PEOPLE OF MI V ROBERT DALE POSNER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2010
Plaintiff-Appellee,
v
No. 291416
Macomb Circuit Court
LC No. 08-004689-FC
ROBERT DALE POSNER,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 291508
Macomb Circuit Court
LC No. 2008-002475-FC
ROBERT DALE POSNER,
Defendant-Appellant.
Before: HOEKSTRA, P.J., and MARKEY and DAVIS, JJ.
PER CURIAM.
In docket no. 291416, defendant was convicted by a jury of two counts of first-degree
criminal sexual conduct, MCL 750.520b, and two counts of second-degree criminal sexual
conduct, MCL 750.520c. He was sentenced to 25 to 50 years’ imprisonment for each conviction
of first-degree criminal sexual conduct, and to 9 to 15 years’ imprisonment for each conviction
of second-degree criminal sexual conduct, with credit for 304 days served. In docket no.
291508, defendant was convicted by a jury of one count of first-degree criminal sexual conduct
and sentenced to 25 to 50 years’ imprisonment. The sentences are to run concurrently.
Defendant appeals his convictions by right. Defendant’s cases were consolidated for trial, and
we have consolidated them on appeal. We affirm.
Defendant met Robin Clark in the summer of 2007. The two began a dating relationship
on or about New Years Eve of that year, and defendant moved into Clark’s St. Clair Shores,
Michigan home shortly thereafter. Also living in the home were Clark’s six children, whose
ages spanned from 3 to 14 years old at the time of the January 2009 trial. Defendant resided with
Clark and her family until early April 2008, when Clark moved to a new home in Warren,
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Michigan. During the approximately four-month period he and Clark resided together in St.
Clair Shores, defendant engaged in numerous and repeated sexual activities with Clark’s two
oldest sons, LC and KC, aged 12 and 10, respectively, at the time. The incidents included
fellatio and masturbation, among other acts. Neither boy reported any of the incidents.
Defendant and Clark separated in early April before Clark moved to Warren with her children.
Nevertheless, on April 25, 2008, Clark learned that she was pregnant with defendant’s child.
She informed defendant that night. Later on that same night, defendant was at Clark’s Warren
home. He went to the basement to wash clothes and asked LC to join him. In the basement,
defendant asked LC to stand in a corner and remove his pants. Defendant then fellated LC. KC
followed LC to the basement, witnessed the incident, and reported it to Clark. Defendant was
first charged with first-degree criminal sexual conduct for the April 25, 2008, incident in the
Warren basement (Case No. 08-002475-FC). He was subsequently charged in a second case
with four additional counts of first and second-degree criminal sexual conduct arising from the
numerous incidents in St. Clair Shores (Case No. 08-004689-FC). The cases were joined on the
first day of trial pursuant to an agreement of the parties, and tried simultaneously.
On appeal, defendant argues that the trial court abused its discretion when it allowed the
two cases to be joined. However, where the parties agreed in open court to join the cases, as they
did here, the issue is waived, and defendant may not seek appellate review because his waiver
extinguishes any error. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Nevertheless, we note that “[w]hether defendant's charges are related is a question of law that we
review de novo.” People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). The trial
court’s ultimate decision to join charges is reviewed for an abuse of discretion. People v
Duranseau, 221 Mich App 204, 208; 561 NW2d 111 (1997). MCR 6.120(B) allows the parties
to agree to joinder of multiple cases against a single defendant. It provides, in pertinent part:
“(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are
related if they are based on. . . (c) a series of acts constituting parts of a single scheme or plan.”
Here, the facts demonstrated that defendant had a common scheme or plan to regularly
sexually assault and molest LC and KC over a period of more than fourth months when he had
access to them. The incidents were similar between both boys, and often involved oral sex or
masturbation. The last assault on LC on April 25, 2008, differs from the previous assaults in St.
Clair Shores only because it occurred in the Warren home. We therefore conclude joinder was
permissible and appropriate.
Moreover, we reject defendant’s argument related to whether the evidence from one case
would have been offered and admitted in the other if separate trials were held. Under MCL
768.27a, all evidence brought against defendant in the instant trial could have been presented in
separate trials had the cases not been joined. People v Pattison, 276 Mich App 613, 619-620;
741 NW2d 558 (2007). Thus, the same victims would have testified against defendant in each
separate case. We conclude that the trial court did not abuse its discretion when it joined the
cases against defendant. Plain error did not occur.
Next, defendant argues that defense counsel’s failure to object to the joinder amounted to
ineffective assistance of counsel. “Whether a person has been denied effective assistance of
counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). Because defendant did not obtain an evidentiary hearing, our
review is limited to the mistakes apparent in the trial record. People v Snider, 239 Mich App
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393, 423; 608 NW2d 502 (2000) (citation omitted). “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” People v Solmonson,
261 Mich App 657, 663; 683 NW2d 761 (2004). A defendant must show that his attorney’s
conduct fell below an objective standard of reasonableness according to prevailing professional
norms and that the representation so prejudiced defendant that he was deprived a fair trial. Id.
To prove the latter, defendant must show that the result of the proceeding would have been
different but for defense counsel’s error. Id. at 663-664.
Here, the record indicates that counsel’s decision to join the case was a trial strategy, see
People v Smith, 90 Mich App 20, 26-27; 282 NW2d 227 (1979), and certainly did not fall below
an objective standard of reasonableness. By combining the cases, defense counsel argued that
LC and KC fabricated the sexual assaults to incriminate defendant after they found out that he
had impregnated Clark. Having the cases joined and tried together effectively allowed defense
counsel to present this theory. And, as previously stated, joinder was permissible and
appropriate. Moreover, defendant has not shown prejudice. As previously indicated, the
evidence of sexual abuse in the Warren home could have been introduced in a trial for the abuse
that occurred at the St. Clair Shores home, and vice versa. MCL 768.27a.
Finally, defendant argues that the prosecutor improperly vouched for the credibility of
LC and KC by stating during closing argument that they testified truthfully and honestly. We
review unpreserved claims of misconduct for plain error affecting defendant’s substantial rights
to determine if defendant was denied a fair trial. People v Thomas, 260 Mich App 450, 453-454;
678 NW2d 631 (2004). “Prosecutorial comments must be read as a whole and evaluated in light
of defense arguments and the relationship they bear to the evidence admitted at trial.” People v
Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). “The propriety of the prosecutor’s
remarks depends on all the facts of the case.” Id.
Here, to support its trial strategy that LC and KC fabricated the sexual assaults, defense
counsel on several occasions cross-examined witnesses as to whether the boys would have a
motive to lie. The prosecutor’s challenged comments addressed this strategy. Rodriguez, 251
Mich App at 31. Nothing in the record supports that the prosecutor’s comments suggested some
kind of special knowledge as to the witnesses’ truthfulness. People v McGhee, 268 Mich App
600, 630; 709 NW2d 595 (2005). And, even if the comments were prejudicial, the trial court’s
instructions as to how to assess credibility and that the lawyers’ arguments were not evidence
cured any prejudice. People v Callon, 256 Mich App 312, 330-331; 662 NW2d 501 (2003).
Defendant was not denied a fair trial.
We affirm.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Alton T. Davis
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