                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 15, 2018
              Plaintiff-Appellee,

v                                                                  No. 336174
                                                                   Missaukee Circuit Court
JOHN ROBERT KANARY,                                                LC No. 2016-002776-FC

              Defendant-Appellant.


Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ.

PER CURIAM.

       Defendant, John Robert Kanary, appeals as of right from his jury trial conviction of three
counts of second-degree criminal sexual conduct (CSC-II) (victim under 13 years old), MCL
750.520c(1)(a). The trial court sentenced defendant to 48 to 180 months’ imprisonment for the
conviction, with 34 days credit, plus fines and court fees. For the reasons set forth in this
opinion, we affirm.

                                      I. BACKGROUND

        This case arises out of the alleged sexual assault of two minor children. 1 Defendant was
engaged to the victims’ mother in 2005, and was called off in 2006. After the engagement was
called off, defendant continued to maintain a friendly relationship with the family and would
often visit them at their home.

        According to the trial testimony of the victim, she was 13 years old when she testified,
she explained that she was initially “best friends” with defendant. They would go mushroom
hunting, squirrel hunting, and camping. On one occasion, the victim went mushroom hunting
with defendant in the spring when she was six or seven years old. They walked to the top of the
hill behind the house. The hill was steep, and it took them 10 minutes to climb it. The victim
could not see much of the house from the top of the hill. Defendant laid her down on the ground


1
  Defendant was acquitted of all charges regarding one of the minors. Thus, future references in
this opinion to the victim pertain only to the minor child whose testimony provided the basis for
the CSC-II charges on which defendant was convicted.


                                               -1-
flat on her back and pulled her pants down to her ankles. He laid on top of her. Defendant
unbuttoned and unzipped his pants, removed his penis, and touched her vagina with it. He
moved his penis “around a little bit,” and this lasted, according to the victim’s testimony, about
20 minutes. The victim testified that she just laid there because she did not know that anything
was wrong.

       On another occasion, the victim testified that she went squirrel hunting with defendant,
and some family members. She and defendant went to the same place on top of the hill behind
the house. There, defendant cleared a spot on the hill and looked for squirrels. Defendant was
wearing an orange hunting jumpsuit. He took off the jumpsuit and unbuttoned and unzipped his
jeans. Defendant pulled her pants and underwear down to her ankles. He laid her on her back,
got on top of her, and touched her vagina with his penis. Defendant moved his penis with his
hand “around a little bit.” According to the victim, the assault concluded when one of the family
members fired a weapon, presumably at a squirrel.

         On a third occasion, the victim testified that she was wearing her swimsuit after a day of
swimming. It was summer and she believed that at the time of the events she was seven years
old. She told defendant that she wanted to be recorded singing. After defendant recorded her
singing, he told her to go into her bedroom, which she did. The victim testified that defendant
laid her on the bed on her back, got on top of her, and removed his penis from his underwear. He
moved the victim’s swimsuit bottoms to the side, and he made contact with her vagina with his
penis. Defendant eventually got tired, rolled over toward the wall, and went to sleep. The victim
testified that she also went to sleep.

      In another instance, defendant and the victim were collecting wood together in the
woodshed. She turned around and observed defendant masturbating.

         According to the victim, the last incident occurred when she was lying on the couch using
defendant (who was sitting on the couch) as a pillow while watching television. Defendant
removed his penis from his jeans and “was kind of forcing [her] head into his penis” with his
hand behind her head. Defendant was pushing on the victim’s head with such force that her
mouth “broke open” causing her mouth to come in contact with defendant’s penis. The victim
testified that when defendant heard a family member in the kitchen, he lifted her off of him, put
his penis back in his jeans, and looked around the corner to see if anyone was coming.

        Defendant denied all of the allegations, testifying that he was 50 years old and had no
criminal history. He further testified that he had been around many children as a martial arts
instructor, basketball and baseball coach. A former student and a former spouse testified on
defendant’s behalf, both stating that defendant always acted appropriately around children.
Additionally, defendant testified that he was always guarded and careful around children.

        While eliciting evidence from defendant’s prior spouse, Tina Watz, defendant’s counsel
inquired whether she would have any concerns with leaving her daughter with defendant. Watz
said, “None whatsoever.” The prosecutor objected. The trial court overruled the objection
stating, in relevant part: “Her opinion as to [defendant’s] character for sexual morality or good
morals is relevant for the defense. I’ll allow you some leeway, [defense counsel].”


                                                -2-
         The victim’s mother, to whom defendant had been engaged but never married, was called
to testify as a rebuttal witness for the prosecution. She testified to a myriad of issues regarding
her decision not to marry defendant, but of relevance here was her opinion that defendant viewed
pornography almost daily. Additionally, she testified that if she declined defendant’s sexual
advances, he would lie in the bed beside her and masturbate.

       Defendant was convicted and sentenced as indicated above. This appeal ensued.

                                          II. ANALYSIS.

        On appeal, defendant argues that he was denied his right to a fair trial because the
prosecution presented highly prejudicial rebuttal testimony from the victim’s mother. The basis
for barring its admission, defendant contends, is that the evidence was not relevant under MRE
402 and even if relevant, its probative value was far outweighed by its prejudicial nature,
contrary to MRE 403. Defendant argues the evidence was introduced to make him appear
“dangerously lecherous.”

        Defendant did not object to this testimony at trial; therefore, this issue is unpreserved.
People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004). Unpreserved evidentiary issues are
reviewed for plain error affecting substantial rights. Id. Defendant must show that he “was
actually innocent or that the error seriously affected the fairness, integrity, or public reputation of
the judicial proceedings independent of his innocence.” Id.

        Though somewhat unclear, we begin our analysis by noting that the trial court seemingly
allowed introduction of the evidence, and defendant offered the evidence, to demonstrate that
defendant never acted in a sexually inappropriate way with or around children. Here, defendant
offered testimony that he had been around hundreds of children and never acted in an
inappropriate manner, thereby establishing his character for having “ ‘good sexual morals’
around children.” Thereafter, the prosecutor seemingly felt obligated to introduce testimony
from defendant’s ex-fiance that he viewed pornography daily. However, if this testimony was
relevant to refute defendant’s character for good sexual morals; this evidence should have been
admitted in the form of opinion or reputation evidence. MRE 405(a); People v Roper, 286 Mich
App 77, 97; 777 NW2d 483 (2009). On cross-examination, defendant did not claim that he
never viewed pornography or that he lacked a sex drive. As a result, the prosecution was unable
to refute defendant’s character through testimony of specific instances of conduct pursuant to
MRE 405(a). Id.

        Furthermore, this case did not involve a charge, claim, or defense in which defendant’s
character was an essential element. See People v Harris, 458 Mich 310, 318; 583 NW2d 680
(1998) (providing “the competency of the driver in an action for negligently entrusting a motor
vehicle to an incompetent driver, or the truthfulness of a person in an action for defamation of
the person’s allegedly ‘untruthful’ character” as examples in which “the character of a person
may be an element of the crime, claim, or defense”). Accordingly, the prosecution could not
present evidence of specific instances of conduct to rebut defendant’s character pursuant to MRE
405(b). See Roper, 286 Mich App at 99. Therefore, we find that the complained of testimony
was inadmissible under MRE 404(a) or 405.


                                                 -3-
       Additionally, this evidence was not admissible under MRE 608. MRE 608 provides:

               (a) Opinion and reputation evidence of character. The credibility of a
       witness may be attacked or supported by evidence in the form of opinion or
       reputation, but subject to these limitations: (1) the evidence may refer only to
       character for truthfulness or untruthfulness, and (2) evidence of truthful character
       is admissible only after the character of the witness for truthfulness has been
       attacked by opinion or reputation evidence or otherwise.

               (b) Specific instances of conduct. Specific instances of the conduct of a
       witness, for the purpose of attacking or supporting the witness’ credibility, other
       than conviction of crime as provided in Rule 609, may not be proved by extrinsic
       evidence. They may, however, in the discretion of the court, if probative of
       truthfulness or untruthfulness, be inquired into on cross-examination of the
       witness (1) concerning the witness’ character for truthfulness or untruthfulness, or
       (2) concerning the character for truthfulness or untruthfulness of another witness
       as to which character the witness being cross-examined has testified.

               The giving of testimony, whether by an accused or by any other witness,
       does not operate as a waiver of the accused’s or the witness’ privilege against
       self-incrimination when examined with respect to matters which relate only to
       credibility.

        In this case, the testimony that defendant viewed pornography did not attack his
credibility as a witness because, as discussed above, he never testified that he did not watch
pornography. Thus, MRE 608 does not apply.

        However, our analysis does not end with our finding that the testimony was erroneously
admitted. Even if the trial court erred in admitting this testimony, defendant must still
demonstrate to this Court that the admission of the complained of evidence constituted a plain
error affecting his substantial rights. Knox, 469 Mich at 508. Id. In order to prevail, defendant
must demonstrate plain error affecting his substantial rights, meaning that he was actually
innocent or that the error seriously affected the fairness, integrity, or public reputation of the
judicial proceedings independent of his innocence. People v Carines, 460 Mich. 750, 763; 597
NW2d 130 (1999).

        Viewing the record to discern whether admission constituted plain error affecting
defendant’s substantial rights, we note that the complained of testimony at issue was brief. The
prosecution asked the victim’s mother why she called off her engagement to defendant during
the prosecution’s rebuttal. She explained, among other reasons, that defendant was paranoid
about the government and that he viewed pornography almost daily. She told the jury that
defendant wanted to have sex every day, and if she would not have sex with him, he would lie
next to her in the bed and masturbate. On cross-examination, she clarified that defendant viewed
pornography in the trailer on the family’s property and not in the house around the children. No
other witnesses talked about pornography or defendant’s sexual habits, and the prosecution did
not include anything about pornography in its closing arguments.


                                               -4-
        The record also reveals that the victim testified at length regarding several instances in
which defendant touched her inappropriately. The jury convicted defendant of three counts of
CSC-II on the basis of three incidents described by the victim and acquitted defendant of the
remaining four charges: CSC-II and fourth-degree criminal sexual conduct (CSC-IV) involving
the victim’s sibling; first-degree criminal sexual conduct (CSC-I); and indecent exposure.
Viewing the totality of the record and the jury’s findings in this matter, we cannot conclude that
defendant is correct in his assertion on appeal that the jury gave this evidence undue weight or
used it for an improper purpose. See Roper, 286 Mich App at 106 (stating that “ [a]lthough there
is always a risk that the jury will give character evidence undue weight or use it for an improper
purpose, . . . we do not agree that the probative value of the evidence was ‘substantially
outweighed by the danger of unfair prejudice’ ”).

       Finally, the trial court included the following in its instructions to the jury:

              You have heard evidence about the defendant’s character for good sexual
       morals. You may consider this evidence together with all of the other evidence in
       the case in deciding whether the defendant committed the crime with which he is
       charged.

              Evidence of good character alone may sometimes create a reasonable
       doubt in your minds and lead you to find the defendant not guilty.

               The Prosecutor also called witnesses to testify that the defendant does not
       have good character described by the defendant’s character witnesses. This
       evidence can only be considered by you in judging whether you believe that
       defendant’s character witnesses and whether the defendant has good – good
       character for good sexual morals. It is not evidence that the defendant committed
       the crime charged.

       Based on our review of the evidence in this matter, we conclude that the introduction of
the complained of evidence constituted plain error affecting his substantial rights. Knox, 469
Mich at 508, Carines, 460 Mich at 763. Accordingly, defendant is not entitled to relief.

       We next turn to defendant’s contention that the failure of his trial counsel to object to the
complained of testimony constituted ineffective assistance of counsel such that he is entitled to a
new trial.

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The
trial court’s “factual findings are reviewed for clear error, while its constitutional determinations
are reviewed de novo.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
However, because defendant failed to move for a new trial or an evidentiary hearing, this Court’s
review of his ineffective assistance of counsel claim is limited to errors apparent on the record.
People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “Clear
error exists if the reviewing court is left with the definite and firm conviction that the trial court
made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).



                                                 -5-
        To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
Sabin (On Second Remand), 242 Mich App at 659. “A defendant must overcome a strong
presumption that the assistance of his counsel was sound trial strategy, and he must show that,
but for counsel’s error, the outcome of the trial would have been different.” Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 6743 (1984); People v Pickens, 446 Mich
298, 302-303; 521 NW2d 797 (1994); People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
(1994).

        Assuming without deciding that defense counsel was deficient for not objecting to this
testimony, defendant has not shown that this error was outcome-determinative. As previously
explained, there was extensive testimony regarding several instances in which defendant touched
the victim inappropriately, and the trial court provided a limiting jury instruction regarding
character evidence. In addition, if defense counsel did object to this testimony, the prosecution
could have rephrased the question and asked for the same or similar information in the form of
an opinion, thereby making the evidence admissible. Hence, it was not inevitable that an
objection from defense counsel would have barred this evidence. In consideration of all of these
factors, we find defendant failed to establish that absent defense counsel’s error, “the outcome of
the proceedings would have been different.” Stanaway, 446 Mich at 687. Accordingly,
defendant is not entitled to relief on this issue.

       Next, defendant argues that he is entitled to a remand to the trial court to amend the
presentence investigation report (PSIR) to comport with the trial court’s rulings at the sentencing
hearing. “This Court reviews a trial court’s response to a defendant’s challenge to the accuracy
of a PSIR for an abuse of discretion.” People v Uphaus, 278 Mich App 174, 181; 748 NW2d
899 (2008). “A trial court abuses its discretion when it selects an outcome outside the range of
reasonable and principled outcomes.” Id.

       At sentencing, defendant objected to the inclusion of several paragraphs in the Agent’s
Description of the Offense section of the PSIR. The trial court agreed to remove sections
describing conduct of which defendant was acquitted. However, the trial court declined to omit
paragraphs describing conduct that was not presented to the jury.

        We have reviewed the PSIR and the paragraphs describing conduct of which defendant
was acquitted have been removed. The paragraphs describing conduct that was not presented to
the jury remain, which fully comports with the trial court’s rulings. On appeal, defendant does
not contend that these paragraphs were included in error. Instead, he asserts that his case should
be remanded for a correction of the PSIR to comport with the trial court’s rulings. However, the
PSIR already conforms to the trial court’s rulings at the sentencing hearing. Therefore, the PSIR
is correct and defendant is not entitled to a remand.




                                                -6-
        Defendant raises two additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4.2 It is difficult to comprehend
defendant’s first argument, but to the extent that we can discern the nature of his claim, he seems
to argue that he was denied a fair trial and that Missaukee County did not have probable cause to
arrest and bind him over for trial.

       Defendant did not file a motion to quash the district court’s bind over; therefore this
unpreserved issue is reviewed for plain error affecting his substantial rights. People v Noble, 238
Mich App 647, 658; 608 NW2d 123 (1999).

                 The primary function of the preliminary examination is to determine
          whether a crime has been committed and, if so, whether there is probable cause to
          believe that the defendant committed it. Probable cause that the defendant has
          committed a crime is established by evidence sufficient to cause a person of
          ordinary prudence and caution to conscientiously entertain a reasonable belief of
          the defendant’s guilt. To establish that a crime has been committed, a prosecutor
          need not prove each element beyond a reasonable doubt, but must present some
          evidence of each element. Circumstantial evidence and reasonable inferences
          from the evidence can be sufficient. If the evidence conflicts or raises a
          reasonable doubt, the defendant should be bound over for trial, where the
          questions can be resolved by the trier of fact. [People v Henderson, 282 Mich
          App 307, 312; 765 NW2d 619 (2009) (citations omitted).]

“The probable-cause standard of proof is, of course, less rigorous than the guilt-beyond-a-
reasonable-doubt standard of proof.” People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003)
(quotation marks and citation omitted).

        At the outset, defendant does not identify the alleged false or inaccurate statements that
the victim made in the police report that was filed in Missaukee County. In addition, defendant
fails to explain how a trial that occurred in Grand Traverse County had any bearing on the
fairness of the trial in this case. Here, defendant has failed to present this Court with a legally
cognizable claim. Defendant has not demonstrated any evidence from which we could conclude
that the proceedings against him were unfair or that there was insufficient evidence to bind him
over for trial. Accordingly, defendant is not entitled to relief on this issue.

        The next issue in his Standard 4 brief apparently concerns defendant’s contention that he
was denied his right to the effective assistance of counsel because he was unable to present
character witnesses and evidence that the victim’s mother made a threat to him when he stopped
financially supporting her. Because defendant failed to move for a new trial or an evidentiary
hearing, this Court’s review of his ineffective assistance of counsel claim is limited to errors
apparent on the record. Sabin, (On Second Remand), 242 Mich App at 659.




2
    The State did not file a response to defendant’s Standard 4 brief.


                                                  -7-
        First, to the extent that defendant argues that defense counsel should have called
additional character witnesses we note that trial counsel did call two witnesses who testified that
defendant exhibited good moral character around children. Thus, defendant’s contention that he
was denied the opportunity to present character witnesses is without merit. Second, defendant
has failed to identify the other witnesses defense counsel should have called or explained what
these witnesses would have said to further promote his defense. In sum, defendant has failed to
make any record from which this Court could review his claims. As a result, defendant failed to
demonstrate that his counsel was deficient in this regard. Sabin, (On Second Remand), 242 Mich
App at 659, and he is not entitled to relief.

        In addition, defendant claims that defense counsel was ineffective for failing to present
evidence that the victim’s mother threatened him after he stopped providing her with financial
support. The investigating sheriff’s deputy testified that he questioned defendant regarding a
possible motivation for the victims to lie. When questioned, defendant did not indicate a reason
for them to falsely create the allegations. Further, defendant testified on his own behalf
regarding his relationship with the family and when he last had contact with them. In his
testimony, he did not mention that he was threatened by the victim’s mother when he stopped
providing financial assistance. In fact, defendant has failed to show that defense counsel was
even aware of any type of threat against defendant from the victim’s mother. Accordingly,
defendant has not established that his counsel’s performance fell “below an objective standard of
reasonableness” for not presenting evidence of this alleged threat. Id. Additionally, defendant
has again failed to demonstrate how any of the alleged errors affected the outcome or his trial or
that the outcome of the trial would have been different. Stanaway, 446 Mich at 687. As a result,
defendant has not shown that defense counsel was ineffective, and he is not entitled to relief.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Stephen L. Borrello
                                                            /s/ Deborah A. Servitto




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