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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 16, 2017 

v No. 331190 

Oakland Circuit Court 

DAVID KENT CHAPLIN, LC No. 2014-252692-FH 

 Defendant-Appellant. 

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

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of third-degree criminal sexual 

conduct (CSC III), MCL 750.520d(1)(d) (sexual penetration with a person who is related to 

defendant by blood or affinity to the third degree) and fourth-degree criminal sexual conduct 

(CSC IV), MCL 750.520e(1)(d) (sexual contact with a person who is related to defendant by 

blood or affinity to the third degree). Defendant was sentenced to 55 months to 15 years’ 

imprisonment for the CSC III conviction and 12 months to 2 years’ imprisonment for the CSC 

IV conviction. We affirm. 

 The instant case arose from defendant’s sexual abuse of his stepdaughter, S.A., from the 

time she was in the eighth grade through her senior year in high school. Defendant married the 

complainant’s mother, Beth Chaplin, in the summer of 2008, when S.A. was about 12 years old. 

S.A. lived with defendant and Beth in a house in Oakland Township. The complainant testified 

at trial that defendant began inappropriately touching her when she was in the eighth grade. He 

would put his arm between her breasts as they sat together on the couch. The sexual abuse 

progressed to touching and squeezing her buttocks and touching her breasts both over and under 

her clothes. By her twelfth grade year, defendant had engaged in multiple acts of digital 

penetration and cunnilingus with S.A. S.A. further testified that the sexual assaults usually 

occurred at home while her mother was at work or had gone to bed for the night. In 2014, S.A. 

told her boyfriend about the abuse, which ultimately led to a police investigation. The case 

proceeded to trial, and defendant was convicted of one count each of CSC III and CSC IV, which 

he now appeals. 

I. ADMISSIBILITY OF EVIDENCE 

 Defendant argues that the trial court abused its discretion in denying his request to 

introduce evidence, including expert testimony. We disagree. 
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 We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. 

People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010). We also review a trial court’s 

decision to admit or exclude expert witness testimony for an abuse of discretion. People v 

Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). An abuse of discretion occurs if the 

results are “outside the range of principled outcomes.” Feezel, 486 Mich at 192 (citation and 

quotation marks omitted). A decision on a close evidentiary question usually cannot constitute 

an abuse of discretion. People v Blackston, 481 Mich 451, 467; 751 NW2d 408 (2008). 

 As part of his defense, defendant sought to introduce evidence showing that S.A. had 

lived with twin stepsisters (“the twins”) during the time that they made purportedly false 

allegations of sexual abuse1

 against over one hundred men, including defendant. He claimed that 

this evidence was relevant because S.A.’s contact with the twins had taught her how to make 

allegations of sexual abuse “stick” or, alternatively, showed that she was suggestible regarding 

sexual matters. He sought to call psychologist Dr. Katherine Okla as an expert witness to testify 

to S.A.’s suggestibility and familiarity with sexual abuse investigations, among other things. 

According to defendant, Dr. Okla would testify that the false report of the twins could have 

caused S.A. to mistakenly attribute sexual abuse to defendant. The trial court denied defendant’s 

request. 

 Evidence is relevant if it has “any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence.” MRE 401. Such evidence is generally admissible. MRE 402. We 

acknowledge that a victim of sexual assault’s history of false accusations is relevant in CSC 

cases. See People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1985) (recognizing that the 

defendant is permitted to show that the victim has made untrue accusations of sexual assault 

before). 

 Here, it was the twins, not S.A., who allegedly made false claims of sexual abuse. The 

trial court properly determined that evidence of their prior allegations was not relevant and, 

therefore, inadmissible. Specifically, evidence of the false report of the twins was not relevant 

where such evidence did not make it more probable that S.A. would lie about sexual contact with 

defendant. While it appears from the record that S.A. lived with the twins for a time, there was 

no indication in the record to suggest that she was unduly influenced by their behavior, 

particularly with regard to the nature of their sexual abuse allegations. The record also did not 

yield necessary information regarding S.A.’s relationship with the twins and her feelings about 

their actions in making sexual abuse allegations.2

 Therefore, where the evidence defendant 

 

1

 While the disposition of these allegations is not entirely clear from the record, whether the 

allegations were in fact false is not determinative in our analysis. 

2

 We observe that during the June 3, 2015 motion hearing, when the trial court inquired of 

defense counsel what exact evidence defendant sought to admit concerning the twins’ allegations 

of sexual abuse, defense counsel informed the trial court that “the gist of [defendant’s motion] is 

not that the twins made false allegations. It is that we believe that the exposure of – and the risk 

of susceptibility to the complaining witness in this case from her exposure to this highly 
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sought to admit concerning the twins’ prior allegations of sexual abuse (1) was not relevant to 

the ultimate issue of this case, that being whether defendant sexually assaulted S.A., and (2) did 

not bear on S.A.’s credibility, it was not an abuse of discretion for the trial court to decline to 

admit this evidence. 

 Moreover, MRE 702 permits expert witness testimony when it “will assist the trier of fact 

to understand the evidence or to determine a fact in issue[.]” Here, the trial court concluded that 

an expert witness was not necessary to assist the jury in understanding the evidence or 

determining the issues. The central issue in the case was S.A.’s credibility. The trial court held 

that defendant’s theory of S.A.’s suggestibility was speculative and, therefore, evidence bearing 

on that point was not relevant to whether S.A. was being truthful. “Because it is the province of 

the jury to determine whether a particular witness spoke the truth or fabricated a cock-and-bull 

story, it is improper for a witness or an expert to comment or provide an opinion on the 

credibility of another person while testifying at trial.” People v Musser, 494 Mich 337, 349; 835 

NW2d 319 (2013) (internal quotations and citations omitted). “Such comments have no 

probative value because they do nothing to assist the jury in assessing witness credibility in its 

fact-finding mission and in determining the ultimate issue of guilt or innocence.” Id. (Citations 

and internal quotations omitted.) Here, the real purpose of the expert testimony would have been 

to attack S.A.’s credibility, and would have only served as a distraction to the jury from its 

ultimate responsibility of assessing credibility. Accordingly, we conclude that the trial court did 

not abuse its discretion in declining to admit the expert witness evidence. 

 Defendant also argues that the trial court abused its discretion in granting the 

prosecution’s pretrial motion to admit other acts evidence that defendant’s biological daughter 

brought sexual assault allegations against him in 1993. Defendant concedes in his brief on 

appeal that the evidence at issue was not introduced at trial. As an initial matter, we agree with 

the trial court’s ruling that the proffered evidence was admissible where it was relevant to (1) 

defendant’s propensity to commit the instant offenses, and (2) S.A.’s credibility. MCL 768.27a; 

People v Solloway, 316 Mich App 174, 193; 891 NW2d 255 (2016). As the trial court 

recognized, defendant’s biological daughter’s allegations of sexual abuse bore numerous indicia 

of similarity to the sexual abuse that S.A. alleged against defendant. We also note that 

defendant’s argument that the proffered evidence was improperly admitted to show defendant’s 

propensity to commit the instant offenses is unavailing, where in Solloway, this Court 

recognized, in pertinent part, as follows: 

Under MCL 768.27a, evidence is relevant, and therefore admissible, when offered 

to show the defendant’s propensity to commit the charged crime. People v 

Watkins, 491 Mich 450, 470; 818 NW2d 296 (2012) (indicating that MCL 

768.27a permits admission of evidence that would generally not be admitted 

under MRE 404(b). [Solloway, 316 Mich App at 193.] 

sexualized environment that she was living in for a long period of time and the allegations that 

surrounded my client while she lived with him may have had a psychological impact on – on 

her.” 
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We also disagree with defendant’s assertions that the proffered evidence was unreliable and 

ought to have been excluded pursuant to MRE 403 because (1) the allegations were made in 

1993, and (2) defendant’s biological daughter recanted the allegations in 2014.3

 A temporal 

divide alone does not preclude admission of evidence when the other acts are very similar to the 

charged offenses. See Solloway, 316 Mich App at 195 (concluding that, given the similarity of

the ages of the victims and the manner in which the defendant sexually assaulted them, 

admission of other acts evidence was not precluded by the difference of approximately 12 years 

between the prior act and the charged offense). Moreover, at the time the trial court decided this 

issue, the prosecution was prepared to present a witness to corroborate defendant’s biological 

daughter’s allegations of sexual abuse by defendant. In any event, where the evidence was not 

presented to the jury, even if we concluded that the trial court’s ruling was erroneous, defendant 

is not entitled to appellate relief on this issue where the trial court’s ruling concerning the 

evidence had no impact on defendant’s trial. People v Burns, 494 Mich 104, 110; 832 NW2d 

738 (2013) (“A preserved error in the admission of evidence does not warrant 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.”) (quotation marks, footnote and citation 

omitted).4 

II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant next argues that he was denied the effective assistance of counsel at trial. We 

disagree. 

 Whether a person has been denied effective assistance of counsel is a mixed question of 

fact and constitutional law. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). 

Findings of fact are reviewed for clear error, while determinations of constitutional law are 

reviewed de novo. Id. Although defendant filed a motion to remand in this Court on the basis of 

ineffective assistance of counsel, because the motion was denied,5 our review of his claim is 

limited to errors apparent on the record. People v Payne, 285 Mich App 181, 188; 774 NW2d 

714 (2009). 

 

3

 The record confirms that the police investigation into defendant’s biological daughter’s 

allegations of sexual abuse was not completed because her mother did not cooperate, and there is 

an indication in the record that defendant’s biological daughter recanted the allegations in 2014 

after speaking to defendant. 

4

 We also note that the trial court properly denied defendant’s motion seeking an evidentiary 

hearing regarding allegations made by the twins and Dr. Okla’s proposed testimony. See, e.g., 

People v Williams, 191 Mich App 269, 273-274; 477 NW2d 877 (1991) (observing that an 

evidentiary hearing to determine the admissibility of evidence regarding prior allegations of 

sexual assault is not intended to be “utilized as a fishing expedition[.]”). 

5

 This Court denied defendant’s motion to remand. People v Chaplin, unpublished order of the 

Court of Appeals, entered November 23, 2016 (Docket No. 331190). 
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 A defendant claiming that he has been denied the effective assistance of counsel must 

demonstrate: “(1) that his attorney’s performance fell below an objective standard of 

reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair 

trial.” People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014) (citation omitted). “‘To 

demonstrate prejudice, the defendant must show the existence of a reasonable probability that, 

but for counsel’s error, the result of the proceeding would have been different.’” Id., quoting 

People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). “Effective assistance of counsel is 

presumed, and the defendant bears a heavy burden of proving otherwise.” People v Solmonson, 

261 Mich App 657, 663; 683 NW2d 761 (2004) (citation omitted). 

 First, defendant argues that his trial counsel6

 was ineffective for failing to call character 

witnesses at trial to testify to his good character. “Decisions 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) (citation omitted). The defendant must 

overcome a strong presumption that counsel’s performance constituted sound trial strategy. 

People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Here, the prosecution sought 

to offer evidence of other instances of sexual abuse by defendant, namely the 1993 sexual abuse 

allegations of his biological daughter. Therefore, calling witnesses to attest to defendant’s good 

character could have opened the door for the prosecution to introduce damaging information 

about defendant. People v Vasher, 449 Mich 494, 503; 537 NW2d 168 (1995) (recognizing that 

“[o]nce a defendant has placed his character in issue,” the prosecution may properly “introduce 

evidence that the defendant’s character is not as impeccable as is claimed.”). Defendant 

provided the affidavits of his proposed character witnesses.7

 Two of the witnesses, both of 

whom are defendant’s nieces, would have testified that defendant was their uncle, had been 

around them their entire lives, and had never touched them in an inappropriate manner. A third 

witness, defendant’s sister and the mother of one of the other proposed witnesses, also averred 

that defendant had acted in a caring and appropriate manner toward her daughter. While these 

witnesses would have provided evidence of defendant’s good character, defendant has not 

overcome the presumption that it was sound trial strategy for trial counsel to exclude these 

witnesses to prevent the prosecution from introducing evidence that was more damaging to the 

defense. 

 Next, defendant argues that his trial counsel was ineffective for allowing a proposed 

character witness, his sister, to remain in the courtroom during trial in violation of a 

sequestration order. Consequently, defendant’s sister was barred from testifying. It appears 

from the record that trial counsel did not have defendant’s sister leave the courtroom because he 

had already decided that he would not call her as a witness. Even if we accept defendant’s 

contention that trial counsel erred regarding the sequestration of the witness, defendant has not 

 

6

 For clarity of analysis regarding whether defendant was afforded the effective assistance of 

counsel, in this portion of our opinion we will refer to defendant’s counsel in the lower court 

proceedings as trial counsel. 

7

 We note that one of the affidavits is unsigned and not sworn. 
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shown that the error affected the outcome of the proceedings when the record reflects that trial 

counsel decided not to pursue calling character witnesses on defendant’s behalf. 

 Finally, defendant asserts that his trial counsel was ineffective for improperly convincing 

him to waive his right to testify at trial. In support of his claim, defendant contends that he was 

adamant about testifying at trial. At trial, defendant initially stated that he would testify. When a 

discussion took place on the record between the trial court, trial counsel and the prosecution 

regarding whether the prosecution could cross-examine defendant about other acts evidence, 

defendant left the courtroom briefly and consulted with his counsel, returning to the courtroom to 

express his decision not to testify. The trial court thoroughly explored the matter of defendant’s 

choice whether to testify, asking defendant several pointed questions to confirm his decision that 

he had chosen not to testify. At one point, the trial court informed defendant that he could 

change his mind at any point up until the defense case-in-chief had closed. Rather than 

supporting defendant’s contention that he was coerced into not testifying, the record establishes 

that defendant was apprised of his right to testify and voluntarily waived that right after 

considering the consequences of testifying. Therefore, we hold that defendant has failed to 

establish the factual predicate for his ineffective assistance of counsel claim, People v Hoag, 460 

Mich 1, 59; 594 NW2d 57 (1999), and cannot demonstrate that trial counsel’s performance failed 

to satisfy an objectively reasonable standard. Gaines, 306 Mich App at 300. 

III. SENTENCING 

 Defendant contends that the trial court erred in assessing 15 points for offense variable 

(OV) 10 when the evidence did not support a finding that defendant’s conduct was predatory. 

We disagree. 

 A trial court’s factual determinations regarding the scoring of offense variables “are 

reviewed for clear error and must be supported by a preponderance of the evidence.” People v 

Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (footnote and citations omitted). “Whether 

the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the 

application of the facts to the law, is a question of statutory interpretation, which an appellate 

court reviews de novo.” Id. (Footnote and citation omitted.) 

 OV 10 addresses the “exploitation of a vulnerable victim.” MCL 777.40(1). A trial court 

must assess 15 points under OV 10 if “[p]redatory conduct was involved.” MCL 777.40(1)(a). 

“Predatory conduct” is defined as “preoffense conduct directed at a victim . . . for the primary 

purpose of victimization.” MCL 777.40(3)(a); see also People v Cannon, 481 Mich 152, 161; 

749 NW2d 257 (2008) (recognizing that predatory conduct’s “primary purpose” is to cause a 

“person to suffer from an injurious action or to be deceived.”). 

 Here, the trial court properly concluded from the evidence that defendant’s preoffense 

conduct was predatory. S.A. testified that defendant married her mother when she was about 12 

years old. He then established himself as the father figure. S.A. was especially susceptible to 

defendant’s influence as a parental authority because her biological father had died when she was 

only 5 years old. The record confirms that defendant began engaging in grooming behavior with 

S.A. S.A. testified that defendant began putting his arm between her breasts as they sat together 

on the couch. When S.A. would ask defendant why he was doing that, he told her that “he didn’t 
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realize that he was doing that[,]” and defendant nonetheless continued to engage in such 

behavior. Defendant then moved to touching her breasts and buttocks outside of her clothes and 

inside of her clothes. These earlier sexual contacts were primarily intended to lower S.A.’s 

inhibitions. S.A. claimed that defendant progressed to touching her vaginal area, first over her 

clothes, then under her clothes. Eventually, defendant engaged in multiple acts of digital 

penetration with S.A. and performed cunnilingus on her. Gradually escalating “less intrusive and 

less highly sexualized forms of sexual touching[ ]” in order to “desensitiz[e] the victim to future 

sexual contact[,]” demonstrates an intent to victimize a person. Steele, 283 Mich App at 491-

492. Moreover, waiting for an opportunity to be alone with a victim in an isolated or secluded 

location is evidence of preoffense predatory conduct. People v Ackah-Essien, 311 Mich App 13, 

37; 874 NW2d 172 (2015); People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 

(2003). Defendant isolated S.A. by engaging in sexual assaults when her mother was at work or 

already in bed. Therefore, we conclude that there was sufficient evidence to support the scoring 

of OV 10 at 15 points for defendant’s predatory conduct. 

IV. FALSE TESTIMONY AND COLLUSION 

 In a supplemental brief filed in propria persona pursuant to Supreme Court 

Administrative Order No. 2004–6, Standard 4, defendant argues that witnesses for the 

prosecution gave false testimony and acted in collusion with the prosecution to effectuate an 

outcome that deprived defendant of his right to due process. We disagree. 

 “A due process violation presents a constitutional question that this Court reviews de 

novo.” People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015). Because defendant did not 

timely and specifically object to the alleged errors below, we review this unpreserved claim for 

plain error affecting substantial rights. People v Callon, 256 Mich App 312, 329; 662 NW2d 

501 (2003). Reversal is warranted only when plain error “resulted in the conviction of an 

actually innocent defendant” or “seriously affect[ed] the fairness, integrity, or public reputation 

of judicial proceedings independent of [the] defendant’s innocence.” People v Carines, 460 

Mich 750, 763, 774; 597 NW2d 130 (1999) (citation and internal quotation marks omitted). 

 Defendant alleges numerous instances of false testimony from Officer Gary McClure, 

Officer John Peters, S.A., and her boyfriend, and he contends that the prosecutor knowingly 

allowed this false testimony. It is well-established that it offends due process guarantees for the 

prosecution to secure a conviction through the knowing use of false testimony, and such 

conviction must be set aside if “the uncorrected false testimony ‘could . . . in any reasonable 

likelihood have affected the judgment of the jury.’” Smith, 498 Mich at 475, 476, quoting Napue 

v Illinois, 360 US 264, 271-272; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). The prosecution is 

obligated to “correct false testimony[.]” Smith, 498 Mich at 476 (citations omitted). 

 Upon close review of each instance of false testimony alleged by defendant in his 

supplemental brief, we conclude that there is no indication in the record that the witnesses 

provided false testimony, or that the prosecution knowingly allowed false testimony to remain 

uncorrected. While there were some inconsistencies in the record evidence, any inconsistencies 

were the proper subject of impeachment during cross-examination. MRE 607; People v 

Rodriguez, 251 Mich App 10, 34; 650 NW2d 96 (2002). Further, to the extent that the 

credibility of the witnesses was implicated, their credibility was a question for the jury. See, e.g., 
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People v Lemmon, 456 Mich 625, 646; 576 NW2d 129 (1998) (recognizing that the fact-finder 

must evaluate a witness to determine if the witness is telling the truth). Defense counsel was 

afforded ample opportunity to explore the issues and impeach the credibility of the witnesses, 

and the jury was tasked with the duty to determine credibility. Accordingly, where the record 

does not support defendant’s allegation of improper conduct by the witnesses or the prosecution, 

defendant has not established plain error affecting his substantial rights. Callon, 256 Mich App 

at 329.8 

 Affirmed. 

/s/ Deborah A. Servitto 

/s/ Mark J. Cavanagh 

/s/ Karen M. Fort Hood 

 

8

 In his supplemental brief, defendant also argues that trial counsel was ineffective for failing to 

object during what he characterizes as false testimony by the witnesses. We have reviewed each 

of defendant’s claims, and conclude that his allegations that trial counsel was ineffective are 

without merit, as defendant has not overcome the presumption that trial counsel acted in 

accordance with sound trial strategy. Trakhtenberg, 493 Mich at 52. To the extent that 

defendant also asserts that the witnesses engaged in fraud upon the trial court, a close review of 

the record simply does not support this assertion where there is no indication, other than 

defendant’s unsupported allegations in his supplemental brief, that the witnesses testified 

untruthfully. The record also does not support defendant’s allegations in his supplemental brief 

that the police engaged in misconduct in any manner during their investigation of defendant, or 

during their testimony at trial. Finally, where defendant briefly challenges Officer McClure’s 

questioning of S.A. when she first reported the sexual abuse by defendant in 2014, there is no 

indication in the record that Officer McClure’s questioning of S.A. amounted to misconduct or 

that his testimony at trial was false.