                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 6, 2017
                Plaintiff-Appellee,

v                                                                  No. 329845
                                                                   Wayne Circuit Court
TYWON DEON HAMILTON,                                               LC No. 15-002167-01-FH

                Defendant-Appellant.


Before: RIORDAN, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of second-degree criminal sexual
conduct (“CSC-II”), MCL 750.520c(1)(a) (sexual contact with a person under 13), dissemination
of sexually explicit material to a minor, MCL 722.675, and aggravated indecent exposure, MCL
750.335a(2)(b). He was sentenced as a fourth habitual offender, MCL 769.12, to 25 to 40 years’
imprisonment for the CSC-II conviction, 10 to 15 years’ imprisonment for the distribution of
sexually explicit material to a minor conviction, and 10 to 15 years’ imprisonment for the
aggravated indecent exposure conviction. We affirm.

                                 I. FACTUAL BACKGROUND

        Defendant’s convictions are related to an encounter between defendant and the minor
complainant, MD, in the fall of 2012, when MD was in second grade. At trial, the prosecution
called three witnesses: MD; MD’s mother, Miieshia Duhart; and City of Detroit Police
Investigator Kimberly Turner. MD testified that defendant called her into the bathroom while he
was babysitting MD and her younger siblings. When she arrived at the bathroom, defendant was
unclothed. MD tried to walk away, but defendant pulled her back inside the bathroom. He then
showed her a video on his cellular telephone which depicted him “humping” his girlfriend
without any clothes on.1 MD testified that, while the video was playing, defendant was “messing
with his private part[,]” and “[w]hite stuff came out [of] the top.” Later the same night, while
MD was lying in bed with her younger siblings and defendant, defendant, while looking at his
cellular telephone, put his hand inside her pajama pants and rested it on her “cookie.” When


1
    MD testified that she learned the word “humping” from defendant.


                                               -1-
asked what body part she calls her cookie, MD explained that it is the “middle part” where pee
comes out when she goes to the bathroom. Soon afterward, MD heard Duhart return home and
call out for defendant to open the front door, prompting MD to tell defendant that her mother was
asking him to open the door. Before leaving MD’s room to assist Duhart, defendant said, “Don’t
tell or I’m going to spank you.” MD did not immediately disclose the events to any friends or
family members. However, she testified at trial that she first disclosed the incident to Duhart.

        Duhart testified that MD disclosed the incidents to her in October 2013, after the family
had moved to another house. At the time, MD was cleaning a bathroom and called her mother
inside, stating that she had something to tell Duhart. Duhart explained that MD said defendant
called her into the bathroom on an earlier occasion and showed her a video of himself and his
girlfriend. MD also told Duhart that defendant was naked when he showed her the video and
that he was “playing with [him]self.” Duhart asked MD if defendant touched her, and MD said,
“Not then,” but went on to explain that defendant had put his hand in MD’s pants in the morning
on a different day, “right before they got up to get ready for school . . . .”

       Investigator Turner testified that she took a voluntary statement from defendant on
December 12, 2013. Defendant denied MD’s allegations, but acknowledged making a sexual
video where he engaged in sexual intercourse with two women at the same time, one of whom
was the same woman, defendant’s girlfriend, that MD identified as participating in the sexual
video that defendant showed her on his cellular telephone. Defendant explained that the video
was too dark to see anything on the screen but shadows. He did not know how MD had become
aware of its existence.

                                     II. PLEA AGREEMENT

        Defendant first argues that the trial court erred by rejecting a plea agreement based solely
on the sentencing judge’s stated policy of never ordering sentences that fall outside of the
minimum range calculated under the sentencing guidelines. According to defendant, because of
this alleged error, this Court ought to order specific performance of the plea agreement. We
disagree.

         When the trial court refused to accept the parties’ plea agreement, defendant raised no
objection to the professed sentencing policy and, instead, chose to withdraw his plea and proceed
to trial. Thus, this issue is unpreserved, see People v Metamora Water Serv, Inc, 276 Mich App
376, 382; 741 NW2d 61 (2007), and reviewed for plain error affecting his substantial rights,
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); see also People v Plumaj, 284
Mich App 645, 650; 773 NW2d 763 (2009). To demonstrate plain error, a defendant must show
that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the
defendant’s] substantial rights,” which “generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Carines, 460 Mich at 763 (citation
omitted). Even if a defendant establishes a plain error that affected his substantial rights,
“[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763
(quotation marks and citation omitted; second alteration in original).


                                                 -2-
        On May 7, 2015, the parties reached a plea agreement, under which the prosecution
agreed to dismiss the charges against defendant and withdraw the habitual offender notice if
defendant pleaded guilty to assault with intent to commit penetration, MCL 750.520g(1), with a
sentence of 18 months to 10 years’ imprisonment. The trial court immediately expressed
reluctance to accept a plea agreement that called for an 18-month minimum sentence in light of
the serious criminal sexual conduct offense involving a minor child with which defendant had
been charged. After continuing to discuss with the parties whether the plea agreement was
appropriate, the trial court briefly adjourned the hearing to allow the prosecution to calculate the
minimum guidelines range for the original charges. After a brief recess, the prosecution advised
the trial court that the parties believed that the recommended minimum sentence range for the
original charges, without the habitual offender enhancement, was 5 to 17 months’
imprisonment.2

        When the trial court questioned defendant about the plea agreement, defendant initially
stated that he did not want to accept the plea. After speaking with his attorney, however,
defendant chose to plead guilty under the terms of the agreement. The trial court accepted
defendant’s plea and directed the parties to return on May 21, 2015 for sentencing.

        At the sentencing hearing, the trial court reviewed the accuracy of the presentence
investigation report (“PSIR”) and the sentencing information report (“SIR”) on the record and
reduced the number of points assessed under several variables. The parties determined that
defendant’s reduced score placed him in the E-II cell, which called for a recommended minimum
sentence range of 19 to 38 months’ imprisonment. The trial court observed that the plea
agreement called for a sentence that was below the guidelines recommendation and said, “I can’t
accept that. I don’t do any sentencing outside of guidelines in this courtroom.” The trial court
told defendant that he could accept a minimum sentence of 19 months or go to trial, and
defendant chose to withdraw his plea and proceed with trial.

        To the extent that defendant further contends that the trial court erred by relying on a
personal sentencing policy as the basis for rejecting the parties’ plea agreement, thereby
contravening Michigan’s policy of imposing individualized sentences, we disagree with this
assertion.

        “When a prosecutor and a defendant agree to a specific sentence disposition in exchange
for a guilty plea, the trial court can either accept or reject it or defer action until the court has had
an opportunity to consider the presentence report.” People v Johnson, 210 Mich App 630, 632;
534 NW2d 255 (1995), citing People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834
(1982), and MCR 6.302(C)(3). If a trial court accepts a sentence agreement before reviewing the
PSIR, it is not bound by the sentence agreement until it has had an opportunity to do so. People
v Baker, 215 Mich App 606, 608; 547 NW2d 62 (1996). In other words, “the judge must have
considered the presentence report before final acceptance of the sentence agreement.” Killebrew,


2
  The parties’ initial calculation of defendant’s sentencing guidelines range was incorrect. It was
later determined that scoring the sentencing guidelines resulted in a recommended minimum
range of 19 to 38 months.


                                                  -3-
416 Mich at 207. Should the trial court ultimately choose to reject an agreement that includes a
sentence for a particular term or within a stated range, it must give the defendant an opportunity
to affirm or withdraw his plea. Id.; MCR 6.302(C)(3).

        Here, the trial court accepted defendant’s plea at the May 7, 2015 hearing, before
defendant’s PSIR and SIR were prepared or reviewed. Accordingly, at that time, it was not yet
obligated to sentence defendant pursuant to the terms of the sentence agreement. MCR
6.302(C)(3); Baker, 215 Mich App at 608. Importantly, before accepting defendant’s plea, the
trial court questioned the parties about the minimum range calculated under the sentencing
guidelines for the offense and was misinformed by the parties that the sentence agreement fell
within the applicable guidelines range. Later, when the PSIR and SIR were finalized, it became
apparent to the trial court that the sentence agreement called for a minimum sentence that fell
below the applicable guidelines range. Dissatisfied with such a result, the trial court advised
defendant that it would not impose the agreed-upon sentence and, consistent with the
requirements of MCR 6.302(C)(3), allowed defendant to withdraw his plea. Thus, the
procedural requirements of MCR 6.302(C)(3) were satisfied.

        Further, the trial court’s rejection of the plea agreement did not amount to plain error,
based on Michigan’s individualized sentencing policy, merely because the trial court stated on
the record that it does not impose sentences outside of the guidelines range. As defendant
contends, a sentence is invalid when it is imposed pursuant to a “local sentencing policy rather
than individualized facts.” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997) (citation
omitted). For example, in People v Chapa, 407 Mich 309, 310-311; 284 NW2d 340 (1979), the
Michigan Supreme Court held that the trial court erred by declining to exercise its sentencing
discretion and, instead, sentenced the defendant on the basis of a local policy of imposing harsh
penalties on heroin dealers. Here, however, the court did not impose any sentence based on
defendant’s plea agreement with the prosecution, let alone a sentence that failed to reflect the
particular circumstances of defendant’s case. Defendant maintains that the trial court
impermissibly relied on a sentencing policy, rather than making an individualized determination
regarding the appropriate sentence, but this argument fails. All of the cases on which defendant
relies in his brief on appeal were cases decided before either of the Michigan sentencing
guideline schemes were in place. See People v Hegwood, 465 Mich 432, 437-439; 636 NW2d
127 (2001) (explaining that judicial sentencing guidelines promulgated by the Michigan
Supreme Court were in effect from 1983 to 1999, at which time the statutory sentencing
guidelines, MCL 777.1 et seq., went into effect). As a result, this authority provides no insight
regarding the ways in which the sentencing guidelines take into account and facilitate execution
of “the principle that sentencing must be individualized and tailored to the particular
circumstances of the case and the offender at the time of sentencing . . . .” People v Triplett, 407
Mich 510, 515; 287 NW2d 165 (1980). See also Chapa, 407 Mich at 311; People v McFarlin,
389 Mich 557, 574; 208 NW2d 504 (1973).

       “[T]he very purpose of the sentencing guidelines is to facilitate proportionate sentences”
based on the severity of the sentencing offense and the defendant’s criminal history, People v
Smith, 482 Mich 292, 305; 754 NW2d 284 (2008), and scoring the guidelines necessarily results
in an individualized determination of a sentence that “is a function of the seriousness of the
crime and of the defendant’s criminal history.” People v Babcock, 469 Mich 247, 264; 666
NW2d 231 (2003). See also MCL 777.21 and 777.22 (describing the way in which the

                                                -4-
sentencing guidelines are scored); MCL 777.31 to MCL 777.57 (describing the offense and prior
record variables). Cf. People v Milbourn, 435 Mich 630, 658; 461 NW2d 1 (1990) (stating, with
regard to the former judicial sentencing guidelines, “[W]e believe that it is safe to assume that in
the eyes of the vast majority of trial judges who have chosen to impose sentences within the
guidelines ranges, the guidelines reflect the relative seriousness of different combinations of
offense and offender characteristics”). Accordingly, given the fact that application of the
sentencing guidelines necessarily results in an individualized determination of a proportionate
minimum sentence range, defendant has failed to show that the trial court’s stated policy of
sentencing defendants within the sentencing guidelines constitutes a plain error affecting his
substantial rights for the reason he claims. See Carines, 460 Mich at 763-764.

         Last, it is important to note that “[i]f the court concludes that the sentence is inappropriate
to the circumstances or the offender, it is obliged to reject the plea and inform the defendant that
it will not accept the plea or be bound by the agreement.” People v Johnson, 210 Mich App at
632492. Considering, in context, the trial court’s comments at the plea hearing and the initial
sentencing hearing, it is apparent that the trial court believed that defendant deserved a much
greater sentence than the 18-month minimum proposed under the plea agreement in light of the
serious nature of the charges involving a minor child. Thus, we cannot conclude that the trial
court’s rejection of the plea was improper. For all of these reasons, we conclude that defendant
has failed to establish a plain error affecting his substantial rights, or that he is entitled to specific
performance of the plea agreement. See Carines, 460 Mich at 763-764.




                             III. MRE 803A HEARSAY TESTIMONY

        Next, defendant challenges the admissibility, under MRE 803A, of Duhart’s testimony
concerning MD’s statement about the sexual contact with defendant. More specifically,
defendant argues that the evidence did not meet the foundational requirements of MRE 803A
where the trial court did not consider whether (1) MD’s statement to Duhart was MD’s first
corroborative statement, (2) the delay between the date of the charged offenses and MD’s
disclosure was motivated by MD’s fear, and (3) sufficient notice had been provided to defendant
of the prosecution’s intention to admit Duhart’s statement at trial. We disagree.

       “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (citations omitted). In the trial court,
defendant objected to the admission of Duhart’s testimony on several bases. For example,
defense counsel claimed that he was not given proper notice of the prosecution’s intention to
admit Duhart’s testimony in compliance with MRE 803A. Defense also challenged MD’s delay




                                                   -5-
in disclosing the sexual contact with defendant. Accordingly, to the extent defendant now
advances similar arguments on appeal, we note that these issues have been preserved for our
review.3 However, where defendant now criticizes the trial court’s consideration of the
foundational requirement of MRE 803A that MD’s statement be the first corroborative statement
about the sexual contact with defendant, we note that this issue was not preserved in the trial
court. A review of the record illustrates this important point.

       When the trial court questioned the prosecution about its intentions with regard to
admitting Duhart’s statement, the prosecution informed the trial court that Duhart’s testimony
was important because MD had told Duhart about the sexual contact with defendant. Defense
counsel then stated as follows:

               I don’t think that – as I read the [preliminary examination] transcript,
       [MD] talked to the mother’s sister, an aunt, seconds before or shortly before she
       talked to [Duhart]. That’s how the transcript reads to me. But it wasn’t -- that
       was a couple of years later, and that’s the point. [Emphasis added.]

       When the trial court stated that it would need to see how matters relating to MD’s
statement to Duhart “play[ ] out,” declining to rule at that time, defense counsel, the prosecution
and the trial court engaged in the following colloquy regarding the timing of MD’s disclosure to
Duhart:

              Defense Counsel: But Judge, the prosecutor is going to agree with me.
       That was years later. It wasn’t like right after the incident. It was a substantial
       period of time --

               The Court: Well, that’s of no moment.

              Defense Counsel: No, the tender years law says it has to be almost like
       spontaneous –

               The Court: Yes.

               The Prosecutor: No.

               Defense Counsel: -- and soon thereafter.

              The Court: Spontaneous, but it doesn’t have to be immediately after the
       incident.




3
  “A preserved error in the admission of evidence does not warrant reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Burns, 494 Mich 104, 110; 832 NW2d 738
(2013) (quotation marks, footnote and citation omitted).


                                                -6-
               The Prosecutor: It could be years later, as long as the child is under the
       age of ten.

               The Court: That’s all it amounts to.

               Defense Counsel:       Well, the case law doesn’t comport with that.
               [Footnote added.]4

        Therefore, our review of the record, including the balance of Duhart’s testimony, 5
confirms that the only objection to Duhart’s testimony with regard to whether MD “made more
than one corroborative statement about the incident [with defendant],” MRE 803A, was defense
counsel’s very brief and cursory reference, in passing, to whether MD first disclosed the sexual
contact with defendant to Duhart or MD’s godmother. However, as noted above, defense
counsel made it very clear that the delay in MD’s disclosure of the sexual contact with defendant
was the key point being pursued. Accordingly, to the extent that defendant now argues on appeal
that the trial court ought to have conducted further inquiry into whether MD made a
corroborative statement to anyone before Duhart, we again note that defendant did not advance
this argument in any meaningful manner before the trial court, and therefore did not properly
preserve this evidentiary objection for our review. Aldrich, 246 Mich App at 113.

       In People v Girard, 269 Mich App 15, 19; 709 NW2d 229 (2005), this Court, in the
context of considering an unpreserved evidentiary error, concluded as follows:

       To prevail in a claim of unpreserved nonconstitutional error, “[t]he defendant
       must show a plain error that affected substantial rights. The reviewing court
       should reverse only when the defendant is actually innocent or the error seriously
       affected the fairness, integrity, or public reputation of judicial proceedings.”
       [Carines, 460 Mich at 774].

       MRE 803A codified what was commonly known as the “tender years” exception to the
rule against hearsay. People v Douglas, 496 Mich 557, 573; 852 NW2d 587 (2014). The rule
provides:

              A statement describing an incident that included a sexual act performed
       with or on the declarant by the defendant or an accomplice is admissible to the

4
  At this point, the trial court invited defense counsel to direct the trial court’s attention to case
law in support of his arguments concerning the delay in disclosure as it pertained to the
foundational requirements of MRE 803A.
5
  During Duhart’s testimony, defense counsel renewed his objection on the basis of MRE 803A,
specifically noting that his objection pertained to the “tim[ing]” of MD’s statement to Duhart.
Notably, defense counsel did not state that the objection was based on the fact that MD’s
statement to Duhart was not the first corroborative statement that MD made. It is clear to us that
defense counsel was referring to the delay in MD’s disclosure of the sexual contact with
defendant.


                                                 -7-
       extent that it corroborates testimony given by the declarant during the same
       proceeding, provided:

               (1) the declarant was under the age of ten when the statement was made;

               (2) the statement is shown to have been spontaneous and without
       indication of manufacture;

              (3) either the declarant made the statement immediately after the incident
       or any delay is excusable as having been caused by fear or other equally effective
       circumstance; and

               (4) the statement is introduced through the testimony of someone other
       than the declarant.

              If the declarant made more than one corroborative statement about the
       incident, only the first is admissible under this rule.

               A statement may not be admitted under this rule unless the proponent of
       the statement makes known to the adverse party the intent to offer the statement,
       and the particulars of the statement, sufficiently in advance of the trial or hearing
       to provide the adverse party with a fair opportunity to prepare to meet the
       statement. [MRE 803A.]

         In Douglas, the Michigan Supreme Court recognized that where a child complainant’s
disclosure of alleged sexual abuse is not the “first corroborative statement[,]” MRE 803A will
not permit its admission at trial. Douglas, 496 Mich at 575. In Douglas, the prosecution had
conceded before trial that the minor child’s disclosure of alleged fellatio with the defendant to a
forensic interviewer was not the first corroborative statement regarding the matter, and that the
minor child had already disclosed the alleged instance of sexual abuse to her mother. Id. In the
instant case, a review of the record confirms that during the preliminary examination, MD
testified that she told Bridgette6 Coffee, who she described as her godmother, about the sexual
abuse, before she told Duhart.7 While defendant places any error relating to the admission of
Duhart’s statement on the trial court, we note that defendant did not advance a meaningful
argument before the trial court regarding whether Duhart’s testimony contained MD’s first
corroborative statement. Consequently, defendant’s assertion in his brief on appeal that the trial
court “did not resolve the issue of whether [MD’s] alleged statements were first made to
[Duhart] or [Coffee]” is curious, where the trial court was simply not asked to do so. In any
event, even accepting defendant’s unpreserved argument that error occurred, we are not

6
  The correct spelling of Coffee’s first name is unclear from the record. It was intermittently
spelled as Bridgette, Bridget, Bridgid, or Brigid.
7
  At trial, MD stated that she told Duhart first about the sexual contact with defendant, and it
appears from the record of MD’s cross-examination that any disclosure by MD to Coffee was
made almost contemporaneously with her disclosure to Duhart.


                                               -8-
persuaded that defendant incurred any prejudice. Put another way, defendant has not established
that the unpreserved error “affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763 (citation omitted). In reaching this conclusion, we find the Michigan Supreme
Court’s analysis in People v Gursky, 486 Mich 596; 786 NW2d 579 (2010), to be of guidance.8

       In Gursky, the Michigan Supreme Court offered the following legal principles to consider
in determining whether the erroneous admission of evidence pursuant to MRE 803A was
harmful:

               Michigan law provides that where a hearsay statement is not offered and
       argued as substantive proof of guilt, but rather offered merely to corroborate the
       child’s testimony, it is more likely that the error will be harmless. Moreover, the
       admission of a hearsay statement that is cumulative to in-court testimony by the
       declarant can be harmless error, particularly when corroborated by other evidence.
       This Court has cautioned, though, that the fact that the statement [is] cumulative,
       standing alone, does not automatically result in a finding of harmless error. . . .
       [Instead, the] inquiry into prejudice focuses on the nature of the error and assesses
       its effect in light of the weight and strength of the untainted evidence. In a trial
       where the evidence essentially presents a one-on-one credibility contest between
       the victim and the defendant, hearsay evidence may tip the scales against the
       defendant, which means that the error is more harmful. This may be even more
       likely when the hearsay statement was made by a young child, as opposed to an
       older child or adult. However, if the declarant himself testified at trial, any
       likelihood of prejudice was greatly diminished because the primary rationale for
       the exclusion of hearsay is the inability to test the reliability of out-of-court
       statements[.] Where the declarant himself testifies and is subject to cross-
       examination, the hearsay testimony is of less importance and less prejudicial. [Id.
       at 620-621 (footnotes and citations omitted).]

        As an initial matter, we observe that the prosecution expressly confirmed during trial that
Duhart’s testimony was offered to corroborate the testimony of MD. The prosecution did so in
response to the trial court’s questions during Duhart’s testimony, outside of the presence of the
jury. Id. at 620. We also note that MD testified herself during trial, therefore alleviating any
prejudice to defendant, and the reliability of her allegations, recounted to Duhart, were
vigorously challenged by defense counsel during the course of cross-examination. Id. at 621.
Further, MD’s emotional reactions during her conversation with Duhart were properly allowed
as evidence, where reactions are not considered hearsay and are, as the Michigan Supreme Court
has clarified, “perfectly admissible at trial.” Id. at 625. At trial, Duhart described MD as looking
“real sad” in the moments before she told Duhart about the sexual contact with defendant, as




8
  We acknowledge that in Gursky, the Michigan Supreme Court undertook an analysis of
whether evidence erroneously admitted pursuant to MRE 803A was harmless where the claim of
error “involve[d] preserved, non-constitutional error.” Gursky, 486 Mich at 619.


                                                -9-
well as being apprehensive and hesitant about sharing the information regarding the sexual
contact with defendant.

        While the instant case did present a scenario where the allegations against defendant
essentially amounted to a “credibility contest[,]” id. at 620-621, it is important to note that
defendant himself corroborated a key portion of MD’s recitation of the relevant facts involving
the sexual contact with defendant. Specifically, during questioning by Investigator Turner, while
defendant denied (1) engaging in sexual contact with MD and (2) showing MD a video on his
cellular telephone with sexual content, he conceded that he did have a video on his cellular
telephone where he engaged in sexual relations with two women at the same time.9 Notably, one
of the women defendant named as participating in the sexual interaction on the video was his
girlfriend. Similarly, MD stated that defendant’s girlfriend was in the video that defendant
showed her on his cellular telephone. Accordingly, MD’s testimony was corroborated in part by
defendant’s own admission of having a video with sexual context on his cellular telephone
consistent with the video that MD described. We also note that while there were inconsistencies
in MD’s testimony as a whole, she was very clear, concise and detailed in her recollection of the
sexual contact at defendant’s hands. Also, defense counsel vigorously cross-examined MD
regarding her recollection of the sexual contact with defendant, and the series of events that took
place afterward. Having considered “the nature of [any] error and assess[ing] its effect in light
of the weight and strength of the untainted evidence[,]” id. at 620, we conclude that defendant
has not demonstrated that any error in the admission of Duhart’s testimony affected the outcome
of the lower court proceedings. Carines, 460 Mich at 763.

        We are also not persuaded that reversal is necessary with regard to defendant’s additional
arguments concerning the applicability of MRE 803A. Although the prosecution did not file a
written notice of intent in this case, defense counsel’s statements at trial clearly show that he was
aware that hearsay statements would be introduced under MRE 803A and that he was prepared
to address these statements. Accordingly, despite the prosecution’s failure to provide formal
notice, it nonetheless provided notice “sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet the statement.” MRE 803A. Thus,
there is no basis for concluding that any error in this regard was outcome determinative. See
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). Defendant also claims that the
hearsay testimony was inadmissible because of the unexplained delay in MD’s disclosure. See
MRE 803A(3). This argument is unsupported by the record. The court rule specifically allows
the admission of a delayed corroborative statement when the delay is “excusable as having been
caused by fear or other equally effective circumstance . . . .” MRE 803A(3). MD’s testimony
established that the delay in disclosure was motivated by her fear that defendant would
physically abuse her, and such fear was certainly reasonable under the circumstances where the
record confirms that defendant threatened to spank her if she disclosed the sexual abuse. People
v Dunham, 220 Mich App 268, 272; 559 NW2d 360 (1996).


9
 In defendant’s own words during his interview with Investigator Turner, he “wouldn’t touch
[MD] when I’ve got three females that I’m dealing with [at] one time – when I’m dealing with at
one time.”


                                                -10-
                           IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, defendant contends that he is entitled to reversal of his convictions where he was
denied the effective assistance of counsel at trial. 10 We disagree.

        To preserve a claim of ineffective assistance of counsel, a defendant must bring a motion
for a new trial or request a Ginther11 hearing to establish the basis for his claim. People v Sabin
(On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). Defendant did not move
for a new trial or request an evidentiary hearing pursuant to Ginther. Therefore, this issue is not
preserved for appeal. When the defendant’s ineffective assistance of counsel claim was not
preserved, this Court’s review is limited to errors that are apparent from the record on appeal.
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

         To establish a claim of ineffective assistance of counsel, the defendant must show that:
(1) trial counsel’s representation “fell below an objective standard of reasonableness”; and (2)
but for counsel’s deficient performance, there is a reasonable probability that the outcome of the
proceeding would have been different. People v Vaughn, 491 Mich 642, 669-670; 821 NW2d
288 (2012) (footnote omitted), citing Strickland v Washington, 466 US 668, 688, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001),
quoting Strickland, 446 US at 694. This Court presumes that trial counsel rendered effective
assistance and exercised reasonable professional judgment in all significant decisions. Vaughn,
491 Mich at 670. “Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim.” Carbin, 463 Mich at 600. To successfully mount a claim of ineffective
assistance of counsel, a defendant “must overcome the strong presumption that counsel’s
challenged actions were sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867
NW2d 452 (2015).

         Defendant argues that he was denied the effective assistance of counsel because trial
counsel did not object to the trial court’s instruction, provided to the jury at the beginning of the
trial, informing the jury that the trial court would not allow the jury, during the course of
deliberations, to have any testimony played back or to be provided with transcripts of the
proceedings. The trial court encouraged the jurors to document for themselves, by handwriting
on notepads, any information they deemed necessary gleaned from a witness during trial.

        The trial court’s instruction was not consistent with MCR 2.513(P), which governs the
jury’s ability to review testimony during its deliberations and provides as follows:




10
   For the purpose of clarity in our analysis, we will refer to defense counsel as “trial counsel” in
this portion of our opinion.
11
     People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -11-
       If, after beginning deliberation, the jury requests a review of certain testimony or
       evidence that has not been allowed into the jury room under subrule (O), the court
       must exercise its discretion to ensure fairness and to refuse unreasonable requests,
       but it may not refuse a reasonable request. The court may make a video or audio
       recording of witness testimony, or prepare an immediate transcript of such
       testimony, and such tape or transcript, or other testimony or evidence, may be
       made available to the jury for its consideration. The court may order the jury to
       deliberate further without the requested review, as long as the possibility of
       having the testimony or evidence reviewed at a later time is not foreclosed.

        Thus, when a trial court instructs a jury in a manner that precludes the possibility of
reviewing trial testimony, it errs by doing so. People v Carter, 462 Mich 206, 208; 612 NW2d
144 (2000).12 However, defendant has not overcome the strong presumption that trial counsel’s
decision to not object resulted from sound trial strategy. Cooper, 309 Mich App at 80. For
example, trial counsel may have chosen not to draw the jury’s attention to the trial court’s
instruction. Similarly, we note that trial counsel pursued a motion for mistrial following the trial
court’s preliminary instructions to the jury, and therefore may have felt it prudent to not raise an
objection shortly before pursuing a dispositive motion that could impact the rest of the lower
court proceedings. In any event, even if we were to accept defendant’s contention that trial
counsel’s performance fell below an objective standard of reasonableness, defendant has not
demonstrated a reasonable probability that the outcome of the proceedings would have been
different had trial counsel objected to the jury instruction.

        Defendant relies on People v Smith, 396 Mich 109; 240 NW2d 202 (1976) (concluding
that the harmless error doctrine was inapplicable to preemptive instruction foreclosing rereading
of testimony because it resulted in lack of factual basis for review), and People v Howe, 392
Mich 670; 221 NW2d 350 (1974) (concluding that the trial court’s abuse of discretion in
rejecting a reasonable request from the jury required reversal of the defendant’s conviction
because there was no way to determine from the record the extent of the jury’s confusion
regarding the requested testimony), in support of his theory that this Court would have been
bound to reverse his conviction had trial counsel preserved a challenge to the trial court’s jury
instruction. However, defendant’s claim of error is distinguishable in that it is presented as a


12
  We note that Carter involved the former version of MCR 6.414(H), which was repealed in
2011 and replaced by MCR 2.513(P). However, the substantive language at issue is largely the
same; the former rule stated:
       If, after beginning deliberation, the jury requests a review of certain testimony or
       evidence, the court must exercise its discretion to ensure fairness and to refuse
       unreasonable requests, but it may not refuse a reasonable request. The court may
       order the jury to deliberate further without the requested review, so long as the
       possibility of having the testimony or evidence reviewed at a later time is not
       foreclosed. [Carter, 462 Mich at 210-211.]




                                               -12-
claim of ineffective assistance of counsel—rather than a direct challenge to the propriety of the
jury instruction at issue—and, therefore, requires a showing of prejudice.13 See Vaughn, 491
Mich at 669. More importantly, both Smith and Howe were decided over 40 years ago, and the
Michigan Supreme Court has since recognized that the “automatic reversal rule” relied on in
those cases14 was superseded by the plain error rule set forth in Carines. People v Tucker, 469
Mich 903; 669 NW2d 816 (2003). As such, defendant must affirmatively demonstrate that he
was prejudiced by trial counsel’s decision to not object to the jury instruction.

        Our review of the record does not yield any indication that the trial court’s instruction
had any effect on the outcome of the lower court proceedings. The trial court did not repeat the
instruction during the final jury instructions or otherwise refer to the jury’s ability, or inability, to
review testimony. The trial court also did not include the challenged instruction in the written
instructions provided to the jury before its deliberations. There is also nothing in the record to
suggest that the challenged instruction may have caused the jury to refrain from asking to review
trial testimony. 15 Accordingly, defendant has failed to establish the factual predicate to
substantiate his ineffective assistance of counsel claim, and we are not persuaded that (1) trial
counsel’s performance fell below an objective standard of reasonableness, and (2) there is a
reasonable probability, but for trial counsel’s actions, that the outcome of defendant’s trial would
have been different.

                                         V. CONCLUSION

        Defendant has failed to establish a plain error affecting his substantial rights, or that he is
entitled to specific performance of the plea agreement. Defendant has not made a showing of
plain error affecting his substantial rights with respect to his challenge to the admission of
Duhart’s testimony on the basis that it was not MD’s first corroborative statement regarding the
sexual contact with defendant. We are also not persuaded that any other alleged errors relating
to the foundational requirements of MRE 803A were outcome determinative. Finally, defendant


13
  Because the propriety of the instruction was not raised in defendant’s statement of the
questions presented, this issue is not properly before this Court. People v Albers, 258 Mich App
578, 584; 672 NW2d 336 (2003).
14
  Tucker only explicitly referred to the “automatic reversal rule” set forth in Smith. Tucker, 469
Mich at 903. However, the Court’s reasoning is equally applicable to Howe, which was relied
upon by the Smith Court. See Smith, 396 Mich at 111.
15
   During its deliberations, the jury raised two issues in written notes to the court. The questions
that arose during the jury’s deliberations were not addressed on the record, but the physical notes
and responses were included in the lower court file. We have closely reviewed the jury notes, as
well as the trial court’s response. To the extent that one of the notes from the jury pertained to
the only exhibit admitted at trial, defendant’s statement to Investigator Turner, we note that the
trial court instructed the jury during its final instructions that if it sought to review any exhibits,
the jury should “just ask for them with a note.” With regard to the second note the jury sent to
the trial court, there is nothing in that note to suggest that the jury sought to review testimony or
evidence.


                                                  -13-
has not established that trial counsel’s performance fell below an objective standard of
reasonableness, or that, but for trial counsel’s performance, there is a reasonable probability that
the result of his trial would have been different.

       Affirmed.



                                                             /s/ Patrick M. Meter
                                                             /s/ Karen M. Fort Hood




                                               -14-
