IN RE KYLE HENRY SHELTON MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of K.H.S., Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
April 29, 2003
Petitioner-Appellee,
v
No. 239258
Ionia Circuit Court
Family Division
LC No. 01-000249-NA
TOM HENRY SHELTON, JR.,
Respondent-Appellant,
and
ARLINDA SHELTON,
Respondent.
Before: Whitbeck, C.J., and Cavanagh and Bandstra, JJ.
MEMORANDUM.
Respondent appeals as of right the trial court’s order establishing jurisdiction over the
minor child pursuant to MCL 712A.2(b). We affirm.
Respondent first1 argues that the trial court abused its discretion and denied him due
process when it sustained, on the ground that the question had been “asked and answered,” an
objection to respondent’s counsel’s questioning of respondent about his relationship with
Shannon Baker. This Court reviews a trial court’s evidentiary decisions for an abuse of
discretion. See, generally, In re Vasquez, 199 Mich App 44, 50-51; 501 NW2d 231 (1993).
Here, the trial court’s ruling sustaining the objection was not an abuse of discretion because
respondent had already testified at length regarding the nature of his relationship with Baker.
1
Although respondent presents a total of thirteen issues in his statement of questions presented,
he has addressed the merits of only two of those issues in his brief on appeal. “It is axiomatic
that where a party fails to brief the merits of an allegation of error, the issue is deemed
abandoned by this Court.” Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834
(1999). Accordingly, we decline to address the remainder of the issues raised by respondent.
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Moreover, the record shows that despite the trial court’s ruling respondent was later permitted to
add to his previous testimony regarding the nature of his relationship with Baker, and was also
afforded the opportunity to cross-examine Baker and other witnesses concerning that
relationship. Consequently, we similarly find no merit in respondent’s claim that he was denied
his due process right to defend himself against what he asserts to have been “the fraudulent
testimony of Shannon Baker.” 2
Respondent also argues that his counsel was ineffective because he failed to object to the
prosecutor’s statement during opening argument that the jury would hear testimony regarding
allegations that respondent had sexually abused Baker’s son, and himself referred to the
allegations during his own opening statement. Respondent asserts that counsel should have
objected to the prosecutor’s comments based on FRE 403. FRE 403, which is identical to MRE
403, permits the exclusion of relevant evidence “if its probative value is substantially outweighed
by the danger of unfair prejudice.” Initially, we note that the prosecutor’s comments regarding
the alleged sexual abuse were proper remarks on the evidence to be presented in support of
establishing jurisdiction over the minor child. See People v Johnson, 187 Mich App 621, 626;
468 NW2d 307 (1991). Although these allegations were not themselves advanced as a basis for
assuming jurisdiction, they nonetheless served as a basis for establishing that respondent had
neglected the welfare of the minor child. They showed that respondent willfully disregarded
petitioner’s repeated instructions to avoid contact with Baker, who was alleged to be engaged in
a sexual relationship with respondent’s minor child. Thus, given the probative value of such
evidence to a determination whether jurisdiction over the minor child should be assumed by the
court, any objection based on MRE 403 or its federal counterpart would have been futile.
Accordingly, respondent has failed to establish that his trial counsel was ineffective for failing to
object to the challenged comments. See People v Snider, 239 Mich App 393, 425; 608 NW2d
502 (2000) (trial counsel is not effective for failing to advocate a meritless or futile position).
For these same reasons, we find no error in counsel for respondent having addressed these
allegations during his own opening statement. Indeed, counsel’s comments concerning the
alleged sexual abuse were merely a response to the prosecutor’s proper comments on that
subject, and served to inform the jury that evidence indicating that respondent had been cleared
of any wrongdoing in connection with the allegations would also be presented at trial.
We affirm.
/s/ William C. Whitbeck
/s/ Mark J. Cavanagh
/s/ Richard A. Bandstra
2
In support of this assertion, respondent has attached four affidavits to his appellate brief.
However, these affidavits are not part of the lower court record and we therefore decline to
consider their content on appeal. See Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich
App 563, 579-580; 609 NW2d 593 (2000) (noting that this Court’s review is limited to the
record developed by the trial court, and that a party is not permitted to enlarge the record on
appeal by asserting facts not presented in the trial court).
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