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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

v No. 331513 Macomb Circuit Court ROBERT DESHAWN LEWIS, LC No. 2015-003104-FC

Defendant-Appellant.

Before: S ERVITTO , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

. Following a jury trial, defenda nt was convicted of one count o f first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a), and five counts of se cond-degree CSC, MCL 750.520c(1)(b), fourth offense. Defendant was sentenced to con current prison terms of 25 to 50 years for the first-degree CSC conviction, and 200 to 360 month s for the second-degree CSC convictions. Defendant now app eals as of right. We affirm.

I. FACTUAL BACKGROUND

This case arises from six instances of criminal sexual assault on two minor children, which happened between January 2013 and March 2014. For privac y reasons, the children will be referred to as DL and EL. Both of the children were girls who were under the age of 13 and defendant was over the age of 17. Defendant lived with the gir ls because he was dating their mother. One of the assaults involved penetration and the other s involved improper touching of the minor children’s unclothed br easts or vaginas. In all of t he instances, the conduct happened in secret when other family members were home, but not nearby. Many of the assaults happened late in the evening on the famil y couch and often, the girls we re in their pajamas.

EL and DL had an older sister, who will be referred to as NM. NM did not live with her mother and her sisters. One w eekend in late May 2013, NM went to visit her mother at the home where defendant resided. One late evening, NM was lying on the family couch. Defendant was seated in a nearby chair, but m oved to the couch and sat uprigh t near NM’s feet. NM was asleep and she felt defendant’s hands “like go up my body.” Defendant touched NM’s leg, thigh, and butt on top of her pajamas and then he moved his hand up and do wn over her clothes on her vagina. NM left the room and the sexual assault ended. Eventu ally, defendant entered a plea of nolo contendere of attempted fourth -degree criminal sexual cond uct.-2- II. ADMISSION OF NM’S TESTIMONY

Defendant first argues on appeal that the trial court abused i ts discretion by allowing the testimony of NM and evidence of defendant’s prior conviction be cause the testimony was irrelevant and overly prejudici al. “A trial court’s admission of other-acts evidence is reviewed for an abuse of discretion.” People v McGhee
, 268 Mich App 600, 609; 709 NW2d 595 (2005). “A trial court abuses its discretion when it admits evidence th at is inadmissible as a matter of law.” Id.

MCL 768.27a provides in part: (1) Notwithstanding section 27, in a criminal case in which th e defendant is accused of committing a listed offense against a minor, evid ence that the defendant committed another listed offense against a minor is a dmissible and may be considered for its bearing on any matter to which it is rele vant. If the prosecuting attorney intends to offer evidence under this secti on, the prosecuting attorney shall disclose the evide nce to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the co urt for good cause shown, including the statements of witnesses or a summary of th e substance of any testimony that is expected to be offered.

(2) As used in this section:

(a) “Listed offense” means that term as defined in section 2 o f the sex offenders registration act, 1994 PA 295, MCL 28.722.

(b) “Minor” means an indivi dual less than 18 years of age.

MCL 768.27a still remains subject to MRE 403. People v Watkins , 491 Mich 450, 486; 818 NW2d 296 (2012). MRE 403 provides that evidence must be ex cluded if “its probative value is substantially outweighe d by the danger of unfair preju dice, confusion of the issues, or misleading the jury, or by cons iderations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id . at 481. “[W]hen applying MRE 403 to evidence admissible unde r MCL 768.27a, courts must weigh th e propensity inference in favo r of the evidence’s probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference.” Id . at 487. However, other-acts evidence may be excluded if the evidence is overly prejudicial. Id. “There are several considerations that may lead a court to exclude such evidence.” Id. These considerations include: (1) the dissimilarity between the other acts and the charged cr ime, (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 l ack of reliability of the evidence supporting the occurrence of the other acts, and (6) t he lack of need for evidence beyond the complainant’ s and the defendant’s testimony . [ Id. at 487- 488]-3- Defendant argues that NM’s testimony was irrelevant and unfair ly prejudicial, and that it should have been excluded pursuan t to MRE 402 and MRE 403 becau se of the “dissimilarity between the other acts and the charged crimes.” Defendant argu es that this other-acts evidence was dissimilar because NM was 16 years old and the victims in t he instant case were under 13 years old. In addition, defendant argues that the following fa ctors should have been weighed against admissibility: (1) there was no temporal proximity bet ween the other acts and the charged crime, (2) the other-acts evidence is only one incident so there is a lack of frequency, and (3) the jury only needed to hear the testimony of DL and EL . Defendant’s arguments are without merit.

Defendant argues that it is im portant to distinguish that NM w as 16 years old when the assault occurred and her sister s were only 11 and 12 years old. Defendant asserts that the legislature imposed a different penalty on defendants who sexua lly assaulted older children, as opposed to children who were und er 13, and that this fact shoul d be dispositive to show that the assault of NM was different than the assaults of DL and EL. Bu t the fact that the legislature has imposed a mandatory minimum sentence of 25 years for offenders who victimize a person under 13 is irrelevant. The governing law is MCL 768.27a, which simp ly provides that other-acts evidence is admissible if the o ther-acts evidence involves a “l isted offense” and the victim was a minor, which means that the victim was under 18 years of age. In addition, the factual basis of the other-acts evidence is clearly relevant and admissible unde r MRE 402. And the evidence is not overly prejudicial under MR E 403. The other-acts evidence pertaining to the victims’ sister, NM, demonstrates a pattern showing that defendant preyed on the se minor children when they were alone, outside of the pres ence and protection of their mot her and other family members, and that defendant performed the acts in secret. There are cle arly parallels between the circumstances surrounding NM’s sexual assault and the sexual as saults of DL and EL. NM was assaulted on a couch in her mother’s home late in the evening. DL was assaulted on a couch in her mother’s home late in the ev ening. EL was assaulted on her mother’s bed. NM was wearing her pajamas with underwear underneath. DL was wearing her paja mas and on at least two occasions she wore underwear underneath. All of the assaults i nvolved defendant touching the girls in their private chest or vaginal areas, either over thei r clothes or on their skin, with the exception of one time that involved penetration.

Defendant assaulted NM in 2013 and DL and EL were assaulted ar ound the same time. This demonstrates that there was, in fact, temporal proximity. While there was only one otheracts occurrence, this is immaterial because of the similarity b etween the other-acts evidence and the sexual assaults that are the subject of this case. Finally , other-acts evidence so similar to the sexual assaults in the instant case shows that there was a need for the jury to hear the other-acts evidence. This evidence showed defendant’s propensity to sexua lly assault the female minor daughters of his then-girlfriend. It also does not matter that the incident involving NM was a misdemeanor and not a felony. MCL 768.27a does not make a dist inction between other-acts evidence pertaining to misdemeanor s or felonies. The statute s imply provides that, “in a criminal case in which the defendant is accused of committing a listed o ffense against a minor, evidence that the defendant committed another listed offense against a m inor is admissible[.]” Accordingly, the trial court did not abuse its discretion by ad mitting NM’s testimony and a copy of defendant’s conviction relate d to that sexual assault.

331513-4- III. SIXTH AMENDMENT RIGHT TO PUBLIC TRIAL

Defendant next argues that he was deprived of his Sixth Amendm ent right to a public trial because the trial court closed the courtroom during the t estimony of DL and EL. This issue is reviewed de novo because it is a constitutional issue. People v Pennington , 240 Mich App 188, 191; 610 NW2d 608 (2000).

“The right to a public trial ‘ has its roots in our English com mon law heritage.’ ” People v Vaughn , 491 Mich 642, 650; 821 NW2d 288 (2012), quoting In re Oliver , 333 US 257, 266; 68 S Ct 499; 92 L Ed 682 (1948). “The Sixth Amendment of the Unit ed States Constitution expressly enumerates this right and states that a criminal defe ndant ‘shall enjoy the right to a . . . public trial . . . .’ ” Vaughn , 491 Mich at 650. The Michigan constitution also guarantees that a criminal defendant will have the right to a public trial. Id . However, “[a] defendant’s Sixth Amendment right to a public tri al is limited, and there are cir cumstances that allo w the closure of a courtroom during any stage of a criminal proceeding, even ove r a defendant’s objection[.]” Id. at 653. “ ‘[T]he party seeking to close the hearing must advan ce an overriding interest that is likely to be prejudiced, the closure must be no broader than ne cessary to protect that interest, the trial court must consider reasonable alternatives to closing th e proceeding, and it must make findings adequate to support the closure.’ ” Id. , quoting Presley v Georgia , 558 US 209, 214; 130 S Ct 721; 175 L Ed 2d 675 (2010) (citation omitted).

MCL 600.2163a(16) allows the court, upon the motion of a party , to make special arrangements to protect the welfa re of a witness. The factors for the court to consider are:

(a) The age of the witness.

(b) The nature of the offense or offenses.

(c) The desire of the witness or the witness’s family or guar dian to have the testimony taken in a r oom closed to the public.

(d) The physical condi tion of the witness.

Defendant argues that the trial court erred because it did not make findings of fact pursuant to MCL 600.2163a(16). A review of the record reveals that the trial court did make findings of fact when it ruled on the prosecutor’s motion to cl ose the court room. The prosecutor asked to have the courtroom closed to protect the children beca use their testimony was of a sensitive nature and the courtroom was an intimidating setting. In granting the prosecutor’s motion, the trial court noted that DL and EL were both very you ng and the testimony they were to give was very sensitive because they were going to be talkin g about the sexual assaults at issue. Defendant and his counsel were permitted to stay in the courtroom during DL and EL’s testimony and the courtroom was only closed for the limited tim e that the two minors testified. It is clear that the trial court considered the fact that the chil dren were minors and that their testimony was of a sensitive na ture. Under the circumstances, the trial court pr operly determined that special arrangements were needed to protect the child witn esses.-5- Defendant’s argument that DL and EL’s testimony should have be en broadcast by closed circuit television is also without merit. MCL 600.2163a(17) do es not require the trial court to broadcast the minor’s testimony by closed circuit television. The statute simply provides the court with options to protect a witness. However, assuming tha t the trial court did not comply with MCL 600.2163a(17), and that this was error, defendant has not shown that relief is warranted. See People v Carines , 460 Mich 750, 774; 597 NW2d 130 (1999).

Finally, we reject defendant’s claim that the closure of the c ourt room in conjunction with the use of a support person, as permitted under MCL 600.2163a(4 ), sent a message to the jury that the trial court believed that DL and EL were telling the t ruth. Defendant has not provided any support for his argument and t here is nothing in the record to establish his claim.

IV. RIGHT TO PRESENT A DEFENSE

Next, defendant argues that he was deprived of his constitutio nal right to present a defense because his direct examination of Heather Solomon, an i nterviewer from Care House, was interrupted with hearsay objections that were sustained. T he trial court’s admission or exclusion of evidence is reviewed by this Court for an abuse of discretion. People v Steele , 283 Mich App 472, 478; 769 NW2d 256 (2009).

MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence t o prove the truth of the matter asserted.” “Hearsay is generally prohibited and may only be ad mitted at trial if provided for in an exception to the hearsay rule.” People v Gursky , 486 Mich 596, 606; 786 Mich 579 (2010). Defendant argues that he was not attempting to offer a “stateme nt,” but the absence of a statement. A statement has been defined as “(1) an oral or wri tten assertion or (2) nonverbal conduct of a person, if it is intended by the person as an asse rtion.” MRE 801(a). A review of the record reveals that defendant sought testimony from Heather Solomon about what DL and EL told her or about how DL and EL felt. This was a classic ca se of eliciting hearsay testimony. Defendant had already asked thes e same questions of DL and EL a nd he had received responses, based upon their personal knowledg e. While defendant claims th at he was not eliciting hearsay statements, his questions showed otherwise. The trial court di d not abuse its discretion by excluding the hearsay respons es of Heather Solomon.

V. IMPOSITION OF COSTS

Defendant also argues that the trial court imposed costs in th e amount of $4,500, of which $3,625 were attorney fees, without making the requisite f indings of fact. Because defendant failed to object to the imposition of costs, this Cou rt reviews the issue for plain error. People v Konopka (On Remand) , 309 Mich App 345, 356; 869 NW2d 651 (2015). “To establish plain error requiring reversal, a defendant must demonstrate th at ‘1) error must have occurred, 2) the error was plain, i.e. clear o r obvious, 3) and the plain er ror affected substantial rights.’ ” People v Hanks , 276 Mich App 91, 92; 740 NW2d 530 (2007), quoting Carines , 460 Mich at 763.

It was not plain error for the trial court to assess attorney fees against defendant without making findings of fact. MCL 769.1k(1)(b)( iii )(C) and ( iv ) provide:-6- (1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilt y, both of the following apply at the time of sentencing or at the time entry of a judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:

* * *

(b) The court may impose any or all of the following:

* * *

( iii ) . . . any cost reasonably relate d to the actual costs incurre d by the trial
court without separately calculating those costs involved in the particular case, including, but not lim ited to, the following :

* * *

(C) Necessary expenses for the operation and maintenance of co urt buildings and facilities.

( iv ) The expenses of providing leg al assistance to the defendant.

Defendant argues that the statue provides that when costs incu rred by the trial court are assessed, the trial court does not have to make findings of fac t, but when attorney fees are assessed, the trial court must make findings of fact. This arg ument is contrary to the language of the statute. Where the statutory language is “unambiguous, the Legislature is presumed to have intended the meaning expressed an d further judicial constructio n is impermissible.” People v Kloosterman
, 296 Mich App 636, 639; 823 NW2d 134 (2012). “Words in a statue are given their plain and ordinary meaning[.]” Id.

Here, the language of the statue is clear and provides that co sts (which include the expense of providing legal assi stance to defenda nt) do not have to be separately calculated. Contrary to defendant’s argumen t, there is nothing in the statu te which requires the court to examine a bill for services, take testimony about the number of hours that counsel expended, or have a discussion regarding a r easonable hourly fee. The trial court stated on the record that the $4,500 judgment included $3,625 for attorney fees and $875 as a separate judgment. Given that the language of the statute inc ludes attorney fees as a compone nt of costs, which do not have to be separately calculated, the t rial court’s award of $4,500 in defense costs, without making findings of fact as to the award of attorney fees, was proper. Defendant has failed to show that there was any plain error.

VI. STANDARD 4 BRIEF

Next, defendant raises several issues in a supplemental brief filed in propria persona pursuant to Supreme Court Ad ministrative Order No. 2004–6, Stan dard 4.

Defendant raises several arguments regarding the assistance of trial counsel. He first argues that the trial court erred by not providing him with sub stitute counsel. This argument is-7- without merit. During the proc eedings on November 16, 2015, de fendant asked the trial court to appoint a new attorney and the t rial court appointed a new atto rney.

Defendant also claims that his counsel was ineffective becaus e he failed to investigate at the pretrial phase, failed to f ile motions, and failed to under stand the “substantial and procedural.” Defendant did not o bject to any of the claims of error. “Where claims of ineffective assistance of counsel have not been p reserved, our review is limited to errors apparent on the record.” People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). We have reviewed the record and no errors are apparent. In brief, whil e defendant claims that his counsel should have performed further investigation, defendant fails to indicate what other investigation should have been performed that would have led to the discovery of additional and helpful evidence. Defendant also fails to substantiate his claims that his attorney should have sought to subpoena a “favorable material witness” under MCL 775.15 or that a motion for an expert witness should have been filed because such testimony would hav e aided the jury in reaching its verdict, People v Smith , 425 Mich 98, 105; 387 NW2d 814 (1986). And defendant has fai led to demonstrate that his counsel did not understand the “substantia l and procedural” matters contested. Accordingly, defendant ’s argument that his counsel was ineffective must fail.

Next, defendant argues that he did not have a circuit court ar raignment within the 21-day rule as required under MCR 6.113. Defendant did not raise this issue in the trial court, thus, our review is for plain error. See Konopka (On Remand) , 309 Mich App at 356. “To establish plain error requiring reversal, a defendant must demonstrate that ‘1) error must have occurred, 2) the error was plain, i.e. clear or obvious, 3) and the plain error affected substantial rights.’ ” Hanks
, 276 Mich App at 92, quoting Carines , 460 Mich at 763.

While we find no requirement in MCR 6.113 that defendant be ar raigned in the trial court 21 days after his preliminary hearing, defendant was in fact wa s arraigned on September 21, 2015, which was 21 days after his preliminary examination, whic h occurred on August 31, 2015. Defendant was presented with the information at the arraignment and he waived a formal reading of the charges. There is no erro r, plain or otherwise, and thi s issue is without merit.

Finally, defendant argues that the trial court did not have jurisdiction because the complaint was defective and the court’s jurisdiction was compro mised. A complaint must only recite the substance of the accusation and contain factual alle gations establishing reasonable cause. MCL 764.1a(1). The complaint must be sworn before a ma gistrate or clerk. Id. Factual allegations contained in a complaint may be based upon informat ion and belief, personal knowledge, or both. MCL 764.1a(3).

An examination of the initial complaint reveals that it was a two-count complaint that contained one count of first-degree CSC with a person under th e age of 13, pursuant to MCL 750.520b(1)(a), and a second count of second-degree CSC with a person less than 13 years old, pursuant to MCL 750.520c(1)(b). Without revealing the identityof the minors, each count contained a limited amount of fact s as they pertained to the ac ts allegedly done to the minor children. The complaining witness was a police detective and t he complaint was sworn before a magistrate or a clerk on July 23, 2015. Contrary to what defen dant believed should have been in the complaint, the complaint was proper because it recited the substance of the accusations and it-8- contained factual allegations est ablishing reasonable cause. D efendant has failed to show that plain error occurred.

Affirmed.

/s/ Deborah A. Servitto /s/ Mark J. Cavanagh /s/ Karen M. Fort Hood