                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 2, 2017
               Plaintiff-Appellee,

v                                                                   No. 330867
                                                                    Kent Circuit Court
DIONTEE LAQUINN BEAVERS,                                            LC No. 14-006054-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

       Defendant, Diontee Laquinn Beavers, appeals as of right his conviction after a bench trial
of fourth-degree criminal sexual conduct (CSC-IV) (force or coercion), MCL 750.520e(1)(b).
Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 36 months’
probation. Additionally, defendant was ordered to pay $400 in court costs, $600 in attorney fees,
and $900 in probation supervision/oversight fees. We remand to the trial court for a Ginther1
hearing on whether defendant’s trial counsel was constitutionally ineffective for failing to pursue
an insanity defense. Additionally, we remand for the purpose of establishing the factual basis for
the court costs and attorney fees imposed by the trial court in the event it determines that
defendant is not entitled to a new trial on his ineffective assistance of counsel claims.2

        Defendant’s arrest and subsequent conviction arose out of an incident that occurred as he
was checking into a mental health facility, Pivot Crisis, on the evening of January 31, 2014.
According to the victim, Carolyn Townsend, after assisting defendant and his mother with intake
paperwork, defendant grabbed her in the crotch, over her vaginal area, for about three seconds.
She stated that this occurred while she was holding a door open for defendant to allow him to
enter a different area of the facility. Townsend testified that she responded to defendant’s
actions by asking what he was doing, to which he replied, “Oops, I messed up,” before he and his
mother left the facility.3



1
  People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
  If defendant is granted a new trial, his argument concerning the court costs and attorney fees
imposed by the trial court at sentencing will be moot.
3
  Defendant’s mother testified that she did not see defendant touch the victim and that she and
defendant left the facility because she did not think it would be a safe environment.

                                                -1-
        On appeal, defendant argues that his trial counsel was constitutionally ineffective for
failing to pursue an insanity defense. There are “two components” to establishing an ineffective-
assistance-of-counsel claim, the defendant must show first, “that counsel’s performance was
deficient,” and second, that “the deficient performance prejudiced the defense.” Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Trial counsel is
responsible for preparing, investigating, and presenting all substantial defenses.” People v
Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). “A substantial defense is one that might
have made a difference in the outcome of the trial.” Id. (quotation marks and citation omitted).
Similarly, to establish prejudice under Strickland, a defendant is required to show that there
exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 US at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.

       The insanity defense statute, MCL 768.21a, provides:

              (1) It is an affirmative defense to a prosecution for a criminal offense that
       the defendant was legally insane when he or she committed the acts constituting
       the offense. An individual is legally insane if, as a result of mental illness as
       defined in section 400 of the mental health code, 1974 PA 258, MCL 330.1400, or
       as a result of having an intellectual disability as defined in section 100b of the
       mental health code, 1974 PA 258, MCL 330.1100b, that person lacks substantial
       capacity either to appreciate the nature and quality or the wrongfulness of his or
       her conduct or to conform his or her conduct to the requirements of the law. . . .

       The testimony of defendant’s mother, but more specifically letters from various medical
professionals, including the examining psychiatrist from the Center for Forensic Psychiatry,
which were available to defendant’s trial counsel but not admitted at trial, demonstrate that
defendant suffers from a mental illness and that one of the symptoms of that illness is that he acts
in a hypersexualized manner when experiencing psychotic episodes. At trial, only defendant’s
mother testified to his mental illness and erratic behavior. She explained that defendant typically
received medications when he went to the hospital to make him more “stable” and that he had
been diagnosed with schizophrenia or bipolar disorder. Defendant’s mother testified that the
placement at Pivot Crisis was arranged by a social worker at the Metro Hospital after no beds
were available at other facilities where defendant had previously stayed.

        A letter written on February 13, 2014 by Michael Egan of Consumer Services Inc. states
that defendant had been receiving mental health services since July 2012 in part because he
“becomes hypersexual in a state of psychosis.” Egan’s letter stated that he met with defendant
on January 31, 2014, the date of the incident, before defendant went to Pivot Crisis and that no
psychiatric bed was made available to defendant at other facilities due to his past history.4 Egan
also stated in the letter that defendant was seen by a “Doctor Brubaker” on Monday, February
3rd where he continued to exhibit erratic behavior along with sexually inappropriate gestures.
Another letter from a Dr. Carey Krause at Mercy Health stated that defendant came under her
care after the incident at Pivot Crisis and that he exhibited “hypomanic symptoms” including

4
 Egan’s letter suggests that the reason no other facility would take defendant was because of his
history of acting in a hypersexual manner.

                                                -2-
“making inappropriate sexual comments directed at staff.” Krause’s diagnosis was that
defendant suffered from “Schizoaffective Disorder.” A third letter from a Dr. Kevin Altman
stated that defendant had been diagnosed the previous year with “limbic encephalitis.”

        Given this information, we conclude that an insanity defense could have made a
difference in the outcome of the trial and that defendant’s trial counsel had a responsibility to
prepare, investigate, and, if viable, to present such a defense. Defendant’s trial counsel did not
call any of the medical personnel who wrote letters of defendant’s diagnoses to testify at trial or
seek to have their diagnoses introduced as evidence to support an insanity defense. While
defendant’s trial counsel did file a notice of intent to assert an insanity defense, he did not pursue
the defense after an evaluation from the Center for Forensic Psychiatry came back unfavorably.5
However, even the State’s examiner concluded that defendant met the statutory criteria for a
mental illness. The examiner also acknowledged that there was evidence, which he identified,
that supported a finding of legal insanity, and he noted defendant’s long history of psychosis.
Ultimately, the examiner’s conclusion that the evidence was insufficient for him to conclude that
defendant was legally insane was largely based on what he deemed to be insufficient evidence to
“definitively conclude” that defendant met the statutory criteria. The fact that the prosecution’s
expert did not render a favorable conclusion certainly did not preclude defendant’s trial counsel
from asserting that defense at trial or from seeking to have an independent evaluation at the
expense of the county if defendant was indigent, MCL 768.20a(3). Indeed, the state’s
examiner’s report could have provided much support for an insanity defense even though the
ultimate conclusion was unfavorable. We can discern no strategic reason for defense counsel’s
failure to offer an insanity defense at trial or to at least investigate the possibility of doing so by
seeking an expert review.

        Defendant had a long history of psychosis accompanied by hypersexual activity, the
incident occurred as defendant was being admitted to a psychiatric hospital for treatment of a
psychotic episode, and the forensic examiner on which the prosecutor would rely agreed that
defendant was mentally ill and that the issue of legal insanity was close. Moreover, defense
counsel’s chosen trial strategy appeared to be focused on contesting whether defendant’s
touching was for a sexual purpose, a necessary finding to conclude that he engaged in sexual
contact, the first essential element of the charged offense.6 However, the requirement that the
touching of the victim be for a sexual purpose only requires that the prosecutor prove “that the
intentional touch could reasonably be construed as being for [a] sexual purpose.” People v
Piper, 223 Mich App 642, 647; 567 NW2d 483 (1997) (citation and quotations omitted).7 The

5
  The evaluation was performed pursuant to MCL 768.20a(2), which requires such evaluations
be performed at the Center for Forensic Psychiatry whenever a defendant files a notice to present
an insanity defense.
6
  “Sexual contact” is defined as “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 . . . .” MCL 750.520a(q).
7
  When Piper was decided, “sexual contact” was defined in MCL 750.520a(k) under an earlier
version of the statute 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

                                                 -3-
statute does “not permit the court to instruct the jury . . . to consider defendant’s mens rea.” Id.
at 650. Because grabbing and holding a person’s genital area for no other apparent purpose,
could objectively be viewed as for a sexual purpose, even if all of defense counsel’s arguments
and interpretations of the evidence had been accepted by the trial court, it still would not have
negated a finding that defendant engaged in “sexual contact.”

        Though it appears based on the record before us that an insanity defense would have
presented defendant with a far greater likelihood of success than that chosen by his trial counsel,
because no Ginther hearing was held, we do not have any information about what actions
defense counsel did take in investigating a potential insanity defense or any reasons defense
counsel may have had, which are not discernable from the record, for not pursuing such a
defense at trial; nor do we have testimony of a possible defense expert in order to weigh its
potential effect on the jury. Accordingly, we remand to the trial court for a Ginther hearing so
that a record can be made regarding what steps were taken by defendant’s trial counsel to
investigate a potential insanity defense, what, if any reason, he had for not further pursuing such
a defense at trial, and whether evidence in support of an insanity defense would have presented a
“reasonable probability that . . . the result of the proceeding would have been different,”
Strickland, 466 US at 694. The trial court may also hear a motion for new trial at that time. We
retain jurisdiction so that after the completion of such a hearing, we can again review defendant’s
arguments.

        Defendant also argues that the evidence was insufficient to support his conviction.
“[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a
court must view the evidence in a light most favorable to the prosecution and determine whether
any rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). We “will not interfere with the jury’s determinations regarding
the weight of the evidence and the credibility of the witnesses.” People v Unger, 278 Mich App
210, 222; 749 NW2d 272 (2008). The prosecution was required to prove that defendant
“engage[d] in sexual contact” and that “[f]orce or coercion [was] used to accomplish the sexual
contact.” MCL 750.520e(1)(b). As stated, there was sufficient evidence that defendant engaged
in “sexual contact,” the first essential element of the charged offense.

        Additionally, the victim’s testimony was sufficient for a rational trier of fact to conclude
that “force or coercion” was used. Force or coercion “includes, but is not limited to” situations
where the defendant “overcomes the victim through the actual application of physical force” and
to situations where the defendant “achieves sexual contact through concealment or by the
element of surprise.” MCL 750.520e(1)(b)(i) and (1)(b)(v). The victim’s testimony that
defendant grabbed her on the outside of her clothing over her vaginal area and that he kept his
hand there for three seconds was sufficient to conclude that defendant used force or coercion
“through the actual application of physical force.” MCL 750.520e(1)(b)(i). And her testimony
that defendant engaged in this action as she was holding a door open for him to enter the facility
was sufficient evidence for a rational trier of fact to conclude that he achieved sexual contact “by


of sexual arousal or gratification.” 223 Mich App at 645. Thus, the language of the definition
was essentially the same then as it is now. See MCL 750.520a(q).

                                                -4-
the element of surprise.” MCL 750.520e(1)(b)(v). Therefore, we reject defendant’s argument
that the evidence was insufficient to support his conviction.

        Finally, defendant challenges the reasonableness of the court costs, attorney fees, and
oversight fee imposed by the trial court. Defendant argues that this matter should be remanded
pursuant to People v Konopka (On Remand), 309 Mich App 345; 869 NW2d 651 (2015),
because the trial court did not provide a factual basis for these costs. In Konopka, we held that
remand was the appropriate remedy where the trial court “did not establish a factual basis” for
the costs imposed under MCL 769.1k(1)(b)(iii) and where without such a factual basis this Court
could not “determine whether the costs imposed were reasonably related to the actual costs
incurred by the trial court.” Id. at 359-360. The prosecution acknowledges in its brief on appeal
that this case is comparable to Konopka and that remand to the trial court is required to
determine the reasonableness of the court costs and attorney fee assessed. Therefore, if after the
conclusion of the Ginther hearing, the trial court determines that defendant is not entitled to a
new trial on his ineffective assistance of counsel claim, it must then establish a factual basis for
the costs imposed to ensure that the court costs were reasonably related to the actual costs
incurred by the trial court and to ensure that the attorney fee is only to recoup the costs of
providing the legal assistance actually rendered to defendant.

        As it concerns the $900 probation supervision fee, MCL 771.3c provides a schedule for
determining the fee based on the probationer’s income. The Presentence Investigation Report
indicates that defendant receives a monthly income of $730 from Social Security Disability
payments. MCL 771.3c states that a probationer earning this amount of income per month
should pay a fee of $25 per month. As defendant was sentenced to three years’ probation, 36
months multiplied by $25 per month equals $900. Therefore, the fee imposed by the trial court
was in compliance with MCL 771.3c and is affirmed.

       We remand to the trial court for a Ginther hearing to determine whether defendant’s trial
counsel was constitutionally ineffective for failing to pursue an insanity defense and, if it is
determined that defendant’s trial counsel was not ineffective, for a hearing to determine the
reasonableness of court costs and attorney fees imposed. We retain jurisdiction.

                                                             /s/ Jane M. Beckering
                                                             /s/ Jane E. Markey
                                                             /s/ Douglas B. Shapiro




                                                -5-
                               Court of Appeals, State of Michigan

                                                 ORDER
                                                                                Jane M. Beckering
People of MI v Diontee Laquinn Beavers                                            Presiding Judge

Docket No.     330867                                                           Jane E. Markey

LC No.         14-006054-FH                                                     Douglas B. Shapiro
                                                                                  Judges


                Pursuant to the opinion issued concurrently with this order, the Court REMANDS this
matter to the Kent Circuit Court, pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1993),
for an evidentiary hearing on, and a determination of, whether defendant’s trial counsel was
constitutionally ineffective for failing to pursue an insanity defense. We retain jurisdiction only for the
purpose of evaluating the merits of defendant’s ineffective assistance claim.

                Proceedings on remand in this matter shall commence within 35 days of the Clerk’s
certification of this order. The circuit court shall give priority to the proceedings on remand until they
are concluded. The parties shall promptly file with this Court a copy of all papers filed on remand in
conjunction with the Ginther hearing. Defendant shall file with this Court copies of all orders entered
on remand within 7 days of their respective entry. The transcript of the Ginther proceedings on remand
shall be prepared and filed within 21 days after completion of the proceedings.

                 As also stated in the accompanying opinion, the Court REMANDS this matter for the
purpose of establishing the factual basis for the court costs and attorney fees imposed by the trial court
in the event it determines that defendant is not entitled to a new trial on his ineffective of counsel claims.
See MCL 769.1k(b)(iii); People v Konopka (On Remand), 309 Mich App 345; 869 NW2d 651 (2015).

               This order has immediate effect. MCR 7.215(F)(2).



                                                              /s/ Jane M. Beckering




                                 May 2, 2017
