Summary
In Isrow, 339 Mich.App. at 525, the defendant was convicted of fourth-degree child abuse for throwing a set of keys, which hit his four-year-old child in the back of the head.
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Nos. 351665 354834
12-16-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Thomas ISROW II, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, David J. Reader, Prosecuting Attorney, and Brandon Ciciotti, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Matthew A. Monahan ) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, David J. Reader, Prosecuting Attorney, and Brandon Ciciotti, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Matthew A. Monahan ) for defendant.
Before: Sawyer, P.J., and Riordan and Redford, JJ.
Per Curiam. In these consolidated appeals, defendant appeals following his jury trial convictions of assault with intent to commit criminal sexual conduct (CSC) involving sexual penetration, MCL 750.520g(1) ; interfering with a crime report, MCL 750.483a(2)(b) ; interference with electronic communications, MCL 750.540(5)(a) ; domestic violence, second offense, MCL 750.81(4) ; and fourth-degree child abuse, MCL 750.136b(7). The trial court sentenced defendant to serve terms of incarceration of 28 months to 10 years for assault with intent to commit CSC involving sexual penetration, 28 months to 10 years for interfering with a crime report, one to two years for interference with electronic communications, 296 days for domestic violence, and 296 days for fourth-degree child abuse. For the reasons discussed herein, we affirm.
In Docket No. 351665, defendant appeals his original judgment of sentence. In Docket No. 354834, defendant appeals from a judgment of sentence entered after resentencing. The same issues are raised in both appeals, and defendant does not challenge his sentences.
I. FACTS
This case arises out of a domestic dispute that occurred in 2019 between defendant; his ex-fiancée, SD; and their four-year-old daughter. Defendant and SD's engagement ended in 2016 after defendant pushed SD during a domestic dispute, for which he pleaded guilty to domestic violence.
SD testified that during the 2019 incident at issue in this appeal, defendant attempted to have sexual intercourse with her after she repeatedly refused, pinned her down on the floor to prevent her from leaving, threw her phone against the wall to prevent her from calling the police, and threw a set of keys; the keys hit their four-year-old daughter in the back of the head. Defendant, on the other hand, testified that he did not attempt to have sexual intercourse with SD after she became angry. Defendant admitted that he intentionally tossed the keys out the front door using an underhand throw, and he acknowledged that he threw the keys in the direction of where his daughter had been standing seconds earlier. Defendant testified that he did not realize that his daughter was there and did not intend for the keys to hit her.
II. ANALYSIS
A. INSUFFICIENT EVIDENCE
Defendant argues that there was insufficient evidence for the jury to find him guilty of fourth-degree child abuse because that offense is a specific-intent crime, and he did not intend to harm his daughter when he threw the keys. We disagree.
"Questions of statutory interpretation and issues relating to the sufficiency of the evidence are reviewed de novo." People v. Thorne , 322 Mich.App. 340, 344, 912 N.W.2d 560 (2017). When reviewing claims of insufficient evidence, the appellate court must determine "whether the jury could have found each element of the charged crime proved beyond a reasonable doubt." People v. Smith , 336 Mich.App. 297, 303, 970 N.W.2d 450 (2021) (quotation marks and citation omitted). "Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Id. (quotation marks and citation omitted).
A court's overriding goal when interpreting a statute is to "give effect to the Legislature's intent." People v. Peltola , 489 Mich. 174, 181, 803 N.W.2d 140 (2011). This is determined by looking at the words of the statute. Id. "If the statutory language is unambiguous, no further judicial construction is required or permitted because we presume the Legislature intended the meaning that it plainly expressed." Id. To determine whether the language is unambiguous, "[w]e interpret those words in light of their ordinary meaning and their context within the statute and read them harmoniously to give effect to the statute as a whole." Id.
Typically, a specific-intent crime requires that the prosecution prove the defendant subjectively desired or knew a prohibited result would occur from that act. People v. Gould , 225 Mich.App. 79, 85, 570 N.W.2d 140 (1997). In contrast, a general-intent crime generally requires that the prosecution prove the defendant intended to perform a physical act, or recklessly performed the physical act required, irrespective of whether the defendant subjectively intended to accomplish the result. Id.
In People v. Maynor , 256 Mich.App. 238, 242-243, 662 N.W.2d 468 (2003), this Court noted the differences in the statutory language governing first-degree and second-degree child abuse. A defendant is guilty of second-degree child abuse if the defendant "knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results," MCL 750.136b(3)(b), whereas a defendant is guilty of first-degree child abuse if the defendant "knowingly or intentionally causes serious physical or serious mental harm to a child," MCL 750.136b(2), as amended by 2016 PA 488. This Court concluded that the Legislature's use of different language in these statutes was intentional. Maynor , 256 Mich.App. at 242, 662 N.W.2d 468. In other words, by including the phrase "commits an act" in the statute prohibiting second-degree child abuse and not in the first-degree child abuse statute, the Legislature must have "contemplated the situation where a person intended an act, but perhaps not the consequences of the act." Id.
The plain language of the fourth-degree child abuse statute is similar to the language in the second-degree child abuse statute. The fourth-degree child abuse statute provides, in relevant part, that a defendant is guilty of fourth-degree child abuse if "[t]he person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results." MCL 750.136b(7)(b). The phrase "knowingly or intentionally" modifies the phrase "commits an act," not the phrase "poses an unreasonable risk of harm or injury to a child." No mental state modifies the phrase "poses an unreasonable risk of harm or injury to a child." This grammatical structure mirrors that of the second-degree child abuse statute. Therefore, the same comparison can be made between first-degree and fourth-degree child abuse that was made in Maynor between first-degree and second-degree child abuse. The grammatical structure of both the second-degree and fourth-degree child abuse statutes suggests that the act must be done "knowingly or intentionally," but the defendant need not know or intend that the act pose an "unreasonable risk of harm or injury to a child." Therefore, fourth-degree child abuse is a general-intent crime.
The evidence was sufficient to allow the jury to find beyond a reasonable doubt that defendant knowingly or intentionally threw the keys and that this action posed an unreasonable risk of harm or injury to defendant's child. Defendant admitted that he intentionally tossed the keys. The keys hit defendant's four-year-old daughter in the back of the head. Throwing a set of keys, knowing a child had been standing in the vicinity of the location in which the keys were thrown seconds before, poses an unreasonable risk of harm or injury to a four-year-old child. Therefore, there was sufficient evidence to support defendant's conviction of fourth-degree child abuse.
B. PROSECUTORIAL MISCONDUCT
Defendant argues that he was denied a fair trial when the prosecutor suggested during closing argument that the jury could consider the testimony of police officers when considering the credibility of SD and defendant. Defendant contends that this suggestion constituted an improper attempt to persuade the jury to accept the police officers’ "credibility determination" concerning SD's version of events. We disagree.
"[T]o preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction." People v. Bennett , 290 Mich.App. 465, 475, 802 N.W.2d 627 (2010). Defendant did not take either of these steps. This issue is therefore unpreserved and is reviewed for plain error. See People v. McLaughlin , 258 Mich.App. 635, 645, 672 N.W.2d 860 (2003). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). The third prong requires that a defendant show "prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
Claims of prosecutorial misconduct "are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." People v. Anderson , 331 Mich.App. 552, 565, 953 N.W.2d 451 (2020) (quotation marks and citation omitted). A prosecutor cannot "vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness," People v. Bahoda , 448 Mich. 261, 276, 531 N.W.2d 659 (1995), or mischaracterize evidence, People v. Watson , 245 Mich.App. 572, 588, 629 N.W.2d 411 (2001). However, the prosecutor may argue from the evidence, and reasonable inferences from it, to support a witness's credibility. Bennett , 290 Mich.App. at 478, 802 N.W.2d 627. The prosecutor also
"may comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant's guilt depends on which witnesses the jury believes." People v. Jackson (On Reconsideration) , 313 Mich.App. 409, 426, 884 N.W.2d 297 (2015) (quotation marks and citation omitted).
During closing arguments, the prosecutor stated:
Luckily, there is actually a jury instruction that you are going to get which is going to give you sort of some things to consider when you are assessing credibility. Some, ah, factors to look at to help you make a decision which hopefully will be helpful to you. I thought I'd go through a couple of those things. I want you to think about these things when you think about the testimony of the witnesses that you heard from. And I don't want you to get pigeonholed into only thinking about [SD's ] testimony versus the defendant's testimony, because I didn't just call all those other witnesses [ ] just to drag this trial out, right? I called them to testify because I thought they would provide information to you that would help you when you were looking at this jury instruction about credibility, okay? So, I don't want you to fall into the trap of thinking that you only have two people to choose from. Two people to listen too [sic ], and only one version to pick, okay? [Emphasis added.]
All of the "other witnesses" referred to by the prosecutor during closing arguments were police officers.
A review of the prosecutor's remarks in context does not support defendant's argument that the prosecutor improperly asked the jury to accept any determination of the police witnesses regarding SD's credibility. Rather, the prosecutor simply noted that the testimony of the police officers might assist the jury in determining which of the other witnesses’ testimony was credible. Defendant has failed to show plain error in the challenged remarks.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues in the alternative that trial counsel was ineffective for failing to object to the prosecutor's statement during closing arguments. We disagree.
A claim of ineffective assistance of counsel "presents a mixed question of fact and constitutional law." People v. Head , 323 Mich.App. 526, 539, 917 N.W.2d 752 (2018). All "findings of fact are reviewed for clear error, while the legal questions are reviewed de novo." Id. When "the reviewing court is left with a definite and firm conviction that the trial court made a mistake," there is clear error. People v. Douglas , 496 Mich. 557, 592, 852 N.W.2d 587 (2014) (quotation marks and citation omitted).
The United States and Michigan Constitutions protect a criminal defendant's right to a fair trial. U.S. Const., Am. VI ; Const. 1963, art. 1, § 17. This includes the right to the effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 685–686, 104 S Ct 2052, 80 L Ed 2d 674 (1984) ; People v. Smith , 336 Mich.App. 79, 100, 969 N.W.2d 548 (2021). Trial counsel is ineffective when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. Trial counsel's performance is presumed to be effective, and defendant has the heavy burden of proving otherwise. See id. at 690, 104 S.Ct. 2052. To establish ineffective assistance of counsel, a defendant must show "(1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant." People v. Randolph , 502 Mich. 1, 9, 917 N.W.2d 249 (2018), citing Strickland , 466 U.S. at 688, 104 S.Ct. 2052.
Claims of ineffective assistance of counsel "center on deficiencies in the defense counsel's decision-making ...." Randolph , 502 Mich. at 14, 917 N.W.2d 249. There is a strong presumption that trial counsel's decision-making is the result of sound trial strategy. People v. White , 331 Mich.App. 144, 149, 951 N.W.2d 106 (2020). A court must determine whether strategic decisions were made by trial counsel after a less-than-complete investigation. People v. Trakhtenberg , 493 Mich. 38, 52, 826 N.W.2d 136 (2012). "If counsel's strategy is reasonable, then his or her performance was not deficient." Randolph , 502 Mich. at 12, 917 N.W.2d 249. Failure to raise a futile objection or advance a meritless argument does not constitute ineffective assistance of counsel. People v. Zitka , 335 Mich.App. 324, 341, 966 N.W.2d 786 (2021). In addition, failing to raise an objection may be consistent with a sound trial strategy. People v. Unger , 278 Mich.App. 210, 242, 749 N.W.2d 272 (2008). A deficiency prejudices a defendant when there is a reasonable probability that but for trial counsel's errors, the verdict would have been different. Randolph , 502 Mich. at 9, 917 N.W.2d 249.
Trial counsel's failure to object to the prosecutor's statement during closing argument did not amount to ineffective assistance of counsel because objecting to this statement would have been futile. See Zitka , 335 Mich.App. at 341, 966 N.W.2d 786. As previously concluded, the prosecutor's comments about witness credibility were appropriate and did not improperly vouch for the veracity of any witness. In addition, trial counsel may have failed to object for strategic reasons, which does not amount to ineffective assistance of counsel. See Unger , 278 Mich.App. at 242, 749 N.W.2d 272. Trial counsel may have thought that objecting to the prosecutor's statement would bring more attention to the police officers’ statements, which would cut against defendant's strategy during closing arguments of emphasizing the differences between defendant's and SD's testimony.
Affirmed.
Sawyer, P.J., and Riordan and Redford, JJ., concurred.