PEOPLE OF MI V DARRELL WARREN PERKINSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 11, 1998
Cass Circuit Court
LC No. 96-008807 FH
DARRELL WARREN PERKINS,
Before: Griffin, P.J., and Neff and Bandstra, JJ.
Defendant Darrell Warren Perkins was convicted in a jury trial of second-degree criminal sexual
conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), for which he was sentenced to ten to fifteen
years’ imprisonment. He now appeals as of right. We affirm.
This conviction arose from an incident that occurred when the victim was ten-years old. She
testified that defendant took her fishing with his stepson and another boy. While the boys were fishing,
defendant took the victim into woods nearby, where he grabbed her, pulled her pants down, and put his
penis between her legs. Defendant then masturbated in front of the victim until “white stuff was squirting
out.” The victim did not report the incident for over a month. During that time, she continued to come
to defendant’s house to play with defendant’s stepdaughter. When she reported the incident, she told
her parents and police that defendant had penetrated her. However, after a doctor had examined the
victim’s vagina, found no evidence of bleeding or scar tissue, and caused her pain when the doctor put
his finger “superficially inside” her vagina, she said that defendant touched her. Shawn Loughrige, a
state police officer, testified that when he asked defendant for the truth as to what had happened,
defendant replied that if he told Loughrige the truth, he would go to prison.
At trial, defendant denied that the incident occurred. He also denied admitting guilt to
Loughrige, claiming that he told Loughrige that if he said that the allegations were true, he would go to
In his first argument, defendant claims the trial court committed error necessitating reversal in
allowing cross-examination of himself and his wife as to their sexual practices and marital problems.
Defendant failed to properly object to the testimony about which he now complains,1 thus waiving
appellate review in the absence of manifest injustice. People v Turner, 213 Mich App 558, 583; 540
NW2d 728 (1995). After a careful review of the record, we find no manifest injustice in the admission
of the now-challenged testimony.
In his second argument, defendant claims he was denied effective assistance of counsel. We
To establish a claim of ineffective assistance of counsel, a defendant must show that (1)
counsel’s performance was below an objective standard of reasonableness under prevailing professional
norms, and (2) there is a reasonable probability that, but for counsel’s unprofessional error, the result of
the proceeding would have been different. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d
557 (1994). Because no Ginther hearing was held, this Court’s review is limited to errors apparent on
the record. People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998).
Defendant claims that his counsel was ineffective because he asked defendant whether he had
molested any other children at the complex where he and the victim lived. Read in context, we find this
question to be a valid attempt to demonstrate that the acts alleged by the victim were false because they
were out of character with his previous behavior. Defendant has failed to overcome the presumption
that counsel’s action might be considered sound trial strategy. People v LaVearn, 448 Mich 207, 216;
528 NW2d 721 (1995).
Defendant also claims that counsel was ineffective because he failed to cross-examine the victim
about whether she saw a tattoo on defendant’s penis. The record contains no evidence that such a
tattoo exists.2 Further, defendant again has not overcome the presumption that counsel’s decision to
refrain from questioning the young victim on this matter was a matter of trial strategy.
Finally, defendant claims defense counsel was unprepared for a Walker hearing regarding the
admissibility of a post-polygraph statement to police.. Even if we were to assume that counsel’s
conduct fell below an objective standard of reasonableness, there is nothing in the record to indicate
that, but for counsel’s alleged lack of preparation, the outcome of the proceeding would likely have
been different. Stanaway, supra.
Defendant next claims the trial court abused its discretion in admitting a post-polygraph
statement to police. We disagree.
The decision whether to admit evidence is within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d
673 (1998). Defendant claims the probative value of the statement – that if he told police the truth he
would go to prison – was outweighed by its prejudicial effect because it was obvious to the jury that it
was made in the course of a polygraph examination. We disagree. The court carefully limited the scope
of the testimony to statements made after the polygraph, and we find no support for defendant’s claim
that challenged testimony suggested that he had submitted to a polygraph examination. The trial court
did not abuse its discretion in admitting defendant’s statement.
In his final argument, defendant challenges the sufficiency of the evidence. We review this issue
de novo. People v Medlyn, 215 Mich App 338, 341; 544 NW2d 759 (1996). In doing so, we view
the evidence in the light most favorable to the prosecution and determine whether any rational trier of
fact could have found the elements of the offense beyond a reasonable doubt. Id.
In the present case, the victim testified that defendant grabbed her, pulled her pants down, put
his penis between her legs, and then masturbated to ejaculation in front of her. Defendant denied the
victim’s account. On appeal, defendant’s entire argument questions whether the victim’s story is worthy
of belief. This argument must fail, because the determination of witness credibility is the function of the
jury and not of this Court. People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997).
/s/ Richard Allen Griffin
/s/ Janet T. Neff
/s/ Richard A. Bandstra
In two of the four instances complained of, defendant’s objection at trial was that the evidence was
irrelevant and beyond the scope of cross-examination. He now argues that this evidence was an
improper attempt to show that defendant’s marital problems may have been a motive for molesting the
victim. An objection based on one ground at trial is insufficient to preserve an appellate attack based on
a different ground. People v Asevedo, 217 Mich App 393, 398; 551 NW2d 478 (1996). In one of
the remaining instances, defendant failed to object at all and thus did not preserve the issue. See People
v Potra, 191 Mich App 503, 512; 479 NW2d 707 (1991). In the final instance, defendant did not
object to the question until after it had been answered; the objection was untimely. In re Weiss, 224
Mich App 37, 39; 568 NW2d 336 (1997).
In support of his claim, defendant has attached an affidavit to his brief asserting that he has such a
tattoo and that he told his attorney about it. We cannot consider this affidavit, as it is not part of the
lower court record. People v Canter, 197 Mich App 550, 556-557; 496 NW2d 336 (1992).