                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       August 24, 2017
               Plaintiff-Appellee,

v                                                                      No. 332089
                                                                       Wayne Circuit Court
CLARENCE MCMILLEN, JR.,                                                LC No. 15-005091-01-FC

               Defendant-Appellant.


Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

       This case arises out of defendant’s sexual assault of the daughter of his former girlfriend
while the victim, defendant’s former girlfriend, and her three younger children were staying at
defendant’s home. The victim testified that the assault occurred one night after she fell asleep
while watching a movie in defendant’s bedroom. At trial, a jury convicted defendant of three
counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(i). The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 30 to 45 years’
imprisonment for each CSC-I conviction. Defendant appeals as of right. We affirm.

                              I. SUFFICIENCY OF THE EVIDENCE

         Defendant first argues that the prosecution failed to sufficiently prove that he and the
victim were members of the same household pursuant to MCL 750.520b(1)(b)(i). We review de
novo challenges to the sufficiency of the evidence. People v McGhee, 268 Mich App 600, 622;
709 NW2d 595 (2005). When reviewing a sufficiency claim, we view the evidence adduced at
trial “in the light most favorable to the prosecutor and determine whether a rational trier of fact
could find the defendant guilty beyond a reasonable doubt.” People v Bailey, 310 Mich App
703, 713; 873 NW2d 855 (2015). The standard of review is deferential; reviewing courts must
draw all reasonable inferences and credibility determinations in support of the verdict. Id. The
prosecution need not negate every reasonable theory of innocence, but must convince the jury of
a defendant’s guilt in the face of any contradictory evidence provided by the defense. Id.
Circumstantial evidence and the reasonable inferences arising from that evidence can constitute
satisfactory proof of a crime. Id.

       Defendant was convicted of three counts of CSC-I under MCL 750.520b(1)(b)(i), which
provides that a “person is guilty of criminal sexual conduct in the first degree if he . . . engages in
sexual penetration with another person,” and that other person is “at least 13 but less than 16
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years of age,” and “the actor is a member of the same household as the victim.” In People v
Phillips, 251 Mich App 100, 103; 649 NW2d 407 (2002), this Court analyzed the meaning of the
term “household” as used in MCL 750.520b(1)(b)(i), and stated the following:

       [T]he term “household” has a fixed meaning in our society not readily susceptible
       of different interpretation. The length of residency or the permanency of
       residency has little to do with the meaning of the word as it is used in the statute.
       Rather, the term denotes more of what the Legislature intended as an all-inclusive
       word for a family unit residing under one roof for any time other than a brief or
       chance visit. [Quotation marks and citation omitted.]

        In this case, the evidence presented at trial was sufficient to allow a rational jury to
conclude beyond a reasonable doubt that defendant, his former girlfriend, and her children,
including the victim, were operating as a “family unit” for longer than a “brief or chance visit” at
the time of the assault. Testimony at trial showed that defendant’s former girlfriend and her four
children moved into defendant’s home in April 2015. Defendant and the victim’s mother had
been dating on and off for 11 years, and she claimed that defendant was the father of her three
youngest children. Testimony established that defendant’s former girlfriend and her children had
been staying at defendant’s home for about one month before the assault occurred. Defendant’s
former girlfriend testified that, during this month, she purchased groceries for everyone,
including defendant, and would cook, clean, and wash everyone’s clothing. Defendant watched
the children while his former girlfriend worked from 8:00 a.m. to 4:00 p.m., and he had authority
to discipline the children while he was with them. Although defendant was not the victim’s
father, she testified that they had a close relationship and she considered defendant to be her
stepfather. The victim testified that she felt she could talk to defendant in ways that she could
not talk to her mother. Viewing this evidence in a light most favorable to the prosecution, a
rational trier of fact could find beyond a reasonable doubt that defendant and the victim were
members of the same household at the time of the sexual assault. Therefore, the prosecution
presented sufficient evidence to support defendant’s convictions of CSC-I under MCL
750.520b(1)(b)(i).

                             II. THE PROSECUTOR’S CONDUCT

        In his Standard 4 brief, defendant argues that the prosecution violated Brady v Maryland,
373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), by withholding hospital treatment notes and a
report from the Department of Health and Human Services (DHHS), which defendant claims he
could have used to impeach the testimony of the victim and his former girlfriend. Defendant
also argues that, based on the information contained in the report and treatment notes, the
prosecution knowingly used perjured testimony to secure his convictions at trial. Defendant did
not raise any issues regarding the prosecution’s alleged Brady violation or use of perjured
testimony in the trial court, so we review these unpreserved issues for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

       To establish a Brady violation, a defendant must prove “(1) the prosecution has
suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” People v
Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014) (quotation marks and citation omitted).
Evidence is favorable to a defendant if it is exculpatory or can be used for impeachment. Id.

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“To establish materiality, a defendant must show that there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. (quotation marks and citation omitted). The ultimate question is whether, in the
absence of the suppressed evidence, the defendant received a trial resulting in a verdict worthy of
confidence. Id. at 150-151.

        A conviction obtained through the prosecution’s knowing use of false testimony violates
a defendant’s due process rights and must be set aside if there is a reasonable likelihood that the
false testimony could have affected the jury’s judgment. People v Aceval, 282 Mich App 379,
389; 764 NW2d 285 (2009). “Stated differently, a conviction will be reversed and a new trial
will be ordered, but only if the tainted evidence is material to the defendant’s guilt or
punishment.” Id. The crucial inquiry for due process purposes is whether the perjured testimony
affected the fairness of the trial; the focus is not on the prosecution’s culpability. Id. at 390.

        Defendant argues that the victim’s trial testimony concerning the nature of the assault
was inconsistent with statements she made to DHHS and hospital personnel, as reflected by a
DHHS report and hospital treatment notes. Specifically, defendant argues that the victim
reported that defendant assaulted her only with his penis and finger, but she “made no claim that
she was assaulted with [defendant’s] tongue,” as she testified to at trial. Contrary to defendant’s
assertion on appeal, the DHHS report indicates that the victim reported “vaginal penetration with
[defendant’s] finger and penis” and that defendant “also . . . licked [the victim’s] vagina.” The
hospital treatment notes state that the victim reported that “there was penetration but no trauma
and [defendant] did not ejaculate[.]” The fact that the treatment notes do not specify the type or
types of penetration does not make the victim’s trial testimony inconsistent with her statements
to hospital personnel. Therefore, even assuming the prosecution improperly withheld the DHHS
report and hospital treatment notes, defendant has not shown that this evidence could have been
used to impeach the victim’s testimony in this regard. Likewise, defendant has not shown that
the prosecution knowingly used false testimony on this point to obtain defendant’s convictions.

        Defendant also argues that his former girlfriend testified at trial that he was the father of
her three youngest children, but she reported to DHHS that he was only the father of her
youngest child. He likewise points out that the victim testified at trial that he was the father of
her three siblings. The DHHS report indicates that defendant’s former girlfriend and an
“unknown father” are the parents of the three oldest children and that defendant is the father of
the youngest child, without attributing a source for this information. The report also states that
Child Protective Services interviewed defendant’s former girlfriend and she stated that “her
children identify [defendant] as their father,” but then stated that “she has no contact with the
father of her children and he may be deceased.” Given the lack of clarity surrounding these
statements, the DHHS report has minimal value as a tool of impeachment with regard to
defendant’s former girlfriend1 and no impeachment value with regard to the victim because none
of the statements in the report can be fairly attributed to her. Moreover, even assuming the



1
  See also MRE 608(b) (“Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility . . . may not be proved by extrinsic evidence.”).


                                                -3-
prosecution suppressed the DHHS report and offered the testimony of the victim and defendant’s
former girlfriend on this point knowing that respondent was not the father of two of the non-
victim children, the paternity of the non-victim children was not an issue central to defendant’s
guilt or innocence. Contrary to defendant’s assertion on appeal, his paternity of the non-victim
children, or lack thereof, would not alter the household element of CSC-I under MCL
750.520b(1)(b)(i). Additionally, defendant’s attorney strongly implied during cross-examination
of defendant’s former girlfriend that she may have been lying about the paternity of two of the
non-victim children, and his attorney impeached the victim’s testimony regarding numerous
other details surrounding the assault. Furthermore, physical DNA evidence corroborated the
victim’s account. Under the circumstances, defendant cannot show with a reasonable probability
that the prosecution’s use of the allegedly tainted testimony or the non-disclosure of the DHHS
report affected the outcome of the proceedings.2 See Aceval, 282 Mich App at 389; Chenault,
495 Mich at 150.

                                      III. DNA EVIDENCE

         Defendant next argues in his Standard 4 brief that he is entitled to a new trial because the
expert DNA testimony proffered by the prosecution did not comply with the requirements set
forth in People v Coy, 243 Mich App 283; 620 NW2d 888 (2000). Defendant also argues that he
is entitled to a new trial because the Michigan State Police (MSP) Crime Lab created his DNA
profile before he provided a DNA sample via buccal swab. Therefore, defendant argues, the
DNA profile matching the male DNA in the victim’s underwear could not have come from
defendant. We disagree.

        Defendant failed to object to the admission of the DNA evidence presented at trial and
failed to contest the source of the DNA sample attributed to him and used in comparison to the
male DNA found in the victim’s underwear. This issue is therefore unpreserved. People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We review unpreserved evidentiary
issues for plain error affecting a defendant’s substantial rights. People v Chelmicki, 305 Mich
App 58, 62; 850 NW2d 612 (2014).

       Relying on this Court’s opinion in Coy, defendant argues that the testimony of Brian
Schloff, a forensic scientist with the MSP Crime Lab who was certified as an expert in DNA
analysis and biology, did not provide “any accompanying statistical evidence, or supportive


2
  Defendant briefly mentions in his Standard 4 brief that “[t]he prosecution also knew that [the
victim] had discussed the assault with other individuals after her contact with Kids Talk.” He
provides no context, argument, or record citation in connection with this statement, therefore
abandoning any error regarding this point on appeal. See People v McMiller, 202 Mich App 82,
83 n 1; 507 NW2d 812 (1993). The prosecution notes in its appellate brief that the victim
testified at trial that the last person she talked to about the case was someone at Kids Talk, which
her mother said took place on May 4, 2015, while the DHHS report contains a brief account of
the assault, ostensibly relayed by the victim, dated May 5, 2015. Given the minor nature of this
discrepancy involving an issue that was not central to defendant’s guilt or innocence, defendant
has not shown that the fairness of his trial was affected by this testimony.


                                                -4-
qualitative or quantitative evidence of any kind,” to demonstrate that the DNA profile developed
by the MSP Crime Lab actually matched defendant’s DNA. In Coy, 243 Mich App at 302, this
Court concluded that certain DNA evidence was inadmissible under MRE 702 and MRE 403. A
serologist testified regarding a potential DNA match between the defendant’s DNA and DNA
found in a mixed blood sample from a knife and a doorknob recovered from the crime scene. Id.
at 292-294. The serologist testified that neither the defendant nor the victim could be excluded
as contributors to the samples, but explained that she did not perform any “statistical
interpretation of the results . . . achieved regarding the mixed DNA samples recovered from the
knife blade and the doorknob . . . .” Id. at 293-294. This Court held that “absent some analytic
or interpretive evidence concerning the likelihood or significance of a DNA profile match, . . .
testimony concerning the potential match between [the] 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 [the] defendant contributed DNA to the
mixed sample.” Id. at 301. This Court expressly declined, however, to “declare or delineate the
appropriate articulations for expressing the extent or meaning of a potential match, but merely
[held] that some qualitative or quantitative interpretation must accompany evidence of the
potential [DNA] match.” Id. at 302.

       At trial, Schloff testified regarding the DNA analysis he performed and explained that he
obtained two types of DNA from a cutting of the victim’s underwear: an epithelial fraction and a
sperm fraction. He then testified as follows:

               [Schloff]. [T]he DNA profile that was obtained from the epithelial fraction
       of the underwear is consistent with being a mixture of the victim in this case . . .
       and one male contributor. . . . [T]he DNA that was developed from [defendant’s]
       reference sample matched that additional donor to the epithelial fraction of the
       underwear cutting.

              [The Prosecution]. Absence of identical twins or close relative; is that
       correct?

              Schloff. Yes.

               The Prosecution. So basically unless he’s got a twin—or when you say
       close relative how is that defined?

                Schloff. Well, close the bottom line is that with a good degree of scientific
       certainty the DNA from that additional donor does match [defendant]. The close
       relative reference is if there were a brother with very very similar DNA or sibling
       or . . . something like close relative: mother, father or son or daughter may have
       some DNA that’s similar, but the DNA from this profile still matches his profile.

                                                  * * *

              Schloff. [A]nd with a reasonable degree of scientific certainty [the] DNA
       from the sperm fraction of the underwear cutting and from the reference sample
       from [defendant] are from the same individual. They do match.


                                                -5-
               The Prosecution. So two different profiles developed?

               Schloff. So the first profile which was from the epithelial fracture is a
       mixture of two individuals. In other words, two people contribute to that DNA
       profile, and in that case it appears to be a mixture of [the victim’s DNA] and
       [defendant’s DNA]. And the sperm fraction of the underwear cutting is a single
       person, and it matches the DNA from [defendant].

        Based on the foregoing, Schloff’s expert opinion that defendant’s DNA was found in a
cutting of the victim’s underwear was accompanied by a sufficient interpretive framework to
assist the jury. Schloff provided the jurors with a qualitative analysis of the likelihood that the
DNA found in the victim’s underwear belonged to defendant by speaking in terms of a
“reasonable” or a “good” degree of scientific certainty and by explaining the limited
circumstances that could provide a false match, i.e., the presence of a twin or a close relative.
Accordingly, unlike the DNA expert in Coy, Schloff provided analytic and interpretive evidence
concerning the significance of the DNA profile match sufficient to assist the jury in determining
whether defendant contributed to the DNA obtained from the cutting of the victim’s underwear.
Therefore, defendant has not shown that admission of this DNA evidence amounted to plain
error affecting his substantial rights.

       Defendant next argues that the buccal swab reference sample used by the MSP Crime
Lab did not come from him because the MSP laboratory report lists a “Date Received” as May
13, 2015, while the police did not obtain a search warrant for defendant’s buccal swab until June
24, 2015. Detroit Police Officer Elaine Caldwell of the Special Victims Unit, and officer in
charge of the case, testified that she obtained a warrant for defendant’s buccal swab on June 24,
2015, and thereafter obtained a buccal swab from defendant, sealed the swab in two envelopes,
and sent it to the MSP Crime Lab. Caldwell testified that defendant signed the envelope
containing his buccal swab. Schloff testified that he received two evidence containers for
analysis in this case, one which held the “evidence collection kit that was submitted as collected”
from the victim, and one which held “a sealed envelope that contained a reference sample
reportedly collected from” defendant. Schloff testified that the envelope was marked with
defendant’s name and an identification number; he could not recall whether he received all of the
DNA swabs together at one time. The MSP laboratory report does not specify that the “Date
Received” pertains to all of the samples analyzed within the report, as opposed to merely the first
evidence samples received by the MSP Crime Lab. The laboratory report also lists the “Date
Completed” as September 14, 2015, well after the time defendant supplied his buccal swab for
analysis. Under the circumstances, defendant has not shown that the buccal swab analyzed by
the MSP Crime Lab was not properly authenticated or was obtained from someone other than
defendant himself. The trial court did not plainly err by admitting this evidence at trial.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, in his Standard 4 brief, defendant argues that his trial counsel provided
ineffective assistance because his attorney did not object “[w]hen the prosecutor solicited
testimony from his DNA expert without accompanying statistical analysis or evidence,” and
“failed to effectively contest admitted DNA evidence received and tested by [the] State Police on
[5]/13/15; in light of Defendant’s DNA buccal swab not being obtained until . . . 6/24/[15].”

                                                -6-
Whether a defendant has been denied the effective assistance of counsel presents a mixed
question of fact and constitutional law. People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). We review for clear error a trial court’s findings of fact and review de novo
questions of law. Id. at 188. When no evidentiary hearing has been conducted to develop a
factual record regarding an ineffective assistance claim, as is the case here, our review is limited
to mistakes apparent on the record. Id.

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). To
establish a claim of ineffective assistance, a defendant must prove that “(1) counsel’s
performance was deficient, meaning that it fell below an objective standard of reasonableness,
and (2) but for counsel’s error, there is a reasonable probability that the outcome of the
defendant’s trial would have been different.” Solloway, 316 Mich App at 188.

        As discussed earlier in this opinion, Schloff provided a sufficient analytic and interpretive
framework to assist the jury in determining whether defendant contributed to the DNA obtained
from the cutting of the victim’s underwear, and there is no evidence in the record suggesting that
the buccal swab used by the MSP Crime Lab for reference came from anyone other than
defendant. Any objection by defense counsel regarding these two instances of alleged error
would have been futile. “Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201;
793 NW2d 120 (2010). Accordingly, defendant has not shown that his trial counsel provided
ineffective assistance.

       Affirmed.

                                                              /s/ Michael F. Gadola
                                                              /s/ Patrick M. Meter
                                                              /s/ Karen M. Fort Hood




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