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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CRAIG BRYANT, Defendant-Appellant.

UNPUBLISHED June 20, 2006

No. 261153 Wayne Circuit Court LC No. 04-010487-01

Before: Smolenski, P.J., and Hoekstra and Murray, JJ. PER CURIAM. Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a). Defendant appeals these convictions as of right. We affirm. Defendant first argues that he was denied a fair trial because the prosecution appealed to the jury's sympathy during her opening statement and vouched for the credibility of the victim during closing argument. Because defendant failed to object to the prosecutor's allegedly improper statements at trial, we review these claims of prosecutorial misconduct for plain error. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001), citing People v Carines, 460 Mich 750; 597 NW2d 130 (1999). Thus, to obtain relief defendant must show that there was a plain error that affected his substantial rights, i.e., an obvious error that was outcome determinative. Carines, supra at 763. In evaluating issues of prosecutorial misconduct, this Court must examine the prosecutor's remarks in context to determine if the defendant received a fair trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). A prosecutor may argue the evidence and all reasonable inferences arising from it as they relate to the case, and is not required when doing so to use the "blandest" possible terms. Bahoda, supra at 282; Aldrich, supra at 112. However, a prosecutor may not appeal to the jury to sympathize with the victim. People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). Further, it is improper for a prosecutor to "vouch for the credibility of [her] witness to the effect that [s]he has some special knowledge that the witness is testifying truthfully." Bahoda, supra at 276. A prosecutor may, however, argue that a witness is credible on the basis of the facts. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).

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Defendant argues that the prosecution's opening statement improperly appealed to the jury's sympathy by referring to the victim as a "scared nine-year-old" for whom it would not be easy to reveal her "dirty secret" to a courtroom full of strangers. However, we find no impropriety in these comments regarding the victim and her expected testimony. Although the challenged remarks refer to a "scared" child and her potential difficulty in describing what defendant did to her, taken in context, these remarks merely provided an overview of what the prosecution expected the evidence would show and what circumstances the jury would need to take into account in evaluating the credibility of a material witness. In light of the fact that it is appropriate for the prosecution to state in its opening statement the facts it believes will be proven at trial, People v Johnson, 187 Mich App 621, 626; 468 NW2d 307 (1991), and considering that it is the jury's role to determine credibility issues, People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998), the prosecution's remarks were not improper. To the contrary, when placed in the context, it is clear that the prosecution's comments were made not to elicit sympathy for the victim, but to emphasize factors that the jury could use in determining credibility

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