                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 23, 2017
               Plaintiff-Appellee,

v                                                                    No. 330767
                                                                     St. Joseph Circuit Court
CARY EDWARD JONES,                                                   LC No. 15-019829-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial convictions of six counts of second-degree
criminal sexual conduct (CSC II), MCL 750.520c(1)(a), and two counts of accosting a child for
an immoral purpose, MCL 750.145a. Defendant was sentenced as a third-offense habitual
offender, MCL 769.11, to 171 months’ to 30 years’ imprisonment for the CSC II on EW; 150
months’ to 30 years’ imprisonment for the other five counts of CSC II; and 3 to 8 years’
imprisonment for the two counts of accosting a child for an immoral purpose. We affirm.

       This case arises out of the molestation of five children at a daycare operated out of
defendant’s girlfriend’s residence in Three Rivers, Michigan. Defendant lived at the residence
and worked at the daycare when the molestations occurred.

        First, defendant argues that he was denied effective assistance of counsel because his trial
counsel failed to move for severance of the charges against him when the timeframe of the
alleged offenses ranged from February 1, 2011 until February 1, 2015, and involved a number of
different children. We disagree.

        Defendant did not object to the joinder of the charges against him at trial, so the issue is
unpreserved. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61
(2007). This Court reviews unpreserved joinder challenges for plain error. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999). Plain error requires that: “1) [an] error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. “The third requirement generally requires a showing of prejudice, i.e., that the error
affected the outcome of the lower court proceedings.” Id.

        On the other hand, defendant moved this Court for a remand concerning the effective
assistance of counsel issue; consequently, this issue is properly preserved. But because this

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Court denied defendant’s motion for remand, our review of this claim of error is limited to errors
apparent on the record. See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).
“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).

        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.”
People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “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.” Id. Because joinder was proper in this case, defendant cannot establish any error of
counsel was outcome determinative. Id.

        “To determine whether joinder is permissible, a trial court must first find the relevant
facts and then must decide whether those facts constitute ‘related’ offenses for which joinder is
appropriate.” People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). MCR 6.120 states:

       (A) Charging Joinder. The prosecuting attorney may file an information or
       indictment that charges a single defendant with any two or more offenses. Each
       offense must be stated in a separate count. Two or more informations or
       indictments against a single defendant may be consolidated for a single trial.

       (B) Postcharging Permissive Joinder or Severance. On its own initiative, the
       motion of a party, or the stipulation of all parties, except as provided in subrule
       (C), the court may join offenses charged in two or more informations or
       indictments against a single defendant, or sever offenses charged in a single
       information or indictment against a single defendant, when appropriate to
       promote fairness to the parties and a fair determination of the defendant’s guilt or
       innocence of each offense.

               (1) Joinder is appropriate if the offenses are related. For purposes of this
               rule, offenses are related if they are based on

                      (a) the same conduct or transaction, or

                      (b) a series of connected acts, or

                      (c) a series of acts constituting parts of a single scheme or plan.

               (2) Other relevant factors include the timeliness of the motion, the drain
               on the parties’ resources, the potential for confusion or prejudice
               stemming from either the number of charges or the complexity or nature
               of the evidence, the potential for harassment, the convenience of
               witnesses, and the parties’ readiness for trial.

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               (3) If the court acts on its own initiative, it must provide the parties an
               opportunity to be heard.

       (C) Right of Severance; Unrelated Offenses. On the defendant’s motion, the
       court must sever for separate trials offenses that are not related as defined in
       subrule (B)(1).

Offenses are “related” when the evidence indicates “that defendant engaged in ongoing acts
constituting parts of his overall scheme or plan.” Williams, 483 Mich at 235.

        As an initial matter, defendant relies on People v Daughenbaugh, 193 Mich App 506;
484 NW3d 692 (1992), to support his position that the charges against him were improperly
joined. But in Williams, the Court “reject[ed] the analysis of Daughenbaugh in accordance with
the plain language of MCR 6.120.” Williams, 483 Mich at 238-239.

        In addition, this Court has held that joinder of multiple CSC charges against a defendant
accused of assaulting several victims over a period of time is permissible. In People v Gaines,
306 Mich App 289, 292-293; 856 NW2d 222 (2014), the defendant was convicted of accosting a
child for immoral purposes and CSC III for his interactions with three high-school girls over a
two-year period. In Gaines, this Court observed:

       The evidence demonstrated that defendant engaged in ongoing acts related to his
       scheme of preying upon young, teenage girls from his high school. In each case,
       defendant used text messages to communicate with the victims and encouraged
       them to keep their communications secret. In at least two cases, defendant
       requested naked photographs from the victims and, if they refused, threatened to
       cut off ties with them. He also used his parents’ basement to isolate two of the
       young girls and sexually penetrate them. [Id. at 305.]

Accordingly, this Court held “that the offenses were related and joinder was not an abuse of [the
trial court’s] discretion.” Id. at 306; see also People v Bailey, 310 Mich App 703, 719; 873
NW2d 855 (2015) (stating that it was not an abuse of the trial court’s discretion to join the
“offenses into one trial” because the defendant did “not argue that the trial court could not have
properly concluded that his offenses constituted a series of connected acts or acts constituting
parts of a single scheme or plan” when defendant was accused sexually assaulting three different
minors who lived with him over a three-year period).

       In this case, there is evidence that “defendant engaged in ongoing acts related to his
scheme” of molesting young children at a daycare where he lived and worked. Gaines, 306
Mich App at 305. On each occasion, defendant approached the victims, who were all children
who attended the daycare, when the victims were alone, usually in an upstairs bedroom.
Defendant’s girlfriend and the other children were always either downstairs or in another room.
Three of the victims testified that defendant touched their genitals under their clothes without
saying anything. The trial court properly joined the charges against defendant into one trial.

       Consequently, defendant cannot show that, absent his trial counsel’s failure to move for
severance, the outcome of the trial would have been different. Sabin, 242 Mich App at 659.
Because evidence of defendant’s actions regarding each victim was admissible in each case
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pursuant to MCL 768.27a,1 this same evidence could have been presented in each trial if the
cases were tried separately. See Gaines, 306 Mich App at 305. Because defendant cannot
establish that the outcome would have been different if the charges against him were severed, he
cannot establish his claim of ineffective assistance of counsel. Sabin, 242 Mich App at 659.

       Next, defendant argues that he is entitled to resentencing because Offense Variable Nine
(OV 9) in Count 7, which concerned the molestation of EW, was improperly scored at 10 points.
Defendant specifically asserts that EW was the only person placed in danger in Count 7;
therefore, OV 9 should be scored at zero points. We disagree.

       The proper interpretation and application of the legislative sentencing guidelines are legal
questions that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203
(2004). The trial court’s “factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “[T]he application of the facts to the law[] is a question of statutory interpretation,
which” this Court “reviews de novo.” Id.

        MCL 777.39(1)(c) provides that the trial court should score 10 points for OV 9 when
“[t]here were 2 to 9 victims who were placed in danger of physical injury or death[.]” MCL
777.39(2)(a) states that the trial court must “[c]ount each person who was placed in danger of
physical injury or loss of life or property as a victim.” When scoring OV 9, the trial court must
only consider conduct related to the sentencing offense. People v Sargent, 481 Mich 346, 348;
750 NW2d 161 (2008). The trial court cannot consider conduct that occurred after the
sentencing offense. People v McGraw, 484 Mich 120, 122; 771 NW2d 655 (2009).

        This Court has held that “the trial court abused its discretion by scoring OV 9 at 10
points . . . [a]lthough two of the complainant’s friends were in the bedroom when the offense
took place . . . .” People v Phelps, 288 Mich App 123, 138-139; 791 NW2d 732 (2010),
overruled on other grounds, Hardy, 494 Mich at 438 n 18. In Phelps, the defendant entered the
complainant’s bedroom and engaged in forced sexual intercourse with her while two of her
friends were asleep in the same room. Id. at 127-128. This Court concluded that “[t]here was no
evidence on the record to support the conclusion that two people . . . were in danger of physical
injury or loss of life . . . when [the defendant] committed criminal sexual conduct crimes against
one victim only.” Id. at 138-139. This Court noted that the defendant “did not make physical
contact with either of the complainant’s friends.” Id. at 139. Thus, this Court held that the
scoring of 10 points in OV 9 was improper. Id.

       But in People v Waclawski, 286 Mich App 634, 684; 780 NW2d 321 (2009), this Court
held that the trial court properly scored 10 points for OV 9 “because the record support[ed] the
inference that at least two other victims were placed in danger of physical injury” when the


1
  In pertinent part, MCL 768.27a states that “in a criminal case in which the defendant is accused
of committing a listed offense against a minor, evidence that the defendant committed another
listed offense against a minor is admissible and may be considered for its bearing on any matter
to which it is relevant.”


                                                -4-
testimony revealed that the defendant assaulted his chosen victim while the two other boys were
asleep in the same room. The defendant argued that “no points should have been scored for OV
9 . . . because only one victim was placed in danger on the dates in question . . . .” Id. at 682.
The record, however, established that the defendant molested all three boys over a two-year
period, but he only abused one boy on each date. Id. This Court noted that the “defendant had a
choice of victims when [the victim] and his friends would stay the night at” the defendant’s
house, and the record supported “the conclusion that defendant would choose a victim while the
other boys were present.” Id. Accordingly, this Court held that OV 9 was properly scored at 10
points. Id.

        This case is distinguishable from Phelps and analogous to Waclawski. Instead of
assaulting one victim as in Phelps, 288 Mich App at 127-128, defendant molested five different
children who attended the daycare at different times. Similar to Waclawski, 286 Mich App at
684, even though defendant molested the victims individually, the record supports the trial
court’s finding that defendant chose his victims while other children were present. Although
defendant had access to all of the children who attended the daycare, he would choose just one
child who was alone at the time to molest. As the trial court found, although defendant happened
to choose EW on this particular occasion, there were other potential victims in the home. EW
just happened to be alone in the guest bedroom when the sentencing offense was committed.
Accordingly, the trial court correctly scored OV 9 at 10 points because “at least two [] victims
were placed in danger of physical injury when the sentencing offense[] was committed.” Id.

       We affirm.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Kelly




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