                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 16, 2017
              Plaintiff-Appellee,

v                                                                  No. 331190
                                                                   Oakland Circuit Court
DAVID KENT CHAPLIN,                                                LC No. 2014-252692-FH

              Defendant-Appellant.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of third-degree criminal sexual
conduct (CSC III), MCL 750.520d(1)(d) (sexual penetration with a person who is related to
defendant by blood or affinity to the third degree) and fourth-degree criminal sexual conduct
(CSC IV), MCL 750.520e(1)(d) (sexual contact with a person who is related to defendant by
blood or affinity to the third degree). Defendant was sentenced to 55 months to 15 years’
imprisonment for the CSC III conviction and 12 months to 2 years’ imprisonment for the CSC
IV conviction. We affirm.

         The instant case arose from defendant’s sexual abuse of his stepdaughter, S.A., from the
time she was in the eighth grade through her senior year in high school. Defendant married the
complainant’s mother, Beth Chaplin, in the summer of 2008, when S.A. was about 12 years old.
S.A. lived with defendant and Beth in a house in Oakland Township. The complainant testified
at trial that defendant began inappropriately touching her when she was in the eighth grade. He
would put his arm between her breasts as they sat together on the couch. The sexual abuse
progressed to touching and squeezing her buttocks and touching her breasts both over and under
her clothes. By her twelfth grade year, defendant had engaged in multiple acts of digital
penetration and cunnilingus with S.A. S.A. further testified that the sexual assaults usually
occurred at home while her mother was at work or had gone to bed for the night. In 2014, S.A.
told her boyfriend about the abuse, which ultimately led to a police investigation. The case
proceeded to trial, and defendant was convicted of one count each of CSC III and CSC IV, which
he now appeals.

                             I. ADMISSIBILITY OF EVIDENCE

       Defendant argues that the trial court abused its discretion in denying his request to
introduce evidence, including expert testimony. We disagree.
                                               -1-
        We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). We also review a trial court’s
decision to admit or exclude expert witness testimony for an abuse of discretion. People v
Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). An abuse of discretion occurs if the
results are “outside the range of principled outcomes.” Feezel, 486 Mich at 192 (citation and
quotation marks omitted). A decision on a close evidentiary question usually cannot constitute
an abuse of discretion. People v Blackston, 481 Mich 451, 467; 751 NW2d 408 (2008).

        As part of his defense, defendant sought to introduce evidence showing that S.A. had
lived with twin stepsisters (“the twins”) during the time that they made purportedly false
allegations of sexual abuse1 against over one hundred men, including defendant. He claimed that
this evidence was relevant because S.A.’s contact with the twins had taught her how to make
allegations of sexual abuse “stick” or, alternatively, showed that she was suggestible regarding
sexual matters. He sought to call psychologist Dr. Katherine Okla as an expert witness to testify
to S.A.’s suggestibility and familiarity with sexual abuse investigations, among other things.
According to defendant, Dr. Okla would testify that the false report of the twins could have
caused S.A. to mistakenly attribute sexual abuse to defendant. The trial court denied defendant’s
request.

       Evidence is relevant if it has “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. Such evidence is generally admissible. MRE 402. We
acknowledge that a victim of sexual assault’s history of false accusations is relevant in CSC
cases. See People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1985) (recognizing that the
defendant is permitted to show that the victim has made untrue accusations of sexual assault
before).

        Here, it was the twins, not S.A., who allegedly made false claims of sexual abuse. The
trial court properly determined that evidence of their prior allegations was not relevant and,
therefore, inadmissible. Specifically, evidence of the false report of the twins was not relevant
where such evidence did not make it more probable that S.A. would lie about sexual contact with
defendant. While it appears from the record that S.A. lived with the twins for a time, there was
no indication in the record to suggest that she was unduly influenced by their behavior,
particularly with regard to the nature of their sexual abuse allegations. The record also did not
yield necessary information regarding S.A.’s relationship with the twins and her feelings about
their actions in making sexual abuse allegations.2 Therefore, where the evidence defendant



1
  While the disposition of these allegations is not entirely clear from the record, whether the
allegations were in fact false is not determinative in our analysis.
2
  We observe that during the June 3, 2015 motion hearing, when the trial court inquired of
defense counsel what exact evidence defendant sought to admit concerning the twins’ allegations
of sexual abuse, defense counsel informed the trial court that “the gist of [defendant’s motion] is
not that the twins made false allegations. It is that we believe that the exposure of – and the risk
of susceptibility to the complaining witness in this case from her exposure to this highly


                                                -2-
sought to admit concerning the twins’ prior allegations of sexual abuse (1) was not relevant to
the ultimate issue of this case, that being whether defendant sexually assaulted S.A., and (2) did
not bear on S.A.’s credibility, it was not an abuse of discretion for the trial court to decline to
admit this evidence.

        Moreover, MRE 702 permits expert witness testimony when it “will assist the trier of fact
to understand the evidence or to determine a fact in issue[.]” Here, the trial court concluded that
an expert witness was not necessary to assist the jury in understanding the evidence or
determining the issues. The central issue in the case was S.A.’s credibility. The trial court held
that defendant’s theory of S.A.’s suggestibility was speculative and, therefore, evidence bearing
on that point was not relevant to whether S.A. was being truthful. “Because it is the province of
the jury to determine whether a particular witness spoke the truth or fabricated a cock-and-bull
story, it is improper for a witness or an expert to comment or provide an opinion on the
credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349; 835
NW2d 319 (2013) (internal quotations and citations omitted). “Such comments have no
probative value because they do nothing to assist the jury in assessing witness credibility in its
fact-finding mission and in determining the ultimate issue of guilt or innocence.” Id. (Citations
and internal quotations omitted.) Here, the real purpose of the expert testimony would have been
to attack S.A.’s credibility, and would have only served as a distraction to the jury from its
ultimate responsibility of assessing credibility. Accordingly, we conclude that the trial court did
not abuse its discretion in declining to admit the expert witness evidence.

        Defendant also argues that the trial court abused its discretion in granting the
prosecution’s pretrial motion to admit other acts evidence that defendant’s biological daughter
brought sexual assault allegations against him in 1993. Defendant concedes in his brief on
appeal that the evidence at issue was not introduced at trial. As an initial matter, we agree with
the trial court’s ruling that the proffered evidence was admissible where it was relevant to (1)
defendant’s propensity to commit the instant offenses, and (2) S.A.’s credibility. MCL 768.27a;
People v Solloway, 316 Mich App 174, 193; 891 NW2d 255 (2016). As the trial court
recognized, defendant’s biological daughter’s allegations of sexual abuse bore numerous indicia
of similarity to the sexual abuse that S.A. alleged against defendant. We also note that
defendant’s argument that the proffered evidence was improperly admitted to show defendant’s
propensity to commit the instant offenses is unavailing, where in Solloway, this Court
recognized, in pertinent part, as follows:

       Under MCL 768.27a, evidence is relevant, and therefore admissible, when offered
       to show the defendant’s propensity to commit the charged crime. People v
       Watkins, 491 Mich 450, 470; 818 NW2d 296 (2012) (indicating that MCL
       768.27a permits admission of evidence that would generally not be admitted
       under MRE 404(b). [Solloway, 316 Mich App at 193.]



sexualized environment that she was living in for a long period of time and the allegations that
surrounded my client while she lived with him may have had a psychological impact on – on
her.”


                                                -3-
We also disagree with defendant’s assertions that the proffered evidence was unreliable and
ought to have been excluded pursuant to MRE 403 because (1) the allegations were made in
1993, and (2) defendant’s biological daughter recanted the allegations in 2014.3 A temporal
divide alone does not preclude admission of evidence when the other acts are very similar to the
charged offenses. See Solloway, 316 Mich App at 195 (concluding that, given the similarity of
the ages of the victims and the manner in which the defendant sexually assaulted them,
admission of other acts evidence was not precluded by the difference of approximately 12 years
between the prior act and the charged offense). Moreover, at the time the trial court decided this
issue, the prosecution was prepared to present a witness to corroborate defendant’s biological
daughter’s allegations of sexual abuse by defendant. In any event, where the evidence was not
presented to the jury, even if we concluded that the trial court’s ruling was erroneous, defendant
is not entitled to appellate relief on this issue where the trial court’s ruling concerning the
evidence had no impact on defendant’s trial. People v Burns, 494 Mich 104, 110; 832 NW2d
738 (2013) (“A preserved error in the admission of evidence does not warrant reversal unless
after an examination of the entire cause, it shall affirmatively appear that it is more probable than
not that the error was outcome determinative.”) (quotation marks, footnote and citation
omitted).4

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant next argues that he was denied the effective assistance of counsel at trial. We
disagree.

        Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008).
Findings of fact are reviewed for clear error, while determinations of constitutional law are
reviewed de novo. Id. Although defendant filed a motion to remand in this Court on the basis of
ineffective assistance of counsel, because the motion was denied,5 our review of his claim is
limited to errors apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009).




3
   The record confirms that the police investigation into defendant’s biological daughter’s
allegations of sexual abuse was not completed because her mother did not cooperate, and there is
an indication in the record that defendant’s biological daughter recanted the allegations in 2014
after speaking to defendant.
4
  We also note that the trial court properly denied defendant’s motion seeking an evidentiary
hearing regarding allegations made by the twins and Dr. Okla’s proposed testimony. See, e.g.,
People v Williams, 191 Mich App 269, 273-274; 477 NW2d 877 (1991) (observing that an
evidentiary hearing to determine the admissibility of evidence regarding prior allegations of
sexual assault is not intended to be “utilized as a fishing expedition[.]”).
5
 This Court denied defendant’s motion to remand. People v Chaplin, unpublished order of the
Court of Appeals, entered November 23, 2016 (Docket No. 331190).


                                                -4-
        A defendant claiming that he has been denied the effective assistance of counsel must
demonstrate: “(1) that his attorney’s performance fell below an objective standard of
reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair
trial.” People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014) (citation omitted). “‘To
demonstrate prejudice, the defendant must show the existence of a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different.’” Id., quoting
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). “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) (citation omitted).

        First, defendant argues that his trial counsel6 was ineffective for failing to call character
witnesses at trial to testify to his good character. “Decisions regarding what evidence to present
and whether to call or question witnesses are presumed to be matters of trial strategy.” People v
Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999) (citation omitted). The defendant must
overcome a strong presumption that counsel’s performance constituted sound trial strategy.
People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Here, the prosecution sought
to offer evidence of other instances of sexual abuse by defendant, namely the 1993 sexual abuse
allegations of his biological daughter. Therefore, calling witnesses to attest to defendant’s good
character could have opened the door for the prosecution to introduce damaging information
about defendant. People v Vasher, 449 Mich 494, 503; 537 NW2d 168 (1995) (recognizing that
“[o]nce a defendant has placed his character in issue,” the prosecution may properly “introduce
evidence that the defendant’s character is not as impeccable as is claimed.”). Defendant
provided the affidavits of his proposed character witnesses.7 Two of the witnesses, both of
whom are defendant’s nieces, would have testified that defendant was their uncle, had been
around them their entire lives, and had never touched them in an inappropriate manner. A third
witness, defendant’s sister and the mother of one of the other proposed witnesses, also averred
that defendant had acted in a caring and appropriate manner toward her daughter. While these
witnesses would have provided evidence of defendant’s good character, defendant has not
overcome the presumption that it was sound trial strategy for trial counsel to exclude these
witnesses to prevent the prosecution from introducing evidence that was more damaging to the
defense.

       Next, defendant argues that his trial counsel was ineffective for allowing a proposed
character witness, his sister, to remain in the courtroom during trial in violation of a
sequestration order. Consequently, defendant’s sister was barred from testifying. It appears
from the record that trial counsel did not have defendant’s sister leave the courtroom because he
had already decided that he would not call her as a witness. Even if we accept defendant’s
contention that trial counsel erred regarding the sequestration of the witness, defendant has not



6
  For clarity of analysis regarding whether defendant was afforded the effective assistance of
counsel, in this portion of our opinion we will refer to defendant’s counsel in the lower court
proceedings as trial counsel.
7
    We note that one of the affidavits is unsigned and not sworn.


                                                 -5-
shown that the error affected the outcome of the proceedings when the record reflects that trial
counsel decided not to pursue calling character witnesses on defendant’s behalf.

         Finally, defendant asserts that his trial counsel was ineffective for improperly convincing
him to waive his right to testify at trial. In support of his claim, defendant contends that he was
adamant about testifying at trial. At trial, defendant initially stated that he would testify. When a
discussion took place on the record between the trial court, trial counsel and the prosecution
regarding whether the prosecution could cross-examine defendant about other acts evidence,
defendant left the courtroom briefly and consulted with his counsel, returning to the courtroom to
express his decision not to testify. The trial court thoroughly explored the matter of defendant’s
choice whether to testify, asking defendant several pointed questions to confirm his decision that
he had chosen not to testify. At one point, the trial court informed defendant that he could
change his mind at any point up until the defense case-in-chief had closed. Rather than
supporting defendant’s contention that he was coerced into not testifying, the record establishes
that defendant was apprised of his right to testify and voluntarily waived that right after
considering the consequences of testifying. Therefore, we hold that defendant has failed to
establish the factual predicate for his ineffective assistance of counsel claim, People v Hoag, 460
Mich 1, 59; 594 NW2d 57 (1999), and cannot demonstrate that trial counsel’s performance failed
to satisfy an objectively reasonable standard. Gaines, 306 Mich App at 300.

                                        III. SENTENCING

      Defendant contends that the trial court erred in assessing 15 points for offense variable
(OV) 10 when the evidence did not support a finding that defendant’s conduct was predatory.
We disagree.

        A trial court’s factual determinations regarding the scoring of offense variables “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) (footnote and citations omitted). “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.” Id. (Footnote and citation omitted.)

       OV 10 addresses the “exploitation of a vulnerable victim.” MCL 777.40(1). A trial court
must assess 15 points under OV 10 if “[p]redatory conduct was involved.” MCL 777.40(1)(a).
“Predatory conduct” is defined as “preoffense conduct directed at a victim . . . for the primary
purpose of victimization.” MCL 777.40(3)(a); see also People v Cannon, 481 Mich 152, 161;
749 NW2d 257 (2008) (recognizing that predatory conduct’s “primary purpose” is to cause a
“person to suffer from an injurious action or to be deceived.”).

        Here, the trial court properly concluded from the evidence that defendant’s preoffense
conduct was predatory. S.A. testified that defendant married her mother when she was about 12
years old. He then established himself as the father figure. S.A. was especially susceptible to
defendant’s influence as a parental authority because her biological father had died when she was
only 5 years old. The record confirms that defendant began engaging in grooming behavior with
S.A. S.A. testified that defendant began putting his arm between her breasts as they sat together
on the couch. When S.A. would ask defendant why he was doing that, he told her that “he didn’t

                                                -6-
realize that he was doing that[,]” and defendant nonetheless continued to engage in such
behavior. Defendant then moved to touching her breasts and buttocks outside of her clothes and
inside of her clothes. These earlier sexual contacts were primarily intended to lower S.A.’s
inhibitions. S.A. claimed that defendant progressed to touching her vaginal area, first over her
clothes, then under her clothes. Eventually, defendant engaged in multiple acts of digital
penetration with S.A. and performed cunnilingus on her. Gradually escalating “less intrusive and
less highly sexualized forms of sexual touching[ ]” in order to “desensitiz[e] the victim to future
sexual contact[,]” demonstrates an intent to victimize a person. Steele, 283 Mich App at 491-
492. Moreover, waiting for an opportunity to be alone with a victim in an isolated or secluded
location is evidence of preoffense predatory conduct. People v Ackah-Essien, 311 Mich App 13,
37; 874 NW2d 172 (2015); People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434
(2003). Defendant isolated S.A. by engaging in sexual assaults when her mother was at work or
already in bed. Therefore, we conclude that there was sufficient evidence to support the scoring
of OV 10 at 15 points for defendant’s predatory conduct.

                         IV. FALSE TESTIMONY AND COLLUSION

       In a supplemental brief filed in propria persona pursuant to Supreme Court
Administrative Order No. 2004–6, Standard 4, defendant argues that witnesses for the
prosecution gave false testimony and acted in collusion with the prosecution to effectuate an
outcome that deprived defendant of his right to due process. We disagree.

        “A due process violation presents a constitutional question that this Court reviews de
novo.” People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015). Because defendant did not
timely and specifically object to the alleged errors below, we review this unpreserved claim for
plain error affecting substantial rights. People v Callon, 256 Mich App 312, 329; 662 NW2d
501 (2003). Reversal is warranted only when plain error “resulted in the conviction of an
actually innocent defendant” or “seriously affect[ed] the fairness, integrity, or public reputation
of judicial proceedings independent of [the] defendant’s innocence.” People v Carines, 460
Mich 750, 763, 774; 597 NW2d 130 (1999) (citation and internal quotation marks omitted).

        Defendant alleges numerous instances of false testimony from Officer Gary McClure,
Officer John Peters, S.A., and her boyfriend, and he contends that the prosecutor knowingly
allowed this false testimony. It is well-established that it offends due process guarantees for the
prosecution to secure a conviction through the knowing use of false testimony, and such
conviction must be set aside if “the uncorrected false testimony ‘could . . . in any reasonable
likelihood have affected the judgment of the jury.’” Smith, 498 Mich at 475, 476, quoting Napue
v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). The prosecution is
obligated to “correct false testimony[.]” Smith, 498 Mich at 476 (citations omitted).

        Upon close review of each instance of false testimony alleged by defendant in his
supplemental brief, we conclude that there is no indication in the record that the witnesses
provided false testimony, or that the prosecution knowingly allowed false testimony to remain
uncorrected. While there were some inconsistencies in the record evidence, any inconsistencies
were the proper subject of impeachment during cross-examination. MRE 607; People v
Rodriguez, 251 Mich App 10, 34; 650 NW2d 96 (2002). Further, to the extent that the
credibility of the witnesses was implicated, their credibility was a question for the jury. See, e.g.,

                                                 -7-
People v Lemmon, 456 Mich 625, 646; 576 NW2d 129 (1998) (recognizing that the fact-finder
must evaluate a witness to determine if the witness is telling the truth). Defense counsel was
afforded ample opportunity to explore the issues and impeach the credibility of the witnesses,
and the jury was tasked with the duty to determine credibility. Accordingly, where the record
does not support defendant’s allegation of improper conduct by the witnesses or the prosecution,
defendant has not established plain error affecting his substantial rights. Callon, 256 Mich App
at 329.8

       Affirmed.



                                                             /s/ Deborah A. Servitto
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




8
  In his supplemental brief, defendant also argues that trial counsel was ineffective for failing to
object during what he characterizes as false testimony by the witnesses. We have reviewed each
of defendant’s claims, and conclude that his allegations that trial counsel was ineffective are
without merit, as defendant has not overcome the presumption that trial counsel acted in
accordance with sound trial strategy. Trakhtenberg, 493 Mich at 52. To the extent that
defendant also asserts that the witnesses engaged in fraud upon the trial court, a close review of
the record simply does not support this assertion where there is no indication, other than
defendant’s unsupported allegations in his supplemental brief, that the witnesses testified
untruthfully. The record also does not support defendant’s allegations in his supplemental brief
that the police engaged in misconduct in any manner during their investigation of defendant, or
during their testimony at trial. Finally, where defendant briefly challenges Officer McClure’s
questioning of S.A. when she first reported the sexual abuse by defendant in 2014, there is no
indication in the record that Officer McClure’s questioning of S.A. amounted to misconduct or
that his testimony at trial was false.


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