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

revision until final publication in the Michigan Appeals Reports.

-1-

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UNPUBLISHED

April 23, 2019

v No. 339590

Wexford Circuit Court

BENJAMIN ANDREW BURKLOW, LC No. 2017-011810-FC

Defendant-Appellant.

Before: BORRELLO, P.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

Defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I), 

MCL 750.520b(2)(b) (sexual penetration of a victim less than 13 years of age by a defendant 17 

years of age or older), and one count of indecent exposure, MCL 750.335a. The trial court 

sentenced defendant as a second habitual offender, MCL 769.10, to serve concurrent prison 

terms of 25 to 40 years for each CSC-I conviction and 365 days for indecent exposure, with 

credit for 222 days served. Defendant appeals by right. For the reasons set forth in this opinion, 

we affirm. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant, a 32 year old male, is alleged to have committed these offenses on an 11 yearold boy. At the time of the reported incidents, the victim’s parents were divorced and defendant, 

the brother of the victim’s father’s fiancé, was sharing a home with his sister and the victim’s 

father. The victim would visit his father along with the victim’s 13 year-old stepbrother every 

other weekend and every other week during the summers. The two minors occupied the same 

bedroom at the father’s house. Testimony revealed that defendant would often get off work and 

spend time playing video games or watching TV with the minors when they visited. This 

typically occurred in the minors’ bedroom. Defendant showed more affection for the victim than 

the stepbrother or the other children living in the house. Defendant began spending late nights in 

the minors’ bedroom, and as the victim sometimes spent time in defendant’s bedroom as well. 

Sometime after August 2016, defendant began engaging in criminal sexual conduct with the 

victim. The victim described at least two acts. In addition, defendant once exposed himself to
-2-

the victim when they were at the YMCA. The stepbrother testified that on one occasion, he 

woke up during the night in the bedroom that he shared with the victim and saw defendant 

“laying almost over top of [the victim].” He also heard underwear snapping. 

Sometime after the stepbrother heard the underwear snapping, he asked the victim

“what’s going on,” and the victim told him about defendant’s conduct. The two children 

informed the parents, who went to the police. 

While cleaning, a document was found which was penned by defendant wherein he wrote 

to the victim in effusive prose about how much he cared for the victim. The letter was read in 

the prosecutor’s opening statement and referred to throughout the trial by prosecution witnesses.

Defendant alleged that the allegations were false and were done at the behest of the older 

stepbrother who (1) “unsettled by the prospect[sic] of [defendant] being gay,” and (2) was 

jealous about the attention defendant gave to his stepbrother, both of which caused the 

stepbrother to fabricate a story about defendant that he then persuaded the victim to repeat. As 

noted above, defendant was charged with two counts of CSC-I and one count of indecent 

exposure. A jury found defendant guilty of all counts and sentenced as previously noted. This 

appeal then ensued. 

II. ANALYSIS 

On appeal, defendant first asserts that prosecutor committed misconduct by a variety of 

means. First, defendant argues that when the prosecutor read the letter written by defendant to 

the jury during opening statements, the prosecutor engaged in misconduct such that defendant 

was denied a fair trial. Defendant further argues that trial counsel was ineffective for failing to 

object to letter being admitted by the trial court as evidence. Defendant also argues that the 

prosecutor committed misconduct by improperly eliciting testimony regarding a prior arrest of 

defendant. Defendant additionally argues that the prosecutor committed misconduct by 

impermissibly vouching for the credibility of his witnesses and by arguing facts which were not 

admitted into evidence. Next, defendant argues that some of the evidence complained of on 

appeal should have been excluded at trial. Lastly, defendant argues that the jury was exposed to 

extraneous information during deliberations, and that his trial counsel was ineffective. This 

Court examines each of defendant’s claims of error. 

A. PROSECUTORIAL MISCONDUCT, ADMISSION OF EVIDENCE AND INEFFECTIVE 

ASSISTANCE 

1. The letter. 

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

novo.” People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). However, 

defendant failed to preserve this issue for appeal, and we review unpreserved claims of 

misconduct “for outcome-determinative, plain error.” People v Seals, 285 Mich App 1, 21-22; 

776 NW2d 314 (2009). This Court will reverse “only when the plain error resulted in the 

conviction of an actually innocent defendant or when an error seriously affected the fairness, 

integrity, or public reputation of judicial proceedings.” Id. at 22, citing People v Carines, 460 
-3-

Mich 750, 764-767; 597 NW2d 130 (1999). “Curative instructions are sufficient to cure the 

prejudicial effect of most inappropriate prosecutorial statements.” Seals, 285 Mich App at 22. 

“The test of prosecutorial misconduct is whether the defendant was denied a fair and 

impartial trial (i.e., whether prejudice resulted).” Abraham, 256 Mich App at 272. Prosecutorial 

misconduct must be examined on a case by case basis. Id. This Court must review the relevant 

part of the record and evaluate a prosecutor’s statements in context. Id. at 272-273. 

In this case, defendant argues that the prosecutor engaged in misconduct when, in his 

opening and closing remarks, he read the letter authored by defendant that was found under his 

mattress. Defendant additionally claims the letter was inadmissible under MRE 403. As 

previously alluded to, in the letter, defendant expresses his feelings for the victim, which were 

characterized by both parties as somewhat unusual given the difference in ages between 

defendant and the victim. 

We first examine the issue of the letter’s admissibility. Because defendant did not object 

to admission of the letter, our review is for plain error affecting substantial rights. People v 

Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Relevant evidence is generally 

admissible. MRE 402. However, 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.” MRE 403. “In this context, prejudice means more than simply damage to 

the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary 

to his contentions, but that cannot be grounds for exclusion.” People v Vasher, 449 Mich 494, 

501; 537 NW2d 168 (1995). Rather, “[u]nfair prejudice may exist where there is a danger that 

the evidence will be given undue or preemptive weight by the jury or where it would be 

inequitable to allow use of the evidence.” People v Blackston, 481 Mich 451, 462; 751 NW2d 

408 (2008). Our Supreme Court recently stated: 

The weighing of evidence’s probative value against its prejudicial effect requires 

a balancing of several factors, including the necessary time to present the 

evidence, whether the evidence is needlessly cumulative, how directly probative 

the evidence is, how necessary the fact to be proven by the evidence is, whether 

the evidence would mislead the jury, and whether there is an alternative and less 

potentially harmful way to prove the fact. [People v Sharpe, 502 Mich 313, 331-

332; 918 NW2d 504 (2018).]

Weighing the Sharpe factors, the letter’s probative value was not outweighed by the risk 

of unfair prejudice. It was directly probative of defendant’s guilt. Its language was evidence of 

defendant’s feelings for the victim, which appear to have been romantic, with overtones of a 

physical and sexual relationship. In fact, the verbiage of the letter was aptly described by 

defense counsel as “bizarre.” Additionally, the letter was not cumulative because there was no 

other documentation lending the same insight into defendant’s state of mind. Furthermore, the 

prosecution needed the letter to prove that defendant had an unhealthy relationship with the 

child, and there was no other viable alternative way to effectively prove this to the jury. Finally, 

there was little risk that this letter would mislead the jury. Therefore, based on the factors set 

forth by our Supreme Court in Sharpe, 502 Mich at 331-332, the letter was admissible. Hence, 
-4-

because a prosecutor may, in their opening statement, remark on an overview of the evidence 

that will be provided during the trial, People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 

(2010), and because the letter was admissible, we cannot find the prosecutor committed 

misconduct by referring to an admissible piece of evidence. 

Additionally, because the letter was admissible, defense counsel was not ineffective in 

failing to move for its exclusion. Trial counsel had no duty to raise a meritless or futile 

objection. See People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015). Further, trial 

counsel was not ineffective for referring to the letter as “bizarre” in his closing remarks. In 

closing, the prosecutor focused heavily on the letter and how it evidenced an unhealthy 

relationship between defendant and the victim. To counter the prosecutor’s attacks, trial counsel 

acknowledged that the relationship was unusual and “unorthodox. There’s too much affection . . 

. for our societal norm, to be sure.” Trial counsel then said that defendant’s explanation was 

arguably bizarre, but that it did not “by itself, make [defendant] a criminal. It does not 

necessarily mean that he did these things that he’s alleged to have done.” Rather than try to 

ignore the unusual nature of the letter, trial counsel attempted to mitigate the effect by reminding 

the jury that defendant was not on trial for an unusual relationship. He was on trial for CSC-I, 

and the jury could not find him guilty merely because of an unusual relationship. Examination 

of counsel’s actions must be “highly deferential” and without the benefit of hindsight, Strickland

v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984), and there is a “strong 

presumption” that counsel’s actions came from “sound trial strategy,” People v Trakhtenberg, 

493 Mich 38, 52; 826 NW2d 136 (2012). This Court must not “substitute [its] judgment for that 

of counsel on matters of trial strategy . . . ” People v Unger, 278 Mich App 210, 242-243; 749 

NW2d 272 (2008). Accordingly, trial counsel was not ineffective for choosing to acknowledge 

the note/letter’s characteristics. 

2. Prior bad acts. 

Next, defendant argues that the prosecutor committed misconduct by eliciting improper 

testimony from a witness regarding defendant’s prior arrest. However, in reviewing the record, 

we cannot conclude that the prosecutor intended to elicit this testimony. The prosecutor 

followed up on a line of questioning that trial counsel himself had engaged in, and, much to the 

chagrin of all involved, the witness stated that her children had previously witnessed defendant 

be arrested. We do not see how the prosecutor could have known that his good faith effort to 

follow up would lead to the impermissible testimony. Good faith efforts cannot constitute 

misconduct. See People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). 

Furthermore, trial counsel immediately objected, the trial court sustained the objection, and an 

instruction was given after the trial instructing the jury not to consider excluded 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). Given the exclusion 

of this testimony, we have no need to address defendant’s additional arguments concerning the 

admissibility of the testimony. Moreover, given that counsel successfully objected, there is no 

basis for a finding of ineffective assistance of counsel. Further, trial counsel had no reason to 

anticipate that this evidence would be presented and thus, there is no basis for defendant’s 

assertion on appeal that counsel should have moved in limine to exclude it. 

3. Improper vouching. 
-5-

Next, defendant argues that the prosecutor improperly vouched for the credibility of his 

witnesses. It is well-established that: 

a prosecutor may not vouch for the credibility of his witnesses by implying that he 

has some special knowledge of their truthfulness. But 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). (internal citations omitted).]

Furthermore, it is improper for a prosecutor to ask a witness to testify about the credibility of 

another witness. People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). In this case, the 

prosecutor asked the fiancé whether the victim was a truthful child. This amounted to improper 

vouching and constituted prosecutorial misconduct. Dobek, 274 Mich App at 71. The issue then 

becomes whether the prosecutor’s misconduct requires reversal of defendant’s convictions and a 

new trial. 

As soon as the question was asked of the fiancé whether the victim was a truthful child, 

defense counsel objected. The trial court sustained this objection and instructed the jury to not 

consider the excluded evidence. “Jurors are presumed to follow their instructions, and it is 

presumed that instructions cure most errors.” Mahone, 294 Mich App at 212. Accordingly, we 

must find such error harmless. 

Defendant also objects, on the basis that such inquiry constituted improper vouching, to a 

line of questioning wherein the prosecutor elicited from the victim that it is better to tell the truth 

than to lie. This Court, in People v Schutte, 240 Mich App 713, 720-721; 613 NW2d 370 (2000), 

overruled on other grounds Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 

177 (2004), held that a prosecutor’s questions did not amount to misconduct calling for reversal 

because the defense had attacked the victim’s credibility by claiming that the victim’s mother 

had caused the victim to fabricate the story. That is virtually the same set of facts presented here. 

On cross-examination defense counsel put forward his theory that the older stepbrother had 

fabricated a story about defendant because, among other reasons, he had a disdain for gay 

people. The same line was inquiry was pursued with other prosecution witnesses. Clearly, 

defendant was attacking the credibility of the victim and putting forth a theory that he fabricated 

his accusations to appease his step-brother or because he knew the defendant was gay. As a 

consequence, we cannot conclude that the prosecutor, by pursing this line of questioning alluded 

to any special knowledge as to why the victim was telling truth. Thomas, 260 Mich App at 455. 

No error is assigned, and defendant is not entitled to relief. 

4. Mischaracterization of Evidence. 

Defendant also takes issue with the prosecutor’s remark during rebuttal in which the 

prosecutor used the word “grooming.” Defendant suggests that in using this word the prosecutor 

mischaracterized the evidence or that the statement was unsupported by the evidence. Defendant 

additionally makes a conclusory argument that an expert witness needed to testify as to what 

“grooming” meant. “A prosecutor may not make a statement of fact to the jury that is 

unsupported by the evidence in the case.” People v Steanhouse, 313 Mich App 1, 36; 880 NW2d 
-6-

297 (2015), rev’d in part on other grounds by People v Steanhouse, 500 Mich 453; 902 NW2d 

327 (2017) (quotation marks and citation omitted). However, the prosecutor did not advance a 

new theory unsupported by the evidence or one that an expert needed to clarify. The 

prosecutor’s statements merely advanced his theory that defendant had “prepared” or “groomed” 

the victim for the offenses that were eventually committed. The evidence at trial supported each 

of the prosecutor’s statements, and no mischaracterization occurred. Hence, defendant is not 

entitled to relief. 

B. EXTRANEOUS INFORMATION 

Defendant next argues that the jury was improperly exposed to extraneous information in 

the form of a Facebook post that defendant authored. According to defendant, even though this 

Facebook post was never admitted into evidence, the trial court granted the jury’s request to see 

it during its deliberations. Whether a jury was exposed to extraneous information has a 

constitutional implication, see People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997), and 

constitutional questions are ordinarily reviewed de novo, People v Shenoskey, 320 Mich App 80, 

82; 903 NW2d 212 (2017). However, defendant failed to preserve this issue for appeal, and we 

review unpreserved issues for plain error affecting substantial rights. Carines, 460 Mich at 763-

764. 

“A defendant tried by jury has a right to a fair and impartial jury.” Budzyn, 456 Mich at 

88. “Where the jury considers extraneous facts not introduced in evidence, this deprives a 

defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied 

in the Sixth Amendment.” Id. To show that a jury improperly considered extraneous facts and 

that reversal is warranted, the defendant must show that: (1) “the jury was exposed to extraneous 

influences,” and (2) “these extraneous influences created a real and substantial possibility that 

they could have affected the jury’s verdict.” Id. at 88-89. For the second of these elements, the 

defendant typically “will demonstrate that the extraneous influence is substantially related to a 

material aspect of the case and that there is a direct connection between the extrinsic material and 

the adverse verdict.” Id. at 89. “[I]n determining whether the extrinsic influence created a real 

and substantial possibility of prejudice,” factors that this Court may consider include:

(1) whether the material was actually received, and if so how; (2) the length of 

time it was available to the jury; (3) the extent to which the juror discussed and 

considered it; (4) whether the material was introduced before a verdict was 

reached, and if so at what point in the deliberations; and (5) any other matters 

which may bear on the issue of the reasonable possibility of whether the extrinsic 

material affected the verdict. [Id. at 89 n 11 (quotation marks and citation 

omitted).] 

The burden to show these two elements rests with the defendant. Id. at 89. Once a defendant 

meets the burden, the burden shifts to the prosecution, which must show that the error was 

harmless beyond a reasonable doubt. Id. Harmless error may be shown “by proving that either 

the extraneous influence was duplicative of evidence produced at trial or the evidence of guilt 

was overwhelming.” Id. at 89-90 
-7-

In the present case, trial counsel failed to object to the trial court’s course of action; in 

fact, the trial court twice asked trial counsel if he had any objection to giving the jury what it 

requested, and trial counsel stated that he had no objection. Trial counsel acquiesced to the trial 

court’s actions. “A defendant may not waive objection to an issue before the trial court and then 

raise it as an error before this Court. To hold otherwise would allow defendant to harbor error as 

an appellate parachute.” People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199 (1998) 

(internal citation omitted). Furthermore, on the merits, defendant’s claim does not warrant

reversal. Assuming that the jury was exposed to extraneous information, defendant fails to

“demonstrate that the extraneous influence is substantially related to a material aspect of the case 

and that there is a direct connection between the extrinsic material and the adverse verdict.” 

Budzyn, 456 Mich at 89. 

During trial, the prosecution had used a Facebook post to impeach defendant’s testimony, 

specifically calling into question whether he had referred to the victim’s step-brother as “a little 

ass***.” While the Facebook post may have cast defendant in an unflattering light, we are not 

convinced that it was material or directly connected to the verdict. Defendant notes only that it 

was extraneous information, and fails to advance any substantive analysis connecting it to the 

verdict. Further, based on those portions that we can glean from the trial court record, the post

was not severely inflammatory or highly prejudicial evidence. As stated before, it merely cast 

defendant in a somewhat less than ideal light in that he called a 13-year-old child, “a little 

ass****.” There is little, if any basis for asserting that this would have influenced the jury so as 

to affect the outcome, especially given the other evidence available to them. Hence, defendant 

has failed his burden to show that the post was “substantially related to a material aspect of the 

case and that there is a direct connection between the extrinsic material and the adverse verdict.” 

Budzyn, 456 Mich at 89.

Moreover, in our analysis we presume that the jury received and considered the 

Facebook post. Hence, defendant is not entitled to a remand to inquire whether the jury actually 

received the Facebook post because we have addressed the issue on its merits presuming that the 

jury had received and considered the complained of evidence. Accordingly, defendant is not 

entitled to any relief on this issue. 

Affirmed. 

/s/ Stephen L. Borrello

/s/ Douglas B. Shapiro

/s/ Michael J. Riordan