                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 11, 2015
               Plaintiff-Appellee,

v                                                                    No. 320627
                                                                     Wayne Circuit Court
ROBERT EUGENE HARDESTY,                                              LC No. 13-001904-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

        This appeal arises out of defendant’s sexual and physical abuse of three children, LF,
DW, and KW, while he was living with them and their legal guardian, SS, from 2007 through
2012. Following a bench trial, defendant was convicted of two counts of distributing obscene
material, MCL 722.675, three counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1) (multiple variables), two counts of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c(1)(a), selling or furnishing alcohol to a minor, MCL 436.1701(1), and
third-degree child abuse, MCL 750.136b(4).            The trial court sentenced defendant to
imprisonment of one to two years for each distributing obscene material conviction, 18 to 40
years for the first two CSC-I convictions, 25 to 40 years for the remaining CSC-I conviction, 18
to 40 years for one CSC-II conviction, 1 to 15 years for the other CSC-II conviction, one to two
years for the furnishing alcohol to a minor conviction, and three to five years for the third-degree
child abuse conviction. Defendant appeals as of right. We affirm.

                               I. PRIOR BAD ACTS EVIDENCE

         Defendant first argues that the trial court abused its discretion by allowing the
prosecution to introduce evidence of defendant’s prior acts of domestic violence. We review
preserved evidentiary claims for an abuse of discretion. People v Unger, 278 Mich App 210,
216; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court chooses an outcome
that falls outside the range of reasonable and principled outcomes.” Id. at 217.

        Generally, all evidence is admissible if it is relevant and has a probative value that is not
substantially outweighed by the danger of unfair prejudice. People v Railer, 288 Mich App 213,
219; 792 NW2d 776 (2010); MRE 402; MRE 403. “Evidence is unfairly prejudicial when there
exists a danger that marginally probative evidence will be given undue or preemptive weight” by
the trier of fact. People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). Under
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MRE 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.”

        Notwithstanding MRE 404(b), in cases involving domestic violence, evidence of prior
acts of domestic violence is admissible to show a defendant’s character or propensity to commit
the same acts. MCL 768.27b; People v Cameron, 291 Mich App 599, 608-609; 806 NW2d 371
(2011). MCL 768.27b provides in part the following:

               (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.[1]

               (2) If the prosecuting attorney intends to offer evidence under this section,
       the prosecuting attorney shall disclose the evidence . . . 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.

        Under MCL 768.27b(5)(a), “domestic violence” or “offense involving domestic
violence” is defined as either (1) “[c]ausing or attempting to cause physical or mental harm to a
family or household member,” (2) “[p]lacing a family or household member in fear of physical
or mental harm,” (3) “[c]ausing or attempting to cause a family or household member to engage
in involuntary sexual activity by force, threat of force, or duress,” or (4) “[e]ngaging in activity
toward a family or household member that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested.” A family or household member
includes any person with whom the defendant “resides or has resided.” MCL 768.27b(5)(b)(ii).

       In his brief on appeal, defendant does not identify the specific acts evidence that he
believes was wrongly admitted at trial. However, on March 7, 2013, not less than 15 days before
the scheduled day of trial, the prosecutor filed a notice of intent to use defendant’s prior acts of
domestic violence as evidence. The prior acts cited by the prosecutor included instances when
defendant beat LF, DW, and KW with his hand or a belt, and when defendant used a homemade
device, referred to as a “zapper,” to electrically shock the children. For purposes of


1
 MRE 403 states the following: “Although 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.”


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MCL 768.27b, LF, DW, and KW were household members because they resided with defendant
from 2007 through 2012. Further, this case involves domestic violence because defendant was
charged with third-degree child abuse and first and second-degree criminal sexual conduct for
offenses in which defendant caused or attempted to cause physical injury or mental harm to LF,
DW, and KW, and engaged in activity toward LF, DW, and KW that would cause a reasonable
person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

        The evidence offered by the prosecutor constituted other acts of domestic violence under
MCL 768.27b(5) because the evidence showed that defendant caused or attempted to cause
physical or mental harm to household members. The prior acts occurred between 2007 and
2012, which was not more than 10 years before the charged offenses. MCL 768.27b(4). The
evidence was highly probative to show why the children were afraid of defendant and did not
report the acts of physical and sexual abuse at an earlier time. Additionally, the evidence
properly gave the trier of fact a full and complete picture of defendant’s behavioral history in
order to view the facts of the case in context. Cameron, 291 Mich App at 609-610.

        Defendant argues that the evidence was improperly admitted because the trial court stated
in closing that, considering the evidence presented, it would have found defendant guilty of
additional counts of physical abuse for LF and DW if they were included in the information.
Defendant provides no argument or authority indicating why the trial court’s statement showed it
gave undue or preemptive weight to marginally probative evidence. See Crawford, 458 Mich at
398. Under the circumstances of this case, we conclude that the probative value of this evidence
was not substantially outweighed by the danger of unfair prejudice. Because the requirements of
MCL 768.27b were satisfied, the trial court did not abuse its discretion in allowing the
prosecutor to elicit evidence of defendant’s other acts of domestic violence.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant next argues that the prosecutor presented insufficient evidence to support his
multiple convictions for CSC-I and CSC-II. We review a defendant’s challenge to the
sufficiency of the evidence de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37
(2011). In reviewing a sufficiency claim, we view the evidence in a light most favorable to the
prosecution to determine whether a rational trier of fact could find the essential elements of the
crime were proven beyond a reasonable doubt. People v Harris, 495 Mich 120, 126; 845 NW2d
477 (2014). “We ‘will not interfere with the trier of fact’s role of determining the weight of the
evidence or the credibility of witnesses.’ ” People v Eisen, 296 Mich App 326, 331; 820 NW2d
229 (2012), quoting People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        As a preliminary matter, defendant contends that all of his criminal sexual conduct
convictions should be reversed for lack of sufficient evidence because the prosecutor did not
corroborate the victims’ testimony with other physical or circumstantial evidence. Under
Michigan law, a victim’s testimony need not be corroborated in prosecutions of first or second-
degree criminal sexual conduct. MCL 750.520h. Defendant also contends that there was
insufficient evidence to convict him of criminal sexual conduct because LF and DW were not
credible witnesses and provided “incredulous” and contradictory testimony. We will not
interfere with the factfinder’s role in assessing the credibility of witnesses. Eisen, 296 Mich App
at 331. Defendant’s arguments in this regard lack merit.

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                                   A. CSC-I CONVICTIONS

        A person is guilty of first-degree criminal sexual conduct if he or she engages in sexual
penetration with another person and that person “is at least 13 but less than 16 years of age” and
the actor “is a member of the same household as the victim.” MCL 750.520b(1)(b)(i). A person
is also guilty of first-degree criminal sexual conduct if he or she engaged in sexual penetration
with another person and “the other person is under 13 years of age.” MCL 750.520b(1)(a).
MCL 750.520a(1) defines “sexual penetration” as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of another person’s body.”

       The trial court found defendant guilty of three counts of CSC-I. Count 7 alleged that
defendant committed CSC-I by sexually penetrating LF, a member of his household, while she
was at least 13 years old, but less than 16 years old. At trial, LF testified that she lived in the
same house as defendant and that he put his penis in her vagina 20 to 30 times when she was 12
and 13 years old. LF testified that defendant would make her take off her clothes and lay on a
bed while defendant undressed, put a condom on his penis, and then put his penis in her vagina.
A rational trier of fact could find beyond a reasonable doubt on the basis on LF’s testimony that
defendant committed CSC-I, contrary to MCL 750.520b(1)(b)(i). Defendant’s conviction on
Count 7 was supported by sufficient evidence.

        Count 9 alleged that defendant committed CSC-I for sexually penetrating LF, a member
of his household, by having her perform fellatio on him when she was between 13 and 16 years
of age. Count 12 alleged that defendant committed CSC-I for sexually penetrating DW by
having her perform fellatio on him when she was under 13 years of age. Sufficient evidence
supported defendant’s convictions for both counts. At trial, LF and DW testified that defendant
made them perform fellatio on him. LF testified that she performed fellatio on defendant while
DW put her mouth on his testicles. After some time, defendant told LF and DW to “switch
roles.” LF testified that DW began performing fellatio on defendant, and she saw defendant’s
penis go into DW’s mouth. LF testified that they performed fellatio at the same on defendant on
four or five occasions. LF testified that this occurred when she was 12 and 13 years old.
Testimony at trial also revealed that DW was no more than 12 years old while defendant lived in
the house. Considering this evidence, a rational trier of fact could find defendant guilty of
Counts 9 and 12 beyond a reasonable doubt.

                                   B. CSC-II CONVICTIONS

        A person is guilty of second-degree criminal sexual conduct if the person “engages in
sexual contact with another person” and the “other person is under 13 years of age.” MCL
750.520c(1)(a). “Sexual contact” is “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 of sexual arousal or gratification.” MCL 750.520a(q).

        The trial court found defendant guilty of two counts of CSC-II. Counts 13 and 14 both
alleged that defendant committed CSC-II by engaging in sexual contact with DW when she was
less than 13 years old by touching her breasts and buttocks for a sexual purpose. At trial, DW

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testified that when she was 11 years old, she was teaching defendant a computer game when he
reached his hand up her shirt and grabbed her breasts. DW said that she told defendant to stop,
but he covered her mouth and told her to be quiet. DW testified that after defendant touched her
breasts, he told her that if she disclosed the incident, he would “stick a hot flat iron up [LF’s]
vagina.” Considering this evidence, a rational trier of fact could find that defendant intentionally
touched DW’s breasts, an intimate part, for the purpose of sexual arousal or gratification when
she was less than 13 years old.

        DW also testified that when she was 12 years old, defendant was installing a stereo in her
room when he grabbed her breasts. According to DW, LF was also in the room and defendant
told LF to grab his penis. Considering this evidence, a rational trier of fact could conclude
beyond a reasonable doubt that defendant was guilty of a second count of CSC-II for
intentionally touching DW’s breasts for the purpose of sexual arousal or gratification when DW
was less than 13 years old. Sufficient evidence supported both counts of CSC-II.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant asserts that he was denied the effective assistance of counsel in multiple
instances during trial. Below, defendant did not move for a Ginther2 hearing or a new trial on
the basis of ineffective assistance, so our review is limited to mistakes apparent on the record.
People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001). Whether a defendant
was deprived of the effective assistance of counsel presents a mixed question of fact and
constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review
a trial court’s findings of fact for clear error, and review questions of constitutional law de novo.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

        The United States and Michigan Constitutions both guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish
ineffective assistance, the defendant must show that “(1) defense counsel’s performance was so
deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable
probability that defense counsel’s deficient performance prejudiced the defendant.” People v
Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). A defendant is prejudiced if, “but for
defense counsel’s errors, the result of the proceeding would have been different.” Id. at 81.
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). A defendant
must also overcome a strong presumption that his counsel’s conduct was sound trial strategy.
People v Douglas, 496 Mich 557, 585; 852 NW2d 587 (2014).

       Defendant’s own self-serving affidavit, which he attached to his brief on appeal, is the
only evidence offered to support his claim of ineffective assistance of counsel. As indicated
above, when reviewing unpreserved claims of ineffective assistance, our review is limited to
mistakes apparent on the record. Rodgers, 248 Mich App at 713-714. Because defendant’s



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -5-
affidavit is not part of the lower court record, we will not consider it on appeal. See People v
Watkins, 247 Mich App 14, 31; 634 NW2d 370 (2001).

        Defendant first contends that his trial counsel was ineffective for failing to provide him
with discovery materials and transcripts from the preliminary examination. This error is not
apparent on the record. The record does not indicate what efforts defense counsel made to share
discovery materials and transcripts with defendant. Because there is no record evidence
regarding whether defense counsel provided defendant with the discovery materials and
preliminary examination transcripts, defendant has not proven the factual predicate of his claim.
See People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Moreover, defendant cannot
show prejudice because he failed to explain how the result of the proceedings would have been
different if his counsel provided him the allegedly requested discovery materials and transcripts.

        Defendant next contends that trial counsel was ineffective for failing to introduce the
testimony of Justine Thompson, Brenda Thompson, and Courtney Sora. “Decisions regarding
whether to call or question witnesses are presumed to be matters of trial strategy.” People v
Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Trial counsel’s failure to a call a
witness is only considered ineffective assistance if it deprived the defendant of a substantial
defense. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). A substantial defense
is one that may have changed the outcome of the case. People v Putman, ___ Mich App ___,
___; ___ NW2d ___ (2015); slip op at 4. Defendant also argues that the decision not to call
Justine Thompson, Brenda Thompson, and Sora was a result of his attorney’s failure to
investigate the case. Although insufficient investigation can constitute ineffective assistance, an
attorney’s failure to investigate a witness does not demonstrate inadequate preparation unless a
defendant can show that the failure resulted in the omission of valuable evidence that would have
substantially benefited the defense. People v Caballero, 184 Mich App 636, 642; 459 NW2d 80
(1990).

        Nothing in the record reveals what Justine Thompson, Brenda Thompson, and Sora
intended to testify about. Because there is no evidence in the record regarding the substance of
the testimony, defendant cannot prove that his counsel’s decision not to introduce the testimony
would have changed the outcome of the trial. Moreover, defendant cannot show that the
witnesses’ testimony would have substantially benefited him. Accordingly, defendant cannot
overcome the presumption that his counsel’s assistance was proper in this regard.

        Defendant claims his attorney was ineffective for not obtaining the cell phone records of
all the involved parties. The record does not indicate whether defense counsel obtained cell
phone records for the parties involved or that defendant even told counsel that the cell phone
records could be helpful to his case. Again, defendant has failed to prove the factual predicate of
his claim. See Carbin, 463 Mich at 600. Therefore, defendant cannot demonstrate that counsel’s
performance fell below an objective standard of reasonableness.

       Defendant contends that counsel was ineffective for failing to obtain CPS reports
involving the children dating back to 1998. The record indicates that defense counsel cross-
examined LF with CPS reports from August 26, 2011, October 5, 2011, and April 25, 2012. The
record also indicates that defense counsel cross-examined DW with CPS reports from August 26,
2011, and April 25, 2012. The trial court acknowledged that “there was a lot of testimony and

                                                -6-
cross-examination of the children primarily using Child Protective Services’ records but those
Child Protective Services’ records have not been introduced into evidence.” Defendant provides
no evidence that older CPS reports than those used at trial existed, and does not explain how
such reports would have been helpful to his case. Accordingly, defendant cannot show that his
counsel’s performance fell below an objective standard of reasonableness.

        Lastly, defendant asserts that his counsel was ineffective for encouraging him to waive
his right to a jury trial. In his brief on appeal, defendant raised this argument in a footnote and
stated that it “w[ould] be discussed in Issue III.” However, defendant never addressed this
argument in his brief. A defendant cannot simply assert an error and then leave it to this Court to
discover and rationalize the basis of the claim. People v Kevorkian, 248 Mich App 373, 389;
639 NW2d 291 (2001). Defendant was not denied the effective assistance of counsel.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Stephen L. Borrello
                                                            /s/ Michael F. Gadola




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