                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 20, 2018
              Plaintiff-Appellee,

v                                                                 No. 335374
                                                                  Genesee Circuit Court
HARRY DOUGLAS NELSON,                                             LC No. 16-039127-FH

              Defendant-Appellant.


Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

PER CURIAM.

       Defendant, Harry Nelson, appeals as of right his jury trial convictions of second-degree
criminal sexual conduct (CSC-II) (person under 13 years of age), MCL 750.520c, and accosting
a child for immoral purposes, MCL 750.145a. Nelson was sentenced, as a fourth-offense
habitual offender, MCL 769.12, to 25 to 40 years’ imprisonment for CSC-II, and 48 to 180
months’ imprisonment for accosting a child for immoral purposes. Because there are no errors
warranting relief, we affirm.

                                      I. BASIC FACTS

       On February 28, 2016, Nelson visited his daughter’s home. At one point, Nelson’s
daughter left the home to pick up food. Nelson’s granddaughter, the victim, testified that after
her mother left, Nelson walked into the living room, removed his glasses and teeth, knelt down
on the floor by her, and pushed her legs apart with his hands. She stated that Nelson held her
hands down so she could not move and then started kissing over her vaginal area with his tongue.
She was wearing sweatpants at the time, and forensic testing confirmed that Nelson’s saliva was
located on the crotch area of her pants. The victim stated that Nelson told her he would stop if
she kissed him, but she refused. She testified that when she stood up from the couch, Nelson
slapped her buttocks with his hand. She went upstairs, locked herself in her bedroom, and called
her mother to tell her what happened.

       When the victim’s mother learned what happened, she was shaking too much to drive so
a couple of friends drove her home. She entered the home while on the phone with 911. She
also had a handgun on her hip. While the victim recounted what had occurred, her mother and
Nelson got into an argument. The testimony reflects that Nelson repeatedly apologized and
asked the victim’s mother not to be upset. The argument, however, became physical and the
victim’s mother pointed her gun at Nelson to stop him from talking. The 911 operator instructed
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the victim’s mother to place her firearm in a safe, and while she was putting the gun away,
Nelson left the house and ran to a nearby fire station. The victim’s mother pursued Nelson to the
fire station and a physical altercation continued.

        When the responding police officer arrived, Nelson was sitting on the ground and the
victim’s mother was yelling at him. Nelson was placed in the back of a police car. The
responding officer testified that he did not observe any bruising or bleeding on Nelson, and he
stated that he found Nelson to be coherent.

        Around 2:00 a.m., Nelson was interviewed at the police station. Before giving a
statement, a police officer read him his Miranda 1rights while he read along on a separate piece
of paper. Thereafter, he acknowledged each of the rights contained on the Miranda waiver form
and signed the form. He then gave statements to the police, including that he tickled the victim’s
inner thighs, that the victim put him in a headlock with her legs, and that he may have felt a
sexual urge for a brief moment. Nelson also admitted that he pulled the victim’s legs apart and
put his mouth toward her vagina, although he maintained that he never wanted to actually touch
her vagina. Nelson also stated that he intended to smack the back of the victim’s legs as she
stood, but that he possibly hit her buttocks. At the end of the interview, the police officer drafted
a written statement for Nelson to sign. Nelson corrected one statement, changing the statement
that he put his mouth “on” the victim’s vagina to a statement that he put his mouth “near” the
victim’s vagina. He then signed the statement as the true and correct account of the events.

                              II. INVOLUNTARY CONFESSION

                                  A. STANDARD OF REVIEW

        Nelson first argues that his statement to the police should have been suppressed because
it was not voluntary. This issue was not raised below, so it is unpreserved. We review an
unpreserved constitutional error under the plain error standard. People v Shafier, 483 Mich 205,
211; 768 NW2d 305 (2009). Under the plain error standard, the defendant must satisfy three
requirements: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3)
the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999). The third prong requires the defendant to establish that the error affected the
outcome of the lower court proceedings. People v Borgne, 483 Mich 178, 196; 768 NW2d 290
(2009). Even if all three requirements are met, reversal is only warranted when the plain,
forfeited error resulted in an innocent defendant’s conviction, or it “seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Carines, 460 Mich at 763
(quotation marks and citation omitted).




1
    Miranda v Arizona, 384 US 436; 86 S C t 1602; 16 L Ed 2d 694 (1966).


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                                         B. ANALYSIS

        A statement is voluntary if the totality of all the surrounding circumstances shows that it
is the product of an essentially free and unconstrained choice and not the result of an overborne
will. People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988).

               In determining whether a statement is voluntary, the trial court should
       consider, among other things, the following factors: the age of the accused; his
       lack of education or his intelligence level; the extent of his previous experience
       with the police; the repeated and prolonged nature of the questioning; the length
       of the detention of the accused before he gave the statement in question; the lack
       of any advice to the accused of his constitutional rights; whether there was an
       unnecessary delay in bringing him before a magistrate before he gave the
       confession; whether the accused was injured, intoxicated or drugged, or in ill
       health when he gave the statement; whether the accused was deprived of food,
       sleep, or medical attention; whether the accused was physically abused; and
       whether the suspect was threatened with abuse. [Id. at 334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness,” id., and no single factor is determinative, People v Tierney, 266 Mich App 687,
708; 703 NW2d 204 (2005). The ultimate test of admissibility is whether the totality of the
circumstances indicates that the statement was freely and voluntarily made. Cipriano, 431 Mich
at 334. The legal analysis on whether a statement is voluntary, is “essentially the same with
respect to examining the ‘voluntary’ prong of a Miranda waiver.” People v Ryan, 295 Mich App
388, 397; 819 NW2d 55 (2012).2

        Nelson contends that his statement was involuntary because he was 65 years old, only
had a ninth grade education, and had heart problems. He further asserts that during the interview
he complained of fatigue and an ailing heart, and he mumbled at the end of the interview.
Finally, he finds it significant that that his daughter, the victim’s mother, pointed a gun at his
head just prior to the interview. However, on the record before this Court, those facts are
insufficient to establish plain error. See Carines, 460 Mich at 763.

       Nelson was sentenced as a fourth-offense habitual offender, which indicates that he has
experience with legal proceedings. Further, at the beginning of the interview, he stated he knew
what Miranda rights are, but had not yet been advised of his rights. Nelson then read to himself
his Miranda rights while a police officer read them aloud. When asked about each individual
Miranda right, he verbally responded that he understood the rights and then signed a Miranda
form indicating the same.         Thereafter, throughout the interview, he never expressed
unwillingness to talk to the police or a desire to end the interview. Further, the interview took
place shortly after the alleged assault and only lasted for about an hour and 18 minutes. Nelson


2
  Nelson does not challenge the voluntariness of his Miranda waiver. As such, despite the
prosecution’s invitation to do so, we will not address this issue further.



                                                -3-
was coherent when he answered the police officer’s questions about his age, date of birth,
highest level of education, and his ability to read and write. Nelson clearly stated that he was not
under the influence of drugs or alcohol, and that he could understand the police officer.
Although Nelson told the officer that he had lung and heart problems, Nelson also said that his
health issues did not affect his mental capabilities. The police officer found Nelson coherent and
not under the influence of drugs or alcohol. Further, the officer did not believe that Nelson
required medical attention as he did not appear to be bruised or bleeding. Nelson never
requested medical attention, nor is there any evidence on the record suggesting that medical
attention was, in fact, required. Viewed in context, there was no indication that Nelson’s
statements that his “heart hurts” was indicative of physical heart pain. And the record reflects
that after the interview, the police officer drafted a written statement which he then went over
with Nelson. Nelson made one significant change to the statement and then signed it as a true
and accurate account of what had happened. There is no evidence on the record that Nelson was
deprived of food, sleep, or medical attention. Further, there is no indication that the police
threatened him with physical abuse or actually physically abused him. Thus, based on the
totality of the circumstances, Nelson’s statement appears to be the product of a free and
unconstrained choice. As such, Nelson cannot establish plain error warranting reversal on this
basis.

                               III. INEFFECTIVE ASSISTANCE

                                 A. STANDARD OF REVIEW

        Nelson’s trial lawyer did not move to suppress Nelson’s statements to the police, nor did
he object to the admission of the police interview at trial. Nelson argues that his lawyer provided
ineffective assistance by failing to move to suppress it. In the absence of a Ginther3 hearing,
“our review of the defendant’s claim of ineffective assistance of counsel is limited to mistakes
that are apparent on the record.” People v Mack, 265 Mich App 122, 125; 695 NW2d 342
(2005).

                                         B. ANALYSIS

        In order to establish error warranting relief, Nelson must show that his lawyer’s decision
fell below an objective standard of reasonableness under prevailing professional norms and that
there is a reasonable probability that, but for the unprofessional error, the outcome of his trial
would have been different. People v Gioglio (On Remand), 296 Mich App 12, 21-22; 815
NW2d 589 (2012), remanded for resentencing 493 Mich 864. A defendant’s lawyer is presumed
to be effective, and the defendant bears a heavy burden to demonstrate otherwise. People v
Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). Here, Nelson argues his lawyer was
ineffective for failing to move to suppress his confession on the grounds that it was involuntary.
However, given that there is no evidence that the statement was, in fact, involuntary under the
totality of the circumstances, Nelson cannot establish this his lawyer’s performance was



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


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deficient. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that a
defense lawyer is not required to advocate a meritless position).

       Moreover, assuming arguendo that if Nelson’s lawyer had moved and succeeded in
suppressing Nelson’s statement to the police, Nelson still cannot establish the prejudice prong to
his ineffective assistance claim. The victim testified unequivocally that Nelson kissed her
vaginal area over her clothes. There was forensic evidence corroborating that Nelson’s saliva
was on the crotch area of her pants. The victim immediately reported the incident and was
crying and upset by it. There was testimony that Nelson apologized for what happened and
urged the victim’s mother not to be upset by it. Thus, even in the absence of his statements,
there was overwhelming evidence on the entire record in support of his convictions. Nelson was
not denied the effective assistance of a lawyer.

        Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter




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