                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 30, 2015
                Plaintiff-Appellee,

v                                                                    No. 321233
                                                                     Gratiot Circuit Court
BERNARD JOHN CRAIGE,                                                 LC No. 13-006802-FC

                Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and STEPHENS, JJ.

PER CURIAM.

        Defendant was convicted by a jury of first-degree criminal sexual conduct (“CSC I”),
MCL 750.520b (sexual penetration with one of multiple variables), and two counts of CSC III,
MCL 750.520d(1)(d) (other person related by blood or affinity to the third degree and sexual
penetration occurs). The trial court sentenced him to 15 to 50 years’ imprisonment for the CSC I
conviction and 7 to 15 years’ imprisonment for both CSC III convictions. He appeals as of right.
For the reasons stated below, we remand for a Ginther1 hearing.

                                       I. BACKGROUND

        JS, defendant’s daughter, testified that defendant had sexually abused her from about the
time she was 12 years old until she was 17 years old. She testified that the last instance occurred
in a barn on an abandoned farm, where defendant had taken her on his motorcycle. JS testified
that afterward she told her stepmother, Nancy Craige, about the abuse, and that her stepmother
said that she “knew there was something wrong.” According to JS, Nancy told her to get
evidence that defendant was abusing her.

        JS downloaded a recorder on her phone and recorded two conversations that she had with
defendant. Although the conversations do not explicitly refer to sexual relations, JS testified that
they were indeed discussing sexual relations, and that defendant was gesturing to his “private
parts” during the conversations. In one conversation, JS told defendant, “[I]t can’t be like last
time,” to which defendant replied, “Your ass dragged the ground, man.”


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -1-
       JS reported the abuse to the police. She led officers to the barn where she alleged that
defendant had assaulted her. Police searched for fingerprints and DNA evidence in specific
areas that JS had told them that she or defendant had touched while they were in the barn.
Although the police recovered DNA and a fingerprint, they were determined to be unsuitable for
comparison.

         A police officer contacted defendant, who denied sexually abusing JS. The officer
testified that defendant, without prompting, said that he knew that JS had recorded their
conversations, and defendant tried to explain the “ass dragging” comment. According to the
officer, defendant said that he was referring to the fact that the foot pegs on his motorcycle had
been broken, and that JS was “dragging her ass by riding without foot pegs . . . .” Defendant
allegedly told the officer that he and JS had visited the farm to see if the house could be a “fix-
up” for JS and her boyfriend.

       JS also told police that defendant had a scar on his penis and that he was circumcised.
Defendant was ordered by the court to have his penis photographed by police in an erect state.
Although defendant was unable to achieve an erection, his flaccid penis was photographed, and
the photograph showed that he was circumcised and that he had a scar.

        At trial, defendant denied sexually abusing JS, and claimed that she fabricated the
allegations after he would not let her live with her boyfriend. He reiterated his claim that they
had visited the abandoned farm because he thought it could be a property for JS and her
boyfriend to buy. He further explained that he was a licensed contractor and could have helped
repair the property. Defendant denied telling police that he knew that JS had recorded him,
explaining as follows:

               I think [the officer] mentioned to me something about was I calling her
       names and saying something. I said—said something about her, she’s so short her
       butt is dragging the ground. She was going to jump up on the motorcycle foot
       boards . . . and they’re very dangerous, they’re on a swivel-type deal, and so if she
       was to jump on it improperly, she would go right down and bite the dirt . . . .

Defendant also testified that a dog bit his penis when he was 12 years old. Finally, defendant
presented four character witnesses, two siblings of JS and two of his former girlfriends, who
opined that JS is untruthful.

                          II. DNA AND FINGERPRINT EVIDENCE

        Defendant presents multiple arguments as to why the DNA and fingerprint evidence
should not have been admitted at trial. Because defendant failed to object to the evidence at trial,
this issue is unpreserved. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007).2 Unpreserved issues are reviewed for plain error affecting defendant’s


2
  Plaintiff asserts that defendant waived this issue because he relied on the evidence at trial.
Plaintiff calls attention to defendant’s opening statement, where he said that the forensic

                                                -2-
substantial rights. People v Vaughn, 491 Mich 642, 654; 821 NW2d 288 (2012). To avoid
forfeiture of an unpreserved issue, defendant must show plain, outcome-determinative error.
People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130 (1999).

       Defendant first contends that the evidence was not relevant because, given its
inconclusiveness, it “proved nothing” other than “that a human being, at some time in the past,
was present at the farmhouse.” MRE 401 provides: “ ‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 402 provides, in turn, that “[e]vidence which is not relevant is not admissible.”

        We agree with defendant that the admission of the forensic evidence was irrelevant.
However, reversal is not warranted where the admission of irrelevant evidence was not outcome
determinative. People v Grant, 445 Mich 535, 553-554; 520 NW2d 123 (1994). Undoubtedly,
the prosecution’s purpose in admitting the DNA and fingerprint evidence was to establish that
defendant was in the barn with JS and that a sexual act occurred. Defendant’s presence in the
barn was not a contested issue. Defendant admitted that he was in the barn with JS. The issue in
dispute was whether a sexual act occurred while defendant and JS were in the barn. The DNA
evidence was of no consequence to this issue because the results were inconclusive and could not
be matched to defendant. The jury rendered its verdict based primarily on its assessment of
credibility of JS and defendant. Neither party benefitted from, nor was substantially
disadvantaged by, the admission of irrelevant evidence in this case. We therefore conclude that
the evidence was not decisive to the outcome of the trial and its admission did not amount to
plain error.

       Defendant also argues that the evidence was cumulative because he admitted that he had
been at the barn with JS. Defendant cites no caselaw or rule of evidence on this point. The mere
statement of a position without citation to relevant supporting authority constitutes failure to
argue the merits of the allegation. People v Harlan, 258 Mich App 137, 140; 669 NW2d 872
(2003) citing People v jones (On Rehearing), 201 Mich App 449, 456-457; 506 NW2d 542
(1993). Therefore, the issue is not properly presented for review.

        Defendant also asserts that the evidence was inadmissible because its probative value was
substantially outweighed by the danger of unfair prejudice under MRE 403. Defendant calls
particular attention to this Court’s decision in People v Coy, 243 Mich App 283; 620 NW2d 888
(2000). In that case, the victim was found stabbed to death, and police found blood on a knife
and a doorknob. Coy, 243 Mich App at 285. At trial, a serologist opined that the blood was
actually a mixture of blood from more than one person. Id. at 292. The serologist “denied that

investigation conducted by police revealed “[n]o fingerprints, no DNA results, nothing. Nothing
to go along with what occurred supposedly at this site.” However, we read these remarks as a
preemptive attack on the significance of the forensic evidence, not affirmative approval of it.
Defendant was not arguing that the forensic evidence proved his theory of the case; rather, he
was arguing that the forensic evidence did not prove the prosecutor’s theory of the case.
Furthermore, the evidence was introduced by the prosecutor, not defendant. Therefore, this issue
was not waived by defendant’s opening statement.


                                               -3-
any of the test results enabled her to testify positively that the blood on the broken knife blade
and the door knob belonged to either defendant or the victim.” Id. at 292-293. However, she
also testified that neither could the victim or the defendant be excluded as contributors to the
mixture of blood. Id. at 293. The serologist did not provide a statistical analysis regarding the
likelihood that any DNA could have come from another person. Id. at 293-294. This Court held
that the evidence was inadmissible under MRE 702 because, without the statistical analysis, the
serologist’s “testimony concerning the potential match between defendant’s DNA and the DNA
contained in the mixed blood samples found on the knife blade and the doorknob was
insufficient to assist the jury in determining whether defendant contributed DNA to the mixed
sample.” Id. at 301. The Court also held that the evidence was inadmissible under MRE 403.
Id. at 302. It reasoned that the evidence had minimal probative value without a statistical
analysis and that the jurors may have given undue weight to the serologist’s testimony regarding
a potential DNA match. Id.

        Relying on Coy, defendant argues that the DNA and fingerprint evidence was unfairly
prejudicial because, unlike Coy, in this case there was not even testimony that there was a
potential match. However, Coy is inapposite. In that case, a serologist opined that it was
possible that the DNA found in the mixed blood belonged to defendant. In the present case,
forensic evidence was insufficient to even compare to any known samples, and there was no
expert testimony regarding a match or possible match. Rather, the mere fact that DNA and a
fingerprint were found in the specific locations that JS claimed that she and defendant had
touched served to corroborate her account.

        Defendant also argues that the forensic evidence had no probative value since it only
proved that humans had been in the barn at some point. Defendant does not provide a cogent
argument for why the evidence was unfairly prejudicial. For evidence to be unfairly prejudicial
under MRE 403, it must “adversely affect the objecting party’s position by injecting
considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or
shock.” People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995) (quotation marks and
citation omitted). Here, there is no suggestion that the evidence injected such extraneous
considerations.

                      III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next raises three assertions of ineffective assistance of counsel. Defendant’s
first and second assertions were properly raised in a motion to remand, although this Court
denied that motion without prejudice. Defendant’s third assertion is raised for the first time in
his brief, and is therefore unpreserved. Even though defendant’s first two claims were properly
raised, because no Ginther hearing was held, this Court’s review is limited to errors apparent on
the record. People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003). Because the third claim
is unpreserved, it is also reviewed for errors that are apparent on the record. People v Armisted,
295 Mich App 32, 46; 811 NW2d 47 (2011). “Whether a person has been denied effective
assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). Findings of fact are reviewed for clear error, while
determinations of constitutional law are reviewed de novo. Id.



                                               -4-
        The Sixth Amendment to the United States Constitution and Article I, § 20 of the
Michigan Constitution guarantee the right to effective assistance of counsel for criminal
defendants. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984);
People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). To establish that his counsel did
not render effective assistance and therefore that he is entitled to a new trial, “defendant must
show that (1) counsel’s performance fell below an objective standard of reasonableness and (2)
but for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (internal quotation
marks and citation omitted).

        Defendant first argues that his trial counsel was ineffective for failing to move to exclude
the forensic evidence recovered at the barn. We disagree. “A defense attorney must enjoy great
discretion in the trying of a case-especially with regard to trial strategy and tactics.” Pickens,
446 Mich at 330. A defendant must overcome the strong presumption that defense counsel
employed sound trial strategy. Vaughn, 491 Mich at 670. Here, defendant cannot overcome the
presumption that it was sound trial strategy for defense counsel to rely on the inconclusiveness of
the DNA and fingerprint test results to argue that the lack of physical evidence corroborated
defendant’s version of events in the barn and supported that a sexual assault did not take place.

        Defendant next argues that his trial counsel failed to adequately prepare for trial and
defend him. Defendant first calls attention to the character witnesses, three of whom provided
affidavits that were attached to defendant’s motion to this Court to remand stating that they could
have provided information or testimony regarding specific instances of JS’s untruthfulness.
Although such evidence would not have been admissible to prove JS’s character for
untruthfulness, it could have been used to cross-examine JS. MRE 608. Nonetheless, defendant
has failed to identify any specific instances of JS’s untruthfulness. The affidavits only vaguely
refer to such instances. It is consequently impossible for us to determine whether such material
for cross-examination would have been permissible and useful to defendant’s defense.
“[D]efendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). In addition, MCR
7.211(C)(1) requires that motions to remand be “supported by affidavit or offer of proof
regarding the facts to be established at a hearing.” (Emphasis added). The averments in the
affidavits about specific instances do not satisfy the court rule because they do not set forth the
facts to be established.

        Defendant next calls attention to several letters that were attached to the presentence
investigation report in support of defendant. The letters are from various friends and family
members, and they generally state that JS is a liar and that she had threatened to get defendant in
trouble, as she “knows how to get men in trouble.”3 Defendant argues that his trial counsel



3
 JS had previously accused her stepfather of molesting her. She testified at his trial and he was
convicted.


                                                -5-
should have called these writers as witnesses. Although it appears from the letters that these
witnesses indeed could have provided helpful testimony for defendant, it is not apparent to us
that counsel rendered ineffective assistance. Simply put, there may have been good reasons for
not calling these writers as witnesses. Defendant has not overcome the presumption that his trial
counsel was effective.

        Defendant additionally attached an affidavit from his nephew to his brief on appeal. His
nephew avers that trial counsel first subpoenaed him to be a witness, but later notified him
without explanation that he would not be called. He states that he would have testified that he
“was present when [JS] told her father that she ‘knew how to get men in trouble.’ ” However,
we will not consider affidavits that are attached to a brief, as they are not a part of the lower
court record. Seals, 285 Mich App at 20-21.

         Nevertheless, we find that the affidavit from Nancy that defendant attached to his motion
to remand warrants a Ginther hearing. Nancy denied that she said that she “knew all along” that
defendant was abusing her when JS first alleged the abuse to her. Instead, she states, she
responded, “ ‘are you sure?’ ” Nancy also averred, “ . . . I would have testified that I heard the
victim threaten the Defendant that she was ‘going to get him for this’ when he told her she could
not live with her boyfriend.” Nancy further stated, “I would have testified that I heard the
victim, prior to her disclosing Defendant’s abuse, state that she was afraid her step-father would
get out of prison and hurt her because she did not tell the truth regarding the allegations that he
sexually abused her.” In addition, like the other affiants, Nancy stated that she could have
testified to specific instances of JS’s untruthfulness. According to Nancy, defendant’s counsel
“advised [her] to not testify because of some instances of domestic violence in [her] early years
of being married to the Defendant/Appellant.” She also averred that counsel “told [her] to not
answer the door when an officer appeared to serve [her] with a subpoena.”

        In addition, Nancy wrote a letter that was attached to the presentence investigation report.
In it, she stated that defendant often told people the story of how he was bit by a dog on his
penis. Other letters echoed this assertion.

        It appears that Nancy’s proposed testimony would have been very helpful to defendant.
First, Nancy denies saying that she “knew all along” that defendant was abusing JS, but rather
was doubtful of JS’s accusations. This testimony would have contradicted JS’s testimony and it
would have communicated to the jury that JS’s stepmother, someone who had helped raise JS
and who knew her well, was distrustful of her.

        Nancy also averred that she “heard [JS] threaten the Defendant that she was ‘going to get
him for this’ when he told her she could not live with her boyfriend.” Although at first blush this
statement would seem to be hearsay, it appears that it would have been admissible as a statement
of JS’s then-existing state of mind under MRE 803(3).4 This testimony would have corroborated


4
    That subrule provides as follows:
                 A statement of the declarant’s then existing state of mind, emotion,
         sensation, or physical condition (such as intent, plan, motive, design, mental

                                                -6-
defendant’s contention that JS fabricated the allegations against him out of anger after he would
not let her live with her boyfriend. Although defendant testified to the same effect, corroboration
undoubtedly would have been helpful.

        Finally, Nancy averred that JS admitted that she lied regarding being sexually abused by
her stepfather. Again, although JS’s statement would seemingly be hearsay, it may have been
admissible under MRE 803(3). If admissible to prove the truth of the matter asserted, JS’s
statement would have shown that she had falsely accused a family member of sexual abuse in the
past. At the very least, it is a prior inconsistent statement that would have been admissible to
impeach JS’s credibility. People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997) (“The
general rule is that evidence of a prior inconsistent statement of the witness may be admitted to
impeach a witness . . . .”).

        That being said, it is unclear why trial counsel did not call Nancy as a witness. In her
affidavit, she makes vague allusions to “instances of domestic violence.” It is unclear what these
instances entailed.5 Nonetheless, MCL 768.27b provides that evidence of domestic violence
may be admissible against a defendant in certain circumstances:

               (1) Except as provided in subsection (4), in a criminal action in which the
       defendant is accused of an offense involving domestic violence, evidence of the
       defendant’s commission of other acts of domestic violence is admissible for any
       purpose for which it is relevant, if it is not otherwise excluded under Michigan
       rule of evidence 403.

                (2) If the prosecuting attorney intends to offer evidence under this section,
       the prosecuting attorney shall disclose the evidence, including the statements of
       witnesses or a summary of the substance of any testimony that is expected to be
       offered, to the defendant not less than 15 days before the scheduled date of trial or
       at a later time as allowed by the court for good cause shown.

                                               ***

              (4) Evidence of an act occurring more than 10 years before the charged
       offense is inadmissible under this section, unless the court determines that
       admitting this evidence is in the interest of justice.

The statute defines “domestic violence” to include “[c]ausing or attempting to cause a family or
household member to engage in involuntary sexual activity by force, threat of force, or duress.”
MCL 768.27b(5)(a)(iii). Thus, since this case involved accusations of “domestic violence,”
evidence of previous acts of domestic violence may have been admissible against defendant.
       feeling, pain, and bodily health), but not including a statement of memory or
       belief to prove the fact remembered or believed unless it relates to the execution,
       revocation, identification, or terms of declarant’s will.
5
 Defendant’s criminal history as contained in the presentence investigation report does not show
any convictions or allegations of domestic violence.


                                                -7-
Even so, there are reasons to believe that the statute would not have applied in this case. First,
the record does not contain notice from the prosecutor as required by MCL 768.27b(2). Second,
Nancy averred that the “instances” occurred at the beginning of her marriage to defendant, which
appears to have been more than 10 years before the charged offense,6 and thus could have been
precluded under MCL 768.27b(4). Therefore, it seems that trial counsel’s purported reason for
not calling Nancy was misconceived and not reasonable strategy.

        We believe that if Nancy’s proposed testimony was credited by the jury, there is a
reasonable probability that the outcome of the trial would have been different. Therefore, we
find that remand for a Ginther hearing is necessary.

        Finally, defendant argues that his counsel rendered ineffective assistance by failing to
ensure that a drawing by JS was admitted as an exhibit at trial. JS drew a picture of defendant’s
penis at the prosecutor’s request. The drawing was shown to the jury and the prosecutor referred
to it as a proposed exhibit. However, the drawing was not admitted. During the jury’s
deliberations, it sent out a note requesting to see the drawing if it had been admitted. The trial
court declined since it was not offered or admitted.

        Defendant has not overcome the presumption that his trial counsel had a strategic reason
for not moving to admit JS’s drawing as an exhibit. The drawing is not in the record and it is
therefore uncertain whether it was favorable to defendant’s case. That is, it is unclear whether
JS’s depiction of defendant’s penis matched the photograph of his penis that was taken and
admitted as an exhibit at trial. Given that this Court’s review is limited to facts apparent on the
record, there simply is nothing in the record to either support or contradict defendant’s claim.

         Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

                                                            /s/ Jane E. Markey
                                                            /s/ William B. Murphy
                                                            /s/ Cynthia Diane Stephens




6
    Defendant and Nancy were married for more than 30 years.


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