PEOPLE OF MI V ROBERT WILLIAMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 7, 2002
Plaintiff-Appellee,
v
No. 231703
Wayne Circuit Court
LC No. 00-000718
ROBERT LAWRENCE WILLIAMS,
Defendant-Appellant.
Before: Murphy, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Defendant was charged with two counts of first-degree criminal sexual conduct, MCL
750.520b, together with one count of first degree home invasion, MCL 750.110a(2). Following
a bench trial, defendant was found guilty of first degree criminal sexual conduct (penile
penetration), not guilty of first degree criminal sexual conduct (digital penetration) and not guilty
of home invasion. Defendant was sentenced as an habitual offender, fourth offense (MCL
769.12). Defendant appeals as of right. We affirm but remand for correction of the judgment of
sentence.
I. Basic Facts and Procedural History
Defendant and the victim had a child together from a previous relationship. According to
the victim, the relationship ended when she moved to Kentucky. However, in May of 1999, the
victim moved back to Michigan so that defendant could develop a relationship with his child.
Consequently, according to the victim, she only had contact with defendant insofar as necessary
to facilitate a relationship between defendant and their child.
During the very first part of December, the victim indicated that defendant appeared at
her home at approximately 2:00 or 3:00 a.m. According to the victim, defendant circled her
home attempting to discover a way to get in. Defendant managed to open the kitchen window
and proceeded to climb through when the victim’s older son saw defendant and advised the
victim of his presence. The victim indicated that defendant was inebriated so she allowed him to
come in, talked with him and permitted him to sleep off the alcohol. The next morning, the
victim and defendant began to argue and the victim requested that defendant leave. Defendant
complied without incident.
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On December 5, 1999, during the early morning hours, defendant, once again, returned to
the victim’s home. During this visit, defendant remained outside, circled the home and yelled at
the victim to allow him to enter. When the victim would not comply, he retaliated by hurling a
brick through her bedroom window and then fled. The victim telephoned the police and reported
the incident.
After the police left, defendant telephoned the victim and advised that he was about to
come over and “do [her.”] Approximately five minutes thereafter, defendant arrived at the
victim’s home. When defendant appeared, the victim was talking to a friend on the phone who
was in turn talking to the police through a three way communication. To entice defendant to
remain until the police arrived, the victim carried on a conversation with defendant through the
door and relayed what he said to her friend who reported the information to the police.
However, defendant left before the police arrived.
Considering that it was approximately 5:00 or 5:15 a.m., the victim laid down and fell
asleep. The victim testified that when she awakened, defendant was in the house. The victim
and defendant began to argue. According to the victim, defendant verbally berated her while
simultaneously pushing her, hitting her, bumping her head against the wall and throwing shoes at
her. Additionally, defendant kept pulling her clothes off while she fought to keep them on and
struggled to get away. The victim testified that once he successfully removed her clothes, he
penetrated her both digitally and with his penis. The victim testified that the assault spanned six
hours and occurred in three separate rooms in the house.
After defendant left, an ambulance transported the victim to the hospital. When the
victim presented to the emergency room, she gave a complete history of the events surrounding
the incident. The emergency room physician noted that the victim had numerous contusions
along her wrists and some across her chest. Additionally, the victim had a large contusion on her
face and a pelvic examination confirmed the presence of active sperm.
Defendant was charged with one count of first degree home invasion and two counts of
first degree criminal sexual conduct. After a bench trial, defendant was found guilty of first
degree criminal sexual conduct (penile penetration), not guilty of first degree criminal sexual
conduct (digital penetration) and not guilty of home invasion. Defendant was sentenced to
twelve to thirty years’ imprisonment as an habitual offender, fourth offense. However, the
judgment of sentence instead incorrectly reflects that the defendant was found guilty of both
counts of first degree criminal sexual conduct and that the count of first degree home invasion
was dismissed in accord with a plea agreement. Defendant appeals as of right. We affirm but
remand for correction of the judgment of sentence.
II. Confrontation Clause
First, defendant argues that the trial court erred by limiting his cross-examination of the
victim. During defense counsel’s cross-examination of the victim, counsel posed a question
seeking to elicit from the victim the outcome of a hearing upon defendant’s alleged parole
violation as a result of an allegation of domestic violence levied by the victim against defendant
while defendant was on parole for another offense. The prosecutor objected on the grounds of
relevance and the trial court sustained the objection to which defense counsel responded, “All
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right. That’s fair enough” and did not pursue the matter further. A review of the record thus
demonstrates that defense counsel acquiesced in the trial court’s decision on the prosecutor’s
objection. Accordingly, because defense counsel specifically approved the trial court’s response,
and otherwise failed to make an offer of proof, defendant thereby waived appellate review of this
issue. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
III. Ineffective Assistance of Counsel
Next, defendant contends that he was denied the effective assistance of counsel for trial
counsel’s abandonment of the above-referenced line of questioning. We disagree.
Pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), claims for
ineffective assistance of counsel should be raised by a motion for a new trial or evidentiary
hearing. Since defendant did not procure a ruling by the trial court on this issue, defendant’s
claim for the ineffective assistance of counsel is forfeited save for a review of the existing
record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). The effective
assistance of counsel is presumed and the onerous burden of proving otherwise rests squarely
upon defendant. Id. at 30. To satisfy the requisite evidentiary burden and prevail, defendant
must demonstrate that counsel’s performance was objectively unreasonable and the
representation so prejudicial that he was deprived of his right to a fair trial. Id. To establish the
requisite prejudice defendant must demonstrate that but for the error of counsel, there was a
reasonable probability that the result would have been different. Id.
In the case at bar, a review of the record establishes that before abandoning his line of
questioning, defense counsel managed to establish that the victim accused defendant of domestic
abuse for which defendant was not convicted at a subsequent parole hearing. When asked for the
underlying rationale of the parole board’s decision not to convict, the court sustained the
prosecutor’s relevancy objection to which trial counsel acquiesced and pursued a different line of
questioning. Defendant fails to establish that but for trial counsel’s abandonment of the
objectionable line of questioning, he would have been acquitted. Id. Accordingly, we do not
find error requiring reversal in this regard.
IV. Expert Medical Testimony
Defendant contends that the trial court erred by permitting Dr. Wright, plaintiff’s treating
physician, to testify as to the victims injuries because his testimony impermissibly bolstered the
victim’s credibility. However, defendant failed to object to Dr. Wright’s testimony at trial and
engaged in cross-examination. Thus, defendant alternatively argues that trial counsel’s failure to
object to this testimony resulted in the ineffective assistance of counsel.
It is axiomatic that to properly preserve an evidentiary issue for appellate review, the
party opposing the admission of testimony must object at trial on the same ground that the party
asserts on appeal. People v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999).
Notwithstanding trial counsel’s failure to lodge an appropriate objection, this Court may consider
unpreserved issues where the failure to do so would result in manifest injustice. Id. We find no
manifest injustice here.
A necessary element of first degree criminal sexual conduct is the use physical force or
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violence to overcome the victim. MCL 750.520b(1)(i). The prosecution properly offered Dr.
Wright’s testimony on this element. Dr. Wright testified that when the victim presented with
“numerous contusions” around her wrists along with some contusions across her chest which
were “consistent with . . . some type of grabbing.” In addition, Dr. Wright testified that the
victim had a large bruise on her face which would be consistent with being struck by another
person. An examination of the victim’s vaginal discharge confirmed the presence of active
sperm. Dr. Wright opined that the victim’s injuries were consistent with an individual who
recently sustained a sexual assault.
Because there was no basis for excluding Dr. Wright’s testimony, counsel was not
required to levy futile objections and the failure to do so does not constitute the ineffective
assistance of counsel. People v Meadows, 175 Mich App 355, 362; 437 NW2d 405 (1989).
V. Cumulative Error
Finally, defendant argues that the cumulative effect of these individual errors deprived
him of due process of law. We do not agree. The trial court did not err by limiting defendant’s
cross-examination on an irrelevant matter nor did it err by permitting the victim’s treating
physician to testify regarding the victim’s physical injuries. Where no actual errors are found, a
cumulative effect of errors is incapable of being found. People v Mayhew, 236 Mich App 112,
128; 600 NW2d 370 (1999)
Affirmed but remanded for correction of the judgment of sentence.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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