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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UNPUBLISHED

July 6, 2017

v No. 329845

Wayne Circuit Court

TYWON DEON HAMILTON, LC No. 15-002167-01-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

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

conduct (“CSC-II”), MCL 750.520c(1)(a) (sexual contact with a person under 13), dissemination

of sexually explicit material to a minor, MCL 722.675, and aggravated indecent exposure, MCL 

750.335a(2)(b). He was sentenced as a fourth habitual offender, MCL 769.12, to 25 to 40 years’

imprisonment for the CSC-II conviction, 10 to 15 years’ imprisonment for the distribution of 

sexually explicit material to a minor conviction, and 10 to 15 years’ imprisonment for the 

aggravated indecent exposure conviction. We affirm. 

I. FACTUAL BACKGROUND

Defendant’s convictions are related to an encounter between defendant and the minor 

complainant, MD, in the fall of 2012, when MD was in second grade. At trial, the prosecution 

called three witnesses: MD; MD’s mother, Miieshia Duhart; and City of Detroit Police 

Investigator Kimberly Turner. MD testified that defendant called her into the bathroom while he 

was babysitting MD and her younger siblings. When she arrived at the bathroom, defendant was 

unclothed. MD tried to walk away, but defendant pulled her back inside the bathroom. He then 

showed her a video on his cellular telephone which depicted him “humping” his girlfriend 

without any clothes on.1 MD testified that, while the video was playing, defendant was “messing 

with his private part[,]” and “[w]hite stuff came out [of] the top.” Later the same night, while 

MD was lying in bed with her younger siblings and defendant, defendant, while looking at his 

cellular telephone, put his hand inside her pajama pants and rested it on her “cookie.” When 

 1 MD testified that she learned the word “humping” from defendant. 
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asked what body part she calls her cookie, MD explained that it is the “middle part” where pee 

comes out when she goes to the bathroom. Soon afterward, MD heard Duhart return home and 

call out for defendant to open the front door, prompting MD to tell defendant that her mother was 

asking him to open the door. Before leaving MD’s room to assist Duhart, defendant said, “Don’t 

tell or I’m going to spank you.” MD did not immediately disclose the events to any friends or 

family members. However, she testified at trial that she first disclosed the incident to Duhart.

Duhart testified that MD disclosed the incidents to her in October 2013, after the family 

had moved to another house. At the time, MD was cleaning a bathroom and called her mother 

inside, stating that she had something to tell Duhart. Duhart explained that MD said defendant 

called her into the bathroom on an earlier occasion and showed her a video of himself and his 

girlfriend. MD also told Duhart that defendant was naked when he showed her the video and 

that he was “playing with [him]self.” Duhart asked MD if defendant touched her, and MD said, 

“Not then,” but went on to explain that defendant had put his hand in MD’s pants in the morning 

on a different day, “right before they got up to get ready for school . . . .” 

Investigator Turner testified that she took a voluntary statement from defendant on 

December 12, 2013. Defendant denied MD’s allegations, but acknowledged making a sexual 

video where he engaged in sexual intercourse with two women at the same time, one of whom 

was the same woman, defendant’s girlfriend, that MD identified as participating in the sexual 

video that defendant showed her on his cellular telephone. Defendant explained that the video 

was too dark to see anything on the screen but shadows. He did not know how MD had become 

aware of its existence. 

II. PLEA AGREEMENT 

Defendant first argues that the trial court erred by rejecting a plea agreement based solely 

on the sentencing judge’s stated policy of never ordering sentences that fall outside of the 

minimum range calculated under the sentencing guidelines. According to defendant, because of 

this alleged error, this Court ought to order specific performance of the plea agreement. We

disagree.

When the trial court refused to accept the parties’ plea agreement, defendant raised no 

objection to the professed sentencing policy and, instead, chose to withdraw his plea and proceed 

to trial. Thus, this issue is unpreserved, see People v Metamora Water Serv, Inc, 276 Mich App 

376, 382; 741 NW2d 61 (2007), and reviewed for plain error affecting his substantial rights, 

People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); see also People v Plumaj, 284 

Mich App 645, 650; 773 NW2d 763 (2009). To demonstrate plain error, a defendant must show 

that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the 

defendant’s] substantial rights,” which “generally requires a showing of prejudice, i.e., that the 

error affected the outcome of the lower court proceedings.” Carines, 460 Mich at 763 (citation 

omitted). Even if a defendant establishes a plain error that affected his substantial rights, 

“[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an 

actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public 

reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763 

(quotation marks and citation omitted; second alteration in original). 
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On May 7, 2015, the parties reached a plea agreement, under which the prosecution 

agreed to dismiss the charges against defendant and withdraw the habitual offender notice if

defendant pleaded guilty to assault with intent to commit penetration, MCL 750.520g(1), with a 

sentence of 18 months to 10 years’ imprisonment. The trial court immediately expressed 

reluctance to accept a plea agreement that called for an 18-month minimum sentence in light of 

the serious criminal sexual conduct offense involving a minor child with which defendant had 

been charged. After continuing to discuss with the parties whether the plea agreement was 

appropriate, the trial court briefly adjourned the hearing to allow the prosecution to calculate the 

minimum guidelines range for the original charges. After a brief recess, the prosecution advised 

the trial court that the parties believed that the recommended minimum sentence range for the 

original charges, without the habitual offender enhancement, was 5 to 17 months’

imprisonment.2 

When the trial court questioned defendant about the plea agreement, defendant initially 

stated that he did not want to accept the plea. After speaking with his attorney, however, 

defendant chose to plead guilty under the terms of the agreement. The trial court accepted 

defendant’s plea and directed the parties to return on May 21, 2015 for sentencing.

At the sentencing hearing, the trial court reviewed the accuracy of the presentence 

investigation report (“PSIR”) and the sentencing information report (“SIR”) on the record and 

reduced the number of points assessed under several variables. The parties determined that

defendant’s reduced score placed him in the E-II cell, which called for a recommended minimum 

sentence range of 19 to 38 months’ imprisonment. The trial court observed that the plea 

agreement called for a sentence that was below the guidelines recommendation and said, “I can’t 

accept that. I don’t do any sentencing outside of guidelines in this courtroom.” The trial court 

told defendant that he could accept a minimum sentence of 19 months or go to trial, and 

defendant chose to withdraw his plea and proceed with trial. 

To the extent that defendant further contends that the trial court erred by relying on a 

personal sentencing policy as the basis for rejecting the parties’ plea agreement, thereby 

contravening Michigan’s policy of imposing individualized sentences, we disagree with this 

assertion. 

“When a prosecutor and a defendant agree to a specific sentence disposition in exchange 

for a guilty plea, the trial court can either accept or reject it or defer action until the court has had 

an opportunity to consider the presentence report.” People v Johnson, 210 Mich App 630, 632; 

534 NW2d 255 (1995), citing People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834 

(1982), and MCR 6.302(C)(3). If a trial court accepts a sentence agreement before reviewing the 

PSIR, it is not bound by the sentence agreement until it has had an opportunity to do so. People 

v Baker, 215 Mich App 606, 608; 547 NW2d 62 (1996). In other words, “the judge must have 

considered the presentence report before final acceptance of the sentence agreement.” Killebrew, 

 2 The parties’ initial calculation of defendant’s sentencing guidelines range was incorrect. It was 

later determined that scoring the sentencing guidelines resulted in a recommended minimum 

range of 19 to 38 months.
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416 Mich at 207. Should the trial court ultimately choose to reject an agreement that includes a 

sentence for a particular term or within a stated range, it must give the defendant an opportunity 

to affirm or withdraw his plea. Id.; MCR 6.302(C)(3).

Here, the trial court accepted defendant’s plea at the May 7, 2015 hearing, before 

defendant’s PSIR and SIR were prepared or reviewed. Accordingly, at that time, it was not yet 

obligated to sentence defendant pursuant to the terms of the sentence agreement. MCR 

6.302(C)(3); Baker, 215 Mich App at 608. Importantly, before accepting defendant’s plea, the 

trial court questioned the parties about the minimum range calculated under the sentencing

guidelines for the offense and was misinformed by the parties that the sentence agreement fell 

within the applicable guidelines range. Later, when the PSIR and SIR were finalized, it became 

apparent to the trial court that the sentence agreement called for a minimum sentence that fell 

below the applicable guidelines range. Dissatisfied with such a result, the trial court advised 

defendant that it would not impose the agreed-upon sentence and, consistent with the

requirements of MCR 6.302(C)(3), allowed defendant to withdraw his plea. Thus, the 

procedural requirements of MCR 6.302(C)(3) were satisfied.

Further, the trial court’s rejection of the plea agreement did not amount to plain error, 

based on Michigan’s individualized sentencing policy, merely because the trial court stated on 

the record that it does not impose sentences outside of the guidelines range. As defendant

contends, a sentence is invalid when it is imposed pursuant to a “local sentencing policy rather 

than individualized facts.” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997) (citation 

omitted). For example, in People v Chapa, 407 Mich 309, 310-311; 284 NW2d 340 (1979), the 

Michigan Supreme Court held that the trial court erred by declining to exercise its sentencing 

discretion and, instead, sentenced the defendant on the basis of a local policy of imposing harsh 

penalties on heroin dealers. Here, however, the court did not impose any sentence based on 

defendant’s plea agreement with the prosecution, let alone a sentence that failed to reflect the 

particular circumstances of defendant’s case. Defendant maintains that the trial court 

impermissibly relied on a sentencing policy, rather than making an individualized determination 

regarding the appropriate sentence, but this argument fails. All of the cases on which defendant 

relies in his brief on appeal were cases decided before either of the Michigan sentencing 

guideline schemes were in place. See People v Hegwood, 465 Mich 432, 437-439; 636 NW2d 

127 (2001) (explaining that judicial sentencing guidelines promulgated by the Michigan 

Supreme Court were in effect from 1983 to 1999, at which time the statutory sentencing

guidelines, MCL 777.1 et seq., went into effect). As a result, this authority provides no insight 

regarding the ways in which the sentencing guidelines take into account and facilitate execution 

of “the principle that sentencing must be individualized and tailored to the particular 

circumstances of the case and the offender at the time of sentencing . . . .” People v Triplett, 407 

Mich 510, 515; 287 NW2d 165 (1980). See also Chapa, 407 Mich at 311; People v McFarlin, 

389 Mich 557, 574; 208 NW2d 504 (1973).

“[T]he very purpose of the sentencing guidelines is to facilitate proportionate sentences” 

based on the severity of the sentencing offense and the defendant’s criminal history, People v 

Smith, 482 Mich 292, 305; 754 NW2d 284 (2008), and scoring the guidelines necessarily results

in an individualized determination of a sentence that “is a function of the seriousness of the 

crime and of the defendant’s criminal history.” People v Babcock, 469 Mich 247, 264; 666 

NW2d 231 (2003). See also MCL 777.21 and 777.22 (describing the way in which the 
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sentencing guidelines are scored); MCL 777.31 to MCL 777.57 (describing the offense and prior 

record variables). Cf. People v Milbourn, 435 Mich 630, 658; 461 NW2d 1 (1990) (stating, with 

regard to the former judicial sentencing guidelines, “[W]e believe that it is safe to assume that in 

the eyes of the vast majority of trial judges who have chosen to impose sentences within the 

guidelines ranges, the guidelines reflect the relative seriousness of different combinations of 

offense and offender characteristics”). Accordingly, given the fact that application of the 

sentencing guidelines necessarily results in an individualized determination of a proportionate 

minimum sentence range, defendant has failed to show that the trial court’s stated policy of 

sentencing defendants within the sentencing guidelines constitutes a plain error affecting his

substantial rights for the reason he claims. See Carines, 460 Mich at 763-764.

Last, it is important to note that “[i]f the court concludes that the sentence is inappropriate 

to the circumstances or the offender, it is obliged to reject the plea and inform the defendant that 

it will not accept the plea or be bound by the agreement.” People v Johnson, 210 Mich App at 

632492. Considering, in context, the trial court’s comments at the plea hearing and the initial 

sentencing hearing, it is apparent that the trial court believed that defendant deserved a much 

greater sentence than the 18-month minimum proposed under the plea agreement in light of the 

serious nature of the charges involving a minor child. Thus, we cannot conclude that the trial 

court’s rejection of the plea was improper. For all of these reasons, we conclude that defendant 

has failed to establish a plain error affecting his substantial rights, or that he is entitled to specific 

performance of the plea agreement. See Carines, 460 Mich at 763-764.

III. MRE 803A HEARSAY TESTIMONY

Next, defendant challenges the admissibility, under MRE 803A, of Duhart’s testimony 

concerning MD’s statement about the sexual contact with defendant. More specifically, 

defendant argues that the evidence did not meet the foundational requirements of MRE 803A 

where the trial court did not consider whether (1) MD’s statement to Duhart was MD’s first 

corroborative statement, (2) the delay between the date of the charged offenses and MD’s 

disclosure was motivated by MD’s fear, and (3) sufficient notice had been provided to defendant 

of the prosecution’s intention to admit Duhart’s statement at trial. We disagree. 

“To preserve an evidentiary issue for review, a party opposing the admission of evidence 

must object at trial and specify the same ground for objection that it asserts on appeal.” People v 

Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (citations omitted). In the trial court, 

defendant objected to the admission of Duhart’s testimony on several bases. For example, 

defense counsel claimed that he was not given proper notice of the prosecution’s intention to 

admit Duhart’s testimony in compliance with MRE 803A. Defense also challenged MD’s delay 
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in disclosing the sexual contact with defendant. Accordingly, to the extent defendant now 

advances similar arguments on appeal, we note that these issues have been preserved for our 

review.3 However, where defendant now criticizes the trial court’s consideration of the 

foundational requirement of MRE 803A that MD’s statement be the first corroborative statement

about the sexual contact with defendant, we note that this issue was not preserved in the trial 

court. A review of the record illustrates this important point. 

When the trial court questioned the prosecution about its intentions with regard to

admitting Duhart’s statement, the prosecution informed the trial court that Duhart’s testimony 

was important because MD had told Duhart about the sexual contact with defendant. Defense 

counsel then stated as follows: 

I don’t think that – as I read the [preliminary examination] transcript, 

[MD] talked to the mother’s sister, an aunt, seconds before or shortly before she 

talked to [Duhart]. That’s how the transcript reads to me. But it wasn’t -- that 

was a couple of years later, and that’s the point. [Emphasis added.] 

When the trial court stated that it would need to see how matters relating to MD’s 

statement to Duhart “play[ ] out,” declining to rule at that time, defense counsel, the prosecution 

and the trial court engaged in the following colloquy regarding the timing of MD’s disclosure to 

Duhart:

Defense Counsel: But Judge, the prosecutor is going to agree with me. 

That was years later. It wasn’t like right after the incident. It was a substantial 

period of time --

The Court: Well, that’s of no moment. 

Defense Counsel: No, the tender years law says it has to be almost like 

spontaneous –

The Court: Yes.

The Prosecutor: No.

Defense Counsel: -- and soon thereafter.

The Court: Spontaneous, but it doesn’t have to be immediately after the 

incident. 

 3 “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.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 

(2013) (quotation marks, footnote and citation omitted). 
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The Prosecutor: It could be years later, as long as the child is under the 

age of ten.

The Court: That’s all it amounts to. 

Defense Counsel: Well, the case law doesn’t comport with that. 

[Footnote added.]4 

Therefore, our review of the record, including the balance of Duhart’s testimony,5

confirms that the only objection to Duhart’s testimony with regard to whether MD “made more 

than one corroborative statement about the incident [with defendant],” MRE 803A, was defense 

counsel’s very brief and cursory reference, in passing, to whether MD first disclosed the sexual 

contact with defendant to Duhart or MD’s godmother. However, as noted above, defense 

counsel made it very clear that the delay in MD’s disclosure of the sexual contact with defendant

was the key point being pursued. Accordingly, to the extent that defendant now argues on appeal 

that the trial court ought to have conducted further inquiry into whether MD made a

corroborative statement to anyone before Duhart, we again note that defendant did not advance 

this argument in any meaningful manner before the trial court, and therefore did not properly 

preserve this evidentiary objection for our review. Aldrich, 246 Mich App at 113. 

In People v Girard, 269 Mich App 15, 19; 709 NW2d 229 (2005), this Court, in the 

context of considering an unpreserved evidentiary error, concluded as follows:

To prevail in a claim of unpreserved nonconstitutional error, “[t]he defendant 

must show a plain error that affected substantial rights. The reviewing court 

should reverse only when the defendant is actually innocent or the error seriously 

affected the fairness, integrity, or public reputation of judicial proceedings.” 

[Carines, 460 Mich at 774]. 

MRE 803A codified what was commonly known as the “tender years” exception to the 

rule against hearsay. People v Douglas, 496 Mich 557, 573; 852 NW2d 587 (2014). The rule 

provides:

A statement describing an incident that included a sexual act performed 

with or on the declarant by the defendant or an accomplice is admissible to the 

 4 At this point, the trial court invited defense counsel to direct the trial court’s attention to case 

law in support of his arguments concerning the delay in disclosure as it pertained to the 

foundational requirements of MRE 803A.

5 During Duhart’s testimony, defense counsel renewed his objection on the basis of MRE 803A, 

specifically noting that his objection pertained to the “tim[ing]” of MD’s statement to Duhart. 

Notably, defense counsel did not state that the objection was based on the fact that MD’s 

statement to Duhart was not the first corroborative statement that MD made. It is clear to us that 

defense counsel was referring to the delay in MD’s disclosure of the sexual contact with 

defendant. 
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extent that it corroborates testimony given by the declarant during the same 

proceeding, provided:

(1) the declarant was under the age of ten when the statement was made;

(2) the statement is shown to have been spontaneous and without 

indication of manufacture;

(3) either the declarant made the statement immediately after the incident 

or any delay is excusable as having been caused by fear or other equally effective 

circumstance; and

(4) the statement is introduced through the testimony of someone other 

than the declarant.

If the declarant made more than one corroborative statement about the 

incident, only the first is admissible under this rule.

A statement may not be admitted under this rule unless the proponent of 

the statement makes known to the adverse party the intent to offer the statement, 

and the particulars of the statement, sufficiently in advance of the trial or hearing 

to provide the adverse party with a fair opportunity to prepare to meet the 

statement. [MRE 803A.]

In Douglas, the Michigan Supreme Court recognized that where a child complainant’s 

disclosure of alleged sexual abuse is not the “first corroborative statement[,]” MRE 803A will 

not permit its admission at trial. Douglas, 496 Mich at 575. In Douglas, the prosecution had 

conceded before trial that the minor child’s disclosure of alleged fellatio with the defendant to a 

forensic interviewer was not the first corroborative statement regarding the matter, and that the 

minor child had already disclosed the alleged instance of sexual abuse to her mother. Id. In the 

instant case, a review of the record confirms that during the preliminary examination, MD 

testified that she told Bridgette6 Coffee, who she described as her godmother, about the sexual 

abuse, before she told Duhart.

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 While defendant places any error relating to the admission of 

Duhart’s statement on the trial court, we note that defendant did not advance a meaningful 

argument before the trial court regarding whether Duhart’s testimony contained MD’s first 

corroborative statement. Consequently, defendant’s assertion in his brief on appeal that the trial 

court “did not resolve the issue of whether [MD’s] alleged statements were first made to 

[Duhart] or [Coffee]” is curious, where the trial court was simply not asked to do so. In any 

event, even accepting defendant’s unpreserved argument that error occurred, we are not 

 6 The correct spelling of Coffee’s first name is unclear from the record. It was intermittently 

spelled as Bridgette, Bridget, Bridgid, or Brigid.

7 At trial, MD stated that she told Duhart first about the sexual contact with defendant, and it 

appears from the record of MD’s cross-examination that any disclosure by MD to Coffee was 

made almost contemporaneously with her disclosure to Duhart. 
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persuaded that defendant incurred any prejudice. Put another way, defendant has not established 

that the unpreserved error “affected the outcome of the lower court proceedings.” Carines, 460 

Mich at 763 (citation omitted). In reaching this conclusion, we find the Michigan Supreme 

Court’s analysis in People v Gursky, 486 Mich 596; 786 NW2d 579 (2010), to be of guidance.8 

In Gursky, the Michigan Supreme Court offered the following legal principles to consider 

in determining whether the erroneous admission of evidence pursuant to MRE 803A was 

harmful: 

Michigan law provides that where a hearsay statement is not offered and 

argued as substantive proof of guilt, but rather offered merely to corroborate the 

child’s testimony, it is more likely that the error will be harmless. Moreover, the 

admission of a hearsay statement that is cumulative to in-court testimony by the 

declarant can be harmless error, particularly when corroborated by other evidence. 

This Court has cautioned, though, that the fact that the statement [is] cumulative, 

standing alone, does not automatically result in a finding of harmless error. . . . 

[Instead, the] inquiry into prejudice focuses on the nature of the error and assesses 

its effect in light of the weight and strength of the untainted evidence. In a trial 

where the evidence essentially presents a one-on-one credibility contest between 

the victim and the defendant, hearsay evidence may tip the scales against the 

defendant, which means that the error is more harmful. This may be even more 

likely when the hearsay statement was made by a young child, as opposed to an 

older child or adult. However, if the declarant himself testified at trial, any 

likelihood of prejudice was greatly diminished because the primary rationale for 

the exclusion of hearsay is the inability to test the reliability of out-of-court 

statements[.] Where the declarant himself testifies and is subject to crossexamination, the hearsay testimony is of less importance and less prejudicial. [Id. 

at 620-621 (footnotes and citations omitted).] 

As an initial matter, we observe that the prosecution expressly confirmed during trial that 

Duhart’s testimony was offered to corroborate the testimony of MD. The prosecution did so in 

response to the trial court’s questions during Duhart’s testimony, outside of the presence of the 

jury. Id. at 620. We also note that MD testified herself during trial, therefore alleviating any 

prejudice to defendant, and the reliability of her allegations, recounted to Duhart, were 

vigorously challenged by defense counsel during the course of cross-examination. Id. at 621. 

Further, MD’s emotional reactions during her conversation with Duhart were properly allowed 

as evidence, where reactions are not considered hearsay and are, as the Michigan Supreme Court 

has clarified, “perfectly admissible at trial.” Id. at 625. At trial, Duhart described MD as looking 

“real sad” in the moments before she told Duhart about the sexual contact with defendant, as 

 8 We acknowledge that in Gursky, the Michigan Supreme Court undertook an analysis of 

whether evidence erroneously admitted pursuant to MRE 803A was harmless where the claim of 

error “involve[d] preserved, non-constitutional error.” Gursky, 486 Mich at 619. 
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well as being apprehensive and hesitant about sharing the information regarding the sexual 

contact with defendant. 

While the instant case did present a scenario where the allegations against defendant 

essentially amounted to a “credibility contest[,]” id. at 620-621, it is important to note that 

defendant himself corroborated a key portion of MD’s recitation of the relevant facts involving 

the sexual contact with defendant. Specifically, during questioning by Investigator Turner, while 

defendant denied (1) engaging in sexual contact with MD and (2) showing MD a video on his 

cellular telephone with sexual content, he conceded that he did have a video on his cellular 

telephone where he engaged in sexual relations with two women at the same time.9 Notably, one 

of the women defendant named as participating in the sexual interaction on the video was his 

girlfriend. Similarly, MD stated that defendant’s girlfriend was in the video that defendant 

showed her on his cellular telephone. Accordingly, MD’s testimony was corroborated in part by 

defendant’s own admission of having a video with sexual context on his cellular telephone 

consistent with the video that MD described. We also note that while there were inconsistencies

in MD’s testimony as a whole, she was very clear, concise and detailed in her recollection of the 

sexual contact at defendant’s hands. Also, defense counsel vigorously cross-examined MD 

regarding her recollection of the sexual contact with defendant, and the series of events that took 

place afterward. Having considered “the nature of [any] error and assess[ing] its effect in light 

of the weight and strength of the untainted evidence[,]” id. at 620, we conclude that defendant 

has not demonstrated that any error in the admission of Duhart’s testimony affected the outcome 

of the lower court proceedings. Carines, 460 Mich at 763. 

We are also not persuaded that reversal is necessary with regard to defendant’s additional 

arguments concerning the applicability of MRE 803A. Although the prosecution did not file a 

written notice of intent in this case, defense counsel’s statements at trial clearly show that he was 

aware that hearsay statements would be introduced under MRE 803A and that he was prepared 

to address these statements. Accordingly, despite the prosecution’s failure to provide formal 

notice, it nonetheless provided notice “sufficiently in advance of the trial or hearing to provide 

the adverse party with a fair opportunity to prepare to meet the statement.” MRE 803A. Thus, 

there is no basis for concluding that any error in this regard was outcome determinative. See 

People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). Defendant also claims that the 

hearsay testimony was inadmissible because of the unexplained delay in MD’s disclosure. See 

MRE 803A(3). This argument is unsupported by the record. The court rule specifically allows 

the admission of a delayed corroborative statement when the delay is “excusable as having been 

caused by fear or other equally effective circumstance . . . .” MRE 803A(3). MD’s testimony 

established that the delay in disclosure was motivated by her fear that defendant would 

physically abuse her, and such fear was certainly reasonable under the circumstances where the 

record confirms that defendant threatened to spank her if she disclosed the sexual abuse. People 

v Dunham, 220 Mich App 268, 272; 559 NW2d 360 (1996). 

 9 In defendant’s own words during his interview with Investigator Turner, he “wouldn’t touch 

[MD] when I’ve got three females that I’m dealing with [at] one time – when I’m dealing with at 

one time.” 
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, defendant contends that he is entitled to reversal of his convictions where he was 

denied the effective assistance of counsel at trial.10 We disagree. 

To preserve a claim of ineffective assistance of counsel, a defendant must bring a motion 

for a new trial or request a Ginther11 hearing to establish the basis for his claim. People v Sabin 

(On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). Defendant did not move 

for a new trial or request an evidentiary hearing pursuant to Ginther. Therefore, this issue is not 

preserved for appeal. When the defendant’s ineffective assistance of counsel claim was not 

preserved, this Court’s review is limited to errors that are apparent from the record on appeal. 

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

To establish a claim of ineffective assistance of counsel, the defendant must show that: 

(1) trial counsel’s representation “fell below an objective standard of reasonableness”; and (2) 

but for counsel’s deficient performance, there is a reasonable probability that the outcome of the 

proceeding would have been different. People v Vaughn, 491 Mich 642, 669-670; 821 NW2d 

288 (2012) (footnote omitted), citing Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 

2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), 

quoting Strickland, 446 US at 694. This Court presumes that trial counsel rendered effective 

assistance and exercised reasonable professional judgment in all significant decisions. Vaughn, 

491 Mich at 670. “Because the defendant bears the burden of demonstrating both deficient 

performance and prejudice, the defendant necessarily bears the burden of establishing the factual 

predicate for his claim.” Carbin, 463 Mich at 600. To successfully mount a claim of ineffective 

assistance of counsel, a defendant “must overcome the strong presumption that counsel’s 

challenged actions were sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 

NW2d 452 (2015). 

Defendant argues that he was denied the effective assistance of counsel because trial 

counsel did not object to the trial court’s instruction, provided to the jury at the beginning of the 

trial, informing the jury that the trial court would not allow the jury, during the course of 

deliberations, to have any testimony played back or to be provided with transcripts of the 

proceedings. The trial court encouraged the jurors to document for themselves, by handwriting 

on notepads, any information they deemed necessary gleaned from a witness during trial. 

The trial court’s instruction was not consistent with MCR 2.513(P), which governs the 

jury’s ability to review testimony during its deliberations and provides as follows: 

 10 For the purpose of clarity in our analysis, we will refer to defense counsel as “trial counsel” in 

this portion of our opinion. 

11 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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If, after beginning deliberation, the jury requests a review of certain testimony or 

evidence that has not been allowed into the jury room under subrule (O), the court 

must exercise its discretion to ensure fairness and to refuse unreasonable requests, 

but it may not refuse a reasonable request. The court may make a video or audio 

recording of witness testimony, or prepare an immediate transcript of such 

testimony, and such tape or transcript, or other testimony or evidence, may be 

made available to the jury for its consideration. The court may order the jury to 

deliberate further without the requested review, as long as the possibility of 

having the testimony or evidence reviewed at a later time is not foreclosed. 

Thus, when a trial court instructs a jury in a manner that precludes the possibility of 

reviewing trial testimony, it errs by doing so. People v Carter, 462 Mich 206, 208; 612 NW2d 

144 (2000).12 However, defendant has not overcome the strong presumption that trial counsel’s 

decision to not object resulted from sound trial strategy. Cooper, 309 Mich App at 80. For 

example, trial counsel may have chosen not to draw the jury’s attention to the trial court’s 

instruction. Similarly, we note that trial counsel pursued a motion for mistrial following the trial 

court’s preliminary instructions to the jury, and therefore may have felt it prudent to not raise an 

objection shortly before pursuing a dispositive motion that could impact the rest of the lower 

court proceedings. In any event, even if we were to accept defendant’s contention that trial 

counsel’s performance fell below an objective standard of reasonableness, defendant has not 

demonstrated a reasonable probability that the outcome of the proceedings would have been 

different had trial counsel objected to the jury instruction.

Defendant relies on People v Smith, 396 Mich 109; 240 NW2d 202 (1976) (concluding

that the harmless error doctrine was inapplicable to preemptive instruction foreclosing rereading 

of testimony because it resulted in lack of factual basis for review), and People v Howe, 392 

Mich 670; 221 NW2d 350 (1974) (concluding that the trial court’s abuse of discretion in 

rejecting a reasonable request from the jury required reversal of the defendant’s conviction 

because there was no way to determine from the record the extent of the jury’s confusion 

regarding the requested testimony), in support of his theory that this Court would have been 

bound to reverse his conviction had trial counsel preserved a challenge to the trial court’s jury 

instruction. However, defendant’s claim of error is distinguishable in that it is presented as a 

 12 We note that Carter involved the former version of MCR 6.414(H), which was repealed in 

2011 and replaced by MCR 2.513(P). However, the substantive language at issue is largely the 

same; the former rule stated: 

If, after beginning deliberation, the jury requests a review of certain testimony or 

evidence, the court must exercise its discretion to ensure fairness and to refuse 

unreasonable requests, but it may not refuse a reasonable request. The court may 

order the jury to deliberate further without the requested review, so long as the 

possibility of having the testimony or evidence reviewed at a later time is not 

foreclosed. [Carter, 462 Mich at 210-211.]
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claim of ineffective assistance of counsel—rather than a direct challenge to the propriety of the 

jury instruction at issue—and, therefore, requires a showing of prejudice.13 See Vaughn, 491 

Mich at 669. More importantly, both Smith and Howe were decided over 40 years ago, and the 

Michigan Supreme Court has since recognized that the “automatic reversal rule” relied on in 

those cases14 was superseded by the plain error rule set forth in Carines. People v Tucker, 469 

Mich 903; 669 NW2d 816 (2003). As such, defendant must affirmatively demonstrate that he 

was prejudiced by trial counsel’s decision to not object to the jury instruction.

Our review of the record does not yield any indication that the trial court’s instruction 

had any effect on the outcome of the lower court proceedings. The trial court did not repeat the 

instruction during the final jury instructions or otherwise refer to the jury’s ability, or inability, to 

review testimony. The trial court also did not include the challenged instruction in the written 

instructions provided to the jury before its deliberations. There is also nothing in the record to 

suggest that the challenged instruction may have caused the jury to refrain from asking to review 

trial testimony.

15 Accordingly, defendant has failed to establish the factual predicate to 

substantiate his ineffective assistance of counsel claim, and we are not persuaded that (1) trial 

counsel’s performance fell below an objective standard of reasonableness, and (2) there is a 

reasonable probability, but for trial counsel’s actions, that the outcome of defendant’s trial would 

have been different.

V. CONCLUSION

Defendant has failed to establish a plain error affecting his substantial rights, or that he is 

entitled to specific performance of the plea agreement. Defendant has not made a showing of 

plain error affecting his substantial rights with respect to his challenge to the admission of 

Duhart’s testimony on the basis that it was not MD’s first corroborative statement regarding the 

sexual contact with defendant. We are also not persuaded that any other alleged errors relating 

to the foundational requirements of MRE 803A were outcome determinative. Finally, defendant 

 13 Because the propriety of the instruction was not raised in defendant’s statement of the 

questions presented, this issue is not properly before this Court. People v Albers, 258 Mich App 

578, 584; 672 NW2d 336 (2003). 

14 Tucker only explicitly referred to the “automatic reversal rule” set forth in Smith. Tucker, 469 

Mich at 903. However, the Court’s reasoning is equally applicable to Howe, which was relied 

upon by the Smith Court. See Smith, 396 Mich at 111.

15 During its deliberations, the jury raised two issues in written notes to the court. The questions 

that arose during the jury’s deliberations were not addressed on the record, but the physical notes 

and responses were included in the lower court file. We have closely reviewed the jury notes, as 

well as the trial court’s response. To the extent that one of the notes from the jury pertained to 

the only exhibit admitted at trial, defendant’s statement to Investigator Turner, we note that the 

trial court instructed the jury during its final instructions that if it sought to review any exhibits, 

the jury should “just ask for them with a note.” With regard to the second note the jury sent to 

the trial court, there is nothing in that note to suggest that the jury sought to review testimony or 

evidence. 
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has not established that trial counsel’s performance fell below an objective standard of 

reasonableness, or that, but for trial counsel’s performance, there is a reasonable probability that 

the result of his trial would have been different. 

Affirmed. 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood