                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 27, 2017
               Plaintiff-Appellee,

v                                                                    No. 330100
                                                                     Monroe Circuit Court
COREY LEE WEIMER,                                                    LC No. 15-041785-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of domestic violence, third offense,
MCL 750.81(2) and (4). The trial court sentenced defendant to one year in the county jail and
five years’ probation. We affirm.

                                 I. FACTUAL BACKGROUND

        Defendant is the father of an eight-year-old son (hereinafter “the complainant”). Around
12:30 a.m. on a Sunday, the complainant was watching the movie “Wreck it Ralph” in his
bedroom at defendant’s duplex. Defendant got up from his chair in the living room and walked
into the complainant’s adjoining bedroom. Defendant gave him three seconds to turn off the
television, and when the complainant did not comply, defendant walked over and turned the
television off. According to the complainant, when defendant turned off the television, the
complainant said, “Hey, I was watching that.” Defendant asked, “What did you say? What did
you say?” The complainant testified that defendant picked him up with one hand and threw him
against the wall. After hitting the wall, the complainant fell onto his bed. The complainant hit
his head on the wall, resulting in a bruised eye and a cut on his forehead. Defendant picked the
complainant up again and threw him towards the edge of the bed. When the complainant landed
on the bed, he split his lip open on the iron bedframe. Finally, defendant picked his son up a
third time and threw him onto the ground. The complainant’s face hit the floor, and he sustained
a rug burn from his cheek down to his chin. Afterwards, defendant had the complainant take a
shower to wash the blood off his face.

        Defendant argues that he was (1) denied his constitutional right to confront the witnesses
against him because the trial court denied his request to recall the complainant, (2) denied his
constitutional right to present a defense because the trial court denied the admission of a Dragon


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Ball Z video, and (3) denied his constitutional right to the effective assistance of counsel.
Defendant’s arguments are unavailing.

                                     II. CONFRONTATION

      Defendant first argues that the trial court erred when it denied his request to recall the
complainant during defendant’s case in chief. We disagree.

                     A. PRESERVATION AND STANDARD OF REVIEW

        To preserve a trial court’s decision involving a confrontation clause issue, a defendant
must object in the lower court. People v Benton, 294 Mich App 191, 202; 817 NW2d 599
(2011). While defendant asked to reserve the right to call the complainant during his case in
chief, defendant did not raise an objection on confrontation grounds, and therefore, this issue is
unpreserved.

        Generally, the question whether a defendant was denied the constitutional right to
confront a witness is reviewed de novo. Benton, 294 Mich App at 195 (citation omitted).
However, unpreserved issues of constitutional law are reviewed for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Under the
plain error standard, the “defendant bears the burden of demonstrating a ‘clear or obvious’ error
and that this error affected [the defendant’s] substantial rights.” People v Vandenberg, 307 Mich
App 57, 61; 859 NW2d 229 (2014), quoting Carines, 460 Mich at 763-764. A defendant’s rights
are affected when there is “a showing of prejudice, i.e., that the error affected the outcome of the
lower-court proceedings.” Vandenberg, 307 Mich App at 61. Even if a defendant satisfies this
burden, this Court “will reverse only if the plain error led to the conviction of an innocent
defendant or ‘seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.’ ” Id. at 61-62, quoting Carines, 460 Mich at 763-764 (alteration in original).

                                          B. ANALYSIS

        “The Confrontation Clause of the United States Constitution provides that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .’ ” People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012), quoting US
Const, Am VI. Additionally, the Michigan Constitution also affords a criminal defendant the
right to be confronted with the witnesses against him. Nunley, 491 Mich at 697 (citations and
quotation marks omitted); see also Const 1963, art 1, § 20. “A primary interest secured by the
Confrontation Clause is the right of cross-examination.” People v Gaines, 306 Mich App 289,
315; 856 NW2d 222 (2014). However, trial courts “retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-examination based
on concerns about . . . interrogation that is repetitive or only marginally relevant.” Id. at 316
(citation and quotation marks omitted).

        At trial, defendant cross-examined the complainant on the stand. In fact, the trial court
afforded defendant ample time to question the complainant, and towards the end of his his cross-
examination of the complainant, defendant said, “I don’t have any further questions. I’d just like
to reserve him for rebuttal.” The trial court replied, “We’re not going to do that. So, you ask
whatever questions you have right now.” Defendant then continued his examination and asked
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the complainant to demonstrate how he was picked up, thrown against the wall, and hit his head.
Furthermore, defendant asked the complainant whether there were any other instances of abuse
before the incident at issue, and he continued to question the complainant regarding the events
that night. Once defendant again reached the end of his cross-examination, he asked if he could
take a break, but the trial court said, “We’re not. We’re going to finish this witness. So, if you
have any other questions, now would be the time.” Defendant replied, “I have about 50 other
questions. You told me I can’t ask him.” The trial court then asked, “Do you have any relevant
questions, Mr. Weimer?” Because I’d love to hear those.” For a second time, defendant
continued his examination and asked a few more questions before finally concluding the
examination. The trial court then examined the complainant, and after the trial court’s
questioning, defendant again asked to reserve the complainant for his case in chief. The trial
court said, “I’m not going to do that. That’s denied.”

        Despite defendant’s claim to the contrary, the complainant was available and defendant
actually cross-examined the complainant at length. Given the trial court’s obvious concern of
requiring the eight-year-old complainant to get back on the stand, as well its wide discretion to
limit evidence that is repetitive, the trial court did not err when it refused to allow defendant to
recall the complainant. Defendant was not denied his constitutional right to confront the
witnesses against him.

                             III. RIGHT TO PRESENT A DEFENSE

       Next, defendant argues that the trial court abused its discretion when it denied the
admission of a Dragon Ball Z video and deprived defendant of his right to present a complete
defense. We disagree.

                                  A. STANDARD OF REVIEW

       “This Court reviews de novo both constitutional claims and preliminary questions of law
regarding admissibility of evidence.” People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531
(2014). This Court reviews “the trial court’s ultimate decision regarding admissibility of
evidence for an abuse of discretion.” Id., citing People v Burns, 494 Mich 104, 110; 832 NW2d
738 (2013). “A trial court abuses its discretion when its decision falls outside the range of
reasonable and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d
399 (2013).

                                          B. ANALYSIS

        “A criminal defendant has a due process right to present a defense under the state and
federal constitutions.” People v Solloway, 316 Mich App 174, 198; 891 NW2d 255 (2016),
citing People v Kurr, 253 Mich App 317, 326; 654 NW2d 651 (2002). “Whether rooted directly
in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense.” People v Unger, 278 Mich App 210,
249; 749 NW2d 272 (2008) (citation and quotation marks omitted). However, this right “extends
only to relevant and admissible evidence.” Solloway, 316 Mich App at 198 (citation and
quotation marks omitted). “[D]efendant must still comply with established rules of procedure

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and evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.” Id. (internal quotation marks and citation omitted).

        Defendant argues that the Dragon Ball Z video should have been admitted because it was
relevant for purposes of (1) supporting defendant’s theory of the case, and (2) discrediting much
of the victim’s testimony at trial. These arguments fail.

       “Generally, all relevant evidence is admissible at trial, and [e]vidence which is not
relevant is not admissible.” People v Bergman, 312 Mich App 471, 483; 879 NW2d 278 (2015),
citing MRE 402 (citation and quotation marks omitted). “Relevant evidence means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401 (quotation marks omitted); see Bergman, 312 Mich App at 483.
“Relevance involves two elements, materiality and probative value. Materiality refers to whether
the fact was truly at issue.” Benton, 294 Mich App at 199 (quotation marks and citation
omitted). “Evidence is probative if it ‘tends to make the existence of any fact that is of
consequence of the determination of the action more probable or less probable than it would be
without the evidence [.]’ ” Bergman, 312 Mich App at 483, quoting People v Feezel, 486 Mich
184, 197; 783 NW2d 67 (2010).

        Defendant claims the video was relevant because, if played at trial, it would have
revealed to the jury that the complainant was fabricating the incident. Specifically, it would have
proven that the victim’s description of the incident during the forensic interview with a detective
and child protective services (CPS) worker was based off scenes from the video — not reality.
For instance, in the forensic interview, the complainant explained that defendant gained super
strength when the moon came out from behind the clouds that night. Additionally, the
complainant said that defendant had “wild eyes” and was able to eat all of the food in the house
until the refrigerator and cabinets were empty because defendant “got an extra part of his
stomach.” According to defendant, the complainant’s descriptions were based off the video, and
therefore, without the ability to show the video to the jury, defendant was denied his right to
bring a complete defense.

        While the Dragon Ball Z video very well could have shown that the complainant’s
unrealistic descriptions to the detective and CPS worker originated from his viewing the video, it
was inconsequential to any material fact at issue. Whether the complainant was motivated by the
video to believe that it was the moon that caused his father to abuse him does not change the
pertinent fact at issue — that defendant threw the complainant into the wall, onto the bed, and
onto the ground. Defendant, however, argues that the video is material because it is evidence of
a fact at issue — whether defendant actually assaulted the complainant. Furthermore, defendant
claims that the video is probative because it tends to make the existence of the assault less
probable because the complainant may have been fabricating the whole incident. While there
may be some merit to defendant’s argument, the video itself is inconsequential. Whether the
complainant was fabricating the incident based on the Dragon Ball Z video or a number of other
cartoons is immaterial. Defendant introduced the forensic interview that included the
complainant’s discussion of the moon, along with his father’s “wild eyes,” insatiable appetite,
and super strength. The source from where the complainant may have come up with those
descriptions does not lend itself to whether the complainant was making up the assault. The

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video, if admitted, would not have had any material or probative value, and it was irrelevant to
the issues at trial.

        Defendant also claims that the video would have further discredited the complainant’s
testimony. Evidence can be relevant if offered to address a complainant’s truthfulness, People v
Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010), citing MRE 401, or a complainant’s
credibility, People v Watkins, 491 Mich 450, 492; 818 NW2d 296 (2012). However, the Dragon
Ball Z video would not have been relevant toward addressing the complainant’s credibility. As
stated previously, aspects of the complainant’s description of his father that night were clearly
based in fantasy. No reasonable juror would believe that the moon caused defendant to have
wild eyes, super strength, and an insatiable appetite, and therefore, the video was irrelevant
towards further discrediting those aspects of the complainant’s statements. Accordingly, the
decision to exclude the video was not outside the range of reasonable and principled outcomes,
and therefore, the trial court did not abuse its discretion when it denied defendant’s request to
admit the video.

         Even if the movie had some relevance, the error was harmless. An error is not grounds
for reversal unless, after an examination of the entire cause, it affirmatively appears that it is
more probable than not that the error was outcome determinative. People v Williams, 483 Mich
226, 243; 769 NW2d 605 (2009). Had the movie been admitted, it would not change the fact
that the vast majority of the complainant’s testimony was grounded in reality. The complainant
described the duplex defendant lived in, the bedroom where the incident occurred, the movie he
was watching that night, the fact that defendant counted to three before shutting the television
off, that defendant became angry when the complainant talked back to him, that defendant
picked the complainant up and threw him three times, and, finally, that the complainant sustained
a bruise on his eye, a cut to his lip, and a rug burn to the side of his face from defendant’s
actions. Those injuries were documented through photographs that were admitted at trial, and
numerous witnesses testified to observing those injuries. Additionally, defendant’s mother
testified that defendant asked her not to take the complainant to school the next day, which led to
an argument between defendant and his mother. Considering the other overwhelming evidence,
defendant has not shown how the introduction of the Dragon Ball Z video would have at all
changed the outcome of the case, and any error was harmless.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, defendant argues that he was denied the effective assistance of counsel for two
reasons: (1) his standby counsel was ineffective at trial because he did not assist defendant as
necessary, and (2) his counsel at the sentencing hearing was ineffective because he failed to
review the presentence investigation report (PSIR) with defendant and read a false statement
from the PSIR into the record. We disagree.




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                     A. PRESERVATION AND STANDARD OF REVIEW

        To preserve the issue of ineffective assistance of counsel for appeal, a defendant must
bring a timely motion for a new trial or move for a Ginther1 hearing in the lower court. People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Defendant did not file a motion for a
new trial or for a Ginther hearing in the trial court, but he did file a motion to remand with this
Court and requested an evidentiary hearing on the basis of ineffective assistance of trial counsel.
This Court denied defendant’s motion. People v Weimer, unpublished order of the Court of
Appeals, entered April 7, 2016 (Docket No. 330100). Therefore, this issue is unpreserved.

        “A claim of ineffective assistance of counsel is a mixed question of law and fact.” Petri,
279 Mich App at 410. Findings of fact are reviewed for clear error, but the ultimate
constitutional issue is reviewed de novo. Id. Unpreserved claims of ineffective assistance of
counsel may still be reviewed, but review is limited to mistakes apparent from the record.
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

                                         B. ANALYSIS

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003), citing
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Counsel’s
performance is deficient when it falls below an objective standard of reasonableness under
prevailing professional norms. Riley, 468 Mich at 140. A defendant is prejudiced if there is a
reasonable probability that, “but for defense counsel’s errors, the result of the proceeding would
have been different.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012).

                                    1. STANDBY COUNSEL

        Defendant first argues that he was denied the effective assistance of counsel when his
standby counsel, James P. Bartlett, failed to properly assist defendant at trial. This exact
argument was addressed in People v Kevorkian, 248 Mich App 373, 422; 639 NW2d 291 (2001).
In Kevorkian, the defendant claimed that his standby counsel “did too little” and “should have
done more to help him.” Id. at 424. This Court explained that “[a] defendant who asserts his
right to self-representation has no absolute entitlement to standby counsel.” Id. at 422 (citation
omitted). Therefore, “[a]bsent a constitutional right to standby counsel, a defendant generally
cannot prove standby counsel was ineffective.” Id. at 425 (citation and quotation marks
omitted). With that said, this Court cited approvingly to the following rationale:

         As might be expected, a standby counsel’s duties are considerably more limited
         than the obligations of retained or appointed counsel. . . . Although [the
         defendant’s standby counsel’s] role expanded as the case continued, he did not
         play the same role that defense counsel normally would in preparing the strategy


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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       for a criminal defense. Perhaps in a case where standby counsel held that title in
       name only and, in fact, acted as the defendant’s lawyer throughout the
       proceedings, we would consider a claim of ineffective assistance of standby
       counsel. This is not such case. [Id., quoting United States v Schmidt, 105 F3d 82,
       90 (CA 2, 1997).]

        Defendant’s claim does not involve a situation where “standby counsel held that title in
name only.” Rather, Bartlett only aided defendant during trial by passing along notes when a
possible objection could be made. Defendant conducted voir dire, cross-examined witnesses,
called his own witnesses, raised objections, and conducted opening statement and closing
argument. This is not a case where this Court would consider a claim of ineffective assistance of
counsel because clearly Bartlett did not conduct himself as defendant’s lawyer throughout the
trial. Defendant was warned numerous times at the hearings before and during trial that self-
representation was not in his best interest. However, defendant disregarded the trial court’s
warnings and now wishes to “use his waiver of trial counsel as both a sword and a shield in order
to achieve the outcome he desires.” Kevorkian, 248 Mich App at 419. A defendant who
exercises the free choice to represent himself faces certain consequences and defendant cannot
claim after the fact that he was denied the effective assistance of counsel.

        Finally, even if defendant was afforded a right to the effective assistance of standby
counsel, there was no evidence that Bartlett’s conduct was deficient or affected the outcome of
the trial. Bartlett aided defendant in his attempt to enter the Dragon Ball Z video during the
pretrial hearing and also told defendant when to make a number of objections at trial. The record
shows that Bartlett helped defendant, and even if more had been done, the outcome would not
have been different.

                                  2. SENTENCING HEARING

        Defendant argues that he was denied the effective assistance of counsel at sentencing
when Bartlett, having been assigned to fully represent defendant at the sentencing hearing, read a
single statement into the record that came from defendant’s PSIR. The PSIR indicated that
“[t]he defendant stated that he was drinking again and lost his temper.” At the sentencing
hearing, Bartlett directed the trial court to the PSIR and told the court that “[d]efendant stated he
was drinking again and lost his temper.” According to defendant, he never told the probation
officer that he was drinking and lost his temper, and Bartlett’s failure to review the PSIR with
defendant and decision to read the false statement into the record constituted deficient
performance that affected the outcome of the proceeding. This argument is unavailing.

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).
Additionally, a defendant must overcome the presumption that the challenged action might be
considered sound trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136
(2012). With that said, “trial counsel is responsible for preparing investigating, and presenting
all substantial defenses,” and “[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 and quotation marks omitted).


                                                -7-
        At the sentencing hearing, Bartlett informed the trial court that, when considering the
statement in the PSIR, it was apparent that defendant was not “misleading anybody” and that
“[h]e certainly wants substance abuse counseling while in jail.” In fact, Bartlett further
explained that defendant asked Bartlett “to absolutely pound on to the [c]ourt that he was
requesting that . . . .” Defendant then addressed the trial court and explained that he agreed
alcoholics anonymous (AA) and mental health programs “would be both beneficial.” Defendant
now claims that Bartlett never discussed the PSIR with defendant, and had Bartlett done so, he
would have learned that defendant never told the probation officer that he was drinking on the
night of the incident. Defendant, however, has not overcome the strong presumption that
Bartlett’s decision to discuss the PSIR as he did was sound trial strategy. It was apparent from
the transcript that Bartlett was attempting to show the trial court that defendant had owned up to
his mistakes and was looking to correct them through substance abuse treatment. This was a
sound strategy, and apparently one that defendant agreed with at the time given the fact that he
told the trial court that AA would be beneficial.

        To the extent that defendant claims Bartlett’s performance was deficient because he did
not review the PSIR with defendant, there is nothing to support this conclusion. Defendant did
not raise his concern at the hearing, and Bartlett actually indicated that he did discuss his
preparation for the sentencing with defendant. According to Bartlett, defendant wanted Bartlett
to “pound on” the fact that defendant desired to obtain help with his problems with alcohol.
Accordingly, defendant has not shown that trial counsel’s performance was deficient.
Nevertheless, even if Bartlett’s performance was deficient, the record is devoid of any indication
that the statement in the PSIR influenced the trial court’s sentencing of defendant. The trial
court concluded that based on defendant’s six prior misdemeanors, including a number involving
domestic violence, and considering the nature of the crime against the eight year old victim, “the
best place for [defendant] should be prison.” The fact that defendant may have been drinking
seemed to have no bearing on the outcome of the sentencing hearing. Therefore, defendant has
not shown that any error was outcome determinative, and he was not denied the effective
assistance of counsel.

       Affirmed.



                                                            /s/ Deborah A. Servitto
                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Riordan




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