                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 20, 2017
                Plaintiff-Appellee,

v                                                                  No. 330883
                                                                   Branch Circuit Court
SEBASTIAN THEOPHILUS WILSON,                                       LC No. 15-021438-FH

                Defendant-Appellant.


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

PER CURIAM.

        Defendant was convicted of eight counts of felony health care fraud, MCL 752.1003(1),
and sentenced to serve eight concurrent terms of nine months in jail, with the jail term suspended
after 30 days, one and one-half years of probation, and ordered to pay $8,777.73 in restitution.
Defendant appeals by right, and we affirm.

                                 I. FACTUAL BACKGROUND

        Defendant is a chiropractor. He has four children, and they have health insurance
through a policy with Blue Cross Blue Shield (BCBS). Defendant’s ex-wife testified that BCBS
statements sent to her showed that defendant billed BCBS for chiropractic services he allegedly
rendered to the children on June 2 and 9, 2014. She testified that the children were not in his
custody at that time. She explained the children were in school or in the care of a babysitter on
June 2, 2014, and were staying with their maternal grandmother in Indiana on June 9, 2014. The
babysitter and grandmother confirmed these assertions. A BCBS fraud investigator testified that
the records defendant provided did not indicate that he provided services to his children on the
dates in question.

       After his conviction, defendant moved for a new trial or Ginther1 hearing, asserting that
defense counsel was ineffective for failing to obtain certain phone records and for failing to
secure witnesses favorable to his defense. The court denied the motion, explaining that
defendant could have produced his own phone records, and in any event his claim to have called


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


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his children on the days in question was not a substantial defense and would not have affected
the outcome of the case.

       On appeal, defendant moved to remand for a new trial or Ginther hearing for the same
reasons articulated in his motion below. The motion was denied. People v Wilson, unpublished
order of the Court of Appeals, entered July 21, 2016 (Docket No. 330883).

                                          II. ANALYSIS

                                 A. STANDARDS OF REVIEW

        Defendant contends that his trial counsel rendered ineffective assistance, and that the trial
court abused its discretion by denying his motion for new trial predicated on this claim.
“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). “This
Court reviews a trial court’s factual findings for clear error and reviews de novo questions of
constitutional law.” People v Dendel, 481 Mich 114, 124; 748 NW2d 859, amended on other
grounds 481 Mich 1201 (2008). “A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court, on the whole record, is left with the definite and firm
conviction that a mistake has been made.” Id. at 130.

       “We review for an abuse of discretion a trial court’s decision to grant or deny a new trial.
An abuse of discretion occurs when the trial court’s decision is outside the range of principled
outcomes.” People v Terrell, 289 Mich App 553, 558-559; 797 NW2d 684 (2010) (citation
omitted).

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        “To prove that defense counsel was not effective, the defendant must show that (1)
defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266
(2012). “The defendant was prejudiced if, but for defense counsel’s errors, the result of the
proceeding would have been different.” Id. at 81. “The defendant must overcome a strong
presumption that counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446
Mich 643, 687; 521 NW2d 557 (1994). Further, counsel’s decisions regarding what evidence to
present and whether to present witnesses are presumed to be matters of trial strategy. People v
Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). An appellate court will neither second-
guess, nor assess counsel’s trial strategy with the benefit of hindsight. Id.

        Defendant first contends that counsel was ineffective for failing to subpoena and present
twelve defense witnesses, including his four children. The failure to call witnesses constitutes
ineffective assistance of counsel if it deprives a defendant of a substantial defense. People v
Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). “A substantial defense is one that
might have made a difference in the outcome of the trial.” People v Kelly, 186 Mich App 524,
526; 465 NW2d 569 (1990). As defendant’s argument on appeal only focuses on his children, he

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has abandoned any assertion of error with respect to any other potential witnesses. See People v
Lopez, 305 Mich App 686, 694; 854 NW2d 205 (2014) (holding that the defendant abandoned an
issue for failure to argue its merits).

        As for the children, defendant averred that he “sought the attendance” of his four
children, “who were provided the adjustment services.” Defendant did not explain in his
affidavit filed below as to what any of his children would have testified. He did assert that one
of the two older children, who “would have been 7 and 8 years old . . . could have remembered at
least one treatment.” (Emphasis added.) Thus, defendant merely speculated that only one of the
children might offer testimony favorable to him. This mere speculation is insufficient to
“overcome a strong presumption that counsel’s assistance constituted sound trial strategy.”
Stanaway, 446 Mich at 687.2

        Next, defendant contends that counsel was ineffective for failing to obtain and present
phone records showing that he called one of his children on one of the days in question.3
Defendant contends that the phone records could have impeached the children’s grandmother,
who testified that the children did not have any contact with defendant while under her care from
in Indiana from the night of June 8, 2014 to the night of June 10, 2014.

        We agree with the trial court that the failure to present the alleged phone records would
not deprive defendant of a substantial defense. Showing that he had phone contact with one of
his children would not establish that he had the opportunity to provide chiropractic care to the
children. The court reasonably concluded that, in context, the “contact” meant actual physical
contact, as the chiropractic treatment could not be performed if the children were not physically
present.

        And in addition to the testimony of defendant’s ex-wife, the children’s babysitter during
the relevant timeframe also testified that defendant did not have contact with the children on
June 2, 2014. She was unwavering in her testimony that defendant would not be at the house
when she was watching the children.

       Thus, because defendant has failed to show that his phone records for the relevant period
would have provided him a substantial defense, he has not shown that trial counsel’s
performance was unreasonable with respect to them.




2
  Further, it is possible that counsel strategically opted not to call any of the children as witnesses
because of their youth or because they might have provided testimony favorable to the
prosecution. Counsel may have concluded either that the children would be found not competent
to testify, MRE 601, or perhaps that even if competent, a likelihood existed that they might not
testify truthfully or consistently, thus undermining their credibility. See People v Watson, 245
Mich App 572, 583; 629 NW2d 411 (2001).
3
  Defendant did not produce the phone records with his motion for a new trial, nor has he
provided them on appeal.


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       And as the predicate for his claim of error with respect to the denial of his new trial
motion is invalid, his assertion that the denial evidences an abuse of discretion is without merit.
Denying a motion based on an invalid premise falls squarely within the range of principled
outcomes. Terrell, 289 Mich App at 559.

       We affirm.

                                                            /s/ Jane M. Beckering
                                                            /s/ Jane E. Markey
                                                            /s/ Douglas B. Shapiro




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