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People v. Lewis3/20/2003
dence of another crime or bad act but was arguably evidence of the crime for which defendant was charged. Thus, the prosecutor did not commit misconduct by admitting evidence in violation of MRE 404(b).
In addition, the fact that defendant slapped a child was never admitted into evidence. The prosecutor anticipated that the victim would testify, consistent with her preliminary examination testimony, that defendant struck her seven-year-old niece at the beginning of the altercation. While the prosecutor mentioned this anticipated testimony in her opening statement, the victim testified in a manner inconsistent with her preliminary examination testimony. The victim testified that her niece was in bed in another room at the relevant time. Thus, there was no evidence that defendant slapped the victim's niece. Defendant's argument that the evidence was admitted in violation of MRE 404(b) is frivolous. In addition, we disagree that the prosecutor's mention of the anticipated evidence during opening statement constituted misconduct. "The purpose of opening statement is to tell the jury what the advocate proposes to show." People v Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976). While the prosecutor never obtained the anticipated testimony, her mention of it did not prejudice defendant. The jury was instructed that it had to decide the case based on properly admitted evidence. It was also instructed that the lawyers' statements and arguments were not evidence.
III.
Finally, defendant argues that the charge of resisting and obstructing a police officer, MCL 750.479, should not have been submitted to the jury. This issue is not preserved because defendant never challenged the submission of the charge to the jury. We review unpreserved allegations of error, constitutional and non-constitutional, for plain error. Carines, supra.
" defendant has no room to complain when he is acquitted of a charge that is improperly submitted to a jury, as long as the defendant is actually convicted of a charge that was properly submitted to the jury." People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Any error in the submission of an unwarranted charge is cured when the defendant is acquitted of that charge. Id. The only exception is where there is persuasive indicia of jury compromise. Id. at 487-488. In this case, there is no indication of jury compromise. We find that it is immaterial whether the submission of the charge was actually improper because any error was cured by defendant's acquittal on that charge. Thus, defendant cannot demonstrate the prejudice necessary to show plain error requiring reversal. Carines, supra.
Affirmed.
Bill Schuette
David H. Sawyer
Kurtis T. Wilder
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