                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 29, 2018
               Plaintiff-Appellee,

v                                                                   No. 336796
                                                                    Crawford Circuit Court
STEPHAN SCOTT WILSON,                                               LC No. 15-003965-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of five counts of third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with person at least
13 and under 16), and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL
750.520e(1)(a) (sexual contact with person at least 13 and under 16 by actor 5 or more years
older). Defendant was sentenced to concurrent prison terms of 7 to 15 years for the CSC-III
convictions and 16 months to 2 years for the CSC-IV conviction. We affirm.

       This case arises from contacts between defendant and the minor victim, AH, in August
2013, when AH was 15 years old and defendant was 36 years old. Defendant was one of AH’s
supervisors at the farm where she worked. AH testified that defendant asked her to go camping.
According to AH, defendant said that some of his family members would come as well and that
AH could share a tent with his nieces. AH and her grandmother agreed to go camping with
defendant. After AH’s grandmother went to sleep in her own cabin, defendant told AH that his
family was not coming, but that he and AH could share a tent.

         AH testified that she woke up when defendant got on her air mattress. AH told defendant
to leave her alone, but defendant rolled AH over to face him and started rubbing her legs. AH
testified that she repeatedly told defendant to leave her alone, but that his touching kept
escalating. AH testified that defendant performed cunnilingus on her and penetrated her vagina
with his fingers and with his penis. AH testified that later that same night, defendant touched her
breasts under her sweatshirt and again penetrated her vagina with his fingers and with his penis.
AH also testified about another incident, not charged in this case, in which defendant picked AH
up on a motorcycle, took her to his apartment, and there penetrated her vagina with his penis.

       In the weeks following the assaults, AH attempted to avoid defendant despite his repeated
attempts to contact her. AH testified that she first reported the assault to her friend, AK, in
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November. AK testified that after AH reported the assault, AK contacted a teacher, Milline
Heslop. Heslop testified that after AK told her what AH reported, Heslop spoke to AH and told
her that she needed to talk to the principal, Delwin Garcia. AH testified that she reported the
incident to Garcia. Garcia testified that, since he is a mandatory reporter, after AH began telling
him about the assault, he called the authorities and brought in the female vice principal, Kassie
Norcross, to speak with AH. Norcross testified that she spoke to AH about the incident and that
AH showed her messages from defendant on social media. Lorene Henderson, AH’s
grandmother, testified that when they went camping, it was her understanding that AH would
share a cabin with defendant’s nieces. Henderson testified that she was very upset the next day
when she learned that defendant and AH had shared a tent, but that AH denied that anything
happened between AH and defendant. Tonya Baker, a registered nurse, testified that AH’s
medical records indicated that AH reported that a man assaulted her while they were camping;
that the patient fell asleep and awoke to the man asking to lie next to her; that after the patient
refused, the man inserted his penis into her vagina; and that the same thing happened again the
next night.

        Michigan State Police Trooper Andrew Sysko responded to Garcia’s call and interviewed
AH at school. Sysko testified about AH’s report in detail. His testimony largely matched AH’s
testimony. However, Sysko also testified that originally his report stated that the assault
occurred in April 2013, not August 2013, and that originally his report stated that the first two
assaults occurred on consecutive nights, not on the same night. Sysko also testified about his
conversations with Garcia, AK, and SW (another student who worked with AH and defendant).

         On appeal, defendant argues that he received ineffective assistance of counsel. To
preserve a claim of ineffective assistance of counsel, a defendant must bring a timely motion for
a new trial or request a Ginther1 hearing raising the issue. People v Heft, 299 Mich App 69, 80;
829 NW2d 266 (2012). Defendant did not move for a new trial or request a Ginther hearing at
the trial court level. On appeal, defendant has requested remand to the trial court for a Ginther
hearing. However, defendant did not make this request in a proper motion for remand as
required by MCR 7.211(A) and MCR 7.211(C)(1). See People v Bass, 317 Mich App 241, 276 n
12; 893 NW2d 140 (2016) (concluding that the defendant’s request for remand for a Ginther
hearing was improper when the defendant failed to file a motion to remand under MCR
7.211(C)(1) and instead only raised the issue in his Standard 4 brief). Therefore, defendant
failed to preserve the issue, and our review is limited to mistakes apparent on the record. Heft,
299 Mich App at 80.

        To establish a claim of ineffective assistance of counsel, a defendant must establish that
deficient performance of counsel prejudiced the defense. Strickland v Washington, 466 US 668,
687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also People v Pickens, 446 Mich 298, 302-303;
521 NW2d 797 (1994).

        To establish deficient performance, a defendant must show “that counsel’s performance
fell below an objective standard of reasonableness . . . .” Pickens, 446 Mich at 309. In


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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evaluating a claim of ineffective assistance of counsel, there is a “strong presumption” that
counsel’s actions constituted sound trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826
NW2d 136 (2012); see also People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
This Court does not “substitute [its] judgment for that of counsel on matters of trial strategy,” nor
does this Court assess counsel’s competence with the “benefit of hindsight.” People v Unger,
278 Mich App 210, 242-243; 749 NW2d 272 (2008).

        To establish prejudice, a defendant “must show the existence of a reasonable probability
that, but for counsel’s error, the result of the proceeding would have been different.” People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). “ ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” Id. at 600, quoting Strickland, 466 US at
694.

        Defendant bases his claim on defense counsel’s failure to object to hearsay testimony
from Sysko, AK, Heslop, and Norcross, as well as his failure to request a mistrial based on this
testimony. “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE
801(c). Hearsay is not admissible unless it falls within one of the exceptions supplied in the
Michigan Rules of Evidence. MRE 802. However, an out-of-court statement is not hearsay
when its purpose is to demonstrate its effect on a listener, rather than to prove the truth of the
matter asserted. People v Gaines, 306 Mich App 289, 306-307; 856 NW2d 222 (2014).

         Defendant relies heavily on People v Shaw, 315 Mich App 668, 672-677; 892 NW2d 15
(2016), in which this Court concluded that counsel’s failure to object to inadmissible hearsay in a
criminal sexual conduct case fell below the objective standard of reasonableness when the
prosecution presented detailed testimony from witnesses corroborating the complainant’s story
and defense counsel had no strategic reasons for failing to object. In Shaw, defense counsel
failed to object to detailed testimony about statements made by the complainant to several
witnesses, including three family members who described in detail conversations with the
complainant during which the complainant described specific incidents of sexual abuse by the
defendant. Id. at 673-674. Following a 10-day Ginther hearing regarding the performance of the
defendant’s trial counsel, the trial court denied the defendant’s motion for a new trial. Id. at 671.
On appeal, this Court held that defense counsel’s failure to object to this testimony from the
complainant’s family members fell below an objective standard of reasonableness because the
statements were clearly hearsay and defense counsel conceded that he had no strategic reasons
for failing to object. Id. at 674.

        Defense counsel in Shaw also failed to object to testimony from the primary investigating
officer, who recounted detailed descriptions from the complainant about the alleged abuse and
further testified extensively about the actions she took that she believed confirmed and
corroborated the complainant’s stories. Shaw, 315 Mich App at 676-677. In closing arguments,
defense counsel addressed minor inconsistencies between the officer’s testimony and the
complainant’s testimony, such as where the complainant said the defendant worked and the type
of underwear the defendant wore. Id. at 676-677, 677 n 3. This Court held that defense
counsel’s failure to object fell below an objective standard of reasonableness since the statements
were inadmissible hearsay and there was “no basis for defense counsel to have reasonably
concluded that he could obtain a tactical advantage by allowing the inadmissible hearsay

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testimony in order to ferret out inconsistencies” because the inconsistencies were very minor. Id.
at 676-677.

        In People v Douglas, 496 Mich 557, 561, 586; 852 NW2d 587 (2014), which involved
allegations of sexual abuse of the defendant’s then three-year-old daughter, the Court concluded
that there was a reasonable probability that the outcome of the case would have been different
had inadmissible hearsay testimony been disallowed, because “the prosecution’s case hinged
wholly on the credibility of [the complainant’s] allegations,” and the complainant’s credibility
was bolstered through the hearsay testimony of multiple witnesses that they believed the
complainant was being truthful. The Court held that it was reasonably probable that, but for this
testimony, the outcome of the defendant’s trial may have been different, given the centrality of
credibility to the case, the lack of evidence beyond the complainant’s allegations, and the fact
that the witnesses were professionals who were involved in the investigation of the case. Id. at
587-588. See also Shaw, 315 Mich App at 677-678 (holding that it was reasonably probable that
the outcome of the trial would have been different had defense counsel objected to the
inadmissible hearsay testimony of several witnesses, including an examining physician and an
officer who essentially gave “an official stamp of approval” by corroborating and vouching for
the complainant; the hearsay was frequent, extensive, and powerful, and there were no
“significant circumstantial proofs”).

         Here, Sysko’s testimony that Garcia told him that AH disclosed that defendant sexually
assaulted her, and that Garcia relayed AH’s “synopsis” of what happened, was not hearsay
because it was not offered to prove the truth of the matter asserted; rather, it served to explain
why Sysko interviewed AH. “[A] statement offered to show why police officers acted as they
did is not hearsay.” People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007). Since
objection to this testimony would have been futile, counsel cannot be considered ineffective for
his failure to object. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

        Additionally, defendant’s argument that testimony from AK, Heslop, and Norcross was
inadmissible hearsay has no merit. Considering the testimony as a whole, it is apparent that none
of these statements included any detail about the assaults. Instead, these statements were offered
to explain why each respective witness took the steps that she did following AH’s report, not to
prove that AH was assaulted. Since these statements were not offered for the truth of the matter
asserted, they were not hearsay, Gaines, 306 Mich App at 306-307; Chambers, 277 Mich App at
11, and because objection to this testimony would have been futile, counsel cannot be considered
ineffective for his failure to object, Ericksen, 288 Mich App at 201.

       However, Sysko’s testimony about what AK and SW reported to him was arguably
inadmissible hearsay because it was not relevant to why Sysko took the actions he did. As to
SW’s testimony, though, defense counsel objected, and the court instructed the jurors to consider
Sysko’s testimony for the limited purpose of understanding why he took the actions that he did.
Jurors are presumed to follow instructions from the court. People v McDonald, 303 Mich App
424, 437; 844 NW2d 168 (2013). However, the limiting instruction did not address Sysko’s
testimony about what AK told him.

       Regardless of the admissibility of testimony from AK, Heslop, and Norcross, and
testimony from Sysko about what Garcia and AK reported to him, defendant has failed to

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overcome the presumption that failing to object constituted sound trial strategy. None of this
testimony revealed any details about the assaults or reinforced AH’s testimony about how the
assaults happened. Thus, defense counsel may have chosen to stay silent so as not to draw
attention to this testimony. See, e.g., People v Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659
(1995). Therefore, defendant has failed to establish that defense counsel’s conduct fell below an
objective standard of reasonableness when he failed to object to these portions of the testimony.

       However, Sysko’s testimony relaying what AH told him in the interview was much more
extensive than any other hearsay testimony. Sysko went into considerable detail about what AH
reported to him surrounding all three assaults in a manner that may have served to corroborate
AH’s testimony. While there were some inconsistencies between Sysko’s report and AH’s
testimony regarding whether the first two assaults happened in April or August and whether they
happened on one night or on two consecutive nights, those are minor inconsistencies when
compared to the consistency of other details corroborating AH’s testimony about the assaults
themselves. Defense counsel highlighted these inconsistencies in his closing argument and
attempted to impeach Sysko’s credibility by eliciting testimony from Sysko that he did not
follow the protocol required for forensic interviewing and that the purpose behind the protocol is
to ensure that the interviewee is being truthful. However, given the small inconsistencies
compared to the detail provided by Sysko in his testimony, “there was no basis for defense
counsel to have reasonably concluded that he could obtain a tactical advantage by allowing the
inadmissible hearsay testimony in order to ferret out inconsistencies.” Shaw, 315 Mich App at
676-677. Despite the presumption that trial counsel’s trial strategy was sound, Trakhtenberg,
493 Mich at 52, defense counsel’s failure to object to Sysko’s detailed hearsay testimony about
AH’s account of the assaults was not objectively reasonable.

        Nevertheless, even if defense counsel’s failure to object fell below an objective standard
of reasonableness for all of the above testimony, there is not a reasonable probability that the
outcome of the trial would have been different had defense counsel objected. Shaw, 315 Mich
App at 677. None of the testimony from AK, Heslop, or Norcross included details about the
assaults themselves, so the testimony did not serve to provide a more complete account of the
alleged crimes than did AH’s testimony alone. Similarly, none of Sysko’s testimony about what
AK, Garcia, and SW told him included details about the assaults. Additionally, although AH’s
credibility was a central issue at trial, none of the complained-of testimony expressed an opinion
about AH’s truthfulness.

         Turning to Sysko’s more problematic hearsay testimony about what AH reported to him,
defendant has failed to establish that, had defense counsel objected, there is a reasonable
probability that the result of the trial would have been different. Sysko’s testimony largely
mirrored that of AH’s testimony and added no new information to AH’s story. AH also testified
and was thoroughly cross-examined. Defendant argues that Sysko’s testimony was outcome-
determinative because, in addition to confirming the details of AH’s testimony, Sysko vouched
for AH’s credibility when he testified that he told her to tell the truth. However, Sysko also
testified that every child is different in terms of truthfulness, and he admitted that he did not
follow forensic protocol designed to ensure truthfulness of a child’s report. Sysko did not
express an opinion about AH’s credibility; nor did he provide any detail about how he did or did
not corroborate or confirm that AH was telling the truth.


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        Moreover, considerable circumstantial evidence was presented in addition to AH’s direct
account of the assaults. Henderson testified that AH did in fact share a tent with defendant
alone. Multiple witnesses expressed skepticism about the relationship between defendant and
AH, and multiple witnesses testified that they saw AH on the back of defendant’s motorcycle on
the date of the third assault. Finally, several condemning messages exchanged between
defendant and AH on social media were admitted into evidence. The messages did not have the
tone of a mentor concerned about his mentee; rather, they had the tone of a scorned suitor
desperately trying to regain attention. While these pieces of evidence are not direct evidence that
defendant sexually assaulted AH, nor incriminating in and of themselves, they do make it more
likely that defendant had the opportunity to sexually assault AH and did in fact sexually assault
AH.

       We conclude that defendant has failed to establish, on the existing record, that there is a
reasonable probability that the outcome of the trial would have been different had counsel
objected to the hearsay testimony presented at trial.

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Deborah A. Servitto
                                                            /s/ Mark T. Boonstra




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