Opinion
359981
09-19-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN EDWARD PIWOWAR, Defendant-Appellant.
UNPUBLISHED
Ottawa Circuit Court LC No. 20-043832-FH
Before: N. P. HOOD, P.J., AND O'BRIEN and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of second-degree criminal sexual conduct (CSC-II) (sexual contact with person under 13 years old, defendant 17 years old or older), MCL 750.520c(2)(b). The trial court sentenced defendant to serve 180 days' in jail, in addition to court costs and fees. On appeal, defendant argues that his trial counsel provided ineffective assistance of counsel by (1) failing to object to evidence vouching for the veracity of the minor complainant, AG, (2) failing to call an expert witness at trial, and (3) failing to object when the prosecution improperly elicited testimony about AG's character for truthfulness. Defendant additionally argues that the trial court deprived him of a fair trial when it did not allow him to admit medical evidence intended to bring into doubt aspects of AG's testimony. If any one of these errors do no warrant relief, defendant asserts that the cumulative effect of all the errors denied him his right of a fair trial. Finding no errors warranting relief, we affirm.
I. BACKGROUND
This case arises out of allegations that defendant inappropriately touched AG during the summer of 2017 or 2018. AG attended a home daycare operated by defendant's long-term significant other. According to AG's trial testimony, one day at the daycare in the summer of 2017, she was lying on a couch with defendant when he put his hand under her pants and underwear, "[o]n her vagina." She felt uncomfortable and told him to stop. He said "okay" and removed his hands from her pants. AG then moved to the other side of the room. She stated that no one else was in the room when the incident occurred.
Defendant was interviewed by Detective Jacob Mucha of the Ottawa County Sheriff's Office. Detective Mucha testified at defendant's trial that he primarily investigated crimes against children, specifically child sexual abuse. During the interview, after about an hour of questioning, defendant told the detective about an incident of possible inappropriate touching that occurred while he and AG were on the couch at the daycare. Defendant said that he laid down on the couch with his face to the back of the couch because he had a migraine. AG came up and laid down next to him on her back. Defendant looked back and saw that it was her. He reached back and touched her leg or her hip to make sure she was secure on the couch. He then fell asleep. When he woke up, his thumb was "stuck" under the elastic waistline of AG's pants and underwear, touching her skin. Defendant "couldn't figure out why [he] couldn't move [his] hand," so he "was freaking out." He said he was "moving around"-"pulling up and down on the elastic with [his] thumb"- trying to figure out why he could not move his hand or thumb, but was not thinking about his fingers. He thought that his fingers could have touched AG's vagina over her clothes without him "realiz[ing] it, 'cause [he] was freaking out about [his] thumb [being] stuck." Defendant said that there was "nothing" preventing him from drawing his hand back "once [he] figure[d] out what- what was going on." Defendant said that he removed his hand after he realized that his thumb was stuck in the waistline of AG's pants, and he immediately told AG to leave because he "was freaking out about that." Defendant said that, after this incident, he told AG that she could not lay by him anymore, "[e]specially when [he was] sleeping." But he also said that he did not mind if AG laid next to him after the incident "as long as [he did not] fall asleep." This interview was recorded, and the audio was played for the jury at trial.
As stated, the jury convicted defendant of CSC-II. Defendant filed a postjudgment motion for a new trial on the basis of ineffective assistance of counsel and violation of the right to present a defense. Following an evidentiary hearing, the trial court denied defendant's request for a new trial in a written opinion and order.
This appeal followed.
II. INEFFECTIVE ASSISTANCE
Defendant argues that his trial counsel provided ineffective assistance of counsel when he failed to object to statements made by Detective Mucha vouching for AG's credibility during his interview of defendant, which was played for the jury. Defendant additionally argues that his trial counsel provided ineffective assistance when he failed to consult a medical expert to rebut the prosecution's expert witness and failed to object to the prosecutor's questioning witnesses about AG's character for truthfulness.
A. STANDARD OF REVIEW
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). "[T]he trial court's factual findings supporting its decision are reviewed for clear error, while the court's determination of whether those facts violated the defendant's right to the effective assistance of counsel is reviewed de novo." People v Haynes, 338 Mich.App. 392, 429; 980 N.W.2d 66 (2021).
B. BASIC PRINCIPLES
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) the performance of the defendant's trial counsel fell below an objective standard of reasonableness under prevailing professional norms and (2) but for counsel's deficient performance, the outcome of the proceedings would have been different. People v Sabin (On Second Remand), 242 Mich.App. 656, 659; 620 N.W.2d 19 (2000). "Effective assistance is strongly presumed, and the defendant bears the heavy burden of proving otherwise." Haynes, 338 Mich.App. at 429 (quotation marks and citation omitted).
C. IMPROPER VOUCHING
Jurors alone are the judges of a witness's credibility, and for that reason, "it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial." People v Musser, 494 Mich. 337, 349; 835 N.W.2d 319 (2013). "Such comments have no probative value" and are thus inadmissible. Id.
Defendant argues that his trial counsel was ineffective for not objecting to certain statements made by Detective Mucha during the detective's interview of defendant that were heard by jurors when the interview was played for them. Defendant contends that, in the contested statements, Detective Mucha impermissibly vouched for AG's credibility, and if defendant's trial counsel had objected to the statements, the statements would have been redacted from the interview and not heard by jurors.
In his statement of questions presented, defendant states that the admission of the contested statements denied him a fair trial, but he does not develop that argument in his brief. He contends only that his trial counsel was ineffective for not moving to exclude the statements, and that his counsel's deficient performance prejudiced him. He does not argue that admitting the evidence amounted to plain error affecting substantial rights. See People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999) (explaining that unpreserved errors are reviewed for plain error affecting substantial rights); People v Randolph, 502 Mich. 1, 10-16; 917 N.W.2d 249 (2018) (explaining the ways in which reviewing whether a plain error affected a defendant's substantial rights is different than reviewing whether a defendant was deprived of the effective assistance of counsel).
In Musser, our Supreme Court addressed the same issue as the one raised by defendant here. The defendant in Musser was interviewed by two detectives, and a video recording of the interview was played for the jury over defendant's objections to certain statements made by the detectives in the interview. Musser, 494 Mich. at 345-346. The defendant contested the detective's statements on grounds that they impermissibly vouched for the complainant's credibility, but the trial court overruled the objection, reasoning that the detective's statements were necessary to provide context for defendant's statements in the interview. Id. at 345.
Our Supreme Court explained the issue on appeal as "whether an interrogator's out-ofcourt statements that vouch for the credibility of another person must be redacted from the recording of the interrogation before it is presented to the jury when the prosecution purports to offer the interrogator's out-of-court statements, not for the truth of the matter asserted, but only to place the defendant's statements in context for the jury." Id. at 351. The Court declined "to adopt a bright-line rule for the automatic exclusion of out-of-court statements made in the context of an interrogation that comment on another person's credibility because the issue [could] be adequately addressed by our existing rules of evidence." Id. at 353. The Court explained that statements about another's credibility are only admissible to provide context "to the extent that the proponent of the evidence establishes that the interrogator's statements are relevant to their proffered purpose" and not excluded by MRE 403. Id. at 354. The Court elaborated that, to be relevant, an interrogator's statement vouching for the credibility of another must, in fact, add context to a defendant's statement; otherwise, the vouching statement would be inadmissible as irrelevant. Id. at 355-356. The Court added that an interrogator's contested statement "must be redacted if that can be done without harming the probative value of a defendant's statements." Id. at 356. "[B]ecause an interrogator's comments regarding a person's credibility are not admissible for the truth of the matter asserted, a trial court shall restrict the interrogator's statements to their proper scope-to actually provide context to a defendant's statement." Id. at 358.
At the outset, it bears noting two things. First, as will be explained, part of defendant's trial strategy was to admit most of Detective Mucha's interview of defendant for the jury to see the detective's aggressive interview tactics. As a result, most of the interview was played for the jury. This included many statements in the interview that were irrelevant because they were either defendant's statements that were not relevant to the allegations against him, or the detective's statements that did not add context to a relevant statement by defendant. Second, in the fact section of defendant's brief, he quotes much of Detective Mucha's hours-long interview of defendant, but defendant cites only a few portions of the interview in the argument portion of his brief. Many of the statements identified by defendant in his statement of facts likely could have been excluded as being irrelevant because, again, almost the entire interview was played for the jury, not simply the portions of the interview in which defendant made incriminating or relevant statements. This opinion does not try to parse out which statements identified in defendant's statement of facts are applicable to his appellate argument. Instead, our review focuses only on the statements from the interview that defendant identifies in the argument portion of his brief. It is not this Court's role "to search for a factual basis to sustain or reject [defendant's] position," People v Traylor, 245 Mich.App. 460, 464; 628 N.W.2d 120 (2001), or "rationalize the basis for his claims," People v Kevorkian, 248 Mich.App. 373, 389; 639 N.W.2d 291 (2001) (quotation marks and citation omitted).
A portion of the interview discussing a previous allegation against defendant was redacted.
Defendant identifies the following exchange during Detective Mucha's interview of defendant as being improper in the argument section of his brief:
Mucha. Sure. [Defendant], I guess-What I want you to know about me, is that I look into these types of cases all the time. Um, and I've heard from AG, and I've said, I've been looking into this for a little bit now, it's been a little while, right? Since this has been going on. And it's clear to me, like you said, AG is a pretty sweet kid.
[Defendant]. No, she is.
Mucha. She's a pretty honest kid. She loves you. That's very clear. What I'll tell you also, is that it's very clear something happened.
Defendant. So, what is she saying that-
Mucha. Right.
Defendant. -I can add to?
Mucha. Yeah. Yeah, yeah, yeah. So-And I, I want to be able to tell you. Okay? But here-Here's what I want. So, in my line of work-Like I said, these are the only types of things I look into.
Defendant. Okay.
Defendant also draws this Court's attention to the following exchange later in the interview:
Mucha. [T]his would've been a mistake that happened one time.
Defendant. Yeah.
Mucha. That we need to talk about. So, in my mind, it would be a noteworthy mistake. It would be something worth remembering, to say, "I'm not doing that crap again. That got-That got a little sideways. That was a mistake, and I'm sorry about that, because I care about [AG], and she cares about me." Right? And here's the problem, [defendant], she's confused.
Defendant. Is she really?
Mucha. Yeah.
Defendant. Why? What-
Mucha. She's hurt. 'Cause something happened.
Defendant. Huh.
Mucha. What I don't want to do is, I don't want to go back to [AG] and say, "[defendant] says you're lying."
Defendant. Hm. I don't know.
Mucha. Because she doesn't deserve that. Defendant also identifies the following exchange that occurred a short time later in the interview:
Mucha. [Defendant], what I want you to understand that [sic] is that it's very clear that a mistake happened, okay? You know [AG].
Defendant. Yeah Mucha. And you know that she tells the truth. Defendant. Yeah, but so do I.
Mucha. And you-And you know-Right, but-But you're saying, "I can't remember. I'm not sure. I'm not whatever."
Defendant. Yeah.
Mucha. Okay? What I'm telling you is, she's not confused. She's not unsure. She's not making a mistake here. She knows you. There's no possible way that she's confusing you with some other adult or something.
Defendant. No, no. I understand that. But you were just saying that she was confused a minute ago. You just said, "Well, she's confused."
Mucha. She's confused about what happened, about why it happened.
Defendant. Oh. I see. Okay, okay.
Mucha. She's not confused-I'm sorry, she's not confused about what happened. She's confused about why it happened.
The detective later reiterated that he thought "something happened," saying, "And again, [defendant], what's clear is, something happened. What's clear is something happened." Defendant also contests an exchange still later in the interview that took place after defendant told the detective about the incident on the couch in which defendant's thumb got stuck in the elastic waistband of AG's pants. In that exchange, Detective Mucha said, "Well, look, we both agree that [AG] is a truthful kid," and defendant responded, "And I'm a truthful guy." Defendant also draws this Court's attention to the following exchange that took place towards the latter half of the interview:
Mucha. I-I can tell you this, that there are context clues that [AG] was able to provide that make me believe that you were awake, and that [AG]-we can both agree, is an honest person. You started out-In an hour of this conversation, the first half now of our conversation, telling me, "I don't know what in the heck you're even talking about."
Defendant. Right.
Defendant lastly draws this Court's attention to the following exchange:
Mucha. You know, she-She was interviewed by a professional child interviewer. Not by me.
Defendant. Right, right.
Mucha. She was interviewed by a person who has specialized training in talking with kids to get the truth.
Defendant. Okay.
Mucha. And, and she's specially trained in, uh, you know, asking for sensory and detail questions that, a kid who wanted to fabricate a story wouldn't think of.
Defendant. Right.
Mucha. Okay?
Defendant. Right.
Mucha. And on the spot, [AG] was able to provide details that illustrated that you were awake.
Defendant. I was for a little while.
Defendant first argues that Detective Mucha's repeated statements during the interview that "something happened" constituted impermissible vouching. We disagree. In the statements, the detective did not express a belief that AG was telling the truth about what happened, only that "something happened" and he wanted to know what defendant thought it could be. This is apparent from the context of the statements and the detective's questioning surrounding the statement-the detective was telling defendant that AG said "something happened," and the detective was asking defendant what he thought AG could be referring to. This does not constitute vouching. That said, the detective's statements were still irrelevant to the case against defendant; they were not necessary to provide any context to a probative statement made by defendant during the interview. Had defendant's trial counsel objected to the statements on grounds of relevancy, they could have been redacted without harming the probative value of any relevant statement made by defendant. See Musser, 494 Mich. at 356 (explaining that an interrogator's statement "must be redacted if that can be done without harming the probative value of a defendant's statements").
As alluded to earlier in this opinion, defendant's trial strategy was to show the jury Detective Mucha's aggressive interview techniques. While most, if not all, of the detective's statements were relevant for this purpose, no one has argued that this was a proper purpose for which the statements could be admitted.
The detective's repeated statements that AG was "truthful" or "honest" did, however, constitute vouching. The statements did nothing but convey to jurors that the detective believed AG was telling the truth. Had the statements been redacted, the meaning of all of defendant's answers would have remained the same, and defendant's comments-if relevant-would not have lost any of their probative value. Accordingly, these statements were unnecessary to add context to defendant's statements and served no purpose but to vouch for AG's credibility. Had defendant's trial counsel objected to these portions of the interview, they would have been redacted. See id.
The detective made statements like "[AG] is a pretty honest kid," "you know that [AG] tells the truth," "we both agree that [AG] is a truthful kid," and "[AG]-we can both agree, is an honest person."
The trial court reasoned that Detective Mucha's testimony that AG told the truth was admissible because it was made after defendant said at the start of the interview that AG was "pretty honest." The court believed that the detective's statements following defendant's concession were not the detective's own opinion but were made to "further develop defendant's story." The court reasoned, "These questions were actually imperative to his investigation into whether AG may have motive to lie and defendant's knowledge of any such motive or tendency to fabricate." The prosecution quotes the trial court and relies on its reasoning on appeal. We respectfully disagree with the trial court in this respect. As Musser explains, an interrogator's statements about a witness's credibility must be redacted if they do not "actually provide context to a defendant's statement." Musser, 494 Mich. at 358. Detective Mucha's statements were clearly comments about AG's credibility that did not add any context to statements made by defendant; the detective statements could have been redacted and the jury would have fully understood defendant's answers to the detective's questions.
Likewise, Detective Mucha's statements about the forensic interview would have been redacted had defendant's trial counsel objected. While defendant's admission during the exchange that he was awake "for a little while" was relevant and admissible, not all of the detective's remarks leading up to that admission were necessary to give context to the defendant's relevant statement.
The statement could have been redacted as follows:
Mucha. You know, she-She was interviewed by a professional child interviewer. Not by me.
Defendant. Right, right.
Mucha. She was interviewed by a person who has specialized training in talking with kids to get the truth.
Defendant. Okay.
Mucha.-And, and she's specially trained in, uh, you know, asking for sensory and detail questions that, a kid who wanted to fabricate a story wouldn't think of.
Defendant. Right.
Mucha. Okay?
Defendant. Right.
Mucha. And on the spot, [AG] was able to provide details that illustrated that you were awake.
Defendant. I was for a little while.
[7] People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
[8] Defendant insists that his trial counsel was ineffective for not requesting an expert disclosure under MCR 6.201 because defendant's trial counsel would have then been aware of exactly what Welke was prepared to testify about. Yet, defendant's trial counsel testified about his preparations for Welke's testimony before trial-including consulting with an expert about the subject of Welke's testimony-and explained that her testimony went as expected. On this record, we cannot conclude that counsel's performance was deficient.
[9] The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective January 1, 2024. See ADM File No. 2021-10, 512 Mich. lxiii (2023). The rules quoted in this opinion are the version in effect at the time of defendant's trial.
The detective's contested statements conveyed to the jury that AG's account of events were believable because she had been interviewed "by a person who has specialized training in talking with kids to get the truth" and knew how to ask questions that "a kid who wanted to fabricate a story wouldn't think of." Because these comments were unnecessary to add context to defendant's relevant statement, they had no probative value and would have been redacted had defendant's trial counsel objected. See id. at 360-361 (explaining that the portions of the detective's statements made during the interview that did not add context to the defendant's statements had no probative value and should have been redacted).
Merely because this evidence was inadmissible, however, did not mean that defendant's trial counsel had to object; if counsel's decision to not object was based on reasonable trial strategy, then defendant is not entitled to relief on his ineffective-assistance-of-counsel claim. At the Ginther hearing, defendant's trial counsel explained that his trial strategy to deal with the interview-and the incriminating statements defendant made during the interview-was to emphasize Detective Mucha's use of "heavy-handed tactics that a lot of people would buckle under." Defendant's trial counsel explained that he wanted to convince the jury that "the only reason" that defendant made "these odd statements about the thumb in the waistband" was "because of [the detective's] overreach" during the interview. Defendant's trial counsel thought that the jury seeing the detective's "tactics" would "engender[] sympathy" for defendant "because [Detective Mucha] was so aggressive."
This strategy for dealing with the interview was sound, but it does not fully explain why defendant's trial counsel did not seek to redact the detective's statements in the interview vouching for AG's credibility. On that point, defendant's trial counsel, at times, seemed unsure about whether he could have successfully had the improper statements redacted. Defendant's trial counsel admitted that he was not familiar with Musser but said that he understood the principle from it. He also at one point acknowledged that the improper statements in the interview were "not helpful" to his case but added that he could not prevent some unhelpful statements from being entered into evidence "because the rules allow them to come in, so."
But defendant's trial counsel also explained that, even if he could have objected to the contested statements, he would not have done so because it would have been inconsistent with his trial strategy. Defendant's trial counsel testified that he would have objected if Detective Mucha made the contested statements while testifying at trial, but counsel thought it unnecessary to object to the same statements made during the interview because those statements were not made under oath and counsel could explain to the jury that the statements were part of the detective's aggressive interview tactics. Defendant's trial counsel also explained that statements about AG's "honesty" were not damaging to defendant's trial strategy because the strategy was not to paint AG as a "liar" but to use "a different sort of attack on her credibility"-counsel wanted the jury to believe that AG misremembered the events or was confused. When asked by the trial court whether counsel would have simply stipulated to having a detective testify about the incriminating statements that defendant made during the interview, defendant's trial counsel said that he would not have agreed to such a stipulation because part of his trial strategy was to emphasize "how much badgering it took, how much pressure it took before [defendant] said anything about the thumb in the waistband."
On this record, we conclude that it was reasonable trial strategy for defendant's trial counsel to not move to redact the inadmissible statements identified by defendant in defendant's interview with Detective Mucha. In so doing, we are mindful that we must not insulate a counsel's unreasonable performance by calling it trial strategy. People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). But we believe that defendant's trial counsel made the most out of a very difficult case. Defendant's trial counsel recognized that defendant's incriminating statements in the interview were "the keystone" of the prosecution's case and "how critical that interview was going to be in trial." To address this key piece of evidence, defendant's trial counsel attempted to flip the script; he sought to use the interview-the "keystone" of the prosecution's case-to make the jury sympathize with defendant. Defendant's trial counsel attempted to cast defendant as the victim of a belligerent detective who used oppressive interview techniques to bully defendant. While defendant's trial counsel could have objected to irrelevant statements made by the detective during in the interview-including statements vouching for AG's credibility-the detective's statements were not made under oath and counsel could use the statements as more examples of the detective's aggressive interview tactics. Redacting too much of the interview would also run counter to defendant's trial strategy because defendant's trial counsel sought to show the jury how hostile Detective Mucha was while interviewing defendant and how long defendant endured the detective's tactics. Indeed, it was for this reason that defendant's trial counsel wanted the jury to hear most of the statements Detective Mucha made during the interview, and not merely have the detective testify about defendant's incriminating statements. Defendant's trial counsel also explained that he did not believe the statements about AG's honesty were damaging to the defense because the defense was not attempting to portray AG as a liar or dishonest.
Trial counsel "is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." People v Odom, 276 Mich.App. 407, 415; 740 N.W.2d 557 (2007). This was undoubtedly a difficult case, and defendant's trial counsel took a risk by having almost the entirety of Detective Mucha's interview of defendant admitted. But defendant's trial counsel sufficiently explained how this risk was calculated, and his reasons for taking such a calculated risk were reasonable. We accordingly conclude that counsel's strategy of admitting the interview of defendant without moving to redact the detective's objectionable statements in the interview constituted reasonable trial strategy under the circumstances.
But even if it was objectively unreasonable for defendant's trial counsel to not move to redact the contested statements in Detective Mucha's interview of defendant, we would still not grant defendant relief because, on this record, we conclude the error did not prejudice defendant. It is true that this case was a one-on-one credibility contest, and that the prosecutor's case "hinged heavily on whether the jury believed [AG's] version of events." People v Hawkins, 507 Mich. 949, 949 (2021). It is also true that "an out-of-court statement made by an investigating officer may be given undue weight by the jury where the determination of a defendant's guilt or innocence hinges on who the jury determines is more credible-the complainant or the defendant." Musser, 494 Mich. at 358. But the contested statements were brief and sporadic, and occurred during a short period over the course of a three-day trial. The parties did not highlight the contested statements during trial. While the prosecution framed its closing argument as a credibility contest between AG and defendant, the prosecution never referenced any of the detective's improper statements. The prosecution instead focused on proper evidence that boosted AG's credibility and damaged defendant's credibility, including perhaps the most damaging evidence against defendant-the fact that, when defendant was being interviewed about whether he ever inappropriately touched AG on the couch, he said that he once fell asleep on the couch with AG and woke up with his thumb "stuck" in the elastic waistline of her pants, "freaked out," and while he was moving his hand trying to get his thumb out of AG's pants (even though "nothing" prevented him from drawing his hand back), his fingers might have touched AG's vagina over her clothes without defendant "realiz[ing] it." Though defendant vehemently denied that any purposeful sexual touching occurred during this incident, defendant's partial admission still created a significant obstacle to rebutting AG's testimony that defendant placed his hand in her pants and inappropriately touched her vagina while they were on the couch together. While it is nevertheless true that the only evidence against defendant was AG's uncorroborated testimony, we conclude that, when considering the entire record, the magnitude of the possible errors identified by defendant was not significant enough to establish prejudice. Accord Trakhtenberg, 493 Mich. at 56 ("And [w]here there is relatively little evidence to support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the magnitude of errors necessary for a finding of prejudice will be less than where there is greater evidence of guilt.") (Quotation marks and citation omitted.)
D. FAILURE TO CONSULT EXPERT
Defendant next argues that his trial counsel was ineffective for failing to consult an expert to refute the prosecution's expert and failing to present an expert concerning "memory fallibility and source misattribution errors." We disagree.
At the Ginther hearing, defendant's trial counsel testified that, in preparation for defendant's trial, he consulted an expert-forensic and clinical psychologist, Dr. Swerdlow-Freed-who reviewed the transcript of the forensic interview, police reports, and case file. According to defendant's trial counsel, Dr. Swerdlow-Freed's opinion was that it would not be helpful for him to testify at defendant's trial concerning any possible deficiencies in the execution of the forensic-interview protocols, but he helped defendant's trial counsel formulate some cross-examination questions for trial. Defense counsel consulted another expert to review defendant's police interview, but that expert also concluded that his testimony would not be useful for the defense.
Defendant's trial counsel also testified that he was familiar with the prosecution's expert, Barbara Welke, and her typical testimony. Counsel explained that, when he usually prepares for a trial in which an expert like Welke is to testify, he reviews the testimony of Welke and similar experts in other cases and takes note of any cross-examination that he finds effective. While defendant's trial counsel could not say for certain how he prepared for Welke's testimony in this case, he testified that he knew he "was prepared" and that "there were zero surprises" in her testimony. He stated that, in the cases he has reviewed involving Welke, she generally testified about the forensic-interview process and delayed disclosure, which was most of her testimony at defendant's trial. Defendant's trial counsel did not believe that it was necessary to call an expert to rebut Welke's testimony at defendant's trial because she testified as counsel expected she would.
To the extent that defendant argues that his trial counsel was ineffective for not consulting with an expect, we disagree. Trial counsel may perform deficiently "by failing to investigate and . . . secure an expert witness who could" rebut the testimony of a prosecution's expert. People v Ackley, 497 Mich. 381, 389; 870 N.W.2d 858 (2015). This is particularly the case "when counsel had neither the education nor the experience necessary to evaluate the evidence and make for himself a reasonable, informed determination as to whether an expert should be consulted or called to the stand ...." Trakhtenberg, 493 Mich. at 54 n 9 (quotation marks and citation omitted; alteration and emphasis in original). Defendant's trial counsel testified that he was familiar with Welke as an expert and was generally aware of what her testimony at trial would be. Counsel consulted with an expert before trial about the subject of Welke's testimony, and that expert did not believe his testimony could assist the defense, but helped defendant's trial counsel prepare questions to cross-examine Welke. Defendant's trial counsel testified that Welke's testimony at trial went as he expected, so he did not see a need to call a rebuttal witness. On this record, it is plain that defendant's trial counsel had the experience and knowledge necessary to evaluate the evidence and make a reasonable and informed determination as to whether he should call an expert at trial-after consulting with an expert, he decided not to do so. See id. See also People v Horn, 279 Mich.App. 31, 39; 755 N.W.2d 212 (2008) (stating the general rule that counsel's decision about whether to call a witness is a matter of trial strategy).
Defendant insists that his trial counsel should have called a rebuttal witness to dispute certain aspects of Welke's testimony. Specifically, defendant asserts that a rebuttal expert could have disputed Welke's testimony that only 10% of children immediately disclose abuse and that the most important factor in delaying disclosure was the child's relationship with the perpetrator. In support of this argument, defendant presents the testimony of an expert that the number of children who immediately disclose abuse is closer to 50%, and questioned the basis for Welke's conclusion that the most powerful factor preventing a child from disclosing abuse is the child's relationship to the perpetrator. We cannot agree with defendant that defendant's trial counsel performed unreasonably by failing to find an expert who was willing to dispute Welke's testimony. Again, counsel consulted an expert concerning forensic-interview protocols generally and whether those protocols were followed in this case, familiarized himself with Welke's typical testimony, and reviewed transcripts to find examples of effective cross-examinations of Welke's typical testimony. As the trial court rightly observed, defendant's "trial counsel was not expected or required to exhaust every resource to find an expert to testify in his favor." On this record, defendant has not overcome the heavy burden of overcoming the presumption that his trial counsel performed effectively. See Haynes, 338 Mich.App. at 429; People v Blevins, 314 Mich.App. 339, 351; 886 N.W.2d 456 (2016) ("Although defendant believes that additionally presenting an expert on eyewitness testimony would have been helpful, and defendant may even be right, that counsel could conceivably have done more, or that a particular trial strategy failed, does not mean counsel's performance was deficient.").
E. FAILURE TO OBJECT TO IMPROPER CHARACTER EVIDENCE
Defendant next takes issue with evidence about AG's character for truthfulness that was improperly elicited by the prosecutor. Defendant argues both that the admission of the evidence substantively deprived him of a fair trial and that his trial counsel's failure to object to the evidence constituted ineffective assistance of counsel.
The prosecutor asked both defendant and his long-term significant other whether AG was honest. They both answered that she was. The trial court agreed with defendant that this constituted improper character evidence, and the prosecution does not appear to dispute this conclusion on appeal. MRE 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
The defense did not attack AG's character for truthfulness at trial; therefore, it was improper for the prosecutor to elicit opinion testimony concerning her character for truthfulness.
To the extent that defendant substantively challenges the admission of this evidence, his argument must fail. Despite recognizing that his trial counsel did not object to this evidence, defendant does not acknowledge that the issue of whether the evidence was properly admitted is unpreserved and thus reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Generally, establishing that a plain error affected substantial rights requires a showing that "the error affected the outcome of the lower court proceeding." Id. The entirety of defendant's prejudice argument is a single sentence stating, "Admission of the [objectionable evidence] violated [defendant's] right to a fair trial." This is insufficient to present the matter for review. See People v Iannucci, 314 Mich.App. 542, 545; 887 N.W.2d 817 (2016). At any rate, the statements were brief and occurred over the course of a three-day trial. While the prosecutor described this case as a one-on-one credibility contest during closing arguments, the prosecutor did not discuss the objectionable evidence. We accordingly conclude that, even if defendant had not abandoned this argument, he has failed to establish that the error of admitting the evidence affected substantial rights.
Turning to defendant's concomitant ineffective-assistance claim, at the Ginther hearing, defendant's trial counsel testified that he did not see an advantage to objecting to the prosecution's "trying to score little points here and there with, oh, isn't [AG] honest" because doing so ran the risk of turning the jury against the defense. Defendant's trial counsel explained that he was "not up here trying to say that this little girl who just tearfully described this [the] day before was lying deliberately to the police and to the forensic interviewer and to this court about [defendant]." Defendant's trial counsel further explained that not objecting to the prosecution's question was consistent with the defense's strategy because the defense was attempting to use "a different sort of attack on [AG's] credibility." Defendant's trial counsel later added that there are times when he strategically chooses to not object out of fear that the objection, while technically correct, will do more harm in the eyes of jurors than the objectionable evidence would. He explained that, in his experience, jurors tend to "get tired" of overly aggressive counsel and start questioning why counsel will not "just let the witness talk."
Considering this explanation, we conclude that defendant has failed to establish that his trial counsel performed unreasonably by not objecting to the challenged testimony. Defendant's trial counsel sufficiently explained why he believed that objecting to the prosecutor's improper questions would have done more harm than good in the context of defendant's trial. See People v Unger, 278 Mich.App. 210, 242; 749 N.W.2d 272 (2008) ("[T]here are times when it is better not to object and draw attention to an improper comment.") (Quotation marks and citation omitted.) Defendant's trial counsel also explained why this decision was strategic both in terms of the defense's theory of the case and how counsel wanted the jury to perceive the defense. Particularly given the briefness of the challenged testimony and the fact that this brief testimony occurred in the context of a three-day trial, we conclude that defendant has not overcome the strong presumption that defendant's trial counsel performed effectively. Haynes, 338 Mich.App. at 429.
III. MEDICAL EVIDENCE
Defendant further argues that the trial court violated his right to present a defense by excluding evidence that defendant had hernia surgery in the summer of 2017. We disagree.
A trial court's decision to exclude or admit evidence is reviewed for an abuse of discretion. Musser, 494 Mich. at 348. "A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes." Id. Whether a defendant was deprived of his or her right to present a defense is reviewed de novo. People v Steele, 283 Mich.App. 472, 480; 769 N.W.2d 256 (2009).
"A criminal defendant has a due process right to present a defense under the state and federal constitution." People v Solloway, 316 Mich.App. 174, 198; 891 N.W.2d 255 (2016). However, that right is not absolute. Id. "The defendant must still comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. (quotation marks and citations omitted). "Accordingly, the right to present a defense extends only to relevant and admissible evidence." Id. (quotation marks and citation omitted). According to MRE 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
During defendant's testimony at trial, defendant's trial counsel sought to elicit testimony concerning a hernia surgery that defendant had in the summer of 2017. According to defendant's trial counsel, defendant experienced significant pain before the surgery and while he was recovering after the operation. Counsel explained that the surgery made it unlikely that he would have a allowed a child to climb on or near him during this period. Defendant's trial counsel asserted that this evidence was relevant because it made is less likely that any inappropriate touching occurred in 2017, as AG testified.
The trial court disagreed. The court reasoned that defendant had told Detective Mucha that he had kids jumping on him all the time, and never mentioned his hernia surgery at any point. The court thus concluded that testimony about a hernia surgery in 2017 would contradict defendant's own statements. The court further reasoned that AG did not testify that she was "sitting on [defendant's] lap at all." Accordingly, the court believed that the evidence was irrelevant, and it did not allow the evidence to be admitted.
Under MRE 401, evidence is logically relevant if it is material and probative. See People v Crawford, 458 Mich. 376, 388; 582 N.W.2d 785 (1998). Evidence is material if it is related to a fact that is of consequence to the action. Id. at 388. Evidence is probative if it "tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. at 389-390.
AG testified that the inappropriate touching she described took place in 2017, while defendant testified that the incident in which his thumb got stuck in AG's waistband occurred in 2018. While the date of the criminal sexual conduct was not a material fact, see People v Dobek, 274 Mich.App. 58, 83; 732 N.W.2d 546 (2007), AG's credibility was, see People v Bahoda, 448 Mich. 261, 290; 531 N.W.2d 659 (1995). Defendant essentially argues that evidence of the hernia surgery was relevant because it made it less likely that any incident occurred in 2017, thus bringing AG's credibility into question. In the trial court, defendant explained that evidence of his 2017 hernia surgery made it "very unlikely that he would've allowed a child to climb on or near him during the leadup to the surgery and then post-op while he recovered." As the trial court noted, however, AG did not testify that she was sitting on defendant's lap; she testified that they were laying next to each other on their backs on the couch when defendant inappropriately touched her. Defendant fails to adequately explain why evidence that he had a hernia surgery in 2017 made it unlikely that he would have laid on his back next to AG in 2017. We accordingly conclude that the trial court did not abuse its discretion by excluding the hernia-surgery evidence on relevancy grounds, and did not violate defendant's right to present a defense by not allowing it.
Even if the hernia-surgery evidence should have been admitted at trial, it would not have made a difference. Again, the year that the criminal sexual conduct took place was not material. Dobek, 274 Mich.App. at 83. Defendant testified that the waistband incident took place in 2018, and there was always a question of whether defendant and AG were describing the same or different incidents. Evidence that AG may have been wrong about when the events she described took place would simply not have led to a different result in this case.
IV. CUMULATIVE ERROR
For his final argument, defendant contends that the cumulative effect of the errors he identified on appeal warrants granting him a new trial.
"Although one error in a case may not necessarily provide a basis for reversal, it is possible that the cumulative effect of a number of minor errors may add up to error requiring reversal." People v Anderson, 166 Mich.App. 455, 472-473; 421 N.W.2d 200 (1988). "[O]nly 'actual errors' are aggregated when reviewing a cumulative-error argument." People v Gaines, 306 Mich.App. 289, 310; 856 N.W.2d 222 (2014). "To warrant reversal based on cumulative error, the effect of the errors must have been seriously prejudicial in order to warrant a finding that defendant was denied a fair trial." People v Schrauben, 314 Mich.App. 181, 193; 886 N.W.2d 173 (2016) (quotation marks and citation omitted). "The test to determine whether reversal is required is not whether there are some irregularities, but whether defendant has had a fair trial." People v Albert, 160 Mich.App. 198, 201; 408 N.W.2d 71 (1987).
Defendant has identified several pieces of evidence that could have been excluded at his trial-the brief testimony about AG's character for truthfulness, and the irrelevant statements from Detective Mucha's interview of defendant. Considering the cumulative effect of these errors in the context of defendant's trial, we conclude that defendant was not denied a fair trial. Arguably, the most powerful evidence against defendant was the fact that, when asked by a detective about a time when defendant may have inappropriately touched AG in a sexual manner on the couch at her daycare, defendant described an incident in which, while he and AG were on the couch together, his thumb got "stuck" in the waistband of AG's pants, and while defendant was trying to remove it, his fingers could have touched AG's vagina over her clothes without him "realiz[ing] it, 'cause [he] was freaking out about [his] thumb [being] stuck." It was never defendant's defense that AG was being dishonest about her account of events, which was sensible considering his incriminating statements. Defendant instead argued that his version of events was true, and that AG was confused or mistaken about what happened, or was mixing it up with a different event. Viewing the totality of the record in light of defendant's defense, we conclude that the cumulative effect of any improper statements about AG's character for truthfulness and statements vouching for her credibility admitted at trial was not so prejudicial as to deny defendant a fair trial.
Affirmed.
Noah P. Hood Colleen A. O'Brien James Robert Redford