People v. Woodard





December 9, 2004
v No. 247182
Calhoun Circuit Court

LC No. 02-000035-FC

Before: Cooper, P.J., and Fitzgerald and Hoekstra, JJ.

Defendant Douglas Charles Woodard appeals as of right his jury trial convictions for
first-degree criminal sexual conduct (CSC)1 and aggravated assault.2 The trial court sentenced
defendant to fourteen to thirty years? imprisonment for his CSC conviction and one year in jail
for his assault conviction. We affirm.
The charges in the instant case arose from allegations that defendant, an employee and
resident of Eagle Point Apartments, severely beat the sixteen-year-old daughter of his long-time,
live-in girlfriend in a maintenance garage at the apartment complex on December 18, 2001,
before taking her to a vacant apartment where he sexually assaulted her.
II. Evidentiary Issues
Defendant challenges the admission of the complainant?s testimony that defendant had
sexually assaulted her on previous occasions. Defendant also challenges, for the first time on
appeal, the trial court?s admission of evidence that defendant failed to return a truck belonging to
his employer after he learned of his arrest warrant in this matter. Generally, a trial court?s
decision to admit evidence will be reversed only for an abuse of discretion.3 However, when a

1 MCL 750.520b(1)(f) (force or coercion used to accomplish penetration and victim suffered
personal injury).
2 MCL 750.81a. Defendant was acquitted of assault with intent to do great bodily harm less than
murder, MCL 750.84, and was convicted of the lesser included offense of aggravated assault.
3 People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

trial court?s decision regarding the admission of evidence involves a preliminary question of law,
this court reviews the issue de novo.4
A. Prior Bad Acts Under MRE 404(b)
Defendant first contends that the trial court erred when it admitted the complainant?s
testimony under MRE 404(b), over defendant?s pretrial objection, concerning prior occasions
when defendant forced the complainant to have intercourse. Evidence of other bad acts is
inadmissible to prove an individual?s propensity to act in conformity therewith.5 But such
evidence may be admissible to show ?proof of motive, opportunity, intent, preparation, scheme,
plan or system in doing an act, knowledge, identity, or absence of mistake or accident when the
same is material. . . .?6 We evaluate the admission of other acts evidence by considering if: (1) it
was offered for a proper purpose under MRE 404(b); (2) it was relevant; (3) its probative value
was not substantially outweighed by unfair prejudice; and (4) a limiting instruction was
requested and provided by the trial court.7
The Michigan Supreme Court has found the admission of a minor complainant?s
testimony regarding prior sexual abuse committed by a defendant, who is a member of her
household, admissible in the past. In People v Dermartzex,8 the defendant was charged with
assault with intent to commit rape.9 The Court found that the ten-year-old complainant?s
testimony was admissible to give context to her testimony regarding the current charge and was
relevant to her credibility.10 A trial court has the discretion to admit such evidence where it finds
that the probative value of the evidence of other acts of sexual abuse outweighs its potential for
unfair prejudice.11
In the instant case, the trial court admitted the complainant?s testimony regarding prior
instances of sexual abuse to place her testimony regarding the current CSC charge in context.
The trial court also held that the probative value of this evidence outweighed its potential for
unfair prejudice. Because the trial court did not admit the testimony solely for the purpose of
showing defendant?s propensity to engage in criminal behavior, the presentation of this evidence
did not violate MRE 404(b).12 As in Dermartzex, limiting the complainant?s testimony to the

4 Id.
5 MRE 404(b)(1); People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998).
6 MRE 404(b)(1).
7 People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), mod 445 Mich 1205 (1994);
see also People v Sabin (After Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000).
8 People v Dermartzex, 390 Mich 410; 213 NW2d 97 (1973).
9 Id. at 412.
10 Id. at 414-415.
11 Id. at 415.
12 VanderVliet, supra at 65.

acts charged would have seriously undermined her credibility in the eyes of the jury. Her
testimony concerning the prior acts was relevant and the trial court properly determined that this
evidence was not unduly prejudicial. Consequently, we find that the trial court properly admitted
the complainant?s testimony.
B. Character Trait Under 404(a)(1)
Defendant also asserts that the trial court abused its discretion in admitting testimony
from his former employer, Patricia Roberts, regarding his failure to return a truck belonging to
the apartment complex on December 19, 2001. As defendant failed to object to the admission of
this evidence, our review is limited to plain error affecting defendant?s substantial rights.13
Under MRE 404(a)(1), evidence of a particular character trait is not admissible to show
that a person acted in conformity with the trait on a particular occasion.14 Evidence of a
pertinent character trait may be offered, however, by a criminal defendant or by the prosecution
in an attempt to rebut such evidence once introduced by the defendant.15 Pursuant to MRE
405(a), character evidence, where admissible, may be given by reputation or opinion testimony,
or by the introduction on cross-examination of ?relevant specific instances of conduct.?16
During defense counsel?s cross-examination of Ms. Roberts, she stated that defendant
often used a truck owned by the apartment complex and that he was a ?good and timely
employee.? On redirect, the prosecution questioned Ms. Roberts regarding defendant?s conduct
on December 19, 2001. Ms. Roberts testified that defendant failed to return the truck to Eagle
Point on this date and that she reported it missing.
On cross-examination, defendant intentionally elicited opinion testimony from Ms.
Roberts regarding his character as a good employee. Under MRE 405(a), the prosecution had
the right to test the basis for her opinion by asking questions regarding specific instances of
defendant?s conduct. The prosecution did not initiate this line of questioning to show that
defendant acted in conformity with a particular character trait in committing CSC. Furthermore,
the admission of the evidence did not implicate MRE 404(b).17 Accordingly, the trial court
properly admitted Ms. Roberts?s testimony regarding defendant?s failure to return the truck.

13 People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
14 Lukity, supra at 497.
15 Id.
16 MRE 405(a).
17 See Lukity, supra. In Lukity, the defendant testified that he only engaged in appropriate
activities with his children. Id. at 498. The prosecution then asked defendant whether he ever
provided marijuana to or smoked marijuana with his son. Id. The Court found that the
defendant?s testimony constituted evidence of a pertinent character trait in the context of
accusations that he sexually assaulted his daughter. Id. Consequently, the trial court did not
abuse its discretion in allowing the prosecution to question him regarding specific instances of

II. Ineffective Assistance of Counsel
Both appellate counsel and defendant, in propria persona, assert that defendant received
ineffective assistance of counsel. Absent a Ginther18 hearing, our review is limited to plain error
apparent on the existing record affecting defendant?s substantial rights.19 Effective assistance of
counsel is presumed and defendant bears a heavy burden to prove otherwise.20 To establish
ineffective assistance of counsel, defendant must prove that counsel?s deficient performance
denied him the Sixth Amendment right to counsel and that, but for counsel?s errors, the
proceedings would have resulted differently.21 Defendant must overcome the strong
presumption that counsel?s performance was sound trial strategy.22
Defendant?s appellate counsel asserts that trial counsel was ineffective for failing to
object to the admission of prior bad act and character trait evidence. However, trial counsel did
raise a timely objection to the admission of the complainant?s testimony before the trial actually
began and preserved the issue for appellate review.23 Furthermore, the trial court properly
admitted Ms. Roberts?s testimony concerning defendant?s failure to return the truck. As an
objection to the admission of this evidence would have been meritless, counsel?s failure to object
did not constitute ineffective assistance.24
Defendant contends, in propria persona and for the first time on appeal, that the lawyer
who represented him before trial, Justin D. McCarthy, ineffectively failed to communicate with
defendant or to file a pretrial motion.25 Nothing in the record supports defendant?s contention

conduct pursuant to MRE 405(a). Id. at 499. Additionally, the Court found that the prosecution
did not attempt to introduce the evidence that the defendant smoked marijuana with his son to
prove that he acted in conformity with his character for marijuana use. Id. Therefore, the
prosecution?s cross-examination did not implicate MRE 404(b). Id. at 499-500.
18 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
19 People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). The lower court record is
not limited to the trial transcript. Defendant also unsuccessfully moved for a new trial or Ginther
hearing on August 28, 2003. In relevant part, defendant argued that his trial counsel was
ineffective for failing to move for a directed verdict, failing to object to the admission of other
acts evidence and failing to request the appointment of a defense DNA expert.
20 People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
21 People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
22 Id. at 600.
23 MRE 103(a)(1).
24 People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003).
25 Defendant attached various letters he sent to Mr. McCarthy to his supplemental brief on
appeal. Defendant requested information regarding the court rules pertaining to arrest and
arraignment. Defendant also asked Mr. McCarthy to file a pretrial motion, but failed to indicate
the nature of the desired motion or the relief sought. These letters are not part of the lower court

that Mr. McCarthy failed to communicate with defendant. Additionally, the decision to file a
pretrial motion constitutes a matter of trial strategy, which this Court will not second-guess.26
Regardless of any potential error, Mr. McCarthy withdrew well before the start of trial and
defendant had sufficient time pretrial with his substitute counsel to remedy these claimed errors.
Defendant also asserts that the attorney who actually represented him at trial was
ineffective for failing to impeach the prosecution?s witnesses or to present witnesses supporting
defendant?s testimony. Defendant initially raised his concerns at his sentencing hearing.
Defendant claimed that defense counsel should have called his employers, character witnesses
and individuals who witnessed an accident caused by the complainant on the day before the
charged incident. Decisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy.27 However, defense counsel did question
defendant?s employer. Furthermore, defendant has not established that the testimony of the
remaining witnesses would have affected the outcome of his trial. Defendant also failed to
indicate what actions defense counsel should have taken to impeach the prosecution witnesses.
We are not required to make defendant?s arguments for him and his claimed error is deemed
III. Pre-Arraignment Delay
Defendant raises several issues in propria persona. Defendant asserts that he was held in
custody without bond for more than five days without having an arrest warrant executed on him
and without being arraigned. Defendant asserts that this delay violated his right to be informed
of the nature of the charges against him and his right to a prompt arraignment. Therefore, the
charges should have been dismissed and his convictions reversed. Although this delay was
excessive, defendant is past the time for a proper remedy. Defendant must have had some notice
of the charges against him as he submitted to the authorities. Furthermore, the proper remedy for
such a violation would have been the suppression of any evidence collected as a result of the
delay.29 As defendant has not alleged that any evidence was improperly collected during this
period and has failed to request any appropriate remedy, his claim of error must fail.
IV. Miranda Warnings
Defendant also contends for the first time on appeal that the police violated his Fifth
Amendment rights, as they failed to read him his Miranda30 rights during the pre-arraignment

record. Defendant has impermissibly attempted to enlarge the record, and we may not consider
these letters. People v McMillan, 213 Mich App 134, 141; 539 NW2d 553 (1995).
26 People v Williams, 240 Mich App 316, 331; 614 NW2d 647 (2000).
27 People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
28 People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001).
29 People v Harrison, 163 Mich App 409, 421; 413 NW2d 813 (1987).
30 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

delay. However, Miranda warnings ?need be given only in situations involving a custodial
interrogation.?31 Defendant merely asserts that police failed to read him the Miranda warnings
while he was in custody, not that they failed to read him these rights before questioning him. As
defendant failed to assert that a custodial interrogation occurred, he cannot claim that the police
were required to issue Miranda warnings.
V. Speedy Trial
Defendant argues that he was deprived of his right to a speedy trial.32 When determining
whether a pretrial delay violated a defendant’s right to a speedy trial, courts must consider: ?(1)
the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the right, and
(4) prejudice to the defendant.?33 As defendant?s trial began less than one year after his arrest
warrant was issued, defendant has the burden to prove that he suffered actual prejudice by the
delay.34 Although defendant?s trial was adjourned on three occasions, one of the adjournments
was on defendant?s motion so that delay is attributable to defendant.35 Defendant has not
asserted that he suffered actual prejudice from the delay. As defendant has failed to support his
argument, defendant?s claim is deemed abandoned.36
VI. Compulsory Process Clause
Finally, defendant contends that he was denied his right to compulsory process for
obtaining witnesses for his defense. Under the Compulsory Process Clause of the Sixth
Amendment, every criminal defendant has the right to present witnesses in his defense.37 The
right to compulsory process is not absolute;38 defendant must show that the potential defense
witnesses would have presented testimony ?favorable to the defense.?39 However, defendant
does not allege that he ever made an attempt to secure witnesses or that the trial court denied a

31 People v Coomer, 245 Mich App 206, 219; 627 NW2d 612 (2001).
32 Defendant attached a motion dated August 2, 2002, and filed in propria persona, to his
supplemental brief on appeal. Although the lower court docketed defendant?s motion to dismiss,
it does not appear that the motion was ever considered. As the issue was raised below, however,
it is preserved regardless of the trial court?s omission. Peterman v Dep?t of Natural Resources,
446 Mich 177, 183; 521 NW2d 499 (1994).
33 People v Cain, 238 Mich App 95, 112; 605 NW2d 28 (2000).
34 Id.
35 People v Hendershot, 357 Mich 300, 304; 98 NW2d 568 (1959).
36 Watson, supra at 587.
37 People v McFall, 224 Mich App 403, 407; 569 NW2d 828 (1997), citing Washington v Texas,
388 US 14, 17-18; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).
38 Id. at 408.
39 Id. at 408-409, citing United States v Valenzuela-Bernal, 458 US 858, 873; 102 S Ct 3440; 73
L Ed 2d 1193 (1982).

request to compel any witnesses to appear. As defendant never attempted to invoke the
Compulsory Process Clause in the trial court and failed to establish that the use of such process
would have affected the outcome of his trial, he may not assert its violation on appeal.40
/s/ Jessica R. Cooper
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra