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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 11, 2017

V No. 332551 Chippewa Circuit Court MARK LEONARD DALE, LC No. 15-001740-FH

Defendant-Appellant.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

. Defendant appeals as of right from his jury-trial conviction o f, and sentence for, domestic violence, third offense, MCL 750.81(5), for which the trial cou rt sentenced defendant to serve 23 months’ to five years’ imprisonment with credit for 235 days se rved. For the reasons discussed below, we affirm.

I. BASIC FACTS

The complainant testified that she and defendant, then her hus band, celebrated St. Patrick’s Day by going out for dri nks. Defendant returned home first, and the complainant followed approximately two hours later. She smelled something burning upon returning home and discovered a roast left in the oven and a pot of cabbage le ft on the stovetop. The complainant aroused the sleeping defendant to confront him abou t the burned food, and an intense argument ensued. The complainant admitted that she dum ped the pot of cabbage on the floor and threw some at defendant, and further testified that d efendant shoved her twice, causing her to collide with objects and fall down. The complainant con tinued that she withdrew to the dining room to sit down and cry, but that defendant came from b ehind and struck her head so forcefully that she was knocked off her chair and “went flying into the wall.” According to the complainant, she “saw stars” a nd did not attempt to get up for several minutes.

The complainant recounted the incident to a friend the followi ng day. Two days after the incident, she reporte d it to a police offi cer, who took a repor t and photographed her injuries. The photographs were admitted at trial, as was documentary evidence that defendant had pleaded guilty to an act of domestic violence against the complainant i n 2013. The officer directed the complainant to report this new incident to defendant’s probatio n officer, who promptly secured a warrant for defendant’s arrest.-2- Defendant testified at trial, and admitted that he had an inte nse argument with the complainant, but denied that he struck or shoved her. Defendan t suggested that the complainant’s injuries actually resulted from her having slippe d on the stairs lead ing to the porch of their home. The complainant admitted that she had indeed sl ipped on the stairway, but testified that she was not injured by the fall.

II. EVIDENTIARY ISSUES

On appeal, defendant contends that the trial court erred by al lowing evidence of defendant’s prior conviction for domestic violence to be admitt ed because its prejudicial effect far outweighed its probative valu e. Defendant also complains t hat the jury heard inadmissible evidence that he was on probation for failure to pay child supp ort. Defendant failed to object to these issues below, so our review is for plain error affecting substantial rights. People v Brown
, 279 Mich App 116, 134; 755 NW2d 664 (2008). “To avoid forfeitu re under the plain error rule, three requirements must be met: (1) error must have occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain er ror affected substantial rights .” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement generally req uires a showing of prejudice, i.e., that the error affected the outcome of the lower court pr oceedings.” Id

. MCL 768.27b(1) provides in relevant part that “in a criminal a ction in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domes tic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule o f evidence 403.” The latter rule of evidence directs a court to exclude even relevant evidence if “ its probative value is substantially outweighed by the danger of unfai r prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless pr esentation of cumulative evidence.” MCL 768.27b “allows trial courts to admit relevant evidence of other domestic assaults to prove any issue, even the character of the accused, if the evidence meets the standard of MRE 403.” People v Pattison , 276 Mich App 613, 615; 741 NW2d 558 (2007).

Defendant concedes that evidence of defendant’s prior domestic violence conviction was admissible pursuant to MCL 768.27b, but contends that its preju dicial effect far outweighed its probative value. Defendant arg ues that plaintiff should have e licited testimony that defendant was previously convicted without introducing his judgment of se ntence specifying domestic violence, second offense. Defenda nt also argues that the court should have issued a limiting instruction. Defendant thus implies that it was unfair for the jury to learn that the conviction was for defendant’s second domestic violence offense because of the obvious implication that there must have been an unmentioned first such offense. But when the complainant was questioned about defendant’s prior offense in connection with the admissio n of the judgment of sentence, she merely stated that defendant previously pleaded guilty to “ domestic assault” without mentioning it was his second such offense. Similarly, the pros ecuting attorney referred to defendant’s prior conviction duri ng closing argument without st ating that it was his second offense. The record also reflects that the judgment of sentenc e was not sent to the jury room. We have in fact found no indication in the record that the juro rs were ever informed that the earlier domestic assault convic tion was defendant’s second such offense. For these reasons, defendant fails to bring plain e rror to light with this argumen t.-3- Defendant also makes issue of t he jury’s having heard testimon y that defendant was on probation for failure to pay child support. It is well settled that evidence of a prior conviction may be prejudicial to the accused because it tempts the jury to focus on the defendant’s general bad character. People v Griffin , 235 Mich App 27, 36; 597 NW2d 176 (1999), overruled on other grounds People v Thompson , 477 Mich 146; 730 NW 2d 708 (2007). Defendant argues that testimony relating to his status as a probationer was not admis sible under MRE 404(b) 1 or MRE 609 2 because failure to pay child support is not a crime of dishone sty or theft.

However, although the jury heard testimony that defendant was on probation, it was defense counsel who elicited from the probation officer that de fendant was on probation for nonpayment of child support. To the extent that defendant comp lains that the jury learned of the specific nature of the crime for which he was on probation, it is well established that a party “may not harbor error as an appellate parachute.” People v Carter , 462 Mich 206, 214; 612 NW2d 144 (2000). Put another way, a criminal defendant may not assign error on appeal to something the defendant’s own lawyer deemed proper at trial. People v Barclay , 208 Mich App 670, 673; 528 NW2d 842 (1995).

1 MRE 404(b)(1) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity the rewith. It may, however, be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, scheme, plan, or system in doing an act, k nowledge, identity, or absence of mistake or accident when the same is material, wh ether such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

2 MRE 609(a) provides: For the purpose of attacking the credibility of a witness, evi dence that the witness has been convicted of a crime shall not be admitted unl ess the evidence has been elicited from the witness or established by public rec ord during crossexamination, and

(1) the crime contained an ele ment of dishonesty or false stat ement, or

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convic ted, and

(B) the court determines that the evidence has significant pr obative value on the issue of credibility and, if the witness is the d efendant in a criminal trial, the court further determines that the probativ e value of the evidence outweighs its prejudicial effect.-4- Further, the defense never objected to testimony that defendan t was on probation, and the prosecution never offered it for the purposes of attacking defe ndant’s credibility under MRE 609 or for any purpose delineated in MRE 404(b). The mention of de fendant’s status as a probationer first came about when the complainant explained why the police officer with whom she spoke directed her to report the incident to defendant’s pr obation officer. Defendant’s probationer status also bore on th e complainant’s explanation t hat she did not immediately report the abuse because she still loved defendant and was worried tha t he would go to prison.

In any event, defendant has not shown outcome-determinative pr ejudice stemming from the testimony that he was on probation, or that he was previous ly convicted of domestic violence. The prosecution adduced photographs of the complaina nt’s injuries, including of her bruised arm, elbow, shoulder, foot, chest, and hand. The photo graphs also depicted bruises reflecting “fingerprint marks,” which, as a police witness expl ained, often resulted from instances of domestic violence involving “grabbing.” The natur e, number, and location of the injuries were consistent with the complainant’s account of dome stic violence and belied defendant’s claim that the complainant sustained the injuries f rom tripping on the stairway leading to their porch. In light of the complainant’s compelli ng testimony, and the other evidence supporting it, defendant has not shown that testimony that he was on probation, or previously convicted of domestic violence, was likely outcome d eterminative.

III. SENTENCING ENHANCEMENT

Defendant contends that the tr ial court erroneously enhanced h is sentence as a third offender for the crime of domestic violence. However, defendan t failed to raise any such objection at sentencing, so our r eview is limited to plain erro r affecting substantial rights. Brown , 279 Mich App at 134.

MCL 750.81b provides in pertinen t part as follows: The following provisions apply in any case in which the prosec uting attorney seeks an enhanced sen tence under section 81(3) or (4) or 81a(3):

* * *

(b) The defendant’s prior convi ction or convictions shall be e stablished at sentencing. The existence of a prior conviction and the factua l circumstances establishing the required relatio nship between the defendant an d the victim of the prior assault or assault and battery may be established by any evidence that is relevant for that purpose , including, but not limited to, 1 or more of the following:

( i ) A copy of a judgment of conviction.

( ii ) A transcript of a prior tria l, plea-taking, or sentencing pro ceeding.

( iii ) Information contained i n a presentence report.

( iv ) A statement by the defendant.-5- Defendant contends that the tria l court erred because it relie d in part upon defendant’s 2004 conviction for assault and battery to enhance his sentence to one for domestic violence, third offense, without making any findings about the relationsh ip between defendant and the victim of that assault and battery. However, MCL 750.81b(b)( iii ) explicitly permits a court to rely upon the contents of a presentence investigation report in making its findings about the requisite relationship to enhan ce a defendant’s sentence. Defe ndant’s PSIR indicates that he was convicted of aggravated domestic v iolence, second offense, in 2 013, and convicted of assault and battery in 2004 after initially being charged with domestic vio lence. Because defendant was convicted of aggravated domestic violence, second offense, the requisite relationship necessarily existed regarding the first offense in 2004. See MCL 750.81a(3 ). 3 Accordingly, the information in the PSIR provided a sufficien t basis for the sentence enhanc ement.

IV. ASSISTANCE OF COUNSEL

Defendant contends that defense counsel was ineffective for f ailing to raise objections in connection with the evidentiary and sentencing-enhancement issu es discussed above. The prosecution correctly retorts tha t the issue of ineffective ass istance is not properly presented for review because it is outside the scope of the questions present ed on appeal, and this Court may decline to address it for that reason. See MCR 7.212(C)(5); People v Albers , 258 Mich App 578, 584; 672 NW2d 336 (2003). But, even considering the issue on i ts merits, we conclude that defendant is not entitled to relief.

Defendant neither moved the trial court for a new trial nor at least an evidentiary hearing in connection with this issue, t hus leaving it unpreserved. Se e People v Heft , 299 Mich App 69,

3 MCL 750.81(a)(3) provides as follows:

An individual who commits an a ssault and battery in violation of subsection (2), and who has 1 or more previous convictions for assaulting or assaulting and battering his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individ ual with whom he or she has had a child in common, or a resident or former resid ent of the same household, in violation of any of the following, is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more th an $5,000.00, or both:

(a) This section or an ordinance of a political subdivision of this state substantially correspond ing to this section.

(b) Section 81, 82, 83, 84, or 86.1

(c) A law of another state or an ordinance of a political subd ivision of another state substantially corr esponding to this section or se ction 81, 82, 83, 84, or 86.-6- 80; 829 NW2d 266 (2012). Our review is therefore limited to th e existing record. People v Odom , 276 Mich App 407, 415; 740 N W2d 557 (2007).

“To prove that defense counsel was not effective, the defendan t must show that (1) defense counsel’s performance was so deficient that it fell bel ow an objective standard of reasonableness and (2) there is a reasonable probability that d efense counsel’s deficient performance prejudiced the defendant.” Heft , 299 Mich App at 80-81. “The defendant was prejudiced if, but for defense c ounsel’s errors, the result of the proceeding would have been different.” Id . at 81. “The defendant must overcome a strong presumption tha t counsel’s assistance constituted sound trial strategy.” People v Stanaway , 446 Mich 643, 687; 521 NW2d 557 (1994).

In this case, defendant fails to show that counsel’s performan ce was deficient for failure to object to the admission of his 2013 domestic violence convic tion because, as discussed above, that conviction was admissible under MCL 768.27b and its probat ive value was not substantially outweighed by its prejudicial eff ect. “Failing to advance a me ritless argument or raise a futile objection does not constitute i neffective assistance of counsel .” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). Nor does defendant show tha t the testimony that he was a probationer likely affected t he outcome of the trial.

And as also discussed above, defe ndant failed to bring to ligh t any error concerning the information the trial court relied upon in determining that def endant was subject to sentencing enhancement as a third domestic violence offender. Because def ense counsel thus had nothing to gain from raising any objections in the matter at sentencing, n o lack of such objection supports a claim of ineffective assistance. See Ericksen , 288 Mich App at 201.

Affirmed.

/s/ David H. Sawyer /s/ Christopher M. Murray /s/ Elizabeth L. Gleicher