People v. Slusher
| Decision Date | 31 March 2015 |
| Docket Number | No. 318672,318672 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LARRY WADE SLUSHER, also known as LARRY W. SLUSHER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court
Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.
Defendant appeals as of right from his jury trial conviction of first-degree criminal sexual conduct ("CSC-1"), MCL 750.520b(1)(a) (). The trial court sentenced defendant to a term of 15 to 25 years' imprisonment. We affirm.
Defendant's conviction arises out of incidents that occurred in 1997 or 1998. The victim, RH, was nine years old at the time. His parents were divorced. Due to problems with their own home, RH and his mother moved into defendant's home where he resided with his wife and children. RH came home from school one afternoon. Only defendant was home. While RH lay on the couch, defendant pulled down RH's pants and performed fellatio on him. When RH asked defendant to stop, defendant threatened to kill RH if he told anyone. A deliveryman came to the front door, which ended the incident. Three or four weeks later, defendant forced RH to perform fellatio on him. RH did not tell anyone of the assaults when they occurred. In December 1999, RH told police that he had been sexually assaulted by defendant. Charges were filed against defendant, and after a preliminary examination held on October 18, 2000, defendant was bound over to the circuit court on one count of CSC-1. Defendant failed to appear for a final conference scheduled for January 5, 2001, apparently having fled the state. He was extradited to Michigan sometime in late 2012.
Much of defendant's appeal concerns testimony implying that defendant also sexually abused two other children. Defendant's ex-wife testified that in 2000, she filed a report with police regarding defendant and MS, their son. Defendant's mother confirmed that MS made allegations against defendant when he was a child. However, neither defendant's ex-wife nor his mother testified to the nature of the allegations. MS, now an adult, was called to testify by theprosecutor. When asked if he had talked to police in 2000, he denied any memory of doing so. The prosecutor then asked MS if he had reported several specific instances and acts of sexual abuse by defendant. MS denied any memory of reporting these events to police. The prosecutor asked MS if he had spoken with an investigator, Anne Kanitra ("Kanitra"), in November, 2012. MS first denied speaking to Kanitra, but then acknowledged talking to her. However, he denied any recollection of the substance of the conversation. MS specifically denied reporting to Kanitra that defendant had sexually abused him as a child and that defendant had sexually abused another boy who was MS's childhood friend and neighbor. The prosecutor then asked MS if defendant's mother had taken him to see a doctor a few months before defendant's trial. MS confirmed this visit, and explained that with the help of this doctor, MS "fixed all [of his] memories [him]self." Defendant's mother testified that she had taken MS "to a doctor so he could talk to him and settle it in his own mind what the truth was."
Defendant first argues that the trial court erred by admitting evidence of other acts of sexual misconduct against a minor through MS. We disagree. "The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). "An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no excuse for the ruling made." Id.
Defendant argues that without substantive evidence of other acts of sexual misconduct against a minor, it was improper for the trial court to admit such evidence as impeachment evidence under MCL 768.27a and MRE 403.1 The error in defendant's argument is that noevidence of other acts of sexual misconduct was ever admitted. The prosecutor laid a foundation for the admission of prior inconsistent statements as impeachment evidence. See, e.g., People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995) (). However, the prosecutor never actually introduced any prior inconsistent statements as evidence. Only the prosecutor's questions contain any reference to whether MS reported particular acts to police in 2000 or to a counselor in 2012. The questions coupled with MS's responses did not constitute evidence of prior acts of sexual abuse because MS denied any recollection of making such statements. As this Court explained in People v Mesik (On Recon), 285 Mich App 535, 540-541; 775 NW2d 857 (2009):
Had [the witness] confirmed, as a witness from the stand, any of the assertions by the prosecutor, those confirmations would have constituted evidence. But [the witness] only denied any recollection of the matters about which he was asked . . . . [T]he prosecutor's questions are not evidence . . . . The trial court properly instructed the jury that evidence includes only the sworn testimony of witnesses and the exhibits admitted into evidence and, among other things, the lawyers' questions to witnesses are not evidence and should be considered only as they give meaning to the witnesses' answers. [Quotation marks omitted.]
Because no evidence of other acts of sexual misconduct was admitted, there can be no evidentiary error with respect to either MCL 768.27a or MRE 403. See id. ().
Defendant next argues that the trial court erred when instructing the jury regarding how to consider MS's testimony. We disagree.
"A party must object or request a given jury instruction to preserve the error for review." People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). Defendant did request a specific instruction, and to the extent he challenges the trial court's refusal to give his proposed instruction, the issue is preserved. Id. However, defendant did not object to the instructions given by the trial court, nor did he request M Crim JI 20.28a. Accordingly, his remaining arguments are unpreserved. Id. "Claims of instructional error are generally reviewed de novo by this Court, but the trial court's determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). Unpreserved claims of instructional error are reviewed for plain error affecting substantial rights. Aldrich, 246 Mich App at 124-125. Under this test, defendant must show that an error occurred, that the error was plain, meaning it was clear or obvious, andthat the error affected his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). For an error to have affected substantial rights, it must have been outcome-determinative. People v Grant, 445 Mich 535, 552-553; 520 NW2d 123 (1994).
Defendant also argues that trial counsel was ineffective for failing to raise defendant's unpreserved claims of instructional error. Because defendant did not preserve his claim of ineffective assistance of counsel by moving for a new trial or a Ginther2 hearing below, our review is limited to the record. People v Armendarez, 188 Mich App 61, 73-74; 468 NW2d 893 (1991). People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011) (citations omitted).
As this Court explained in People v Henderson, 306 Mich App 1, 4; 854 NW2d 234 (2014):
A defendant has the right to have a properly instructed jury consider the evidence against him or her, and it is the trial court's role to clearly present the case to the jury and to instruct it on the applicable law. The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence. When examining instructions to determine if an error has occurred, the instructions must be considered as a whole, rather than piecemeal. Even if imperfect, a jury instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights. [Quotation marks, citations, and ellipses omitted.]
Defendant first argues that the trial court erred by failing to give his proposed instruction, and instead, giving a modified version of M Crim JI 4.5, which concerns the use of out-of-court statements as impeachment evidence, coupled with an incomplete and modified version of M Crim JI 4.11, which concerns the use of other bad acts evidence. Defendant argues that these instructions were erroneous because they implied to the jury that it had heard evidence of other acts of sexual abuse when it had not. As was discussed, no evidence of other acts of sexual abuse was ever presented. Thus, we agree that it was incorrect for the trial court to instruct the jury that it had "heard evidence . . . [of] other acts for which [defendant was] not on trial." However, ...
To continue reading
Request your trial