Opinion
No. 331523
05-18-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TRAMELL LAMONT-DEONTE ORR, Defendant-Appellant.
UNPUBLISHED Kalamazoo Circuit Court
LC No. 2015-000130-FC Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
Defendant appeals as of right from his convictions, following a jury trial, of two counts of first-degree criminal sexual conduct (CSC I) (victim under the age of 13), MCL 750.520b, and one count each of assault with intent to commit criminal sexual conduct involving sexual penetration (AWICSP), MCL 750.520g(1), and assault with intent to commit second-degree criminal sexual conduct (AWICSC), MCL 750.520g(2). The trial court sentenced defendant to concurrent sentences of 15 to 40 years' imprisonment for the CSC I convictions, 5 to 10 years' imprisonment for the AWICSP conviction, and 2 to 5 years' imprisonment for the AWICSC conviction. We affirm defendant's convictions but remand for resentencing.
I. FACTS
This case involves defendant sexually assaulting his younger half-sister, AK, and younger stepsister, MW. Defendant was part of a large, blended family. His father married his stepmother in 2006. His father and stepmother did not have any children together, but they did have children of their own from previous relationships. Defendant's stepmother had six children, including MW, and his father had four children, including AK. The entire family lived together in a house in Kalamazoo, Michigan.
While the record reflects that defendant recently learned that his father was not his biological father, for ease of reference in this opinion we will refer to this individual as defendant's father.
The victims testified that defendant assaulted them on multiple occasions spanning several years by inappropriately touching and kissing them and trying to force them to have sex with him. There were two specific assaults (one against each girl) that led to the CSC I charges. The assault against AK occurred at her eleventh birthday party during the summer when she was between sixth and seventh grade. On that occasion, defendant forced AK to perform oral sex on him. When defendant forced her to do this, AK bit him, and defendant hit her on the head.
The assault against MW occurred in the winter of 2010 or 2011, when MW was nine or ten years old. On that occasion, defendant took MW into the basement of the house and forcibly performed cunnilingus on her. On another occasion, MW and AK were sleeping in the back, entertainment room of the house. MW claimed that she woke up and saw defendant sitting on top of AK and trying to forcibly have sex with her. MW yelled at defendant to stop and go away, which he did. MW never told anyone what she saw. AK did not recall that incident.
Neither victim told anyone else what happened, including each other, until October 2014. AK was the first to speak up. In late October 2014, AK confided in an older sister that defendant sexually assaulted her. AK's older sister told her that she needed to tell their parents, or else she would tell them herself. Before telling her parents, AK also confided in MW that defendant sexually assaulted her. MW in turn confided in AK that defendant also sexually assaulted her. Together, AK and MW told their parents that defendant had sexually assaulted them. The stepmother contacted the police and charges were filed against defendant.
II. ANALYSIS
A. HEARSAY EVIDENCE, TESTIMONY REGARDING CREDIBILITY & INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
Defendant argues that he is entitled to reversal of his convictions where the prosecution introduced hearsay accounts of the victims' allegations. We disagree.
As an initial matter, we observe that the prosecution in its brief on appeal has conceded that the disputed hearsay evidence was admitted in error. Preserved evidentiary error does not merit reversal in a criminal case unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). "An error is deemed to have been 'outcome determinative' if it undermined the reliability of the verdict. In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence." People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001) (citations omitted).
Defendant's stepmother's testimony regarding what AK and MW told her did not undermine the reliability of the verdict. The nature of the error was the trial court admitting hearsay testimony. The untainted evidence was the direct testimony of AK and MW themselves, stating in detail how defendant sexually assaulted them in the family home. In considering the error of admitting hearsay in light of the weight and strength of the victims' live, in-court testimony, we conclude that the error was not outcome determinative. Therefore, any error was harmless. See People v Gursky, 486 Mich 596, 620-621; 786 NW2d 579 (2010) (finding harmless error in the improper admission of hearsay evidence when the testimony was cumulative and corroborated by the victim's in-court testimony).
Defendant next argues that the trial court erred in admitting his stepmother's and AK's sister's statements regarding whether they believed the victims. "It is generally improper for a witness to comment or provide an opinion on the credibility of another witness because credibility matters are to be decided by the jury." People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007) (citations omitted). In the context of recounting how she contacted the authorities after first hearing of the allegations against defendant by AK and MW, defendant's stepmother stated that she did not believe that her daughters would lie about defendant's conduct. AK's sister further testified that she told the authorities that although initially she was in disbelief about AK's allegations, after mulling the matter over, she believed AK. Because defendant did not object or otherwise preserve the alleged errors for review, we review the claimed errors for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Again, AK and MW testified at trial and were cross-examined. They testified and described in detail how defendant sexually assaulted them in the family home. Even if we were to accept defendant's contention that the challenged testimony was improper, reversal under these circumstances is not warranted because defendant has not met his burden of showing that the error was outcome determinative. Gursky, 486 Mich at 620-621.
Defendant next argues that trial counsel was ineffective for failing to object to the hearsay testimony and the testimony bolstering the victims' testimony. We disagree.
A claim of ineffective assistance of counsel is preserved by raising a motion for a new trial or a Ginther hearing. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). However, because defendant did not request a new trial and a Ginther hearing was not held, our review is limited to mistakes apparent on the record. See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
In order to find merit in defendant's claim of ineffective assistance of counsel, defendant must prove: (1) "that [trial] counsel's performance was deficient[,]" and (2) that defendant was prejudiced as a result. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). That is, first, defendant must show that trial counsel's performance did not conform to an objective standard of reasonableness. People v Russell, 297 Mich App 707, 715-716; 825 NW2d 623 (2012). We must analyze the issue with "a strong presumption that [trial] counsel's conduct falls within the wide range of reasonable professional assistance[,]" requiring that defendant overcome the presumption that the action or inaction complained of could be considered sound trial strategy. People v Leblanc, 465 Mich 575, 578; 640 NW2d 246 (2002) (citation omitted). Second, defendant "must show that, but for [trial] counsel's deficient performance, a different result would have been reasonably probable." Russell, 297 Mich App at 716 (citation omitted). However, "[f]ailing 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) (citation omitted).
Defendant first claims that counsel was ineffective for failing to object to the hearsay testimony when defendant's stepmother testified that MW told her that defendant sexually assaulted her. We disagree, as a review of the record confirms that any objection would have been futile. Specifically, defendant's stepmother testified that AK told her that defendant sexually assaulted her. Trial counsel objected to this testimony as hearsay, but the trial court overruled the objection. Almost immediately after that, defendant's stepmother testified that MW told her that defendant sexually assaulted her. This time trial counsel did not object, though it is likely trial counsel's objection to the testimony regarding MW would have been the same objection put forward for the testimony regarding AK. It is also very likely the trial court would have ruled the same way had an objection been raised. Therefore, we conclude that it would have been futile for trial counsel to object to the testimony regarding what MW told defendant's stepmother. Accordingly, trial counsel was not ineffective for failing to object to defendant's stepmother's statements regarding what MW told her. Ericksen, 288 Mich App at 201.
We also disagree with defendant's contention that trial counsel was ineffective for failing to object to the witnesses' testimony regarding whether they believed AK and MW. Trial counsel likely recognized that the challenged evidence, in the context that it was given, did not merit an objection. Accordingly, we are not persuaded that trial counsel's performance fell below an objective standard of reasonableness. Russell, 297 Mich App at 716. Even if we were to accept defendant's contention that the disputed evidence was improperly admitted, defendant has not shown that, but for counsel's deficient performance, a different result would have been reasonably probable. Russell, 297 Mich App at 715-716. Both witnesses who made the disputed statements were cross-examined. The victims also testified at trial and were cross-examined. Trial counsel specifically pointed out an inconsistency in MW's version of the story. Defendant also testified at trial and denied all of the allegations against him. On the basis of the record evidence, we conclude that a different result would not have been likely had trial counsel objected to the witnesses' testimony bolstering the victims' testimony.
B. PROSECUTION'S MOTION IN LIMINE
Defendant next argues that the trial court denied him his right to present a defense and to confront and cross-examine the witnesses against him when it granted the prosecution's motion in limine suppressing evidence of physical abuse by his parents. We disagree.
"[We] review[] for an abuse of discretion a circuit court's decision to admit or exclude evidence. An abuse of discretion results when a circuit court selects an outcome falling outside the range of principled outcomes." People v Kowalski, 492 Mich 106, 119; 821 NW2d 14 (2012) (footnotes and citations omitted). This Court also reviews de novo the issue whether a defendant was denied his constitutional right to present a defense. People v Stokes, 312 Mich App 181, 206; 877 NW2d 752 (2015). Whether a defendant was denied the constitutional right to confront the witnesses against him is also a question that we review de novo. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).
" '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. A trial court's decision on a close evidentiary question generally cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).
The trial court granted the prosecution's motion in limine to suppress any evidence regarding physical abuse towards defendant or the other children by the parents on the ground that it was irrelevant. Defendant claimed that the proffered evidence of physical abuse by the parents was relevant to show bias and challenge the credibility of the witnesses against him. We agree with the trial court that evidence that the parents physically abused defendant or the other children does not make it more or less probable that the victims would lie or fabricate a story against defendant, and thus was not relevant. The fact that was of primary consequence to the determination of this case is whether defendant sexually assaulted the victims. Whether the parents physically abused defendant or the other children does not make that determination any more probable than it would be without the evidence. At most, the issue could be characterized as a "close evidentiary question," and thus was not an abuse of discretion. Id.
Moreover, we note that "[i]t is well settled that the right to assert a defense may permissibly be limited by established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence[.]" People v Toma, 462 Mich 281, 294; 613 NW2d 694 (2000) (citation and quotation marks omitted). Additionally, while defendant's right to confront the witnesses against him includes the right of cross-examination, this right of cross-examination does not secure defendant the opportunity to cross-examine on irrelevant issues. People v Gaines, 306 Mich App 289, 315; 856 NW2d 222 (2014). Similarly, "the proper scope of cross-examination lies within the sound discretion of the trial court[.]" People v Morton, 213 Mich App 331, 334; 539 NW2d 771 (1995) (citation omitted). Further, our review of the lower court record leads us to conclude that defendant was afforded ample opportunity to cross-examine the witnesses against him and to challenge their credibility. Moreover, defendant's aunt and defendant both testified regarding defendant's volatile relationship with his father, which included physical altercations. Therefore, defendant's claims that he was denied his right to present a defense and to confront the witnesses against him are without merit.
C. INSTRUCTIONAL ERROR & INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Defendant next argues that the trial court reversibly erred when it failed to instruct the jury sua sponte that to convict defendant of AWICSP and AWICSC, it must unanimously agree on the criminal act found to support the charges. We disagree.
The Michigan Supreme Court in People v Cooks, 446 Mich 503, 524; 521 NW2d 275 (1994) stated:
[I]f alternative acts allegedly committed by defendant are presented by the state as evidence of the actus reus element of the charged offense, a general instruction to the jury that its decision must be unanimous will be adequate unless 1) the alternative acts are materially distinct (where the acts themselves are conceptually
distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the factual basis of defendant's guilt.
Even if we were to conclude that the trial court erred on this issue, any alleged error did not prejudice defendant. Carines, 460 Mich at 763. AK and MW testified that defendant sexually assaulted them. Their testimony demonstrated that defendant had a course of conduct in touching his sister and stepsister and to engage in sexual acts with them. Additionally, defendant did not present separate defenses to the assaults, but merely denied that they occurred. The trial court also gave the jury a general instruction regarding the need for unanimity in its verdict. Under these circumstances, where the jury did not receive a specific unanimity instruction, such an omission did not affect the outcome of the trial. Id.
Defendant alternatively argues that trial counsel was ineffective for failing to object to the general unanimity instruction given to the jury and for failing to request a specific unanimity instruction. However, defendant has not overcome the strong presumption that trial counsel was acting in furtherance of trial strategy in declining to seek such an instruction. LeBlanc, 465 Mich at 578. Trial counsel may have surmised that the general instruction given to the jury regarding the need for unanimity in convicting defendant as charged was sufficient to protect defendant's interests. On this record, we are not persuaded that trial counsel's performance fell below an objective standard of reasonableness. Russell, 297 Mich App at 715-716.
D. SUFFICIENCY OF THE EVIDENCE
Defendant next contends that the evidence was insufficient to support the conviction of CSC I against victim MW. We disagree.
We review challenges to the sufficiency of evidence de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).
To sustain a conviction, due process requires that there be "sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt." People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992) (citation and internal quotation marks omitted). The evidence is viewed "in the light most favorable to the prosecution, to determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt." People v Bennett, 290 Mich App 465, 471-472; 802 NW2d 627 (2010) (citation omitted). In applying this standard, we "must draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Cameron, 291 Mich App 599, 613; 806 NW2d 371 (2011) (quotation marks and citation omitted.)
The prosecution charged defendant with CSC I, person under 13 years of age, pursuant to MCL 750.520b(1)(a), which states:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
(a) That other person is under 13 years of age.
MCL 750.520a(r) defines "sexual penetration" in the following manner:
"Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required. [Emphasis added.]See also People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1993) (concluding that "[a]n act of cunnilingus, by definition, involves an act of sexual penetration."). The act of sexual penetration against MW alleged in the information was cunnilingus. MW testified that defendant took her into the basement when she was nine or ten years old, put her on the floor, pulled off her pants and underwear, and licked her vaginal area. Defendant challenges the sufficiency of the evidence on the basis of MW's negative answer, in response to questioning from the prosecution, with regard to whether defendant's tongue "ever went inside of [her]." However, we note that the statutory language clearly provides that sexual penetration encompasses cunnilingus. MCL 750.520a(r). Viewing the record evidence in the light most favorable to the prosecution, a rational jury could conclude that the prosecution proved the element of sexual penetration beyond a reasonable doubt. Thus, the record evidence amply supported defendant's conviction of CSC I against complainant MW.
To the extent that defendant challenges whether the record evidence met the statutory definition of "sexual penetration" on the basis of the Michigan Supreme Court's order in People v Johnson, 432 Mich 931; 442 NW2d 625 (1989), we note that the issue in that case was whether the defendant engaged in "sexual penetration" on the basis of an instance of fellatio, where the defendant "kissed" the complainant's penis. In this case, MW testified that defendant copiously engaged in licking her genital area against her will. Accordingly, the record evidence supported the jury's conclusion that defendant engaged in cunnilingus with MW. MCL 750.520a(r). --------
E. SENTENCING
Finally, defendant also argues that he is entitled to resentencing due to multiple errors in scoring his guidelines. Where the prosecution expressly concedes in its brief on appeal that remand is necessary, we remand for resentencing.
"A defendant is entitled to be sentenced by a trial court on the basis of accurate information." People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). "[A] sentence is invalid if it is based on inaccurate information." Id. at 89 (quotation marks and citation omitted). In its brief on appeal, the prosecution concedes that Offense Variable (OV) 9 should have been scored at 0 points instead of 10 points. The prosecution also concedes that OV 10 was improperly scored at 15 points instead of 10 points. Finally, the prosecution concedes that OV 10 was incorrectly scored at 50 points instead of 0 points. Defendant and the prosecution both agree that the corrections to the scoring will place defendant in OV level III as opposed to OV level VI, and lower the guidelines minimum range from 171 to 285 months to 108 to 180 months. On remand, the trial court and the parties should also address whether Prior Record Variable (PRV) 5 was properly assessed 10 points.
III. CONCLUSION
We affirm defendant's convictions but remand to the trial court for resentencing. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood