People of Michigan v. Steffen Devon Lymon ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 20, 2016
Plaintiff-Appellee,
v No. 328399
Genesee Circuit Court
STEFFEN DEVON LYMON, LC No. 14-035820-FC
Defendant-Appellant.
Before: SAAD, P.J., and METER and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction of first-degree criminal sexual
conduct, MCL 750.520b(1)(b) (related by blood to victim and same household as victim). He
was sentenced, as a third-offense habitual offender, MCL 769.11, to 202 months to 40 years’
imprisonment. We affirm.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was denied the effective assistance of counsel when defense
counsel failed to object to the victim JS’s testimony on the grounds that she was incompetent to
testify based on her multiple recantations and testimony regarding her alter ego, which allegedly
demonstrated that she lacked the sense of obligation to testify truthfully as required under MRE
601. Defendant also contends that defense counsel was ineffective for failing to call Cedric
Woods as an exculpatory witness at his trial. We disagree.
A claim of ineffective assistance of counsel is a mixed question of fact and constitutional
law. People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136 (2012). We review a trial court’s
findings of fact for clear error, and questions of constitutional law de novo. Id. “A finding is
clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake
has been made.” People v Lopez, 305 Mich. App. 686, 693; 854 NW2d 205 (2014) (citation and
quotation marks omitted). Because the trial court held a Ginther1 hearing, we may consider the
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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evidence presented at that hearing in addition to the lower court record. People v Ginther, 390
Mich. 436, 443-444; 212 NW2d 922 (1973).
Criminal defendants have a right to effective assistance of counsel under both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. To prevail on a
claim of ineffective assistance of counsel, a 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. People v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Eisen, 296 Mich. App. 326, 329; 820 NW2d 229 (2012) (citation and
quotation marks omitted).
A. FAILURE TO CHALLENGE THE VICTIM’S COMPETENCY
Under MRE 601, every witness is presumed competent to testify unless the trial court
finds after questioning a witness that the witness lacks, in relevant part, a “sense of obligation to
testify truthfully and understandably . . . .” Defendant fails to overcome the presumption that JS
was competent to testify. In support of his claim, defendant argues that defense counsel should
have challenged JS’s competency as a witness based on her “admissions of lying under oath and
delusional alter ego.” However, the record demonstrates that JS understood her obligation to
testify truthfully. Before the first day of trial, the prosecution learned that JS intended to recant
her previous preliminary examination testimony. As such, on the first day of trial, JS was
extensively questioned regarding whether she understood the oath to testify truthfully, and
warned that lying on the stand could subject her to potential perjury charges. JS indicated that
she understood. Although JS later admitted to lying on the stand the first day of trial, this merely
spoke to her credibility, as opposed to her competency. See, generally, People v Watson, 245
Mich. App. 572, 583-584; 629 NW2d 411 (2001).2
Defendant contends that defense counsel should have challenged JS’s competency based
on her testimony regarding her false alter ego, “Jaylin.” JS testified to having a nonexistent
friend, known as Jaylin, and explained that Jaylin was “a defense mechanism in [her] head to
protect [her] and when [she] is feeling a certain type of way he basically comes to actually speak
what’s on [her] mind and what [she is] feeling.” Although JS testified to the existence of Jaylin,
this testimony failed to demonstrate her inability to testify truthfully and understandably.
2
We note that, at the Ginther hearing, defense counsel testified that attacking JS’s credibility
based on the inconsistencies in her testimony was his trial strategy. Defense counsel explained
that he first learned of JS’s intent to recant through defendant’s brother, Michael Lymon, before
trial. He thought this was great news for defendant because JS was going to testify that
defendant did not sexually assault her. Counsel further testified that he thought the more JS lied
on the stand, the better for defendant’s case because counsel “didn’t think anybody in the world
was going to believe her,” based on all the inconsistencies in her testimony.
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The record reveals that defense counsel cross-examined JS regarding the existence of
Jaylin, and that the following colloquy took place:
[Defense Counsel]: Have you recently referred to having demons? Have
you told anyone that you have demons?
[JS]: No.
[Defense Counsel]: You’ve never told anyone that?
[JS]: No.
[Defense Counsel]: Okay. Is Jaylin a demon?
[JS]: No.
[Defense Counsel]: You’ve never called Jaylin a demon?
[JS]: No.
[Defense Counsel]: Would Jaylin be upset if you called him a demon?
[JS]: Yes.
Trial counsel’s decision to bring out a witness’s delusional tendencies on cross-
examination is presumed to be sound trial strategy. People v Flowers, 222 Mich. App. 732, 737;
565 NW2d 12 (1997). Defense counsel’s decision to cross-examine JS regarding the existence
of Jaylin as opposed to seeking a ruling on competence was a reasonable trial strategy, which we
will not second-guess. Id.; People v Unger, 278 Mich. App. 210, 242-243; 749 NW2d 272
(2008).
Even if defense counsel’s performance was deficient, defendant fails to establish that he
was prejudiced by defense counsel’s failure to object to JS’s testimony. The record reveals that
there was ample evidence for the jury to consider independent from JS’s testimony. JS’s aunt,
JS’s mother, Flint Police Officer Gwenlyn Aubrey, and Child Protective Services Investigator
Sharyn Beauchamp each testified to a similar reporting of the incident by JS. Specifically, each
witness testified that JS had informed them that defendant sexually assaulted her. Further, JS’s
mother testified that when she called defendant to inquire into JS’s claim, defendant replied that
he did not penetrate JS’s anus before she ever mentioned specifically where JS claimed
defendant sexually assaulted her. Additionally, DNA evidence was presented, which confirmed
the presence of defendant’s DNA on the anal swab taken during the rape-kit procedure.
Defendant is unable to demonstrate a reasonable probability that the outcome of the proceedings
would have been different if defense counsel had objected to JS’s competency as a witness.
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B. FAILURE TO CALL AN EXCULPATORY WITNESS
Defendant also argues that defense counsel was ineffective when he failed to “call a
witness who had contacted [d]efendant on the morning of the allegations and provided a
statement to the police.” We disagree.
“Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009). “We will not
substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit
of hindsight when assessing counsel’s competence.” Unger, 278 Mich. App. at 242-243. Trial
counsel’s decision whether to call a witness at trial is presumed to be sound trial strategy.
People v Meissner, 294 Mich. App. 438, 460; 812 NW2d 37 (2011). Generally, “the failure to
call a witness can constitute ineffective assistance of counsel only when it deprives the defendant
of a substantial defense.” People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009)
(citation and quotation marks omitted). A substantial defense is one that could have made a
difference in the trial’s outcome. Chapo, 283 Mich. App. at 371.
We first note that defendant has not adequately briefed this issue and has therefore
abandoned it. See People v Bosca, 310 Mich. App. 1, 16; 871 NW2d 307 (2015). At any rate,
defendant has failed to overcome the presumption that defense counsel provided effective
assistance. See Eisen, 296 Mich. App. at 329.
Below, defendant asserted that Woods is a former client of his barbershop who could
have testified that he called defendant at 8:30 a.m. on the date of the incident and later saw JS
run from the barbershop and jump into a car.
When appellate counsel questioned defense counsel regarding why he did not call Woods
as a witness at defendant’s trial, defense counsel replied that he thought Woods’s testimony
would have only hurt defendant’s case. Defense counsel explained that he believed Woods’s
testimony would have been “irrelevant to the issues at hand,” and that his testimony regarding
seeing JS run from the barbershop could actually have strengthened prosecution testimony.
Considering defense counsel’s explanation in light of the record, the failure to call Woods
was sound trial strategy. See Meissner, 294 Mich. App. at 460. Specifically, JS’s aunt testified
that JS had texted her and asked her to pick up JS at defendant’s barbershop immediately. The
aunt indicated that when she arrived, JS ran out to her aunt’s vehicle, and was hysterical when
she got into the car. The aunt explained that she could barely get JS to buckle her seatbelt
because JS “was all over the place.” Thus, defense counsel’s decision not to call Woods as a
witness at defendant’s trial was reasonable trial strategy because Woods’s testimony could have
strengthened the testimony of JS’s aunt. We will not second-guess defense counsel’s decision
not to call Woods as a witness. Unger, 278 Mich. App. at 242-243. Moreover, defense counsel’s
strategy does not constitute deficient performance simply because defendant was found guilty
instead of not guilty. See People v Petri, 279 Mich. App. 407, 412; 760 NW2d 882 (2008).
We find no basis for reversal.
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II. SENTENCING
Defendant contends that he is entitled to a remand for resentencing under People v
Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), because the trial court impermissibly engaged
in judicial fact-finding when it scored certain offense variables (OVs) and imposed an
unreasonable sentence. Defendant has waived this issue. At the Ginther hearing, which
occurred after the issuance of Lockridge and People v Steanhouse, 313 Mich. App. 1; 880 NW2d
297 (2015), lv granted 499 Mich. 934 (2016) (dealing with “reasonableness”), the parties also
addressed resentencing. The trial court repeatedly expressed a willingness to resentence
defendant, but defense counsel explicitly stated that resentencing was not necessary. Under these
circumstances, defendant has waived his resentencing request. See People v Carter, 462 Mich.
206, 215-216; 612 NW2d 144 (2000).
We further note that the trial court indicated that even disregarding the OVs scored using
judicial fact-finding, it would have imposed the exact same sentence. We also note that
defendant focuses on judicial fact-finding, and his appellate argument regarding reasonableness
is insufficiently developed. For example, he fails even to cite Steanhouse, supra, or to discuss its
sentencing standards. It is not our role to develop a party’s argument for him. Bosca, 310 Mich
App at 16.
Affirmed.
/s/ Henry William Saad
/s/ Patrick M. Meter
/s/ Christopher M. Murray
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