                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re RICCARDO COVIN.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 20, 2017
              Petitioner-Appellee,

v                                                                  No. 331637
                                                                   Wayne Circuit Court
RICCARDO COVIN,                                                    Family Division
                                                                   LC No. 14-515820-DL
              Respondent-Appellant.


Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

        The trial court adjudicated the juvenile respondent guilty of two counts of assault with
intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1), and placed
him outside his home in a non-secured facility. Respondent now appeals by right. We affirm.

       Respondent’s adjudication arises from allegations that he sexually assaulted two twin
boys at his family home in 2013. Respondent’s mother and the victims’ mother were friends. In
the summer of 2013, respondent’s mother agreed to babysit the eight-year-old twins. At the
time, respondent was 11 years old. Respondent and the twins spent a lot of time together,
watching television, playing video games, and wrestling. The twins, aged 10 at the time of trial,
both testified that respondent would sometimes use his body to restrict their movement and
attempt to insert his penis into their mouths. In the fall of 2013, the twins expressed to their
mother that they no longer wanted to go to respondent’s house, but did not relate that they were
being sexually assaulted. The twins claimed that respondent threatened to beat them if they
disclosed the sexual assaults. The twins continued to go to respondent’s house until January
2014, when they ultimately disclosed the sexual incidents to a neighbor, who was respondent’s
classmate. Respondent denied any wrongdoing. The defense asserted that the twins’ testimony
was inconsistent and not credible.




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                            I. TRIAL COURT’S FINDINGS OF FACT

        Respondent first argues that the trial court improperly relied on inadmissible evidence to
find that the twins’ accounts were credible. We disagree. Respondent acknowledges that this
issue is unpreserved. We therefore review this claim for plain error affecting respondent’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

         In support of his argument, respondent relies on the following emphasized excerpt from
the trial court’s findings of fact:

               The one thing about this case that would be hard for me would be the fact
       that two eight years olds, at the time that this alleged assault occurred, would
       come together and create a story that’s false and continue to advocate that story
       over a two year time frame through numerous interviews and they did that all
       because of why or what? It’s hard for me to believe that. It’s hard for me to
       believe that these two young eight year olds, who are now ten, have come in here
       to lie on [respondent] and say that [respondent] did this and they’re just getting
       together to lie on [respondent]. Why? [Emphasis added.]

        Findings are sufficient if it appears that the trial court was aware of the issues in the case
and correctly applied the law. People v Smith, 211 Mich App 233, 235; 535 NW2d 248 (1995).
A trial court’s factual findings in a bench trial are reviewed for clear error, which occurs “if the
reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012) (citation omitted). In determining its
findings of fact, the trier of fact may make reasonable inferences from evidence in the record, but
may not make inferences completely unsupported by any direct or circumstantial evidence.
People v Vaughn, 186 Mich App 376, 379-380; 465 NW2d 365 (1990).

         Initially, contrary to what respondent suggests, there is nothing from which to conclude
that the trial court improperly admitted any out-of-court statements the twins made. However,
there was evidence from which a trier of fact could reasonably infer that during an approximate
two-year period, the twins repeated their allegations against respondent in response to
questioning by others. The evidence indicated that the twins first disclosed the sexual assaults in
February 2014. The trial began in December 2015. Thus, there was a period of approximately
two years between the twins’ first disclosure and trial. One twin testified that his neighbor was
the first person that he and his brother told and was the only person they told without being asked
about it. The twins’ mother testified that after learning about the assaults from a neighbor, she
spoke to the twins. After speaking to the twins, she transported them to the police station. As a
result of meeting with the police, a case was initiated against respondent. In response to a
question asked by defense counsel, one twin testified that he also spoke to “Kids Talk” about the
sexual assaults. As both parties acknowledge, Kids Talk is a community based program that
conducts forensic interviews of child victims. Also, as the trial court noted, both twins testified
at trial and repeated the same allegations.




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        From this evidence, a trier of fact could reasonably infer that over a two-year period, the
twins disclosed consistent allegations against respondent to their mother, the police, Kids Talk,
and at trial. Indeed, respondent was charged and tried and did not argue at trial or on appeal that
the twins ever gave different accounts of what occurred. As noted earlier, the trial court was
allowed to make reasonable inferences from the evidence. Vaughn, 186 Mich App at 379-380.
Furthermore, in a bench trial, the trial court is presumed to know the applicable law and “the
difference between admissible and inadmissible evidence.” People v Wofford, 196 Mich App
275, 282; 492 NW2d 747 (1992). For this reason, and because the trial court’s findings of fact
give no indication that the court relied on any inadmissible evidence and only drew reasonable
inferences from admissible evidence, respondent’s claim fails.

                         II. EFFECTIVE ASSISTANCE OF COUNSEL

        Respondent also argues that he is entitled to a new trial because defense counsel was
ineffective. Because respondent did not raise an ineffective assistance of counsel claim in the
trial court, our review of this issue is limited to mistakes apparent on the record. People v Heft,
299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of
counsel, a defendant must show that his or her attorney’s performance fell below an objective
standard of reasonableness under prevailing professional norms and that this performance caused
him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation
omitted). “To demonstrate prejudice, a defendant must show the probability that, but for
counsel’s errors, the result of the proceedings would have been different.” Id.

                             A. FAILURE TO CALL WITNESSES

        Respondent argues that defense counsel should have called his three adult siblings
because they lived in the house during the period when the sexual assaults allegedly occurred.
“Decisions regarding whether to call or question witnesses are presumed to be matters of trial
strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (citation omitted).
Defense counsel’s failure to a call a witness is only considered ineffective assistance if it
deprived the defendant of a substantial defense. Id. “A substantial defense is one that might
have made a difference in the outcome of the trial.” People v Chapo, 283 Mich App 360, 371;
770 NW2d 68 (2009) (citation omitted). Respondent attempts to establish the factual predicate
for his claim with affidavits from each of his siblings. But it is “impermissible to expand the
record on appeal.” People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
Moreover, even if the affidavits are considered, respondent’s ineffective assistance claim fails.

       The significance of the siblings’ proposed testimony is that they never saw or heard
anything unusual between respondent and the twins. Still, all of the proposed witnesses
conceded that they were not constantly at the home and supervising the boys such that the
charged sexual assaults could not have occurred. According to their affidavits, one witness
would have only testified that she was “usually” in the common area of the house, and another
witness would have testified that he was “often” at the home. The third witness, who worked
outside the home, would have testified only that he was “frequently” at the family home. In
addition, none of the witnesses averred that they supervised the boys when they were at home.
Conversely, defense counsel called respondent’s mother as a witness, and she testified that she
babysat for the twins and never observed anything unusual between the twins and respondent.

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This testimony served the same purpose that would have been served by the siblings’ proposed
testimony, and it was not unreasonable for defense counsel to believe that the testimony of
respondent’s mother would be considered more significant because she was the person who was
actually responsible for supervising the twin boys. Thus, it was not objectively unreasonable for
defense counsel to call respondent’s mother as a witness in lieu of the siblings. Moreover, apart
from the fact that the siblings were not always present or responsible for supervising the twins,
respondent’s testimony indicated that even his mother was not constantly supervising the
activities between him and the twin boys. Respondent stated that his mother sometimes came
downstairs to tell him and the twins to quiet down, which supports that the boys were sometimes
left alone in the family room. The siblings’ proposed testimony would not have significantly
altered this portrayal of the circumstances in the home. Consequently, respondent has also failed
to establish a reasonable probability that the proposed testimony would have affected the
outcome of trial.

                                  B. FAILURE TO OBJECT

        Respondent also argues that defense counsel was ineffective for failing to object to
“hearsay” testimony of the twin’s mother that the twins told her that respondent had punched
them hard, locked them in a garage, was rough with them, and that they did not want to go to
respondent’s house. Initially, we note that the citation to the record provided by respondent is
for testimony elicited by his own counsel during cross-examination. Regardless, it is apparent
that defense counsel made a strategic decision not to object to the mother’s testimony regarding
these matters during direct examination and to revisit them during cross-examination.

       A primary defense theory was that respondent was being falsely accused as retaliation for
his mother’s no longer babysitting the twins. To support the theory that it was respondent’s
mother, and not the twin’s mother, who ended the babysitting arrangement, defense counsel
apparently sought to establish that despite reports of how harsh respondent was treating the
twins, their mother continued to send them to respondent’s home for many months. For
example, at one point, defense counsel asked the twin’s mother, “So your boys started to
complain about going to [respondent’s] house in October of 2013 and I believe your testimony
said you didn’t have a conversation with [respondent’s mother] until January of 2014 regarding
this?” and “So three months later? Your boys been complaining this entire time about
[respondent] being rough?” In closing argument, defense counsel stated, “Nothing of any
incident was brought to the attention of the parents, during this [babysitting] period, that
anything was going on between [the twins] and [respondent].”

        Decisions about defense strategy, including what arguments to make, are matters of trial
strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and “this Court will not
second-guess defense counsel’s judgment on matters of trial strategy.” People v Benton, 294
Mich App 191, 203; 817 NW2d 599 (2011). “The fact that defense counsel’s strategy may not
have worked does not constitute ineffective assistance of counsel.” People v Stewart (On
Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). The record indicates that defense
counsel attempted to use the twins’ reports of respondent’s harsh treatment to undermine the
credibility of the twins’ mother. Moreover, the reports did not involve any allegations of sexual
abuse, so they were not likely to prejudice respondent in that regard. For these reasons,
respondent has not overcome the presumption that defense counsel exercised reasonable trial

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strategy by not objecting to the testimony of the twin’s mother and using that testimony to
support a defense theory.

      We affirm.

                                                       /s/ Jane E. Markey
                                                       /s/ Patrick M. Meter
                                                       /s/ Douglas B. Shapiro




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