                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 3, 2018
               Plaintiff-Appellee,

v                                                                   No. 335327
                                                                    Isabella Circuit Court
MICAH LYNN EVANS,                                                   LC No. 2015-001804-FH

               Defendant-Appellant.


Before: O’CONNELL, P.J., and BECKERING and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of one count each of third-degree
criminal sexual conduct (CSC III), MCL 750.520d(1)(b), assault with intent to commit sexual
penetration, MCL 750.520g(1), and domestic violence third offense, MCL 750.81(4).1
Defendant’s convictions arise out of an August 1, 2014, incident involving defendant’s girlfriend
sparked by a verbal altercation that led to defendant hitting the complainant in the back of the
head, dragging her by her hair into the bathroom of the trailer where he lived, and ultimately
sexually assaulting her. The trial court sentenced defendant as a fourth-habitual offender, MCL
769.12, to concurrent terms of 30 to 50 years for the CSC III conviction, 8 to 50 years for the
assault conviction, and 5 to 50 years for the domestic violence conviction. We affirm.

                             I. RIGHT TO COUNSEL OF CHOICE


        Defendant first argues that the trial court violated both the Michigan and federal
constitutions by depriving him of his right to counsel of his choice, resulting in structural error
and requiring a new trial. Specifically, defendant contends that he was forced to fire his attorney
in order to obtain a necessary adjournment, and that he did not want to fire his chosen attorney.

                                A. STANDARDS OF REVIEW



1
  Defendant was acquitted of one count of interference with an electronic device, MCL
750.540(5)(a).


                                                -1-
        An issue is preserved for appeal when it was raised in the trial court. People v Grant, 445
Mich 535, 546; 520 NW2d 123 (1994). This issue is not preserved because it was not raised in
the trial court. Unpreserved constitutional claims are reviewed for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 773, 597 NW2d 130
(1999).

       To avoid forfeiture of a nonpreserved constitutional error under the plain error
       rule, three requirements must be met: (1) error must have occurred, (2) the error
       was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights.
       The third requirement generally requires a showing of prejudice, i.e., that the error
       affected the outcome of the lower court proceedings. Even if a defendant satisfies
       these three requirements, reversal is warranted only when the plain, forfeited error
       resulted in the conviction of an actually innocent defendant or when an error
       seriously affected the fairness, integrity, or public reputation of judicial
       proceedings. [People v Seals, 285 Mich App 1, 4; 776 NW2d 314 (2009)
       (citations omitted)].

                                          B. ANALYSIS

        In United States v Gonzalez–Lopez, 548 US 140, 146; 126 S Ct 2557; 165 L Ed 2d 409
(2006), the Court stated, “the Sixth Amendment right to counsel of choice . . . commands ... that
the accused be defended by the counsel he believes to be best.” However, this right is not
absolute. People v Krysztopaniec, 170 Mich App 588, 598; 429 NW2d 828 (1988). “We have
recognized a trial court’s wide latitude in balancing the right to counsel of choice against the
needs of fairness, and against the demands of its calendar.” Gonzalez–Lopez, 548 US at 151–
152. “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is denied.” People v
Williams, 386 Mich 565, 575; 194 NW2d 337 (1972) (internal citation and emphasis omitted).

        On April 22, 2016 the parties appeared before the trial court for a settlement conference.
Defendant’s counsel, Dwight Carpenter, discussed the fact that his client was seeking a second
adjournment of the trial date. Carpenter offered two reasons for the request: 1) that he and
defendant were having “some problems,” and 2) that defendant was being released from prison
the day before trial was to begin and needed time to participate in the preparation of his defense.
Carpenter also mentioned that he had told defendant that the grant of a second adjournment with
him as counsel was highly unlikely, and that firing him was a more likely route to obtain the
additional time. Defendant agreed that he was having problems with Carpenter and that it was
his desire to hire a new attorney. In fact, Carpenter had told the trial court three months prior at




                                                -2-
the February 2016 settlement conference, when defendant sought and obtained his first
adjournment, that defendant was contemplating hiring co-counsel or firing him.2

        On appeal, defendant argues that he was forced to fire Carpenter in order to obtain an
adjournment so that he could prepare his defense. Carpenter supports defendant and avers by
affidavit to this Court that he requested an adjournment of the trial date due to a scheduling
conflict, was denied, and that he informed defendant that the only way the trial court would grant
another adjournment was if he fired him and hired new counsel. However, Carpenter’s affidavit
contradicts his statements on the record, as do defendant’s arguments in this appeal.
Furthermore, Carpenter’s statements at the April 22, 2016 hearing appear to waive any prayer for
an adjournment of the trial date with him remaining as counsel. To the extent the trial court
purportedly indicated its intention to deny such a request, had it been presented on the record, we
would not deem that decision to be an abuse of discretion. 3 Defendant has not established plain
error under the circumstances.

    II. ADMISSION OF OTHER ACTS OF DOMESTIC VIOLENCE UNDER MCL 768.27

       Defendant argues that he was denied the effective assistance of counsel due to his trial
counsel’s failure to object to the admission of other acts of domestic violence under MCL
768.27(b) and the trial court’s failure to undertake an MRE 403 balancing analysis.

                                 A. STANDARDS OF REVIEW


        The question whether a defense counsel has performed ineffectively is a mixed question
of law and fact; this Court reviews for clear error the trial court’s findings of fact and de novo
questions of constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136
(2012). “In order to preserve the issue of effective assistance of counsel for appellate review, the
defendant should make a motion in the trial court for a new trial or for an evidentiary hearing.”
People v Sabin, 242 Mich App 656, 658; 620 NW2d 19 (2000). Defendant took neither of these
steps. “Where claims of ineffective assistance of counsel have not been preserved, our review is
limited to errors apparent on the record.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d
342 (2004). To the extent defendant takes issue with the trial court’s decision to admit such
evidence, defendant’s evidentiary challenge is also unpreserved. We review an unpreserved
evidentiary challenge for plain error affecting substantial rights. Carines, 460 Mich at 762-763.

                                         B. ANALYSIS



2
  At the time of his first request for an adjournment, Carpenter requested that trial be adjourned
and scheduled to occur after May 4, 2016. The trial court granted defendant’s request and
rescheduled the trial to take place on May 5, 2016.
3
  Had defendant properly preserved the issue, this Court would review the trial court’s decision
to deny an adjournment for an abuse of discretion. People v Snider, 239 Mich App 393, 421;
608 NW2d 502 (2000).


                                                -3-
        To establish a claim of ineffective assistance, the defendant must show that “(1) counsel's
performance was below an objective standard of reasonableness under professional norms and
(2) there is a reasonable probability that, if not for counsel’s errors, the result would have been
different and the result that did occur was fundamentally unfair or unreliable.” People v Odom,
276 Mich App 407, 415; 740 NW2d 557 (2007). Counsel is presumed to be effective and this
Court will not assess counsel’s performance with the benefit of hindsight. People v Rockey, 237
Mich App 74, 76-77; 601 NW2d 887 (1999). The defendant must also “overcome a strong
presumption that counsel’s performance constituted sound trial strategy.” People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich
App 192, 201; 793 NW2d 120 (2010).

         MCL 768.27b provides that “in 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(1). Under MCL 768.27b, an
individual commits domestic violence when he or she causes physical harm to another
“individual with whom the person has or has had a dating relationship.” MCL 768.27b(5)(a)(i)
and (5)(b)(iv). Under the statute, evidence of prior domestic violence is admissible at trial “to
show a defendant’s character or propensity to commit the same act,” People v Railer, 288 Mich
App 213, 219-220; 792 NW2d 776 (2010), “as long as the evidence satisfies the ‘more probative
than prejudicial’ balancing test of MRE 403[.]” People v Cameron, 291 Mich App 599, 610;
806 NW2d 371 (2011). MRE 403 provides that “[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 is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.” People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).

        At trial, plaintiff introduced evidence of defendant’s 2008, 2011 and 2012 prior
convictions for domestic violence. Defendant’s position at trial was that the incidents alleged by
the complainant simply did not happen. The prior convictions were for acts not substantially
dissimilar to the conduct alleged in this case. Per the complainant’s testimony, in 2011,
defendant threw a glass of water in her face, dragged her by her hair, and shot a gun into the air,
feigning suicide, after he saw the complainant’s ex-husband at her work. In 2012, after a verbal
altercation, he repeatedly spit on the complainant’s face and wrestled her to the ground. In the
instant offense, he dragged the complainant by her hair and sexually assaulted her in the
bathroom while her daughter was outside the bathroom. Defendant argues that his trial counsel
was ineffective for not objecting to the plaintiff’s notice of intent to introduce this information
and to the complainant’s testimony regarding other acts of domestic violence. We disagree.
These objections would have been meritless under MCL 768.27b.

       Under the statute, in a prosecution for domestic violence, the plaintiff could introduce the
prior acts for any relevant purpose. In this case, the other acts were probative to show
defendant’s characteristic scheme to argue with the complainant, physically assault her, restrict
her movement, and later try to normalize his pattern of behavior by equating it to some toxic yet
passionate relationship they shared. Even if counsel had objected and the evidence been

                                                -4-
evaluated under MRE 403, the court would not have found that defendant was prejudiced. The
other acts were highly probative of defendant’s propensity to engage in assaultive behavior,
specifically with this complainant. The evidence was also not unfairly prejudicial because the
prior two acts were not of the same magnitude of violence as the instant offenses for which
defendant was charged and, they fairly represented the complainant also arguing with and
assaulting defendant, and violating no contact orders. Any prejudice was further minimized by
the court’s reading of M Crim JI 4.11 to the jury that limited the purposes for which the evidence
could be used. People v Roper, 286 Mich App 77, 106; 777 NW2d 483 (2009). Defendant lastly
cannot demonstrate that there is a reasonable probability that the outcome of the proceedings
would have been different because the jury still had to consider the complainant’s testimony and
defendant’s text and Facebook messages to the complainant that appeared to agree with the
complainant’s accusations against him.

        Defendant additionally argues in his Standard 4 brief pursuant to Administrative Order
2004–6, Standard 4, that trial counsel was ineffective for failing to request additional discovery
of the prior acts. We disagree. The notice described the prior convictions that by their nature
were matters of public record. Further, there is no evidence in the record that defense counsel
did not conduct an independent investigation of the other acts or that his decisions regarding
cross-examination regarding those acts was not a matter of trial strategy.

                             III. EXPERT WITNESS TESTIMONY


         Defendant argues that the trial court erred in allowing Holly Rosen to testify as an expert
without first assessing the admissibility of her testimony under MRE 702 and MRE 703, and that
the plaintiff failed to comply with discovery requirements under MCR 6.201. He further argues
that trial counsel was ineffective for not: 1) pursuing disclosure of Rosen’s curriculum vitae and
summary of proposed testimony before trial; 2) conducting voir dire of Rosen to test her
qualifications as an expert under MRE 702 and 703; and 3) objecting to her testimony as being
beyond the scope of her expertise and qualifications. In his Standard 4 brief, defendant
additionally argues that counsel was ineffective for failing to conduct a reasonable investigation
or consult with other experts in the areas of Rosen’s expertise. Defendant argues in both his
principle and Standard 4 brief that defense counsel vouched for Rosen’s credibility.

                                 A. STANDARDS OF REVIEW


        Defendant did not object to plaintiff’s production of Rosen as a witness or its failure to
comply with MRE 6.201 in the trial court. Thus, we review defendant’s unpreserved evidentiary
challenges for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 762-763.
With respect to defendant’s claims of ineffective assistance of counsel, as noted above, we
review for clear error the trial court’s findings of fact and de novo questions of constitutional
law. Trakhtenberg, 493 Mich at 47. And because defendant did not make a motion in the trial
court for a new trial or for an evidentiary hearing, our review is limited to errors apparent on the
record. Matuszak, 263 Mich at 48.

                                         B. ANALYSIS

                                                -5-
        The admission of expert testimony is governed by MRE 702 and MRE 703. Under MRE
702, a witness may be qualified as an expert by knowledge, skill, experience, training, or
education. The testimony of expert witnesses is permitted under the rule when “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact act issue.” MRE 702. “[T]he court may admit evidence only once it
ensures, pursuant to MRE 702, that expert testimony meets that rule’s standard of reliability.”
Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). This standard
requires the testimony to be based on sufficient facts or data, be “the product of reliable
principles and methods,” and for the witness to have applied the principles and methods reliably
to the facts of the case. MRE 702. “This gatekeeper role applies to all stages of expert analysis.
MRE 702 mandates a searching inquiry, not just of the data underlying expert testimony, but also
of the manner in which the expert interprets and extrapolates from those data.” Id. “The facts or
data in the particular case upon which an expert bases an opinion or inference shall be in
evidence,” or at the court’s discretion, “admitted in evidence thereafter.” MRE 703. “[T]he
reference to facts or data ‘in the particular case’ limits the type of evidence that must be
admitted into evidence to facts or data that are particular to that case. That is, the fact or datum
must be specific to the case.” People v Yost, 278 Mich App 341, 390; 749 NW2d 753 (2008).

        “[W]hether expert testimony is beyond the ken of common knowledge is a common
sense inquiry that focuses on whether the proposed expert testimony is on a matter that would be
commonly understood by the average person.” People v Kowalski, 492 Mich 106, 123; 821
NW2d 14 (2012). Expert testimony may allow the jury to “intelligently evaluate” a foreign
experience in cases where “certain groups of people are known to exhibit types of behavior that
are contrary to common sense and are not within the average person’s understanding of human
behavior.” Id. at 124. For example, expert testimony can be used to help the jury understand the
behavior of a child who has been the victim of sexual abuse, or the actions of
a domestic violence victim. Id.; People v Peterson, 450 Mich 349, 375–377; 537 NW2d 857
(1995); People v Christel, 449 Mich 578, 591–596; 537 NW2d 194 (1995). In Christel, 449
Mich at 592, our Supreme Court stated that expert testimony may be needed to explain why “a
complainant endures prolonged toleration of physical abuse and then attempts to hide or
minimize the effect of the abuse, delays reporting the abuse to authorities or friends, or denies or
recants the claim of abuse.” The Supreme Court held that such expert testimony is only
admissible when “it is relevant and helpful to the jury in evaluating a complainant’s credibility
and the expert witness is properly qualified.” Id. at 580. Even then, an expert “may not opine
whether the complainant is a battered woman, may not testify that defendant was a batterer or
guilty of the instant charge, and may not comment on the complainant’s truthfulness.” Id. at 580.


        In the instant case, review of the record reveals that Rosen was clearly qualified to testify
regarding the areas of non-intuitive victim responses, perpetrator tactics, and the serial nature of
domestic violence. Much of her testimony was germane to provide context to various aspects of
relationships involving domestic violence and how some victims of such violence may continue
to return to the relationship even after violent events. As defendant contends, however, some of
her testimony went beyond that which would be relevant to the jury in evaluating the
complainant’s credibility in the instant case. Defense counsel should have objected to the
irrelevant testimony, and we can find no strategic reason for counsel’s failure to lodge
objections. However, reversal is not warranted unless we determine the error was outcome

                                                -6-
determinative, and we do not. This was a credibility match where the complainant and defendant
provided opposite accounts of what occurred and both had supporting witnesses. However, the
jury was also presented with defendant’s Facebook and text messages with the complainant
where the complainant accused defendant of having sexually assaulted her and defendant did not
deny the accusation. In light of the strength of other evidence against the defendant, we find it
improbable that defendant’s trial outcome would have been different.

        Defendant also argues that Rosen’s testimony regarding statistics and studies did not pass
the test of MRE 702. Under MRE 702, testimony must be based on sufficient facts or data and
the product of reliable principles and methods when the witness is applying them to the facts of
the case. Upon review of the record, we conclude that Rosen’s testimony met the admissibility
requirements of MRE 702. And despite a brief statement regarding the rarity of victims
fabricating abuse, Rosen did not opine that defendant was a batterer or a liar or offer any opinion
about the complainant’s truthfulness or whether the charged offenses occurred. See Christel,
449 Mich at 580.

        Defendant next claims his trial counsel was ineffective for not pursuing discovery and for
failing to attack Rosen’s testimony at trial on various bases.4 Defendant contends that on
October 9, 2015, Carpenter filed a request for discovery pursuant to MCR 6.201 MCR
6.201(A)(3) mandates that a party provide upon request “the curriculum vitae of an expert the
party may call at trial and either a report by the expert or a written description of the substance of
the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that
opinion.” There is no evidence in the record that plaintiff produced Rosen’s curriculum vitae or
a written description of the substance of her proposed testimony prior to trial. Defendant
contends that his trial counsel was ineffective for failing to raise the matter before the trial court.
He claims this error was outcome determinative because had counsel objected, “Rosen would not
have testified or she would have been limited in the scope of her testimony.” MCR 6.201
however, does not mandate exclusion of an expert’s testimony as a remedy for the discovery
violation. MCR 6.201(J).5 Further, given our determination that her testimony that went beyond
the relevant scope of this case was not outcome determinative, defendant’s attendant ineffective
assistance claim also fails.



4
  As noted above, in order to establish a claim of ineffective assistance, the defendant must show
that “(1) counsel’s performance was below an objective standard of reasonableness under
professional norms and (2) there is a reasonable probability that, if not for counsel’s errors, the
result would have been different and the result that did occur was fundamentally unfair or
unreliable.” Odom, 276 Mich App at 407.


5
 Under MCR 6.201(J), the court, in its discretion, may choose to “order the party to provide the
discovery or permit the inspection of materials not previously disclosed, grant a continuance,
prohibit the party from introducing in evidence the material not disclosed, or enter such other
order as it deems just under the circumstances.”


                                                 -7-
        Defendant also argues that trial counsel was ineffective for failing to conduct voir dire of
Rosen to test her qualifications as an expert under MRE 702 and 703. We disagree. Decisions
whether to question a witness are presumed to be matters of trial strategy that we will not
second-guess with the benefit of hindsight. People v Dixon, 263 Mich App 393, 398; 688 NW2d
308 (2004). It appears that counsel strategically chose not to illuminate Rosen’s qualifications
by voir dire, but rather used his cross-examination to promote defendant’s theory of the case,
instead. He questioned Rosen about false reports of domestic violence and reasons for
fabrication, such as revenge. He also highlighted through her testimony that domestic violence
relationships often involve mutual abuse and levels of dysfunctionality, and actions of
immaturity by both parties.

        Defendant also argues in his Standard 4 brief that his trial counsel failed to conduct a
reasonable investigation of Rosen’s areas of expertise by not consulting with other experts in the
same fields. We disagree. Defendant states that he made this request at trial during Rosen’s
testimony. He stated that defense counsel told him, “I don’t think it would be helpful.” Defense
counsel’s statement indicates that he considered and rejected that strategy for defendant’s case.
“[C]ounsel’s failure to call a particular witness is presumed to be trial strategy.” People v Avant,
235 Mich App 499, 508; 597 NW2d 864 (1999). “[T]he defendant must show that his counsel’s
failure to call these witnesses deprived him of a substantial defense that would have affected the
outcome of the proceeding.” People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994).
Again, Rosen’s testimony was largely inapplicable to prove any fact in dispute and counsel
advanced defendant’s theory of the case otherwise by cross-examination.

        Defendant additionally argues that defense counsel vouched for Rosen’s credibility when
he told Rosen during cross-examination, “you’re educating me, thank you.” We disagree. It was
an isolated statement6, and the jury was instructed that the lawyer’s statements were not evidence
and the jury is presumed to follow the instructions given it by the court. People v Torres (On
Remand), 222 Mich App 411, 423; 564 NW2d 149 (1997).

                                       IV. SENTENCING



              Defendant contends that the trial court’s imposition of 30 years as a
minimum sentence for his CSC III conviction was an unreasonable and disproportionate
departure from the recommended guideline range.


                                 A. STANDARD OF REVIEW

       “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,


6
  We are unable to glean from the record whether defense counsel’s remark was genuine or
sarcastic.


                                                -8-
cert den sub nom Michigan v Lockridge, 136 S Ct 590; 193 L Ed 2d 487 (2015) (internal citation
omitted). “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017) (Steanhouse II). “[A] given sentence can be said to constitute an abuse of
discretion if that sentence violates the principle of proportionality, which requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
“Resentencing will be required when a sentence is determined to be unreasonable,” Lockridge,
498 Mich at 392, and the trial court “fail[s] to provide adequate reasons for the extent of the
departure sentence imposed. . . ,” Steanhouse II, 500 Mich at 477; People v Steanhouse (On
Remand), ___ Mich App ___; ___ NW2d ___ (2017); slip op. at 2.

                                        B. ANALYSIS

       In Steanhouse I, this Court considered the following non-exhaustive list of factors as
relevant in reviewing whether a sentence was proportionate:

        (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) (Steanhouse I) (internal citations omitted), rev’d in part on
       other grounds by Steanhouse II, 500 Mich 453; 902 NW2d 327 (2017)].

         Defendant’s sentencing guidelines with the fourth habitual enhancement were 117 to 320
months for the CSC III conviction, 43 to 152 months for the assault with intent to commit sexual
penetration conviction, and 24 to 76 months for his third offense of domestic violence. The court
sentenced defendant to 307 to 50 years for the CSC III conviction, 8 to 50 years for the assault
conviction, and 5 to 50 years for the domestic violence conviction. It provided several reasons
for its upward departure from the guidelines, including defendant’s criminal history, defendant’s
escalation in violence with this complainant, and the fact that defendant assaulted the
complainant in front of her daughter. Defendant contends he was doubly penalized because
these factors were already accounted for in the advisory guidelines range. He specifically argues
that his criminal history and the “escalation of violence” the court referred to were already
factored in with defendant’s habitual offender fourth offense increase and prior record variables
calculation. We disagree.

       The court noted that defendant’s behavior and characteristics exceeded that which was
accounted for under the offense variables scoring. Indeed, defendant exceeded the highest prior
record variable scoring by fifteen points and more than doubled the offense variable scoring of
the highest offense level cell grid. Under Steanhouse I, the court was able to take into account


7
  A sentence of 320 months translates to 26.66 years. Thus, the trial court departed from the
highest end of the minimum guidelines range by 40 months, or 3.33 years.


                                               -9-
the seriousness of the offense, the relationship between the victim and the aggressor, and the
defendant’s ability to be rehabilitated in determining a sentence proportionate to the seriousness
of the crime. 313 Mich App at 46. The evidence at trial supported that over time defendant’s
actions escalated from throwing a glass of water at the complainant’s face, spitting on her, and
dragging her by her hair, to physically and sexually assaulting her with others present. The
court’s concern about defendant’s continuation of violence in relation to his rehabilitative
potential was justified given that defendant’s last two assaults were committed in violation of
specific probation and parole conditions not to have any contact with the complainant, and the
instant offenses were more violating than the two previous.

         Under Steanhouse I, the court may also consider factors that are not otherwise adequately
covered by the guidelines to increase a defendant’s sentence. Id. The court did not abuse its
discretion in considering that defendant assaulted the complainant while her five-year-old
daughter was present. The trailer where the assaults took place was small and the complainant
testified that she screamed for her daughter to help her, and that her daughter heard her and
started coming to the bathroom where her mother was being assaulted until the defendant yelled
at her to go back in the bedroom. The complainant also testified that after defendant released her
from the bathroom the first time, the child was crying hysterically, and that while she tried to
console the child, defendant pulled her away by the hair and dragged her back into the bathroom.
Offense variable nine, which takes into consideration the number of victims, does not account for
these circumstances.8

       The court’s reasons for its departure sentence were adequate and considered the factors
enumerated by this Court in Steanhouse I. Given “the seriousness of the circumstances
surrounding the offense and the offender,” we find the court’s sentence was proportionate.
Milbourn, 435 Mich at 636.

                          V. OTHER STANDARD 4 BRIEF ISSUES

       Defendant presents the following additional arguments in an in pro per brief filed
pursuant to Administrative Order No. 2004–6, Standard 4.

                             A. ADMISSIBILITY OF EVIDENCE

        “This Court reviews a trial court’s decision regarding the admissibility of evidence for an
abuse of discretion. An abuse of discretion occurs when an unprejudiced person, considering the
facts on which the court acted, would conclude that there was no justification or excuse for the
court’s ruling.” People v Taylor, 252 Mich App 519, 521; 652 NW2d 526 (2002) (internal
citation omitted).

       Defendant argues the court abused its discretion in denying him the opportunity to
present evidence that the complainant had allegedly sexually molested his son. He contends the


8
  Under offense variable nine, a victim is one “who was placed in danger of physical injury or
loss of life or property[.]” MCL 777.39(2)(a).


                                               -10-
evidence was relevant to show the complainant’s motive to fabricate the charges against him and
to attack her credibility.

        “ ‘Relevant evidence’ means 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.” MRE 401. Here, whether the complainant molested
defendant’s son was not relevant to determining whether defendant had sexually assaulted the
complainant. The evidence would have been collateral to any fact in question and had no
probative value to the issues in this case. Additionally, the introduction of such evidence would
have been confusing to the jury when it was not called upon to decide the complainant’s
purported sexual molestation of defendant’s son. Exclusion of the evidence based on relevancy
was a reasonable and principled outcome.

        The evidence would also not have been admissible to prove the complainant’s motive to
fabricate the charges against defendant. The complainant reported being sexually assaulted by
defendant on August 1, 2014. The Children’s Protective Services’ investigation and assessment
of defendant’s son took place over one year later in December 2015. The investigation and
assessment, having occurred after the assault at issue, could not have been a motivating factor for
the complainant to fabricate charges of the assault. Even if we were to assume that the
complainant’s alleged sexual abuse of defendant’s son predated defendant’s assault on the
complainant, defendant fails to explain why anything the complainant may have done to
defendant’s son was a motivating factor for the complainant to fabricate the charges against
defendant. There was no indication that the complainant wanted defendant incarcerated so she
could continue the purported sexual abuse, or that she was in fear of prosecution at the time.9

                       B. PRESENTENCE INVESTIGATION REPORT

       Defendant contends that he was denied the opportunity to review and refute information
contained in the presentence investigation report (PSIR).10 Defendant acknowledges that neither
he nor his counsel objected to the information in the PSIR at sentencing. In fact, defendant
concedes that his counsel represented to the court that they—being defendant and his counsel—


9
  In addition to it being irrelevant, defendant’s desire to admit such evidence could easily have
backfired and led jurors to conclude that defendant had coaxed his son into making false
allegations of sexual abuse against the complainant in order to impugn her credibility or exact
revenge on her for accusing him of the charged offenses.
10
   Under MCR 6.425(E)(1)(a), a sentencing court is required to determine on the record whether
the defendant, the defendant’s lawyer, and the prosecutor have had an opportunity to read and
discuss the presentence report. The court is also required to give each party an opportunity to
challenge the accuracy of the information in the report and “to advise the court of any
circumstances they believe the court should consider in imposing sentence[.]” MCR
6.425(E)(1)(b)-(c). The trial court complied with these requirements. Defendant argues that his
attorney denied him the opportunity to review the PSIR before sentencing and misrepresented at
sentencing that he had reviewed it and had no objections to its contents.


                                               -11-
had in fact reviewed the PSIR and had no objections or corrections to the factual content. “To
preserve an issue regarding the accuracy of the [PSIR] for appeal, the defendant must object to
the error at the time of sentencing.” People v McCrady, 244 Mich App 27, 32; 624 NW2d 761
(2000). To the extent this issue is not waived, our review is for plain error affecting defendant’s
substantial rights. Id.

         On appeal, defendant challenges the accuracy of the statement in the PSIR indicating that
the Michigan State Police found the allegations of complainant having molested defendant’s son
to be baseless. Defendant contends that because he attempted to introduce evidence of the
complainant’s alleged molestation of his son at trial, had he had a chance to read the PSIR,
through his counsel he could have produced evidence supporting the sexual assault allegations.
Defendant now argues that because the court sentenced him based on inaccurate information, he
is entitled to resentencing. Resentencing however, is not required because defendant has not
shown that he was prejudiced by the challenged statement in the PSIR. Neither is a Ginther11
hearing necessary under these circumstances, as defendant requests. At trial, the court found
irrelevant any allegations of abuse by complainant upon defendant’s son, and there is no
evidence that it played any role in the trial court’s sentencing decisions. Furthermore, defendant
is not alleging that the statement reporting the results of the Michigan State Police investigation
are inaccurate; his only contention is essentially that the Michigan State Police were wrong. But
the PSIR does not weigh in on the substance of the sexual assault allegations; it simply conveys
the results of the police investigation. Thus, its presence in the PSIR did not deprive defendant
of any substantial right.

                                        C. SPEEDY TRIAL

         Defendant claims that he was denied his right to a speedy trial.

         The determination whether a defendant was denied a speedy trial is a mixed
         question of fact and law. The factual findings are reviewed for clear error, while
         the constitutional issue is a question of law subject to review de novo. In
         addition, this Court must determine whether any error was harmless beyond a
         reasonable doubt. Violation of the constitutional right to a speedy trial requires
         dismissal of the charge with prejudice. [People v Waclawski, 286 Mich App 634,
         664-665; 780 NW2d 321 (2009) (citations omitted)].

     The right to a speedy trial is guaranteed by the United States and Michigan Constitutions.
US Const Am VI; Const 1963 art 1, § 20. See also MCL 768.1 and MCR 6.004(A). 12 We


11
     People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
12
   Defendant also refers to the “180-clock,” and appears to conflate the concepts of a right to a
speedy trial and the 180-day rule, which is set forth in MCL 780.131 and MCR 6.004(D)(1).
The 180-day rule is not applicable in this instance because defendant has not established that
“the department of corrections cause[d] to be delivered to the prosecuting attorney of the county
in which the warrant, indictment, information, or complaint [wa]s pending written notice of the
place of imprisonment of the inmate and a request for final disposition of the warrant,


                                                -12-
consider four factors when evaluating whether a defendant was deprived his right to a speedy
trial:

         (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of
         the right, and (4) the prejudice to the defendant. Following a delay of eighteen
         months or more, prejudice is presumed, and the burden shifts to the prosecution to
         show that there was no injury. Following a delay of eighteen months or more,
         prejudice is presumed, and the burden shifts to the prosecution to show that there
         was no injury.[13] [People v Williams, 475 Mich 245, 261-262; 716 NW2d 208
         (2006) (internal citation omitted)].

        In the instant case, a warrant for defendant’s arrest was authorized on August 12, 2015.
At that time, defendant was incarcerated in the Michigan Department of Corrections for violating
the terms of his parole not to have contact with the complainant. He was bound over on October
21, 2015. Initially, defendant waived his right to a preliminary examination.14 Several delays
appear to be attributable to reasonable motions brought by defense counsel to disqualify the
entire Isabella trial bench because defendant was the step-brother to the court’s security officer,
and because a remand was granted to defendant for a preliminary examination.15 At the
February 19, 2006 settlement conference, defendant sought to adjourn the scheduled trial date
and waived his right to a speedy trial.16 On April 22, 2016, at a settlement conference, defendant
sought and received another adjournment because he wished to hire a new attorney and prepare
further. His new attorney appeared on July 8, 2016 and filed motions in limine on August 30,
2016. Defendant’s trial commenced on September 1, 2016.



indictment, information, or complaint.” Id. Defendant cites People v Freeman, 122 Mich App
260; 332 NW2d 460 (1982), for the proposition that the 180-day rule begins to run with the
defendant’s incarceration or detention when there is an outstanding warrant or complaint pending
and the prosecutor knows or should know that the defendant is incarcerated. But Freeman relies
on People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978), which was overruled by
People v Williams, 475 Mich 245, 261-262; 716 NW2d 208 (2006).
13
  Defendant is not entitled to a presumption of prejudice because the delay was less than 18
months.
14
     Defendant waived his first preliminary examination on October 21, 2015.
15
   The case was remanded for a preliminary examination on December 4, 2015. The record does
not contain any motion by the defendant to remand the case in December for a preliminary
examination, however, this remand order was entered on the date of a scheduled pre-trial
conference and it is reasonable to infer the remand was pursuant to defense counsel’s request.
16
   Defendant later asserted his right to a speedy trial in the trial court and the court reminded
defendant of his earlier waiver on the record. “Waiver is the intentional relinquishment or
abandonment of a known right or privilege.” People v Williams, 475 Mich 245, 260; 716 NW2d
208 (2006).



                                                -13-
        We conclude that most of the delays between defendant’s arrest and his trial were
attributable to defendant, and they were related to his need to prepare to meet the evidence
presented against him before an impartial judge. Further, defendant waived, rather than asserted,
his right to a speedy trial in February, 2016 when seeking an adjournment. Finally, defendant
fails to demonstrate that he was prejudiced by the delay. The right to a speedy trial protects
“three interests of the defendant: (1) prevention of oppressive pretrial incarceration; (2)
minimization of anxiety and concern of the accused; (3) limitation of the possibility that the
defense will be impaired.” People v White, 54 Mich App 342, 351; 220 NW2d 789 (1974).
Defendant did not suffer oppressive pretrial incarceration or undue anxiety and concern from the
delay because he was already incarcerated for violating the terms of his parole not to have any
contact with the complainant. Further, “anxiety, alone, is insufficient to establish a violation of
defendant’s right to a speedy trial.” People v Gilmore, 222 Mich App 442, 462; 564 NW2d 158
(1997). “In considering the prejudice to the defendant, the most serious inquiry is whether the
delay has impaired the defendant’s defense.” People v Simpson, 207 Mich App 560, 564; 526
NW2d 33 (1994). Defendant states his defense was impaired, but fails to explain his assertion.
Further, the record belies this contention when defendant requested and was granted an
adjournment of the trial in April 2016 for the specific purpose of being able to fully prepare his
defense. Accordingly, balancing the four relevant factors shows that defendant was not denied
his right to a speedy trial.

       Affirmed.

                                                            /s/ Peter D. O'Connell
                                                            /s/ Jane M. Beckering
                                                            /s/ Cynthia Diane Stephens




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