PEOPLE OF MI V DAVID TODD BENNETT SR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 11, 2008
Plaintiff-Appellee,
v
No. 275854
Calhoun Circuit Court
LC No. 2006-002754-FC
DAVID TODD BENNETT, SR.,
Defendant-Appellant.
Before: Donofrio, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of ten counts of first-degree criminal
sexual conduct, MCL 750.520b(1)(a), (CSC-1). This case arises from allegations that defendant
sexually abused his minor stepdaughter over a period of several years. Because defendant has
not established that his counsel was ineffective at trial, we affirm.
On appeal, defendant raises a number of claims of ineffective assistance of counsel, as
well as asserting that the trial court abused its discretion in denying his motion for a Ginther1
hearing. Because the trial court did not hold an evidentiary hearing or make findings, our review
is limited to errors apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d
342 (2004). We review a trial court’s denial of a motion for a Ginther hearing for an abuse of
discretion. See People v Collins, 239 Mich App 125, 138-139; 607 NW2d 760 (1999).
To sustain a claim of ineffective assistance of counsel, a defendant must prove that trial
counsel’s “performance was deficient” and that deficiency “prejudiced the defense.” Strickland
v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant must
prove that defense counsel’s performance “fell below an objective standard of reasonableness
under prevailing professional norms” to establish deficient performance. Id. at 690-691;
Matuszak, supra at 57-58. And, defendant must also demonstrate that, but for defense counsel’s
performance, the outcome of his trial would have been different. Id. at 58.
First, defendant argues that defense counsel should have moved to suppress defendants’
statements to the police, in which defendant told the police that the victim awakened him by
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-1-
performing fellatio on one occasion. Specifically, defendant asserts that his statements would
have been barred by the corpus delicti rule. “In a criminal prosecution, proof of the corpus
delicti of a crime is required before the prosecution may introduce a defendant’s inculpatory
statements.” People v Schumacher, 276 Mich App 165, 180; 740 NW2d 534 (2007). The
corpus delicti rule prevents the use of a defendant’s confession to convict him of a crime that did
not occur. Id. The corpus delicti rule provides that “a defendant’s confession may not be
admitted unless there is direct or circumstantial evidence independent of the confession
establishing (1) the occurrence of the specific injury . . . and (2) some criminal agency as the
source of the injury.” People v Konrad, 449 Mich 263, 269-270; 536 NW2d 517 (1995).
However, “the corpus delicti rule does not bar admissions of fact that do not amount to a
confession of guilt.” Schumacher, supra at 180-181. A statement constitutes an admission and
not a confession, where a fact admitted does not of itself demonstrate guilt, but needs proof of
other facts, which are not admitted by the defendant, to establish guilt. Id. at 181. Here,
defendant’s statements to the police are not an “acknowledgment of guilt,” but rather an attempt
to excuse his conduct from criminal liability. Defendant’s statements demonstrated guilt of at
least one act of oral sex with an individual less than 13 years of age independent of any other
facts and thus constituted a confession. See Schumacher, supra at 181.
Because defendant’s statements constituted a confession, the trial court properly admitted
the statements at trial. At trial, the prosecution presented the victim as its first witness. She
testified that she performed fellatio on defendant on two occasions at one of the family’s
residences; that she performed fellatio on defendant at the family’s next residence on different
occasions in at least three different rooms; and that defendant digitally penetrated her vagina on
at least five occasions at that residence. She testified that all of those incidents occurred when
she was younger than 13 years of age. MCL 750.520b(1)(a) provides that “[a] person is guilty of
criminal sexual conduct in the first degree if he or she engages in sexual penetration with another
person and . . . [t]hat other person is under 13 years of age.” Sexual penetration includes fellatio.
MCL 750.520a(r). The corpus delicti was established through the victim’s testimony at trial,
that established both a specific injury, fellatio and digital penetration, and defendant’s criminal
act as the source of that injury. People v Hayden, 205 Mich App 412, 414; 522 NW2d 336
(1994). See also People v Lemmon, 456 Mich 625, 632 n 6; 576 NW2d 129 (1998) (A victim’s
uncorroborated testimony is sufficient to convict a defendant of criminal sexual conduct). We,
therefore, reject defendant’s ineffective assistance of counsel argument based on defense
counsel’s failure to move to exclude defendant’s statements to the police by operation of the
corpus delicti rule. A motion in limine to exclude defendant’s statements to the police would
have been pointless, and defense counsel was not required to bring a meritless motion. People v
Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).
Second, defendant contends that defense counsel rendered ineffective assistance of
counsel by failing to seek school, medical, or counseling records of the victim. Defendant
specifically asserts that a Stanaway2 motion was critical to the defense, where the family or a
psychologist could present evidence on the victim’s problems and how these problems created a
conflict between defendant and the victim, and defense counsel could have used this evidence to
2
People v Stanaway, 446 Mich 643, 648-649; 521 NW2d 557 (1994).
-2-
explain why the victim falsely accused defendant. Ultimately, defendant’s argument boils down
to a disagreement over trial strategy, where defendant, with benefit of hindsight, recommends on
appeal a different tactic that defense counsel should have taken at trial. Generally, any decisions
relating to the introduction of evidence constitute trial strategy, and the failure to introduce
evidence constitutes ineffective assistance of counsel only where such an omission denies the
defendant a substantial defense. People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887
(1999). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).
On appeal, defendant casts the victim as a “troubled child,” who has been in counseling
for most of her life, asserting that many times the victim’s behavior was out of control, which led
to conflicts, fights, and physical altercations. Moreover, he states on appeal:
She had trouble in school (as confirmed by the teacher witness). Family
members could testify that [the victim] started counseling at age 3, well before the
sexual abuse allegedly began. There would also be testimony that the
complainant routinely showed aggressive behavior, resulting in, among other
things, the complainant being kicked out of kindergarten. There would be
testimony that the complainant attempted suicide on at least one occasion, that she
craved attention, and that she would always try to one-up everyone to gain that
attention.
However, defendant has not provided any affidavits to support his self-serving assertions.
Moreover, the record does not support defendant’s assertions, and we find that defendant has
stretched a fair reading of the record to make this argument. What effect the admission of the
victim’s counseling, medical, or school records might have had on the jury is entirely
speculative. That the evidence had any probative value to the defense is thus questionable.
Significantly, defendant has not articulated “a good-faith belief, grounded on some demonstrable
fact, that there is a reasonable probability that the records are likely to contain material
information necessary to the defense.” Stanaway, supra at 677. On this record, we reject
defendant’s claim of ineffective assistance of counsel. And, we point out that at trial, defense
counsel cross-examined the victim and her mother regarding the divorce. Defendant presented a
theory that the allegations were false and a result of the divorce. While defendant has issues with
defense counsel’s trial strategy, he has not overcome the strong presumption that counsel’s
actions constituted sound trial strategy. Matuszak, supra at 57-58. And, we will not substitute
our judgment for that of defense counsel in reviewing a claim of ineffective assistance of
counsel. Rockey, supra at 76-77.
Third, defendant argues that defense counsel failed to request a Daubert3 hearing in order
to examine the qualifications of the prosecution’s expert, specifically whether that expert had any
expertise in the area of sexual abuse accommodation in divorce syndrome, and to object to the
3
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993).
-3-
opinion testimony of the prosecution’s expert that that syndrome was junk science. MRE 702,
which provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
The record shows the prosecution’s expert witness was admitted as an expert in the field
of clinical psychology. It is undisputed that sexual abuse accommodation in divorce syndrome is
within the field of clinical psychology. The prosecution’s expert was, therefore, qualified to
render opinions on this subject. People v Whitfield, 425 Mich 116, 122; 388 NW2d 206 (1986)
(a witness is qualified to testify as an expert based on knowledge, skill, experience, training, or
education); see also People v Dobek, 274 Mich App 58, 79; 732 NW2d 546 (2007). While a
given expert’s expertise may not be as great as another testifying expert, such a consideration
goes to the weight of the evidence rather than its admissibility. Whitfield, supra at 123. As a
result, defendant’s claim that counsel was ineffective for failing to move for a Daubert hearing
regarding the qualifications of the prosecution’s expert on sexual abuse accommodation in
divorce syndrome, fails.4 Defense counsel was not required to bring a meritless motion. Riley,
supra at 142. Moreover, the prosecution’s expert could provide an opinion that this “syndrome”
was “junk science” based on his qualifications in the field of clinical psychology. Any objection
on this opinion would likely have been overruled. See Matuszak, supra at 258.
Fourth, defendant contends that defense counsel failed to object to the prosecution’s
personal attack on the defense expert. MRE 611(b) provides, in relevant part, that a “witness
may be cross-examined on any matter relevant to any issue in the case, including credibility.” In
the instant case, the challenged actions, which were not objected to, include questions concerning
the defense expert’s credibility. During the cross-examination of the defense expert, the
prosecution asked questions about his Internet sex advice column, his claims of sexual conquests
in his Internet sex advice column, and his former practice as a professor of keeping office hours
in a local bar. The record demonstrates that defense counsel objected to questions during the
latter two topics. Ultimately, the prosecution’s questions with respect to the defense expert’s
credibility were proper. MRE 611(b). Once again, defense counsel does not render ineffective
assistance of counsel when failing to make objections that are lacking in merit. Matuszak, supra
at 58. Moreover, defendant has not demonstrated that, but for counsel’s conduct, with respect to
the challenged prosecutorial conduct, the outcome of trial would have been different. Id.
4
In any event, here, the otherwise qualified expert acknowledged his awareness of the theory
being advanced and factually stated that it had not been accepted by the professional community.
In essence, the expert provided exactly that which a Daubert hearing seeks to determine--the
acceptability of the theory being advanced.
-4-
Fifth, defendant argues that defense counsel failed to seek a bill of particulars to narrow
down the time frame of the allegations of sexual abuse. Under MCR 6.112(E), the trial court
may, on motion, order the prosecutor to provide a bill of particulars. “Where a preliminary
examination adequately informs a defendant of the charge against him, [however] the need for a
bill of particulars is obviated.” People v Harbour, 76 Mich App 552, 557; 257 NW2d 165
(1977). Defendant was charged with five counts of CSC-1 involving fellatio with a person less
than 13 years of age contrary to MCL 750.520b(1)(a), and five counts of CSC-1 involving digital
penetration of the victim’s vagina with a person less than 13 years of age contrary to MCL
750.520b(1)(a). The prosecution alleged the offenses occurred on or about January 1, 1996, to
April 2, 2002. At the preliminary examination, the victim testified that the sexual abuse began
when she was seven years old, and that there were at least ten instances beginning at that time
until she was 13 years old. She testified that “[i]t was pretty much a daily thing.” But during
cross-examination, she testified:
Well, I guess I can’t really say a daily basis because I mean there were
periods of time where my mom worked days and then nothing happened and—
well, and it wasn’t like an everyday thing. Sometimes nothing would happen and
it was—for a while it was a daily thing.
On this record, we conclude that the prosecution would be unable to pinpoint specific
dates for the offenses. Nevertheless, the prosecution need not so do, because time is not of the
essence or a material element in a criminal sexual conduct prosecution involving a child victim.
Dobek, supra at 82-83. On appeal, defendant couches his argument in terms of an alibi defense,
where defendant was not frequently at home and that he lacked the opportunity to sexually abuse
the victim. However, “an alibi defense does not make time of the essence.” Id. at 83. Even if
defense counsel would have moved for a bill particulars, it appears highly unlikely that the trial
court would have granted such a motion. At the hearing on defendant’s motion for new trial, the
trial court ruled that a bill of particulars would not have “flesh[ed] out anything further” than
what the victim testified to at the preliminary examination. Moreover, defendant’s need for a bill
of particulars was obviated, where the preliminary examination adequately informed him of the
charges against him. Harbour, supra at 557. Defendant’s claim of ineffective assistance of
counsel based on counsel’s failure in not moving for a bill of particulars fails, because defense
counsel was not required to bring a meritless motion. Riley, supra at 142.
Sixth, defendant contends that defense counsel failed to renew her objection to the
testimony regarding a sculpture of an erect penis created by the victim in a fifth grade art class.
This argument has no merit, because the record does not support the assertion. Following the
first day of trial, the prosecution informed the trial court that the victim’s former art teacher
would be testifying regarding that sculpture. Defense counsel argued that that testimony would
be highly prejudicial. The trial court allowed the art teacher to testify, concluding that the
sculpture was probative of sexual abuse, and that its probative value was not outweighed by
unfair prejudice. Defense counsel thereafter renewed her objection before the first witness
testified at trial, on grounds that unfair prejudice outweighed the evidence’s probative value and
that the sculpture, itself, was hearsay. The trial court reaffirmed its relevancy ruling, and
rejected defense counsel’s hearsay argument. On the record, defense counsel clearly objected to
the art teacher’s testimony regarding the sculpture. When the art teacher testified, the trial court
had already rejected defense counsel’s objections. Another objection by defense counsel would
-5-
have unlikely changed the trial court’s ruling. Further, the art teacher’s testimony regarding the
sculpture was properly admitted at trial. The art teacher testified about an incident that she
observed. See MRE 602 (generally, a witness may not testify to matter unless the witness has
personal knowledge thereof). The evidence was probative that the victim was sexually abused,
MRE 401 (“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence”); and, on this record, there was no evidence that the evidence was given
undue or preemptive weight by the jury, or that it would have been inequitable to allow use of
the evidence. People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002). Defense
counsel does not render ineffective assistance of counsel when failing to make objections that are
lacking in merit. Matuszak, supra at 58.
Seventh, defendant argues that defense counsel failed to obtain a movie that influenced
the victim’s decision to disclose the allegations of sexual abuse. Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy that this Court will not review with the benefit of hindsight. People v Dixon, 263 Mich
App 393, 398; 688 NW2d 308 (2004). Defendant seems to contend that defense counsel should
have reviewed the movie to determine if the victim’s testimony was consistent with the “sound
track” of the movie. The substance of the movie was not relevant, but rather, its affect on the
victim was relevant because it influenced her decision to disclose the allegations of sexual abuse.
Further, the movie was one of the reasons that the victim decided to come forward, but it was not
the only reason. The victim testified at trial that she was concerned that defendant may sexually
abuse someone else. Specifically, she feared for the safety of the daughters of defendant’s new
girlfriend. Defendant has not overcome the “strong presumption” that defense counsel’s
performance in not obtaining and using the movie constituted sound trial strategy. Moreover, he
has not shown that defense counsel “fell below an objective standard of reasonableness under
prevailing professional norms” by failing to introduce the aforementioned movie at trial, Riley,
supra at 140; Strickland, supra at 690-691, particularly where the contents of that movie are not
revealed to this Court, and as such, we cannot conclude that its introduction to the jury would
have aided the defense.
We also reject defendant’s argument that he was entitled to a new trial due to cumulative
error. Cumulative error requires reversal only where several minor errors of consequence, when
combined, had the effect of denying defendant a fair trial. People v Cooper, 236 Mich App 643,
659-660; 601 NW2d 409 (1999). In this case, “[t]here are no errors that can aggregate to deny
defendant a fair trial,” and that defendant is not entitled to a new trial. People v Ackerman, 257
Mich App 434, 454; 669 NW2d 818 (2003).
None of defendant’s claims of ineffective assistance of counsel have merit. Additionally,
we conclude that the trial court did not abuse its discretion in denying defendant’s request for a
Ginther hearing. Defendant has not explained why a hearing to develop any of his claims of
ineffective assistance of counsel was necessary. The purpose of a Ginther hearing is to develop
the record. People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973). Defendant
devotes only a cursory portion of his appellate brief to this issue. An appellant may not merely
announce his position and leave it to the appellate court to discover and rationalize the basis for
his claim, nor may he give only cursory treatment of an issue with little or no citation of
supporting authority. People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001).
-6-
Finally, defendant repeatedly asserts on appeal that the trial court erroneously rejected his
foregoing claims of ineffective assistance of counsel when denying his motion for new trial.
This issue was not presented in defendant’s statement of questions presented; thus, this Court
need not review this issue. MCR 7.212(C)(5); People v Miller, 238 Mich App 168, 172; 604
NW2d 781 (1999). Nevertheless, defendant was not entitled to a new trial based on his meritless
claims of ineffective assistance of counsel.
Affirmed.
/s/ Pat M. Donofrio
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
