            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       February 13, 2020
                Plaintiff-Appellee,

 v                                                                     No. 345281
                                                                       Grand Traverse Circuit Court
 HOWARD LEROY MCCANN,                                                  LC No. 18-012866-FH

                Defendant-Appellant.


Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

          Defendant appeals by right his jury-trial convictions of third-degree child abuse,
MCL 750.136b(5), and domestic violence, third offense, MCL 750.81(5). The trial court
sentenced defendant concurrently to two years’ probation, with the first seven months to be served
in jail, for each conviction. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On October 30, 2017, defendant’s 14-year-old daughter, PM, was disciplined at school for
using her phone in class. Defendant picked PM up from school, and upon arriving home told PM
to clean up their camper. According to PM, when they got home, defendant “got really mad and
then I kind of was backing up into the corner of the camper between where my bed was and the
shower area, and I was flinching, putting my hands up again. And, he told me if I flinched or
backed away like that he would give me a reason to.” PM testified at trial that defendant then
“backhanded” her one time to her eye. PM stated that this left a bruise evidenced by two
fingerprints (as opposed to a whole hand). PM recalled that she was between her bed and the
shower at the time, and that the force of defendant’s slap caused her to fall backward and hit her
head on a metal bar. She testified that when she tried to get up, her vision was “a little blurry” and
she “felt dizzy.” PM testified that after defendant hit her, he “grabbed me by like the baby hairs
on my neck and kind of led me inside” of Rose Pepsin’s house, which was located on the same
property as defendant’s camper. PM stated that defendant spanked her three or four times while
she was bent over a chair in Pepsin’s living room, and that the spanking was “hard enough it hurt
really bad” for around 20 minutes and caused it to be painful for her to sit down. PM also testified



                                                 -1-
that defendant had her raise her arms for 30 minutes to an hour after he spanked her, and told her
that if she moved her arms, he would spank her again.

        PM testified that she noticed the bruise on her eye one or two days after the incident. She
also stated that the spanking “left a hand print for a while[.]” When the prosecution asked if
defendant had hit her previously, PM testified that defendant had hit her within the past year while
they were living in a different camper. She also testified that defendant had hit her one other time
when she was “much younger.” She stated that after the incidents in which defendant struck her,
defendant “acted like they never happened” and that defendant “expected [her] to act like they
never happened.” The prosecution asked whether defendant was drinking alcohol “during any of
these incidents, or around that time[.]” PM responded affirmatively regarding one of the incidents,
but was never asked to clarify as to which incident. PM stated that she “always kind of thought
[defendant] was more or less calmer when he was drinking and felt like [she] wasn’t going to get
in trouble for things when he was drinking.”

        Defendant testified and admitted to “slapping” PM with an open hand, but stated that he
did it “for her welfare” and “to try to get her attention . . . [b]ecause she was physically out of
control.” Defendant stated that PM did not fall from the force of the slap. Defendant also admitted
that he took PM to Pepsin’s house to spank her, but denied pulling PM’s hair on the way to the
house. He acknowledged that he made PM bend over the chair and stay there for around 15 to 20
minutes so that she could “contemplate what was going to happen” before he spanked her with his
hand three times. Defendant said that he did not look to see whether he left any marks, but he said
that he knew he did not hit PM hard enough to cause any bruises. He also testified that he had PM
stand in a corner and put her arms up, but said that it was probably only for “15 minutes, maybe,
and [he] gave her a break.”

        Several individuals, including the CPS worker assigned to investigate the case, Pepsin, and
defendant’s sister, testified that after October 30 they noticed that PM had a black eye. The trial
court also admitted a photograph taken by CPS of the bruise on PM’s eye. When counsel showed
defendant this picture, he stated that it looked like makeup and that PM often used makeup to
create a fake black eye.

       The jury convicted defendant as described. This appeal followed.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that his trial counsel provided ineffective assistance by failing to object
to the following portions of PM’s testimony: (1) that defendant had previously slapped PM within
the past year in a different camper and on another occasion when PM was younger; (2) that




                                                -2-
defendant told her in the past to not “tell anybody”; (3) that defendant had a history of drinking
alcohol; and (4) that defendant had called her names in the past.1 We disagree.

        A claim of ineffective assistance of counsel presents a “mixed question of fact and
constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review
for clear error the trial court’s findings of fact, and review de novo questions of constitutional law.
Id. Because no Ginther2 hearing was held, our review is limited to the existing record. People v
Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). We review de
novo issues of statutory interpretation. See People v Pinkney, 501 Mich 259, 268; 912 NW2d 535
(2018).

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate
that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), citing Strickland
v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Effective assistance of
counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). Counsel is not required to make futile
objections. People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

         Evidence of a person’s character is generally inadmissible to prove that a defendant acted
in accordance with that character on a particular occasion. MRE 404(a). However, evidence of
other acts may be admissible under MRE 404(b) if (1) it is offered for a proper purpose, such as
intent, identity, or absence of mistake or accident; (2) it is relevant under MRE 402; and (3) its
probative value is not substantially outweighed by the danger of unfair prejudice under MRE 403.
People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994);
MRE 404(b)(1). Relevant evidence is “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” MRE 401.

        In contrast to MRE 404(b), when a defendant is accused of domestic violence in a criminal
case, prior acts of domestic violence are “admissible for any purpose for which it is relevant, if it
is not otherwise excluded under Michigan rule of evidence 403.” MCL 768.27b(1) (emphasis
added). Both MRE 404(b) and MCL 768.27b require the prosecution to provide a defendant with
notice prior to trial that it intends to introduce such evidence.

       We conclude that even if defense counsel had raised an objection to PM’s other-acts
testimony, such an objection would have been futile. PM’s testimony was logically relevant and
probative of defendant’s intent. People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014).
Because defendant’s intent or knowledge was an element of third-degree child abuse,


1
  Defendant does not provide a citation to what portion of PM’s testimony he is referencing. PM
testified that defendant called her “the ‘B’ word,” but this was after the incident on October 30,
2017.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                 -3-
MCL 750.136b(5), proving that defendant intentionally or knowingly committed child abuse was
a proper purpose under MRE 404(b). VanderVliet, 444 Mich at 79-81. And in any event, evidence
of prior acts of domestic violence was properly admitted under MCL 768.27b(1).

        Moreover, PM’s testimony that defendant slapped her in the camper within the year prior
to the incident was relevant to the third-degree child abuse charge in order to show that defendant
intended to slap PM and that it was not an accident or mistake. See People v Knox, 469 Mich 502,
513; 674 NW2d 366 (2004) (explaining that evidence of prior physical abuse of a child is relevant
to prove that a defendant’s subsequent injuries were not an accident). Evidence that defendant
told PM not to tell anyone after he hit her would be relevant for similar reasons.

        PM’s testimony was not substantially outweighed by the danger of unfair prejudice. “[A]ll
evidence is somewhat prejudicial to a defendant—it must be so to be relevant.” People v Magyar,
250 Mich App 408, 416; 648 NW2d 215 (2002). “Unfair prejudice” means that there is a tendency
that the jury will give too much weight to evidence that has little probative value or that there is
the tendency that the evidence will “adversely affect the opposing party’s position by injecting
considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or
shock.” People v McGhee, 268 Mich App 600, 607; 709 NW2d 595 (2005) (quotation marks and
citation omitted).

       Evidence that defendant previously struck PM was not “extraneous to the merits of the
lawsuit” because, as previously mentioned, this evidence was highly probative for the jury to
determine whether defendant committed the charged offenses. Id. Further, the potential for unfair
prejudice was limited by the trial court’s limiting instruction. In relevant part, the trial court stated:

        The prosecution has introduced evidence of claimed acts of domestic violence by
        the defendant for which he is not on trial. Before you may consider such alleged
        acts as evidence against the defendant you must first find the defendant actually
        committed those acts. If you find the defendant did commit these acts you may
        consider them in deciding the defendant committed the offenses for which he is
        now on trial. You must not convict the defendant here solely because you think he
        is guilty of other bad conduct.

Jurors are presumed to follow their instructions, People v Mahone, 294 Mich App 208, 212; 816
NW2d 436 (2011).

       Because evidence of other acts of domestic violence was relevant and not unduly
prejudicial, any objection would have been futile. Thomas, 260 Mich App at 457.3 Therefore,


3
 PM’s testimony regarding defendant’s drinking does seem, at best, marginally relevant, as it does
not appear that any party asserted that defendant was intoxicated during the incident that led to the
current charges. However, to the extent that PM’s testimony regarding defendant’s past alcohol
use can be considered other-acts evidence, we note that defendant can show no prejudice from its
admission. PM merely made an isolated statement that defendant had been drinking at the time of
one of the previous incidents, and added that generally drinking made defendant calmer.


                                                   -4-
defendant cannot establish that had counsel objected to this other-acts evidence, there was “a
reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at
51.

        Defendant nonetheless argues that the trial court may have declined to admit PM’s
testimony if defense counsel had objected on the ground that the prosecution had failed to provide
notice under either MCL 768.27b(1) or MRE 404(b). We agree that the record contains no
evidence that the prosecution provided such notice; this Court has stated that failure to give such
notice is plain error. People v Hawkins, 245 Mich App 439, 453; 628 NW2d 105 (2001).
However, such an error is harmless when the challenged evidence is admissible, the defendant has
not described how he would have reacted differently if he had received pretrial notice, and in
general the lack of notice “lacked the significant effect, either alone or in concert with other
factors,” to warrant reversal. Hawkins, 245 Mich App at 453. Such is the case here; defendant
does not explain what different actions he would have taken had he received notice of the
prosecution’s intent to introduce this evidence, and the record reflects no reason to conclude that
the lack of notice had a “significant effect” on the course of the proceedings. Id. Therefore, if the
trial court had admitted the evidence over defense counsel’s objection based on lack of notice,
such an error would not have required reversal; further, defendant has not presented any evidence
that the trial court would have responded to defense counsel’s objection by striking PM’s
testimony. Defendant has not demonstrated that defense counsel’s failure to raise the issue of lack
of notice was outcome-determinative. Trakhtenberg, 493 Mich at 51.

                            III. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that the prosecution failed, in response to his assertion of the affirmative
defense of parental discipline, to present sufficient evidence to prove beyond a reasonable doubt
that the force used was not reasonable. We disagree. We review de novo a challenge to the
sufficiency of the evidence to determine whether the trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. People v Gains, 306 Mich App
289, 296; 856 NW2d 222 (2014). We view the evidence in the light most favorable to the
prosecution and resolve any evidentiary conflicts in favor of the jury verdict. Id.

         Under MCL 750.136b, a defendant is guilty of third-degree child abuse if he “knowingly
or intentionally causes physical harm to a child” or “knowingly or intentionally commits an act
that under the circumstances poses an unreasonable risk of harm or injury to a child, and the act
results in physical harm to a child.” “Physical harm” is defined as “any injury to a child’s physical
condition.” MCL 750.136b(1)(e). However, MCL 750.136b(9) specifically provides that “this
section does not prohibit a parent or guardian, or other person permitted by law or authorized by
the parent or guardian, from taking steps to reasonably discipline a child, including the use of
reasonable force.” Because defendant’s defense was that the force he used on PM was reasonable




Defendant has not shown a reasonable probability that, but for this evidence, the outcome of the
proceedings against him would have been different. Trakhtenberg, 493 Mich at 51.

                                                 -5-
parental discipline, the prosecution was required to prove that defendant’s actions were not
reasonable discipline. People v Sherman-Huffman, 466 Mich 39, 42; 642 NW2d 339 (2002).

        The elements of domestic violence offense include (1) the commission of an assault or an
assault and battery (2) against a resident or former resident of the same household. See
MCL 750.81(4). An assault is “either an attempt to commit a battery or an unlawful act that places
another in reasonable apprehension of receiving an immediate battery.” People v Starks, 473 Mich
227, 234, 701 NW2d 136 (2005). A battery is “an intentional, unconsented and harmful or
offensive touching of the person of another, or of something closely connected with the person.”
Id. at 234 (quotation marks and citation omitted).4

         Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence to allow a rational jury to find beyond a reasonable doubt that defendant did not use
reasonable force. PM testified that defendant “backhanded” her, which caused her to fall backward
and hit her head on a metal bar; when she stood up, her vision was blurred and she felt dizzy. She
testified that when defendant hit her, he left a bruise that resembled two of his fingerprints. She
also testified that defendant spanked her three or four times and that after defendant spanked her,
it “hurt really bad” for around 20 minutes, that it hurt to sit down, and that it “left a hand print for
a while[.]” A jury could reasonably conclude from this evidence that the force defendant exerted
in disciplining PM exceeded that which would be “reasonable,” supporting the jury’s
determination that defendant was guilty of third-degree child abuse. See Sherman-Huffman, 466
Mich at 41 (finding that the defense of reasonable discipline was “plainly unsupportable” when
the victim was spanked and struck in the face hard enough to leave visible bruising and cause a
nosebleed).

        Affirmed.



                                                                /s/ Karen M. Fort Hood
                                                                /s/ Jane M. Beckering
                                                                /s/ Mark T. Boonstra




4
  Although the parental discipline defense has its roots in the child abuse statute, here the trial court
instructed the jury that parental discipline was “a defense to both charges.” Because we find that
the evidence was sufficient to prove beyond a reasonable doubt that the force defendant used was
not reasonable, we do not consider whether this defense has any applicability to a charge of
domestic violence.

                                                  -6-
