People v. Johnson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
April 19, 2016
Plaintiff-Appellee, 9:20 a.m.

v No. 325857
Berrien Circuit Court
JORDAN CONRAD JOHNSON, LC No. 2014-003481-FC

Defendant-Appellant.

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

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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 of 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 as mentioned previously. 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 to
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 of the trial court’s action.
People v Kowalski, 489 Mich 488, 503; 803 NW2d 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 . . . No 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. 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
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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 NW2d 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 NW2d 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 NW2d 246 (2002).

The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Trakhtenberg, 493 Mich at 51.
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 NW2d 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. 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 NW2d 229 (2012).
A defendant must also overcome a strong presumption that his counsel’s decisions were the
result of sound trial strategy. People v Sabin, 242 Mich App 656, 659; 620 NW2d 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 NW2d 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 NW2d 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 NW2d 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
context in which they are used.” People v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013).

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.
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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. 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). Dogs do not have rights and duties as do humans, and in fact are considered
personal property. Koester v VCA Animal Hosp, 244 Mich App 173, 176; 624 NW2d 209
(2000). Therefore, MCL 600.2163a did not provide the trial court with the authority to allow
Mr. Weeber to accompany the victim and the victim’s brother while they testified.

Although MCL 600.2163a did not provide the trial court with that specific authority, we
hold that the trial court had the inherent authority to utilize this courtroom procedure. As one
panel of this Court has previously held, the existence of MCL 600.2163a does not preclude trial
courts from using alternative procedures to protect and assist witnesses while testifying, as the
Legislature provided that the protections set forth in MCL 600.2163a are “in addition to other
protections or procedures afforded to a witness by law or court rule.” MCL 600.2163a(20);
People v Rose, 289 Mich App 499, 509; 808 NW2d 301 (2010). While a trial court may rely on
MCL 600.2163a to afford witnesses certain protections, it is well-established that trial courts
“have long had the inherent authority to control their courtrooms, which includes the authority to
control the mode and order by which witnesses are interrogated.” Id., citing MCL 768.29 and
MRE 611(a).

The authority and discretion afforded to trial court’s to control the course of trial is, in
fact, very broad. People v Banks, 249 Mich App 247, 256; 642 NW2d 351 (2002). For example,
included in this authority, among others, is the ability for a trial court to shackle a defendant
during trial, People v Dunn, 446 Mich 409, 425-427; 521 NW2d 255 (1994), to shackle a witness
while he testifies, Banks, 249 Mich App at 257, to impose time limitations on the examination of
witnesses, People v Thompson, 193 Mich App 58, 62; 483 NW2d 428 (1992), implied overruling
on other grounds by People v Dennany, 445 Mich 412; 519 NW2d 128 (1994), to bind and gag
an “unruly, disruptive, rude and obstreperous” defendant when repeated warnings to a defendant
are ineffective, People v Kerridge, 20 Mich App 184, 186-188; 173 NW2d 789 (1969), to
remove an uncooperative defendant from the courtroom until he agrees to conduct himself
properly, Illinois v Allen, 397 US 337, 343-344; 90 S Ct 1057; 25 L Ed 2d 353 (1970), and to
allow jurors to ask questions to the witnesses, People v Heard, 388 Mich 182, 187; 200 NW2d
73 (1972).

In addition to the above examples, this inherent authority also includes the ability to
employ procedures that assist a witness when testifying, such as the use of a witness screen to
prevent the witness from seeing the defendant, Rose, 289 Mich App at 509, the use of
“anatomically correct” dolls to help a witness demonstrate a sexual offense,1 People v Garvie,

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MCL 600.2163a(3) now provides a trial court with the specific authority to utilize this
procedure.

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148 Mich App 444, 451-452; 384 NW2d 796 (1986), and the use of two-way interactive
videoconferencing, People v Burton, 219 Mich App 278, 287; 556 NW2d 201 (1996). Much like
the use of a screen to make a witness more comfortable when testifying—but much less
offensive to the Sixth Amendment Confrontation Clause—the use of a support animal allows the
trial court to ease the situation for a young traumatized or fearful witness, while at the same time
allowing the jury and the defendant to view the witness while testifying. We therefore hold that
it is within the trial court’s inherent authority to control its courtroom and the proceedings before
it to allow a witness to testify accompanied by a support animal. MCL 768.29; MRE 611(a).2
Thus, any objection to the trial court’s authority to allow the victim and victim’s brother to be
accompanied by the support animal while they testified would have been meritless.
Accordingly, counsel’s performance did not fall below an objective standard of reasonableness
for failing to object on this basis. Unger, 278 Mich App at 257.

2. DUE PROCESS

While “we recognize that a trial court is entitled to control the proceedings in its
courtroom, it is not entitled to do so at the expense of a defendant’s constitutional rights.”
People v Arquette, 202 Mich App 227, 232; 507 NW2d 824 (1993). Thus, we next address
defendant’s contention that trial counsel should have objected to the notice of a support person
on the basis that allowing the young witnesses to testify accompanied by the support animal
violated his constitutional right to due process.

“Every defendant has a due process right to a fair trial, which includes the right to be
presumed innocent.” Rose, 289 Mich App at 517. In certain circumstances, courtroom
procedures or arrangements undermine this presumption of innocence because the procedure or
arrangement is deemed inherently prejudicial. Id. With regard to challenges of an inherently
prejudicial courtroom procedure, the United States Supreme Court has explained that

[w]henever a courtroom arrangement is challenged as inherently prejudicial . . .
the question must be not whether jurors actually articulated a consciousness of
some prejudicial effect, but rather whether “an unacceptable risk is presented of

2
Other jurisdictions have likewise expressly held that a trial court’s decision to allow a support
animal to accompany a witness while testifying was within the trial court’s authority to control
courtroom proceedings. People v Tohom, 109 AD3d 253, 267; 969 NYS2d 123 (2013) (Court’s
inherent authority allowed it to permit the use of a support animal); People v Spence, 212 Cal
App 4th 478, 517; 161 Cal Rptr 478 (2012) (General rule of evidence giving trial court power to
set reasonable controls upon the mode of interrogation of child witnesses allowed the use of
support animal); People v Chenault, 227 Cal App 4th 1503; 175 Cal Rptr 3d 1 (2014); State v
Devon D, 150 Conn App 514, 543; 90 A3d 383 (2014) (Court has inherent authority to utilize
support animal to assist testifying victims); State v Jacobs, 2015 Ohio 4353; __ NE3d __ (Ohio
App 2015) (Rule of evidence gave trial court authority to utilize support animal for child
victim’s testimony); State v Dye, 178 Wash 2d 541, 553; 309 P3d 1192 (2013) (Court had power
to control trial proceedings, including the use of support animal).

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 impermissible factors coming into play.” [Holbrook v Flynn, 475 US 560, 570;
106 S Ct 1340; 89 L Ed 2d 525 (1986).]

“[I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show
actual prejudice, the inquiry is over.” Id. at 572. However, an inherently prejudicial procedure
will not be upheld if the procedure was not necessary to further an essential state interest. Id. at
568–569.

When determining whether a practice is inherently prejudicial, a court will focus on
whether “the practice gives rise primarily to prejudicial inferences or whether it is possible for
the jury to make a wider range of inferences from the use of the procedure.” Rose, 289 Mich
App at 518. Similar to a victim’s use of a protective screen when testifying, a reasonable jury
could conclude that the support animal is being used to calm the witness’s general anxiety about
testifying, or simply being in an unfamiliar setting. Id. at 520 Thus, the practice does not give
rise to primarily prejudicial inferences, as it is possible for the jury to make a wide range of
inferences from the use of this procedure that are unrelated to defendant. Id. In addition, the use
of a support animal is unlike the inherently prejudicial practices of clothing a defendant in his
prison outfit or the shackling of a defendant, as the use of a support animal does not “brand[] a
defendant with the mark of guilt.” Id. Instead, the support animal is merely present to assist the
witness, and the presence of the animal does not reflect upon the guilt or innocence of a
defendant. Therefore, the use of a support animal does not create “an unacceptable risk . . . of
impermissible factors coming into play.” Holbrook, 475 US at 570.

Fortunately, our nation is a union of independent states, and so we can, when appropriate,
turn to decisions of our sister states for guidance. At least two other courts have similarly held
that allowing a support animal to accompany a witness while testifying is less prejudicial than
allowing a support person—which is statutorily permitted in this state—to accompany the
witness. People v Tohom, 109 AD3d 253, 272-273; 969 NYS2d 123 (2013); People v Chenault,
227 Cal App 4th 1503, 1515; 175 Cal Rptr 3d 1 (2014). Specifically, the Tahom court stated:

In fact, permitting a comfort dog to accompany a child victim to the stand
during testimony can be considered less prejudicial than allowing “support
persons.” As explained in Using Dogs for Emotional Support of Testifying
Victims of Crime, an article by Marianne Dellinger for the Animal Law Review
of Lewis and Clark Law School:

While dogs may signal the innocence of a witness, any signal from
a dog will be much weaker than that emitted from an adult
attendant. An adult, especially one who can understand the
entirety of the case, including its legal underpinnings, may be seen
by a jury to add credibility to the arguments of the plaintiff’s
witness. In contrast, a dog is ‘neutral’ and does not understand any
of the legal and factual arguments. It serves the limited function of
physically and emotionally standing by the testifying witness[.]”
[Tohom, 109 AD3d at 272-273.]

These decisions are consistent with our conclusion that the use of a support animal is more
neutral, and thus less prejudicial, than the use of a support person—a procedure deemed
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permissible by our Legislature. Their use in appropriate circumstances is therefore not
inherently prejudicial.

Since the challenged practice is not inherently prejudicial, defendant is required to show
that he was actually prejudiced by the practice. Holbrook, 475 US at 571. This he cannot do.
The record indicates that Mr. Weeber was brought in by the victim and sat at her feet while she
testified and the same procedure occurred when the victim’s brother testified. There is no
indication that Mr. Weeber was visible to the jury while the witnesses testified, or that he barked,
growled, or otherwise interrupted the proceedings or made his presence known to the jury.
Therefore, any objection on the basis that this practice violated defendant’s right to due process
would have been meritless. Defendant is not entitled to a new trial on this basis.

3. PROCEDURAL PROTECTIONS

Defendant, relying on Chenault, 227 Cal App 4th 1503, next argues that his counsel was
ineffective for failing to request various procedural protections if the support animal was used.
Specifically, defendant contends counsel was ineffective (1) when counsel allowed the use of the
support animal despite the fact the trial court made no case-specific finding of “good cause,” and
(2) for failing to request a limiting instruction. We address each of these arguments in turn.

a. FINDINGS

As mentioned above, defendant cites Chenault—a case involving the use of a support
dog—in support of his argument that there are necessary findings a trial court must make before
allowing a witness to utilize a special procedure when testifying. However, before discussing
Chenault, we find it necessary to review the leading Supreme Court precedents on what case-
specific findings, if any, are required when a special procedure is used to assist a witness when
he testifies.

The first instructive case is Coy v Iowa, 487 US 1012; 108 S Ct 2798; 101 L Ed 2d 857
(1988). In Coy, the defendant was arrested and charged with sexually abusing two underage
girls while they were camping in their backyard. Id. at 1014. The prosecution requested that the
complaining witnesses be allowed to testify from behind a screen, which would allow the
defendant to see the witnesses, but would prevent the witnesses from seeing the defendant. Id. at
1014-1015. In assessing whether the procedure violated the defendant’s right to confrontation,
the Court stated that “the Confrontation Clause guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact.” Id. at 1016. Justice Scalia, writing for the
Court, determined that a face-to-face confrontation is guaranteed because it “is always more
difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ ” Id. at 1019.

When turning to the facts in Coy, the Court held that it was “difficult to imagine a more
obvious or damaging violation of the defendant’s right to a face-to-face encounter.” Id. at 1020.
Nevertheless, the Court did not expressly rule out the use of special procedures when the
procedure infringed upon a defendant’s right to confrontation. In fact, the Court held that there
may be exceptions to the Confrontation Clause, but those exceptions would only “be allowed
when necessary to further an important public policy.” Id. at 1021. The Court rejected the
prosecution’s argument that such a necessity was established by a legislatively imposed
presumption of trauma when it stated that “something more than the type of generalized finding
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underlying such a statute is needed when the exception is not ‘firmly . . . rooted in our
jurisprudence.’ ” Id. (citation omitted). Because there had “been no individualized findings that
these particular witnesses needed special protection, the judgment here could not be sustained by
any conceivable exception” and the Court remanded the case for a harmless-error review. Id. at
1021-1022.

Approximately two years later, the Court issued Maryland v Craig, 497 US 836; 110 S Ct
3157; 111 L Ed 2d 666 (1990). In Craig, the defendant was charged with physically and
sexually abusing a six-year-old who attended the defendant’s kindergarten center. Id. at 840.
The prosecution requested that the child be allowed to testify by means of one-way closed-circuit
television. Id. The trial court permitted the use of the procedure after it received evidence and
made a finding, pursuant to the relevant statute, that the child witness would suffer serious
emotional distress to the extent that the child would not be able to reasonably communicate. Id.
at 842-843.

The United States Supreme Court held that the procedure did not violate defendant’s
right to confrontation. The Court noted that the Confrontation Clause does not require “an actual
face-to-face encounter in every instance in which testimony is admitted against a defendant” and
that Supreme Court precedent established only “a preference for face-to-face confrontation.” Id.
at 848-849. This preference, according to the Court, “must occasionally give way to
considerations of public policy and the necessities of the case.” Id. at 849. Although the right to
a face-to-face confrontation is not absolute, the Court noted that it cannot be easily dispensed,
making clear that a special procedure may only be used if the prosecution shows that it is
“necessary to further an important state interest.” Id. at 850, 852. The Court held that there was
a “compelling” state interest “in the protection of minor victims of sex crimes from further
trauma and embarrassment.” Id. at 852 (citation and quotation marks omitted). Because the
prosecution was able to demonstrate that there was an important state interest, it was required to
make an adequate showing of necessity. Id. at 855. With regard to the findings of necessity to
justify the use of a special procedure, the Supreme Court stated:

The requisite finding of necessity must of course be a case-specific one:
The trial court must hear evidence and determine whether use of the one-way
closed circuit television procedure is necessary to protect the welfare of the
particular child witness who seeks to testify. The trial court must also find that the
child witness would be traumatized, not by the courtroom generally, but by the
presence of the defendant. Denial of face-to-face confrontation is not needed to
further the state interest in protecting the child witness from trauma unless it is the
presence of the defendant that causes the trauma. In other words, if the state
interest were merely the interest in protecting child witnesses from courtroom
trauma generally, denial of face-to-face confrontation would be unnecessary
because the child could be permitted to testify in less intimidating surroundings,
albeit with the defendant present. Finally, the trial court must find that the
emotional distress suffered by the child witness in the presence of the defendant is
more than de minimis, i.e., more than “mere nervousness or excitement or some
reluctance to testify[.]” [Id. at 855-856 (citations omitted.).]

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Although both Coy and Craig involved Confrontation Clause issues, and our case does not, they
nevertheless provide some insight into that Court’s treatment of procedures that assist a witness
in testifying in open court.

Having reviewed the pertinent Supreme Court cases, we next turn to the case more
heavily relied on by defendant—Chenault. In Chenault, 227 Cal App 4th 1503, the California
Court of Appeals assessed the practice of allowing a young witness to testify accompanied by a
support animal. Id. at 1516-1517. The defendant in Chenault, relying on Coy and Craig, argued
that the trial court abused its discretion when it allowed a young victim to testify accompanied by
a support dog without individualized showings of necessity. Id. at 1516. The Chenault court
concluded that a case-specific finding that an individual needs the presence of a support dog, as
outlined in Coy and Craig, was not required as the Confrontation Clause was not implicated. Id.
The Court reached this holding because “unlike testimony on a one-way closed circuit television,
[the use of a support person or support animal] does not deny a face-to-face confrontation,” id.,
which is the principle concern of the Confrontation Clause.

Although the Chenault court determined no case-specific finding was required to ensure
compliance with constitutional safeguards, the court did conclude that a trial court was required
to find that the presence of the support dog would assist or enable the witness to testify without
undue harassment or embarrassment and provide complete and truthful testimony, in accordance
with a California statute requiring a trial court to “take special care to protect [a witness under
the age of 14] from undue harassment or embarrassment.” Id. at 1514, 1420. The Chenault
court concluded that the trial court did not abuse its discretion in allowing the young witness to
testify accompanied by the support animal because the record revealed the trial court’s implicit
findings. Id. at 1517-1518, 1520-1521.

Initially, we agree with Chenault that the required findings pursuant to Coy and Craig are
not required in this instance because the Confrontation Clause is not implicated. As stated in
People v Pesquera, 244 Mich App 305, 309; 625 NW2d 407 (2001):

The right to confront one’s accusers consists of four separate requirements: (1) a
face-to-face meeting of the defendant and the witnesses against him at trial; (2)
the witnesses should be competent to testify and their testimony is to be given
under oath or affirmation, thereby impressing upon them the seriousness of the
matter; (3) the witnesses are subject to cross-examination; and (4) the trier of fact
is afforded the opportunity to observe the witnesses’ demeanor.

Here, the use of a support dog did not implicate the Confrontation Clause because it did not deny
defendant a face-to-face confrontation with his accuser as the victim and the victim’s brother
testified on the witness stand without obstruction. In addition, the presence of the dog did not
affect the witnesses’ competency to testify, did not affect the oath or affirmation given to the
witnesses, the witnesses were still subject to cross-examination, and the trier of fact was still
afforded the unfettered opportunity to observe the witnesses’ demeanor. Accordingly,
defendant’s right to confrontation was not implicated by use of the procedure and no specific-
finding was required to ensure compliance with the Confrontation Clause. We therefore reject
defendant’s argument that the trial court was required to make findings of good cause or
necessity before it allowed the use of the support animal.

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 While the Confrontation Clause is not implicated in this case, as a practical matter it will
be the better practice for trial courts to make some findings regarding its decision to use or not
use a support animal. Other jurisdictions that have addressed the use of a support animal are
split on whether the trial court is required to make explicit findings of necessity, even when the
Confrontation Clause is not implicated. For example, in State v Dye, 178 Wash 2d 541, 553; 309
P3d 1192 (2013), the court rejected the assertion that the prosecution was required to
demonstrate “substantial need” or “compelling necessity” because the trial court “is in the best
position to analyze the actual necessity” of the special procedure and held that a trial court’s
decision will not be reversed unless the record fails to reveal a party’s reasons for needing a
support animal, or when the record indicates the trial court failed to consider those reasons.
Similar to Dye, the court in Tohom did not require any explicit findings before allowing the use
of a support animal because the statute authorizing the trial court to allow the special procedure
did not “set forth any ‘necessity’ criterion” for a court to consider when exercising its discretion.
Tohom, 109 AD3d at 266. Likewise, the Jacobs court did not require a trial court to make
explicit findings; it only required courts to consider the facts and circumstances of the case.
State v Jacobs, 2015 Ohio 4353; __ NE3d __ (Ohio App 2015); slip op at 6. In contrast to those
cases, the Connecticut Appellate Court determined that the trial court, when exercising its
inherent authority to control its courtroom, was required to make an explicit finding that “there
was a need for [the use of the support animal] to be implemented.” State v Devon D, 150 Conn
App 514, 550; 90 A3d 383 (2014).

Lastly, the Chenault court held that a trial court was required to find that the use of a
support animal would assist or enable the witness to testify without undue harassment or
embarrassment, in compliance with the California statute governing a trial court’s ability to “take
special care” of child witnesses. Chenault, 227 Cal App 4th at 1514, 1517. Although the court
recognized that express findings on the record were the preferred practice, the court determined
that it would not reverse a trial court’s decision to utilize the procedure if sufficient evidence was
on the record, as implicit findings were adequate. Id. at 1520.

In our state, the Legislature has addressed the issue of a trial court’s authority to control
trial proceedings. MCL 768.29 provides, in part:

It shall be the duty of the judge to control all proceedings during the trial, and to
limit the introduction of evidence and the argument of counsel to relevant and
material matters, with a view to the expeditious and effective ascertainment of the
truth regarding the matters involved.

This statute makes clear that “it is the duty of the judge to control all proceedings during the trial
. . . with a view to the expeditious and effective ascertainment of the truth.” But it is also clear
that there is no requirement for a trial court to make any particular findings when exercising that
power. Thus, when the use of a support animal is requested, a trial court should allow its use
when it is useful to the expeditious and effective ascertainment of the truth. In employing its
discretion, the court should consider the facts and circumstances of each individual witness to
determine whether the use of the support animal will be useful to the expeditious and effective
ascertainment of the truth.

Turning to defendant’s ineffective assistance of counsel argument, defendant is not
entitled to relief as any objection on the grounds that the trial court failed to make a finding of
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“good cause” would have been meritless. As discussed above, a trial court’s decision to allow
the procedure will be reversed only when the procedure was not useful to the expeditious and
effective ascertainment of the truth. The six-year-old victim was the victim of first and second-
degree criminal sexual conduct, which was allegedly3 perpetrated by the victim’s family
member, her uncle. Additionally, the victim and the victim’s brother expressed a desire to use
the special procedure as they elected to be accompanied by Mr. Weeber, instead of their mother
or father, who were listed as support persons on the prosecution’s notice of intent. Furthermore,
the notice of intent indicated that the support animal was to be used to protect and support the
witnesses while they testified. Given the witnesses’ young age, it is likely that the trial court
would have found that the use of the support dog was useful to the expeditious and effective
ascertainment of the truth and any objection to the contrary would have been meritless.4

Defendant also cannot overcome the presumption that counsel’s failure to object was
sound trial strategy. At trial, the defense’s theory was that the victim was “coached” to say that
defendant committed these sexual acts. In fact, during closing argument, defense counsel argued
that the victim was able to “spit back, so to speak, her script,” and that she kept “saying the same
thing that we think was fed to her by these other people, her parents or whatever.” Thus, it very
well could have been trial counsel’s strategy to allow the support animal to accompany the
victim while testifying so that she would appear calm while testifying, which would make it
appear that she was coached on what to say at trial. Consequently, defendant has not overcome
the strong presumption that counsel’s performance was sound trial strategy.

b. LIMITING INSTRUCTION

Defendant next contends that a limiting instruction should have been provided to the jury
when the support animal was utilized. Defendant’s attorney failed to request one, and according
to defendant, this rendered his counsel ineffective. He is wrong.

There are no Michigan jury instructions addressing the use of a support animal. Nor are
there any cases addressing what otherwise may be an appropriate jury instruction when using
support animals. And, as already pointed out, the statute allowing use of support persons
contains no requirement for any particular findings or instructions to be given to the jury.
Consequently, we are hard pressed to conclude that counsel was ineffective in failing to ask for
an instruction that does not yet exist in Michigan. This is particularly so when, as explained

3
Allegedly at the time of trial. On appeal from a conviction, the defendant is no longer
presumed innocent. People v Peters, 449 Mich 515, 519; 537 NW2d 160 (1995).
4
When a witness will be testifying accompanied by a support animal, it may be wise for the
witness and support animal to get situated on the witness stand outside the presence of the jury.
Chenualt, 227 Cal App at 1519. Once situated and the jury returns to the courtroom, the trial
court should inform the jury that the witness will be accompanied by a support animal while
testifying. Id.

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below, the trial court provided a sufficient instruction to ensure that the jury did not rely on the
support animal’s presence in reaching its verdict.5

Indeed, even assuming counsel’s performance was deficient for failing to request a
specific instruction regarding the use of the support dog, defendant was not prejudiced because
the jury instruction provided by the trial court informed the jury to decide the case based solely
on the evidence and to not render a decision based on sympathy or bias.6 Because we presume
jurors follow their instructions, People v Mahone, 294 Mich App 208, 218; 816 NW2d 436
(2011), the jury should have disregarded the presence of the dog while deliberating since the dog
was not part of the evidence. Accordingly, defendant has not shown but for defense counsel’s
error, the result of the proceeding would have been different. Heft, 299 Mich App at 81.

B. ADMISSIBILITY OF HEARSAY STATEMENTS

Defendant next argues that the trial court abused its discretion when it admitted
inadmissible hearsay. However, this issue has also been waived, precluding appellate review.
Kowalski, 489 Mich at 503. Prior to trial, the prosecution filed a notice of intent to use
statements the victim made to Mann during a physical examination, arguing that the statements
were admissible under MRE 803(4). At a scheduling conference prior to trial, defense counsel

5
We do note that the Chenualt court provided a good example of an instruction for use in these
situations. Depending, of course, on the circumstances confronting the trial court, a court may
consider instructing the jury that it (1) “should disregard the dog’s presence and decide the case
based solely on the evidence presented, [(2)] should not consider the witness’s testimony to be
any more or less credible because of the dog’s presence, and [(3)] should not be biased either for
or against the witness, the prosecution, or the defendant based on the dog’s presence.” Chenualt,
227 Cal App 4th at 1518.
6
In this case, the trial court informed that jury that the witness would be accompanied by a
“therapy dog from the prosecutor’s office.” Defendant takes issue with the trial court’s use of
the term “therapy dog.” Though we are not overly concerned with the nomenclature used for
these support dogs, we note that at least one court has stated that “[t]he preferred term for a dog
used in a courthouse setting to provide comfort to a witness is facility dog,” but also recognized
that the cases and literature utilize other appropriate terms, such as “testimony dogs, courthouse
dogs, companion dogs, therapy dogs, service dogs, comfort dogs, therapy assistance dogs,
support canines, and therapeutic comfort dogs,” because “these terms imply canine functions in
providing comfort and reducing anxiety.” Devon D, 90 A3d at 399 n 10 (citation and quotation
marks omitted). However, we agree with defendant that the term “therapy dog” is not the most
appropriate, particularly because the term could imply that the witness was undergoing therapy
as a result of the sexual assault. Nonetheless, the trial court also indicated that the dog was from
the prosecutor’s office, thus signaling to the jury that the dog was not the witness’ own therapy
dog, but rather one provided by the prosecution to assist the witness with providing testimony.
Therefore, no error occurred and any objection to the trial court’s use of the term therapy dog
would have been meritless.

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indicated that he had researched the issue and had no objection to the notice. Given that
defendant clearly indicated that he had no objection to the hearsay statements, defendant waived
this issue and the waiver eliminated any error. Id.

Alternatively, defendant argues that his trial counsel should have filed an objection to
exclude the victim’s hearsay statements made to Mann because they were not trustworthy, and
was ineffective in not doing so. “ ‘Hearsay’ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). Hearsay is generally not admissible unless an exception to the
rule applies. MRE 802. One exception to the hearsay rule is contained in MRE 803(4) which
permits admission of “[s]tatements made for purposes of medical treatment or medical diagnosis
in connection with treatment . . . .” MRE 803(4). “Particularly in cases of sexual assault, in
which the injuries might be latent . . . a victim’s complete history and a recitation of the totality
of the circumstances of the assault are properly considered to be statements made for medical
treatment.” Mahone, 294 Mich App at 215.

In People v Meeboer (After Remand), 439 Mich 310, 315; 484 NW2d 621 (1992), the
Court examined the application of MRE 803(4) to hearsay statements made to medical providers
by child victims of sexual abuse. The Meeboer Court held that an inquiry into the
trustworthiness of a child’s statements made to a health care provider should “consider the
totality of circumstances surrounding the declaration of the out-of-court statement,” and
identified the following factors in determining the trustworthiness of a child’s statement:

(1) the age and maturity of the declarant, (2) the manner in which the statements
are elicited (leading questions may undermine the trustworthiness of a statement),
(3) the manner in which the statements are phrased (childlike terminology may be
evidence of genuineness), (4) use of terminology unexpected of a child of similar
age, (5) who initiated the examination (prosecutorial initiation may indicate that
the examination was not intended for purposes of medical diagnosis and
treatment), (6) the timing of the examination in relation to the assault (the child is
still suffering pain and distress), (7) the timing of the examination in relation to
the trial (involving the purpose of the examination), (8) the type of examination
(statements made in the course of treatment for psychological disorders may not
be as reliable), (9) the relation of the declarant to the person identified (evidence
that the child did not mistake the identity), and (10) the existence of or lack of
motive to fabricate. [Id. at 324–325 (footnotes with citations omitted).]

In the present case, the victim was six-years old and defendant admitted that she was
“smart,” indicating the maturity of the declarant. The record indicates that Mann used open
ended questions when eliciting the statements from the victim and that the purpose of the
examination was to make sure the victim was “healthy” and to make sure she was safe in her
home. Additionally, Mann opined that the victim phrased her statements in a childlike manner
because she emphasized the fact that defendant did not wash his penis before putting it in her
mouth, which would be in contrast to an adult that would likely emphasize the actual act of
penetration.

The evidence also suggests that the victim may have still been under distress of the
sexual acts as she initially did not want to discuss the acts with Mann. The examination was held
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on August 5, 2014, less than one month after the victim’s disclosure, and more than four months
prior to trial, tending to show that the purpose of the exam was not for litigation purposes. There
was also no evidence that the victim made a mistake in identification because the person
identified as the perpetrator was her uncle, someone with whom she was familiar. These factors
all weigh in favor of finding that the victim’s statements to Mann were trustworthy. In contrast,
only two factors weigh against a finding that the victim’s statements were trustworthy. First, the
record indicates that CPS initiated the examination, which could demonstrate that the medical
examination was not intended for medical treatment or diagnosis. Second, testimony was
presented that the victim did not like it when defendant babysat because he would make them
clean and do chores, thus suggesting a motive to fabricate. After a review of the relevant factors,
the totality of the circumstances support the admission of the victim’s statements as they were
trustworthy, indicating that any objection to the admission of the hearsay statements would have
been meritless. Consequently, defendant’s trial counsel was not constitutionally ineffective.
Unger, 278 Mich App at 257.

C. JUDICIAL BIAS

We also disagree with defendant that his trial counsel was ineffective for failing to file a
motion to disqualify the trial judge because she was biased. “A criminal defendant is entitled to
a ‘neutral and detached magistrate.’ ” People v Jackson, 292 Mich App 583, 597; 808 NW2d
541 (2011), quoting People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). A
defendant claiming judicial bias must overcome a heavy presumption of judicial impartiality.
Jackson, 292 Mich App at 598 (citation and quotation marks omitted). “Judicial rulings, as well
as a judge’s opinions formed during the trial process, are not themselves valid grounds for
alleging bias ‘unless there is a deep-seated favoritism or antagonism such that the exercise of fair
judgment is impossible.’ ” Id., quoting People v Wells, 238 Mich App 383, 391; 605 NW2d 374
(1999).

Here, defendant argues that the trial judge was biased because she found the victim
credible at the preliminary examination. However, “[m]erely proving that a judge conducted a
prior proceeding against the same defendant does not amount to proof of bias for purposes of
disqualification.” People v White, 411 Mich 366, 386; 308 NW2d 128 (1981). Further, the trial
judge’s opinion of the victim’s credibility was formed during the trial process (the preliminary
examination), which is an insufficient ground for proving bias unless the defendant can show
that there was deep-seated favoritism or antagonism such that the exercise of fair judgment was
impossible. Jackson, 292 Mich App at 598. Defendant points to the fact that the trial judge
subsequently allowed the victim to testify with a support animal at trial to demonstrate that the
trial court was not able to exercise fair judgment, but nothing reflects that this ruling was made
out of deep-seated favoritism or antagonism. Instead, the ruling was made primarily because of
the young victim’s age. Thus, defendant cannot overcome the heavy presumption of judicial
impartiality, which means any motion to disqualify the trial judge would have been meritless.
Accordingly, defendant was not denied the effective assistance of counsel.

D. COURT COSTS AND FINE

Defendant also takes issue with the trial court’s order requiring him to pay $600 in court
costs and a $100 fine. Because defendant failed to object when the trial court ordered him to pay
court costs and the fine, the issue is unpreserved. People v Konopka (On Remand), 309 Mich
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App 345, 356; 869 NW2d 651 (2015). An unpreserved challenge to a trial court’s imposition of
court costs is reviewed for plain error affecting a defendant’s substantial rights. Id. In order for
a defendant to establish plain error, he must show that (1) an error occurred, (2) the error was
plain, clear or obvious, and (3) the plain error affected substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999).

MCL 769.1k, as interpreted by People v Cunningham, 496 Mich 145, 158; 852 NW2d
118 (2014), did not provide trial courts with separate statutory authority to impose court costs at
sentencing. In response to the Cunningham decision, the legislature enacted 2014 PA 352,
which was a curative measure to address the authority of courts to impose costs under MCL
769.1k. Konopka, 309 Mich App at 354-355, 357. The amended version of MCL 769.1k applies
to court costs ordered before June 18, 2014, and after October 17, 2014, the effective date of the
amendatory act. Id. at 355, 357. MCL 769.1k now provides:

(b) The court may impose any or all of the following:

(i) Any fine authorized by the statute for a violation of which the defendant
entered a plea of guilty or nolo contendere or the court determined that the
defendant was guilty.

(ii) Any cost authorized by the statute for a violation of which the defendant
entered a plea of guilty or nolo contendere or the court determined that the
defendant was guilty.

(iii) Until 36 months after the date the amendatory act that added subsection (7) is
enacted into law, any cost reasonably related to the actual costs incurred by the
trial court without separately calculating those costs involved in the particular
case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court buildings and
facilities.

Although defendant contends that giving retroactive effect to 2014 PA 352 would violate
the state and federal Ex Post Facto Clauses, this Court in Konopka held that 2014 PA 352 does
not violate the state and federal Ex Post Facto Clauses as the “court costs imposed under MCL
769.1k(1)(b)(iii) are not a form of punishment” because the court costs are intended to be a civil
remedy Id. at 370, 373. To the extent defendant argues that Konopka was wrongly decided, this
Court is bound by that decision. MCR 7.215(J)(1).

Defendant also argues that the trial court erred when it imposed upon him a $100 fine.
As mentioned above, MCL 769.1k allows the trial court to impose “any fine authorized by the
statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the
court determined that the defendant was guilty.” MCL 769.1k(1)(b)(i). Here, defendant was
found guilty of first-degree criminal sexual conduct, MCL 750.520b(1)(a), and second-degree

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criminal sexual conduct, MCL 750.520c(1)(a), neither of which allow for the imposition of a
fine. Therefore, as the prosecution concedes, the trial court erred when it ordered defendant to
pay a $100 fine.

E. RESTITUTION

We agree—as does the prosecution—that the trial court erred when it ordered defendant
to pay $900 in restitution for damages caused by a course of conduct that did not give rise to a
conviction. See People v McKinley, 496 Mich 410, 419-20; 852 NW2d 770 (2014). The trial
court shall reduce the restitution order by $900.

F. PROSECUTORIAL ERROR

In defendant’s Standard 4 brief, he argues several unpreserved instances of prosecutorial
error, including the prosecutor’s use of leading questions and certain errors during the
prosecutor’s opening statement and closing argument. However, defendant has abandoned these
issues by providing no case law or legal analysis to support his assertion that the prosecutor
engaged in prosecutorial error. “An appellant may not merely announce his position and leave it
to this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.” People v Payne, 285 Mich App 181,
195; 774 NW2d 714 (2009). Even assuming that the issue was not abandoned, defendant is not
entitled to relief.

MRE 611(d)(1) provides that “[l]eading question should not be used on the direct
examination of a witness except as may be necessary to develop the witness’ testimony.”
However, a prosecutor has considerable leeway to ask leading questions to child witnesses.
People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). In order to demonstrate that
reversal is warranted for the prosecution asking leading questions, it is necessary “to show some
prejudice or pattern of eliciting inadmissible testimony.” Id. at 588.

In this case, the prosecutor’s use of leading questions was necessary to develop the
victim’s testimony. The victim was three-years old at the time the sexual acts occurred and was
only six-years old at the time she testified. It is clear from her testimony that she was distraught
and needed guidance to develop her testimony. Many times the victim asked for clarification or
did not understand the questions that were asked by the prosecutor. Given that leading questions
were necessary to develop the victim’s testimony, no plain error occurred. Moreover, reversal is
not required as defendant has not shown any prejudice or pattern of eliciting inadmissible
testimony by the prosecutor’s use of leading questions.7

7
In addition, defendant complains of leading questions at his preliminary examination.
However, a preliminary examination is not a constitutional based procedure and any errors that
occur at a preliminary examination will be deemed harmless if the defendant is subsequently
convicted at an otherwise fair trial. People v Hall, 435 Mich 599, 602-603, 611-613; 460 NW2d
520 (1990). Defendant has not shown that he was denied a fair trial, and is not entitled to relief.

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 Lastly, defendant raises numerous instances of alleged prosecutorial error during opening
statements and closing arguments. To determine whether prosecutorial error has occurred, this
Court looks to whether the defendant received a fair and impartial trial. Watson, 245 Mich App
at 586. The appropriate time for a prosecutor to state what evidence will be submitted and what
he intends to prove at trial is during opening statements. People v Meissner, 294 Mich App 438,
456; 812 NW2d 37 (2011). When a prosecutor states that evidence will be submitted, and the
evidence is not presented, reversal is not warranted if the prosecutor did so acting in good faith.
People v Johnson, 187 Mich App 621, 626; 468 NW2d 307 (1991). With regard to closing
arguments, a prosecutor may not make a factual statement to the jury that is not supported by the
evidence, but a prosecutor is free to argue the evidence and all reasonable inferences arising from
it as it relates to the theory of the case. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546
(2007). Furthermore, a prosecutor may not inject into trial his personal beliefs or opinions of a
defendant’s guilt. People v Erickson, 288 Mich App 192, 200; 793 NW2d 120 (2010).

After a review of the record, we conclude that most of the alleged instances of
prosecutorial error were arguments that were supported by facts (or the reasonable inferences
from these facts) in evidence. To the extent any prosecutorial error did occur during opening
statements and closing arguments, defendant is unable to establish that he was prejudiced. The
trial court subsequently instructed the jury to base the verdict solely on the evidence that was
presented and that the attorney’s arguments were not evidence. This instruction cured any
prosecutorial error that may have occurred during opening statements and closing argument.
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Relief is not warranted.

We affirm defendant’s convictions and sentences, but remand for the trial court to modify
the judgment of sentence consistent with this opinion. We do not retain jurisdiction

/s/ Christopher M. Murray
/s/ Peter D. O'Connell
/s/ Jane E. Markey

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