                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 11, 2015
              Plaintiff-Appellee,

v                                                                  No. 317219
                                                                   Kalamazoo Circuit Court
TIMOTHY L. DIXON,                                                  LC No. 2012-000718-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

PER CURIAM.

       Defendant was convicted by a jury of first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1). Defendant was sentenced to 25 to 40 years’ imprisonment, and he now appeals his
conviction and sentence as of right. Because none of the issues raised in defendant’s brief on
appeal or his Standard 4 brief requires reversal, we affirm.

       Defendant was the victim’s stepfather and one of her primary caretakers. The victim,
who was 27 years old at the time of trial, suffers from a multitude of physical and mental
impairments resulting from a heart defect and several strokes and cardiac arrests suffered during
infancy that deprived her brain of oxygen. She requires constant care. An expert in
neurodevelopmental disabilities and adolescent medicine, who had treated the victim for
approximately ten years, indicated that the victim was moderately to severely retarded, with an
IQ of approximately 40.

        In early February 2012, it was discovered that the victim was pregnant. When police first
spoke to defendant about the circumstances surrounding the pregnancy, defendant indicated his
belief that the victim’s mental capacity was “somewhere around the capacity of a four-year old.”
When asked if the victim could understand or consent to sexual intercourse, defendant responded
“absolutely not.” The victim subsequently underwent an abortion procedure. After the unborn
fetus was removed from the victim’s body, doctors collected the fetal material as evidence. That
evidence, along with buccal swabs from several potential suspects, including defendant, was
submitted to the Michigan State Police (MSP) crime laboratory for DNA analysis. Testing
subsequently excluded all of the suspects as the father of the unborn fetus except for defendant.

       The case proceeded in the ordinary course for several months, and trial was eventually set
for May 14, 2013. At a settlement conference on May 10, 2013—just four days before trial—
defendant requested, for the first time, funds to obtain an expert DNA witness. Defendant’s trial
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counsel acknowledged the lateness of the request and acknowledged that the DNA evidence had
been a key piece of evidence from the outset of the case but indicated that the request was
prompted by the trial court’s recent denial of defendant’s motion for a cognitive evaluation of the
victim and his motion to exclude the prosecution’s expert DNA witness from testifying. Trial
counsel reiterated this in a subsequent written motion and argued that an expert DNA witness
was now critical; defendant could not safely proceed to trial without the benefit of consultation
with an expert who could inform trial counsel about DNA evidence and who could review the
DNA evidence for accuracy and reliability.

        The trial court denied defendant’s request for an expert witness fee on the morning of
trial. The trial court found it “very hard to give any credence to an argument that suddenly this
has become an issue” when the defense knew from the outset that the prosecution’s case was
based primarily on DNA evidence, though it noted that the decision to wait so long appeared to
have been the product of a “thought through strategy” by defense counsel. Moreover, the trial
court reasoned that defendant had failed to demonstrate anything more than mere speculation as
to whether an expert witness would benefit his case.

         The only evidence establishing defendant as the perpetrator at trial was the DNA
evidence. Following his conviction, he moved the trial court for a new trial, or in the alternative
an expert witness fee, or in the alternative a Ginther1 evidentiary hearing on alleged ineffective
assistance of trial counsel. Defendant argued that the trial court erred in denying his request for
an expert witness fee, which deprived him of a fair trial, and that his trial counsel was ineffective
for failing to make the request sooner. In support of his argument that a DNA expert was critical
to his defense, defendant identified several “anomalies” in the DNA test procedures discovered
at trial. At a hearing on the matter, defendant’s appellate counsel conceded that the anomalies
identified in his motion were addressed at trial and further conceded that he had no way of
knowing whether the anomalies, in fact, undermined the validity of the DNA evidence. Finally,
he conceded that an independent expert could very well review the MSP’s work and conclude
that the results were reliable. The trial court denied defendant’s post-conviction request for
relief.

        Defendant filed the instant appeal with this Court, raising two issues: (1) whether the
trial court erred in denying his motion for expert witness fees and (2) whether the trial court
erred in its scoring of OV 3 and OV 4. Defendant also filed a Standard 4 brief on appeal, raising
another two issues. After hearing oral argument, this Court remanded the case back to the circuit
court to “provide funds sufficient to permit defendant to obtain independent DNA testing.”
People v Dixon, unpublished order of the Court of Appeals, entered December 15, 2014 (Docket
No. 317219). The order also provided that “[w]ithin 56 days of receiving the test results,
defendant may seek further relief, if appropriate, in the circuit court.” Id.

       On remand, defendant obtained funds for a DNA expert, who, due to some anomalies in
the state’s initial testing, suggested re-running the tests under new parameters. Cellmark
Forensics conducted the subsequent DNA testing and concluded that defendant had a


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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99.999999% chance of being the biological father of the unborn fetus, with a “combined
paternity index of all fourteen genetic systems [being] 984,474,996 to 1.”

       Defendant indicated that he would not be filing any further motions at the circuit court
and noted that his appeal could proceed in this Court with all of his previously raised issues.

                                   I. EXPERT WITNESS FEE

        On appeal, defendant argues that the trial court erred in denying his pre- and post-trial
requests for an expert witness fee. But because of our remand order allowing expert fees, this
issue is moot. Moreover, even if the trial court abused its discretion in denying defendant’s
request for DNA expert fees, any error was harmless, as defendant’s expert would not have
assisted the defense since Cellmark concluded with 99.999999% certainty that defendant was the
biological father. Similarly, defendant’s related claim that his trial counsel was ineffective by
failing to request the expert witness fee earlier in the lower court proceedings must fail because it
is clear that, with the new testing results, defendant cannot establish how counsel’s failure to
seek the fees earlier caused any prejudice. See Strickland v Washington, 466 US 668, 687; 104 S
Ct 2052; 80 L Ed 2d 674 (1984) (stating that to prevail on a claim of ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and that the
deficient performance prejudiced his defense).

                                        II. SENTENCING

                              A. OFFENSE VARIABLE SCORING

       Defendant next argues that the trial court erred in scoring ten points each under Offense
Variable (OV) 3 and OV 4 of the sentencing guidelines. We review these unpreserved
challenges for plain error affecting substantial rights. People v Loper, 299 Mich App 451, 457;
830 NW2d 836 (2013).

       OV 3 scores points for the degree of physical injury to a victim and provides that ten
points may be assessed where “[b]odily injury requiring medical treatment occurred to a victim.”
MCL 777.33(1)(d). Defendant asserts that a pregnancy should not be considered a bodily injury.
But this Court has previously held that, for purposes of OV 3, “bodily injury” includes
pregnancy. People v Cathey, 261 Mich App 506, 513-515; 681 NW2d 661 (2004). Defendant
acknowledges this precedent but questions its validity. However, Cathey is binding upon this
Court, MCR 7.215(J)(1), and as a result, defendant has not established any plain error.

        OV 4 scores points for the degree of psychological injury to a victim and provides that
ten points may be scored where “[s]erious psychological injury requiring professional treatment
occurred to a victim.” MCL 777.34(1)(a). Defendant contends that OV 4 was improperly scored
at ten points because there was no record evidence of such an injury. Here, it appears that the
trial court’s scoring decision was based on a victim impact statement written by the victim’s
biological father, which was attached to defendant’s presentence investigation report (PSIR). In
his statement, the victim’s father indicates that the sexual assault affected the victim “a great
deal.” She now has nightmares, is afraid of males getting too close to her, is very emotional, and
her communication skills have changed. As a result of the assault, the victim was provided
counseling through Sexual Assault Services of Calhoun County. “[A] sentencing court may
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consider all record evidence before it when calculating the guidelines, including, but not limited
to, the contents of a [PSIR] . . . .” People v Althoff, 280 Mich App 524, 541; 760 NW2d 764
(2008) (quotation marks omitted). Furthermore, a PSIR “is presumed to be accurate and may be
relied on by the trial court unless effectively challenged by the defendant.” People v Callon, 256
Mich App 312, 334; 662 NW2d 501 (2013). Thus, it was appropriate for the trial court to
consider the victim impact statement. Moreover, the victim impact statement supported, by a
preponderance of the evidence, that the victim suffered some degree of psychological injury
from the sexual assault.

                             B. SIXTH AMENDMENT CONCERN

        Although not raised by defendant, we take this opportunity to evaluate these two OV
scorings in light of our Supreme Court’s recent decision in People v Lockridge, ___ Mich ___;
___ NW2d ___ (Docket No. 149073, decided July 29, 2015). In Lockridge, the Supreme Court
held that in order to avoid any Sixth Amendment violations, Michigan’s sentencing guidelines
scheme was to be deemed advisory, instead of being mandatory. Id. at __ (slip op at 28). The
concern is that when a judge makes findings of fact “beyond facts admitted by the defendant or
found by the jury” in a sentencing proceeding that increases a defendant’s minimum sentence,
this runs afoul of a defendant’s right to a jury trial. Id. at __ (slip op at 1). As a result, the
guidelines no longer can be considered mandatory, but sentencing judges must consult the
guidelines and “ ‘take them into account when sentencing.’ ” Id. at __ (slip op at 28), quoting
United States v Booker, 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

        In determining if there is any plain error under this new scheme, the first inquiry is
whether the facts admitted by the defendant and the facts necessarily found by the jury “were
sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall
in the cell of the sentencing grid under which he or she was sentenced.” Id. at __ (slip op at 32).
If the answer is “yes,” then a defendant cannot establish any plain error. Id. at __ (slip op at 32).
If the answer is “no,” then a remand to the trial court is required to allow it to determine whether,
now aware of the advisory nature of the guidelines, the court would have imposed a materially
different sentence. Id. at __ (slip op at 34). If the court determines that it would have imposed a
materially different sentence, then it shall order resentencing. Id. at __ (slip op at 34).

        The ten points scored for OV 3 was necessarily found by the jury. This is because the
only evidence linking defendant to the crime of sexually penetrating the victim was his DNA
sample from the aborted fetus. Consequently, the jury, in finding defendant guilty of this
criminal sexual conduct, found that defendant impregnated the victim, and under Cathey, this
constitutes a bodily injury to warrant ten points for OV 3.

        But the ten points scored for OV 4 is a different matter. As noted previously, the only
evidence supporting a finding that the victim suffered a serious psychological injury was
introduced at the sentencing hearing after the jury rendered its verdict. Consequently, it is clear
that the scoring of the ten points for OV 4 was based on a fact found by the judge that was not
admitted by the defendant or found by the jury.

      However, defendant cannot establish any plain error requiring relief. Defendant’s total
OV score at sentencing was 30 points, which placed him at level II for OV for Class A offenses.

                                                -4-
MCL 777.62. When the ten points for OV 4 are discounted because the underlying facts
supporting that score were not found by the jury, defendant’s total OV score reduces from 30 to
20 points, which still is in the level II category for Class A offenses. MCL 777.62. Hence,
because the facts found by the jury were sufficient to still fall under level II of the sentencing
grid, which was the level the trial court used at sentencing, defendant is not entitled to any relief
because defendant cannot establish any prejudice. See Lockridge, ___ Mich at ___ (slip op at
32).

                          III. DEFENDANT’S STANDARD 4 BRIEF

       Defendant next raises two issues in his Standard 4 brief. Neither of them has any merit.

        Defendant first argues that his due process right to a fair trial was violated when the trial
court “shackled” him with a tether during trial, a fact which only became apparent to the jury
when during the proceedings, the tether was activated. Defendant further argues that his trial
counsel was ineffective for failing to object to defendant having to wear this “shackle” during
trial and for failing to request a mistrial when the tether was activated.

        Freedom from shackling has long been recognized as an important component of a fair
trial “because having a defendant appear before a jury handcuffed or shackled negatively affects
the defendant’s constitutionally guaranteed presumption of innocence.” People v Banks, 249
Mich App 247, 256; 642 NW2d 351 (2002); see also People v Dixon, 217 Mich App 400, 404;
552 NW2d 663 (1996). “Consequently, the shackling of a defendant during trial is permitted
only in extraordinary circumstances.” Dixon, 217 Mich App at 404. In this case, however, we
disagree with defendant’s contention that the obligation to wear an electronic monitoring device
is the constitutional equivalent of restraint by shackling. There is no indication from the record
that defendant’s tether was visible to the jury at any time. It only became an issue when, for
some unknown reason, it activated on day four of the trial and audibly announced, “Call your
officer now.” The activation of defendant’s tether during trial implicated, to some extent, his due
process right to the presumption of innocence, inasmuch as it made the jury aware that he was
“marked” as an individual in need of constant monitoring. See People v Payne, 285 Mich App
181, 187; 774 NW2d 714 (2009). However, because the tether was not visible to the jury, we
perceive no plain error in the trial court ordering it as a condition of his bond. The trial court
was within its discretion to impose that condition in lieu of incarceration, especially in light of
the apparent allegation that defendant had made contact with the victim or victim’s family while
out on bond. Furthermore, the specific triggered alarm did not deny defendant a fair trial. When
the tether was activated, the trial court quickly removed the jury from the courtroom. Upon its
return, the trial court instructed the jury that the tether was simply part of defendant’s duty to
“check in” as a condition of his bond and that it had nothing to do with the proceedings. Thus,
we do not believe that this isolated incident, coupled with the trial court’s somewhat innocuous
curative instruction, acted to deprive defendant of the presumption of innocence that he was
entitled to as part of a fair trial.

        In light of the above conclusion, we reject defendant’s claim of ineffective assistance of
counsel. Defense counsel cannot be faulted, in the first instance, for failing to object to
defendant having to wear the tether during trial. The tether was a condition of bond imposed by
the trial court, and there was no way anyone would have known that it erroneously would

                                                -5-
activate during trial. There is thus no basis for concluding that the trial court would have
entertained a request to have the tether removed during trial. Defense counsel is not ineffective
for failing to make a meritless request. People v Snider, 239 Mich App 393, 435; 608 NW2d
502 (2000). Likewise, defense counsel was not ineffective for failing to request a mistrial when
the tether was mistakenly activated. “A mistrial should be granted only where the error
complained of is so egregious that the prejudicial effect can be removed in no other way.”
People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992). Here, the error was not so
prejudicial as to require a mistrial, and any prejudice was adequately mitigated by the trial
court’s instruction. Thus, defense counsel was not ineffective for failing to make this meritless
request. Snider, 239 Mich App at 435.

        Defendant finally argues that his defense counsel was ineffective for failing to move for
the exclusion of the state’s expert DNA testimony in light of the results of a polygraph
examination. According to defendant, he took and “passed” a polygraph examination, thereby
showing that he did not sexually assault the victim. Because the results of the polygraph
allegedly contradicted the DNA evidence, defendant contends that his trial counsel should have
raised this fact in support of a motion to exclude the DNA evidence. Defendant’s claim fails for
two reasons. First, there is nothing in the record indicating that defendant was in fact given a
polygraph examination or what any results were. As such, defendant failed to establish the
requisite factual predicate for his claim, People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999),
and his claim necessarily fails. Second, assuming arguendo that defendant’s assertion related to
the polygraph test was supported by the record, the fact that he passed a polygraph test does not
make the DNA expert’s testimony now inadmissible. Defendant cites no authority for this
proposition. According to defendant’s brief, in the event that he passed the test, the prosecutor
simply was to “take [the result] into consideration.” This hardly is equivalent to a promise to
drop the charges, let alone a promise to not admit DNA evidence, in the event that defendant
passed the test. Accordingly, because defendant’s polygraph test results have no bearing on the
admissibility of the DNA expert’s testimony, defense counsel was not deficient in failing to raise
this aspect in his argument to preclude the DNA evidence. See People v Ericksen, 288 Mich
App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.”).

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Pat M. Donofrio
                                                            /s/ Elizabeth L. Gleicher




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