People of Michigan v. Timothy James-Leroy Hemminger ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 17, 2020
Plaintiff-Appellee,
v No. 348936
Montcalm Circuit Court
TIMOTHY JAMES-LEROY HEMMINGER, LC No. 2018-024575-FH
Defendant-Appellant.
Before: FORT HOOD, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
Defendant, Timothy James-Leroy Hemminger, appeals as of right his jury trial conviction
of two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (penetration
of a victim at least 13 years of age but under 16 years of age). The trial court sentenced defendant,
as a second-offense habitual offender, MCL 769.10, to 120 to 270 months’ imprisonment. We
affirm.
I. FACTS
In this case, the victim, PH, who was 14 years old, met defendant, who was 23 years old,
at a party. The victim and defendant engaged in sexual intercourse and oral sex. Afterward,
defendant remained in contact with the victim. He messaged and called her through her Facebook
account in hopes of having a relationship with her. Approximately a month later, defendant and
the victim met again in person at the same house, and they once again engaged in sexual intercourse
and oral sex. The victim’s sister eventually found out about the relationship the victim and
defendant had, and she told the victim’s parents. The victim’s mother then called the police. The
victim underwent a forensic interview. Additionally, the police interviewed defendant twice.
During both interviews, one of which was recorded, defendant admitted to engaging in intercourse
and oral sex with the victim. Defendant was then charged, convicted, and sentenced. He now
appeals.
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II. EVIDENCE OF UNCHARGED CONDUCT
A. ADMISSION
Defendant first argues that the trial court improperly permitted the prosecution to admit
evidence regarding a third incident between him and the victim at trial. We disagree.
This Court reviews for plain error unpreserved claims “affecting a defendant’s substantial
rights.” People v Jackson, 292 Mich. App. 583, 592; 808 NW2d 541 (2011). Defendants must
meet the following three requirements to establish plain error: “1) error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). Additionally, even if the “defendant satisfies
the three requirements, an appellate court must exercise its discretion in deciding whether to
reverse” because “[r]eversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings . . . .” Id. at 763-764 (quotation marks and
citation omitted; second alteration in original).
The general rule is that “evidence of other crimes, wrongs, or acts of an individual is
inadmissible to prove a propensity to commit such acts.” People v Crawford, 458 Mich. 376, 383;
582 NW2d 785 (1998). However, other-acts evidence can be admissible under MRE 404(b). To
be admissible at trial, the prosecution must establish the following:
First, that the evidence be offered for a proper purpose under Rule 404(b); second,
that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
probative value of the evidence is not substantially outweighed by unfair prejudice;
fourth, that the trial court may, upon request, provide a limiting instruction to the
jury. [People v VanderVliet, 444 Mich. 52, 55; 508 NW2d 114 (1993), amended
445 Mich. 1205 (1994).]
MRE 403 governs the third prong of the test established in VanderVliet, 444 Mich. at 74-
75. 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.” MRE 403 “does not prohibit prejudicial evidence; only evidence that is
unfairly so. Evidence is unfairly prejudicial when there exists a danger that marginally probative
evidence will be given undue or preemptive weight by the jury.” Crawford, 458 Mich. at 398. The
concern is that the jury will use the other-acts evidence “precisely for the purpose that it may not
be considered, that is, as suggesting that the defendant is a bad person, a convicted criminal, and
that if he did it before he probably did it again.” Id. (quotation marks and citation omitted).
However, “[w]hen a defendant is charged with a sexual offense against a minor, MCL
768.27a allows prosecutors to introduce evidence of a defendant’s uncharged sexual offenses
against minors without having to justify their admissibility under MRE 404(b).” People v Pattison,
276 Mich. App. 613, 618-619; 741 NW2d 558 (2007). “In many cases, it allows evidence that
previously would have been inadmissible, because it allows what may have been categorized as
propensity evidence to be admitted in this limited context.” Id. at 619. The Legislature intended
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that MCL 768.27a, “a valid enactment of substantive law, to supersede the court rule.” People v
Duenaz, 306 Mich. App. 85, 99; 854 NW2d 531 (2014). Despite superseding MRE 404(b),
MCL 768.27a remains subject to MRE 403. People v Watkins, 491 Mich. 450, 486; 818 NW2d
296 (2012).
In this case, before trial, the prosecution did not provide any formal, written notice to
defendant that it would be presenting other-acts evidence. Additionally, before trial, it was
established that defendant had three CSC-III charges pending against him. Count I was for penis
and vaginal penetration, Count II was for mouth and penis penetration, and Count III was for
mouth and vaginal penetration. In the prosecution’s opening argument, it accused defendant of
penetrating the victim in three different manners, on two different nights. The prosecution also
argued that defendant had sex with the victim on at least two different occasions.
During trial, the victim testified that she had two separate sexual encounters with
defendant. One encounter occurred in October 2017, and the other encounter occurred in
November 2017. The victim testified that during both encounters, defendant penetrated her vagina
with his mouth and penis. Additionally, the victim put defendant’s penis in her mouth. On direct-
examination, the victim also testified that she informed the forensic interviewer that her best friend,
SF, once told her that while she was sleeping, SF saw defendant on top of the victim. During
cross-examination, defense counsel also questioned the victim about the forensic interview. The
victim admitted that she told the forensic interviewer that she did not know whether or how many
times she had sex with defendant while she was sleeping. Additionally, she admitted that she told
the forensic interviewer that she had sex with defendant five times even though at trial she testified
it only happened two times. SF also testified at trial. She denied ever witnessing any contact
between defendant and the victim.
During the prosecution’s closing argument, the prosecution reiterated that defendant
penetrated the victim in three different manners, on two different nights. The jury later convicted
defendant on two of his CSC-III charges, the charge for penetrating the victim’s vagina with his
penis and the charge for penetrating the victim’s vagina with his tongue.
Although defendant analyzes this issue pursuant to MRE 404(b), the analysis in this case
is properly governed by MCL 768.27a(1), which supersedes MRE 404(b). In this case, defendant
was charged with three counts of CSC-III. See MCL 750.520d(1)(a). He was accused of
penetrating the victim, a minor, on two different nights, in three different ways. There was also
evidence that defendant penetrated the victim while she slept. However, it does not appear that
defendant was charged for this act, even though he could have been charged with another count of
CSC-III. See MCL 750.520d(1)(a). Both defendant’s charges and his uncharged act are listed
offenses against a minor. See MCL 28.722(j), (w)(iv). Therefore, evidence that defendant
penetrated the victim while she slept was admissible pursuant to MCL 768.27a(1) without the
prosecution having to justify its admissibility as it would have had to under MRE 404(b). See
Pattison, 276 Mich. App. at 618-619.
However, evidence admitted pursuant to MCL 768.27a(1) may still be excluded pursuant
to MRE 403. See Watkins, 491 Mich. at 486. The Michigan Supreme Court in Watkins, 491 Mich.
at 489-490, “provided specific guidance to trial courts in applying MCL 768.27a and the balancing
test of MRE 403.” Duenaz, 306 Mich. App. at 99. “First, the propensity inference of the evidence
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must be weighed in favor of the evidence’s probative value.” Id. See Watkins, 491 Mich at 489.
Additionally, the following factors may be analyzed to determine whether the other-acts evidence
should be excluded:
(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. [Watkins, 491
Mich. at 487-488.]
In this case, the probative value of the evidence was not substantially outweighed by the
danger of its unfair prejudice. See MRE 403. First, both the uncharged conduct and the charged
conduct were “of the same general category” because both the charged and uncharged conduct
involved sexual acts against the same minor. Duenaz, 306 Mich. App. at 101 (quotation marks and
citation omitted). For example, defendant was charged with one count of penetrating the victim’s
vagina with his penis, and the other-acts evidence also involved defendant penetrating the victim’s
vagina with his penis. Although the victim does not explicitly state that defendant penetrated her
vagina while she was sleeping, the victim testified that she was told about a third incident in which
she had sex with defendant. Specifically, she testified that SF told her that defendant was on top
of her. Additionally, this act supposedly occurred in the same time frame as the other charged
conduct because both the victim and defendant testified that they met each other in about October
2017 and that they stopped speaking to each other in about January 2018. See id. at 100.
Furthermore, this evidence was important to the prosecution’s case because of the lack of physical
evidence that the sexual abuse occurred. See id. Additionally, there was little “danger of confusion
of the issues, misleading the jury, undue delay, or other considerations mentioned in MRE 403.”
Id. at 101. The uncharged conducted was briefly described by the victim and was only referred to
briefly in the prosecution’s opening statements when it stated that defendant and the victim had
sex at least on two occasions. Therefore, it was not necessary that the other-acts evidence be
excluded pursuant to the MRE 403 balancing test.
Defendant also argues that he was still denied a fair trial because he was not notified about
the admittance of the other-acts evidence. Although defendant correctly argues that
MRE 404(b)(2) requires that the prosecution notify defendants about its intention to introduce
other-acts evidence at trial, the evidence of the uncharged act was not admissible pursuant to
MRE 404(b)(1) but MCL 768.27a(1). MCL 768.27a(1) also requires that the prosecution notify
defendants about its intention to admit other-acts evidence in trial. MCL 768.27a(1) specifically
states, in pertinent part, as follows:
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.
There is no evidence in the record that the prosecution ever filed a formal, written notice
of its intent to introduce other-acts evidence. However, MCL 768.27a(1) does not require that a
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formal, written notice be filed in the trial court or provided to defendant, and such a requirement
should not be read into the statute. See People v Waltonen, 272 Mich. App. 678, 685; 728 NW2d
881 (2006). MCL 768.27a(1) instead requires that the prosecution disclose the other-acts evidence
to defendant 15 days before trial. There is nothing in the record that indicates that the prosecution
failed to comply with this requirement.
In fact, the record indicates the opposite. The victim mentioned that she told the forensic
interviewer that SF saw defendant on top of her. While defense counsel questioned the victim
about this statement on cross-examination, he also questioned the victim on another statement she
made to the forensic interviewer. Specifically, defense counsel asked the victim whether she told
the forensic interviewer that she had sex with defendant five times, and the victim agreed that she
had. Defense counsel’s questioning of the victim indicates that he and defendant were fully aware
of the accusations that the victim made against defendant during her interview and were fully
prepared to question the victim about those statements. This means that evidence regarding
defendant penetrating the victim while she slept was not a true surprise and that defendant had
proper notice of the evidence.
Therefore, there is no error in the record. See Carines, 460 Mich. at 763. The other-acts
evidence was admissible pursuant to MCL 768.27a(1). Additionally, the record supports the
contention that defendant was aware of the evidence before trial.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied effective assistance of counsel because defense
counsel failed to object to the admittance of evidence that he had sex with the victim a third time
or at a minimum seek a limiting instruction. We disagree.
“Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors
apparent on the record.” People v Lockett, 295 Mich. App. 165, 186; 814 NW2d 295 (2012). The
defendant has the burden of establishing that he was denied effective assistance of counsel. People
v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999). The defendant must “show (1) that trial counsel’s
performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.”
People v Randolph, 502 Mich. 1, 9; 917 NW2d 249 (2018).
For the first requirement, the defendant “must overcome the strong presumption that
counsel’s performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich.
38, 52; 826 NW2d 136 (2012). The defendant must show that defense counsel’s actions were not
a “result of reasonable professional judgment.” Strickland v Washington, 466 U.S. 668, 690; 104 S
Ct 2052; 80 L. Ed. 2d 674 (1984). “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy, as is a
decision concerning what evidence to highlight during closing argument.” People v Horn, 279
Mich. App. 31, 39; 755 NW2d 212 (2008) (citations omitted). A defense counsel’s failure to present
evidence at trial can constitute ineffective assistance of counsel if the defendant is deprived of a
substantial defense. People v Dunigan, 299 Mich. App. 579, 589; 831 NW2d 243 (2013).
Additionally, this Court should not “substitute [its] judgment for that of counsel on matters of trial
strategy” or “use the benefit of hindsight when assessing counsel’s competence.” People v Unger,
278 Mich. App. 210, 242-243; 749 NW2d 272 (2008). For the second requirement, the defendant
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“must show that, but for counsel’s deficient performance, a different result would have been
reasonably probable.” People v Armstrong, 490 Mich. 281, 290; 806 NW2d 676 (2011). “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).
In this case, defendant failed to prove that defense counsel’s failure to object to the
admission of other-acts evidence was objectively deficient. The probative value of this evidence
was not substantially outweighed by unfair prejudice. See MRE 403. Both the uncharged conduct
and the charged conduct were “of the same general category” because both the charged and
uncharged conduct involved sexual acts against the same minor. Duenaz, 306 Mich. App. at 101
(quotation marks and citation omitted). Additionally, the uncharged act supposedly occurred in
the same time frame. See id. at 100. This evidence was also highly probative because of the lack
of physical evidence that the sexual abuse occurred. See id. Furthermore, even though defendant
argues that defense counsel should have objected to the evidence because the prosecution failed to
notify defendant of its intent to produce the evidence, the record indicates that defendant did have
notice of these allegations against him from the victim. Therefore, evidence that defendant
penetrated the victim while she was sleeping was admissible other-acts evidence. Any objection
from the prosecution regarding the evidence or notice would have been futile or meritless, and
“[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” Ericksen, 288 Mich. App. at 201.
Additionally, the record indicates that defense counsel’s failure to object to the testimony
may have been a matter of trial strategy. See Trakhtenberg, 493 Mich. at 52. Instead of objecting
to the evidence and requesting that the evidence be stricken from the record, defense counsel used
the victim’s testimony and other statements that the victim made during her forensic interview to
draw out the inconsistencies in the victim’s story. Defense counsel, referring to the forensic
interview, got the victim to admit that she told the forensic interviewer that she had sex with
defendant five times even though at trial she claimed it was only two times. Referring to the same
interview, defense counsel also got the victim to admit that she told the forensic interviewer that
she did not know whether or how many times she had sex with defendant while she was sleeping.
Additionally, defense counsel had SF, the friend who told the victim that she saw defendant on top
of the victim, testify at trial. SF was unable to provide any testimony in support of the victim’s
allegation, and in fact, she contradicted the victim’s allegations.
Therefore, defendant failed to prove that defense counsel’s performance was objectively
deficient. See Randolph, 502 Mich. at 9. Because defendant was unable to prove that defense
counsel’s performance was objectively deficient, defendant cannot prove that he was denied
effective assistance of counsel. See id.
III. EVIDENCE OF REHABILITATION
A. ADMISSION
Defendant also argues that the prosecution improperly admitted evidence that defendant
attended rehabilitation. We disagree.
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In this case, during the second interview that defendant had at the police station, defendant
confessed to meeting the victim at the end of or beginning of November 2017. He also admitted
that he went to rehabilitation right after Thanksgiving and that he had sex with the victim the first
time before Thanksgiving. Additionally, he stated that he had sex with the victim a second time
after rehabilitation. When asking defendant when he engaged in sexual activity with the victim,
Greenville Detective Wayne Dillion, Jr., the officer who interviewed defendant, repeatedly asked
defendant if it occurred before or after he went to rehabilitation. At trial, the prosecution played
the second interview for the jury.
Additionally, during trial, Detective Dillion testified about what he learned from both
interviews with defendant. Detective Dillion testified twice that sometime in November 2017,
defendant was in rehabilitation. While defense counsel was questioning Detective Dillion,
Detective Dillion testified that defendant told him during the second interview that he found out
that the victim was 14 years old after the second time they engaged in sexual intercourse. Defense
counsel then asked Detective Dillion, “So where was the time that he had sex with her, after he
learned she was 14 from her friend, [SF]?” Detective Dillion replied, “I believe that was the time
after he had got out of rehab in November.” Defense counsel then continued to question Detective
Dillion about the time line of events in this case. Defense counsel asked Detective Dillion, “Are
you saying that there was another time after that he admitted to you he had sex with her?”
Detective Dillion replied, “No, ma’am, I’m not saying that. I’m saying that the first time was in
October. The second time was in November after he got out of rehab.”
On the outset, we note that it is unclear whether defendant is challenging the admission of
his statement regarding rehabilitation as improper other-acts evidence or simply for being
irrelevant and prejudicial. However, the Michigan Supreme Court has long recognized that a
defendant’s prior statement does not constitute “a prior act.” People v Goddard, 429 Mich. 505,
514-515; 418 NW2d 881 (1988). See also People v Rushlow, 179 Mich. App. 172, 176; 445 NW2d
222 (1989); MRE 801(d)(2). Instead, a defendant’s statement is a “statement of a party opponent,”
and “the admissibility analysis involves instead first determining whether the statement was
relevant, and second whether its probative value outweighed its possible prejudicial effect.”
Goddard, 429 Mich. at 515. See MRE 401 through MRE 403.
MRE 401 provides that “relevant evidence” is “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.” In this case, the statements that defendant
made regarding his time in rehabilitation were relevant. See MRE 401. The first time the jury
heard any evidence regarding rehabilitation was in the recorded interview video. Detective Dillion
was questioning defendant about the first time he had sex with the victim, and defendant responded
that it was sometime after Halloween but before Thanksgiving because he went to rehabilitation
right after Thanksgiving. Defendant’s statement regarding rehabilitation was relevant to
establishing a time line of when he committed the offenses in this case. See MRE 401.
After defendant himself referred to his time in rehabilitation, defendant’s time in
rehabilitation was mentioned a couple times by Detective Dillion. However, Detective Dillion
only mentioned defendant’s time in rehabilitation when asking defendant about when he had sex
with the victim a second time, which was at the end of November, after defendant’s time in
rehabilitation. Detective Dillion’s questions about when defendant had sex with the victim that
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referred to defendant’s time in rehabilitation were admissible because they provided context to
defendant’s answer about when he had sex with the victim a second time. See People v Musser,
494 Mich. 337, 354-356; 835 NW2d 319 (2013). Additionally, Detective Dillion’s questions were
relevant to establishing a time line in this case. See MRE 401. Detective Dillion was referring to
a defendant’s time in rehabilitation as a reference point that defendant himself provided.
The next time defendant’s stay in rehabilitation was mentioned at trial was when defense
counsel questioned Detective Dillion about how many times defendant had sex with the victim
and when defendant had sex with the victim. On cross-examination, defense counsel questioned
Detective Dillion about the two different times defendant stated that he had sex with the victim.
Detective Dillion referred to rehabilitation to establish the time line of when defendant had sex
with the victim. Detective Dillion’s statements about rehabilitation were admissible because they
were volunteered statements to a proper question from the prosecution. See People v Haywood,
209 Mich. App. 217, 228; 530 NW2d 497 (1995). Additionally, the mentioning of defendant’s time
in rehabilitation was relevant to establishing a time line of the offenses that defendant committed
in this case. See MRE 401.
Furthermore, the statements regarding defendant’s time in rehabilitation survive
MRE 403’s balancing test. Defendant claims that admitted statements that referred to his time in
rehabilitation were unfairly prejudicial to him. The statements referring to defendant’s time in
rehabilitation were likely prejudicial even though none of the statements or the record ever
established what type of rehabilitation defendant attended. However, the statements were
admissible because the probative value of the statements was not substantially outweighed by the
danger of their unfair prejudice. See MRE 403. The statements Detective Dillion and defendant
made referring to defendant’s time in rehabilitation were highly probative because they helped
establish a time line in this case. Additionally, defendant’s time line was highly probative in this
case because his time line of when he had sex with the victim corroborated the victim’s time line
in this case, which helped the jury assess the credibility of the victim’s allegations. Furthermore,
any question from Detective Dillion referring to defendant’s time in rehabilitation was also highly
probative because it provided context to defendant’s admissions of when he had sex with the
victim. See Musser, 494 Mich. at 356-358.
Therefore, there is no error in the record. See Carines, 460 Mich. at 763. Defendant’s
statement regarding his time in rehabilitation was an admission by a party-opponent. See
MRE 801(d)(2). It was also relevant to establishing a time line of the offenses that defendant
committed in this case, which made defendant’s statement highly probative. See MRE 401;
MRE 403. Additionally, any mentioning of rehabilitation by Detective Dillion was only used in
regard to establishing the time line in this case and providing context to defendant’s answers
regarding the time line, which again made the reference relevant and probative. See MRE 401;
MRE 403.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied effective assistance of counsel because defense
counsel failed to object to the admittance of evidence that proved defendant had been to
rehabilitation. We disagree.
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As stated earlier, defendant’s statement in which he refers to his time in rehabilitation was
admissible as a party-opponent admission. See MRE 801(d)(2). Defendant’s statement was
relevant because he made it while explaining how he knew when he had sex with the victim.
Defendant was establishing the time line in which he committed the offenses. See MRE 401.
Additionally, the statement was admissible because the probative value of the statement was not
substantially outweighed by the danger of their unfair prejudice. See MRE 403.
Detective Dillion also mentioned defendant’s time in rehabilitation in the video after
defendant mentioned it. Anytime Detective Dillion referred to defendant’s time in rehabilitation,
it was while asking defendant questions about when he had sex with the victim. Detective Dillion’s
questions were admissible and relevant because they provided context to defendant’s answers
about when he committed the offenses of which he was charged. See Musser, 494 Mich. at 356-
358. Additionally, the probative value of Detective Dillion’s questions was not substantially
outweighed by the risk of unfair prejudice. As stated earlier, the statement that Detective Dillion
made referring to defendant’s time in rehabilitation was highly probative because it helped
establish a time line in this case of when defendant committed the offenses of which he was
charged, which corroborated the victim’s time line.
Because the statements and questions referring to defendant’s time in rehabilitation in the
recorded interview were admissible, any request from defense counsel to redact the video would
have been futile or meritless. See Ericksen, 288 Mich. App. at 201. Defense counsel’s performance
was not objectively deficient. See Randolph, 502 Mich. at 9.
Furthermore, defense counsel’s failure to move to strike Detective Dillion’s statements
regarding rehabilitation at trial was likely a matter of trial strategy. See Trakhtenberg, 493 Mich.
at 52. Defense counsel “may have consciously elected not to highlight or focus” on Detective
Dillion’s statements referring to defendant’s stay in rehabilitation. People v Bosca, 310 Mich. App.
1, 37; 871 NW2d 307 (2015). Therefore, defense counsel’s failure to object to references to
defendant’s time in rehabilitation was not objectively deficient. See Randolph, 502 Mich. at 9.
Because defendant failed to prove that defense counsel’s performance was objectively deficient,
he cannot establish that he was denied effective assistance of counsel. See id.
IV. EVIDENCE OF PRIOR INTERACTIONS WITH LAW ENFORCEMENT
A. ADMISSION
Defendant also argues that the prosecution improperly admitted evidence that he had prior
interactions with law enforcement. We disagree.
At trial, Detective Dillion testified that defendant called him to set up the first interview.
Detective Dillion testified that he knew defendant for several years and that when defendant came
down to the police station, he reintroduced himself to defendant. Additionally, as stated earlier,
the prosecution played the second interview for the jury. During the second interview, defendant
asked Detective Dillion if this situation was “going to be an actual case through Montcalm
County.” Detective Dillion told defendant that he had to prepare a report for the prosecution and
then the prosecution would decide what to do. He told defendant that he would call him and let
him know what the prosecution decided to do. Defendant then informed Detective Dillion that if
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this situation evolved into an actual case, the police would be unable to find him. He also told
Detective Dillion that he was not “going back,” and that, before he goes “back behind bars,” he
needed to take care of his mother.
At the end of the interview, Detective Dillion asked defendant if he had anything else he
wanted to tell him. Defendant told Detective Dillion that he did not, and he reiterated that if the
situation evolved into a case, he would run away and the police would be unable to find him
because he knew everyone in town. He also mentioned the police always look for him at his
mother’s house and at the house of his friend, so he would not be at either location for the police
to find him.
During trial, defendant also testified. He denied ever engaging in sexual activity with the
victim. He also claimed that during the two interviews, because of his anxiety and anger he told
Detective Dillion that he did have sex with the victim. While testifying, defendant also implied
twice that he had previously been charged or convicted of the crime arson. The prosecution
questioned defendant about whether it was normal for him to lie about doing something illegal and
whether he had ever admitted to doing something illegal before this case. Defendant mentioned
his “felony arson” in response. The prosecution also asked defendant why he told Detective
Dillion during the second interview that he had sex with the victim if it was a lie. He stated the
situation was “weird” for him because he had been at the police station before for his arson case.
On the outset, we again note that it is unclear whether defendant is challenging these
statements as improper other-acts evidence or simply for being irrelevant and prejudicial.
However, as stated earlier, the Michigan Supreme Court has long recognized that a defendant’s
prior statement does not amount to “a prior act.” Goddard, 429 Mich. at 514-515. See also
Rushlow, 179 Mich. App. at 176; MRE 801(d)(2). Instead, a defendant’s statement is a “statement
of a party opponent,” and “the admissibility analysis involves instead first determining whether
the statement was relevant, and second whether its probative value outweighed its possible
prejudicial effect.” Goddard, 429 Mich. at 515. See MRE 401, 403. Additionally, Detective
Dillion’s statement that he reintroduced himself to defendant and that they knew each other for
quite a few years simply amounts to proper lay witness testimony. See MRE 701. Detective
Dillion’s statement about previously knowing defendant was also a volunteered statement to a
proper question from the prosecution. See Haywood, 209 Mich. App. at 228.
Additionally, the statements that defendant made referring to the time that he previously
spent “behind bars” were relevant. See MRE 401. Defendant made the statements, “I’m not going
back,” and “[b]efore I go back behind bars,” right after he threatened to run away if Detective
Dillion or the prosecution in the case decided to press charges against him for having sex with the
victim. Additionally, defendant made the statement that the police “always go to [my friend’s]
and my mom’s first though,” in the middle of telling Detective Dillion that he would flee if the
police came to arrest him. Defendant’s efforts to influence or coerce Detective Dillion
demonstrated defendant’s consciousness of guilt of the crimes he committed, which made his
statements relevant. See People v Mock, 108 Mich. 384, 389; 310 NW2d 384 (1981). See also
MRE 401. Additionally, Detective Dillion’s statement about reintroducing himself to defendant
and knowing defendant was made while explaining how he conducted his interview with
defendant, which made it relevant to laying the foundation and describing the interview for the
jury. See MRE 401.
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Additionally, although defendant argues that those statements were prejudicial, the
probative value of those statements were not outweighed by their unfair prejudice. See MRE 403.
As stated earlier, defendant made statements about his prior interactions with law enforcement in
the middle of telling Detective Dillion that if the police came to arrest him, he would flee.
Defendant’s statements indicated his consciousness of guilt, which means that defendant’s
statements were highly probative. See Mock, 108 Mich. at 389. Additionally, Detective Dillion’s
statement was probative because it was made while he was describing to the jury how he conducted
his first interview with defendant. See MRE 403. Furthermore, if defendant were truly concerned
about his admissions and Detective Dillion’s statements regarding his prior interactions with the
police, defendant himself would not have mentioned at trial, twice, that he was involved in a felony
arson case. Neither Detective Dillion nor any of the statements that defendant made in the
interrogation video referred to how defendant knew Detective Dillion or the reason defendant had
been behind bars. However, defendant took it upon himself to clarify at trial that he was previously
involved in a felony arson case.
Therefore, there is no error in the record. See Carines, 460 Mich. at 763. The statements
defendant made about his prior interactions with law enforcement were properly admitted into
evidence through the interrogation video. Additionally, Detective Dillion’s statements about
interacting with defendant at the police station were relevant and not unfairly prejudicial.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied effective assistance of counsel because defense
counsel failed to object to evidence regarding defendant’s prior interactions with law enforcement.
We disagree. As explained, the statements made were admissible. Therefore, defense counsel’s
failure to advance a meritless argument does not constitute ineffective assistance of counsel. See
Ericksen, 288 Mich. App. at 201.
Affirmed.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Deborah A. Servitto
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