People v. Brown

• Decision Date: 23 October 2018
• Docket Number: No. 339318,339318
• Citation: 926 N.W.2d 879,326 Mich.App. 185
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie BROWN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

326 Mich.App. 185

926 N.W.2d 879

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Eddie BROWN, Defendant-Appellant.

No. 339318

Court of Appeals of Michigan.

Submitted October 2, 2018, at Detroit

Decided October 23, 2018, 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.

Wendy Barnwell, Eastpointe, for defendant.

Before: Murray, C.J., and Borrello and Ronayne Krause, JJ.

Ronayne Krause, J.Defendant appeals as of right his jury convictions of three counts of first-degree criminal sexual conduct (CSC-I)—one under MCL 750.520b(1)(a) (sexual penetration with a victim less than 13 years of age) and two under MCL 750.520b(1)(b)(i ) (sexual penetration with a victim at least 13 but less than 16 years of age and a member of the same household)—and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b)(i ) (sexual contact with a victim at least 13 but less than 16 years of age and a member of the same household). The trial court sentenced defendant as both a second-offense habitual offender, MCL 769.11, and as a second CSC-I offender against a minor under the age of 13 with respect to one count of CSC-I, MCL 750.520b(2)(c), and as a second CSC-I offender with respect to the other two counts of CSC-I, MCL 750.520f, imposing sentences of life in prison for the CSC-I conviction under § 520b(1)(a), 10 to 40 years in prison for each CSC-I conviction under § 520b(1)(b)(i ), and 5 to 22½ years in prison for the CSC-II conviction, to be served concurrently. We affirm.

I. FACTS AND EVIDENCE

Defendant sexually abused the victim when she was 12 and 13 years old and lived in the same house as defendant. Defendant was the boyfriend of the victim’s mother, and he began living in the victim’s home while her mother was pregnant with defendant’s child. The sexual abuse took place multiple times over the course of approximately five months, beginning with odd, inappropriate statements to the victim in January 2010 and culminating in a final act of sexual assault on or about May 5, 2010. Defendant initially made statements to the victim along the lines of wishing she was her mother, defendant’s girlfriend, and other unsettling phrases. The first instance of physical sexual assault took place in February when the victim was still 12 years old. Defendant, under the guise of punishing her for talking to boys, forced the victim to lift her shirt and allow him to put her breasts into his mouth. He then ordered the victim to lie down on the bathroom floor and remove her pants. Defendant then performed cunnilingus on the victim. Defendant’s first charge, CSC-I (sexual penetration with a victim under the age of 13), and fourth charge, CSC-II (sexual contact with a victim at least 13 but less than 16 years of age and residing in the same household), arise from this first assault. This was defendant’s second CSC-I conviction for penetration of a victim under the age of 13, mandating an automatic sentence of life.

Charges two and three, CSC-I (sexual penetration with a victim between the ages of 13 and 16 who resides within the same household), involved anal and oral penetration of the victim after her thirteenth birthday. Defendant forced the victim on at least one occasion to perform fellatio on him, again under the guise of punishment. Defendant would show up in the victim’s room in the early morning hours and often hover or sit on the edge of the bed until the victim woke. Defendant, on at least one occasion, offered the victim a choice between performing oral sex on him and having him perform oral sex on her. On or about May 5, 2010, the final assault took place in the early morning hours. Defendant penetrated the victim anally, required the victim to pull down her night shirt, and ejaculated onto her breast. Later that morning at the bus stop, the victim told her best friend that she didn’t feel well because defendant had kept her up all night and that defendant had assaulted her again. She then borrowed her friend’s cell phone in order to send a message to another friend, a boy who lived down the street, informing him that she had been assaulted again. Her friend, the boy from down the street, then told the victim’s aunt about the abuse while the aunt was babysitting the victim and her siblings that evening. The victim then told her aunt about the abuse herself. The aunt then went inside and told her fiancé the victim’s uncle, about the abuse.

The victim disclosed to her aunt and uncle that defendant had staged and taken several indecent photographs of her with his old cell phone. The victim helped her uncle locate the old phone used to take the photographs. Her uncle put the phone in his pocket, but he was unable to view the phone’s contents because it was locked by a password. A short time later, the victim’s mother and defendant returned home after an evening of running errands. The victim’s mother had to return to the store, and the victim’s uncle offered to ride with her. Defendant, presumably having noticed the general mood of the people in the house and startled by the uncle’s behavior, began to frantically search for the old phone. On the way home from the store, the victim’s uncle informed her mother of what the victim had told him and that he was in possession of the old phone.

When the victim’s mother and uncle returned home, they both noticed defendant looking for his phone. The victim and her aunt then left the house and were in the process of getting into the uncle’s car when defendant approached and asked where the victim was going on a school night. Nothing was said, and the victim went to her uncle’s house for the night. Defendant repeatedly called the uncle’s phone, asking to speak with the victim. Defendant then left in the mother’s van, not informing anyone of where he was going. The uncle later returned to the victim’s house, and the victim’s mother unlocked the phone. The victim’s mother and uncle verified that the pictures existed. Late the next evening or early on the day after, they filed a police report.

At trial, the prosecution presented testimony from the victim regarding the charged instances of sexualabuse, as well as her testimony that defendant took photographs of her with his cell phone. The prosecution introduced four photographs of the victim that were recovered from defendant’s phone. The prosecution additionally presented text messages from the victim disclosing the abuse, as well as the testimony of witnesses who corroborated the circumstances surrounding the victim’s disclosure of the abuse. The prosecution further presented the testimony of a sexual assault nurse examiner regarding her examination of the victim and the victim’s statements. A jury found defendant guilty of the charged offenses.

II. ADMISSION OF PHOTOGRAPHS

Defendant argues that he was denied a fair trial by the admission of photographs depicting the 12-year-old victim’s vagina, breasts, and buttocks. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

"In order to preserve the issue of the improper admission of evidence for appeal, a party generally must object at the time of admission." People v. Knox , 469 Mich. 502, 508, 674 N.W.2d 366 (2004).

At trial, defendant objected to the prosecution’s request to admit 11 photographs of the victim from defendant’s phone, arguing that the photographs were more prejudicial than probative because of their graphic nature and that the evidence was not necessary because the victim could testify regarding the photographs. The trial court allowed the prosecution to introduce 4 of the proffered 11 photographs. Accordingly, defendant’s evidentiary claim is preserved. However, because defendant did not raise an objection on the ground that the admission of the photographs allegedly denied him a fair trial, his constitutional claim is unpreserved. See People v. Canter , 197 Mich. App. 550, 563, 496 N.W.2d 336 (1992).

"A trial court’s decision to admit evidence will not be disturbed absent an abuse of discretion." People v. Denson , 500 Mich. 385, 396, 902 N.W.2d 306 (2017). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." People v. McBurrows , 322 Mich. App. 404, 411, 913 N.W.2d 342 (2017) (quotation marks and citation omitted). Unpreserved claims of constitutional error are reviewed for plain error affecting a defendant’s substantial rights. People v. Carines , 460 Mich. 750, 764, 597 N.W.2d 130 (1999).

B. ANALYSIS

"Photographic evidence is generally admissible as long as it is relevant, MRE 401, and not unduly prejudicial, MRE 403." People v. Gayheart , 285 Mich. App. 202, 227, 776 N.W.2d 330 (2009). "Exclusion is required under MRE 403 only when the danger of unfair prejudice substantially outweighs the probative value of the evidence." People v. Head , 323 Mich. App. 526, 541, 917 N.W.2d 752 (2018). "Photographs may be used to corroborate a witness’s testimony ...." Id. (cleaned up).

In ruling on the prosecution’s request to admit 11 of the 45 photographs of the victim found on defendant’s phone, the trial court stated that several of the photographs were "repulsive." The court ruled that the prosecution could only use the photographs in which the victim could identify defendant’s hands in the photos. The court refused to admit the other photographs as cumulative and too prejudicial because testimony would be sufficient. Accordingly, the court admitted only People’s Exhibits 12 through 15. In each photograph, the victim identified herself or her vagina, as well as defendant’s hand. With regard to the first three photographs, she testified that each was taken by defendant.

Trial courts have a duty, at times an unpleasant one, to resolve questions of the admissibility of evidence in cases that run the gamut of antisocial behavior....