            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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 28, 2020
               Plaintiff-Appellee,

v                                                                    No. 346137
                                                                     Kent Circuit Court
ALVIN LEE FRANKLIN,                                                  LC No. 18-003104-FC

               Defendant-Appellant.


Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

PER CURIAM.

        Defendant, Alvin Lee Franklin, appeals as of right his bench trial conviction of first-
degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(e) (actor is armed with a weapon).
The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 35 to
70 years’ imprisonment. We affirm.

                                       I. BACKGROUND

        This case arises from a sexual assault that occurred in October 2014. The victim was
walking alone in a park. While she was looking at her phone, defendant struck her from behind,
causing her to fall. As she fell, defendant struck her again on the side of her face. After she fell,
defendant brandished a silver semi-automatic handgun and told her to remove her clothing. The
victim attempted to comply, because she felt she had no choice, but defendant also ripped her
shirt and pulled down her pants. Defendant then inserted his penis into her vagina and
ejaculated. The victim testified that she was on her back, and although the area was not brightly
illuminated, there was sufficient light to see defendant’s face clearly. The victim testified that
after defendant raped her, he ordered her to lay there and not move. At some point, the victim
put on the remains of her clothes and went to a nearby friend’s house, where she took several
showers and changed clothing. The victim testified that although she used soap, she did not use
soap on the inside of her vagina. She then called her mother, who picked her up.

       The victim testified that she initially did not want to make a police report or go to the
hospital because she was embarrassed and did not want anything to do with the police.
However, the next morning she went to the hospital at her mother’s insistence. The hospital


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referred the victim to the YWCA, where a forensic medical examination was performed. As part
of the examination, swabs were taken from the victim’s perineal area, anal area, and both inside
and outside her vagina. The swabs were sealed in a rape kit. Due to the backlog at the Michigan
State Police forensic laboratory, the victim’s rape kit was stored and went untested until 2016,
and the kit was outsourced to Sorensen Forensics.

        Kirk DeLeeuw, a forensic scientist employed by the Michigan State Police forensic
laboratory, was qualified without objection as an expert in DNA analysis. DeLeeuw explained
that when the rape kit was finally tested, the testing procedure involved first separating two kinds
of cellular material found in the vulvar swab: a “sperm fraction” consisting of sperm cells, and
an “epithelial fraction” consisting of all other cellular material. 1 The separation procedure was
used because forensic swabs generally contain “a lot of female DNA,” which would typically
match the victim and exclude anyone else. Defendant was excluded as a donor from the
“epithelial fraction,” which was common. However, defendant matched the DNA profile found
in the sperm cells. The probability of a random individual having a matching DNA profile was
one in 6.083 nonillion.2 Sorensen Forensics completed its analysis of the rape kit on April 21,
2016, whereupon the analysis was returned to the Michigan State Police for further review and
confirmation. DeLeeuw performed that review and confirmation.

        The record does not indicate when the match to defendant’s DNA was first made,
although defendant’s DNA had already been on file due to defendant’s prior incarceration. At a
time also unclear from the record, defendant happened to be arrested for an unrelated PPO
violation. The investigating officer attempted to talk to defendant, but defendant refused to
speak. On January 16, 2018, the victim was shown a photographic lineup, from which she
identified defendant. On the same day, a warrant was issued for defendant’s arrest. On February
6, 2018, a fresh buccal swab was taken from defendant, with his attorney present, to confirm the
match. The Michigan State Police forensic laboratory completed its analysis on March 19, 2018,
confirming that the sperm fraction DNA was a match to defendant’s DNA. The victim identified
defendant at trial. Defendant testified that he had been at his girlfriend’s house at the time of the
rape, and he had never seen the victim before. The trial court found defendant guilty as noted
above.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant concedes that “some evidence of guilt was introduced,” but he argues that
insufficient evidence supported the verdict. Defendant specifically challenges his identification.
We disagree.



1
 “Epithelial” refers specifically to the kind of tissue that makes up skin and the linings of body
cavities, organs, and blood vessels.
2
  A “nonillion” has thirty zeros. A billion has nine zeros. For reference and comparison, the
current human population of the Earth is estimated to be approximately 7.6 to 7.7 billion. See
<https://www.census.gov/popclock/world> and <https://population.un.org/wpp/>.


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                                  A. STANDARD OF REVIEW

               Generally, we review a challenge to the sufficiency of the evidence in a
       bench trial de novo and in a light most favorable to the prosecution to determine
       whether the trial court could have found that the essential elements of the crime
       were proved beyond a reasonable doubt. All conflicts with regard to the evidence
       must be resolved in favor of the prosecution. Circumstantial evidence and
       reasonable inferences drawn from it may be sufficient to prove the elements of the
       crime. [People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005)
       (quotations and citations omitted).]

In actions tried without a jury, this Court reviews a trial court’s factual findings for clear error.
MCR 2.613(C); People v Knight, 473 Mich 324, 338; 701 NW2d 715 (2005). A factual finding
is clearly erroneous if, after review of the entire record, an appellate court is left with a definite
and firm conviction that an error occurred. People v Lanzo Const Co, 272 Mich App 470, 473;
726 NW2d 746 (2006).

                                  B. WITNESS CREDIBILITY

        Defendant does not seriously dispute, nor could he, that the victim’s testimony alone, if
believed, amply supports a finding that all elements of CSC-I had been proved beyond a
reasonable doubt. See People v Szalma, 487 Mich 708, 724; 790 NW2d 662 (2010).
Nevertheless, defendant first argues that the victim was not credible, based on the victim’s own
criminal history, the four-year gap between the rape and the photographic lineup, the showers
she took before the forensic medical examination, her desire to avoid talking to the police in
2014, and the fact that her initial description of defendant was approximately a decade younger
than defendant’s actual age. The trial court, which was clearly aware of defendant’s alleged
deficiencies in the victim’s credibility, specifically found “the victim to be very credible, without
question.” Generally, “[t]his Court will not interfere with the trier of fact’s determinations
regarding the weight of the evidence or the credibility of witnesses.” People v Muhammad, 326
Mich App 40, 71; 931 NW2d 20 (2018) (quotations marks and citation omitted); see also
McGonegal v McGonegal, 46 Mich 66, 67; 8 NW 724 (1881).

        In any event, none of defendant’s claimed deficiencies are concerning. Even taking at
face value defendant’s implication that a person who has previously committed a crime gives up
any right to be free from being the victim of a crime,3 the victim’s criminal history actually
bolsters her credibility. In particular, it partially explains why she did not wish to involve herself
with law enforcement. Furthermore, the victim’s desire to take a shower and avoid discussing



3
  A witness’s past commission of certain crimes may be introduced for the purpose of attacking
the witness’s credibility. MRE 609. However, we are unaware of any such crimes, possibly
other than perjury, that necessarily destroy a witness’s credibility per se simply because of their
mere occurrence. Defendant has not presented any argument for why or how the victim’s
particular crimes more than merely potentially undermine the victim’s credibility.


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the matter with law enforcement or medical personnel is normal for a victim of a sexual assault.
See People v Beckley, 434 Mich 691, 715-716; 456 NW2d 391 (1990) (BRICKLEY, J.) (“there is
general agreement among experts that the reactions of a victim of sexual assault vary quite
significantly from those of a victim of the ‘average’ crime.”). Her initial assumption of
defendant’s age, whether in his thirties or forties, and the time between the rape and the lineup,
are relatively trivial. Notably, the DNA evidence significantly bolsters the victim’s testimony,
even though no bolstering was necessary. We find no reason to disturb the trial court’s
determination that the victim was credible, and we find that there was sufficient evidence that
defendant engaged in sexual penetration while armed. See MCL 750.520b(1)(e).

                                      C. DNA EVIDENCE

         Defendant also argues that the DNA identification was not credible. Defendant’s
argument is difficult to understand and reflects a failure to comprehend the nature of DNA
testing.

        Insofar as we can determine, defendant’s general theory at trial was that because he was
excluded as a donor from the epithelial portion of the cellular material recovered from the rape
kit, he could not have committed the rape. We note that this was properly not an argument
actually advanced by counsel. As explained by expert testimony at trial, it is common to not
match the epithelial DNA, and defendant matched the DNA found in the sperm portion of the
recovered cellular material. Furthermore, the probability of that DNA match coming from
another person is improbable to a degree that is practically impossible. Defendant also appears
to be of the belief that the delay between the rape in 2014 and his arrest in 2018 is significant on
the supposition that if his DNA had been found, he would have been arrested and charged much
earlier. However, the delay was explained to be due to the simple and unfortunate backlog at the
Michigan State Police forensic laboratory. Defendant offers no argument or authority explaining
how the DNA test results themselves might have been unreliable, and we will not undertake to
invent an argument on his behalf. See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d
480 (1998); People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). The evidence of
defendant’s guilt was overwhelming, not insufficient.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, defendant argues that he was denied effective assistance of counsel because his trial
attorney failed to present an alibi defense. We disagree.

                                 A. STANDARD OF REVIEW

        “Whether a defendant was deprived of the effective assistance of counsel presents a
mixed question of fact and constitutional law.” People v Head, 323 Mich App 526, 539; 917
NW2d 752 (2018). This Court reviews findings of facts for clear error and questions of law de
novo. Id. Because defendant did not seek an evidentiary hearing in the trial court, our review is
limited to mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d
266 (2012). Defendant has requested a remand for an evidentiary hearing from this Court, which
would be appropriate to grant if defendant “set[s] forth any additional facts that would require


                                                -4-
development of a record to determine if defense was ineffective.” People v Williams, 275 Mich
App 194, 200; 737 NW2d 797 (2007).

        In order to receive a new trial on the basis of ineffective assistance of counsel, defendant
“must show both that counsel’s representation fell below an objective standard of
reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Smith v Spisak, 558 US 139,
149; 130 S Ct 676; 175 L Ed 2d 595 (2010) (quotation marks and citation omitted); People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “Decisions regarding what evidence to
present and whether to call or question witnesses are presumed to be matters of trial strategy.”
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Accordingly, a defendant must
“identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland v Washington, 466 US 668, 690; 104 S Ct 2052;
80 L Ed 2d 674 (1984); Trakhtenberg, 493 Mich at 62.

       Furthermore, defense counsel has a duty to undertake reasonable investigations or to
make a reasonable decision that renders particular investigations unnecessary.             See
Trakhtenberg, 493 Mich at 52. “[A] particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 US at 691. The failure to call a witness or present other
evidence only constitutes ineffective assistance of counsel when it deprives a defendant of a
substantial defense. See People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). “A
substantial defense is one that might have made a difference in the outcome of the trial.” See
People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (quotation omitted).

                                         B. ANALYSIS

        Defendant argues that pursuant to his testimony at trial, he was at his girlfriend’s house
throughout 2014 and never left that house. Defendant has provided this Court with an affidavit
from the girlfriend generally confirming that defendant lived with her in October 2014, and
adding that defendant had no access to a motor vehicle and that the house was at least an hour
away from the park on foot. However, we are not persuaded that the affidavit establishes that
trial counsel undertook inadequate investigation or erred by failing to call the girlfriend as a
witness.

        The trial proceedings were marked by defendant’s tendency to interject into the
proceedings, despite repeated admonitions by the trial court that doing so was inappropriate.
Defendant repeatedly announced his various theories of innocence and perceived inadequacies in
his representation to the trial court, both during the proceedings and in several handwritten
letters. In none of them did defendant mention an alibi witness as far as we can determine.
Furthermore, the affidavit itself states that the girlfriend “discussed these facts with the police
detective and [defendant’s] trial attorney.” Thus, trial counsel was certainly aware of the
girlfriend. Even if we decline to consider the affidavit as an improper expansion of the record,
the record itself would show that counsel was certainly aware of the girlfriend. Although
defendant was represented by different counsel during the preliminary examination, the
girlfriend was apparently present in the courtroom. According to the presentence investigation
report, defendant and the girlfriend had been in a relationship “since mid-July 2014” and

                                                -5-
continued to be in a relationship. Although defendant testified against trial counsel’s advice, and
counsel was initially uncertain how to proceed with defendant’s testimony, counsel readily asked
defendant about his whereabouts in October 2014. This strongly suggests that counsel knew
defendant would testify that he was at his girlfriend’s house. Thus, we find it extremely
implausible that counsel’s choice not to call the girlfriend as a witness was an oversight.

        As noted, we presume the decision not to call the girlfriend as a witness to have been a
matter of strategy. See People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).
Counsel was likely reasonably concerned by the girlfriend’s credibility, or even the possibility
that calling her as a witness would be suborning perjury. See People v Collier, 105 Mich App
46, 56; 306 NW2d 387 (1981). Especially in light of the DNA evidence and defendant’s own
testimony, we cannot conclude that the decision not to call the girlfriend as a witness was
unsound or that it would have made any difference to the outcome of the proceedings.
Consequently, we find no reason to remand this matter for an evidentiary hearing. The decision
not to call the girlfriend as a witness did not deprive defendant of a substantial defense,
particularly in light of the DNA evidence and the fact that her presumed testimony would have
been cumulative. See Chapo, 283 Mich App at 371.

       Affirmed.

                                                            /s/ Colleen A. O’Brien
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Michael F. Gadola




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