            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 13, 2019
               Plaintiff-Appellee,

v                                                                   No. 342098
                                                                    Oakland Circuit Court
STEPHEN MICHAEL MYERS,                                              LC No. 2016-261073-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury-trial convictions for first-degree criminal sexual
conduct (CSC I), MCL 750.520b, and two counts of second-degree criminal sexual conduct
(CSC II), MCL 750.520c. He was sentenced to 30 to 60 years’ imprisonment for the CSC I
conviction and 10 to 15 years’ imprisonment for the CSC II convictions. We affirm.

        This case arose from allegations that defendant sexually abused his then 11-year-old
adopted daughter. Defendant previously pleaded no contest to two counts of CSC II for sexually
abusing the complainant’s older sister, AM, from 2009 to 2012. AM disclosed the abuse in 2012
when she was 16 years old. At that time, the complainant denied that she had been molested.
Later, in February 2016, the complainant disclosed that she had also been abused.

                  I. EVIDENCE OF PRIOR SEXUAL ABUSE OF A MINOR

       Defendant first argues that the trial court erred by admitting evidence of defendant’s prior
sexual abuse of AM under MCL 768.27a. That statute provides, in relevant part, that “in a
criminal case in which the defendant is accused of committing a listed offense against a minor,[1]
evidence that the defendant committed another listed offense against a minor is admissible and


1
 This includes “various forms of criminal sexual conduct,” People v Dobek, 274 Mich App 58,
88 n 16; 732 NW2d 546 (2007), including the crimes at issue here.



                                                -1-
may be considered for its bearing on any matter to which it is relevant.” MCL 768.27a. We
review for an abuse of discretion a trial court’s decision to admit or exclude evidence. People v
McGhee, 268 Mich App 600, 636; 709 NW2d 595 (2005).

        “In cases involving the sexual abuse of minors, MCL 768.27a now allows the admission
of other-acts evidence to demonstrate the likelihood of a defendant’s criminal sexual behavior
toward other minors.” People v Buie, 298 Mich App 50, 71-72; 825 NW2d 361 (2012)
(quotation marks and citation omitted). MCL 768.27a supersedes MRE 404(b) where applicable,
but evidence admissible under MCL 768.27a may still be excluded under MRE 403. People v
Watkins, 491 Mich 450, 477, 481; 818 NW2d 296 (2012). MRE 403 provides that relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Unfair prejudice occurs
when there is a tendency for the evidence “to be given undue or preemptive weight” by the jury,
or when it “would be inequitable to allow use” of the evidence. People v Wilson, 252 Mich App
390, 398; 652 NW2d 488 (2002). Evidence that is unfairly prejudicial goes beyond the merits of
the case to inject issues broader than the defendant’s guilt or innocence, such as “bias, sympathy,
anger, or shock.” McGhee, 268 Mich App at 614.

        Defendant argues that evidence of his sexual abuse of AM should have been excluded
because it was substantially more prejudicial than probative. In denying defendant’s motion to
exclude the evidence, the trial court noted that the evidence was relevant because it tended to
establish a pattern, scheme or design. The trial court also reasoned that the existence of this
pattern, scheme or design “would make the allegations in this case more credible.” The trial
court concluded that the probative value of the evidence—its tendency to demonstrate a common
scheme and to corroborate the complainant’s report—was not substantially outweighed by its
prejudicial effect.

       “MCL 768.27a specifically permits the use of other-acts evidence to show a defendant’s
propensity to commit the charged crime” while “bolster[ing] the complainant’s credibility.”
Watkins, 491 Mich at 492 n 93. When MCL 768.27a is at issue, the propensity aspect of the
evidence weighs in favor of the evidence’s probative value rather than its prejudicial effect. Id.
at 486-487, 497. In Watkins, 491 Mich at 487-488, our Supreme Court enumerated several
considerations that might lead a court to exclude evidence as unfairly prejudicial under MRE
403:

       (1) the dissimilarity between the other acts and the charged crime, (2) the
       temporal proximity of the other acts to the charged crime, (3) the infrequency of
       the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
       evidence supporting the occurrence of the other acts, and (6) the lack of need for
       evidence beyond the complainant’s and the defendant’s testimony.

       Here, none of the considerations from Watkins weigh in favor of excluding the other-acts
evidence. The other acts were similar to the sexual abuse alleged by complainant: at least one
event occurred in the same household, in the same place, and in the same manner. The other acts
against AM occurred within the same timeframe as the acts alleged by the complainant. The
other acts against AM occurred with relative frequency, and there were no intervening acts

                                                 -2-
between the acts against AM and the acts at issue in the case. The other acts described by AM
were highly reliable because defendant admitted to them. And lastly, AM’s testimony about the
other acts was needed; defendant’s theory was that the complainant manufactured the
allegations, which defendant supported by pointing to a forensic interview in which the
complainant told the interviewer that defendant did not act inappropriately to her. Thus, none of
the factors discussed in Watkins suggest that AM’s testimony was unfairly prejudicial under
MRE 403. Moreover, there is nothing to suggest that admitting the other-acts evidence injected
issues broader than the defendant’s guilt or innocence. See McGhee, 268 Mich App at 614. Nor
is there anything to suggest that the other-acts evidence would confuse the issues, mislead the
jury, create undue delay, or waste time. See MRE 403.

         In sum, the other-acts evidence was strongly probative because it demonstrated the
likelihood that the complainant was being truthful in reporting defendant’s sexual abuse while
“bolster[ing] the complainant’s credibility,” Watkins, 491 Mich at 492 n 93, and it tended to
suggest that defendant had a propensity for sexually abusing minors in his care. This evidence,
like all relevant evidence, was prejudicial. But this prejudice did not substantially outweigh the
evidence’s high probative value, so the trial court did not abuse its discretion by admitting the
evidence.

                                    II. RIGHT TO COUNSEL

       Defendant next argues that he was denied his right to counsel when the trial court initially
refused to appoint him successor counsel after he complained about his relationship with his
counsel. We review for an abuse of discretion a trial court’s decision whether to substitute
counsel. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011).

         At a pretrial hearing, defendant requested substitute counsel because he had “a conflict of
interest with [his] attorney.” Defendant also relayed that his family had begun looking for
attorneys to sue his counsel for “misrepresentation and legal malpractice.” Defense counsel
replied that she did not object to substitution but had “no idea” what defendant was talking
about. The trial court denied defendant’s request. At the next hearing, defense counsel informed
the court that defendant still wanted substitute counsel. Defense counsel explained that
defendant believed that she had done nothing for him, despite that she had visited him multiple
times and provided discovery materials that she had discussed with him. Defendant then
reiterated to the trial court that he wanted different counsel appointed because he allegedly had
only spoken to his counsel twice and had requested that she contact a possible witness, which she
did not do. Before appointing substitute counsel, the trial court ensured that defendant
understood that any delay would be attributed to him. After defendant stated that he understood,
the trial court appointed successor counsel.

       A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20.2 A defendant is denied this right to


2
  Defendant appears to contend that he was denied his right to counsel from the time that he
requested new counsel in February 2017 until new counsel was appointed in April 2017.


                                                -3-
counsel when the trial court erroneously denies the defendant the counsel of his choice. United
States v Gonzalez-Lopez, 548 US 140, 146; 126 S Ct 2557; 165 L Ed 2d 409 (2006). But when
the defendant is indigent and receiving counsel at public expense, the defendant is not entitled to
choose his attorney. People v Ackerman, 257 Mich App 434, 456; 669 NW2d 818 (2003).

         The appointment of a substitute counsel for an indigent defendant “is warranted only
upon a showing of good cause and where substitution will not unreasonably disrupt the judicial
process.” Strickland, 293 Mich App at 397. “Good cause exists where a legitimate difference of
opinion develops between a defendant and his appointed counsel with regard to a fundamental
trial tactic.” People v McFall, 309 Mich App 377, 382-383; 873 NW2d 112 (2015). “When a
defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or is
disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute,
take testimony and state its findings and conclusion on the record.” Strickland, 293 Mich App at
397.

        When defendant first brought his concerns about his assigned counsel to the trial court’s
attention, the trial court should have heard defendant’s claim. See id. We therefore agree with
defendant that, in this respect, the trial court erred. But “[a] judge’s failure to explore a
defendant’s claim that his assigned lawyer should be replaced does not necessarily require that a
conviction following such error be set aside.” People v Ginther, 390 Mich 436, 442; 212 NW2d
922 (1973). When the issue was brought to the trial court’s attention a second time, the trial
court heard defendant’s concerns and ultimately granted defendant’s request for substitute
counsel. Thus, the ruling that defendant is challenging was ultimately granted in his favor,3 and
we detect no error warranting reversal.

                                 III. PROSECUTORIAL ERROR

        Defendant next argues that the prosecutor committed misconduct by not providing notice
that a witness would testify with a service dog and by asking defendant to comment on the
credibility of AM. Defendant failed to preserve these claims of prosecutorial misconduct by
contemporaneously objecting and requesting a curative instruction. See People v Solloway, 316
Mich App 174, 201; 891 NW2d 255 (2016). “Unpreserved claims of prosecutorial misconduct
are reviewed for plain error affecting substantial rights.” People v Norfleet, 317 Mich App 649,
660 n 5; 897 NW2d 195 (2016). To warrant relief under this standard, defendant must show
that: (1) an error occurred; (2) the error was plain, i.e., clear and obvious; and (3) the plain error



However, at no point during that time was defendant without representation, so we conclude that
defendant was not denied his right to counsel.
3
  Defendant complains that the trial court’s delay in granting his request for substitute counsel
delayed his trial date from April 2017 until November 2017, and he makes reference to the
180-day rule. See MCL 780.131. Defendant does not allege that the 180-day rule was violated,
nor does he explain how this delay constituted reversible error. We therefore consider the
argument abandoned. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001).


                                                 -4-
affected defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999).

        The prosecutor has a duty to ensure that the defendant receives a fair trial. People v
Farrar, 36 Mich App 294, 299; 193 NW2d 363 (1971). The responsibility of a prosecutor is “to
seek justice and not merely convict.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546
(2007). “[T]he test of prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” Id. A fair trial for a defendant “can be jeopardized when the prosecutor
interjects issues broader than the defendant’s guilt or innocence.” Id. at 63-64.

         Defendant alleges that the prosecutor committed misconduct when she failed to inform
the trial court and defendant that defendant’s wife intended to testify with a service animal. As
defendant’s wife began to testify, the trial court dismissed the jury so it could make a record
about the dog that appeared with the witness. The prosecutor explained to the court that, on the
morning of the trial, she became aware that the witness intended to have the dog accompany her
during her testimony. The witness claimed that the dog had a service animal identification card
issued by a federal organization, and explained that she was disabled and that the American’s
with Disabilities Act (ADA), 42 USC 12101, et seq., permitted the service dog to enter facilities
as an accommodation for her disability. The witness told the trial court that she had been
diagnosed with diabetes, thyroid issues, and panic attacks, that her physician had verbally
authorized a service animal for her to take everywhere she goes, and that she would have panic
attacks without the dog present. The trial court stated that it had accommodated people with
disabilities in the past, but, without notice, it could not take the time to determine whether a
legitimate agency issued the certification card, and it did not know whether diabetes or panic
disorder were disabilities. The trial court wanted to ensure that the jury did not reach any wrong
conclusions as a result of the service animal, so it instructed the prosecutor to elicit testimony
from the witness in front of the jury that the dog was a service animal for her disabilities and that
she took it everywhere.

        In support of his argument that the prosecution engaged in misconduct, defendant relies
on People v Shorter, 324 Mich App 529, 542; 922 NW2d 628 (2018), where this Court held “that
a fully abled adult witness may not be accompanied by a support animal or support person while
testifying.” But the Shorter Court explicitly declined to address whether the prosecutor
committed misconduct by failing to give notice of the support animal. See id. at 537 n 3.
Defendant does not explain how Shorter is relevant to whether the prosecutor committed
misconduct, and instead focuses entirely on whether it was error to allow defendant’s wife to
testify with a service animal.

        Nonetheless, we conclude that the prosecution did not commit misconduct by failing to
inform defendant before trial of the witness’s use of the service animal. We first note that the
holding of Shorter is not applicable here because at issue is the use of a service animal, not a
support animal. The witness testified, and the jury was informed, that the witness had a
disability requiring the use of a service dog—the witness was not using the dog for emotional
support. Compare id. at 536. The dog presented with identification showing that it was an
animal in the service of the accompanying person’s disability. Additionally, the witness using
the service animal was not the complaining witness, and the case did not turn on her credibility.
Compare id. at 541-542 (explaining that the witness with the support animal was the

                                                -5-
complaining witness, and that the case “turned almost exclusively on” her credibility). The
witness provided contextual testimony that did not obviously favor either party. Moreover,
despite the lack of notice, the trial court was able to inquire about the use of the service dog
before deciding whether it was appropriate for the witness to testify with the animal. After
making its inquiry, the trial court allowed the witness to explain to the jury that she required a
service animal for her disability, and that it was not for emotional support. In light of this
explanation, the jury was not likely to view the witness’s testimony any more favorably because
she was accompanied by a service animal. And because the witness’s medical issues were not
related to any issues involved in the case, the presence of the dog would not deprive the jury of
determining her credibility. In sum, the prosecutor did not deprive defendant of a fair trial by
failing to inform defendant before trial of the witness’s use of the service animal, so the
prosecutor did not commit misconduct.4

        Defendant asserts, alternatively, that defense counsel was ineffective for not objecting to
the prosecutor’s alleged misconduct.5 Because we conclude that the prosecutor did not commit
misconduct, defense counsel was not ineffective for not objecting. See People v Agar, 314 Mich
App 636, 656-657; 887 NW2d 662 (2016) (explaining that trial counsel is not required to make
frivolous or meritless objections).

        Defendant next argues that the prosecutor committed misconduct by asking defendant
about the credibility of other witnesses. At issue is the prosecutor’s questioning of defendant
during cross-examination. She first asked defendant whether he heard AM’s testimony
describing defendant’s sexual abuse of her. After defendant affirmed, the prosecutor asked,
“[A]nd you agree that’s the truth and that happened?” Defendant responded affirmatively. The
prosecutor summarized her questions to defendant about AM by asking, “So today as you’re
testifying, you’re saying that [AM] stood before this jury and [AM] told the truth about
everything that happened to her body by you, right?” After defendant confirmed, the prosecutor
asked, “And you’re saying that [the complainant] sat before these 14 people and lied?”
Defendant again responded affirmatively.



4
  Briefly addressing defendant’s argument that it was error for the witness to testify with a
service animal, we first note that Shorter is not controlling because, again, at issue here is a
service animal, not a support animal. Still, assuming that it was error for the witness to testify
with a service animal, the error was harmless. When determining whether an error was harmless,
the focus is on the nature of the error “in light of the weight and strength of the untainted
evidence.” People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). Defendant was
convicted of CSC I and II, the factual basis for which was the complainant’s testimony. The
complainant’s credibility was bolstered by AM’s testimony, and neither AM’s testimony nor the
complainant’s testimony was bolstered by defendant’s wife’s testimony.                Thus, the
complainant’s testimony and AM’s testimony were “untainted,” and that evidence amply
supported defendant’s convictions.
5
 Defendant does not argue that defense counsel was ineffective for not objecting to the witness’s
use of a service animal.


                                                -6-
       Questions that ask a witness to comment or provide an opinion on the credibility of a
witness are improper because “matters of credibility are to be determined by the trier of fact.”
People v Buckey, 424 Mich 1, 16-17; 378 NW2d 432 (1985) (citations and internal quotation
marks omitted); see also People v Malone, 180 Mich App 347, 361; 447 NW2d 157 (1989)
(“The prosecutor’s question was inappropriate because it improperly bolstered the credibility of a
prosecution witness.”). Because credibility matters are to be determined by the jury, it is
generally improper for a witness to provide an opinion on the credibility of another witness.
People v Douglas, 496 Mich 557, 583; 852 NW2d 587 (2014); Dobek, 274 Mich App at 71.

       The prosecutor’s questions during her cross-examination of defendant were improper.
However, they did not deny defendant a fair trial. The jury had already been informed that
defendant had pleaded no contest to criminal sexual assaults of AM, and he affirmed on direct
examination that the conduct that she described in her testimony resulted in his arrest and no
contest plea. Thus, the jury was already aware that defendant did not dispute AM’s testimony,
and his testimony on cross-examination did not bolster her credibility because the substance had
been admitted earlier. Additionally, on direct examination, defendant had denied any sexual
contact with the complainant, and he pleaded not guilty to the charges for which he was being
tried based on her testimony. Thus, defendant’s testimony on cross-examination that the
complainant’s allegations were untrue was not new information. Thus, while the prosecutor’s
questions were improper, we conclude that they do not rise to the level of prosecutorial
misconduct because they did not deny defendant a fair and impartial trial.

        Defendant again argues that his trial counsel was ineffective for failing to object to the
prosecutor’s improper questions. But, again, because we conclude that the prosecutor’s
questioning did not rise to the level of prosecutorial misconduct, defense counsel was not
ineffective for not objecting. See Agar, 314 Mich App at 656-657.

         Moreover, given that defendant had already testified that he did not dispute AM’s
allegations and given that he obviously did dispute the complainant’s allegations, it may have
been trial strategy to not object to general questions about the credibility of those witnesses. See
People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012) (explaining that trial counsel has
wide discretion regarding trial strategy “because counsel may be required to take calculated risks
to win a case”). There is a strong presumption that trial counsel’s performance was strategic,
People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008), and defendant bears the burden
of overcoming this presumption, People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).
It appears that part of defendant’s trial strategy was to demonstrate that he was consistently
truthful about activities with AM, so the jury should infer that he would be truthful about his
activities with the complainant. A court cannot substitute its judgment for that of trial counsel
concerning matters of trial strategy. People v Payne, 285 Mich App 181, 190; 774 NW2d 714
(2009).

       But even if it was objectively unreasonable for defense counsel to not object to the
prosecutor’s improper questioning, the jury knew that defendant disputed the complainant’s
testimony but not AM’s allegations, so his response to the prosecutor’s improper questions was
not outcome-determinative. See People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136
(2012) (explaining that to prevail on an ineffective assistance claim, a defendant must show that


                                                -7-
but for counsel’s performance, “there is a reasonable probability that the outcome would have
been different”). Thus, defendant has failed to establish this claim of ineffective assistance.

                                       IV. SENTENCING

       For defendant’s final issue on appeal, he argues that his departure sentence was
unreasonable. “A sentence that departs from the applicable guidelines range will be reviewed by
an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017).

     As explained by this Court in People v Dixon-Bey, 321 Mich App 490, 520-521; 909
NW2d 458 (2017):

       In Steanhouse, the Michigan Supreme Court clarified that “the relevant question
       for appellate courts reviewing a sentence for reasonableness” is “whether the trial
       court abused its discretion by violating the principle of proportionality . . . .”
       [Steanhouse, 500 Mich at 471]. The principle of proportionality is one in which

                “a judge helps to fulfill the overall legislative scheme of criminal
               punishment by taking care to assure that the sentences imposed
               across the discretionary range are proportionate to the seriousness
               of the matters that come before the court for sentencing. In
               making this assessment, the judge, of course, must take into
               account the nature of the offense and the background of the
               offender.” [Id. at 472, quoting People v Milbourn, 435 Mich 630,
               651; 461 NW2d 1 (1990).]

       Under this principle, “ ‘the key test is whether the sentence is proportionate to the
       seriousness of the matter, not whether it departs from or adheres to the guidelines’
       recommended range.’ ” Steanhouse 500 Mich at 472, quoting Milbourn, 435
       Mich at 661.

       The trial court sentenced defendant to a minimum term of 30 years in prison. Defendant
was subject to a 25-year mandatory minimum sentence because he was convicted of CSC I
against a victim “less than 13 years of age” while he was over 17 years of age, MCL
750.520b(2)(b). Thus, his 30-year sentence was a five-year departure.

        This Court has explained that factors that may warrant a departure sentence under the
principle of proportionality include the seriousness of the offense; the defendant’s expressions of
remorse; and the defendant’s potential for rehabilitation. See People v Steanhouse, 322 Mich
App 233, 238-239; 911 NW2d 253 (2017) (Steanhouse II).

       Defendant argues that the trial court did not adequately articulate the reasons for its
departure. However, the court’s reasoning reflects the factors for departure discussed in
Steanhouse II. The court reasoned that departure was warranted because of the seriousness of

                                                -8-
defendant’s offense, describing it as “the most striking” criminal-sexual-conduct case the court
had ever presided over. The trial court also emphasized defendant’s lack of remorse and his lack
of potential for rehabilitation; the court pointed out that, after undergoing sex-offender therapy,
defendant characterized his touching of the complainant as accidental and essentially called her a
liar. Given this, the court discredited defendant’s claim that he had benefited from “sexual
classes and treatment.” The trial court concluded, “In this case I’m satisfied that the appropriate
purpose of this sentence is to protect the public from you. To also punish you for the conduct
that you committed.” Based on the trial court’s reasoning, it clearly took into account the nature
of the offense and the background of the offender. Thus, the court’s sentence was reasonable,
and it did not abuse its discretion by violating the principle of proportionality.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Colleen A. O’Brien
                                                            /s/ Anica Letica




                                                -9-
