People v. Johnson, Docket No. 325857.

• Decision Date: 19 April 2016
• Docket Number: Docket No. 325857.
• Citation: 315 Mich.App. 163,889 N.W.2d 513
• Parties: PEOPLE v. JOHNSON.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 163

889 N.W.2d 513

PEOPLE

v.JOHNSON.

Docket No. 325857.

Court of Appeals of Michigan.

Submitted March 9, 2016, at Grand Rapids.

Decided April 19, 2016, at 9:20 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael J. Sepic, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Randy E. Davidson ) and Jordan Conrad Johnson, in propria persona, for defendant.

Before: O'CONNELL, P.J., and MARKEY and MURRAY, JJ.

MURRAY, J.

Defendant appeals as of right his jury trial convictions of four 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 was sentenced to 25 to 90 years' imprisonment for each of his first-degree criminal sexual conduct convictions and 71 months to 15 years' imprisonment for his second-degree criminal sexual conduct conviction. We affirm defendant's convictions and sentences, but vacate the order imposing a $100 fine and vacate $900 of the $2,564 restitution order, and remand for the trial court to modify the judgment of sentence accordingly.

I. INTRODUCTION

This case involves a number of challenges to the relatively new courtroom procedure of allowing a witness to be accompanied on the witness stand by a support animal—an animal that provides comfort to a witness while the witness testifies. While no Michigan court has addressed whether a witness may be accompanied by a support animal, other jurisdictions have upheld this procedure as part of a trial court's inherent authority to control the courtroom. For the reasons expressed below, so do we.

II. FACTUAL BACKGROUND

This appeal arises out of defendant's sexual contact with his six-year-old niece. According to the evidence supporting the jury's verdict, from 2011 to 2014, defendant occasionally provided babysitting services for his brother and sister-in-law when other family members were unavailable to babysit their two children. While babysitting, defendant would take the victim into the bathroom or another room and sexually abuse her. One time, when the victim's 10–year–old brother tried to investigate what was happening when defendant and the victim went into a different room, he was told to "go away."

The victim eventually revealed the sexual abuse to her parents in June or July 2014. The victim's parents were planning on going out, but when the victim heard that defendant would be babysitting, she "became hysterical" and "broke down," crying and screaming. The victim told her parents that she did not want defendant to babysit because defendant put "his penis in her butt." Over the next couple weeks, the victim provided her parents with more details about the sexual encounters with defendant. The victim's mother subsequently took the victim to the family doctor, who did not find any injuries to the victim's butt or vagina, but did make the necessary report to Child Protective Services (CPS).

As a result, CPS called the victim's mother and requested that she take the victim to the hospital to get a full medical examination. At the hospital, Angie Mann, a sexual-assault nurse examiner, performed an examination of the victim. During the examination, the victim initially did not want to talk about the sexual abuse, but she eventually described that defendant would put his fingers in her butt and his penis in her mouth. According to Mann, the victim's "exact words were" that defendant put "his penis in her mouth and he didn't even wash it first." Mann saw a "very thin, pale, vertical line" in the victim's anus, which is consistent with penile penetration and sexual assault.

Defendant denied any sexual contact with the victim. Instead, defendant testified that he would take the victim into another room to discipline her, because if he did not, the victim's brother would watch and laugh. The jury apparently did not believe defendant's version of events, as he was convicted. This appeal then ensued.

III. ANALYSIS

A. THE USE OF A SUPPORT ANIMAL

During defendant's trial a black Labrador retriever named Mr. Weeber was permitted, without objection, to accompany the six-year-old victim and the victim's 10–year–old brother on the witness stand while they testified. Now, on appeal, defendant raises numerous arguments against the use of a support animal. But, as explained below, defendant waived any issues related to the use of the support animal by affirmatively approving the trial court's action. People v. Kowalski, 489 Mich. 488, 503, 803 N.W.2d 200 (2011).

Prior to trial, the prosecution filed a notice of intent to use a support person pursuant to MCL 600.2163a(4), which listed, among other things, Mr. Weeber as a "canine advocate." At a scheduling conference prior to trial, defense counsel indicated that he had no objection to the notice, stating, "I think I have to file an objection and I didn't. We did the research on these three notices and ... [n]o objection." Because defendant affirmatively stated that he had no objection to the use of a support animal, defendant cannot now complain about the use of the support animal while the victim and the victim's brother testified. Id. at 504, 803 N.W.2d 200. Defendant's waiver eliminated any error, and appellate review is precluded. Id.

Although these issues were waived by defense counsel's affirmative conduct, defendant alternatively argues that he was denied the effective assistance of counsel by his trial counsel's failure to object to the notice of use of a support person that listed Mr. Weeber as a canine advocate. Appellate review of an unpreserved argument of ineffective assistance of counsel, like this one, is limited to mistakes apparent on the record. People v. Rodgers, 248 Mich.App. 702, 713–714, 645 N.W.2d 294 (2001). Whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law, People v. Trakhtenberg, 493 Mich. 38, 47, 826 N.W.2d 136 (2012), and a trial court's findings of fact are reviewed for clear error, while questions of constitutional law are reviewed de novo, People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002).

The United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel. U.S. Const. Am. VI ; Const. 1963, art. 1, § 20 ; Trakhtenberg, 493 Mich. at 51, 826 N.W.2d 136. To establish ineffective assistance of counsel, "the defendant must show that (1) defense counsel's performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel's deficient performance prejudiced the defendant." People v. Heft, 299 Mich.App. 69, 80–81, 829 N.W.2d 266 (2012). "[A] defendant [is] prejudiced if, but for defense counsel's errors, the result of the proceeding would have been different." Id. at 81, 829 N.W.2d 266. "Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of proving otherwise." People v. Eisen, 296 Mich.App. 326, 329, 820 N.W.2d 229 (2012) (citation and quotation marks omitted). A defendant must also overcome a strong presumption that his counsel's decisions were the result of sound trial strategy.

People v. Sabin (On Second Remand), 242 Mich.App. 656, 659, 620 N.W.2d 19 (2000). A defendant is not denied the effective assistance of counsel by counsel's failure to make a futile or meritless objection. People v. Unger, 278 Mich.App. 210, 257, 749 N.W.2d 272 (2008).

1. STATUTORY AUTHORITY

Defendant first contends that trial counsel was ineffective for failing to object to the use of a support animal because MCL 600.2163a(4) only allows a support person to accompany a witness, not a support animal. "The primary goal of statutory construction is to give effect to the intent of the Legislature." People v. McLaughlin, 258 Mich.App. 635, 672, 672 N.W.2d 860 (2003). To do so, we must begin by examining the language of the statute, and if the statute's language is clear and unambiguous, we must enforce the statute as written. People v. Phillips, 469 Mich. 390, 395, 666 N.W.2d 657 (2003). When statutory "terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used." People v. Lewis, 302 Mich.App. 338, 342, 839 N.W.2d 37 (2013) (citation and quotation marks omitted).

The statute at issue, MCL 600.2163a(4), provides:

A witness who is called upon to testify shall be permitted to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony. A notice of intent to use a support person shall name the support person, identify the relationship the support person has with the witness, and give notice to all parties to the proceeding that the witness may request that the named support person sit with the witness when the witness is called upon to testify during any stage of the proceeding. The notice of intent to use a named support person shall be filed with the court and shall be served upon all parties to the proceeding. The court shall rule on a motion objecting to the use of a named support person before the date at which the witness desires to use the support person.

Because the term "person" is not defined in the statute, it must be interpreted on the basis of its ordinary meaning while keeping in mind the context in which it is used. Lewis, 302 Mich.App. at 342, 839 N.W.2d 37. To ascertain the ordinary and generally accepted meaning of an undefined term, we may consult dictionary definitions. Id. The term "person" is defined by Merriam–Webster's Collegiate Dictionary (11th ed.) as "one (as a human being, a partnership, or a corporation) that is recognized by law as the subject of rights and duties." Based on this definition—and a good deal of common sense—it is clear that a dog is not a "person" within the meaning of MCL 600.2163a(4...