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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

November 10, 2016 

v No. 327923 

Kent Circuit Court 

HOUSTON HENRY CHARLTON III, LC No. 14-011611-FH 

 Defendant-Appellant. 

Before: OWENS, P.J., and HOEKSTRA and BECKERING, JJ. 

PER CURIAM. 

 Defendant was convicted by a jury of domestic assault, MCL 750.81(2), third offense, 

MCL 750.81(4). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 

769.12, to 2.5 to 25 years’ imprisonment. Defendant appeals as of right. Because the evidence 

was sufficient to support defendant’s conviction, his evidentiary challenges are without merit, the 

prosecutor did not commit misconduct, and defendant was not denied the effective assistance of 

counsel, we affirm. 

 The victim in this case is defendant’s on-and-off again girlfriend and the mother of his 

two children. In November of 2014, the victim reported to police that defendant attacked her in 

the bathroom of their home because defendant was angry that the victim was “getting fixed up” 

for work. He called her several names, “grabbed her by the shoulders, threw her against the 

wall, then took her head and slammed it against the wall three times.” He then grabbed her 

throat and strangled her “to the point where she thought that she was going to lose 

consciousness.” Afterward, he “threw” her into the bedroom and told the family he would kill 

them if they called the police. The police officer to whom the victim spoke observed that the 

victim had “scratches and marks” on her neck. When police went to the home to arrest 

defendant, they also found a hole in the bathroom wall at approximately the victim’s head height. 

In addition to her report to the police, the victim made similar statements to a Children’s 

Protective Services (CPS) worker. 

 However, the victim largely recanted her allegations at trial. The victim testified that 

there was an argument that evening about her wearing false eyelashes to work, during which 

defendant called her names and “used an aggressive tone.” The victim testified that defendant 

“hit [the] wall out of anger.” According to the victim’s trial testimony, after defendant hit the 

wall, the victim was “scared” and she “thought” the argument would become “physical,” but it 
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did not. She testified that she made a false report to the police because she wanted defendant 

“out of [her] house.” Under MCL 768.27c, the prosecutor introduced the victim’s statements to 

police as substantive evidence and, under MCL 768.27b, the prosecutor introduced evidence of 

other acts of domestic violence perpetrated by defendant on the victim. The jury also heard 

expert testimony on domestic violence and reasons why a victim may recant a report of abuse. 

The jury convicted defendant of domestic violence. Defendant now appeals as of right. 

I. SUFFICIENCY OF THE EVIDENCE 

 Defendant first argues that there was insufficient evidence to support his conviction. In 

particular, defendant maintains that the case is entirely dependent on the victim’s credibility. 

Defendant contends that, because the victim recanted her claim of domestic violence, her trial 

testimony to the effect that there was no assault must necessarily have raised a reasonable doubt 

and thus there was insufficient evidence to justify defendant’s conviction. 

 This Court reviews de novo a challenge to the sufficiency of the evidence. People v 

Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). “We examine the evidence in a 

light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and 

determine whether a rational trier of fact could have found that the essential elements of the 

crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793 

NW2d 120 (2010). “Circumstantial evidence and reasonable inferences that arise from such 

evidence can constitute satisfactory proof of the elements of the crime.” People v Williams, 268 

Mich App 416, 419; 707 NW2d 624 (2005). “Further, we will not interfere with the jury's role 

of determining the weight of the evidence or the credibility of witnesses.” People v Ortiz, 249 

Mich App 297, 300-301; 642 NW2d 417 (2001). 

 To convict defendant of domestic assault, the prosecution was required to prove that 

defendant and the victim were associated in one of the ways set forth in MCL 750.81(2) and that 

defendant assaulted or assaulted and battered the victim. People v Cameron, 291 Mich App 599, 

614; 806 NW2d 371 (2011). The term “battery” refers to “an intentional, unconsented and 

harmful or offensive touching of the person of another, or of something closely connected with 

the person.” Id. (quotation omitted). “[T]he courts have defined an assault as an attempt to 

commit a battery or an unlawful act that places another in reasonable apprehension of receiving 

an immediate battery.” Id. (quotation omitted). 

 In this case, the victim testified at trial that she had a dating relationship and children in 

common with defendant, MCL 750.81(2), and defendant does not dispute these facts. Instead, 

the issue on appeal is whether the evidence was sufficient to establish that defendant assaulted or 

assaulted and battered the victim. Relevant to this issue, the victim testified at trial that 

defendant called her names using “an aggressive tone” and hit a wall, leaving a hole. The victim 

also testified that she believed the argument would turn physical and that she was “scared.”1

 The 

 

1

 Even without the evidence of the victim’s statements to police, the victim’s trial testimony that 

she was “scared” and thought the altercation would turn “physical” because defendant used 

aggressive tones and engaged in an overt act of violence by hitting a wall could support a finding 
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victim’s daughter and defendant’s mother, who were also in the home, confirmed that there was 

an argument between defendant and the victim on the night in question. In addition to this trial 

testimony, the statements of the victim to police indicated that defendant slammed the victim’s 

head against the wall, grabbed her by the throat, “began to strangle her,” and threatened that he 

would kill the family if anyone called the police. If believed, this evidence plainly demonstrated 

the occurrence of an assault or assault and battery on the victim. Cf. Cameron, 291 Mich App at 

615; People v Meissner, 294 Mich App 438, 454; 812 NW2d 37 (2011). 

 Although defendant argues that the victim’s reports to police cannot be credited in light 

of her trial testimony, the issue is obviously one of credibility and we will not interfere with the 

jury’s assessment of credibility. See Ortiz, 249 Mich App at 300-301. Moreover, we note that 

defendant’s argument fails to view the evidence in a light most favorable to the prosecution and 

ignores evidence bolstering the credibility of the reports made to police. For example, an officer 

observed scratches and marks on the victim’s throat, supporting the victim’s report that 

defendant strangled her; and police found a hole in the bathroom wall at the height of the 

victim’s head, supporting her assertion that he slammed her head into the wall. Further, the 

evidence showed that defendant had a history of violence against the victim, which could be 

reasonably seen as increasing the credibility of the victim’s report of domestic violence and 

making it more likely that defendant once again acted with violence toward the victim. See 

Cameron, 291 Mich App at 609-612. Overall, the victim’s credibility was a question for the jury 

and, viewing the evidence in a light most favorable to the prosecution, a rational jury could 

conclude that defendant assaulted and battered the victim. Therefore, the evidence was sufficient 

to prove that defendant committed domestic assault. 

II. EVIDENTIARY ISSUES 

 Next, defendant raises a variety of evidentiary issues. At trial, defendant objected only to 

the introduction of the statements made by the victim’s daughter to CPS. Thus, that claim is 

preserved and is reviewable for an abuse of discretion. People v Mahone, 294 Mich App 208, 

212; 816 NW2d 436 (2011). The rest of defendant’s evidentiary claims are unpreserved and are 

reviewed for plain error affecting defendant’s substantial rights.2

 People v Benton, 294 Mich 

App 191, 202; 817 NW2d 599 (2011). To the extent defendant weaves constitutional challenges 

into these evidentiary arguments, those constitutional arguments are likewise unpreserved and 

reviewed for plain error. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). 

of assault. That is, assault does not require an actual touching, but may be accomplished “where 

an actor engages in some form of threatening conduct designed to put another in apprehension of 

an immediate battery.” People v Reeves, 458 Mich 236, 240-241; 580 NW2d 433 (1998). 

2

 On appeal, defendant argues that, if there is error, he is entitled to a new trial because the effect 

of these purported evidentiary issues should be decided by a jury rather than this Court. 

Apparently, defendant would have us automatically reverse in every case where a trial error 

occurs regardless of whether the error affected the outcome. This argument is baseless. “Rules 

of automatic reversal are disfavored, for a host of obvious reasons,” and, absent a rare structural 

error, a jury’s verdict will not be set aside by an appellate court without a consideration of the 

effect of the error. People v Mosko, 441 Mich 496, 502; 495 NW2d 534 (1992); MCL 769.26. 
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A. MCL 768.27b 

 First, defendant argues that the trial court erred by admitting testimony under MCL 

768.27b because MCL 768.27b violates the separation of powers doctrine by interfering with the 

Supreme Court’s constitutional authority to make rules governing the practice and procedures of 

the courts. The Michigan Supreme Court has previously considered and rejected this precise 

argument. People v Mack, 493 Mich 1, 3; 825 NW2d 541 (2012). See also People v Schultz, 

278 Mich App 776, 779; 754 NW2d 925 (2008). Thus, defendant’s separation of powers 

argument is without merit. 

Second, defendant contends that he was denied due process because the evidence 

introduced under MCL 768.27b involves propensity evidence, which defendant asserts is 

fundamentally unfair in light of the effect that other bad acts evidence may have on a jury. 

However, defendant provides no authority for the proposition that due process categorically 

prohibits the introduction of propensity evidence, and we know of no such authority. See Bugh v 

Mitchell, 329 F3d 496, 512 (CA 6, 2003) (“There is no clearly established Supreme Court 

precedent which holds that a state violates due process by permitting propensity evidence in the 

form of other bad acts evidence.”). By enacting MCL 768.27b, the Legislature made a 

permissible policy choice to allow juries to consider other acts evidence for propensity purposes 

in certain cases. See Cameron, 291 Mich App at 609-610; People v Pattison, 276 Mich App 

613, 620; 741 NW2d 558 (2007). To protect defendants from undue prejudice, evidence offered 

under MCL 768.27b remains subject to a balancing test under MRE 403. See MCL 768.27b(1). 

MRE 403 provides an adequate safeguard, and there is nothing fundamentally unfair about 

allowing propensity evidence to be introduced pursuant to MCL 768.27b. Cf. United States v 

LeMay, 260 F3d 1018, 1026 (CA 9, 2001). 

Third, defendant next argues that the evidence was not admissible under MCL 768.27b 

because MCL 768.27b only allows for the introduction of “relevant” evidence and whether 

defendant committed past acts of domestic violence is irrelevant to whether he assaulted the 

victim in this case unless the evidence is used for an impermissible propensity purpose. In 

making this argument, defendant relies on the general prohibition on propensity evidence, he 

misconstrues MCL 768.27b, and he ignores binding caselaw which holds that propensity 

evidence is relevant and admissible under MCL 768.27b. In particular, while there is a general 

prohibition on using other acts evidence for propensity purposes,3

 by its express terms, in a 

domestic violence case, MCL 768.27b allows for the introduction of other acts of domestic 

violence “for any purpose for which it is relevant,” which includes showing a defendant’s 

“character or propensity to commit the same act.” People v Railer, 288 Mich App 213, 220; 792 

NW2d 776 (2010). Thus, contrary to defendant’s arguments, propensity evidence is not 

irrelevant or improper under MCL 768.27b. See generally People v Watkins, 491 Mich 450, 

470; 818 NW2d 296 (2012) (“[A] defendant's propensity to commit a crime makes it more 

probable that he committed the charged offense.”). 

 

3

 See People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). 
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It follows that, in the present case, the fact that defendant committed prior acts of 

domestic violence against the victim—including pushing her, pulling out her hair weave, and 

slapping her in the face—was relevant as required by MCL 768.27b.4

 The evidence was relevant 

to show defendant’s propensity to commit an act of domestic violence against the victim, Railer, 

288 Mich App at 219-220, it was relevant to the jury’s assessment of the victim’s credibility, 

Cameron, 291 Mich App at 612, and it allowed the jury to weigh defendant’s behavioral history 

and to view the case in the larger context that defendant’s background affords, Schultz, 278 Mich 

App at 779. Therefore, contrary to defendant's arguments on appeal, the evidence was relevant. 

Fourth, defendant argues that the probative value of the other acts testimony was 

substantially outweighed by unfair prejudice, meaning that the evidence should have been 

excluded under MRE 403. However, in making this argument, defendant persists in the 

mistaken assertion that any propensity use of the evidence is improper and must weigh against 

admission of the evidence. In actuality, given that MCL 768.27b allows evidence to be 

introduced for propensity purposes in cases of domestic violence, when applying the MRE 403 

balancing test in the context of MCL 768.27b, “courts must weigh the propensity inference in 

favor of the evidence's probative value rather than its prejudice effect.” Watkins, 491 Mich at 

487. Weighing the evidence’s propensity inference in favor of admission, it is plain that MRE 

403 did not require exclusion of the contested evidence. Although the other acts evidence was 

damaging, it was not particularly graphic or inflammatory, and it did not interfere with the jury’s 

ability to logically weigh the evidence. Cf. Railer, 288 Mich App at 220-221. Overall, the trial 

court did not abuse its discretion when it allowed the prosecutor to introduce evidence of 

defendant’s prior bad acts. 

B. MCL 768.27c 

Next, defendant argues that the he was denied his right to a fair trial because the victim’s 

statements to police and CPS were inadmissible under MCL 768.27c.5

 Specifically, defendant 

contends that the statements were inadmissible under MCL 768.27c because: (1) the statement 

to police was not made close in time to the alleged assault, (2) the statement to the CPS worker 

was not made to a “law enforcement officer,” (3) and the statements to police were not made 

under circumstances indicative of trustworthiness. 

 

4

 Defendant was charged with an offense involving domestic violence as defined by MCL 

768.27b. The victim falls into the category of “family or household member” because she had a 

dating relationship with defendant and a child in common. MCL 768.27b(5)(b). The prior acts 

presented by the prosecution at trial occurred within the past 10 years and qualify as acts of 

domestic violence. Therefore, MCL 768.27b applies to this case. 

5

 In passing, defendant asserts that the separation of powers arguments he identified with respect 

to MCL 768.27b apply equally to MCL 768.27c, such that the statute is an improperly enacted 

means of changing a rule of evidence. These arguments are without merit for the same basic 

reasons discussed supra in relation to MCL 768.27b. See generally Meissner, 294 Mich App at 

445 (“Our Legislature enacted MCL 768.27c as a substantive rule of evidence reflecting specific 

policy concerns about hearsay in domestic violence cases.”). 
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Under MCL 768.27c, evidence of a statement by a declarant is admissible if: 

(a) The statement purports to narrate, describe, or explain the infliction or threat 

of physical injury upon the declarant. 

(b) The action in which the evidence is offered under this section is an offense 

involving domestic violence. 

(c) The statement was made at or near the time of the infliction or threat of 

physical injury. . . . 

(d) The statement was made under circumstances that would indicate the 

statement’s trustworthiness. 

(e) The statement was made to a law enforcement officer. 

MCL 768.27c(2) provides that circumstances relevant to the issue of trustworthiness may 

include, but are not limited to: 

(a) Whether the statement was made in contemplation of pending or anticipated 

litigation in which the declarant was interested. 

(b) Whether the declarant has a bias or motive for fabricating the statement, and 

the extent of any bias or motive. 

(c) Whether the statement is corroborated by evidence other than statements that 

are admissible only under this section. 

 Here, the trial court did not err by admitting the statements. The incident occurred at 

approximately 8:30 p.m. on the evening of November 17, 2014 and the victim made her 

statement to police, i.e., “a law enforcement officer,” at about 2:00 a.m. on November 19.6

 This 

was near in time to the infliction of physical injury as required to fulfill the temporal requirement 

of MCL 768.27c(1)(c). See Meissner, 294 Mich App at 448-449; see also People v Quitiquit, 

155 Cal App 4th 1, 9; 65 Cal Rptr 3d 674 (2007). The statement was also made under 

circumstances that would indicate the statement’s trustworthiness. The victim’s statements were 

corroborated by other evidence, including the marks on her person, her daughter’s statement to 

police,7 and the hole in the bathroom wall. Further, the police described the victim’s demeanor 

as upset when she made her report, and there is nothing on the record to suggest that the victim 

 

6

 The victim actually called the police closer in time to the incident, but was told to come in 

person to make a full report and she went to the police as soon as she was able. 

7

 Even if the child’s statements to police that defendant slammed her mother against the wall was 

not admissible as substantive evidence at trial because the child was not the victim of the assault, 

see MCL 768.27c(1)(a), the child’s corroborating statements could be considered incident to a 

preliminary evidentiary ruling by the trial court. See MRE 104(a). 
-7- 

made the statement to the police in anticipation of litigation. Cf. Meissner, 294 Mich App at 

449-450. It is true that the victim testified that she fabricated her report to police because she 

wanted defendant out of her house, which provides some evidence of a motive to lie. However, 

it is not necessary that all three factors under MCL 768.27c(2) support a finding of 

trustworthiness. See Meissner, 294 Mich App at 449. Overall, considering all the 

circumstances, the trial court did not err by finding that the statement to police was trustworthy 

and thus it was admissible under MCL 768.27c.8 Defendant has failed to demonstrate plain error 

affecting his substantial rights. Carines, 460 Mich at 763. 

 In terms of the victim’s statement to CPS, defendant argues that the victim’s statement 

was inadmissible under MCL 768.27c because the CPS worker was not “law enforcement” as 

required by the statute. First, the record does not state whether the statement was admitted under 

MCL 768.27c as substantive evidence or under MRE 613 for impeachment purposes, meaning 

that we cannot determine whether plain error occurred. Nevertheless, even if the trial court 

erroneously admitted the victim’s statement to CPS under MCL 768.27c, defendant has failed to 

establish that he was prejudiced by the error. The CPS worker offered similar testimony to that 

given by the police, and, on the facts of this case, we fail to see how defendant was prejudiced by 

the admission of this cumulative evidence. See People v Rodriquez, 216 Mich App 329, 332; 

549 NW2d 359 (1996). Defendant has not shown plain error. Carines, 460 Mich at 763. 

C. HEARSAY 

 Defendant also argues that the victim’s daughter’s prior inconsistent statements were 

inadmissible hearsay that could not be used for impeachment purposes. At trial, the child 

testified that on the night in question she was asleep, she heard arguing, and then her mother 

woke her up. She testified that she “forgot” what she saw after she woke up and that she 

remembered “nothing.” The child also said that she did not remember telling police or CPS that 

defendant hit the victim’s head into a wall. Consequently, the trial court admitted evidence that 

the victim made prior statements to authorities for impeachment purposes. See MRE 607; MRE 

613; People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995) (“When a witness claims not 

to remember making a prior inconsistent statement, he may be impeached by extrinsic evidence 

of that statement.”). 

 Defendant now argues this decision was erroneous because, even if the impeachment 

evidence demonstrates that the child lied about whether she made past statements, this fact alone 

would not help the prosecutor’s case and the prosecutor’s true aim was to elicit a denial from the 

child as a means of placing her damaging past statements before the jury. See People v 

Stanaway, 446 Mich 643, 693; 521 NW2d 557 (1994). In this respect, “[a] prosecutor cannot use 

 

8

 Defendant also argues that the trial court made an improper statement to the jury to the effect 

that the victim’s prior statement to the police was “reliable.” Considering the trial court’s 

instruction on this point as a whole, the trial court plainly and accurately instructed the jury that 

they did not have to accept the victim’s statement to police. We can discern no error in the trial 

court’s remarks that would entitle defendant to relief. See People v Aldrich, 246 Mich App 101, 

124-125; 631 NW2d 67 (2001). 
-8- 

a statement that directly tends to inculpate the defendant under the guise of impeachment when 

there is no other testimony from the witness for which his credibility is relevant to the case.” 

People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997). However, this rule does not 

apply in this case because the child’s testimony regarding the events in the home that evening 

was inconsistent with that of other witnesses at trial. Cf. id. For example, defendant’s mother 

stated that the child was downstairs with her that evening and the victim indicated that the child 

came to the bathroom at one point to tell her that dinner was ready. Given these various 

statements regarding the child’s whereabouts that evening, her location was an issue at trial and 

the child’s credibility with respect to her assertion that she was “asleep” was relevant. Thus, the 

trial court did not abuse its discretion by admitting evidence of her prior inconsistent statements 

for impeachment purposes.9

 See id. at 683-684. 

D. EXPERT TESTIMONY 

 Defendant next argues that the prosecution’s domestic violence expert improperly 

expressed an opinion on whether the victim was lying to protect defendant. An expert may not 

vouch for the veracity of a victim. People v Musser, 494 Mich 337, 349; 835 NW2d 319 (2013); 

People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). However, expert testimony on 

patterns of domestic violence may be admissible and useful “when a complainant endures 

prolonged toleration of physical abuse and then attempts to hide or minimize the effect of the 

abuse, delays reporting the abuse to authorities or friends, or denies or recants the claim of 

abuse.” People v Christel, 449 Mich 578, 592; 537 NW2d 194 (1995). 

 Here, the expert testified that it was common for a victim to recant previous claims of 

abuse and, in response to a line of inquiry initiated by defense counsel regarding whether victims 

ever “lie,” the expert indicated that she had been personally involved in only one case where she 

had reason to believe that the victim was lying. While the expert offered these general 

observations about domestic violence and her experience with victims, she did not testify that the 

victim in this case was telling the truth. In fact, the expert specifically testified that she had 

never talked to, or worked with, the victim. Thus, there is nothing to support that the expert 

improperly commented on the victim’s veracity, and defendant has not shown plain error. 

III. PROSECUTORIAL MISCONDUCT 

 Defendant next argues that several of the prosecutor’s comments constituted 

prosecutorial misconduct. Unpreserved claims of prosecutorial misconduct, such as defendant’s 

claims in this case, are reviewed for plain error affecting substantial rights.10 People v Brown, 

 

9

 Moreover, although the prosecutor offered the statements for impeachment purposes, to the 

extent the child told police that defendant threatened the “family” by telling them he would kill 

“them” if police came, these threats of violence against the child would potentially be admissible 

under MCL 768.27c(1)(a). 

10 Defendant disputes the applicability of any standard of review that does not result in automatic 

reversal of his conviction if there is a finding of prosecutorial misconduct. As we have noted, 

“[r]ules of automatic reversal are disfavored, for a host of obvious reasons.” Mosko, 441 Mich at 
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279 Mich App 116, 134; 755 NW2d 664 (2008). “Reversal is warranted only when plain error 

resulted in the conviction of an actually innocent defendant or seriously affected the fairness, 

integrity, or public reputation of judicial proceedings.” People v Callon, 256 Mich App 312, 

329; 662 NW2d 501 (2003). “Further, we cannot find error requiring reversal where a curative 

instruction could have alleviated any prejudicial effect.” Id. at 329-330. 

 Prosecutorial misconduct claims are decided on a case-by-case basis, and challenged 

remarks must be read in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 

(1996). “Prosecutors are typically afforded great latitude regarding their arguments and conduct 

at trial.” People v Unger, 278 Mich App 210, 236; 749 NW2d 272, 293 (2008). “They are 

generally free to argue the evidence and all reasonable inferences from the evidence as it relates 

to their theory of the case.” Id. However, a prosecutor may not express a personal opinion 

regarding defendant's guilt or denigrate defendant with intemperate remarks. People v Bahoda,

448 Mich 261, 282–283; 531 NW2d 659 (1995). A prosecutor also may not argue facts not in 

evidence. Stanaway, 446 Mich at 686. Likewise, “[a] prosecutor's clear misstatement of the law 

that remains uncorrected may deprive a defendant of a fair trial.” People v Grayer, 252 Mich 

App 349, 357; 651 NW2d 818 (2002). “However, if the jury is correctly instructed on the law, 

an erroneous legal argument made by the prosecutor can potentially be cured.” Id.

 Defendant first asserts that the prosecutor committed misconduct by misstating the law 

during closing arguments when she told the jury that the law considers prior statements made by 

a victim of domestic violence to be “credible.” More fully, the prosecutor stated: 

 What is interesting, and the Judge instructed you at the point when [the 

officer] was going to testify about her statements, is that what are the 

circumstances or the criteria that those statements are admissible for you to 

consider, and the Judge will instruct you that you can consider those as evidence 

of whether or not these crimes were committed. The statement has to be made to 

law enforcement, and then the other component is the statement has to be 

regarding an allegation of domestic violence. 

 So ask yourself this: Why does the law allow those, and why does the law 

consider those to be credible statements for you as jurors to decide? Ask yourself 

that. And I think the answer is pretty clear. Because you got an insight when you 

heard [the expert] testify yesterday what this involves, what these types of crimes 

involve and what these type of consistent and constant actions toward victims of 

domestic violence have to deal with and what their very common responses are. 

*** 

 [The victim’s] response and what she did here and what she did at the 

prelim is so typical. It is so common and consistent to the point that the law 

502. And, more particularly, it is well-settled that claims of prosecutorial misconduct are 

amendable to plain error review. Brown, 279 Mich App at 134. 
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recognizes and says you can find credible, you can rely on a statement to the 

police about a crime of domestic violence . . . . 

 Viewing the comments as a whole, we find that the prosecutor’s remarks were perhaps 

poorly worded and imprecise, but not a clear misstatement of the law. Cf. People v Abraham, 

256 Mich App 265, 276; 662 NW2d 836 (2003). That is, pursuant to MCL 768.27c, statements 

made under circumstances indicative of the “statement's trustworthiness” may be admitted as 

substantive evidence. However, while such statements are admissible, whether the statement 

should be believed is ultimately an issue for the jury and there is certainly no presumption that 

the statements are “credible.” Consequently, it would be improper for the prosecutor to indicate 

that the jury must believe the prior statements or to inform the jury there is some presumption of 

believability. But, in this case, while the prosecutor discussed the “credibility” of the statements, 

the prosecutor stopped short of suggesting the jury was required to believe the statements or that 

the law created a presumption that the statements were credible. To the contrary, while 

discussing the credibility of the statements, the prosecutor noted the statements were “admissible 

for [the jury] to consider,” for the jury to “decide,” and that the jury “can find” the statements 

credible. In other words, on the whole, the prosecutor’s remarks do convey the fact that the jury 

was to assess the credibility of the past statements in light of the circumstances in which they 

were made. Indeed, elsewhere, the prosecutor repeatedly asked the jury to decide whether it 

believed the victim’s testimony or her statement to police.11 Thus, considered as a whole, the 

prosecutor’s remarks did not deprive defendant of a fair trial. Grayer, 252 Mich App at 357. 

Additionally, the trial court instructed the jury that the lawyer’s arguments were not evidence 

and, when the court admitted the victim’s past statements, it specifically instructed the jury that 

they could decide whether or not to believe the victim’s statements to police. Jurors are 

presumed to follow their instructions, and defendant is not entitled to relief under a plain error 

standard of review. See Callon, 256 Mich App at 329. 

 Defendant’s other claims of prosecutorial misconduct are also without merit. Defendant 

contends that the prosecutor argued facts not in evidence when she argued that it was tempting to 

“judge” the victim for wanting to stay with defendant, that the victim recanted because she 

needed him to help raise the children and because she had an exaggerated idea of what 

defendant’s punishment would be, and that the situation was sad because the children observed 

 

11 Defendant suggests that the prosecutor shifted the burden of proof by asking the jury to decide 

which statement it believed and expressed a personal opinion of the victim’s credibility by 

urging them to believe the victim’s statements to police, in part because the victim’s conduct fit 

the pattern described the domestic violence expert. These arguments are without merit. There 

was nothing improper in the prosecutor’s framing of the principal issue in this case as a contest 

between the victim’s past statements and her trial testimony, and the prosecutor was free to 

comment on witness credibility and to argue that the victim’s statement to police was more 

credible in light of the corroborating evidence. See People v Thomas, 260 Mich App 450, 455; 

678 NW2d 631 (2004). In any event, the trial court instructed the jury on the burden of proof, 

the presumption of innocence, and the assessment of witness credibility, alleviating any 

prejudicial effect. See Callon, 256 Mich App at 329. 
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domestic violence. Contrary to defendant’s arguments, the record supports that the prosecutor’s 

comments were based on evidence presented during trial and reasonable inferences arising 

therefrom. For example, the evidence showed that the victim previously continued a relationship 

with defendant after other acts of domestic violence, that defendant “helps out a lot” with the 

kids, that defendant sometimes helped with rent and food bills, that the victim did not want 

defendant to face “consequences” in this case, that the children were in the home when the 

assault occurred and that the victim spoke to authorities partly because she did not want the 

children to “witness [defendant’s] anger.” Thus, the arguments were proper. 

 Defendant also argues that the prosecutor expressed a personal belief in defendant’s guilt 

when she stated in her opening statement that defendant hit the victim, pushed her head into a 

wall, and strangled her. The prosecution’s opening statement “is the appropriate time to state the 

facts that will be proved at trial.” Ericksen, 288 Mich App at 200. Thus, it was not improper for 

the prosecutor to set out the facts of the case that she intended to prove. Id. Defendant also 

argues that the prosecutor denigrated defendant and the defense by telling the jury that the 

victim’s trial testimony was a “charade.” But, a prosecutor may argue from the facts and 

testimony regarding whether witnesses are credible or worthy of belief, and prosecutors “need 

not confine argument to the blandest possible terms.” Dobek, 274 Mich App at 66. Here, the 

prosecutor’s comment regarding the strength and credibility of the evidence was not an improper 

denigration of the defense. Cf. id at 67. 

 Furthermore, even assuming some merit to any of defendant’s claims of prosecutorial 

misconduct, defendant has not established that it affected his substantial rights. First, any 

prejudice caused by these remarks could have been alleviated by timely objections and requests 

for curative instructions. Unger, 278 Mich App at 235. Second, any prejudice was in fact 

alleviated by the trial court’s instructions. Therefore, there was no plain error affecting 

defendant’s substantial rights, and reversal is not warranted.12 Id. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Finally, defendant argues that he was denied the effective assistance of counsel when his 

trial counsel failed to object to the unpreserved evidentiary issues and prosecutorial statements 

that defendant now challenges on appeal. To establish the ineffective assistance of counsel, a 

defendant must show (1) that counsel’s representation fell below an objective standard of 

reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the 

result of the proceeding would have been different. People v Putman, 309 Mich App 240, 248; 

870 NW2d 593 (2015). In this case, defendant’s claim fails because has not shown that any 

evidence was improperly admitted at trial or that the prosecutor’s comments were improper. 

Consequently, objection by counsel would have been futile, and “[f]ailing to advance a meritless 

argument or raise a futile objection does not constitute ineffective assistance of counsel.” 

 

12 Insofar as defendant suggests that the cumulative effect of the prosecutor’s errors merits 

reversal, this argument fails because defendant has not shown error and, without error, there can 

be no cumulative effect. Dobek, 274 Mich App at 106. 
-12- 

Ericksen, 288 Mich App at 201. Thus, he has not established his ineffective assistance of 

counsel claim. See id.; Putman, 309 Mich App at 248. 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Joel P. Hoekstra 

/s/ Jane M. Beckering