STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 18, 2018
               Plaintiff-Appellee,

v                                                                  No. 339155
                                                                   Ingham Circuit Court
RYAN MICHAEL MORRISON,                                             LC No. 16-000551-FH

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions of second-degree child abuse, MCL
750.136b(3), and assault by strangulation, MCL 750.84(1)(b), against AW, a minor child. We
affirm.

                                       I. BACKGROUND

        In late January 2016, at approximately 8:30 p.m., AW and her sister CW were dropped
off at the Dorsey School in Lansing, where their mother, MW, had been attending vocational
courses. The children were crying, scared, and emotionally distraught when BW, their
stepmother, dropped them off. BW had been providing babysitting services for AW and CW at
her home—where defendant also resided—while the children were living elsewhere with MW.
The children had previously lived in BW’s home until late 2015. Concerned over the girls’
physical appearance, MW’s classmate called the police.

         Earlier that day, while defendant was at work, AW and her step-siblings apparently made
some sort of mess in the house. When defendant arrived home, he became angry and began
yelling at the children. AW testified that defendant “choked me and slapped me on the side of
my head.” She described the choking as “tightly pressing me against the wall and holding my
neck and I couldn’t breathe” and explained that defendant “was, like, bumping me really hard
and I kept stepping back.” AW also testified that defendant grabbed her neck tightly with one
hand, and with his other hand open, slapped her “really hard” on the side of her face. CW
testified that defendant pushed her into a television stand and that she thought defendant had hit
AW with his hand on her neck. CW, however, testified that she did not “have really a good
look” at what defendant had done to AW.


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        Dr. Dana Houghton, M.D., evaluated AW and CW and testified that AW told her that
defendant had punched her in the head and choked her. Dr. Houghton described AW’s injuries
as follows:

       [S]he had some dried blood in the right naris without any associated septal
       hematoma, which is a collection of blood that’s on the septum. She had some
       bruising around the anterior neck, as well as petechiae, which are very small
       hemorrhages around the eyes and across the bridge of the nose. Those petechiae
       extended down behind the angle of the mandible.

AW also had a bruised eye. Dr. Houghton testified that the petechiae and contusions on AW’s
neck were consistent with being choked.

        Dr. Stephen Guertin, M.D., reviewed photographs of AW’s injuries. According to Dr.
Guertin, AW’s injuries were consistent with being grabbed, throttled, or choked. Moreover, Dr.
Guertin opined that the photographs revealed that AW had been struck in the ear or had been
tossed, hitting her ear in the process. Dr. Guertin testified that the “constellation of injuries”
indicated that AW’s injuries were not accidental.

        According to defendant, AW’s injuries were self-inflicted. Defendant’s first witness,
another man who lived in BW’s house, testified that he saw defendant “discipline, not beat,” AW
and CW. The man further testified that defendant smacked the girls “on their clothed behind
wearing snow coats three times.” Similarly, BW testified that she and defendant “spanked them
three times on the butt, and had them stand by the door.”

        The prosecutor also introduced evidence of two prior acts of domestic violence. The first
prior act occurred in January 2014. Trisha Ballard, who lived on the same street as defendant,
recounted that she observed defendant with a little boy outside. According to Ballard, it was
cold outside and the boy was wearing shorts. Ballard testified that defendant forced the boy to
run up and down the street while barefoot. Once defendant took the boy inside the home,
Ballard “heard a blood curdling scream come from the little boy and a loud smack,” and she
called 911. Lansing Police Officer Thomas Winarski responded to defendant’s house that night,
and he testified that his police report indicated that the boy had taken his father’s drink and was
being punished for this. Defendant had taken the boy outside because he had thrown a fit, and
defendant had held him over a snowbank and told him if he did not calm down he would throw
him in the snowbank.

        The second prior act occurred in April 2014. Ballard testified that she observed
defendant “dragging one of the little girls by one arm down the sidewalk.” According to Ballard,
defendant then threw the girl across the yard. Another witness, Annette McPherson, testified
that on that day she saw defendant yelling at the little girl on the sidewalk and saw him “take his
hand . . . and swat her in the back of the head, and she flew forward onto the sidewalk onto her
hands and knees.” McPherson called the police, and Lansing Police Officer Kristi Pratl
responded to the house. Officer Pratl testified that the child “was kind of crying and acting as if
she was in pain,” and that she had “a little bit of scraping on her hands” and a “little bit of
bruising and scraping to her knees.”


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       The trial court instructed the jury that it could not convict defendant “solely because you
think he is guilty of other bad conduct,” but only if the evidence as a whole convinced it beyond
a reasonable doubt that defendant was guilty of the charged crimes. The jury found defendant
guilty of second-degree child abuse and assault by strangulation. The trial court sentenced
defendant to serve 60 to 120 months in prison for second-degree child abuse and 30 to 120
months in prison for assault by strangulation.

       This appeal followed.

                                         II. ANALYSIS

        Other-Acts Evidence. On appeal, defendant first argues that the trial court erred by
admitting evidence of prior acts of domestic violence. “A trial court’s decision to admit
evidence will not be disturbed absent an abuse of discretion. An abuse of discretion occurs when
the trial court chooses an outcome falling outside the range of principled outcomes.” People v
Brown, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 339318); slip op at 3
(cleaned up).

       Under MCL 768.27b(1), “in a criminal action in which the defendant is accused of an
offense involving domestic violence, evidence of the defendant’s commission of other acts of
domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise
excluded under Michigan rule of evidence 403.” MCL 768.27b(5)(a) defines “domestic
violence” to mean:

       an occurrence of 1 or more of the following acts by a person that is not an act of
       self-defense:

             (i) Causing or attempting to cause physical or mental harm to a family or
       household member.

               (ii) Placing a family or household member in fear of physical or mental
       harm.

                                             * * *

              (iv) Engaging in activity toward a family or household member that would
       cause a reasonable person to feel terrorized, frightened, intimidated, threatened,
       harassed, or molested.

“Family or household member” includes an “individual with whom the person resides or has
resided.” MCL 768.27b(5)(b)(ii).

       It is not contested that the children subject to defendant’s aggression lived in the same
household as him at times. The other-acts evidence tended to show defendant’s attempts to
cause physical harm to these children and was admitted at a proceeding where the jury was
charged with determining whether defendant physically assaulted a child who formerly lived in
his household. Thus, the evidence was admissible under MCL 768.27b and relevant to the extent

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that it tended to make more likely defendant’s abuse of the current victim. MRE 401.
Accordingly, the only avenue by which the evidence may have been excluded is MRE 403.

        “Exclusion is required under MRE 403 when the danger of unfair prejudice substantially
outweighs the probative value of the evidence.” Brown, ___ Mich App at ___; slip op at 3
(cleaned up). Given that multiple witnesses, including two police officers, testified to the other-
acts evidence, there was substantial evidence from which the jury could conclude that defendant
actually committed the other assaults. See People v Watkins, 491 Mich 450, 487-488; 818
NW2d 296 (2012). Moreover, the other-acts occurred within an approximate two-year span of
the charged act. See id. The other-acts evidence tended to show that defendant would lose his
temper and aggressively and physically discipline his housemates’ children. The evidence was
therefore highly relevant to show that defendant lost his temper on this occasion and aggressively
and physically disciplined AW. See id. Although the evidence was prejudicial, it was not
unduly prejudicial. Indeed, the trial court properly instructed the jury that it could not convict
defendant solely on the basis of the other-acts evidence, thereby minimizing the risk that the jury
would consider the evidence for an improper purpose. People v Mahone, 294 Mich App 208,
212; 816 NW2d 436 (2011). Thus, we conclude that MRE 403 did not warrant exclusion of the
other-acts evidence. Defendant’s argument is without merit.

        Sufficiency of the Evidence. Defendant next argues that the prosecutor presented
insufficient evidence to support the convictions. Challenges to the sufficiency of the evidence
are reviewed de novo. People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). The
reviewing court must determine if, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could find that the prosecution proved each essential element
of the crime beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85
(2012). A trier of fact may consider circumstantial evidence and all reasonable inferences that
evidence creates. Solloway, 316 Mich App at 180-181. “It is for the trier of fact, not the
appellate court, to determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences.” People v Flick, 487 Mich 1, 24-25; 790
NW2d 295 (2010) (cleaned up).

        A defendant is guilty of second-degree child abuse if he “knowingly or intentionally
commits an act likely to cause serious physical or mental harm to a child regardless of whether
harm results.” MCL 750.136b(3). “Serious physical harm” refers to “any physical injury to a
child that seriously impairs the child’s health or physical well-being.” MCL 750.136b(1)(f). A
defendant is guilty of assault by strangulation if he intentionally impedes the “normal breathing
or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or
mouth of another person.” MCL 750.84.

        The evidence was sufficient to support defendant’s convictions. AW testified that
defendant “choked me and slapped me on the side of my head.” She described the choking as
“tightly pressing me against the wall and holding my neck and I couldn’t breathe.” AW’s
testimony was corroborated by her sister and two medical experts testified that AW’s injuries
were consistent with being choked and struck or thrown. Indeed, the contusions and petechiae
indicated that defendant was restricting AW’s normal blood flow, causing her blood vessels to
rupture. Although AW did not actually suffer a life-long physical impairment from the assault,
the extent of her injuries shows that a serious impairment was likely from defendant’s choking of

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her. The evidence was therefore sufficient to support defendant’s convictions for second-degree
child abuse and assault by strangulation.

         Judicial Impartiality. Defendant next argues that the trial judge’s conduct pierced the
veil of judicial impartiality and unduly influenced the jury’s verdict. Criminal defendants have a
right to a fair and impartial jury trial. People v Stevens, 498 Mich 162, 170; 869 NW2d 233
(2015). “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct pierces
the veil of judicial impartiality.” Id. at 170-171. “A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by
creating the appearance of advocacy or partiality against a party.” Id. at 171.

        Having reviewed the record, we cannot conclude that the trial judge pierced the veil of
judicial impartiality. On balance, the trial judge’s comments appear to be attempts to control the
proceedings in his courtroom and the admission of evidence and do not show bias towards either
party.

       For example, defendant argues that the trial judge’s partiality is evidenced by the
following exchange with one of his witnesses, George Smith:

               The Court: Let me ask you a question. We don’t want your opinions.

               The Witness: I know that.

               The Court: Then stop giving them.

               The Witness: Okay.

               The Court: Just answer the questions. You got that?

              The Witness: I was asked if it was okay if they used me as a reference to
       spank the children, and I said they could use it—

              The Court: Mr. Smith, you were not asked this. No one asked you to
       volunteer this kind of information. You were told not to and now you go ahead
       and do it anyway.

               The Witness: You asked me what I was asked and I am telling you.

               Defense Counsel: Mr. Smith—

              The Court: Stop.       Mr. Smith, if you continue along this path your
       testimony will end.

Taken in context, the record shows that the trial judge was trying to prevent the erroneous
admission of evidence that could unduly prejudice the jury. Before the trial judge made the
remarks at issue to Smith, defense counsel asked Smith a question to which Smith began to
answer, but deviated from his direct response to state that “I was already told I can’t say things,

                                                -5-
which doesn’t make sense. . . . Which is weird because . . . .” At that point, the trial judge
interjected to prevent Smith from testifying about his own opinions on evidentiary issues in an
attempt to sway the jury. The trial judge’s comments prevented a lay witness from improperly
orating and do not evidence any bias.

       Similarly, defendant argues that the trial judge’s partiality was demonstrated by the
following exchange with defense counsel:

               The Court: If this is for impeachment, you do not have to necessarily show
       it to her. You can read it into the record and ask her if she said it. You can do it
       either way you want, but refreshing recollection, everybody seems to think that’s
       the magic tool. It’s not.

              Defense Counsel: I can do it however the Court prefers.

             The Court: No. I am not preferring anything. I don’t think anybody
       knows evidence anymore. You can read.

                                             * * *

              Defense Counsel: Objection, Your Honor. I am going to ask that the next
       two lines be read if this is going to be refreshing.

               The Court: I believe that if she doesn’t introduce something that you feel
       is applicable, you can do that. Didn’t you know that?

This exchange does not indicate any bias. Rather, it shows an attempt to control the admission
of evidence in accordance with the rules of evidence. Moreover, review of the entire record
confirms that the trial judge made similar remarks to the prosecutor and prosecution witnesses.
While the trial judge could have used less acerbic language and tone, we conclude that, on
balance, the trial judge’s comments do not indicate any bias for or against defense counsel.
Defendant’s claims of judicial partiality are without merit.

        Ineffective Assistance of Counsel. Finally, defendant argues that he received ineffective
assistance of counsel by his trial attorney’s failure to exercise a peremptory challenge with
respect to a juror, a physician who knew Dr. Guertin. An appellate court is required to reverse a
defendant’s conviction when defense “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v
Washington, 466 US 668, 687-88; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant
requesting reversal of an otherwise valid conviction bears the burden of proving “(1) the
performance of his counsel was below an objective standard of reasonableness under prevailing
professional norms and (2) a reasonable probability exists that, in the absence of counsel’s
unprofessional errors, the outcome of the proceedings would have been different.” People v
Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000).

      During jury selection in this case, juror number seven indicated that he was a physician at
Sparrow Hospital and that some of the witnesses in the case were familiar to him, particularly
Dr. Guertin and Dr. Houghton. Nonetheless, through extensive questioning by defense counsel
                                               -6-
and the trial court, juror number seven stated several times that he could be a fair, conscientious
juror. Thus, it was reasonable to conclude that defense counsel believed that juror number seven
would not be biased against defendant. Thus, defendant has failed to show that defense
counsel’s decision not to exercise a preemptory challenge on this juror fell below an objective
standard of reasonableness. Defendant’s claim of ineffective assistance is without merit.

               Affirmed.



                                                            /s/ Brock A. Swartzle
                                                            /s/ David H. Sawyer
                                                            /s/ Amy Ronayne Krause




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