sic that] is unprofessional, irresponsible and an abuse
of authority to be coercive.
-12-
Unpreserved claims of constitutional error are reviewed for plain error that affected
defendant’s substantial rights. People v Carines, 460 Mich 750, 764-765; 597 NW2d 130
(1999); MCL 768.29. This Court reviews de novo issues of law arising from jury instructions.
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Jury instructions must include all of
the elements of the crime charged. People v McGhee, 268 Mich App 600, 606; 709 NW2d 595
(2005). Generally, juries are presumed to have followed instructions, People v Graves, 458
Mich 476, 486; 581 NW2d 229 (1998), however, if both a correct and an incorrect instruction are
given, this Court will presume that the jury followed the incorrect charge, People v Hess, 214
Mich App 33, 37; 543 NW2d 332 (1995).
The prosecution asserts that because defendant’s trial counsel approved the jury
instructions, any error was extinguished and defendant may not now raise this instructional
challenge, citing People v Carter, 462 Mich 206; 612 NW2d 144 (2000). In Carter, the Supreme
Court considered “whether defendant’s convictions must be reversed because the trial court
refused the jury’s request for the testimony of four witnesses, in violation of MCR 6.414(H).”
Id. at 208. MCR 6.414(H) requires a trial court “to exercise its discretion to ensure fairness and
to refuse unreasonable requests [to review testimony or evidence], but it may not refuse a
reasonable request,” and may not foreclose the possibility of having the testimony reviewed at a
later time. The Carter Court held that although the trial court violated MCR 6.414(H) by
foreclosing the possibility of later reviewing the requested testimony, defendant had waived his
rights under the court rule and thereby extinguished any error because “defense counsel
specifically approved the trial court’s refusal of the jury’s request and the court’s subsequent
instruction to the jury.” Id. at 208-209, 220.
Unlike in Carter, in the instant case defendant raises a constitutional challenge—one of
due process--to the instruction on coercion, asserting that the instruction removed a contested
element from jury consideration that the jury was otherwise required to decide, and thus
constituted a directed verdict on the element. “The Fifth and Sixth Amendments of the United
States Constitution ‘require criminal convictions to rest upon a jury determination that the
defendant is guilty of every element of the crime with which he is charged beyond a reasonable
doubt.” Carines, 460 Mich at 761, quoting United States v Gaudin, 515 US 506, 510; 115 S Ct
2310; 132 L Ed 2d 444 (1995). An error in omitting an element of a crime would be an error of
constitutional magnitude. Carines, 460 Mich at 761.
Defendant asserts that the CSC I statute does not define coercion, thus the dictionary
definition should be looked to. The prosecutor argues that the challenged instruction on coercion
was taken “straight from precedent” relying on Premo, and Reid. Premo, 213 Mich App at
410-411, sets forth a definition of coercion from Black’s Law Dictionary:
Coercion
may be actual, direct, or positive, as where physical force is used to
compel act against one’s will, or implied, legal or constructive, as where
one party is constrained by subjugation to other to do what his free will
would refuse. [Black’s Law Dictionary (5th ed), 234.]
The Premo Court continued:
-13-
We believe that defendant’s actions constituted implied, legal, or
constructive coercion because, as a teacher, defendant was in a position of
authority over the student victims and the incidents occurred on school
property. Defendant’s conduct was unprofessional, irresponsible, and an
abuse of his authority as a teacher. Accordingly, we conclude that
defendant’s conduct in this case is sufficient to constitute coercion under
MCL 750.520e(1)(a) . . . [Premo, 213 Mich App at 410-411. Emphasis
added.]
We recognize that the prosecution offered, and the trial court and defense counsel
accepted, language taken directly from this Court’s opinion in Premo. However, this language
from Premo must be understood in context, and does not purport to provide a definition of
coercion.7 Nevertheless, the trial court’s instruction must be evaluated in its entirety, and so
read, presents no error of constitutional dimensions. The court instructed the jury that it must
find:
Fourth, that at the time of the alleged act, the Defendant was in a position of
authority over [complainant] and used his authority to coerce [complainant] to
submit to the sexual act alleged. It is for you to decide whether under the facts
and circumstances of this case, the Defendant was in a position of authority.
Coercion exists where one is made to do something their free will would not
ordinarily let them do. You may find conduct that is irresponsible and an abuse of
authority to be coercive.
Taken as a whole, the instruction required the jury to find that defendant abused his authority and
that that abuse caused the complainant to submit to the sexual act, while her free will would not
ordinarily have let her do so. We find no plain error.
Defendant also asserts that trial counsel’s failure to challenge the instruction constituted
ineffective assistance of counsel. Effective assistance of counsel is presumed, and the defendant
bears a heavy burden of proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d
246 (2002). Generally, to establish a claim of ineffective assistance of counsel defendant must
show 1) that counsel’s performance was below an objective standard of reasonableness under
prevailing professional norms; 2) that there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different, and 3) that the resultant
proceedings were fundamentally unfair or unreliable. People v Frazier, 478 Mich 231, 243; 733
NW2d 713 (2007); People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).
Because the instruction as a whole adequately informed the jury of the elements of the
offense, defendant has failed to make the required showing.
7
Because this language does not provide a useful definition of “coerce,” it should not be used in
instructing on this offense.
-14-
Docket No. 267469
I
Defendant asserts that he was denied a fair trial by the admission of evidence concerning
unrelated bad acts. Preserved error in the admission of prior acts evidence does not require
reversal unless it affirmatively appears that it is more probable than not the error was outcome
determinative. The defendant bears the burden of establishing that, more probably than not, a
miscarriage of justice occurred. Knapp, supra, 244 Mich App at 378.
A
Defendant’s pre-trial motion in limine to preclude other acts evidence anticipated the
prosecutor’s motion to permit other acts evidence:
The other acts evidence of false allegations of Mr. Buysse’s [previously] inviting
his daughter and her 13 year-old friends over for a sleep-over, renting sexually
explicit movies, allowing them to use inhalants, drink alcohol and speak about
sexually explicit topics are irrelevant to an issue or fact of consequence at trial.
The prosecution filed its notice of intent to admit evidence of defendant’s other acts on the first
day of trial, stating in pertinent part:
4. On several prior occasions during the same summer the defendant would invite
his daughter and her 13-year-old friends for sleepovers at his home. He would
rent sexually explicit movies involving teenagers including Poison Ivy 2 and
Cruel Intentions. He would also allow the children to use inhalants, would supply
alcohol, and speak about sexually explicit topics.
5. In cases involving sexual exploitation of children it is common for the offender
to use such activities to allow the child to become less inhibited and allow
escalating levels of physical intimacy. This behavior is commonly called
“grooming.”
6. Under People v. DerMartex, 390 Mich. 410 (1973), both antecedent and
precedent sexual intimacies between defendant and the victim are admissible in
prosecution for sex offenses where the antecedent and precedent acts tend to show
similar familiarity between defendant and the person with he [sic] allegedly
committed the charged offense.
***
12. The People intend to introduce, at defendant’s trial, evidence of his other acts
performed during the commission of these other crimes to prove motive, lack of
mistake, part of a common plan and scheme, and as part of the offense charged.
MRE 404(b)(1) provides:
(b) Other crimes, wrongs, or acts.
-15-
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, scheme, plan, or system in doing
an act, knowledge, identity, or absence of mistake or accident when the
same is material, whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to the conduct at issue in
this case.
Use of prior acts as evidence of character is excluded, except as allowed by MRE 404(b), to
avoid the danger of conviction based on a defendant’s history of other misconduct. People v
Starr, 457 Mich 490, 495; 577 NW2d 673 (1998). To be admissible under MRE 404(b),
generally prior acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3)
its probative value may not be substantially outweighed by potential for unfair prejudice. People
v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). Evidence of misconduct similar to that
charged is logically relevant to show that the charged act occurred if the uncharged misconduct
and the charged offense are sufficiently similar to support an inference that they were
manifestations of a common plan, scheme, or system. People v Dobek, 274 Mich App 58, 85;
732 NW2d 546 (2007).
Even assuming error, it is not more probable than not that admission of the prior acts
evidence was outcome determinative. Although the prosecutor made much of the prior acts
evidence in opening statement, the trial testimony in large part did not live up to the prosecutor’s
claims.
As to defendant’s alleged allowing of inhalant use: Complainant testified that the night
in question was the first time she had brought inhalants to defendant’s apartment, and his
daughter testified at trial that she had never huffed at defendant’s apartment before the night in
question, and had first “huffed” the day before, with complainant. Regarding defendant’s
alleged allowing the minor girls to drink alcohol, complainant testified that she had spent the
night at defendant’s house one time before the incident in question, earlier that summer, and
neither defendant nor she drank alcohol. Defendant’s daughter testified:
Q. Now had he ever done that before when you had friends over? Did he ever
bring alcohol out?
A. Yes, but it was for him, but he let us have some.
Q. How was it different this time that it made you uncomfortable?
A. Because he was asking my friends if they wanted a drink.
After the daughter testified that she had peppermint Schnapps at her father’s on the night in
question, the prosecutor asked:
Q. Had you ever had that kind of liquor at your dad’s house before?
She answered no, and the prosecutor then asked:
-16-
Q. What kind of liquor did you have before?
A. Like Pucker and Mike’s Hard Lemonade, stuff like that.
Although less than clear, a fact-finder could infer from the daughter’s testimony that on the four
or so prior occasions that she had had sleepovers at her father’s, defendant drank himself and
allowed her and her friends to drink non-hard liquor, e.g., Mike’s Hard Lemonade, when they so
requested.
Regarding defendant’s alleged rental of sexually explicit movies, there was no testimony
that defendant had input into the choice of movies rented on the night in question; rather the
three girls testified at trial that the three or some combination thereof chose the movies on the
night in question.
In sum, the trial testimony regarding prior acts was unlikely to have swayed the jury that
defendant had sexually abused the complainant. Because any error in admission of the prior acts
was not more probable than not outcome determinative, reversal is not warranted. Knapp, supra
at 378.
B
Defendant also contends that the prosecutor offered the prior acts evidence under false
pretenses. Defendant raised this issue in his motion for new trial. We review the trial court’s
determination to deny defendant’s motion for new trial for an abuse of discretion. People v
Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). It is not evident to us that the prosecutor
intentionally misrepresented the other acts to which he expected the girls to testify at trial, thus
we conclude the trial court did not abuse its discretion in denying defendant’s motion for new
trial on this basis.
C
Defendant also challenges the prosecutor’s display to the jury of DVD covers, and
playing several minutes of one DVD. Defendant did not object at trial, but raised this issue in his
motion for new trial. The trial court’s determination to deny a new trial is reviewed for an abuse
of discretion. Cress, supra at 691.
Neither the DVD covers (Poison Ivy, Cruel Intentions III) nor the DVD clip played
(Cruel Intentions III) by the prosecutor during closing argument had been admitted in evidence.
Assuming their use constituted plain error, we conclude because their display was brief, their use
cannot be said to have resulted in the conviction of an innocent person, or seriously affected the
fairness, integrity or public reputation of the proceedings, given the complainant’s testimony and
the extent to which her rendition of events, apart from the actual sexual abuse, was corroborated
by the other girls.
D
Defendant next asserts that the trial court improperly precluded questioning of Dr.
Richard Rech, who had been qualified by the court as an expert in neuropsychopharmacology.
-17-
Defendant did not object at trial, but raised this issue in his motion for new trial. This Court
reviews the trial court’s denial of defendant’s motion for new trial for an abuse of discretion.
Cress, supra at 691.
When defense counsel asked Dr. Rech about the relation of drug use to hallucination and
its behavioral effects, the very area in which Dr. Rech was qualified as an expert, the prosecutor
objected and the trial court sustained the objection:
Q. Now does – when a person has this memory of a hallucination that they
believe to be real, do they express it has [sic as] being something that
happened, or do they express it always that this it is something that I know
happened, do they – in what particular way do they express that –
MR. CLARKE: Your Honor, if I may?
THE COURT: Yes.
MR. CLARKE: At this point we’re talking about memory cognitive
function and the nature of of [sic] hallucination, I think that is separate, in a
separate field of expertise than the area of pharmo – whatever it is, toxicology.
Oh I’m sorry psycho –
THE COURT: Neuropsychopharmology [sic].
MR. CLARKE: Neuropsychopharmology [sic]. Thank you, your Honor.
Is far outside the scope of neuropsychopharmicology [sic], which is
specifically regarding the effects of drugs on the central nervous system.
THE COURT: Response?
MR. GREENWOOD: I would say that the affect [sic] of the drugs is,
besides feeling it, might be how you express what happened when you have,
in fact, a hallucination. If you tell somebody about it, that’s an effect.
THE COURT:
Doctor Rech has been qualified in the area of
neuropsychopharmicology [sic], which is an area of expertise agreed to by
both attorneys of experts test [sic]. We will qualify him as an expert in that
area. His testimony, therefore, has to be predicated on the questions within
the area of his expertise, Mr. Greenwood. And I think that the question and
the answer being elicited exceeds [sic] the scope of what he’s been qualified
for. I’ll sustain the objection.
MR. CLARKE: Thank you, your Honor.
On re-direct, Dr. Rech gave a very long answer which included testimony answering defense
counsel’s earlier question:
Q. Now I think you testified earlier regarding in terms of hallucinations. That a
hallucination is something that occurs in the use of this particular substance.
-18-
That is an affect [sic] of it, that a hallucination will last longer than two hours?
Or what exactly were you – what’s the difference between the literature and
what you stated previously?
A. Hallucinations can occur in a few minutes, they can occur over maybe twenty
or thirty minutes, as long as twenty or thirty minutes. They can be multiple
hallucinatory experiences, usually with the usual pattern of use with
difluoroaethane with a single hit here and then you’ll may be semi
unconscious. Then you’ll come out in a minute or two or three or five, and
you do it again.
When you have an hallucination it will be over a short period of time
relatively in a few minutes perhaps. And that is not expressed at that time
usually, because a person is not competent to make that expression. But it is
put in memory at that time. * * * *
That is the hallucination is laid down, and then later on it can be hours later
on, that they’ll recover that. They’ll be able to recall that because the
sensorium clears enough for that to happen. Then when it comes back into the
memory, it seems to have the force of reality.
Q. Okay.
A. And they usually have no real concept of when that occurred. Temporal
factors are very poorly described in terms of when things occurred, and how
long they occur or particular details of hallucinatory experience will not be
forthcoming.
We conclude that although the trial court initially precluded the testimony, Dr. Rech later
provided the testimony defense counsel sought to elicit initially. Thus, even if the trial court
abused its discretion in sustaining the prosecutor’s objection, defendant cannot show he was
prejudiced and there is no basis for reversal on this issue.
E
Defendant also asserts that he was prejudiced by the prosecutor’s display to the jury of a
photo of defendant with the caption “PARENT’S WORST NIGHTMARE,” which came from no
witness, was not something the police found, but rather was a graphic made by the prosecutor
and a direct attack on defendant’s character.
Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing
court must examine the record and evaluate a prosecutor’s remarks in context. People v Thomas,
260 Mich App 450, 454; 678 NW2d 631 (2004). Prosecutorial comments must be read as a
whole and evaluated in light of defense arguments and the relationship they bear to the evidence
admitted at trial. People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). A
prosecutor may not make a statement of fact to the jury that is unsupported by the evidence.
People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994), but he is free to argue the
evidence and all reasonable inferences arising from it as they relate to his theory of the case,
-19-
People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). He need not use the least
prejudicial evidence available to establish a fact at issue, nor must he state the inferences in the
blandest possible terms. People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995). A
prosecutor’s good-faith effort to admit evidence does not constitute misconduct. People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). Opening statement is the appropriate time
to state the facts that will be proven at trial. When a prosecutor states that evidence will be
presented that later is not presented, reversal is not required if the prosecutor acted in good faith
and the defendant was not prejudiced by the statement. People v Johnson, 187 Mich App 621,
626; 468 NW2d 307 (1991), People v Wolverton, 227 Mich App 72, 77; 574 NW2d 703 (1997).
Although trial counsel did not object to the prosecutor’s references in opening statement
and rebuttal to the incidents being “every parent’s worst nightmare,” and to the prosecutor’s
displaying to the jury a photograph of defendant with that phrase as a caption, these claims were
raised in defendant’s motion for new trial. The trial court’s determination to deny defendant’s
motion for new trial is reviewed for an abuse of discretion. Cress, supra at 691. An abuse of
discretion occurs when the result is outside the range of principled outcomes. Barnett v Hidalgo,
478 Mich 151, 158; 732 NW2d 472 (2007).
The prosecutor’s opening statement began with
What happened on July 12th, 2004, was every parent’s worst nightmare. It began
with a violation of trust and ended with a sexual assault of a 14-year-old . . . .
After summarizing what the testimony would show, the prosecutor again used the term:
This was a parent’s worst nightmare. My 13- or 14-year old daughter is going to
spend the night. You trust that the man in authority, the person responsible, Mr.
Buyssee [sic], would protect them. In this case, he did not only not protect them,
he preyed on them, he created the environment to allow this to happen. He knew
what would happen by letting them use these inhalants. He knew what would
happen while letting them watch these movies. He created an environment where
everything’s okay at the Buyssee [sic] home. Everything’s okay at the Buyssee
home including the sexual assault.
In closing argument, the prosecutor displayed to the jury a photograph of defendant with
the caption, placed by the prosecution, reading “Parent’s Worst Nightmare,” which was not
admitted in evidence. In rebuttal closing argument, the prosecutor stated:
We began this trial, we talked about a parent’s worst nightmare, trusting someone
to watch your kids. Trusting someone to protect your kids. And your kids are not
protected.
We conclude that although the prosecutor’s conduct was indeed improper, the trial court
did not abuse its discretion in denying defendant’s motion for new trial on this basis. The
display of defendant’s photograph to the jury and repeated use of the theme “parent’s worst
nightmare,” was unlikely to have prejudiced defendant significantly in light of the complainant’s
testimony regarding the sexual abuse, and the extent to which her version of events on the night
in question was corroborated by the other girls.
-20-
F
Defendant maintains that the trial court improperly denied his motion to preclude
reference to the complainant as “the victim.” Defendant’s motion in limine to preclude prior
similar acts requested that the prosecutor be precluded from referring to the complainant as the
victim. This Court reviews the trial court’s denial of defendant’s motion for an abuse of
discretion. People v Sabin (After Remand), 463 Mich 43, 60; 614 NW2d 888 (2000). Defendant
also raised this issue in his motion for new trial. The trial court’s determination to deny a new
trial on this issue is reviewed for an abuse of discretion. Cress, supra at 691.
As the prosecution asserts, the CSC statute’s definitional section provides that “the
victim” is the “person alleging to have been subjected to criminal sexual conduct.” MCL
750.520a(q). The theories under which defendant was charged with CSC I use the term
“victim,” MCL 750.520b(1)(b)(iii), 750.520b(1)(g), 750.520b(1)(h)(ii), as well. We thus
conclude there was no abuse of discretion in permitting the use of this term.
G
Defendant next asserts that the prosecutor improperly took over examination of witnesses
by the defense. Defendant did not object at trial, but raised this issue in his motion for new trial.
This Court reviews the trial court’s determination to deny a new trial on this basis for an abuse of
discretion. Cress, supra at 691.
The prosecutor’s unobjected-to interruption of defense counsel’s direct examination of
Dr. Hage is quoted below:
Q. So does it [inhaling, and in addition, drinking alcohol] make the memory or
delusion stronger or weaker or stay about the same?
A. It could go either way. I would not be able to tell.
Q. Does it affect the duration of the -MR. CLARKE [sic] [prosecutor]: Wait a minute Judge, I didn’t
understand that. He said that the alcohol could make you less likely or more
likely to have hallucination [sic], it could go either way, is that what you said,
Doctor?
THE WITNESS: No.
I said—he was asking three things. And so I said it would be no effect or
have a worse effect, it won’t help in not having it happen.
MR. CLARKE [sic]: So it could have no effect, or it possibly could have an
effect, but you really couldn’t tell?
THE WITNESS: Right. I would say that, yes.
-21-
Although the prosecutor should have sought clarification on cross-examination rather
than interrupt defendant’s expert, the interruption was very brief, and was unobjected to. Under
these circumstances, we cannot conclude the trial court abused its discretion in denying
defendant’s motion for new trial on this basis. Cress, supra.
H
Defendant also contends that he was prejudiced by medication problems that made him
unable to testify. Defendant raised this issue in his motion for new trial, the denial of which this
Court reviews for an abuse of discretion. Cress, supra at 691. In support of his motion,
defendant submitted an affidavit, as did defendant’s trial counsel, Jennipher Colthirst.
Defendant’s affidavit stated in pertinent part:
3. I was housed in jail pending trial. I am a long term sufferer of Attention
Deficit Hyperactivity Disorder (ADHD). In connection with this, before going to
jail I was prescribed and took the drugs Effexor and Dexedrine. After I got to jail
I was not allowed to have these medications. The result was that I became
disoriented and short-tempered, had memory problems and anxiety, and found it
difficult to concentrate and to answer the attorney’s questions. I complained often
to the jail officials, but they refused to take action. After the trial started, attorney
Colthirst made a complaint to the judge, who arranged for me to resume getting
my medication. However, although I did get Effexor, the jail refused to provide
Dexedrine, but provided a substitute which did not work as the Dexedrine did. By
the time I would have had to testify, I was still suffering from the symptoms of
ADHD. I discussed this with attorneys Colthirst and Greenwood, and they
decided that because of my condition I could not safely testify. I accepted and
agreed with their judgment and did not testify.
Trial counsel Colthirst’s affidavit stated in pertinent part:
4. In the morning of the second day of trial, Mr. Buysse complained to me about
the Wayne County Jail Staff’s failure to give him his required medication prior to
his court appearance, and which resulted in Mr. Buysse feeling highly aggravated
and agitated. I immediately apprised the Court of this matter, the Court
postponed the continuation of the trial until Mr. Buysse was not only able to get
his medication, but also waited until Mr. Buysse advised me that he felt well
enough to continue with his trial. There was no discussion of his testifying, for
our trial strategy had always been for him to remain silent, and that was based on
our pre-trial consultations, investigations and preparation. It was our conclusion
after pre-trial preparation, that his testifying would not be in his best interest.
Therefore, Mr. Buysse’s decision not to take the stand was based on prior trial
strategies and tactics.
An extended colloquy at the hearing on defendant’s motion for new trial took place on the
medication issue, the sum and substance of which is that the trial court noted, and defense
counsel agreed, that it had granted defendant’s trial counsel a continuance for her to procure
defendant’s medication (for ADHD), and the trial court later inquired whether defendant was
-22-
receiving his medication, and defense counsel responded affirmatively. The record supports that
that is what took place.
We conclude under these circumstances that the trial court did not abuse its discretion in
denying defendant an evidentiary hearing on this issue, as requested in his motion for new trial.
Cress, supra at 691.
I
Defendant’s next argument is that trial counsel rendered ineffective assistance by failing
to object to and move for a mistrial regarding the prosecutor’s introduction of the photo of
defendant captioned “Parent’s Worst Nightmare,” by failing to object to the DVD covers
discussed above and to the prosecutor’s hijacking of witness examination, and failing by to
object and move for a new trial or adjournment because defendant was in no shape to testify due
to medication problems. Defendant further asserts that by having attorney Greenwood do
closing argument, the defense was put in an untenable position, since Greenwood could not
effectively argue about what happened at trial before he got there. Greenwood missed Mary and
Elise’s testimony, which was the main testimony against defendant. A reasonable jury could not
have taken seriously Greenwood’s arguments, when they knew he had not been at trial to see and
hear that evidence.
Defendant raised this issue in his motion for new trial, the denial of which this Court
reviews for an abuse of discretion. Cress, supra at 691. In support of his motion, defendant
submitted an affidavit, as did defendant’s trial counsel, Jennipher Colthirst. Defendant’s
affidavit stated in pertinent part:
2. During the trial Attorney Colthirst informed me that she felt assistance from
another attorney would be useful. I therefore accepted her recommendation to
have attorney Henry Greenwood join her as cocounsel on the case. Neither
attorney advised me of any dangers that taking this action would expose me to.
***
4. The matter of whether to raise objections or file motions at trial was left to my
attorneys and I played no role in that.
Trial counsel Colthirst’s affidavit stated in pertinent part:
2. I advised Mr. Buysse that the defense team added Mr. Greenwood, for he was
not only an experienced attorney with whom I had numerous prior pre-trial
interactive exchanges of ideas of trial tactics and strategies concerning his case,
but also because he, like Mr. Buysse, had a personal understanding and history of
Adult Attention Deficit Disorder.
3. During the prosecutor’s closing argument, and while I was writing key points
to share with co-counsel to address in his closing, I inadvertently missed the
prosecution’s presentation of what was described to be an enlarged photo of Mr.
Buysse with the caption, “Parent’s Worst Nightmare.” The prosecutor failed to
-23-
announce he would do that, and because I did not notice same, I did not object at
the time of said presentation.
5. Co-Counsel Greenwood and I agreed that he would handle the examination of
the defense expert witnesses as well as the objections arising therefrom.
***
8. I do not have an independent recollection of the prosecutor’s presentation of a
DVD cover from the movie “Poison Ivy II”.
Assuming arguendo that these were errors, we are not convinced that there is a
reasonable probability that, but for these errors, the result of the proceedings would have been
different, nor are we convinced that the resultant proceedings were fundamentally unfair or
unreliable. People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007); People v Odom, 276
Mich App 407, 415; 740 NW2d 557 (2007). Defendant’s ineffective assistance claims fail.
J
Defendant’s final argument is that the trial court acted unconstitutionally by making
findings of fact to raise the sentencing guidelines, not based on a finding by a jury or a
confession by defendant. As defendant concedes, Blakely does not apply to Michigan’s
indeterminate sentencing scheme. People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006).
Defendant’s challenge to his sentences for CSC III fails.
In Docket No. 274748, we reverse the trial court’s order vacating defendant’s CSC I
convictions and reducing them to CSC III, and remand for reinstatement of the convictions and
re-sentencing. Further, we reject defendant’s cross-appeal. We affirm in Docket No. 267469.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Peter D. O’Connell
-24-
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