PEOPLE OF MI V KEITH RUSSELL MOGG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 24, 2009
Plaintiff-Appellee,
v
No. 285636
Livingston Circuit Court
LC No. 07-016851-FH
KEITH RUSSELL MOGG,
Defendant-Appellant.
Before: Borrello, P.J., and Whitbeck and K. F. Kelly, JJ.
PER CURIAM.
Defendant Keith Mogg appeals as of right his jury trial convictions of two counts of
third-degree criminal sexual conduct.1 The trial court sentenced Mogg on each count to 5 to 15
years’ imprisonment with credit for 179 days, with the sentences to run concurrently. We affirm.
I. Basic Facts And Procedural History
Mogg allegedly inappropriately touched the complainant on at least four occasions. The
complainant lived across the street from Mogg, his wife, and their six children, Russell, Shalea,
Christina, Kyle, Gabrielle (Gabby), and William.
On Labor Day weekend in 2006, the complainant joined Mogg, Shalea, and Gabby on a
camping trip. The complainant testified that, on the first night, she slept on an air mattress with
Shalea, and Gabby slept on an air mattress with Mogg. On the second night, Gabby slept on the
air mattress with the complainant, and Shalea slept on the air mattress with Mogg. But the
complainant also testified at one point that Gabby slept with her both nights.
The complainant testified that while she was sleeping on the air mattress, Mogg reached
under her pajamas, beneath her bra and underpants, and touched her skin. The complainant
indicated that Mogg put his hand inside her underwear in the area where she went to the
bathroom. She further specified that Mogg put his hand underneath her underwear on her skin
“in between” where she wiped when she went to the bathroom. She stated that Mogg moved his
1
MCL 750.520d(1)(a) (contact with a person at least 13 and under 16).
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hand up and down. She explained that the touching woke her up. The complainant testified that
Mogg told her to not tell anyone what happened. However, the complainant later testified that
Mogg did not say anything to her in the tent. The complainant also testified at one point that the
inappropriate touching occurred on both nights, not just one.
A second incident occurred when the complainant spent the night at Mogg’s home. The
complainant was sleeping in Gabby and Shalea’s bedroom with Gabby, Shalea, and Christina.
While the complainant was sleeping, Mogg put his hand underneath the complainant’s clothes
and touched her breasts and genitals, moving his hand back and forth. Specifically, the
complainant confirmed that Mogg touched her “in between” the folds of skin where she wiped
when she went to the bathroom. The complainant stressed that even though she wanted to call
her mother to come get her, she did not do so because she was afraid that she would hurt the
other girls’ feelings.
A third incident occurred in the living room of Mogg’s home. The complainant was
sitting on the couch next to Mogg watching television. Shalea, Russell, Christina, and Kyle were
in the living room watching television as well. The complainant testified at trial that it was dark
in the room at the time and there was a blanket on Mogg. Officer Megan Paul with the Hamburg
Township police department, however, stated that the complainant indicated to her that the lights
were on and that there was no blanket. Defense counsel asked the complainant whether she
remembered telling Officer Paul that nobody had blankets on, and the complainant responded
that the children did not have blankets on, but Mogg did. The complainant indicated that Mogg’s
family did not see Mogg touch her because they were “busy watching TV.” But the complainant
also testified that the children kept looking at her while Mogg was touching her, but said nothing
to her about it. When questioned whether there were some times when Mogg said not to tell, the
complainant clarified that he only said not to tell once when they were sitting on the couch
together.
The complainant also testified to another incident where Mogg touched her while the two
of them were sitting on a picnic table in his yard as they watched the other children play soccer.
The complainant recalled that her “mind” finally told her to tell someone, so she disclosed the
events to her aunt and grandparents. The complainant told her mother later the same day. The
following day, the complainant’s mother took the complainant to the police station.
Officer Paul testified that when questioned, Mogg repeatedly denied that he
inappropriately touched the complainant. Mogg also refused to allow Officer Paul to speak to
his children. Officer Paul asserted that, in her opinion, Mogg was nervous during both of the
interviews that she conducted with him. She also stated that Mogg cancelled a third interview
with her. In addition, Mogg initially indicated when he was interviewed that the mattresses were
side by side in the tent, but he later indicated that he slept on the other side of the tent and that
Gabby and Shalea both slept with the complainant. When interviewed, Mogg additionally stated
that the complainant would tend to sit next to him on the couch and that she would end up
getting “smooshed toward him” because all the kids were sitting on the couch together. Mogg
testified at trial that he was innocent.
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II. Sufficiency Of The Evidence
A. Standard Of Review
Mogg argues that the complainant’s testimony was not credible because she contradicted
herself on many occasions and her account of the events was not believable. Therefore, Mogg
argues, there was insufficient evidence to support the verdict. In reviewing the sufficiency of the
evidence, we view the evidence de novo in a light most favorable to the prosecution to determine
whether a rational trier of fact could find that the essential elements of the crime were proved
beyond a reasonable doubt.2
B. Analysis
“Circumstantial evidence and reasonable inferences arising therefrom may be sufficient
to prove the elements of the crime.”3 We do not make credibility determinations when reviewing
the sufficiency of the evidence.4 In reviewing the sufficiency of the evidence, we are mindful
that the fact-finder had the special opportunity to assess the credibility of witnesses.5
Based on the evidence, as well as all reasonable inferences drawn therefrom, viewed in
the light most favorable to the prosecution, we conclude that there was sufficient evidence for a
rational trier of fact to find that the essential elements of the crimes were proven beyond a
reasonable doubt.
MCL 750.520d provides that “[a] person is guilty of criminal sexual conduct in the third
degree if the person engages in sexual penetration with another person and . . . [t]hat other person
is at least 13 years of age and under 16 years of age.” Mogg does not challenge on appeal the
jury’s finding that the complainant was 13, 14, or 15 at the time of the alleged acts.
As outlined above, the complainant went on a camping trip with Mogg and his two
daughters. The complainant testified that while she was sleeping on the air mattress, Mogg
reached under her pajamas, beneath her bra and underwear, and touched her skin. Mogg put his
hand inside her underwear on her skin “in between” where she wiped when she went to the
bathroom. Mogg moved his hand up and down. The complainant also testified that on one
occasion when she spent the night at Mogg’s home in his daughters’ bedroom, Mogg again put
his hand underneath her clothes and touched her breasts and genitals moving his hand back and
forth. The complainant, again, stated that Mogg touched her in between the folds of her skin
where she wiped when she went to the bathroom.
2
People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994).
3
People v Plummer, 229 Mich App 293, 299; 581 NW2d 753 (1998).
4
People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999).
5
People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992).
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“Sexual penetration” is defined as “any . . . intrusion, however slight, of any part of a
person’s body . . . into the genital . . . opening[] of another person’s body . . . .”6 And the
complainant’s testimony alone can be sufficient evidence to support a conviction.7 Therefore,
based on the foregoing testimony of the complainant and viewing the evidence in a light most
favorable to the prosecution, we conclude that there was sufficient evidence for a reasonable jury
to clearly find beyond a reasonable doubt that Mogg penetrated the complainant’s genital
opening with his hand during the camping trip and in Mogg’s daughters’ bedroom.
III. Verdict Against The Great Weight Of The Evidence
A. Standard Of Review
Mogg argues that the verdict was against the great weight of the evidence because the
complainant’s testimony was not credible, as she contradicted herself on many occasions and her
account of the events was not believable. Mogg did not move for a new trial; therefore, his claim
that the verdict is against the great weight of the evidence is not preserved for appellate review.8
And because Mogg failed to preserve the issue, we review his claim for plain error affecting his
substantial rights.9
B. Analysis
The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.10 Determining whether a verdict is against the great
weight of the evidence requires review of the whole body of proofs.11 In general, conflicting
testimony or a question of credibility of a witness is an insufficient ground for granting a new
trial.12 Credibility determinations are to be resolved by the trier of fact, not this Court, and
should be removed from the jury only if testimony contradicts indisputable physical facts or
laws, if testimony is patently incredible or defies physical reality, if a material witness’s
testimony is inherently implausible such that it cannot be believed, or if a witness is seriously
impeached.13 None of these considerations is at issue in this case. While there was conflicting
6
MCL 750.250a(r).
7
MCL 750.520h.
8
People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003).
9
Id.
10
People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).
11
People v Herbert, 444 Mich 466, 475-477; 511 NW2d 654 (1993), overruled in part on other
gds in People v Lemmon, 456 Mich 625; 576 NW2d 129 (1998).
12
Lemmon, supra at 643.
13
Id. at 643-644.
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testimony, this is not a ground for a new trial, and the jury was properly left to resolve the
credibility determinations.14
IV. Burden Of Proof
A. Standard Of Review
Mogg argues that the prosecutor suggested during closing arguments that Mogg’s
daughters did not testify because their testimony would support the complainant’s testimony. In
doing so, Mogg argues, the prosecutor improperly shifted the burden of proof to the defense,
which denied Mogg a fair trial. We review Mogg’s unpreserved claim for plain error that
affected his substantial rights.15 Issues of prosecutorial misconduct are reviewed “on a case-bycase basis by examining the record and evaluating the remarks in context[.]”16
B. Analysis
A prosecutor’s argument commenting on a defendant’s failure to call a witness does not
shift the burden of proof as long as the comment does not impinge on the defendant’s right not to
testify.17 It is not improper for a prosecutor to comment on defense counsel’s failure to produce
evidence on a part of the defense upon which a defendant seeks to rely.18
[W]here a defendant testifies at trial or advances, either explicitly or implicitly, an
alternate theory of the case that, if true, would exonerate the defendant, comment
on the validity of the alternate theory cannot be said to shift the burden of proving
innocence to the defendant. Although a defendant has no burden to produce any
evidence, once the defendant advances evidence or a theory, argument on the
inferences created does not shift the burden of proof.[19]
The prosecutor’s comment was responsive to Mogg’s theory of the case that the
inappropriate touching did not occur and that the other children who were present in the room
when the alleged inappropriate touching occurred did not see anything. The prosecutor’s
comment on lack of evidence supporting Mogg’s theory of the case was not improper.20 And the
comment also did not impinge upon Mogg’s right to testify. Therefore, the prosecutor’s
comment regarding the lack of witnesses called to corroborate Mogg’s theory did not shift the
14
Id.
15
People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).
16
People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
17
People v Fields, 450 Mich 94, 112; 538 NW2d 356 (1995).
18
Id. at 111 n 21.
19
Id. at 115.
20
Id.
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burden of proof.21 In addition, prosecutors are accorded great latitude regarding their arguments
and conduct during trial.22 A prosecutor is “‘free to argue the evidence and all reasonable
inferences from the evidence[.]’”23 Because the prosecutor’s comment during closing arguments
was not improper, there was no plain error. Further, any prejudice flowing from the prosecutor’s
remark was mitigated by the jury instructions.24
V. Vouching For Witness Credibility
A. Standard Of Review
Mogg argues that it is legal error for a witness to comment or provide an opinion on the
credibility of another witnesses since matters of credibility are to be determined by the trier of
fact. Therefore, Mogg argues, Elizabeth Stahl, a forensic interviewer, improperly offered her
opinion that she was not concerned that the complainant had been coached. We review a trial
court’s decision to admit or exclude evidence for an abuse of discretion.25
B. Analysis
A witness may not comment or provide an opinion regarding the credibility of another
witness because matters of credibility are to be determined by the jury.26 Further, in People v
Peterson,27 the Michigan Supreme Court indicated: “(1) an expert may not testify that sexual
abuse occurred, (2) an expert may not vouch for the veracity of the complainant, and (3) an
expert may not testify regarding whether the defendant is guilty.”
Elizabeth Stahl was a forensic interviewer who received her master’s degree in social
work and received forensic interview training through Livingston County and the state of
Michigan. Stahl subsequently conducted a forensic interview with the complainant regarding the
allegations. During direct examination by the prosecutor, Stahl offered no description of the
substance of the statements made by the complainant. On cross-examination, defense counsel
asked Stahl about the substance of the complainant’s statements. On redirect, the prosecutor
focused on Stahl’s experience and observations in general. During recross-examination,
however, defense counsel asked whether Stahl considered a hypothesis that the complainant was
coached. The testimony included:
21
Id. at 112.
22
People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659 (1995).
23
Id., quoting People v Gonzalez, 178 Mich App 526, 535; 444 NW2d 228 (1989).
24
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).
25
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
26
People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985).
27
People v Peterson, 450 Mich 349, 352; 537 NW2d 857, amended 450 Mich 1212 (1995).
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Q. . . . And isn’t it true that some kids don’t tell the truth?
A. Yeah, everybody lies.
Q. And isn’t it true that sometimes someone else may give a child an idea and
they may actually believe it?
A. And—and often times we—we need to look at the—you know, the hypothesis
of coaching and children lying. However, in looking at children who report
sexual abuse the statistics show that that is very rare for children to make
something up like this. Often child—and then to go into the coaching, when a
child is coached typically it’s very difficult for that child to relay detailed
information about assault when there’s been coaching.
Q. Okay. So that might also be an explanation or a hypothesis why someone’s
time frames may be off, or descriptions or details may be off? That could be a
hypothesis for that couldn’t it?
A. It could be a hypothesis.
On redirect examination, the prosecutor asked:
Q. Let me ask you this. In this case did you during the course of your forensic
interview make an evaluation as to whether there was any coaching that took
place? I’m not asking what the answer is.
A. I mean, like I said, there’s always the hypothesis and things that we look at,
but I don’t think that concern was—
Defense counsel objected, arguing that a foundation for the question was not laid and the answer
called for details about the specific case. The trial court overruled the objection. And the
prosecutor then asked:
Q. Did you make evaluation in this case as to whether you had concerns about
coaching?
A. Like I said, I think it’s always part of the hypothesis base, but I didn’t—no
concerns were risen at further—you know, in the interview process.
Q. All right.
A. That was not a concern.
Defense counsel subsequently inquired:
Q. Did you talk to the mother in this matter—
A. Yes.
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Q. —about the incidences in this case?
A. We do—as I said, prior to the interview we do talk with the—a parent or
guardian in order to kind of gather a little history, as well as to, you know,
make sure that the parent is fully aware of the information. And through that
process we do get information regarding the allegations.
Q. Did you ask the mother how many times she had questioned her daughter
about this case?
A. We typically go through kind of when they made the disclosure and kind of
information of that nature.
Q. What was the mother’s answer then?
A. I don’t remember her exact answers.
Q. Would you utilize that information in determining whether someone was
coached?
A. Certainly. That’s always a part of—you know, as I said if concerns arise
definitely look into that more.
The prosecutor’s question—“did you during the course of your forensic interview make
an evaluation as to whether there was any coaching that took place?”—did not request that Stahl
specifically comment on whether her evaluation showed the complainant was coached; it only
asked whether such an evaluation took place. After Stahl answered the prosecutor’s question as
rephrased following the objection, defense counsel could have objected, again, and asked that the
portion of Stahl’s answer, which mentioned that no concerns regarding coaching arose, be
stricken from the jury’s consideration. Defense counsel, however, did not object, even though an
instruction to the jury could have cured any error.28 Defense counsel instead chose to continue to
question Stahl on the subject on recross-examination and imply that the complainant could have
been coached if her mother repeatedly questioned the complainant about the incident.
Stahl did not comment on the credibility of the complainant or vouch for the veracity of
the complainant simply by stating that she had no concerns regarding coaching. A complainant
does not need to be coached in order to make untruthful assertions. Thus, by stating that no
concerns regarding coaching arose, Stahl was not testifying that the complainant was credible or
that the complainant was testifying truthfully; Stahl was merely commenting that no concerns
regarding coaching arose in her evaluation. Based on the foregoing, the trial court did not abuse
its discretion, because the question did not request an opinion from the witness regarding
whether coaching took place, and Stahl did not testify that the complainant was credible or that
the complainant was testifying truthfully.
28
See Abraham, supra at 279.
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VI. Sentencing
Mogg argues that due process requires resentencing because the trial court enhanced
Mogg’s sentence based on facts neither admitted by Mogg nor proven to a jury beyond a
reasonable doubt in violation of the rule of law set forth in Blakely v Washington.29 The
Michigan Supreme Court has determined that Blakely does not affect Michigan’s sentencing
scheme and has upheld Michigan’s sentencing guideline scheme in People v Drohan.30 Thus,
due process does not require resentencing.31
VII. Reimbursement Of Court-Appointed Attorney Fees
Mogg argues that the trial court should vacate its order that he pay for the cost of his
court-appointed attorney because the trial court made no inquiry into his present or future ability
to pay such fee. In support of his argument, Mogg relies in People v Dunbar,32 which held that,
before imposing a fee for a court-appointed attorney, a trial court must make a presentence
articulation of its conclusion that the defendant has a foreseeable ability to pay the fee.
However, the Michigan Supreme Court recently overruled Dunbar in part and held that the
question of ability to pay arises not at sentencing, but only when enforcement of the
reimbursement order begins.33 In this case, Mogg provides no indication that enforcement of the
provision in his judgment of sentence requiring reimbursement of attorney fees has begun.
Therefore, we conclude that the reimbursement order is valid on its face and that no remand to
assess Mogg’s ability to pay is required.
We affirm.
/s/ Stephen L. Borrello
/s/ William C. Whitbeck
/s/ Kirsten Frank Kelly
29
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
30
People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006).
31
Id.
32
People v Dunbar, 264 Mich App 240, 254-255; 690 NW2d 476 (2004).
33
People v Jackson, 483 Mich 271, 275; 769 NW2d 630 (2009).
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