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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 9, 2017

v No. 332757 Delta Circuit Court DAVID WAYNE KING, LC No. 15-009165-FC

Defendant-Appellant.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of two counts each of first and sec ond-degree criminal sexual conduct for the sexual penetration and touching of his granddau ghter. Defendant challenges the admission at the current trial of the transcribed testimony of a young woman whom he was previously convicted of sexually assaulting. He also challenge s the scoring of an offense variable. We discern no errors and affirm.

I. BACKGROUND

Defendant’s convictions arise f rom the sexual abuse of his gra nddaughter over a threeyear period beginning when she was 10 years old. Defendant is AK’s paternal grandfather. AK often slept at defendant’s home while her parents worked. AK t estified that on approximately 30 occasions, defendant touched her breasts and penetrated her vag ina with half of his finger. He sometimes awakened AK to perpetrate his assaults. The assaults stopped when AK’s parents divorced and her mother lost cont act with AK’s father and grand father. AK waited until she was 17 years old to report her grandf ather’s abuse. She testified that she delayed her report out of fear. An expert testified on be half of the prosecution that th is is “a normal response” for a child sexual abuse victim.

Before trial, the prosecutor m oved to present evidence that de fendant had been convicted of three counts of third-degree CSC in 1995. These convictions arose from defendant’s sexual assault of his children’s 13-yea r-old babysitter, FW. When FW indicated that she would not testify, the prosecutor sought to admit a transcript of her tes timony from the 1995 trial. The court conducted a hearing and questioned FW. FW was then in he r mid-twenties. She stated that she had worked hard to forget the incidents and explained, “I remember his face, stuff like his coffee and cigarette breathe, and just pain. I don’t remem ber the details.” The court accepted-2- FW’s account and found her unavailable to testify. The court t herefore admitted her 1995 testimony into evidence at de fendant’s current trial.

The transcript of FW’s 1995 test imony was read into the record . FW described that she had often spent the night at the home of defendant and his wife when she babysat late. On one occasion, defendant awoke her by rubbing her legs. Defendant t hen penetrated FW’s vagina with his penis. Thereafter, FW tried to avoid defendant and on ly babysit when she would deal with his wife. However, FW forgot to call to ensure that defen dant’s wife was home before travelling to his house one day. Defendant asked FW to watch t he children while he went to the store. When defendant returned, he asked FW to retrieve some l aundry from the basement because his back hurt. Defendant followed FW to the basement a nd forcibly penetrated her anus with his penis. Defendant left when one of the children called him. On a third occasion, defendant convinced FW to stay and watch the children after his wife left because he might be called into work. After the children were in bed, defendant fo llowed FW into the bathroom where he again forcibly raped her from behind.

The jury convicted defendantas charged. He now appeals.

II. PRIOR ACTS EVIDENCE

Defendant contends that evidence of his prior bad acts was unf airly prejudicial and should have been excluded. In th e alternative, he contends tha t the circuit court should have required FW to provide live testimony, rather than allowing the prosecutor to read her testimony from the 1995 trial into the record.

We discern no error in the admission of evidence that defendan t had previously sexually assaulted a teenaged girl in thi s home. We review for an abuse of discretion a trial court’s decision to admit other acts evidence. People v Waclawski , 286 Mich App 634, 670; 780 NW2d 321 (2009). “A court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes.” Id

. In general, evidence of other act s is inadmissible with certai n exceptions:

In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the d efendant which may tend to show his motive, intent, the absence of mistake or acci dent on his part, or the defendant’s scheme, plan or system in doing the act, in que stion, may be proved, whether they are contemporaneous with or prior or subse quent thereto; notwithstanding that such proof m ay show or tend to show the co mmission of another or prior or subsequent crime by the defendant. [MCL 76 8.27; see also MRE 404(b).]

However, MCL 768.27a(1) allows t he admission of other acts evid ence to establish a defendant’s propensity to commit sexual acts against a minor: “Notwithstand ing [MCL 768.27], in a criminal case in which the defendant is accused of committing a listed o ffense against a minor, evidence that the defendant committed another listed offense against a m inor is admissible and may be considered for its bearing on any matter to which it is relevan t.” Defendant was charged with-3- and convicted of “listed offenses” in both the current and 1995 case. See MCL 28.722(j), (w)( iv ), (w)( v ).

“[E]vidence admissible pursuant to MCL 768.27a may nonetheless be excluded under MRE 403 if ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consider ations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” People v Watkins , 491 Mich 450, 481; 818 NW2d 296 (2012), citing MRE 403.

[W]hen applying MRE 403 to evidence admissible under MCL 768.27 a, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. That is, other-acts eviden ce admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudi cial merely because it allows a jury to draw a propensity inference. [ Watkins , 491 Mich at 487.]

Watkins identified several fact ors that may result in the exclusion of prior act evidence, including

(1) the dissimilarity between the other acts and the charged cr ime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the l ack of reliability of the evidence supporting the occurrence of the other acts, and (6) t he lack of need for evidence beyond the complainant’s and the defendant’s testimony . This list of considerations is meant to be illustrative rather than exhausti ve. [ Id. at 487-488 (citation omitted).]

Although defendant’s acts against his granddaughter were not i dentical to the offenses committed against FW, they were not so dissimilar as to weigh i n favor of exclusion. Defendant’s offenses against AK and FW all occurred in his home when the girls were in a vulnerable position and at least somewhat under his control. B oth girls testified that defendant forced penetration, although by different mechanisms. See People v Solloway , 316 Mich App 174, 195; 891 NW2d 255 (2016) (“The fact that defendant did not engage in penetration with his nephew, but did with MM, does not make the acts so dissimilar t hat the probative value of the evidence was outweighed by the danger of unfair prejudice . . . .”). And the girls were approximately the sam e age at the time.

That defendant assaulted AK more frequently than FW (30 compar ed to three) also does not render the prior acts irrelevant. Defendant’s victims desc ribed his modus operandi as taking advantage of opportunities to se xually assault them. Defendant had frequent opportunity to abuse AK as her parents often left AK at the home of her grandp arents for childcare. FW, as an occasional babysitter with no relation to defendant’s family, w as able to avoid defendant more effectively, limiting defendant’s chances to catch her alone. However, the acts did occur approximately 13 years apart, a sizeable temporal gap.

Defendant cites his five-year i ncarceration for assaulting FW as an “intervening act” that weighs against admission of the p rior act evidence. Defendant cites no authority for this proposition and provides absolute ly no explanation for how his prison term would make the-4- current accusations less likely. Factor (5) also supports admi ssion. A jury convicted defendant of criminal sexual conduct based on the account of FW. This su pports the reliability of the evidence supporting the prior acts. And FW’s evidence was nece ssary to the current case, which was otherwise a credibility contest between witnesses regarding events that occurred more than four years earlier.

Moreover, the court read to the jury CJI2d 20.28a, “the standa rd instruction on evidence of other acts of child sexual abuse.” Id . at 490. “[T]his instruction is available to ensure that the jury properly employs [the prior act] evidence.” Id . Specifically, the instruction provides:

“(1) The prosecution has introduced evidence of claimed acts of sexual misconduct by the defendant with [ a minor / minors] for which [ he / she] is not on trial.

(2) Before you may consider such alleged acts as evidence again st the defendant, you must first find that the de fendant actually committed those acts.

(3) If you find that the defenda nt did commit those acts, you m ay consider them in deciding if the defendant committe d the [offense / offenses] fo r which [he / she] is now on trial.

(4) You must not convict the defendant here solely because you think [he / she] is guilty of other bad conduct. The evidence must convince you be yond a reasonable doubt that the defendant committed the alleged crime , or you must find [him / her] not guilty.” [ Id ., quoting CJI2d 20.28a.]

Under these circumstances, we cannot conclude that the trial c ourt abused its discretion in admitting the prior acts evidence.

Defendant raises two additional challenges to the introduction of the prior acts evidence: that the trial court incorrectly concluded that FW was unavaila ble to testify, and that the introduction of her prior testimony violated defendant’s Sixth Amendment right to confront the witnesses against him.

We also discern no error in the trial court’s determination th at FW was unavailable to testify. We review for clear error a trial court’s factual det ermination that a witness is unavailable. People v Garland , 286 Mich App 1, 7; 777 NW2d 732 (2009). “Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made.” People v Kurylczyk , 443 Mich 289, 303; 505 NW2d 528 (1993).

“ ‘Hearsay’ is a statement, other than the one made by the dec larant while testifying at the trial or hearing, offered in e vidence to prove the truth of the matter asserted.” MRE 801(c). “Hearsay is generally prohibited and may only be admitted at tr ial if provided for in an exception to the hearsay rule.” People v Gursky , 486 Mich 596, 606; 786 NW2d 579 (2010); MRE 802. MRE 804(b) removes certain statements from the hearsay rule if the declarant is deemed “unavailable as a witness.” MRE 804(a)(3) defines “unavailabil ity” to include a declarant who “has a lack of memory of the subject matter of the declarant’s statement.” MRE 804(b)(1) permits the admission of “[t]estimony given as a witness at ano ther hearing of the same or a-5- different proceeding, if the party against whom the testimony i s now offered . . . had an opportunity and similar motive to develop the testimony by dire ct, cross, or redirect examination.”

“The crucial factor in determining whether prior recorded test imony is admissible under MRE 804(a)(3) . . . is the ability of the witness to recollect the prior recorded statements.” People v Hayward , 127 Mich App 50, 57-58; 338 NW2d 549 (1983). FW explained at a pretrial hearing that she remembered little of the events in question: “ I remember his face, stuff like his coffee and cigarette breath, and just pain. I don’t remember t he details.” FW added, “I tried forgetting everything.” FW denied that she remembered the hous e in which the events occurred, which rooms, or anything specific about the acts. The trial co urt concluded “that [FW] testified very sincerely and honestly and that she has no memory of the e ssential facts. And that she is . . . unable because of lack of memory to give present-day test imony concerning the events that happened so long ago.” Given th e “trial court’s special opport unity to observe the witness[],” In re BZ , 264 Mich App 286, 297; 690 NW2d 505 (2004), the trial court d id not commit clear error when it found that FW was unava ilable due to lack of memory.

Defendant contends, however, t hat the admission of FW’s prior testimony violated his right to confront the witnesses against him. We review constit utional challenges de novo. Watkins , 491 Mich at 466-467.

The Sixth Amendment of the United States Constitution bars “ad mission of testimonial statements of a witness who did not appear at trial unless he w as unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v Washington , 541 US 36, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004). As to whethe r a statement is testimonial, “[w]hatever else the term covers, it applies at a minimum to pr ior testimony at a . . . former trial[.]” Id . at 68.

The precise contours of defenda nt’s Confrontation Clause argum ent are difficult to unravel. Defendant does not deny that he had a prior opportuni ty to cross-examine FW, and has not asserted that he should have been permitted to question her regarding her memory loss in the jury’s presence. As noted, we discern no error in the trial co urt’s determination that FW was unavailable to testify at the current trial. Defendant had the opportunity to cross-examine FW at the prior trial when the tes timony was given. He had a strong motive to refute FW’s testimony at that trial as his liberty and reputation were on the line. Def endant has not brought to our attention any caselaw supporting that the standard for unavaila bility under MRE 804(a)(3) runs afoul of Crawford
, 1 or that the trial court’s determination of FW’s unavailability outside the

1 At oral argument, defendant raised this Court’s recent opinion in People v Sardy , ___ Mich App ___; ___ NW2d ___ (Docket No. 319227, issued January 19, 20 17). However, defendant never identified the relief jus tified by that decision. In anyevent, Sardy is inapposite. The subject witness in Sardy was available to testify and appeared at trial. Her testimony did not go as expected and the prosecutor m oved to have her deemed unavail able and her preliminary examination testimony admitted. This Court held that the trial court erred by limiting her crossexamination. The witness in this case was never available, as confirmed at the pretrial hearing.-6- jury’s presence unconstitutionally deprived him of an opportuni ty to cross-examine her in that regard. 2 Accordingly, the admission of this testimony did not violate defendant’s confrontation rights.

III. OV 11

Defendant further contends that the trial court improperly ass essed 50 points for OV 11, increasing his total OV score an d placing him in a higher OV le vel. Defendant d id not challenge the score below, so our review is limited to plain error affect ing defendant’s substantial rights. People v Loper , 299 Mich App 451, 457; 830 NW2d 836 (2013).

We agree that the trial court improperly assessed 50 points fo r OV 11. MCL 777.41 provides for the scoring of OV 11 as follows:

(1) [OV] 11 is criminal sexual pe netration. Score [OV] 11 by de termining which of the following apply and by assigning the number of points at tributable to the one that has the highest number of points:

(a) Two or more criminal sexual penetrations occurred..... .... 50 points

* * *

(2) All of the following apply to scoring [OV] 11:

(a) Score all sexual penetrations of the victim by the off ender arising out of the sentencing offense.

(b) Multiple sexual penetratio ns of the victim by the offe nder extending beyond the sentencing offense ma y be scored in [OVs] 12 or 13.

(c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree [CSC] offense.

There is no record evidence that defendant ever penetrated AK multiple times during a single offense, such that additi onal penetrations could have ar isen from the sentencing offense. Rather, the evidence reveals a pattern of criminal behavior inv olving individual penetrations in isolated events that did not arise from each other or from the sentencing offense. See People v Johnson , 298 Mich App 128, 132; 826 NW2d 170 (2012) (holding that “[t] he “arising out of” standard “requires more than the mere fact that the penetration s involved the same defendant and

2 Indeed, MRE 103(C) requires that preliminary issues regarding the admissibility of evidence be resolved outside the presence of the jury “so as to prevent ina dmissible evidence from being suggested to the jury by any means, such as making statements o r offers of proof or asking questions in the hear ing of the jury.”-7- victim”). Accordingly, the trial court should not have counted the other uncharged penetrations to score OV 11.

This error does not entitle d efendant to resentencing, however . MCL 777.41(b) provides for penetrations that are irrele vant to OV 11 to be scored unde r OV 12 or 13. MCL 777.43(1)(a) provides for a 50-point score under OV 13 when “[t]he offense w as part of a pattern of felonious criminal activity involving 3 or more sexual penetrations again st a person . . . less than 13 years of age.” The presentence invest igation report indicates that d efendant sexually assaulted AK “over 30 times” between the ages of 10 and 13. AK supported th is statement at the preliminary examination by testifying that she did not exactly “know how ma ny times” defendant had assaulted her, but “it was a lot.” Therefore, in lieu of scori ng OV 11, the court should have assessed 50 points for OV 13. As this correction leaves defend ant’s sentencing range as is, remand for resentencing is not required.

Defendant also argues that defense counsel was ineffective for failing to object to the OV scoring. In order to prevail on a claim of ineffective assista nce of counsel, “the defendant must show that there is a reasonable probability that, but for couns el’s error, the result of the proceeding would have been different.” People v Stanaway , 446 Mich 643, 687-688; 521 NW2d 557 (1994). Had counsel objected to the scoring of OV 11, the prosecutor and the court would have relied upon MCL 777.41(b) and considered the underlying co nduct to score OV 13. Accordingly, defense counsel’s l ack of objection was harmless.

We affirm.

/s/ David H. Sawyer /s/ Christopher M. Murray /s/ Elizabeth L. Gleicher