                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 8, 2018
                Plaintiff-Appellee,

v                                                                    No. 333377
                                                                     Oakland Circuit Court
ANDRE LAMAR JONES,                                                   LC No. 2015-256212-FH

                Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of second-degree criminal sexual
conduct (victim less than 13 years old), MCL 750.520c(2)(b). Defendant was sentenced to 180
days in jail and five years’ probation. We affirm.

                         I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant raises several arguments relating to the effectiveness of defense counsel at
trial. Although we find none to be persuasive, each is addressed in turn.

        “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). A trial court's findings of fact, if any, are reviewed for clear error, and questions of
law are reviewed de novo. Id. at 188. “Clear error exists if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich
281, 289; 806 NW2d 676 (2011). When the trial court does not hold a Ginther1 hearing, as is the
case here, this Court’s review is limited to mistakes apparent from the record. People v Jordan,
275 Mich App 659, 667; 739 NW2d 706 (2007).

       Effective assistance of counsel is presumed, and criminal defendants have a heavy burden
of proving otherwise. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).
When claiming ineffective assistance of counsel, it is a defendant's burden to prove “(1)


1
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).


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counsel's performance was deficient, meaning that it fell below an objective standard of
reasonableness, and (2) but for counsel's error, there is a reasonable probability that the outcome
of the defendant's trial would have been different.” Solloway, 316 Mich App at 188,
citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A
defendant must show that “but for counsel's deficient performance, a different result would have
been reasonably probable.” Armstrong, 490 Mich at 290, citing Strickland, 466 US at 694–696.
“[D]efendant has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        Defense counsel has wide discretion regarding strategy at trial “because counsel may be
required to take calculated risks to win a case.” People v Heft, 299 Mich App 69, 83; 829 NW2d
266 (2012). This Court will not substitute its judgment for that of defense counsel concerning
matters of trial strategy. See Strickland, 466 US at 689; People v Payne, 285 Mich App 181,
190; 774 NW2d 714 (2009). There is a strong presumption that counsel engaged in sound trial
strategy. Horn, 279 Mich App at 39. The fact that a trial strategy fails does not mean that its use
constitutes ineffective assistance of counsel. People v Petri, 279 Mich App 407, 412; 760 NW2d
882 (2008).

                                  A. HENDERSON’S TATTOO

       Defendant first alleges that defense counsel was ineffective for failing to investigate and
introduce evidence that the boyfriend of the minor child victim’s mother has a tattoo matching a
description of a tattoo given by the minor child during a Care House interview. We disagree.

        During the Care House interview, the interviewer asked the minor child to describe
defendant’s appearance. The interviewer asked the minor child if defendant had any tattoos, and
the minor child said that he had a dragon tattoo, but she forgot where. The minor child thought
the tattoo was on defendant’s back. The minor child described the tattoo as a “big China
dragon,” with a nose, an eye, and “cool colors.” At the preliminary examination, defense
counsel asked the minor child whether she recalled telling someone during the Care House
interview that defendant had a tattoo. The minor child did not recall saying that, and she did not
recall defendant having a tattoo. At trial, the minor child first said that she did not remember
being asked at Care House if defendant had a tattoo, and then she remembered saying that he had
a Chinese dragon tattoo. The minor child did not remember defense counsel asking about a
tattoo at the preliminary examination. The minor child understood that she had to tell the truth at
Care House and at the preliminary examination, but regarding the inconsistency, the minor child
stated:

       But when I went to the Care House, I remembered like – some things – some
       things I remember[,] but then when I go to another place, I just don’t – I just
       forgot some things.

        When defendant filed his motion for a new trial in the trial court, he attached an affidavit
that he signed indicating that he reviewed the discovery packet and Care House video with
defense counsel, and gave her his notes indicating that he did not have tattoos, but minor child’s
mother and her boyfriend did. Defendant claimed that he and defense counsel had also discussed
this in person. Defendant attached the handwritten notes he referred to in his affidavit to his

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motion, as well as photographs taken from the Facebook page of minor child’s mother showing
the arm tattoo belonging to the boyfriend of the minor child’s mother.

        “Decisions regarding what evidence to present, whether to call witnesses, and how to
question witnesses are presumed to be matters of trial strategy . . . .” Horn, 279 Mich App at 39.
Such matters of trial strategy are not second-guessed by this Court. Id. The failure to call or
question witnesses, or the failure to present other evidence, constitutes ineffective assistance of
counsel only when it deprives the defendant of a “substantial defense.” People v Russell, 297
Mich App 707, 716; 825 NW2d 623 (2012). “ ‘A substantial defense is one that might have
made a difference in the outcome of the trial.’ ” People v Chapo, 283 Mich App 360, 371; 770
NW2d 68 (2009), quoting People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).
“When a defendant alleges ineffective assistance of counsel, he must present a record which
factually supports his claim.” People v Armstrong, 124 Mich App 766, 770; 335 NW2d 687
(1983). When there is no record evidence to support a defendant’s claim, this Court has no basis
to consider the claim. Id.

        Defendant has not demonstrated that defense counsel’s performance fell below an
objective standard of reasonableness, or that there was a reasonable probability that but for
defense counsel’s failure to admit evidence of the mother’s boyfriend’s tattoo, the outcome of
trial would have been different. Lockett, 295 Mich App at 187. Although the trial court referred
to the discovery of the boyfriend’s tattoo as a “zinger,” it is not clear that the minor child was
actually describing his tattoo. In fact, during the Care House interview, the minor child said that
defendant had a tattoo of a colorful Chinese dragon on his back, however the boyfriend’s tattoo
is located on his arm, and is an all-black “tribal mark.” Accordingly, we conclude that defendant
has not demonstrated that the failure to admit this evidence deprived him of a substantial
defense. Russell, 297 Mich App at 716; Chapo, 283 Mich App at 371, quoting Kelly, 186 Mich
App at 526.

                         B. IMPEACHMENT OF THE MINOR CHILD

        Second, defendant argues on appeal that defense counsel was ineffective for failing to
impeach the minor child regarding multiple inconsistent statements that she made. By way of
example, defendant points to inconsistencies in the minor child’s Care House interview and her
preliminary examination testimony and trial testimony regarding whether defendant used the
bathroom before the touching, her failure to describe his facial hair, and whether defendant had
led her by the hand or carried her to his bedroom.

       As stated above, defense counsel has wide discretion regarding trial strategy, Heft, 299
Mich App at 83, and how to question a witness is a matter of trial strategy, Horn, 279 Mich App
at 39. The failure to question a witness or present evidence constitutes ineffective assistance of
counsel only when the defendant is deprived of a substantial defense. Russell, 297 Mich App at
716.

        Defendant is correct that the minor child did not include defendant going to the bathroom
in her recollection of the events leading to the touching during her Care House interview, but she
did indicate that defendant went to the bathroom during her preliminary examination testimony
and again at trial. Additionally, the minor child stated at Care House that defendant took her to

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his room by hand, but said that he carried her at the preliminary examination and at trial.
Although defense counsel did not attempt to impeach the minor child on these statements, they
are minor points in the minor child’s otherwise consistent testimony, and defense counsel
impeached the minor child on other major points.

        For instance, the minor child testified at the preliminary examination that she was in third
grade when the touching occurred, but stated at trial that she was in first grade, and defense
counsel questioned her on this point. Defense counsel also questioned the minor child about
saying at the preliminary examination that she did not tell her mother that the touching occurred
because she did not think that her mother would believe her. Additionally, defense counsel
impeached the minor child regarding the sleeping arrangements at defendant’s house. The minor
child first testified that she slept in a second bed that was located in the room of defendant’s son,
but later said that defendant and his son switched rooms, and after the switch, she slept in the
same bed with defendant’s son. Defendant, his son, and his mother testified that there was only
ever one bed in the room of defendant’s son, and he and the minor child would sleep in the same
bed whenever she slept over. Defense counsel highlighted the inconsistencies in the minor
child’s testimony during closing argument, noting that the minor child fabricated that defendant
had a dragon tattoo, and said that she was in different grades when the touching happened. She
also noted the minor child’s testimony at the preliminary examination that she referred to her
foster father as “dad,” but denied doing so at trial.

        Deciding what questions to ask the minor child and how to potentially impeach the minor
child as a witness was within defense counsel’s discretion as trial strategy. Horn, 279 Mich App
at 39. Defense counsel questioned and impeached the minor child regarding the major details of
her allegations about which the minor child gave inconsistent statements. It is important to note
that the minor child was only 12 years old when she testified at trial, 10 years old when she gave
the Care House interview, and 11 years old at the preliminary examination. At the Care House
interview, the interviewer told the minor child that she had to tell the truth, and the minor child
said that she would. The minor child took the witness oath to tell the truth before testifying at
the preliminary examination and trial. The minor child testified that she knew she had to tell the
truth on all three occasions, and she did, but there were some things that she did not remember at
different times. This is understandable for a child her age. It may have been defense counsel’s
strategy to be sensitive in questioning the minor child as she was still young, and testifying about
a traumatic event.

                                  C. FABRICATION THEORY

        Third, defendant asserts that defense counsel was ineffective for failing to introduce
evidence to support a theory that the minor child fabricated the allegations against defendant to
stay with her foster family, rather than return to her mother’s care. We disagree.

       Defendant asserts that defense counsel had access to notes from a parenting time visit in
which the minor child told her mother that the foster parents brought the children on an
expensive trip to a water park, and that the minor child’s mother could not afford such a trip.
Defendant argues that defense counsel should have introduced this evidence at trial, as it
suggested that the minor child fabricated the abuse in order to remain with her foster family.


                                                -4-
        Defendant correctly represents that the parenting time report from April 14, 2015
indicated that the children were excited to tell their mother about their trip to the water park
during parenting time. They told her that they stayed for four days and three nights, and the trip
cost over $1,000. The minor child told her mother that her mother could not afford such a trip,
which made minor child’s mother look upset, but she did not respond. Although defense counsel
did not seek testimony regarding the cost of the water park trips, she did address them, which
demonstrates her familiarity with the parenting time report. Specifically, on cross-examination,
the foster father testified that he and the foster mother brought the minor child and her brothers
to the Kalahari Water Park in Ohio three times. The first trip was for one night, the second trip
was for three nights, and the third trip was for two nights.

        It is within the trial attorney’s discretion to choose how to question a witness and what
evidence to present. Horn, 279 Mich App at 39. It is possible that defense counsel thought the
questioning, in combination with the foster father’s testimony that his home was 5,000 square
feet, each child had their own bedroom, and the children enjoyed interacting with his two dogs,
was sufficient to demonstrate that the foster parents treated the minor child and her brothers well.
Defense counsel also questioned the foster father about the minor child calling him “dad.” The
foster father testified that although the minor child never called him “dad” to his face, teachers
had informed him that the minor child referred to the foster parents as “mom and dad.” Defense
counsel further drew attention to the fact that the minor child had recounted to law enforcement
that the “best day of her life” was a day she had gotten to spend entirely with the foster father.
Based on the foregoing, we conclude that defense counsel fully pursued the theory that the minor
child had fabricated the assault in order to remain with the foster family. We reject defendant’s
claims to the contrary.

                                  D. MRE 404(B) EVIDENCE

       Fourth, defendant argues that defense counsel was ineffective for failing to object to the
testimony of the minor child’s mother as violative of MRE 404(b). Specifically, defendant
claims that the testimony of the minor child’s mother impermissibly introduced evidence of prior
bad acts which was not disclosed by the prosecution before trial. We disagree.

       MRE 404(b)(1) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It 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.

The following factors must be present for the trial court to admit other acts evidence:

       First, the prosecutor must offer the “prior bad acts” evidence under something
       other than a character or propensity theory. Second, “the evidence must be
       relevant under MRE 402, as enforced through MRE 104(b)[.]” Third, the

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       probative value of the evidence must not be substantially outweighed by unfair
       prejudice under MRE 403. Finally, the trial court, upon request, may provide a
       limiting instruction under MRE 105. [People v Knox, 469 Mich 502, 509; 674
       NW2d 366 (2004), quoting People v VanderVliet, 444 Mich 52, 74-75; 508
       NW2d 114 (1993), amended 445 Mich 1205 (1994).]

       At trial, the minor child’s mother was asked on direct examination if, at some point, there
was a breakdown in her relationship with defendant. Minor child’s mother said that there was,
and when asked when the breakdown occurred, she replied:

              It was when [defendant] was my payee and there was some money went
       missing and I guess there was some confusion with my bank account and his bank
       account and some of his bills got trans [sic] – hit with my account and made my
       account overdraft and –

The minor child’s mother testified that after this issue with money in January 2014, she ended
the relationship.

        Defendant argues that defense counsel was ineffective because she did not object to this
testimony as inadmissible under MRE 404(b): it was evidence of other wrongs or acts, and the
prosecution did not provide notice of its intent to admit such evidence. However, the testimony
of minor child’s mother does not clearly imply that defendant stole money from her, as defendant
argues on appeal. Rather, the purpose of the minor child’s mother’s testimony was to explain
that there was a breakdown in her relationship with defendant following confusion with their
bank accounts that resulted in her account being over drafted. Evidence related to the money
issue between defendant and minor child’s mother was not admitted to prove that defendant had
a propensity to commit criminal sexual conduct. Rather, the prosecution asked minor child’s
mother when she broke up with defendant, not why. The prosecution was seeking to establish a
time frame of the relationship between defendant and the minor child’s mother to establish the
period of time when the minor child stopped going to defendant’s house, which was relevant to
the sequence of events of the sexual assault and the minor child’s disclosure.

        We also note that failing to object to evidence can be sound trial strategy. Unger, 278
Mich App at 242. Defense counsel may have believed that it was in defendant’s best interest not
to object to the testimony as it would draw undue attention. See Horn, 279 Mich App at 40. In
addition, “[c]ounsel is not ineffective for failing to make a futile objection.” People v Thomas,
260 Mich App 450, 457; 678 NW2d 631 (2004). Defense counsel may have thought that an
objection to the testimony of the minor child’s mother would have been futile as there were no
valid grounds upon which to raise an objection. Again, defendant has failed to establish that
defense counsel’s performance fell below an objective standard of reasonableness.

                                    E. BURDEN OF PROOF

       Fifth and finally, defendant argues that defense counsel’s misstatement of the burden of
proof during her closing argument constituted ineffective assistance of counsel, and harmed
defendant.


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       During closing argument, defense counsel discussed the gravity of the crime that
defendant was accused of, and the consequences that follow being convicted of criminal sexual
conduct. She argued that the charges were based on false allegations, and the jury had to
“double-check” and “triple-check” that the minor child told the truth because of the stigma
associated with committing a sex crime against a child. Then defense counsel stated:

               [Defendant] has to prove a false allegation. Nobody else here has any
       evidence that this actually happened. False accusations of sexual abuse occur
       more often than people think. However, the problem isn’t the frequency, but the
       inability to prove the falseness. Today we have [the minor child’s] word against
       [defendant’s] word. Sometimes it’s hard for a jury to not believe a child, but I
       want you to think about everything that was said, every inconsistency, which
       actually turned out to be an actual falsehood. We admitted it on the stand.

              The prosecutor has to prove reasonable likelihood.

In context, defense counsel’s statements were made to bolster her argument that the minor
child’s allegations were false. Decisions concerning what evidence to highlight during closing
argument are matters of trial strategy. Horn, 279 Mich App at 39. Defense counsel’s decision to
focus her theory of the case around a false accusation shall not be second-guessed by this Court
in hindsight. Unger, 278 Mich App at 242-243.

        Although defense counsel misstated the burden of proof in her closing argument, the jury
was informed of the proper standard multiple times. During preliminary jury instructions, the
jury was told that defendant was presumed innocent, and he could not be found guilty unless the
jury was satisfied that the prosecution proved every element of the crime beyond a reasonable
doubt. The jury was informed that defendant did not have to prove his innocence or do anything.
Right after defense counsel misspoke during her closing argument, the prosecutor stated during
rebuttal that it was the prosecution’s burden to prove beyond a reasonable doubt that defendant
committed second-degree criminal sexual conduct. Then the jury was given final jury
instructions, and the trial judge stated:

              It is my duty to instruct you on the law. You must take the law as I give it
       to you. If a lawyer says something different about the law, follow what I say.

The jury was again instructed that defendant was presumed innocent, defendant did not have to
prove his innocence, and the prosecution had to prove the elements of the crime beyond a
reasonable doubt for the jury to find defendant guilty.

       “As a general rule, juries are presumed to follow their instructions.” People v Mette, 243
Mich App 318, 330-331; 621 NW2d 713 (2000). And jury instructions are presumed to cure
most errors. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Defendant
argues that defense counsel’s inexperience trying a criminal case led her to misstate the burden,
and therefore, was below an objective standard of reasonableness under professional norms.
Lockett, 295 Mich App at 187. However, defendant must also demonstrate that he was
prejudiced by defense counsel’s error. Id. Although defense counsel misstated the burden of
proof and presumption of innocence in her closing argument, defendant was not prejudiced by

                                               -7-
this misstatement because the jury was instructed on the proper burden of proof and presumption
of innocence several times. The jury was instructed to follow the court’s instructions regarding
the law when it differed from that provided by any attorney. It is presumed that the jury
instructions cured defense counsel’s error in the recitation of the law, and it is presumed that the
jury followed the instructions provided by the court. Mette, 243 Mich App at 330-331;
Abraham, 256 Mich App at 279. Therefore, defendant was not provided ineffective assistance of
counsel based on defense counsel’s closing argument.

        We note that “ ‘[t]he cumulative effect of several minor errors may warrant reversal
where the individual errors would not.’ ” Unger, 278 Mich App at 258, quoting People v
Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003). Although defendant alleges many
errors, the only specific error in defense counsel’s performance was her misstatement of the
burden of proof. Because there is only one individual error, there is no cumulative effect
warranting reversal. Unger, 278 Mich App at 258.

                      II. ENTITLEMENT TO EVIDENTIARY HEARING

        Defendant also argues that he is entitled to a remand for a Ginther hearing because he
needs to develop and perfect his record on appeal in order to bolster his claims of ineffective
assistance of counsel. We disagree.

        A trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of
discretion. Unger, 278 Mich App at 216-217. “An abuse of discretion occurs when the court
chooses an outcome that falls outside the range of reasonable and principled outcomes.”

        A defendant has the burden of establishing the factual predicate for his claims. People v
Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). A Ginther hearing is held to provide a
defendant with an opportunity to present facts or admit evidence to establish claims of
ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999); People v
Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973). A defendant is entitled to a Ginther
hearing if he can demonstrate that further development of facts outside the record is necessary
for him to make ineffective assistance of counsel claims on appeal. Ginther, 390 Mich at 443. A
defendant is not entitled to relief based on a trial court’s denial of a Ginther hearing if this Court
is not persuaded that further factual development would advance the defendant’s claims. Chapo,
283 Mich App at 368-369.

       Below, defendant advances some of the same reasons why he is entitled to a Ginther
hearing or new trial that he advances on appeal; others defendant has abandoned. However,
based on our review of the record, we cannot conclude that the trial court abused its discretion by
granting defendant the requested relief. At the hearing held on this motion, the trial court
provided its findings regarding each claim based on the record, withholding its ruling regarding
the consultation of an expert witness only, and the record was sufficient for the trial court to
make such findings of fact. Moreover, it is not apparent that further factual development would
have advanced his claims. Ginther, 390 Mich at 443. All of the errors alleged by defendant are
based on his allegation that defense counsel was not a criminal defense attorney, and therefore,
inexperienced in trying a criminal case, especially a criminal sexual conduct case with a minor
victim. Defendant’s appellate counsel asserted that defense counsel told appellate counsel that

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she was not a criminal defense attorney, and had not tried a similar matter. But mere
inexperience itself does not establish ineffective assistance of counsel. People v Kevorkian, 248
Mich App 373, 415; 639 NW2d 291 (2001). Therefore, the trial court’s decision to deny
defendant’s request for a Ginther hearing did not fall outside the range of principled outcomes,
and remand is not required.

       Affirmed.


                                                           /s/ Stephen L. Borrello
                                                           /s/ David H. Sawyer
                                                           /s/ Kathleen Jansen




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