PEOPLE OF MI V BRIAN EDWARD RIDER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 17, 2009
Plaintiff-Appellee,
v
No. 281525
Allegan Circuit Court
LC No. 07-015114-FH
BRIAN EDWARD RIDER,
Defendant-Appellant.
Before: Jansen, P.J., and Borrello and Stephens, JJ.
PER CURIAM.
Defendant appeals as of right his conviction for second-degree criminal sexual conduct
(CSC II), MCL 750.520c(1)(b), and corresponding sentence of 14 months to 15 years’
imprisonment. For the reasons set forth in this opinion, we affirm the conviction and sentence of
defendant.
The victim in this case lived with her adoptive parents, defendant and his spouse, Susan
Rider along with seven adopted siblings. Defendant and his wife had been foster parents for 20
years, adopted eight special needs children, and were awarded for their service as foster parents
of the in year in 2001. The victim was adopted at the age of three and was fifteen by the time of
trial. According to the victim, while she was living with her adoptive parents, incidents of
touching by defendant occurred in her bedroom and near the dining room table beginning when
she was 12 and continuing until she was removed from the home at the age of 13. One of her
sisters1 who suffered from a serious heart condition, often shared a bedroom with the victim.
While the sister was on a trip in Peru, she made statements to friends that she “had been hurt” by
defendant but did not give specific allegations at that time. Following the accusations made by
her sister in Peru, the victim was brought in for an interview at Safe Harbor, and defendant was
taken in to interview with police officers. The victim was initially reluctant to state that any
improper touching had occurred. Toward the end of the interview, the victim referred to a “bad
touch” by stating: “I think it did happen once.” At trial, the victim testified that defendant made
her touch his penis, she testified about an incident that occurred in the dining room where
defendant allegedly laid next to her on the floor near the dining room table and touched her
1
The record reflects that the sister had a heart transplant but died prior to this trial.
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vaginal area, as well as incidents that occurred in her bedroom where defendant touched her
breasts.
Defendant denied that any improper touching had occurred. However, Detective Morgan
Sullivan testified that during the interview, defendant made statements that led the detective to
believe that he needed to protect the children from defendant. Sullivan also testified that when
he confronted defendant that someone was lying, defendant indicated that he [defendant] was
lying. Defendant denied ever making such statements, but did concede that if statements were
made regarding protection of his family, those statements were made in an attempt to “protect
my children from being interrogated and the family being ripped apart by [Department of Human
Services].” Defendant denied as false all accusations of sexual misconduct.
After making the allegations of sexual misconduct, the victim then recanted them on
several instances and in many forms. She wrote four letters specifically recanting her
allegations, and several of defendant’s friends from church testified that the victim told them she
was lying when she made the allegations about defendant. The jury convicted defendant of
second-degree criminal sexual conduct, MCL 750520c(1)(b) and was sentenced to 14 months to
15 years’ imprisonment.
Defendant’s first argument on appeal is that the trial court abused its discretion in
excluding testimony of defendant’s expert, Cory Volpi, on Reactive Attachment Disorder
(RAD).2 We review the trial court’s decision for an abuse of discretion. People v Unger, 278
Mich App 210; 216; 749 NW2d 272 (2008). The trial court abuses its discretion when it selects
an outcome that falls outside the range of reasonable and principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A preserved nonconstitutional error, such
as an evidentiary error,3 does not require reversal “‘unless after an examination of the entire
2
RAD is described as follows:
The essential feature of [RAD] is markedly disturbed and developmentally
inappropriate social relatedness in most contexts that begin before age 5 years and
is associated with grossly pathological case (Criterion A). There are two types of
presentations. In the Inhibited Type, the child persistently fails to initiate and to
respond to most social interactions in a developmentally appropriate way. The
child shows a pattern of excessively inhibited, hypervigilant, or highly ambivalent
responses (e.g., frozen watchfulness, resistant to comfort, or a mixture of
approach and avoidance) (Criterion A1). In the Disinhibited Type, there is a
pattern of diffuse attachments. The child exhibits indiscriminate sociability or a
lack of selectivity in the choice of attachment figures (Criterion A2). The
disturbance is not accounted for solely by developmental delay (e.g., as in Mental
Retardation) and does not meet criteria for Pervasive Developmental Disorder
(Criterion B). [American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (Washington, D.C.: American
Psychiatric Association, Fourth Edition, 1994), § 313.89, 116.]
3
Evidentiary error constitutes nonconstitutional error. People v Herndon, 246 Mich App 371,
(continued…)
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cause, it shall affirmatively appear that it is more probable than not that the error was outcome
determinative.’” People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001), lv den 465
Mich 934 (2001), quoting People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999). “[I]f
[the] inquiry requires interpretation of the Michigan Rules of Evidence, an issue of law is
presented, which this Court reviews de novo.” People v Dobek, 274 Mich App 58, 93; 732
NW2d 546 (2007), lv den 480 Mich 897 (2007). The admissibility of expert testimony is
governed by 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.
Volpi testified that symptoms of RAD include hoarding and stealing food, crazy lying,
indiscriminate bonding with strangers, poor eye contact, destructiveness, a high tolerance to pain,
a lack of empathy or remorse, lying, distrust of one’s caregiver, and a tendency to sabotage a
relationship in order to avoid feeling vulnerable. After performing a psychological evaluation on
the victim, including reviewing her records and administering the Milan Adolescent Personality
Inventory (MAPI) test and the Adolescent Psychopathology Scale (APS) test, Volpi concluded
that the victim had RAD. According to Volpi, the victim exhibited poor eye contact, detached
emotional disposition, low self-esteem, dependency, emotional vacillations, an inability to
regulate her emotional controls, and indiscriminate bonding. Defendant argued that Volpi’s
testimony was admissible because it would help the jury assess the victim’s credibility in that she
was diagnosed with RAD and symptoms of the disorder include lying and deceptiveness. The
trial court excluded the testimony, finding that although Volpi was qualified as an expert, the
testimony would not assist the jury to understand the evidence or determine a fact in issue and
would confuse or mislead the jury. The court also found that any probative value of Volpi’s
opinion testimony was outweighed by the danger of unfair prejudice. Finally, the court found
that Volpi’s opinion testimony would “usurp” the jury’s role of assessing witness credibility.
“Expert testimony is relevant and therefore admissible if it “assist[s] the trier of fact to
understand the evidence or to determine a fact in issue . . . .” People v Beckley, 434 Mich 691,
713-714; 456 NW2d 391 (1990); MRE 401. Even if the trial court determines that the expert’s
testimony is properly admissible under MRE 702, the trial court may nonetheless exclude the
testimony if it determines that the testimony would not assist the jury in understanding the
evidence or determining a fact in issue. Dobek, supra at 96. The trial court may exclude the
testimony if it finds that the testimony would confuse or mislead the jury or its probative value
would be substantially outweighed by the danger of unfair prejudice. MRE 403; People v
Peterson, 450 Mich 349, 375; 537 NW2d 857 (1995), mod 450 Mich 1212 (1995); Dobek, supra
at 96-97. Defendant, as the proponent of the evidence, bears the burden in establishing
(…continued)
402 n 71; 633 NW2d 376 (2001), lv den 465 Mich 970 (2002).
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admissibility under MRE 702. Gilbert v DailmerChrysler Corp, 470 Mich 749, 789; 685 NW2d
391 (2004). Expert testimony is unhelpful where it is unreliable or irrelevant. Id. at 790.
Although defendant argues that Volpi’s testimony was necessary to provide “the whole
picture” and was relevant to the victim’s credibility, we conclude that Volpi’s testimony “comes
dangerously close to constituting testimony” opining that the victim was a liar. Dobek, supra at
100. Our thorough review of the proffered expert testimony leads us to the conclusion that the
basis of Volpi’s testimony would be to assert at trial that the victim was medically diagnosed as a
liar based on her diagnosis with RAD and its associated symptomatology. The record supports
this conclusion when examining defendant’s proffered reason for admission of Volpi’s
testimony:
[I]t appears that [the victim] has some concept of comfort or she feels that she’s
most at home with that conflict, and she can create that conflict so that she doesn’t
have to become attached to the individuals. In this case I would submit that the
statements were made because of that condition. Now certainly no one can testify
to that, that’s for the trier of fact to decide. . . . The only thing that he can testify
to is that after following [sic] the proper techniques and tests, he diagnosed her
with Reactive Attachment Disorder and some of the symptoms that are consistent
in that disorder are the lying and the deceptiveness . . . .
Thus defendant was providing Volpi’s testimony to argue that the victim was medically
diagnosed as a liar. Contrary to defendant’s assertions that issues of credibility are left to the
jury, we concur with the trial court’s conclusions that Volpi’s testimony came dangerously close
to commenting on the victim’s veracity. In Dobek this Court prohibited such evidence when we
stated: “It is generally improper for a witness to comment or provide an opinion on the
credibility of another witness because credibility matters are to be determined by the jury. An
expert may not vouch for the veracity of a victim.” Id. at 71. (internal citations omitted). Based
on our finding that Volpi’s testimony was offered to prove that the victim testified in conformity
with her diagnosed psychological illness, a major symptom of which is lying, we concur with the
trial court’s findings that the proffered testimony should have been omitted. Accordingly, we
cannot conclude that the trial court abused its discretion by striking the proffered testimony from
trial.
We also reject defendant’s argument that Volpi’s proffered testimony is similar to expert
testimony in sexual abuse cases regarding the common behavior of victims of sexual abuse. In
Peterson, supra at 352-353, our Supreme Court ruled that:
(1) an expert may testify in the prosecution’s case in chief regarding typical and
relevant symptoms of child sexual abuse for the sole purpose of explaining a
victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with that of an actual abuse victim, and (2) an expert may testify with
regard to the consistencies between the behavior of the particular victim and other
victims of child sexual abuse to rebut an attack on the victim’s credibility.
Here, the record reflects that, while Volpi’s test results and some of the victim’s behavior
indicated that she had RAD, Volpi’s testimony would not merely compare the victim’s known
behavior to the behavior of other children with RAD (i.e., making false accusations). Rather,
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Volpi’s testimony would focus on the victim’s test results. Moreover, there was no evidence that
the victim exhibited symptoms of RAD or lying before the allegations involved in this case arose
or throughout her childhood. Further, defendant also fails to establish how the victim’s
indiscriminate bonding, poor eye contact, low self esteem, lack of remorse, or detached
emotional condition are relevant to the determination of the victim’s credibility regarding her
allegations on whether defendant touched the victim in a sexual manner. Gilbert, supra at 789.
On this record, Volpi’s proffered testimony was of little value in assisting the jury. The trial
court did not abuse its discretion in finding that the evidence ran the risk of confusing or
misleading the jury, or that any probative value of the evidence was substantially outweighed by
the danger of unfair prejudice. MRE 403; Dobek, supra at 96-97.
We further reject defendant’s assertion that the trial court’s exclusion of Volpi’s
testimony violated defendant’s rights under the Confrontation Clause, as well as defendant’s
reliance on Boggs v Collins, 226 F3d 728 (CA 6, 2000), to support his position. Even where a
defendant asserts that credibility issues are crucial to his case, the Confrontation Clause does not
require that all evidence on credibility must be admitted. Id. at 740. Rather, “the Sixth
Amendment only compels cross-examination if that examination aims to reveal the motive, bias
or prejudice of a witness/accuser.” Id. Volpi could not explain why the victim would need to
make a false accusation in order to feel safe, or why she would wait until she was a teenager to
engage in this type of distancing tactic despite the fact that she had lived with defendant and his
family since she was seven months old. Further, Volpi had no knowledge whether the victim
made false accusations in the past. Our review of the record reveals that his testimony discloses
no indication that the victim had a motive, bias or prejudice against defendant as a result of
RAD. Id. at 740. Under these circumstances, defendant’s Confrontation Clause rights were not
violated by the exclusion of Volpi’s proffered testimony. Id. at 736-838.
Next, defendant argues that the trial court abused its discretion in admitting other-acts
evidence pertaining to both the victim and her sister. We review the trial court’s decision to
admit evidence pursuant to MRE 404(b) for an abuse of discretion. People v Crawford, 458
Mich 376, 383; 582 NW2d 785 (1998).
Pursuant to MRE 404(b)(1), evidence of prior bad acts is inadmissible to prove a
defendant’s bad character. However, it may 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 the case. [MRE 404(b)(1).]
Bad-acts evidence is admissible pursuant to MRE 404(b) where it is (1) offered for a
proper purpose; (2) relevant, and (3) the probative value is not substantially outweighed by the
potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004).
The trial court did not abuse its discretion when it admitted evidence of other acts of
sexual contact between the victim and defendant. The court correctly concluded that the
evidence was admissible where defendant and the victim lived in the same household and where,
without the evidence, the victim’s testimony would have seemed incredible. People v
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DerMartzex, 390 Mich 410, 413-414; 213 NW2d 97 (1973); People v Sabin, 223 Mich App 530,
533; 566 NW2d 677 (1997), rev'd on other gds 463 Mich 43 (2000).
In addition, other-acts evidence and the charged act bore sufficient similarities to justify
admission to establish a common scheme or plan and intent. “[E]vidence of similar misconduct
is logically relevant to show that the charged act occurred where the uncharged misconduct and
the charged offense are sufficiently similar to support an inference that they are manifestations of
a common plan, scheme, or system.” People v Sabin (After Remand), 463 Mich 43, 63-64; 614
NW2d 888 (2000). The charged conduct consists of defendant entering the victim’s bedroom
while she slept, reaching under her pajama top and fondling her breasts. There are two
uncharged other acts. The first act consists of defendant approaching the victim while she slept
and then making her touch his penis. The second uncharged act consists of defendant
approaching the victim while she slept, reaching under her clothing, and fondling her breast and
vagina. All three acts share the commonality of defendant approaching the victim while she
slept and awakening the victim to engage in sexual touchings. These commonalities establish
sufficient similarity between the charged act and the other acts to demonstrate that the charged
offense occurred because the uncharged acts were “sufficiently similar to support an inference
that they are manifestations of a common plan, scheme or system.” Sabin (After Remand), supra
at 63-64. In other words, the other-acts evidence circumstantially shows that defendant
committed the charged act in the same manner as the other acts. In addition, because there was
sufficient similarity to demonstrate common scheme or plan, there was sufficient similarity to
demonstrate intent. Id. at 65-66. Admitting the other-acts evidence indicating that defendant
touched the victim intentionally on her intimate parts on prior occasions was relevant to
demonstrating that the charged offense also involved an intentional touching that could
reasonably be construed as having a sexual purpose. For this reason, the trial court did not abuse
its discretion when it admitted the other-acts evidence.
With respect to admission of the other-acts evidence relating to the victim’s sister, the
record reflects that the prosecutor and defendant stipulated to the admission of this evidence
during the May 16, 2007 motion hearing in exchange for the prosecution’s stipulation to the
admission of several recantation letters. Defendant may not waive objection to an issue before
the trial court and then raise it as an error on appeal. People v Carter, 462 Mich 206, 214; 612
NW2d 144 (2000); People v Fetterley, 229 Mich App 511, 518-519; 583 NW2d 199 (1998).
Defendant also argues the prosecution presented no evidence from which the jury could
find beyond a reasonable doubt that defendant intentionally touched the victim’s breast for a
sexual purpose.
We view the evidence in the light most favorable to the prosecution, to determine
whether any rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 514-516; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). “Sexual contact” is defined as “the intentional touching of the
victim’s or actor’s intimate parts or the intentional touching of the clothing covering the
immediate area of the victim’s or actor’s intimate parts, if that intentional touching can
reasonably be construed as being for the purpose of sexual arousal or gratification, done for a
sexual purpose . . . .” MCL 750.520a(q).
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Viewing the evidence in the light most favorable to the prosecution, the evidence
demonstrates that defendant not only touched the victim’s breasts underneath her pajama top, but
also that he “felt around,” and later asked her whether she minded that defendant got “fresh”
with her; this indicates that the touch was not merely an accident, and that a touch done in this
manner was for an inappropriate sexual purpose. In addition, other-acts evidence demonstrated
that defendant engaged in similar behavior on prior occasions with the victim and her sister.
This other-acts evidence constitutes further evidence of the intentional and sexual nature of the
touching at issue. On this record, we conclude that there was sufficient evidence presented to
enable the jury to find, beyond a reasonable doubt, that defendant intentionally touched the
victim, and that this touching was done for a sexual purpose. People v Piper, 2236 Mich App
642, 647; 567 NW2d 483 (1997). To the extent that defendant focuses on inconsistencies and
conflicts in the testimony, we note that the determination regarding which witnesses were more
credible and how much weight to give their testimony is the responsibility of the jury, Wolfe,
supra at 514-516, and we decline defendant’s invitation to reassess these weight and credibility
determinations.
Defendant further claims that the trial court impermissibly considered his refusal to admit
guilt when the court fashioned defendant’s sentence. The record refutes defendant’s assertion.
In determining whether the trial court improperly considered defendant’s failure to admit
guilt, we must focus on the following factors: “(1) the defendant’s maintenance of innocence
after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the
appearance that had the defendant affirmatively admitted guilt, his sentence would not have been
so severe.” People v Wesley, 428 Mich 708, 713; 411 NW2d 159 (1987). “[I]f there is an
indication of the three factors, then the sentence was likely to have been improperly influenced
by the defendant’s persistence in his innocence. If, however, the record shows that the court did
no more than address the factor of remorsefulness as it bore upon defendant’s rehabilitation, then
the court’s reference to a defendant’s persistent claim of innocence will not amount to error
requiring reversal.” Id.
Although defendant continued to maintain his innocence after his conviction, our review
of the record reveals that the trial court did not ask defendant to admit guilt or indicate that
defendant would receive a lighter punishment if he admitted guilt. Further, there was also no
implied suggestion by the court that defendant would receive a lighter sentence if he admitted
guilt, unlike in People v Conley, 270 Mich App 301, 314-315; 715 NW2d 377 (2006). The trial
court’s concern related to defendant’s rehabilitative potential and was supported by defendant’s
lack of remorse and failure to take any responsibility for his actions, as reflected by his decision
to shift blame to the prosecution, the Department of Human Services, and the victim. On this
record, the trial court did not impermissibly consider defendant’s failure to admit guilt in
fashioning his sentence.
Lastly, defendant raises several claims of unpreserved prosecutorial misconduct. We
review defendant’s unpreserved claims for plain error that affected the outcome of the
proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People v
Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). A defendant is entitled to a new trial
where prosecutorial misconduct deprives the defendant of a fair trial. People v Goodin, 257
Mich App 425, 432; 668 NW2d 392 (2003).
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First, defendant claims that the prosecutor violated discovery by failing to provide copies
of the statements made by defendant’s other children during interviews conducted by Safe
Harbor. Our review of the record fails to disclose that these other children were in fact
interviewed at Safe Harbor, or that defense counsel made a request for any statements of these
children. Further, none of the children testified at trial and, therefore, any statements they may
have made were not subject to the parties’ stipulated discovery order. Under these
circumstances, defendant has failed to show that the actions of the prosecutor deprived him of a
fair trial. Goodin, supra at 432.
Second, defendant further argues that Officer Sullivan gave perjured testimony and the
prosecutor failed to correct his testimony, even though the prosecutor knew it was false. A
prosecutor may not knowingly present false testimony to the jury, and a new trial is warranted
where there is a reasonable probability that false testimony affected the jury’s verdict. People v
Canter, 197 Mich App 550, 558; 496 NW2d 336 (1992).
There is no support in the record that would lead us to conclude that Sullivan testified
falsely regarding content of the DVD recording of his interview with defendant. The record
reflects that the DVD only contained the first 1-1/2 hours of the three-hour interview because of
a technical error with the recording equipment. The equipment was new, and Sullivan was both
unfamiliar with its operation, and unaware that the last 1-1/2 hours of the interview was not
being recorded because the DVD had reached its capacity. Further, there is absolutely no record
evidence to support defendant’s contention that Sullivan tampered with the DVD.
In addition, after thoroughly reviewing Sullivan’s and defendant’s testimony, we find no
record support for the conclusion that Sullivan testified falsely regarding the contents of the
interview with defendant. At most, the record reflects that Sullivan’s recollection and
interpretation of defendant’s answers and behavior during the interview differed from
defendant’s own recollection and interpretation. Such honest differences do not sustain
defendant’s argument.
In light of the foregoing, because defendant failed to demonstrate that Sullivan gave false
testimony, he has failed to establish the factual predicate for his claim of prosecutorial
misconduct.
Third, defendant also claims the prosecutor advanced improper arguments regarding
Sullivan’s qualifications and testimony.
We find that the prosecutor did not mislead the jury by describing Sullivan as trained in
interrogation techniques, because Sullivan so testified. People v Stanaway, 446 Mich 643, 686;
521 NW2d 557 (1994). Further, the prosecution’s argument merely asserted that Sullivan’s
testimony was credible based on his training as an interrogator, and that defendant’s testimony
was not credible in light of Sullivan’s testimony concerning statements defendant made during
his interview by Sullivan. The prosecution is free to argue that a witness is worthy or unworthy
of belief based on the evidence. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631
(2004). The prosecution’s arguments that the jury would have to assess both defendant’s and
Sullivan’s testimony in light of Sullivan’s training in interrogation was properly based on the
evidence and did not amount to misconduct. Id. In addition, the trial court instructed the jury
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that the attorney’s statements were not evidence, which was sufficient to cure any error. People
v Taylor, 275 Mich App 177, 185; 737 NW2d 790 (2007).
Because defendant’s claims of prosecutorial misconduct fail, we deny his request for a
remand pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Affirmed.
/s/ Kathleen Jansen
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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