                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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

v                                                                   No. 318699
                                                                    Barry Circuit Court
CHAD DAVID CURTIS,                                                  LC Nos. 12-100122-FH;
                                                                    LC Nos. 12-100177-FH
               Defendant-Appellant.


Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

       Defendant appeals by right his convictions following a consolidated trial on the charges
brought in these two lower court files. In docket no. 12-100122-FH, the trial court sentenced
defendant to imprisonment of 71 to 180 months and 85 to 180 months for two counts of second-
degree criminal sexual conduct, MCL 750.520c(1)(b), 85 to 180 months imprisonment for his
conviction of third-degree criminal sexual conduct, MCL 750.520d(1)(e), and 16 to 24 months
imprisonment for two convictions of fourth-degree criminal sexual conduct, MCL
750.520e(1)(f). In docket no. 12-100177-FH, the trial court sentenced defendant to 71 to 180
months imprisonment for his conviction of second-degree criminal sexual conduct. We affirm.

        Defendant was a substitute teacher at Lakewood High School. He also volunteered in the
weight room. The victims, M.K., K.S., and T.H., were students who used the weight room at
Lakewood High School. At different times, defendant took each of the three victims to the
school’s training room. M.K. testified that she went to the training room with defendant in the
summer of 2011 to do hip flexor exercises. On one visit, defendant suggested that he give her a
body massage. During the massage, defendant pulled up M.K.’s sports bra and rubbed her
breasts. On another visit, this one on Labor Day, defendant pulled up M.K.’s sports bra and
kissed her right nipple, while also penetrating her vagina with his finger. T.H. testified that she
went to the training room with defendant after she had performed some squats and defendant
said that something looked wrong with her hips. In the training room, defendant lowered her
sweatpants, moved her underwear, and rubbed her butt.

         K.S. testified that she went to the training room on two days with defendant to do some
exercises. On the first day, defendant rubbed her groin, and his hands went underneath the


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spandex of her shorts. On the second day, defendant rubbed K.S.’s groin and the sides of her
butt.

        Two other teenagers also testified about defendant’s actions. D.K. testified that on
numerous occasions defendant asked her to come into an office in the weight room with him; he
then rubbed lotion on her body. On her legs, he rubbed up to her underwear line. A.L. testified
that one day when she was baby-sitting for defendant’s two youngest children and got
sunburned, defendant rubbed aloe on her body. He rubbed it on her legs, going up to her
underwear line, and on her stomach, going up to her bra. He also rubbed aloe under her bra
straps.

                         I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant claims that he was denied the effective assistance of counsel when counsel did
not object to the trial court’s failure to instruct the jury about his right not to testify, to the trial
court’s inconsistent manner of instructing the jury before each recess, and to the prosecutor’s
misconduct during closing and rebuttal arguments. Because no evidentiary hearing was held, our
review is limited to the facts on the record. People v Wilson, 242 Mich App 350, 352; 619
NW2d 413 (2000). Whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v Armstrong, 490 Mich 281,
289; 806 NW2d 676 (2011). We review the trial court’s factual findings for clear error and its
constitutional determinations de novo. Id. “Clear error exists if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” Id.

        To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below objective standards of reasonableness and that, but for
counsel’s deficient performance, there is a reasonable probability that the result of the
proceedings would have been different. Id. at 289-290. A reasonable probability is one
“sufficient to undermine confidence in the outcome,” Strickland v Washington, 466 US 668, 694;
104 S Ct 2052; 80 L Ed 2d 674 (1984), which “need not rise to the level of making it more likely
than not that the outcome would have been different,” People v Grant, 470 Mich 477, 486; 684
NW2d 686 (2004).

        Defendant requests that if we do not grant him a new trial on his claims for ineffective
assistance of counsel, we remand for an evidentiary hearing to allow him to establish a record of
the facts that support a claim for ineffective assistance of counsel. See People v Ginther, 390
Mich 436, 443-444; 212 NW2d 922 (1973). Defendant makes no argument that the trial court
abused its discretion in denying his request for an evidentiary hearing. See People v Unger, 278
Mich App 210, 216-217; 749 NW2d 272 (2008). Moreover, defendant does not state what facts
need to be developed to support his claims. We deny the request.

                                                   A.

        Defendant argues that defense counsel was ineffective for not requesting that the trial
court instruct the jury that he had a right not to testify and that the jury could not consider the
fact that he did not testify, see M Crim JI 3.3. On the last day of trial, after defendant informed
the trial court that he would not testify, the court addressed defendant, indicating that it knew

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defendant was aware from defense counsel that it would instruct the jury about his right not to
testify. Defendant agreed with the trial court’s statement. The trial court’s instructions to the
jury, however, did not include M Crim JI 3.3. At a bench conference at the conclusion of the
instructions, the trial court was informed that it had failed to instruct the jury about the evidence
of defendant’s character. It then gave the instruction on character evidence. At the hearing on
defendant’s second motion for a new trial, the trial court concluded that defense counsel’s failure
to request at the bench conference that the jury be instructed about defendant’s right not to testify
was trial strategy.

        To show that counsel’s performance fell below objective standards of reasonableness, a
defendant must overcome the strong presumption that counsel’s decisions constituted sound trial
strategy. Armstrong, 490 Mich at 290. Counsel is given wide discretion in matters of trial
strategy because counsel may be required to take calculated risks to win a case. Unger, 278
Mich App at 242. A court will not second-guess counsel on matters of trial strategy, nor will it
assess counsel’s competence with the benefit of hindsight. Id. at 242-243. The failure to request
a cautionary instruction may be consistent with trial strategy. See, e.g., Lakeside v Oregon, 435
US 333, 339-340; 98 S Ct 1091; 55 L Ed 2d 319 (1978).

        A defendant has a constitutional right against self-incrimination. US Const, Am V; Const
1963, art 1, § 17; People v Bassage, 274 Mich App 321, 324; 733 NW2d 398 (2007). The
purpose of an instruction that a defendant has a right not to testify and that a jury may not
consider the fact that a defendant did not testify is “to remove from the jury’s deliberations any
influence of unspoken adverse inferences.” Lakeside, 435 US at 339. But such an instruction is
not mandatory, unless requested by the defendant. Id. at 340; People v Hampton, 394 Mich 437,
438; 231 NW2d 654 (1975). This Court has recognized that some attorneys prefer that the
instruction not be given. People v Abernathy, 29 Mich App 558, 561; 185 NW2d 634 (1971).

         The trial court’s conclusion that defense counsel’s failure to request the instruction about
defendant’s right not to testify was trial strategy at the bench conference is contrary to what
defense counsel said at the hearing on defendant’s first motion for new trial. The trial court did
not accept defense counsel’s statement as true because it believed no “seasoned attorney” who
had been practicing law for more than 40 years could miss the absence of the instruction. But,
just as inexperience is not enough to conclude that counsel acted deficiently, People v Kevorkian,
248 Mich App 373, 415-416; 639 NW2d 291 (2001), neither is experience alone enough to
conclude that defense counsel’s actions were not deficient. Based on the record before this
Court, we conclude that the trial court clearly erred in finding that defense counsel’s failure to
request an instruction about defendant’s failure to testify at the bench conference was trial
strategy.

        We also conclude that defense counsel’s failure to object to the omission of the
instruction fell below objective standards of reasonableness. Id. The trial court stated that it
would read an instruction to the jury informing it that defendant had an absolute right not to
testify. Thus, the expectation was that the jury would be instructed about this right. Yet, defense
counsel did not make sure the instruction was given. In addition, defendant was the only person
that could have provided an alternative explanation for what happened in the training room with
the three victims. As explained by the United States Supreme Court, a person’s natural reaction
to a defendant’s invocation of the right against self-incrimination is that declining to testify

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constitutes a clear confession of crime. See Lakeside, 435 US at 340 n 10. None of the other
jury instructions specifically explained that the jury was prohibited from making an adverse
inference from defendant’s exercise of his right not to testify. Moreover, counsel admitted that
he erred in not ensuring that the instruction was given.

         Nonetheless, there is no reasonable probability that the result of the proceedings would
have been different had the jury been instructed as to defendant’s right not to testify. Armstrong,
490 Mich at 290. Although the jury was not specifically instructed that it could not consider the
fact that defendant did not testify, it did receive instructions that precluded it from considering
this fact. The court instructed the jury as to the prosecutor’s and the defendant’s respective
burdens, i.e., that the prosecutor was required to prove all the elements of the crime beyond a
reasonable doubt and that defendant was not required to prove his innocence or do anything The
jury was correctly instructed as to what it could consider in deciding defendant’s guilt: the
evidence, which only included the witnesses’ sworn testimony, the admitted exhibits, and
anything else the trial court said was evidence. The trial court never informed the jury that
defendant’s failure to testify was evidence. A jury is presumed to follow its instructions. People
v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Additionally, neither the trial court nor
the prosecutor commented on defendant’s failure to testify.1 Further, the testimony showed a
common plan, scheme, or system used by defendant—defendant’s touching intimate areas of
female teenagers while massaging or rubbing their bodies. Moreover, it is reasonable to infer
that defendant touched the victims’ intimate parts for sexual purpose when considered with the
additional facts that defendant apologized to M.K. and A.L., similarly commenting to both of
them about being unfaithful to his wife, and that the training room used was generally locked and
had no windows or a video camera. Under these facts, defense counsel’s deficient performance
in not objecting to the trial court’s failure to specifically instruct the jury that it could not
consider the fact that defendant did not testify does not undermine confidence in the outcome of
the trial. Strickland, 466 US at 694. In sum, we cannot conclude that defendant was prejudiced
by counsel’s deficient performance.

                                                 B.

        Defendant also argues that defense counsel was ineffective for failing to object when the
trial court did not consistently instruct the jurors before each recess that they were not to discuss



1
  In Part I.C., defendant argues that the prosecutor improperly commented on his failure to testify
when he remarked that no witness contradicted the testimony of the five girls in a meaningful
way. But, as discussed infra, the remark was a proper comment on the weakness of the defense
witnesses’ testimony. Defendant also argues that on “no less than thirteen occasions, the
prosecution declared that no evidence had been presented to cast doubt” on the testimony of the
five girls. Defendant claims by this argument that the prosecutor vouched for the credibility of
the five girls and appealed to the jury’s sympathy. As will be explained, infra, we find that the
prosecutor’s comments were proper argument as to the five girls’ credibility. Defendant presents
no legal authority to support that the prosecutor’s remarks on the “thirteen occasions” should be
viewed as comments on his failure to testify.


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the case with anyone, see M Crim JI 2.12, and that they were not to read, listen to, or watch any
news reports about the case, see M Crim JI 2.14. Although the parties rely heavily on the “use
notes” to the instructions to the support their positions, it was not mandatory to use the model
criminal jury instructions at the time of defendant’s trial, and they cannot be binding authority.
People v Williams, 288 Mich App 67, 76 n 6; 792 NW2d 384 (2010). Because the instructions
were not binding authority, we find that the use notes also were clearly not binding authority.

        During preliminary instructions, after the jury was selected, the jurors were instructed
that they were not to discuss the case with anyone. This instruction was not repeated until the
third day of trial, when it was given three times. The instruction was also given at the end of the
fourth day of trial and before a morning break on the fifth day of trial. Defense counsel’s
performance did not fall below objective standards of reasonableness when he did not object to
the trial court’s failure to instruct the jury that they were not to discuss the case with anyone
before every recess. Before the jurors heard any testimony, they were aware that they were not
allowed to discuss the case with anyone. They were reminded of this prohibition several times
throughout trial. Perhaps the very best course of action for defense counsel may have been to
request the instruction at each recesses, but the question whether counsel’s performance was
deficient is not whether it deviated from best practices or most common custom, Premo v Moore,
562 US 115, ___; 131 S Ct 733, 740; 178 L Ed 2d 649 (2011). The issue is whether counsel’s
omissions were outside the range of professionally competent assistance, Strickland, 466 US 668
at 690. Because the jurors were informed of their obligation not to speak to anyone about the
case before they heard any testimony, and because jurors are presumed to follow their
instructions, Graves, 458 Mich at 486, defense counsel’s performance in not objecting to the trial
court’s failure to give the instruction at every recess did not fall outside the range of
professionally competent assistance or result in prejudice to defendant. Armstrong, 490 Mich at
290.

        The jurors were also instructed during preliminary instructions that they were not to read,
listen to, or watch any news reports about the case. This instruction was repeated at the end of
the first, second, third, and fourth days of trial, and before a break on the second day of trial.
Thus, the jurors were well aware of their obligation not to read, listen to, or watch any news
reports about the case. They are presumed to have followed the instruction. Under these
circumstances, defense counsel’s performance in failing to require that the jurors be instructed
about their obligation to avoid news reports about the case before every recess did not fall below
objective standards of reasonableness or result in prejudice to defendant. Id.

                                                C.

        Defendant claims that the prosecutor repeatedly vouched for the credibility of the five
girls during closing and rebuttal arguments and that defense counsel was ineffective for failing to
object to the improper remarks. A prosecutor may not vouch for the credibility of a witness nor
suggest that the government has special knowledge that a witness is testifying truthfully. People
v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). But a prosecutor may argue from the
evidence and the reasonable inferences that a witness is credible. Id.; People v Bennett, 290
Mich App 465, 478; 802 NW2d 627 (2010). The prosecutor’s challenged remarks are examined
in context. Id. at 475.


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        The credibility of the five girls was at issue. Indeed, one aspect of the defense was that
the five girls were not credible. Having reviewed the alleged improper remarks in context, we
conclude that the prosecutor did not vouch for the girls’ credibility. The prosecutor never stated
his personal opinion regarding their honesty; he argued that the five girls were credible based on
the evidence presented and the emotions and demeanors they displayed: Specifically, the points
he made were in respect to the lack of evidence regarding any motive for the five girls to lie,
testimony regarding how the girls were treated at school after they spoke with the detective, the
specific details they provided about defendant’s conduct, the similarity of statements defendant
made to different girls, and his observations of the emotions and demeanors of the girls when
they testified. Because a prosecutor may argue from the evidence that witnesses are credible, we
conclude from our review of the record that the prosecutor’s comments were not improper, and
any objection to them would have been futile. Defense counsel was not ineffective for failing to
make futile objections. Unger, 278 Mich App at 256-257.

        Defendant also claims that the prosecutor appealed to the jury to sympathize with the five
girls when he remarked on the consequences the girls suffered after making their disclosures and
that defense counsel was ineffective for failing to object. A prosecutor may not appeal to the
jury to sympathize with the victims. Unger, 278 Mich App at 237.

        In the alleged improper remark, the prosecutor told the jury that after disclosing the
incidents involving defendant, the five girls suffered “consequences” and “horrible effects,”
which included being bullied at school, losing friends, and having to testify in front of the jury
and defendant about private things and embarrassing details. When read in context, the
prosecutor’s remark was not an appeal for sympathy. Before the remark, the prosecutor told the
jury that they needed to decide the credibility of the five girls, and one factor in determining a
witness’s credibility is to look at whether the witness had a reason to lie. The prosecutor then
argued that because of the consequences and horrible effects that ensued from their disclosures,
the five girls had no reason to lie. The prosecutor was arguing, based on the evidence, that the
five girls were credible. The prosecutor’s remark was proper, Bennett, 290 Mich App at 478;
Howard, 226 Mich App at 548, and any objection to it would have been futile. Defense counsel
was not ineffective for failing to raise a futile objection. Unger, 278 Mich App at 256-257.

       Additionally, defendant claims that defense counsel was ineffective for failing to object
when the prosecutor referred to the testimony of the five girls as “uncontradicted.”2 The
prosecutor argued:

                Proof of his guilt can be found from his witnesses, too. No one who
       testified had any personal knowledge of anything that happened in that training
       room with those girls. No single witness contradicted anything the girls said in
       any real meaningful way at all. No single witness even mentioned [A.L.] or
       remotely questioned her testimony.


2
 Although defendant claims that the prosecutor “repeatedly” referred to the testimony of the five
girls as “uncontradicted,” he only provides us with one citation to the prosecutor’s closing
argument.


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According to defendant, the remark impinged on his constitutional right to remain silent.

       A prosecutor is not permitted to comment on a defendant’s failure to testify. People v
Guenther, 188 Mich App 174, 177; 469 NW2d 59 (1991). No one other than defendant could
have provided testimony that contradicted the testimony of the five girls regarding what
happened when the charged touching occurred. But this Court has held that a prosecutor’s
argument that the evidence was uncontroverted or undisputed is not an improper comment on the
defendant’s right not to testify even if the defendant was the only person who could have
provided contradictory testimony. Id.; see also People v Fyda, 288 Mich App 446, 464; 793
NW2d 712 (2010). Our Supreme Court has also concluded that a prosecutor may observe that
the evidence against the defendant is uncontroverted or undisputed even if the defendant is the
only one who could have contradicted the evidence. People v Fields, 450 Mich 94, 115; 538
NW2d 356 (1995). The propriety of such a comment is dictated by the defense asserted. Id. at
115-116. “When a defense makes an issue legally relevant, the prosecutor is not prohibited from
commenting on the improbability of the defendant’s theory or evidence.” Id. at 116.

        We conclude that the prosecutor’s remark was not improper. Defendant presented
numerous witnesses at trial. Several of his witnesses testified that he had a reputation as being a
law-abiding citizen, a truthful and honest person, and a sexually moral man. Other witnesses,
who were past and former students at Lakewood High School, testified that they saw no
inappropriate behavior by defendant. The prosecutor did not specifically state that the testimony
of the five girls was uncontradicted. Rather, he stated that because none of defendant’s
witnesses had any personal knowledge about anything that happened in the training room, the
testimony of defendant’s witnesses did not meaningfully contradict anything the five girls said.
Viewed in context, we conclude that the prosecutor’s remark was a comment on the weakness of
the evidence defendant presented. Fields, 450 Mich at 116. Because the prosecutor’s remark
was proper, defense counsel was neither ineffective for failing to object to it nor required to
futilely object. Unger, 278 Mich App at 256-257.

                             II. RIGHT TO PRESENT A DEFENSE

        Defendant argues that the trial court denied him his right to present a defense when it
excluded testimony from a fellow student that D.K. had falsely claimed that she was kissed by
her soccer coach and when it prevented him from asking M.K. about a statement she made to the
detective that D.K. had “cried wolf” before. He argues that his right to present a defense was
further restricted when the trial court precluded Katherine Keefer Okla, an expert witness, from
testifying about specific conduct of the three victims. Defendant’s constitutional claim is
unpreserved because it was not presented to the trial court. See People v Metamora Water Serv,
Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). We review unpreserved claims of
constitutional error for plain error affecting the defendant’s substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).

        A criminal defendant has a constitutional right to present a complete defense. People v
King, 297 Mich App 465, 473; 824 NW2d 258 (2012). Few rights are more fundamental than
the right of a defendant to present evidence in his own defense. Unger, 278 Mich App at 249.



                                                -7-
         Regardless whether the trial court erred in excluding any evidence, defendant was not
clearly and obviously denied his right to present a defense. The defense was generally two-
pronged: (1) the five girls were lying or mistaken about what occurred, and (2) defendant did not
touch them for a sexual purpose. Through both the direct testimony of his witnesses and the
cross-examination of the prosecution’s witnesses, defendant presented the two prongs of his
defense to the jury. Defendant’s witnesses included: (1) past and present students at Lakewood
High School who testified that they saw no inappropriate conduct by defendant; (2) people who
had known defendant for several years and testified that defendant had a reputation as a law-
abiding citizen, an honest and trustworthy person, and a sexually moral man; (3) Candace Love,
an expert in certified massage, who testified that she would rub a client’s gluteal region if the
client complained of soreness in the knee or lower back; and (4) Okla, whose testimony on
general principles regarding adolescent psychology, forensic interview techniques, patterns of
disclosure, and memory and suggestibility suggested that actions of the five girls were not
consistent with those of people who were abused and that their memories may have been
influenced and changed. In addition, on cross-examination of other witnesses, defendant elicited
testimony that highlighted actions by the five girls that may be seen as inconsistent with their
being abused by defendant. For example, M.K. had been playful with defendant after Labor Day,
and there were other inconsistencies between prior statements the five girls had given and their
trial testimony. He also elicited testimony from N.B., a student at Lakewood High School, that
defendant did not appear shocked when N.B. walked into the training room and saw him and
K.S., as well as from Brian Williams, the principal of Lakewood High School, that T.H. did not
appear distressed when he walked into the training room and saw defendant and T.H. The
excluded evidence went to the two aspects of the defense. Because defendant presented
evidence that would have provided him a complete defense if believed and accepted by the jury,
defendant was not denied his right to present a defense. King, 297 Mich App at 474. The
exclusion of the evidence at issue, even if erroneous, did not result in a plain violation of
defendant’s constitutional right. Carines, 460 Mich at 763.

                                        III. SENTENCING

        Defendant argues that his sentences are invalid pursuant to Alleyne v United States, 570
US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013) because the facts that the trial court used to
score offense variables 4, 8, and 10 were not submitted to the jury and proved beyond a
reasonable doubt. This Court has held that Alleyne does not apply to Michigan’s sentencing
guidelines. People v Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013). We are required
to follow the Herron holding. MCR 7.215(J)(1). Defendant is not entitled to be resentenced.

                                   IV. CUMULATIVE ERROR

         Defendant claims that the cumulative effect of defense counsel’s deficient performance
throughout trial and the trial court’s deprivation of his right to present a defense entitles him to a
new trial. “The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal, but the cumulative
effect of the errors must undermine the confidence in the reliability of the verdict before a new
trial is granted.” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). Only actual
errors are aggregated to determine their cumulative effect. People v Rice (On Remand), 235


                                                 -8-
Mich App 429, 448; 597 NW2d 843 (1999). In this case, we find that there is no cumulative
effect of errors meriting reversal. Id.

      We affirm.

                                                      /s/ Peter D. O'Connell
                                                      /s/ David H. Sawyer
                                                      /s/ Jane E. Markey




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