                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  August 25, 2016
              Plaintiff-Appellee,

v                                                                 No. 326919
                                                                  Ingham Circuit Court
ADRIAN ORTA ESTRADA,                                              LC No. 14-000450-FC

              Defendant-Appellant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(a) (person under 13), and one count of second-
degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (person under 13). Defendant
received an upward departure sentence of 81 to 135 months’ imprisonment for the CSC-I counts
and 57 to 180 months’ imprisonment for the CSC-II count, all to be served concurrently.
Defendant appeals as of right. We affirm his convictions but remand for further sentencing
proceedings consistent with this opinion.

                                          I. FACTS

         Defendant’s conviction arises from the sexual assault of his stepdaughter, DH, in or
around 2003. Defendant met DH’s mother in Mexico in 2000 and brought her, DH, and DH’s
sister to Michigan in 2002. Defendant and DH’s mother were married in 2003. DH, 18 at the
time of trial, remembered living in a bedroom that contained a bunk bed, with her and her sister
sleeping on the top bed and defendant and her mother sleeping on the bottom. DH recalled an
incident either late at night or early in the morning when defendant told her to come to the
bottom bed. “I was facing the TV,” she recalled. “And all I can remember is he would like run
his hands all over me.” DH stated that defendant touched her with his hands “[o]n my chest and
my lower part of my body” and indicated that “lower part of the body” meant vagina. DH said
that was the first time something like that happened to her and that she did not tell her mother
because she was scared.

       DH recalled a different incident in the bedroom when defendant covered the side of the
bottom bunk bed with a pink blanket. DH stated, “I was laying down and he was on top of me.”
DH said that defendant’s pants were off “[a]nd he was rubbing on me” and that “a white liquid

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fell on my stomach,” which she now knows was “[s]perm.” DH said that defendant “rubbed me
like those other times. And he would just like rub my private area.” She answered affirmatively
when asked if defendant “put his finger in you.” She did not know if defendant put his penis
inside of her because she “always had my eyes shut.”

        DH also described an incident in the home’s bathroom. DH said that defendant “took off
my underwear and he was rubbing on me” with his hands. When asked specifically where
defendant placed his hands, DH stated, “It hurt. So I know he went inside me, because it hurt
really bad and it stung.”

        In November 2003, DH’s mother was informed by defendant’s stepmother that defendant
previously “touched’ his half-sisters, CE and AE.1 One of defendant’s half-brothers, “Omar,”
came to defendant’s home later that day, accompanied by three men with baseball bats.
Defendant waited until they left and then left for Chicago. Defendant testified to leaving
Chicago and traveling to Mexico to see his father and then to living in San Diego, California
with his mother until 2009. He said he worked briefly in Tennessee before working on a farm in
Elsie, Michigan for two years. He explained that he then returned to California in July 2012 and
“went to trucking school.” He drove trucks around the country before giving his “CDL” to a law
enforcement officer in Nebraska who subsequently arrested him. Defendant denied that he
“attempt[ed] to run from this issue.”

                                          II. ANALYSIS

                     A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

        Defendant first argues that he was denied effective assistance of counsel at trial
Although defendant filed a motion to remand with this Court to address the claim, he did not
move for a new trial or an evidentiary hearing below. The issue is unpreserved. People v Heft,
299 Mich App 69, 80; 829 NW2d 266 (2012). Thus, our review is “limited to mistakes apparent
on the record.” Id.

        “A claim of ineffective assistance of counsel is a mixed question of law and fact.”
People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “A trial court’s findings of fact,
if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue
arising from an ineffective assistance of counsel claim de novo.” Id. “If review of the record
does not support the defendant’s claims, he has effectively waived the issue of effective
assistance of counsel.” People v Sabin (On Second Remand), 242 Mich App 656, 659; 620
NW2d 19 (2000).

        “There is a presumption that counsel was effective, and 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). “To prevail on a claim of ineffective
assistance of counsel, a defendant must show: (1) that his attorney’s performance was


1
    At trial, AE, CE, and defendant’s stepmother testified pursuant to MCL 768.27a.


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objectively unreasonable in light of prevailing professional norms; and (2) that he was prejudiced
by the deficient performance.” People v Walker, 497 Mich 894, 895; 855 NW2d 744 (2014).
“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy,
nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246
Mich App 251, 255; 631 NW2d 764 (2001). In order to demonstrate prejudice, “the defendant
must show the existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different.” People v Carbin, 463 Mich 590, 599-600; 623 NW2d
884 (2001).

       Defendant first argues that defense counsel erred by not moving to strike a hearsay
statement offered by DH’s mother. During the direct examination of this witness, the following
exchange occurred regarding DH’s disclosure of defendant’s transgressions:

               Prosecutor: Without saying what she said, did she tell you details?

               Witness: Just told me that she talked [sic] to her private part. And she
       said that he would put liquid in my daughter’s stomach.

               Defense counsel: Your Honor—

              The court. Just a minute. That will be hearsay. She can only tell us that
       she was told something and that [sic] what did she do as a result of having that
       information. She can’t tell us what [DH] told her.

Defense counsel did not err in not moving the court to strike the hearsay statement because the
court did it for him. Essentially, the court gave a curative instruction to the jury that the
statement was inadmissible. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998) (“It is
well established that jurors are presumed to follow their instructions.”) Moreover, defense
counsel may not have wanted to draw additional attention to the statement, see People v Griffin,
235 Mich App 27, 37; 597 NW2d 176 (1999), overruled on other grounds People v Thompson,
477 Mich 146; 730 NW2d 708 (2007), or risk admonishment by the court for asking it to do
what it had already done. It is presumed that counsel’s action was sound trial strategy. Cooper,
308 Mich App at 80.

        Next, defendant argues that defense counsel was ineffective for “opening the door” to
transcripts of an interview of DH and AE being read to the jury. Defense counsel, referring to
the interview transcripts, questioned the retired detective who was involved in the interview
about “gaps in the statement.” The detective explained that sometimes “the girls are speaking
very quietly” and opined that “in this particular situation the problem was they couldn’t make out
what they were saying.” Defense counsel went on to ask the detective if he could provide
context to several parts of the transcripts for both DH and AE that contained “blanks.” Counsel




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also asserted that a couple of the questions posed were leading. On redirect examination, the
detective read the transcripts in their entirety pursuant to MRE 106.2

        Defense counsel may have reasonably determined that the only way to undermine DH’s
testimony was to suggest to the jury that the first official interview of DH was improperly
conducted and influenced her subsequent recitations of the events. Defense counsel heavily
implied such during his cross-examination of the doctor who examined DH in February 2004.
And during closing argument, counsel asserted, “I have been doing this for years. And I have
never seen such a shoddy interview by detectives.” “Defense counsel is given wide discretion in
matters of trial strategy [precisely] because many calculated risks may be necessary in order to
win difficult cases.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2008).

        Given the circumstances, the presumption that counsel acted strategically stands and we
will not “second guess” that strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623
(2012). See also People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996)
(“The fact that defense counsel’s strategy may not have worked does not constitute ineffective
assistance of counsel”). Moreover, statements made by DH in the interview were largely
consistent with her testimony at trial and the statements she made to the doctor. Defendant did
not suffer outcome-determinative prejudice from the introduction of cumulative evidence. See
People v Rodriquez, 216 Mich App 329, 332; 549 NW2d 359 (1996).

       Defendant also argues that defense counsel’s performance was deficient because he
forgot to ask defendant the “ultimate question” of whether he committed the charged crimes
when he testified. When asked by the trial court if there were follow-up questions to juror
questions presented to defendant, defense counsel answered, “Just one general question that I
forgot to ask.” After an off-the-record discussion, the trial court explained that “[defense
counsel] wanted to ask [defendant] had he sexually assaulted,” which the court did not allow
because it was unrelated to any of the juror questions.

        “Decisions regarding what evidence to present, whether to call witnesses, and how to
question witnesses are presumed to be matters of trial strategy[.]” People v Horn, 279 Mich App
31, 39; 755 NW2d 212 (2008). Plaintiff’s contention that “it appears trial counsel purposely did
not ask whether he committed the crime and that is a matter of trial strategy” is belied by the
record. Specifically, defense counsel admitted he simply “forgot to ask” defendant the question.
Although defense counsel’s failure to ask defendant the “ultimate question” could be considered
reasonable trial strategy, we will not so characterize it in light of this admission.3




2
  MRE 106 provides that “[w]hen a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered contemporaneously with
it.”
3
  Defendant also maintains that the trial court’s decision to not allow defense counsel to ask the
follow-up question “rendered, or added to the ineffectiveness of counsel in this case.” MCR


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        But defendant does not explain how he suffered outcome-determinative prejudice from
this error. It was clear from opening argument that defendant was denying that he sexually
assaulted the victim. Given the substantial evidence presented against defendant, it cannot be
said that his mere denial of the allegations would have made it more likely than not that the jury
would have acquitted him of the crimes charged. People v Ackley, 497 Mich 381, 389; 870
NW2d 858 (2015).

       Defendant also suggests that his trial counsel erred by not obtaining his employment
records. “The failure to make an adequate investigation is ineffective assistance of counsel if it
undermines confidence in the trial’s outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d
686 (2004). Yet defendant concedes that this alleged error “was probably not outcome
determinative.” Moreover, the record does not reveal what investigatory efforts defense counsel
made, and therefore defendant failed to establish the factual predicate for this alleged error.
Carbin, 463 Mich at 600.

                                     B. RESENTENCING

       Defendant argues, plaintiff agrees, and we conclude that because the trial court was not
aware of the significant changes to come in sentencing procedure when defendant was sentenced,
remand for proceedings consistent with United States v Crosby, 397 F3d 103 (CA 2, 2005), are
appropriate. See People v Steanhouse, 313 Mich App 1, 48; 880 NW2d 297 (2015).

      Affirmed but remanded for further sentencing proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                            /s/ Donald S. Owens
                                                            /s/ David H. Sawyer




2.513(I) provides in part that “[t]he court may permit the jurors to ask questions of witnesses”
and mandates that the court “employ a procedure” to provides certain safeguards, none of which
concern follow-up questions. “[T]he term ‘may’ presupposes discretion and does not mandate an
action.” In re Weber Estate, 257 Mich App 558, 562; 669 NW2d 288 (2003). For those reasons,
there is no basis for concluding that the court somehow erred by adhering to its policy of only
allowing follow-up questions related to the juror questions.


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