                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 22, 2015
               Plaintiff-Appellee,

v                                                                   No. 317684
                                                                    Kalamazoo Circuit Court
WILLIE T. GREEN, JR.,                                               LC No. 2013-000473-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of first-degree
criminal sexual conduct, MCL 750.520b(2)(b) (penetration of a victim under 13, defendant 17 or
older), and one count of second-degree criminal sexual conduct, MCL 750.520c(2)(a) (sexual
contact with a victim under 13, defendant 17 or older). Defendant’s convictions are based on his
sexual assault of his ex-wife’s daughter, who at the time of the assaults was six or seven years
old. Defendant was sentenced to concurrent terms of 30 to 50 years for each first-degree
criminal sexual conduct conviction, and 15 to 40 years for his second-degree criminal sexual
conduct conviction. We affirm.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

                                 A. STANDARD OF REVIEW

        Defendant first contends that he was denied the effective assistance of counsel when his
defense counsel failed to object to a detective’s comment regarding the victim’s consistency and
credibility. Whether a defendant received effective assistance of counsel is a mixed question of
fact and law, as a “trial court must first find the facts and then decide whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). When reviewing a claim of
ineffective assistance of counsel that has not been preserved for appellate review, a reviewing
court is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649
NW2d 94 (2002).

                                         B. ANALYSIS



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        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden to
prove otherwise.” People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). To establish
a claim for ineffective assistance of counsel, a defendant first must establish that “counsel’s
representation fell below an objective standard of reasonableness.” People v Vaughn, 491 Mich
642, 669; 821 NW2d 288 (2012) (quotation marks and citation omitted); see also Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Second, the defendant
must show that trial counsel’s deficient performance prejudiced his defense, meaning “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Vaughn, 491 Mich at 669 (quotation marks and citation omitted);
see also Strickland, 466 US at 687.

        Even if defense counsel behaved objectively unreasonable in failing to object to the
officer’s comments on the victim’s credibility, defendant is not entitled to relief. 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). If this case involved merely a credibility contest between the victim and defendant,
defendant’s claim may have merit. See People v Douglas, 496 Mich 557, 588; 852 NW2d 587
(2014) (failing to object to a witness’s testimony that vouches for the veracity of a sexual assault
victim may constitute ineffective assistance of counsel). However, defendant made several
admissions to the police during the interrogation. Defendant admitted: “If she say I did oral sex,
I vaguely remember but I remember . . . I think I could remember taking out my [penis] and
putting it somewhere around [the victim’s] mouth . . . .” Defendant denied inserting his penis
into the victim’s vagina. However, when further questioned about the victim’s claim that he
partially inserted his penis into her vagina, defendant conceded: “If I had it out . . . it had to been
either around her or I don’t really quite frankly know. If it was out, and she said I almost had
sex, then I must have obviously had it on her.” He said while it was not accidental, it was a “bad
decision.”

        In light of defendant’s admissions regarding his sexual conduct with the victim, he has
failed to demonstrate that but for counsel’s failure to object to the detective’s isolated comment,
there exists a reasonable probability the result of the proceedings would have been different.
Carbin, 463 Mich at 600. While defendant also requests a remand for an evidentiary hearing, a
hearing is not warranted as further development of this issue would not affect the result.1

                                  II. OTHER ACTS EVIDENCE

                                  A. STANDARD OF REVIEW




1
  Although defendant references “due process” in his statement of the questions presented, he
provides no explanation, nor analysis of, a due process argument. “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).


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        Defendant also contends that testimony regarding an instance with him and the victim’s
sister was improperly admitted because it was irrelevant and unfairly prejudicial. Because
defendant did not object to this testimony at trial, our review is limited to plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).

                                           B. ANALYSIS

        Even if improper, the admission of this evidence did not affect the outcome of trial.
Carines, 460 Mich at 763. There was limited testimony that on one occasion, defendant shared a
bed with his daughter, the victim’s sister.2 Defendant vehemently denied that anything improper
occurred between himself and the victim’s sister. The victim testified that she never saw
anything sexual between her sister and defendant. The victim’s sister testified that she
remembered crying, but no other facts were presented to the jury about this incident. In fact, the
police detective referenced how adamant defendant was when denying anything improper with
the victim’s sister.

        Considering the vague and limited reference to this incident—and the lack of testimony
that sexual activity occurred—we do not find that the admission of this evidence “affected the
outcome of the lower-court proceedings.” People v Jones, 468 Mich 345, 356; 662 NW2d 376
(2003). As stated supra, defendant confessed to sexual activity consistent with the victim’s
allegations. This was not a case where the jury had to assess credibility based only on the
victim’s allegations and the defendant’s denials. Defendant has not demonstrated plain error
affecting substantial rights. Carines, 460 Mich at 763.3

       Defendant briefly refers to the prosecution’s comment during closing arguments
regarding what defendant did to “those little kids.” Defendant did not object to this comment.
On appeal, he fails to present any legal argument with respect to this comment. Because
defendant “merely announce[d] his position and [left] it to this Court to discover and rationalize
the basis for his claims,” this issue is abandoned. People v Kelly, 231 Mich App 627, 640-641;
588 NW2d 480 (1998).4




2
    The victim is not defendant’s biological daughter.
3
  In his statement of the issues presented, defendant references ineffective assistance of counsel
regarding this other acts evidence. However defendant advanced no argument or analysis of
ineffective assistance of counsel regarding this evidence. See Kelly, 231 Mich App at 640-641.
Moreover, considering that no witness actually testified that defendant and the victim’s sister
were engaged in sexual activity, defense counsel may very well have decided that “there are
times when it is better not to object and draw attention to an improper comment.” People v
Horn, 279 Mich App 31, 40; 755 NW2d 212 (2008).
4
  To the extent that defendant was attempting to advance a prosecutorial misconduct argument,
the trial court instructed the jury that the lawyers’ arguments are not evidence, and juries are

                                                 -3-
                                    III. CONCLUSION

        Defendant is not entitled to a new trial or evidentiary hearing based on ineffective
assistance of counsel or improperly admitted evidence. We affirm.

                                                        /s/ Michael J. Riordan
                                                        /s/ Jane E. Markey
                                                        /s/ Kurtis T. Wilder




presumed to follow the instructions. People v Unger, 278 Mich App 210, 235; 749 NW2d 272
(2008).


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