PEOPLE OF MI V LESLY JON RICHARD FLOOD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 26, 2002
Plaintiff-Appellee,
V
No. 231220
Muskegon Circuit Court
LC No. 00-044693-FH
LESLY JON RICHARD FLOOD,
Defendant-Appellant.
Before: Neff, P.J., and White and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count of second-degree criminal
sexual conduct, MCL 750.520c(1)(a) (sexual contact with a victim under thirteen years of age).
The trial court sentenced defendant to 66 to 270 months’ imprisonment. Defendant appeals as of
right. We affirm.
Defendant contends that he was deprived of his constitutional right to present a defense.
The record indicated that other individuals had previously sexually abused the victim. Defendant
sought to introduce evidence of the prior sexual contacts to explain her “age-inappropriate
familiarity with sexual matters.” The trial court excluded the evidence, relying on the rapeshield statute, MCL 750.520j, which provides in pertinent part:
Evidence of specific instances of the victim’s sexual conduct, opinion evidence of
the victim’s sexual conduct, and reputation evidence of the victim’s sexual
conduct shall not be admitted under sections 520b to 520g unless and only to the
extent that the judge finds that the following proposed evidence is material to a
fact at issue in the case and that its inflammatory or prejudicial nature does not
outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. People v Hackett, 421 Mich 338, 349; 365 NW2d 120 (1984). Our Supreme Court
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added: “In exercising its discretion, the trial court should be mindful of the significant legislative
purposes underlying the rape-shield statute and should always favor exclusion of evidence of a
complainant’s sexual conduct where its exclusion would not unconstitutionally abridge the
defendant’s right to confrontation.” Id. Generally, an abuse of discretion will be found only “if
an unprejudiced person, considering the facts on which the trial court acted, would say there was
no justification or excuse for the ruling made.” People v Snider, 239 Mich App 393, 419; 608
NW2d 502 (2000).
In People v Morse, 231 Mich App 424, 426-427; 586 NW2d 555 (1998), we reviewed a
situation factually similar to the case at bar: the defendant sought to introduce evidence of the
victims’ previous sexual history, in part, to show that their age-inappropriate sexual knowledge
was not learned from the defendant. Although we noted that such evidence may be admissible in
certain circumstances, we explained that the proffered evidence must be “significantly similar”
to the facts alleged by the victim. Id. at 437. Similarly, in People v Byrne, 199 Mich App 674,
679; 502 NW2d 386 (1993), we recognized that, in order to introduce evidence of the victim’s
sexual abuse by her father, the defendant would have to establish that the sexual conduct of
which he was accused was “highly similar” to that charged against the victim’s father.
Here, the victim did not display any age-inappropriate sexual knowledge. Moreover,
defense counsel represented to the trial court that the victim’s father had been convicted of firstdegree criminal sexual conduct, which, according to MCL 750.520b, requires penetration of the
victim. Defendant, however, was not accused of penetrating the victim, but was instead accused
of rubbing the victim. Accordingly, there was a significant difference between the charged acts
and the evidence that defendant sought to have admitted. Consequently, the trial court did not
abuse its discretion by excluding the evidence.
Defendant also contends that the trial court’s denial of his motion for a mistrial
constituted an abuse of discretion. Saundra Rexford, the victim’s biological grandmother and
adoptive mother, who testified as a witness for the defense, was admonished by the trial court for
shaking her head in disagreement with the prosecutor’s closing argument. When the trial court
ordered her to leave the courtroom, she exclaimed “[i]t’s baloney,” presumably referring to the
prosecutor’s closing argument. The trial court excused the jury, and threatened to hold her in
contempt. Defense counsel moved for a mistrial, contending that the situation made his client
“look horrible.” Defendant also requested an instruction that the jury not draw any unfavorable
inferences from Rexford’s conduct. The trial court did not rule on defendant’s motion for a
mistrial, but did caution the jury not to “hold” Rexford’s behavior against defendant.
Ordinarily, we decline to review issues that were not actually decided by the trial court.
People v Evola, 202 Mich App 178, 180; 507 NW2d 815 (1993). Accordingly, the trial court’s
failure to rule on defendant’s motion for a mistrial precludes appellate review of the merits of
defendant’s motion for a mistrial. Nevertheless, the trial court’s decision to grant defendant’s
simultaneous motion for a cautionary instruction could arguably be characterized as an implicit
rejection of defendant’s motion for a mistrial. Generally, a trial court’s ruling on a motion for a
mistrial is reviewed for an abuse of discretion. People v Griffin, 235 Mich App 27, 36; 597
NW2d 176 (1999). “‘A mistrial should be granted only for an irregularity that is prejudicial to
the rights of the defendant and impairs his ability to get a fair trial.’” Id., quoting People v
Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995).
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Here, Rexford’s physical gestures and comments indicated that she did not agree with
what the prosecutor was arguing in his closing argument. In fact, her apparent willingness to risk
reprimand by the trial court suggests that her disagreement was substantial. An argument
certainly could be made that Rexford’s behavior demonstrated such strong feelings that it
actually helped defendant’s case. Indeed, Rexford’s behavior plainly indicated that she
disagreed with the prosecutor’s characterization of the facts. At the very least, we are not
persuaded that Rexford’s behavior, notwithstanding the trial court’s reprimand, impaired
defendant’s ability to get a fair trial. Moreover, although the trial court instructed Rexford that
her behavior was inappropriate, the trial court excused the jury before discussing the possibility
of Rexford being held in contempt of court. Further, the trial court granted defendant’s request
for an instruction that Rexford’s behavior not be held against defendant. Accordingly, to the
extent that the trial court’s ruling could be characterized as an implicit denial of defendant’s
motion for a mistrial, we are not persuaded that this ruling was an abuse of discretion. Griffin,
supra at 36.
Finally, defendant argues that the trial court should have granted his motion for a mistrial
based on the testimony of Kim Parling, a school counselor who interviewed the victim and her
brother. At the close of the prosecution’s case, the prosecutor indicated that Parling could
possibly be called as a rebuttal witness. Apparently, the school had taken the legal position that
the communications between Parling and the victim were privileged. Thus, the prosecution
stated that its questions would be limited to whether Parling met with the victim or made
promises to the victim. In other words, the questioning would not concern the details of the
conversations. Defense counsel agreed that the only questions that would be asked of Parling
would relate to “how long and how often she had conversations with her [the victim].”
Defendant presented Rexford’s testimony, which suggested that Parling made three
promises to the victim:
The first is that she could be Kim’s special friend, and that she could call her
“Kim.”
The second was that she would have the authority to tell me what could be done
in the home, who could go and who could stay and so on and so forth.
And the third was . . . that she could still come back and be a part of [the] group
there, the social worker Kim, that kind of thing.
During cross-examination, Rexford noted that Parling did not promise the victim toys, but that
“the toys did come later.”
In light of Rexford’s testimony, the prosecutor called Parling as a rebuttal witness.
Parling testified that she met with the victim after the victim’s brother made “statements” to
Parling. Parling testified that she called “Protective Services” after the meeting, and that a
worker and state police officer came to the school. Defense counsel promptly objected,
contending that the prosecutor had exceeded the scope of rebuttal. Defendant also moved for a
mistrial. Defense counsel argued that the testimony had not been limited to whether promises
were made. The trial court denied defendant’s motion, noting that the questioning had not gone
“anywhere near the level of a mistrial.” The trial court also denied a defense request to limit the
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questioning to the anticipated rebuttal testimony, but noted that it would sustain any objection
where the prosecutor’s questioning was not “related to rebuttal.” Ultimately, Parling testified
that she met with the victim three times and met with the victim’s brother “[m]aybe a couple
times.” She denied making any promises or coaching the victim to testify. Parling reiterated
these assertions during cross-examination.
On appeal, defendant contends that the trial court abused its discretion by denying
defendant’s motion for a mistrial. However, the record indicates that the prosecutor’s
questioning merely provided background information. In other words, it does not appear that the
prosecutor elicited any privileged information. Moreover, following defendant’s motion, the
prosecutor introduced testimony that was within the scope of anticipated rebuttal testimony. In
fact, defendant did not object to any of the prosecution’s questions. Accordingly, there is no
indication that defendant was harmed by the trial court’s denial of his request to limit the
prosecution’s questioning. In addition, defendant was given an opportunity to cross-examine
Parling—which is plainly contrary to his assertion that he was deprived of an opportunity to do
so. Indeed, there is no indication that Parling’s testimony in any way prevented defendant from
receiving a fair trial. Thus, we are not persuaded that the trial court’s denial of defendant’s
motion for a mistrial constituted an abuse of discretion. Griffin, supra at 36.
Affirmed.
/s/ Janet T. Neff
/s/ Helene N. White
/s/ Donald S. Owens
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