            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 14, 2020
               Plaintiff-Appellee,

V                                                                    No. 345792
                                                                     Wayne Circuit Court
FELIX ANTONIO DAVIS III,                                             LC No. 18-003417-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and CAMERON, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b (sexual penetration with aggravating
circumstances); one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c
(sexual contact with aggravating circumstances); one count of assault with intent to do great bodily
harm less than murder, MCL 750.84; one count of felon in possession of a firearm (felon-in-
possession), MCL 750.224f; and one count of possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant, as a fourth-offense
habitual offender, MCL 769.12, to 60 to 100 years’ imprisonment for the CSC-I convictions, 5 to
20 years’ imprisonment for the CSC-II conviction, 3 to 10 years’ imprisonment for the assault
conviction, one to five years’ imprisonment for the felon-in-possession conviction, and two years’
imprisonment for the felony-firearm conviction. We affirm.

                                       I. BACKGROUND

        Defendant found the victim’s profile on a social media website and contacted her.
Defendant and the victim agreed to “chill” and smoke marijuana together. Defendant picked up
the victim and drove her to his home. When the victim first arrived, she was not feeling well, so
she took a nap. When she woke up, defendant asked if he could pay her for sex. The victim
declined. Defendant then raped the victim three times. He also punched her in the face, pulled
out her weave, and temporarily locked her in the basement. The victim escaped after defendant
left her alone when he went to answer the door. The victim ran to a gas station, and individuals




                                                -1-
there called the police. Four months after the incident, the police found and arrested defendant.
Defendant was then charged, convicted, and sentenced. This appeal follows.

                                          II. DISCUSSION

       On appeal, defendant challenges the scoring of offense variables (OVs) 7 and 10, whether
defense counsel provided effective assistance of counsel, and the admission of various pieces of
evidence. We disagree.

                                               A. OV 7

       Defendant first argues that the trial court improperly assessed 50 points for OV 7 because
defendant’s conduct did not amount to torture, sadism, or excessive brutality.1 We disagree.

        “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by
statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
The trial court’s “factual determinations are reviewed for clear error and must be supported by a
preponderance for the evidence.” Id.

        “The focus of OV 7 is defendant’s conduct and purpose with respect to aggravated physical
abuse.” People v Kegler, 268 Mich App 187, 191; 706 NW2d 744 (2005). See also MCL
777.37(1). Trial courts assign 50 points for OV 7 if the “defendant’s conduct [fell] under one of
the four categories of conduct listed in subsection (1)(a).” Hardy, 494 Mich at 439-440.
Accordingly, 50 points must be assigned if the defendant treated the victim with sadism, torture,
excessive brutality, or “similarly egregious conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” MCL 777.37(1)(a). “[S]imilarly egregious conduct
designed to substantially increase the fear and anxiety of a victim suffered during the offense”
means conduct “that was intended to make a victim’s fear or anxiety greater by a considerable
amount.” Hardy, 494 Mich at 440-441. When considering whether a defendant’s conduct
qualified as similarly egregious conduct, trial courts should inquire “(1) whether the defendant
engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether
the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.”
Id. at 443-444.

       Here, the record supports the trial court’s finding that defendant engaged in conduct that
was designed to substantially increase the victim’s fear and anxiety by engaging in conduct beyond
what was necessary to commit CSC-I. The jury found that defendant sexually penetrated the
victim by force or coercion, the victim sustained personal injury, and there were aggravating
circumstances involving the crimes of both assault by strangulation and felon-in-possession. MCL
750.520b(1)(c), (e), and (f). Additionally, the victim testified that defendant punched her in the


1
  Defendant recognizes that a reduction of 50 points would not change his minimum sentencing
guidelines. However, he requests that this Court remand his case so that the trial court may correct
his presentence investigation report (PSIR). See People v Bailey, ___ Mich ___, ___; ___ NW2d
___ (2019) (Docket No. 342175); slip op at 9, n 2.


                                                  -2-
face, slammed her against a wall, and pulled out her weave. The victim also testified that defendant
refused to let her leave his house and chased her around. Finally, defendant dragged the victim
into the basement, and locked her in there for about 30 minutes or an hour in the dark.

        Therefore, there was a preponderance of the evidence that defendant’s conduct was beyond
the minimum necessary to commit the offense of CSC-I, and the conduct was intended to increase
the victim’s fear or anxiety. Thus, the trial court correctly assessed 50 points for OV 7.

                                             B. OV 10

       Next, defendant argues that the trial court improperly assigned 10 points for OV 10. 2 We
disagree.

        OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40. Trial courts must
assign 10 points for OV 10 if “[t]he offender exploited a victim’s physical disability, mental
disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority
status.” MCL 777.40(1)(b). “The mere existence of 1 or more factors described in subsection (1)
does not automatically equate with victim vulnerability.” MCL 777.40(2). The record must
additionally establish that the defendant exploited the victim’s vulnerability. People v Cannon,
481 Mich 152, 159; 749 NW2d 547 (2008). “ ’Exploit’ means to manipulate a victim for selfish
or unethical purposes.” MCL 777.40(3)(b). “ ’Vulnerability’ means the readily apparent
susceptibility of a victim to injury, physical restraint, persuasion, or temptation.” MCL
777.40(3)(c).

        The record supports the trial court’s finding that the victim’s vulnerability of youth was
exploited. When defendant raped the victim, he was 40 years old, and she was 20 years old.
Because of the age gap, the victim’s youth was a vulnerability. Additionally, defendant exploited
the victim’s vulnerability. At trial, the victim testified that she only discussed “chilling” and
smoking marijuana with defendant before he picked her up. She did not tell defendant that she
was willing to have sex with defendant. The victim had never met defendant, but she was willing
to go to a house alone with him to smoke marijuana, which indicates a youthful naivete that
defendant exploited to isolate the victim. See People v Lampe, 327 Mich App 104, 116; 933 NW2d
314 (2019). Additionally, defendant continued this façade that he only wanted to smoke marijuana
with the victim up until he raped her. Until defendant raped the victim, he showed kindness to the
victim by buying her a Vernors and chicken noodle soup. Additionally, he allowed the victim to
take a nap when she first got to his house. Therefore, the trial court did not err by assessing 10
points for OV 10.




2
  Although a reduction of 10 OV points would not alter defendant’s minimum sentencing
guidelines, defendant requests that this Court remand this case to the trial court so that the trial
court may correct defendant’s PSIR. See Bailey, ___ Mich at ___; slip op at 9, n 2.


                                                 -3-
                        C. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, defendant argues that he was denied his right to effective assistance of counsel. We
disagree.

       This Court’s determination “[w]hether 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). We review for clear error a trial court’s findings of fact and de novo
questions of constitutional law. Id. However, because defendant’s motion for a new trial or
evidentiary hearing was denied, “our review is limited to mistakes apparent on the record.” People
v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

         The defendant has the burden of establishing that he was denied effective assistance of
counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The defendant must establish “(1)
that trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced
the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). For the first
requirement, the defendant “must overcome the strong presumption that counsel’s performance
was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136
(2012). The defendant must show that defense counsel’s actions were not a “result of reasonable
professional judgment.” Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d
674 (1984). Additionally, this Court should not “substitute [its] judgment for that of counsel on
matters of trial strategy” or “use the benefit of hindsight when assessing counsel’s competence.”
People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).

        For the second requirement, the defendant “must show that, but for counsel’s deficient
performance, a different result would have been reasonably probable.” People v Armstrong, 490
Mich 281, 290; 806 NW2d 676 (2011). “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App
192, 201; 793 NW2d 192 (2010). “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy, as is a
decision concerning what evidence to highlight during closing argument.” People v Horn, 279
Mich App 31, 39; 755 NW2d 212 (2008) (citations omitted). A defense counsel’s failure to present
evidence or call witnesses at trial can constitute ineffective assistance of counsel if the defendant
is deprived of a substantial defense. People v Dunigan, 299 Mich App 579, 589; 831 NW2d 243
(2013); People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

        Defendant first contends that he was denied effective assistance of counsel because defense
counsel failed to provide him with the discovery. However, defendant failed to provide this Court
with any evidence that defense counsel did not provide him discovery. The “defendant has the
burden of establishing the factual predicate for his claim of ineffective assistance of counsel . . . .”
Hoag, 460 Mich at 6. Instead, defendant only cites the pretrial hearing and jury trial transcripts.
Those transcripts only provide this Court with the many accusations that defendant made against
defense counsel regarding discovery. There is no support, outside of defendant’s own statements,
for the contention that defense counsel withheld discovery from defendant. Therefore, defendant
has failed to prove that defense counsel’s performance was objectively deficient.


                                                  -4-
        Additionally, defendant fails to provide any argument regarding prejudice. That is,
defendant fails to “explain what he actually would have done differently, either before or at trial,
if he had received any discovery materials . . . .” People v Jackson, 292 Mich App 583, 601; 808
NW2d 541 (2011). Therefore, even assuming that defense counsel’s performance was objectively
deficient, defendant has failed to prove that he was prejudiced.

       Defendant also contends that he was denied effective assistance of counsel because defense
counsel failed to admit evidence at trial regarding whose fingerprints were on the gun found in
defendant’s home. This argument is also without merit.

        Once again, defendant failed to provide this Court with any support for his claim. Hoag,
460 Mich at 6. The record does not establish that the police ever tested the handgun for
fingerprints. Additionally, defendant failed to provide this Court with any proof that his
fingerprints were not found on the handgun. Furthermore, defense counsel’s decision not to pursue
a fingerprint analysis may have been sound trial strategy because the analysis may have revealed
that defendant’s fingerprints were on gun, which would have hurt defendant’s case. However,
even assuming defense counsel was able to test the gun for fingerprints, and the results proved that
defendant’s fingerprints were not on the gun, defendant failed to prove that it was “reasonably
probable” that the jury’s verdict would have changed. Armstrong, 490 Mich at 290. Thus,
defendant’s argument is “purely speculative.” Hoag, 460 Mich at 8. Defendant failed to present
this Court with any evidence or legal analysis that “defendant would have fared any better at trial
with this information.” Id. Accordingly, defendant failed to establish that defense counsel
provided ineffective assistance of counsel.

                               D. EVIDENTIARY CHALLENGES

        Defendant asserts that the trial court made several errors regarding the admission of
evidence. First, defendant argues that the trial court erred by admitting other-acts evidence because
the prejudicial effect of the evidence substantially outweighed any probative value. Second,
defendant similarly argues that the trial court erroneously admitted letters that defendant wrote
because the prejudicial effect substantially outweighed the probative value. Third, defendant
challenges the admission of photographs of defendant’s firearm, arguing that the prejudicial effect
of the photographs outweighed any probative value. We disagree.

        This Court reviews for an abuse of discretion the trial court’s admission of other-acts
evidence at trial. People v Waclawski, 286 Mich App 634, 669-670; 780 NW2d 321 (2009). A
trial court “abuses its discretion when it chooses an outcome that is outside the range of reasonable
and principled outcomes.” Id. at 670.

        “Generally, Michigan’s Rules of Evidence proscribe the use of character evidence to prove
action in conformity therewith.” People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
Indeed, MRE 404(b) generally excludes the use of other-acts evidence “to avoid the danger of
conviction based on a defendant’s history of misconduct.” People v Johnigan, 265 Mich App 463,
465; 696 NW2d 724 (2005). However, evidence of a defendant’s other acts may be admissible
under certain circumstances:




                                                -5-
               Evidence of other crimes, wrongs, or acts . . . may, however, be admissible
       for other purposes, such as proof of motive, opportunity, intent, preparation,
       scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake
       or accident when the same is material, whether such other crimes, wrongs, or acts
       are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
       [MRE 404(b)(1).]

To be admissible under MRE 404(b), the evidence must (1) be offered for a proper purpose, (2) be
relevant to an issue of fact, and (3) not have a probative value that is substantially outweighed by
the danger of unfair prejudice. People v Steele, 283 Mich App 472, 479; 769 NW2d 256 (2009).
“A proper purpose for admission is one that seeks to accomplish something other than the
establishment of a defendant’s character and his propensity to commit the offense.” Johnigan, 265
Mich App at 465.

        Under the third prong, prejudicial evidence is not necessarily excluded; only evidence that
is unfairly prejudicial is excluded. MRE 403; People v Crawford, 458 Mich 376, 398; 582 NW2d
785 (1998). “Evidence is unfairly prejudicial when there exists a danger that marginally probative
evidence will be given undue or preemptive weight by the jury.” Id. The concern is that the jury
“will use the evidence precisely for the purpose that it may not be considered, that is, as suggesting
that the defendant is a bad person, a convicted criminal, and that if he did it before he probably did
it again.” Id. (quotation marks and citation omitted).

                                  1. OTHER-ACTS EVIDENCE

        Defendant first challenges the trial court’s admission of testimony concerning defendant’s
2009 conviction for the statutory rape of MG. At trial, MG testified that in 2008, when she was a
minor, she lived with defendant. At that time, defendant was a pimp, and would use other minor
children who lived with him as prostitutes. Although defendant used MG as a police lookout
instead of a prostitute, MG described a sexual encounter with defendant. MG told defendant to
stop, but defendant refused and continued to have sex with MG. MG also testified to an instance
where defendant physically assaulted her after MG spent the night at another man’s home. When
MG returned to defendant’s home, defendant ran outside with a gun and yelled at the man.
Defendant locked MG out of the house, but MG was able to find a way inside. Later that night,
defendant smacked MG, locked her in a closet for an unknown length of time, and pulled MG’s
hair. MG also testified that she had seen defendant with a gun on other occasions.

        The trial court properly admitted MG’s testimony at trial for the proper purpose of proving
a common scheme or plan. MG’s testimony was “logically relevant to show that the charged act
occurred” because the bad acts in 2008 and “the charged offense are sufficiently similar to support
an inference that they are manifestations of a common, plan, scheme, or system.” People v Sabin
(After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000). The prior incident showed that
defendant had a common scheme or plan when he committed criminal sexual conduct. In both
cases, defendant targeted young women who were vulnerable. MG was a minor, and in this case,
the victim was only 20 years old. Defendant was significantly older than the victims. Additionally,
in both cases, defendant took them to his home and cared for their needs. He provided MG shelter,
and he provided the victim in this case with a drink and chicken noodle soup after she stated that
she was not feeling well. Additionally, he allowed the victim to sleep on his bed for hours when


                                                 -6-
she first arrived at his house. Further, defendant physically assaulted the women the same way:
both victims reported that defendant pulled their hair and locked them in a confined space. Both
victims were also aware that defendant possessed a gun. Therefore, evidence of the 2008 incident
was relevant because it showed that defendant had a common scheme or plan for physical and
sexual assaults, and it was logically relevant to proving that defendant committed the offenses of
which he was charged.

        Furthermore, the probative value of the other-acts evidence was not substantially
outweighed by the danger of unfair prejudice because it helped establish that defendant had a
common scheme or plan for physical and sexual assault. Additionally, the trial court provided a
limiting instruction to the jury regarding the other-acts evidence to protect defendant from unfair
prejudice. See People v Martzke, 251 Mich App 282, 295; 651 NW2d 490 (2002) (“A carefully
constructed limiting instruction rendered by the trial court would be sufficient to counterbalance
any potential for prejudice spawned by the other acts evidence.”). Therefore, the trial court did
not abuse its discretion because the other-acts evidence was admitted for the proper purpose of
proving a common scheme or plan, the evidence was relevant, and the probative value was not
substantially outweighed by unfair prejudice.

                                  2. DEFENDANT’S LETTERS

        Defendant next challenges the trial court’s admission of letters that defendant wrote to MG
and Kandi Martin. At trial, MG testified that defendant sent her a letter asking MG to recant
statements that she made in 2008 about defendant. Martin, defendant’s ex-girlfriend, testified that
defendant contacted her through letters and telephone calls from jail and requested that Martin
contact the victim in this case and offer her money to not testify at trial. Defendant’s letters to MG
and Martin were admitted as exhibits at trial.

       The trial court determined that defendant’s letters were admissible because they showed
defendant’s consciousness of guilt. “Evidence that a defendant made efforts to influence an
adverse witness is relevant if it shows consciousness of guilt.” People v Schaw, 288 Mich App
231, 237; 791 NW2d 743 (2010). The letters were relevant because they were clearly intended to
prevent the prosecution from prosecuting defendant, and were probative of defendant’s
consciousness of guilt. Additionally, there is no indication that the jury gave the letters any undue
or preemptive weight. Therefore, the trial court properly admitted the letters into evidence at trial.

                                 3. PHOTOGRAPHS OF GUNS

       Defendant next argues that the trial court erred by admitting photographs of guns that were
found on defendant’s cellular telephone. We disagree.

        “Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence
produced by the other party and tending directly to weaken or impeach the same.” People v
Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996) (quotation marks and citation omitted).
Whether rebuttal evidence “is proper depends on what proofs the defendant introduced and not on
merely what the defendant testified about on cross.” Id. The Michigan Supreme Court determined
that “the test of whether rebuttal evidence was properly admitted is not whether the evidence could
have been offered in the prosecutor’s case in chief, but, rather, whether the evidence is properly



                                                 -7-
responsive to evidence introduced or a theory developed by the defendant.” Id. “As long as
evidence is responsive to material presented by the defense, it is properly classified as rebuttal,
even if it overlaps evidence admitted in the prosecutor’s case in chief.” Id. Rebuttal evidence
must be “relate[d] to a substantive rather than a collective matter.” People v Humphreys, 221 Mich
App 443, 446; 561 NW2d 868 (1997).

        Before trial, the prosecution sought to introduce pictures found on defendant’s telephone
of various guns as other-acts evidence because they were relevant to defendant’s felony-firearm
and felon-in-possession charge. The trial court denied the prosecution’s request and held that the
evidence was unfairly prejudicial under MRE 403. However, at trial, defendant stated on direct
examination that the prosecution’s “narrative” that he was a “gun toting rapist” was false.
Defendant also stated that he “[had] never, ever been charged with a pistol, a gun case,” and that
he had “never ever committed a crime where a gun was associated with the case.” On cross-
examination, the prosecution asked defendant about his ability to own guns as a felon and whether
he owned any guns. Defendant answered that he was not able to buy guns and that he did not own
any guns. The prosecution then asked defendant whether he had any pictures of guns on his
cellular telephone, and defendant admitted that he did. However, he claimed that the person who
owned his cell phone before him took the photographs.

         The trial court recognized that it had previously denied the prosecution’s request to
introduce the photographs as other-acts evidence, but stated that the photographs were admissible
for the purposes of rebuttal because defendant denied owning any guns. Detective James Audi
then testified that he found one picture of an AR-15 rifle, one picture of a revolver pistol, and two
pictures of a black, semiautomatic handgun on defendant’s cellular telephone. Detective Audi also
testified that the metadata of the photographs established that the photographs were taken days
before defendant met the victim.

        Defendant now argues that the photographs of the guns were improperly admitted as other-
acts evidence, and requests that this Court perform the MRE 404(b) analysis and determine that
the trial court should have excluded the photographs. Defendant supports his argument by
highlighting the trial court’s MRE 404(b) limiting instruction. Although the trial court first
concluded that the photographs of the guns were inadmissible and held that the unfair prejudice of
the photographs outweighed their probative value, the trial court later admitted the photographs as
rebuttal evidence because of the statements that defendant made at trial. Because the photographs
were introduced as rebuttal evidence, not other-acts evidence, we do not need to perform the MRE
404(b) analysis. Regarding defendant’s argument involving the trial court’s limiting instruction,
a review of the instruction does not indicate that the trial court issued the instruction for any
evidence other than the evidence of the 2008 incident discussed above. Therefore, we deny
defendant’s request and analyze the photographs as rebuttal evidence, not as other-acts evidence.

        Defendant’s statement that he did not own any guns advanced his theory at trial that the
gun found at his house belonged to the victim and not him. Defendant testified at trial that the
victim brought the gun over his house and placed it in the bedroom, which supported defendant’s
argument that he was not guilty of some of the charges. However, the photographs of the guns
directly rebutted defendant’s testimony that he did not own any guns, and therefore, the
photographs were properly admitted as rebuttal evidence. See Figgures, 451 Mich at 399.



                                                -8-
        Defendant also argues that the prejudicial effect of the photographs outweighed their
probative value. The trial court initially determined that the photographs were inadmissible under
MRE 403 because the probative value of the photographs was substantially outweighed by the risk
that the jury would find that defendant “had a propensity for being in the presence of firearms.”
However, after the prosecution requested that the admission of photographs as rebuttal evidence,
the MRE 403 analysis changed. The trial court properly determined that the probative value of
the evidence was no longer substantially outweighed by the risk of unfair prejudice. Although the
evidence remained prejudicial, it became extremely probative because it directly contradicted
defendant’s statements that he did not own any guns and that the prior owner of the cellular
telephone took the photographs. Therefore, the trial court properly concluded that photographs of
the guns were admissible at trial.

       Affirmed.



                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter
                                                            /s/ Thomas C. Cameron




                                               -9-
