                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 9, 2018
               Plaintiff-Appellee,

v                                                                  No. 338789
                                                                   Berrien Circuit Court
JAMES EARL JUDSON,                                                 LC No. 2016-005134-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and O’CONNELL and TUKEL, JJ.

PER CURIAM.

        Defendant, James Earl Judson, appeals by right his convictions of assault by
strangulation, MCL 750.84(1)(b), third-offense domestic violence, MCL 750.81(4), and witness
bribery, intimidation, and interference, MCL 750.122(7)(a). The trial court sentenced Judson as
a fourth-offense habitual offender, MCL 769.12, to 140 to 480 months’ imprisonment for the
assault by strangulation conviction, 80 to 480 months for the domestic violence conviction, and a
consecutive sentence of 60 to 180 months for the witness interference conviction. We affirm.

                                      I. BACKGROUND

        Judson went to visit the complainant, the mother of his son, and they started arguing.
Judson punched the complainant in the mouth and choked her until she saw stars and gasped for
breath. After the prosecution brought charges against Judson and the trial court entered a no-
contact order, Judson spoke with and met with the complainant. At one of these encounters,
Judson took the complainant’s cell phone and texted a message to his cell phone that said she
made up the allegations. Judson later wrote a letter saying that the complainant lied and told the
complainant to copy it verbatim and deliver it to the prosecutor. The complainant copied the
letter and had it notarized, but when she gave it to the prosecutor, she told the prosecutor that
Judson told her to write it. In addition to the complainant’s testimony about these events, three
women and several police officers testified about prior acts of domestic violence committed by
Judson, pursuant to the prosecution’s notices provided under MCL 768.27b and MCL 768.27c.
The jury found Judson guilty of all three charged offenses.

                                       II. DISCUSSION

                              A. EVIDENTIARY CHALLENGES


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        Judson raises several challenges to the evidence presented. He failed to preserve these
claims of error by objecting in the trial court. We review unpreserved claims of error for plain
error affecting the defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). “Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
Id. (quotation marks and citation omitted; alteration in original).

        Judson raises several challenges to the introduction of other-acts evidence. “[I]n a
criminal action in which the defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other acts of domestic violence is admissible for any
purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence
403.” MCL 768.27b. Under MRE 403, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Evidence of other acts of domestic violence is admissible
to provide “a full and complete picture of a defendant’s history” to show the likelihood that the
charged offense was committed. People v Cameron, 291 Mich App 599, 610; 806 NW2d 371
(2011) (quotation marks and citation omitted).

       MCL 768.27c permits the admission of hearsay evidence as substantive evidence of the
offense of domestic violence. People v Meissner, 294 Mich App 438, 445-448; 812 NW2d 37
(2011). That hearsay evidence is admissible if all of the following descriptions apply:

       (a) The statement purports to narrate, describe, or explain the infliction or threat
       of physical injury upon the declarant.

       (b) The action in which the evidence is offered under this section is an offense
       involving domestic violence.

       (c) The statement was made at or near the time of the infliction or threat of
       physical injury. Evidence of a statement made more than 5 years before the filing
       of the current action or proceeding is inadmissible under this section.

       (d) The statement was made under circumstances that would indicate the
       statement’s trustworthiness.

       (e) The statement was made to a law enforcement officer. [MCL 768.27c(1).]

         In this case, the prosecution provided timely notice of its intention to introduce evidence
under MCL 768.27b and MCL 768.27c. Those notices identified six other women who reported
acts of domestic violence committed by Judson to the police between 2007 and 2015 and several
police officers who responded to these reports. The prosecution also attached numerous police
reports that reflected the domestic violence complaints. Judson did not object to theses notices.
At trial, three women and nine police officers testified about prior acts of domestic violence.
The first woman who testified admitted that she reported domestic violence to the police, but she
testified that she added false accusations to those reports. Although the witness did not dispute
the contents of the police reports, which stated that Judson punched her and choked her, the
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witness denied that Judson had done anything more than slap her. The prosecution then called
seven police officers to testify about what appear to be five separate incidents of domestic
violence against the first witness. A second witness testified that she did not recall two incidents
of domestic violence by Judson described in police reports. The prosecution then called two
police officers to testify about the two incidents. A third witness, who admitted to a sexual
relationship with Judson, testified that Judson once choked her and threatened to kill her. The
prosecution also offered two judgments of sentence regarding two prior convictions. On appeal,
Judson does not dispute that all of this testimony comports with the requirements of MCL
768.27c, nor does Judson dispute the trustworthiness of the statements made to the police
officers. Instead, Judson first argues that the prosecution improperly called uncooperative
witnesses for the purpose of impeaching them with the police officers’ testimony and using that
testimony as substantive evidence. Because the police officers’ testimony conformed to the
requirements of MCL 768.27c, their statements were admissible to prove relevant evidence, not
solely for the purpose of impeaching other witnesses. Accordingly, the testimony of the police
officers was not improperly introduced as substantive evidence.

        Judson further contends that the prosecution improperly had the police officers use the
police reports to refresh their memories and that they testified to the contents of those reports. A
witness may refresh his or her recollection before and during testifying so that he or she may
fully and accurately testify. MRE 612 and MRE 803(5). The adverse party is entitled to
production of the document used to refresh the witness’s recollection. MRE 613. Only the
adverse party may offer that document into evidence. MRE 803(5). The prosecution provided
Judson with the police reports before trial, and Judson had an opportunity to cross-examine the
police officers. The police officers testified that they refreshed their recollections by reviewing
their reports. The prosecution did not seek to admit the police reports into evidence. Therefore,
Judson’s contention that the police reports were improperly used lacks merit.

        Judson also argues that the trial court erred by not instructing the jury that the witnesses’
prior inconsistent statements could be used for impeachment purposes only. Rather, Judson
maintains, the trial court instructed the jury that it could consider these statements as substantive
evidence. Judson waived this issue by agreeing to the jury instructions. See People v Matuszak,
263 Mich App 42, 57; 687 NW2d 342 (2004). Therefore, we need not consider this claim.

         Next, Judson argues that trial counsel was ineffective for failing to object to the
admission of the police officers’ testimony, for failing to request the proper jury instruction, and
for failing to object to the jury instruction given. To establish ineffective assistance of counsel,
“a defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012). Defense counsel is “not ineffective for failing to raise meritless or futile
objections.” People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015). In this case,
defense counsel could not properly object to the other-acts evidence because it was properly
admissible under MCL 768.27b and MCL 768.27c. Further, because the testimony of the three
women and the police officers was admissible under MCL 768.27c, the inconsistent statements
were properly considered substantive evidence. Consequently, an objection to the jury
instructions given or a request for a jury instruction limiting the use of the contested statements


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for impeachment purposes only would have been futile. Therefore, Judson cannot establish that
defense counsel’s performance fell below an objective standard of reasonableness.

        Moreover, the trial court’s jury instructions were proper. The trial court instructed the
jury that it must find that Judson had actually committed the prior acts before it could consider
them when deciding if Judson committed the offenses for which he was on trial. The trial court
further instructed the jury not to convict Judson solely for those prior acts if it did not find
beyond a reasonable doubt that Judson committed the charged offenses. “Jurors are presumed to
follow their instructions . . . .” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436
(2011). Accordingly, the jury is presumed not to have found Judson guilty solely on the basis of
the prior acts of domestic violence.

       In addition, other testimony about the charged incident was sufficient to establish
Judson’s guilt. The complainant testified that Judson hit and choked her. The emergency
medical technician (EMT) who attended the scene saw the complainant’s cut lip and slight
bruising on the complainant’s neck. The EMT also noticed that the complainant coughed and
cleared her throat repeatedly, symptoms consistent with strangulation. Therefore, Judson has not
shown that the alleged ineffective assistance of counsel affected the outcome.

        Judson argues that the testimony of the police officers should have been excluded
because the probative value of their testimony was outweighed by the danger of unfair prejudice.
The use of other-acts evidence is not unfairly prejudicial if it “did not stir such passion as to
divert the jury from rational consideration of [the defendant’s] guilt or innocence of the charged
offenses.” Cameron, 291 Mich App at 611-612. In this case, the other-acts evidence established
Judson’s pattern of punching and choking women with whom he had a relationship in response
to conflict. In addition, the prosecution appropriately called seven police officers to testify to
five incidents of domestic violence against one woman, who was not willing to testify about
those incidents herself. Each police officer testified to a different role in responding to those five
incidents, so their testimony was not unduly cumulative or prejudicial. Further, the trial court
instructed the jury how to consider the other-acts evidence and instructed the jury not to find
Judson guilty for his previous behavior alone if it did not find beyond a reasonable doubt that he
committed the charged offenses. We conclude that the evidence presented by the prosecution
was admissible under MCL 768.27b and MCL 768.27c.

        Judson argues that he was prejudiced by the complainant’s testimony that Judson was
previously incarcerated. Judson faults the prosecutor for this testimony, maintaining that the
prosecutor should have instructed the complainant not to mention this fact. “As a general rule,
unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor
knew in advance that the witness would give the unresponsive testimony or the prosecutor
conspired with or encouraged the witness to give that testimony.” People v Hackney, 183 Mich
App 516, 531; 455 NW2d 358 (1990). In this case, the prosecution did not elicit the
complainant’s inadvertent remark that Judson was previously incarcerated, nor did the
prosecution seek further testimony regarding Judson’s previous incarceration. The record does
not reflect that the prosecution anticipated this remark in response to the question whether the
complainant communicated with Judson when she moved back to Michigan from Georgia.
Further, defense counsel made no objection to the statement, did not request that the remark be
stricken, and did not ask for a curative instruction. Judson has not shown that this fleeting

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remark was prejudicial, particularly when the evidence showed that Judson punched and choked
the complainant. In sum, Judson’s evidentiary challenges have no merit.

                                       B. SENTENCING

       Judson challenges the scoring of offense variable (OV) 3, OV 4, and OV 9.

       Under the sentencing guidelines, the circuit court’s factual determinations are
       reviewed for clear error and must be supported by a preponderance of the
       evidence. 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)].

         Trial courts should consult and consider the applicable sentencing guidelines range, but
they are advisory only. People v Steanhouse, 500 Mich 453, 470; 902 NW2d 327 (2017). When
calculating the sentencing guidelines range, a trial court may consider all record evidence,
including a presentence investigation report. People v Johnson, 298 Mich App 128, 131; 826
NW2d 170 (2012). “A presentence report is presumed to be accurate and may be relied on by
the trial court unless effectively challenged by the defendant.” People v Callon, 256 Mich App
312, 334; 662 NW2d 501 (2003).

        Judson argues that the trial court improperly assessed 10 points for OV 3 because the
complainant did not suffer bodily injury requiring medical treatment. OV 3 applies when a
defendant caused physical injury to a victim. MCL 777.33. “Bodily injury requiring medical
treatment” merits 10 points. MCL 777.33(1)(d). “Bodily injury not requiring medical
treatment” warrants 5 points. MCL 777.33(1)(e). No points should be assessed under OV 3 if
there was no physical injury to the victim. MCL 777.33(1)(f). Bodily injury “ ‘requiring
medical treatment’ refers to the necessity for treatment and not the victim’s success in obtaining
treatment.” MCL 777.33(3). “The trial court may rely on reasonable inferences arising from the
record evidence to support a particular score.” People v Maben, 313 Mich App 545, 551; 884
NW2d 314 (2015). For example, a description of how the defendant strangled the victim and the
effects of that strangling, including redness and soreness, supported an assessment of 10 points
for OV 3 even though there was no evidence that the victim went to the hospital. Id. at 551-552.
Similarly, in this case, the complainant suffered injuries that required medical treatment even
though she did not go to the hospital for treatment. The EMT noticed that the complainant had
some symptoms consistent with strangulation, but the complainant declined the EMT’s offer to
go to the hospital in the ambulance. The police officer who arrived on the scene also gave the
complainant some suggestions for how she could seek treatment. Although it is not apparent
from the record whether the victim sought and obtained medical treatment, it can reasonably be
inferred that the complainant suffered injuries that required medical treatment. Therefore, the
trial court did not err by assessing 10 points for OV 3.

        Judson argues that the trial court erroneously assessed 10 points for OV 4 because the
record contains no evidence that the complainant suffered serious psychological injury requiring
professional treatment. Judson did not preserve this argument, so we review it for plain error
affecting substantial rights. See People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).

                                                -5-
OV 4 concerns psychological injury to the victim. MCL 777.34(1). “Serious psychological
injury requiring professional treatment” merits 10 points. MCL 777.34(1)(a). “In making this
determination, the fact that treatment has not been sought is not conclusive.” MCL 777.34(2). A
“victim’s statements about feeling angry, hurt, violated, and frightened support a score of 10
points for OV 4.” People v Wellman, 320 Mich App 603, 609; 910 NW2d 304 (2017) (quotation
marks and citation omitted). For example, victim statements about bad dreams, the trauma of the
experience, and feeling unsafe support an assessment of 10 points for OV 4. People v Gibbs,
299 Mich App 473, 493; 830 NW2d 821 (2013). In this case, the complainant submitted a
victim impact statement in which she expressed shock, fear, shame, and confusion. She further
expressed her belief that Judson would harm her if he had the chance, and she asked for help.
From these statements, the trial court could reasonably infer that the complainant has suffered
serious psychological injury that may require professional treatment. Accordingly, the trial court
did not plainly err by assessing 10 point for OV 4.

        Judson argues that the trial court erred by assessing 10 points for OV 9 because there is
no evidence that more than one victim was placed in danger. OV 9 warrants a score of 10 points
when “[t]here were 2 to 9 victims who were placed in danger of physical injury or death . . . .”
MCL 777.39(1)(c). The trial court should consider “only people placed in danger of injury or
loss of life when the sentencing offense was committed (or, at the most, during the same criminal
transaction) . . . .” People v Sargent, 481 Mich 346, 350; 750 NW2d 161 (2008). When Judson
and the complainant began arguing, the complainant’s infant son and housemate were also in the
room. The complainant’s housemate took the child out of the room when the argument escalated
into a physical altercation. The trial court could reasonably infer that the complainant’s
housemate responded to imminent danger and that the complainant, her son, and even her
housemate were placed in danger of physical injury. Therefore, the trial court did not err by
assessing 10 points for OV 9.

       Judson contends that trial counsel was ineffective for failing to object to the scoring of
OV 4 and OV 9. Judson did not preserve this issue, so we review it for plain error affecting
substantial rights. See Carines, 460 Mich at 763. Defense counsel is not required to make
meritless or futile objections. Putman, 309 Mich App at 245. Because Judson’s claims of error
lack merit, his ineffective assistance of claim also fails.

        Judson challenges the reasonableness of the trial court’s upward departure, contending
that the trial court improperly relied on charges that were dismissed. This Court reviews “for an
abuse of discretion whether a sentence is proportionate to the seriousness of the offense.” People
v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). This Court reviews a “sentence that
departs from the applicable guidelines range . . . for reasonableness.” Lockridge, 498 Mich at
392. The trial court must justify an upward departure to facilitate appellate review. Id. The
“principle of proportionality requires sentences imposed by the trial court to be proportionate to
the seriousness of the circumstances surrounding the offense and the offender.” Steanhouse, 500
Mich at 474. Factors to consider when determining the proportionality of an upward departure
“include (1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not
considered by the guidelines, and (3) factors considered by the guidelines but given inadequate
weight.” People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017) (citations
omitted).


                                                -6-
        In this case, the trial court justified the upward departure by examining Judson’s long
criminal history and the gravity of his conduct in this case. Judson has engaged in assaultive
behavior against women since 1997 when he was still a juvenile. Judson had been charged for
several incidents of domestic violence since 2001. The trial court noted that some of those
charges had been dismissed because the complainants refused to cooperate. Contrary to Judson’s
assertions on appeal, the trial court did not treat Judson as guilty of crimes he never committed.
Rather, the trial court’s concern arose out of Judson’s persistent pattern of violent behavior
towards women, his attempts to avoid punishment for that behavior that were sometimes
successful, the continued threat Judson posed to women in the community, and his demonstrated
indifference to seeking rehabilitation after facing several charges over several years for this
behavior. Accordingly, the trial court did not abuse its discretion by determining that the
sentencing guidelines regarding prior convictions did not adequately account for this pattern of
conduct, justifying an upward departure sentence.

       We affirm.

                                                            /s/ Mark T. Boonstra
                                                            /s/ Peter D. O’Connell
                                                            /s/ Jonathan Tukel




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