                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 24, 2018
              Plaintiff-Appellee,

v                                                                  No. 336769
                                                                   Saginaw Circuit Court
ISAAC LAWRENCE BOWLING,                                            LC No. 16-042448-FJ

              Defendant-Appellant.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

       Defendant was convicted following a jury trial of conspiracy to commit home invasion,
MCL 750.110(a)(2), conspiracy to commit breaking and entering, MCL 750.110, and breaking
and entering, MCL 750.110. He was sentenced to concurrent prison terms of 12 to 20 years on
the conspiracy to commit home invasion conviction and 6 to 10 years on the conspiracy to
commit breaking and entering and the breaking and entering convictions. We affirm.

        The victim testified that he lived at a home in Chesaning, Michigan. While in bed at
around 6:00 a.m. on November 6, 2015, the victim heard two loud “crash” sounds. After getting
dressed, he came upon “a man with a gun in his hand.”1 The invader asked the victim for his
money, and the victim turned over all the cash in his wallet. After taking the money, the invader
looked for a box of money that he thought was hidden in the victim’s freezer and then left the
house. Afterward, it was discovered that an accordion also was stolen from a vehicle parked in
the garage.

       Jorden Kulhanek accepted a plea agreement,2 in which he agreed to testify against
defendant. Kulhanek explained that the night before the home invasion, he and defendant
discussed what they could do for money, and they decided to break into cars. Kulhanek testified


1
  The victim stated that he was unable to see the perpetrator’s face, mainly because the
perpetrator also had a small flashlight and “always” shined it at the victim’s face.
2
  Kulhanek had pleaded guilty to first degree home invasion, three counts of felony-firearm,
conspiracy to break and enter a building, and breaking and entering.


                                               -1-
that during their car-breaking spree, which spanned many cities, defendant mentioned that he
wanted to go to a house in Chesaning. Kulhanek said that after they arrived at the house, they
talked about breaking into a car. Kulhanek testified that defendant broke into the victim’s
vehicle, and after they drove a bit away, defendant expressed his intention to return and break
into the house. Kulhanek stated that he drove defendant back to the Chesaning house and
dropped him off. While defendant broke into the house, Kulhanek drove around and “work[ed]
[his] way back.” Kulhanek shortly thereafter received a text message from defendant that stated,
“Come back!!” Kulhanek quickly drove back to the house and picked defendant up, at which
point defendant stated that he had robbed “the man in the house.”

       There was a series of text messages between defendant and Kulhanek, and it was
confirmed that the “Come Back!!” message was sent from defendant’s phone to Kulhanek’s
phone on November 6, 2015, at 6:02 a.m. Additionally, a cell records analysis, which involved
mapping and plotting cell phone locations, placed defendant’s and Kulhanek’s phones in close
proximity to the crime scene at the time of the text messages.

       Defendant presented the testimony of Thomas Wheaton, who explained that Kulhanek
had admitted to him that Kulhanek was the one who executed the home robbery because
defendant did not want to go inside the house. Wheaton also said that Kulhanek told him that
Kulhanek tied up the victim during the robbery. The court allowed the testimony solely for
impeachment purposes against Kulhanek.

        Defendant also presented several witnesses who testified as to his alibi that he was at the
home of Cliff Ostrander, his mother’s boyfriend, at the time the crimes were committed.
Defendant also testified that he was not at the crime scene on November 6, 2015. He testified
that he was sleeping at Ostrander’s house and that on that day, he had left his cell phone with his
friend, Brian Tappen (Kulhanek’s younger brother), because he anticipated being in detention on
November 6 for probation violations. Defendant also testified that the phone was not returned to
him until around February 3, 2016. Defendant further testified that when he was released from
detention in early February 2016, he attempted to contact Kulhanek, but Kulhanek would not
return his phone calls. On cross-examination, defendant stated that, after being unable to make
contact with Kulhanek, he sent text messages to Tappen’s girlfriend, Ashley Plowman. But
defendant said that he did not recall telling Plowman in those messages that he needed to talk to
Kulhanek because he was concerned that Kulhanek was “talking to the cops.” Instead, defendant
claimed that he was just generally concerned about Kulhanek’s welfare because he was not
returning defendant’s phone calls. Defendant’s testimony was contrary to Plowman’s testimony
in rebuttal set forth below.

        In rebuttal, the prosecution called several witnesses. Shane Sims was called to impeach
Wheaton’s testimony. Sims testified that he spent time in jail with Wheaton and that Wheaton
named defendant as being one of the perpetrators of the home break-in in Chesaning, contrary to
Wheaton’s testimony which only implicated Kulhanek. The prosecution also called Plowman to
the stand. Plowman testified that in February 2016, defendant texted her, “I pray to God he
[Kulhanek] ain’t talkin.” When Plowman asked what defendant meant, defendant responded, “to
the ops [sic].” Also in rebuttal, Tappen testified that (1) defendant never loaned his phone to
Tappen and (2) Tappen in any event did not use defendant’s phone to set him up for the robbery.


                                                -2-
                         I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he is entitled to a new trial because he was denied the effective
assistance of counsel when his trial attorney failed to impeach Kulhanek with Kulhanek’s
handwritten letter, which indicated that Kulhanek’s attorney had forced him to make false
admissions to accept his plea agreement. We disagree.

        We first note that defendant preserved his claim of ineffective assistance of counsel by
moving for a new trial and/or Ginther3 hearing in the trial court. People v Wilson, 242 Mich App
350, 352; 619 NW2d 413 (2000); People v Hurst, 205 Mich App 634, 641; 517 NW2d 858
(1994). However, because defendant’s motion for an evidentiary hearing was denied, our review
is for mistakes apparent on the record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212
(2008). Claims of ineffective assistance of counsel involve “a mixed question of law and fact.”
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The Court “must find the facts,
and then must decide whether those facts constitute a violation of the defendant’s constitutional
right to effective assistance of counsel.” Id. “A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008). A trial court’s finding of fact is clearly erroneous “if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich
281, 289; 806 NW2d 676 (2011).

        To establish ineffective assistance of counsel, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness,” in addition to establishing
“that the deficient performance prejudiced the defense.” Strickland v Washington, 466 US 668,
687-88; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “[D]efendant must overcome the strong
presumption that his counsel’s action constituted sound trial strategy under the circumstances.”
People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

         A fair assessment of attorney performance requires that every effort be made to
         eliminate the distorting effects of hindsight, to reconstruct the circumstances of
         counsel’s challenged conduct, and to evaluate the conduct from counsel’s
         perspective at the time. Because of the difficulties inherent in making the
         evaluation, a court must indulge a strong presumption that counsel’s conduct falls
         within the wide range of reasonable professional assistance; that is, the defendant
         must overcome the presumption that, under the circumstances, the challenged
         action “might be considered sound trial strategy.” [Strickland, 466 US at 689.]

With respect to prejudice, defendant must establish that there is “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Toma, 462 Mich at 302-303.




3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -3-
       The handwritten letter, addressed to the trial judge, states:4

               My name is Jordan Kulhanek. I’m writing you this letter to tell you my
       lawyer is misrepresenting me. He’s talked me into taking this plea. He lead [sic]
       me to believe something other than what’s happening. He had me say things I
       didn’t do to except [sic] this plea. He does not respond to any of my letters. And
       when I see him at court he doesn’t listen to anything I tell him. I need a lawyer
       who is going to represent me the right way.

         Defendant overstates the importance of this letter. First, the thrust of Kulhanek’s letter is
to request new counsel; it was not to rescind his plea or recant any particular statement. Second,
and contrary to defendant’s claims at the trial court, in the letter Kulhanek did not state that he
lied at defendant’s trial. Indeed, the letter was dated August 23, 2016, and defendant’s trial did
not start until two months later in October 2016. At most, Kulhanek asserted that he lied during
his allocution when he accepted his plea deal. And the transcript of that plea hearing shows that
defendant was asked by the court whether anyone made any threats or promises to get him to
enter his guilty plea, to which Kulhanek answered, “No.” Kulhanek also told the court that he
was pleading guilty because he was guilty and it was his choice, and his choice alone, to plead
guilty. All told, defendant testified three times under oath, and in each of those instances, he
consistently described himself as driving to the Chesaning house, with defendant going inside to
rob it. In addition to testifying at his plea hearing, Kulhanek also testified at defendant’s
preliminary examination and at defendant’s trial. Importantly, Kulhanek testified at defendant’s
trial after he wrote his letter. Thus, Kulhanek certainly was aware at the time of defendant’s trial
of any purported “tricks” or misdeeds his attorney carried out on him, but he still testified
consistently with his allocution at his plea hearing. Therefore, in light of Kulhanek’s consistent
statements under oath, which occurred both before and after he wrote his letter, we are convinced
that any attempt to impeach Kulhanek with the letter dated August 23, 2016, would not have had
the effect defendant desires. Indeed, looking past the sheer lack of details or specifics in
Kulhanek’s letter, recantation testimony traditionally is regarded as suspect and untrustworthy.
People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992). As a result, defense counsel
could have reasonably concluded that to attempt to impeach with the use of the letter would have
been pointless.




4
  We note that this letter is not contained within the lower court record for this case. It initially
was submitted to the trial court in Kulhanek’s criminal case, not defendant’s. Because “this
Court’s review is limited to the record established by the trial court, and a party may not expand
the record on appeal,” Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783
(2002), we normally would not consider the letter. However, although defense counsel admitted
that he should have submitted the letter with his motion at the trial court, the trial court
nonetheless stated that it had viewed the letter. Consequently, because the record indicates that
the trial court considered the letter, we will as well. Presumably, the trial court, which presided
over Kulhanek’s criminal proceeding, saw the letter in conjunction with that proceeding.


                                                 -4-
         Importantly, defense counsel did not decide simply to leave Kulhanek’s credibility
uncontested. Indeed, the record indicates that counsel examined and challenged Kulhanek’s
testimony at length during cross-examination. Counsel questioned Kulhanek about his motives
for accepting his plea agreement and the favorable treatment he received pursuant to it, such as a
more favorable sentence, prospective enrollment under the Holmes Youthful Trainee Act, MCL
762.11, and dismissal of additional criminal charges. Moreover, the questions posed suggest a
trial strategy of eliciting Kulhanek’s self-interested motives for testifying against defendant
during cross-examination and reserving impeachment for more specific, direct testimony from
other witnesses during rebuttal. In addition to presenting several witnesses to formulate
defendant’s alibi, defendant’s trial attorney called Wheaton to testify during rebuttal, in which he
stated that Kulhanek was the one who was involved with the break-in at the Chesaning house.

         In light of trial counsel’s strategy of impeachment and alibi recounted above, defendant
has not rebutted the strong presumption that his trial counsel’s performance constituted sound
trial strategy, and his claim thus fails. Defense counsel’s decision to focus his impeachment of
Kulhanek through these other, more effective and specific means, was completely reasonable
under the circumstances.

        Moreover, even if defendant could establish that his counsel’s performance fell below an
objective level of reasonableness, he has nonetheless failed to establish that counsel’s deficiency
“was so prejudicial to him that he was denied a fair trial,” or that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Toma, 462 Mich at 302. As the trial court opined, there is not a reasonable
likelihood that, had defense counsel used the letter to impeach Kulhanek, the outcome would
have been different. First, as already discussed, defense counsel’s failure to impeach Kulhanek
with this specific piece of evidence did not amount to a complete failure to impeach his
testimony. There is nothing to suggest that presenting the letter would have influenced the jury
to disbelieve Kulhanek if it believed his testimony against defendant in spite of Wheaton’s
testimony.

        Additionally, the other evidence offered against defendant corroborated or otherwise
supported Kulhanek’s testimony. The cell phone records corroborated Kulhanek’s testimony
that he dropped off defendant and waited on the road for him before defendant returned to the
vehicle. Specifically, Kulhanek testified that he received a text message from defendant, “telling
me to come back and pick him up,” and there was confirmation that defendant sent a text
message to Kulhanek on November 6, 2015, at 6:02 a.m., stating, “Come back!!” And it was
established that defendant’s and Kulhanek’s cell phones were within close proximity to the
victim’s residence at the time of the crime. Considering the amount of evidence against
defendant, it would be unreasonable to assert that the dubious additional impeachment of
Kulhanek which the letter may have afforded would have had any greater impact on the jury than
the impeachment of him through another witness. Therefore, defendant has failed to establish
either of the two prongs for ineffective assistance of counsel, i.e., inadequate representation and
prejudice, and the trial court thus properly denied defendant’s request for a new trial.




                                                -5-
                          II. LATE ENDORSEMENT OF WITNESS

       Defendant next argues that the trial court erred when it permitted the prosecution to call
Shane Sims for rebuttal. We disagree.

        At trial defendant argued that Sims could not testify because he was not listed on the
prosecution’s Alibi Rebuttal Witness List, pursuant to MCL 768.20. Defendant specifically
pointed out that Sims was not mentioned on that list and the Alibi Rebuttal Witness List
expressly stated, “The people will notify defendant if other witnesses are later identified.” The
trial court allowed Sims to testify because he was not a true alibi rebuttal witness—he was only
being called to impeach the credibility of defendant’s alibi witness—and the prosecution was not
limited to only presenting rebuttal to defendant’s alibi defense but rather could present any
proper rebuttal testimony. On appeal, relying solely on MCL 768.40a, defendant argues that the
trial court erred when it allowed Sims to testify. Because defendant’s objection at the trial court
was not based on a violation of MCL 768.40a, the issue is not preserved for appellate review.
See People v Asevedo, 217 Mich App 393, 398; 551 NW2d 478 (1996) (“An objection based on
one ground at trial is insufficient to preserve an appellate attack based on a different ground.”).
We therefore review this unpreserved evidentiary issue for plain error affecting defendant’s
substantial rights. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).

       MCL 767.40a provides in relevant part:

               (1) The prosecuting attorney shall attach to the filed information a list of
       all witnesses known to the prosecuting attorney who might be called at trial and
       all res gestae witnesses known to the prosecuting attorney or investigating law
       enforcement officers.

              (2) The prosecuting attorney shall be under a continuing duty to disclose
       the names of any further res gestae witnesses as they become known.

              (3) Not less than 30 days before the trial, the prosecuting attorney shall
       send to the defendant or his or her attorney a list of the witnesses the prosecuting
       attorney intends to produce at trial.

              (4) The prosecuting attorney may add or delete from the list of witnesses
       he or she intends to call at trial at any time upon leave of the court and for good
       cause shown or by stipulation of the parties.

        Without citing a particular subsection, defendant argues that this statute requires the
prosecution “to disclose new witnesses as they become known.” Defendant presumably is
referring to MCL 767.40a(2), the only provision dealing with a continuing duty to disclose,
which provides that “[t]he prosecuting attorney shall be under a continuing duty to disclose the
names of any further res gestae witnesses as they become known.” However, the plain language
of the statute imposing the continuing duty to disclose only extends to the names of res gestae
witnesses. “Res gesate,” Latin for “things done,” refers to “a person who witnesses some event
in the continuum of a criminal transaction and whose testimony will aid in developing a full
disclosure of the facts.” People v O’Quinn, 185 Mich App 40, 44; 460 NW2d 264 (1990),

                                                -6-
overruled on other grounds by People v Koonce, 466 Mich 515, 516; 648 N2d 153 (2002); see
also Black’s Law Dictionary (10 ed) (defining “res gestae witness” as “[a] witness who, having
been at the scene of an incident, can give firsthand account of what happened.”).

        Here, Sims was not a res gestae witness. He did not witness any part of the crimes that
were the subject of trial. Instead, Sims was called to impeach the testimony of Wheaton. Sims
merely testified about discussions he previously had with Wheaton, in which Wheaton described
both defendant and Kulhanek as having been involved in the Chesaning break-in, which was
contrary to Wheaton’s testimony where he said that only Kulhanek was involved. Clearly, Sims
had no firsthand knowledge regarding who broke into the Chesaning house and was only
relaying what Wheaton had told him. Accordingly, because Sims was not a res gestae witness,
the prosecution had no duty to disclose his existence under MCL 767.40a(2); defendant has
failed to prove any plain error, and his claim fails.5

                          III. SCORING OF OFFENSE VARIABLE 10

       Defendant next argues that the trial court erroneously scored Offense Variable (OV) 10 at
15 points for predatory conduct. We disagree.

        A trial court’s factual findings pertaining to the scoring of guidelines variables are
reviewed for clear error and “must be supported by a preponderance of the evidence.” People v
Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Under the clear error standard, this Court
will not displace a trial court’s factual findings unless this Court is left with a definite and firm
conviction that a mistake was made. People v Thompson (On Remand), 314 Mich App 703, 708;
887 NW2d 650 (2016). However, whether the facts found by the trial court are adequate to
trigger the scoring of a particular guidelines variable is a question of statutory interpretation that
we review de novo. Hardy, 494 Mich at 438.

        OV 10 is scored for the exploitation of a vulnerable victim. Points may be assessed
under this OV when the exploitive conduct was directed against a vulnerable victim and the
vulnerability was readily apparent, in that the victim was susceptible to injury, physical restraint,
persuasion, or temptation. People v Cannon, 481 Mich 152, 157-158; 749 NW2d 257 (2008).
But if an offender did not exploit a victim’s vulnerability, as defendant suggests is the case here,
then zero points are properly scored for OV 10. MCL 777.40(1)(d). A court properly scores OV
10 at 15 points when “[p]redatory conduct was involved.” MCL 777.40(1)(a). “ ‘Predatory
conduct’ means preoffense conduct directed at a victim . . . for the primary purpose of



5
  We note that defendant in his brief on appeal mentions in his introduction to this issue that both
Sims and Plowman were not endorsed as witnesses. To the extent that defendant intended to
argue that allowing Plowman to testify also was erroneous, that issue is abandoned, as defendant
focused his argument solely on witness Sims. See People v McPherson, 263 Mich App 124,
136; 687 NW2d 370 (2004) (“The failure to brief the merits of an allegation of error constitutes
an abandonment of the issue.”). In any event, like Sims, Plowman was not a res gestae witness,
and any reliance on MCL 767.40a(2) as to her also is misplaced.


                                                 -7-
victimization.” MCL 777.40(3)(a). Thus, “to assess 15 points for OV 10, a court must find that
an offender engaged in predatory conduct and exploited a vulnerable victim, using only the
statutory definition of ‘vulnerability.’ ” People v Huston, 489 Mich 451, 466; 802 NW2d 261
(2011). And “MCL 777.40(3)(c) defines ‘vulnerability’ as ‘the readily apparent susceptibility of
a victim to injury, physical restraint, persuasion, or temptation,’ and such vulnerability may or
may not arise from the explicitly listed characteristics, relationships, and circumstances set forth
in subdivisions (b) and (c).” Id., quoting MCL 777.40(3)(c). Notably, susceptibility does not
have to arise from a victim’s inherent traits—it can arise from external circumstances as well.
Huston, 489 Mich at 466. The test boils down to the trial court answering the three following
questions:

       (1) Did the offender engage in conduct before the commission of the offense?

       (2) Was this conduct directed at one or more specific victims who suffered from a
       readily apparent susceptibility to injury, physical restraint, persuasion, or
       temptation?

       (3) Was victimization the offender’s primary purpose for engaging in the
       preoffense conduct? [Cannon, 481 Mich at 161-162.]

        Here, the trial court scored OV 10 at 15 points and relied on the fact that the victim was
asleep when the break-in occurred. The court further agreed with the prosecution that defendant
went to the Chesaning house initially the night of the robbery and afterward, went back again,
this time to break into the house. The court also noted that “there was also this testimony about
the defendant telling [Kulhanek] that he heard this couple kept money in their freezer, and he
wanted to go there, and go after that. And I think that falls within the predatory conduct, as
described.” The court’s factual findings are not clearly erroneous. The victim testified that he
had woken up at 6:00 a.m. from his alarm clock and thereafter heard the two “crash” sounds.
While the victim was awake when he heard the crashes and encountered defendant, it is
conceivable that defendant already had been in the house awhile before the crashes occurred;
therefore, the victim may have been asleep at the time of the actual break-in. 6 Thus, we are not
left with a definite and firm conviction that the trial court made a mistake when it found that the
victim was asleep at the time of the break-in. Further, the trial court’s other findings are
supported by a preponderance of the evidence because Kulhanek testified that after he and
defendant stole from the victim’s car, they left the area and immediately returned to have
defendant break-in to the house, and Kulhanek testified that defendant selected the Chesaning
house specifically because he heard that there was money stored in the freezer there.


6
  Indeed, the victim testified that he woke up at 6:00 a.m., but there was evidence that defendant
texted Kulhanek at 6:02 a.m. asking to be picked up from the Chesaning house after the robbery.
With such close proximity between these two times, a natural inference is that defendant broke
into the house before 6:00 a.m. In other words, it seems highly improbable that defendant broke
into the house, made crash sounds, encountered the victim, robbed the victim, searched the
freezer, and left the house all within two minutes.


                                                -8-
       Now, whether these facts are sufficient to qualify as predatory conduct under MCL
777.40(1)(a) is a separate question. Our Supreme Court has explained that “predatory conduct”

       does not encompass any “preoffense conduct,” but rather only those forms of
       “preoffense conduct” that are commonly understood as being “predatory” in
       nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal
       conduct or “preoffense conduct involving nothing more than run-of-the-mill
       planning to effect a crime or subsequent escape without detection.” [Huston, 489
       Mich at 462 (emphasis in original), quoting Cannon, 481 Mich at 162.]

        We find Huston instructive. In Huston, the Supreme Court held that a person who is
lying in wait to rob a victim who just happens to wander by in a parking lot constituted predatory
conduct. Huston, 489 Mich at 463-464. The Court noted that, while the defendant may not have
been lying in wait for a specific victim, he nonetheless was lying in wait for a victim; thus, the
conduct was directed at a victim. Id. at 463. The Court relied heavily on the reason why the
defendant chose to lie in wait—“he was doing this in order to place himself in a better position to
be able to successfully rob someone in the parking lot.” Id. Here, defendant broke into the
victim’s house during the early morning hours, when he necessarily figured the home’s residents
would be asleep. As in Huston, defendant here directed preoffense conduct toward the victim,
where such conduct went beyond “run-of-the-mill planning.” Just before deciding to break into
the Chesaning house, defendant went to the house and stole from the victim’s car. And
defendant selected a time to break into the house when he naturally thought that the victim would
be sleeping, which would make the victim more vulnerable. Thus, similarly to the defendant in
Huston, defendant here directed this preoffense conduct at the victim in the Chesaning house so
he could “place himself in a better position to be able to successfully rob” him. Accordingly, we
hold that the trial court did not err when it scored OV 10 at 15 points for predatory conduct.

       Affirmed.

                                                             /s/ Patrick M. Meter
                                                             /s/ Michael F. Gadola
                                                             /s/ Jonathan Tukel




                                                -9-
