            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 14, 2019
               Plaintiff-Appellee,

v                                                                   No. 343986
                                                                    Ingham Circuit Court
ARIQUE DANTE ARDISTER,                                              LC No. 17-000238-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.

PER CURIAM.

       Defendant was convicted by a jury of four counts of third-degree criminal sexual
conduct, MCL 750.520d(1)(a) (sexual penetration with a person at least 13 and under 16 years of
age). The trial court sentenced defendant to serve four to 15 years’ imprisonment. Defendant
appeals as of right. We affirm.

                                            I. FACTS

        In the fall of 2015, the then 14-year-old victim met defendant, who was a friend of her
older sister. The victim began socializing regularly with defendant and her sister’s other friends.
The victim’s mother testified that thereafter she noticed that the victim’s behavior changed; the
victim stopped getting good grades at school, stopped socializing with her usual school friends,
began to socialize exclusively with her older sister’s friends including defendant, and began to
do her own laundry. When the mother questioned the victim about wearing a different type of
underwear than usual, the victim replied merely that she was growing up.

        In April 2016, the victim’s mother learned that while she had been out of town, defendant
and the victim had been stopped by police while driving together at 3:00 in the morning. When
the mother questioned her about whether she was having a sexual relationship with defendant,
the victim denied it. The victim’s mother also confronted defendant about whether he and the
victim were engaged in a sexual relationship, which defendant denied.

        In October 2016, the victim’s mother found notecards in the victim’s room, written by the
victim, in which the victim expressed that she loved some person, was sad because their sexual


                                                -1-
relationship had ended, and was hurt because the person had a new girlfriend. Upon reading the
notecards, the victim’s mother demanded to look at the victim’s cell phone where she discovered
sexually suggestive text messages between the victim and defendant. The victim then admitted
to her mother that she had been having a sexual relationship with defendant. When the victim’s
mother again confronted defendant about the relationship, he sent her a message denying the
relationship, but also saying that it was nothing to be concerned about because the victim was
unhurt and was not pregnant.

        Defendant was charged with third-degree criminal sexual conduct, MCL 750.520d(1)(a).
At trial, when the victim’s mother testified that she learned about the relationship after
discovering the notecards, the prosecutor asked her to read the notecards to the jury. The trial
court asked defense counsel if he objected, and defense counsel stated “No, I’ve seen them. No
objection, your Honor.”

        Thereafter, the victim testified that she first had sex with defendant in January 2016 when
she was 15 and defendant was 22 years old. The victim further testified that from that time until
October 2016, she and defendant had sexual intercourse every weekend. She also testified that
she had written the notecards because she was upset and was attempting to process her feelings.
At the conclusion of trial, the jury found defendant guilty of four counts of third-degree criminal
sexual conduct. Defendant now appeals, challenging the effectiveness of his counsel at trial.

                                        II. DISCUSSION

        Defendant contends that he was denied the effective assistance of counsel at trial because
his counsel did not seek to exclude from evidence the victim’s statements as recorded in the
notecards. Defendant argues that the victim’s statements in the notecards were inadmissible
hearsay because the sole purpose of the admission of the statements was to bolster the victim’s
credibility and corroborate the complainant’s testimony. We disagree that defense counsel at
trial was ineffective.

        The right to counsel is guaranteed by both the United States and Michigan Constitutions,
US Const, Am VI; Const 1963, art 1, §20, and includes the right to the effective assistance of
counsel. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). To preserve a claim of
ineffective assistance of counsel a defendant is required to move for a new trial or for an
evidentiary hearing before the trial court. People v Head, 323 Mich App 526, 538-539; 917
NW2d 752 (2018). Where, as here, the defendant fails timely to raise ineffective assistance of
counsel before the trial court, the issue is unpreserved and our review of the issue is limited to
error apparent on the record. See Id. at 539.

         Whether a defendant was deprived of effective assistance of counsel is a mixed question
of fact and law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review
the trial court’s factual findings for clear error, and review questions of law de novo. Head, 323
Mich at 539. Whether counsel was effective is an objective standard that requires us to
determine whether the acts or omissions by counsel in question were outside the wide range of
professionally competent assistance. Vaughn, 491 Mich at 669. To establish a claim of
ineffective assistance of counsel, the defendant must demonstrate “(1) that trial counsel’s
performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.”

                                                -2-
People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). Prejudice in this context means “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., quoting Strickland v Washington, 466 US 668, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984). This Court presumes that defense counsel provided effective
assistance, and the burden upon the defendant to prove that counsel was ineffective is a heavy
one. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).

        When a defendant claims ineffective assistance of counsel, he or she also has the burden
of establishing the factual predicate of the claim. People v Douglas, 496 Mich 557, 592; 852
NW2d 587 (2014). Here, defendant’s underlying assertion is that defense counsel at trial was
ineffective because he failed to object to the admission into evidence of the victim’s statements
in the notecards, which defendant contends was inadmissible hearsay.

        Hearsay is defined by MRE 801(c) as “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.” Generally, hearsay is inadmissible. MRE 802; People v Shaw, 315 Mich App
668, 673; 892 NW2d 15 (2016). However, if evidence is offered for a purpose other than to
prove the truth of the matter asserted, then it is not hearsay by definition. People v Musser, 494
Mich 337, 350; 835 NW2d 319 (2013). For example, when a statement is offered to explain why
certain action was taken, it is not hearsay. People v Chambers, 277 Mich App 1, 11; 742 NW2d
610 (2007). Thus, an out-of-court statement may be admitted to show the effect of the statement
on the hearer or the reader, if that effect is relevant. People v Ortiz, 249 Mich App 297, 309; 642
NW2d 417 (2002).

        Here, the victim’s statements in the notecards were not introduced to prove the truth of
the matter asserted in the statements, which was that she had been in a sexual relationship with
someone and was sad that the relationship had ended. Rather, the statements were offered during
the victim’s mother’s testimony to demonstrate that the statements had the effect of causing the
mother to confront first the victim and then defendant with her suspicions of a sexual
relationship between the victim and defendant. Because the statements were not offered to prove
the truth of the matter asserted in the statements, they were not hearsay and were not subject to
objection on that ground. See Musser, 494 Mich at 350. Counsel was not ineffective for failing
to raise a meritless or futile objection. People v Putnam, 309 Mich App 240, 245; 870 NW2d
593 (2015).

        In addition, counsel’s decision not to challenge the admissibility of the statements in the
notecards appears to have been part of his defense strategy. Generally, decisions regarding
whether to raise objections are presumed to be matters of trial strategy, and declining to object to
evidence often is consistent with sound trial strategy. People v Unger, 278 Mich App 210, 242-
243; 749 NW2d 272 (2008). Failure to object to inadmissible hearsay evidence is objectively
unreasonable when defense counsel has no basis to reasonably conclude that allowing the
inadmissible hearsay testimony would create a tactical advantage for the defense. Shaw, 315
Mich App at 676-677. But defense counsel may choose not to object to the admission of
evidence for strategic reasons, and if the strategy is reasonable, then counsel’s performance in
that regard is not deficient. Randolph, 502 Mich at 12.


                                                -3-
         In this case, our review of the record reveals that defense counsel’s theory of the case was
that defendant had been falsely accused by the victim, who was infatuated with defendant and
longed to be romantically involved with her older sister’s friend. During his opening statement
at trial, defense counsel referenced the notecards, and explained to the jury that the notecards
demonstrated that the victim was in love with the defendant and was upset that her feelings were
not reciprocated, and perhaps wished for others to believe that she was in a relationship with
defendant. Defense counsel stated, in relevant part:

       There’s two sides to every story, and this one you can figure out. This case is
       really about three note cards. This young lady – well, you wouldn’t really call it a
       letter and you wouldn’t really call it a diary entry, but she wrote on three
       notecards her feelings for Arique Ardister. Now, this isn’t -- this isn’t a young gal
       that just had casual contact with Mr. Ardister. Her sister lived with Mr. Ardister
       for quite a while. They were all –all friends. And, this young lady’s mother used
       to let her go, pretty much, wherever she wanted to go whenever she wanted to go.

               So, like most teenage girls if she can get out of the house and go
       someplace else well that’s what she was going to do and that’s what she did. She
       followed her sister, Kelsie. Now, all of the things that the Prosecutor told you
       happened were supposed to have happened at times when they were in about an
       800 square foot house with a whole bunch of people. It never happened. [The
       victim] wrote something on a card, and you’ll see it.

                I’m not going to tell you what the evidence is, you guys can hear it – that
       said that she made love to Arique. That was how she felt. She also wrote on that
       card that she was upset because Arique had a girlfriend and Arique wasn’t paying
       as much attention to her. You’re going to find out that Arique was this little girl’s
       fallback, just like the rest of [the] folks that hung out in that group. That this little
       girl, this is who she relied on. She relied on these people.

                                               ***

               And, it couldn’t have happened. Based on that alone I think you’ll get a
       really good flavor of what this is. This little girl was in love with this character
       over here. She thought he was one of the greatest roller skaters that ever lived.
       And he paid attention to her when nobody else would, and he talked to her just
       like the rest of the kids did. And, she fell in love with him. I don’t think there’s
       any question about that. And she wrote these three notecards at some point, and
       for some reason she stuck them … in the mirror in her bedroom. I don’t know
       why she did that. I think maybe you’ll be able to figure it out. Maybe she wanted
       her mother to find them. I don’t know, maybe she wanted some attention. Who
       knows? I have no idea what teenage girls [do]. I had enough trouble with my
       own. But, one thing is true, that’s what she wanted to happen. That’s not what
       happened.




                                                 -4-
Again during closing argument, defense counsel argued that the victim was young, emotional,
and infatuated with the defendant, as illustrated by the notecards, and that the victim therefore
fabricated the relationship.

        This Court will not second-guess trial counsel in matters of trial strategy, nor do we
assess counsel’s performance with the benefit of hindsight. People v Foster, 319 Mich App 365,
391; 901 NW2d 127 (2017). In addition, simply because defense counsel’s chosen strategy is
unsuccessful does not render his or her performance constitutionally defective. People v
Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2002). Here, the record as a whole
demonstrates that counsel used the statements in the notecards to show that the victim was
infatuated with defendant, consistent with the defense’s theory of the case, and defendant has
failed to overcome the strong presumption that his trial counsel’s performance was sound.

         In addition, a defendant claiming ineffective assistance of counsel must establish that
there is a reasonable probability that, but for counsel’s alleged error, the outcome of the
proceedings would have been different. People v Jackson, 313 Mich App 409, 431; 884 NW2d
297 (2015). Here, the evidence against defendant was substantial. The victim testified with
specificity regarding the times, places, and details of her relationship with defendant. She
testified that she and defendant had sex when she was 15 years old and he was 22 years old, and
that they had sexual intercourse every weekend from January 2016 until October 2016. This
testimony is consistent with that of the victim’s sister and mother that the victim spent weekends
in defendant’s company, often staying overnight at defendant’s house, during that time period.
The victim’s mother also testified that the victim’s behavior changed in ways that prompted her
to suspect a relationship between the victim and defendant. The victim’s testimony also was
corroborated by defendant’s sexually suggestive messages with the victim and his message to the
victim’s mother denying the relationship, but suggesting that if it had occurred it was not
concerning because the victim was unhurt and not pregnant. In light of the other evidence of
defendant’s guilt, defendant cannot establish that the result of the proceedings would have been
different had counsel successfully objected to the admission of the statements in the notecards.

       Affirmed.



                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola
                                                            /s/ James Robert Redford




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