People v. Eisen

820 N.W.2d 229, 296 Mich. App. 326
CourtMichigan Court of Appeals
DecidedApril 24, 2012
DocketDocket No. 304577
StatusPublished
Cited by301 cases

This text of 820 N.W.2d 229 (People v. Eisen) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Eisen, 820 N.W.2d 229, 296 Mich. App. 326 (Mich. Ct. App. 2012).

Opinion

Ronayne Krause, J.

Defendant appeals as of right his convictions on three counts of first-degree criminal sexual conduct, MCL 750.520b(l), and one count of third-degree criminal sexual conduct, MCL 750.520d(l)(b). Defendant was acquitted of a fourth count of first-degree criminal sexual conduct. Defendant was sentenced to 210 to 540 months’ imprisonment for each conviction of first-degree criminal sexual conduct and 120 to 180 months’ imprisonment for the conviction of third-degree criminal sexual conduct. We affirm.

This case stems from defendant’s repeatedly sexually assaulting the victim over a period of years. The victim was born on November 10, 1993. She has some form of learning disability: she testified that she has a “hard time comprehending things” and needed to take special classes in school. In 2005, when the victim was 11 years old and sometime before she started the sixth grade, the victim and her mother moved into the trailer park in which defendant and his daughter were already living. Sometime shortly after the victim moved there, she met defendant’s daughter and the two became friends. The victim met defendant through his daughter. The victim’s mother and defendant eventually entered into a dating relationship, and all four people moved into the same trailer together.

Defendant first argues that when the prosecution’s DNA expert testified that seminal fluid found in various areas of the victim’s home matched defendant, the expert should have provided statistical testimony explaining the likelihood that someone from the general population would also match the DNA profile. However, defendant’s trial counsel stipulated that the seminal fluid found at the scene contained defendant’s DNA. A stipulation constitutes a waiver of any alleged error, so [329]*329there is no error for us to review. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Therefore, we decline to do so. Similarly, defendant’s contention that his trial counsel should have objected to the lack of a statistical assessment of the DNA match is without merit. “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). Defendant does not explain to us why, in light of counsel’s stipulation regarding the match itself, counsel would have had any sound basis for objecting to the lack of any statistics concerning that match. Nor does defendant explain why stipulating with regard to the match was an unsound strategic decision, irrespective of its efficacy.1 “Counsel is not required to raise meritless or futile objections . . . .” People v Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004). Defendant has failed to overcome the presumption that his counsel was effective.

Defendant next argues that he was denied due process when an element of three of the first-degree criminal sexual conduct charges was omitted in the final jury instructions. Defendant also claims that his trial counsel was ineffective by failing to object to the defective instructions. Defendant waived the jury instruction issue itself because trial counsel expressly approved the jury instructions and stated that he had “no objection.” See People v Kowalski, 489 Mich 488, 503-504; 803 NW2d 200 (2011). However, we review [330]*330this alleged error because it is necessary to resolve defendant’s claim of ineffective assistance of counsel. We note that this instructional issue would also apply to the charge for which defendant was acquitted.

We first conclude that the jury instructions were indeed plainly erroneous. The relevant charges of first-degree criminal sexual conduct required that: (1) penetration occurred with another person, and (2) the other person was “under 13 years of age.” MCL 750.520b(l)(a). The trial court failed to tell the jury orally that it needed to find that the victim had been younger than 13 years old at the time of the charged conduct. “[A] jury instruction that improperly omits an element of a crime amounts to a constitutional error.” Kowalski, 489 Mich at 503. We agree that defendant’s trial counsel should have objected to the jury instructions and that this conduct fell below an objective standard of reasonableness. See People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).

However, the verdict form did reflect the requirement that the victim must have been younger than 13 at the time. The verdict form is treated as, essentially, part of the package of jury instructions. See People v Wade, 283 Mich App 462, 464-468; 771 NW2d 447 (2009). Challenges to jury instructions are considered “in their entirety to determine whether the trial court committed error requiring reversal.” People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). While the trial court committed error, the prejudicial effect of that error was significantly reduced by the presence of the proper elements on the verdict form. We will not reverse where the jury “instructions fairly presented the issues to be tried and sufficiently protected the defendant’s rights.” People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003). We note that, with [331]*331respect to the charges of which defendant was convicted, the evidence was overwhelming that the victim was younger than 13 at the time, and this element is not challenged; with respect to the charge of which defendant was acquitted, the victim’s testimony was equivocal and uncertain regarding whether she was younger than 13 at the time. It appears to us that the jury’s instructions, while imperfect, did in the end sufficiently protect defendant’s rights. We decline to reverse on the basis of this error. See Kowalski, 489 Mich at 506.

Defendant next argues that there was insufficient evidence to support his convictions. We review “de novo a claim of insufficient evidence ....” People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, we “consider whether there was sufficient evidence to justify a rational trier of fact in finding that all the elements of the crime were proved beyond a reasonable doubt.” People v Phelps, 288 Mich App 123, 131-132; 791 NW2d 732 (2010). We review the evidence “in a light most favorable to the prosecution ____” People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). We “will not interfere with the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

The gravamen of defendant’s argument is that this Court should reweigh the credibility of witnesses. We decline to do so, because it is the role of the jury, not this Court, to determine “the weight of the evidence or the credibility of witnesses.” Id. We also decline to consider the sufficiency of the evidence supporting defendant’s first-degree criminal sexual conduct conviction for anal penetration of the victim, because defendant has provided no specific argument pertaining to that issue, [332]*332thereby abandoning it. With regard to defendant’s first-degree criminal sexual conduct conviction for an incident on the counter of the bathroom at defendant’s residence, defendant only challenges minor details pertaining to the victim’s description of her whereabouts before

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Bluebook (online)
820 N.W.2d 229, 296 Mich. App. 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-eisen-michctapp-2012.