If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED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 12, 2019

v No. 342462

Wayne Circuit Court

AMOS ANDREW HENDRIX, LC No. 17-003339-01-FH

Defendant-Appellant.

Before: FORT HOOD, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

Defendant appeals by right his convictions for three counts of second-degree criminal 

sexual conduct (CSC II), MCL 750.520c(1)(a) (victim under 13 years of age). Finding no error 

requiring reversal, we affirm defendant’s convictions. However, we remand this case to the trial 

court for the purely ministerial task of making corrections to defendant’s presentence 

investigation report (PSIR).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues on appeal that his trial counsel was ineffective for failing to use a 

challenge to dismiss a juror who revealed during voir dire that she had been the victim of 

molestation. Defendant alternatively suggests that the trial court should have dismissed the juror 

sua sponte. We disagree. 

Generally, a claim of ineffective assistance of counsel is a mixed question of fact and 

constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review

the trial court’s findings of fact for clear error, and we review questions of constitutional law de 

novo. Id. Where a Ginther1 hearing has not been held, review is limited to mistakes apparent on 

the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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In order to establish ineffective assistance of counsel, defendant must prove (1) that his

attorney made an error, and (2) that the error was prejudicial. Strickland v Washington, 466 US 

668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 311, 314; 521 

NW2d 797 (1994). That is, first, defendant must show that his trial counsel’s performance fell 

below an objective standard of reasonableness. People v Russell, 297 Mich App 707, 715-716; 

825 NW2d 623 (2012). Second, defendant must show that, but for trial counsel’s deficient 

performance, a different result would have been reasonably probable. Id. at 715-716. We must 

analyze the issue with a strong presumption that trial counsel’s conduct falls within the wide 

range of reasonable professional assistance, and with a presumption that the challenged action or 

inaction was sound trial strategy. People v Leblanc, 465 Mich 575, 578; 640 NW2d 246 (2002). 

“Jurors are presumptively competent and impartial, and the party alleging the disqualification 

bears the burden of proving its existence.” People v Johnson, 245 Mich App 243, 258; 631 

NW2d 1 (2001) (citation omitted). “The burden is on the defendant to establish that the juror 

was not impartial or at least that the juror’s impartiality is in reasonable doubt.” People v Miller, 

482 Mich 540, 550; 759 NW2d 850 (2008) (citation omitted). “[T]his Court has been disinclined 

to find ineffective assistance of counsel on the basis of an attorney’s failure to challenge a juror” 

because counsel is typically in a better position than a reviewing court to analyze “a potential 

juror’s facial expressions, body language, and manner of answering questions.” People v Unger, 

278 Mich App 210, 258; 749 NW2d 272 (2008). We will not substitute our judgment for that of 

counsel or assess counsel’s performance using the benefit of hindsight. Id. “[A]n attorney’s 

decisions relating to the selection of jurors generally involve matters of trial strategy. Johnson, 

245 Mich App at 259 (citation omitted). The fact that a juror would rather not serve on a jury 

does not establish a ground for their dismissal. People v Vaughn, 291 Mich App 183, 193; 804 

NW2d 764 (2010).

During voir dire, the juror indicated that she was molested as a child. Counsel did not 

seek the dismissal of the juror for cause or exercise a peremptory challenge. Despite the juror 

having a history of being the victim of a crime similar to the one that defendant was charged 

with, after having been asked whether she would be able to remain fair and impartial, the juror 

responded in the affirmative. The juror did not indicate that she would unfairly side with

defendant or the prosecution, and in fact, she agreed with defendant’ s counsel during voir dire 

that she “wouldn’t want anybody to be wrongfully accused, convicted, or whatever, of something 

they didn’t do.” The juror indicated that she preferred to be assigned to a different case, but as 

noted above, that alone was not automatic cause for the juror’s dismissal. Id. at 193. Defendant 

has not demonstrated that the “juror was not impartial or at least that the juror’s impartiality is in 

reasonable doubt.” Miller, 482 Mich at 550. Accordingly, we conclude that declining to seek 

dismissal of the juror was likely a matter of trial strategy on the part of defendant’s attorney, and

that defendant has not demonstrated that counsel’s performance fell below an objective standard 

of reasonableness. 

We also note defendant’s brief suggestion that the trial court erred by failing to dismiss 

the juror sua sponte. MCR 2.511(D) provides multiple grounds that justify a challenge to a 

potential juror for cause, including that the potential juror (1) “is biased for or against a party or 

attorney”; (2) “shows a state of mind that will prevent the person from rendering a just verdict, or 

has formed a positive opinion on the facts of the case or on what the outcome should be”; or (3) 

“has opinions or conscientious scruples that would improperly influence the person’s verdict[.]” 
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Additionally, MCR 6.412(D)(2) provides that “[i]f, after the examination of any juror, the court 

finds that a ground for challenging a juror for cause is present, the court on its own initiative 

should, or on motion of either party must, excuse the juror from the panel.” For the reasons 

articulated above, however, we conclude that none of the above grounds for excluding a juror 

were present. There was no evidence that the juror was biased against defendant, nor that the 

juror would be improperly influenced by her past experiences or unable to render a just verdict. 

The trial court was not required to sua sponte excuse the juror.

Defendant also argues that his counsel was ineffective for failing to call the victim’s 

mother as a witness. Decisions about whether to call or question a witness are presumed to be 

matters of trial strategy. Russell, 297 Mich App at 716. Failing to call a witness only rises to the 

level of ineffective assistance of counsel if it deprives the defendant of a substantial defense. Id. 

We note that defendant did not submit an offer of proof or any other evidence at trial to establish 

what the victim’s mother would have said if she were called as a witness, and the only evidence 

that defendant now submits is his own affidavit and two e-mails. These documents were not part 

of the lower court record, and thus, we will not consider them in determining the effectiveness of 

counsel at trial. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). Because we only 

consider the evidence presented in the trial court and review for mistakes apparent from the 

record, Payne, 285 Mich at 181, we note that there is no evidence whatsoever of what the 

victim’s mother would have said or how her testimony would have affected the outcome of the 

case. Her testimony could have been supportive of her daughter and damaging to defendant’s 

case. Similarly, regarding defendant’s argument that counsel should have investigated the CPS 

case or called a CPS witness, defendant has not identified what evidence the investigation would 

have revealed, who counsel should have called as witnesses, or how it would have helped his 

defense. Because there is no evidence of how any other witnesses’ testimonies would have 

benefited defendant, and no indication of what witnesses should have been called from CPS, we

conclude that defendant has not overcome the presumption that counsel’s inaction was sound 

trial strategy. Leblanc, 465 Mich at 578. Defendant has failed to demonstrate that his counsel’s 

performance was deficient. 

II. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Defendant next argues that there was insufficient evidence to convict him, or in the 

alternative, that his convictions were against the great weight of the evidence. We disagree with 

both claims. 

A challenge to the sufficiency of the evidence is reviewed de novo. People v Lueth, 253 

Mich App 670, 680; 660 NW2d 322 (2002). To sustain a conviction, due process requires that

there be sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable 

doubt. People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992). We review challenges 

to the sufficiency of the evidence by viewing the evidence in the light most favorable to the 

prosecution to determine whether a rational trier of fact could find that the essential elements of 

the crime were proved beyond a reasonable doubt. People v Bennett, 290 Mich App 465, 471-

472; 802 NW2d 627 (2010). In applying this standard, we “must draw all reasonable inferences 

and make credibility choices in support of the jury verdict.” Cameron, 291 Mich App at 613

(quotation marks and citation omitted). Circumstantial evidence and any reasonable inferences 

flowing from that evidence can prove the elements of a crime. People v Nowack, 462 Mich 392, 
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400; 614 NW2d 78 (2000). The testimony of a single victim may be sufficient to convict a 

defendant. See People v Smith, 205 Mich App 69, 71; 517 NW2d 255 (1994).

We have described the essential elements of second-degree CSC as follows:

(1) the defendant engaged in sexual contact, (2) with a person under 13 years of 

age. MCL 750.520c(1)(a). The statutory definition of “sexual contact,” pertinent 

here, includes “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 touching can reasonably be construed as 

being for the purpose of sexual arousal or gratification, [or] done for a sexual 

purpose . . . .” MCL 750.520a(q). “Intimate parts” includes “the primary genital 

area, groin, inner thigh, buttock, or breast . . . .” MCL 750.520a(f). [People v 

Duenaz, 306 Mich App 85, 106-107; 854 NW2d 531 (2014).]

In this case, the victim, who was 11 years old at the time of trial, testified that defendant 

molested her when she was 9 or 10. The victim specifically testified that defendant touched her 

breasts and buttocks under her clothes using his hands and his penis. She provided testimony of 

at least three specific events, although she claimed that defendant molested her at least 10 times. 

On review for sufficiency of the evidence, we make credibility choices in support of the jury’s 

verdict, Cameron, 291 Mich App at 613, and view the evidence in a light most favorable to the 

prosecution, Bennett, 290 Mich App at 471-472. With that in mind, we conclude that a rational 

jury could find that the essential elements of defendant’s crimes were proven beyond a 

reasonable doubt based upon the victim’s testimony. Thus, there was sufficient evidence to 

support defendant’s convictions.

As noted above, defendant also contends that his convictions were against the great 

weight of the evidence. Where, as here, a great-weight issue is preserved, it will be reviewed by 

deciding whether the evidence preponderates so heavily against the verdict that it would be a 

miscarriage of justice to allow the verdict to stand.” People v Cameron, 291 Mich App 599, 

616-617; 806 NW2d 371 (2011) (quotation marks and citation omitted). A new trial may be 

granted, on some or all of the issues, if a verdict is against the great weight of the evidence. 

MCR 2.611(A)(1)(e). The jury’s verdict should not be set aside, however, if there is competent 

evidence to support it. People v Schwartz, 215 Mich 197, 208-209; 183 NW2d 723 (1921). 

Determining whether a verdict is against the great weight of the evidence requires review of the 

whole body of proofs. People v Herbert, 444 Mich 466, 475; 511 NW2d 654 (1993). “When 

testimony is in direct conflict and testimony supporting the verdict has been impeached, if it 

cannot be said as a matter of law that the testimony thus impeached was deprived of all probative 

value or that the jury could not believe it, the credibility of witnesses is for the [finder of fact].” 

People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998). 

Again, the victim testified about three specific occasions when defendant touched her in a 

sexual manner. This case was essentially defendant’s word against the victim’s word, and thus, 

credibility was key. And although defendant cross-examined the victim and he claims that her 

testimony lacked credibility, the evidence demonstrated that the victim was able to provide 

specifics about the assaults, including what body parts defendant touched, what parts of his own 
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body he used, the locations of the assaults, and who else was home at the time. The victim’s 

testimony was not, as a matter of law, “deprived of all probative value,” and thus, the victim’s 

credibility was for the jury to decide. Id. The testimony constituted competent evidence to 

support the jury’s verdict, and accordingly, we will not set that verdict aside. Schwartz, 215 

Mich at 208-209.

III. CORRECTION OF THE PRESENTENCE INVESTIGATION REPORT

Defendant lastly argues that he is entitled to have his PSIR corrected to reflect the trial 

court’s findings during sentencing and to have a corrected copy forwarded to the Department of 

Corrections. With this, we agree. 

We first note that both parties agree on appeal that defendant is entitled to this ministerial 

relief. Defendant’s PSIR shows that the trial court made changes to defendant’s sentencing 

information report (SIR), included in the PSIR, including to offense variables (OVs) 3, 7, 11, and 

13. These changes reduced defendant’s total OV score from 135 to 50. Defendant’s crime was 

listed on the SIR as a class C crime. An OV score of 50 put defendant at OV level 5. The 

parties agreed at sentencing that the prior record variable (PRV) levels would remain unchanged 

at 127, level F. The parties further agreed that, with defendant’s fourth-offense habitual offender 

status, this resulted in a minimum sentencing guidelines range of 58 months to 228 months.

However, the SIR shows that, despite the trial court making the changes to the OVs and the OV 

score on the report, it neglected to make the corresponding changes to the guideline minimum 

range on the report, which still reflects a range of 62 to 228 months. It also neglected to change 

defendant’s OV level from 6 to 5. These changes would be purely ministerial, as it would not 

affect defendant’s sentence. However, because the “Department of Corrections makes critical 

decisions concerning a defendant’s status on the basis of information contained in the PSIR,”

People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009) (citation omitted), a 

remand is necessary so that the trial court can make the PSIR accurately reflect the

“determination the sentencing judge made regarding the accuracy or relevance of its 

information.” Id.

Affirmed but remanded for the ministerial tasks of correcting defendant’s PSIR 

consistent with this opinion, and directing that the corrected copy be forwarded to the 

Department of Corrections. We do not retain jurisdiction.

/s/ Karen M. Fort Hood 

/s/ Deborah A. Servitto 

/s/ Mark T. Boonstra