PEOPLE OF MI V MARSHALL RAYMOND SIMPSON

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 29, 1998 Plaintiff-Appellee, v No. 199856 Clinton Circuit Court LC No. 96-006069 FC MARSHALL RAYMOND SIMPSON, Defendant-Appellant. Before: MacKenzie, P.J., and Bandstra and Markman, JJ. PER CURIAM. Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(b); MSA 28.788(2)(1)(b). He was sentenced to ten to twenty years’ imprisonment. Defendant appeals as of right. We affirm. Defendant first argues that the prosecutor’s comments during closing argument amounted to prosecutorial misconduct and consequently denied him his right to a fair trial. Defendant asserts that the prosecutor impermissibly attacked defendant’s credibility, insinuated he was lying, and vouched for the veracity of the complainant, defendant’s daughter. Claims of prosecutorial misconduct are reviewed de novo. People v Bahoda, 448 Mich 261, 267; 531 NW2d 659 (1995). An appellate court will determine if the remarks, taken in context, denied the defendant the right to a fair trial. Id. at 267. In this case, they did not. The prosecutor’s comments, taken as a whole, constituted a permissible argument that defendant’s testimony was not credible. Defendant elected to testify, and like any other witness, his credibility was subject to attack. People v Fields, 450 Mich 94, 110; 538 NW2d 356 (1995), citing Brown v United States, 356 US 148, 154; 78 SCt 622; 2 LEd 2d 589 (1958). Moreover, a prosecutor may comment on the testimony of witnesses in the case, and “may argue upon the facts and evidence that a witness is not worthy of belief.” People v Caldwell, 78 Mich App 690, 692; 261 NW2d 1 (1977). Furthermore, the prosecutor’s comments suggesting that the defense theory was not plausible did not amount to shifting the burden of proof. See Fields, supra, pp 115-116. -1­ We also disagree with defendant’s claim that the prosecutor committed misconduct by vouching for the complainant’s veracity. A prosecutor may not vouch for the credibility of a witness, but a prosecutor may argue from the facts that a witness is credible. People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). Here, the prosecutor merely asked the jury to consider the complainant’s interest in the outcome of the case and to contrast her interests with defendant’s own interests in the outcome. The prosecutor never suggested that the People had the knowledge or ability to determine whether the complainant was being truthful or that the complainant was telling the truth. In short, the prosecutor never vouched for the complainant’s credibility. Finally, contrary to defendant’s assertion, the prosecutor’s closing argument did not violate a court order prohibiting experts from testifying about the complainant’s veracity. Again, the prosecutor was free to make permissible comments about the complainant’s credibility in closing. Caldwell, supra, p 692. Defendant also argues that the trial court erred by admitting testimony regarding defendant’s alleged prior acts of sexual misconduct with the complainant and that, consequently, his right to a fair trial was denied. Again, we disagree. Although both parties argue the applicability of the rape-shield law, MCL 750.520j; MSA 28.788(10), and MRE 404(a)(3), their reliance on that authority is misplaced because the law is aimed at protecting the victim, not a defendant. The statute was designed to minimize the possibility that the victim would be tried for her character, “instead of the defendant for his conduct.” People v Stull, 127 Mich App 14, 17; 338 NW2d 403 (1983). Defendant also claims that the evidence was inadmissible similar acts testimony under MRE 404(b). However, in admitting the evidence, the trial court properly weighed its probative value against the risk of unfair prejudice and concluded that its admission was permissible under People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973). In DerMartzex, the Supreme Court held that “the probative value [of similar acts evidence] outweighs the disadvantage where the crime charged is a sexual offense [involving a member of the same household] and the other acts tend to show a familiarity between the defendant and the person with whom he allegedly committed the offense.” 390 Mich 413. Because the probative value of the antecedent uncharged sexual acts between defendant and his daughter outweighed any prejudice to defendant, we find no abuse of discretion in the admission of the evidence. DerMartzex, supra, pp 413-415. Affirmed. /s/ Barbara B. MacKenzie /s/ Richard A. Bandstra -2­

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