                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 25, 2018
               Plaintiff-Appellee,

v                                                                   No. 338199
                                                                    Macomb Circuit Court
ERIK JOHN-PAUL WALEZAK,                                             LC No. 2015-004040-FC

               Defendant-Appellant.


Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his convictions for three counts of
first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a); MCL 750.520b(2)(b) (sexual
penetration of victim under 13 years of age). The trial court sentenced defendant to concurrent
terms of 35 to 60 years’ imprisonment for each count. We affirm.

        Defendant’s convictions arise from his sexual abuse of SB, who was 10 years old when
the abuse occurred and 11 years old at the time of trial. Defendant was good friends with SB’s
mother, and SB often visited defendant and spent the night at his home. At trial, SB described
three separate instances of sexual penetration perpetrated by defendant when she was alone with
defendant at his home. SB also described being exposed to pornography at defendant’s house
and finding a video of herself on defendant’s cell phone that showed defendant sexually
penetrating SB while she slept. SB had a younger sister, HB, whom defendant also sexually
abused. At trial, under MCL 768.27a, HB testified as an other-acts witness, describing two acts
of sexual penetration committed against her by defendant. Forensic analysis of defendant’s cell
phone revealed several photographs in which the girls appeared to be asleep and had their “shirts
up and their pants down,” exposing their chest or buttocks; in some of the images, a man was
“masturbating over their heads” while the girls slept. In a confession to police, defendant
admitted to sexually penetrating SB with his finger, and he also acknowledged that his phone
contained images of him masturbating over HB while she slept. The jury convicted defendant as
noted. Defendant now appeals as of right.

                                 I. OTHER ACTS EVIDENCE

        Defendant argues on appeal that the trial court abused its discretion by admitting
irrelevant and unduly prejudicial other-acts evidence relating to defendant’s sexual penetration of


                                                -1-
HB. Defendant contends that in the context of MCL 768.27a and MRE 403, HB’s other-acts
testimony was irrelevant, unreliable, and unfairly prejudicial. We disagree.

        We review a trial court’s admission of other-acts evidence for an abuse of discretion.
People v Kelly, 317 Mich App 637, 643; 895 NW2d 230 (2016). “A trial court’s decision is an
abuse of discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes.” Id. (quotation marks and citation omitted). “[P]reliminary questions of
law surrounding the admission of evidence, such as whether a rule of evidence bars admitting it,”
are reviewed de novo. People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014).

        In relevant part, MCL 768.27a(1) provides that “in a criminal case in which the defendant
is accused of committing a listed offense against a minor, evidence that the defendant committed
another listed offense against a minor is admissible and may be considered for its bearing on any
matter to which it is relevant.” “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 Solloway, 316 Mich App 174, 193; 891 NW2d 255 (2016).1 However, evidence
otherwise admissible under MCL 768.27a may nevertheless be excluded under MRE 403.
People v Brown, 294 Mich App 377, 386; 811 NW2d 531 (2011).

       Under MRE 403, relevant evidence may still be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. “[A]ll evidence elicited by the
prosecution is presumably prejudicial to a defendant to some degree, and MRE 403 seeks to
avoid unfair prejudice.” People v Smith, 282 Mich App 191, 198; 772 NW2d 428 (2009).
Importantly, when applying the MRE 403 balancing test in the context of MCL 768.27a, “courts
must weigh the propensity inference in favor of the evidence’s probative value rather than its
prejudicial effect.” People v Watkins, 491 Mich 450, 487; 818 NW2d 296 (2012).

       This does not mean, however, that other-acts evidence admissible under MCL
       768.27a may never be excluded under MRE 403 as overly prejudicial. There are
       several considerations that may lead a court to exclude such evidence. These
       considerations include (1) the dissimilarity between the other acts and the charged
       crime, (2) the temporal proximity of the other acts to the charged crime, (3) the
       infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of
       reliability of the evidence supporting the occurrence of the other acts, and (6) the
       lack of need for evidence beyond the complainant’s and the defendant’s
       testimony. This list of considerations is meant to be illustrative rather than
       exhaustive. [Id. at 487-488.]



1
  On appeal, defendant focuses much of his argument on MRE 404(b) and the assertion that the
prosecutor used HB’s other-acts testimony for impermissible propensity purposes. However, to
the extent defendant relies on MRE 404(b), his arguments regarding the impermissibility of
propensity evidence and proper purpose fail because MCL 768.27a(1), which allows for
propensity evidence, applies in this case, and thus, the prosecution had no obligation to justify
the admission of HB’s testimony under MRE 404(b). See Solloway, 316 Mich App at 192.


                                               -2-
       Considering HB’s testimony under MCL 768.27a(1), the evidence was relevant.
Evidence that defendant sexually penetrated HB on two occasions is relevant to establishing
defendant’s propensity to sexually assault young girls, making it more probable that he sexually
penetrated SB. See Solloway, 316 Mich App at 193; Watkins, 491 Mich at 470. Also, HB’s
description of similar occurrences—namely, being sexually penetrated by defendant in his
home—serves to bolster the credibility of SB’s version of events. See Solloway, 316 Mich App
at 193; People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010). Although defendant
claims that there is no similarity between his penetration of SB and his penetration of HB,
defendant’s conduct, in our judgment, demonstrates a pattern of exposing young girls to
pornography, photographing them, and sexually penetrating them in the secrecy of his home
when they were in his sole care. Overall, HB’s testimony offered a larger context for
defendant’s conduct, which provided “a full and complete picture of a defendant’s history” that
tended “to shed light on the likelihood” that defendant sexually penetrated SB. See People v
Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007). Accordingly, HB’s other-acts
evidence was relevant and generally admissible under MCL 768.27a(1).

        As for MRE 403, the record shows that the trial court carefully weighed the Watkins
factors, and we hold that the trial court did not abuse its discretion by concluding that the
probative value of the evidence was not substantially outweighed by the danger of unfair
prejudice. As noted, defendant’s penetration of HB was highly probative of defendant’s
propensity to sexually assault young girls, and this propensity inference weighs in favor of the
evidence’s admission. Watkins, 491 Mich at 487. Considering the Watkins factors, there is no
support for defendant’s claim of unfair prejudice.

        First, while the assaults were not identical, the acts were reasonably similar: defendant
sexually penetrated both HB and SB in his home using both his finger and his penis. Second, the
abuse of HB was not so remote in time as to necessitate exclusion of HB’s other-acts evidence
based on a lack of temporal proximity. See Solloway, 316 Mich App at 195 (concluding that a
lapse of 12 years between other acts and charged conduct did not preclude admission of
evidence). Third, HB was sexually assaulted on more than one occasion; and fourth, there is no
evidence of intervening acts that weigh against the admission of the evidence. See id. Fifth, in
terms of reliability, defendant claims that HB’s testimony is unreliable because defendant was
not convicted of sexually penetrating HB and there is no corroboration for her testimony.
However, there is no requirement that other acts result in a conviction to merit admission at trial,
see Smith, 282 Mich App at 202; Kelly, 317 Mich App at 646 n 3, and defendant provides no
authority for the proposition that a lack of corroboration for HB’s testimony necessarily makes
her an unreliable witness, see generally Solloway, 316 Mich App at 195; MCL 750.520h. In any
event, to some extent, HB’s testimony was corroborated insofar as defendant admitted to sexual
acts involving HB; that is, he admitted to police that he masturbated over HB. There is no merit
to defendant’s unreliability claim. Sixth, there was a need for evidence beyond SB’s testimony
because there was a lack of physical evidence and there were no eyewitnesses to corroborate
SB’s description of events. See Solloway, 316 Mich App at 196; People v Duenaz, 306 Mich
App 85, 100; 854 NW2d 531 (2014).

       Ultimately, HB’s other-acts evidence was damaging to defendant, but it was not unfairly
prejudicial, and it was highly probative of defendant’s propensity for sexually assaulting young
girls. Moreover, the trial court gave the jury a limiting instruction on the use of other-acts

                                                -3-
evidence. See Duenaz, 306 Mich App at 100. On these facts, the trial court did not abuse its
discretion by admitting HB’s other-acts testimony under MCL 768.27a to demonstrate
defendant’s likelihood of sexually penetrating SB.2

                            II. PROSECUTORIAL MISCONDUCT

        Next, defendant argues that the prosecutor committed misconduct by vouching for SB’s
credibility during closing arguments and denigrating defendant by referring to his “warped,
twisted little mind.” Defendant failed to object to these remarks at trial and failed to request a
curative instruction. See People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). As
a result, defendant’s claims of prosecutorial misconduct are unpreserved and reviewed for plain
error affecting defendant’s substantial rights. See id. We conclude that defendant has not shown
plain error.

        “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). The propriety of
a prosecutor’s remarks depends on the facts of each case, so a prosecutor’s remarks must be read
as a whole and evaluated in context in light of defense arguments and the evidence admitted at
trial. People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). “The prosecution has
wide latitude in arguing the facts and reasonable inferences, and need not confine argument to
the blandest possible terms.” Dobek, 274 Mich App at 66. However, prosecutors “must refrain
from denigrating a defendant with intemperate and prejudicial remarks.” People v Bahoda, 448
Mich 261, 283; 531 NW2d 659 (1995). Prosecutors must also refrain from vouching for a
witness’s credibility by suggesting that the prosecutor has some “special knowledge” of the
witness’s truthfulness. People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).
Nevertheless, a prosecutor may comment on witness credibility during closing arguments and
argue, based on the evidence, that a witness is worthy of belief. People v McGhee, 268 Mich
App 600, 630; 709 NW2d 595 (2005); Thomas, 260 Mich App at 455.

       In this case, defendant contends that the prosecutor vouched for SB’s credibility by
arguing that SB had no reason to lie, that she did not dislike defendant, that she gained nothing
by disclosing the abuse, and that there was no reason that SB’s mother would instruct SB to lie.


2
  Defendant makes a cursory due-process argument on appeal, asserting that due process was
violated by the admission of irrelevant and unduly prejudicial testimony. However, as discussed,
HB’s testimony was relevant and not unfairly prejudicial. Defendant’s claim to the contrary is
premised on the belief that propensity evidence is irrelevant and inadmissible; but, defendant is
mistaken. Propensity evidence is relevant and admissible under MCL 768.27a, Solloway, 316
Mich App at 193; and defendant was protected from the risk of unfair prejudice by application of
the MRE 403 balancing test, Watkins, 491 Mich at 456 n 2. There was no evidentiary error, and
defendant has not shown a constitutional violation based on the proper admission of this other-
acts evidence. See People v Gaines, 306 Mich App 289, 303 n 9; 856 NW2d 222 (2014)
(“Defendant’s claim that the admission of other-acts evidence violates due process is moot
because the admission of the evidence was subject to the MRE 403 balancing test.”).


                                               -4-
But what defendant attempts to characterize as improper vouching is simply permissible
argument regarding witness credibility. The prosecutor did not suggest any special knowledge of
SB’s truthfulness. See Thomas, 260 Mich App at 455. Instead, the prosecutor simply argued
that, based on the evidence, SB had no reason to lie. The prosecutor did not commit misconduct
by arguing that SB was worthy of belief, so defendant has not shown plain error.

        Defendant also argues on appeal that the prosecutor impermissibly denigrated him by
referring to defendant’s “warped, twisted little mind.” The prosecutor made this comment
during rebuttal, in response to an argument by defense counsel relating to the significance of
videos deleted from defendant’s phone. During closing arguments, defense counsel attempted to
counter the assertion that defendant had deleted video of SB from his phone by emphasizing that
officers found indecent photographs of children on his phone, and arguing that it would not
“make sense” for defendant to “nefariously” delete video but not delete the pictures. In
response, during rebuttal, the prosecutor made the following argument:

                The next thing I want to touch base on is defense counsel said, why delete
       the video—we’re talking about the video that [SB] saw of herself where the
       defendant was putting his finger in her butt—but not delete the pictures that you
       saw during trial. Well, because the video that [SB] saw herself in, involved
       penetration, and somewhere in the defendant’s warped, twisted little mind, once
       there was penetration, which is what’s shown on the video, that’s when it became
       illegal in his mind. That’s when it became forbidden.

              The pictures, he was willing to somehow minimize in his brain as being
       okay, he would keep them as a souvenir so he could look back on them, so that he
       could get off on them, or whatever it was that he wanted from those. But
       somehow, that video, that’s when it became forbidden, and that’s when it got
       deleted. . . . [Emphasis added.]

         Considering the prosecutor’s reference to defendant’s “warped, twisted little mind” in the
context of defense counsel’s arguments and the evidence presented at trial, Callon, 256 Mich
App at 330, defendant has not shown plain error. The prosecutor’s response to defense counsel’s
argument was essentially that defendant’s conduct was not that of someone who was acting in a
way that made sense. Instead, the prosecutor argued that, in defendant’s “warped, twisted little
mind,” he saw a distinction between masturbating over children and penetrating children, and he
kept the photographs that showed masturbation because he wanted a souvenir. Although the
prosecutor’s remark was harsh, the prosecutor was not required to confine her arguments to the
blandest possible terms. Dobek, 274 Mich App at 66. Also, even if the remark was intemperate,
the remark was brief and isolated, and any prejudice resulting from the remark could have been
cured with a jury instruction. See People v Watson, 245 Mich App 572, 591-592; 629 NW2d
411 (2001). Indeed, the trial court instructed the jury that it must decide the case “based only the
evidence,” that the “lawyers’ statements and arguments” were not evidence, and that they “must
not let sympathy or prejudice influence [their] decision.” See id. at 592. In these circumstances,
defendant has not shown that the prosecutor’s isolated remark affected the outcome of the
proceedings, and he is not entitled to a reversal of his conviction.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

                                                -5-
        Defendant next argues that defense counsel provided ineffective assistance at trial by
informing the jury during opening statements that defendant would testify and then failing to call
defendant as a witness at trial. In a Standard 4 brief, defendant also argues that counsel provided
ineffective assistance by failing to investigate and call witnesses, retain a medical expert, and
arrange for defendant to receive a polygraph examination. These arguments are without merit.

        Defendant failed to move the trial court for a new trial or a Ginther3 hearing, so
defendant’s ineffective claims are unpreserved. See People v Sabin (On Remand), 242 Mich
App 656, 658; 620 NW2d 19 (2000). Our review of unpreserved ineffective assistance claims is
limited to mistakes apparent from the record. People v Thorne, 322 Mich App 340, 347; 912
NW2d 560 (2017). “To establish ineffective assistance of counsel, defendant must show (1) that
defense counsel’s performance was below an objective standard of reasonableness under
prevailing professional norms and (2) that there is a reasonable probability that, but for counsel’s
errors, a different outcome would have resulted.” People v Jackson, 292 Mich App 583, 600-
601; 808 NW2d 541 (2011). “Because the defendant bears the burden of demonstrating both
deficient performance and prejudice, the defendant necessarily bears the burden of establishing
the factual predicate for his claim.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001). “Effective assistance of counsel is presumed, and a defendant bears a heavy burden of
proving otherwise.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).

        Defendant first argues that defense counsel provided ineffective assistance by telling the
jury that defendant would testify and then not fulfilling this promise during trial. Relevant to this
argument, several federal circuit courts have concluded that defense counsel’s performance may
fall below an objective level of reasonableness when defense counsel mentions expected
testimony in an opening statement and then fails to present that testimony during trial. See, e.g.,
United States ex rel Hampton v Leibach, 347 F3d 219, 257 (CA 7, 2003); Ouber v Guarino, 293
F3d 19, 28 (CA 1, 2002).4 The failure to produce promised testimony has been considered
particularly troubling when it is the defendant whose promised testimony fails to materialize
during trial. Hampton, 347 F3d at 257.

         When a jury is promised that it will hear the defendant’s story from the
         defendant’s own lips, and the defendant then reneges, common sense suggests
         that the course of trial may be profoundly altered. A broken promise of this
         magnitude taints both the lawyer who vouchsafed it and the client on whose
         behalf it was made. [Ouber, 293 F3d at 28.]

       Nevertheless, failure to produce testimony mentioned during opening statements does not
always rise to the level of ineffective assistance of counsel. See id. at 27. In terms of counsel’s
performance, the decision to change strategy and to not call a previously mentioned witness may


3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
  “Lower federal court decisions are not binding on this Court, but may be considered on the
basis of their persuasive analysis.” People v Fomby, 300 Mich App 46, 50 n 1; 831 NW2d 887
(2013).


                                                -6-
be a reasonable strategic decision depending on the facts of the case, particularly if there are
unforeseen occurrences during trial that prompt the change in strategy. See Hampton, 347 F3d at
257. Moreover, even if counsel’s unfulfilled promises during opening statement amount to
deficient performance, a defendant must still show prejudice. See Jackson, 292 Mich App at
600-601. In the context of defense counsel’s unfulfilled promise to call a defendant to testify,
courts have concluded that a defendant has not shown prejudice when, for example, the
testimony that the defendant could have offered was otherwise presented to the jury (as through a
video interview), the defense counsel addressed the defendant’s failure to testify during closing
argument, and the jury was specifically instructed not to use the defendant’s failure to testify
against him. See Thompson v Rapelje, 839 F3d 481, 485 (CA 6, 2016).

        Here, during opening statements, defense counsel led the jury to believe that defendant
would be taking the stand to testify and that, when he did so, defendant would take responsibility
for the acts depicted in the photographs while denying that he had sex with SB. Defendant did
not testify at trial, and defendant contends on appeal that there were no unforeseen circumstances
that would reasonably justify defense counsel’s failure to fulfill the promise made in his opening
statement.5 However, in the absence of a Ginther hearing, we cannot conclude that defense
counsel’s decision was outside the range of professionally competent assistance. See People v
Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). Defense counsel could have concluded that
the testimony of other witnesses developed differently than expected or perhaps defendant
expressed new reservations about testifying that affected defense counsel’s advice on the
decision to testify notwithstanding counsel’s remarks during opening statements. On the record
presented, defendant has not overcome the presumption that defense counsel “rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. (quotation marks and citation omitted).

        Moreover, even if we were persuaded that defense counsel’s performance fell below an
objective level of reasonableness, defendant’s ineffective assistance claim would still fail
because he cannot show prejudice. Although defendant did not testify, this is not a case where
defense counsel left his promise to the jury completely unfulfilled. That is, while defendant did
not testify, the jury was still able to hear defendant’s version of events, to some extent, as they
were recounted during the police interrogation in which defendant admitted his wrongdoing in
the photographs while largely denying any actual sexual contact with SB.6 See Thompson, 839


5
  We note that the real question in this case is not whether defendant should have been called to
testify, but whether defense counsel provided ineffective assistance by making a promise to the
jury during opening statements that he did not fulfill during trial. To the extent defendant argues
that counsel should have called him as a witness, the record shows that, after discussing the
matter with counsel, defendant knowingly waived his right to testify. There is no reason to
suppose that counsel’s advice was not a matter of trial strategy, and defendant cannot establish
ineffective assistance based on his decision not to testify. See People v Tommolino, 187 Mich
App 14, 17; 466 NW2d 315 (1991).
6
 Defendant eventually admitted to sexually penetrating SB’s vagina with his finger, but he never
confessed to the acts of sexual penetration described by SB.


                                                -7-
F3d at 485. Also, this is not a case where defense counsel reneged on his promise that the
defendant would testify “without explaining to the jury why he did so.” See Hampton, 347 F3d
at 257. To the contrary, defense counsel expressly addressed defendant’s failure to testify during
closing arguments. In doing so, defense counsel reminded the jury that they could not hold
defendant’s decision not to testify against him, defense counsel asserted that whatever advice he
gave to defendant about testifying was defense counsel’s counsel responsibility, and defense
counsel emphasized that defendant’s repeated denials “since day one” were apparent from the
police interview, effectively giving the impression that defense counsel made the decision not to
call defendant simply because defendant’s version of events had been presented to the jury. By
addressing the matter and drawing the jury’s attention to defendant’s denials in the police
interrogation, defense counsel alleviated the prejudice resulting from his remarks during opening
statements.

        Defendant’s prejudice argument paints this case as a credibility contest in which his
testimony could have tipped the scales, but he ignores that there was evidence of his guilt besides
SB’s testimony, including HB’s other-acts evidence, defendant’s admission that he penetrated
SB’s vagina with his finger, and the photographs found on defendant’s phone. In contrast to this
evidence of defendant’s guilt, there is no indication that defendant’s testimony would have aided
his case; and, if had he testified, he would have been subject to potentially damaging cross-
examination. See Thompson, 839 F3d at 485. We also note that any minimal prejudice to
defendant was alleviated by the trial court’s instructions to the jury that they could not consider
defendant’s failure to testify against him and that defendant’s decision could not affect their
verdict in any way. “Jurors are presumed to follow the court’s instructions, and instructions are
presumed to cure most errors.” People v Mullins, 322 Mich App 151, 173; 911 NW2d 201
(2017). In sum, defendant has not established that he was denied the effective assistance of
counsel in this instance, and he is not entitled to a new trial on this basis.

         In his Standard 4 brief, defendant argues that counsel was ineffective for failing to
investigate and call witnesses, retain a medical expert, and arrange a polygraph examination for
defendant. “Trial counsel is responsible for preparing, investigating, and presenting all
substantial defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009).
Decisions regarding what arguments to make and what witnesses to call, including what experts
to call, are presumed to be matters of trial strategy. People v Payne, 285 Mich App 181, 190;
774 NW2d 714 (2009).

        Defendant first asserts that defense counsel failed to conduct a proper investigation and,
in particular, failed to speak with witnesses who could have verified defendant’s assertion that
SB fabricated allegations of sexual abuse because she was no longer allowed at defendant’s
home due to her bad behavior. However, the record is devoid of any evidence showing that
these unidentified witnesses exist, that their testimony would have benefited defendant, or that
defendant told defense counsel about these witnesses. In these circumstances, defendant has not
established the factual predicate of his assertion that counsel was ineffective in failing to
investigate and call these witnesses, and absent some evidence of how these witnesses would
have testified, there is no basis for concluding that their testimony would have affected the
outcome of the proceedings. See Carbin, 463 Mich at 600-601; Putman, 309 Mich App at 248-
249. Thus, defendant has not shown that he was denied the effective assistance of counsel.


                                                -8-
        Defendant also contends that defense counsel was ineffective for failing to retain a
medical examiner as an expert witness for the defense. However, on the available record, there
is no indication that defense counsel did not reasonably investigate the possibility of an expert,
and there is no reason to suppose that counsel’s failure to call an expert was not a matter of
sound trial strategy. See Payne, 285 Mich App at 190. Moreover, even assuming an expert
could have been retained, without some indication that an expert could have provided testimony
favorable to defendant, defendant cannot show that he was prejudiced by defense counsel’s
failure to procure and call an expert witness. See id. Thus, defendant cannot show that counsel
was ineffective by failing to investigate or call an expert witness.

         Finally, defendant argues that he was entitled to a polygraph and that counsel provided
ineffective assistance by failing to arrange a polygraph examination. Defendant is correct that an
individual accused of CSC-I shall be given a polygraph examination if he requests it. See MCL
776.21(5). However, there is no record support for defendant’s assertion that he told defense
counsel he wanted a polygraph, so defendant has not established the factual predicate of his
claim. See Carbin, 463 Mich at 600. Moreover, there is no evidence that defendant could have
passed a polygraph. And in any event, polygraph evidence would not have been admissible at
trial, People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003), and defendant offers no other
explanation as to how a polygraph could have affected the outcome. Thus, defendant cannot
show prejudice, and his ineffective assistance claim must fail.7

                                       IV. SENTENCING

       In his last issue, defendant argues that the trial court abused its discretion by departing
from the applicable guidelines range and mandatory minimum to sentence defendant to a
minimum of 35 years’ imprisonment. Defendant maintains that the sentence imposed was
unreasonable and violated his right to a proportionate and individualized sentence. We disagree.

        “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). We review the reasonableness of a departure sentence for an abuse of discretion. People
v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). “[T]he relevant question for
appellate courts reviewing a sentence for reasonableness is whether the trial court abused its
discretion by violating the principle of proportionality.” People v Dixon-Bey, 321 Mich App
490, 520; 909 NW2d 458 (2017) (quotation marks and citation omitted).



7
  In his Standard 4 brief, defendant asks us to remand the case for a Ginther hearing so that he
can develop an evidentiary record in support of his unsubstantiated ineffective assistance claims.
Defendant makes this request in the text of his Standard 4 brief as opposed to filing a proper
motion for remand as required by MCR 7.211(C)(1), and his motion is therefore denied. See
People v Bass, 317 Mich App 241, 276 n 12; 893 NW2d 140 (2016). We also note that
defendant fails to provide a supporting affidavit or other offer of proof regarding the facts to be
established at the hearing, which provides an additional basis for denying defendant’s request for
a Ginther hearing. See MCR 7.211(C)(1).


                                                -9-
         When a trial court imposes a sentence that exceeds the now-advisory legislative
guidelines range, the sentence imposed must be reasonable. Lockridge, 498 Mich at 392. A
sentence is reasonable if it adheres to the principle of proportionality. Walden, 319 Mich App at
351. Under the principle of proportionality, the trial court “must take into account the nature of
the offense and the background of the offender” to assure that the sentence imposed is
“proportionate to the seriousness of the matter.” People v Steanhouse, 500 Mich 453, 472; 902
NW2d 327 (2017) (quotation marks and citation omitted). Although the legislative guidelines
remain a “useful tool” that must be taken into account when sentencing a defendant, Dixon-Bey,
321 Mich App at 524, “[a] departure sentence may be imposed when the trial court determines
that the recommended range under the guidelines is disproportionate, in either direction to the
seriousness of the crime,” People v Rosa, 322 Mich App 726; 913 NW2d 392 (2018) (quotation
marks and citation omitted). “[A] trial court must justify the sentence imposed in order to
facilitate appellate review, which includes an explanation of why the sentence imposed is more
proportionate to the offense and the offender than a different sentence would have been.” Dixon-
Bey, 321 Mich App at 525 (quotation marks and citation omitted).

              Factors that may be considered by a trial court under the proportionality
       standard include, but are not limited to:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [Walden, 319 Mich App at 352-253 (quotation marks
       and citation omitted).]

         In this case, the applicable range under the advisory legislative guidelines was 126 to 210
months’ imprisonment. However, defendant was subject to a mandatory 25-year minimum
under MCL 750.520b(2)(b). The prosecution requested a minimum term of 40 years. Although
the trial court did not adopt the prosecution’s recommendation, the trial court imposed an upward
departure sentence by exceeding both the mandatory minimum and the applicable guideline
range and sentencing defendant to a minimum term of 35 years’ imprisonment. At sentencing,
the trial court provided a detailed justification for the specific sentence imposed. Briefly
summarized, the trial court concluded that the sentence of 35 years’ imprisonment was warranted
given: (1) the seriousness of the offense as represented by the multiple acts of penetration and the
filming of defendant’s acts, (2) defendant’s relationship with SB insofar as he groomed an entire
family and abused the trust placed in him by SB’s mother in order to carry out his misdeeds, and
(3) the need to protect children from defendant as well as defendant’s lack of potential for
reform.

       As the trial court’s articulation of its reasons for the sentence imposed adequately
explained why the imposed sentence was more proportionate than a sentence within the
guidelines would have been, see Dixon-Bey, 321 Mich App at 525, we conclude that the trial
court did not abuse its discretion by departing from the 25-year mandatory minimum and
sentencing defendant to a minimum of 35 years’ imprisonment. First, with regard to the
seriousness of the offense, the present case involves a heinous offense—sexual penetration of a
child under the age of 13—made worse by the multiple acts of penetration involved. But

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defendant not only sexually penetrated the minor victims, but he also photographed the girls
while they slept and he masturbated over their heads. SB even found video of herself on
defendant’s cell phone being sexually penetrated while she slept. Obviously, any sexual
penetration of a young child is a very serious crime, but the trial court identified factors that
made defendant’s offense particularly egregious—namely, the multiple instances of sexual
penetration and defendant’s decision to document his crimes with video and photographs of his
actions. That the sentencing guidelines did not adequately reflect the seriousness of defendant’s
offense was a proper consideration by the trial court, and it supports that a departure sentence
was more proportionate than a sentence within the guidelines would have been. See id. at 525 n
10 (discussing that a proper reason for departing from the guidelines under the principle of
proportionality is if the guidelines do not adequately account for the seriousness of the offense).

        Second, the trial court considered defendant’s relationship to SB, emphasizing that
defendant was in a position of trust because of his relationship with SB’s mother. Indeed, the
trial court concluded—based on the evidence—that defendant had groomed the entire family by
preying on a single mother who was struggling financially and by using his friendship with her to
gain access to SB in order to sexually assault SB in the privacy of his basement. There is
certainly record support for the trial court’s conclusions. At trial, SB’s mother described her
financial difficulties, admitting that she had sex with defendant in exchange for money because
she needed money for her children. She also testified that she allowed the girls to visit defendant
because she needed a “break.” As a result of his friendship with SB’s mother, defendant was
known as “Uncle Erik” to the girls and he was HB’s godfather. Yet he betrayed this trust and
sexually assaulted SB under the guise of offering a fun and safe place for the girls to spend time.
As discussed by the trial court, defendant’s abuse of this position of trust has greatly impacted
the girls. In this regard, at the sentencing hearing and in the victim impact statement, SB’s
mother described the hurt caused to the entire family because defendant betrayed her trust in
him. Defendant’s position of trust in SB’s life was not accounted for by the guidelines, see
Walden, 319 Mich App at 352-253, and his damage to an entire family as a result of his abuse of
that trust was not adequately accounted for by the guidelines, see Rosa, 322 Mich App at 748.
Thus, these circumstances were properly considered by the trial court.

        Third, the trial court concluded that all children needed to be protected from defendant
and that defendant had little chance for rehabilitation given the unlikelihood of defendant
quelling his “aberrant tendencies.” Relevant to the trial court’s view of defendant’s likelihood of
reform, the record shows that defendant preyed on an entire family and engaged in multiple acts
of sexual penetration with two young girls while photographing and filming his actions. In his
confession to police and his statements reported in the presentence investigation report,
defendant justified his sexual penetration of a child by stating that he was “sexually charged” and
“feeling frisky.” He also blamed his actions on the use of drugs and alcohol, and he even
attempted to blame SB’s mother by asserting that she placed him in a “predicament” by having
him watch the girls and that she never should have let the girls come over to his house. In short,
the record amply demonstrates that defendant is unable—or unwilling—to control his behavior
and to “quell his aberrant tendencies,” which supports the trial court’s conclusion that defendant
poses an ongoing danger to children and that there is little chance of him reforming his behavior.

      With regard to the extent of the departure, the trial court departed 10 years from the
mandatory minimum, which was a 40% increase from the mandatory minimum. However, the

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35-year sentence was still less than the 40 years requested by the prosecutor. See Walden, 319
Mich App at 354-355 (comparing extent of departure to sentence requested by prosecution when
determining whether the extent of departure violated principle of proportionality). Moreover, in
imposing the particular sentence in question, the trial court expressly acknowledged—and was
thus clearly aware of—the importance of individualized sentencing tailored to the particular case
and the particular defendant, and the trial court articulated reasons why the specific sentence
imposed was more reasonable than the mandatory minimum and the applicable guideline range.
See id. at 355.

       Overall, considering the seriousness of the offense and defendant’s background, the
35-year minimum sentence was proportionate to the seriousness of the circumstances
surrounding the offense and the offender. Accordingly, the sentence imposed by the trial court
did not violate the principle of proportionality, and the trial court did not abuse its discretion by
sentencing defendant to 35 to 60 years’ imprisonment. Because the sentence is not unreasonable,
defendant is not entitled to resentencing. See Lockridge, 498 Mich at 392.

       Affirmed.

                                                              /s/ Colleen A. O'Brien
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Karen M. Fort Hood




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