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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UNPUBLISHED

March 6, 2018

v No. 335417

Ingham Circuit Court

JACOB DANIEL MCKAY, LC No. 15-001126-FH

Defendant-Appellant.

Before: CAVANAGH, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

A jury convicted defendant, Jacob Daniel McKay, of three counts of second-degree child 

abuse, MCL 750.136b(3). The trial court sentenced him as a third habitual offender, MCL 

769.11, to serve concurrent prison terms of 160 months to 240 months on each conviction, which 

exceeded by 31 months the top of the recommended minimum sentencing guidelines range of 43 

months to 129 months. Defendant appeals as of right. For reasons more fully explained below, 

we affirm defendant’s convictions, but vacate his sentence and remand for resentencing.

I. RELEVANT FACTS AND PROCEEDINGS

The victims in this case were three of defendant’s four stepchildren, JLB, JJB, and SLB.

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The children were approximately ten, seven, and five years old when their mother married and 

moved in with defendant, and they lived with defendant for less than 16 months before Child 

Protective Services placed them with their paternal grandmother.2 Prior to moving in with 

defendant, the children had resided for three years with their paternal grandmother, who testified 

 1 The fourth stepchild was the youngest and it appears that because of her young age she was not 

subject to the same abuse as the older three children. She did not testify at trial and defendant 

was not charged with abusing her.

2 The children’s mother testified at defendant’s trial that she took the children to their paternal 

grandmother’s house for spring break in March 2013, and CPS placed them with the 

grandmother in April. The mother testified that she voluntarily released her parental rights to the 

children. She also testified that their biological father’s parental rights were terminated at the 

same time as hers. The children were 14, 11, and 10 years old at the time of defendant’s trial.
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that the children were “happy” and “normal,” although JJB had some behavior issues related to

Attention Deficit Hyperactivity Disorder (ADHD).

3

 The children’s mother testified that 

defendant was unable to work because of a back injury, so he was the children’s primary 

caregiver and disciplinarian while she was at work. All three children testified to various forms 

of punishment that defendant meted out. Their testimony was corroborated by that of 

defendant’s biological children, who visited defendant every other weekend during the school 

year and alternate weeks during the summer. In addition, defendant corroborated much of the 

victims’ testimony in his interview with Detective Shannon Thielen of the Lansing Police 

Department’s Special Victims Unit.

All three victims testified that defendant made them stand in a corner and touch their toes 

without bending their knees. If they moved or complained, defendant would add time to the 

punishment. Although testimony regarding how long the children had to touch their toes varied, 

defendant admitted in his interview with Detective Thielen that he made them touch their toes 

for thirty minutes or an hour at a time. Another form of punishment defendant employed was to 

make the two oldest children write sentences, such as “I will not lie,” “I will not steal,” or “this is 

wrong because . . . .” The number of sentences assigned would accumulate as punishments were 

added for further misconduct. JLB testified that she was assigned hundreds or even thousands of 

sentences that would take her multiple days to write, and that she filled a three-subject collegeruled notebook with sentences in the roughly 15 months she lived with defendant. Two of 

defendant’s biological children testified that they observed JLB have to write at least one 

thousand sentences due to cumulative punishments.

In addition, all three victims testified that defendant punished them by “grounding” them 

for long periods. JLB testified that the longest defendant grounded her was for 72 or 73 days, 

and SLB testified that she once was grounded for an entire summer. JLB testified that the 

groundings started with four or five days, but days were added if they “messed up.” When 

grounded, defendant confined the children to their bedrooms, which contained little more than a 

bed and a blanket or sheet. JJB was allowed to have books, but his room did not have an interior 

doorknob, and defendant kept the exterior doorknob on his person and exercised control over 

when JJB could exit the room. SLB testified that she was able to look out her window until 

defendant covered it with a blanket, and that defendant would place a large dresser in front of her

room to barricade her inside. The children had to ask permission to use the restroom, but 

testified that defendant did not always give permission. SLB, who was five years old at the time 

of the abuse, resorted to relieving herself in her room and hiding the evidence in a closet or under 

a bed. Defendant admitted to Detective Thielen that he once found the urine- and feces-soiled

underwear and smeared them across SLB’s face as punishment.

The jury also heard testimony that defendant spanked the children with his hand, a belt, 

plastic spatulas, or “whatever” he had nearby. Defendant’s biological children testified that 

 3 Between the time JJB lived with his paternal grandmother in 2011 and the time CPS removed 

him and his siblings from defendant’s care in the spring of 2013, he also received a diagnosis of 

autism spectrum disorder.
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defendant spanked JJB excessively and aggressively, sometimes making it hard for him to sit. 

JJB testified that defendant banged his head against the wall and once pushed him down the 

stairs, and JLB reported that she saw defendant hit JJB in the head with a jar. The jury also 

heard testimony that defendant verbally abused the children. JLB testified that defendant called 

her and JJB “worthless” and “stupid,” and JJB said that defendant would yell and cuss at him. 

JLB also testified that she had a “smart mouth” and defendant would forbid her from talking for 

two, three, or four days at a time. One of defendant’s biological children testified that he 

observed JLB, who was ten- or eleven-years-old at the time, do the cleaning and a majority of 

the cooking. All three children testified that food was not always freely available to them.

During her testimony, Detective Thielen read into the record some of defendant’s 

statements from her interview with him, which corroborated much of what the children alleged. 

The jury heard that defendant blamed his behavior with the children on the mix of medications

he was taking for his back injury and other ailments. He admitted to Detective Thielen that he 

caused the children trauma, that he made JLB do a lot of the cooking and cleaning and there 

were times he would not allow her to speak, and that he placed a dresser in front of SLB’s 

bedroom door to keep her from escaping. He also admitted in the interview to wiping SLB’s

face with a pair of soiled underwear, and getting “some of it in her hair.” He said he was “trying 

to instill the nastiness of it, but at the same time I just degraded her.” Detective Thielen reported 

that defendant said, “it wasn’t until after they were gone that I realized how bad it was with the 

discipline, the verbal and the mental instability, and the abuse going on.”

Eventually, JLB disclosed what was happening to a school counselor because she was 

“getting fed up” and having suicidal thoughts. In March 2013, while a Child Protective Services 

(CPS) investigation was ongoing, the children’s mother dropped the children off with their 

paternal grandmother. The next month, CPS officially placed the children with the paternal 

grandmother, who testified that, although the children appeared fine physically, they behaved 

differently when they came back under her care. For example, they flinched when hugged or 

touched. JLB was “leery of everyone,” showed signs of “depression and guilt,” and was selfharming, including cutting herself and biting her hands until they would bleed. JJB’s moods had 

become “volatile,” and SLB was “depressed,” “very timid, frightened easily,” and had “lots of 

nightmares.” The grandmother sought counseling for the children, and they subsequently were 

diagnosed with post-traumatic stress disorder (PTSD). In addition, JLB was diagnosed with 

borderline personality disorder and major depression; she also engaged in self-harm and

attempted suicide twice. Eventually, authorities removed JLB and JJB from their grandmother’s 

home and placed them in a residential psychiatric facility. SLB’s counselor testified that SLB’s

PTSD was improving and that she was hopeful that SLB might eventually lead a normal life, but 

concluded that SLB was still in need of ongoing weekly therapy.

The jury deliberated approximately four hours before returning guilty verdicts. At his 

sentencing hearing, defendant asked for mercy, told the court he was doing “everything [he] can 

to try and bless the people that come in contact with [him],” and that he was making amends by 

creating a non-profit organization for the homeless. In her victim’s impact statement, JLB 

expressed how hard she had worked to be able to stand before the court, how difficult it was for 

her to do so, and how angry she felt. The trial court initially calculated defendant’s minimum 

sentencing guidelines range for a class C offense at 50 months to 150 months for a third habitual 

offender. However, corrections made to defendant’s prior record variable (PRV) score changed 
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his PRV level from D to C. Although the trial court also made corrections to defendant’s offense 

variable (OV) score, his OV level remained at level VI. The result was a revised recommended 

minimum sentencing guidelines range of 43 months to 129 months. Defendant’s attorney asked 

the court to impose a sentence at the mid to low level of the guidelines, while the prosecution 

asked the court to impose a 160-month minimum sentence, two-thirds of the maximum sentence 

allowed by statute. See MCL 750.136b(4)(b) (setting the maximum prison sentence for a second 

or subsequent second-degree child abuse offense at 20 years). The court granted the 

prosecution’s request and sentenced defendant to 160 months to 240 months in prison. 

Defendant now appeals his conviction and his sentence.

II. ANALYSIS

A. REASONABLENESS OF SENTENCE

Defendant first argues that the trial court abused its discretion in imposing a departure 

sentence that was unreasonable and disproportionate. Defendant contends that his actions did 

not justify imposition of a sentence that exceeded by 31 months the high end of the 

recommended 43 to 129 month minimum sentence range because he expressed remorse, was 

making amends by helping the homeless, and demonstrated that he was capable of rehabilitation.

This Court reviews for reasonableness a trial court’s decision to depart from the 

applicable sentencing guidelines range. People v Steanhouse, 500 Mich 453, 471, 476; 902 

NW2d 327 (2017). When reviewing a departure sentence for reasonableness, we must review 

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

in [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)].” Id. at 477. A trial court abuses its 

discretion “in applying the principle of proportionality by failing to provide adequate reasons for 

the extent of the departure sentence imposed . . . .” Id. at 476.

The Milbourn Court described the principle of proportionality as one in which

a judge helps to fulfill the overall legislative scheme of criminal punishment by 

taking care to assure that the sentences imposed across the discretionary range are 

proportionate to the seriousness of the matters that come before the court for 

sentencing. In making this assessment, the judge, of course, must take into 

account the nature of the offense and the background of the offender. [Milbourn, 

435 Mich at 651.]

“ ‘[T]he key test is whether the sentence is proportionate to the seriousness of the matter, not 

whether it departs from or adheres to the guidelines’ recommended range.’ ” Steanhouse, 500 

Mich at 472, quoting Milbourn, 435 Mich at 661.

The Legislature incorporated this principle of proportionality into the sentencing

guidelines. People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (stating that the 

Legislature “subscribed to this principle of proportionality in establishing the statutory 

sentencing guidelines”). The Legislature enacted the sentencing guidelines “to promote uniform 

sentencing across the state.” People v Smith, 482 Mich 292, 312; 754 NW2d 284 (2008). 

However, the guidelines were again made advisory by our Supreme Court’s decision in People v 

Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015), in order to remedy the violations of 
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the Sixth Amendment that arose from court’s imposing mandatory minimum sentences based on 

facts not found by juries or admitted by defendants. Although trial courts are no longer bound by 

the sentencing guidelines, they “must continue to consult the applicable guidelines range and 

take it into account when imposing a sentence.” Lockridge, 498 Mich at 392; see also People v 

Dixon-Bey, __ Mich App __; __ NW2d __ (2017) (Docket No. 331499); slip op at 21-22.

Although sentencing courts are no longer required to articulate “substantial and compelling 

reasons” for imposing a sentence that departs from the sentencing guidelines’ recommendation, 

they still must “justify the sentence imposed in order to facilitate appellate review.” Lockridge, 

498 Mich at 392.

Appellate courts review departure sentences for reasonableness. Id. In Steanhouse, our

Supreme Court resolved a division between panels of this Court concerning “the proper standard 

to use to determine whether a defendant’s departure sentence is so unreasonable as to constitute 

an abuse of the trial court’s discretion and warrant reversal on appeal.” Steanhouse, 500 Mich at 

471. In so doing, the Steanhouse Court reaffirmed “the proportionality principle adopted in 

Milbourn and reaffirmed in Babcock and Smith.” Id. at 473. Accordingly, “appellate review of 

departure sentences for reasonableness requires review of whether the trial court abused its 

discretion by violating the principle of proportionality set forth in [the Supreme Court’s] decision 

in Milbourn.” Id. at 477. Further, a sentencing court can “abuse[] its discretion in applying the 

principle of proportionality by failing to provide adequate reasons for the extent of the departure 

sentence imposed.” Id. at 476. When this occurs, the reviewing court must remand to the trial 

court for resentencing. Id.

In the present case, the trial court sentenced defendant to a minimum sentence of 160 

months to 240 months, 31 months more than the sentencing guidelines’ recommended minimum 

sentence range of 43 months to 129 months. The trial court explained its departure thusly:

You know, I don’t usually say much, but I think my sentence is probably going to 

be reviewed at the higher level.

I would like the court of appeals to be aware that I am mindful of the 

rescored guidelines and the different level that is on that sheet. And I would say 

that, I wonder, Mr. [Prosecutor], how many of these kind of cases have I handled 

in the last 37 years? How many horrible deaths of babies and abuse and CSC? I 

remembered a guy, it was before your time, where he had been raping his own 

two daughters from the time they were six years old up till they were adults, and 

they came in and testified crying their eyes out. It just – these things just really 

are something else, and I don’t understand what this world has gotten to.

Mr. [Prosecutor] makes a very good point.4 [Defendant] had a right to 

exercise his constitutional rights to have a trial here. He had every right, and I 

 4 According to the sentencing transcript, the prosecutor had earlier opined that he did not believe 

that the guidelines sufficiently encompassed the acts committed by defendant. Included was 

defendant’s having put the children through two proceedings where they had to testify (the 
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respect that, and any decision I make has nothing to do with that. But you tell me 

how anyone can smear feces on a child’s face and urine on their face and claim 

that that is normal childhood punishment? How can anyone do that to a little five 

year old girl, it is beyond me, and then sit here and expect those children –

probably assuming they are not going to testify against him.

I don’t know. There is something radically wrong in your client’s mind, 

Counsel. There is a piece missing out of there. I think he is a psychotic 

psychopath. He is absolutely at the bottom. I have never had anybody – even the 

people who molested children didn’t do the things this man has done. He has set 

a new level of bottom of the barrel for all of us.

They were three damaged children when he walked in, and between him 

and his wife, they managed to destroy all three of them. Two are in mental 

hospitals and the third one has to see a psychiatrist or psychologist almost every 

week. Their lives are in tatters. Whatever was left he has managed to take it and 

destroy it with her help. And she is – she stands there with him. It’s absolutely 

amazing. If I had the ability to make sure that they never had other children I 

would order that, but I don’t.

I want the court of appeals to recognize just what a horrible case it is. 

Whatever clerk over there reviews this needs to read the agent’s description of the 

offense and the transcript of this trial.

The trial court expressly recognized that it was imposing a sentence that departed from 

the guidelines, and that its departure sentence was likely to be reviewed by this Court. Departure 

from the guidelines is “appropriate where the guidelines do not adequately account for important 

factors legitimately considered at sentencing.” Milbourn, 435 Mich at 657. Factors a trial court 

may consider under the principle of proportionality standard include, but are not limited to the 

seriousness of the offense, factors inadequately considered by the guidelines, and factors not 

considered by the guidelines, such as the relationship between the victim and the perpetrator, the 

defendant’s misconduct while in custody, expressions of remorse, and potential for 

rehabilitation. People v Houston, 448 Mich 312, 321-324; 532 NW2d 508 (1995). We evaluate 

not only the court’s reasons for imposing the departure sentence, but also “whether the extent of 

the departure can satisfy the principle of proportionality.” Steanhouse, __ Mich App __; __ 

NW2d __ (2017); slip op at 3; see Milbourn, 435 Mich at 659-660 (recognizing that “[e]ven 

where some departure appears to be appropriate, the extent of the departure (rather than the fact 

of the departure itself) may embody a violation of the principle of proportionality”). As already 

indicated, a trial court must justify the departure sentence to facilitate appellate review, 

Lockridge, 498 Mich at 392. This means that the court must articulate adequate reasons to 

support the fact of the departure as well as to justify the extent of the departure. See Smith, 482 

Mich at 295.

 

preliminary examination and the trial) and then having “the gall to stand up here and talk about 

the good acts he has done.”
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While we agree with the trial court’s characterization of this as “a horrible case” of child 

abuse warranting an accordingly proportionate sentence, we must vacate and remand for 

resentencing because the trial court’s imposition of the maximum possible sentence was 

summarily lodged in subjective conclusions rather than objective findings that are capable of 

appellate review.

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 In doing so, the trial court “abused its discretion in applying the principle of 

proportionality by failing to provide adequate reasons for the extent of the departure sentence 

imposed.” Steanhouse, 500 Mich at 476. The facts of this case are compelling. The record 

indicates that the two older children suffered from behavioral issues or a developmental disorder 

prior to defendant’s abuse, and that defendant’s abuse worsened their issues to the point that they 

required residential psychiatric care. Defendant’s rubbing the five-year old child’s face in 

underwear she soiled with feces and urine because defendant would not allow her out of her 

room to go to the bathroom was unimaginably cruel and degrading. Nevertheless, the offense 

variables that the trial court scored contemplated the vulnerability of the victims, the brutal and 

sadistic nature of defendant’s actions, and the serious psychological harm suffered by the 

victims. Here, the trial court did not articulate whether or how the OVs inadequately accounted 

for these characteristics of defendant’s offenses, what characteristics of defendant’s offenses 

were not accounted for by the guidelines, or why a minimum sentence of 31 months above the

maximum end of the recommended sentencing guidelines range satisfied the principle of 

proportionality. And while imposing a proportionate sentence does not require a presumption of 

unreasonableness for sentences outside the guidelines range, the guidelines remain highly 

relevant. See Steanhouse, 500 Mich at 475.

As to the characteristics of the offense, the trial court scored OV 10 (exploitation of a 

vulnerable victim), MCL 777.40, at 10 points, indicating that defendant had exploited the 

victims’ physical or mental disabilities, their youth, or his status as their stepfather. Although the 

trial court stressed that the victims were “damaged” when defendant became their stepfather, the 

court offered no rationale as to why OV 10 inadequately accounted for their particular degree of 

vulnerability or the magnitude of defendant’s abuse of his authority. Likewise, the trial court 

assessed the maximum 10 points for OV 4 (psychological injury to victim), MCL 777.34, 

because “serious psychological injury requiring professional treatment occurred to a victim.” 

The trial court noted that defendant’s abuse caused JLB and JJB to be placed in residential 

psychiatric facilities, and required SLB to undergo weekly psychiatric care. However, the trial 

court did not indicate whether or how OV 4 was inadequate to account for the degree of 

psychological harm suffered by the victims. In like fashion, the trial court assessed a maximum 

of 50 points for OV 7 (aggravated physical abuse), MCL 777.37, which is proper where a 

“victim was treated with sadism, torture, or excessive brutality or conduct designed to 

substantially increase the fear and anxiety a victim suffered during the offense.” In addition to 

the trial court’s reference to defendant’s smearing SLB’s face with her feces-and-urine-soiled 

underwear, trial testimony indicated that defendant left the children in stress positions for 

considerable periods and grounded them under harsh conditions for weeks—and even months—

 5 Concluding that defendant “has a piece missing” and instructing the clerks of this Court to 

review the record so that we might come to the same conclusion is simply insufficient. 
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at a time. The trial court offered no rationale as to why scoring OV 7 at 50 points was 

insufficient to account for the nature of defendant’s abuse.

Turning to the nature of the offender, defendant’s prior record variable (PRV) score was 

22. The trial court scored two points for PRV 5 (prior misdemeanor convictions), MCL 777.55, 

for a 2010 domestic assault conviction in violation of MCL 750.81(2), and 20 points for PRV 7 

(subsequent or concurrent felony convictions), MCL 777.57, to reflect that a jury convicted 

defendant of three counts of second-degree child abuse. Apart from this, defendant had two very 

old non-violent felonies. Although the trial court might factor in defendant’s recent domestic 

assault, followed by the convictions for second-degree child abuse, when considering 

defendant’s potential for rehabilitation, the trial court did not point to anything in defendant’s 

background indicating recidivist proclivities that would make a departure sentence more 

proportionate than a sentence within the guidelines.

The trial court urged this Court to review the record closely and “recognize just what a 

horrible case it is.” However, regardless of the closeness of our review, if the trial court fails to 

provide an adequate explanation for the fact and extent of a departure sentence, this Court cannot 

supplement the trial court’s reasoning with its own. Smith, 482 Mich at 304 (“[I]f it is unclear 

why the trial court made a particular departure, an appellate court cannot substitute its own 

judgment about whey the departure was justified”); see also People v Dixon-Bey, __ Mich App 

__; __ NW2d __ (2017) (Docket No. 331499); slip op at 21. Nor can we uphold a sentence 

“when the connection between the reasons given for departure and the extent of the departure is 

unclear.” Smith, 482 Mich at 304. Even if we were inclined to conclude that the trial court’s 

implication that the seriousness of defendant’s offenses exceeded that contemplated by the 

sentencing guidelines adequately explained why the court imposed a departure sentence, nothing 

in the court’s comments articulates objective grounds for the particular extent of the departure. 

Because we conclude that the trial court abused its discretion in applying the principle of 

proportionality by “failing to provide adequate reasons for the extent of the departure sentence 

imposed,” we must remand the matter to the trial court for resentencing.6 Steanhouse, 500 Mich 

at 476. In light of our disposition of this issue, we need not address defendant’s claim that his 

sentence constituted cruel and unusual punishment.

B. STANDARD 4 BRIEF

1. INEFFECTIVE ASSISTANCE OF COUNSEL

 6 At the time of resentencing, if the trial court deems a departure sentence to be proportionate to 

the offender and the offenses, it would behoove the court for appellate review purposes to 

address the facts of this case in the context of the objective factors a court may consider, several 

of which are addressed in Houston, 448 Mich at 321-324.
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In a Standard 4 brief,7 defendant argues that he received ineffective assistance of counsel 

at trial. We disagree. Defendant did not preserve this claim by making a motion for a new trial 

or for a Ginther8 hearing. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014). 

Unpreserved claims of ineffective assistance of counsel are reviewed for errors apparent on the 

record. Id. “If the record does not contain sufficient detail to support defendant’s ineffective 

assistance claim, then he has effectively waived the issue.” People v Lockett, 295 Mich App 

165, 186; 814 NW2d 295 (2012) (quotation marks and citation omitted).

Criminal defendants have the right to effective assistance of counsel at trial. US Const, 

Am VI; Const 1963, art 1, §20; People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). 

Effective assistance is presumed, and a defendant bears a heavy burden of proving otherwise. 

People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). In order to establish ineffective 

assistance of counsel, a defendant must show that “ ‘counsel’s representation fell below an 

objective standard of reasonableness’ and that ‘there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” 

Vaughn, 491 Mich at 669, quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 

2052; 80 L Ed 2d 674 (1984). A reviewing court should consider counsel’s performance with 

the strong presumption that adequate assistance was rendered and that all decisions made were in 

the “exercise of reasonable and professional judgment.” Vaughn, 491 Mich at 670 (quotation 

marks and citation omitted). Further, the Court should not substitute its judgment with the 

benefit of hindsight on decisions made by counsel regarding matters of trial strategy. People v

Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

Defendant first argues that his counsel was ineffective because of a question he asked 

during jury voir dire. Counsel inquired whether the jury had ever seen a popular television show 

in which the father sometimes “swats” his children on the back of the head as punishment. 

Presumably, counsel was attempting to analogize defendant spanking his children to the 

depiction on the television show as a way to gauge the potential juror’s opinions on physical 

punishment. “The function of voir dire is to elicit sufficient information from prospective jurors 

to enable the trial court and counsel to determine who should be disqualified from service on the 

basis of an inability to render decisions impartially.” People v Sawyer, 215 Mich App 183, 186; 

545 NW2d 6 (1996). Acceptability of voir dire practices “does not lend itself to hard and fast 

rules.” Id., quoting People v Tyburski, 445 Mich 606, 623; 518 NW2d 441 (1994). Questioning 

should focus on “discovering grounds for challenges for cause and of gaining knowledge to 

facilitate an intelligent exercise of peremptory challenges.” MCR 6.412(C)(1). The question 

posed was within the proper scope and purpose of voir dire. Moreover, defendant cannot show 

that this question caused prejudice, nor does he offer any argument to overcome the presumption 

that this was sound trial strategy. Payne, 285 Mich App at 190.

 7 A “Standard 4” brief refers to the brief a defendant may file in propria persona pursuant to 

Standard 4 of Michigan Supreme Court Administrative Order No. 2004-6, 471 Mich c, cii 

(2004).

8 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Next, defendant argues that the trial judge’s admonishment of his attorney for failing to 

make an objection constituted ineffective assistance of counsel. Defendant does not point to 

where in the record this admonishment took place, or explain how this fell below an objective 

standard of reasonableness or affected the ultimate outcome of the proceeding. Vaughn, 491 

Mich at 669. An appellant is required to argue the merits of each issue, see People v King, 297 

Mich App 465, 474; 824 NW2d 258 (2012), and to support factual statements with specific 

references to the record, People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008). 

Accordingly, this argument is waived. Id. In any event, even if defendant had pointed to a 

particular missing objection, whether to raise an objection is a matter of trial strategy. People v 

Unger (On Remand), 278 Mich App 210, 242-243; 749 NW2d 272 (2008).

Defendant finally argues that defense counsel failed to impeach witnesses or attack 

witnesses as uncooperative or not credible. Whether and how to cross-examine witnesses is a 

matter of trial strategy. People v Hopson, 178 Mich App 406, 412; 444 NW2d 167 (1989). A 

defendant can only prove counsel was ineffective by a failure to cross-examine a witness if the 

failure deprives the defendant of a substantial defense. Id. A substantial defense is one that may 

have affected the outcome of the trial. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 

(2009).

First, defendant has not supported his claim by identifying which witnesses his counsel 

failed to cross-examine, when he failed to impeach witnesses, or what questions he should have 

asked. Therefore, he has failed to establish the factual predicate for his claim. See People v 

Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). The record shows that defense counsel 

impeached witnesses on multiple occasions, attacked witness credibility, and argued that 

witnesses were not credible in his closing argument. Defendant was not deprived of a substantial 

defense. Hopson, 178 Mich App at 412.

Finally, defendant argues that his counsel did not sufficiently “show the flaws in the 

case.” Again, defendant fails to support this factual assertion and it is not the responsibility of 

this Court to rationalize his position. See King, 297 Mich App at 474. Furthermore, there was 

ample evidence to convict defendant, including testimony from all three of his stepchildren and

his three biological children, as well as his own statements given to law enforcement.

Defendant fails to overcome the strong presumption that effective assistance was 

rendered and that his attorney acted in accordance with sound trial strategy. Payne, 285 Mich 

App at 190. He also cannot show that he was prejudiced by any of the alleged errors. Vaughn, 

491 Mich at 669. Accordingly, his claim of ineffective assistance of counsel fails.

2. SUFFICIENCY OF THE EVIDENCE

Defendant next argues that the trial court should have declared a mistrial because of 

“reasonable doubt.” We disagree.

Due process requires that the prosecution introduce sufficient evidence on each element 

of an offense to justify a verdict that a defendant is guilty beyond a reasonable doubt. People v 

Wolfe, 440 Mich 508, 513-514; 489 NW2d 748, amended on other grounds, 441 Mich 1201 

(1992). Under MCL 750.136b(3),
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(3) A person is guilty of child abuse in the second degree if any of the 

following apply:

* * *

(b) The person knowingly or intentionally commits an act likely to cause 

serious physical or mental harm to a child regardless of whether harm results.

(c) The person knowingly or intentionally commits an act that is cruel to a 

child regardless of whether harm results.

The prosecution offered both MCL 750.136b(3)(b) and (c) as alternative theories for the 

charge of second-degree child abuse. First, the prosecution argued that defendant knowingly and 

intentionally committed an act likely to cause serious physical or mental harm to the children. 

MCL 750.136b(3)(b).

Serious mental harm means an injury to a child’s mental condition or welfare that 

is not necessarily permanent but results in visibly demonstrable manifestations of 

a substantial disorder of thought or mood which significantly impairs judgment, 

behavior, capacity to recognize reality, or ability to cope with the ordinary 

demands of life. [MCL 750.136b(1)(g).]

Alternatively, the prosecution theorized that defendant knowingly or intentionally committed 

cruel acts toward his stepchildren. Under the statute, a “cruel” act is one that is “brutal, 

inhuman, sadistic, or that which torments.” MCL 750.136b(1)(b). 

The jury heard testimony that defendant locked the children in their rooms for extended 

periods and physically and mentally abused them. In his own statements, defendant openly 

admitted that he “caused a lot of trauma” and acknowledged, “how bad it was with the discipline, 

the verbal and the mental instability, and the abuse going on.” It was established that all three 

children were diagnosed with PTSD as well as other serious mental illnesses after living with 

defendant, although before living with defendant they were “happy” and “normal.” Thus, 

viewed in the light most favorable to the prosecution, there was sufficient evidence for the trier 

of fact to find that defendant intentionally committed acts that were likely to (and did) result in 

serious mental harm to the children, or that alternatively, he committed acts toward them that 

were cruel. MCL 750.136b(3)(b),(c).

Furthermore, the jury heard testimony about acts committed against the children that a 

jury could reasonably find were “cruel.” This included locking the children in their rooms, 

placing them in stress positions for long periods of time, excessive physical punishment, forcing 

them to write thousands of sentences, and rubbing excrement in one of the children’s faces. 

Viewed in the light most favorable to the prosecution, this was a sufficient amount of evidence 

for a reasonable jury to find that defendant knowingly committed “brutal, inhuman, sadistic” acts 

against the children. MCL 750.136b(1)(g). 

Finally, defendant’s assertion that a mistrial should have been declared because of 

“reasonable doubt” is without merit. A mistrial is appropriate when “there is a manifest 

necessity for the act, or the ends of the public justice would otherwise be defeated.” People v 
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Little, 180 Mich App 19, 23; 446 NW2d 566 (1989), quoting United States v Perez, 22 US (9 

Wheat) 579, 580, 6 L Ed 165 (1824). Defendant has not established manifest necessity or any 

public justice that would have been served by the declaration of a mistrial. “An appellant may 

not merely announce his position and leave it to this Court to discover and rationalize the basis 

for his claims, nor may he give an issue only cursory treatment with little or no citation of 

authority.” People v Bosca, 310 Mich App 1, ; 871 NW2d 307 (2015) (quotation marks and 

citation omitted).

Accordingly, we affirm defendant’s convictions, vacate his sentence, and remand the 

matter for resentencing consistent with this opinion. We do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Joel P. Hoekstra

/s/ Jane M. Beckering