PEOPLE OF MI V JAMIE ANDREW VANKLAVEREN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 2, 2010
Plaintiff-Appellee,
v
No. 286683
Kent Circuit Court
LC Nos. 06-012651-FH;
07-003353-FC;
07-003354-FC;
07-003355-FH;
07-003356-FC;
07-003366-FH;
07-004431-FH;
07-004432-FC
JAMIE ANDREW VANKLAVEREN,
Defendant-Appellant.
Before: Stephens, P.J., and Gleicher and M.J. Kelly, JJ.
PER CURIAM.
In these consolidated cases, defendant appeals as of right his 16 convictions following a
jury trial. Defendant was convicted of and sentenced for several counts of criminal sexual
conduct in the first (CSC-1), second (CSC-2), third (CSC-3), and fourth degrees (CSC-4),1 after
engaging in various sexual acts with eight boys over a four-year period. We affirm.
1
In lower court docket no. 06-012651-FH, defendant was sentenced to 5 to 15 years’
imprisonment for two CSC-2 convictions In lower court docket no. 07-003353-FC, defendant
was sentenced to 25 to 50 years’ imprisonment for one CSC-1 conviction, and 5 to 15 years’
imprisonment for one CSC-2 conviction. In lower court docket no. 07-003354-FC, defendant
was sentenced to 25 to 50 years’ imprisonment for two CSC-1 convictions, to be served
consecutively to his CSC-1 conviction in lower court docket no. 07-003353-FC. In lower court
docket no. 07-003355-FH, defendant was sentenced to 5 to 15 years’ imprisonment for three
CSC-3 convictions. In lower court docket no. 07-003356-FC, defendant was sentenced to 25 to
50 years’ imprisonment for two CSC-1 convictions, to be served consecutively to his CSC-1
convictions in lower court docket no. 07-003354-FC. In lower court docket no. 07-003366-FH,
defendant was sentenced to 5 to 15 years’ imprisonment for one CSC-3 conviction, and credit for
time served for one CSC-4 conviction. In lower court docket no. 07-004431-FH, defendant was
sentenced to 5 to 15 years’ imprisonment for one CSC-2 conviction. In lower court docket no.
07-004432-FC, defendant was sentenced to 225 months to 50 years’ imprisonment for two CSC(continued…)
-1-
Defendant first asserts on appeal that the trial court erroneously granted the prosecutor’s
motion to consolidate the eight cases into one trial, thereby causing substantial prejudice to the
defendant. Below, defense counsel indicated that defendant did not object to that motion, and
defendant agreed in open court to try the eight cases in one trial. As such, this allegation of error
is waived. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Nevertheless, were we to consider this issue on appeal, defendant would not be entitled to
relief. Because defendant failed to preserve this issue, relief is only to be granted where the trial
court committed plain error that affected defendant’s substantial rights. People v Carines, 460
Mich 750, 764-765; 597 NW2d 130 (1999).
Regardless of whether the trial court granted the motion for consolidation, the
prosecution would have been permitted to introduce evidence relating to each of the alleged acts
of CSC that defendant has committed. Pursuant to MCL 768.27a, “in a criminal case in which
the defendant is accused of committing a listed offense against a minor, evidence that the
defendant committed another listed offense against a minor is admissible and may be considered
for its bearing on any matter to which it is relevant.” Under this provision, the prosecution
would have been permitted to introduce evidence of all of the alleged acts of CSC that defendant
committed against minors. Similarly, some of the evidence in question was potentially
admissible under MRE 404(b)(1), which provides that other-acts evidence may be admissible as
proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act,
knowledge, identity, or absence of mistake or accident. Therefore, the trial court’s decision to
consolidate these cases did not have any evidentiary impact. As a result, defendant is not entitled
to relief because he cannot establish that the consolidation constituted a plain error that affected
his substantial rights.
Defendant also argues on appeal that the prosecutor improperly referenced defendant’s
failure to testify during closing and rebuttal arguments, and therefore shifted the burden of proof
onto defendant. Defense counsel and defendant failed to raise any objections to the prosecutor’s
remarks; thus, our review is limited to outcome-determinative, plain error. People v Unger, 278
Mich App 210, 235; 749 NW2d 272 (2008).
Defendant first claims that the prosecutor improperly encroached on his right not to
testify by stating:
Now, with all of the forms of criminal sexual conduct, the victim’s
testimony alone is sufficient and that’s because, as you know, there things don’t
happen on the city street. There usually are two people who know what happened
and you’ve heard from one of them, or many of them, actually, but for each count,
one of them.
The challenged remark was an accurate statement of the law. See MCL 750.520h;
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 CSC). And, we find that the foregoing remark
(…continued)
1 convictions.
-2-
focused on the propriety of finding defendant guilty based on a given victim’s testimony. In
context, the prosecutor was discussing the offenses charged against defendant, what evidence
would be sufficient to find defendant guilty of those offenses, and what does not constitute a
defense. Even if we considered the remark as an oblique reference to defendant’s failure to
testify, the trial court instructed the jury that defendants do not have to testify and that defendants
are presumed innocent. The trial court also explained that the prosecution had the burden of
proving every element of each offense beyond a reasonable doubt. Further, the trial court
instructed the jury that statements and arguments by counsel were not evidence. Thus, there
could be no error where such curative instructions prevented any prejudicial effect. People v
Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003). On the record, we conclude
that the prosecutor did not improperly shift the burden of proof onto defendant, and that
defendant did not meet the threshold for reversal based on unpreserved error. People v
Abraham, 256 Mich App 265, 277; 662 NW2d 836 (2003).
Defendant also complains that the prosecutor improperly encroached on his right not to
testify by stating:
And so when he says in the end of his closing argument, “What has the
evidence shown,” the evidence has shown unrefuted, unrefuted allegations of
abuse. You have not heard any testimony that he didn’t do it. None. He is guilty
of first degree, he is guilty of third degree, he is guilty of second degree, and he is
guilty of fourth degree, and I ask you to so find.
Here, we find that the prosecutor’s rebuttal remark was not improper, where she
essentially asserted that the evidence was uncontradicted or undisputed; such remark did not
improperly shift the burden of proof onto defendant. People v Fields, 450 Mich 94, 115-116;
538 NW2d 356 (1995). Further, in his closing argument defense counsel essentially attacked the
credibility of many of the victims and their mothers, during his closing argument, argued that
there was a conspiracy against defendant, and contended that the prosecutor did not carry her
burden of proof in establishing all of the elements of the offenses charged against defendant. “A
prosecutor may fairly respond to an issue raised by the defendant.” People v Brown, 279 Mich
App 116, 135; 755 NW2d 664 (2008). Viewed in context, the prosecutor responded to issues
raised in defense counsel’s argument, where the challenged latter remark was a portion of that
response to defense counsel’s aforementioned arguments. And, as noted previously, the trial
court provided appropriate curative instructions that prevented any prejudicial effect. Ackerman,
supra at 448-449. Under the circumstances, the challenged remark did not violate defendant’s
right not to testify. Fields, supra at 115-116.
Finally, defendant contends that defense counsel rendered ineffective assistance of
counsel by failing to oppose the prosecution’s motion to consolidate, and for failing to object to
the two instances of prosecutorial misconduct discussed supra. Based on the foregoing
discussion, we reject defendant’s claims of ineffective assistance of counsel, where defendant
ultimately has not overcome the strong presumption that defense counsel’s performance
constituted sound trial strategy, and he did not show that defense counsel’s actions fell below an
objective standard of reasonableness under prevailing professional norms. People v Matuszak,
263 Mich App 42, 57-58; 687 NW2d 342 (2004).
-3-
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
-4-
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.
