PEOPLE OF MI V MARK EDWARD JUNKINS

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 9, 2010 Plaintiff-Appellee, v No. 293105 Macomb Circuit Court LC No. 2008-005124-FC MARK EDWARD JUNKINS, Defendant-Appellant. Before: WILDER, P.J., and SERVITTO and SHAPIRO, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions for two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and two counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a). Defendant was sentenced to 12 to 30 years’ imprisonment for each first-degree criminal sexual conduct conviction, and 10 to 15 years’ imprisonment for each second-degree criminal sexual conduct conviction. We affirm. Defendant first argues on appeal that numerous instances of other acts evidence were improperly admitted into the evidence. We disagree. Unpreserved objections to a trial court’s evidentiary rulings are reviewed for plain error affecting the defendant’s substantial rights, meaning a showing of prejudice is required. People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). Reversal is warranted only when the plain error results in a conviction of an actually innocent defendant or when the error seriously affects the fairness, integrity, or public reputation of judicial proceedings independently of a defendant's innocence. Id. Usually, other acts evidence is excluded, except as allowed by MRE 404(b), to avoid the danger of conviction based on the defendant’s history of misconduct. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005). MRE 404(b)(1) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, 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. -1- To be admissible under MRE 404(b), other acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). “‘Relevance is a relationship between the evidence and a material fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue more probable or less probable than it would be without the evidence.’” People v Dobek, 274 Mich App 58, 86; 732 NW2d 546 (2007), quoting People v Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998). Additionally, MRE 404(b)(2) requires the prosecution to provide notice before trial when it intends to introduce other acts evidence, and MRE 105 provides that, upon request, the trial court may provide a limiting instruction. Knox, 469 Mich at 509. A review of the lower court record reveals the prosecution never filed notice before trial that it intended to use other acts evidence, however, defendant never objected to the lack of notice during trial, and thus, this is also reviewed for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Given that defense counsel was aware that the victim claimed around 70 instances of sexual abuse, we cannot conclude that plain error occurred because defendant was not prejudiced by the lack of notice. Defendant has not demonstrated that he would have called another witness to testify or provided other evidence to counter the other acts testimony had he known the prosecution intended to introduce other acts evidence. Because defendant would not have proceeded differently with proper notice, reversal is not warranted on this basis. Dobek, 274 Mich App at 87-88. Regarding the other acts evidence that allegedly and improperly highlighted defendant’s propensity for violence, the prosecution, on direct examination, asked the victim: Prosecution: Who are some of the people that you trusted? [The Victim:] Like some of my really close friends, my family. Prosecution: Now, how come you didn’t tell them what was happening? [The Victim:] Just didn’t really want to talk about it. Prosecution: Did the defendant ever threaten you? [The Victim:] No. Prosecution: So why wouldn’t you talk to somebody about it? [The Victim:] Because like he had really, really bad anger problems, and like I didn’t know what he was going to do if I told. Prosecution: What did you think when you were in sixth grade that he might do? [The Victim:] Well, like my mom used to talk about leaving him and stuff like that, and he’d always tell her that if she ever did like he would hunt her down and kill her, so that’s kind of what I thought about that. -2- Prosecution: Did you really think that he would do that? [The Victim:] I didn’t know what he was capable of. He always like really, like he always like threw stuff at people, he would always yell, he used to hit us all the time, so I didn’t know what he was capable of. Evidence of a defendant's prior bad acts is relevant to explain a delay in reporting alleged abuse. People v Dunham, 220 Mich App 268, 273; 559 NW2d 360 (1996). Plain error did not occur because the evidence was not offered to show that defendant had a bad character. Rather, its purpose was to explain why the victim did not immediately go to the police and it assisted the jury in weighing credibility of the victim. The prosecution asked on direct examination of Angeline Childers: Prosecution: Can you describe the relationship between [defendant] and [the victim]? Childers: None of the kids could stand him. He was abusive to everyone in the home; verbally, emotionally. Prosecution: Why did you stay with him? Childers: Four kids, didn’t want to be a single mom. Prosecution: Did you think it would be harmful for your kids to be around somebody that was abusive? Childers: Not physically, I never thought that they were going to be physically abused by him. Prosecution: When you say then emotionally, what was the – what was the abusive -Childers: He would scream and cuss all the time. Anything they did was wrong. They couldn’t wear certain clothes, they couldn’t wear – the girls, as they started getting older they couldn’t wear makeup, they couldn’t do anything with their hair, he would call them names all the time. Prosecution: Did you ever try to intercede between him and your daughters? Childers: Yes. Prosecution: What would you do? Childers: I would tell him that he needed to stop, he needed to watch his mouth, he needed to stop calling my children names. Prosecution: Would he back off then at that point? -3- Childers: No, it would – turned into a fight between him and I. Prosecution: So it would be fair to say that he would stop focusing on your children and then it would become focused on you? Childers. Yes. The purpose of Childers’s testimony was similar to that of the victim’s, to explain why Childers remained with defendant and why the victim did not report abuse sooner. Dunham, 220 Mich App at 273. Plain error did not occur because the evidence was relevant and admissible for the purpose of explaining why Childers exposed her children to defendant for so long, and it assisted the jury in weighing the credibility of Childers. As a rebuttal witness, the prosecution asked Childers on direct examination: Prosecution: Did you ever threaten to call the police or actually threaten to stab yourself with a fork and call the police and blame it on the defendant? Childers: No. The only time I had to call the police was when he actually did harm to me. Prosecution: How many times is that? Childers: Alabama, there was three times, Tennessee there was the once that he was convicted for, and then Michigan there was twice. Also, at another point during the rebuttal, the prosecution asked Chiders on direct examination: Prosecution: Did you ever tell Betty [Plichcinski] about being abused? Childers: Yes, the kids and I both did. In both instances, the prosecution was asking Childers questions in response to testimony brought out by defendant’s witnesses during his case-in-chief. The prosecution is permitted to elicit otherwise impermissible evidence in response to testimony introduced by the defendant, provided the questions do not merely focus on unfounded prejudicial innuendo. People v Pearson, 123 Mich App 462, 464; 332 NW2d 574 (1983). Thus, plain error did not occur when the prosecution asked Childers questions in response to prior testimony. The prosecution asked defendant during cross-examination: Prosecution: Did you ever throw a tape measure at [the victim’s brother]? Defendant: I didn’t throw a tape at [the victim’s brother], I threw the tape against the wall, and all four children were in the basement when it happened. Prosecution: So [the victim] saw this? -4- Defendant: All four of the kids were standing there when it happened. Plain error did not occur because the prosecution was asking questions in response to defendant’s assertion on direct examination that he was never physically abusive towards any of the children. Because defendant put his character for physical violence at issue on direct examination, the prosecution was allowed to inquire into specific instances of conduct on crossexamination. See People v Roper, 286 Mich App 77, 96; 777 NW2d 483 (2009) (“Because [the] defendant placed his character for aggression or violence at issue on direct examination, the trial court did not err when it permitted the prosecutor to take steps to rebut [the] defendant’s assertion.”), citing MRE 404(a). Regarding the other acts evidence that highlighted evidence of criminal sexual conduct in Tennessee, the prosecution, on direct examination, asked the victim: Prosecution: Now, what does the word penetrate mean to you? [The Victim:] Well, like before it was actually explained to me I thought it was like actually going like inside the hole part. Prosecution: So you mean putting a finger all the way inside? [The Victim:] Yeah. Prosecution: Okay. So if somebody was to ask you did he penetrate you, your response would be? [The Victim:] Only once or twice. Prosecution: When did that happen? [The Victim:] That didn’t happened until we were in Tennessee. Prosecution: And that’s where his whole finger went inside? [The Victim:] Yeah. Plain error did not occur when the trial court allowed the victim to testify regarding other sexual acts between her and defendant. In Michigan, “it has been held that the probative value outweighs the disadvantage where the crime charged is a sexual offense and the other acts tend to show similar familiarity between the defendant and the person with whom he allegedly committed the charged offense.” Dobek, 274 Mich App 89. The evidence showed familiarity between the parties, supported the victim’s credibility, and constituted “‘a link in the chain of testimony’” that assisted the jury in understanding the context and relationship between the victim and defendant. Id. at 89-90, quoting People v DerMartzex, 390 Mich 410, 414; 213 NW2d 97 (1973). Also, during the prosecution’s direct examination of Childers, the prosecutor asked: -5- Prosecution: Did you ever have any knowledge or any – were you ever aware of anything happening in your home with the defendant? Childers: No. Prosecution: Did you ever, ever think anything was unusual with [defendant] and [the victim]? Childers: There was only one time when I woke up in the middle of the night and I saw [defendant] coming out of [the victim’s] bedroom. Prosecution: Where was that? Childers: That was in Tennessee. Prosecution: I want to focus just on what happened in Dodge Park. Childers: Okay. Prosecution: Did anything ever happen at Dodge Park? Childers: Nothing ever tipped me off on Dodge Park. An unresponsive and volunteered answer from a witness to a proper question is not grounds for a mistrial. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). Plain error did not occur when the victim or Childers gave nonresponsive and volunteered answers to the prosecutor’s proper questions involving other acts that occurred in Tennessee because the prosecution sought to focus on acts occurring in Michigan. Furthermore, the trial court gave a limiting instruction that specifically instructed the jury it could not convict defendant of the charged offenses based on his other conduct in Tennessee. Thus, the unsolicited responses were not prejudicial to defendant. Additionally, on cross-examination of the victim, defense counsel asked: Defense Counsel: Didn’t you tell us earlier, though, that he stuck his finger all the way in twice in Tennessee? [The Victim:] Once, twice, yeah. Defense Counsel: Huh? [The Victim:] Once or twice, yeah. Defense Counsel: No, you said twice in Tennessee, didn’t you? [The Victim:] Okay. Then it was twice. Plain error did not occur when defendant himself inquired into other acts that occurred. By failing to object during the prosecution’s direct examination and then inquiring into the same -6- subject on cross-examination in what appears to be an attempt to discredit the victim, defendant effectively waived any claim of error. See People v Carter, 462 Mich 206, 214-216; 612 NW2d 144 (2000) (when a defendant intentionally relinquishes a known right, he waives any claim of error on appeal). Regarding the other acts evidence that highlighted evidence of criminal sexual conduct by another individual, the prosecution, on direct examination, asked the victim: Prosecution: Now, were you abused by [Allen Barton]? [The Victim:] Yeah. Prosecution: Did you ever tell anybody about that? [The Victim:] Not until this came out. Prosecution: Why didn’t you tell anybody back then? [The Victim:] Because he threatened. Prosecution: What did he threaten? [The Victim:] He would like, when it would happen he would have me on my bed, and like he always would say that he would kill me if I ever said anything about it. Prosecution: Well, how come after your sister disclosed – didn’t you feel comfortable disclosing after your sister disclosed and nothing happened to her? [The Victim:] No. Prosecution: Why not? [The Victim:] Just – I just really never got to the point of trusting that nothing was going to happen. *** Prosecution: Did you think, well, [the victim’ sister]’s safe, and she disclosed that it happened, maybe I could tell somebody? [The Victim:] Not really. I just, I don’t know, I just never got over the fear, I guess. And defense counsel, on cross-examination, asked the victim: Defense Counsel: [Barton]? Now, you told the prosecutor that you were abused by -7- [The Victim:] Yes. Defense Counsel: What did [Barton] do to you? *** [The Victim:] He raped me. Defense Counsel: definition? Now, just so I – we are clear, what constitutes rape in your [The Victim:] Him having sex with me unwillingly. *** Defense Counsel: The allegations involving [Barton], did they involve penetration with a finger? [The Victim:] No. *** Defense Counsel: Without getting into the specifics then of the incident with [Barton], it didn’t upset you? [The Victim:] Yes. Trial Court: When did this occur? [The Victim:] In Alabama like – I don’t know what year it was. I was like, I don’t know, 3, 4. Trial Court: Do you recall how old you were at that time? [The Victim:] 3 or 4. Trial Court: 3 or 4? [The Victim:] Yeah. Trial Court: Okay. Defense Counsel: This incident with [Barton], it obviously upset you and you never told anybody about that one, either? [The Victim:] No. Defense Counsel: But you did go see a counselor? [The Victim:] Yeah. -8- Defense Counsel: But you never told the counselor? [The Victim:] No. Defense Counsel: The reason that you were seeing the counselor was to see if [Barton] abused any of the other children, correct? [The Victim:] Yeah. Defense Counsel: So I assume then the counselor would ask you some questions about whether [Barton] did anything to you? [The Victim:] Yeah. Defense Counsel: And you told the counselor no? [The Victim:] Yeah. It was error for the prosecution to question the victim about sexual abuse that may have been perpetrated by persons other than defendant. However, defendant did not object, and also asked additional questions about the victim having been sexually abused by another person. Thus, defendant waived his claim of error on appeal. Carter, 462 Mich at 214-216. Regardless, the trial court properly instructed the jury that it could convict defendant of the charged offenses only if it found defendant committed the charged offenses. Thus, the error was not prejudicial to defendant. Defendant argues that he was denied the effective assistance of counsel when defense counsel failed to object to irrelevant and unduly prejudicial other bad acts evidence throughout the trial and erred in eliciting some of the damaging other acts evidence from the witnesses. We disagree. A defendant must make a testimonial record in the trial court with a motion for a new trial that will evidentially support his claim of ineffective assistance of counsel. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), quoting People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971). When there is no evidentiary hearing or motion for a new trial at the trial level, review is limited to the errors apparent on the record. People v Noble, 238 Mich App 647, 661; 608 NW2d 123 (1999). In this case, defendant did not make a motion for a new trial or seek an evidentiary hearing at the trial court level, therefore, review is limited to errors apparent on the record. The determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. The trial court’s findings of fact are reviewed for clear error, while its constitutional determinations are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To establish a claim for ineffective assistance of counsel, a defendant must show (1) that counsel’s assistance fell below an objective standard of professional reasonableness, and (2) that but for counsel’s ineffective assistance, the result of the proceeding would have been different. Strickland v Washington, 466 US 668, 687-88, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Effective assistance of counsel is presumed, and the defendant bears a heavy burden to prove otherwise. LeBlanc, 465 Mich at 578. The defendant “must overcome a strong presumption that counsel’s performance constituted sound trial strategy.” People v Riley (After Remand), 468 -9- Mich 135, 140; 659 NW2d 611 (2003), habeas gtd 388 F Supp 2d 789 (ED Mich, 2005), rev’d and remanded on other grds 481 F3d 315 (CA 6, 2007). Defense counsel’s questioning of witnesses during trial is presumed to be a matter of trial strategy, People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008), and this Court will not second-guess defense counsel’s decision with the benefit of hindsight, People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). In reviewing the existing record, defendant has not proven that counsel’s failure to object to the other acts evidence or eliciting of other acts evidence during cross-examination constituted deficient performance. As previously discussed, the other acts evidence was properly admissible, and thus, it would have been futile for defense counsel to object or request a curative jury instruction. See People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004) (“Counsel is not ineffective for failing to make a futile objection.”). Furthermore, defense counsel’s elicitation during his cross-examination of details regarding the other acts evidence could have been part of counsel’s strategy to catch the witnesses in inconsistent positions and to discredit the victim. That a strategy does not work does not render its use ineffective assistance of counsel. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001). Defendant has not overcome the presumption that counsel’s actions constituted sound trial strategy, and thus, defendant has not established that a new trial is warranted. Furthermore, given the evidence against defendant, including the victim’s testimony that defendant touched her chest and stomach about ten times, and touched in between the outer lips of her vagina about 70 times, any deficiency in counsel’s performance did not prejudice defendant. Defendant, in his standard 4 brief, argues counsel was ineffective for failing to use peremptory challenges during voir dire on jurors who indicated they had children around the same age as the victim. We disagree. The decision to accept or reject a potential juror is purely a matter of trial strategy because it is often based on non-verbal cues, and this Court is incapable of seeing the potential jurors and hearing their answers to questions posed at voir dire. People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008); People v Robinson, 154 Mich App 92, 94-95; 397 NW2d 229 (1986). Defendant has not suggested that any of these jurors stated they could not be fair or impartial because they had children around the same age as the victim, nor has he provided any offer of proof regarding his claim. Defendant has the burden of establishing the factual predicate for his claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The existing record provides no basis for concluding that defendant was denied a fair trial by the mere presence of jury members with children around the same age as the victim. Defense counsel could have had numerous reasons for not using his peremptory challenges on these jurors, including that counsel was satisfied with the jury selection based on the jurors’ responses during voir dire. Defendant has not overcome the presumption that counsel’s action constituted sound trial strategy, and thus, defendant has not established that a new trial is warranted. Furthermore, given the evidence against defendant, including victim’s testimony that defendant touched her chest 15 to 20 times, touched inside her vaginal area about 70 times, and rubbed the outside of her vagina three to four times, any deficiency in counsel’s performance did not prejudice defendant. Therefore, counsel was not ineffective on any of these bases. Defendant argues in his standard 4 brief that the prosecutor committed misconduct in her closing argument. We disagree. Defendant’s unpreserved claim is reviewed for plain error affecting his substantial rights. Jones, 468 Mich at 355. -10- In reviewing a claim of prosecutorial misconduct, this Court must examine the pertinent portion of the record and evaluate the prosecution’s remarks in context. People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). The propriety of the prosecution’s comments depends on the specific facts of each case because “a prosecutor’s 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.” Id. Prosecutors are allowed to argue all reasonable inferences that arise from the evidence and need not confine the argument to “the ‘blandest of all possible terms.’” People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001), quoting People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989). The thrust of a prosecutorial misconduct analysis is to determine whether defendant was denied a fair trial. People v Wilson, 265 Mich App 386, 393; 695 NW2d 351 (2005). During her closing argument, the prosecutor stated: Going over each and everyone’s testimony, [Childers] says what happened – as far as she was concerned, that she had a difficult time believing that this would happen. She explained to you that she stuck with [defendant] and she said it a couple of times as a single mom. What you or I would do is not in question here. What you or I would do or what you and I remember is not important here. What’s important is you using your common sense and thinking about the particular circumstances of each of those witnesses and what goes into and what is behind their testimony. This mother testifies that she stuck with the defendant, that he did nice things for her, bought her tires for cars, she helped take care of the kids, and he fathered one of her children, and she wanted – she didn’t want to be alone. She states that she was hoping and praying that he would change and so she continued to go to different counseling, different counselors. When you are weighing her, her testimony keep that in mind. She was quite honest, and I believe that in looking at her testimony that she was being honest when she tells you that she had a – went into a state of shock after, after she found out what happened. She didn’t want to believe it and it was difficult for her to believe, again, use your common sense, what would you feel like if it was your niece or nephew the first time you hear something like that? What would you feel like if it was your granddaughter and it was somebody that you cared about or loved or had in your life at least? Because it appears as though, though this person, they didn’t like him as a father figure, and she didn’t like him as a husband all the time he was involved in their life, and he did do nice things, the prosecution isn’t saying that this, that the defendant is a monster, I’m not saying that he’s an awful person, what I’m saying is that he went into her room, [the victim]’s room and touched her, and while he was rubbing her vaginal area he penetrated the labia majora. In reading the prosecutor’s closing argument as a whole, it is clear the prosecutor was arguing the reasonable inferences from the evidence to show Childers was a credible witness. Issues of witness credibility are for the jury. People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). Thus, the prosecution was properly asking the jury to evaluate the credibility of Childers in light of their common sense and experience, and the prosecution was not confined to only using the blandest of all possible terms. Aldrich, 246 Mich App at 112. -11- Furthermore, a curative instruction generally eliminates any possible prejudicial effect that may have resulted from prosecutorial misconduct. People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996). In this case, the trial court properly instructed the jury that defendant was innocent until proven guilty, the prosecution bears the burden of proving each element of each charged crime beyond a reasonable doubt, and the attorneys’ statements and arguments were not evidence. Thus, any potential prejudice arising from the prosecution’s allegedly improper comment was dispelled. See People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995) (comments made by the prosecution during closing arguments were not improper when read in their entirety and the trial court’s instructions to the jury, that the attorney’s arguments were not evidence, dispelled any prejudice). In looking at the pertinent record and evaluating the prosecutor’s comments in context, defendant cannot show plain error affecting his substantial rights. Finally, defendant argues in his standard 4 brief that MCL 750.520a(r) is unconstitutionally vague. We disagree. Unpreserved claims of constitutional error are reviewed for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 764. A statute may be unconstitutionally vague because 1) it is overbroad and impinges on First Amendment freedoms, 2) it fails to provide fair notice of the conduct proscribed, or 3) it is so indefinite that it confers unlimited and unstructured discretion on the trier of fact to determine whether an offense has occurred. People v Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). When evaluating a vagueness challenge, this Court must examine the entire text of the statute and give the words of the statute their ordinary meanings. Id. MCL 750.520a(r) provides, “‘[s]exual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required.” This Court has held in People v Denmark, 74 Mich App 402, 411-413; 254 NW2d 61 (1977), that “sexual penetration,” as defined by MCL 750.520a(r) was “not so vague as to leave the public without a concrete estimate of its legal meaning.” The ordinary meaning of the statute makes clear that any intrusion, however slight, with any object into the genital opening, including the labia majora, constitutes penetration for the purposes of the statute. See People v Bristol, 115 Mich App 236, 237-238; 320 NW2d 229 (1981) (“The fact that the Legislature used ‘genital opening’ rather than ‘vagina’ indicates an intent to include the labia.”). Affirmed. /s/ Kurtis T. Wilder /s/ Deborah A. Servitto /s/ Douglas B. Shapiro -12-

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