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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UNPUBLISHED

October 18, 2018

v No. 336058

Macomb Circuit Court

TROY ANTONIO BROWN, LC No. 2015-002617-FC

Defendant-Appellant.

Before: O’BRIEN, P.J., and K.F. KELLY and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of first-degree criminal sexual 

conduct (CSC-I), MCL 750.520b(1)(a) (penetration involving a victim under 13 years of age), 

for which he was sentenced to 25 to 60 years’ imprisonment. We affirm. 

I. PROSECUTORIAL MISCONDUCT

A. QUESTIONING CONCERNING RELIGIOUS BELIEFS

On appeal, defendant makes several allegations of misconduct on the part of the 

prosecution, the majority of which were not preserved for appellate review.

1

 As an initial matter, 

defendant contends that the prosecution committed error requiring reversal by questioning one of 

the witnesses at trial concerning defendant’s religious beliefs. We disagree. 

“Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed 

de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279 

Mich App 116, 134; 755 NW2d 664 (2008). “Clear error exists where the reviewing court is left 

with a definite and firm conviction that a mistake has been made.” People v Callon, 256 Mich 

 1 Aside from an objection to one of the witnesses commenting on the credibility of the victim, 

the allegations of prosecutorial misconduct were not preserved for appellate review. “[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 NW2d 627 

(2010). 
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App 312, 321; 662 NW2d 501 (2003). As a general rule, however, unpreserved claims of 

prosecutorial error are reviewed under the plain-error standard. People v Unger, 278 Mich App 

210, 235; 749 NW2d 272 (2008). 

MCL 600.1436 provides, in pertinent part, “No witness may be questioned in relation to 

his opinions on religion, either before or after he is sworn.” “Const 1963, art 1, § 18 explicitly 

rejects the common-law requirement that belief in a Supreme Being is a prerequisite to 

testifying.” People v Bouchee, 400 Mich 253, 264; 253 NW2d 626 (1977). Likewise, MRE 610 

provides that “[e]vidence of the beliefs or opinions of a witness on matters of religion is not 

admissible for the purpose of showing that by reason of their nature the witness’ credibility is 

impaired or enhanced.” In People v Jones, 82 Mich App 510, 516; 267 NW2d 433 (1978), this 

Court discussed the purpose of MCL 600.1436, explaining that:

[t]he statute expressly states that questions as to religious opinions are not 

permissible. The purpose of the statute is to strictly avoid any possibility that 

jurors will be prejudiced against a certain witness because of personal 

disagreement with the religious views of that witness. This object recognizes the 

deep personal feelings many people hold on religion, feelings that may 

unavoidably conflict with a juror’s sworn duty to decide solely on the evidence 

presented, without injection of personal prejudices.

Hence, “[a] prosecutor may not inquire about the religious beliefs of a witness, or about those 

beliefs’ effect on truthfulness.” People v Dobek, 274 Mich App 58, 72; 732 NW2d 546 (2007). 

“Likewise, questioning a witness to explore another individual’s religious opinions and beliefs is 

equally offensive.” People v Leonard, 224 Mich App 569, 594-595; 569 NW2d 663 (1997), 

citing Bouchee, 400 Mich at 264. 

After his arrest in this case, defendant was interrogated by the police. At trial, the two 

interrogating officers, one of whom was Sergeant Robert Eidt, described defendant’s 

interrogation to the jury at considerable length. While questioning Sergeant Eidt on that subject 

during direct examination, the prosecution posed the following questions:

Q. All right. Did you ever discuss the topic of religion with [defendant]?

A. Yes, I did.

Q. What was discussed?

A. I asked [defendant] if he believed in God and I asked him what he felt 

should happen to himself, or how would God view himself after this whole 

process played out.

Q. And what was his response?

A. I don’t remember exactly word for word.

Q. Would your, would the report refresh your recollection as to that?
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A. Yes, it would.

* * *

Q. Okay. Now that your memory is refreshed, what did he say about how 

he thought God might feel about this?

A. He said he didn’t know. 

On cross-examination, defense counsel also discussed defendant’s religious views with Sergeant 

Eidt:

Q. And you brought up religion. Did you discuss judgment day on two 

different occasions, use that terminology, judgment day?

A. Might have.

Q. Okay. And when you brought up religion, you brought up God, you 

brought up hell and heaven and judgment day, [defendant] still never said he did 

anything wrong, correct?

A. Correct.

Q. And in fact didn’t you tell him that, well, if this little girl’s lying then 

she’s going to go to hell, twice did you say that?

A. Yes.

Q. And that still never triggered any kind of confession or admission from 

[defendant], correct?

A. Correct. 

During redirect examination, the prosecution revisited the same subject, asking, “[Defendant] 

doesn’t know how God would feel about it?”, and Sergeant Eidt replied, “Correct.” In yet 

another redirect question, the prosecution broached the subject one final time, asking almost the 

same question and eliciting the same response. Defendant did not object to the line of 

questioning or request a curative instruction.

In Dobek, during direct examination by defense counsel, the defendant, charged with 

several criminal sexual conduct offenses, shared that his children and wife are Catholic, and that 

the children attended the Catholic church. Dobek, 274 Mich App at 61, 73. During crossexamination, the prosecution inquired of the defendant if he himself was a practicing Catholic, 

and whether he was a member of the Catholic church in the 1990s, and the defendant answered 

that he was. Id. When the prosecution continued the line of questioning, inquiring of the 

defendant whether his alleged behavior was consistent with “the tenets of the Catholic faith[,]” 

defense counsel objected before the defendant answered and the trial court ruled that the 

prosecution could not proceed with the line of questioning. Id. After distinguishing the facts of 
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Dobek from the Michigan Supreme Court’s decisions in People v Hall, 391 Mich 175; 215 

NW2d 166 (1974); People v Burton, 401 Mich 415; 258 NW2d 58 (1977) and Bouchee, 400 

Mich at 253, this Court observed that while the prosecution was apparently acting in good faith 

where defendant injected the issue of religion into the trial, Michigan caselaw did “not support 

the road down which the prosecutor was heading.” Dobek, 274 Mich App at 73-75. However, 

where the trial court “swiftly and commendably” ceased the impermissible line of questioning, 

this Court held that the defendant was not denied a fair and impartial trial and that reversal was 

unnecessary. Id. at 75. Notably, this Court recognized that while the prosecution’s proposed 

line of questioning was inappropriate, reversal was not warranted particularly where “the content 

or substance of [the] defendant’s Catholic beliefs was never explored[.]” Id. at 75-76. 

Similarly, in Leonard, the defendant raised a claim of ineffective assistance of counsel, 

alleging that trial counsel’s performance was deficient when he did not object to a line of 

questioning regarding the defendant being a Muslim. Leonard, 224 Mich App at 594. During 

trial, the prosecution had inquired of a witness about “his familiarity with [the] defendant’s home 

and family” and the witness divulged that the defendant’s family “wore ‘Muslim or traditional 

African dress.’” Id. The witness testified that the defendant did not in fact “profess that he was 

of the Muslim faith.” Id. Recognizing that “[q]uestioning a witness with regard to the subject of 

religious beliefs or opinion is forbidden during a criminal proceeding[,]” contravening MRE 610 

and MCL 600.1436, this Court also observed that “to explore another individual’s religious 

opinions and beliefs is equally offensive.” Id. at 594-595. While the prosecution’s line of 

questioning in Leonard was “arguably improper,” the Leonard Court concluded that error 

requiring reversal did not occur “because the testimony elicited did not reveal [the] defendant’s 

opinion or belief regarding the subject of religion.” Id. at 595. See also People v Calloway (On 

Remand), 180 Mich App 295, 297, 298; 446 NW2d 870 (1989) (where a witness at trial

answered in the affirmative when asked by the prosecution if she was “a religious person[,]” and 

also shared that she attended the same church for nine years, the case was factually 

distinguishable from Hall and error requiring reversal did not occur where (1) the prosecution 

was not inquiring with respect to her “opinions on the subject of religion[,]” and (2) the 

questions were relevant to the witness’s activities at the time of the alleged crime). 

The instant case presents facts similar to Dobek and Leonard, in that the prosecution’s 

questioning of Sergeant Eidt did not lead to the content and substance of defendant’s religious 

beliefs, or his opinions on the subject of religion, being examined and explored in front of the 

jury. Dobek, 274 Mich App at 75-76; Leonard, 224 Mich App at 595. The facts of this case are 

therefore entirely distinguishable from Hall, where in that case the prosecution initiated its 

inquiry into the defendant’s religious beliefs by asking if the defendant believed in a “Supreme 

Being” and continued to insinuate to the jury “that the veracity of [the] defendant’s testimony 

was somehow correlated to the strength and conviction of [the] defendant’s beliefs.” Hall, 391 

Mich at 180-181. Put simply, the present facts are not such that it can be said with confidence 

that defendant’s “religious opinions [were] put in front of the judge or jury for their 

consideration.” Id. at 182. While the trial court in this case did not intercede when the 

prosecution pursued the line of questioning defendant now challenges on appeal, the impact is 

the same as what occurred in Burton, as evidence was not adduced concerning the substance of 

defendant’s religious beliefs and opinions, and consequently there is no “prejudicial impact” 

arising from the prosecution’s questioning of Sergeant Eidt. Burton, 401 Mich at 418. Where 

the present circumstances certainly do not present a scenario where “the nature, substance and 
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content of [defendant’s] religious beliefs” were canvassed before the jury, Bouchee, 400 Mich at 

262, we are not persuaded that any error, particularly error necessitating reversal, occurred.2 

B. STATEMENT ABOUT THE “TRUTH” BEING SOMEWHERE IN THE MIDDLE

Defendant also contends that the prosecution committed intentional misconduct by using 

Sergeant Eidt’s false testimony to secure defendant’s conviction and by failing to correct that 

false testimony. We disagree. 

As the Michigan Supreme Court explained in People v Smith, 498 Mich 466, 475; 870 

NW2d 299 (2015):

It is inconsistent with due process when the prosecution allows false testimony 

from a state’s witness to stand uncorrected. It is well established that a State may 

not knowingly use false evidence, including false testimony, to obtain a tainted 

conviction[.] Indeed, the prosecution has an affirmative duty to correct false 

testimony . . . . The responsibility does not cease to apply merely because the 

false testimony goes only to the credibility of the witness. Nor is the 

blameworthiness of the prosecutor relevant. Rather, while not every contradiction 

is material and the prosecutor need not correct every instance of mistaken or 

inaccurate testimony, it is the effect of a prosecutor’s failure to correct false 

testimony that is the crucial inquiry for due process purposes. [Quotations marks 

and citations omitted.]

Even accepting defendant’s contention that it should have been obvious to the 

prosecution that Sergeant Eidt’s testimony on direct examination had been inaccurate or 

substantially misleading, we are not persuaded that reversal is necessary. Reversal is only 

warranted if “there is a reasonable likelihood that the false impression resulting from the 

prosecutor’s exploitation of the testimony affected the judgment of the jury.” Smith, 498 Mich at 

483. On this record, we are not persuaded that Sergeant Eidt’s testimony affected the judgment 

of the jury, primarily where Eidt himself candidly admitted during cross-examination that his 

testimony might have been incorrect. Moreover, having reviewed the video itself, it is apparent 

that defendant made a non-verbal response to the challenged statement about the truth being 

somewhere in the middle, nodding his head in a discernable affirmative reply. Thus, even if that 

particular portion of the video would have been shown to the jury to correct Sergeant Eidt’s 

testimony, or assuming that Sergeant Eidt had instead been permitted to refresh his recollection 

by watching the video, the jury would have learned that although defendant did not orally state

that the truth was somewhere in the middle, he did indeed nod in assent when it was said. Under 

such circumstances, we are not persuaded that any alleged error on the part of the prosecution 

affected the judgment of the jury. Smith, 498 Mich at 483. 

 2 Given our disposition of this issue, we need not reach the question whether Hall mandates 

automatic reversal in this case. See, e.g, Nashal v Freemont Ins Co, ___ Mich App ___, ___; 

___ NW2d ___ (2018) (Docket Nos. 336234; 336919); slip op at 9-10. 
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C. EVIDENTIARY ISSUES

Defendant next contends that the prosecution committed error requiring reversal by 

questioning Heather Solomon on direct examination about whether her interview with the victim 

was “consistent with the allegations” against defendant or the “alternative hypothesis” that the 

victim was “attention seeking” or had possibly identified the incorrect suspect. At the most 

fundamental level, however, that argument is fatally flawed. “A finding of prosecutorial 

misconduct may not be based on a prosecutor’s good-faith effort to admit evidence.” Dobek, 

274 Mich App at 75. And as a matter of law, the prosecution cannot be found to have acted in 

bad faith by introducing evidence that the trial court ruled admissible. See id. at 80 (“While 

there may be issues regarding whether this was improper other-acts evidence, we cannot 

conclude that the prosecutor proceeded in bad faith, given that the trial court permitted the 

questioning and testimony.”).

Next, defendant challenges the prosecution’s decision to elicit testimony regarding 

defendant’s status of being unemployed. On direct examination, defendant’s girlfriend/fiancée, 

Ashley Merriweather, testified that defendant was “a great father” to their two children. The 

prosecution sought to rebut such testimony on cross-examination, contrasting the victim’s older 

brother with the jobless defendant and asking Merriweather whether she had previously 

expressed her dissatisfaction with defendant “because he didn’t do anything, work wise[.]” 

Defendant objected on grounds of relevance, and the trial court decided that the testimony was 

“marginally relevant,” holding that it would permit a “limited inquiry into this area.” Again, as a 

matter of law, the prosecution cannot be said to have acted in bad faith by introducing evidence 

that the trial court expressly ruled admissible. See id. Therefore, defendant’s instant claim of 

prosecutorial error warrants no relief.

Defendant also argues that the prosecution committed misconduct where it adduced 

evidence regarding the belief of the police officers that questioned defendant concerning whether 

defendant was telling the truth. On direct examination, the prosecution elicited testimony that 

both Detective Twardesky and Sergeant Eidt believed, for a variety of reasons, that defendant 

had been untruthful with them during his interrogation. The first time that the prosecution did 

so, the defense objected, arguing that the prosecution was attempting to classify Detective 

Twardesky “as an expert in classifying who’s a sex offender and who isn’t.” The prosecution

responded by arguing that the question was relevant to explain Twardesky’s “state of mind” and 

why he continued the interrogation despite defendant’s denials. The trial court held that the 

response would be admitted for that purpose but was inadmissible “as to ultimate opinion[.]” 

Defense counsel did not renew the objection when Sergeant Eidt subsequently offered similar 

testimony on direct examination. Defendant posits that the prosecution committed error 

requiring reversal by introducing such opinion testimony about defendant’s truthfulness during 

his interrogation. Once again, because the trial court held that such evidence was admissible for 

the limited purpose of showing why the police decided to continue the interrogation, the 

prosecution cannot be held to have acted in bad faith by admitting it. See id.

In his Standard 4 brief, defendant contends that the prosecution committed error requiring 

reversal by introducing false testimony from Detective John Newman, in which he 

mischaracterized one of defendant’s jailhouse telephone calls with Merriweather, suggesting that 

defendant tacitly admitted that he had sexually abused the victim. Defendant contends that the 
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prosecution knowingly capitalized on such false testimony to secure a conviction. For several 

reasons, we are unpersuaded. First, defendant has not shown that Detective Newman’s 

challenged testimony was either false or materially misleading. Detective Newman offered an 

opinion concerning what he believed to be the subtext of the jailhouse calls. After reviewing the 

two conversations in question, we discern no basis to conclude that Detective Newman’s 

testimony was false. On the contrary, his opinion about the subtext of the conversations is

plausible, particularly in light of (1) the fact that the jail’s automated system warns the call’s 

participants that it is subject to monitoring, and (2) Detective Newman’s observation that in 

roughly 50 recorded telephone calls between defendant and Merriweather, defendant never once 

denied having sexually assaulted the victim. In the conversation at issue here, defendant states 

that he was “in here,” i.e., jail, because he had “made mistakes” and “done so much dumb s**t.”3 

Moreover, it is altogether reasonable to assume that prisoners, who are aware that their phone 

calls are being recorded, may speak about inculpatory events in a veiled, intentionally obscure 

manner. The fact that defendant disagrees with Detective Newman’s opinion concerning the 

subtext of the jailhouse telephone calls does not serve as proof that that opinion was 

disingenuous. 

Second, even assuming that Detective Newman did intentionally mischaracterize 

defendant’s conversation with Merriweather, defendant has failed to demonstrate that the

prosecution was aware of that fact or that it should have been obvious. Finally, on direct 

examination, defendant explained his version of what the jailhouse calls were about, as did 

Merriweather. Both claimed that the conversation had nothing to do with the victim and instead 

regarded one of Santana Rowland’s friends, with whom defendant had been unfaithful to 

Merriweather. Under such circumstances, defendant has failed to demonstrate that Detective 

Newman’s testimony about the jailhouse telephone calls might have seriously affected the 

fairness of the trial.

D. VOUCHING FOR THE VICTIM’S CREDIBILITY

At closing, the prosecution argued at considerable length that the jury should credit the 

victim’s testimony while rejecting defendant’s testimony. Defendant asserts that such argument 

constituted improper vouching for the victim’s credibility. We disagree. 

It is true that, as a general rule, the prosecution is prohibited from vouching for a 

witness’s credibility by suggesting that the prosecutor “has some special knowledge” regarding 

that witness’s truthfulness. People v Jackson, 313 Mich App 409, 426; 884 NW2d 297 (2015) 

(quotation marks and citation omitted). However, “a prosecutor 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 

Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). 

 3 Defendant and Merriweather testified that those references to “mistakes” and “dumb s**t” 

referred to an affair defendant had had with another woman. 
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In this case, in which the credibility of the victim and defendant were of paramount 

importance, the prosecution’s comments about the victim’s credibility were not plainly 

erroneous. Rather, viewed in context, those comments were properly based on reasonable 

inferences from record evidence, and they did not suggest that the prosecutor had any “special 

knowledge”—i.e., any knowledge gleaned from sources other than what had been presented to 

the jury at trial—that the victim had testified truthfully. 

E. APPEALING TO THE SYMPATHY OF THE JURY 

Defendant next argues that the prosecution committed error requiring reversal by 

appealing to the jury’s sympathy for the victim during closing arguments. We are unpersuaded. 

During opening statements, it was defense counsel—not the prosecution—who first mentioned 

that the victim had “had a tough childhood,” “a tough go,” and that the jury might well be 

inclined to “feel sorry for her[.]” Thus, defendant’s instant claim of error should be rejected. 

Defendant cannot contribute to an alleged error at trial, and then assert it a ground for reversal on 

appeal. See People v Jordan, 275 Mich App 659, 666; 739 NW2d 706 (2007). See also People 

v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010) (noting that it is axiomatic that “a party 

may not harbor error at trial and then use that error as an appellate parachute”). In other words, 

the defense should not be permitted to explicitly note that the victim is sympathetic during 

opening statements, then complain on appeal that the prosecution erred by echoing that same 

sentiment.

In any event, even if the prosecution’s remarks concerning sympathetic characteristics of 

the victim were improper, they do not entitle defendant to reversal here because he has failed to 

demonstrate any prejudice resulting from those comments. The trial court properly instructed the 

jury that its verdict could be based only on the “the evidence that ha[d] been properly admitted,” 

further instructing them that the attorneys’ “statements and arguments . . . are not evidence.” 

“Jurors are presumed to follow their instructions, and it is presumed that instructions cure most 

errors.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). Defendant has not 

offered any evidence to overcome that presumption in this instance; indeed, he does not even 

argue the point. Hence, he has failed to carry his burden of persuasion under the plain-error test, 

and he is unentitled to appellate relief.

F. ASKING WITNESSES TO COMMENT ON THE CREDIBILITY OF OTHER 

WITNESSES

Defendant asserts that he is entitled to reversal because the prosecution erred by asking 

both defendant and Merriweather to comment on the credibility of several prosecution witnesses, 

including the victim. Even accepting defendant’s contention that this was improper, if the jury is 

instructed that it alone is charged with determining the facts of the case, including which 

witness’s testimony to believe, the defendant cannot prevail on such a claim of error under plainerror review. People v Gaines, 306 Mich App 289, 308; 856 NW2d 222 (2014). In this case, the 

jury received essentially the same instructions as did the jury in Gaines; to wit, it was instructed 

that the jurors were “the only judges of the facts” and were obliged to “decide which witnesses 

[they] believe[d] and how important . . . their testimony [wa]s.” Therefore, as in Gaines, here 

“defendant cannot establish that the prosecutor’s questions affected his substantial rights.” See 

id.
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G. IMPEACHMENT OF DEFENDANT 

On direct examination, when asked why he agreed to meet the victim’s brother at the 

hospital, defendant replied: “Because I wanted to, you know, give them my DNA or whatever 

the situation, I wanted to, like I say clear myself from the allegations. You know, I never been 

charged with nothing like this before, ever been in trouble for assault, a criminal, nothing like 

that.” On cross-examination, the following exchange ensued:

Q. Okay. You also said that you’ve never been accused of any sort of 

assault.

A. No sexual assault.

Q. You used the word assault, sir. And so I’m looking at your criminal 

history and in 2009 you in fact were charged with assault with intent to do great 

bodily harm less than murder, weren’t you?

A. Yes.

Q. Okay. And you were charged with aggravated domestic violence, 

correct?

A. Yes.

Q. And assault with a dangerous weapon, correct?

A. Yes.

Q. And that assault with a dangerous weapon involved a plea under the 

Holmes Youthful Trainee Act?

A. Yes.

Q. Right, that’s an admission of guilt?

A. Yes.

Q. Okay. Did your incident in 2013 involve an assault?

A. What was it in ’13, what happened in 2013?

[Defense Counsel]: Your honor, can we approach?

A bench conference was subsequently held off of the record, and when defendant’s 

testimony resumed, the prosecution ceased questioning defendant regarding his prior criminal 

history. Defendant contends that such questioning constituted improper “impeachment” with 

former convictions and charges. While the disputed evidence would likely not have been 

admissible as general impeachment evidence had the prosecution sought to broach the subject of 

defendant’s criminal history before he broached it on his own, because that is not what 
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happened, the point is moot. “That our Rules of Evidence preclude the use of evidence for one 

purpose simply does not render the evidence inadmissible for other purposes. Rather, the 

evidence is admissible for a proper purpose, subject to a limiting instruction under MRE 105.” 

People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000) (emphasis added).4 

When a defendant “takes the stand in his own behalf, he does so as any other witness, and within 

the limits of the appropriate rules he may be cross-examined as to the facts in issue.” People v 

Clary, 494 Mich 260, 267; 833 NW2d 308 (2013), quoting Raffel v United States, 271 US 494, 

497; 46 S Ct 566; 70 L Ed 1054 (1926). In pertinent part, MRE 404(a) provides:

Character evidence generally. Evidence of a person’s character or a trait 

of character is not admissible for the purpose of proving action in conformity 

therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered 

by an accused, or by the prosecution to rebut the same . . . .

“Once a defendant has placed his character in issue, it is proper for the prosecution to introduce 

evidence that the defendant’s character is not as impeccable as is claimed.” People v Vasher, 

449 Mich 494, 503; 537 NW2d 168 (1995). “Such rebuttal testimony is admissible under MRE 

404(a)(1).” Id. (emphasis added). See also People v Figgures, 451 Mich 390, 399; 547 NW2d 

673 (1996) (“Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence 

produced by the other party and tending directly to weaken or impeach the same.”) (quotation 

marks and citation omitted). 

In this case, on direct examination defendant testified—falsely, he later conceded—that 

he had never been “in trouble” for “assault,” further suggesting that he had never been in any sort 

of “criminal” trouble before. The fact that defendant backpedaled from such testimony on crossexamination, explaining that he had meant to testify that he had never been charged with sexual

assault before, did not make it improper for the prosecution to walk through the evidentiary door 

that defendant had, of his own volition, swung ajar. Rather, after defendant suggested that he 

had no prior criminal charges, it was altogether appropriate for the prosecution to cross-examine 

him on that subject for rebuttal purposes. See id. Because such evidence was admissible for 

rebuttal purposes, the prosecution did not err by introducing it. In sum, defendant’s allegations 

of prosecutorial misconduct are without merit. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL 

On appeal, defendant raises several allegations of ineffective assistance of counsel, none 

of which have merit. 

 4 In this instance, because defendant made no request for such a limiting instruction, he cannot 

assign the trial court’s failure to give one as error requiring reversal. See People v Sardy, 216 

Mich App 111, 113; 549 NW2d 23 (1996).
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In this case, a Ginther5 hearing occurred, and thus this Court’s review includes the 

evidence presented at the Ginther hearing. See, e.g., People v Trakhtenberg, 493 Mich 38, 45-

46; 826 NW2d 136 (2012). “[W]hether defense counsel performed ineffectively is a mixed 

question of law and fact; this Court reviews for clear error the trial court’s findings of fact and 

reviews de novo questions of constitutional law.” Id. at 47. The “defendant has the burden of 

establishing the factual predicate for his claim of ineffective assistance of counsel. . . .” People v 

Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Effective assistance of counsel is presumed, and the defendant bears a 

heavy burden of proving otherwise. 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. [People v Lockett, 295 Mich App 165, 

187; 814 NW2d 295 (2012) (citations omitted).]

This Court will not “second-guess” trial counsel’s strategy with “the benefit of hindsight.” 

People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017). “Defense counsel is given 

wide discretion in matters of trial strategy because many calculated risks may be necessary in 

order to win difficult cases.” Unger, 278 Mich App at 242. Thus, there is a “strong presumption 

that trial counsel’s performance was strategic,” and “[w]e will not substitute our judgment for 

that of counsel on matters of trial strategy[.]” Id. at 242-243. “The inquiry into whether 

counsel’s performance was reasonable is an objective one and requires the reviewing court to 

determine whether, in light of all the circumstances, the identified acts or omissions were outside 

the wide range of professionally competent assistance.” People v Vaughn, 491 Mich 642, 670; 

821 NW2d 288 (2012) (quotation marks and citation omitted). Accordingly, the reviewing court 

must consider the full range of potential reasons that counsel might have had for acting as he or 

she did. Id. 

A. VIDEO OF DEFENDANT’S INTERROGATION 

Defendant first argues that his trial counsel performed ineffectively by failing to 

“formally” move for the admission of the video of defendant’s interrogation or, in the alternative, 

to have the trial judge view the video in camera to prove that Sergeant Eidt testified falsely when 

he claimed that defendant had said that the truth was somewhere in the middle. Defendant has 

failed to rebut the presumptions that counsel’s performance in this regard was both strategic and 

effective.

“The decision of what evidence to present is . . . presumed to be a matter of trial 

strategy.” People v Solloway, 316 Mich App 174, 190; 891 NW2d 255 (2016). At the Ginther

hearing, defense counsel testified that—despite his stated threats to introduce the interrogation 

video into evidence—for “a lot of reasons,” he had no genuine desire to do so. In particular, 

counsel agreed that defendant’s “non-verbals [during the interrogation] were very damaging[.]” 

 5 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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In our estimation, counsel was correct. The video portrays defendant making a non-verbal 

response to the statement about the truth being somewhere in the middle, nodding his head in an 

affirmative reply. And even assuming that only that portion of the video would have been 

shown to the jury to correct Sergeant Eidt’s testimony, or assuming that Sergeant Eidt had been 

permitted to refresh his recollection by watching the video, nevertheless, the jury likely would 

have learned that although defendant did not orally state that the truth was somewhere in the 

middle, he nodded in assent. 

Moreover, trial counsel explained at the Ginther hearing that he was concerned that, had 

he moved to admit only the “snippet” of the video that was necessary to correct Sergeant Eidt’s 

testimony, the prosecution might have successfully moved to introduce the entire video. This 

was a valid concern. See MRE 106 (“When a writing or recorded statement or part thereof is 

introduced by a party, an adverse party may require the introduction at that time of any other part 

or any other writing or recorded statement which ought in fairness to be considered 

contemporaneously with it.”). Having the trial court view the video in camera posed similar 

risks. The trial court might have decided that the only way to duly correct Sergeant Eidt’s 

testimony was to introduce the entire video into evidence. And while counsel might have 

successfully argued that certain portions of the video were inadmissible on various grounds, he 

would have had no guarantees before moving to introduce the video about which portions the 

trial court might have permitted the jury to view.

Having reviewed the video of defendant’s interrogation, we conclude that the 

introduction of the entire video—or nearly any portion of it—would have been prejudicial to the 

defense. Put simply, although defendant never clearly admits guilt, his demeanor and body 

language are, throughout the interrogation, completely inconsistent with what an average juror 

would likely expect of an innocent man accused of sexually assaulting an 11-year-old girl. 

Defendant does not rage, make strong or complete denials, appear indignant or offended, or 

express disbelief. Nor does he express sympathy or concern for the young victim, suggest that 

someone else might be responsible, or offer any sort of alibi or explanation. He consistently 

appears defeated and defensive, at times sighing loudly, weeping, and placing his head on the 

table. Toward the end, he begins to make comments tending to suggest that he has already 

concluded that he will be convicted of whatever charges might be brought against him.

Additionally, during the interrogation defendant admits to (1) smoking marijuana (“two 

blunts”) earlier that day, (2) evading income tax by working under the table, which suggests that 

he may have had employment of which Merriweather was unaware, and (3) a former conviction 

for home invasion, which was never mentioned at trial. Even with his marijuana use in mind, 

defendant appears to be inordinately confused regarding basic details about the preceding day, 

i.e., the day of the assault, such as whether he had gone to work or showered. At times, he takes 

uncomfortably long pauses before responding to questions about such seemingly trivial details, 

appearing torn about how to answer. The footage of his excited reply that “it never got that far,” 

made in response to an officer’s comment that the victim’s vaginal secretions might be found in 

defendant’s pubic hair, seems far more damaging than the testimony on that point that was 

introduced at trial. And toward the end of the interview, he begins to ask the officers whether 

they believe that he needs an attorney. For those reasons, it was entirely reasonable for trial

counsel to believe that it was imprudent to seek to correct Sergeant Eidt’s testimony by having 

any portion of the video introduced into evidence. The risk of having almost any other portion of 
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that video admitted under MRE 106 was untenable. It was a reasonable strategy for counsel to 

instead impeach Sergeant Eidt on cross-examination—forcing him to admit that he could not 

recall who made the disputed statement and that he thus might have been incorrect on direct 

examination—while also preventing the prosecution from later rehabilitating Sergeant Eidt on 

that point. 

B. FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT 

Defendant next contends that his trial counsel performed ineffectively by failing to object 

to the alleged instances of prosecutorial error discussed earlier in this opinion and to argue that 

the cumulative effect of such errors had denied defendant of his right to a fair trial. For three 

primary reasons, this claim of error is without merit.

First, defendant’s trial counsel did, in fact, object to many of the alleged instances of 

prosecutorial misconduct, at times successfully. It should go without saying that, to the extent 

that defense counsel objected successfully to the prosecution’s tactics, his performance cannot be 

deemed ineffective. Moreover, the fact that his other objections were unsuccessful is not 

evidence that his performance fell below an objective standard of reasonableness under 

prevailing professional norms. On the contrary, because the trial court overruled those 

objections, they were futile and cannot serve as a basis to conclude that defense counsel 

performed ineffectively. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 

(2010). Second, as discussed earlier in this opinion, defendant’s claims of prosecutorial 

misconduct fail on their substantive merits. “Failing to advance a meritless argument or raise a 

futile objection does not constitute ineffective assistance of counsel.” Id. Finally, defendant 

cannot rebut the strong presumptions that counsel’s failure to object was effective and strategic. 

C. STIPULATION TO THE ADMISSION OF EVIDENCE 

In his Standard 4 brief, defendant argues that trial counsel performed ineffectively by 

stipulating to the introduction of the recordings of his jailhouse telephone calls. Defendant 

contends that the jailhouse telephone calls were inadmissible for lack of relevance under MRE 

4016 and because any probative value was significantly outweighed by the attendant risk of 

unfair prejudice under MRE 403.7

To the extent that they contained out-of-court statements made by defendant, the 

recordings could have been admitted by the prosecution over defendant’s objection as 

 6 MRE 401 provides, “ ‘Relevant evidence’ means evidence having 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.”

7 MRE 403 provides, “Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.”
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admissions by a party opponent, see MRE 801(d)(2), and Merriweather’s comments were likely 

admissible for the non-hearsay purpose of providing context to defendant’s statements and 

responses during the conversation (i.e., for that purpose only and not to prove the truth of the 

matter in any assertions that Merriweather might have made). We note that defendant is correct 

that admissions by a party opponent may be excluded under MRE 401 and MRE 403. People v 

Goddard, 429 Mich 505, 515 & n 9; 418 NW2d 881 (1988).

However, defendant has failed to show a reasonable probability of a different outcome 

but for counsel’s failure to object. On direct examination, defendant explained his version of 

what the jailhouse calls were about, as did Merriweather. Both claimed that the conversation had 

nothing to do with the victim and instead regarded one of Rowland’s friends, with whom 

defendant had been unfaithful to Merriweather. Accordingly, defendant was well able to counter 

the prosecution’s theory that the jailhouse calls reflected defendant’s culpability in the sexual 

assault of the victim and his guilty conscience. As a result, even assuming that defense counsel 

should have objected to the introduction of the recordings, defendant has not shown a reasonable 

probability that, but for counsel’s failure to make such an objection, the outcome of the 

proceedings would have been different.

Affirmed. 

/s/ Colleen A. O'Brien 

/s/ Kirsten Frank Kelly 

/s/ Karen M. Fort Hood