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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UNPUBLISHED

December 20, 2018

v No. 339186

Eaton Circuit Court

JUSTIN EARL BOWLES, LC No. 16-020072-FC

Defendant-Appellant.

Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of one count of first-degree criminal 

sexual conduct (CSC-I) under MCL 750.520b(1)(a); MCL 750.520b(2)(b) (sexual penetration of 

a victim less than 13 years of age by a defendant 17 years of age or older), one count of CSC-I 

under MCL 750.520b(1)(b)(i) (sexual penetration of a victim at least 13 but less than 16 years of 

age and a member of the same household), three counts of second-degree criminal sexual 

conduct (CSC-II) under MCL 750.520c(1)(a); MCL 750.520c(2)(b) (sexual contact with a victim 

less than 13 years of age by a defendant 17 years of age or older), and one count of CSC-II under 

MCL 750.520c(1)(b)(i) (sexual contact with a victim at least 13 years of age but younger than 16 

years old and a member of the same household). Defendant was sentenced as a second-offense 

habitual offender, MCL 769.10, to serve 40 to 60 years in prison for each CSC-I conviction and 

to serve 14 years to 270 months in prison for each CSC-II conviction. Defendant appeals as of 

right. We affirm. 

I. PERTINENT FACTS

The evidence presented at trial against defendant consisted of the testimony of the four 

victims, their mother, and one investigating police officer. Defendant did not present any 

evidence. The testimony established that over the course of several years, defendant engaged in 

a pattern of sexual abuse against the victims beginning in 2010, and continuing until 2014. 

When defendant was engaged in his pattern of sexual abuse, he would often wait until the 

victims were sleeping during the nighttime hours, sneak into their bedroom, and target one of 

them. The victims recalled several instances in which they were woken up in the middle of the 

night, finding defendant in bed with them or close to them, with his hand down their pants; 

defendant would also penetrate the victims’ genitals with his fingers. Several of the instances of 

abuse occurred while the victims’ mother was apparently sleeping or passed out on prescribed 
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sleep medication. The victims apprised their mother of defendant’s actions, but the abuse 

continued. In October 2015, local police received reports of the allegations against defendant 

after one of the victims informed a Child Protective Services agent about them. 

II. APPEARANCE OF WITNESS 

Defendant first claims that the appearance at trial of the victims’ mother—who, 

defendant asserts, testified while shackled and wearing prison attire—was so prejudicial that it 

deprived him of a fair trial. We disagree. 

This Court “will review a trial court’s decision to handcuff or shackle a witness for an 

abuse of discretion.” People v Banks, 249 Mich App 247, 257; 642 NW2d 351 (2002). “At its 

core, an abuse of discretion standard acknowledges that there will be circumstances in which 

there will be no single correct outcome; rather, there will be more than one reasonable and 

principled outcome.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). “When the 

trial court selects one of these principled outcomes, the trial court has not abused its 

discretion . . . . An abuse of discretion occurs, however, when the trial court chooses an outcome 

falling outside this principled range of outcomes.” Id. Any error in handcuffing a witness is 

nonconstitutional in nature. Banks, 249 Mich App at 258-259. “[A] preserved, nonconstitutional 

error is not a ground for reversal unless after an examination of the entire cause, it shall 

affirmatively appear that it is more probable than not that the error was outcome determinative.” 

Id. at 259-260 (quotation marks and citations omitted; alteration in original).

“The authority and discretion afforded to trial courts to control the course of trial is, in 

fact, very broad.” People v Johnson, 315 Mich App 163, 177; 889 NW2d 513 (2016). Trial 

judges have “ ‘wide discretion and power in matters of trial conduct,’ ” People v Conley, 270 

Mich App 301, 307; 715 NW2d 377 (2006), quoting People v Cole, 349 Mich 175, 199; 84 

NW2d 711 (1957), including “the authority to control the mode and order by which witnesses are 

interrogated,” People v Rose, 289 Mich App 499, 509; 808 NW2d 301 (2010), citing MRE 

611(a). See also MRE 611(b). 

A defendant’s right to a fair trial includes the right to appear before a jury without 

wearing any indicia of incarceration, including physical restraints or prison attire. See People v 

Payne, 285 Mich App 181, 186; 774 NW2d 714 (2009), and People v Lee, 133 Mich App 299, 

300-301; 349 NW2d 164 (1984). In Banks, this Court for the first time addressed the trial 

court’s authority to handcuff or shackle a witness other than a defendant. This Court held that 

the handcuffing of a testifying witness is subject to the same analysis as that for defendants—it 

“should be permitted only to prevent the escape of the witness, to prevent the witness from 

injuring others in the courtroom, or to maintain an orderly trial.” Banks, 249 Mich App at 257. 

This Court has not addressed whether a trial court, upon a timely request, must also allow an 

incarcerated witness to wear civilian clothing. Compare People v Harris, 201 Mich App 147, 

151-152; 505 NW2d 889 (1993) (a defendant’s timely request to wear civilian clothing must be 

granted). 

On the second day of trial, before the victims’ mother was brought to the courtroom to 

testify as a witness for the prosecution, the prosecution noted that she was lodged with the 

Michigan Department of Corrections (MDOC) and would be with a guard. Defendant’s trial 
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attorney objected on the record “to her being presented to the jury in prison uniform. And if I 

know MDOC, too, she’ll be shackled with a guard at her side.” Following a lengthy discussion, 

the trial court remarked that it did not have “any control” over the MDOC. When the matter 

resumed on the record, the trial court suggested that it would be best to bring the witness to the 

stand before the jury entered the courtroom. It is apparent from the transcript that the witness

entered the courtroom escorted by an unidentified female guard, who was offered a chair near the 

witness stand. The witness was sworn and seated, and then the jury entered the courtroom. 

Because the record is devoid of any description of the witness’s actual appearance in 

front of the jury, this Court cannot conclude that defendant was deprived of a fair trial. See 

People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994) (“The record does not show, 

however, that any member of the jury saw or could see the leg irons, and, therefore, the record 

does not provide a basis for a finding that the use of leg irons deprived [the defendant] of a fair 

trial.”). Moreover, Banks is distinguishable because this case does not involve a defense witness 

whose credibility was crucial to defendant’s defense, but rather a witness testifying for the 

prosecution. Had the witness testified for defendant as an alibi witness or as a character witness, 

defendant’s contention on appeal would be more logically acceptable because one might 

conclude that her credibility was damaged, considering her appearance as a guilty or dangerous 

person. Instead, any negative inference drawn by the jury from her appearance likely favored 

defendant.

Assuming that the witness was wearing prison clothing (which the prosecution does not 

dispute on appeal), we conclude that the trial court’s decision to permit her to testify while 

wearing prison clothing was within the range of reasonable and principled outcomes, Babcock, 

469 Mich at 269, considering the lack of binding authority that would have imposed a duty on 

the trial court to either forbid the testimony under the circumstances or allow her to change into 

street clothing before testifying. Accordingly, the trial court’s decision to permit the witness to 

testify while wearing prison clothing ostensibly falls within its broad authority to control the 

course of trial. Johnson, 315 Mich App at 177; MRE 611. 

III. PROSECUTORIAL MISCONDUCT

Next, defendant alleges three instances of prosecutorial misconduct, asserting that (1) the 

prosecutor improperly used the term “red herring” in characterizing defendant’s trial counsel’s 

arguments; (2) the prosecutor vouched for witness credibility; and (3) the prosecutor denigrated 

the defense. We disagree. 

“Claims of prosecutorial misconduct are generally reviewed de novo to determine 

whether the defendant was denied a fair trial.” People v Dunigan, 299 Mich App 579, 588; 831 

NW2d 243 (2013). Prosecutors are generally accorded great latitude regarding their arguments 

and conduct. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Accordingly, they 

may argue the evidence and all reasonable inferences as it relates to their theory of the case. Id.

Prosecutorial misconduct issues are decided on a case-by-case basis by examining the 

pertinent portion of the record and evaluating the prosecutor’s conduct in context. People v 

Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). The propriety of the prosecutor’s 

remarks depends on all the facts of the case. Id. at 30. The disputed comments must be read as a 
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whole and evaluated in the light of defense arguments and the relationship they bear to the 

evidence admitted at trial. Id. The test of prosecutorial misconduct is whether the defendant was 

denied a fair and impartial trial. Id. at 29. 

A defendant’s opportunity for a fair trial can be jeopardized when the prosecutor 

interjects issues broader than the guilt or innocence of the accused. People v Dobek, 274 Mich 

App 58, 63-64; 732 NW2d 546 (2007). However, otherwise improper prosecutorial remarks 

may not necessitate reversal if they address issues raised by defense counsel, i.e., where the 

remarks are invited responses. United States v Young, 470 US 1, 11-13; 105 S Ct 1038; 84 L Ed 

2d 1 (1985); see People v Jones, 468 Mich 345, 353; 662 NW2d 376 (2003). The invited 

response doctrine does not excuse improper prosecutorial remarks, but guides the determination 

whether the disputed conduct requires reversal based on its effect on the trial as a whole. Jones, 

468 Mich at 353. Plain error will not be found where, reviewing the comments in context, they 

are merely responsive to a defense argument, and any prejudicial effect could have been cured by 

a limiting instruction. Rodriguez, 251 Mich App at 32. 

A. “RED HERRING” REMARKS

During the prosecution’s closing argument, the prosecutor stated the following in 

response to defendant’s trial attorney’s cross-examination of Charlotte Police Detective James 

Beal:

So, we’ve heard . . . in the last question that was asked of Detective Beal, 

about this evidence, proof, testimony distinction. And I’m tellin’ you this is the 

defendant’s red herring. Here’s why:

Evidence is the available body of facts or information indicating whether a 

belief or proposition is true or valid, and the synonyms are: Proof, evidence. 

Synonyms: Proof, confirmation, verification, substantiation, corroboration. 

Following the conclusion of all closing arguments, outside the presence of the jury, the 

trial court clarified that the prosecutor’s closing argument also featured a PowerPoint 

presentation. One of the PowerPoint slides, titled “Evidence/Proofs/Testimony,” stated in 

capitalized bold red text: “DEFENSE RED HERRING.”

It is clear from the prosecutor’s remarks that the “red herring” she was referring to 

pertained to defense counsel’s repeated focus on “this evidence, proof, testimony distinction.” 

For example, defense counsel stated during his opening statement:

There’s only two possibilities. Either everything that these girls are going 

to tell you is true, and if you believe it to be the truth you’re supposed to convict 

him. On the other hand, if you have doubts about whether you believe them, then 

your verdict goes the other way. Kay?

I don’t anticipate there’s gonna be any physical evidence in this case. 

There’s not gonna be a doctor coming up here and telling you that, you know, he 

or she gave medical examinations to any of these girls. That’s not gonna happen. 
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There’s not gonna be any photographs. There’s nothing. Kay? The girls are 

gonna come up and they’re gonna tell you stories. . . . 

During defense counsel’s cross-examination of Beal, he asked whether Beal discovered 

any photos of the victims in defendant’s possession, and after Beal indicated that he had not, 

counsel inquired into whether Beal had generally discovered child pornography in the possession 

of an accused perpetrator in the course of Beal’s other sex-crimes investigations. When Beal 

referenced a different matter in which he discovered child pornography in a case with similar 

facts—i.e., when the perpetrator assaulted the victims in their sleep—defense counsel asked Beal 

whether the child pornography was considered evidence supporting the allegations that the 

assault actually occurred, to which Beal responded affirmatively. 

During the prosecutor’s redirect-examination of Beal, she asked whether Beal considered 

a victim’s statement evidence, to which Beal responded affirmatively. Immediately following, 

during defense counsel’s recross-examination of Beal, he asked, “Are victims’ statements proof?

Yes or no,” to which Beal responded, “Depends on the interpretation,” and counsel stated, “I’ll 

take that as a no.” 

Viewing the context of the prosecutor’s “red herring” remarks, it appears that she was not 

commenting on any substantial theory of defense—especially considering that defendant did not 

present any witnesses. Rather, the prosecutor’s remarks appear to have been directed toward 

defense counsel’s focus and attempt to define what constitutes evidence in a case that is 

dependent entirely on testimony—and mostly victim testimony, i.e., what defense counsel called 

“stories.” The “red herring” remarks were therefore responsive to defense counsel’s “evidence, 

proof, testimony distinction,” and they did not interject issues beyond defendant’s guilt or 

innocence. Dobek, 274 Mich App at 63-64. Accordingly, considering the context and 

defendant’s trial counsel’s conduct throughout the trial, the prosecutor’s use of the term “red 

herring” did not amount to prosecutorial misconduct. Finally, the trial court instructed the jury 

that “the lawyers’ opening statements and closing statements, including the prosecutor’s Power 

Point that was placed in the courtroom for her closing argument, are not evidence.” The jury 

presumably followed the trial court’s instructions. People v Graves, 458 Mich 476, 486; 581 

NW2d 229 (1998). 

B. VOUCHING FOR WITNESS CREDIBILITY 

Defendant further avers that, had the “red herring” remarks constituted the sole 

prosecutorial impropriety, “it might be something that could be overlooked.” According to 

defendant, however, “[i]n order to increase the chances for a conviction on a weak case, the 

prosecution improperly vouched for the credibility of witnesses, had witnesses vouch for the 

credibility of other witnesses, and had witnesses even vouch for their own credibility.” 

“A prosecutor may not vouch for the credibility of a witness, nor suggest that the 

government has some special knowledge that the witness is testifying truthfully.” People v 

Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). “A prosecutor may, however, argue 

from the facts that a witness is credible or that the defendant or another witness is not worthy of 

belief,” id., and the prosecutor is “not required to state inferences and conclusions in the blandest 

possible terms,” People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). 
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Specifically, defendant first refers to the prosecution “cloaking” the victims’ mother with 

credibility by asking her whether she had been promised anything in exchange for her testimony, 

and asking her whether she was telling the truth to the best of her ability. There was nothing 

improper about the question. The prosecutor did not convey a message to the jury that she had 

any special knowledge or facts indicating the witness’s truthfulness, Bahoda, 448 Mich at 277, 

because the questioning simply sought an affirmation of truthfulness; it did not elicit any detailed 

information that would otherwise suggest that the prosecutor had special knowledge of the facts 

the witness testified about. Moreover, the trial court instructed the jury to judge witness 

credibility in consideration of whether any “promises, threats, suggestions, or other influences” 

affected how the witness testified. The prosecutor’s statements were therefore relevant to what 

the jury would subsequently be instructed to consider when assessing credibility and weighing 

evidence. 

Next, defendant appears to assert that the following question to one of the victims 

amounted to prosecutorial misconduct: “Are you saying these—are you telling us today about 

what the defendant did to you because it really happened?” In asking this question, the 

prosecutor neither vouched for the witness’s credibility nor suggested that she had any special 

knowledge concerning the truthfulness of the testimony. Howard, 226 Mich App at 548. The 

context of the trial also supports the conclusion that this statement did not amount to 

prosecutorial misconduct, because the prosecution’s case-in-chief was largely dependent on the 

victims’ testimony and no other evidence. Accordingly, the result of defendant’s trial rested 

almost entirely on whether the jury believed that the victims were telling the truth, and their 

motive for testifying was an appropriate point of questioning for the prosecutor to consider. See 

People v Minor, 213 Mich App 682, 685; 541 NW2d 576 (1995) (“A witness’ motivation for 

testifying is always of undeniable relevance and a defendant is entitled to have the jury consider 

any fact that may have influenced the witness’ testimony.”). 

Further, defendant cites the following statements during the prosecutor’s closing 

argument: “I think that we’re gonna hear some theories about this—this whole thing being made 

up . . . . But, this isn’t something you make up,” and “[w]hat does make sense is that they came 

in here, and they told you the truth about what the defendant was doing to them . . . .” With 

respect to the first statement, the prosecutor did not expressly vouch for the victims’ credibility. 

Rather, she offered the general proposition to the jury that the girls’ allegations were not in the 

nature of sheer imagination. 

After stating, “This isn’t something you make up,” the prosecutor went on to discuss the 

details of one of the victims’ accounts to support her general theory that the victims’ stories were 

too detailed to be fiction. Again, the entirety of the prosecutor’s case-in-chief was based on 

testimonial evidence—a majority of it from the victims—and, considering the prosecutor’s 

statements in context, Rodriguez, 251 Mich App at 30, she neither expressly vouched for the 

victims’ credibility nor suggested that she had any special knowledge concerning the truthfulness 

of their testimony, Howard, 226 Mich App at 548.

When the prosecutor stated, “[T]hey told you the truth about what the defendant was 

doing to them, year after year,” the prosecutor, in essence, summarily suggested—based on the 

facts—that the victims were credible, Howard, 226 Mich App at 548, because their testimony 

was consistent with each other’s. A reasonable inference that could be drawn from the consistent 
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testimony of each victim, without any evidence to the contrary, would be that they were 

testifying truthfully. The prosecutor was “not required to state inferences and conclusions in the 

blandest possible terms,” Launsburry, 217 Mich App at 361, and she did not suggest that she had 

any special knowledge concerning the truthfulness of the victims’ testimony, Howard, 226 Mich 

App at 548. 

The final alleged instance of improper credibility vouching occurred during the 

prosecutor’s rebuttal:

This isn’t just about them coming in and saying something. I mean, they 

did that. But, again, Mr. Freeman read from the instruction about credibility, 

about how to judge credibility. And I go back to the discussion about 

expectations. But, what was the witness’s demeanor when they were testifying? 

That’s something that you can look at. The pure, raw emotion, which . . . was a 

little bit overwhelming, just the raw emotion from all of them. 

Although defendant challenges the aforementioned prosecutorial statements, he does not 

challenge the trial court’s jury instructions, which pertinently stated:

In deciding the testimony you believe, you should rely on your own 

common sense and everyday experience. 

* * *

There are no fixed rules for judging whether you believe a witness, but it 

may be helpful to think about these questions: 

* * * 

How did the witness look and act while testifying? Did the . . . witness 

seems to be making an honest effort to tell the truth, or did the witness seem to 

evade the questions and argue with the lawyers? [Emphasis supplied.] 

The prosecutor’s statements were consistent with the subsequent jury instructions about 

judging witness credibility; she did not tell the jury to do anything that it was otherwise 

forbidden from doing when weighing evidence and assessing credibility, e.g., accounting for 

witness demeanor, or, as the prosecutor stated, “pure, raw, emotion.” Accordingly, considering 

the prosecutor’s comments in context, Rodriguez, 251 Mich App at 30, they did not amount to 

prosecutorial misconduct. 

C. DENIGRATION OF DEFENSE 

Defendant asserts that the prosecution “denigrated the defense.” Specifically, defendant 

cites the following prosecutorial statements as examples: 

Mom said she thinks only [one of her daughters] told her. But, again, 

you’re gonna be told to—you can use your common sense. That doesn’t make 
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sense, because they were all part of the decision-making process. Why? Why 

would they all be part of that process if only one of them disclosed anything? 

* * *

So, what are the defense theories that have kind of been developed 

through testimony and in opening statements? [One victim’s] lying to get her 

way. Well, [she] was already . . . out when she reported. She reported before 

getting her way. And we know [her] not wanting to go back to that house makes 

complete and total sense. So, that argument doesn’t make any sense. 

* * *

[One of the victims] made this up and told her sisters what to say. Well, 

the problem is there’s just no evidence of that, because your decision has to be 

based on evidence. And she has no motive to do this. She’s already out of the 

house. So, I mean . . . first of all, she is the one who comes up with the idea to let 

him stay at the family meeting, so that can’t be the motive at that meeting, getting 

him out. And if we’re talking about a motive in October of 2015 to get him out, 

she’s already out of the house. So, again, that doesn’t make any sense. 

Considering all of defendant’s examples of “denigration” of the defense, although he 

claims the statements amounted to prosecutorial misconduct, they are merely illustrative of the 

prosecution arguing the evidence and all reasonable inferences from that evidence as it related to 

its theory of the case. Bahoda, 448 Mich at 282. To conclude otherwise would constitute an 

open endorsement of the notion that prosecutors are forbidden from arguing how the evidence 

admitted conforms to their theories of guilt. Again, the prosecutor was not required to state these 

reasonable inferences “in the blandest possible terms.” Launsburry, 217 Mich App at 361. The 

mere fact that these inferences cast guilt upon defendant does not equate to prosecutorial 

misconduct. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant claims that he received ineffective assistance of counsel by his trial 

attorney’s (1) failure to move for a mistrial in regard to the prosecutor’s “red herring” remarks; 

(2) failure to call character witnesses; and (3) failure to impeach the victims with reports from 

Child Protective Services (CPS) and police reports. We disagree.

Defendant failed to preserve this claim by either raising the issue in a timely filed motion 

for a new trial, People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000), or moving for 

a Ginther1 hearing at the trial court level, People v Hurst, 205 Mich App 634, 641; 517 NW2d 

858 (1994). Therefore, this Court’s “review is limited to errors apparent on the record.” People 

v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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To establish ineffective assistance of counsel, “the defendant must show that counsel’s 

representation fell below an objective standard of reasonableness,” in addition to establishing 

“that the deficient performance prejudiced the defense.” Strickland v Washington, 466 US 668, 

687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “[D]efendant must overcome the strong 

presumption that his counsel’s action constituted sound trial strategy under the circumstances.” 

People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). “The fact that defense counsel’s 

strategy may not have worked does not constitute ineffective assistance of counsel.” People v 

Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).

With respect to prejudice, the defendant must establish that counsel’s deficiency “was so 

prejudicial to him that he was denied a fair trial.” Toma, 462 Mich at 302. Accordingly, the 

defendant must establish that there is “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 302-303. 

Further, counsel is not required to argue frivolous or meritless motions, and the failure to do so 

does not amount to ineffective assistance of counsel. People v Gist, 188 Mich App 610, 613; 

470 NW2d 475 (1991). 

A. FAILURE TO REQUEST A MISTRIAL

Defendant argues that he received ineffective assistance of counsel by his trial attorney’s 

failure to move for a mistrial “regarding the ‘red herring’ incident and settling for a ‘curative’ 

instruction.” We disagree. 

A mistrial may be declared “when an impartial verdict cannot be obtained, or when a 

guilty verdict could be returned but would be reversed on appeal because of an obvious 

procedural error occurring during the trial.” People v Hicks, 447 Mich 819, 830; 528 NW2d 136 

(1994). “Any doubts concerning the existence of manifest necessity should be resolved in favor 

of the defendant.” Id., citing Downum v United States, 372 US 734, 738; 83 S Ct 1033; 10 L Ed 

2d 100 (1963).

Here, there were no adequate grounds upon which defendant’s trial attorney could have 

moved for a mistrial. The prosecutor’s use of the term “red herring”—at worst—warranted a 

limiting instruction, and the trial court instructed the jury that the PowerPoint presentation that 

the prosecutor used during her closing argument was not evidence. At best, the “red herring” 

comments accurately summarized defendant’s trial attorney’s attempt to draw the jury’s focus 

away from the substantive evidence and confuse the jury by mischaracterizing the evidence. 

Therefore, any motion for a mistrial would have lacked merit, and defendant’s trial attorney’s 

failure to move for a mistrial in response to the prosecutor’s use of the term “red herring” did not 

amount to ineffective assistance of counsel. Gist, 188 Mich App at 613. And, in any event, 

defendant cannot establish “a reasonable probability that, but for counsel’s [alleged] 

unprofessional errors, the result of the proceeding would have been different,” Toma, 462 Mich 

at 302-303, because the jury presumably followed the trial court’s limiting instruction, Graves, 

458 Mich at 486. 
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B. FAILURE TO CALL CHARACTER WITNESSES 

Next, defendant asserts that he received ineffective assistance of counsel by his trial 

attorney’s failure to call character witnesses. We disagree. 

According to defendant, “he had defense witnesses that he wanted called to testify at 

trial,” and considering “the state of affairs of this case, even one character witness could have 

been invaluable and turned the tide of the guilty verdicts.” In support of this claim, defendant 

relies on a purported affidavit in which he avers that “he had defense witnesses that he wanted 

called to testify at trial.” However, this affidavit is not in the record, and our review is limited to 

errors apparent on the record. Matuszak, 263 Mich App at 48. 

Moreover, “[d]ecisions regarding what evidence to present and whether to call or 

question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 

74, 76; 601 NW2d 887 (1999). Defendant has failed to overcome the strong presumption that his 

trial attorney’s decision not to present any witnesses at trial was a matter of trial strategy, Toma, 

462 Mich at 302, because there is nothing in the record containing facts that would otherwise 

support a different conclusion. Moreover, defendant cannot establish prejudice because he fails 

to demonstrate “a reasonable probability that, but for counsel’s [alleged] unprofessional errors, 

the result of the proceeding would have been different.” Toma, 462 Mich at 302-303. 

C. FAILURE TO IMPEACH WITNESSES 

Defendant also claims that his trial attorney was ineffective for failing to impeach the 

victims with CPS and police reports. We disagree. 

Because the record is devoid of any CPS reports or police reports, it cannot be 

ascertained with any level of certainty precisely what facts defendant claims that his trial 

attorney should have used to impeach the victims. Defendant has thus failed to “overcome the 

strong presumption that his counsel’s action constituted sound trial strategy under the 

circumstances.” Toma, 462 Mich at 302. Moreover, defendant cannot establish prejudice 

because he fails to demonstrate “a reasonable probability that, but for counsel’s [alleged] 

unprofessional errors, the result of the proceeding would have been different.” Id. at 302-303. 

In support of this claim, defendant reiterates the instances in which the victims testified that they 

could not recall certain events. Even assuming that the purported CPS and police reports would 

have served a valid impeachment purpose, the victims had testified throughout the course of trial 

that they could not recall certain events when asked. In other words, the jury was already given 

the opportunity to evaluate the victims’ recollection of events in assessing their credibility. To 

conclude that any unknown information contained in the purported CPS and police reports would 

have affected the outcome of trial would be nothing more than conjecture and speculation. 

V. SENTENCING ERROR 

Finally, defendant contends that the trial court abused its discretion when it sentenced 

him to serve 40 to 60 years in prison for his CSC-I convictions. We disagree. 
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Courts are not bound by the legislative sentencing guidelines, as they are only advisory. 

People v Lockridge, 498 Mich 358, 399; 870 NW2d 502 (2015). Accordingly, while the 

sentencing court must score and consider the guidelines, it is not compelled to impose a 

minimum sentence within the calculated range, and it may depart from the sentencing guidelines 

range without stating substantial and compelling reasons to justify the departure. Id. at 364-365. 

This Court reviews a trial court’s decision to depart from the applicable sentencing guidelines 

range for reasonableness. Id. at 365. In People v Steanhouse, 500 Mich 453, 459-460; 902 

NW2d 327 (2017) (Steanhouse II), the Michigan Supreme Court further explained:

[T]he proper inquiry when reviewing a sentence for reasonableness is whether the 

trial court abused its discretion by violating the “principle of proportionality” set 

forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “which 

requires sentences imposed by the trial court to be proportionate to the seriousness 

of the circumstances surrounding the offense and the offender.”

A sentencing departure occurs when, as in this case, a court imposes a sentence that 

exceeds “both the applicable guidelines minimum sentence range and the . . . mandatory 

minimum.” People v Wilcox, 486 Mich 60, 73; 781 NW2d 784 (2010). The trial court abuses its 

discretion when it imposes a sentence that is unreasonable because it violates the principle of 

proportionality. People v Dixon-Bey, 321 Mich App 490, 523-524; 909 NW2d 458 (2017). 

“Under the principle of proportionality standard, a sentence must be ‘proportionate to the 

seriousness of the circumstances surrounding the offense and the offender.’ ” People v 

Steanhouse (On Remand), 322 Mich App 233, 238; 911 NW2d 253 (2017) (Steanhouse III), 

quoting Milbourn, 435 Mich at 636. “Accordingly, the sentencing court must impose a sentence 

that takes ‘into account the nature of the offense and the background of the offender.’ ” 

Steanhouse III, 322 Mich App at 238, quoting Milbourn, 435 Mich at 651. The sentencing court 

may impose a departure sentence when “the recommended range under the guidelines is 

disproportionate, in either direction, to the seriousness of the crime.” Milbourn, 435 Mich at 

657. 

Relevant factors under the proportionality standard include, without limitation:

“(1) the seriousness of the offense; (2) factors that were inadequately considered 

by the guidelines; and (3) factors not considered by the guidelines, such as the 

relationship between the victim and the aggressor, the defendant’s misconduct 

while in custody, the defendant’s expressions of remorse, and the defendant’s 

potential for rehabilitation.” [Steanhouse III, 322 Mich App at 238-239, quoting 

People v Lawhorn, 320 Mich App 194, 207; 907 NW2d 832 (2017).] 

Moreover, “[a]n appellate court must evaluate whether reasons exist to depart from the 

sentencing guidelines and whether the extent of the departure can satisfy the principle of 

proportionality.” Steanhouse III, 322 Mich App at 239. “[E]ven in cases in which reasons exist 

to justify a departure sentence, the trial court’s articulation of the reasons for imposing a 

departure sentence must explain how the extent of the departure is proportionate to the 

seriousness of the circumstances surrounding the offense and the offender.” Id. at 239. 
-12-

“The first inquiry in our reasonableness review is whether there were ‘circumstances that 

are not adequately embodied within the variables used to score the guidelines.’ ” Id., quoting 

Milbourn, 435 Mich at 659-660. 

To conduct such an analysis, we must compare the stated reasons for exceeding 

the guidelines with the scored offense variables (OVs) to determine whether those 

reasons were already encompassed within the guidelines. Specifically, we must 

determine whether the trial court abused its discretion by imposing a departure 

sentence without articulating whether the guidelines adequately took into account 

the conduct alleged to support the particular departure imposed. [Steanhouse III, 

322 Mich App at 239-240 (citation omitted).] 

“In evaluating whether the departure sentence imposed for defendant is proportional in 

accordance with Milbourn,” an additional factor to analyze is the prior relationship between the 

defendant and the victim. Id. at 242. “[A] prior relationship between the offender and the victim 

can be either a ‘very mitigating circumstance or a very aggravating circumstance, depending 

upon the history of interaction between the parties.’ ” Id., quoting Milbourn, 435 Mich at 660-

661. 

In this case, the initial sentencing information report (SIR) scored the prior record 

variables (PRVs) and offense variables (OVs) for defendant’s CSC-I convictions, as a second 

habitual offense. The total scores placed defendant in PRV level E and OV level VI, which 

resulted in a guidelines minimum sentence range of 225 to 468 months (18 years and nine 

months to 39 years) or life. However, one of defendant’s CSC-I convictions was subject to a 

mandatory minimum sentence of 25 years under MCL 750.520b(2)(b). In the presentence 

investigation report (PSIR), the MDOC recommended a sentence of 40 to 60 years, which was 

slightly above the high end of the guidelines minimum range as calculated in the SIR. 

At defendant’s sentencing, the scores for OV 9 (number of victims) and OV 11 (criminal 

sexual penetration) were reduced to zero, which lowered the OV level to IV, and in turn, lowered 

the guidelines minimum sentence range to 135 to 281 months (11 years and three months to 23 

years and five months). The trial court expressed that the guidelines range was accurate, but that 

it did not “take into account the number of years that this was going on . . . [or] the number of 

victims.” Further, the trial court reasoned:

It’s—one of the things, when you sit through a trial and you listen to the 

testimony of the victims and you really have a sense as the sentencing judge, what 

the victims went through and will continue to go through, I don’t disagree with 

Ms. Morton’s statement said by somebody else that, in reality, once a crime like 

this occurs, the person that existed before that ceases to exist. It doesn’t mean 

that – and I hope for the victims that you can go on and live, live a good life. I 

hope this puts it behind you. And just because it will be a different kind of life, 

I—I hope you can find happiness. And I—I think that you will, hopefully, now 

that his part is done. And you will know that, given the defendant’s age, the 

likelihood of him getting out is slim. And if he does get out, he would be old 

enough that, hopefully, any fears that you have will be dissipate[d] knowing how 

long he’ll be put away. So, I do have that hope for you.
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Ultimately, the trial court found that the recommendation from the MDOC was “appropriate” 

and sentenced defendant to serve 40 to 60 years in prison for his CSC-I convictions.

We agree that circumstances exist in this case that justify the imposition of a departure 

sentence. The horrific and heinous nature of defendant’s crimes, their effect on the victims, and 

the relationship between the victims and defendant justify a departure from the guidelines 

minimum sentence range and the statutory minimum sentence. See Steanhouse III, 322 Mich 

App at 239-240, 242. Further, it appears likely that the two factors identified by the trial court—

the lengthy period of time over which the abuse occurred and the fact that four victims were 

involved—were “ ‘not adequately embodied within the variables used to score the guidelines.’ ” 

Steanhouse III, 322 Mich App at 239, quoting Milbourn, 435 Mich at 659-660. 

Accordingly, we are satisfied that the trial court’s departure was justified in this case.

Affirmed.

/s/ Brock A. Swartzle

/s/ David H. Sawyer

/s/ Amy Ronayne Krause