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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 27, 2018

v No. 334856

Oakland Circuit Court

CORDNEY SHEROD STUBBS-WILLIAMS, LC No. 2016-257766-FC

Defendant-Appellant.

Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of first-degree criminal sexual conduct 

(CSC-I), MCL 750.520b(1)(a), and second-degree criminal sexual conduct (CSC-II), MCL 

750.520c(1)(a). The trial court sentenced defendant to concurrent prison terms of 25 to 60 years 

for the CSC-I conviction and 10 to 15 years for the CSC-II conviction. We affirm.

Defendant was convicted of sexually molesting his six-year-old daughter. The victim 

lived with defendant during a seven-month period in 2015 when she was six years old. The 

victim testified that, during this period, defendant touched her “bad part,” which she clarified to 

mean her anus, with his “bad part,” which she clarified to mean his penis. She stated that 

defendant pulled down her pants and inserted his penis into her anus. According to the victim, 

this happened “a lot of times.” At trial, the prosecutor introduced, pursuant to MCL 768.27a, 

evidence that several years earlier defendant sexually assaulted his cousin, LM, who was six or 

seven years old at the time. LM testified that when defendant spent the night at her house, he 

took off her underwear and inserted his penis into her vagina. LM also testified that, on another 

occasion, defendant took LM and her cousin, VT, who was eight years old at the time, into a 

room at his home and made LM watch while defendant touched VT in an inappropriate manner. 

I. ADMISSION OF OTHER ACTS EVIDENCE

On appeal, defendant challenges the trial court’s decision to admit LM’s testimony under 

MCL 768.27a. Defendant does not dispute that the testimony qualified for admission under this 

statute, but argues that the trial court abused its discretion by failing to exclude the evidence

under MRE 403. We review for an abuse of discretion a trial court’s decision to admit or 

exclude evidence. People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). 
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The trial court admitted LM’s testimony under MCL 768.27a, which provides 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.” Evidence that is 

admissible under MCL 768.27a may be excluded, however, under MRE 403 when “its probative 

value is substantially outweighed by the danger of unfair prejudice.” See also People v Watkins, 

491 Mich 450, 487; 818 NW2d 296 (2012) (holding that evidence admissible under MCL 

768.27a may be excluded as overly prejudicial under MRE 403). In determining whether 

evidence admissible under MCL 768.27a should be excluded under MRE 403, the court should 

consider (a) the similarly between the other acts and the charged offense; (b) the temporal 

relationship between the other acts and the charged offense and the presence of any relevant 

intervening acts; (c) the frequency of the other acts; (d) the reliability of the other-acts evidence; 

and (e) the need for other-acts evidence given the other evidence available to the parties. Id. at 

487-488.

In support of his argument that LM’s testimony should have been excluded under MRE 

403, defendant emphasizes that he was charged with engaging in anal penetration of his 

daughter, whereas LM testified that he engaged in touching and vaginal penetration with her. In 

addition, the other acts allegedly occurred 10 years before the charged acts. Defendant further 

asserts that the evidence of the other acts consisted only of testimony from LM, and her 

testimony was not needed to prove the instant charges.

Although the sexual abuse of LM and VT allegedly took place approximately 11 years 

before the charged act, that fact, standing alone, does not preclude admission of the other-acts 

evidence. People v Solloway, 316 Mich App 174, 195; 891 NW2d 255 (2016). In this case, the 

victim is defendant’s young daughter; the other-acts evidence involved defendant’s sexual abuse 

of his young female cousins. LM and VT were approximately the same age as the victim when 

the acts allegedly occurred. Both cases involved alleged sexual penetration, albeit of different 

types. No intervening acts would weigh against admissibility of this evidence, and there is no 

indication that LM’s testimony was unreliable. Moreover, the absence of eyewitnesses or 

physical evidence to support the victim’s allegations in this case enhanced the probative value of 

the other acts evidence. The similarities between the victim’s testimony and LM’s testimony, 

and consideration of the other Watkins factors, weigh in favor of admission of the other-acts 

evidence. Accordingly, the trial court did not abuse its discretion by failing to exclude the

testimony under MRE 403. See id. at 194-196. 

II. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises additional issues in a pro se supplemental brief, filed under Supreme 

Court Administrative Order No. 2004-6, Standard 4, none of which warrant relief. 

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that defense counsel made several errors that deprived him of the

effective assistance of counsel. Because defendant did not raise an ineffective assistance of 

counsel issue before the trial court, our review of this issue is limited to mistakes apparent from 

the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005). 
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Counsel is presumed to have afforded effective assistance, and defendant bears the 

burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). 

To establish ineffective assistance of counsel, defendant must show that counsel’s performance 

fell below an objective standard of reasonableness and that, but for counsel’s error, the result of 

the proceeding would have been different. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 

884 (2001). Defense counsel has wide discretion regarding matters of trial strategy. People v

Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012). “Decisions regarding what evidence to 

present and whether to call or question witnesses are presumed to be matters of trial strategy.” 

Rockey, 237 Mich App at 76 (internal citations omitted). “This Court will not substitute its 

judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s 

competence with the benefit of hindsight.” Id. at 76-77. 

Defendant complains that defense counsel became argumentative and confrontational 

when cross-examining the victim’s mother. The record discloses that counsel’s crossexamination of the witness was, at times, contentious. The exchange about which defendant 

complains took place when counsel attempted to elicit what the victim told the witness about 

defendant’s alleged conduct. Both defense counsel and the witness talked over one another, but 

stopped when the trial court instructed them to do so. Considering that defense counsel’s crossexamination of witnesses is a matter of trial strategy, and that the trial court intervened when 

necessary to maintain order, defendant has not established that counsel’s cross-examination of 

the witness deprived him of the effective assistance of counsel. Moreover, given the strength of 

the victim’s testimony regarding defendant’s actions and the properly admitted other-acts 

evidence from LM, there is no reasonable probability that the exchange at issue affected the 

outcome of defendant’s trial. 

Defendant next argues that defense counsel was ineffective for failing to file an 

interlocutory application for leave to appeal the trial court’s decision to admit LM’s testimony 

under MCL 768.27a. Because the trial court did not abuse its discretion by admitting LM’s 

testimony under MCL 768.27a, an interlocutory appeal would have been meritless. Counsel is 

not required to file a meritless action, People v Snider, 239 Mich App 393, 425; 608 NW2d 502 

(2000), and defendant’s argument is without merit.

Defendant also asserts that defense counsel was ineffective for failing to call other 

witnesses. Because defendant fails to identify the witnesses that counsel should have called or 

explain what testimony other witnesses could have offered, defendant’s argument is likewise 

without merit. People v Payne, 285 Mich App 181, 195; 774 NW2d 714, 724 (2009) (“An 

appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no 

citation of supporting authority.”) (internal quotation marks and citation omitted).

B. THE PROSECUTOR’S CONDUCT

Next, defendant argues that the prosecutor’s cross-examination of a defense witness and 

improper comments during closing argument deprived him of a fair trial. Although defendant 

preserved his challenge to the prosecutor’s cross-examination with an appropriate objection at 

trial, he did not object to the prosecutor’s remarks during closing and rebuttal arguments, leaving 

those claims unpreserved. People v Dupree, 486 Mich 693, 703; 788 NW2d 399 (2010). An 
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unpreserved issue is reviewed for plain error affecting substantial rights. People v Carines, 460 

Mich 750, 763-764; 597 NW2d 130 (1999). An error is plain if it is clear or obvious, and an 

error affects substantial rights if it is prejudicial, i.e., if it affects the outcome of the proceedings. 

People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).

The test of prosecutorial misconduct is whether the defendant was denied a fair and 

impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial 

misconduct issues are decided on a case-by-case basis by evaluating the prosecutor’s remarks in 

context. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). A prosecutor’s 

comments must be read as a whole and evaluated in light of defense arguments and the 

relationship they bear to the evidence admitted at trial. People v Schutte, 240 Mich App 713, 

721; 613 NW2d 370 (2000). 

Defendant first takes issue with the prosecutor’s cross-examination of defendant’s father. 

During the cross-examination, the prosecutor asked the witness to confirm that the witness’s 

home was not the location where defendant “sexually assaulted his cousin, [LM].” Defense 

counsel objected, noting that LM’s testimony only involved allegations and that nothing had 

been determined by a fact-finder. The trial court sustained the objection and directed the 

prosecutor to use the word “alleged,” which the prosecutor did from that point forward. 

To the extent that the prosecutor’s question improperly suggested that LM’s testimony 

involved proven facts, defense counsel’s timely objection protected defendant’s right to a fair 

trial by emphasizing that LM’s testimony consisted of alleged, rather than proven, conduct. The 

trial court also protected defendant’s right to a fair trial by later instructing the jury that questions 

asked by the attorneys are not evidence. People v Graves, 458 Mich 476, 486; 581 NW2d 229 

(1998) (stating that a jury is presumed to follow the court’s instructions). Accordingly, the 

prosecutor’s question did not deny defendant a fair trial.

Defendant also challenges the prosecutor’s reliance on LM’s testimony during closing 

and rebuttal arguments. The prosecutor argued during closing argument that defendant 

manipulated young “family members” because preying on young people gave defendant the best 

chance to avoid getting caught, and then argued in rebuttal that defendant’s act of assaulting his 

cousin gave credence to the victim’s allegations about defendant’s behavior toward her. 

A prosecutor is free to argue the evidence and all reasonable inferences arising from the 

evidence. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). The prosecutor’s 

argument that defendant preyed on family members was supported by the testimony of the victim 

and LM. Although defendant asserts that he was never convicted of any sexual misconduct 

against LM, it was proper for the prosecutor to rely on LM’s testimony to argue that the sexual 

abuse occurred and that LM’s testimony supported the victim’s allegations of sexual abuse. See 

MCL 768.27a. Moreover, because the prosecutor’s comments during closing and rebuttal 

arguments were not improper, defense counsel was not ineffective for failing to object to the 

comments. Snider, 239 Mich App at 425.
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C. JURY SELECTION

Defendant, who is African-American, argues that the prosecutor improperly used 

peremptory challenges to excuse Jurors 1 and 8, who were also African-American, on the basis 

of their race in violation of Batson v Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 

(1986). He further argues that the racial composition of the jury venire did not represent a fair 

cross-section of the community. 

Defendant’s claim with respect to Juror 8 is waived. After defendant objected to the 

prosecutor’s use of a peremptory challenge to excuse Juror 8, the prosecutor stated that he 

excused Juror 8 because the juror appeared to have been sleeping through much of voir dire and 

because the juror had also purported to speak for the entire venire at one point during voir dire. 

Defense counsel expressly acknowledged, and the trial court agreed, that the prosecutor’s 

explanation was a satisfactory race-neutral reason for excusing the juror. Defense counsel’s 

affirmative agreement that the prosecutor had provided an acceptable race-neutral reason for 

excusing Juror 8 waived any claim of error related to that juror’s removal. People v Carter, 462 

Mich 206, 215; 612 NW2d 144 (2000). This waiver extinguishes any error. Id. 

Regarding Juror 1, defendant argues that the prosecutor improperly used a peremptory 

challenge to excuse Juror 1, whom he claims is an African-American woman, on the basis of her 

race, but defendant did not object to her removal at trial. Accordingly, defendant’s claim is 

reviewed for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 764-764. 

While a defendant’s failure to raise a Batson challenge before the trial court is not necessarily 

fatal in all cases, here, the record contains nothing to support or refute defendant’s claim that the 

juror was removed because of her race. Therefore, because it is not evident from the record that 

the prosecutor removed Juror 1 because of her race, defendant cannot establish a plain error. 

Jones, 468 Mich at 355.

Concerning defendant’s argument that the jury did not represent a fair cross-section of 

the community, defendant did not challenge the makeup of the venire in the trial court at any 

point in the proceedings, and thus did not create a factual record to support his claim. Absent an 

appropriate factual record showing the racial composition of defendant’s jury venire or the 

process in the county for selecting potential jurors, defendant cannot establish a plain error. See 

People v Dixon, 217 Mich App 400, 403-404; 552 NW2d 663 (1996).

D. SUFFICIENCY OF THE EVIDENCE

Finally, defendant argues that the evidence presented at trial was insufficient to support 

his convictions of CSC-I and CSC-II. We review de novo a challenge to the sufficiency of the 

evidence. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). This Court views 

the evidence in a light most favorable to the prosecution to determine whether a rational trier of 

fact could find that the elements of the charged crimes were proven beyond a reasonable doubt. 

People v Bulls, 262 Mich App 618, 623; 687 NW2d 159 (2004). 

Defendant was convicted of CSC-I for engaging in sexual penetration with a person 

under 13 years of age, contrary to MCL 750.520b(1)(a). “Sexual penetration” is defined in MCL 

750.520a(r) as “sexual intercourse, cunnillingus, fellatio, anal intercourse, or any other intrusion, 
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however slight, of any part of a person’s body or of any object into the genital or anal openings 

of another person’s body, but emission of semen is not required.”

Defendant was convicted of CSC-II for engaging in sexual contact with a person under 

13 years of age, contrary to MCL 750.520c(1)(a). “Sexual contact” is defined in MCL 

750.520a(q) as including “the intentional touching of the victim’s or actor’s intimate parts or the 

intentional touching of the clothing covering the immediate area of the victim’s or actor’s 

intimate parts, if that intentional touching can reasonably be construed as being for the purpose 

of sexual arousal or gratification.”

The victim, who was seven years old at the time of trial, testified that, on several 

occasions, defendant inserted his penis into her anus and that his penis also touched her buttocks. 

The victim’s testimony, if believed, was sufficient to prove beyond a reasonable doubt that 

defendant committed CSC-I and CSC-II. MCL 750.520h. The trial came down to a credibility 

contest between the victim and defendant, and it was within the province of the jury to determine 

that the victim’s testimony was credible. People v Milstead, 250 Mich App 391, 404; 648 NW2d 

648 (2002).

Affirmed.

/s/ Elizabeth L. Gleicher

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle