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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CORY DOUGLAS FRITZ, Defendant-Appellant.

UNPUBLISHED June 28, 2012

No. 301411 Tuscola Circuit Court LC No. 09-011320-FH

Before: JANSEN, P.J., and CAVANAGH and HOEKSTRA, JJ. PER CURIAM. Defendant was convicted by a jury of five counts of criminal sexual conduct, thirddegree, MCL 750.520d(1)(a) (victim between the ages of 13 and 16) (CSC III). Defendant was sentenced to serve 10 to 15 years in prison for each count and now appeals by right. We affirm. I. SUFFICIENCY OF THE EVIDENCE Defendant argues that the prosecution did not present sufficient evidence to support his convictions. We disagree. We review de novo challenges to the sufficiency of the evidence.1 We must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.2 "A person is guilty of [CSC III] if the person engages in sexual penetration with another person and . . . [t]hat other person is at least 13 years of age and under 16 years of age."3

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People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Id. at 196. MCL 750.520d(1)(a).

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Defendant claims that the prosecution failed to establish that the complainant was between the ages of 13 and 15 years old when he engaged in sexual intercourse with her. Defendant's argument focuses primarily on a portion of the complainant's testimony from the preliminary examination in which the complainant discussed what type of car she drove while engaged in the relationship with defendant. Specifically, at defendant's preliminary examination, the following exchange occurred between defense counsel and the complainant: Q. You drove a black Taurus during the time you were in a dating relationship with my client, true? A. No, green. However, the complainant testified at trial that she did not buy the Taurus or drive until she was 16. When asked by defense counsel whether she recalled previously testifying that she was driving the Taurus while dating defendant, the complainant explained that she misunderstood the question, and meant only to clarify that while she did own a Taurus when she was 16, it was green, not black, and not that her relationship with defendant began when she was 16. In essence, defendant's argument is that his testimony is more credible than the complainant's. However, this Court must make "credibility choices in support of the jury verdict,"4 and must defer to the jury's superior ability to assess the credibility of witnesses.5 The jury apparently found the complainant's explanation credible, and reversal is unwarranted simply because there was some inconsistent testimony presented at trial. Moreover, even if the complainant's testimony is understood to mean that she drove a green Taurus during her dating relationship with defendant, it does not establish that she was over sixteen when the sexual activity first took place. The complainant testified that the last time she and defendant went on a date was February 24, 2007. At that point she had been 16 for three months. By defendant's own admission, the two dated for a year. Accordingly, she would have been driving the Taurus "during the time" she and defendant were dating. Further, the overwhelming weight of the other testimony offered at trial, including most of the complainant's testimony, the testimony of two of her softball teammates, as well as defendant's own written statement, established that the complainant was 14 years old when she first became sexually involved with defendant. In the written statement, provided by defendant to the investigating detective, and read into evidence at trial, defendant claimed that he had started dating the complainant in "May of 2005 . . . [when] I was 22 and [the complainant] was 14. I was dating [her] for one year." The only explanation defendant offers regarding why his written statement is in error is his claim that "he was given the wrong year for a frame of reference" by the investigating detective. However, the detective testified that he did not give

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People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).

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defendant guidance regarding what to write, nor did defendant make any attempt to clarify his confusion regarding the complainant's age while writing his statement. Accordingly, the prosecution presented sufficient evidence to support the verdict. II. FAIR TRIAL Defendant next argues that he was denied his right to a fair trial by the circuit court's refusal to admit a photograph he offered at trial as evidence. We disagree. "A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion."6 "An abuse of discretion occurs when the trial court chooses an outcome that falls outside the permissible range of principled outcomes."7 Defendant claims that the photograph depicts him and the complainant from behind at a concert they attended together in June 2006, during the time the complainant was pregnant, according to her testimony. According to defendant, the photograph shows that the complainant was not pregnant on the date of the concert and that she had worn a "skintight strapless tank top" that day, contrary to testimony that she wore only baggy clothes during her pregnancy. Defense counsel originally produced the photograph during his cross examination of the complainant and asked her whether the people in the photograph were her and defendant. The complainant denied that the photograph depicted her and defendant. Later, during direct examination of defendant, defense counsel sought to admit the photograph. The prosecution objected, noting that "[defense] counsel indicated any exhibits . . . were only going to be for impeachment purposes." The court denied admission of the photograph on the basis that the discovery rules had been violated. Defense counsel countered that the photograph was "offered obviously for impeachment." The trial court responded, "[r]ight. . . . If you have had any impeachment, it's occurred." On appeal, defendant argues that because the evidence was "rebuttal in nature," the discovery rules do not apply, and the trial court erred by excluding the photograph. We note that defendant does not offer citations to any authority to support the assertion that because the photograph was offered as rebuttal evidence, the discovery rules do not apply. Accordingly, he has abandoned this argument.8 Moreover, this argument lacks merit. MCR 6.201(H) provides that "[i]f at any time a party discovers additional information or material subject to disclosure under this rule, the party, without further request, must promptly notify the other party." MCR 6.201(A)(6) provides that "a party upon request must provide . . . a description of and an opportunity to inspect any tangible physical evidence a party intends to introduce at trial, including any . . . photograph." In its discovery request, the prosecution sought admission of "[a]ny book, paper, document, picture, or tangible object the defendant intends to

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People v Brown, 294 Mich App 377, 385; 811 NW2d 531 (2011). Id. See People v Huffman, 266 Mich App 354, 371; 702 NW2d 621 (2005).

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offer in evidence, or that relates to the testimony of any witness, other that the defendant, that the defense intends to call at trial."9 Because he had not previously provided the photograph to the prosecution, defense counsel's attempt to introduce the photograph as substantive evidence on direct examination of defendant violated the discovery rules. When the photograph was offered as impeachment evidence, because the photo only serves to contradict the complaint's testimony, it was collateral to an issue of consequence, and because the collateral matter was brought forth during the complainant's cross-examination, defendant must take her answer, which was that the photograph did not depict her and defendant.10 Accordingly, the trial court did not abuse its discretion when it ruled that the photograph was inadmissible. III. PROSECUTORIAL MISCONDUCT Following the prosecutor's closing argument, defense counsel asked the court for a curative instruction based on the prosecutor's alleged improper characterization of defendant's written statement and oral statements to police during his interview as confessional in nature. The court denied the request. Defendant argues that the court's decision denied him his right to a fair trial because his written statement was not a confession because defendant did not state specifically that the five sexual encounters he admitted to having with the complainant occurred before her sixteenth birthday. We disagree. This Court reviews de novo claims of prosecutorial misconduct.11 "An admission of fact is distinguished from a confession of guilt by the fact that an admission, in the absence of proof of facts in addition to those admitted by the defendant, does not show guilt."12 "If . . . the fact admitted does not of itself show guilt but needs proof of other facts, which are not admitted by the accused, in order to show guilt, it is not a confession, but an admission . . . ."13 Defendant's redacted written statement was read into evidence at trial by the officer who had interviewed him. Despite defendant's argument at trial and on appeal that he was confused about the timing and dates of his relationship with the complainant, his statement, as read at trial, does not show signs of any such confusion. According to the record, defendant admitted that he began "hanging out" with the complainant during the "second week [of] January 2005 when she reported for practice . . . . In May of 2005 I began dating [the complainant]. I was 22 and [she] was 14[;] I was dating [her] for one year."

The language of the discovery request tracks almost exactly the language of MCL 767.94a(1)(d), which governs disclosure of evidence to the prosecution by the defense.
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1 McCormick, Evidence,

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