            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 18, 2019
               Plaintiff-Appellee,

v                                                                    No. 341452
                                                                     Macomb Circuit Court
FRANK DAVID WEBER,                                                   LC No. 2017-001965-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree criminal sexual conduct (CSC-1) (victim under
13, defendant over 17) in violation of MCL 750.520b(1)(a). Defendant contends that his counsel
was ineffective for failing to present an expert witness regarding the suggestibility of children as
young as the current victim, but has offered no proof of what such an expert would have said at
trial. Defendant also raises a meritless challenge to the sufficiency of the evidence against him.
We affirm.

                                       I. BACKGROUND

       Defendant’s conviction arises from an act of fellatio performed on the four-year-old son,
DP, of defendant’s live-in girlfriend, JP. DP described that he was sleeping with defendant and
JP one night because he was scared, and defendant covered DP’s face with a pillow. Defendant
asked DP if he wanted to “do the private part or the spanking.” DP did not want a spanking, but
did not understand what defendant meant by “do the private part.” He selected that option and
defendant pulled down DP’s pants and underwear and put his mouth on DP’s “weiner.” DP
remembered feeling defendant’s teeth. JP slept through the incident. DP claimed that he told JP
about defendant’s actions later that day and she called the police.

       JP did not believe DP’s accusations because defendant had safely cared for children in
the past. She denied that DP told her this story immediately after any incident could have
occurred. JP and DP moved in with a friend who had known defendant for years and also
questioned the truth of DP’s allegations. The witnesses posited that JP’s ex-husband, SS, had



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planted the story in DP’s mind. SS took the stand and denied that accusation. Ultimately, the
jury credited the victim and convicted defendant as charged.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant contends that his trial attorney should have presented an expert witness to
discuss the suggestibility of preschool-age children, leading to the creation of false memories
with vivid details. Defendant filed two motions to remand to the trial court for a hearing
pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), but this Court denied them
both. Our review is therefore limited to plain error on the existing record. See People v Petri,
279 Mich App 407, 410; 760 NW2d 882 (2008).

         “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“ ‘[I]t has long been recognized that the right to counsel is the right to the effective assistance of
counsel.’ ” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984),
quoting McMann v Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). In
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the United
States Supreme Court held that a convicted defendant’s claim of ineffective assistance includes
two components: “First, the defendant must show that counsel’s performance was deficient. . . .
Second, the defendant must show that the deficient performance prejudiced the defense.” To
establish the first component, a defendant must show that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. People v Solomonson,
261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice prong, the
defendant must demonstrate a reasonable probability that but for counsel’s errors the result of the
proceedings would have differed. Id. at 663-664.

        On appeal, defendant points to the description of an expert witness’s testimony on the
topic of susceptibility and false memories in People v Carver, unpublished per curiam opinion of
the Court of Appeals, issued August 29, 2017 (Docket No. 328157). In Carver, unpub op at 2,
defense counsel did not call the expert at trial. Rather, appellate counsel located the expert who
then testified at a Ginther hearing. The expert testified at length about the suggestibility of
preschool-age children in general and the modes by which false memories are created. Id. at 3.
He then reviewed the child victim’s statements and formed an opinion about the accuracy of the
child’s accusations. Id. at 4.

        Even if defendant could “borrow” the expert witness in Carver to explain the need for an
expert witness in sexual abuse cases involving young children, defendant could not hang his hat
on that expert’s assessment of the accuracy of the Carver victim’s allegations. No expert has
reviewed DP’s statements and forensic interview or rendered an opinion regarding whether this
particular child’s accusations against defendant are real, accurate memories. Defendant has
neither named an expert witness nor provided an expert’s affidavit to support his claim. It is
mere conjecture that defense counsel could have found an expert witness who would testify that
DP’s description of the sexual abuse was incredible. Absent a real assessment, defendant cannot
establish the requisite prejudice to warrant a new trial.



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                            III. SUFFICIENCY OF THE EVIDENCE

        Defendant further contends that the prosecutor presented insufficient evidence to support
his conviction. Generally, a defendant need not take any action to preserve a challenge to the
sufficiency of the evidence, but defendant in this case requested and was denied a directed
verdict. We review such challenges de novo, viewing the evidence in a light most favorable to
the prosecution “to determine whether the trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt.” People v Gaines, 306 Mich App
289, 296; 856 NW2d 222 (2014). See also People v Gillis, 474 Mich 105, 113; 712 NW2d 419
(2006). All conflicts in the evidence are resolved in favor of the prosecution, and all
circumstantial evidence and reasonable inferences drawn therefrom can establish satisfactory
proof of the crime. People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016).

        Defendant’s challenge focuses only on the credibility of the young victim. However,
assessing the credibility of the witnesses is the sole province of the trier of fact as the trier of
fact, and not the appellate court, has the opportunity to observe the witnesses first-hand. People
v Lemmon, 456 Mich 625, 642-643; 576 NW2d 129 (1998); People v Mikulen, 324 Mich App
14, 20; 919 NW2d 454 (2018). “Evidence of guilt in child molestation cases is typically hard to
come by because in most cases the only witness is the victim, whose testimony may not be
available, helpful, or deemed credible because of his or her age.” People v Watkins, 491 Mich
450, 475; 818 NW2d 296 (2012). Yet, “[t]he victim’s testimony alone can provide sufficient
evidence to support a conviction.” People v DeLeon, 317 Mich App 714, 719; 895 NW2d 577
(2016) (emphasis added). The prosecution need not corroborate the victim’s testimony in cases
arising under MCL 750.520b. MCL 750.520h.

        DP testified that defendant committed an act of sexual penetration with him—fellatio.
The jury believed that testimony and therefore convicted defendant of CSC-1. We may not
interfere with that judgment.

       We affirm.



                                                             /s/ Kathleen Jansen
                                                             /s/ Patrick M. Meter
                                                             /s/ Elizabeth L. Gleicher




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