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147743 - People v Nelson (Robert)

The People of the State of Michigan,
Sylvia L. Linton
(Appeal from Ct of Appeals)
(Bay – Sheeran, J.)
Robert Richard-Howard Nelson,
Wendy H. Barnwell


​Defendant Robert Nelson was charged with second-degree criminal sexual conduct, MCL 750.520c(1)(a), for allegedly sexually touching a young girl while the two were on the couch at Nelson’s mother’s home.  In the alternative, the prosecutor charged Nelson with assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2).  The prosecutor explained that this alternative count was brought in anticipation of a potential defense at trial that Nelson did not actually touch the girl’s genitals. Both counts arose from the alleged touching on the couch. 

Despite this, during his opening statement, defense counsel incorrectly advised the jury that Nelson was being charged with two counts of criminal sexual conduct involving the victim arising from two separate incidents.  Defense counsel said that one count related to the incident that occurred on the couch, and that the second count allegedly occurred during a camping trip.  Defense counsel also told the jury about another uncharged incident between Nelson and the victim.  After defense counsel’s opening statement, prosecutor obtained the trial court’s permission to ask witnesses about the other, uncharged incidents; the trial court agreed with the prosecutor that defense counsel’s opening statement placed the additional allegations before the jury.

As a result, during the trial, the witnesses testified about both the charged and uncharged instances of alleged criminal sexual conduct between Nelson and the victim.  Nelson testified that he touched the young victim one time by accident on the camping trip while they were playing in the water.  With regard to the couch incident, Nelson admitted that he did put his hand underneath the victim’s underwear, but he said that he immediately removed his hand because he knew that it was wrong.

The jury convicted Nelson of one count of second-degree criminal sexual conduct.  Nelson appealed to the Court of Appeals, which affirmed in an unpublished opinion.  In the Court of Appeals, Nelson argued that he was entitled to a new trial because his trial counsel provided ineffective assistance, primarily by introducing evidence of other acts involving Nelson and the victim.  The Court of Appeals panel did not agree.  “To establish ineffective assistance of counsel, a defendant must show ‘that counsel’s performance fell below objective standards of reasonableness, and that it is reasonably probable that the results of the proceedings would have been different if it had not been for counsel’s error,’” quoting People v Frazier, 478 Mich 231, 243 (2007).  The panel agreed that defense counsel’s statement to the jury that it had to consider two charges against defendant was “clearly wrong.”  But counsel’s overall performance did not fall outside the wide range of professionally competent assistance.  The panel noted that evidence of the other acts tended to call into question the victim’s ability to accurately report events, and that defense counsel also attempted to use it to show that the victim’s mother was an unreliable witness with a personal vendetta against Nelson.  Moreover, held the Court of Appeals, Nelson could not establish that the proceedings against him were unfair or unreliable.  The testimony of the witnesses at trial, including Nelson, provided “ample evidence” to support a finding of guilt.  The Court of Appeals also considered Nelson’s claim that the trial court improperly excluded evidence of his mental limitations.  The Court of Appeals ruled that the trial court properly allowed testimony regarding Nelson’s diminished mental capacity for the “limited purpose of explaining his in-court testimony. . .” and that the trial court’s ruling that additional evidence of his mental limitations would be excluded did not deny Nelson his constitutional right to present a defense.

Nelson filed an application for leave to appeal to the Supreme Court.  In an order dated June 18, 2014, the Supreme Court directed the Clerk to schedule oral argument on Nelson’s application.