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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 14, 2016

v No. 327301 Kent Circuit Court JAVON HARRIS, LC No. 14-004731-FC

Defendant-Appellant.

Before: M URRAY , P.J., and S AWYER and M ETER , JJ.

P ER C URIAM

. Defendant Javon Harris appeals as of right his convictions of first-degree criminal sexual conduct, MCL 750.520b, and second-degree criminal sexual conduc t, MCL 750.520c. We affirm.

First, defendant challenges the admissibility of two investiga ting officers who testified that the victim’s in-court tes timony was consistent with inform ation the victim provided during prior interviews. Detective Kristine Beenen testified that the victim’s in-court testimony was “very consistent” with her statements made in a prior interview . Naval Criminal Investigator Service Special Agent Mike Pierce also testified that the victi m’s in-court testimony was consistent with her statements ma de in a separate prior intervi ew with him. We review defendant’s unpreserved evidentiar y claim with respect to these two statements for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

“It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury.” People v Dobek , 274 Mich App 58, 71; 732 NW2d 546 (2007). A police officer’s testimony that a prosecution witness’ in-court testimony was consistent with a prior interview is substantively inadmissible. See People v Smith , 158 Mich App 220, 227; 405 NW2d 156 (1987) (The prosecutor elicited testimony from a detective that a witness’ trial testimony was identical to two prior statements made by the witness to the detective, and this Court held that the testimony was inadmissible as a prior consistent statement.) However, a prio r consistent statement may be admitted through a third party in certain circumstances pursuan t to MRE 801(d)(1)(B). People v Jones , 240 Mich App 704, 706; 613 NW2d 411 (2000).

In this case, Detective Beenen’s challenged statement was not admissible under MRE 801(d)(1)(B) because there was no “express or implied charge of recent fabrication or improper-2- influence or motive” prior to her testimony. Jones , 240 Mich App at 707 (quotation omitted). Thus, it was improper for Detective Beenen to comment that the victim’s trial testimony was consistent with her interview statements. Smith , 158 Mich App at 226-227. Similarly, Agent Pierce’s testimony was also ina dmissible under MRE 801(d)(1)(B) . In the course of Detective Beenen’s cross-examination, defendant made an implied charge th at the victim was improperly pressured into pressing charges against defendant. Agent Pierc e testified after Detective Beenen. Thus, prior to Agent Pierce’s te stimony there was an “implied c harge of . . . improper influence.” Jones , 240 Mich App at 707 (quotation omitted). However, for Agent Pierce’s testimony to be admissible, the victim’s prior statement to him would have to b e made “prior to the time the supposed motive to falsify arose.” Id. (quotation omitted). The victim’s prior consistent statement to Agent Pierce occurred approximately two years afte r Detective Beenen’s contact with the victim and discussions of pressing charges. Thus, the prior consistent statement from Agent Pierce was “not prior to [when] the supposed motive to fa lsify arose.” Id. Thus, neither prior consistent statement was admissible. Smith , 158 Mich App at 226-227; MRE 801(d)(1)(B). Therefore, the challenged testi mony constitutes plain error. Carines , 460 Mich at 763.

However, defendant has failed to argue how this error affected his subst antial rights, which was his burden on appeal. Carines , 460 Mich at 763. Nevertheless, we conclude that in light of the evidence the plain error was not outcome determina tive. Defendant admitted at trial to the conduct underlying his sec ond-degree criminal sexual con duct conviction. Defendant also testified that he did not challenge the victim’s account of the events underlying the seconddegree criminal sexual conduct. W ith respect to defendant’s fi rst-degree criminal sexual conduct conviction, the victim’s testimony about one instance of first- degree criminal sexual conduct was corroborated by defendant’s second sworn statement. Both indic ated that defendant attempted to put his penis in her vagina, but it would not fit and that this event occurred in the bedroom of the victim’s sister. The identif ied plain errors had no affect on defendant’s substantial rights. Id

. Defendant also challenges Detective Beenen’s testimony that th e victim’s behavior was consistent with that of a sexual abuse victim. Defense counsel objected to this and the prosecutor withdrew his question that elicited the statement. The trial court thereafter instructed the jury to disregard the questio n and not speculate on an answ er. Later, the trial court instructed the jury that it could only consider evidence that the trial co urt let stand. “[J]urors are presumed to follow their instructions.” People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). Because the jury presumably followed its instructions, defendan t is not entitled t o any relief.

Defendant also briefly asserts on appeal that the prosecutor p laced the prestige of her office and the office of the police behind the contention that defendant was guilty. This argument is not set forth in defendant’s statement of questions presented and is not properly before this Court. People v Miller , 238 Mich App 168, 172; 604 NW2d 781 (1999). Moreover, defendant failed to adequately brief this issue. People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant m ay not merely announce his posi tion and leave it to this Court to discover a nd rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.”). Similar ly, defendant asserts that he was denied a fair trial, but he failed to adequately brief this iss ue as well by citing inapplicable law and not applying the facts of his case to his cursory argument that he was denied a fair trial. Id

. While both of these arguments are abandoned, we have reviewed t hem and conclude that they are without merit.-3- Finally, defendant raises an i neffective assistance of counsel argument, but only gives it cursory treatment without explanation or rationalization. Kelly , 231 Mich App at 640-641. Nevertheless, we reviewed the lower court record, and conclude that defense counsel’s actions with respect to the challenged statements amounted to trial str ategy, which we will not secondguess. People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012), citing Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). And, given defendant’s statements and testimony, we can not conclude that but for couns el’s conduct, there is a reasonable probability that the outcome of trial would have bee n different.

Affirmed.

/s/ Christopher M. Murray /s/ David H. Sawyer /s/ Patrick M. Meter