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People v. Moten6/10/2003
UNPUBLISHED
Defendant appeals as of right his conviction following a jury trial for two counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(f)(v) (use of force or coercion to accomplish sexual penetration and the victim suffers personal injury ), and one count of second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(f) (use of force or coercion to accomplish sexual contact and the victim suffers personal injury ). Defendant was sentenced to twenty-two to forty years' imprisonment for each count of CSC I, and eight to fifteen years' imprisonment for CSC II. We affirm.
This case arose when defendant broke into his neighbor's mobile home and waited for her to return. When she did, he grabbed her and forced her into a room where he performed cunnilingus on her against her will, digitally penetrated her vagina against her will, and forced her to touch his penis.
Defendant first argues that the prosecutor's exhibition of a videotape and photographs of the crime scene, in addition to an officer's testimony about the crime scene, prejudicially compounded the evidence against him and deprived him of a fair trial. Ordinarily, we review for an abuse of discretion a trial court's decision whether to admit a given piece of evidence. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). However, defendant failed to preserve this issue when he failed to object during the testimony or presentations. MRE 103; In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997). Thus, reversal is not warranted absent plain error that affected defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
A photograph is not rendered inadmissible by a witness' ability to testify about the items depicted, and a photograph may be used to corroborate a witness' testimony. People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod and remanded on other grounds 450 Mich 1212 (1995). Furthermore, repetition of evidence does not warrant an objection unless it results in unfairness that substantially outweighs its probative value. See MRE 403. A party must lay a foundation for the admission of photographs to demonstrate their importance to the jury. See People v Barker, 101 Mich App 599, 603; 300 NW2d 648 (1980). The photographs, videotape, and testimony exhibited by the prosecutor in this case each played a separate role in depicting the scene for the jury. Further, the images and testimony were not graphic or otherwise inflammatory. Therefore, the prosecutor's presentation was not objectionable. See MRE 403.
Defendant next argues that the trial court erred when it excluded his prior consistent statement. The trial court did not abuse its discretion in this regard, however, because defendant clearly made the statement to police after his motive to fabricate arose. See People v Rodriguez, 216 Mich App 329, 331-332; 549 NW2d 359 (1996). Similarly, the trial court did not abuse its discretion when it excluded defendant's former girlfriend's out-of-court statement. The statement did not contradict her in-court testimony as MRE 613(b) requires, and the statement also concerned a collateral issue. See People v Rosen, 136 Mich App 745, 758-759; 358 NW2d 584 (1984).
Defendant also argues that the prosecution deprived him of a fair trial when it improperly vouched for its witnesses' credibility. This Court reviews de novo whether a prosecutor's misconduct deprived a defendant of a fair trial. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001). Again, defendant failed to object to the prosecution's statements at the time they were made, so defendant forfeits this issue unless an objection could not have cured the error or u
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