PEOPLE OF MI V MARK ROBERT PETRIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 15, 2008
June 26, 2008
Livingston Circuit Court
LC No. 06-015781-FH
MARK ROBERT PETRI,
Advance Sheets Version
Before: Wilder, P.J., and O’Connell and Whitbeck, JJ.
Following a jury trial, defendant was convicted of second-degree criminal sexual
conduct, MCL 750.520c(1)(a) (sexual contact with a person under 13), and was sentenced as a
second-offense habitual offender, MCL 769.10, to imprisonment for a minimum of 14 years and
10 months and a maximum of 22 ½ years. He appeals of right. We affirm.
The victim and her parents met defendant on July 5, 2005, during a family outing.
Defendant then began arriving at the victim’s house for breakfast when her father was leaving
for work. Defendant was usually around the victim and her siblings during his visits, on one
occasion jumping into bed with the victim and tickling her to wake her up. On more than one
occasion he pinched the victim’s bottom while they were swimming in a lake.
The incident that led to defendant’s conviction occurred on July 14, 2005, while the
victim’s mother and defendant were helping a friend move to a new residence. The victim and a
younger sister rode with defendant in his truck. The victim was seated next to defendant in the
front passenger seat, while her sister sat behind them. Defendant stopped at a gas station and
bought a bottle of Mountain Dew. After returning to the truck, defendant, while giving the 12
year-old victim a strange smile, used the bottle to open the victim’s closed legs and then pushed
it up her jean skort (a skirt with shorts stitched underneath) so that the bottle cap touched the
clothing covering her genital area. The victim waited a few minutes before removing the bottle.
She later told her sister and mother what defendant did with the bottle. The victim’s mother
reported the incident to the Livingston County Sheriff’s Department, which investigated. During
an interview conducted by Detective Scott Domine after his arrest, defendant denied that he was
ever left alone with the victim and her sister.
Defendant now argues that he was denied the effective assistance of counsel at trial
because trial counsel failed to raise several evidentiary objections. Because defendant did not
move for a new trial or Ginther1 hearing, our review is limited to mistakes apparent on the
record. People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001).
A defendant has waived the issue if the record on appeal does not support the defendant’s
assignments of error. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620
NW2d 19 (2000). A claim of ineffective assistance of counsel is a mixed question of law and
fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial court’s findings of
fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue
arising from an ineffective assistance of counsel claim de novo. Id.
Effective assistance of counsel is presumed and defendant bears the burden of proving
otherwise. LeBlanc, supra at 578. To succeed on a claim of ineffective assistance of counsel,
the defendant must show that, but for an error by counsel, the result of the proceedings would
have been different, and that the proceedings were fundamentally unfair or unreliable. People v
Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). The defendant bears a “heavy burden”
on these points. People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Defendant must
overcome a strong presumption that counsel’s performance constituted sound trial strategy.
People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). “This 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 Garza, 246 Mich App 251, 255;
631 NW2d 764 (2001).
Defendant first argues that defense counsel was ineffective for failing to challenge the
admissibility of evidence of his two prior convictions for second-degree criminal sexual conduct
under MRE 404(b), which limits the admission of a defendant’s other crimes, wrongs, or acts.
We disagree. The admissibility of the evidence did not depend on MRE 404(b), because the
prosecutor also relied on MCL 768.27a as authority to admit it. When a defendant is charged
with second-degree criminal sexual conduct against a minor, evidence that the defendant
committed another crime of second-degree criminal sexual conduct against a minor may be
admitted under MCL 768.27a, independent of MRE 404(b), even if there was no conviction for
the other crime. See People v Pattison, 276 Mich App 613, 618-619; 741 NW2d 558 (2007).
The evidence “may be considered for its bearing on any matter to which it is relevant.” MCL
768.27a. A defendant’s propensity to commit criminal sexual behavior can be relevant and
admissible under the statutory rule to demonstrate the likelihood of the defendant committing
criminal sexual behavior toward another minor. Pattison, supra at 619-620.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
The trial court’s remarks at trial indicate that there were off-the-record discussions with
the prosecutor and defense counsel regarding the admissibility of defendant’s two prior
convictions of second-degree criminal sexual conduct involving minors. Although defense
counsel did not object to the evidence on the record, it is clear from the trial court’s remarks that
it considered the evidence admissible under MCL 768.27a. The trial court also applied MRE
403, stating that the probative value of such evidence “vastly outweighs” the prejudicial value,
calling for its admission. Defendant has failed to show that an on-the-record objection by
defense counsel, based on either MRE 404(b) or MCL 768.27a, would have caused the trial court
to exclude the evidence.
Further, we agree with the prosecution’s argument that the evidence was used by the
defense. Defense counsel suggested to the jury in closing argument that the discovery of
defendant’s status as a convicted sex offender caused the victim’s mother to perceive defendant’s
innocent conduct as a sexual assault. Defense counsel argued that the victim’s mother was “in
the front lines” of what happened, and concluded his closing argument by suggesting, “It’s easy
to—to point the finger at him and to agree that what he did was shameful—his past is shameful. .
. . It’s so dangerous in this case because of his past. That you would overlook something that
was otherwise innocent that became something else, but I think that’s exactly what happened in
Defendant has failed to overcome the presumption that defense counsel engaged in sound
trial strategy by not making an on-the-record objection to evidence that was ultimately used by
the defense. Defense counsel stipulated the admission of a certified copy of the convictions
during the victim’s mother’s testimony regarding information that she acquired from defendant
about him being a registered sex offender. A failed strategy does not constitute deficient
performance. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001). In any
event, defendant’s claim of ineffective assistance of counsel on this ground cannot succeed
because there is no reasonable probability that an objection would have made a difference in the
Defendant also argues that defense counsel was ineffective by not adequately cross
examining Detective Domine to dispel any suspicion that defendant was involved in “scoping
out” a day-care center. Because defendant has not supported his argument with citations to the
record, as required by MCR 7.212(C)(7), we need not consider this argument. “Defendant may
not leave it to this Court to search for a factual basis to sustain or reject his position.” People v
Norman, 184 Mich App 255, 260; 457 NW2d 136 (1990). But even if we were to overlook this
deficiency, appellate relief on this ground would not be warranted.
The questioning of witnesses is presumed to be a matter of trial strategy. People v
Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Here, defense counsel made an initial
hearsay objection to the victim’s mother giving testimony regarding what a friend told her about
an incident at a day-care center in Pinckney. The trial court overruled the objection, because the
prosecutor was not offering the evidence for a substantive purpose (to prove the truth of the
matter asserted), but rather to show how the information affected the victim’s mother. The
prosecutor was cautioned not to suggest that defendant committed the act, and the prosecutor
responded by using leading questions to question the victim’s mother. The victim’s mother
testified that information about the day-care incident caused her to contact defendant’s probation
agent, who told her to contact Detective Domine, which in turn led her to report the incident
involving the victim to Detective Domine. Defense counsel later elicited testimony from
Detective Domine that he received information from the Pinckney Police Department that
defendant had an alibi for the day-care-center incident.
Defendant’s argument is cursory. And we are not persuaded that defense counsel’s
failure to further cross-examine Detective Domine on the fact that defendant was not linked to
the day-care incident, or to emphasize the matter more strongly to the jury, constituted deficient
performance or caused the requisite prejudice. This is especially true given that defense counsel
established that defendant had an alibi for the incident.
Defendant next argues that defense counsel was ineffective for stipulating the admission
of a certified copy of his prior convictions. Defendant argues that a simple verbal stipulation
would have been sufficient to inform the jury about the prior convictions. Alternatively,
defendant argues that defense counsel should have requested that the documents be redacted to
exclude information that he was sentenced to probation and was not allowed to have
unsupervised contact with children under 16 years of age. Limiting our review to the record,
defendant has not met his burden of showing either deficient performance or prejudice.
Although we agree that penalty is not an appropriate consideration for the jury, the jury
was instructed that “[p]ossible penalty should not influence your decision.” Jurors are presumed
to follow instructions, and instructions are presumed to cure most errors. People v Abraham, 256
Mich App 265, 279; 662 NW2d 836 (2003).
Further, there is no evidence that the jury was informed of the possible penalty; it was
only informed of the sentences that defendant received for prior crimes. Considering that the
victim’s mother testified that she spoke with defendant’s probation agent, the jury could have
reasonably inferred that defendant was on probation, regardless of the content of the exhibit.
Defense counsel evidently made a strategic decision to have the jury see the entire judgment of
sentence, rather than risk the jury speculating about the applicable conviction for the
probationary sentence or the terms of probation. The information that defendant was not
permitted to have unsupervised contact with children was consistent with defense counsel’s
closing argument that it did not make sense that defendant would take the children into his truck
and assault one of them.
And while the prosecutor used this information in her closing argument to suggest that
defendant lied to Detective Domine, because of concern that his probation would be revoked if
he told the truth, we are not persuaded that the argument was improper. That our rules of
evidence preclude the use of evidence for one purpose does not render the evidence inadmissible
for other purposes. People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000).
Therefore, we reject defendant’s claim that defense counsel was ineffective by not objecting to
the prosecutor’s argument. Counsel need not make a futile objection. Rodgers, supra at 715.
Finally, defendant argues that defense counsel was ineffective for failing to object to
Detective Domine’s testimony about “grooming.” We disagree. Detective Domine did not
testify that defendant engaged in “grooming”; only that he was concerned that there might have
been grooming going on, based on what he was told by the victim’s mother, and that this was a
factor in his decision to go forward with an investigation and prosecution. Although Detective
Domine also provided a definition of “grooming,” we reject defendant’s position that the
definition required expert testimony.
In People v Ackerman, 257 Mich App 434, 443-445; 669 NW2d 818 (2003), this Court
upheld the admissibility of a psychotherapist’s expert testimony about patterns of behavior
exhibited by child sex abusers. Unlike in Ackerman, Detective Domine was attempting to
explain his decision to move forward with an investigation. Detective Domine did not testify
regarding typical patterns of behavior, but only described a process in his definition of
“grooming” where “you start with small things with children and they progress to greater things.
Touching can progress to more intense sexual contact later on.”
Because there is no indication that Detective Domine was offering a technical or
scientific analysis of the behavior of child sex abusers, it was not necessary that the prosecutor
qualify Detective Domine as an expert. Cf., e.g., People v McLaughlin, 258 Mich App 635, 657
658; 672 NW2d 860 (2003) (lay opinion admissible under MRE 701 where it was largely based
on common sense and did not involve highly specialized knowledge).
Even assuming that it was necessary that Detective Domine be qualified as an expert
witness to give his brief testimony regarding “grooming,” any error was harmless, because
Detective Domaine would have qualified. Detective Domine testified that he had 15 years of
experience with the Livingston County Sheriff’s Department, and received training in the
forensic interviewing of children. A police witness can be qualified as an expert on the basis of
experience or training in child sexual abuse cases. MRE 702; People v Dobek, 274 Mich App
58, 76-79; 732 NW2d 546 (2007). In any event, we conclude that expert testimony was not
necessary to assist the jury in evaluating the evidence of the events leading up to the July 14,
2005, incident underlying the charge. Finally, because no reasonable probability exists that
Detective Domine’s brief testimony regarding “grooming” affected the outcome of the trial,
defendant’s claim of ineffective assistance of counsel fails.
Defendant next argues that the trial court erred by denying his motion to disqualify the
prosecutor from trying the case on the ground that she had interviewed the victim and was
therefore a necessary witness. We review the trial court’s findings of fact for clear error and its
application of the law to the facts de novo. People v Tesen, 276 Mich App 134, 141; 739 NW2d
689 (2007). A defendant seeking to disqualify a prosecutor as a necessary witness bears the
burden of proof. Id. at 144. A prosecutor is not a necessary witness if the substance of the
testimony can be elicited from other witnesses, and the party seeking disqualification did not
previously state an intent to call the prosecutor as a witness. Id.
Michigan lawyers are governed by the Michigan Rules of Professional Conduct (MRPC),
under which a lawyer generally cannot simultaneously be a witness and an advocate at trial.
MRPC 3.7(a) provides:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to
be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered
in the case; or
(3) disqualification of the lawyer would work substantial hardship on the
client. [Emphasis added.]
In Tesen, a prosecutor, in investigating a complaint that the defendant sexually abused his
son, took a lead role by conducting a forensic interview of the son2 while other team members
observed all or part of the interview. Tesen, supra at 135-136. The next day, the prosecutor
authorized a warrant charging the defendant with first-degree criminal sexual conduct and other
charges. Id. at 136. The defendant moved to disqualify the prosecutor before the preliminary
examination, asserting that he reasonably intended to call him as a witness. Id. The district court
denied the motion, but the circuit court later granted a defense motion to disqualify the
prosecutor. Id. at 139. This Court affirmed the disqualification order, finding no clear error in
the circuit court’s determination that the prosecutor was likely to be a necessary witness at trial.
Id. at 135.
We find Tesen distinguishable, because here defendant did not make a timely demand to
disqualify the prosecutor, nor did he demonstrate that the prosecutor would be a necessary
witness at trial. The issue was first raised at defendant’s preliminary examination. Defense
counsel acknowledged that the prosecutor was a highly qualified, trained forensic interviewer,
and that another trained forensic interviewer also observed the interview. The district court did
not disqualify the prosecutor, but indicated that its decision could change, and that defense
counsel would have a right to cross-examine the prosecutor if there was information that only
she possessed. Any notes of the interview of the victim were to be given to defense counsel.
Ultimately, only the victim and her mother testified at the preliminary examination.
After defendant was bound over for trial in the circuit court, defendant’s counsel withdrew.
Much later, substitute counsel filed a motion to disqualify the prosecutor. The prosecutor filed a
response that, among other things, challenged defense counsel’s claim that no hardship would
result if she were disqualified. The trial court denied the motion, ruling that the prosecutor was
not a necessary witness because other witnesses could bring forth the information at issue, and
ruling that, because the motion was on the eve of trial, granting the motion would be prejudicial
to the prosecution.
We affirm the trial court’s reasoning. The trial court appropriately questioned the
timeliness of the motion. “[T]he timeliness of the motion may be considered in determining the
likelihood that the defendant's motion is made in good faith and not just for the purpose of
gaining a tactical advantage.” People v Paperno, 54 NY2d 294, 303; 429 NE2d 797; 445
The goal of the forensic interview was to obtain a statement from the child “in a
developmentally sensitive, unbiased, and truth-seeking manner” to support accurate and fair
decision-making. Tesen, supra at 136.
NYS2d 119 (1981). It can cause a hardship by disqualifying the prosecutor most familiar with
the case and requiring duplicative work by a substitute prosecutor. United States v Johnston, 690
F2d 638, 645 (CA 7, 1982).
Further, we agree with the trial court’s determination that defense counsel failed to
establish that the prosecutor was a necessary witness. Although given an opportunity to identify
a particular issue on which the prosecutor would be a necessary witness, the gist of defense
counsel’s argument was that any prosecutor should be automatically disqualified if he or she
becomes part of an interview team or conducts a forensic interview. Because defense counsel
failed to offer any particularized basis for concluding that the prosecutor’s testimony would be
material to the defense, we uphold the trial court’s denial of the motion to disqualify.
The trial court’s decision did not deprive defendant of a substantial defense. Defense
counsel presented evidence at trial regarding the prosecutor’s interview through his cross
examination of Detective Domine. Defendant has not identified any issue that actually arose at
trial, or was raised by defense counsel on the basis of the trial evidence, that demonstrates a need
for the prosecutor’s testimony to support the defense. The right to present a defense may be
limited by rules of procedure and evidence designed to ensure fairness and reliability. People v
Toma, 462 Mich 281, 294; 613 NW2d 694 (2000). Because we find no error in the trial court’s
ruling not to disqualify the prosecutor, and defendant has not demonstrated that he was deprived
of his right to present a substantial defense at trial, reversal is denied.
Next, defendant seeks to set aside his minimum sentence of 14 years and 10 months.3
Defendant argues that the trial court erred by imposing a minimum sentence of 178 months, a
71-month (about a six-year) departure from the sentencing guidelines recommended range of 43
to 107 months for the minimum sentence. As explained in People v Young, 276 Mich App 446,
448; 740 NW2d 347 (2007):
In reviewing a trial court’s grounds for departing from the sentencing
guidelines, this Court reviews for clear error the trial court’s factual finding that a
particular factor in support of departure exists. People v Babcock, 469 Mich 247,
264; 666 NW2d 231 (2003). However, whether the factor is objective and
verifiable is a question of law that this Court reviews de novo. Id. Finally, this
Court reviews for an abuse of discretion the trial court's determination that the
objective and verifiable factors present in a particular case constitute substantial
and compelling reasons to depart from the statutory minimum sentence. Id. at
264-265. A trial court abuses its discretion when it selects an outcome that does
not fall within the range of reasonable and principled outcomes. Id. at 269.
Although it appears that the trial court intended to impose the statutory maximum sentence of
15 years, the trial court was dissuaded from doing so by the prosecutor’s erroneous calculation
that two-thirds of the 22 ½ year maximum was 14 years and 10 months.
The guidelines range was based on a score of 60 total prior record variable (PRV) points
and 45 total offense variable (OV) points. A score of 50 points for PRV 1 reflected that
defendant had two prior high-severity felony convictions, MCL 777.51(1)(b), and a score of 10
points for PRV 6 reflected that defendant was on probation, MCL 777.56(1)(c). A score of 10
points each for OV 4 and OV 10 reflected that the victim suffered serious psychological injury
requiring professional treatment, MCL 777.34(1)(a), and that defendant exploited the victim’s
youth, MCL 777.40(1)(b). Finally, the score of 25 points for OV 13 reflected that the “offense
was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.”
We agree with defendant that the trial court’s reason for departure reflects some of the
characteristics already considered in OV 13 and PRV 1. But this is not necessarily fatal to the
minimum sentence imposed. A trial court “shall not base a departure on an offense characteristic
or offender characteristic already taken into account in determining the appropriate sentence
range unless the court finds from the facts contained in the court record . . . that the
characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b)
(emphasis added). Here, the trial court’s determination that the guidelines failed to adequately
consider the similar nature of defendant’s pattern of felony crimes, and the aggravating
circumstances, satisfied the exceptions permitted by statute.
The requirement that the trial court base its decision on objective and verifiable facts—
i.e., actions and occurrences external to the minds of those involved in the decision and capable
of being confirmed, People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003)—did not
preclude the court from drawing inferences about defendant’s behavior from objective evidence.
For instance, in People v Claypool, 470 Mich 715, 718; 684 NW2d 278 (2004), our Supreme
Court determined that if it could be objectively and verifiably shown that police conduct or some
other precipitating cause altered a defendant’s intent, the altered intent could be considered by a
sentencing judge as a basis for a downward departure. Here, while the trial court described
defendant’s conduct as “grooming” and “stalking,” it reached these conclusions on the basis of
objective evidence that defendant arrived at the victim’s home after her father left the home, that
defendant crawled into her bed, and that defendant pinched the victim when they were
swimming. The trial court drew reasonable conclusions about defendant’s actual behavior to
depart from the guidelines, and we find no error in its consideration of these aggravating
circumstances as a basis for exceeding the guidelines range.
We are also satisfied that the trial court’s observations regarding the reversal of
convictions of first-degree criminal sexual conduct in another case did not affect its decision to
depart from the guidelines range, nor did it affect the extent of the departure. We find no support
for defendant’s suggestion that the trial court improperly assumed that he committed the prior
offenses. Examined in context, the trial court’s remarks indicate only that it was summarizing
defendant’s criminal history. Therefore, resentencing on this ground is not warranted. Babcock,
supra at 271-272.
In sum, defendant has not established sufficient basis for disturbing the trial court’s
determination that substantial and compelling reasons existed to depart from the guidelines
recommended range for the minimum sentence. Further, the degree of departure was not an
abuse of discretion. To be sure, this case presented a difficult sentencing decision. But we
conclude that a minimum sentence of 178 months is within the range of reasonable and
principled outcomes. Babcock, supra at 268-269; Young, supra at 448. The sentence is
proportionate to the seriousness of defendant’s crimes, past and present. Babcock, supra at 262.
Finally, defendant argues that he is entitled to resentencing, because the trial court
enhanced the sentence on the basis of facts neither admitted by defendant nor proven to a jury
beyond a reasonable doubt. Defendant relies on the Due Process Clause, as well as the Fourth
and Sixth amendments of the United States Constitution. We disagree.
Defendant relies on Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403
(2004), contending that the trial court erred by relying on facts not found by the jury when
scoring the sentencing guidelines. But defendant concedes that he did not preserve his argument.
In any event, defendant’s argument lacks merit, because Blakely does not apply to Michigan’s
indeterminate sentencing regime. See People v McCuller, 479 Mich 672, 694-695; 739 NW2d
The trial court did not infringe defendant’s constitutional right to the effective assistance
of counsel. The trial court did not abuse its discretion in denying defendant’s eleventh-hour
motion to disqualify the prosecutor. The trial court did not abuse its discretion in imposing a
minimum sentence in excess of the range recommended by the statutory sentencing guidelines,
and did not impose a disproportionate sentence. Finally, the trial court’s sentence did not violate
defendant’s federal Sixth Amendment rights.
/s/ Kurtis T. Wilder
/s/ Peter D. O’Connell
/s/ William C. Whitbeck