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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v EDWARD RAMIE DUNN, Defendant-Appellant.

UNPUBLISHED November 28, 2006

No. 261218 St. Clair Circuit Court LC No. 04-002045-FC

Before: Cooper, P.J., and Hoekstra and Smolenski, JJ. PER CURIAM. Defendant appeals as of right from his jury trial convictions of three counts of first degree criminal sexual conduct (CSC I), MCL 750.520b (multiple variables), one count of second degree criminal sexual conduct (CSC II), MCL 750.520c (multiple variables), and one count of furnishing obscene material to a minor, MCL 750.142. Defendant was sentenced to concurrent prison terms of 14 to 40 years for each count of CSC I, 10 to 15 years for CSC II, and 90 days for furnishing obscene material to a minor. We affirm. In April of 2004, in a session with a licensed psychologist in private practice, defendant's stepdaughter alleged that defendant had molested her. The child's mother, Lorna Dunn, was present during this counseling session. The psychologist filed the required report with the Family Independence Agency, an investigation ensued, and this trial followed. At trial, the complainant testified that this misconduct began when she was six years old and continued until she was thirteen years old. She testified that defendant, during the earliest episodes, asked her to touch his penis, and then moved on to inducing her to perform fellatio on him, performing cunnilingus on her and digitally penetrating her, and touching her breasts with both his hands and mouth. She also stated that he showed her pornographic materials to instruct her in engaging in these sexual acts. It is noteworthy that the complainant recanted her story three times throughout these proceedings: once just before the Preliminary Exam, once at the beginning of her trial testimony, and once after trial. Each time, however, the complainant recanted the recantation, explaining that she was concerned about the effect of prosecution and conviction on her mother and her stepbrother. As the trial judge stated during the post-trial hearing on defendant's motion for a new trial:

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The jury had the benefit of factoring in the hesitancy and her problems and equivocation. To the degree that she did, she did that in open court and the jury had the opportunity of, of weighing that and looking at that when they weighed the believability and the credibility of, of the victim in the trial itself and to factor that in. We agree with the trial court and add that the jury's weighing of all the factors before it in drawing conclusions about this matter is critical to our analysis. We note before beginning our analysis that defendant characterizes the trial as a credibility contest throughout its brief on appeal. We agree that this sort of case may well turn if not solely, at least primarily, on the jury's reaction to the testimony of the apparent victim and the alleged perpetrator. Because we have only the written record of the proceedings below, we are not as well positioned as the jury, or the judge in a bench trial, to assess the subtleties beneath the verbatim text of the trial. We must therefore rely heavily on the jury's assessment of the credibility of complainant, defendant, and any other witnesses. Because the jury speaks only through its verdict, we will not lightly overturn a jury verdict. I. Prosecutorial Misconduct Defendant first argues that the prosecutor's repeated misconduct denied him a fair trial. "We review de novo claims of prosecutorial misconduct to determine whether defendant was denied a fair and impartial trial." People v Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003) Where, as here, defendant failed to object to the challenged conduct below, we review claims of prosecutorial misconduct for plain error affecting substantial rights. Id. "Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings, independent of defendant's innocence. Thus, where a curative instruction could have alleviated any prejudicial effect we will not find error requiring reversal." Id. at 448-449. We consider claims of prosecutorial misconduct on a "case by case" basis, examining the prosecutor's remarks in context. People v McLaughlin, 258 Mich App 635, 644; 672 NW2d 860 (2003). In this case we find that the prosecutor's conduct was improper, but we do not find that in context it rises to the level of reversible error. Defendant first complains of the prosecutor's references in opening and closing remarks to statements allegedly made by the complainant's mother, Ms. Dunn, and stepbrother, Matthew. The prosecutor stated in her opening: "I don't know what they're going to tell you, but I suspect you're going to hear about what they told Deputy Baysinger when they were first interviewed in relationship to this case." The prosecutor detailed relevant statements allegedly made by Ms. Dunn in the interview with Baysinger, and then said: That's what she told Deputy Baysinger at the time of the investigation. I don't know what she's going to say here, but I would suggest to you when you assess her credibility, when you assess her prior statement, when you look at these facts, it's going to corroborate what [complainant] tells you.

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The prosecutor then summarized statements allegedly made by Matthew to Baysinger, again noting that those statements would corroborate the complainant's testimony, and again stating that she did not know what the witness would say on the stand. However, Baysinger testified that she had provided to the prosecutor a written statement received from Ms. Dunn, which differed in some details from Baysinger's report of the interview with that witness. Similarly, Matthew prepared a written statement that differed significantly in detail from Baysinger's report of the interview. Defendant argues that the prosecutor suggested the hearsay statements could be used as substantive evidence to corroborate complainant's testimony, despite the fact that the only permissible use for a witness' prior inconsistent statement is to impeach the credibility of a witness. Defendant is correct that a witness' prior inconsistent statements may not be used as substantive evidence unless they were recorded as sworn testimony. People v Lyles, 148 Mich App 583, 589-590; 385 NW2d 676 (1986). However, because defense counsel failed to object, the question before us is whether the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness of the trial. First, as to Ms. Dunn's prior statement and trial testimony, we find that the disparity is so slight as to be harmless. Baysinger's report indicated that Ms. Dunn had described an incident where she found her daughter and defendant in the tractor-trailer outside the house between one and two o'clock in the morning. Ms. Dunn's statement and trial testimony concurred on the critical points that the lights were off in the truck, and that the door was locked. The only difference is that at trial, Ms. Dunn denied she had told Baysinger that defendant had said he and his stepdaughter were sleeping in the truck, and testified that defendant had actually told her they were looking for a book. Irrespective of what defendant said, either version of Ms. Dunn's statement puts defendant and his stepdaughter in the dark, locked truck alone in the middle of the night. In context, we cannot say that the prosecutor's indication that the jury might consider Ms. Dunn's prior statement as substantive evidence denied this defendant a fair trial, given that the prior statement and her trial testimony aligned but for the one detail. As to Matthew's prior statement and trial testimony, the issue is more complicated. It is well settled that evidence of a witness' prior inconsistent statement may be admitted to impeach that witness. People v Kilbourn, 454 Mich. 677, 683; 563 NW2d 669 (1997). However, "a witness who testifies that he does not remember the occurrence of a specific event may not be impeached by testimony that that event occurred." People v Harrell, 54 Mich App 554, 562; 221 NW2d 411 (1974) (citing People v Durkee, 369 Mich 618; 120 NW2d 729 (1963)). In this case, Matthew repeatedly said at trial that he did not remember telling Baysinger most of the details of incidents that Baysinger recorded in her report of her interview with Matthew. Matthew also stated in answer to one question that he was not sure he had made the statements and that he was not sure the incidents described had actually taken place. The prosecutor referred Matthew to his prior statement, and when he said he could not read well, the prosecutor read portions of the statement to him outside the hearing of the jury to refresh his recollection. Once Matthew said that he still did not recall making the statements or whether the incidents occurred, all of the prosecutor's questions that included the details in the prior statement became improper. Again, however, because defense counsel did not object to the prosecutor's conduct, the question before us is not whether error was committed, but whether the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness of the trial.

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In the ordinary course, a proper jury instruction might be expected to cure this error. Ackerman, supra. at 448-449. Here the judge's instruction to the jury included this caution: Many things are not evidence, and you must be careful not to consider them as such. I'll now describe some of the things that are not evidence. . . . The lawyers' statements and arguments are not evidence. They're only meant to help you understand the evidence and each side's legal theories. The lawyers' questions to witnesses are also not evidence. And you should consider these questions only as they give meaning to the witnesses' answers. And you should only accept things the lawyers say that are supported by the evidence and by your own common sense and general knowledge. During defense counsel's closing argument, in response to an objection by the prosecutor about defense counsel's inaccurate characterization of part of the complainant's testimony, the trial judge added: Well, I'm just going to caution the jury that remember, what a lawyer

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