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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 3, 2015

v No. 318219
Shiawassee Circuit Court JOHN LUKE WEBB, JR, LC No. 12-003682-FH

Defendant-Appellant.

Before: S HAPIRO , P.J., and G LEICHER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of three count s of third-degree criminal sexual conduct (CSC III), MCL 7 50.520d(l)(a) (victim 13 to 15 y ears old). Defendant was sentenced to concurrent prison terms of 78 to 180 months on eac h count. Defendant appeals as of right and we affirm.

Defendant and the victim became acquainted at the school they both attended. Eventually, defendant began to visit the victim’s home. The vi ctim testified that defendant started to abuse him in 2010. He explained that on many occasi ons, defendant would anally and orally penetrate him, usually in the victim’s bedroom. Eventua lly, the victim reported the abuse to his parents, who in turn r eported it to the police.

Defendant’s sole argument on appeal is that the trial court ab used its discretion in denying his motion for mistrial. 1 He argues that a prosecution witness impermissibly vouched for the credibility of the victim and that the trial court abus ed its discretion by denying his
motion for a mistrial on this basis.

1 A trial court’s decision to grant or deny a motion for mistria l is reviewed for an abuse of
discretion. People v Dennis , 464 Mich 567, 572; 628 NW2d 502 (2001). A trial court abuses its discretion when a decision falls beyond the range of principled outcomes. People v Feezel , 486 Mich 184, 192; 783 NW2d 67 (2010). A motion for mistrial shoul d be granted only if an irregularity occurs that is so prejudicial to the defendant’s r ights that it deprives him of a fair
trial. People v Haywood , 209 Mich App 217, 228; 530 NW2d 497 (1995).-2- As a general rule, a witness cannot vouch for another person’s credibility because credibility determinations are reserved for the jury. People v Dobek

, 274 Mich App 58, 71; 732 NW2d 546 (2007). A defendant is not, however, permitted to com plain that testimony “served to vouch for a complainant’s credibility when he allowed and in fa ct drew out the response.” People v Beckley , 434 Mich 691, 731; 456 NW2d 391 (1990). “To hold otherwise w ould allow defendant an appellate parachute to escape conviction because o f damaging testimony that turns the tide toward believability of t he complainant’s allegations. ” Id

.

In this case, the victim underwent a forensic interview. The interviewer was called to testify by the prosecution. On cross-examination, she was aske d how the victim “was” when interviewed and responded that she found him “forthcoming,” “cr edible,” and “truthful.” In support of the motion for a mistrial, defense counsel argued th at this reply was unresponsive because he did not ask about complainant’s credibility, but “wa s getting to the point where she was explaining that some victims were subdued, some victims wer e sheepish, some victims didn’t want to talk about it, etc.” In Beckley , 434 Mich at 730-731, defense counsel asked an expert witness if she had seen anything in that case that was i nconsistent with sexual abuse. The Supreme Court held that such a question “left open the possibil ity that the expert would respond negatively and in a manner that c ould be construed as an expert conclusion with regard to the truthfulness of the victim’s allegations.” Id . The Supreme Court held that, because defense counsel “in fact drew out the response” that he later claimed c onstituted an impermissible
comment on the victim’s credibili ty, the defendant was not enti tled to reversal. Id . at 731-732. Similarly, in this case, defense counsel asked a question that left open the possibility that the interviewer might respond in a manner that could be construed a s a conclusion with regard to the truthfulness of the victim. That defense counsel may have expe cted a different response does not make the witness’s testimony unresponsive nor entitle defendant to reversal.

In any event, the trial court instructed the jury on the improp riety of testimony by a witness “on another person,” and s pecifically struck the forens ic interviewer’s testimony regarding the credibility and tr uthfulness of the victim’s stat ements. Jurors are presumed to follow a court’s instructions, People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998), and, accordingly, defendant is not entitled to relief. 2

2 We reject defendant’s claim t hat this case is controlled by People v Musser , 494 Mich App 337; 835 NW2d 319 (2013). Defendant argues that Musser stands for the proposition that any comment by a witness on the cre dibility of another person is im proper and grounds for a mistrial. This misstates the holding. The Supreme Court, specifically ch oosing not to adopt a bright-line rule, held that where the proponent offers an interrogator’s ou t-of-court statements in an interrogation that comment on a person’s credibility for the pu rpose of providing context to the defendant’s responses, these statements are only admissible to the extent they are offered for that

purpose. Id . at 354, 365-366. Unlike Musser

, this case involves a witnes s’s in-court response to defense counsel’s own question. Further, the curative jury ins tructions in Musser were unclear at best, a situation not present in defendant’s case.-3- Affirmed.

/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher /s/ Amy Ronayne Krause