If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

May 23, 2019

v No. 339631

Macomb Circuit Court

KEITH GARDINER, LC No. 2016-001679-FC

Defendant-Appellant.

Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

Defendant appeals by right his jury trial convictions of three counts of first degree 

criminal sexual conduct, MCL 750.520b(1)(b) (victim age 13 to 15 plus relationship), and one 

count of first degree criminal sexual conduct, MCL 750.520b(2)(b) (victim under age 

13/defendant over age 17). The trial court sentenced defendant to four concurrent prison terms 

of a minimum of 25 years to a maximum of 50 years. We affirm.

I. BACKGROUND

The complainant notified police that she had been sexually assaulted as a child by 

defendant in the family home. Defendant was charged and first went to trial during May 2017. 

During that trial, the prosecution posed a question to the complainant whether she knew that 

defendant made a police report alleging her inappropriate touching of her younger sister to which 

she responded affirmatively. Defense counsel objected and after discussion between the parties 

and the trial court moved for a mistrial. The trial court declined to issue a curative instruction 

and declared a mistrial. Defense counsel argued that jeopardy attached but the trial court 

disagreed and ordered defendant’s retrial.

At defendant’s trial, the complainant testified that defendant sexually abused her over 

many years. She described the times, places, and manner of sexual assaults she suffered. The 

jury convicted defendant of the charged offenses.
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II. DOUBLE JEOPARDY

Defendant first argues that his retrial was barred by double jeopardy because the 

prosecutor committed prosecutorial misconduct intended to provoke defendant’s motion for a 

mistrial. We disagree.

A double jeopardy challenge to a successive prosecution presents a question of law 

reviewed de novo. People v Smith, 478 Mich 292, 298; 733 NW2d 351 (2007). Whether a 

prosecutor intended to goad the defense into moving for a mistrial is generally a factual finding 

for the trial court to make and is reviewed for clear error. People v Dawson, 431 Mich 234, 258; 

427 NW2d 886 (1988); MCR 2.613(C). A trial court’s finding will be found clearly erroneous 

when the appellate court on review of the entire record is left with a definite and firm conviction 

that the trial court made a mistake. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 

(2011).

Both the United States Constitution, US Const, Am V, and the Michigan Constitution, 

Const 1963, art 1, § 15, protect an accused from successive prosecutions for the same offense 

once jeopardy has attached. Smith, 478 Mich at 298. “The state and federal constitutional 

guarantees are substantially identical and should be similarly construed.” People v AckahEssien, 311 Mich App 13, 31; 874 NW2d 172 (2015) (citation omitted). When an accused is 

tried before a jury, jeopardy for purposes of the constitutional double jeopardy protections 

attaches at the time the jury is selected and sworn. Id. at 32. After jeopardy has attached and a 

trial ends before a verdict, the Double Jeopardy Clause may bar a second trial. Dawson, 431 

Mich at 251. The Double Jeopardy Clause, however, does not bar all retrials where cases end 

prematurely. When a defendant moves for or consents to a mistrial “and the mistrial was caused 

by innocent conduct of the prosecutor or judge, or by factors beyond their control, or by defense 

counsel himself,” a retrial is generally permitted on the theory that by making or consenting to 

the motion the accused has waived a double jeopardy claim. Id. at 253. An exception to the 

general rule of waiver exists “where prosecutorial conduct was intended to provoke the 

defendant into moving for a mistrial.” Id. Our Supreme Court explained in Dawson:

Retrials are an exception to the general double jeopardy bar. Where a 

mistrial results from apparently innocent or even negligent prosecutorial error, or 

from factors beyond his control, the public interest in allowing a retrial outweighs 

the double jeopardy bar. The balance tilts, however, where the judge finds, on the 

basis of the objective facts and circumstances of the particular case, that the 

prosecutor intended to goad the defendant into moving for a mistrial. [Id. at 257 

quotation marks and citations omitted).]

In this case, defendant moved for and obtained a mistrial during his first trial. 

Consequently, to invoke the protection of the Double Jeopardy Clause he must establish from the 

objective facts and circumstances of the case that the prosecutor intended to provoke the defense 

to seek a mistrial. The trial court’s determination regarding the prosecutor’s intent is a factual 

finding that this Court reviews for clear error. Id. at 258.

At defendant’s first trial, the prosecutor asked the complainant, “are you aware that the 

defendant made a police report concerning you inappropriately touching [your younger sister] 
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back in 2011?” The complainant answered, “I’m aware.” Defense counsel promptly objected 

and the attorneys argued the admissibility of the evidence outside the presence of the jury. 

Defense counsel argued that the evidence lacked relevance and concerned a topic that the 

defense would not have been permitted to explore under the rape-shield statute, MCL 750.520j, 

which prevents the defense from introducing evidence of a victim’s sexual conduct. Defense 

counsel also argued that the prosecutor had “opened the door” to the prohibited topic and that 

defendant should be permitted to interrogate the witness on the topic.

The prosecutor responded that the testimony would indicate that defendant reported the 

allegation to the police the day after his release on bond after his arrest on the present charges. 

The prosecutor contended that defendant made the allegation against the complainant to cast 

doubt on her credibility by claiming that she sexually assaulted her sister four years earlier. The 

prosecutor explained that the police and Child Protective Services investigated and interviewed 

the complainant’s sister who denied that anything assaultive ever occurred between her and the 

complainant. The prosecutor argued that the timeline of events went to whether defendant 

sought to deflect and blame the complainant and attack her credibility in the eyes of the 

authorities. The prosecutor argued in part that the timing indicated that defendant falsely 

accused the complainant but also conceded that three weeks after defendant’s initial report, 

defendant’s wife, the mother of complainant and her sister, brought the complainant’s sister to 

the police department where she made vague disclosures of assaults by complainant in the past. 

Defense counsel responded that the prosecutor opened the door and that he would have to call 

the complainant’s sister to testify.

The trial court ruled that the evidence lacked relevance and remarked that the defense 

would have been precluded from introducing such evidence. The prosecutor stated that she 

anticipated defendant raising the defense but that if the trial continued, defense counsel would be 

permitted to pursue the alleged incident involving the complainant’s sister. Instead, defendant

moved for a mistrial because a curative instruction could not “unring the bell.” The trial court 

initially stated that it intended to give the jury a curative instruction to disregard the question and 

answer because the matter lacked relevance. The trial court adjourned the trial to consider the 

matter.

The next day, the parties presented their arguments on defendant’s motion for a mistrial. 

The trial court noted it was inclined to grant the motion. The prosecutor argued that the evidence 

had relevance to establish that defendant’s false accusation demonstrated his consciousness of 

guilt. The trial court expressed concern because the testimony on the topic would raise an issue 

regarding impropriety committed by the complainant that the jury would be required to consider. 

The prosecutor argued that the limited nature of the inquiry to that point could be cured by an

appropriate instruction. The trial court disagreed. The trial court ruled that it would grant the 

motion for a mistrial because the evidence lacked relevance and even if relevant, the trial would 

become too complicated and confusing, thus warranting exclusion of the evidence under MRE 

403. After its ruling, defense counsel stated, “I would argue that prejudice has attached due to 

prosecutorial misconduct.” The trial court specifically found that no prosecutorial misconduct 

occurred because the prosecutor believed the evidence relevant and admissible.

De novo review of the record establishes no objective facts or circumstances to support 

defendant’s argument that the prosecutor intended to goad defense counsel into moving for a 
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mistrial. Rather, the record supports the trial court’s finding that the prosecutor acted in a goodfaith effort to admit evidence believed relevant to show defendant’s consciousness of guilt. A 

defendant’s exculpatory statement shown to be false can serve as circumstantial evidence of 

guilt. People v Seals, 285 Mich App 1, 5; 776 NW2d 314 (2009). Further, even if the prosecutor 

erred by not raising her theory of admissibility in a motion outside the presence of the jury 

before asking the question that sparked the mistrial motion, such error provides no basis to 

invoke double jeopardy protections. The United States Supreme Court has explained that 

ordinary error by the prosecutor is insufficient to overcome an accused’s waiver of the protection 

under the Double Jeopardy Clause by moving for a mistrial:

Prosecutorial conduct that might be viewed as harassment or overreaching, 

even if sufficient to justify a mistrial on defendant’s motion . . . does not bar 

retrial absent intent on the part of the prosecutor to subvert the protections 

afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial 

constitutes a deliberate election on his part to forgo his valued right to have his 

guilt or innocence determined before the first trier of fact. Where prosecutorial 

error even of a degree sufficient to warrant a mistrial has occurred, the important 

consideration, for purposes of the Double Jeopardy Clause, is that the defendant 

retain primary control over the course to be followed in the event of such error. 

Only where the governmental conduct in question is intended to “goad” the 

defendant into moving for a mistrial may a defendant raise the bar of double 

jeopardy to a second trial after having succeeded in aborting the first on his own 

motion. [Oregon v Kennedy, 456 US 667, 675-676; 102 S Ct 2083; 72 L Ed 2d 

416 (1982) (quotation marks, brackets, and citations omitted).]

Defendant’s arguments that the prosecutor intended to goad a mistrial are unavailing. 

First, defendant argues that the prosecutor knew that the evidence she sought to admit was 

inadmissible because the prosecution had objected to a similar question at the preliminary 

examination, which had been sustained. But the prosecutor did not seek to show other sexual 

conduct of the complainant prohibited by MCL 750.520j. Rather, the record reflects that the 

prosecutor sought to show that defendant made a false report days after his arrest on the charged 

offenses. The prosecutor explained to the trial court that the prosecution relied on case law to 

support the theory that defendant’s report to the police, if shown to be false, could show 

consciousness of guilt. The evidence in this case does not establish that the prosecutor intended 

to goad defendant to move for a mistrial. Therefore, defendant’s obtaining a mistrial in this case 

served as a waiver of the protection under the Double Jeopardy Clause. See Kennedy, 456 US at 

675-676; Dawson, 431 Mich at 257.

We also find no merit to defendant’s further argument that the prosecutor sought to goad 

the defense to move for a mistrial because the first trial was not going well. Defendant contends 

that the complainant’s testimony at the first trial contained discrepancies. De novo review of the 

record, however, establishes that during defendant’s first trial, the complainant testified to being 

abused by defendant from age 11 until leaving her home at age 18, and when questioned by the 

prosecutor, she explained the discrepancies between her trial testimony and earlier statements.

The record reflects that she testified that there were so many instances of repeated sexual abuse

that it made it hard for her to pinpoint specific dates, times, and details of the numerous incidents 

of sexual abuse over the years. The record also establishes that the prosecutor knew in advance 
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that the complainant’s testimony would differ from her previous statements and the prosecution 

took steps to deal with that in its examination of the complainant. The record does not support 

defendant’s contention that the prosecutor intended to goad a defense motion for a mistrial. 

Accordingly, double jeopardy did not bar defendant’s second trial.

III. INSTRUCTIONAL ERROR

Defendant next argues that the trial court erred by instructing the jury regarding use of 

the complainant’s alleged prior inconsistent statements. Alternatively, defendant argues that 

defense counsel provided him ineffective assistance by not objecting to the jury instructions. We 

disagree.

“The failure of the court to instruct on any point of law shall not be ground for setting 

aside the verdict of the jury unless such instruction is requested by the accused.” MCL 768.29. 

Therefore, to preserve for appellate review a challenge to a trial court’s jury instructions, a party 

must object to or request an instruction before the trial court. People v Carines, 460 Mich 750, 

761-763; 597 NW2d 130 (1999). An affirmative statement of satisfaction with the jury 

instructions, as in this case, constitutes express approval of the instructions that waives review on 

appeal. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). Even if imperfect,

instructions do not warrant reversal if, when viewed as a whole, they fairly present the issues to 

be tried and sufficiently protect the defendant’s rights. People v Holt, 207 Mich App 113, 116; 

523 NW2d 856 (1994). Unpreserved claims of error are reviewed for plain error affecting 

substantial rights. Carines, 460 Mich at 763. To establish plain error, defendant must show that 

(1) an error occurred, (2) the error was plain, meaning clear or obvious, and (3) the error affected 

his substantial rights because it caused him prejudice by affecting the outcome of the case. Id. 

Reversal is warranted, however, only when the plain error resulted in the conviction of an 

actually innocent defendant or seriously affected the fairness, integrity or public reputation of the 

judicial proceedings independent of defendant’s innocence. Id. at 763-764.

To preserve a claim of ineffective assistance of counsel, a defendant must move for a new 

trial or an evidentiary hearing1 in the trial court. People v Payne, 285 Mich App 181, 188; 774 

NW2d 714 (2009). Because defendant failed to preserve his ineffective assistance claim of error, 

our review is limited to mistakes apparent on the trial court record. See People v Seals, 285 

Mich App 1, 19-20; 776 NW2d 314 (2009). On appeal, defendant bears the burden of 

establishing that defense counsel provided ineffective assistance by showing that “(1) counsel’s 

performance fell below an objective standard of reasonableness and (2) but for counsel’s 

deficient performance, there is a reasonable probability that the outcome would have been 

different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” People v 

Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (quotation marks and citation omitted). 

Defendant must overcome a strong presumption that defense counsel provided effective 

assistance. Seals, 285 Mich App at 17. Further, defendant “has the burden of establishing the 

factual predicate for his claim of ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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6; 594 NW2d 57 (1999). Defense counsel cannot be said to have rendered ineffective assistance 

by failing to raise meritless or futile objections. People v Putnam, 309 Mich App 240, 245; 870 

NW2d 593 (2015).

In this case, defense counsel impeached the complainant with alleged prior inconsistent 

statements to the police and alleged inconsistent previous sworn testimony. The trial court 

instructed the jury using M Crim JI 4.5(1) that the complainant’s prior inconsistent statements, 

could only be used in “deciding whether the witness testified truthfully in court.” Defense 

counsel expressed satisfaction with the trial court’s instructions. Defendant argues now that the 

trial court should have instructed the jury with M Crim JI 4.5(2) to differentiate between out-ofcourt statements and previous sworn testimony subject to cross-examination which could have 

been considered as substantive evidence. Alternatively, defendant argues that defense counsel 

provided ineffective assistance by failing to request an M Crim JI 4.5(2) instruction.

Because defense counsel expressed satisfaction with the trial court’s instructions to the 

jury, defendant waived any error regarding the trial court’s failure to read M Crim JI 4.5(2). 

Kowalski, 489 Mich at 503; see also People v Carter, 462 Mich 206, 215; 612 NW2d 144 

(2000). Defendant fails to present any specific argument on how the jury’s consideration of the 

complainant’s alleged inconsistent testimony as substantive evidence would have resulted in a 

different outcome. The record reflects that defense counsel argued to the jury that it could 

consider the complainant’s prior inconsistent statements and sworn testimony for purpose of 

determining her credibility. Defendant only posits that an M Crim JI 4.5(2) instruction would 

have made it more likely that the jury would not have believed the complainant’s trial testimony. 

The record, however, reflects that the instructions as a whole, even if imperfect, fairly presented 

the issues to be tried and sufficiently protected defendant’s rights. Defendant was not deprived 

of a defense or prejudiced by the absence of the jury instruction. Even if we were to agree that 

the trial court committed plain error by not so instructing the jury, defendant has failed to 

establish that the claimed plain error resulted in the conviction of an actually innocent defendant 

or seriously affected the fairness, integrity or public reputation of the judicial proceedings. 

Therefore, defendant’s instructional error claim fails.

Because defendant cannot establish plain error affecting substantial rights respecting the 

instructions the trial court gave the jury since he has failed and cannot prove prejudice, even if he 

could establish that defense counsel’s conduct fell below an objective standard of 

reasonableness, he cannot establish the prejudice prong of his ineffective assistance of counsel 

claim. Therefore, defendant’s ineffective assistance claim in this regard also fails.

IV. PROSECUTORIAL MISCONDUCT

Next defendant argues that the prosecutor made improper arguments that denied him a 

fair trial. Defendant failed to preserve his claim of prosecutorial misconduct by 

contemporaneously objecting and requesting a curative instruction. People v Bennett, 290 Mich 

App 465, 475; 802 NW2d 627 (2010). Therefore, we review this claim for plain error affecting 

defendant’s substantial rights. Carines, 460 Mich at 763. Defendant also argues that defense 

counsel provided him ineffective assistance in this regard but he failed to preserve this claim of

ineffective assistance of counsel. Consequently, our “review is limited to errors apparent on the 

record.” People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008).
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Ordinarily, claims of prosecutorial misconduct are reviewed de novo on a case-by-case 

basis; alleged improper remarks must be considered in context to determine whether the 

defendant was denied a fair and impartial trial. Bennett, 290 Mich App at 475. “The defendant 

bears the burden of demonstrating that such an error resulted in a miscarriage of justice.” People 

v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). This requires a showing that “after an 

examination of the entire cause, it shall affirmatively appear that it is more probable than not that 

the error was outcome determinative.” People v Brownridge (On Remand), 237 Mich App 210, 

216; 602 NW2d 584 (1999) (citation and quotation marks omitted).

Defendant raises two claims of misconduct concerning the prosecutor’s closing 

argument. Defendant first argues that the prosecutor improperly commented on the credibility of 

Rochelle Gardiner, defendant’s wife and the complainant’s mother, and that the opinion 

statement lacked evidentiary support from which a reasonable inference could be drawn by the 

jury. We disagree.

It is improper for a prosecutor when arguing a case to inject his or her personal opinion or 

to invoke the prestige of the prosecutor’s office. People v Bahoda, 448 Mich 261, 286; 531 

NW2d 659 (1995); Bennett, 290 Mich App at 475 (the prosecutor must refrain from commenting 

on his or her personal knowledge or belief regarding the truthfulness of a witnesses). 

Nevertheless, prosecutors are accorded great latitude regarding their arguments and may argue 

the evidence and all reasonable inferences from the evidence as it applies to the prosecution’s 

theory of the case. Bahoda, 448 Mich at 282. “They are free to argue the evidence and all 

reasonable inferences from the evidence as it relates to [their] theory of the case.” Id. (quotation 

marks and citation omitted). A prosecutor may argue from the evidence or reasonable inference 

from the evidence that a witness is worthy or unworthy of belief. People v Dobek, 274 Mich 

App 58, 66-67; 732 NW2d 546 (2007). Also pertinent, “prosecutorial arguments regarding 

credibility are not improper when based on the evidence, even if couched in terms of belief or 

disbelief.” Unger, 278 Mich App at 240.

The record reflects that the prosecutor argued that despite the trial court order 

sequestering the witnesses, because Gardiner lived with defendant, she learned the details of the 

complainant’s testimony from defendant and had the ability to tailor her own testimony to rebut 

the complainant’s testimony. The prosecutor pointed out in closing argument that “mom was 

able to provide very specific answers to very specific things . . . ” that left the prosecutor with 

“no doubt that they had a conversation [about] testimony and what [the complainant] said after 

each day of trial so by the time mom got here today to testify, she had it down.” The 

prosecutor’s argument challenged the credibility of defendant’s wife because she continued to 

live with defendant from his arrest through the trial, and although she had been excluded from 

the courtroom during the complainant’s testimony, she appeared to have been informed about the 

complainant’s testimony. The prosecutor’s closing argument remarks, in essence, asked the jury 

to draw inferences from defendant’s wife’s testimony and determine for themselves if the 

evidence indicated fabrication. Seals, 285 Mich App at 22; Dobek, 274 Mich App at 66-67. The 

record does not support defendant’s contention that the prosecutor committed misconduct by 

expressing confidence that defendant and his wife discussed the complainant’s testimony. The 

jury could apply common sense and everyday experience that a husband and wife living together 

discuss critical events happening in their lives. See People v McElhaney, 215 Mich App 269, 
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284; 545 NW2d 18 (1996). Therefore, we find no errors apparent on the record of prosecutorial 

misconduct in this regard.

Defendant also claims that the prosecutor committed prosecutorial misconduct by arguing 

regarding the reasons for the complainant’s delay in reporting the abuse. A “prosecutor cannot 

vouch for the credibility of [her] witnesses to the effect that [she] has some special knowledge 

concerning a witness’ truthfulness.” Bahoda, 448 Mich at 276. Further, a prosecutor may not 

argue facts that are not supported by evidence, People v Callon, 256 Mich App 312, 330; 662 

NW2d 501 (2003), or invoke the prestige of the prosecutor’s office to inject personal opinion, 

Bahoda, 448 Mich at 286.

In this case, the record reflects that the prosecutor improperly argued that the 

complainant’s delay in reporting the abuse was consistent with delayed reports the prosecutor 

experienced in other cases. However, even though such remarks constitute error, we are not 

convinced that the error affected defendant’s substantial rights. The record reflects that the 

complainant’s testimony established several reasons explaining her delay in coming forward and 

disclosing the sexual abuse she suffered as a child for many years. The evidence indicated that 

the offenses were committed at times when no one else was present because the complainant’s 

mother worked outside of the home and her sister was in bed. The evidence also established that 

the complainant experienced manipulation and control by defendant and her mother. The 

complainant testified that their conduct discouraged her disclosure and caused her to delay 

reporting the abuse.

The record also reflects that the trial court instructed the jury to decide the case based 

only on properly admitted evidence and told them that attorney comments are not evidence. This 

Court has explained that “instructions are sufficient to cure the prejudicial effect of most 

inappropriate prosecutorial statements.” Seals, 285 Mich App at 22. Further, “jurors are 

presumed to follow their instructions.” Unger, 278 Mich App at 235.

The evidence at trial established defendant’s guilt beyond a reasonable doubt. Defendant 

has not shown that the prosecutor’s remarks, when viewed in the context of all of the evidence at 

trial, led to the conviction of an actually innocent defendant or seriously affected the fairness, 

integrity or public reputation of the judicial proceedings. Accordingly, defendant’s prosecutorial 

misconduct claims fail.

Defendant’s ineffective assistance of counsel claim related to defense counsel’s failure to 

object to the prosecutor’s remarks during closing argument also fail. Even if we were to 

conclude that defense counsel’s conduct fell below an objective standard of reasonableness, 

defendant has failed and cannot prove that, but for defense counsel’s deficient performance, a 

reasonable probability exists that the outcome of his trial would have been different. 

Trakhtenberg, 493 Mich at 51. Therefore, defendant’s ineffective assistance of counsel claim in 

this regard also fails.

V. INEFFECTIVE ASSISTANCE - DISCOVERY

Defendant further claims that he was denied effective assistance of counsel because 

defense counsel failed to request inspection of privileged documents. Defendant did not present 
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this issue to the trial court and there was no evidentiary hearing. Consequently, appellate 

“review is limited to errors apparent on the record.” Unger, 278 Mich App at 253.

To obtain an in camera inspection of privileged records, a defendant must demonstrate a 

good-faith belief, grounded in articulable fact, that a reasonable probability exists that the 

records contain material information that is favorable to his defense. People v Stanaway, 446 

Mich 643, 650, 696; 521 NW2d 557 (1994). A broad unsupported request for privileged records 

for possible impeachment material does not meet this standard. Id. at 680-682.

Defendant concedes that he cannot establish the prejudice prong of his ineffective 

assistance claim in this regard because he does not know if any privileged counselling or 

psychological records pertaining to the complainant exist. Hence, defendant has failed and 

cannot show that the failure to obtain and review records resulted in the inability to discover 

information that likely would have affected the outcome of the trial. Therefore, defendant has 

not established a factual predicate for his claim that defense counsel provided him ineffective 

assistance in this regard.

Affirmed.

/s/ James Robert Redford

/s/ Jane E. Markey 

/s/ Kirsten Frank Kelly