PEOPLE OF MI V TERRY KEITH LOVEGROVEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 7, 1998
Chippewa Circuit Court
LC No. 96-006231 FH
TERRY KEITH LOVEGROVE,
Before: Markman, P.J., and Griffin and Whitbeck, JJ.
Defendant appeals as of right from his conviction of attempted second-degree criminal sexual
conduct (CSC II), MCL 750.520c; MSA 28.788(3). Appellant also pleaded guilty to being a second
habitual offender, MCL 769.10; MSA 28.1082. Appellant’s conviction was based on testimony by his
daughter that appellant touched her breast sometime in November 1994. The trial court sentenced
appellant to a one-year term in the county jail. We affirm.
According to t e daughter, one night in November 1994, appellant removed his jeans and,
nude, lay down on her bed. At some point, the daughter testified, appellant sat up on the bed, while she
stood facing him, and placed his hand underneath her shirt, touching her bare breast for an unspecified
amount of time.
The daughter also testified that from around Mother’s Day in 1994 until November 1994, which
was around the time of her birthday, appellant engaged in other sexually oriented activities with her. The
daughter testified that she and appellant had “French kissed,”1 that appellant had made her give him a
back rub, that appellant had asked her to come in the bathroom while he was taking a bath and wash
his back on more than one occasion, that appellant had spoken to her about how he had sex when he
was eleven years old, that appellant had cut his pubic hair in front of her, that appellant had inserted a
suppository in front of her, that appellant had showed her photographs of nude men and women, that
appellant had tied a piece of bubble wrap around his penis in front of her, that appellant had told her
that it was acceptable for family members to see one another naked and that appellant had come into
her bedroom, removed his jeans, and lay on her bed, nude.
Appellant denied all of his daughter’s allegations of improper conduct. According to appellant,
he touched his daughter in the chest area once, approximately three to four years previously, in response
to her complaint of chest pains. Appellant implied that the daughter’s allegations arose as a result of his
custody dispute with his wife, noting that they coincided with his wife’s attempts to obtain custody of the
II. Prior Bad Acts
Appellant argues the trial court abused its discretion when it admitted the daughter’s testimony
regarding prior sexually oriented incidents between her and appellant. Appellant argues that the ultimate
effect of admitting his daughter’s testimony regarding prior sexually oriented incidents was to give the
daughter’s testimony regarding the November incident an extra and improper aura of believability
critical to his conviction.
Generally, we review a trial court’s decision to admit prior bad acts evidence for an abuse of
discretion. People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). “[A]n abuse of
discretion  exists when an unprejudiced person, considering the facts on which the trial court acted,
would say there was no justification or excuse for the ruling.” Ullah, supra at 673. MRE 404(b)
guides a trial court’s decision to admit prior bad acts testimony. 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
These exceptions are nonexclusive. People v Engelman, 434 Mich 204, 212; 453 NW2d
656 (1990). However, evidence of bad acts is only admissible under MRE 404(b), if: (1) the evidence
is offered for a purpose other than establishing a defendant’s propensity to commit the offense; (2) the
evidence is relevant; and (3) the probative value of the evidence is not substantially outweighed by the
potential of unfair prejudice to the defendant. People v VanderVliet, 444 Mich 52, 74; 508 NW2d
114 (1993), modified on other grounds 445 Mich 1205 (1994).
A. Purpose for Offering the Evidence.
Appellant claims that the prosecutor did not offer the daughter’s testimony of prior bad acts to
establish intent, motive, scheme or plan, but rather that the prosecutor used the testimony to argue that
the daughter was credible. However, establishing that the victim is credible is a proper purpose for such
evidence. People v Wright, 161 Mich App 682, 687; 411 NW2d 826 (1987). In People v
DerMartzex, 390 Mich 410, 413; 213 NW2d 972 (1973), the Michigan Supreme Court held that
evidence of prior bad acts is admissible 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. Here, the prosecutor attempted to put the charged incident in context
by establishing that the appellant was “familiar” with his victim in the sense of the word as it was used in
DerMartzex, namely that appellant was sexually familiar with his victim.
Moreover, even assuming arguendo that establishing the daughter’s credibility were improper,
the prosecutor did rely on the daughter’s testimony for the purpose of establishing intent, motive,
scheme and plan, by arguing that appellant was “grooming” his daughter for future sexual contacts.
Therefore we conclude that the prosecutor did not offer the daughter’s testimony to establish appellant’s
propensity to commit the crime.
As a general rule any evidence that is relevant is admissible. MRE 402; VanderVliet, supra at
60-61. At trial, the daughter’s credibility was at issue. Appellant implied (1) that the daughter lied in
order to effect the outcome of the custody dispute between him and her mother, (2) that the daughter
delayed reporting these incidents to her mother, and (3) that the daughter mistook the November
incident for a harmless incident several years earlier where appellant touched her breast because she
complained of chest pain. The issue on appeal is whether the daughter’s testimony regarding appellant’s
prior sexual activity with her was relevant to her credibility as a witness.
In DerMartzex, supra, the Michigan Supreme Court held that evidence of the accused’s prior
crimes was not barred to establish the credibility of an alleged victim in a criminal sexual assault case:
“the probative value of [evidence tending to show the commission of prior crimes] may outweigh the
[prejudice] 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.” Id. at 413. The Court explained that the admission of “antecedent sexual acts preceding the
charged assault is especially justified where an inchoate offense is charged against a member of the
victim’s household.” Id. at 415. Otherwise, the Court reasoned, the victim’s testimony regarding the
charged conduct would appear to be an isolated, “incredible” incident. Id.
Here, the daughter’s testimony regarding the appellant’s prior sexual contact was relevant to
resolve the appellant’s implied allegations regarding both his daughter’s motives for testifying against him
and the possibility of his daughter’s mistaking the November, 1994 incident for the incident years
Finally, in People v Dunham, 220 Mich App 268, 273; 559 NW2d 30 (1996), this Court
posited, in dicta, that evidence of prior conduct towards the victim in a first degree criminal sexual
conduct case was relevant to explain the victim’s delay in reporting criminal sexual activity. We find that
reasoning persuasive to resolve appellant’s remaining challenge to his daughter’s credibility, that she
delayed to inform her mother.
C. Balancing Probative Value Against Potential Unfair Prejudice.
Appellant cites People v Starr, 217 Mich App 646, 647-648; 553 NW2d 25 (1996), lv gtd
454 Mich 877 (1997), for the proposition that allegations of similar acts that are “so horrendously
prejudicial” should not be introduced under the “rubric” that they are being introduced for purposes of
establishing a scheme, plan or mistake. However, since the date appellant filed his brief, Starr was
reversed in People v Starr, ___ Mich ___; ___ NW2d ___, slip op (rel’d June 2, 1998). Indeed,
were we to rule on appellant’s theory, we would find that appellant’s acts, though repugnant, were not
“so horrendously prejudicial” as to rise to the level of severity contained in the facts of Starr, 217 Mich
App 646 (recounting how defendant Starr was convicted of CSC I and CSC II for engaging in oral sex
with his six year old adopted daughter in addition to sexual contact with his four year old half sister
which, over several years, eventually culminated in intercourse). Rather, we find the reasoning in
People v Hammer, 98 Mich App 471; 296 NW2d 283 (1980) to be persuasive. In Hammer, this
Court, citing DerMartzex, supra, held that testimony regarding prior sexual acts between the defendant
and his daughter, the victim, was admissible on the grounds that the evidence revealed the credibility of
the victim more than it potentially prejudiced the defendant. Id. at 475.
Because the evidence satisfies all three prongs of VanderVliet, we conclude that the trial
court’s decision to admit this testimony was not an abuse of discretion.
III. Prosecutorial Misconduct
Appellant argues that the prosecutor’s comments during closing and rebuttal arguments were
improper and that, despite defense counsel’s failure to object and thereby preserve the issue for appeal,
we should review for manifest injustice. Specifically, appellant argues that the prosecutor (1) improperly
vouched for the credibility of the daughter, (2) urged the jurors to sympathize with the daughter, and (3)
urged the jurors to perform their “civic duty” by convicting appellant, all prejudicial errors whose
prejudice could not be overcome by a curative instruction. In People v Stanaway, 446 Mich 643,
687; 521 NW2d 557 (1994), the Michigan Supreme Court held
Appellate review of improper prosecutorial remarks is generally precluded
absent objection by counsel because the trial court is otherwise deprived of the
opportunity to cure the error… An exception exists if a curative instruction could not
have eliminated the prejudicial effect or where failure to consider the issue would result
in a miscarriage of justice.”
A. Vouching For Truthfulness
Appellant argues the prosecutor bolstered the credibility of the daughter’s testimony in his
closing comments by two arguably impermissible means: First the prosecutor used the first person voice
regarding the credibility of the victim’s testimony.
[T]o me, she is a very truthful little girl.
[Y]ou who agree with me.” [emphases added].
Second, in the same comment, the prosecutor referred to the authority of the police.
You, who agree with me, and the police, and [the daughter], stick with your beliefs.
A prosecutor is permitted to argue that a witness should be believed, People v Wise, 134 Mich
App 82, 104; 351 NW2d 255 (1984). However, a “prosecutor cannot vouch for the credibility of [a]
witness to the effect that he has some special knowledge concerning [the] witness’ truthfulness.”
People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). Further, the “prosecutor may not ask
the jury to convict a defendant on the basis of the prosecutor’s personal knowledge or the prestige of
the office, or that of the police. People v Kulick, 209 Mich App 258, 260; 530 NW2d 163 (1995).
However, “The allowance of otherwise improper argument is often not reversible error when made in
response to a defendant’s argument.” Wise, supra at 103.
Prior to making the statements at issue, the prosecutor specifically stated:
I want to comment just briefly on the opening statement by the defense that this was
equated to a 1691 witch hunt….
Furthermore the trial court instructed the jury that:
The lawyers’ statements and arguments are not evidence. They are only meant to help
you understand the evidence and each side’s legal theories.
Although some of the prosecutor’s comments may have been arguably improper, they are not
grounds for reversal. The allegedly improper remarks were induced by, and responsive to, defense
counsel’s arguments, and a curative instruction was given. People v Hart, 161 Mich App 630, 637;
411 NW2d 803 (1987). Therefore we conclude that no miscarriage of justice occurred.
B. Sympathy For The Victim
A prosecutor is generally not permitted to appeal to the jury to sympathize with a victim. Wise,
supra at 104. Here, the prosecutor stated:
The young girl doesn’t even like the word breast now. That’s what you get
when you are sexually assaulted.
[T]he only person in this court who talked about love is [the daughter]. She
loves her dad, but she said I don’t understand why he did these things.
However, prosecutorial remarks that appeal to the jury’s sympathy must be considered in light
of the appellant’s arguments. People v Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997).
Here, defense counsel sought sympathy for his own client. A plea for sympathy by the prosecutor is a
proper response to a previous plea of sympathy by defense counsel. People v Delisle, 202 Mich App
658, 671; 509 NW2d 885 (1993). Furthermore, defense counsel attacked the sincerity of the
daughter’s behavior (crying) on the stand. In Messenger, supra, 221 Mich App 181, this Court found
that the prosecutor was not seeking sympathy, but rather responding to defense counsel’s argument that
a witness who cried on the stand was not sincere. We find that the prosecutor’s various comments
were in response to defense counsel’s implication that the daughter’s crying was contrived.
Therefore we find that the prosecutor’s arguable invocation of sympathy for the daughter did
not constitute error requiring reversal and that, necessarily, no curative instruction was required at trial.
C. Civic Duty
A prosecutor is not permitted to urge the jury to perform its civic duty by convicting the
defendant, Bahoda, supra at 282, because this introduces an issue broader than the defendant’s
innocence or guilt by requesting that the jurors suspend their own judgment. People v Crawford, 187
Mich App 344, 354; 467 NW2d 818 (1991). Appellant argues that the following comment shows that
the prosecutor tried to use his influence to urge the jurors to perform their civic duty:
And the People would ask that you who agree with me, and the police, and [the
daughter]. Stick with your beliefs. We ask for a conviction as charged to the crime of
criminal sexual conduct in the second degree. Stick with us on this particular charge.
This was not a request to convict based on some broader civic duty than determining appellant’s guilt or
innocence. Rather, is was an observation that the position of the police and prosecution was consistent
with the daughter’s version of events. Moreover, appellant failed to object to the allegedly improper
statement. We hold that there was no miscarriage of justice and that, necessarily, no curative instruction
was required at trial.
IV. Ineffective Assistance of Counsel
Appellant argues that he received ineffective assistance of counsel based on his attorney’s failure
to object: (1) to the timeliness of the prosecution’s motion to introduce alleged prior sexual acts
between appellant and his daughter; (2) to allegedly improper statements made by the prosecution
during its closing and rebuttal arguments; (3) to the trial court’s instruction regarding the lesser included
charge of “attempt” when, appellant maintains, there was no evidence to support the instruction; and (4)
to the introduction of a victim impact statement drafted by appellant’s former wife.
To establish a claim of ineffective assistance of counsel, appellant must show that (1) “counsel’s
performance was below an objective standard of reasonableness under professional norms…[, and (2)]
that there is a reasonable probability that, but for defense counsel’s error, the result of the proceeding
would have been different.” Stanaway, supra at 687-88. Further, “[appellant] must overcome a
strong presumption that [the former defense] counsel’s assistance constituted sound trial strategy.”
Stanaway, supra at 687. Indeed, we will not substitute our judgment for that of trial counsel regarding
strategy. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987).
Because appellant did not move for an evidentiary hearing at trial to develop this issue, our
review is limited to the record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
A. Failure To Object To Motion
In VanderVliet, supra at 89, n 51, the Michigan Supreme Court explained that the purpose of
pretrial notice is to protect a defendant from unfair surprise and to give the defendant an opportunity to
marshal arguments regarding relevancy and unfair prejudice. Here, because defense counsel had the
opportunity to construct his arguments, it is unlikely that an objection based on inadequate notice would
have been sustained. Therefore, defense counsel’s failure to object to the prosecutor’s allegedly
unreasonable delay in noticing his intent to use prior bad acts evidence did not affect the outcome of
B. Failure To Object To Prosecutor’s Statements.
Trial counsel’s failure to object to allegedly improper statements during closing and rebuttal
arguments may have constituted sound trial strategy. People v Sardy, 216 Mich App 111, 116; 549
NW2d 23 (1996), holds that the appellant bears the burden of showing that trial counsel’s conduct did
not constitute sound trial strategy. Our analysis of the record convinces us that trial counsel may have
concluded that objecting to the prosecution’s remarks would have only underscored them. See
People v Rone (On Second Remand), 109 Mich App 702, 717-718; 311 NW2d 835(1981). We
will not second guess trial strategy. Barnett, supra at 338.
C. Failure To Object To Instructions.
Because appellant had been charged with second-degree criminal sexual conduct, a general
intent crime, appellant had fair notice to defend against the charge of attempt because the proofs for
both charges are substantially the same. People v Leo, 188 Mich App 417, 425; 470 NW2d 423,
425 (1991). Therefore, any objection to this instruction would have been denied. Therefore, trial
counsel’s failure to object therefore did not amount to ineffective assistance.
D. Failure To Object To Consideration Of Victim Impact Statement.
The victim impact statement, authored by the daughter’s mother, was included as a portion of
appellant’s presentence investigation report. The purpose of the presentence investigation report is to
gather information to present the trial court regarding the appellant’s background. People v
Kisielewicz, 156 Mich App 724, 729; 402 NW2d 497 (1986). Although a statement of the victim is
included as a matter of statutory right, MCL 780.764; MSA 28.122287(764), statements by the minor
victim’s mother, among others, are permitted to further the goal of obtaining a broad scope of
information. Kisielewicz, supra at 728. The trial court therefore properly considered information
contained in the victim impact statement. Trial counsel’s failure to object had no impact on appellant’s
sentencing because the information would have been considered regardless of any objection.
E. Ginther Hearing
Appellant argues that he attempted to replace trial counsel but the trial court denied him the
opportunity to do so. However, there is no evidence of such an attempt in the trial court record or in
appellant’s motion for a new trial. Appellant contends that in order to provide a factual record of this
allegation, we should remand appellant’s case to the trial court for further evidentiary hearing.
An appellant who seeks further evidentiary hearing regarding ineffective assistance of counsel, a
matter not on the record, must satisfy one of two conditions: (1) the appellant must first attempt to raise
the issue before the trial court or (2) if the record “manifestly shows” that the trial court would have
refused to grant such a hearing, the appellant may request this Court to order such a hearing. Ginther,
supra at 443-444
Here, appellant first failed to address this issue before the trial court. On appeal, appellant’s
brief is silent as to whether the trial court record “manifestly shows” that such a request would have
been denied. Therefore, we decline to review this issue.
/s/ Stephen J. Markman
/s/ Richard Allen Griffin
/s/ William C. Whitbeck
The daughter testified that defendant “[p]ut his tongue in my mouth.”
In Engelman, supra at 222, the Michigan Supreme Court declined to follow DeMartzex with regard
to the issue of acts involving persons other than the victim.