v No Jackson Circuit Court

Transcription

1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED June 19, 2018 v No Jackson Circuit Court SCOTTY EUGENE BODMAN, LC No FC Defendant-Appellant. Before: CAMERON, P.J., and METER and BORRELLO, JJ. PER CURIAM. Defendant appeals as of right his convictions following a jury trial of five counts of firstdegree criminal sexual conduct (CSC-I), b(1). The trial court sentenced defendant as a second-offense habitual offender, MCL , to five concurrent terms of 25 to 50 years imprisonment. We affirm. This case arose from defendant s repeated sexual misconduct with his stepdaughter, JM, and a friend of another stepdaughter. Defendant began dating JM s mother when JM was eight years old. JM testified that when she was approximately nine years old, defendant began touching her inappropriately. Defendant came into JM s bedroom and penetrated JM s vagina with his fingers. JM recalled that defendant touched her in this way at least two times, but she could not say with certainty exactly how many times it happened. When JM was in high school, her mother moved out, but JM and her siblings stayed with defendant. Once her mother moved away, defendant treated JM like a wife and often told people that they were a couple. Defendant made several comments to JM and JB, JM s younger sister, about their bodies and how attractive they were, and frequently touched their breasts and buttocks. He often supplied alcohol for the girls and also smoked marijuana with them. In 2015, when JM was 21 years old and still living with defendant, she woke up one morning feeling groggy because defendant had given her Benadryl or Sudafed. When she woke up, defendant was on top of her, having penile-vaginal sex with her. She moved out and reported defendant s conduct to police. After she moved out, defendant publicly posted Facebook comments that she interpreted as professing his love for her and describing sexual incidents between them. -1-

2 JB testified that defendant often exposed himself to the girls and walked in on them while they were showering. He took them shopping for bras and panties and requested that they model the underwear for him. Defendant gave them massages, touching their breasts and buttocks. Defendant appeared to be trying to touch JB s vagina one time while giving her a massage, but she jumped up before he reached the top of her thighs. When JB was approximately 15 years old, defendant had her take off her shirt and bra and told her that he was giving her a breast examination, which he repeated every few months. BB testified that she was JB s best friend in high school and spent a lot of time with JB s family beginning when she was 13 or 14 years old. Defendant was the only adult living in the house because JB s mother had already moved out. BB went to defendant s house for JB s sixteenth birthday. Defendant provided alcohol and marijuana. JB went upstairs, leaving defendant and BB alone. BB felt sick, so she went to the bathroom to vomit. She sat down with her legs wrapped around the toilet, and defendant came up behind her, put his legs around her back, and held her hair back from her face. Defendant began kissing BB and put his hand down BB s pants underneath her underwear. At some point, while BB was lying on the floor, Defendant rubbed his hand on BB s vagina and put his finger inside her vagina. He also guided BB s head to have her put her mouth on his penis. DM, another of defendant s stepdaughters, from an earlier marriage, testified that defendant sexually abused her several years earlier. DM had recurring nightmares about a time that defendant made her give him oral sex when she was approximately four or five years old. 1 According to DM, defendant was physically abusive to her mother, so the couple separated when DM was eight years old. DM s mother and defendant resumed their relationship when DM was 10 or 11 years old, and when defendant moved back in with the family, he started coming into DM s room at night. DM testified that if she was awake, he would pretend like he was checking on her. If she was asleep, she would wake up to him touching her and penetrating her vagina with his fingers. She would pretend to remain sleeping until it was over. This was a regular occurrence from when she 11 years old until she was 14 years old, at which point she began having difficulty sleeping and often did not sleep until a half hour before it was time to awaken. Thomas Cottrell, Vice President of Counseling Services at West Central Michigan YWCA, testified as an expert witness about child-sexual-abuse dynamics. He did not meet with any of the victims in this case or review any reports regarding the case, but he spoke generally about the reasons for delayed disclosure in child-sexual-abuse cases, how traumatic memories differ from other memories, and how abusers often groom their victims for abuse. He also testified that most of the cases come to YWCA from Child Protective Services (CPS) after there has been a substantiation of child sexual abuse. He noted that, from those cases, the YWCA had a 2% rate of discovering that the events were actually fabricated, so he concluded that fabrication of sexual assault is relatively rare. 1 Contrary to defendant s suggestion that DM only had dreams about abuse, DM testified that she remembered [defendant] making me give him oral sex

3 Defendant s first claim of error on appeal is that he was denied a fair trial when the trial court admitted DM s testimony that defendant sexually abused her and physically abused her mother. We disagree. Defendant did not object at trial to the testimony that he now challenges on appeal, so this issue is unpreserved. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Unpreserved issues are reviewed for plain error affecting substantial rights. People v Cain, 498 Mich 108, 116; 869 NW2d 829 (2015). Defendant must satisfy the four-part Carines 2 test to prevail under this standard. Id. Defendant must show that (1) an error occurred, (2) the error was plain i.e., clear or obvious, and (3) the error affected substantial rights i.e., the outcome of the lower court proceedings was affected. Id. Further, even if the first three prongs are satisfied, this Court should exercise its discretion in deciding whether to reverse and (4) relief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceedings. Id. (quotation marks, citations, alterations, and brackets omitted). In general, relevant evidence is admissible, MRE 402, and 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, MRE 401. However, generally [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, even if the evidence is relevant. See MRE 404(b)(1). Such evidence may be admissible, though, for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material.... Id. For other-acts evidence to be admissible, it usually must comply with the VanderVliet test for admissibility under MRE 404(b). People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). First, the evidence must be offered for a proper purpose. Id. at 74. Second, the evidence must be relevant to a fact or issue of consequence at trial. Id. Third, the evidence must survive the balancing test under MRE 403. Id. at Finally, the trial court may provide a limiting instruction under MRE 105. Id. DM testified in passing that defendant was physically abusive to her mother to explain why her mother initially ended her relationship with defendant. Although there is some question regarding whether the evidence was admitted for a proper purpose, see People v Goddard, 429 Mich 505, ; 418 NW2d 881 (1988) (concluding that providing context for a prior statement was not a proper purpose for admitting other-acts evidence), defendant cannot show plain error affecting his substantial rights in connection with the admission of this evidence. See Cain, 498 Mich at 116. Indeed, there is no reasonable likelihood that the testimony affected the outcome of the trial. The jury had ample testimony to support defendant s convictions, and in 2 People v Carines, 460 Mich 750; 597 NW2d 130 (1999). -3-

4 light of all the additional evidence solicited, 3 this reference to physical abuse was not outcomedeterminative. Defendant also contends that the trial court improperly admitted DM s testimony that defendant sexually abused her as a child. However, defendant ignores MCL a(1), which specifically permits such evidence notwithstanding MRE 404(b). People v Solloway, 316 Mich App 174, 192; 891 NW2d 255 (2016). MCL a(1) states, in relevant part: Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. DM s testimony regarding defendant s sexual abuse qualified as evidence that defendant committed another listed offense against a minor. See MCL (w)(iv). DM s testimony was relevant, and thus admissible, because it showed defendant s propensity to commit sexual abuse against his stepdaughters and lent credibility to the testimony of the complainants, JM and BB. See MCL a(1) and Solloway, 316 Mich App at 193 (concluding that evidence offered under MCL a is admissible to show propensity). To the extent that defendant argues that DM s testimony should have been excluded under the balancing test of MRE 403, his argument still fails. When applying MRE 403 to evidence admissible under MCL a, courts must weigh the propensity inference in favor of the evidence s probative value rather than its prejudicial effect. Solloway, 316 Mich App at 194 (quotation marks, citation, emphasis, and alteration omitted). Some factors to consider in analyzing the evidence are: (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant s and the defendant s testimony. [Id. (quotation marks and citation omitted).] The other acts of sexual abuse against DM were similar to the charged acts against JM in that both DM and JM were defendant s stepdaughters. Both women remembered isolated instances of abuse from when they were very young and additional abuse when they were older. JM recalled being abused while sleeping under the influence of medication, and DM also recalled being abused while sleeping. In addition, defendant perpetrated the abuse against BB while she was in a state of incapacitation. Because propensity weighs in favor of the probative value of DM s testimony, because the testimony lent needed support to the complainants unwitnessed accounts, and because of the delineated similarities, we find no basis for reversal. 3 Significantly, JM s mother testified that defendant was physically abusive towards her, and defendant does not take issue with this testimony on appeal. -4-

5 Defendant argues that if this Court does not find that the trial court plainly erred in admitting the other-acts evidence, then we should find that defendant was denied effective assistance of counsel because of his attorney s failure to seek suppression of the evidence. However, defendant has not properly presented this argument to this Court because he failed to identify it as an issue in his statement of questions presented. People v Fonville, 291 Mich App 363, 383; 804 NW2d 878 (2011). Therefore, he has waived this issue for appellate review. Id. 4 Defendant s second claim of error on appeal is that trial counsel rendered ineffective assistance when he did not object contemporaneously 5 to Cottrell s testimony that the YWCA only had a 2% rate of finding that sexual-assault allegations were fabricated. When the trial court has not conducted a hearing to determine whether a defendant s counsel was ineffective, this Court s review is limited to mistakes apparent from the record. People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel s performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel s error, the result of the proceedings would have been different. Id. Additionally, the defendant must demonstrate that the result that did occur was fundamentally unfair or unreliable. Id. First, defendant cannot show that trial counsel s performance fell below an objective standard of reasonableness. To show that trial counsel s performance was deficient, defendant would have to overcome the presumption that counsel s failure to object was sound trial strategy. People v Johnson, 315 Mich App 163, 190; 889 NW2d 513 (2016). Counsel may have wanted to avoid emphasizing the testimony in front of the jury. See, e.g., People v Reed, 449 Mich 375, 400; 535 NW2d 496 (1995). Moreover, defendant cannot show a reasonable probability that the result of the trial would have been different had trial counsel objected at the time of the testimony. Substantial evidence supported defendant s convictions, including the fact that four women testified to defendant s sexual misconduct and that defendant s own Facebook posting corroborated his guilt. Additionally, the trial court addressed the issue. Trial counsel objected to the testimony outside the presence of the jury after the prosecution completed its direct examination. The trial court did not strike the testimony, but it did warn the prosecution not to belabor the point in its closing argument. As a result, the prosecution never mentioned the rate of fabrication. The trial 4 Even if defendant had not waived the issue, we would find no basis for relief, because the evidence of sexual abuse was admissible and the evidence of physical abuse against DM s mother was not outcome-determinative. 5 Counsel did object outside the presence of the jury. -5-

6 court also specifically instructed the jury that Cottrell s testimony could not be considered to decide whether the complainants were telling the truth. There is no indication that if counsel had objected contemporaneously, anything of substance would have changed. Defendant has not met his burden of showing that trial counsel was ineffective. Affirmed. /s/ Thomas C. Cameron /s/ Patrick M. Meter /s/ Stephen L. Borrello -6-