                           STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       October 21, 2014
               Plaintiff-Appellee,

v                                                                      No. 315291
                                                                       Chippewa Circuit Court
RANDY LANCE BRAUN,                                                     LC No. 11-000680-FC

               Defendant-Appellant.


Before: MURPHY, C.J., and SAWYER and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right from his conviction following a jury trial of nine counts of
first-degree criminal sexual conduct (CSC I), seven for violating MCL 750.520b(1)(a) (victim
under age 13) and two for violating MCL 750.520b(1)(b) (victim between age 13 and age 16
with attendant circumstances). The court sentenced defendant on all nine counts to concurrent
prison terms of 25 to 75 years. He was also required to register as a sex offender. We affirm.

       The victims in this case were defendant’s stepdaughters, EC, EJ, and LS. At trial, the
victims testified that defendant regularly molested them up until they entered puberty and that
the sexual assaults often involved vaginal penetration.

                                  I. EVIDENTIARY DECISIONS

       Defendant first argues that the court made several erroneous evidentiary decisions that
prejudiced his legal rights and deprived him of due process.1 The court’s decision to admit or
exclude evidence during a trial is reviewed for an abuse of discretion, which occurs when the
decision is outside the range of principled outcomes. People v Malone, 287 Mich App 648, 661;
792 NW2d 7 (2010). Similarly, the court’s decision on discovery matters in criminal cases is
reviewed for an abuse of discretion. MCR 6.201(J). An “error in the admission or exclusion of
evidence . . . is not [a] ground for granting a new trial, for setting aside a verdict, or for vacating,


1
  Defendant has characterized his evidentiary challenges as due process violations. But
“[m]erely framing an issue as constitutional does not make it so.” People v Blackmon, 280 Mich
App 253, 261; 761 NW2d 172 (2008).


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modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears
to the court inconsistent with substantial justice.” MCR 2.613(A).

       All relevant evidence is admissible unless otherwise restricted by law. MRE 402.
Evidence is relevant if it has “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. Even if the evidence is relevant and not otherwise excluded,
it “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.” MRE 403.

                A. VICTIM LETTERS AND ACHIEVEMENT DOCUMENTS

        Defendant first contends that letters sent to him from the victims were admissible because
they undermined their credibility by establishing that they had a close and loving relationship
with defendant. The court excluded these letters because they were mostly irrelevant and would
have been a waste of time, but allowed defendant to cross-examine the victims about them. It
also permitted defendant to use the letters to impeach the witnesses if they denied their existence.

         Parties may offer opinion or reputation evidence in order to attack or support a witness’s
credibility. MRE 608(a). MRE 608(b) allows parties to inquire during cross-examination into
specific instances of conduct to attack a witness’s credibility, and MRE 608(a)(2) and MRE
405(a) allow parties to present character or reputation evidence to bolster the party’s own
witness, provided that the other party previously impeached the witness. Further, prior
inconsistent statements of a witness may be proved by extrinsic evidence if the witness “is
afforded an opportunity to explain or deny” the evidence and “the opposite party is afforded an
opportunity to interrogate the witness thereon.” MRE 613(b); see People v Jenkins, 450 Mich
249, 256-257; 537 NW2d 828 (1995). Once impeached by a prior inconsistent statement, a party
can rehabilitate the witness with extrinsic evidence of prior consistent statements. People v
Jones, 240 Mich App 704, 706-708; 613 NW2d 411 (2000); see People v Edwards, 139 Mich
App 711, 715-716; 362 NW2d 775 (1984) (noting that the adoption of the Michigan Rules of
Evidence did not abrogate the common law right allowing the use of prior consistent statements
to rehabilitate a witness after being impeached by the opposite party). Although prior consistent
statements generally qualify as inadmissible hearsay, MRE 802, MRE 801(d)(1)(B) excludes
from hearsay such statements that are consistent with the declarant’s testimony in the current
trial, thus affording the adverse party an opportunity for cross-examination, if it is “offered to
rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive.” The prior consistent statement must have been made before the supposed
fabrication, improper influence, or motive arose. Jones, 240 Mich App at 711.

         Because these letters undermined the victims’ credibility and were inconsistent with their
trial testimony, this evidence was relevant to the defense. However, MRE 608(b) only allows
defendant to inquire about specific acts that may undermine the witnesses’ credibility. And
because the witnesses admitted the existence of the letters, MRE 613(b) does not allow the
introduction of the letters. Moreover, it appears that the court’s ruling was reasonably based on a
desire to avoid confusing the jury by presenting a large number of letters, and a concern about
wasting the court’s time with substantially cumulative evidence. Moreover, the court afforded

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defendant the opportunity to present the substance of this evidence by allowing defendant to
cross-examine the witnesses about the evidence. Because MRE 403 allows courts the discretion
to exclude evidence that will confuse the jury or waste time, the court’s decision was not an
abuse of discretion.

                                B. EXCLUDED TESTIMONY

        Defendant also argues that the court abused its discretion in excluding documentary proof
of his military service and his academic accomplishments. The court indicated that defendant
would be permitted to testify to his accomplishments if he wanted to take the witness stand. It
also indicated defendant would be permitted to introduce the documents in the event a witness
challenged his military or academic records. But defendant chose not to testify at trial, and no
witness challenged defendant’s military or academic achievements. Had the court admitted this
evidence, it would have impermissibly allowed defendant to bolster his credibility with extrinsic
evidence even though plaintiff did not first impeach defendant regarding his credentials. MRE
608(b). The court’s exclusion of this documentary evidence was in keeping with the rules of
evidence, and thus not an abuse of discretion.

       Defendant further claims that the court erred in preventing him from inquiring during
cross-examination about a head wound EJ sustained when she was shot by a pellet gun.
Defendant intended to show that the head wound may have changed her behavior and
undermined her reliability and credibility as a witness. The court prevented defendant from
making this inquiry on the basis that he had not laid the foundation for such questioning. The
court noted defendant would need expert witness testimony to establish whether EJ in fact
received injuries from the shooting and if so, whether the injuries impaired her mental faculties.

        Lay witnesses, or non-expert witnesses, may only offer opinions or inferences that 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.” MRE 701. Opinions that are not
based on this criteria must be offered through expert witnesses, and witnesses must first be
qualified as an expert before they can offer such opinions. MRE 702; MRE 703.

        Although the court erred to the extent that it excluded evidence based on lack of
foundation, the decision not to allow defendant to inquire about EJ’s head wound was proper.
Defendant had the right to impeach EJ during cross-examination, but his right to inquire into this
specific instance of extrinsic evidence was subject to the court’s discretion. MRE 607; MRE
608(b). The court appeared to be concerned that this inquiry could mislead the jury without
accompanying expert testimony to show the impact of the injury. This type of evidence is
medical in nature, and therefore “scientific, technical, or other specialized knowledge” is needed
to evaluate the impact of the purported injury on EJ’s mental faculties. MRE 702. Defendant
offered no expert testimony that could have assisted the jury in deciding whether any head
wound inflicted on EJ actually impaired her decision-making and character for truthfulness.
Thus, the court did not abuse its discretion in excluding this evidence.

        Defendant further claims that the court erred in preventing him from asking RM, an older
sister of the victims, her opinion on whether the physical dimensions of the home in which they
lived prevented defendant from having the opportunity to molest the victims on a daily basis.

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During the motion hearing, the parties stipulated to admission of the photographs showing the
home conditions where the sexual assaults allegedly occurred, so the jury was able to view
photographic evidence of the locations.

       The court sustained plaintiff’s objection on the ground that it was speculative. Because
speculative evidence is inadmissible under MRE 403, Phillips v Deihm, 213 Mich App 389, 401-
402; 541 NW2d 566 (1995), the court did not abuse its discretion in excluding this evidence.
Defendant asked the witness to offer her opinion about the potential effect of the home
conditions on defendant’s capacity to abuse the victims. This is a hypothetical inquiry based on
conjecture. And defendant did not establish any foundation allowing the court to determine if
such an opinion was rationally predicated on RM’s perception, MRE 701, as it is unclear how the
witness possessed sufficient knowledge of room dimensions to offer an opinion. If that
conclusion required specialized knowledge, then she would first have to be qualified as an expert
witness. This did not happen. Accordingly, the court’s decision was not an abuse of discretion.

                           C. PRIOR CONSISTENT STATEMENTS

        Defendant next challenges three particular instances where the court allowed plaintiff’s
witnesses to offer prior consistent statements of the victims to bolster their credibility. The
victims testified at trial that defendant had vaginally penetrated them before they hit puberty, that
they made a police report of the abuse in 1997, that they recanted in order to preserve their
family, and that defendant had attempted to conceal the abuse by encouraging EC to commit
suicide and threatening to kill her, and by kicking EJ out of the home, threatening to kill her, and
telling her that she was retarded, was a liar, and was an agent of Satan. Later in the trial, a
witness testified that LS told him in 1997 that defendant molested her, and later told him to
forget about it because she did not want to break up their family. A different witness testified
that EC, her childhood best friend, told her that defendant molested her, LS, and EJ, and that he
used to watch EC shower. This witness also said that she was the one who recommended to EC
to contact the police, implying that the victim’s statement to the witness predated the police
report in which the victims later denied the allegations. A third witness testified that EC or EJ
told her many years ago that defendant was sexually abusing one of them. She also said that the
victims sought her advice on how to respond to the sexual abuse, also implying that the
statement predated their later report to the police.

        Defendant contends that the testimony of these other witnesses was improperly admitted
because: (1) the victims’ prior statements, although consistent, were hearsay and improperly
bolstered the witnesses’ credibility; and (2) the evidence was inadmissible under MRE 403
because it was substantially more prejudicial than probative. As previously noted, a witness’s
credibility cannot be bolstered until it has been attacked by the adverse party, and bolstering is
generally only permitted through opinion or reputation evidence. MRE 608(a). But a party can
bolster a witness with prior consistent statements to rehabilitate his or her credibility after being
impeached by the adverse party with a prior inconsistent statement. Jones, 240 Mich App at
706-708; see Edwards, 139 Mich App at 715-716. Such statements are not hearsay if “offered to
rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive.” MRE 801(d)(1)(B).



                                                -4-
        Throughout trial, defendant attacked the credibility of the victims. He contended during
opening arguments that the victims never disclosed the abuse to the most influential individuals
in their lives, that they sent affectionate correspondence to him over the years, and that they
quickly recanted the allegations to those individuals to whom the victims initially disclosed the
abuse. During cross-examination, defendant elicited statements from the victims that
undermined their credibility and noted that they previously gave statements to other people that
were inconsistent with their current testimony. EC admitted that she did not disclose the abuse
to the DHS, that she previously said that EJ was a liar and a problem child, and that she
frequently denied that defendant abused them when interviewed as a child because she did not
want to destroy their family. Defendant asked EJ why her current testimony was inconsistent to
what she told others, as well as why she did not disclose defendant’s sexual abuse to therapists or
police when asked about it. EJ testified that she could not remember those incidents, but
admitted that her statements to the police reflected that she was a habitual liar, implying that the
allegations were fabricated for some ulterior and devious purpose. And LS admitted that she
could not dispute a written statement signed by her to the police that no sexual abuse was
occurring in their home. She also admitted to writing Facebook messages in which she explicitly
denied the allegations against defendant.

        Thus, defendant “opened the door” to evidence regarding prior consistent statements.
The record reflects that the prior consistent statements of the victims, which were presented by
three other witnesses, predated their later recantations to the police and other persons. And the
victims conceded in their testimony that they recanted because they did not want to break up
their family. Accordingly, plaintiff presented this evidence to rebut defendant’s implied charge
of recent fabrication, improper influence, and improper motive.

        Moreover, the prior consistent statements were not unfairly prejudicial. See MRE 403.
Plaintiff only offered these statements to rehabilitate the victim-witnesses after defendant
attacked their credibility by noting that they previously gave inconsistent statements in which
they denied the abuse. The challenged statements had significant probative weight. Further,
there was minimal prejudicial effect because these statements presented cumulative evidence that
merely corroborated the witnesses’ trial testimony. Therefore, the court did not abuse its
discretion in allowing the witnesses to testify to the victims’ prior consistent statements.

                             D. EXPERT WITNESS TESTIMONY

        Defendant finally contends that the court erred by allowing plaintiff’s expert to testify
even though plaintiff failed to comply with the court order to submit the expert’s report
regarding her proposed testimony, implicitly arguing that the court should have excluded the
expert’s testimony as a discovery sanction. The court entered an initial order requiring plaintiff
to give defendant a report or summary of the expert’s proposed testimony “in advance of trial.”
Plaintiff provided to defendant an unsigned document entitled “Overview of Substance of
Expert’s Testimony” before trial. The document explained that the expert would testify as to
why sexual abuse victims delay reporting, recant their disclosures, and maintain relationships
with the abusers. Defendant renewed the objection during trial on the grounds that the document
was not signed, was untimely provided to defendant the day before trial, and had failed to give
defendant adequate notice of the substance of the expert’s testimony. The court allowed the
expert to testify, observing that the report “was provided in compliance with” the court order.

                                                -5-
During her testimony, the expert witness explained why victims of sexual abuse often delay
reporting of the abuse, recant the abuse, and maintain close bonds with their abusers. Thus, the
expert’s testimony adhered to the discussion topics listed in the document.

        MCR 6.201 requires prosecutors to disclose “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.”
MCR 6.201(A)(3). The court rule clearly provides the proponent of the expert with a choice of
alternatives regarding how to inform the other party of the substance of the expert’s proposed
testimony. The proponent can provide either (1) the expert’s report or (2) “a written description
of” the witness’s proposed testimony. “There is nothing in the plain language of MCR 6.201(A)
that permits a trial court to compel such a report to be created when it does not exist.” People v
Philips, 468 Mich 583, 590; 663 NW2d 463 (2003).

        In this case, plaintiff provided a copy of the expert’s curriculum vitae to defendant during
the motion hearing. However, plaintiff was unable to provide a report from the expert because
the expert had not prepared any such report. But plaintiff did provide a document summarizing
the expert witness’s proposed testimony. This overview explained that the expert’s opinion is
founded upon her education and experience. The overview noted that sexual abuse victims may
delay disclosure, recant, or maintain relationships with their abuser, and noted that sexual abuse
victims often act this way due to their guilt or shame, or because they still have love and
affection for the abuser. As this document provided all the information required by MCR
6.201(A)(3), the court did not abuse its discretion in admitting the expert witness’s testimony,
constructively overruling defendant’s objection, and refusing to strike the expert’s testimony as a
discovery sanction.

                                            II. OV 12

       Defendant next contends that he is entitled to resentencing because the court erred in
scoring offense variable (OV) 12 at 50 points. The interpretation and application of sentencing
provisions implicate questions of law that are reviewed de novo by this Court. People v
Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). But under the judicial sentencing
guidelines, the court’s ultimate sentencing decision is reviewed for abuse of discretion. People v
Milbourn, 435 Mich 630, 634, 636; 461 NW2d 1 (1990); see People v Hardy, 494 Mich 430,
437-438; 835 NW2d 340 (2013).

       The “legislative [sentencing] guidelines apply only to offenses committed on or after
January 1, 1999.” People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000).
Because the Legislature did not intend for the new sentencing guidelines to have retroactive
application to offenses before January 1, 1999, the judicial sentencing guidelines continue to
apply to offenses committed prior to that date. Id.; MCL 769.34(1). And because all of
defendant’s charged offenses involved conduct that occurred before January 1, 1999, the judicial
sentencing guidelines apply to his sentencing.

        “[B]ecause the recommended ranges found in the judicial guidelines were not the product
of legislative action, a sentencing judge was not necessarily obliged to impose a sentence within
those ranges.” People v Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). As such, the

                                                -6-
incorrect scoring of an offense variable under the judicial guidelines is not grounds for reversal
and resentencing, as the guidelines are merely a “means to achieve a proportionate sentence.”
People v Raby, 456 Mich 487, 496; 572 NW2d 644 (1998), superseded by statute as recognized
in Hegwood, 465 Mich at 438-439. They “are tools to aid the trial court in the exercise of its
authority and a framework for the appellate courts’ inquiry into the question whether the
sentence is disproportionate and, hence, an abuse of the trial court’s discretion.” Raby, 456 Mich
at 498 (citation and internal quotation marks omitted). Under these guidelines, our courts may
only resentence a defendant if the sentence imposed was invalid, which occurs when the
sentence imposed is disproportionate to the “seriousness of the circumstances surrounding the
offense and the offender.” Milbourn, 435 Mich at 636.

        The judicial sentencing guidelines state that OV 12 for a sexual offense should be scored
at 50 points if the offense involved “2 or more criminal sexual penetrations,” and that the court
should score “all penetrations involving the offender arising out of the same criminal
transaction.” Michigan Sentencing Guidelines (2d), p 45. During sentencing, the court scored
OV 12 at 50 points, adopting plaintiff’s argument that defendant’s molestation of the three
victims occurred over a period of ten years, and thus should be treated as an ongoing criminal
transaction. This finding is supported by the testimony of the three victims.

        Although defendant contends that the court erred in scoring OV 12, he does not say how
the finding was erroneous, let alone why the purported error warrants reversal. Nor does he
allege that the sentence was disproportionate. He does assert that the jury never found that
defendant molested the victims on a daily basis, but this is irrelevant to the issue of scoring the
judicial guidelines. Defendant is not entitled to resentencing.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant finally argues that he is entitled to a new trial because his trial counsel
provided him constitutionally ineffective assistance of counsel. A claim of ineffective assistance
of counsel is preserved by timely moving for a new trial, or by moving for a Ginther2 hearing.
People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). Defendant did not move for a
new trial or request a Ginther hearing, so the issue is unpreserved.

                 Whether a person has been denied effective assistance of counsel is a
         mixed question of fact and constitutional law. The trial court must first find the
         facts and then decide whether those facts constitute a violation of the defendant’s
         constitutional right to effective assistance of counsel. The trial court’s factual
         findings are reviewed for clear error, while its constitutional determinations are
         reviewed de novo. 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) (citations and internal
         quotation marks omitted).]



2
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                 -7-
        Although defendant is guaranteed the right to counsel under both the United States
Constitution, US Const, Am VI, and Michigan Constitution, Const 1963, art 1, § 20, defendant
bears a high burden in proving that his trial counsel was so deficient as to functionally deprive
him of his right to effective counsel. People v Meissner, 294 Mich App 438, 458-459; 812
NW2d 37 (2011). The United States Supreme Court has set forth a two-prong test to determine
whether counsel was ineffective in a given case. First, defendant must prove that his trial
counsel failed to meet an objective standard of reasonableness based on “prevailing professional
norms.” Strickland v Washington, 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Second, defendant must establish prejudice, which is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. The crux of this test is to determine whether the mistakes by defendant’s counsel
effectively deprived defendant of the right to a fair trial. Meissner, 294 Mich App at 459.
“Decisions regarding what evidence to present, whether to call witnesses, and how to question
witnesses are presumed to be matters of trial strategy.” People v Horn, 279 Mich App 31, 39;
755 NW2d 212 (2008). And counsel cannot be deemed ineffective for failing to raise meritless
objections. People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

        Defendant’s argument on this issue is confusing and cursory. He largely fails to identify
what conduct of trial counsel failed to meet the prevailing professional norms. It appears that
defendant’s sole contention is that his counsel acted deficiently in failing to preserve an
evidentiary challenge when his counsel failed to repeatedly object to plaintiff’s introduction of
the victims’ prior consistent statements. However, defendant’s counsel successfully preserved
these challenges by frequently objecting. Because defendant’s counsel successfully preserved
the issue, this argument is without merit. As defendant does not present any other conduct by his
trial counsel that was not objectively reasonable, defendant is not entitled to relief.

       Affirmed.

                                                           /s/ William B. Murphy
                                                           /s/ David H. Sawyer
                                                           /s/ Michael J. Kelly




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