                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 24, 2016
               Plaintiff-Appellee,

v                                                                  No. 323054
                                                                   Berrien Circuit Court
DAVID ALAN DAILY,                                                  LC No. 2013-016562-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and WILDER and BECKERING, JJ.

PER CURIAM.

       Following a jury trial, defendant, David Daily, was convicted of three counts of second-
degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a). The trial court sentenced
defendant as a second-offense habitual offender, MCL 769.10, to 88 to 270 months’
imprisonment for each conviction. Defendant appeals as of right. We affirm.

         From 2006 to 2008, the victim’s mother lived with defendant in Niles, Michigan. The
victim, SV, visited her mother every weekend. The victim’s mother worked weekends, and she
left SV with defendant. SV testified that, almost every weekend when her mother was at work,
defendant touched her. The sexual abuse was unknown until March 2013, when SV’s brother
found a letter, hidden in a notebook under SV’s bed, that SV had written to her school counselor.
At trial, SV testified about three specific instances when defendant rubbed her vagina. She also
testified that defendant committed similar acts on over 100 occasions.

                                     I. EXPERT TESTIMONY

        Defendant argues that Brooke Rospierski, who was qualified as an expert in child sexual
abuse, gave an opinion on the credibility of SV when she testified that SV made a disclosure and
that the circumstances of SV’s disclosure were consistent with disclosures of child sexual abuse
victims. We review this unpreserved claim of evidentiary error for plain error affecting
defendant’s substantial rights. People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).

       Rospierski testified that children often delay disclosing sexual abuse for months or years.
She testified that disclosure is often a long process, and that children tell more of the story as
time passes. Rospierski testified that she interviewed SV, and that SV made a “disclosure” to



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her. In Rospierski’s opinion, the circumstances of the disclosure were consistent with
disclosures of sexual abuse victims.

         In People v Peterson, 450 Mich 349; 537 NW2d 857 (1995), our Supreme Court
addressed the proper scope of expert testimony in child sexual abuse cases. An expert may not
testify that the sexual abuse occurred, may not vouch for the veracity of the victim, and may not
testify whether the defendant is guilty. Id. at 352, 369. An expert may testify regarding typical
symptoms of child sexual abuse for the purpose of explaining the victim’s specific behavior that
might be incorrectly construed by the jury as inconsistent with that of an abuse victim or to rebut
an attack on the victim’s credibility. Id. at 373. In addition, if a defendant raises the issue of the
victim’s postincident behavior or attacks the victim’s credibility, an expert may testify that the
victim’s behavior is consistent with that of a sexual abuse victim. Id. at 373-374.

       Rospierski’s testimony that SV made a disclosure was not plainly erroneous. See Benton,
294 Mich App at 202. This testimony revealed a fact—that SV told Rospierski that defendant
had sexually abused her—and does not indicate whether Rospierski believed SV and found her
claim of sexual abuse credible. The testimony was not prohibited by Peterson.

        Rospierski’s testimony that the circumstances of SV’s disclosure were consistent with
disclosures of sexual abuse victims was also not plain error. Defendant attacked SV’s
credibility. He elicited testimony from SV that defendant touched her almost every weekend and
yet she did not tell anyone. By eliciting this testimony, which highlighted the length of time
between the sexual abuse and SV’s disclosure, defendant suggested that SV was not credible
because of her delayed disclosure. See Peterson, 450 Mich at 374 n 13. Because defendant
attacked SV’s credibility, Rospierski was allowed to testify that the circumstances of SV’s
disclosure were consistent with disclosures of sexual abuse victims. Id. at 373-374.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant raises numerous claims of ineffective assistance of counsel. These claims are
preserved because defendant raised them before the trial court in a motion for an evidentiary
hearing—which the trial court granted—and a new trial—which the trial court denied. See
People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). The determination whether a
defendant was denied effective assistance of counsel is a mixed question of fact and
constitutional law. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). To establish a
claim for 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. People v Uphaus (On Remand), 278 Mich App 174, 185; 748 NW2d 899 (2008). A
trial court must first find the facts and then decide whether those facts constitute a violation of
the defendant’s right to effective assistance of counsel. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). We review a trial court’s findings of fact for clear error, but review de
novo questions of constitutional law. Id. Clear error exists when this Court is left with a definite
and firm conviction that a mistake has been made. People v Armstrong, 490 Mich 281, 289; 806
NW2d 676 (2011).



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        Defendant claims that defense counsel failed to investigate and present the testimony of
Jennifer Lohraff, Joanna Price, and Guy Price, which would have presented a defense theory that
SV and her mother made up the CSC II allegations as a way for SV’s mother to get back at
defendant after their dating relationship ended. A defendant is entitled to have his counsel
investigate and present all substantial defenses. In re Ayres, 239 Mich App 8, 22; 608 NW2d
132 (1999). A substantial defense is one that might have made a difference in the outcome of
trial. Id. The failure to call witnesses only constitutes ineffective assistance of counsel if it
deprives the defendant of a substantial defense. People v Dixon, 263 Mich App 393, 398; 688
NW2d 308 (2004).

        “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Lohraff overheard a statement by SL, SV’s brother, that SV’s mother had found a way to get
back at defendant. This out-of-court statement by SL was hearsay, and it was inadmissible. See
MRE 802. No hearsay exception covered the out-of-court statement. Because Lohraff’s
testimony about SL’s statement was inadmissible, defense counsel’s failure to interview Lohraff
and call her as a witness at trial did not prejudice defendant. In other words, but for defense
counsel’s failure to interview Lohraff and call her as a witness, there is no reasonable probability
that the outcome of defendant’s trial would have been different. Uphaus (On Remand), 278
Mich App at 185.

        With regard to Joanna and Guy, both witnesses testified at the evidentiary hearing in a
manner that could have been used to advance a theory that SV’s mother wanted to get back at
defendant for perceived transgressions that occurred during their dating relationship. The trial
court found that the theory that SV and SV’s mother conspired to fabricate the CSC II allegations
against defendant strained credulity. The trial court’s credibility finding was not clearly
erroneous. LeBlanc, 465 Mich at 579. Defendant and SV’s mother ended their relationship in
early 2008. Five years passed before SV wrote her letter, which only contained a vague
statement that defendant had touched her in places. Additionally, after SV wrote the letter, she
hid it under her bed at her father’s house, rather than giving it to her school counselor. As SV
and SV’s father testified, the letter became known to others only after SV’s brother found it.1
Under these circumstances, we are not left with a definite and firm conviction that the trial court
made a mistake in finding that the theory of a conspiracy between SV and SV’s mother was
incredible. Armstrong, 490 Mich at 289. Because the theory was incredible, defense counsel’s
decision not to interview Joanna and Guy was sound trial strategy. See People v Trakhtenberg,
493 Mich 38, 52-53; 826 NW2d 136 (2012). Likewise, defense counsel’s decision not to present
evidence of an incredible defense theory was sound trial strategy. Supporting our conclusion is
the fact that defense counsel presented defendant’s two sons, who were at the house in Niles at
least every other weekend, as witnesses. The testimony from the two sons that they never saw
defendant inappropriately touch SV provided a more plausible basis for defense counsel to argue
that SV made up the allegations. We affirm the trial court’s decision that defense counsel was
not ineffective for failing to investigate and call certain witnesses.



1
    The brother who found the note was not SL.


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        Defendant argues that defense counsel was ineffective for failing to object on hearsay
grounds when SV’s father testified that, after he asked SV if the letter her brother discovered was
true, she said yes. Even if SV’s statement was hearsay and counsel’s failure to object could be
viewed as objectively unreasonable, defendant cannot establish that, but for the failure to object,
the result of the proceedings would have been different. SV testified that defendant abused her
nearly every weekend she saw him for a period of two years, and she specifically recalled three
instances of abuse. SV’s letter was not admitted into evidence, and there was no testimony
regarding the specifics of the letter. Because the contents of the letter were unknown, we fail to
see how the out-of-court statement could have affected the jury’s determination of SV’s
credibility. Defendant himself fails to offer an explanation regarding how SV’s out-of-court
statement affected the outcome at trial.

        Defendant next argues that defense counsel was ineffective for failing to engage in a
meaningful cross-examination of SV’s father. Decisions regarding cross-examination involve
matters of trial strategy. In re Ayres, 239 Mich App at 23. The only questions that defendant
posits defense counsel should have asked SV’s father concerned whether SV had any
performance or behavioral problems in school. But, nothing on the record indicates that defense
counsel had any reason to believe that such questions would have elicited testimony to support
the defense theory that SV made up the allegations. Defendant has failed to overcome the strong
presumption that defense counsel’s cross-examination of SV’s father was sound trial strategy.
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

       Defendant also claims that defense counsel was ineffective for not engaging in any cross-
examination of Rospierski. Defense counsel’s testimony at the evidentiary hearing indicates that
he made a strategic decision not to cross-examine Rospierski. He testified that, because the
defense theory was that the charged acts did not occur, he did not want the jury to dwell on
Rospierski’s testimony. Additionally, defense counsel did not want to ask a question that would
open a door for Rospierski to divulge information that could bolster SV’s testimony. This Court
will not substitute its judgment for that of counsel regarding matters of trial strategy. People v
Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Defendant has failed to overcome the
strong presumption that defense counsel’s performance was sound trial strategy. Carbin, 463
Mich at 600.

         Defendant next argues that defense counsel was ineffective for failing to object to SV’s
testimony that she did not testify at the preliminary examination that her pants were always off
when defendant touched her. The record indicates that defense counsel’s failure to object was
trial strategy, as he subsequently asked SV about the specific testimony that she gave at the
preliminary examination. In doing so, defense counsel got SV to admit that she had testified that
defendant would make her take her pants off and that there was never a time that her pants were
“different”; this was inconsistent with her trial testimony. Defendant has failed to overcome the
strong presumption that defense counsel’s performance was sound trial strategy. Id.

        Defendant also argues that defense counsel was ineffective for failing to file a motion,
pursuant to People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994), to obtain SV’s school
records. Under Stanaway, when a defendant can establish a reasonable probability that
privileged records are likely to contain material information to the defense, a trial court must
conduct an in camera review of those records to determine whether the records contain evidence

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that is reasonably necessary to the defense. Stanaway, 446 Mich at 649-650. If the trial court
finds such evidence, the records should be provided to the defendant. Id. A trial court may not
grant an in camera review of privileged records if the defendant is simply on a fishing expedition
to see what information the records may contain. Id. at 680. The defendant must demonstrate a
good-faith belief, grounded in some demonstrable fact, that the records are likely to contain
information necessary to the defense. Id. at 677, 681. Counsel is not ineffective for failing to
make a futile motion, People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998), and
defendant makes no argument that defense counsel could have demonstrated a reasonable
probability that the school records were likely to contain material information to the defense.
The ineffective assistance claim is without merit.

       Defendant also claims that defense counsel was ineffective for failing to object to
Rospierski’s testimony that SV made a disclosure. Because the testimony was not improper, see
discussion supra, any objection would have been futile. Counsel is not ineffective for failing to
make a futile objection. Id.

        Defendant additionally argues that defense counsel was ineffective for failing to
adequately explain a plea offer to him. He contends that, had defense counsel told him that he
would be sentenced to lifetime electronic monitoring if convicted of CSC II, see MCL
750.520c(2)(b), he would have accepted the prosecution’s offer, which would have allowed him
to plead guilty to fourth-degree criminal sexual conduct (CSC IV). The trial court found that
defendant would not have accepted a plea offer unless the offer did not require him to register as
a sex offender. This finding was not clearly erroneous. LeBlanc, 465 Mich at 579. Defense
counsel testified that he explained to defendant that he would have to register as a sex offender if
he pleaded guilty to CSC IV and that defendant was adamant that he would not accept any plea
offer that required him to register as a sex offender. The prosecutor did not present any plea
offer that did not require defendant to register as a sex offender. Under these circumstances,
defendant cannot show that, but for the ineffective advice, he would have accepted the offer to
plead guilty to CSC IV. See People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).
Accordingly, there was no prejudice.

                                   III. SENTENCING ISSUES

        Next, defendant argues that the trial court erred when it used his October 16, 2006
conviction for larceny in a building to enhance his sentences. We review de novo the
interpretation and application of a statute. People v Lewis, 302 Mich App 338, 341; 839 NW2d
37 (2013). A trial court’s factual findings at sentencing are reviewed for clear error. People v
Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). See also MCR 2.613(C). Clear error
exists when this Court is left with a definite and firm conviction that a mistake has been made.
Armstrong, 490 Mich at 289.

        MCL 769.10(1) provides that “[i]f a person has been convicted of a felony or an attempt
to commit a felony . . . and that person commits a subsequent felony within this state, that person
shall be punished upon conviction of the subsequent felony and sentencing under [MCL 769.13]
as follows . . . .” The word “subsequent” in MCL 769.10 describes the sequential relationship
between the prior conviction and the charged felony. People v Gardner, 482 Mich 41, 63; 753
NW2d 78 (2008). Specifically, the word “subsequent” is defined as “following in time, order, or

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place.” Merriam-Webster’s Collegiate Dictionary (11th ed). Thus, pursuant to the plain
language of MCL 769.10, defendant’s October 16, 2006 larceny conviction could only be used to
enhance defendant’s sentences for the CSC II offenses if the CSC II offenses occurred after the
larceny conviction. See People v Erwin, 212 Mich App 55, 60; 536 NW2d 818 (1995).

        At sentencing, the trial court determined, pursuant to the procedure set forth in MCL
769.13(5), that defendant’s October 16, 2006 conviction could be used to enhance his sentences.
MCL 769.13(5) provides that “[t]he existence of the defendant’s prior conviction or convictions
shall be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled
for that purpose before sentencing.” A prior conviction “may be established by any evidence
that is relevant for that purpose . . . .” MCL 769.13(5). If he or she wishes to challenge the
validity of a prior conviction, “[t]he defendant shall bear the burden of establishing a prima facie
showing that an alleged prior conviction is inaccurate or constitutionally invalid.” MCL
769.13(6). Upon the defendant establishing a prima facie showing that “an alleged prior
conviction is inaccurate, the prosecuting attorney shall bear the burden of proving, by a
preponderance of the evidence, that the information or evidence is accurate.” MCL 769.13(6).

        We find no clear error in the trial court’s decision to find that the offenses at issue were
subsequent to the October 16, 2006 conviction, and therefore were subject to the second-habitual
enhancement in MCL 769.10. SV testified that she lived with defendant on the weekends from
2006 to 2008. Although she did not give specific dates for when the abuse occurred, and the
information filed by the prosecution lacked specific information about the three incidents, SV
also testified that the abuse occurred “almost every weekend” during the time she lived with
defendant. As recognized by the trial court, “almost every weekend” would surely encompass
the timeframe occurring after October 16, 2006. On this record, we decline to find that the trial
court clearly erred in determining that there was evidence to support that defendant committed
the CSC II offenses after October 16, 2006. See Armstrong, 490 Mich at 289.

       Finally, defendant argues that the sentence of lifetime electronic monitoring, required by
MCL 750.520c(2), is unconstitutional because it constitutes cruel and/or unusual punishment and
because it is an unreasonable search. In People v Hallak, ___ Mich App ___; ___ NW2d ___
(2015), this Court held that lifetime electronic monitoring for a defendant convicted of CSC II
does not constitute cruel and/or unusual punishment under the United States Constitution, US
Const, Am VIII, or the Michigan Constitution, 1963 Const, art 1, § 16. It also held that, although
the placement of an electronic monitoring device on a defendant to monitor the defendant’s
movements constituted a search, lifetime electronic monitoring was not an unreasonable search
under the Fourth Amendment, US Const, Am IV. Hallak, ___ Mich App at ___. Because we
are bound to follow Hallak, MCR 7.215(J)(1), we reject defendant’s constitutional arguments.

       Affirmed.

                                                             /s/ Michael J. Talbot
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Jane M. Beckering




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