PEOPLE OF MI V JOHN HART VALENTINE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 4, 2010
Plaintiff-Appellee,
v
No. 289853
St. Joseph Circuit Court
LC No. 07-014679-FC
JOHN HART VALENTINE,
Defendant-Appellant.
Before: OWENS, P.J., and SAWYER and O’CONNELL, JJ.
PER CURIAM.
After a jury trial, defendant John Hart Valentine was convicted of two counts of firstdegree criminal sexual conduct (CSC I), MCL 750.520b(1)(b) (relationship), three counts of
second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(b) (relationship), and one
count of possession of child sexually abusive materials, MCL 750.145c(4). He was sentenced to
concurrent terms of 210 to 480 months’ imprisonment for each CSC I conviction, 86 to 180
months’ imprisonment for each CSC II conviction, and 23 to 48 months’ imprisonment for the
possession of child sexually abusive materials conviction, with 338 days’ credit for time served.
Defendant was also ordered to undergo lifetime electronic monitoring. Defendant now appeals
as of right. We affirm.
I. FACTS
Defendant’s convictions arose from the sexual abuse of his stepdaughter when she was
12 and 13 years old. The victim and her mother began living with the defendant in 2004, and the
victim’s mother married defendant in February 2005, when the victim was 11. According to the
victim’s mother, defendant and the victim got along very well at first: the victim and defendant
had similar interests in movies and computer games, defendant would take the victim and her
friends to the park, and the victim generally thought defendant was “cool.” The victim admitted
that at first, she thought defendant was “okay” because he was trying to be a friend to her, and
not a stepfather, but she started to dislike him when he began sexually assaulting her.
Defendant began sexually assaulting the victim approximately one year after he married
her mother. The victim was 12 when the abuse began. According to the victim, the first time
defendant sexually assaulted her, he simply sat next to her and touched her breast. Other early
sexual encounters that she had with defendant apparently consisted of touchings of this sort. But
eventually, according to the victim, defendant began engaging in more extensive sexual activity
-1-
with her almost every night, unless she was menstruating. She made clear that defendant
penetrated both her vagina and her anus with his penis during these encounters, although she also
indicated that defendant often ejaculated outside her body. She also reported engaging in both
fellatio and cunnilingus with defendant. Further, the victim reported that once defendant inserted
a long, slender candle in her vagina and either touched or penetrated her anus with the candle.
The victim’s mother worked an overnight shift at a factory. Although the family had a
boarder stay with them for part of the time when the abuse occurred, he lived in the basement,
while the victim, her mother, and defendant resided on the first floor. Defendant assaulted the
victim late at night, when her mother was not home and the boarder was asleep. Apparently the
assaults mostly occurred in the bedroom that defendant and the victim’s mother shared.
According to the victim, when defendant wanted to engage in sexual activity with her, he would
give her advance notice and expect that she would come to him within a certain time. At times,
he would wake the victim and tell her that she had a certain amount of time to come to his
bedroom or he would return for her. At other times, he would knock on her door, signaling to
the victim that she should come to his bedroom. If she did not come, he would then flash her
lights on and off to indicate to her that she should come to his bedroom. Finally, if she still
would not come, he would come to her directly. When he came to her directly, he sometimes
would simply grab her wrists and drag her into his bedroom. Defendant would strike the victim
if she tried to fight him off or did not do what he asked.
One night in the fall of 2007, when the victim was menstruating, defendant took her to
his bedroom, fondled her, rubbed himself against her, and masturbated in her presence. He then
took her to his computer and showed her pornography depicting a new sexual position that he
wanted her to try with him the following night. The next evening, after attending a candlelight
vigil for victims of domestic violence, the victim returned home and begged her mother to let her
stay at a friend’s house overnight. The victim then broke down and told her mother about the
sexual abuse. The victim’s mother took her to a friend’s house, where they called the police.
The victim’s mother then took the victim to a domestic assault shelter in Battle Creek, apparently
because her friend’s roommate worked there and was familiar with its services.
Phyllis VanOrder, a registered nurse with the Department of Sexual Assault Services of
Calhoun County and a sexual assault nurse examiner, was qualified as an expert in the field of
sexual assault nurse examiner and testified concerning the duties of a sexual assault nurse
examiner. VanOrder performed a sexual assault examination on the victim soon after she and
her mother arrived at the domestic assault shelter in Battle Creek to report the abuse. VanOrder
completed a physical examination of the victim and collected forensic samples from her body.
VanOrder did not detect any signs of injury or visible trauma during her examination, but she
explained that this did not necessarily mean that trauma or injury had not occurred in the past;
often, injured areas of a female’s genitalia can heal quickly and simply without any lingering
sign of trauma. Further, VanOrder explained that visible trauma would not necessarily occur if a
foreign object was placed in the vaginal canal or if a female engaged in repeated sexual
intercourse over a long period.
Apparently, the victim’s hymen was intact, although it does not appear that either party
ever directly questioned VanOrder on this point at trial. However, VanOrder explained, in some
detail, that the hymen is a stretchy membrane that surrounds the opening of the vagina, but does
not cover the entrance to the vagina. Although the hymen can be injured in consensual sexual
-2-
activity and during a sexual assault, because it is a stretchy tissue, it can accommodate a penis,
finger, foreign object, or even the passage of a baby during childbirth without trauma or injury.
Defendant was interviewed shortly after the victim made her allegations and denied
assaulting the victim. Although the videotape of this interview was played to the jury, defendant
exercised his right not to testify at trial.
II. PROSECUTORIAL MISCONDUCT
Defendant identifies three points during trial where he claims the prosecutor committed
misconduct. We believe that none of the incidents identified by defendant warrant reversal of
defendant’s conviction and remand for a new trial.
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial (i.e., whether prejudice resulted).” People v Abraham, 256 Mich App 265, 272;
662 NW2d 836 (2003). “Generally, ‘[p]rosecutors are accorded great latitude regarding their
arguments and conduct.’ They are ‘free to argue the evidence and all reasonable inferences from
the evidence as it relates to [their] theory of the case.’” People v Bahoda, 448 Mich 261, 282;
531 NW2d 659 (1995) (citations omitted). To determine if a prosecutor’s comments during his
closing argument were improper, we must evaluate the prosecutor’s remarks in context, in light
of defense counsel’s arguments and the relationship that these comments bear to the evidence
admitted at trial. People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). “The
propriety of a prosecutor’s remarks depends on all the facts of the case.” People v Rodriguez,
251 Mich App 10, 30; 650 NW2d 96 (2002).
First, defendant claims that the prosecutor committed misconduct during voir dire when
he made reference to VanOrder; apparently, he takes issue with the prosecutor’s comment that
VanOrder was “one of the most educated people in that field.”1 This comment was part of a
longer exchange that occurred during voir dire in which the prosecutor attempted to gauge the
jury’s receptiveness to VanOrder’s anticipated testimony concerning the elasticity and resiliency
of the hymen, even though such testimony would contradict conventional wisdom that the hymen
is always damaged or broken when a female first engages in sexual intercourse and, therefore,
can be used to prove virginity. Admittedly, the prosecutor’s comment that VanOrder was “one
of the most educated people in that field” could be considered an attempt to vouch for her
credibility, especially considering that he made this comment when asking the jurors if they
would fairly consider anticipated testimony by VanOrder that would challenge conventional
wisdom. People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009) (“A prosecutor may not
vouch for the credibility of his witnesses by suggesting that he has some special knowledge of
the witnesses’ truthfulness.”).
However, to the extent that the prosecutor’s comment could be considered erroneous or
inappropriate, reversal would not be required because the error is not outcome-determinative and
did not result in a miscarriage of justice. People v Brownridge (On Remand), 237 Mich App
1
We review preserved claims of prosecutorial misconduct de novo. Abraham, 256 Mich App at
272.
-3-
210, 216; 602 NW2d 584 (1999). The trial court immediately interrupted the prosecutor and
instructed him and the jury venire that the prosecutor could not vouch for the credibility or
qualifications of a witness. The trial court then indicated that the jury would ultimately
determine whether VanOrder’s testimony was credible and instructed, “Just because a witness
says something, you have to apply your own common sense and everyday knowledge to their
testimony.” An erroneous legal argument made by the prosecutor can potentially be cured if the
jury is correctly instructed on the law, People v Grayer, 252 Mich App 349, 357; 651 NW2d 818
(2002), and “[i]t is well established that jurors are presumed to follow their instructions,” People
v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Further, immediately after the prosecutor
finished questioning the jury venire on this point, defense counsel questioned the jury venire in a
manner that clarified that the jury must look at all the evidence presented, and not simply the
testimony of one witness, when determining whether defendant was guilty of the charged
offenses. Considering that the jury was properly instructed regarding its duty to determine the
credibility of witnesses and asked to consider all the evidence presented immediately after the
challenged comment was made, any error that might have occurred as a result of the prosecutor’s
comment was properly corrected and is not outcome-determinative.
Next, defendant claims that the prosecutor committed misconduct during his introduction
of Dr. Jim Henry, an expert witness, by vouching for his credibility.2 Again, although a
prosecutor may not vouch for the credibility of his witnesses, Seals, 285 Mich App at 22, the
challenged comment by the prosecutor, even if erroneous, does not constitute outcomedeterminative error, Brownridge, 237 Mich App at 216. The prosecutor immediately qualified
his statement by reminding the jury that although Dr. Henry’s credentials were impressive, he
would not opine regarding whether the victim was telling the truth because the jury was
ultimately responsible for determining credibility.3 Accordingly, any “vouching” of Dr. Henry’s
2
We review this unpreserved claim of error for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130 (1999).
3
When he introduced Dr. Henry, the prosecutor stated,
Ladies and Gentlemen, our first witness is Doctor Jim Henry. As he
testifies about—about his experience and qualifications and as you look at his
curriculum vitae, which will be put into evidence, you will see that he’s
nationally, if not world renowned, as one of the leading experts in the field of
child sexual abuse and behavior. It’s been his life’s work. The world is lucky to
have him.
But anyway, what you won’t hear from him or any of the witnesses, what
they’re all forbidden from telling you, is “I think [the victim] is telling the truth,”
or “I think [the victim] is lying.”
And the reason is it’s the twelve of you who decide—finally decide this
case—are the only persons to make that decision. He’s not allowed to say it and
wouldn’t say it, okay. Everybody understand that? With that introduction, I’d
ask Doctor Henry to please step forward.
-4-
credibility that might have occurred was immediately qualified by reminding the jurors that they,
not Dr. Henry, were responsible for determining the credibility of witnesses.
Further, the trial court properly instructed the jury regarding the proper use of Dr.
Henry’s testimony. The trial court instructed the jury at the beginning of trial that it had the
responsibility to decide what the facts of the case were by thinking about all the evidence and
testimony and deciding “what each piece of evidence means and how important you think it is.”
The court then instructed the jury during Dr. Henry’s testimony that his testimony was based on
the hypothetical scenarios presented to him and would not necessarily reflect what later
testimony would actually establish. At the end of trial, the court again instructed the jury that it
had the authority to decide what the facts of the case were and that it could accept or reject any
testimony of any witness. It then reminded the jury that although expert witnesses were
permitted to give their opinions in court on matters related to their areas of expertise, the jury had
no obligation to believe the expert’s opinion. Instead, the jury was instructed to “decide whether
you believe it and how important you think it is,” taking into account the expert’s qualifications
and “the reasons and facts they gave for their opinion and whether those facts are true.” Finally,
the court instructed the jury that Dr. Henry’s testimony concerning the behavior of sexually
abused children could be considered only to determine whether the victim’s words and actions
after the alleged abuse occurred were consistent with those of sexually abused children; it could
not be used to show that defendant abused the victim or as an indication that Dr. Henry believed
that the victim was telling the truth.
Because we presume that the jury properly followed the instructions given to it, Graves,
458 Mich at 486, we conclude that the jury only considered Dr. Henry’s testimony for a proper
purpose. Considering that any “vouching” that the prosecutor might have done in commenting
on Dr. Henry’s credentials was immediately qualified by reminding the jury of its role in the
case, and that the jury was properly and extensively instructed regarding the proper use of Dr.
Henry’s testimony, no plain error occurred and reversal is not warranted.
Finally, defendant claims that the prosecutor committed misconduct during his opening
statement when he commented on defendant’s decision to testify in his own defense.4 In his
opening statement, the prosecutor stated,
We don’t know whether or not Mr. Valentine will testify. But if he does,
you judge his testimony just like you would judge anybody else’s. But remember,
he’s the one that might get in trouble and that’s the longest and one of the oldest
reasons to lie in the world. And of course what’s really important is, if he doesn’t
testify, you cannot consider that.
In People v Fields, 450 Mich 94, 108-109; 538 NW2d 356 (1995), our Supreme Court
recognized that in order to effectuate a defendant’s constitutional right against compelled selfincrimination, “no reference or comment may be made regarding defendant’s failure to testify.”
4
This claim is unpreserved and subject to plain-error review. Carines, 460 Mich at 763-764.
-5-
Admittedly, the prosecutor’s comment could be seen as alluding that defendant might choose not
to testify because he might feel compelled to lie on the stand in order to avoid getting in trouble.
Regardless, this comment by the prosecutor, even if erroneous, does not constitute
outcome-determinative error. Brownridge, 237 Mich App at 216. Although the prosecutor’s
statement was inartful, he made this statement in the midst of a general discussion regarding how
the jury should gauge the credibility of witnesses, and it appears that the statement was intended
to remind the jury that if defendant did choose to testify, he would have a motive to lie during his
testimony in order to escape conviction. However, the comment was fleeting, and the prosecutor
immediately reminded the jury both that it could not hold defendant’s decision not to testify
against him and that it had the authority to determine the credibility of all witnesses and accept
or reject the testimony of each witness as it saw fit.
Further, the trial court specifically instructed the jury that the parties’ opening statements
are not evidence and “are only meant to help you understand how each side views the case.” The
trial court also told the jury that it must base its verdict only on the evidence. Further, the trial
court instructed the jury that defendant was not required to produce evidence or otherwise prove
his innocence. At the close of the trial, the trial court instructed the jury, “Every Defendant as
[sic, has] the absolute right not to testify and when you decide the case you must not consider the
fact that he did not testify. It must not affect your verdict in anyway [sic, any way].” The trial
court also instructed the jury that the statements and arguments made by the parties’ attorneys
were not evidence, but were only meant to help the jury understand each side’s legal theories,
and that the jury “should only accept things the lawyer says that are supported by the evidence or
by your own common sense—and general knowledge.” Considering that the trial court properly
instructed the jury not to treat the parties’ opening statements as evidence and not to hold the fact
that defendant did not testify at trial against him, and considering that the prosecutor’s
questionable comment was fleeting and immediately qualified by a reminder that defendant’s
decision not to testify should not be held against him, any error arising from the prosecutor’s
comment is not outcome-determinative and reversal is not warranted.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also claims that his counsel was ineffective for failing to challenge the
improper statements made by the prosecutor. We disagree. Because defendant failed to move
for a Ginther5 hearing, our review is limited to mistakes apparent on the record. People v
Darden, 230 Mich App 597, 604; 585 NW2d 27 (1998).
Whether defendant has been deprived of effective assistance of counsel is a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). We must first determine the facts and then decide whether these facts constitute a
violation of defendant’s right to effective assistance of counsel. Id. Factual findings are
reviewed for clear error, while constitutional determinations are reviewed de novo. Id.
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
5
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-6-
otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). In reviewing a
claim of ineffective assistance of counsel, “[t]his Court will not substitute its judgment for that of
counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
“A defendant is entitled to effective representation at every critical stage of the
proceedings against him.” People v Abernathy, 153 Mich App 567, 568-569; 396 NW2d 436
(1985). However, counsel is not ineffective merely because the outcome is not optimal. People
v Davidovich, 463 Mich 446, 453 n 7; 618 NW2d 579 (2000). Instead, counsel is ineffective if it
has “sunk to a level at which it is a problem of constitutional dimension.” Id.
“To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). To
demonstrate that counsel’s performance was deficient, a defendant must establish that his
attorney’s representation “fell below an objective standard of reasonableness under prevailing
professional norms. In so doing, the defendant must overcome a strong presumption that
counsel’s performance constituted sound trial strategy.” Id. “A sound trial strategy is one that is
developed in concert with an investigation that is adequately supported by reasonable
professional judgments.” People v Grant, 470 Mich 477, 486; 684 NW2d 686 (2004).
To establish that counsel’s deficient performance prejudiced the defense, the defendant
must show that his attorney’s representation “was so prejudicial to him that he was denied a fair
trial.” People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). In other words, the
defendant must show that because of counsel’s deficient performance, the resulting proceedings
“were fundamentally unfair or unreliable.” Rodgers, 248 Mich App at 714. This requires the
defendant to demonstrate a reasonable probability that but for his counsel’s unprofessional
errors, the outcome of the proceeding would have been different. Toma, 462 Mich at 302-303.
Defendant appears to contend that his counsel was ineffective because she failed to object
to the three aforementioned instances of claimed misconduct. We disagree. Defense counsel
objected to the prosecutor’s statement during voir dire that VanOrder was “one of the most
educated people in the field.” Because defendant does not explain how his counsel’s prompt
objection to this statement could still be considered ineffective assistance, this assertion of error
lacks merit. Although defense counsel did not challenge the prosecutor’s introduction of Dr.
Henry or his questionable comment during his opening statement, these comments were fleeting,
and any error was corrected by the prosecutor’s qualification of these statements and by the trial
court’s instructions to the jury. Accordingly, any failure by defense counsel to object was not so
prejudicial to defendant that he was denied a fair trial. Toma, 462 Mich at 302. Further, any
objection could have simply drawn additional attention to these comments. Defense counsel’s
failure to object could simply have been a matter of trial strategy, and “this Court neither
substitutes its judgment for that of counsel regarding matters of trial strategy, nor makes an
assessment of counsel’s competence with the benefit of hindsight.” People v Matuszak, 263
Mich App 42, 58; 687 NW2d 342 (2004).
IV. SENTENCING
-7-
Finally, defendant argues that the trial court improperly assessed a score of 15 points for
Offense Variable (OV) 10 because defendant’s actions were not predatory. We disagree. “A
sentencing court has discretion in determining the number of points to be scored, provided that
evidence of record adequately supports a particular score.” People v Hornsby, 251 Mich App
462, 468; 650 NW2d 700 (2002). “‘Scoring decisions for which there is any evidence in support
will be upheld.’” Id., quoting People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996).
“A sentencing court may consider all record evidence before it when calculating the guidelines,
including, but not limited to, the contents of a presentence investigation report, admissions made
by a defendant during a plea proceeding, or testimony taken at a preliminary examination or
trial.” People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993),
remanded on other grounds 447 Mich 984 (1994).
The sentencing guidelines prescribe scoring 15 points for OV 10, which concerns
exploitation of a victim’s vulnerability where predatory conduct was involved. MCL
777.40(1)(a).6 “[T]o be considered predatory, the conduct must have occurred before the
commission of the offense.” People v Cannon, 481 Mich 152, 160; 749 NW2d 257 (2008). “In
addition, preoffense conduct must have been directed at a victim ‘for the primary purpose of
victimization.’” Id. at 161, quoting MCL 777.40(3)(a). Our Supreme Court set forth the
following analytical questions to consider when determining whether the conduct in question
was predatory:
(1) Did the offender engage in conduct before the commission of the offense?
(2) Was this conduct directed at one or more specific victims who suffered from
a readily apparent susceptibility to injury, physical restraint, persuasion, or
temptation?
(3) Was victimization the offender’s primary purpose for engaging in the
preoffense conduct? [Id. at 162.]
“If the court can answer all these questions affirmatively, then it may properly assess 15 points
for OV 10 because the offender engaged in predatory conduct under MCL 777.40.” Id.
Defendant engaged in conduct both before and during the year-and-a-half long period in
which he sexually abused the victim that was designed to exploit his close proximity to, and
authority over, his middle-school-aged stepdaughter. Defendant’s initial sexual contacts with the
victim were inappropriate touchings. Although criminal acts in their own right, they also “set the
stage” for the more egregious conduct that followed. Further, the victim described a pattern of
conduct that often occurred before defendant sexually assaulted her. Defendant would come to
the victim’s bedroom and indicate that he wanted her to come to his bedroom within a certain
period of time so he could assault her. Eventually, the victim came to realize that when
6
Although defendant disputed that a score of 15 points was proper for this offense variable, he
conceded in his brief on appeal that a score of ten points was proper. See MCL 777.40(1)(b)
(“The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a
domestic relationship, or the offender abused his or her authority status”).
-8-
defendant knocked on her bedroom door or flashed her lights late at night, he expected her to
come to his room shortly thereafter for a sexual encounter. On some occasions, when the victim
would not come to his bedroom, he would grab her by the wrists and drag her to his room. If she
tried to resist his advances, he would strike her. All this misconduct occurred before defendant
would actually engage in criminal sexual activity with the victim.
Further, defendant’s misconduct was clearly directed at a particular susceptible victim,
namely, his middle-school-aged stepdaughter. When the abuse occurred, this girl was
presumably smaller and weaker than her stepfather. The victim’s testimony made clear that on
occasion, defendant would forcibly restrain and physically overpower her in order to take her to
his room and assault her. Further, his misconduct was directed solely at the victim, and it
occurred late at night, when her mother was at work and the boarder living in their house was
asleep; it appears that the assaults only occurred when nobody was available to come to the
victim’s aid. In addition, it is clear that defendant engaged in this misconduct in order to
sexually assault the victim. Accordingly, the trial court’s decision to assess 15 points for OV 10
was not an abuse of discretion.
Affirmed.
/s/ Donald S. Owens
/s/ David H. Sawyer
/s/ Peter D. O’Connell
-9-
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.