            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 8, 2019
               Plaintiff-Appellee,

v                                                                   No. 343738
                                                                    Macomb Circuit Court
STEVEN NICHOL,                                                      LC No. 2017-000677-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and K. F. KELLY and CAMERON, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of second-degree criminal sexual
conduct (CSC II) (victim less than 13), MCL 750.520c. The trial court sentenced defendant as a
second-offense habitual offender, MCL 769.10, to a prison term of 60 to 270 months. Defendant
was the boyfriend of the 11-year-old victim’s mother. One night, the victim was asleep in a
room with her siblings when defendant approached her and rubbed the surface of her vagina with
his hand. Nine months later, she disclosed the abuse to her family and the police. He appeals his
conviction and sentence. We affirm.

                          I. EVIDENCE OF PAST SEXUAL ABUSE

       Defendant argues that the trial court erred by admitting evidence of past sexual abuse by
defendant. We disagree.

        Whether bad acts evidence was properly admitted is reviewed for a clear abuse of
discretion. People v McGhee, 268 Mich App 600, 636; 709 NW2d 595(2005). The trial court
does not abuse its discretion when it chooses an outcome within the range of reasonable and
principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

         Several witnesses testified regarding defendant’s sexual abuse of his former stepchildren.
Defendant’s 31-year-old former stepson testified that defendant forced him to engage in acts
involving penetration from the ages of 4 to 15. Also, defendant informed a detective that he had
previously been convicted for digital penetration of a 14 or 15-year-old stepdaughter. Defendant
testified that he abused his former stepdaughter when she was between the ages of 4 and 13, and


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that he had accepted a plea deal because of this past abuse. Defendant argues that the evidence
was substantially more prejudicial than probative and should have been excluded under MRE
403. He contends that the evidence had little probative value because it involved a long-past act
that was not similar to the charged conduct. He maintains that the acts were dissimilar because
the past acts involved penetration and spanned an extended period of time evidencing a pattern
of conduct, whereas the charged conduct involved a very brief touching.

       In People v Watkins, 491 Mich 450, 476; 818 NW2d 296 (2012), our Supreme Court
gave several considerations that might lead a trial court to exclude evidence under MRE 403:

       (1) the dissimilarity between the other acts and the charged crime, (2) the
       temporal proximity of the other acts to the charged crime, (3) the infrequency of
       the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the
       evidence supporting the occurrence of the other acts, and (6) the lack of need for
       evidence beyond the complainant’s and the defendant’s testimony.

Here, the past sexual acts were similar to the charged conduct in that both involved the genitals
of a child who was at defendant’s residence as a result of his relationship with the child’s mother.
The circumstances of the assaults were similar as was the activity of defendant using his hand to
violate the vagina of the daughter of his romantic partner. The convictions for the charged
activity and the past activity were separated by approximately 15 years, but this Court has found
that a difference of 12 years was insufficient to “preclude the evidence’s admission” where the
acts were similar. People v Solloway, 316 Mich App 174, 195; 891 NW2d 255 (2016). The
evidence was reliable given defendant’s admission, the acts occurred frequently over a long
period of time, and there was no testimony of intervening acts other than his incarceration.
Additionally, the evidence was necessary considering that there was no physical evidence of the
instant assault. Finally, the probative value was significant, given that defendant’s denial was
supported by other members of the household who testified that they were up all night and did
not witness defendant leave the room and interact with the victim. The evidence demonstrated
that defendant was capable of committing the act that the victim described, and thus the previous
acts supported her testimony.

        Defendant argues that the evidence was unfairly prejudicial because it influenced the
jury’s credibility determination of the victim. MCL 768.27a specifically permits the use of
other-acts evidence to show a defendant’s propensity to commit the charged crime while
bolstering the victim’s credibility. Watkins, 491 Mich at 492 n 93. A trial court’s “failure to
apply MRE 403” may be harmless where there is significant probative value to the admitted
evidence. Id. Because the evidence was prejudicial, but not unfairly so, the trial court’s decision
to allow admission of the evidence was within the range of reasonable and principled outcomes
and did not constitute an abuse of discretion. Babcock, 469 Mich at 269.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that his counsel was ineffective in various respects. He did not
preserve this issue by moving for a new trial or requesting a hearing pursuant to People v
Ginther, 390 Mich 436; 212 NW2d 922 (1973). See People v Payne, 285 Mich App 181, 188;
774 NW2d 714 (2009). Unpreserved claims of ineffective assistance of counsel are limited to

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review for errors apparent on the record. People v Unger (On Remand), 278 Mich App 210, 253;
749 NW2d 272 (2008). The constitutional question of whether an attorney’s ineffective
assistance deprived a defendant of his Sixth Amendment, US Const, Am VI, right to counsel is
reviewed de novo. Id. at 242. We find no constitutional violation.

        Whether a defendant has been deprived of the effective assistance of counsel is both a
question of fact and constitutional law. People v Grant, 470 Mich 477, 484; 684 NW2d 686
(2004). In order to demonstrate an ineffective assistance of counsel claim, a defendant must
show (1) “that counsel’s performance was deficient” and (2) “that counsel’s deficient
performance prejudiced the defense.” People v Taylor, 275 Mich App 177, 186; 737 NW2d 790
(2007). The defense is prejudiced if it is reasonably probable that, but for counsel’s error, “the
result of the proceeding would have been different.” People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007). The “effective assistance of counsel is presumed, and the defendant
bears a heavy burden of proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645
NW2d 294 (2001).

                      A. Statement regarding touching by the victim’s brother

        Defendant argues that trial counsel should have properly laid a foundation for admission
of a prior statement made by the victim to her mother, to the effect that her brother had touched
her inappropriately, which would have supported the defense and suggested an alternate suspect.
Defense counsel asked the victim’s mother whether she had seen her son inappropriately touch
the victim. She replied that she had not “seen it, but she’s told me that he’s done it.” Defense
counsel asked, “Done what?” and the victim’s mother replied, “Touched her.” The prosecutor
successfully objected to the hearsay.1 The victim’s mother then testified that the victim reported
the touching to her “[r]ight after it happened, immediately.” Defense counsel attempted to lay a
foundation for an excited utterance exception to the hearsay rule pursuant to MRE 803(2), but
the victim’s mother only indicated that the victim was “startled.” Thus, the objection was again
sustained.2

       A counsel’s performance is deficient if it fell below an objective standard of professional
reasonableness. Jordan, 275 Mich App at 667. Defendant argues that counsel could have sought
admission of the evidence as a present sense impression, pursuant to MRE 803(1), which allows
admission of hearsay under the following circumstances: (1) the statement must provide an
explanation or description of the perceived event, (2) the declarant must have personally
perceived the event, and (3) the explanation or description must have been made at a time


1
 Hearsay is an unsworn, out-of-court statement that is offered to establish the truth of the matter
asserted. MRE 801(c); People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007). Hearsay is
generally not admissible but may be admitted if it meets the requirements of one of the hearsay
exceptions set forth in the Michigan Rules of Evidence. MRE 802; Stamper, 480 Mich at 3.
2
  “A statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition” is “not excluded by the hearsay rule, even
though the declarant is available as a witness.” MRE 803(2).


                                                -3-
“substantially contemporaneous” with the event. People v Chelmicki, 305 Mich App 58, 63; 850
NW2d 612 (2014), citing People v Hendrickson, 459 Mich 229, 236; 586 NW2d 906 (1998).
The victim’s mother testified that the victim made the statement immediately after the event and
thus, it would likely have been admissible as a present sense impression. Failing to attempt to
seek admission on this basis could be deemed deficient performance because no apparent trial
strategy justifies the omission. People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011).3

         However, assuming this was an error, defendant cannot show that he suffered prejudice
as a result. Trial counsel’s performance prejudiced the defense if it is reasonably probable that,
but for trial counsel’s error, the result of the proceeding would have been different. Jordan, 275
Mich App at 667. Defendant argues that the evidence would have exonerated him because it
would have given the jury an alternative to the victim’s report that defendant had touched her,
i.e., that the victim’s brother was sleeping near her in a dark room on the night of the crime and
had allegedly touched her inappropriately on a prior occasion. However, the type of
inappropriate touching that the victim allegedly endured by her brother was not defined and may
not have been sexual. Moreover, the jury heard the victim’s mother’s testimony before the
prosecutor objected, and the evidence was not stricken from the record, and thus, the jury was
able to consider this evidence. Further, the jury apparently made a determination that the
victim’s mother’s testimony was not credible because she also testified that she was awake in the
room with the victim at the time of the alleged touching and that defendant did not enter the
room, and the victim denied making this statement to her mother. The jury was fully informed
of the alleged statement regarding the victim’s brother. Thus, defendant cannot show that, but
for defense counsel’s error, the outcome of the trial could have been different.

                                              B. Vouching

         Next, defendant argues that his trial counsel should have objected to the testimony of the
victim’s stepmother about the capacity of the victim, who was autistic, to be dishonest. She
testified, “Well, part of the autism is that they do not understand how to lie. They, they can’t
actually come up with—stories.” The trial court sustained defendant’s objection that the
stepmother was not qualified to provide a medical opinion. She then testified that she had
consulted with several treatment providers regarding the victim’s autism and learned about the
symptoms of the illness, and the prosecutor again asked about the victim’s reputation for
truthfulness. Defense counsel did not object when she responded that the victim was “not one to
lie. It makes her sick to her stomach.”



3
  Defendant also argues that the trial court erred in not admitting the evidence as a present sense
impression. However, the trial court sustained an objection to the evidence as inadmissible
hearsay, and ruled that it was not admissible as an excited utterance. It was not asked to rule on
the evidence’s admissibility as a present sense impression and thus, the issue is unpreserved.
Unpreserved evidentiary claims are reviewed for plain error affecting substantial rights. MRE
103(d); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Since the trial court was
not asked to rule on the present sense impression question, it could not have plainly erred by
failing to determine whether the evidence constituted a present sense impression.


                                                -4-
        Because it is the role of the jury to determine witnesses’ credibility, it is “improper for a
witness or an expert to comment or provide an opinion on the credibility of another person while
testifying at trial.” However, MRE 608 permits admitting “opinion and reputation evidence to
character for truthfulness or untruthfulness after the character of the witness has been attacked.”
People v Knox, 469 Mich 502, 514; 674 NW2d 366 (2004). Defendant argues that the victim’s
character for truthfulness had not been attacked at the time of the testimony because only her
father and stepmother had previously testified. However, defendant argued in opening that the
victim had imagined the abuse, and made up the allegations. “Where a defense counsel attacks a
witness’ character for truthfulness in an opening statement, the prosecution may present evidence
that supports the witness’ character for truthfulness on direct examination.” People v Lukity, 460
Mich 484, 489; 596 NW2d 607 (1999). Because defendant asserted that the victim was not
telling the truth and was making up allegations based on her “vivid imagination” and untreated
illnesses, defendant attacked the victim’s character for truthfulness, rather than merely her
credibility. Id. at 490-491. Therefore, the prosecutor’s question about the victim’s “reputation
for truthfulness” was proper, pursuant to MRE 608(a).4 An objection by defense counsel would
not have been meritorious, and defense counsel was not ineffective for failing to make a futile
objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

                                        C. Defendant’s credibility

         Defendant argues that his trial counsel should not have elicited testimony from a
Macomb County detective about his opinion of defendant’s veracity. Defendant’s trial counsel
asked the detective whether he “fe[lt] like [defendant] was telling you the truth” during an
interview. The detective responded that he did not know defendant well enough to give an
opinion, and, when pressed, stated that he thought that defendant was “trying to deflect some of
the things on to other people.” Defendant argues that his trial counsel should have anticipated
that the detective would not have endorsed defendant’s credibility. However, one of defendant’s
trial strategies was to argue that defendant had told the truth when he previously was accused of
abuse, and did not hide that he had abused his former stepchildren from the detective or the jury,
so he would tell the truth when accused this time as well. Defense counsel’s questions to the
detective were part of that trial strategy. Decisions regarding the questioning of witnesses are
presumed to be matters of trial strategy which we will not second-guess with the benefit of
hindsight. People v Dixon, 263 Mich App 393, 39; 688 NW2d 308 (2004).

                                 D. Preliminary examination testimony

       Defendant argues that his trial counsel should have impeached the victim’s claim that she
had seen defendant touch her with preliminary examination testimony that she had her eyes
closed at the time of the abuse.



4
 Defendant argues that the trial court plainly erred by admitting the evidence pursuant to MRE
608(a) because the victim’s credibility was not attacked. However, there was no objection based
on MRE 608(a), so the trial court could not have plainly erred by failing to consider whether
MRE 608(a) was applicable. In any event, the evidence was proper.


                                                -5-
         At the preliminary examination, the victim testified that before defendant touched her,
she had seen him walking toward the room she was in and closed her eyes so she would not get
into trouble. The victim explained that she did not see defendant’s face, but knew he was
touching her because he was the only one that was awake and his hand was larger. At trial, she
testified that before he touched her she had seen him walking into the room and closed her eyes,
but she explained that she used a technique where she slightly opened her eyes to see “a little bit”
while they still appeared closed. Defense counsel asked whether she could see or get a good
look at defendant, and she responded that she “really didn’t see” because the room was dark.
Defense counsel asked, “So when you, you said your eyes were closed, though, when you were
being touched, correct.” The victim responded that she used her closed eye technique to attempt
to see, and that she knew it was defendant because she had seen him walking up to her before she
closed her eyes. “These two statements are not diametrically opposed, evasive, or a change of
position.” People v Green, 313 Mich App 526, 534; 884 NW2d 838, 843 (2015). Thus, her trial
testimony was consistent with her preliminary examination testimony, and defendant cannot
show that trial counsel’s performance was deficient for failing to impeach the victim with her
preliminary examination testimony.

                                                E. Clothing

        Next, defendant argues that his trial counsel failed to argue that the descriptions of the
victim’s clothing at the time of the assault were inconsistent. At trial, she testified that when she
went to bed she was wearing shorts with a school emblem, a pajama shirt, and underwear.
Defendant asserts that the victim’s mother told his attorney before trial that the victim was
wearing pants because she refused to change into sleeping clothes, and that the shorts had been
discarded because they were too small. There is no evidence of what the victim’s mother said to
defendant’s trial counsel; thus, there are no facts available to establish defendant’s claim. It is
defendant’s burden to make a testimonial record of evidence supporting his claim that “excludes
hypotheses consistent with the view that his trial lawyer represented him adequately.” People v
Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997), quoting Ginther, 390 Mich at 442-443.
Defendant’s trial counsel elicited testimony from the victim’s mother that she was awake the
entire night in the room with the victim and did not observe anyone approach her. Thus, the jury
heard evidence that she did not believe the victim’s claim, even if it did not have information
contradicting the victim’s description of her clothes. Defendant has not demonstrated that trial
counsel’s performance was deficient.

                                              F. Note to self

        Next, defendant argues that his trial counsel failed to introduce evidence of a note from
the victim to herself reminding her to inform her father that her brother had touched her vagina.
Defendant does not provide the note or reference where the note can be found or was discussed,
and therefore, his claim depends on facts that are not of record. It is defendant’s burden to make
a testimonial record of evidence supporting his claim that “excludes hypotheses consistent with
the view that his trial lawyer represented him adequately.” Mitchell, 454 Mich at 163, quoting
Ginther, 390 Mich at 442-443. Moreover, the jury was able to consider evidence that the victim
had informed her mother that her brother had touched her inappropriately. Thus, even if the note
existed, defendant did not demonstrate that trial counsel was deficient for failing to introduce it.


                                                -6-
                                         G. Victim’s therapist

        Defendant argues that trial counsel failed to introduce evidence of a note from the
victim’s therapist indicating that the victim wanted to kill defendant, her mother, and their son,
and failed to subpoena the therapist. Again, defendant does not provide the confidential note or
reference where it can be found or what was discussed. His claim depends on facts that are not
of record. Further, it is unknown whether the therapist would have testified favorably to
defendant or to the victim, and whether privileged communications between the therapist and the
victim could have been admitted.

                                          H. Date of incident

         Finally, defendant argues that trial counsel failed to present evidence that the victim
changed her report of the date on which the incident occurred. Defendant states that the register
of actions lists the date of the incident as December 31, 2015, contradicting the victim’s
testimony that the assault took place in the early hours of January 1, 2016. However, the register
of actions is not evidence and the basis for its use of this date is not clear. The victim did not
contradict herself, and several witnesses testified that the assault occurred during the victim’s
visit to her mother’s residence during the New Year’s Eve holiday. Thus, it is not apparent that
the victim’s timeline could have been successfully challenged. Defendant has not demonstrated
that trial counsel was deficient.

                                      III. CONCLUSION

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Thomas C. Cameron




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