Other acts evidence admitted under MCL 768.27b; People v Berklund; Unfair prejudice; MRE 403; Ineffective assistance of counsel; Closing argument comments; Whether defense counsel conceded defendant’s guilt; Failure to make a futile objection; Lay witness opinion testimony; MRE 701 & 704; Prejudice

The court held that the trial court did not abuse its discretion in admitting other acts evidence under MCL 768.27b, and rejected defendant’s ineffective assistance of counsel claims. Thus, it affirmed his first-degree felony murder and first-degree child abuse convictions. The victim was defendant’s then-girlfriend’s four-year-old son. The “trial court allowed the prosecution to introduce evidence of two prior acts of domestic violence by defendant under MCL 768.27b, both involving his ex-girlfriend.” The incident at issue on appeal occurred in 12/19. While this “act of domestic violence was against his ex-girlfriend rather than a child in defendant’s care, it demonstrated defendant’s propensity for committing acts of violence against individuals with whom he lived when he became upset with them. At trial, the prosecution presented ample testimony indicating that the victim often had bathroom-related accidents, that defendant had previously become upset with the victim and punished him for having a bathroom-related accident, and that the victim had a bathroom-related accident shortly before he was fatally injured. There were no witnesses to the incident that resulted in the victim’s fatal injuries,” and the other acts “evidence was probative of whether defendant did, in fact, commit an act of violence against the victim. While the propensity inference from this evidence was certainly damaging to defendant, that inference weighed in favor of the evidence’s admission under the statute, and” he failed to show “the evidence was otherwise unfairly prejudicial such that it should not have been admitted.” As to his ineffective assistance claims, while he was correct “that defense counsel may not concede a defendant’s guilt during closing argument without their consent,” the court found it “clear from the record that defense counsel did not do so in this case.” Defendant also did not show that the “testimony of the victim’s mother and the investigating detective” that he contended defense counsel should have objected to “amounted to an impermissible opinion on his guilt of the charged offenses, or that counsel performed deficiently by failing to object to it.” The court added that, even if it “were to conclude that defense counsel performed deficiently in any or all of the ways” defendant claimed, he “failed to establish prejudice warranting relief.”