            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 15, 2019
              Plaintiff-Appellee,

v                                                                  No. 339395
                                                                   Chippewa Circuit Court
JESSE DENNIS EASTERWOOD,                                           LC No. 16-002066-FC

              Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

       Defendant, Jesse Dennis Easterwood, was convicted of three counts of first-degree
criminal sexual conduct (multiple variables) (CSC-I), MCL 750.520b, and three counts of
accosting a child for an immoral purpose, MCL 750.145a, after a jury trial. The trial court
sentenced defendant to concurrent prison terms of 45 to 70 years for each of the CSC-I
convictions and 23 months to 4 years for each of the convictions of accosting a child for immoral
purposes. On remand from this Court, the trial court granted defendant’s motion for
resentencing and sentenced defendant to concurrent prison terms of 15 to 40 years for the CSC-I
convictions and 23 months to 4 years for each of the convictions of accosting a child for immoral
purposes. Defendant appeals as of right. We affirm.

                                      I. BACKGROUND

        Defendant’s convictions stem from three separate sexual assaults of the 14-year-old
victim, DP, while she was babysitting for defendant’s infant daughter in the summer of 2015.
According to DP, on each occasion defendant provided her with alcohol before taking her into
his bedroom, at least partially undressing her, putting on a condom, and penetrating her vagina
with his penis. DP admitted that she did not report the incidents to anyone other than her then-
12-year-old friend, CH, who testified that DP told him in October 2015 that she had been raped
by defendant. DP first disclosed the details of the three sexual assaults in December 2015 to
Melissa Hagen, a social worker at a youth detention facility where DP was sent after her mother
filed an incorrigibility petition. 1 The social worker, as a mandatory reporter of sexual abuse
allegations, reported DP’s allegations that she had been sexually abused by defendant, who
provided her with alcohol when she went to his house to babysit.

        Detective Bradley LaCross testified that he interviewed DP at the detention center in
January 2016. According to Detective LaCross, DP described three instances when defendant
sexually penetrated her vagina with his penis after he offered her beer and cigarettes and after he
put on a condom. After further investigation, police arrested defendant in April 2016. Police
seized defendant’s cell phone and obtained a warrant to search for evidence of the sexual
assaults. Police found text messages between defendant and his fiancé in which his fiancé
confronted defendant about his purchasing condoms because they did not use condoms in their
relationship. Defendant claimed that he purchased the condoms to give to his sons. Defendant’s
sons, however, denied that defendant offered them condoms in the summer of 2015. Police also
found evidence that defendant used his cell phone to visit an Internet pornography site called
“Banging the Babysitter.”

        During trial, the prosecution presented evidence from two other-acts witnesses. TL, the
mother of defendant’s son, testified that defendant had sexual intercourse with her twice without
her consent, when she was 14 years old, and that their son was conceived as a result of one of the
sexual assaults. MC, defendant’s former stepdaughter, testified that defendant raped her in a tent
in their backyard when she was 12 years old. According to MC, on the night of the incident,
defendant caught MC trying to sneak out of the house to visit a boyfriend. Defendant told her,
“You don’t need to do these things with your boyfriend because I’m here. Because I’m
available.” Defendant then took MC to the tent and had sexual intercourse with her. Afterward,
defendant continued to sexually harass MC, often attempting to adjust her bra.

        MC further testified that, when she was 17 years old, defendant tried to prevent her from
moving out of the house, so she attempted to strike him with a baseball bat. MC pleaded guilty
to felonious assault for that incident. The trial judge in this case, who was then a criminal
defense attorney, represented MC in her criminal case. MC testified that she did not tell anyone
about the sexual assault until shortly before the trial in this case. The implication of MC’s
testimony was that she did not tell her criminal defense attorney about the sexual assault. At
trial, defense counsel orally moved to disqualify the trial judge from the case based on the
judge’s prior representation of MC in her criminal case. Defense counsel did not timely move to
disqualify the trial judge under MCR 2.003(D)(1)(a) and did not file an affidavit at the time he
made the oral motion to disqualify the trial judge. The trial judge declined to disqualify himself
from the case and defendant did not refer the issue to the chief judge.

       Defendant testified and denied the allegations of sexual assault, as well as the allegation
that he provided DP with alcohol. Defendant testified that his sexual acts with TL were
consensual. Defendant suggested that MC falsely accused him because she was close with her


1
 According to DP’s mother, DP’s behavior changed for the worse after she began babysitting for
defendant in July 2015, and DP’s mother could not deal with her.


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mother, who did not get along with him, and claimed that MC had a history of drug abuse and
needed mental counseling. Defendant also suggested that DP was a troubled teen who “made up
this claim to get out of trouble.”

                                         II. ANALYSIS

                      A. DISQUALIFICATION OF THE TRIAL JUDGE

       Defendant first argues that the trial judge’s prior representation of MC in her criminal
case involving her assault of defendant mandated the trial judge’s disqualification from this case
under MCR 2.003(C)(1)(b) and (c). We disagree.

        Generally, when reviewing a trial court’s decision on a motion for disqualification, “the
trial court’s findings of fact are reviewed for an abuse of discretion, while the application of the
facts to the relevant law is reviewed de novo.” People v Wells, 238 Mich App 383, 391; 605
NW2d 374 (1999). Because defendant did not properly preserve this issue, however, we review
this issue only for plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). To obtain relief under this standard, a defendant must
show that (1) an error occurred, (2) the error was clear or obvious, and (3) the error was
prejudicial in that it affected the outcome of the lower court proceedings. Reversal is warranted
only when the plain error resulted in the conviction of an innocent defendant or seriously
affected the fairness, integrity, or public reputation of the proceedings. Id.

       MCR 2.003(C)(1)(b) provides that disqualification of a judge is warranted if

       [t]he judge, based on objective and reasonable perceptions, has either (i) a serious
       risk of actual bias impacting the due process rights of a party as enunciated in
       Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii)
       has failed to adhere to the appearance of impropriety standard set forth in Canon 2
       of the Michigan Code of Judicial Conduct.

Under MCR 2.003(C)(1)(c), disqualification of a judge is warranted if “[t]he judge has personal
knowledge of disputed evidentiary facts concerning the proceeding.” Furthermore, Canon 2(A)
of the Michigan Code of Judicial Conduct provides:

       Public confidence in the judiciary is eroded by irresponsible or improper conduct
       by judges. A judge must avoid all impropriety and appearance of impropriety. A
       judge must expect to be the subject of constant public scrutiny. A judge must
       therefore accept restrictions on conduct that might be viewed as burdensome by
       the ordinary citizen and should do so freely and willingly.

       Disqualification of a judge under MCR 2.003(C)(1)(b) is focused on the appearance of
impropriety and possible due process violations. See People v Aceval, 486 Mich 887, 889; 781
NW2d 779 (2010). To determine whether an appearance of impropriety exists, this Court
considers “ ‘whether the [judge’s] conduct would create in reasonable minds a perception that
the judge’s ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired.’ ” Id., quoting Caperton, 556 US at 888. In terms of due process, a
judge should be disqualified only in those “extreme cases,” People v Roscoe, 303 Mich App 633,

                                                -3-
647; 846 NW2d 402 (2014), in which, objectively viewed, the probability of actual bias on the
part of the judge is too high to be constitutionally tolerable, Caperton, 556 US at 877.

        On appeal, defendant simply declares that the trial judge’s prior representation of MC
provided grounds for disqualification. Defendant’s argument is speculative and lacks specifics;
it provides no discussion of why or how the trial judge’s prior representation of a witness
satisfies any of the grounds cited. At most, defendant asserts there was a “clear indication of
bias” because “[t]he jury got to hear that [the trial judge] had represented a key witness against
Mr. Easterwood as a defense attorney, a fact which later became important in trial when the
witness was asked about prior disclosures she made or did not make to her attorney, now the
judge.” Again, defendant makes a conclusory statement without citing to the record and without
discussing how or why MC’s testimony demonstrated bias or impartiality on the part of the trial
judge. Defendant fails to note that it was defense counsel who asked MC if an attorney
represented her in her criminal case and asked her the identity of her attorney. The prosecutor
objected on the ground of relevance when defense counsel asked MC whether the trial judge was
an “excellent defense attorney [who] properly counseled her.” It was defense counsel who asked
MC whether she ever told her attorney about defendant’s alleged abuse, and MC responded “no.”
Not only did defense counsel elicit the testimony that the trial judge was MCs counsel, he also
elicited testimony that MC did not make any disclosures to her attorney. There was no evidence
that the trial judge had any personal knowledge of disputed evidentiary facts concerning this
proceeding. MCR 2.003(C)(1)(c). Defendant has made no showing of actual bias or prejudice,
and has not met the heavy burden of overcoming the presumption of impartiality. See People v
Johnson, 315 Mich App 163, 196; 889 NW2d 513 (2016). Defendant has failed to establish
plain error resulting from the trial judge’s prior representation of MC in her criminal case
involving her assault of defendant.

        Defendant argues, in the alternative, that his trial counsel was ineffective by failing to
timely move to disqualify the trial judge and by failing to support such a motion with an
affidavit. The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const Am VI; Const 1963, art 1, § 20, is the right to the effective assistance of counsel. United
States v Cronic, 466 US 648, 654-655; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Pubrat,
451 Mich 589, 594, 548 NW2d 595 (1996). To establish ineffective assistance of counsel, a
defendant must show (1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and (2) that there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different. Strickland
v Washington, 466 US 668, 687-688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).

         On appeal, defendant simply announced that he was denied the effective assistance of
counsel without providing any analysis to support the contention, and left it to this Court to
discover and rationalize the basis for the claim. An appellant’s failure to address the merits of
his assertion of error constitutes abandonment of the issue. See People v Harris, 261 Mich App
44, 50; 680 NW2d 17 (2004). Furthermore, because defendant has not demonstrated that the
trial judge erred by refusing to recuse himself, there is no reasonable probability that the outcome
in the trial court would have been different had trial counsel timely filed a motion for
disqualification with a supporting affidavit. See Strickland, 466 US at 687-688. Defendant’s
argument is without merit.

                                                -4-
                                  B. SEARCH AND SEIZURE

        Defendant next argues that his Fourth Amendment right against unreasonable searches
and seizures was violated when the trial court admitted text messages between himself and his
fiancée about his condom purchases, as well as evidence that he visited an Internet site called
“Banging the Babysitter.” Defendant contends that a search of his entire phone fell outside the
scope of the search warrant because the warrant limited the evidence sought to be searched for
and seized. For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). Defendant did not preserve this issue by seeking suppression of the allegedly
tainted evidence in the trial court. Therefore, we review defendant’s argument on appeal for
plain error affecting his substantial rights. See Carines, 460 Mich at 764.

        Defendant’s argument confuses the place to be searched with the items to be seized. The
police obtained a warrant to search defendant’s entire phone. The warrant states, “The person,
place, or thing to be searched is described as . . . Jesse Easterwood’s I phone 4.” The warrant
specified the items of evidence “to be searched for and seized” as:

       Any and all photos, messages, emails, facebook contacts or messenger messages
       that are with [DP] or about [DP]. Any information that gives any type of
       information of Jesse Easterwood’s location, work schedule, softball schedule, or
       need for a babysitter in 2015. Any information about any contact with [DP].

        Accordingly, the search warrant authorized the police to search defendant’s entire phone
for evidence of communications with or about DP, defendant’s need for a babysitter, and any
type of contact with DP. Defendant’s text messages and his Internet browsing history are two
areas within defendant’s phone where police could likely expect to find the evidence described in
the search warrant. See, e.g., People v Keller, 479 Mich 467, 479; 739 NW2d 505 (2007)
(holding that the authorized search for marijuana “permitted police officers to search the entire
house and to investigate containers in which marijuana might be found”).

        A lawful search of a premises “generally extends to the entire area in which the object of
the search may be found and is not limited by the possibility that separate acts of entry or
opening may be required to complete the search.” United States v Ross, 456 US 798, 820-821;
102 S Ct 2157; 72 L Ed 2d 572 (1982). Similarly, a warrant to search a vehicle “would support a
search of every part of the vehicle that might contain the object of the search.” Id. at 821.
“When a legitimate search is under way, and when its purpose and its limits have been precisely
defined, nice distinctions between closets, drawers, and containers, in the case of a home, or
between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a
vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.”
Id.

       A police officer exceeds the scope of a valid search if the officer takes action unrelated to
the objectives of the authorized intrusion, and the officer exposes to view concealed portions of
the premises or its contents. See Arizona v Hicks, 480 US 321, 324-26, 328;107 S Ct 1149; 94 L
Ed 2d 347 (1987) (holding that an officer’s moving of stereo equipment to check the serial
number was an unreasonable search under the Fourth Amendment, unsupported by probable

                                                -5-
cause, when the initial purpose of the intrusion onto the premises was to search for people or
weapons). In determining whether a search exceeded the scope of a warrant, the test is whether
the search was unreasonable because only unreasonable searches are prohibited by the Fourth
Amendment.

        Here, the police acted reasonably within the scope of the search warrant for the cell
phone when they searched the Internet history, at least cursorily, because the Internet history
could reasonably be expected to contain information sought to be seized. Thus, the police were
lawfully present in the area being searched. Even if it could be argued that the warrant did not
expressly authorize the seizure of evidence discovered in the Internet search history, the seizure
of the evidence falls within the plain-view exception to the warrant requirement. See Coolidge v
New Hampshire, 403 US 443, 465; 912 S Ct 2022; 29 L Ed 2d 564 (1971). When officers are
legally present in the area being searched, they are authorized to seize any evidence obviously
incriminating, under the plain-view doctrine. See Horton v California, 496 US 128, 136-137;
110 S Ct 2301; 110 L Ed 2d 112 (1990). Because DP testified that defendant used condoms
during the sexual assaults, and because defendant denied having or using condoms, evidence
regarding defendant’s purchase of condoms was clearly incriminating, as was defendant’s visit to
a website involving sexual acts with babysitters. On this record, the admission of such evidence
did not amount to plain error. Furthermore, because the seizure of the evidence was not outside
the scope of the search warrant, we reject defendant’s alternative argument that his trial counsel
was ineffective because he failed to file a motion to suppress the evidence. There is no
reasonable probability that the outcome in the trial court would have been different had trial
counsel filed a motion to suppress the evidence. See Strickland, 466 US at 687-688.

                                 C. HEARSAY TESTIMONY

        Defendant next argues that he was denied a fair trial by the admission of hearsay
testimony regarding DP’s statements to Hagen and to Detective LaCross because the testimony
was offered for the sole purpose of bolstering DP’s credibility. “To preserve an evidentiary issue
for review, a party opposing the admission of evidence must object at trial and specify the same
ground for objection that it asserts on appeal.” People v Aldrich, 246 Mich App 101, 113; 631
NW2d 67 (2001). Defendant objected to the admission of Hagen’s testimony with respect to
what DP told her, on the ground that the testimony was hearsay, yet the trial court admitted the
testimony over defendant’s objection under the hearsay exception in MRE 801(d)(1)(B). In
cases of preserved evidentiary challenges, the trial court’s decision to admit or exclude evidence
is reviewed for an abuse of discretion. Aldrich, 246 Mich App at 113. “An abuse of discretion
occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). Defendant did not,
however, object to the admission of Detective LaCross’s testimony with respect to what DP told
him. This Court reviews unpreserved evidentiary issues for plain error. Carines, 460 Mich at
763.

         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). A
statement is excluded from the definition of hearsay if the declarant “testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the statement is . . .
(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge

                                               -6-
against the declarant of recent fabrication or improper influence or motive.” MRE 801(d)(1).
The party offering the prior consistent statement under MRE 801(d)(1)(B) must establish four
elements:

               (1) the declarant must testify at trial and be subject to cross-examination;
       (2) there must be an express or implied charge of recent fabrication or improper
       influence or motive of the declarant’s testimony; (3) the proponent must offer a
       prior consistent statement that is consistent with the declarant’s challenged in-
       court testimony; and, (4) the prior consistent statement must be made prior to the
       time that the supposed motive to falsify arose. [People v Jones, 240 Mich App
       704, 707; 613 NW2d 411 (2000) (quotation marks and citation omitted).]

                                  1. HAGEN’S TESTIMONY

        The parties agree that Hagen’s testimony regarding DP’s statement to her that she had
been sexually assaulted by defendant when she babysat for his child and that defendant provided
her alcohol on those occasions was not admissible as a prior consistent statement because the
statement was not made prior to the alleged motive to fabricate arose. The erroneous admission
of evidence is, however, presumed harmless and reversal of a conviction based on erroneously
admitted evidence will not be granted unless, “after an examination of the entire cause, it shall
affirmatively appear that the error asserted has resulted in a miscarriage of justice.” People v
Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999) (quotation marks and citation omitted). That
is, unless the defendant is able to show that it is more probable than not that the error was
outcome determinative, this Court will not reverse. Id. at 495-496. “An error is deemed to have
been ‘outcome determinative’ if it undermined the reliability of the verdict.” People v
Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000) (citation omitted).

        Hagen’s testimony that DP told her that she had been sexually abused by defendant did
not provide details of the assaults as described by DP. Hagen’s testimony simply identified
defendant as the perpetrator of the assaults. Hagen’s testimony identifying defendant as her
abuser was therefore cumulative of similar testimony by DP and CH. “Although whether a
hearsay statement is cumulative is not dispositive to this analysis under Michigan law, it is an
indicator that the error was not highly prejudicial, particularly in the presence of other
corroborating evidence.” People v Gursky, 486 Mich 596, 623; 786 NW2d 579 (2010). As in
Gursky, the improperly admitted portions of Hagen’s testimony in this case did not introduce any
new information to the jury. Instead, Hagen’s testimony was cumulative to DP’s in-court
testimony that DP had been assaulted and to CH’s testimony that DP told him that she had been
raped by defendant. See id. The erroneous admission of this cumulative hearsay testimony did
not prejudice defendant. See People v Rodriquez (On Remand), 216 Mich App 329, 332; 549
NW2d 359 (1996).




                                               -7-
                          2. DETECTIVE LACROSS’S TESTIMONY

      Defendant did not object to Detective LaCross’s testimony and, therefore, the trial court
made no ruling on the admissibility of the testimony.

        We assume, without deciding, that Detective LaCross’s testimony regarding out-of-court
statements made to him by DP, including detailed descriptions of the alleged abuse, was
inadmissible hearsay under MRE 801(d)(1)(B). The admission of the evidence was not highly
prejudicial to defendant because it was cumulative to DP’s in-court testimony and CH’s
testimony, as well as to other corroborating evidence. Similarly, defense counsel’s failure to
object to the testimony did not prejudice the defense, and therefore defendant cannot show
ineffective assistance of counsel.

                                        D. SENTENCING

        In his first appeal, defendant challenged the trial court’s original assessment of points for
Offense Variables (OVs) 13 and 19. On remand from this Court, the trial court granted
defendant’s motion for resentencing. The trial court agreed with defendant that OV 13 was
improperly assessed 50 points and should have been assessed 25 points. The trial court then
recalculated the guidelines range to a range more favorable than that urged in defendant’s brief
on appeal in this Court. The trial court sentenced defendant within the applicable sentencing
guidelines range to a minimum term of 15 years, down from the 45-year minimum term
originally imposed. In his supplemental brief after remand, defendant did not challenge the
sentence imposed by the trial court on remand. Under these circumstances, further review of this
issue is unnecessary.

       Affirmed.



                                                              /s/ Jane E. Markey
                                                              /s/ Michael J. Kelly
                                                              /s/ Brock A. Swartzle




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