               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 28, 2019
                 Plaintiff-Appellee,

v                                                                    No. 339990
                                                                     Benzie Circuit Court
JAMES JOEL CORNELL,                                                  LC No. 17-002484-FC

                 Defendant-Appellant.


Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

        Defendant, James Joel Cornell, appeals by right his jury trial conviction of first-degree
criminal sexual conduct (CSC I), MCL 750.520b, arising out of his sexual penetration of a 15-
year old student to whom he gained access through his status as a contractual service provider for
the Benzie County Central school system. The trial court sentenced defendant to serve 14 to 40
years in prison. We affirm.

                                          I. BASIC FACTS

        At the time of the sexual conduct at issue, defendant was the new coach of the junior
varsity wrestling team at Benzie Central High School, and the complainant was a 15-year old
student at the school and a friend of defendant’s daughter.1 Evidence admitted at trial
established that defendant recruited the complainant to be the manager of the wresting team,
despite her prior lack of knowledge about, attendance at, or participation in the sport. According
to the complainant’s mother, on January 12, 2015,2 she signed a “consent form” drafted by


1
    The complainant was 15-years old at all times relevant to the charges against defendant.
2
  That the consent form bares the date of January 21, 2015, raises the possibility that defendant
drafted it after the events in question. Nevertheless, the complainant’s mother testified that she
frequently transposes numbers, but said that she was “a hundred percent” sure that she signed the
form before the Petoskey wrestling match on or around January 17, 2015.



                                                 -1-
defendant that stated, among other things, that defendant could transport the complainant to and
from school functions and that the complainant could spend the night at defendant’s house before
early-morning sports functions or when she cleaned defendant’s apartment.

        The complainant spent the night of January 16, 2015, at defendant’s two-bedroom
apartment. The complainant’s mother testified that she allowed the complainant to spend the
night there so she could ride with defendant to an early-morning wrestling match in Petoskey and
because she believed that other schoolmates who were going to the wrestling match would also
be spending the night there, among them, defendant’s daughter. As it turned out, no other
schoolmates spent the night. The complainant testified that defendant’s ex-girlfriend and her
child were present at the apartment, and defendant testified that, in addition to these, his ex-wife
and her daughter were also present.

         The complainant testified that once she got to defendant’s apartment, she did her
homework on his bed while defendant went to take a shower. When he came back to the
bedroom, he tried to talk her into having sex, but she said, “No.” Defendant persisted, which the
complainant said made her “feel like [she] was nothing like to no one, so [she] just kind of like
let it be.” The complainant testified that she and defendant had sex. Asked what she did while
defendant was having sex with her, the complainant testified, “I didn’t want to scream because
he told me that he was going to take me from my mom if I told on him.” Asked how that made
her feel, the complainant said she did not want to be taken from her mom. The complainant
testified that she did not go to defendant’s house with the intention of having sex, but that he
took advantage of her and sexually penetrated her. Contrariwise, defendant testified that after he
got out of the shower and went to his bedroom, he lay down on the floor, and went to sleep. He
said that the complainant appeared to be asleep and that he did not talk to her.

        City of Frankfurt Police Officer Kevin Jewell testified that dispatch received a call for
service around 11:30 p.m. from a woman who said that her ex-boyfriend was in a bedroom,
behind a closed and locked door, with a 15-year-old girl. 3 Officer Jewel responded to the call
and knocked on defendant’s bedroom door three separate times; defendant did not open the door
until the officer announced himself as a police officer. Defendant opened the door to reveal the
complainant on the bed, a makeshift sleeping area on the floor, and himself out of breath, sweaty
and “a little frantic.” After calling the complainant’s mother, Officer Jewell drove the
complainant home. During the drive, the complainant offered innocent explanations for why she
was in defendant’s apartment. The complainant initially told multiple people that she and
defendant did not have sexual relations.




3
  Defendant testified that he closed the bedroom door because his ex-girlfriend’s six-year-old
kept coming into the bedroom and disturbing him while he was trying to go to sleep, but he did
not remember locking the door.


                                                -2-
       When defendant’s ex-girlfriend was moving out of the apartment, she found an “affidavit
for marriage” between defendant and the complainant and gave it to the police.4 Her own
suspicion piqued, the complainant’s mother read the text messages on the complainant’s cell
phone, and then took the cell phone to the police department. Police extracted text messages
dated from March 30, 2015 to April 7, 2015, that betrayed the complainant’s denial of sexual
contact. The complainant came forward and, as indicated, later testified at trial that she and
defendant had sex.

        Subsequent to his conviction and sentencing, defendant moved for a new trial based on
claims of ineffective assistance of counsel and sentencing errors. The trial court held an
evidentiary hearing at which defendant presented evidence of his claims. The parties stipulated
that offense variable (OV) 11 (criminal sexual penetration) was improperly scored. After
hearing evidence regarding defendant’s claims of ineffective assistance of counsel, the trial court
concluded that trial counsel’s decisions constituted reasonable trial strategy, and that any
deficiencies did not affect the outcome of the trial. Accordingly, the trial court denied
defendant’s motion for a new trial. This appeal followed.

                                           II. ANALYSIS

                        A. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first contends that his defense counsel rendered constitutionally ineffective
assistance by failing to conduct an effective cross-examination of the complainant and by failing
to impeach her with contradictory testimony from Officer Jewell and with prior inconsistent
statements she made during a forensic interview. Defendant further contends that, in light of
counsel’s ineffective assistance, the trial court erred by failing to grant his motion for a new trial.
We disagree. “A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law.” People v Unger (On Remand), 278 Mich App 210, 242; 749 NW2d 272
(2008). This Court reviews factual findings for clear error and questions of constitutional law de
novo. Id.

        The United States and Michigan constitutions guarantee a defendant’s right to counsel.
US Const, Am VI; Const 1963 art 1, § 20. This “right to counsel encompasses the right to the
effective assistance of counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d 563
(2007). In order to demonstrate an ineffective assistance of counsel claim, a defendant must
show: (1) that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and, (2) that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different. See Smith v Spisak, 558
US 139, 149; 130 S Ct 676; 175 L Ed 2d 595 (2010); People v Trakhtenberg, 493 Mich 38, 51;
826 NW2d 136 (2012); People v Uphaus, 278 Mich App 174, 185; 748 NW2d 899 (2008). The
performance will be deemed to have prejudiced the defense if it is reasonably probable that, but



4
 Officer Jewell testified that he asked defendant about the affidavit for marriage and defendant
admitted to filling it out, but claimed it was a joke.


                                                 -3-
for counsel’s error, “the result of the proceeding would have been different.” People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007).

       The “effective assistance of counsel is presumed, and the defendant bears a heavy burden
of proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).
“[D]ecisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy, which we will not second-guess with the benefit of
hindsight.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (quotation marks
and citation omitted). “[F]ailure to call witnesses only constitutes ineffective assistance of
counsel if it deprives the defendant of a substantial defense.” Id. “A substantial defense is one
that might have made a difference in the outcome of the trial.” People v Chapo, 283 Mich App
360, 371; 770 NW2d 68 (2009) (quotation marks and citation omitted).

       Defendant asserts that he provided the names of approximately 15 witnesses that his trial
counsel should have called to testify to specific instances when the complainant denied having
sexual contact with him. However, our review of the record indicates that defense counsel’s
decision not to call these witnesses was a reasonable trial strategy and did not deprive defendant
of a substantial defense. Dixon, 263 Mich App at 398. The complainant readily admitted on
cross-examination that she initially told “numerous people,” such as friends, people at school,
and a deputy, that nothing happened with defendant. Thus, counsel raised the question of the
complainant’s credibility by presenting the jury with the complainant’s own testimony that she
repeatedly denied having sexual contact with defendant before appearing to change her account
of events by asserting that she and defendant did have sexual contact. Calling witnesses to
confirm hearing such denials arguably would not have added much to the equation. Because the
complainant admitted to the denials herself, the failure to call defendant’s identified witnesses in
no way deprived defendant of a substantial defense. Id.

         Defendant also argues that his counsel should have impeached the complainant’s
testimony by recalling Officer Jewell to the stand. According to the officer’s police report, the
complainant provided innocent reasons for being at defendant’s apartment and in his bedroom
and said nothing about having sexual contact with defendant. At trial, however, the complainant
testified that she told Officer Jewell she had sex with defendant. Although it is true that defense
counsel did not recall Officer Jewell to the stand to refute the complainant’s testimony, counsel
did undermine her testimony with questions regarding whether, following her alleged revelation,
Officer Jewell then gathered any evidence or took her to see a nurse or to the hospital. By
implying that the officer would have taken such actions had she actually disclosed the abuse to
him, counsel’s questions invited the jury to question the complainant’s credibility. Defense
counsel reiterated this point in his closing argument, suggesting to the jury that the complainant
could not have told Officer Jewell of the abuse because he neither arrested defendant nor
collected evidence. At a post-trial Ginther5 hearing, counsel indicated that he could not
remember why he did not call Jewell, but he “thought [the complainant’s] credibility or lack of
credibility was showing up on the stand.” The record before us indicates that counsel took


5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -4-
measures to impeach the complainant and had a strategic reason for his chosen method of
impeachment. “[W]e will not second-guess counsel’s strategy with the benefit of hindsight.”
Dixon, 263 Mich App at 398.

        Similarly, defendant argues that his trial counsel should have impeached the complainant
with evidence that the narrative of events she provided during a forensic interview did not
include allegations of sexual contact with defendant. At the Ginther hearing, counsel testified
that he knew the complainant had not alleged sexual contact with defendant at the forensic
interview, but he did not attempt to procure the transcript of the interview because he thought
highlighting the complainant’s various other denials would be sufficient to impugn her
credibility. Further, he conceded that, in hindsight, he could have asked the complainant more
about the forensic interview, but he did not want, among other things, to draw attention to the
complainant’s reason for initially denying the sexual contact; namely, defendant’s alleged threats
that she would be removed from her mother’s care if she told anyone. Defense counsel also said
that he did not wish to dwell on the topic because he did not want to antagonize the jury by
appearing to “bully” the soft-spoken complainant or to allow the prosecutor an opportunity to
rehabilitate her in a way that suggested trial counsel was being unnecessarily aggressive.
Instead, he wanted the jurors to concentrate on the complainant’s testimony and her inconsistent
statements. Defendant’s trial counsel made a strategic decision regarding the extent to which he
would confront the complainant with her previous denials, and we will not second-guess that
reasonable strategic decision. Id.

        Even if we assume for the sake of argument that defense counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms, defendant is
only entitled to relief if there is a reasonable probability that, but for counsel’s errors, the result
of the proceedings would have been different. Trakhtenberg, 493 Mich at 51. We find no such
probability. Ample evidence corroborated the complainant’s testimony that defendant sexually
penetrated her. First, defendant’s ex-girlfriend called the police to report that defendant was in
his locked bedroom with a 15-year old. Officer Jewell had to knock three times and announce
himself as a police officer before defendant opened the bedroom door. When he did, defendant
was sweaty, out of breath, and “slightly frantic,” and the complainant was in his bed. Further,
the ex-girlfriend found in defendant’s bedroom and turned over to police an “affidavit for
marriage” between defendant and the complainant. Defendant also provided the complainant
with a cell phone and sent a large number of text messages to her after he moved to Florida two
and a half months after the incident. The texts were sexual in nature; defendant stated that he
would like to have “make-up” sex with the complainant, that he had seen her nude, that she had
sent him a nude photo, and that they had had sex before.6 In the texts, defendant referred to
photos of the complainant as “hot,” and he referred to her as his hot “wife.” He texted her that
she was like a drug that he did not want to give up. Both defendant and the complainant


6
  In the text messages, the complainant and defendant used words of affection for each other
such as “bug,” “lady bug,” “bug bear,” “sweetheart,” “sweetie,” “babe,” “hon,” “beautiful,” and
“my boo,” which the jury could infer were terms of endearment in an ensuing romantic
relationship between defendant and the complainant.


                                                 -5-
repeatedly stated that they loved each other. Other messages indicated that defendant’s plan was
for the complainant to move in with him when she turned 16-years of age. In light of the
foregoing, additional evidence that the complainant had initially denied sexual penetration would
not have helped defendant because it would not have contradicted the strong corroborating
evidence supporting the complainant’s testimony. We conclude that defendant has failed to meet
his burden to show that he received ineffective assistance from his trial counsel. Trakhtenberg,
493 Mich at 51. Accordingly, the trial court did not err in denying defendant’s motion for a new
trial.

                                        B. JUDICIAL BIAS

        Next, defendant argues that the trial court acted with bias in favor of the prosecution by
assisting in the admission of incriminating evidence. Again, we disagree. Defendant did not
raise this issue in the trial court; therefore, our review is for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is warranted
only if the plain error resulted in the conviction of an innocent defendant or if “the error
seriously affected the fairness, integrity, or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id.

        A trial court “shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence” in order to make the interrogation and presentation effective
for the ascertainment of the truth. MRE 611(a). Additionally, “[t]he court may interrogate
witnesses, whether called by itself or by a party.” MRE 614(b). However, a defendant has a
right to a neutral and detached judge and a trial court’s examination of witnesses may not “pierce
the veil of judicial impartiality.” People v McDonald, 303 Mich App 424, 437; 844 NW2d 168
(2013) (quotation marks and citation omitted). The trial judge “must not permit his own views
on disputed issues of fact to become apparent to the jury.” People v Stevens, 498 Mich 162, 174;
869 NW2d 233 (2015) (quotation marks and citation omitted).

        Defendant argues that the trial court invaded the role of the prosecutor by questioning a
prosecution witness, a school payroll specialist, and showing that defendant gained access to the
complainant through his role at her school, thus establishing one of the aggravating elements of
the charge against defendant. MCL 750.520b(1)(b)(v).7 Defendant overlooks the fact that, prior
to the payroll specialist’s testimony, the complainant and her mother testified that defendant was
coaching at the school when he recruited the complainant to work with the wrestling team, and


7
   Defendant was charged with CSC I based on several aggravating factors.                        MCL
750.520b(1)(b)(v) provides in pertinent part that a person is guilty of first-degree criminal sexual
conduct if the person engages in sexual penetration with another person, the other person is at
least 13 but less than 16 years of age, and the “actor is an employee or a contractual service
provider of the public school . . . or intermediate school district in which that other person is
enrolled, or is a volunteer who is not a student in any public school . . . , and the actor uses his or
her employee, contractual, or volunteer status to gain access to, or to establish a relationship
with, that other person.”


                                                 -6-
with him personally, thus clearly defining the circumstances under which defendant gained
access to the complainant. Furthermore, defendant errs by assuming that the prosecutor’s
questioning of the school payroll specialist did not clearly demonstrate a relationship between
the school and defendant before the trial court posed its questions. The school official read a
letter from defendant’s employment file that announced his hiring as the junior varsity wrestling
coach and indicated that his pay would be through a company with which the district contracted.
The official also read a letter announcing the termination of defendant’s employment. This
evidence clearly established defendant’s status as a contractual service provider of the school at
the time the sexual contact with the complainant occurred. The trial court’s questions merely
followed up and clarified a line of questioning pursued by both parties, i.e., the relationship
between the school and the company the school paid to manage contractual employees such as
defendant. Questions intended to clarify points or to elicit additional relevant evidence are not
improper. McDonald, 303 Mich App at 437.

        Defendant also argues that the trial court demonstrated bias by instructing the prosecution
on how to admit documentary evidence; specifically, the “marriage certificate” and a consent-to-
transport form signed by the complainant’s mother. However, our review of the record
convinces us that the trial court was merely instructing both parties on how to comply with the
rules of evidence regarding the admission of documents. The trial court prompted defendant’s
counsel to object to admission of the “affidavit of marriage” on the ground that it was a copy,
and reminded the prosecutor to present the original documents. See MRE 1002 (best evidence
rule). The trial court’s instructions helped ensure that the parties complied, and demanded
compliance, with the court rules. The discussions did not involve “disputed issues of fact” nor
the court’s views on such issues. See Stevens, 498 Mich at 174.

        Defendant further argues that the trial court helped lay a foundation to admit text
messages found on the complainant’s phone. We disagree. The prosecutor questioned Chief of
Police Rob Lozowski on what he did with the complainant’s phone, and Lozowski responded
that he had collected it from an evidence locker before providing it to the State Police. Defense
counsel asked about the procedures followed when officers put evidence in the locker and
Lozowski removed it. The trial court then sought to clarify these procedures by asking whether
officers documented when they placed evidence into or removed it from an evidence locker.
Questions intended to clarify points or to elicit additional relevant evidence are not improper.
McDonald, 303 Mich App at 437.

        The conduct of a trial judge can violate a defendant’s “constitutional guarantee of a fair
trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s
conduct improperly influenced the jury by creating the appearance of advocacy or partiality
against a party.” Stevens, 498 Mich at 171. This is not the case here. Defendant has pointed to
no record evidence suggesting any bias of the trial court in favor of the prosecution. The trial
court prompted defense counsel to raise objections to the prosecutor’s attempt to enter copies of
documents into evidence, and addressed both parties in its discussion of the rules of evidence.
Defendant acknowledges that the trial court spoke to the parties in a neutral way and did not
exhibit hostility toward defendant. See People v Conyers, 194 Mich App 395, 404-405; 487
NW2d 787 (1992) (indicating that a trial court must ensure that its questions are not
“intimidating, argumentative, prejudicial, unfair, or impartial”). In addition, the trial court asked
permissible questions following up on and clarifying lines of questioning pursued by both
                                                -7-
parties. In sum, when it comes to the trial court’s conduct, we find no plain error affecting
defendant’s substantial rights. Carines, 460 Mich at 763.

                                  C. OFFENSE VARIABLES

        Defendant contends the trial court erred when scoring OVs 8 and 19. This Court reviews
the trial court’s factual determinations at sentencing for clear error; findings of fact must be
supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Id.

                                            1. OV 8

       Defendant argues that the trial court should have assessed OV 8 at 0 points rather than at
15 points. We disagree.

       OV 8 considers victim asportation or captivity. An assessment of 15 points is prescribed
where “[a] victim was asported to another place of greater danger or to a situation of greater
danger or was held captive beyond the time necessary to commit the offense.” MCL
777.38(1)(a). Because OV 8 specifically focuses on conduct beyond the time necessary to
commit the offense, conduct beyond the particulars of the sentencing offense may be considered.
People v McGraw, 484 Mich 120, 126; 771 NW2d 665 (2009). In People v Barrera, 500 Mich
14, 21; 892 NW2d 789 (2017), quoting MCL 777.38(1)(a), the Court stated that the plain
language of the statute indicated that asportation occurs when “a victim is carried away or
removed ‘to another place of greater danger or to a situation of greater danger,’ ” including “the
movement of a victim that is only incidental to that offense.” To assess points for OV 8, the
asportation need not be accomplished by force. People v Spanke, 254 Mich App 642, 646-647;
658 NW2d 504 (2003), overruled on other grounds by Barrera, 500 Mich at 22.

        The trial court assessed OV 8 at 15 points because defendant moved the complainant
from her home to his home in order to victimize her, noting that defendant manipulated both the
complainant and her mother into thinking the move necessary to facilitate transportation to a
wrestling match so that the complainant would go willingly. In what borders on the absurd,
defendant argues that he actually transported the complainant to a place of greater safety rather
than greater danger, because he brought her to his apartment, where there were several people,
including other adults, and he highlights the fact that one of those adults called the police. Not
only did defendant place the complainant in greater danger by transporting her to his apartment,
once there, he isolated her in his bedroom with him, claiming that there was nowhere else to
house her, and closed and locked the door. A preponderance of the evidence supports the trial
court’s determination that defendant moved the complainant to a place of greater danger when he
brought her into his bedroom where he could sexually assault her without interference from
others. See People v Cox, 268 Mich App 440, 453-455; 709 NW2d 152 (2005) (upholding an
assessment of 15 points for OV 8 where the defendant transported the victim to his home on the
ground that it was a place of greater danger); Barrera, 500 Mich at 21-22 (upholding an
assessment of OV 8 where the defendant moved the victim from the living room to the bedroom
in order to sexually assault her). Thus, the trial court did not err in scoring OV 8 at 15 points.

                                               -8-
                                            2. OV 19

        Defendant further argues that the trial court should have scored OV 19 at zero points
rather than 10 points, because there was no evidence that he interfered with the administration of
justice. We disagree.

        A trial court may assess 10 points for OV 19 where “[t]he offender otherwise interfered
with or attempted to interfere with the administration of justice[.]” MCL 777.49(c). The factors
considered “contemplate events that almost always occur after the charged offense has been
completed.” People v Smith, 488 Mich 193, 200; 793 NW2d 666 (2010). “Interfering or
attempting to interfere with the administration of justice includes acts that constitute obstruction
of justice, but it is not limited to such acts.” People v Ericksen, 288 Mich App 192, 204; 793
NW2d 120 (2010).

        In the present case, the trial court assessed 10 points for OV 19 because defendant left the
jurisdiction after the incident and allegedly frightened the complainant by telling her that if she
disclosed the fact that they had sex, officials could remove her from her mother’s care.
Defendant contends that his moving to and returning from Florida, as well as his alleged threat to
remove the complainant from her mother if she told on him, occurred before officials arrested or
charged him, and thus could not be used as evidence of interfering or attempting to interfere with
the administration of justice. Defendant misapprehends the law. In People v Barbee, 470 Mich
283, 288; 793 NW2d 120 (2010), the Michigan Supreme Court stated that a defendant’s
“conduct that occurs before criminal charges are filed can form the basis” of assessing OV 19.
Further, interference with the administration of justice includes preventing a victim from coming
forward sooner or affecting the testimony against a defendant. See, e.g., People v Endres, 269
Mich App 414, 421-422; 711 NW2d 398 (2006), overruled in part on other grounds by Hardy,
494 Mich at 438 n 18; People v McDonald, 293 Mich App 292, 299-300; 811 NW2d 507 (2011).
Defendant’s move to Florida prevented an officer from contacting him to investigate the crime,
and defendant’s threat to the complainant deterred her from reporting his criminal conduct. See
e.g., Endres, 269 Mich App at 421-422; McDonald, 293 Mich App at 299-300; see also People v
Sours, 315 Mich App 346, 349; 890 NW2d 401 (2016) (noting, “OV 19 is generally scored for
conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing
offense.”). Thus, a preponderance of the evidence supported the trial court’s assessment of 10
points for OV 19.

       Affirmed.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Stephen L. Borrello
                                                             /s/ Jane M. Beckering




                                                -9-
