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




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 23, 2019
               Plaintiff-Appellee,

v                                                                  No. 337735
                                                                   Oakland Circuit Court
KEVIN THOMAS McCOLLUM,                                             LC No. 2016-259142-FC

               Defendant-Appellant.


Before: SHAPIRO, P.J., and BECKERING and M.J. KELLY, JJ.

PER CURIAM.

        Defendant, Kevin Thomas McCollum, appeals as of right from his jury trial convictions
for three counts of criminal sexual conduct (CSC), first degree, MCL 750.520b(2)(b), and from
the trial court’s judgment of sentence. His convictions arise out of acts perpetrated on his
stepdaughter, KS. For the reasons set forth in this opinion, we affirm defendant’s convictions
but vacate his sentence and remand for resentencing.

                                     I. RELEVANT FACTS

        KS’s mother began living with defendant when KS was three years old, and they were
married sometime thereafter. KS testified that she was about four the first time she remembers
defendant touching her inappropriately, and that behavior continued until March 2016, when she
was twelve years old. In March 2016, KS told her mother that defendant was touching her
inappropriately on her special place. The next day, she told her best friend EP that defendant had
sexually abused her since she was little; that defendant tried to pull her pants down, and that he
touched her vagina. After school that day, EP told her parents, who called KS’s middle school
counselor, Ken Dudek, and told him that KS’s stepfather was touching her inappropriately. That
night, KS’s mother required KS to go to the basement with her to confront defendant and tell him
to stop. When KS did so, defendant told her that he may have rubbed too low when giving her a
stomach or back rub, but he did not think he ever touched her inappropriately. Defendant left the
house that night.

       The next day, KS was pulled out of class to speak with two counselors—Dudek and a
more experienced counselor, Denise Landers. KS told them her stepfather had been touching her


                                               -1-
inappropriately, after which Dudek left the room. KS told Landers it had been going on since
defendant came into her life and responded affirmatively when Landers asked if the touching
involved a penis. Landers called Child Protective Services (CPS) and members of the school
administration. That afternoon, KS’s principal, Dr. Catherine Neuhoff, called KS into her office
and asked about what was going on at home. KS began to describe a day when she was home
after school taking a nap on the couch and her stepfather started to touch her. Neuhoff
subsequently talked to the school’s police liaison officer, who called the Troy police.

        CPS contacted KS’s mother the following afternoon. At some point, KS was taken to
Care House for a medical examination and a forensic interview. During the interview, she
mentioned a boy from church who had touched her inappropriately when she was younger. In
July 2016, KS was sent to Indiana to live with her biological father and his wife. Detective
Kristine Shuler was assigned to the case and interviewed defendant as part of her investigation.
In due course, defendant was arrested and criminally charged.

        KS turned 13 the day defendant’s trial began. She testified that, multiple times when she
was watching cartoons in the basement, defendant would come downstairs, take off her clothes,
and touch her special place and her chest with his tongue, his finger, and his private part. When
he touched her chest, it was the place normally covered by her bra. Sometimes, he took off his
clothes. He moved the skin aside to lick her special place. He used his finger like his tongue,
sometimes running it up and down where she wipes and sometimes sticking a finger inside her
special place. Sometimes he would lick his finger before touching her special place. He would
touch his private part to hers and sometimes try to push it in, but it was too big to fit.
Sometimes, he would take her hand, put it on his private part, and have her rub up and down.
Sometimes he did more than one of these things at a time. A few times, a white liquid came out
of his private part.

        KS also testified that, on more than one occasion, defendant would come in to use the
bathroom when she was in the shower and still be there when she got out, and he would touch
her private part with his finger and sometimes his tongue. Sometimes these things also happened
in the living room, in her mom’s bed, in her room and her top bunkbed, and in the bathroom.
Sometimes it started when she was sleeping. All of these things happened when her mom was
asleep or out of the house. Her sister would be either outside or in her own room. Sometimes,
defendant asked if she had told anyone and said that this was their little secret.

        Additionally, KS testified that she felt weird when defendant touched her inappropriately,
she was “kind of scared of him” because “he was, like, a lot more stronger than I am and he’s
bigger than I am.” Sometimes she tried to put her clothes back on and sometimes when she did
this, he would stop, but sometimes he would not. Sometimes, she tried to get away, but he held
her down by her legs or her arms. At times, she piled things behind her bedroom door to try to
protect herself, and sometimes she went into the bathroom and locked the door. She started
having periods when she was 11 or 12, and he did not touch her when she was having a period.

       Defendant testified that he thought he and KS had a very good relationship. They went to
movies, football games, and amusement parks, and she was not skittish around him, although she
would not let him brush her hair. She would cuddle up in his arm as they watched movies
together, and they played video games. Defendant denied having ever touched KS

                                               -2-
inappropriately. He said that if she were being defiant, he would spank her on the buttocks once
with an open hand. He would rub her belly if she had a stomachache. He may have rubbed too
low, by which he meant the underwear line. When she was about four, he stripped her down, put
her in the shower, and scrubbed off marks she had made on her legs with markers. He did pick
KS up and put her to bed when she fell asleep with her mother on the couch. There were family
dynamic issues; KS was upset about moving and about her younger sister getting more attention
from defendant than she got. On cross-examination, defendant admitted that he had been alone
with KS, including in the bathroom when she was showering behind a clear or opaque shower
curtain. He spanked her as recently as one month before she made her allegations. He
roughhoused with her, accidentally touching her breasts, and he and KS had seen each other
nude.

       While there was other testimony at the trial, there were no witnesses to the sexual abuse,
nor was there any physical evidence in support of KS’s allegations. The jury convicted
defendant on all three charged counts of first degree CSC, and the trial court sentenced him to 30
to 60 years on each count, to be served concurrently. Defendant moved for a new trial and a
Ginther1 hearing, both of which the trial court denied. He timely filed this appeal and petitioned
this Court for a remand for a Ginther hearing, which this Court denied.2

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant first argues that his counsel provided ineffective assistance for multiple
reasons, each of which we will address below. Defendant preserved this claim of error by filing
a timely motion for a new trial and for a Ginther hearing, People v Heft, 299 Mich App 69, 80;
829 NW2d 266 (2012); because his motions were denied, we review his claims for mistakes that
are apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

        Ineffective assistance of counsel claims present mixed questions of law and fact. People
v Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014). We review factual questions for clear
error and questions of constitutional law de novo. Id. “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).

       To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the
two-part test set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
(1984). People v Dendel, 481 Mich 114, 124-125; 748 NW2d 859 (2008), amended 481 Mich
1201 (2008). First, a defendant must establish deficient performance. Dendel, 481 Mich at 125.
An attorney’s performance is deficient when “counsel’s representation fell below an objective
standard of reasonableness” “under prevailing professional norms.” Strickland, 466 US at 688.
Second, a defendant must establish that he was so prejudiced by the deficient performance that


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Kevin Thomas McCollum, unpublished order of the Court of Appeals, entered May 15,
2018 (Docket No. 337735).


                                               -3-
he was denied a fair trial. Dendel, 481 Mich at 125. Prejudice is established when “there is a
‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 US at 694.

                              A. TESTIMONY OF KS’S FATHER

        Defendant first argues that counsel was ineffective by failing to object to the testimony of
KS’s biological father. Defendant claims the father improperly vouched for KS’s credibility by
testifying that certain of KS’s behaviors were consistent with sexual abuse. We disagree.

         KS’s father testified that he was a supervising psychologist at a mental health center. He
first learned that KS had accused defendant of sexual abuse through a telephone call from KS’s
mother shortly after Landers reported the alleged abuse to CPS. KS’s father testified that he had
been concerned about KS’s behavior before March 2016. Specifically, he testified that KS’s
mood was up and down, she did not want to talk about a cruise she had taken with her mother
and defendant shortly after their marriage, and when he gave her a bath at four or five years old,
she pushed his hands away as he tried to wash between her legs and told him not to touch her
special place. Within the past two years, he had noticed that she would not take her purse off
even to go to bed, and she often slept in her clothes. She always insisted on sleeping with the
light on, resisted showering, and had to be reminded to brush her teeth. Sometimes she binged
on food, and other times she had no appetite at all. When meeting new people, she was at times
open and talkative and at other times extremely shy. She would often stare into space and it was
difficult to get her attention, and she rambled and lost focus when talking. When he brought this
up with KS’s mother, she said she thought KS had attention deficit hyperactivity disorder
(ADHD). He thought KS did have ADHD, although such behaviors could be from multiple
different causes, including trauma.

        Defendant argues that KS’s father improperly bolstered KS’s credibility by testifying that
her concerning behaviors were consistent with sexual abuse. However, defendant has
mischaracterized the witness’s testimony. As noted above, KS’s father testified that KS’s
behavior was consistent with her having ADHD, as her mother believed, and that it was also
consistent with multiple other causes, “including trauma.” Notably, KS’s father did not limit
“trauma” to that which results from sexual abuse. Additionally, he testified on cross-
examination that the behavior could also have been caused by general anxiety disorder, PTSD, or
depression, and he agreed with defense counsel’s statement that a child who had never been
sexually abused could exhibit the same concerning behaviors that KS had exhibited. In short, it
was not objectively unreasonable for defense counsel to refrain from objecting to this testimony
as bolstering KS’s credibility because it simply did not do so.

       Equally unsuccessful is defendant’s contention that KS’s father offered improper expert
testimony. MRE 701 provides for the admission of lay testimony “in the form of opinions or
inferences” as long as those opinions or inferences are “(a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” KS’s father provided factual testimony of events as he
perceived them; he did not opine or imply that KS had been sexually abused or that her behavior
was caused by sexual abuse. The only opinions he provided were those he held before KS
alleged that defendant committed sexual abuse, when he thought she had ADHD, and he

                                                -4-
assumed that she pushed him away during her bath because she was being taught at home not to
let anyone touch her genital area. For these reasons, the testimony of KS’s father was proper and
admissible, and defense counsel’s failure to object to the testimony of KS’s father did not
constitute ineffective assistance. People v McGhee, 268 Mich App 600, 627; 709 NW2d 595
(2005) (indicating that defense attorneys are not required to make futile objections).

                                         B. HEARSAY

        Defendant next argues that counsel’s performance fell below reasonable professional
norms when his attorney stipulated to the admission into evidence of the Care House video of
KS’s interview and failed to object to hearsay testimony from multiple witnesses. Defendant
contends that his attorney’s deficient performance prejudiced him because it allowed the jury to
hear testimony and evidence that impermissibly bolstered KS’s credibility in a case that turned
largely on credibility.

         Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801. Unless
an exception exists, hearsay is inadmissible. MRE 802. The video of the Care House interview
was hearsay for which no exception exists. The prosecution tacitly concedes this on appeal by
failing to argue either that it was not hearsay or that one of the hearsay exceptions applied to
make it admissible, but argues that defense counsel had a strategic purpose in admitting the
video. The record supports the prosecution’s argument.

       The record clearly shows that the Care House video was crucial to defense counsel’s
theory of the case, which was that the investigation of KS’s allegations was incomplete, KS was
untruthful, and her account of defendant’s alleged abuse constantly evolved. The video of the
Care House interview played a significant role in these arguments, as is evident from counsel’s
frequent reference to and quotation from the interview during his opening statement.

         Regarding the quality of the investigation, counsel referred to KS’s comments about a
webcam that defendant would turn off before touching her inappropriately and a boy from her
church who had touched her inappropriately; he asserted that these comments provided relevant
leads that the authorities did not properly investigate. With respect to KS’s truthfulness, counsel
stressed KS’s detailed comments about the purpose and function of a home webcam, details that
her mother’s testimony would directly contradict. Implying that the forensic interviewer’
technique had affected KS’s account of the abuse, counsel urged the jury to pay careful attention
to the video and look for “suggestive questions,” “leading questions,” “social reinforcements” of
KS’s responses, and “disapproval for some statements.” As an example of the latter, counsel
informed the jury that KS said in her interview that defendant always took her sister to the store,
but not her, and that she recently found out that defendant had wanted to adopt her and make her
his “real daughter” when she was two. Counsel pointed out that the interviewer did not pursue
these observations, but returned immediately to questions about touching, thus strongly implying
that if the interviewer had pursued these observations, she might have discovered that KS was
angry, resentful, and seeking attention. Further, by turning away from them, the interviewer
signaled to KS that she was not receptive to expressions of anger and resentfulness.



                                                -5-
        In addition to using the Care House interview extensively in his opening statement,
defense counsel cross-examined KS with regard to the webcam, the boy at church, and various
other things she had told the forensic interviewer. Defense counsel also called an expert witness
who expressed a number of concerns about the forensic interviewer’s technique and offered his
professional opinion regarding the reliability of the interview in light of those concerns. The
centrality of the video of the Care House interview to the defense prompted the prosecution to
call a rebuttal witness, who testified that nothing the forensic interviewer did rendered the
interview unreliable. Finally, in his closing argument, defense counsel returned to some of the
same themes regarding the quality of the investigation and KS’s truthfulness that he had raised in
his opening statement and pursued during his examination and cross-examination of witnesses.
He also urged the jury to review the video carefully if it had any questions about what KS had
said.

       As the foregoing illustrates, the record supports the conclusion that defense counsel had a
sound strategic reason for stipulating to admission of the video. We will not substitute our
judgment for that of counsel regarding matters of trial strategy, nor assess counsel’s competence
with the benefit of hindsight. Payne, 285 Mich App at 190. That a strategy did not work out
does not necessarily amount to ineffective assistance of counsel. People v Petri, 279 Mich App
407, 412; 760 NW2d 882 (2008). Accordingly, we conclude that defendant has not met his
burden to prove that his counsel’s performance was deficient with regard to admission of the
video of the Care House interview. See Douglas, 496 Mich at 585.

         Next, defendant asserts that he received constitutionally ineffective assistance of counsel
when his attorney failed to object to hearsay testimony from several witnesses. The challenged
witnesses are KS’s mother, EP, Dudek, Landers, and Neuhoff. KS’s mother testified that KS
told her that defendant was touching her “special place” and described the conversation when KS
confronted defendant.3 EP testified that KS told her that defendant had been sexually abusing
KS since she was little, including pulling down her pants and touching her vagina. Dudek
testified that KS told him and Landers that her stepfather had been touching her inappropriately.
Landers testified that KS told her the abuse had been going on since defendant came into her life,
and that KS responded affirmatively when asked if the touching involved a penis. Neuhoff
testified that KS began to describe a day when she was home after school when she was taking a
nap on the couch and her stepfather started to touch her.

        The prosecution contends that none of the challenged testimony was hearsay because it
was not offered as substantive evidence, but rather, for the proper purpose of showing why each
witness acted as he or she did.4 We find this explanation somewhat disingenuous. KS was the
first witness to testify, and she testified in detail to her conversation with her mother and


3
  Her testimony regarding what defendant said during his conversation with KS was admissible,
as it was not hearsay. MRE 801(d)(2).
4
  The only time such testimony is admissible for substantive purposes is when the declarant is
under the age of 10 and the circumstances meet the requirements of MRE 803A, which is
inapplicable in the instance case.


                                                -6-
subsequent confrontation with defendant in the basement of their house. She also provided
detailed testimony about her conversation and interactions with Dudek and Landers.5 To the
extent that the conduct or motivations of any of the challenged witnesses were relevant to
whether defendant committed the charged crimes, KS’s testimony provided ample context for
the witnesses’ actions.

       However, our review of the record does convince us that defense counsel had a strategic
reason for not objecting to some of the hearsay testimony. As already indicated, one component
of counsel’s defense strategy was that KS’s account of the alleged abuse evolved over time in
response to the questions she was asked. Counsel used the testimony of EP and of Landers, and
to a lesser extent, of Dudek, to illustrate this evolution. In his opening statement, counsel
pointed out that KS’s account to EP of the alleged sexual abuse was very general and did not
involve mention of genitalia. She likewise reported in general terms to Dudek and Landers that
defendant had sexually abused her. According to defense counsel, it was not until Landers asked
her whether the sexual abuse involved a penis that KS added this detail to her account. Counsel
returned to the theme of leading questions in his closing argument, again referring to Landers’s
question and its presumed effect on KS’s account as a critical point in the evolution of KS’s
account. Thus, with regard to the testimony of these three witnesses, the record suggests that
counsel’s failure to object to the admission of hearsay evidence was strategic.

         However, the record evinces no sound strategic reason why defense counsel would not
object to the hearsay of KS’s mother or of Neuhoff. Accordingly, we agree with defendant that
defense counsel’s performance fell below an objective standard of reasonableness when he failed
to object to these witnesses’ accounts of what KS told them. Defendant has met the first prong
of the Strickland test with respect to the challenged hearsay testimony of KS’s mother and
Neuhoff. Having concluded that defense counsel’s performance fell below reasonable
professional norms with regard to the challenged hearsay statements of these two witnesses, we
next consider whether, but for these errors, there is a reasonable probability that the outcome of
the trial would have been different. Strickland, 466 US at 694.

         When determining whether inadmissible hearsay prejudiced a defendant, this Court
considers “the nature of the error in light of the weight and strength of the untainted evidence” in
order to determine “whether the inadmissible hearsay more probably than not undermined the
reliability of the verdict against the defendant.” Douglas, 496 Mich at 579. Another proper
consideration is whether the inadmissible hearsay was “offered and argued as substantive proof
of guilt” or whether it merely corroborated the victim’s testimony. Id. at 580-581. Other factors
to be weighed include how important a witness’s testimony was to the prosecution’s case and the
overall strength of that case. People v Gursky, 486 Mich 596, 620; 786 NW2d 579 (2010).


5
  KS testified that, toward the end of her conversation with Landers, Landers told her that KS
would be going to talk to the principal at her other school, Neuhoff, and that Landers would
contact CPS. KS did not remember the principal’s name and did not testify to her conversation
with Neuhoff. Nevertheless, to the extent that Neuhoff testified to what KS told her, it was
inadmissible hearsay.


                                                -7-
When a trial is essentially a credibility contest between a defendant and a victim, hearsay may be
more harmful because it may “tip the scales” against the defendant. Id. at 620-621. This is
especially likely when the tainted evidence bolsters the credibility of a victim who is a young
child, rather than an older child or an adult. Douglas, 496 Mich at 579-580. However, if the
declarant testified at trial, “any likelihood of prejudice was greatly diminished because the
primary rationale for the exclusion of hearsay is the inability to test the reliability of out-of-court
statements. Where the declarant testifies and is subject to cross-examination, the hearsay
testimony is of less importance and less prejudicial.” Gursky, 486 Mich at 621 (quotation marks,
citation, and alteration omitted).

        In the case at bar, the declarant, KS, did testify and was subject to cross-examination. In
addition, the inadmissible hearsay testimony was cumulative evidence that corroborated KS’s
testimony. Neither KS’s mother nor Neuhoff added detail or clarity to KS’s trial testimony.
Further, the trial transcript reveals certain characteristics of KS’s testimony from which a jury
might reasonably infer credibility, even without the tainted testimony. The trial transcript
indicates that KS was not confused, did not contradict herself when she testified, and testified
clearly and concisely. Her allegations were consistent throughout the entire process of the
investigation and trial. Moreover, although there was no physical evidence of the alleged
assaults, KS’s mother corroborated allegations from KS regarding certain of defendant’s habits
during sex. Specifically, KS’s mother had heard that KS said defendant licked his fingers before
rubbing her genitals, and KS’s mother testified that defendant did the same during consensual
sex with her. All of this minimized the prejudice of the hearsay and properly bolstered KS’s
credibility.

        By contrast, defendant made certain admissions that might reasonably have served to
undermine his credibility with the jury. He said he wrestled with KS and touched her breasts in
the process, he rubbed her stomach and rubbed “too low,” he went into the bathroom when she
was in the shower behind only a clear shower curtain, he spanked her buttocks, he saw her naked
and allowed her to see him naked.

        Given the strength of the untainted evidence, particularly the relative force of the
testimony of KS and of defendant, the fact that KS testified and was subject to cross-
examination, and the fact that the challenged testimony corroborated rather than elaborated upon
KS’s testimony, we conclude that there is no “reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” Strickland, 466 US at 694.
Defendant is not entitled to a new trial on the ground of his attorney’s failure to move to exclude
the challenged hearsay.

                 C. STATEMENTS IN DEFENDANT’S POLICE INTERVIEW

        Defendant argues next that defense counsel rendered ineffective assistance by failing to
object to portions of the video of defendant’s police interrogation where the detective allegedly
made improper statements vouching for KS’s credibility. We disagree.

       When the prosecution offers a police interrogator’s out-of-court statements commenting
on the defendant’s credibility, not for the truth of the matter asserted, but in order to provide
context to the defendant’s statements, the interrogator’s comments are admissible, but only to the

                                                 -8-
extent that the prosecution establishes that these statements are relevant, i.e. that they do, in fact,
provide needed context. People v Musser, 494 Mich 337, 339-340, 835 NW2d 319 (2013),
citing MRE 401. Relevant comments still must be excluded if their probative value is
substantially outweighed by the danger of unfair prejudice. Musser, 494 Mich at 340, citing
MRE 403. Even when such remarks are relevant and not unfairly prejudicial, the trial court
must, if requested to do so, instruct the jury that statements are admissible for the limited purpose
of providing context and for no other purpose. Musser, 494 Mich at 340, citing MRE 105.

        In none of the statements that defendant challenges does Detective Shuler appear to us to
have “vouch[ed] for the veracity of the complainant and indicate[d] that the detective believe[d]
the defendant to be guilty.” People v Tomasik, 498 Mich 953; 872 NW2d 488 (2015). At the
start of the interview, Detective Schuler explained to defendant and his attorney, who
accompanied defendant at the interview, that the investigation was in its initial stage and she was
trying to determine what really happened. Detective Shuler repeated some of KS’s allegations,
said that KS had disclosed that the sexual abuse had gone on for years, said that KS included
“pretty significant” and “very articulate” details, and said that KS’s forensic interview was “very
specific.” It is difficult to conceive of anything more necessary to establishing context to a
defendant’s responses than a detective’s paraphrasing of the allegations against him. Unlike in
Musser, where an interrogator made numerous out-of-court statements regarding the
complainant’s credibility, in none of the challenged statements did Detective Shuler opine about
the general credibility of children KS’s age, the specific credibility of KS’s allegations, or that
she believed defendant did what KS alleged. See Musser, 494 Mich at 361 n 19. Also unlike in
Musser, where the interrogator’s specialized training and experience with child complainants
was presented to the jury immediately before it viewed the interrogation video, id. at 363,
Detective Shuler did not testify that she had any specialized training, or make any additional
statements directly to the jury about the credibility of child complainants of KS’s age. Detective
Shuler’s comments were probative in that they established context for defendant’s responses, and
they were not unfairly prejudicial. Therefore, their admission was not error, and any objection
by defense counsel to the detective’s statements would have been futile. Defense counsel does
not render ineffective assistance by failing to make futile objections. McGhee, 268 Mich App at
627.

                                  D. OTHER-ACTS EVIDENCE

        KS’s mother testified that KS’s description of certain of defendant’s sexual practices was
familiar because he also did them with her. Defendant argues that this was improper other-acts
evidence and that his attorney’s failure to object to the testimony constituted ineffective
assistance of counsel. Again, we disagree.

       “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.” MRE 404(b)(1). This rule exists
because of “fear that a jury will convict the defendant inferentially on the basis of his bad
character rather than because he is guilty beyond a reasonable doubt of the crime charged.”
People v Crawford, 458 Mich 376, 384; 582 NW2d 785 (1998). However, “MRE 404(b)
‘permits the admission of evidence on any ground that does not risk impermissible inferences of
character to conduct.’ ” People v Watson, 245 Mich App 572, 576; 629 NW2d 411 (2001),
quoting People v Starr, 457 Mich 490, 496; 577 NW2d 673 (1998). Other-acts evidence is

                                                 -9-
admissible if offered for a proper purpose, it is relevant, and its probative value is not
substantially outweighed by the danger of unfair prejudice. People v VanderVliet, 444 Mich 52,
74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). Examples of proper purposes
include “ ‘proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an
act, knowledge, identity, or absence of mistake or accident.’ ” Watson, 245 Mich App at 576-
577, quoting MRE 404(b)(1). When the trial court admits other-acts evidence that meets these
criteria, the trial court must provide a limiting instruction to the jury if requested. Id. at 75.

        At issue is the testimony of KS’s mother that some of defendant’s habits during sex,
which she learned through her attorney that KS had described, were familiar to her because
defendant did them during sex with her. Specifically, that defendant licked his fingers before
rubbing his wife’s vagina, and pulled out to ejaculate on her stomach rather than ejaculating
inside her because they did not use birth control.

        In light of the facts before us, we fail to see how the testimony of KS’s mother regarding
defendant’s sexual practices during consensual sex with her is inadmissible other-acts evidence.
Testimony that defendant licked his fingers before rubbing his wife’s genitals during consensual
sex carried no risk of any impermissible inference that defendant was of bad character. In fact,
this innocuous and consensual conduct with his wife conveys no information whatsoever about
defendant’s character. Consequently, there could be no “character to conduct” inference to
prohibit admission of the testimony. Starr, 457 Mich at 496.

        Even if the testimony of KS’s mother could be construed as the type of other-acts
evidence contemplated by MRE 404(b), her testimony that defendant licked his fingers before
rubbing her genitals was admissible nevertheless because it was offered for a proper purpose,
was relevant, and its probative value was not substantially outweighed by the danger of unfair
prejudice. VanderVliet, 444 Mich at 74-75. The testimony pertained to the identity of KS’s
abuser and the absence of mistake, both of which are proper purposes, and were relevant, given
defendant’s theory that KS was misattributing to him conduct actually perpetrated by a teenage
boy with whom KS was acquainted. In addition, the probative value of the testimony was not
substantially outweighed by the danger of unfair prejudice because, for reasons already
discussed, the testimony provided no evidence of bad character from which a jury could infer
that defendant must be guilty of the charged crime.

        However, that defendant pulled out and ejaculated on his wife’s stomach as their method
of birth control was not relevant, because KS never testified that defendant inserted his penis into
her vagina or that he ejaculated on her stomach. Yet even this testimony is not barred by MRE
404(b)(1) because, like the testimony that defendant licked his fingers before rubbing his wife’s
genitals, it is equally innocuous and equally divorced of any significance regarding defendant’s
character. Because there was no reason to object to either detail under MRE 404(b)(1),
defendant has failed to establish that his counsel’s performance was deficient on this ground.
McGhee, 268 Mich App at 627.

                            E. PHOTOS OF KS AND DEFENDANT

      Defense counsel initially sought to introduce into evidence five photographs that showed
KS smiling with defendant, but the prosecution objected on the ground of relevance. Defense

                                               -10-
counsel argued that the photographs were relevant because they demonstrated, contrary to her
testimony, that KS was not skittish around defendant. The trial court denied admission of the
photographs without prejudice, but defendant made no further attempts to admit them into
evidence. Defendant argues that defense counsel was ineffective because he failed to take the
necessary steps to have photographs admitted into evidence. We disagree.

        Evidence that is not relevant is not admissible, MRE 402, and the photographs defendant
sought to admit into evidence were, in fact, irrelevant. Relevant evidence is “ ‘evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.’ ” Watson, 245
Mich App at 576, quoting MRE 401. The most that the photographs could possibly have
established was that KS did not appear skittish around defendant in pictures taken at public
events. This was immaterial because KS never testified that she was skittish around defendant
outside her own home, or that he had ever assaulted her outside her own home, when other
people were around, or at public events. She testified that he assaulted her only when her mother
was out and her sister was either outside or in her own bedroom. The testimony of KS’s mother
and of EP had already established that KS did not appear skittish around defendant even in her
own home when other people were around. Thus, any further attempt by defense counsel to have
these photos admitted would have been futile, because they were inadmissible on the ground of
relevance. Consequently, it was not objectively unreasonable for defense counsel to stop trying
to have the photographs admitted. Defendant’s claim that counsel was ineffective for this
decision fails. McGhee, 268 Mich App at 627.

                   F. IMPEACHMENT WITH CIVIL TRIAL TESTIMONY

       Defendant argues next that his counsel was ineffective for failing to impeach KS with
testimony from a prior civil trial to determine whether the court should terminate her mother’s
parental rights. We disagree.

        A defendant must overcome the strong presumption that his counsel’s actions and
inactions were sound trial strategy. People v Horn, 279 Mich App 31, 40; 755 NW2d 212
(2008). Decisions regarding what evidence to present are presumed to be matters of trial
strategy. People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001). Decisions on how to
question a witness are subject to the same presumption. People v Putman, 309 Mich App 240,
248; 870 NW2d 593 (2015). “This Court will not substitute its judgment for that of counsel
regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight.” Garza, 246 Mich App at 255. The fact that a strategy does not work does not make
the attorney incompetent. See People v Pickens, 446 Mich 298, 330; 521 NW2d 797 (1994).

        Defendant first argues that counsel should have elicited from KS the same testimony she
gave at the trial to terminate her mother’s parental rights; namely, that she attempted to run away
from home because she was jealous of her sister. Defendant asserts that such testimony would
have helped to develop a motive for KS’s allegations against defendant. The single page from
the transcript of the termination trial that defendant provided to this Court shows that KS was
asked whether her mother ever told her things were going to be okay, that she would take care of
KS and protect KS. KS responded that her mother said such words to her after KS attempted to
run away several times because she “was jealous of her little sister getting all the attention.”

                                               -11-
When she returned home, KS stated, “She tried to tell me like it’s okay. We’re [sic] not going to
spend all my [sic] time with your sister.”

        Defense counsel was certainly aware, as was the jury, that KS was jealous of her little
sister; counsel elicited that testimony from defendant multiple times. Counsel also attempted
unsuccessfully to elicit testimony from KS’s mother that KS had been acting out from jealousy
from the time her sister was born, but KS’s mother characterized the sibling rivalry as normal.
The record contains no corroborating testimony about either the strength of defendant’s
relationship with KS’s little sister or defendant’s conclusion that KS ran away because she
wanted more attention from him. Given that her testimony occurred in the context of a
proceeding to determine whether the court should terminate her mother’s parental rights, it seems
just as likely that KS ran away because she wanted more attention from her mother. Moreover,
KS’s testimony after the part he deems pertinent proceeded to demonstrate that KS was not
comfortable being around defendant. In light of the record evidence, we do not believe that
defendant has met his burden to establish that defense counsel’s failure to pursue KS’s jealousy
of her sister constituted deficient performance. Defense counsel attempted to establish that
jealousy motivated KS’s allegations, but was unsuccessful. The fact that a strategy does not
work does not make the attorney incompetent. See Pickens, 446 Mich at 330.

        Defendant also argues that counsel was ineffective for failing to impeach KS with
testimony at her mother’s termination trial that KS was nervous around defendant because he is
much larger than is she. Defendant’s argument fails because he cannot establish the factual
predicate of his claim; namely, that defense counsel could have impeached KS with her previous
testimony. See Dendel, 481 Mich at 125. Asked at her mother’s termination trial whether, prior
to March 2016, there were times she did not want to be around defendant, KS replied, “I’ve
always been a little nervous around my stepdad ‘cause he’s tall and he’s—he’s a lot bigger than I
am. And, I get nervous around things that are—”. KS was not given an opportunity to explain
why defendant’s being big frightened her. At defendant’s trial, KS testified that she was “kind of
scared of him” because “he was, like, a lot more stronger than I am and he’s bigger than I am.”
In both proceedings, KS testified that she was afraid of defendant because he was bigger and
stronger than is she. Defendant’s failure to articulate how KS’s testimony at the termination trial
would have been relevant for impeachment purposes at his trial, when it was essentially identical
to the testimony KS offered at defendant’s trial, is fatal to his argument. See People v Carbin,
463 Mich 590, 600; 623 NW2d 884 (2001). Given the existing record in this case, this Court has
no basis for concluding that defense counsel’s strategy was unsound in questioning KS, Garza,
246 Mich App at 255, or that he performed below an objective standard of reasonableness in his
questioning of KS, Putman, 309 Mich App at 248.

          III. CREDIBILITY VOUCHING TESTIMONY REGARDING DIVORCE

        Defendant raises two claims of error involving the testimony of KS’s mother that she
filed for divorce from defendant and regarding why she filed for divorce. Defendant contends
that her testimony explaining why she filed for divorce from defendant was irrelevant and the
trial court abused its discretion when it overruled defendant’s objection. Defendant also
contends that defense counsel rendered ineffective assistance by failing to object earlier to the
prosecution’s line of questioning. We agree that the trial court abused its discretion in overruling
defense counsel’s objection, but we conclude that defendant is not entitled to relief because the

                                               -12-
error was harmless. We disagree that counsel performed below an objective standard of
reasonableness by failing to object earlier.

       We review decisions whether to admit evidence for an abuse of discretion, and
underlying questions of law, such as whether the evidence is admissible under the Michigan
Rules of Evidence or a statute, de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607
(1999). A trial court abuses its discretion when it admits evidence that is inadmissible as a
matter of law. Id.

        As explained above, relevant evidence is, “ ‘evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.’ ” People v Mills, 450 Mich 61, 66; 537
NW2d 909 (1995), modified 450 Mich 1212 (1995), quoting MRE 401 (emphasis in Mills).
“Evidence which is not relevant is not admissible.” MRE 402. In analyzing a relevance issue, a
reviewing court must first determine whether the evidence is material, then whether it has
“probative force.” Mills, 450 Mich at 67. To be material, a fact must be “ ‘within the range of
litigated matters in controversy.’ ” Mills, 450 Mich at 68, quoting United States v Dunn, 805 F
2d 1275, 1281 (CA 6, 1986). The credibility of a witness is a material fact. Mills, 450 Mich at
69. Testimony has probative force if it tends to make something more or less probable. Id. at
68.

        The prosecution asked KS’s mother whether a divorce was pending, who filed, when, and
why. When the prosecution asked the latter question, defense counsel objected on the ground of
relevance. The prosecution argued that it was relevant because the man being divorced is the
man accused of sexually assaulting the witness’s daughter, and the trial court overruled defense
counsel’s objection. KS’s mother then responded that she filed for divorce because, “[m]y
daughter disclosed to me that [defendant] was sexually abusing her.” This testimony goes to the
credibility of both defendant and KS, which were clearly material. However, one person’s
opinion that another is guilty of the allegations made against him, standing alone, has no
probative value whatsoever, and it is irrelevant for that reason. MRE 402. In addition to lacking
probative value, this testimony violated the prohibition of one witness testifying as to the
credibility of other witnesses. See Musser, 494 Mich at 348-349. Therefore, the trial court
abused its discretion when it denied defense counsel’s relevance objection and admitted
testimony that was inadmissible as a matter of law, both because it was irrelevant and because it
was improper credibility testimony. See Lukity, 460 Mich at 488.

        However, a defendant is not entitled to relief on the ground that evidence was improperly
admitted unless the defendant shows that it is more probable than not that the error was outcome
determinative.’ ” Lyles, 501 Mich at 117-118, quoting Lukity, 460 Mich at 488. In conducting
its analysis, “ ‘the reviewing court should focus on the nature of the error in light of the weight
and strength of the untainted evidence.’ ” Lyles, 501 Mich at 118, quoting People v Elston, 462
Mich 751, 766; 614 NW2d 595 (2000).

        In the present case, the weight and strength of the untainted evidence in this case is
substantial, defendant’s testimony damaged his own credibility, and defense counsel challenged
the motivation of KS’s mother for filing for divorce by suggesting that her filing was an attempt
to increase her chances of retaining her parental rights to KS. For his part, defendant makes no

                                               -13-
argument on appeal that this testimony was outcome determinative, and does not attempt to
support with citations to authority his conclusory statement that it was “highly prejudicial.”
Accordingly, we conclude that defendant has not shown that it is more probable than not that the
error was outcome determinative.

        Defendant’s contention that defense counsel was ineffective because his objection to the
testimony of KS’s mother came one question after it should have is without merit. Counsel’s
failure to object to such relatively innocuous testimony as the fact that KS’s mother filed for
divorce one month after the allegations is not an error substantial enough to be characterized as
falling below “an objective standard of reasonableness under prevailing professional norms.”
Strickland, 466 US at 688. A defendant is entitled to a fair trial, but not a perfect trial, because
there is no such thing. People v Miller, 482 Mich 540, 559; 759 NW2d 850 (2008). Even if it
were possible for any attorney to make every potential objection at a trial, an attorney may not
want to object to something as harmless as this testimony to avoid wasting time, or to avoid
aggravating the jury or the judge. See People v Plummer, 229 Mich App 293, 308; 581 NW2d
753 (1998). Further, defendant fails to show a reasonable probability that the outcome would
have been different had counsel objected one question sooner. In short, defense counsel’s
performance did not deprive defendant of his right to a fair trial. See Dendel, 481 Mich at 125.

                             IV. REASONABLENESS OF SENTENCE

       Next, defendant argues that he is entitled to resentencing because the trial court departed
upward from the mandatory minimum of 25 years without explaining why the additional five
years was reasonable. We agree.

        “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). The standard of review is abuse of discretion. People v Steanhouse, 500 Mich 453, 471;
902 NW2d 327 (2017). A trial court abuses its discretion when it applies a minimum sentence
that violates the principles of proportionality or “by failing to provide adequate reasons for the
extent of the departure sentence imposed.” Id. at 471, 476.

        Pursuant to Lockridge, this Court reviews departure sentences for reasonableness, using
the “principle of proportionality” set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990) and its progeny. Steanhouse, 500 Mich at 460.6 When a minimum sentence exceeds the


6
    Factors that may be considered under the standard of proportionality include:
         (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. [People v Steanhouse, 313 Mich App 1, 46; 880
         NW2d 297 (2015) (internal citations omitted), rev’d in part on other grounds by
         Steanhouse, 500 Mich 453 (2017).]



                                                 -14-
applicable range, sentencing courts must justify the sentence imposed in order to facilitate
appellate review. Id. Otherwise, an appellate court cannot evaluate either the appropriateness of
any departure from the guidelines, or whether the extent of the departure was proportionate to the
circumstances of the crime and the defendant. People v Steanhouse (On Remand), 322 Mich
App 233, 239; 911 NW2d 253 (2017), citing Milbourn, 435 Mich at 659-660. When a trial court
fails to explain the reasons for an upward departure from the minimum sentencing guidelines,
this Court must remand the case so that the trial court may resentence the defendant.
Steanhouse, 500 Mich at 476.

        Here, a jury convicted defendant of three counts of first-degree criminal sexual conduct
against a victim under 13, a Class A felony. The trial court scored the guidelines and concluded
that defendant’s minimum range would have been 135 to 225 months (11.25 to 18.75 years at the
top of the range). However, as the trial court noted, the statute under which defendant was
convicted carries a mandatory minimum of 25 years (6.25 years over the top of the guideline
range) and a maximum of life imprisonment. MCL 750.520b(2)(b). The trial court stated that,
because the guidelines could not possibly apply, the court would start at 25 years and go up from
there. The prosecution requested that the sentences be, if not consecutive, at least 35 years. In
pronouncing sentence, the trial court stated:

              But there is a young victim here who sat through this, who I don’t think
       was looking for attention as I sometimes see. I—I believe she was truthful. I
       know—I believe she was credible.

              And therefore, because of all of that, does [sic] sentence you on all three
       counts, which will run concurrent to each other, of 30 years to 60 years in the
       Michigan Department of Corrections.

This explanation is insufficient. Without further explanation, this Court cannot evaluate either
the appropriateness of the departure from the statutory minimum, or whether the extent of the
departure was proportionate to the circumstances of the crime and the defendant. Steanhouse
(On Remand), 322 Mich App at 239. Therefore, we remand for resentencing. 7 Steanhouse, 500
Mich at 476.




7
  Defendant also argues that Offense Variable (OV) 8 (victim asportation or captivity) should
have been scored at zero because there was no evidence that he ever moved KS to a place or
situation of greater danger, or held her captive “beyond the time necessary to commit the
offense.” MCL 777.38(1)(a). We agree. However, as defendant concedes, he is not entitled to
relief because his offenses were subject to a statutory minimum that far exceeded his minimum
guidelines, even with the erroneous 15 points. Defendant also contends that this counsel
rendered constitutionally ineffective assistance by failing to object to the trial court’s scoring of
OV 8. Because of the 25-year mandatory minimum sentence, counsel’s objection would have
been futile. Failure to make a futile objection does not constitute ineffective assistance. See
McGhee, 268 Mich App at 627.


                                                -15-
                                    V. GINTHER HEARING

       Finally, defendant contends that the trial court abused its discretion by denying his
motion for a Ginther hearing. We disagree. We review a trial court’s decision on whether to
hold an evidentiary hearing for an abuse of discretion. People v Franklin, 500 Mich 92, 100; 894
NW2d 561 (2017). “An abuse of discretion occurs when a trial court’s decision ‘falls outside the
range of reasonable and principled outcomes.’ ” Id., quoting People v Duncan, 494 Mich 713,
723; 835 NW2d 399 (2013).

        Subsequent to a hearing on defendant’s motion for a Ginther hearing, the trial court
found that, “even if defendant [were] able to establish that defense counsel’s conduct at trial fell
below an objective standard of reasonableness, he would not be entitled to relief because he
cannot establish that counsel’s alleged deficient performance at trial prejudiced his defense.”
The trial court further explained that the victim had given detailed testimony about the behavior
related to all three charges, that no corroboration of a victim’s testimony is necessary to support
a conviction for first-degree CSC (citing MCL 750.520h), and that this particular victim’s
testimony alone was sufficient to permit a rational jury to find him guilty of all charges. For
these reasons, the trial court held that further factual development was not necessary in order for
this Court to review the ineffectiveness of counsel issue on appeal.

         We find no error in the trial court’s reasoning. Having examined the record thoroughly in
order to decide this appeal, we found the record sufficient to make a determination on the issue
of trial counsel’s effectiveness.

        Convictions affirmed, sentence vacated, case remanded for resentencing. We do not
retain jurisdiction.



                                                             /s/ Jane M. Beckering
                                                             /s/ Michael J. Kelly




                                               -16-
