PEOPLE OF MI V DOUGLAS O'NEIL FRANKS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 13, 2002
Plaintiff-Appellee,
V
No. 227158
Grand Traverse Circuit Court
LC No. 99-007968-FC
DOUGLAS O’NEIL FRANKS,
Defendant-Appellant.
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of four counts of first-degree criminal
sexual conduct, MCL 750.520b, and one count of second-degree criminal sexual conduct, MCL
750.520c. He was sentenced to one term of life in prison and three terms of sixty to ninety years
for the first-degree CSC convictions, and ten to fifteen years for the second-degree CSC
conviction, all sentences to be served concurrently. He appeals as of right. We affirm.
Defendant was charged with sexually abusing his children between 1986-1992. The
children, who testified as young adults, stated that defendant was verbally and physically abusive
and forced them to engage in sexual acts, including penile-vaginal intercourse, fellatio, and
genital manipulation. Defendant was alternately generous with gifts and physically and verbally
abusive, and repeatedly threatened to kill the children or their mother if they reported his actions.
Barbara Cross, a clinical social worker, testified as an expert witness in the field of child
sexual abuse syndrome. She testified that delayed disclosure is common in sexual abuse cases
involving children, that children could be silenced by threats or coercion, and that it is not
unusual for children to visit a person who has abused them because children would retain a
loyalty to the person and would not want the abuse to be disclosed. On cross-examination, Cross
stated that it was possible that a child could fabricate an allegation of sexual abuse as a response
to years of physical abuse.
Detective Richard Robbins testified that he interviewed defendant, who initially denied
the children’s allegations but then stated that he might have touched the children when he was
under the influence of drugs or alcohol. Robbins stated that he arranged a second interview with
defendant, but defendant later telephoned and said he could not appear due to a death in the
family.
1
Defendant testified on his own behalf. He stated that he got along very well with his
children. He acknowledged that he disciplined his children, but denied ever striking them or
verbally abusing them. Defendant denied engaging in any sexual activity whatsoever with the
children and denied threatening to hurt or kill them. He stated that he told Robbins that he could
not appear for the second interview because he had been informed by Marilyn Franks of a death
in the family. That information turned out to be erroneous.
Richard Robbins testified on rebuttal that when he telephoned to find out why defendant
did not appear for the second interview, defendant told him that he went out of town for a family
funeral. Robbins stated that after he heard defendant’s testimony he used the Law Enforcement
Information Network (LEIN) to attempt to locate Marilyn Franks, but was unsuccessful. He
acknowledged that, under certain circumstances, a name would not appear on a LEIN search.
During closing argument, the prosecutor emphasized that although the children delayed
reporting the abuse perpetrated by defendant, they eventually came forward voluntarily. The
prosecutor stated that the children placed their trust in the jurors and that it was time for
defendant to be told that he was guilty.
Defense counsel argued that the prosecutor was relying on emotion, and urged the jurors
to see defendant’s children as the young adults they were and not as the small children depicted
in the photographs introduced into evidence. Counsel emphasized that defendant denied each
and every allegation and theorized that the children alleged that defendant abused them in order
to curry favor with their mother or to please their interviewers.
In rebuttal closing argument, the prosecutor argued that defendant was not a credible
witness. He noted that defendant stated that he did not keep a firearm under his bed; however,
two of the children testified that a firearm was located under the bed. Although defendant
testified that a woman named Marilyn Franks telephoned and told him in error that his cousin
had been killed, the prosecutor emphasized that no such person could be located. The prosecutor
further argued that, at this point, the children had no reason to fabricate accusations because they
were no longer under defendant’s control.
The jury found defendant guilty as charged. At sentencing, defendant raised various
challenges to the scoring of the applicable judicial sentencing guidelines. The trial court denied
each challenge. The guidelines as scored by the court recommended life or a minimum sentence
range of ten to twenty-five years for the first-degree CSC convictions. The court sentenced
defendant to a term of life in prison for one of the first-degree CSC convictions, a term of sixty
to ninety years for each of the remaining first-degree CSC convictions, and a term of ten to
fifteen years for the second-degree CSC conviction, to be served concurrently.
On appeal, defendant first argues that he was denied the effective assistance of counsel.
We disagree.
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms, and that counsel’s performance resulted in prejudice. People v Toma, 462 Mich 281,
302; 613 NW2d 694 (2000), citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). To demonstrate prejudice, a defendant must show a reasonable probability
2
that but for counsel’s error, the result of the proceedings would have been different. Toma,
supra at 302-303. Counsel is presumed to have afforded effective assistance, and a defendant
bears the burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887
(1999).
Specifically, defendant argues that trial counsel was ineffective because he failed: (1) to
provide a rational defense to the charges by procuring a qualified expert witness in the area of
repressed sexual abuse revealed during adult therapy; (2) to object to references to extraneous
matters, including a restraining order that had been entered against defendant, the requirement
that defendant’s visitation with his children be supervised, and defendant’s problems with drugs
and alcohol; (3) to prevent repeated references to defendant’s failure to appear for a second
interview with Detective Robbins; (4) to move to exclude a self-serving statement made by one
of the children to her mother regarding abuse; and (5) to object to improper and irrelevant
rebuttal testimony from Orla Frost and Robbins. We disagree in each instance.
Counsel and defendant made the decision to forego calling an expert witness and to rely
on counsel’s cross-examination of the prosecution’s witness, Barbara Cross. The failure to call a
witness or to present other evidence constitutes ineffective assistance only when it deprives the
defendant of a substantial defense. People v Hyland, 212 Mich App 701, 710; 538 NW2d 465
(1995), mod on other grounds 453 Mich 902 (1996). A substantial defense is one that might
have made a difference in the outcome of a trial. In re Ayres, 239 Mich App 8, 22; 608 NW2d
132 (1999). Defendant’s theory was that the children’s accusations were not true and that the
children were either relating false memories or were leveling false charges to please their
mother. On cross-examination, Cross acknowledged that some persons have false memories of
sexual abuse and that some charges are leveled for ulterior motives. Defendant presented his
theory through the cross-examination of Cross. He was not deprived of a substantial defense
because he did not call an expert witness.
In addition, defendant’s assertion that counsel was ineffective by failing to object to
certain evidence is without merit. Counsel’s decision to refrain from objecting to questions
regarding issues such as the restraining order entered against defendant, defendant’s use of drugs
and alcohol, and a self-serving statement made by one of the children was consistent with the
defense theory that the abuse charges were fabricated by defendant’s former wife. We do not
substitute our judgment for that of counsel regarding matters of trial strategy. People v Rice (On
Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999). Finally, the rebuttal evidence offered
by the prosecution was proper. Counsel was not required to advocate a meritless position by
objecting to that evidence. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Defendant next argues that the prosecutor engaged in misconduct requiring reversal of his
conviction. The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial
comments must be read as a whole and evaluated in light of the defense arguments and evidence
admitted at trial. People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000). A claim of
prosecutorial misconduct is reviewed de novo; however, we review a trial court’s findings of fact
for clear error. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001).
Defendant contends that the prosecutor committed misconduct in the following
particulars: (1) asking improper questions that were designed to introduce evidence effectively
3
portraying defendant as a bad man who should be convicted; (2) engaging in improper conduct
designed to inflame the passions of the jury by displaying photographs of the children when they
were very young; (3) improperly arguing that the jury had a civic duty to convict him by stating
that the children had placed their trust in the jury; and (4) improperly suggesting that the jury
rely on the prosecutor’s superior personal knowledge when the prosecutor stated that he knew
defendant had lied about receiving a telephone call from Marilyn Franks.
Defendant did not object to the prosecutor’s allegedly improper conduct. Absent an
objection, reversal is warranted only if plain error occurred that resulted in the conviction of an
actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); Schutte,
supra. Defendant placed his character in issue by testifying on direct examination that he was a
loving, considerate father who involved himself in his children’s lives and who would not
consider harming them. Defendant’s introduction of this evidence permitted the prosecutor to
introduce evidence to demonstrate that defendant’s character was not as impeccable as claimed.
People v Leonard, 224 Mich App 569, 594; 569 NW2d 663 (1997). The prosecutor properly
questioned defendant regarding his commitment to his children by inquiring about matters such
as his history of spanking the children and his lack of knowledge of graduation dates.
Even if we assume that the prosecutor’s questions regarding other issues, such as
defendant’s failure to pay child support in a timely manner, the entry of a restraining order, and
possible arrests for driving under the influence of alcohol, constituted improper evidence of prior
bad acts, MRE 404(b)(1), we conclude that defendant’s substantial rights were not affected.
Carines, supra. These issues were peripheral and were not similar in nature to the offenses with
which defendant was charged. Moreover, any prejudicial effect generated by the questions could
have been cured by a timely instruction. See People v Knapp, 244 Mich App 361, 382; 624
NW2d 227 (2001), citing People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Any
error that occurred did not seriously affect the fairness, integrity, or public reputation of the
proceedings. Carines, supra.
Furthermore, defendant’s assertion that the prosecutor presented improper argument to
the jury is without merit. Photographs depicting the children as they appeared at the time of the
alleged acts were relevant to demonstrating the age of the children when the acts occurred, as
opposed to their ages when they testified. See People v Curry, 175 Mich App 33, 46; 437 NW2d
310 (1989) (“Photographs are admissible if they are pertinent, relevant, competent and material
on any issue in the case.”). The prosecutor was entitled to argue from the evidence that the jury
should conclude that the children’s testimony was worthy of belief, and was entitled to note that
other testimony demonstrated the consistency of the children’s accounts. Schutte, supra.
Similarly, the prosecutor was entitled to argue from the evidence that defendant was not worthy
of belief. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). The prosecutor
did not improperly suggest that the jury rely on his superior personal knowledge when he told the
jury that “we” know that defendant was lying when he testified that he received a telephone call
from someone named Marilyn Franks. The prosecutor based his statement that defendant was
lying on the evidence that a police search discovered no one by the name of Marilyn Franks.
This was a reasonable inference based on the evidence. Schutte, supra.
The prosecutor did make an improper civic duty argument when he stated that the jury
should convict defendant because the children had placed their trust in the jurors. However, the
4
prejudicial effect of this remark could have been cured by a timely instruction that the
prosecutor’s argument was not evidence, Launsburry, supra, an instruction that was ultimately
given in any event by the trial court following closing arguments. Defendant’s substantial rights
were not affected. Carines, supra.
Defendant further argues that the prosecutor denied him a fair trial by introducing
improper rebuttal evidence on a collateral matter. We disagree. “Rebuttal evidence is
admissible to ‘contradict, repel, explain, or disprove evidence produced by the other party and
tending to weaken or impeach [that evidence].’” People v Pesquera, 244 Mich App 305, 314;
625 NW2d 407 (2001). Whether rebuttal evidence is proper depends on the proofs introduced by
the defendant, and not merely what he testified to on cross-examination. Id. If the evidence
responds to evidence introduced by or to a theory developed by the defendant, it is proper
rebuttal. Id. The admission of rebuttal evidence is within the discretion of the trial court.
People v Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996).
Defendant introduced evidence regarding a telephone call from Marilyn Franks on
redirect examination in an attempt to explain his failure to appear for the scheduled interview
with Robbins. Defendant’s introduction of this evidence opened the door for rebuttal evidence to
contradict his assertion. Pesquera, supra at 314. Robbins testified on rebuttal that no person
named Marilyn Franks could be located and that defendant told him that he did not appear for the
second interview because he went out of town to attend a family funeral.
Defendant did not object to the admission of Robbins’ testimony that Franks could not be
located. In the absence of an objection, any error is forfeited unless it was plain and affected
defendant’s substantial rights. Carines, supra; Pesquera, supra at 316. The rebuttal evidence
did not pertain to a purely collateral issue and had a direct bearing on defendant’s credibility.
The credibility of a witness is always a material issue. People v Layher, 238 Mich App 573,
580; 607 NW2d 91 (1999), aff’d 464 Mich 756; 631 NW2d 281 (2001). No plain error occurred.
Defendant argues that the trial court erred and abused its discretion in imposing sentence.
Specifically, defendant contends that the trial court: (1) failed to consider relevant factors when
fashioning the sentences imposed; (2) erroneously scored several offense variables, which
resulted in the imposition of sentences based on an unsupported and/or false predicate; (3)
deviated from the sentencing guidelines for reasons already accounted for in the guidelines; and
(4) abused its discretion by imposing disproportionate sentences for the first-degree CSC
convictions. We disagree.
A sentence may be set aside only when it is invalid. People v Mitchell, 454 Mich 145,
176; 560 NW2d 600 (1997). A sentence is valid if it is proportionate. People v Milbourn, 435
Mich 630, 651; 461 NW2d 1 (1990). “[T]he ‘key test’ of proportionality is not whether the
sentence departs from or adheres to the recommended [guidelines] range, but whether it reflects
the seriousness of the matter.” People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995).
If the sentence is proportionate, an error in the calculation of the guidelines provides no basis for
relief. People v Raby, 456 Mich 487, 496; 572 NW2d 644 (1998).
We conclude that defendant’s sentences of life and sixty to ninety years on his CSC I
convictions reflect the seriousness of the crimes committed by defendant, and are proportionate
to his circumstances and the nature of his offenses. The evidence established that defendant
5
sexually abused his own children on a regular basis for a number of years. He repeatedly
threatened to kill them or their mother if they reported his actions. He treated one child like a
prostitute by offering her money after committing penile-vaginal intercourse. Defendant
engaged in a pattern of abusing the children and then giving them money or gifts. He displayed
no remorse for his actions. Defendant was forty-six years old at the time he was sentenced;
however, this fact does not render his sentences disproportionate. When appropriate to the
offense and the offender, a trial court may impose a sentence for a term of years that has the
effect of avoiding eligibility for parole. People v Lemons, 454 Mich 234, 258; 562 NW2d 447
(1997).
A trial court must articulate on the record the reasons for the sentence imposed. The
purpose of this requirement is to aid appellate review and to avoid injustice based on sentencing
error. People v Terry, 224 Mich App 447, 455; 569 NW2d 641 (1997). In imposing sentence,
the court emphasized that defendant victimized his own children, that the children would suffer
the effects of defendant’s actions for their entire lives, and that defendant had no remorse for his
actions. The trial court stated that because of the heinous nature of the crimes committed, and
because the defendant was in the position of being one of the worst forms of a predator, that it
had as its goal in imposing sentence the intent to prevent defendant from ever being released into
society. This articulation was sufficient. Id. at 456.
Because the sentence is proportionate, there is no basis for relief as to the sentence on
appeal. Raby, supra at 496. Thus, we need not consider the guidelines scoring challenges raised
by defendant.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.