People v. Rose

• Decision Date: 26 August 2010
• Docket Number: Docket No. 290936.
• Citation: 808 N.W.2d 301,289 Mich.App. 499
• Parties: PEOPLE v. ROSE.
• Court: Court of Appeal of Michigan — District of US

289 Mich.App. 499

808 N.W.2d 301

PEOPLE

v.ROSE.

Docket No. 290936.

Court of Appeals of Michigan.

Submitted June 15, 2010, at Lansing.Decided July 1, 2010.Approved for Publication Aug. 26, 2010, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Frederick Anderson, Prosecuting Attorney, and Judy Hughes Astle, Assistant Prosecuting Attorney, for the people.

A. Scott Grabel & Associates (by Scott Grabel) for defendant.

Before: MURRAY, P.J., and SAAD and M.J. KELLY, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of four counts of first-degree criminal sexual conduct, MCL 750.520b, and two counts of disseminating sexually explicit matter to a minor, MCL 722.675. The trial court sentenced defendant to serve 25 years to 50 years in prison for each of his convictions of first-degree criminal sexual conduct and to serve 16 months to 24 months in prison for each of his convictions of disseminating sexually explicit matter to a minor. The court ordered that the sentences be served concurrently and with 50 days of sentence credit for time served on each. Because we conclude that there were no errors warranting relief, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The present case has its origins in allegations of sexual abuse by J.B. against defendant, Ronald Carl Rose. J.B. is the youngest of five children. At the time of the trial, J.B. was eight years old. J.B. has a brother, R.B., who is approximately two years older than her and has three older sisters who were each in their early twenties at the time of the trial. Rose's wife is J.B.'s oldest sister.

Rose and his wife had a home within five to six miles of J.B.'s parent's home in Allegan County. Although R.B. and J.B. lived with their parents, they spent a significant amount of time at Rose's home and often stayed overnight. In June 2007, J.B. revealed to her mother that Rose had been sexually assaulting her for some time. After J.B.'s revelations, R.B. also indicated that Rose had exposed him to pornography and touched him inappropriately.

The prosecutor charged Rose with eight separate crimes on the basis of these revelations. The first four counts were for first-degree criminal sexual conduct committed against J.B.: one count for digital-vaginal penetration, one count for penile-vaginal penetration, one count for penile-oral penetration, and one count for penile-anal penetration. The prosecutor also charged Rose with accosting a minor for immoral purposes and with second-degree criminal sexual conduct. At trial, the prosecutor argued that the accosting charge was founded on Rose's provision of alcohol to J.B. and that the second-degree criminal sexual conduct charge was founded on Rose's touching of J.B.'s chest. However, the prosecutor agreed to dismiss those charges after the close of her proofs because J.B. had not testified that Rose provided her with alcohol or touched her chest. The last two charges were for disseminating sexually explicit matter to J.B. and R.B.

J.B. testified at trial about the timing and location of the abuse that she suffered. She said that the abuse occurred at Rose's house in the bedroom and living room. Sometimes her older sister was home, and sometimes she was even in the same room, but the sister did not see the abuse because she was asleep when “we did it in the back room.” Sometimes the abuse occurred at night and sometimes during the morning.

She also described the nature of the abuse. She said Rose put his private part by her private part—by both the “back and the front.” She said he had tried to put his private into her front private, but it just did not work and she told him it hurt. She said she was sideways on the bed and that white stuff came out of his private part and got on her leg and the bed. J.B. said that Rose “put his private in the back while I was on my stomach.” She said he put it in her “bottom, but it didn't go all the way in.” It hurt and she told him. She said she knew that the white stuff came out again because she could feel it on her leg. She said that, a lot of times, he put his private into where her poop comes from.

She also testified that sometimes Rose would touch her front private with his fingers. She said he tried to make his finger go in, but it hurt. In addition, he made her put her “mouth on him” more than once. Sometimes he would touch his private part while she put her mouth on it and would move it in her mouth. He was lying on his back on the bed, and she was on her knees.

Finally, J.B. testified that Rose would sometimes show her and her brother movies: “They had girls on it and that had the exact same thing that he did to me.” He also showed them magazines that had pictures of people with no clothes on. Rose told her that the movies were about having sex, and he would watch the movies with her and R.B. He also sometimes had the movies on while he was doing stuff to her.

R.B. also testified at trial. He said he did not like going over to his older sister's house when Rose was there because he would show them bad stuff—videos and magazines with naked people. He would put the videos on, and the people in them would have sex. R.B. said that Rose told them that the videos showed how babies were made. Sometimes Rose would play with his penis in front of them. Rose would have his pants halfway down and would move his penis up and down. R.B. said that his older sister was never home when this happened.

Rose's defense was that he had been wrongfully accused. Specifically, he presented testimony—including the testimony of two of J.B.'s older sisters—that suggested that J.B.'s mother caused J.B. and R.B. to fabricate the allegations in an effort to break up the marriage between Rose and J.B.'s older sister.

The jury rejected Rose's defense and returned a verdict of guilty on each of the six remaining counts.

In October 2008, Rose moved for an evidentiary hearing or a new trial. In his motion, Rose argued that he was deprived of a fair trial when his trial counsel failed to timely object to the prosecution's failure to produce a written summary of the proposed testimony by its expert on child-sexual-abuse dynamics. He also argued that his counsel unreasonably failed to call an expert to rebut the medical testimony at trial. He further claimed that his trial counsel unreasonably failed to call a rebuttal witness, G.A., who would have testified that J.B.'s father told G.A. that he knew that Rose had done nothing wrong. Rose also argued that there was evidence that one of the juror's knew J.B.'s aunts, G.A. and L.B., as well as her uncle, B.B. Rose alleged that this juror had worked with B.B. and may have heard things about the case at work. For these reasons, Rose asked the trial court to order hearings on the issues or grant a new trial.

In February 2009, the trial court issued an opinion and order denying Rose's motion for a new trial. The trial court determined that the evidence did not demonstrate grounds for relief on the basis of a juror's limited knowledge of a single witness, G.A., who did not actually testify at trial. Further, the court noted that the affidavits proffered by Rose in support of his motion did not show that the juror had engaged in misconduct. Rather, the affidavits established the mere possibility that the juror might have been exposed to prejudicial remarks. This evidence, the trial court concluded, was insufficient to warrant relief.

This appeal followed.

II. USE OF A WITNESS SCREEN

A. STANDARDS OF REVIEW

Rose first argues that the trial court violated his rights under the state and federal constitutions, as well as MCL 600.2163a, when it permitted J.B. to testify from behind a screen that prevented her from being able to see Rose even though he could see her. Rose contends that the use of a witness screen is inherently prejudicial and that the United States Supreme Court has specifically disavowed the use of one-way screens to prevent a witness from being able to see a defendant. He also argues that the trial court failed to make the necessary findings in order to use the alternative procedures permitted under MCL 600.2163a and that, in any event, the use of a screen is not permitted under that statute.

This Court reviews de novo questions of constitutional law such as the right to confront witnesses. People v. Drohan, 475 Mich. 140, 146, 715 N.W.2d 778 (2006). However, this Court reviews for clear error the trial court's findings of fact underlying the application of constitutional law. See People v. Oliver, 464 Mich. 184, 191, 627 N.W.2d 297 (2001). This Court also reviews de novo the proper interpretation of a statute. People v. Martin, 271 Mich.App. 280, 286–287, 721 N.W.2d 815 (2006).

B. THE TRIAL COURT'S FINDINGS

On the first day of trial, the prosecutor moved for permission to use a screen during J.B.'s testimony. The prosecutor stated that she made the motion because J.B. had indicated that she was afraid to testify in Rose's presence. The trial court agreed to take testimony from J.B.'s therapist.

Jill VanderBent testified that she supervised nine therapists for Bethany Christian Services and that she also counseled J.B. VanderBent stated that she was treating J.B. for symptoms related to trauma, including nightmares, bedwetting, difficulty concentrating, zoning out, and anger outbursts. J.B. had also expressed fear about having to come and testify in court—that she did not want to see Rose and “was very fearful.” J.B. had even stated that she feared that she could not testify in his presence. VanderBent stated that it was her opinion that testifying face to face might trigger some traumatic experiences and cause “numbing, shutting down, not being able to speak even.” She opined that if J.B. were to see Rose, it could be traumatic for her, but the use of a screen that would permit others to see her without J.B. being able to see Rose would sufficiently safeguard her emotional...