People v. Brown

• Decision Date: 20 October 2011
• Docket Number: Docket No. 297728.
• Citation: 294 Mich.App. 377,811 N.W.2d 531
• Parties: PEOPLE v. BROWN.
• Court: Court of Appeal of Michigan — District of US

294 Mich.App. 377

811 N.W.2d 531

PEOPLE

v.BROWN.

Docket No. 297728.

Court of Appeals of Michigan.

Submitted Oct. 11, 2011, at Detroit.Decided Oct. 20, 2011, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Eric J. Smith, Prosecuting Attorney, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.

Linda D. Ashford, P.C. (by Linda D. Ashford), Detroit, for Bryan Brown.

Bryan Brown in propria persona.

Before: OWENS, P.J., and JANSEN and O'CONNELL, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of one count of criminal sexual conduct in the first degree (CSC–I), MCL 750.520b(1)(a) (victim under 13 years old). The trial court sentenced defendant to life in prison. Defendant appeals by leave granted.¹ We affirm.

I. FACTS AND PROCEEDINGS

The complainant in this matter, MO, was born on September 23, 2002. MO's mother was in a dating relationship with defendant and moved in with him in May 2007, bringing MO with her. Defendant and MO were often left alone together. On April 16, 2008, MO, then five years old, was playing with CL, a boy who lived in her neighborhood. CL went to his brother's car to get a toy from the trunk; CL's little brother and MO accompanied him. The children found DVDs depicting naked people on the cover engaging in sex acts. MO picked up one of the DVDs, and CL indicated that she should not be looking at it. According to CL, MO said that her dad made her “suck his wiener every night” and that he “videotapes them, like, doing it.” CL understood that MO was referring to defendant as her dad. MO also told CL that defendant called what they did together the humping game. Shortly after, defendant arrived to take MO home.

Right after defendant took MO home, CL told his mother what MO had reported to him. She called the police. Brent Chisolm and William Ross, officers with the Warren Police Department, went to defendant's residence to investigate the complaint they had received. When the officers arrived, MO was sleeping in defendant's bed wearing only underpants. According to Ross, he detected the odor of burnt marijuana in defendant's bedroom and saw drug paraphernalia in an open drawer. Consequently, defendant was arrested for possession of narcotics and paraphernalia.

Robert Krist, a detective with the Warren Police Department, was assigned as the co-officer-in-charge and investigated defendant's background. He learned that defendant had been convicted in Illinois of charges relating to other sexual conduct involving minors. Subsequently, a search warrant for defendant's home was obtained and executed, resulting in the seizure of a laptop, a video camera, five Hi8 tapes for the video camera, and nudist videotapes.

As part of this investigation, Krist worked with Donald Raymo, a federal agent with the Department of Homeland Security in the cybercrimes division, which typically investigates child-pornography allegations. Raymo had been investigating a person named Bryan Brown. When he learned defendant was the subject of a criminal sexual behavior investigation, Raymo agreed to engage in a joint investigation, offering to process the electronic evidence related to this case. According to Raymo, one of the videos seized from defendant's home included a 10–minute segment that constituted child pornography; that section of the video was located midway through the tape and was preceded by a black screen, indicating that it had been taped over. It was followed by footage of a wedding. This tape was played for the jury at trial.

At trial, MO testified that defendant put his “private parts” in hers and that it felt bad when he did. MO indicated this happened in her mother's bed. However, MO could not recall ever seeing defendant with a camera and denied making a movie with defendant.

During the trial, defendant's Illinois convictions for sexual misconduct involving minors were introduced without objection. In addition, the prosecution introduced the testimony of KD, who had been coached by defendant as a gymnastics student in 1997 when she was approximately five years old. KD testified that defendant would grab her and pull her close and then put his hand underneath her leotard and touch her vaginal area on the outside.

Defendant testified on his own behalf. He described his relationship with MO's mother and MO as a “[v]ery loving family” and said that MO was the “daughter [he] always wished [he] had.” Defendant testified he never thought about MO sexually. He denied putting his “privates” in MO's and further denied ever having MO perform fellatio on him. Defendant acknowledged that he had previously been a gymnastics teacher in Illinois and had pleaded guilty with respect to the convictions introduced earlier. He denied being sexually attracted to five-year-old girls or children in general. Defendant stated that it was a coincidence that MO was close in age to the girls involved in his prior convictions.

II. PROSECUTORIAL MISCONDUCT

First, defendant claims that the prosecution engaged in prosecutorial misconduct. We disagree.

In order to preserve a claim of prosecutorial misconduct for appellate review, a defendant must have timely and specifically objected below, unless objection could not have cured the error. People v. Unger, 278 Mich.App. 210, 234–235, 749 N.W.2d 272 (2008). Defendant did not object at trial to Krist's or Raymo's testimony related to the federal investigation of defendant. Nor did defendant object to any of the testimony related to defendant's arrest for possession of child pornography. Finally, defendant did not object to the prosecutor's questions and statements that defendant characterizes on appeal as arguing that defendant is a pedophile. Thus, this issue was not preserved. Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights. People v. Thomas, 260 Mich.App. 450, 453–454, 678 N.W.2d 631 (2004).

The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v. Dobek, 274 Mich.App. 58, 63, 732 N.W.2d 546 (2007). Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the record and evaluate a prosecutor's remarks in context. Thomas, 260 Mich.App. at 454, 678 N.W.2d 631.

Defendant first argues that he was denied a fair trial when the prosecutor elicited testimony from Krist and Raymo indicating he was the subject of a federal child-pornography investigation. Defendant specifically argues that this evidence was irrelevant and served only to paint defendant as a bad man by implying that he was the target of a federal investigation into child pornography.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. This is a broad definition, allowing the admission of evidence that is helpful in throwing light on any material point. People v. Aldrich, 246 Mich.App. 101, 114, 631 N.W.2d 67 (2001). Despite this broad definition, that Raymo may have been investigating defendant relative to child-pornography activity should have no bearing on a determination whether defendant committed the charged offense. Thus, this evidence could be characterized as irrelevant. However, a prosecutor's good-faith effort to admit evidence does not constitute misconduct. Dobek, 274 Mich.App. at 70, 732 N.W.2d 546. Even if the evidence could be characterized as irrelevant, defendant has not established bad faith.

Defendant next argues that the prosecutor engaged in misconduct by injecting other acts evidence for the purpose of showing that defendant had the propensity to commit crimes. He takes issue with references to his arrest for possession of marijuana and drug paraphernalia. Defendant specifically argues that the subject of drugs tends to inflame the passions of a jury and thus was unfairly prejudicial. Evidence is unfairly prejudicial when it presents a danger that marginally probative evidence will be given undue or preemptive weight by the jury. People v. Ortiz, 249 Mich.App. 297, 306, 642 N.W.2d 417 (2001). In light of the nature of the charge defendant faced at trial and evidence of previous instances of child-sexual abuse, the argument that there was a danger the jury would give undue weight to defendant's involvement in drug use is unpersuasive. Regardless, defendant has not shown that the prosecutor was motivated by bad faith. See Dobek, 274 Mich.App. at 70, 732 N.W.2d 546.

Defendant finally argues that he was a denied a fair trial when the prosecutor argued he must have committed the charged offense because he was a pedophile. This argument is without merit. A review of the record demonstrates that the prosecutor never referred to defendant as a “pedophile.” Thus, defendant's discussion of the diagnostic criteria necessary for such a diagnosis is superfluous.

In any event, even if this Court were to conclude that the prosecutor engaged in misconduct, defendant would not be entitled to a reversal of his conviction. Defendant cannot show that “the plain, forfeited error resulted in the conviction of an actually innocent defendant or ... seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.” People v. Carines, 460 Mich. 750, 763–764, 597 N.W.2d 130 (1999) (quotation marks and citation omitted) (alteration in Carines ). The testimony provided at trial by MO, coupled with the footage shown to the jury, which defendant conceded depicted himself and MO, strongly supports the verdict.

III. ADMISSION OF EVIDENCE

Next, defendant claims that the trial court denied him a fair trial by failing to exercise its duty to ensure that the challenged evidence was not more prejudicial than probative. We disagree.

A trial court's decision to admit or...