                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 12, 2018
               Plaintiff-Appellee,

v                                                                  No. 336840
                                                                   Wayne Circuit Court
DARRYL JEROME KIRBY,                                               LC No. 16-007007-01-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of second-degree criminal sexual
conduct (“CSC-II”), MCL 750.520c(1)(a), and indecent exposure, MCL 750.335a. The trial
court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 15 to 30 years’
imprisonment for the CSC-II conviction and to time served (142 days) for the indecent exposure
conviction. The trial court additionally ordered defendant to pay $1,300 in court costs and $400
in attorney fees. We affirm defendant’s convictions, but remand for determination of the factual
basis for the costs imposed.

        Defendant was convicted of sexually assaulting his 10-year-old granddaughter. At trial,
the victim testified that during the late evening hours of a date in July 2015, defendant touched
and fondled her breasts while her mother, aunt, and very young cousin were asleep in the
adjoining living room. The victim further testified that defendant then lowered his shorts,
exposed his genitals, and masturbated in front of her. The defense theory at trial was that the
victim’s accusations were not credible. In support of this theory, the defense presented a
photograph of defendant’s genitals to attack the victim’s description of the color of defendant’s
genitals. The jury convicted defendant as charged.

        Defendant raises several issues on appeal in both a brief filed on defendant’s behalf by
his appointed appellate counsel and in a pro se brief filed by defendant pursuant to Supreme
Court Administrative Order No. 2004-6, Standard 4. We will first address defendant’s issues in
his Standard 4 brief.

        Defendant first argues in his Standard 4 brief that the preliminary examination transcript
is not accurate because it does not reflect that the victim recanted her allegations and testified
that defendant did not touch her breasts. It is undisputed that testimony of this nature is not
included in the preliminary examination transcript. Defendant asserts that the transcript was
                                               -1-
inaccurately transcribed and, had the court appointed an expert to compare the video and audio
recording of the hearing to the transcription, errors in the transcript would have been revealed.
Defendant argues that the trial court’s failure to appoint an investigator for this purpose deprived
him of the opportunity to present the victim’s prior inconsistent testimony to the jury. We find
no merit to this issue.

        In People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006), this Court
explained that to obtain appointment of an expert, an indigent defendant “must demonstrate a
nexus between the facts of the case and the need for an expert.” The Court went on to explain
that “[i]t is not enough for the defendant to show a mere possibility of assistance from the
requested expert,” a defendant must show that the expert “would likely benefit the defense[.]”
Id. Without this showing, a trial court does not abuse its discretion when denying a motion for
the appointment of an expert witness. Id.

        Furthermore, in the context of court transcripts, a certified transcript is presumed
accurate. People v Abdella, 200 Mich App 473, 475; 505 NW2d 18 (1993). The court reporter
in this case certified that the preliminary examination transcript was “a complete, true, and
correct record of the recording of the preliminary examination taken in this case[.]” To
overcome the presumption of accuracy, a party is required to “(1) seasonably seek relief; (2)
assert with specificity the alleged inaccuracy; (3) provide some independent corroboration of the
asserted inaccuracy; [and] (4) describe how the claimed inaccuracy in transcription has adversely
affected the [party’s] ability to secure . . . relief[.]” Abdella, 200 Mich App at 476. The
independent corroboration requirement may be satisfied by, for example, “affidavits of
witnesses, trial spectators, police officers, court personnel, or attorneys . . . or perhaps to trial
circumstances that demonstrate the position of the petitioner[.]” Id. at 476 n 2.

        Applying the foregoing principles, the trial court did not abuse its discretion by failing to
appoint an expert to investigate the accuracy of the preliminary examination transcript.
Defendant failed to make the necessary showing that an expert investigation of the accuracy of
the transcript was necessary or would have benefited the defense. When this issue was raised
before the trial court, the prosecutor specifically stated that he did not “recall anything of the
victim recanting” and that it appeared that the transcript from the preliminary examination was
accurate. Defendant’s trial counsel similarly stated that he had no recollection of the victim
saying “no” when asked if defendant touched her breasts. Indeed, it was pointed out that if the
victim had recanted her accusation that defendant touched her breasts, it is unlikely that he would
have been bound over for trial. The trial court even briefly adjourned the proceedings to contact
the court reporter to investigate this issue. After the court reporter had an opportunity to
compare an audio recording to the transcript, she reported back to the court that the existing
transcript accurately reflected the testimony given at the preliminary exam.

        Based on the foregoing, defendant has failed to establish that he would have benefitted
from the appointment of an expert. Not only did defendant fail to offer any independent
corroboration for his claim that the preliminary transcript was inaccurate, but other sources who
were present at the preliminary examination expressly refuted defendant’s claim of inaccuracy.
Other than defendant’s own recollection, there was no evidence even hinting at inaccuracies in
the transcript from the preliminary exam. Accordingly, the trial court did not abuse its discretion
by denying defendant’s motion.

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        Next, defendant argues in his Standard 4 brief that he was denied his constitutional right
to the effective assistance of counsel. Because defendant did not raise this issue in a motion for a
new trial or an evidentiary hearing, review is limited to mistakes apparent on the record. People
v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). “To establish a claim of ineffective
assistance of counsel, a defendant must show both that counsel’s performance was deficient and
that counsel’s deficient performance prejudiced the defense.” People v Riley (After Remand),
468 Mich 135, 140; 659 NW2d 611 (2003). “In order to demonstrate that counsel’s performance
was deficient, the defendant must show that it fell below an objective standard of reasonableness
under prevailing professional norms. In so doing, the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy.” Id. Establishing
prejudice necessarily requires demonstrating a reasonable probability that the result of the
proceeding would have been different but for counsel’s error. People v Nix, 301 Mich App 195,
207; 836 NW2d 224 (2013). Defendant bears the burden of establishing the factual predicate for
his argument. People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).

        Defendant has not demonstrated that trial counsel was ineffective for failing to
investigate the accuracy of the preliminary examination transcript. Based on the existing record,
there is no credible evidence that the preliminary examination was inaccurately transcribed.
Thus, trial counsel had no apparent reason to challenge the accuracy of the transcript. Even if
trial counsel had pursued an investigation into the transcript preparation, there is no evidence that
it would have yielded the result suggested by defendant. Trial counsel is not ineffective for
failing to raise issues that would have been fruitless. People v Cicotte, 133 Mich App 630, 637;
349 NW2d 167 (1984).

        After reviewing the record, we also conclude that there is no merit to defendant’s
argument that trial counsel failed to effectively cross-examine the victim in order to reveal
inconsistencies between her preliminary examination testimony and her trial testimony. For the
most part, defendant has not established the necessary factual predicate for this argument. That
is, he has not demonstrated that the victim’s trial testimony contradicted her preliminary
examination testimony. The majority of the examples cited by defendant do not represent true
inconsistencies in the victim’s testimony. For example, defendant contends that the victim’s
testimony was inconsistent regarding whether the other family members were asleep or awake at
the time of the sexual assault. However, the record discloses that the victim testified consistently
at both the preliminary examination and at trial that all of the family members were asleep at the
time of the assault. Defendant asserts that the victim’s testimony was inconsistent regarding
where he was allegedly standing at the time he touched her breast. According to the record,
however, the victim testified at both hearings that defendant was standing to her side when he
fondled her. Nearly every other example cited by defendant is similarly infirm. 1 Thus, for the


1
  The victim was asked at both the preliminary examination and at trial whether one could see
into the kitchen from the living room. At both hearings, she testified that a person could.
However, she further testified at trial that a person could only see half of the kitchen from the
living room. This would explain her additional trial testimony that at the spot where defendant
touched her, a person could not, from that location, see into the living room. Defendant also
asserts that the victim testified inconsistently with respect to whether he touched her before or


                                                -3-
most part, defendant has not established the factual predicate for this claim of ineffective
assistance of counsel.

       Defendant has only cited one true inconsistency in the victim’s testimony. At the
preliminary examination, the victim testified that when defendant exposed himself, he took his
pants off. At trial, however, the victim testified, referring to pants and shorts interchangeably,
that defendant simply pulled his pants down to his knees. Although defense counsel did not
cross-examine the victim regarding this inconsistency, this omission does not establish that
defendant was denied the effective assistance of counsel.

        The manner in which trial counsel cross-examined the victim was a matter of trial
strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). It may be valid strategy
not to vigorously cross-examine a child sexual abuse victim because counsel “might want to
avoid the appearance of bullying the witness, might believe that the complainant’s testimony can
best be undermined by pointing out inconsistencies with other testimony, and might want to
avoid elaboration on damaging points of testimony . . . .” People v Gioglio (On Remand), 296
Mich App 12, 26; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich 864 (2012).
Defense counsel did cross-examine the victim about the events in question, carefully drawing out
the order of the events. More importantly to the defense, however, counsel specifically asked the
victim about the color of defendant’s penis. Presumably, this was because counsel anticipated
presenting to the jury, in defendant’s case in chief, a photograph of defendant’s penis, for the
purpose of showing that defendant’s skin was darker than that described by the victim. Thus,
rather than attempting to highlight minor discrepancies in the victim’s testimony, defense
counsel clearly intended to discredit the victim’s accusations through the later introduction of the
photographs. Defense counsel’s approach was sound trial strategy, particularly in light of the
fact that he was cross-examining a young girl about a sexual assault. “This Court does not
second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with
the benefit of hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).
Accordingly, defendant has failed to demonstrate the ineffective assistance of counsel in this
regard.

         Finally, defendant has failed to demonstrate that counsel’s failure to call defendant’s
daughter as a witness deprived him of the effective assistance of counsel. In his Standard 4 brief,
defendant asserts that his daughter, if called, would have testified that she told the victim’s
mother, “I didn’t see nothing like that.” However, defendant has not provided any affidavit or
statement from his daughter. Again, defendant has failed to establish the factual predicate for
this claim. Moreover, any such statement would not support a substantial defense. If anything, it
corroborates the victim’s account that defendant’s daughter was asleep when the events
transpired, and thus would not have seen the alleged sexual assault. Moreover, counsel’s failure
to call defendant’s daughter as a witness did not prevent defendant from presenting his defense
that the victim’s accusations were not credible because her description of defendant’s genitals



after she got her oatmeal. At both hearings, however, the victim testified that defendant touched
her after she got her oatmeal from the cabinet.


                                                -4-
did not match the photographic evidence. In sum, defendant has not carried his burden of
demonstrating that defense counsel’s decision not to call defendant’s daughter to testify was
objectively unreasonable or prejudicial.

         Defendant also challenges his sentence on several fronts. First, he argues that because
the trial court considered his prior criminal convictions during sentencing, he was punished twice
for the same crime and, therefore, his sentence violates his double jeopardy protections. This
argument is without merit. It has long been held that imposing an enhanced sentence due to a
consideration of a prior conviction does not constitute a second punishment for that offense.
Monge v California, 524 US 721, 728; 118 S Ct 2246; 141 L Ed 2d 615 (1998); United States v
Mack, 938 F2d 678, 679 (CA 6, 1991).

        The trial court also did not violate his constitutional rights by relying on inaccurate
information in the presentence investigation report (PSIR) to depart from the recommended
minimum sentence range under the sentencing guidelines. Defendant disputes the accuracy of
allegations in the PSIR that he masturbated in front of a prison guard during a previous
incarceration. Before imposing its sentence, however, the trial court made minor corrections to
the PSIR and then asked if any further corrections were necessary. Neither the prosecutor nor
defendant had any further additions, corrections, or deletions to the PSIR. Further, defendant
confirmed that he had reviewed the PSIR with his attorney and when asked if “all the factual
information [was] correct in the body of the report,” defendant replied, “Yes.” Consequently,
defendant waived any further challenge to the accuracy of the information contained in the PSIR.
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).

        In a related argument, defendant argues that trial counsel was ineffective for failing to
object to the alleged inaccuracies in the PSIR. But because defendant acknowledged that he had
reviewed the PSIR with defense counsel and stated that it was accurate, there was no basis for
counsel to have objected to the contents of the PSIR. Trial counsel was not required to file a
frivolous or meritless motion, and thus he will not be deemed ineffective for failing to challenge
the accuracy of the PSIR. See, e.g., People v Henry (After Remand), 305 Mich App 127, 141;
854 NW2d 114 (2014).

       Next, defendant challenges the reasonableness of his departure sentence. Defendant’s
minimum sentencing guidelines range was calculated at 29 to 114 months. The trial court
departed from that range and sentenced defendant to 15 to 30 years’ imprisonment. This Court
reviews a trial court’s departure sentence for reasonableness. People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015). “When reviewing a departure sentence for reasonableness, [the Court]
must review ‘whether the trial court abused its discretion by violating the principle of
proportionality set forth’ in Milbourn[2].” People v Steanhouse (On Remand), ___ Mich App
___, ___; ___ NW2d ___ (2017) (Docket No. 318329) (Steanhouse III); slip op at 2, citing
People v Steanhouse, 500 Mich 453, 477; 902 NW2d 327 (2017) (Steanhouse II). This Court
explained in Steanhouse III:



2
    People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).


                                               -5-
               Under the principle of proportionality standard, a sentence must be
        “proportionate to the seriousness of the circumstances surrounding the offense
        and the offender.” Milbourn, 435 Mich at 636. As such, the sentencing court
        must impose a sentence that takes “into account the nature of the offense and the
        background of the offender.” Id. at 651. Generally, sentences falling within the
        minimum sentencing guidelines range are presumptively proportionate. People v
        Cotton, 209 Mich App 82, 85; 530 NW2d 495 (1995). However, a departure
        sentence may be imposed when the trial court determines that “the recommended
        range under the guidelines is disproportionate, in either direction, to the
        seriousness of the crime.” Milbourn, 435 Mich at 657. [Steanhouse III, ___ Mich
        App at ___; slip op at 2-3.]

“A trial court abuses its discretion if it violates the principle of proportionality test ‘by failing to
provide adequate reasons for the extent of the departure sentence imposed . . . .’ ” Id. at ___; slip
op at 2 (citation omitted).

        This Court in Steanhouse III explained the nature of a proper inquiry:

        Factors that may be considered under the principle of proportionality standard
        include, but are not limited to:

                (1) the seriousness of the offense; (2) factors that were inadequately
                considered by the guidelines; and (3) factors not considered by the
                guidelines, such as the relationship between the victim and the
                aggressor, the defendant’s misconduct while in custody, the
                defendant’s expressions of remorse, and the defendant’s potential
                for rehabilitation. [People v Lawhorn, ___ Mich App ___, ___; ___
                NW2d ___ (2017) (Docket No. 330878); slip op at 7 (citation and
                quotation marks omitted).]

                An appellate court must evaluate whether reasons exist to depart from the
        sentencing guidelines and whether the extent of the departure can satisfy the
        principle of proportionality. See Milbourn, 435 Mich at 659-660 (recognizing
        that “[e]ven where some departure appears to be appropriate, the extent of the
        departure (rather than the fact of the departure itself) may embody a violation of
        the principle of proportionality”). Therefore, even if [sic] cases where reasons
        exist to justify a departure sentence, the trial court’s articulation of the reasons for
        imposing a departure sentence must explain how the extent of the departure is
        proportionate to the seriousness of the circumstances surrounding the offense and
        the offender. See People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008)
        (“When departing, the trial court must explain why the sentence imposed is more
        proportionate than a sentence within the guidelines recommendation would have
        been.”). [Steanhouse III, ___ Mich App at ___; slip op at 3.]

Accordingly, the first step in the review for reasonableness is to determine whether there were “
‘circumstances that are not adequately embodied within the variables used to score the
guidelines.’ ” Id. at ___; slip op at 3, quoting Milbourn, 435 Mich at 659-660.

                                                  -6-
        At defendant’s sentencing, the trial court initially corrected the PSIR to include the fact
that defendant was to be sentenced as a fourth-offense habitual offender, which contemplated a
maximum sentence of up to life in prison. In addition, the court recognized that because this was
defendant’s second criminal sexual conduct conviction, he was subject to a mandatory minimum
sentence of five years pursuant to MCL 750.520f. With respect to the scoring of the offense
variables, the court noted that a score of 10 points for offense variable 4 (psychological injury to
victim) was appropriate because the victim had been experiencing bed wetting and therapy was
contemplated. The prosecutor pointed out that defendant had a previous conviction for first-
degree criminal sexual conduct (CSC-I), which involved the sexual assault of a 14-year-old girl
during a home invasion. The prosecutor requested a minimum sentence of 15 years. In
response, defendant requested that the court consider a sentence within the guidelines range and
continued to attack the credibility of the victim’s accusations. The trial court sentenced
defendant to 15 to 30 years in prison for his CSC-II conviction, commenting as follows:

               What I’m disturbed by – I’m disturbed by a lot of things in this case – the
       fact that this was your granddaughter, the fact that you’ve had a CSC 1st in the
       past with regard to a breaking and entering, and then there was a detailed incident
       in here of when you were in custody of staring at the prison guard and
       masturbating while staring at the prison guard. And that seems awfully similar to
       what happened in this case.

              I read over this Presentence Report very carefully. All of these things
       concern me greatly. And I know that the guidelines are helpful, but they are also
       advisory at this point, and it leaves it to my discretion.

               I don’t believe that these guidelines really take into account that danger
       you pose to society based on this is a third incident of a sexual nature like this,
       including the one that happened while you were in prison. I am very concerned
       for the safety of individuals should you be released. And I don’t think that you
       learned from the first time you were in prison, and it’s very concerning to me.

              So it is the sentence of this Court, sir, that you be sentenced to a period of
       incarceration of 15 years to 30 years in the Michigan Department of Corrections
       based on the Fourth Habitual Offense Notice that was filed. And you will receive
       142 days’ credit for time already served.

We conclude that the trial court did not violate the principle of proportionality when imposing its
sentence.

       To justify defendant’s sentence, the court noted the circumstances related to the nature of
the crimes at issue and defendant’s background. It commented that the guidelines failed to
account, or inadequately accounted for, several compelling factors. First, the court noted that
defendant had victimized his own granddaughter. The relationship between the victim and the
aggressor is a factor not considered by the guidelines. Steanhouse III, ___ Mich App at ___; slip
op at 3. The court specifically cited the circumstances related to defendant’s prior criminal
convictions. Although prior record variables 2 and 3 consider prior convictions, these variables
did not take into account the nature of the prior offenses. The PSIR documented defendant’s

                                                -7-
criminal conviction in 1993 for breaking and entering and CSC-I. The victim of these offenses
was a 14-year-old girl. Further, the court noted that defendant clearly had not learned from his
prior incarceration. The PSIR also referenced defendant’s conduct while in custody. In a prior
incarceration, defendant was cited for sexual misconduct. It was noted that defendant
intentionally left the shower curtain open and was masturbating while staring directly at a prison
guard. The trial court noted that this incident was substantially similar to the events in the
present case. The court also considered defendant’s lack of remorse and his apparent belief that
he had not done anything wrong. Again, these were proper considerations because a defendant’s
potential for rehabilitation, his misconduct in custody, and his lack of remorse are all factors not
considered by the guidelines. Id.

       The court also expressed concern for the public should defendant be released. It noted
that defendant’s history was demonstrating a pattern and proclivity. The court did not err in
considering the need to protect other children as another factor not adequately considered by the
guidelines. See, e.g., People v Armstrong, 247 Mich App 423, 425; 636 NW2d 785 (2001).

        Departure sentences may be imposed when the trial court determines that the
recommended range under the guidelines is disproportionate to the seriousness of the crime.
Steanhouse III, ___ Mich App at ___; slip op at 2-3. Considering the record as a whole, the trial
court took into account the nature of the offense and the background of the offender. It
recognized the serious victimization of defendant’s granddaughter and the danger defendant
posed to society, especially considering his history of sexual offenses against children. It
concluded that a sentence within the guidelines range would not adequately protect society. We
are satisfied that the sentence imposed by the trial court is reasonable because it is “proportionate
to the seriousness of the circumstances surrounding the offense and the offender.” Milbourn,
435 Mich at 636.

       Finally, defendant challenges the imposition of court costs. Because defendant did not
object to the imposition of court costs at sentencing, this issue is not preserved. People v
Johnson, 315 Mich App 163, 197; 889 NW2d 513 (2016). This Court reviews an unpreserved
“challenge to the trial court’s imposition of court costs for plain error.” People v Konopka (On
Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015).

        After a criminal conviction, MCL 769.1k(1)(b)(iii) authorizes the trial court to impose
“any cost reasonably related to the actual costs incurred by the trial court without separately
calculating those costs involved in the particular case[.]” This Court concluded in Konopka, 309
Mich App at 358, that “MCL 769.1k(1)(b)(iii) independently authorizes the imposition of costs
in addition to those costs authorized by the statute for the sentencing offense.” However, the
Court also noted that if the trial court does not establish a factual basis for the costs, appellate
review of whether the costs were reasonably related to the actual costs incurred is impeded. Id.
at 359-360.

        In this case, the trial court ordered defendant to pay $1,300 in court costs and $400 in
attorney fees, but it did not provide a factual basis for the costs and fees imposed. Accordingly,
plaintiff concedes, and we agree, that remand is appropriate to afford the trial court an
opportunity articulate a factual basis for the costs, to allow defendant to challenge the
reasonableness of the costs imposed, and to permit the trial court the opportunity to alter the

                                                -8-
amount if appropriate. Id. at 360; see also People v Stevens, 318 Mich App 115, 120-121; 896
NW2d 815 (2016).

        We affirm defendant’s convictions and his sentence of 15 to 30 years for CSC-II, but
remand for the trial court to articulate a factual basis for its imposition of costs. We do not retain
jurisdiction.



                                                              /s/ David H. Sawyer
                                                              /s/ Joel P. Hoekstra
                                                              /s/ Christopher M. Murray




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