                              STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      September 18, 2018
                  Plaintiff-Appellee,

v                                                                     No. 339261
                                                                      Macomb Circuit Court
THOMAS CHRISTOPHER WERNER,                                            LC No. 2016-004380-FH

                  Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

       Defendant was convicted by a jury of second-degree criminal sexual conduct (CSC II),
MCL 750.520c(1)(a) (person under 13 years of age), and was sentenced to 38 to 180 months’
imprisonment. He now appeals as of right and we affirm.

       The 12-year-old victim, NH, testified that defendant grabbed her breasts and that he also
poked her breasts and her vagina (through her clothing) and bit her inner thigh. The defense
argued that defendant did not commit these sexual touchings and that the only reason NH had
made these claims was because she and her mother wanted to get defendant and his girlfriend
thrown out of the house they shared so that they could get defendant’s bedroom.

        Defendant first argues that the jury instructions were flawed because, although he
believes the prosecution maintained that there were at least four possible incidents that could
have supported the charge, the jurors were not required by the trial court’s instruction to agree on
any one of the possible incidents as the basis for their verdict. Defendant did not request a
specific instruction regarding juror unanimity; accordingly, only the standard unanimity
instruction [M Crim JI 3.11(3)] was given.1 Defense counsel also expressly approved the trial

1
    The trial court instructed the jury:
          A verdict in a criminal case must be unanimous. In order to return a verdict it is
          necessary that each of you agree on that verdict. In the jury room you will discuss
          the case among yourselves, but ultimately each of you will have to make up your
          own mind. Any verdict must represent the individual, considered judgment of
          each juror.


                                                  -1-
court’s instructions. Defendant therefore waived consideration of the claim that the trial court’s
instructions were improper. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011).2
Nevertheless, defendant also argues that he received ineffective assistance of counsel. As this
Court observed in People v Eisen, 296 Mich App 326, 329-330; 820 NW2d 229 (2012), this
Court will review a waived claim to determine if an associated claim of ineffective assistance of
counsel has merit.

        With regard to defendant’s claim alleging ineffective assistance of counsel, defendant
failed to move for a new trial or a Ginther3 hearing, so his claim is not preserved and any review
is limited to mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d
266 (2012). Whether defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan Constitutions “is a mixed question of law and fact.”
People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). The Court of Appeals will
review “for clear error the trial court’s findings of fact [if any], and review[ ] de novo questions
of constitutional law.” Id.

         [E]stablishing ineffective assistance requires a defendant to show (1) that trial
         counsel’s performance was objectively deficient, and (2) that the deficiencies
         prejudiced the defendant. Prejudice means “a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding would have been
         different. A reasonable probability is a probability sufficient to undermine
         confidence in the outcome. [People v Randolph, ___ Mich ___, ___; ___ NW2d
         ___ (2018) (Docket No. 153309); slip op at 6 (footnotes and citation omitted).]




2
    The Michigan Supreme Court in Kowalski, 489 Mich at 503, stated:
         [B]ecause defense counsel here explicitly and repeatedly approved the instruction,
         defendant has waived the error. This Court has defined “waiver” as “the
         intentional relinquishment or abandonment of a known right.” “One who waives
         his rights under a rule may not then seek appellate review of a claimed
         deprivation of those rights, for his waiver has extinguished any error.” When
         defense counsel clearly expresses satisfaction with a trial court’s decision,
         counsel’s action will be deemed to constitute a waiver. [Footnotes omitted.]


         The Kowalski Court also noted:


         The Court of Appeals has consistently held that an affirmative statement that there
         are no objections to the jury instructions constitutes express approval of the
         instructions, thereby waiving review of any error on appeal. [Id. at 505 n 28.]

3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -2-
        Defendant cites People v Quinn, 219 Mich App 571; 557 NW2d 151 (1996), as authority
for his jury unanimity argument. The Quinn decision involved a charge of receiving and
concealing stolen property. The basis for this charge was either the theft of a set of blueprints in
the early 1980s or the theft of setup sheets in the early 1990s. Id. at 576. This Court stated that
if accepted by the jury, these two thefts would “support two separate convictions of receiving
and concealing stolen property in excess of $100, but would not support a finding of one single
crime committed by alternative means.” Therefore, “[b]ecause only one count of receiving and
concealing stolen goods was submitted to the jury, defendants’ right to a unanimous jury verdict
was violated.” Id.

       The Quinn situation, involving two completely separate offenses occurring approximately
10 years apart, is inapplicable to the present situation. NH testified that defendant grabbed her
breasts from behind while she was doing the dishes; she claimed that on another occasion
defendant poked her breasts and vagina, and also bit her inner thigh near her vagina. The
prosecutor based the CSC II charge on four alternate sexual contacts, three of which appear to
have occurred during the same incident.4

        When discussing the final instructions, M Crim JI 20.02 was modified (based on NH’s
testimony) to provide, alternatively, that the prosecutor must prove defendant touched either
NH’s breasts, her inner thigh, or her vagina. In recounting NH’s testimony, during her closing
argument the prosecutor recalled that NH claimed he had “grab[bed] her boobs,” he bit her inner
thigh, he poked her breasts, and then he poked her vagina. The prosecutor then reiterated: “What
I have to prove beyond a reasonable doubt is first that the Defendant intentionally touched
[NH’s] inner thigh or vagina or breasts, or clothing covering that area.” And ultimately the trial
court instructed the jury that to find guilt it must determine “that the Defendant intentionally
touched [NH’s] inner thigh or vagina or breasts or the clothing covering that area.” These
alternatives reflected the conduct defendant was alleged to have committed during the wrestling
incident and the incident where defendant allegedly approached NH from behind and grabbed
her breasts.

       In People v Johnson, 406 Mich 320, 326, 330; 279 NW2d 534 (1979), the Michigan
Supreme Court held that it was not proper to charge multiple counts of criminal sexual conduct
based on a single sexual penetration where there were multiple statutory factors. Rather, the
Court held:




4
  With regard to the facts presented by this case, MCL 750.520c(1)(a) prohibits a person from
engaging in sexual contact with another person who is under 13 years of age. “Sexual contact” is
defined as “the intentional touching of the victim’s or actor’s intimate parts or the intentional
touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if
that intentional touching can reasonably be construed as being for the purpose of sexual arousal
or gratification, done for a sexual purpose, or in a sexual manner for (i) Revenge[;] (ii) To inflict
humiliation[; or ] (iii) Out of anger.” MCL 750.520a(q). “ ‘Intimate parts’ includes the primary
genital area, groin, inner thigh, buttock, or breast of a human being.” MCL 750.520a(f).


                                                -3-
              The fact that a sexual penetration happens to be accompanied by more
       than one of the aggravating circumstances enumerated in the statute may well
       ease the burden upon the prosecution in attaining a conviction under MCL
       750.520b; MSA 28.788(2), but it may give rise to only one criminal charge for the
       purposes of trial, conviction, and sentencing. [Johnson, 406 Mich at 331.]


        Similarly, in People v Goold, 241 Mich App 333, 338; 615 NW2d 794 (2000), this Court
considered a situation where the defendant was charged with two counts of first-degree CSC and
two counts of third-degree CSC. The third-degree CSC charges were based on the same conduct
with two statutory alternatives used to support the separate counts. Id. This Court held that
while the prosecutor could charge the defendant with third-degree CSC using statutory
alternatives, it could not charge him with separate counts of third-degree CSC. Id. at 342-343.
Thus, “the prosecutor must charge a defendant under a single count using alternative theories,
but the prosecutor does not have to elect one theory over the other.” Id. at 343. In this case there
were multiple aggravating circumstances (touching the victim’s breasts, her vagina, and her inner
thigh), the prosecutor argued these alternatives, and the court instructed the jury using those
alternatives as the basis for one charge of CSC II. Pursuant to Johnson and Goold, this was
proper.

        People v Cooks, 446 Mich 503; 521 NW2d 275 (1994), supports this conclusion. There,
the defendant allegedly committed three acts of anal penetration on a 10-year-old on three
successive days. Id. at 506-507. The jury found the defendant guilty of one count of CSC II. Id.
at 509. Citing cases from the United States Supreme Court, federal Courts of Appeal, and state
courts, the Michigan Supreme Court held that the trial court’s use of a general unanimity
instruction was adequate given the pattern of conduct engaged in by the defendant. The Court
stated:

               We are persuaded by the foregoing federal and state authority that if
       alternative acts allegedly committed by defendant are presented by the state as
       evidence of the actus reus element of the charged offense, a general instruction to
       the jury that its decision must be unanimous will be adequate unless (1) the
       alternative acts are materially distinct (where the acts themselves are conceptually
       distinct or where either party has offered materially distinct proofs regarding one
       of the alternatives), or (2) there is reason to believe the jurors might be confused
       or disagree about the factual basis of defendant’s guilt.28
       __________________________________________________________________________________________


       28
          We believe this approach is particularly apt in cases such as this one, where
       there is an allegation of a pattern of sexual penetrations committed against a child
       who may have difficulty remembering distinct facts that were peculiar to each
       alleged incident of sexual misconduct. Indeed, the court in [People v Winkle, 206
       Cal App 3d 822; 253 Cal Rptr 726 (1988)], not only held that a specific unanimity
       instruction was not required in these circumstances, it concluded that such an
       instruction should not be given:


                                                      -4-
                       Since at trial no attempt was made to distinguish the acts[,]
              . . . the jury had no basis on which to distinguish between the acts
              about which [the victim] testified.

                      In a situation in which a very young child testifies about a
              series of similar molestations without identifying any specific
              dates, the unanimity instruction should not be given as it would be
              confusing for the jury to be given an instruction requiring them to
              agree on a specific act, when there is no specific act for them to
              agree upon. . . . Here, the jury’s verdict indicates that the jurors
              believed [the victim], not [the defendant]. [Winkle, 206 Cal App
              3d at 830.] [Cooks, 446 Mich at 524.]

The Cooks Court concluded:

       [T]he prosecutor here was unable to specify in the information the precise dates of
       the alleged penetrations, other than “on or about Jan, 1989.” . . . [T]he child
       victim then testified about identical incidents of anal penetration on three
       successive days, consistent with the charge in the information. Absent any
       indication of juror confusion or disagreement over the existence of any of the
       alternative acts, a specific unanimity instruction is not required on these facts.

                                             * * *

               In conclusion, when the state offers evidence of multiple acts by a
       defendant, each of which would satisfy the actus reus element of a single charged
       offense, the trial court is required to instruct the jury that it must unanimously
       agree on the same specific act if the acts are materially distinct or if there is
       reason to believe the jurors may be confused or disagree about the factual basis of
       the defendant’s guilt. When neither of these factors is present, as in the case at
       bar, a general instruction to the jury that its verdict must be unanimous does not
       deprive the defendant of his right to a unanimous verdict. [Cooks, 446 Mich at
       529-530; footnotes omitted.]


        In this case, the two main incidents involving sexual touching were somewhat different,
but were not materially distinct; they both involved defendant touching NH’s body, and in
particular, her breasts. The information itself charged simply that defendant had sexual contact
with NH while she was under 13 years of age and he was over 17 years old; it did not specify the
manner in which this offense was committed. Defendant did not seek to differentiate the
incidents, or admit one while contesting the other, and he did not present materially distinct
evidence with regard to one incident or the other; instead, defendant claimed that none of the
touchings happened. The trial court’s instructions regarding the offense simply required the jury
to find that defendant “intentionally touched [NH]’s inner thigh or vagina or breasts or the
clothing covering that area.” Differentiation between the incidents was not an important
consideration in this case. Moreover, there is no evidence that the jurors were confused or that
they disagreed about the factual basis of defendant’s guilt.

                                               -5-
        In People v Gadomski, 232 Mich App 24; 592 NW2d 75 (1998), the defendant claimed,
as in this case, that he was denied his right to a unanimous jury verdict because of the trial
court’s first-degree CSC instructions. The trial court instructed the jury that it could find
defendant guilty if it found that defendant sexually penetrated the victim and that one of three
aggravating circumstances occurred; the court also gave a general unanimity instruction. Id. at
29. The defendant argued a special unanimity instruction should have been given that would
have required the jurors to agree on the existence of at least one of the aggravating
circumstances. Id. at 29-30. After acknowledging that “[c]riminal defendants are guaranteed a
unanimous jury verdict under the state constitution,” and that “trial courts are required to give
proper instructions regarding the unanimity requirement,” this Court stated:

       In some circumstances, a general unanimity instruction such as the one given in
       this case is not adequate to ensure a defendant’s right to a unanimous jury verdict.
       For instance, the Michigan Supreme Court has held that when the prosecution
       offers evidence of multiple acts by a defendant, each of which would satisfy the
       actus reus of a single charged offense, the trial court is required to instruct the jury
       that it must unanimously agree on the same specific act if the acts are materially
       distinct or if there is reason to believe the jurors may be confused or disagree
       about the factual basis of the defendant’s guilt. [Gadomski, 232 Mich App at 30,
       citing Cooks, 446 Mich at 530.]


This Court concluded that a specific unanimity instruction was not required, stating:

               Michigan criminal juries are not required to unanimously agree upon
       every fact supporting a guilty verdict. See, e.g., People v Espinosa, 142 Mich
       App 99, 105; 369 NW2d 265 (1985) (explaining that, in theory, a defendant could
       be convicted of murder by a jury in which six members were of the opinion that
       the defendant shot the victim acting as the principal, and the other six members
       were of the opinion that he aided and abetted another). More specifically, it is
       well settled that when a statute lists alternative means of committing an offense,
       which means in and of themselves do not constitute separate and distinct offenses,
       jury unanimity is not required with regard to the alternate theories. . . . That was
       the case here. Where there is a single sexual penetration, the various aggravating
       circumstances listed in MCL 750.520b . . . constitute alternate means of proving
       a single CSC I offense and would not support convictions of separate and distinct
       CSC I offenses. See People v Willie Johnson, 406 Mich 320, 330-331; 279
       NW2d 534 (1979). Accordingly, defendant would have been properly convicted
       of CSC I even if some of the jurors believed that he committed the offense solely
       on the basis of one aggravating circumstance, while the rest of the jurors believed
       that he committed the offense solely on the basis of another one of the
       aggravating circumstances.

              In sum, we hold that when a defendant is tried on a charge of CSC I, and
       more than one aggravating circumstance is supported by the facts, it is not error
       for the trial court to instruct the jury, in the alternative, regarding each of the
       applicable aggravating circumstances alleged by the prosecution. In this case,

                                                 -6-
       because the trial court’s instructions were legally correct, manifest injustice will
       not result from our failure to grant the relief requested. [Gadomski, 232 Mich
       App at 31-32 (footnote omitted).]


        In this case, defendant did not attempt to differentiate among the four sexual contacts that
NH alleged. Instead he claimed that no sexual contact occurred. The jury was therefore not
called on to select one incident or the other as the basis for the conviction. Defendant’s claim of
ineffective assistance of counsel is unavailing because counsel is presumed to be effective and
decisions regarding trial strategy will not be second-guessed. People v Williams, 240 Mich App
316, 331-332; 614 NW2d 647 (2000). Trial counsel made a strategic decision, based on
consultation with defendant, to claim that NH was lying and had made up the claims of sexual
contact; that is, he chose an “all-or-nothing” defense. Given this choice of defense, the failure to
request a special jury unanimity instruction—or to object to the failure to give such an
instruction—was a valid decision of trial strategy. Defendant did not request an evidentiary
hearing regarding this claim and has failed to overcome the presumption of effective assistance.
Nor has defendant demonstrated that, given his choice to pursue an “all-or-nothing” defense, the
result of the trial would have been different had a special unanimity instruction been requested
and given.

         Defendant next claims that his counsel was ineffective because (1) he did not have
defendant testify, (2) he failed to object to repeated hearsay, and (3) he introduced NH’s suicide
note. With respect to the first claim, defendant argues that it was critically important for him to
testify to rebut NH’s allegations. However, following a consultation between defendant and his
counsel during the presentation of their case, the following colloquy occurred:

               Q [Trial Court]. Okay. Court’s back in session, we can all be seated.
       Before we bring back the jury let me ask [defense counsel], has your client made
       a decision?

               A [Defendant’s counsel]. Yes.

               Q. And?

              A. We made a decision [defendant] is not going to testify, though I’d like
       to make a record of it.

               Q. Okay. [Defendant], why don’t you come on up here and stand in front
       of the bench with your lawyer? I understand, sir, that you have made a decision
       that you have decided that you will not testify?

               A [Defendant]. That’s correct, Your Honor.

               Q. Okay. [] [W]hy don’t you voir dire your client as to, well make a
       record, go on.

               Q [Defense counsel]. All right. We had an opportunity to discuss this
       matter in a private room of the Court?

                                                -7-
       A. [Defendant]. Correct.

       Q. And we went through out [sic – our] options, would you agree with
me?

       A. Correct.

       Q. We got to weigh our pros and cons.

       A. Correct.

       Q. And we listened to the testimony of all of the witnesses here?

       A. Yes.

       Q. And you understand you have the right absolutely to testify and
absolutely not to testify, you acknowledge that right?

       A. Correct.

        Q. And given everything you’ve heard it is your decision, I have made no
threats or promises regarding one way or the other?

       A. Correct.

       Q. All right. (Inaudible).

        Q [The Court]. You realize that if you were to testify that your credibility
would be judged as it would be with every other witness. You’ve heard the
instructions as to how the jury is to take that into account so that the same
instruction would apply to you. Do you understand that?

       A. Yes.

        Q. Okay. And I think you also understand that if you do not testify there
is a jury instruction that tells the jury that they are not to draw any adverse
inference from that, they are not to hold that against you in any way, you
understand that as well?

       A. Yes.

       Q. And you’ve been talking now for approximately 20 minutes with your
attorney about his decision, is it a very firm decision in your mind?

       A. Yes.

       Q. Okay. I’m satisfied, thank you.



                                        -8-
         This inquiry establishes that it was defendant’s informed decision to waive his right to
testify. A waiver of a right extinguishes any claim of error. People v Carter, 462 Mich 206; 612
NW2d 144 (2000).

               Waiver has been defined as “the ‘intentional relinquishment or
       abandonment of a known right.’ ” . . . It differs from forfeiture, which has been
       explained as “the failure to make the timely assertion of a right.” . . . “One who
       waives his rights under a rule may not then seek appellate review of a claimed
       deprivation of those rights, for his waiver has extinguished any error.” . . .
       Forfeiture, on the other hand, does not extinguish an “error.” . . . [Carter, 462
       Mich at 215 (citations omitted).]


Therefore, there is no error for this Court to review. Moreover, as the prosecutor points out,
there has been no evidentiary hearing concerning this claim. Defendant has not even provided an
affidavit explaining how his counsel failed to provide effective assistance. “There is no factual
basis for a conclusion that counsel’s performance was constitutionally deficient and undermines
confidence in the reliability of the verdict.” People v Mitchell, 454 Mich 145, 162-163; 560
NW2d 600 (1997). Defendant’s statements at trial clearly indicate that this was his decision,
rather than the decision of his counsel. Defendant, in effect, is claiming that his counsel was
ineffective for failing to prevent defendant from making a poor—albeit informed—choice.
“[D]efendant must establish a valid claim of ineffective assistance in order for him to be entitled
to relief on his waived claim[]. . . .” People v Traver, ___ Mich ___, ___; ___ NW2d ___ (2018)
(Docket No. 154494), slip op p 16 n 10. Defendant made the decision not to testify after
consulting with his counsel and acknowledges that, even if he had testified, the jury may not
have believed him. Defendant has failed to establish a valid claim of ineffective assistance
because he cannot prove that his counsel made a prejudicial, outcome-determinative mistake by
allowing defendant to exercise his personal constitutional right not to testify or that a mistake
would have been outcome determinative. Defendant is not entitled to any relief.

        Defendant also claims that trial counsel’s strategic decision to admit NH’s suicide note
was a prejudicial error. Once again, there is no post-trial factual record to support this claim and
this Court’s review is limited to the existing record. People v Cox, 268 Mich App 440, 453; 709
NW2d 152 (2005). What the existing record shows is that defendant sought the admission of the
suicide note.

        The victim’s sister disclosed that in the month before the trial NH wrote a note indicating
that she wanted to commit suicide. According to the sister, NH’s mother looked through NH’s
notebook and found the note; she called the sister and took a photograph of the note with her cell
phone. Subsequently, NH ripped up the note. The photograph was found on the sister’s cell
phone. The trial court asked both parties if they wanted the note admitted into evidence.
Defense counsel responded: “I need an extra minute with my client, before I make that
determination.” Subsequently, when questioning the sister about the note, defendant supplied his
counsel with copies of text messages, but then stated on the record: “I gave you the wrong one.”
This shows that defendant was actively assisting his counsel in exploring the suicide note; this
was not something that trial counsel was pursuing on his own without input from defendant. The
trial court cautioned defense counsel that this note could prove to be detrimental to the defense.

                                                -9-
Counsel, despite recognizing that it could be a “double-edged sword,” nonetheless stated that he
“want[ed] it in now at this point” and he therefore wanted to recall the sister and NH to cross-
examine them about the note. Defense counsel expressed concern because he had not seen a
copy of the note. He admitted that there could be evidentiary issues within the note, but since it
had been mentioned to his private investigator—but never provided by the prosecutor—he
wanted to see what was in the note. The trial court agreed it was reasonable to review the note:
               Well, because, I think the answer is obvious, because you have a good
       private investigator, because you have a young woman who was traumatized by
       what happened, who knowing that she’s going to have to testify is reliving the
       whole thing. And I’ll grant you this, it could be that a person goes through that
       kind of turmoil because they were sexually assaulted and it has emotionally
       scarred them to the point where they’re thinking about suicide, or it’s possible that
       a person could have brought false charges and it has emotionally scarred them to
       the point that they’re thinking about committing suicide. I can’t, I can’t say
       which, and so you’re right. But let’s take a look at the note.
               I would suggest to the both of you that it is, it is not sufficiently persuasive
       on either of those issues that it seems to me like it has to come into evidence. It is
       written a long time after the event, it is ambiguous unless something on its face
       points one way other [sic] the other. And right now it might be a more prejudicial
       than probative thing to get it in, no matter who wants to get it in and who wants to
       keep it out.
               But [defense counsel], I agree with you on the face of it that we should try
       to find it. And I’m going to ask the Detective in Charge if you could talk to [the
       sister] and find out if she’s recovered that on her phone, or if you could also, I
       don’t know if you could get a call in to [NH’s mother]. Is she still in the building,
       do we know?


        After reviewing the note and allowing trial counsel to question NH’s sister about it, the
trial court asked if it was relevant evidence. Defense counsel responded that the note was
relevant, but before going forward, he wished to discuss the matter with his private investigator.
The prosecutor argued that defendant was trying, in effect, to impeach NH without having asked
her about the note, and that NH would have to be recalled first and asked about the note and
then, depending on her answers, impeachment might be appropriate. The trial court pointed out
that asking NH, based on the note, whether she had falsely accused defendant might get him an
answer he did not want. The following day the prosecutor stipulated to the admission of the
note. Defendant’s counsel then stated that he wanted the sister and NH recalled for additional
testimony concerning the note. The trial court ruled that the sister would be recalled and then,
depending on her testimony, NH might also be recalled.

        NH’s sister indicated that the note contained a statement: “I’m sorry to everyone I hurt,
but this is the only way I can settle things for me. Right, all you got [sic] what you wished for,
your problem is solved.” She agreed the note did not mention defendant or make any reference
to the trial. She said NH explained that she wrote the note because she was being bullied at
school, she could not handle going through the trial, she did not want to see defendant anymore,
and “[s]he wanted it all to be done and over with and she felt that if she wrote this note and if she
                                                -10-
just took her own life she wouldn’t have to deal with anything anymore.” She denied that NH
had indicated “that none of this was true [a]nd that’s why she was stressed out.”

        Following the sister’s testimony, defense counsel initially stated that he no longer needed
to recall NH. Subsequently, the parties and the trial court conversed off the record and NH was
then recalled. She testified that the note was her “suicide letter.” She explained that she “was
tired of getting bullied and tired of having to come here and see [defendant] and having to point
him out. And I was just tired of having to say what happened over and over again. I just wanted
it out of my head.” She denied that she felt this way because she made anything up. When
questioned by defense counsel about why she would apologize in the note for hurting everyone,
NH explained:

       I said I was sorry to my family and friends because I knew it would hurt them if I
       killed myself. And I said I [sic – they] got what they wanted because the people
       [who] were bullying me were trying to get to me and they did.


        This lengthy summary indicates that it was clearly a strategic decision by the defense to
pursue the issue of the suicide note. “Counsel’s performance should be evaluated at the time of
the alleged error without the benefit of hindsight.” People v Solloway, 316 Mich App 174, 188;
891 NW2d 255 (2016). “A defendant must overcome a strong presumption that counsel’s
actions constituted sound trial strategy.” Id. This Court has observed:

       Of significant importance, defendant provides no factual support and little, if any,
       legal support for his claims. Defendant simply argues that the stated actions fell
       below an objective standard of reasonableness and prejudiced his case. However,
       “defendant has the burden of establishing the factual predicate for his claim of
       ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d
       57 (1999). Defendant failed to meet his burden here with respect to all of his
       allegations. Therefore, this Court could find, for this reason alone, that
       defendant’s claims of ineffective assistance of counsel fail. [Solloway, 316 Mich
       App at 188-189 (citation omitted).]


        This same conclusion applies in this case. There has been no evidentiary hearing in the
trial court to produce a record to support his claim. The existing record indicates that the issue
regarding admission of the suicide note was considered over two days, the note was the subject
of additional testimony, the note was ultimately admitted by stipulation, and defendant appears
to have concurred with that stipulation. As the trial court recognized, the note was ambiguous
enough to conclude that it was possible that NH had written it because she could not handle the
fact that she had falsely accused defendant. At the same time, it was more likely that she wrote it
because of the trauma she was experiencing as a result of defendant’s sexual assaults. The
defense gambled that presenting the note to the jury and questioning NH about it would
substantiate the defense claim that the incidents of sexual assault had been made up by NH. That
proved not to be the case. Nevertheless, this was clearly a strategic decision, and “[t]he fact that
defense counsel’s strategy was ultimately unsuccessful does not render him ineffective.”
Solloway, 316 Mich App at 190. Moreover, defendant has not established that admission of this

                                               -11-
evidence was error that “prejudiced [defendant] enough to deprive him of a fair trial.” Solloway,
316 Mich App at 191. Defendant was still free to argue that the real reason behind the note was
NH’s anguish over falsely accusing him and counsel did in fact make that accusation in his
closing argument. Defendant has therefore failed to establish ineffective assistance based on the
admission of the suicide note.

        Defendant finally claims that trial counsel was ineffective for failing to object to repeated
hearsay. However, defendant fails to detail what statements he contends were hearsay. Without
a discussion of the specific testimony defendant claims was hearsay, it is impossible for this
Court to determine whether the testimony was in fact hearsay or whether it was admissible under
one of the hearsay exceptions. Where defendant fails to adequately brief an issue, this Court
considers the claim abandoned. “An appellant may not merely announce his position and leave it
to this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627,
640–641; 588 NW2d 480 (1998).

       Affirmed.



                                                              /s/ Michael J. Kelly
                                                              /s/ Jane E. Markey
                                                              /s/ Karen M. Fort Hood




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