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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Plaintiff-Appellee, UNPUBLISHED May 16, 2017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: S ERVITTO , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial convictions of th ird-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 sentence d to 55 months to 15 years’ imprisonment for the CSC III conviction and 12 months to 2 year s’ imprisonment for the CSC IV conviction. We affirm.

The instant case arose from defendant’s sexual abuse of his st epdaughter, S.A., from the time she was in the eighth grad e through her senior year in hig h 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 Townsh ip. The complainant testified at trial that defendant began i nappropriately touching her when she was in the eighth grade. He would put his arm between her breasts as they sat together on t he couch. The sexual abuse progressed to touching and squeezing her buttocks and touching her breasts both over and under her clothes. By her twelfth gr ade year, defendant had engaged in multiple acts of digital penetration and cunnilingus with S.A. S.A. further testified t hat the sexual assaults usually occurred at home while her mother was at work or had gone to be d for the night. In 2014, S.A. told her boyfriend about the abuse, which ultimately led to a p olice investigation. The case proceeded to trial, and defendant was convicted of one count ea ch of CSC III and CSC IV, which he now appeals.

I. ADMISSIBILITY OF EVIDENCE

Defendant argues that the trial court abused its discretion indenying his request to introduce evidence, including e xpert testimony. We disagree.-2- We review a trial court’s deci sion to admit or exclude evidenc e for an abuse of discretion. People v Feezel , 486 Mich 184, 192; 783 NW2d 67 (2010). We also review a tria l court’s decision to admit or exclude expert witness testimony for an ab use of discretion. People v Steele , 283 Mich App 472, 480; 769 NW2d 256 (2009). An abuse of disc retion 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 qu estion 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 abuse 1 against over one hundred men, including defendant. He claimed that this evidence was relevant because S.A.’s contact with the twin s had taught her how to make allegations of sexual abuse “stick” or, alternatively, showed t hat she was suggestible regarding sexual matters. He sought to call psychologist Dr. Katherine O kla as an expert witness to testify to S.A.’s suggestibility and familiarity with sexual abuse inve stigations, among other things. According to defendant, Dr. Okla would testify that the false r eport 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 exist ence 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 ad missible. MRE 402. We acknowledge that a victim of sexua l 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 cla ims of sexual abuse. The trial court properly determined that evidence of their prior al legations was not relevant and, therefore, inadmissible. Specifically, evidence of the false r eport of the twins was not relevant where such evidence did not make it more probable that S.A. wou ld lie about sexual contact with defendant. While it appears from the record that S.A. lived wi th the twins for a time, there was no indication in the record to s uggest that she was unduly infl uenced by their behavior, particularly with regard to the nature of their sexual abuse al legations. 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 cle ar from the record, whether the allegations were in fact false i s not determinative in our anal ysis.

2 We observe that during the June 3, 2015 motion hearing, when t he trial court inquired of defense counsel what exact evidence defendant sought to admit c oncerning 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 belie ve that the exposure of – and the risk of susceptibility to the complaining witness in this case from her exposure to this highly-3- sought to admit concerning the twins’ prior allegations of sexu al abuse (1) was not relevant to the ultimate issue of this case, that being whether defendant s exually assaulted S.A., and (2) did not bear on S.A.’s credibility, it was not an abuse of discreti on for the trial court to decline to admit this evidence.

Moreover, MRE 702 permits expert witness testimony when it “wi ll 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 under standing 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 speculativ e and, therefore, evidence bearing on that point was not relevant to whether S.A. was being truthf ul. “Because it is the province of the jury to determine whether a particular witness spoke the tr uth 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 a ssessing witness credibility in its fact-finding mission and in determining the ultimate issue of g uilt or innocence.” Id. (Citations and internal quotations omitted.) Here, the real purpose of th e expert testimony would have been to attack S.A.’s credibility, and would have only served as a d istraction to the jury from its ultimate responsibility of assessing credibility. Accordingly, we conclude that the trial court did not abuse its discreti on in declining to admit the expert witne ss evidence.

Defendant also argues that the trial court abused its discreti on 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. Defend ant 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 admiss ible 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 cou rt recognized, defendant’s biological daughter’s allegations of se xual abuse bore numerous indicia of similarity to the sexual abuse that S.A. alleged against def endant. We also note that defendant’s argument that the proffered evidence was improperly admitted to show defendant’s propensity to commit the instan t offenses is unavailing, where in Solloway , this Court recognized, in pertinen t part, as follows:

Under MCL 768.27a, evidence is rel evant, and therefore admissib le, when offered to show the defendant’s propens ity to commit the charged crime. People v Watkins , 491 Mich 450, 470; 818 NW2d 2 96 (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 w as living in for a long period of time and the allegations that surrounded my client while she lived with him may have had a ps ychological impact on – on her.”-4- 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 alle gations in 2014. 3 A temporal divide alone does not preclude admission of evidence when the o ther 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 s exually assaulted them, admission of other acts evidence was not precluded by the diffe rence 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 cor roborate defendant’s biological daughter’s allegations of sexual a buse by defendant. In any ev ent, where the evidence was not presented to the jury, even if we concluded that the trial cour t’s ruling was erroneous, defendant is not entitled to appellate relief on this issue where the tri al 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 doe s not warrant reversal unless after an examination of the entire cause, it shall affirmativel y appear that it is more probable than not that the error was outcome d eterminative.”) (quotation mark s, footnote and citation omitted). 4

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next argues that he was denied the effective assista nce of counsel at trial. We disagree.

Whether a person has been denied effective assistance of couns el 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 determinat ions 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 denie d, 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 defenda nt’s biological daughter’s allegations of sexual abuse was not completed because her mothe r did not cooperate, and there is an indication in the record that d efendant’s biological daughte r recanted the allegations in 2014 after speaking to defendant.

4 We also note that the trial cour t 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 tha t an evidentiary hearing to determine the admissibility of evidence regarding prior allegations of sexual assault is not intended to be “utili zed as a fishing exp edition[.]”).

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)

.-5- A defendant claiming that he has been denied the effective ass istance of counsel must demonstrate: “(1) that his attorney’s performance fell below a n 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 defe ndant must show the existence of a reasonable probability that, but for counsel’s error, the result of the proceeding would hav e been different.’” Id ., quoting People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001). “Effective assistanc e of counsel is presumed, and the defendant bears a heavy burden of proving oth erwise.” People v Solmonson

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

First, defendant argues that his trial counsel 6 was ineffective for failing to call character witnesses at trial to testify to his good character. “Decision s regarding what evidence to present and whether to call or question witnesses are presumed to be ma tters of trial strategy.” People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999) (citation omitted). The defendant must overcome a strong presumption th at counsel’s performance consti tuted 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 defenda nt, namely the 1993 sexual abuse allegations of his biological d aughter. Therefore, calling wit nesses 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 pro secution 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 defendan t was their uncle, had been around them their entire lives, and had never touched them in a n inappropriate manner. A third witness, defendant’s sister and the mother of one of the other proposed witnesse s, also averred that defendant had acted in a ca ring and appropriate manner tow ard her daughter. While these witnesses would have provided evidence of defendant’s good char acter, defendant has not overcome the presumption that it was sound trial strategy for t rial counsel to exclude these witnesses to prevent the pros ecution from introducing evidence that was more damaging to the defense.

Next, defendant argues that h is trial counsel was ineffective for allowing a proposed character witness, his sister, to remain in the courtroom durin g trial in violation of a sequestration order. Consequently, defendant’s sister was barr ed from testifying. It appears from the record that trial counsel did not have defendant’s sis ter leave the courtroom because he had already decided that he w ould not call her as a witness. E ven if we accept defendant’s contention that trial counsel e rred regarding the sequestration of the witness, defendant has not

6 For clarity of analysis regarding whether defendant was afford ed the effective assistance of counsel, in this portion of our opinion we will refer to defend ant’s counsel in the lower court proceedings as trial counsel.

7 We note that one of the affidav its is unsigned and not sworn.-6- shown that the error affected the outcome of the proceedings wh en the record reflects that trial counsel decided not to pursue call ing character witnesses on de fendant’s behalf.

Finally, defendant asserts that his trial counsel was ineffect ive for improperly convincing him to waive his right to testif y at trial. In support of his claim, defendant con tends that he was adamant about testifying at tri al. At trial, defendant initial ly stated that he would testify. When a discussion took place on the rec ord between the trial court, tr ial counsel and the prosecution regarding whether the prosecuti on could cross-examine defendant about other acts evidence, defendant left the courtroom br iefly and consulte d with his cou nsel, returning to the courtroom to express his decision not to tes tify. The trial court thoroughl y explored the matter of defendant’s choice whether to testify, asking defendant several pointed que stions to confirm his decision that he had chosen not to testify. A t one point, the trial court in formed 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 tri al counsel’s performance failed to satisfy an objectivel y reasonable standard. Gaines , 306 Mich App at 300.

III. SENTENCING

Defendant contends that the tr ial court erred in assessing 15 points for offense variable (OV) 10 when the evidence did not support a finding that defend ant’s conduct was predatory. We disagree.

A trial court’s factual determinations regarding the scoring o f offense variables “are reviewed for clear error and must be supported by a preponderan ce of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (footnote and citation s omitted). “Whether the facts, as found, are adequate to satisfy the scoring condit ions 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 “exploitatio n of a vulnerable victim.” MC L 777.40(1). A trial court must assess 15 points under OV 10 if “[p]redatory conduct was i nvolved.” 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 “prim ary 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 tha t defendant’s preoffense conduct was predatory. S.A. testified that defendant married h er 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 parent al authority because her biolo gical father had died when she was only 5 years old. The record confirms that defendant began eng aging in grooming behavior with S.A. S.A. testified that defendant began putting his arm betwe en her breasts as they sat together on the couch. When S.A. would ask defendant why he was doing t hat, he told her that “he didn’t-7- realize that he was doing that[,]” and defendant nonetheless co ntinued to engage in such behavior. Defendant then moved to touching her breasts and but tocks outside of her clothes and inside of her clothes. These earlier sexual contacts were prim arily intended to lower S.A.’s inhibitions. S.A. claimed that d efendant progressed to touchin g 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. Gradua lly 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 v ictim 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 sufficie nt evidence to support the scoring of OV 10 at 15 points for defe ndant’s predatory conduct.

IV. FALSE TESTIMONY AND COLLUSION

In a supplemental brief filed in propria persona pursuant to S upreme Court Administrative Order No. 2004–6, St andard 4, defendant argues t hat witnesses for the prosecution gave false testimony and acted in collusion with th e prosecution to effectuate an outcome that deprived defendant of his right to due process. W e disagree.

“A due process violation presents a constitutional question th at this Court reviews de novo.” People v Smith , 498 Mich 466, 475; 870 NW2d 299 (2015). Because defendant di d 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 “resul ted in the conviction of an actually innocent defendant” or “seriously affect[ed] the fairn ess, integrity, or public reputation of judicial proceedings independent of [the] defendant’s innoce nce.” 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 O fficer Gary McClure, Officer John Peters, S.A., and her boyfriend, and he contends t hat the prosecutor knowingly allowed this false testimony. It is well-established that it o ffends due process guarantees for the prosecution to secure a conviction through the knowing use of f alse testimony, and such conviction must be set aside if “the uncorrected false testimon y ‘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). Th e prosecution is obligated to “correct f alse 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 t hat there is no indication in the record that the witnesses provided false testimony, or tha t the prosecutio n knowingly all owed false testimony to remain uncorrected. While there were some inconsistencies in the reco rd 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 ext ent that the credibility of the witnesses was implicated, their credibility was a question for the jury. See, e.g.,-8- 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 th e 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 substan tial 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 co unsel was ineffective for failing to object during what he characteri zes as false testimony by the w itnesses. We have reviewed each of defendant’s claims, and conclude that his allegations that t rial counsel was ineffective are without merit, as defendant has not overcome the presumption th at 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 i s 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 all egations in his supplemental brief that the police engaged in misconduct in any manner during thei r investigation of defendant, or during their testimony at trial. Finally, where defendant brie fly 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 O fficer McClure’s questioning of S.A. amounted to misconduct or that his testimony at trial was false.