                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 1, 2015
              Plaintiff-Appellee,

V                                                                  No. 320325
                                                                   Wayne Circuit Court
SANTEZ MAURICE JONES,                                              LC No. 13-007138-FC

              Defendant-Appellant.


Before: WILDER, P.J., and OWENS and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of first-degree criminal sexual
conduct, MCL 750.520b (multiple variables), and second-degree criminal sexual conduct, MCL
750.520c(1)(a) (victim under 13 years old, defendant over 17 years old). Defendant was
sentenced as a fourth habitual offender, MCL 769.12, to 15 to 30 years’ imprisonment for both
convictions. We affirm.

       This appeal arises out of defendant’s sexual assault of TB, the victim. TB alleged that
she was first assaulted by defendant when she was eight years old. On that occasion, defendant
was babysitting TB at her house. TB and defendant were in the basement, lying on a bed, when
defendant put his hand on TB’s buttocks.

        TB alleged that the second incident of sexual conduct occurred when she was 14 years
old. On that occasion, TB was at her sister’s house and wanted to go to bed. Defendant, who
also lived at that home, told TB to go to bed in his room. TB went into defendant’s room, laid
down on an air mattress, and fell asleep. TB was not wearing underwear when she went to bed.
After TB went to bed, defendant went into the room where TB was sleeping. At some point, TB
woke up and defendant was on top of her with his penis in her vagina. TB testified that it hurt
when defendant penetrated her. After TB awoke, defendant told her to “scoot this way,” but TB
instead got up out of the bed and went into the living room. TB testified that defendant was not
wearing a condom at this time, but she was unsure if he ejaculated during the assault.

        When TB entered the living room, she saw her mother’s friend lying on a bed. TB laid
down next to the friend and whispered, “[Defendant] tried to stick his penis in me.” During their
conversation, the friend told TB to tell her sister what had happened if defendant had actually
performed the act that TB described. TB got up and went into her sister’s room. Her sister was
asleep in her bed with her boyfriend. TB woke her sister and told her that “[defendant] stuck his
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penis” in TB’s vagina. Her sister testified that TB whispered the statement and appeared “kind
of scared to tell [her].” In response, TB’s sister drove TB to their mother’s house, which was
approximately five minutes away. TB’s sister dropped off TB, and when her sister returned to
her own house, she woke defendant. TB’s sister asked defendant if he put his penis in TB’s
vagina, and defendant said, “I don’t remember doing it,” but “I need to pay for it if I did.”

        After arriving at her mother’s house, TB told her mother that “[defendant] stuck his stuff
in me.” However, TB’s mother said that she was too tired to deal with this situation at the
moment, and that TB should call her father. TB called her father, who did not live with her
mother, and told him over the phone that “[defendant] raped me.” TB had blood coming out of
her vagina. The blood was not menstrual blood because TB had just ended her period. TB’s
father got out of bed, got dressed, and drove to see TB. TB was taken to the hospital where she
underwent an examination. An analysis of the vaginal swabs taken from TB’s body shortly after
the assault showed that defendant’s DNA was a match at three of the 16 locations that were
tested, and he could not be excluded as a donor at 10 of the other locations.

        At trial, the mother’s friend, TB’s sister, TB’s mother, and TB’s father all testified
regarding the statements TB made to them. Further, Jessica Drager testified, as an expert in
DNA analysis, that, according to a report authored by a forensic analyst named Billie Hooker,
sperm cells were found on the vaginal and cervical swabs. At the conclusion of the evidence, the
trial court stated that it found TB credible and, therefore, found defendant guilty of first-degree
criminal sexual conduct and second-degree criminal sexual conduct.                Defendant was
subsequently sentenced to 15 to 30 years’ imprisonment for both convictions on January 24,
2014.

       On December 23, 2014, defendant filed a motion in this Court to remand for a Ginther1
hearing. On January 30, 2015, this Court entered an order denying defendant’s motion to
remand because defendant did not properly demonstrate that further factual development was
necessary. People v Jones, unpublished order of the Court of Appeals, entered January 30, 2015
(Docket No. 320235).

       On appeal, defendant argues that he was denied the effective assistance of counsel due to
defense counsel’s failure to object to various hearsay statements. We disagree.

        Generally, whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38,
47; 826 NW2d 136 (2012). A trial court’s findings of fact are reviewed for clear error, and
questions of constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). Because defendant did not move for a new trial in the trial court on the
basis of ineffective assistance of counsel, and further, because no Ginther hearing has been held,
our review of this issue is limited to mistakes apparent on the record. People v Rodgers, 248
Mich App 702, 713-714; 645 NW2d 294 (2001).



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


                                                -2-
        The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; Trakhtenberg, 493 Mich at 51.
To establish ineffective assistance of counsel, 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). “[A] defendant
[is] prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been
different.” Id. at 81. “Effective assistance of counsel is presumed, and [a] defendant bears a
heavy burden of proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229
(2012) (quotation marks and citation omitted). “A defendant must [also] overcome a strong
presumption that the assistance of his counsel was sound trial strategy . . . .” People v Sabin, 242
Mich App 656, 659; 620 NW2d 19 (2000). “Counsel is not required to raise meritless or futile
objections . . . .” Eisen, 296 Mich App at 329 (quotation marks and citation omitted).

        “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is not admissible unless it falls under an exception provided by the rules of evidence.
MRE 802. The excited utterance exception permits the admission of hearsay statements that (1)
arise out of a startling event, and (2) are made while the declarant was under the excitement
caused by that event. MRE 803(2); People v Layher, 238 Mich App 573, 582; 607 NW2d 91
(1999), aff’d 464 Mich 756 (2001). The focus of the excited utterance rule is the “lack of
capacity to fabricate, not the lack of time to fabricate,” and the relevant inquiry is one concerning
“the possibility for conscious reflection.” People v Smith, 456 Mich 543, 550-551; 581 NW2d
654 (1998). As such, “[t]hough the time that passes between the event and the statement is an
important factor to be considered in determining whether the declarant was still under the stress
of the event when the statement was made, it is not dispositive.” Id at 551. “The pertinent
inquiry is not whether there has been time for the declarant to fabricate a statement, but whether
the declarant is so overwhelmed that she lacks the capacity to fabricate.” People v McLaughlin,
258 Mich App 635, 659-660; 672 NW2d 860 (2003).

        Defendant first contends that defense counsel was ineffective for failing to object to the
testimony provided by the mother’s friend that TB whispered to her immediately after the
incident that “[defendant] tried to stick his penis in [TB].” However, it is apparent that TB’s
statement was an excited utterance, arising out of the startling event of TB being awakened by
defendant lying on top of her with his penis inside her vagina. The trial court found that TB was
under “distress and fear” when she whispered the statement to the friend, establishing that TB
was under the excitement caused by that event when she made her statement. Further, given the
finding that TB was under distress and was fearful, the record indicates that she lacked the
capacity to fabricate her statement to the friend. Thus, any objection that the statement was
inadmissible hearsay would have been meritless. Because counsel is not required to make a
meritless objection, Eisen, 296 Mich App at 329, counsel’s performance did not fall below an
objective standard of reasonableness.

       Defendant next argues that defense counsel was ineffective for failing to object when
TB’s sister testified that TB told her that “[defendant] had stuck his penis inside [TB].” Similar
to TB’s statement to her mother’s friend, the record indicates that TB’s statement to her sister
was made while TB was still under the stress of the startling event and lacked the capacity to

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fabricate, as her sister testified that TB was whispering when she made the statement and
appeared “kind of scared to tell [her sister].” Thus, TB’s statement to her sister was also
admissible as an excited utterance, and any objection that the statement was inadmissible hearsay
would have been meritless. As stated above, ineffective assistance of counsel cannot be
predicated on the fact that counsel did not raise a meritless objection. Id. Therefore, defense
counsel’s failure to object to her sister’s testimony did not constitute ineffective assistance of
counsel.

        Defendant also asserts that defense counsel was ineffective for failing to object when
TB’s mother testified that TB told her that “[defendant] stuck his stuff in me.” We conclude that
this statement also constituted an excited utterance. TB made the statement shortly after the
startling event, and TB’s mother described TB’s condition as “hysterical, she was crying.”
Although several minutes had passed between TB’s statement to her sister and TB’s statement to
her mother, we find that the testimony provided by TB’s mother regarding TB’s demeanor
demonstrates that TB made the statement while she was still under the excitement, and
overwhelmed by the stress, caused by the event. See Smith, 456 Mich at 545, 552-553
(concluding that a statement made by a sixteen-year-old victim to his mother 10 hours after the
sexual assault constituted an excited utterance in light of the circumstances preceding and
surrounding the statement, which demonstrated that the victim was still overwhelmed by the
stress of the event). Cf. People v Kowalak, 215 Mich App 554, 557; 546 NW2d 681 (1996)
(concluding that a statement made by an adult victim approximately 45 minutes after the startling
event constituted an excited utterance under the circumstances); People v Draper, 150 Mich App
481, 486; 389 NW2d 89 (1986) (concluding that a statement made by a three-year-old victim one
week after a sexual assault constituted an excited utterance under the circumstances), remanded
on other grounds 437 Mich 873 (1990); People v Soles, 143 Mich App 433, 435, 438; 372 NW2d
588 (1985) (concluding that statements made by a six-year-old victim five days after a “heinous”
sexual assault constituted an excited utterance under the circumstances). Likewise, there is
nothing in the record which suggests that TB had an opportunity for conscious reflection during
the short ride in the car, such that TB was no longer overwhelmed, or had the capacity to
fabricate her statement, when she arrived at her mother’s house. Thus, TB’s statement to her
mother was also admissible as an excited utterance, and any objection would have been
meritless. See Eisen, 296 Mich App at 329.

         Defendant also claims that defense counsel was ineffective for failing to object when
TB’s father testified that TB stated that “[defendant] raped [her].” After TB’s mother told TB to
call her father, TB told him that “[defendant] raped [her].” TB’s father testified that when TB
told him what defendant had done, TB was “hysterical, crying.” Thus, TB’s statement to her
father was made while she was under the excitement caused by that event and while she still
lacked the capacity to fabricate her statement to her father. Likewise, in light of her father’s
testimony regarding TB’s demeanor, we find that the additional passage of time before TB made
the statement to her father does not preclude a finding that the statement was an excited
utterance. See Smith, 456 Mich at 545, 552-553. Cf. Kowalak, 215 Mich App at 557; Draper,
150 Mich App at 486; Soles, 143 Mich App at 435. Thus, because there is an evidentiary basis
for finding that TB’s statement to her father qualified as an excited utterance, any objection that
the statement was inadmissible hearsay would have been meritless. Because counsel is not
required to make a meritless objection, Eisen, 296 Mich App at 329, counsel’s performance did
not fall below an objective standard of reasonableness in this regard.

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        Furthermore, even if defense counsel’s failure to object to TB’s statements to her mother
and father arguably fell below an objective standard of reasonableness in light of the period of
time that had passed following the assault, there is not a reasonable probability that this failure to
object affected the outcome of the proceedings in light of the entire record. TB’s statement to
her mother was cumulative to her own testimony at trial and her statements to her mother’s
friend and her sister, which were properly admitted as excited utterances. Cf. Smith, 456 Mich at
554-555 (concluding that, if the admission of the victim’s hearsay statement was erroneous, the
error was harmless because it did not prejudice the defendant in light of the victim’s testimony
and the mother’s additional testimony). Thus, defense counsel’s failure to object to these
statements did not constitute ineffective assistance of counsel. Heft, 299 Mich App at 80-81.

        Lastly, defendant contends that counsel was ineffective for failing to object to Drager’s
expert testimony during which she stated that, according to scientist Hooker’s report, sperm cells
were found on one of the vaginal slides. Defendant contends that trial counsel should have
objected because the hearsay testimony violated the Confrontation Clause.

        “Both the United States and Michigan [C]onstitutions guarantee a criminal defendant the
right to confront the witnesses against him or her.” People v Garland, 286 Mich App 1, 10; 777
NW2d 732 (2009), citing US Const, Am VI; Const 1963, art 1, § 20. The Confrontation Clause
prohibits the admission of out of court statements that are testimonial in nature unless the
declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the
declarant. People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007), citing Crawford v
Washington, 541 US 36, 42; 124 S Ct 1354; 158 L Ed 2d 177 (2004). A report “prepared in
connection with a criminal investigation or prosecution . . . is ‘testimonial,’ and therefore within
the compass of the Confrontation Clause.” Bullcoming v New Mexico, __ US __; 131 S Ct 2705,
2713-2714; 180 L Ed 2d 610 (2011), citing Melendez-Diaz v Massachusetts, 557 US 305, 319-
324; 129 S Ct 2527; 174 L Ed 2d 314 (2009). In the instant case, Hooker’s report was prepared
in connection with a criminal investigation or prosecution because the DNA analysis was
required to determine if the allegations that defendant penetrated TB were true. Thus, Hooker’s
report is testimonial, which implicates the Confrontation Clause. Id.

        In Bullcoming, 131 S Ct at 2710, the United States Supreme Court was required to
determine whether the Confrontation Clause permits the prosecution to introduce a forensic
laboratory report through the in-court testimony of a scientist who did not sign the report or
perform or observe the test reported. The defendant had rear-ended a pick-up truck. Id. When
the truck driver got out of his truck to exchange information with the defendant, the truck driver
smelled alcohol on the defendant’s breath and noticed that the defendant’s eyes were bloodshot.
Id. The defendant was subsequently arrested for driving a vehicle while under the influence of
intoxicating liquor. Id. The police obtained a warrant authorizing a blood-alcohol analysis and,
pursuant to the warrant, a sample of the defendant’s blood was drawn at a local hospital. Id. The
sample of the defendant’s blood was sent to the Scientific Laboratory Division of the New
Mexico Department of Health (SLD). Id. Curtis Caylor, a SLD forensic analyst, created a report
that stated that the defendant’s blood-alcohol content was .21 grams per one 100 milliliters of
blood. Id. On the day of trial, the prosecution informed the defendant that the prosecution
would not be calling Caylor as a witness because he was recently placed on unpaid leave. Id. at
2711-2712. The prosecution presented evidence of Caylor’s report as a “business record”
through the testimony of Gerasimo Razatos, an SLD scientist. Id. at 2712.

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        The United States Supreme Court held that Razatos’s “surrogate testimony” violated the
Confrontation Clause because Razatos “could not convey what Caylor knew or observed about
the events” his report concerned. Id. at 2710, 2715-2716. The United States Supreme Court also
held that the Confrontation Clause does not permit the prosecution to introduce a forensic
laboratory report through the in-court testimony of a scientist who did not sign the report or
perform or observe the test reported, unless the analyst who made the report is unavailable at
trial and the accused had an opportunity to cross-examine that particular scientist. Id. at 2710.

        Similar to Rozatos in Bullcoming, Drager’s “surrogate testimony” could not convey what
Hooker knew or observed regarding the matters discussed in the report. There is no indication
that Drager signed the report or performed or observed the test which determined that sperm
cells were on the vaginal slide. There is no indication that Hooker was unavailable at trial.2
Additionally, defendant did not have the opportunity to previously cross-examine Hooker.
Because the Confrontation Clause does not permit the prosecution to introduce a forensic
laboratory report through the in-court testimony of a scientist who did not sign the certification
or perform or observe the test reported, unless the analyst who made the report is unavailable at
trial and the accused had an opportunity to cross-examine that particular scientist, id. at 2710,
there is a reasonable probability that an objection to Drager’s testimony on Confrontation Clause
grounds would have been successful.

        However, even if we assume that failing to raise an objection to the admission of the
contents of the report without the in-court testimony of Hooker fell below an objective standard
of reasonableness, there is not a reasonable probability that defense counsel’s performance
prejudiced defendant, i.e., that the result of the proceeding would have been different but for
defense counsel’s error. Heft, 299 Mich App at 80-81. Most significantly, it is evident from the
trial court’s findings on the record that the court did not rely on the presence of sperm cells on
the vaginal slide in reaching its verdict. Instead, it focused on the testimony provided by TB,
repeatedly stating that it found TB to be a credible witness, and the testimony provided by the
other witnesses, which corroborated TB’s account of the incident. Moreover, TB’s testimony—
which indicated that when she woke up, defendant was on top of her with his penis in her
vagina—was sufficient on its own to support defendant’s first-degree criminal sexual conduct
conviction, as the testimony of a victim in a criminal sexual conduct case need not be
corroborated in order to sustain such a conviction. MCL 750.520h; People v Brantley, 296 Mich
App 546, 551; 823 NW2d 290 (2012). Additionally, regardless of the findings in Hooker’s
report, Drager, who performed the DNA analysis, testified that the DNA found on the vaginal
slide from TB matched defendant’s DNA at three of the 16 locations that were tested. Thus,
given the trial court’s findings and the evidence presented at trial, there is not a reasonable
probability that the outcome of the proceeding would have been different but for defense


2
   Hooker was an endorsed witness; however, defense counsel subsequently waived the
production of Hooker for the purpose of establishing a chain of custody for the contents of the
rape kit. Although defense counsel waived the production of Hooker, when the prosecution
elicited testimony from Drager regarding the contents of Hooker’s report, Hooker became a
witness that defendant had the right to confront. Bullcoming, 131 S Ct at 2716.


                                               -6-
counsel’s failure to object to the contents of the report prepared by Hooker. Accordingly,
defendant’s claim of ineffective assistance must fail.

      Affirmed.



                                                       /s/ Kurtis T. Wilder
                                                       /s/ Donald S. Owens
                                                       /s/ Michael J. Kelly




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