                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 12, 2015
               Plaintiff-Appellee,

v                                                                  No. 318964
                                                                   Kalamazoo Circuit Court
LARRY DARNELL SYKES,                                               LC No. 2013-001056-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his conviction for domestic assault,
second offense, MCL 750.81(3). The trial court sentenced defendant to six months in jail.
Because evidence regarding defendant’s other acts of domestic violence was properly admitted
under MCL 768.27b and MCL 768.27c, and defense counsel was not ineffective for failing to
object to this evidence, we affirm.

        On July 15, 2013, defendant assaulted his wife, Erica Sykes. In particular, defendant
awoke Sykes at 1:30 a.m. to ask her if she had slept with his cousin. When Sykes informed
defendant that his cousin had sexually assaulted her, defendant called her a “liar” and a “whore.”
He then pushed her on to the bed and began to strangle her with both hands around her neck such
that she could not breathe. Sykes attempted to kick defendant to stop the attack, but her efforts
were unsuccessful. Eventually, defendant stopped the physical assault. He continued to scream
at Sykes and he began to pack his belongings. But, before leaving the house, defendant spit in
Sykes’s face, yelled at her repeatedly, hit her in the face, pushed her against a wall, and pushed
her onto the bed where he began to choke her a second time. When he had finished the attack,
defendant took his belongings and left the home.

       Sometime before this incident, Sykes had been in a car accident as a result of which she
had two spinal stimulators implanted in her body to “override” her otherwise extensive physical
pain. Defendant’s assault moved the wires in Sykes’s body out of place, limiting the range of
motion in her neck and leaving her in pain. The morning after the assault, Sykes went to the
hospital where she learned she would need surgery on her neck as a result. In addition, her eyes
were swollen, she had ruptured blood vessels on her face, and she had bruising on the sides of
her neck and on her chin.



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       Sykes also went to the police station to report the incident. At the police station, Sykes
spoke with Officer Justin Cary, who testified at trial and described Sykes as distraught and in
apparent physical pain at the time of their conversation. He also observed bruising and redness
on Sykes’s face and neck. Following his conversation with Sykes, Officer Cary spoke with
defendant, who admitted to a confrontation the previous evening during which Sykes informed
him that she had been sexually assaulted by his cousin. Although defendant denied trying to kill
Sykes, he admitted to holding Sykes down by her shoulders.

        At trial, relying on MCL 768.27b and MCL 768.27c, the prosecutor introduced evidence
of other acts of domestic violence perpetrated by defendant. In particular, Jonette Purtha, who
had a son with defendant, testified that on the morning of September 9, 2010, after defendant
exited the shower, she and defendant had an altercation about Purtha brushing her teeth, during
which defendant threw her on the couch. Purtha testified that she did not remember all the
details of the entire assault, but she did recall that she “had a lot of bruises afterwards.” Later
that day, while they were driving in the car, defendant hit Purtha repeatedly and screamed at her.
Purtha reported the incident to police and, in particular, several hours after the incident she spoke
with Officer John Leonard, who also testified at trial regarding defendant’s assault on Purtha.
Officer Leonard testified that Purtha told him defendant attempted to choke her on the morning
of September 9, 2010. Purtha reported to Officer Leonard that she kicked defendant, and in
response defendant then kicked her, grabbed her, and “slam[med]” her around the room.
Consistent with her trial testimony, Purtha also told Officer Leonard that defendant repeatedly hit
her while they were driving. When he spoke with Purtha, Officer Leonard saw significant
bruising on her arms.

       Defendant testified in his own defense at trial. Regarding the incident with Sykes,
defendant maintained that he and Sykes had a confrontation in which she claimed to have been
sexually assaulted. Defendant found Sykes’s claim of sexual assault “odd” because she had not
reported the incident to the police. He admitted to being emotional during the encounter, but he
denied trying to intimidate the victim or harming her in anyway. He claimed Officer Cary
coerced him into stating that he held Sykes down by her shoulders. As noted, the jury convicted
defendant of domestic assault. Defendant now appeals as of right.

        On appeal, defendant first argues that his trial counsel was ineffective for failing to
challenge Purtha’s other-acts evidence admitted under MCL 768.27b. In particular, defendant
recognizes that, in a domestic violence trial, MCL 768.27b permits the introduction of prior acts
of domestic violence “for any purpose for which it is relevant.” Defendant maintains, however,
that Purtha did not have the best recall of the previous assault and that, as a result, she gave an
“incredibly murky account of the incident.” Given this “murky” account, defendant argues that
Purtha’s testimony was inadmissible because, pursuant to MRE 403, any probative value of
Purtha’s testimony was substantially outweighed by the danger of unfair prejudice, confusion of
issues, or the possibility of misleading the jury. It is defendant’s position that defense counsel
should therefore have objected to Purtha’s testimony, moved for its exclusion, and/or moved for
a mistrial.

       To establish a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish that (1) counsel’s performance fell below an objective standard of
reasonableness, and that (2) but for counsel’s error, there is a reasonable probability that the

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outcome of the defendant’s trial would have been different. People v Swain, 288 Mich App 609,
643; 794 NW2d 92 (2010). Counsel’s performance should be evaluated from his or her
perspective at the time of the alleged error, People v Grant, 470 Mich 477, 487; 684 NW2d 686
(2004), and a defendant must overcome a strong presumption that counsel’s performance was
sound trial strategy, People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). In particular,
decisions regarding whether to object to evidence are presumed to constitute questions of trial
strategy, People v Eliason, 300 Mich App 293, 303; 833 NW2d 357 (2013), “and this Court will
not second-guess defense counsel's judgment on matters of trial strategy,” People v Benton, 294
Mich App 191, 203; 817 NW2d 599 (2011). Moreover, counsel will not be considered
ineffective for failing to advocate a meritless position, People v Snider, 239 Mich App 393, 425;
608 NW2d 502 (2000), or for failing to offer a futile objection, People v Thomas, 260 Mich App
450, 457; 678 NW2d 631 (2004).

        In this case, the prosecutor offered Purtha’s testimony regarding a previous domestic
assault under MCL 768.27b(1), which, in relevant part, provides:

       [I]n 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.

Under this statute, the prior-bad-acts evidence is admitted to provide the jury with a “full and
complete picture of a defendant’s history,” in order “to shed light on the likelihood that a given
crime was committed.” People v Cameron, 291 Mich App 599, 610; 806 NW2d 371 (2011). In
particular, the other-acts evidence may be offered to show the defendant’s propensity to commit
a crime, even though, pursuant to MRE 404(b), other-acts evidence may not typically be used as
character evidence. People v Railer, 288 Mich App 213, 219-220; 792 NW2d 776 (2010);
People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007). To be admissible,
ordinarily, the previous acts of domestic violence must have occurred within 10 years of the
charged offense. MCL 768.27b(4). Moreover, by the statute’s plain terms, evidence of other
domestic assaults must be relevant and it must satisfy MRE 403. See Cameron, 291 Mich App
at 609-611.

        “‘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 401. For example, evidence of a defendant’s previous
acts of domestic violence is highly relevant to whether he or she would have a tendency to
commit subsequent acts of domestic violence, and such evidence may also be relevant to the
jury’s assessment of a victim’s credibility. See Cameron, 291 Mich App at 612; Railer, 288
Mich App at 220. Under MRE 403, “[a]lthough 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.” For purposes of MCL 768.27b, when weighing the
evidence under MRE 403, the propensity inference arising out of domestic violence testimony
weighs in favor of its probative value rather than its prejudicial effect. See People v Watkins,
491 Mich 450, 486-487; 818 NW2d 296 (2012). A court assessing other-acts evidence’s
admissibility under MRE 403, may also consider:

                                                -3-
       (1) the dissimilarity between the other acts and the charged crime, (2) the
       temporal proximity of the other acts to the charged crime, (3) the infrequency of
       the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
       evidence supporting the occurrence of the other acts, and (6) the lack of need for
       evidence beyond the complainant's and the defendant's testimony. [Watkins, 491
       Mich at 487-488.]

        In the present case, Purtha’s testimony was plainly admissible under MCL 768.27b, and
counsel did not render ineffective assistance by failing to object to the evidence or move for a
mistrial. To begin with, Purtha’s testimony related to an assault committed less than three years
before defendant’s attack on Sykes. This testimony was highly relevant because defendant’s
previous assault on Purtha gave rise to the inference that he had a propensity to commit acts of
domestic violence in the course of a disagreement, including specifically a propensity to
manhandle and hit women with whom he has had a romantic relationship. See Cameron, 291
Mich App at 612; Railer, 288 Mich App at 220. This propensity inference weighs in favor of
admitting Purtha’s testimony. See Watkins, 491 Mich at 496-487. Further, the fact that
defendant had previously committed such acts of violence tended to bolster Sykes’s credibility in
regard to her testimony about the current assault. See Pattison, 276 Mich App at 616.

       Given that the evidence in question was highly relevant, contrary to defendant’s
arguments on appeal, the probative value of the other-acts evidence was not substantially
outweighed by the danger of unfair prejudice or the possibility that Purtha’s testimony would
confuse the issues or mislead the jury. Purtha’s description of events was, when compared with
Sykes’s testimony, relatively brief and not nearly as violent. Cf. Railer, 288 Mich App at 220.
Certainly, Purtha’s description of defendant’s previous acts was not so graphic as to be
inflammatory or to otherwise interject extraneous considerations into the trial. See id.
Moreover, the trial court instructed the jury on the proper use of the other-acts evidence,
minimizing the prejudicial effect of the testimony. See Cameron, 291 Mich App at 612.

        Further, to the extent defendant specifically argues on appeal that, because Purtha
conceded she did not have the best memory of the assault, her testimony was “murky” and thus
inadmissible under MRE 403, his claim is without merit. Although Purtha acknowledged some
shortcomings in her memory surrounding the details of the assault, she plainly testified to what
she did recall, namely that, during an altercation, defendant threw her on the couch and later
struck her repeatedly while they were driving. It was these facts which were relevant to
defendant’s propensity to commit acts of domestic violence, and Purtha’s testimony to the facts
she did recall was in no way unfairly prejudicial, confusing, or misleading. This seems
particularly true given that Purtha reported the assault to Officer Leonard within several hours of
the incident and that, at trial, Officer Leonard testified to the substance of Purtha’s report to him.
Although Purtha’s report to Officer Leonard shortly after the incident proved slightly more
detailed, it coincided with the basic facts Purtha provided in her trial testimony. In other words,
given this supporting evidence, Purtha’s testimony does not appear unreliable and any
weaknesses in Purtha’s memory at the time of trial did not preclude the admission of her
testimony.

        On the whole, while Purtha’s testimony was obviously damaging to defendant’s position,
its relevance was not substantially outweighed by unfair prejudice, the risk of confusion, or the

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possibility of misleading the jury. See People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995),
mod 450 Mich 1212 (1995). The evidence was therefore admissible pursuant to MCL 768.27b.
Because the other-acts evidence was admissible under MCL 768.27b, any objection by defense
counsel or motion for a mistrial on this basis would have been futile, and defense counsel was
not ineffective for failing to advocate a futile position. See Thomas, 260 Mich App at 457.
Indeed, rather than pursue a meritless objection, defense counsel thoroughly cross-examined
Purtha regarding her memory problems. We see nothing deficient in counsel’s performance.

        Next, defendant argues that Officer Leonard’s testimony regarding Purtha’s statements to
him in 2010 was improperly admitted because the prosecution failed to provide the notice
required by MCL 768.27c. Defendant also asserts on appeal that defense counsel rendered
constitutionally ineffective assistance by failing to object to Officer Leonard’s testimony based
on this purported lack of notice.

       Purtha’s hearsay statements, as testified to by Office Leonard, were offered pursuant to
MCL 768.27c(1), which indicates that evidence of a statement by a declarant is admissible,
provided that:

       (a) The statement purports to narrate, describe, or explain the infliction or threat
       of physical injury upon the declarant.

       (b) The action in which the evidence is offered under this section is an offense
       involving domestic violence.

       (c) The statement was made at or near the time of the infliction or threat of
       physical injury. Evidence of a statement made more than 5 years before the filing
       of the current action or proceeding is inadmissible under this section.

       (d) The statement was made under circumstances that would indicate the
       statement's trustworthiness.

       (e) The statement was made to a law enforcement officer.

To offer the statement of a declarant into evidence under this provision, the prosecutor must
provide a defendant with notice pursuant to MCL 768.27c(3), which states:

       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.

        Considering the record in the present case, contrary to defendant’s arguments, we
conclude that the prosecutor complied with this notice provision and any objection to Officer
Leonard’s testimony by defense counsel based on a lack of notice would have been futile. In
particular, more than 15 days before trial, the prosecutor filed a notice of intent to introduce
other-acts evidence, which included reference to the police report authored by Officer Leonard.
The notice specifically informed defendant that the evidence to be introduced at trial would

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include “acts of violence against [Purtha], which were reported” in Officer Leonard’s police
report. More than 15 days before trial, the prosecutor also provided defendant with a copy of the
police report and filed a notice of further known witnesses, which named Officer Leonard.
Consequently, defendant had notice of the prosecutor’s intent to introduce other acts evidence
and he was specifically put on notice that Officer Leonard was a potential witness. Further, the
police report authored by Officer Leonard served as a “summary of the substance of any
testimony that is expected to be offered.” See MCL 768.27c(3).

        Despite this obvious notice of Officer Leonard’s prospective testimony, defendant
appears to believe he was entitled to a more detailed description of Officer Leonard’s testimony
before trial, including specifics regarding any hearsay statements that might be elicited during his
testimony. Contrary to defendant’s argument, we see no such requirement in MCL 768.27c(3),
which by its plain terms permits the prosecutor to provide “the statements of witnesses or a
summary of the substance of any testimony that is expected.” As noted, we are persuaded that
the police report authored by Officer Leonard, and specifically identified in the prosecutor’s
notice of intent, served as a summary of the substance of the expected testimony. In short, by
providing defendant with notice of the other-acts evidence it intended to offer more than 15 days
before trial, including notice of Officer Leonard’s police report, the prosecutor satisfied the
requirements of MCL 768.27c(3).1 Because we find that the provided notice was proper, we also
reject defendant’s ineffective assistance of counsel claim given that any challenge by defense
counsel on this basis would have been meritless. Thomas, 260 Mich App at 457.

         Finally, defendant argues that Purtha’s hearsay statements to Officer Leonard were
inadmissible under MCL 768.27c because they were untrustworthy. Defendant also maintains
that counsel provided ineffective assistance by failing to object to these hearsay statements and
to file a motion in limine for the exclusion of these statements.

        As listed above, MCL 768.27c(1) provides that five requirements must be met before a
hearsay statement to a law enforcement officer is admissible in domestic violence cases.
Defendant only challenges one requirement: whether the “statement was made under
circumstances that would indicate the statement’s trustworthiness.” MCL 768.27c(1)(d). When
assessing whether circumstances surrounding the statement are indicative of trustworthiness,
issues relevant to a court’s consideration include:

       (a) Whether the statement was made in contemplation of pending or anticipated
       litigation in which the declarant was interested.

       (b) Whether the declarant has a bias or motive for fabricating the statement, and
       the extent of any bias or motive.


1
  Defendant also argues that notice was improper under MRE 404(b)(2). We need not consider
these arguments, however, because MRE 404(b) has been superseded by statute in certain
domestic violence cases, and the admissibility of the other-acts evidence in this case is thus
governed instead by MCL 768.27b and MCL 768.27c. See Watkins, 491 Mich at 476-477;
People v Mack, 493 Mich 1, 3; 825 NW2d 541 (2012).


                                                -6-
       (c) Whether the statement is corroborated by evidence other than statements that
       are admissible only under this section. [MCL 768.27c(2).]

Although these factors have been identified as relevant to the assessment of trustworthiness, they
are not considered an exhaustive list, and a lack of proof regarding these factors does not
necessarily require exclusion of a hearsay statement. People v Meissner, 294 Mich App 438,
449; 812 NW2d 37 (2011).

        In this case, considering the three factors in turn, first, defendant offers no suggestion that
Purtha made statements to Officer Leonard in anticipation of litigation, or that, second, Purtha
had a bias or motive for fabricating her statements to Officer Leonard. Instead, regarding the
third factor, defendant has only argued on appeal that Purtha’s statements were
“uncorroborated.” See MCL 768.27c(2)(c). This argument lacks merit, however, given that
Officer Leonard testified that he observed significant bruising on Purtha’s arms, which
corroborated her report of domestic violence. Cf. Meissner, 294 Mich App at 449. Insofar as
defendant maintains the trustworthiness of Purtha’s 2010 statements is undercut by her memory
problems, we note that Purtha made her statements to Officer Leonard within hours of the assault
and that Officer Leonard testified that, when he spoke to Purtha, Purtha did not appear to have
difficulty recalling the attack. Further, Purtha testified at trial. Although she had memory
problems, she was able to recall some details of the prior assault, which corroborated her
statements made to Officer Leonard in 2010. Cf. id. In these circumstances, the hearsay
statements in question were sufficiently trustworthy to merit admission under MCL 768.27c(1),
and defense counsel was not ineffective for failing to raise a futile objection or motion. See
Thomas, 260 Mich App at 457.

       Affirmed.



                                                               /s/ Michael J. Kelly
                                                               /s/ William B. Murphy
                                                               /s/ Joel P. Hoekstra




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