People v. Dell

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KURTIS WAYNE DELL, Defendant-Appellant.

No. 365132

Court of Appeals of Michigan

June 13, 2024

UNPUBLISHED

Gladwin Circuit Court LC No. 2022-011308-FC

Before: MALDONADO, P.J., and K. F. KELLY and REDFORD, JJ.

PER CURIAM.

Defendant appeals by right his jury-trial conviction of first-degree criminal sexual conduct ("CSC-I") and second-degree criminal sexual conduct ("CSC-II"). The trial court sentenced defendant as a third-offense habitual offender to serve concurrent sentences of 25 to 35 years' imprisonment for the CSC-I conviction and 15 to 30 years' imprisonment for the CSC-II conviction. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The victim testified that defendant inappropriately touched her with his hand one night while he was living with the victim and her mother. At the time, the victim was between five and six years old. According to the victim, she was in their living room when defendant came up from behind her and began to touch her. This event occurred when defendant was left alone to watch the victim while her mother and her mother's boyfriend-defendant's brother-went out to the store.

Defendant presented evidence, including through his own testimony, that he was not the individual who assaulted the victim. Defendant denied that he ever was left to watch the victim, stating that when he lived with the victim's mother, the victim was not living at the house. Defendant's brother also testified that the victim was not living at the house at the time, stating that the victim only visited "occasionally." He did not know whether the victim was at the house while defendant was there, and testified that she was "probably not" because "she was not there that often."

The jury convicted defendant of one count of CSC-I, MCL 750.520b(1)(a) (sexual penetration of victim under age 13 by defendant 17 years of age or older); and one count of CSC-II MCL 750.520c(1)(a) (sexual contact with victim under 13 by defendant age 17 years of age or older). The trial court sentenced defendant as previously stated, and this appeal followed.

II. INEFFECTIVE ASSISTANCE

Defendant first argues that his trial counsel was ineffective because he voluntarily presented evidence of defendant's prior convictions at trial during defendant's direct examination. According to defendant, this evidence permitted the jury to render a verdict on the basis of defendant's bad character rather than the evidence of his guilt. Defendant also asserts that his trial counsel was ineffective for failing to challenge five jurors for cause. We disagree.

A. STANDARDS OF REVIEW

Whether a defendant received ineffective assistance of counsel is a mixed question of constitutional law and fact. People v Abcumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020). Factual findings are reviewed for clear error, and constitutional determinations are reviewed de novo. Id. Clear error exists if the reviewing court "is left with a definite and firm conviction that the trial court made a mistake." Id. at 227-228 (quotation marks and citation omitted). Defendant preserved this issue for appeal by filing a motion for remand to the trial court, which was denied. People v Dell, unpublished order of the Court of Appeals, entered November 6, 2023 (Docket No. 365132). Therefore, this Court's review is limited to errors apparent on the record. Abcumby-Blair, 335 Mich.App. at 227.

B. ANALYSIS

Criminal defendants are entitled to the effective assistance of counsel under the United States and Michigan Constitutions. U.S. Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington, 466 U.S. 668, 685-686; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). To establish ineffective assistance of counsel, "defendant must show (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." Abcumby-Blair, 335 Mich.App. at 228. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quotation marks and citations omitted). "The defendant has the burden of establishing the factual predicate of his ineffective assistance claim." People v Douglas, 496 Mich. 557, 592; 852 N.W.2d 587 (2014). "Decisions regarding what evidence to present, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy," and this Court does not "second-guess counsel on matters of trial strategy" or "assess counsel's competence with the benefit of hindsight." People v Horn, 279 Mich.App. 31, 39; 755 N.W.2d 212 (2008).

1. PRIOR CONVICTIONS

Defendant asserts that his trial counsel's performance during defendant's direct examination fell below an objective standard of reasonableness because it "opened the door" to the prosecutor to further inquire into defendant's four prior felony convictions of larceny, possession of sexually abusive material, and failure to pay child support. During direct examination, defendant and trial counsel had the following exchange:

Q. Now you have had some difficulties concerning your criminal activities?

A. Yes.

Q. And what are those? What is it that you have had as criminal convictions?

A. I have two larceny in a buildings and child support felony, and then I also have an attempted possession of child sexually abusive material.

Q. Okay. And what was the circumstances of that particular case?

A. The child sexually abusive material?

Q. Yes.

A. My now wife had sent me pictures, and I had them on my phone, and she was underage at the time.

Q. Okay. And so what were you convicted of?

A. Attempted possession of child sexually abusive material. On cross-examination, the prosecutor inquired into this history further: Q. You indicated you were convicted of two different charges for larceny in a building?

A. Yes.

Q. Those are theft offenses, aren't they?

A. Yes.

Q. And . . . so you were stealing things from people?

A. Yes.

* * *

Q. And when did they occur? A. 2010 and 2012.

* * *

Q. And when was the charge for attempted possession of child sexually abusive material?

A. 2014.

Q. Okay. And . . . what that charge involved is you had . . . nude or semi-nude pictures of somebody under the age of 18?

A. Yes, sir.

Q. Okay. And what was the . . . other charge? You said child support?

A. Yes.

Q. Felony child support, a misdemeanor?

A. It was a felony.

* * *

Q. And when was that?

A. 2018.

Defendant first challenges trial counsel's elicitation of evidence of his conviction of possession of child sexually abusive material, MCL 750.145c(4)(a). As an initial matter, defendant testified at trial that he was convicted of attempted possession of child sexually abusive material, MCL 750.145c(4)(a). This testimony was never corrected at trial. Regardless, under MCL 768.27a(1), defendant's conviction for actual possession was admissible at trial. MCL 768.27a(1) states that,

in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.

The statute defines a "listed offense" as the term is defined in Section 2 of the Sex Offenders Registration Act ("SORA"), MCL 28.722 et seq. MCL 768.27a(2)(a). Possession of child sexually abusive activity is a Tier I "listed offense" under SORA. MCL 28.722(r)(i). Because defendant's charges at trial related to two listed offenses against a minor, MCL 28.722(v)(iv) and (v), evidence of defendant's prior conviction was substantively admissible under MCL 768.27a, subject to prejudice analysis under MRE 403.

Admission of defendant's prior conviction of possession of child sexual abuse material was not unfairly prejudicial because it was a criminal conviction that happened near the time of defendant's alleged assault of the victim and was also a crime involving defendant's sexual misconduct with respect to another minor. See Watkins, 491 Mich. at 487-488 (stating that when deciding whether to admit other-acts evidence under MCL 768.27a, courts should consider "(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"); People v Petri, 279 Mich.App. 407, 411, 760 N.W.2d 882 (2008) ("A defendant's propensity to commit criminal sexual behavior can be relevant and admissible under the statutory rule to demonstrate the likelihood of the defendant committing criminal sexual behavior toward another minor.").

Defendant asserts that there was no reason for his attorney to offer this evidence proactively because the prosecutor did not file notice of its intention to admit this evidence, as required by MCL 768.27a. Although the record does not demonstrate whether defendant was given notice of the prosecutor's intent to use this evidence, defendant was clearly aware that his prior conviction was for...