People of Michigan v. Victor Asa-Allen Smith
334626
| Mich. Ct. App. | Dec 14, 2017Background
- Two consolidated appeals arising from sexual abuse of a minor: Smith (perpetrator) and Lee (victim’s legal guardian and Smith’s boyfriend/housemate).
- Smith was convicted by a jury of two counts of first-degree criminal sexual conduct (CSC-I) under MCL 750.520b(1)(b)(i) (victim 13–15 and actor a member of same household).
- Lee was convicted by a jury of second-degree child abuse under MCL 750.136b(3)(b) for allegedly committing an act likely to cause serious harm by failing to protect the victim from Smith; sentenced to probation.
- Key facts: Smith moved in with Lee and the victim; Smith twice had sexual intercourse with the victim; victim told Lee twice and Lee confronted Smith and told the victim “I got it,” but Smith continued to live in the home until the victim’s disclosure to Lee’s father led to police involvement.
- Trial limited Lee’s charge to subdivision (b) of the statute (knowingly or intentionally commits an act likely to cause serious harm regardless of whether harm results).
- Court vacated Lee’s conviction (insufficient evidence of a knowing/intentional affirmative act) and affirmed Smith’s CSC-I convictions (sufficient evidence he was a household member and prosecutor’s remarks did not warrant reversal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Lee’s conviction under MCL 750.136b(3)(b) | Prosecution: Lee’s failure to remove victim or eject Smith after disclosure was an act likely to cause serious harm | Lee: Omission is not an "act" under (b); he did not knowingly or intentionally commit an affirmative act causing harm | Vacated Lee’s conviction — omission alone is not an act under subdivision (b); no evidence of a knowing/intended affirmative act |
| Sufficiency of evidence for Smith’s CSC‑I convictions under MCL 750.520b(1)(b)(i) | Prosecution: Smith lived with victim and Lee, participated in household, so "same household" element satisfied | Smith: He and victim were not members of same household | Affirmed — evidence supported that Smith and victim functioned as a family unit residing together beyond a brief visit |
| Prosecutorial misconduct (vouching) in Smith’s trial | Prosecution: closing argued victim credible and contrasted witnesses; disputed testimony required jury to choose credibility | Smith: Prosecutor vouched and told jurors to believe one side; prejudicial | No plain error — comments were permissible credibility arguments in context and jury instructions mitigated any risk |
| Ineffective assistance for failure to object to prosecutor’s remarks | Smith: defense counsel should have objected; prejudice would likely change outcome | Prosecution: Remarks were not improper; objections would be futile | Denied — remarks were not error; even if objectionable, failure to object to futile argument is not ineffective assistance |
Key Cases Cited
- People v. Henry, 305 Mich. App. 127 (discussing standard of review for sufficiency of evidence)
- People v. Bailey, 310 Mich. App. 703 (circumstantial evidence and reasonable inferences can satisfy burden)
- People v. Phillips, 251 Mich. App. 100 (definition of "household" as family unit residing under one roof)
- People v. Bennett, 290 Mich. App. 465 (contemporaneous objection and curative instruction principles)
- People v. Brown, 279 Mich. App. 116 (test for prosecutorial error and denial of fair trial)
- People v. Callon, 256 Mich. App. 312 (plain-error review where issue not preserved)
- People v. Carines, 460 Mich. 750 (plain-error standard and effect on substantial rights)
- People v. Graves, 458 Mich. 476 (presumption that juries follow instructions)
- People v. Thomas, 260 Mich. App. 450 (permitted prosecutor credibility argument when witnesses conflict)
- People v. Solloway, 316 Mich. App. 174 (standard for ineffective assistance review and preservation)
- People v. Ericksen, 288 Mich. App. 192 (futility of objection and ineffective assistance)