People of Michigan v. Stephen Albert Chesla

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 27, 2023
Plaintiff-Appellee,
v No. 358552
Ottawa Circuit Court
STEPHEN ALBERT CHESLA, LC No. 20-043846-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct,
MCL 750.520b(2)(b), and second-degree criminal sexual conduct, MCL 750.520c(2)(b), with
respect to a minor under the age of 13. Defendant appeals by right, arguing that he was denied
effective assistance of counsel. For the reasons set forth in this opinion, we reverse and remand
for a new trial.
I. BACKGROUND
The complainant, KK, is defendant’s stepgranddaughter. At the time of trial, KK was
almost 15 years old. KK testified that she slept over at her grandmother and defendant’s home
two to four times per month. When KK slept over, she would stay in her grandmother’s room
alone, across from defendant’s room. KK testified that she had a good relationship with her
grandmother, but she did not have a good relationship with defendant because he made her
uncomfortable. According to KK, one night defendant entered her bedroom wearing only his
underwear, and she pretended to be asleep. KK further testified that defendant pulled down her
pants and underwear to her ankles and then touched the outside of her vagina and digitally
penetrated her over a half-hour period. KK said that this occurred “[n]ot a ton, but more than
once” about four or five years ago. KK testified that she did not report defendant to her parents
because she was afraid and she knew that defendant had many loaded firearms in his home. KK
disclosed the incidents to her stepmother when they were watching a movie at home in February
2020. The stepmother called KK’s father, and the three of them reported the alleged incidents to
the Children’s Advocacy Center.
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KK’s stepmother and father testified at trial, and the prosecution also called Olga Mathis,
a forensic interview manager at the Children’s Advocacy Center who performed the forensic
interview of KK. The prosecution also called Barbara Welke, the former director of the Children’s
Advocacy Center, who testified about why a child may delay disclosure of sexual abuse.
The prosecution also called defendant’s wife, who testified defendant admitted to her that
one night he went into the bedroom where KK slept and started to pull KK’s pajamas down to her
thighs before stopping himself and pulling the pajamas back up. The prosecution corroborated
this testimony by playing a recording of defendant’s police interview for the jury. Each juror was
provided a transcript of the interview to follow along with as the interviewed played.
In the interview, defendant admitted that he went into KK’s bedroom and started to pull
down her pajamas but stopped himself before he exposed her pubic bone. The jury also heard
Detective Bridget Schickinger tell defendant during the interview that children KK’s age do not
lie about sexual assault and that the detectives knew that KK was not lying. Further, there were
repeated references by Detective Adam Hill to defendant’s past pornography addiction. Hill
attempted to attribute defendant’s actions to “porn Steve,” a tactic to differentiate the current
defendant from the “past” defendant who committed the alleged sexual abuse.
Defense counsel called KK’s cousin, KL, who also regularly spent time at her grandmother
and defendant’s home. KL testified that KK pressured her to lie and say she had also been sexually
assaulted by defendant. KL did make such allegations about defendant but later recanted, claiming
that she lied and that in fact no assaults had occurred. On cross-examination, KL agreed that KK
told her in text messages to just be honest regarding defendant.
After the trial, defendant moved for a new trial and requested a Ginther1 hearing. The trial
court granted the request for a Ginther hearing and at the hearing defense counsel testified about
his trial strategy. When asked why he did not request that the police interview be redacted, defense
counsel answered that he did not believe he could challenge the interview’s admission because
defendant’s statements to the police were voluntarily given, which is incorrect. The trial court
denied defendant’s motion for a new trial, determining that defendant was not denied the effective
assistance of counsel.
II. DISCUSSION
On appeal, defendant presents various claims of ineffective assistance of counsel. He first
argues that defense counsel was ineffective for failing to file a motion in limine to redact portions
of defendant’s police interview containing statements by Detective Schickinger that children
cannot lie about sexual assault. We agree. Accordingly, we reverse and remand for a new trial. 2
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
“A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s
findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate
constitutional issue arising from an ineffective assistance of counsel claim de novo.” People v
Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010) (quotation marks and citation omitted).
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Both the United States and Michigan constitutions guarantee a defendant the right to
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To obtain a new trial
on the basis of ineffective assistance of counsel, a defendant must establish that “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
“Generally, all relevant evidence is admissible at trial.” People v Aldrich, 246 Mich App
101, 114; 631 NW2d 67 (2001). See also MRE 402. Evidence is relevant if it has “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. Even if 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.
Defendant relies on People v Musser, 494 Mich 337; 835 NW2d 319 (2013), for the
contention that the detective improperly bolstered KK’s testimony when the detective stated in the
police interview that children KK’s age do not lie and that KK was not lying. In Musser, the
defendant was charged with second-degree criminal sexual conduct against an 11-year-old girl.
Id. at 339. The video interrogation of defendant was played at trial, and the jury heard the
detective’s statements to the defendant that “[k]ids have a hard time lying about this stuff” as well
as statements indicating that the complainant was not lying. Id. at 343-345. The trial court denied
the defendant’s request to redact portions of the defendant’s interview in which the detective
commented on the complainant’s credibility, we affirmed, and the Supreme Court granted leave
to appeal. Id. at 347-348.
The Supreme Court began with the well-settled proposition that a witness’s opinion of
another witness’s credibility has no probative value “because they do nothing to assist the jury in
assessing witness credibility in its fact-finding mission and in determining the ultimate issue of
guilt or innocence.” Id. at 349 (quotation marks and citation omitted). Significantly, the Court
“condemned opinions related to the truthfulness of alleged child-sexual-abuse complainants even
when the opinions are not directed at a specific complainant.” Id. at 357. “This is because in
cases hinging on credibility assessments, the risk goes beyond any direct reference to a specific
complainant given that the jury is often ‘looking to “hang its hat” on the testimony of witnesses it
views as impartial.’ ” Id. at 357-358, quoting People v Peterson, 450 Mich 349, 376; 537 NW2d
857 (1995). The specific question in Musser was “whether the rule barring testimony regarding
the credibility of another person excludes out-of-court statements to the same effect that are
contained in the recordings or transcripts of an interrogation.” Musser, 494 Mich at 349. The
Court declined to adopt a bright-line rule because the existing rules of evidence were enough to
resolve this issue. Id. at 353. When the prosecution claims that improper bolstering statements by
the police are necessary to provide context to the defendant’s statements, “the interrogator’s
statements are only admissible to the extent that the proponent of the evidence establishes that the
interrogator’s statements are relevant to their proffered purpose.” Id. at 354, citing MRE 401.
Even if relevant, the statements may be excluded under MRE 403, which in this context requires
a trial court to “evaluate the probative value of the out-of-court statements in providing context to
a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-
of-court statements are presented to the jury.” Id. at 357.
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Applying these principles, the Musser Court held that the trial court abused its discretion
when it denied the defendant’s request to redact the detectives’ statements commenting on the
complainant’s credibility. Id. at 359. The Court determined that the statements had minimal
probative value and were substantially outweighed by the danger of unfair prejudice to the
defendant because the detectives’ statements about “the credibility of child complainants generally
and the veracity of the complainant” offered the jury the “ ‘much sought-after hook on which to
hang its hat’ ” in making its credibility assessment. Id. at 362-363, quoting Peterson, 450 Mich
at 374. The Court further held that this error undermined the reliability of the verdict when the
“evidence offered against defendant was not overwhelming,” i.e., there was no physical evidence
or third-party witnesses. Musser, 494 Mich at 363-364.
In this case, an unredacted recording of defendant’s police interview was played for the
jury with no objection by defense counsel. During the police interview, defendant stated that one
time he went into KK’s bedroom and “pulled her pajamas down not even far enough to expose
anything, not even touching her body whatsoever, and then thought, you f****** idiot, what are
you doing, and then I pulled them back up, and that was it.” The interviewing detectives insisted
that there was more to the story, which defendant denied. Eventually, Detective Bridget
Schickinger told defendant that young children cannot lie about these types of incidents and so the
police knew that KK was not lying:
Steve, here’s the thing, we’ve been doing this for a long time and we investigate a
lot of cases where stuff like this happens, and it happens a lot with [inaudible],
okay? . . . .
* * *
[W]hen we interview young children like this, there is no part of their brain that’s
developed that they’re going to lie about something this big, and we don’t think
[KK] is lying about—we know that she’s not lying about any of this, and we know
that it happened.
When defendant asked the detective if KK was saying that there were “multiple times,”
Schickinger replied, “Multiple times she is saying. And she’s not lying about that.” Later,
Schickinger stated that “[w]e have no reason to believe [KK] is lying about this.”
These statements are plainly prohibited by Musser and should not have been presented to
the jury. As in Musser, Detective Schickinger made statements that children do not lie about
sexual assault generally and that the complainant in this case was not lying. These statements
amounted to an improper bolstering of KK’s credibility, and the prosecution does not contend that
the statements were relevant for another purpose, e.g., providing context to defendant’s statements.
Accordingly, the statements were not relevant under MRE 401 or admissible under MRE 403, and
defense counsel’s failure to request their redaction from the interview fell below an objective
standard of reasonableness.
The trial court determined that defendant had not shown a reasonable probability of a
different result had the interview been redacted. The trial court reasoned that unlike Musser, there
was other evidence in this case for the jury to evaluate the complainant’s credibility, specifically
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defendant’s apology to his wife3 and his admission that he lowered the child’s pajamas midway
down her thigh before he stopped himself. However, defendant did not admit to any sexual contact
and as in Musser, there was no physical evidence or third-party witness to the alleged assaults.4
Further, the other evidence referenced by the trial court is equally consistent with both defendant’s
and KK’s versions of events. And, if believed, KL’s testimony that KK pressured her into making
false allegations against defendant undermined KK’s credibility.
The trial court distinguished Musser on the basis that the detective in that case had testified
regarding his training and experience with forensic interviews, thus giving him the “same aura of
superior knowledge that accompanies expert witnesses in other trials.” Id. at 363 (quotation marks
and citation omitted). The trial court reasoned that there was no such testimony with respect to
Detective Schickinger in this case. Nonetheless, the jury heard Schickinger’s statement during the
interview that “we’ve been doing this for a long time and we investigate a lot of cases where stuff
like this happens” immediately before her statements that children are unable to lie about sexual
assault and that KK was not lying. Further, Musser recognized that “an out-of-court statement
made by an investigating officer may be given undue weight by the jury where the determination
of a defendant’s guilt or innocence hinges on who the jury determines is more credible—the
complainant or the defendant.” Id. at 358 (quotation marks and citation omitted). Accordingly,
even in the absence of testimony about her training, there is a risk that the jury looked at
Schickinger’s statements as the “much sought-after hook on which to hang its hat.” Id. at 363(quotation marks and citation omitted).
In sum, defense counsel’s failure to move to redact the police interview was not objectively
reasonable. Under Musser, the detective’s statements that vouched for the child complainant’s
credibility were inadmissible. Given that this case hinged on a credibility assessment, these
statements were highly prejudicial to the defense. For these reasons, we conclude that, but for
3
Defendant’s wife testified that after defendant admitted pulling down KK’s pants, he sent her a
message apologizing for his actions.
4
In Musser, the defendant testified he never sexually assaulted the child, and, at most, innocently
kissed her and accidentally touched her back. Musser, 494 Mich at 342, 364. In this case,
defendant, wearing only his underwear, entered the bedroom where his young step-granddaughter
was sleeping alone late one night and pulled down her pajama bottoms and underwear. Although
defendant told the police he never exposed KK’s pubic bone, he told his wife and her friend these
items were pulled down to the girl’s mid-thigh. Defendant arguably attempted to commit criminal
sexual conduct, MCL 750.92 and MCL 750.520b or MCL 750.520c, an assault or attempted assault
with the intent to commit criminal sexual conduct, MCL 750.92 and MCL 750.520g, or, at the
very least, an assault, MCL 750.81(1). Nevertheless, if defendant’s claim that he stopped himself
before any sexual contact or penetration occurred was believed, it might constitute abandonment
to an attempted crime and support his position that he was not guilty of the charged crimes. See
and compare People v McNeal, 152 Mich App 404, 414-417; 393 NW2d 907 (1986), overruled in
part on other grounds People v Jaffray, 445 Mich 287, 308, 312; 519 NW2d 108 (1994).
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defense counsel’s deficient performance with respect to the police interview, there is a reasonable
probability that the outcome at trial would have been different.5
Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Anica Letica
/s/ Kathleen A. Feeney
5
Given this conclusion, we decline to address defendant’s other claims of ineffective assistance
of counsel, including that defense counsel was ineffective for not objecting to the testimony of
Mathis and Welke explaining the purpose and process of a forensic interview, for failing to seek
redaction of the detectives’ repeated references to defendant’s past pornography addiction and
“porn Steve,” during the police interview, and for failing to call an expert regarding pornography
addiction.
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