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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 22, 2017

v No. 331125 Branch Circuit Court STEVEN ERIC SHAW, LC No. 15-061537-FC

Defendant-Appellant.

Before: T ALBOT , C.J., and B ECKERING and M. J. K ELLY , JJ.

P ER C URIAM

. Defendant, Steven Eric Shaw, was convicted by a jury of first- degree child abuse 1 and felony murder 2 and sentenced to 23 years and 9 months to 50 years’ imprisonme nt for the firstdegree child abuse conviction and life imprisonment without the possibility of parole for the felony-murder conviction. Shaw a ppeals as of right. We affirm

. This matter arises from the death of Carson Burm on May 30, 20 14, which resulted from injuries Carson suffered while i n Shaw’s care on May 29, 2014. The evidence showed that when Carson’s mother, Laura Kidney, left for work around 11:30 a.m. on May 29, 2014, Carson was apparently in good health. Shortly thereafter Kidney’s tempora ry house guest, Kara McDowell, came to the apartment to pick up her three-year-old daughter, K M, and gather their belongings, as McDowell intended to move out that day. McDowell testified that she was at the apartment for approximately 10 to 15 minutes and that, when she left, Car son was in his bouncy seat in the living room and did not appear to be in distress. Carson’s alm ost three-year-old sister, PB, was also in the living room.

Testifying in his own defense, Shaw estimated that McDowell sp ent approximately 15 to 20 minutes gathering her belongings and recalled that McDowell asked him to contact one of his friends on her behalf before she left. He did not have any cre dit on his prepaid cellphone, so he stepped outside to access the neighbor’s WiFi connection in ord er to make the call. According to Shaw, McDowell was alone with the children while he was outside and was ready to leave when

1 MCL 750.136b(2).

2 MCL 750.316(1)(b).-2- he returned. Shaw was unsure how Carson appeared at this point because Carson was situated behind him as he spoke with McDowell.

Shaw explained that after McDowell left he moved between the k itchen and living room, trying to get a snack for PB and something for himself to eat. He eventually noticed that Carson seemed tired and removed Carson from the bouncy seat, placing h im upright on a blanket on the living room floor. However, Shaw repositioned Carson onto his stomach because Carson was “acting kind of wobbly” and did not look like he would sit up i ndependently. Around 12:30 or 12:45 p.m., Shaw decided to put Carson down for a nap in the ma in bedroom. When Shaw returned to the bedroom approximately 20 minutes later, Carson had “white stuff” coming from his mouth and nose a nd did not appear to be breathing. Unable to wake Carson, Shaw called 911 and performed CPR until first responders arrived at the apartme nt.

Carson was taken to Community Health Center of Branch County a nd then transferred to Bronson Methodist Hospital, but the emergency physicians were u nable to revive him. Various medical experts testified that Car son’s injuries included subar achnoid and subdural bleeding inside his skull, retinal hemorrhages, and multiple skull fract ures presenting in a complex and extensive fracture pattern in the posterior area of his head. CT and x-ray imaging also revealed that Carson had a fracture on th e left side of his clavicle and chipped fractures at the ends of both femurs.

For his first claim of error, Sha w argues that the trial court erred by denying his motion for a new trial or Ginther 3 hearing. Shaw contends that, at minimum, a Ginther hearing was warranted because he submitted an offer of proof in the form of an affidavit outlining deficiencies in defense counsel’s performance which required ex pansion of the record to allow proper review. We disagree.

This Court reviews a trial court’s decision regarding whether to hold an evidentiary hearing for an abuse of discretion, which occurs “when the cour t chooses an outcome that falls outside the range of reasonabl e and principled outcomes.” 4 A defendant seeking a new trial on the basis of ineffective assist ance of counsel must demonstrate 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.” 5 Because it is incumbent upon the defendant to demonstrate “both deficient performance and prejudice, the defendant necessarily bears the burden of establ ishing the factual predicate for his claim.” 6 Where the defendant’s ineffec tive assistance of counsel claim rests on facts outside the record, an evidentiary hearing may be warranted to further deve lop the record for review. 7

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).

4 People v Unger , 278 Mich App 210, 216-217; 749 NW2d 272 (2008).

5 People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012).

6 People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

7 People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999), quoting Ginther , 390 Mich at 442-443.-3- However, an evidentiary hearing is not required when the defend ant fails to demonstrate that factual development of the record would advance his claim. 8 Although it is true that some of the concerns raised by Shaw depend on facts outside of the record, the trial court did not abuse its discretion in denying Shaw’s requ est for an evidentiary hearing because each instance of purported ineffective assistan ce of counsel could be considered —and rejected—on the existing record.

Shaw first argued that he was de nied the effective assistance of counsel when his first attorney, Eric Goodwin, failed to investigate medical issues or interview witnesses in a timely manner because Goodwin knew he would be retiring before Shaw wa s tried. The extent of Goodwin’s investigation is not discernable from the record, nor are the reasons for his investigative decisions. However, even if Shaw was able to dev elop a record showing that Goodwin unreasonably and intenti onally delayed his investigatio n, it is improbable that that outcome of the trial would have been different had Goodwin proc eeded with more diligence. Shaw fails to point to any evidence or tactical advantage that was lost as a result of the delay and his trial attorneys were ultimately well prepared to challenge the prosecution’s case. Accordingly, further factual development regarding this issue w ould not have advanced Shaw’s claim.

Next, Shaw argued that he was denied the effective assistance of counsel because the substitution of counsel following Goodwin’s retirement effectiv ely deprived him of the right to a speedy trial. This issue did not require factual development b ecause it lacked merit as a matter of law. It is the s tate, and not defense counsel, that is cons titutionally required to ensure criminal defendants are brought to trial in a timely manner. 9 In any event, Shaw was arrested on June 2, 2014, and brought to trial on Octobe r 6, 2015. Because the del ay between his arrest and trial was under 18 months, Shaw’s speedy trial claim required proof of pr ejudice resulting from the delay 10 and, as already noted, Shaw failed to allege in what manner he was prejudiced by the pretrial delay.

Next, Shaw averred that his substitute counsel, Terri Norris, rendered ineffective assistance because she was emotionally unfit to represent him. According to Shaw, before sentencing Norris disclosed to him that she could not effective ly represent him because she was prejudiced against his case, having recently obtained custody o f her grandson as a result of child abuse. However, the record cont radicts Shaw’s assertion that N orris felt she had rendered ineffective assistance. At sen tencing, Norris said, “I believe that myself and Mr. Bucklin have aggressively defended [Shaw],” and opined that they made it cle ar at trial that they supported Shaw’s position. Moreover, even if the record reflected that N orris was personally involved in legal proceedings stemming from allegations of child abuse, tha t fact would not further Shaw’s ineffective assistance of counsel claim because it does not app ear that Norris’s personal life affected the outcome of the trial. Shaw was represented at tri al by two attorneys—Norris and

8 People v Williams , 275 Mich App 194, 200; 737 NW2d 797 (2007).

9 Barker v Wingo , 407 US 514, 527; 92 S Ct 2182; 33 L Ed 2d 101 (1972).

10 People v Waclawski , 286 Mich App 634, 665; 780 NW2d 321 (2009).-4- Ryan Bucklin—and he does not contend that Bucklin’s performance was affected by Norris’s potential conflict of interests. Additionally, as already note d, Shaw’s trial attorneys were well prepared and presented a reasonable defense.

Finally, Shaw argued that he was denied the effective assistan ce of counsel because his attorneys failed to conduct pretr ial investigation regarding th e medical component of his case. In support of this argument, Shaw also offered an article from a m edical journal, which discusses the frequent misdiagnosis of traumatic head injuries in infants as shaken baby syndrome. This argument did not require factual development because it was cle ar from the record that Shaw’s attorneys did, in fact, conduct a thorough investigation into t he medical evidence that would be presented against Shaw. Norris and Bucklin consulted with reno wned pathologist Dr. Werner Spitz, called him as an expert witness at Shaw’s trial, and int elligibly cross-examined the prosecution’s expert witnesses. Additionally, the scholarly ar ticle relied upon by Shaw has little bearing on his case because the prosecution did not contend tha t Carson had been injured by excessive or violent shaking. Indeed, each of the medical expe rts agreed that the complex fractures to Carson’s skull were caused by a blunt force impact , and Dr. Spitz specifically explained that the medical comm unity no longer views retinal he morrhages like those suffered by Carson as indicative of an injury caused by shaking. Becaus e further factual development would not have advanced Shaw’s various claims of ineffective as sistance of couns el, the trial court did not abuse its discre tion by denying Shaw’s motion for a Ginther hearing.

For his next claim of error, Shaw challenges the sufficiency o f the evidence presented against him, arguing that the prosecution failed to prove beyon d a reasonable doubt that he was the person who caused Carson’s fatal injuries. We disagree.

This Court reviews ch allenges to the sufficiency of the eviden ce de novo. 11 The evidence is viewed “in the light most favorable to the prosecution to de termine whether a rational trier of fact could find that the eviden ce proved the essential elements of the crime beyond a reasonable doubt.” 12 In making this determination, the Court must not interfere wi th the factfinder’s role of “determining the weight of the e vidence or the credibility of w itnesses.” 13

“[I]t is well settled that identity is an element of every of fense.” 14 But like other essential elements of a crime, the prosecution can present suff icient evidence of the defendant’s

11 People v Henry (After Remand) , 305 Mich App 127, 142; 854 NW2d 114 (2014).

12 Id ., quoting People v Harverson , 291 Mich App 171, 175; 804 NW2d 757 (2010) (quotation marks omitted).

13 People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

14 People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008).-5- identity as the perpetrator by way of circumstantial evidence. 15 Moreover, “the prosecutor need not negate every reasonable th eory consistent with innocence.” 16

The prosecution presented sufficient evidence from which a rat ional jury could conclude beyond a reasonable doubt that Shaw caused Ca rson’s injuries. It was essentially undisputed that Carson suffered a blunt force injury to the head and that the i mpact would have required significant force to cause the fra cture pattern seen on Carson’ s skull. The prosecution’s experts explained that in the absence of a reasonable explanation regar ding the mechanism of the injury, it was probable that the injuri es were caused by some type of n onaccidental trauma. The prosecution also presented evidence showing that Shaw, Carson, and PB were the only people in the apartment in the approximately 60 minutes proceeding Carson ’s loss of consciousness and that it was improbable that a two- to three-year-old toddler wo uld be capable of inflicting the magnitude of injuries that Carson sustained. Viewing this evid ence in the light most favorable to the prosecution, a rational jury could find that the prosecutio n proved beyond a reasonable doubt that Shaw inflicted Carson’s injuries and was, therefore, guilt y of first-degree child abuse and felony murder.

Next, Shaw argues that autopsy photographs presented by the pr osecution should have been excluded from evidence under MRE 403 because they were unf airly prejudicial. We disagree.

To preserve a claim that evidence was improperly admitted at tr ial, the party challenging the evidence must object at the time of admission. 17 Before each of the autopsy photographs were admitted at trial, defense counsel indicated that she had no objections to the proffered evidence. Thus, this issue is not preserved for appeal. “A de fendant pressing an unpreserved claim of error must show a plain error that affected substantia l rights, and the reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public r eputation of judicial proceedin gs.” 18 Moreover, defense counsel’s acquiescence to admission of the photographs effectively waived appellate review of this issue because there is no error to review when, rather than forfeitin g an issue by failing to assert a right in a timely manner, the defenda nt waives an issue by intentiona lly relinquishing a known right. 19 In any event, even if this unpreserved issue had not been waive d at trial, Shaw’s argument lacks merit.

15 People v Nelson , 234 Mich App 454, 459; 594 NW2d 114 (1999) (“Circumstantial e vidence and reasonable inferences arising therefrom may be sufficient t o prove the elements of a crime.”).

16 People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000).

17 People v Knox , 469 Mich 502, 508; 674 NW2d 366 (2004).

18 People v Parker , 288 Mich App 500, 509; 795 NW2d 596 (2010), citing People v Carines

, 460 Mich 750, 763; 597 NW2d 130 (1999).

19 People v Dobek , 274 Mich App 58, 65; 732 NW2d 546 (2007).-6- Like other evidence, photographs are generally admissible at tr ial if they are relevant under MRE 401, 20 which provides that evidence is relevant if it has “any tenden cy to make the existence of a fact that is of consequence to the action more p robable or less probable than it would be without the evidence.” 21 But under MRE 403, ev en relevant evidence may be excluded at the trial court’s discretion “if its probative value is subs tantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the ju ry, or by considerations of undue delay, waste of time, or needless presentation of cumulative ev idence.” 22 “Unfair prejudice may exist where there is a danger that the evidence will be given u ndue or preemptive weight by the jury or where it would be inequi table to allow use of the evide nce.” 23

Shaw argues that he was unfairly prejudiced by the admission o f cumulative and gruesome autopsy photographs at trial. This argument lacks mer it because it fails to recognize that the admissibility of evidence under MRE 403 does not turn solely on the possible prejudicial effect of proposed evidence. Because the probative value of th e evidence challenged by Shaw was not substantially outweighe d by the danger of unfair prejud ice, MRE 403 did not mandate its exclusion.

The photographs depicted Carson’s injuries and were relevant to whether Shaw knowingly or intentionally caused serious physical harm to Cars on—an essential element of the prosecution’s case. 24 By enabling the jury to visualize the severity of Carson’s in juries, the images made it more probable that Carson’s injuries were inflic ted intentionally. That fact was particularly important here because none of the witnesses testi fied from personal knowledge regarding the mechanism by which Carson was injured. Moreover, evidence demonstrating the magnitude of Carson’s injuries was necessary to rebut various t heories presented by the defense, namely, that Carson’s injuries could have been caused accidenta lly or by Carson’s young sister. Additionally, the photographs were helpful in corroborating the lengthy medical testimony concerning Carson’s injuries and allowed the medical experts to illustrate the bases for their opinions.

Although graphic images undoubtedly present a risk of being gi ven undue weight by the jury, photographic evidence need not be excluded simply because of its gruesome nature. 25 That is, “if photographs are otherwise admissible for a proper purpo se, they are not rendered

20 People v Gayheart , 285 Mich App 202, 227; 776 NW2d 330 (2009).

21 People v Aldrich , 246 Mich App 101, 114; 631 NW2d 67 (2001).

22 People v Blackston , 481 Mich 451, 461; 751 NW2d 408 (2008).

23 Id . at 462, quoting People v Mills , 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod on other grounds by 450 Mich 1212 (1995).

24 See People v Gould , 225 Mich App 79, 87; 570 NW2d 140 (1997) (“The elements of fi rstdegree child abuse are (1) the person, (2) knowingly or intenti onally, (3) causes serious physical or mental harm to a child.” (Footnotes omitted)).

25 Gayheart , 285 Mich App at 227.-7- inadmissible merely because they bring vividly to the jurors th e details of a gruesome or shocking accident or crime, even though they may tend to arouse the passion or prejudice of the jurors.” 26 Likewise, “[p]hotographs are not excludable simply because a witness can orally testify about the information contained in the photographs.” 27 Here, it does not appear that the risk of unfair prejudice presented by the photographs substanti ally outweighed their significant probative value. Thus, the admi ssion of the images at Shaw’s t rial did not amount to plain error.

Next, Shaw argues that he was unfairly prejudiced by improper comments made by the trial court and the prosecution dur ing voir dire. We disagree.

A party challenging judicial conduct before a jury must preserv e the issue for review by objecting in the trial court. 28 Likewise, a defendant must timely and specifically object to an alleged prosecutorial error and re quest a curative instruction to preserve the issue for review. 29 Shaw failed to raise an objection to either of the challenged r emarks in the trial court and, thus, failed to preserve this issue for review. Because this issue i s unpreserved, this Court’s review is limited to plain error affecting substantial rights. 30 To establish that a plain error affected substantial rights, “there must be a showing of prejudice, i.e. , that the error affected the outcome of the lower-court proceedings.” 31 Reversal is only warranted on the basis of a plain error if t he error “led to the conviction of an innocent defendant or seriou sly affect[ed] the fairness, integrity or public reputation of j udicial proceedings . . . .” 32

A trial judge’s conduct may depri ve a defendant of a fair tria l when, “considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or p artiality against a party.” 33 Similarly, “[a] defendant’s opportunity for a fair trial can be jeopardized when the prosecutor interjects issues br oader than the defe ndant’s guilt or innocen ce.” 34

Shaw argues that remarks made by the trial court and the prosec ution during voir dire appealed to the jurors’ sympathy and, thus, interfered with his right to a fair trial by an impartial jury. Specifically, the trial court said: “[A]nytime that ther e’s a passing away of someone, there’s going to be grief. And anytime that there’s a passing away of a child, I think it strikes a

26 Mills , 450 Mich at 77, quoting 29 Am Jur 2d, Evidence, § 787, pp 860 -861.

27 Mills , 450 Mich at 76.

28 People v Sardy , 216 Mich App 111, 118; 549 NW2d 23 (1996).

29 Unger , 278 Mich App at 234-235.

30 People v Jackson , 292 Mich App 583, 597; 808 NW2d 541 (2011).

31 People v Vandenberg , 307 Mich App 57, 61; 859 NW2d 229 ( 2014) (citation omitted).

32 Id . at 61-62 (citation and quotation marks omitted) (alteration i n original).

33 People v Stevens , 498 Mich 162, 171; 869 NW2d 233 (2015).

34 Dobek , 274 Mich App at 63-64.-8- cord with everyone’s mental and emotional aspects of life. If it didn’t, I don’t think we’d be alive inside.” Shortly thereafter, the prosecution remarked: “ And like the judge said, we’re all human beings. And it’s certainly okay to feel empathy for the child. It’s certainly okay to be disturbed of the photographs and things like that. We all are. ” Viewed in context, it is clear that neither of these comments were improper. In both instances, th e challenged remarks merely acknowledged the obvious emotiona l element of the subject matte r and were followed by instructions that th e case should be determined based upon logi c, reason, and the evidence presented, rather than an emoti onal reaction to the subject. B ecause both comments were proper, Shaw has failed to demonstrate a plain error affecting his subs tantial rights.

Next, Shaw raises a vague evide ntiary error stemming from the a dmission of evidence suggesting that Carson may have suffered a previous injury to h is clavicle, relying on People v Knox 35 in support of his claim of error. 36 Because Shaw raises this issue for the first time on appeal, it is unpreserved. 37 “A defendant pressing an unpreserved claim of error must show a plain error that affected substantial rights, and the reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” 38 Although the factual circumstances at issue in Knox are strikingly similar to those presented in Shaw’s case, Knox does not support Shaw’s claim of

error.

In Knox , the prosecution presented a circumstantial case against the d efendant, contending that he must have caused his infant son’s fatal inju ries because he was the only person in the apartment at the relevant time who was physically capable of inflicting the degree of harm the child sustained. 39 The Supreme Court reversed the defendant’s felony-murder and first-degree child abuse convictions based, in part, on an erro r involving evidence of the victim’s prior injuries. 40

However, despite the factual parallels between the two cases, Knox is distinguishable in an important aspect. In pertinent part, the Knox Court explained,

[W]e agree with both the Court of Appeals majority and the diss ent that the signs of past physical abuse of the child were relevant to prove that his subsequent fatal

35 Knox , 469 Mich 502.

36 Shaw also refers to several rules of evidence governing the ad missibility and presentation of character evidence. However, to the extent that Shaw argues ev idence of Carson’s prior injury amounted to improper character evidence, his argument lacks mer it because such evidence did not relate to his character or t he character of any other witne ss.

37 Knox , 469 Mich at 508.

38 Parker , 288 Mich App at 509, citing Carines , 460 Mich at 763.

39 Knox , 469 Mich at 504-506, 513.

40 Id . at 514-515.-9- injuries were not inflicted accide ntally. We concur, however, with the dissent that the trial court committed error requiring reversal in permittin g the prosecutor to use this evidence for an improper purpose. The prosecutor intr oduced the evidence of prior injury not onl y to show that the earlier even ts were abusive, but also to convince the jury that defendant had caused those prior injuries, despite the absence of any evidence that defendant had committed the pa st abuse. [41]

By contrast, unlike the prosecutor in Knox , the prosecution in this case did not argue to the jury that Shaw was responsible for Car son’s previous clavicle fractu re. In fact, in closing arguments, the prosecution hypothesized that Shaw “broke for some reason” and suggested that he may have “snapped” on the day Carson was injured. These arguments imply that Shaw’s actions involved an isolated incident and, thus, di d not rely on an improper pro pensity theory in v iolation of MRE 404(b). Accordingly, Shaw is not e ntitled to relief on this ba sis.

Lastly, Shaw argues that he was denied the right to a fair tri al when the prosecution’s rebuttal witness, police officer Derek Coats, was permitted to remain in the courtroom despite a sequestration order. We disagree.

Shaw failed to raise this issue in the trial court. As such, it is unpreserved. 42 “A defendant pressing an unpreserved claim of error must show a pl ain error that affected substantial rights, and the review ing court should reverse only when the defendant is actually innocent or the error seriously a ffected the fairness, integrit y, or public reputation of judicial proceedings.” 43

Shaw’s argument lacks merit for several reasons, most notably because it is unsupported by the record. Although it is unclear whether Officer Coats wa s actually subject to the sequestration order, 44 at the conclusion of his testimony in the prosecution’s case-i n-chief, the court agreed that Officer Coats c ould remain in the courtroom t o observe the proceedings. Thus, even if Officer Coats was included in the initial sequestration order, he remained in the

41 Id . at 513.

42 People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007) (“For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court.”).

43 Parker , 288 Mich App at 509, citing Carines , 460 Mich at 763.

44 At the outset of the trial, th e court raised t he issue of witn ess sequestration, as contemplated by MRE 615. In response, the prosecution indicated that it had no objection to a sequestration order, but qualified its acquiescence by saying, “[o]ther than the investigative police officer.” The prosecution then explained t hat the other people in the cou rtroom with an interest in the case would not be called to testify, and the court said, “All right. ” Although Officer Coats was not identified by name at trial, the district court excluded Office r Coats from an earlier sequestration order after the prosecution identified him as “the court office r” at Shaw’s preliminary examination.-10- courtroom on the second day of trial with the court’s knowledge and consent. Thus, it does not appear that he violated t he sequestration order.

Moreover, “[t]he purposes of sequestering a witness are to pre vent him from coloring his testimony to conform with the testimony of another and to aid i n detecting testimony that is less than candid.” 45 Shaw takes issue with the trial court’s decision to allow Off icer Coats to testify as a rebuttal witness, but the re is no indication that Officer Coats’s rebuttal testimony was tainted by his exposure to other testimony or evidence. In fact, the s cope of Officer Coats’s rebuttal testimony was limited to refuting portions of Shaw’s own testim ony, which Officer Coats expressly indicated he was not present for. As such, there is no reason to believe that Officer Coats’s rebuttal testimony was colored by Shaw’s testimony and the trial court did not err by allowing the prosecution to call Officer Coats as a rebuttal wi tness.

Affirmed.

/s/ Michael J. Talbot /s/ Jane M. Beckering /s/ Michael J. Kelly

45 People v Meconi , 277 Mich App 651, 654; 746 NW2d 881 (2008) (quotation marks a nd citations omitted).