If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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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- Appellee, UNPUBLISHED January 25, 2024

v No. 363013 Livingston Circuit Court MARK DOUGLAS SEIGEL, LC No. 21

- 026581

- FH

Defendant

- Appellant.

Before: G ARRETT , P .J., and L ETICA and M ALDONADO , JJ.

P ER C URIAM

. A jury convicted d efendant

, Mark Seigel

, of two counts of second

- degree criminal sexual conduct (CSC

- II) for abus ing his granddaughter. At trial, the prosecution also introduced evidence that Seigel had sexually assaulted his daughter at a young age two decades earlier. The trial court sentenced Seigel to concurrent terms of 10 to 15 years ’ imprisonment for both count s of CSC

- II. On appeal, Seigel challenges the admission of the evidence of prior sexual assaults, asserts various claims of ineffective assistance of counsel, and seeks resentencing. Finding no merit to his arguments, we affirm.

I. BACKGROUND

This ca se arises from Seigel ’ s sexual assault of VD, his six

- year

- old granddaughter , in 2018

. VD t estified that, on multiple occasions during the three months she lived with Seigel

, he brought her into his bedroom while her grandmother was at work and told her to lick various substances off of his penis. VD initially told no one about the sexual abuse b ecause Seigel told her not to and promised her candy as a reward for keeping it a se cret.

In addition to VD ’ s testimony

— and over Seigel ’ s objection

— the trial court allowed the prosecution to introduce other

- acts evidence pursuant to MCL 768.27a. Seigel ’ s biological daughter, SJ, who was 30 years old at trial, testified that Seigel had sexually abused her when she was five or six years old. SJ de scribed two specific instances of “ unwanted touching ” by Seigel that occurred while she was alone with him in his home. During the first instance, Seigel used the

“ eraser end ” of a pencil to to uch her vagina. The second time

, Seigel joined her in the shower and began touching her vagina with his hands. SJ disclosed the assaults to her mother almost- 2

-

immediately, who then reported the allegations to Children ’ s Protective Services (CPS). SJ recalled speaking to a CPS employee about the sexual abuse

, and CPS substantiated the allegations in 1996, but Seigel was never criminally charged. Seigel was listed on CPS ’ s “ central registry ” as a result of SJ’s allegations

. In January 2018, VD began living with Seigel and his wife in a relative placement. But the substantiated allegations against Seigel meant that his home could not be licensed as a foster home. When the licensing worker involved in placing VD in an appropriate foster home discover ed the substantiated allegation s , VD was removed from Seigel’s care

. 1 VD was then placed with an unrelated family who expressed interest in adopting her. Despite his inability to become a licensed foster home, Seigel continued to pursue adoption of VD

. About two years after the assaults, w hile VD ’ s licensed foster family and Seigel were both attempting to adopt her, VD disclosed Seigel ’ s abuse to her foster mother. VD ’ s foster mother testified that VD told her that, while she was living with Seigel

, he had told her multiple times to rub various substances onto his penis and lick them off. VD informed her foster mother that she told no one else because Seigel

“ had promised her candy and she likes candy. ” VD ’ s foster mother immediately reported VD ’ s dis closures to the authorities, and VD was interviewed by a licensed forensic interviewer. VD ’ s foster mother acknowledged that her adoption of VD was finalized shortly after VD disclosed the assaults. H ad she not been a mandatory reporter as a foster paren t , she claimed that she “ would have waited until the adoption was final ” to report VD ’ s disclosures because she did n’ t want anyone to think that she ma de VD “ say something untrue to help ” the adoption process.

Seigel ’ s primary theory at trial was that VD ’ s adoptive parents instructed her to fabricate the allegations against him to ensure that they, rather than Seigel

, could successfully adopt her

. Defense counsel heavily relied on cross

- examination of the prosecution ’ s witnesses and closing argument to present this theory. The defense also presented four of its own witnesses, all of whom were related to Seigel and VD . All four witnesses testified that Seigel maintained a candy bowl

as VD described, but Seigel never kept “ actual candy ” in the bowl ; inst ead, he kept “ healthier ” snacks in the bowl, such as granola bars, fruit snacks, and applesauce. Three of th e witnesses also testified that, while VD lived with Seigel , they visited Seigel ’ s home several times a week at random times of the day, often show ing up unannounced.

As noted , the jury convicted Seigel of two counts of CSC

- II , and the trial court sentenced him to concurrent terms of 10 to 15 years ’ imprisonment. Seigel now appeals as of right.

II. OTHER

- ACTS EVID ENCE

Seigel contends that the t rial court erred by allowing SJ to testify about other sexual assaults because this evidence was unduly prejudicial and violated his due

- process right to a fair trial.

1 Apparently, Seigel’s last name was misspelled in the central registry, resulting in VD’s initial placement in his care

.- 3

- A. STANDARD OF REVI EW

By object ing to the admission of the other

- acts evidence, Seig el preserved this issue for appeal . See People v Thorpe , 504 Mich 230, 252; 934 NW2d 693 (2019). We review a preserved evidentiary challenge for an abuse of discretion. Id

. at 251. That means the trial court ’ s decision

“ will not be disturbed unless that decision falls outside the range of principled outcomes. ” Id . at 252. Consistent with this deferential posture, “ a decision on a close evidentiary question ordinarily cannot be an abuse of discretion. ” Id . at 251

- 252.

B. ANALYSIS

MRE 404(b) gen erally prohibits the use of evidence of other crimes to establish the defendant’s character or propensity, but MCL 768.27a is an exception to the rule. The statute provides that “ in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. ” 2 MCL 768.27a(1 ). The purpose of MCL 768.27a is to allow jurie s in cases involving sexual misconduct against minor s “ to consider evidence of other acts the defendant committed to show the defendant ’ s character and propensity to commit the charged crim e. ” People v Watkins , 491 Mich 450, 4 8 6 ; 818 NW2d 296 (2012).

Evidence admissible under MCL 768.27a may still be excluded under MRE 403, however. Id . at 481. MRE 403 provides that r elevant “ evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of th e issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ” In Watkins

, 491 Mich at 487

- 488, our Supreme Court enumerated nonexhaustive considerations that a court may evaluate wh en determining whether other

- acts evidence should be excluded under MRE 403:

(1) the dissimilarity between the other acts and the charged crime, (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 lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant ’ s and the defendant ’ s testimony.

“ [W] hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence ’ s probative value rather than its prejudicial effect. ” Id . at 487.

Seigel initially suggests that the trial court ’ s legal analysis was deficient because the court failed to articulate why the Watkins factors that favored exclusion were not relevant. “ While the factors are important tools that may inform a court ’ s decision to admit or exclude other

- acts

2 There is no dispute that the conduct alleged by SJ constituted a “listed offense against a minor” as defined by MCL 768.27a(2), nor d oes Seigel suggest that the evidence is irrelevant.- 4

-

evidence, they do not supersede the standard plainly provided in MRE 403 itself. ” People v Hoskins , 342 Mich App 194 , 203; 993 NW2d 48 (2022) (cleaned up). Watkins therefore does not require trial courts to discuss each factor on the record before issuing its ruling. See id

. Regardless,
t he trial court l isted the Watkins factors on the record and stated that it believed none of the factors supported exclusion

. The court explained that MCL 768.27a is a “ rule of inclusion ” and focused its analysis on the similarity between the other

- acts evidence and the c harged offense. While a more detailed analysis could have been beneficial, t he trial court did not commit an error of law by failing to give a complete explanation why none of the Watkins factors supported exclusion.

Seigel next argues that the trial court misapplied the Watkins factors and abused its discretion by ruling that the probative value of the other

- acts evidence was not substantially outweighed by the danger of unfair prejudice under MRE 403. We address each factor in turn.

First, as to dissimilarity, the trial court did not err by finding that the other

- acts evidence

was “ strikingly similar ” to the current offense s

. Seigel was closely related to b oth VD and SJ

, h e first assaulted them when they were each five or s ix years old

, and t here was a significant age gap between Seigel and each gir l

— over two decades between Seigel and SJ, and over four decades between Seigel and VD

. While Seigel told VD to lick his penis but touched SJ ’ s vagina, all the alleged acts constituted inappropriate sexual contact with a child

. S ee MCL 750.520a(q); MCL 750.520c(1)(a). All the described incidents also involved Seigel sexually assaulting the girls while they were in his home, under his care, and with no other adults present

. Though Seigel used candy as a reward to keep VD from disclosing the assaults but did not do so with his daughter, the charged offenses and the acts against his daughter “ are not so dissimilar as to preclude admission of the other

- acts evidence. ” People v Solloway , 316 Mich App 174, 194; 891 NW2d 255 (2016). This factor favors admission of the other

- act s evidence.

Second, Seigel emphasizes the significant amount of time that had passed between the other acts and the charged offenses and argues that tem poral proximity weighs against admission of the evidence. The charged offenses occurred in early 2018, and CPS substantiated the allegations by SJ in 1996. Therefore , these incidents were separated by about 22 years. In Hoskins

, 342 Mich App at 206, we noted that a temporal divide of 17 years weighed in favor of exclusion of the other

- acts evidence because “ the strength of the propensity inference is weakened when a very long period of time has passed between the prior acts and the current charges

. ” We reach the same conclusion here. Third, considering the infrequency of the other acts, SJ testified that Seigel assaulted her twice within a one

- year period

. “ Given that this was not a one

- time occurrence, we cannot conclude that these other acts occurred so infrequently as to support exclusion of the evidence

. ” Id . at 207. Fourth, neither party identified any intervening acts that weigh against admission of the other

- acts evidence

. See Solloway , 316 Mich App at 195

. Fifth, we address the reliability of the other

- acts evidence. This factor allows consideration of whether the other

- acts evidence resulted in the filing of charges or a conviction. See Watkins

, 491 Mich at 489 ( “ That MCL 768.27a permits the introduction of othe r

- acts evidence that did not result in a conviction does not mean that evidence that did not result in a conviction must be admitted or that a court may not consider whether charges were filed or a conviction rendered when weighing the evidence under MRE 4 03

. ” ). On the one hand, no charges were filed against Seigel related to the alleged sexual abuse of SJ. On the other hand, CPS investigated and substantiated the allegations in 1996. Although the uncharged other

- acts evidence is less reliable- 5

-

than evide nce of a conviction , the fact that CPS substantiated SJ’s allegations near the time when the abuse occurred supports reliability. Weighing this evidence, we conclude that the reliability factor neither cuts for or against admission.

Finally, the “need” for additional evidence “ asks whether the other

- acts evidence is important to the prosecution ’ s case, particularly when there is no physical evidence of the crime or the victim ’ s memory has faded .” Hoskins , 342 Mich App at 209 n 8. The prosecution neede d SJ’s testimony in this case because there were no eyewitnesses to the assaults of VD , and VD did not report the crimes for about two years

. See id . at 209; Solloway , 316 Mich App at 196

. Th is factor weighs in favor of admission.

Given that only one of th e Watkins factors weigh s in favor of exclusion of the other

- acts evidence and recognizing that the propensity inference must be weighed in favor of the evidence ’ s admission, we conclude that the trial court did not abuse its discretion by admitting the other

- acts evidence. At best, the trial court’s evidentiary decision was a close call that should not be disturbed by this Court. See Thorpe , 504 Mich at 251

- 252. Because the trial court properly admitted th is evidence, Seigel was not denied his due

- process right to a fair trial. See People v Duenaz , 306 Mich App 85, 101; 854 NW2d 531 (2014)

.

III. INEFFECTIVE AS SISTANCE OF COUNSEL

Seigel next argues that defense counsel was ineffective for (1) failing to consult or call an expert witness in the reliability of the memory of children; (2) failing to consult a private investigator to further investigate the reliability of the allegations made by both VD and SJ ; (3) generally failing to investigate the case, particularly as it r elated to the reliability of the allegations of VD and SJ ; and (4) failing to adequately advocate for the exclusion of the other

- acts evidence. 3

A. STANDARD OF REVI EW

C laims of ineffective assistance of counsel generally present mixed questions of fact and law

, w ith factual findings reviewed for clear error and questions of law reviewed de novo. People v Head , 323 Mich App 526, 539; 917 NW2d 752 (2018). Clear error exists when we are “ left with a definite and firm conviction that a mistake was made, ” P eople v Abbott , 330 Mich App 648, 654; 950 NW2d 478 (2019), while de novo review “ means that we review the issues independently, with no required deference to the trial court, ” People v Beck , 504 Mich 605, 618; 939 NW2d 213 ( 2019). But in this case, Seigel failed to move for an evidentiary hearing or new trial, so our review is limited to errors apparent from the record. Head , 323 Mich App at 538

- 539.

3 Seigel also appears to argue that defense counsel was ineffective at sentencing, particularly as it related to the scoring OV 13 and the trial court’s consideration of other

- acts evidence when imposing sentence. Seigel has abandoned these issues by failing to adequately brief the merits of his arguments. See People v McPherson , 263 Mich App 124, 136; 687 NW2d 370 (2 004)

. In any event, as will be discussed in section IV, Seigel’s claims of sentencing e rror lack merit, so defense counsel could not have performed ineffectively in how he opposed a meritless issue below. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010)

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- B. LEGAL PRINCIPLES

The Michigan and United States Constitutions require that criminal defendants receive the assistance of counsel in their defense. Const 1963, art 1, § 20; US Const Am VI. “ The right to counsel

. . . is the right to the effective assistance of counsel. ” People v Shaw , 315 Mich App 668, 672; 892 NW2d 15 (2016). “ T o establish inef fective assistance of counsel, a defendant must show (1) that counsel ’ s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel ’ s error, the

res ult of the proceedings would have been different. ” Id

. “Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” People v Traver , 328 Mich App 418, 422; 937 NW2d 398 (2019). This burden includes “ overcom[in g] the strong presumption that counsel ’ s performance was born from a sound trial strategy. ” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). Generally, a defense attorney’ s decision whether to retain an expert witness is a matter of trial strategy. People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). “ But a court cannot insulate the review of counsel ’ s performance by calling it trial strategy; counsel ’ s strategy must be sound, and the decision s as to it objectively reasonable. ” People v Ackley , 497 Mich 381, 388

- 3 89; 870 NW2d 858 (2015)

.
C . FAILURE TO CONSUL T AN EXPERT WITNESS AND PRIVATE INVESTI GATOR

Seigel argues that defense counsel was ineffective for failing to consult or call an exper t in the reliability of the memory of children at his trial because the use of an expert at trial would have undermined the credibility of both VD and SJ

.

T he existing record is devoid of any evidence that defense counsel did not consult an expert

o r de termine, after consulting an expert, that presenting expert testimony was unnecessary or contrary to his trial strategy. The record reflects that defense counsel ’ s strategy was to undermine the reliability of VD ’ s allegations and argue that VD and her ado ptive parents were motivated to fabricate the abuse by Seigel. D efense counsel spent the majority of cross

- examination of VD challenging her credibility by emphasizing all the details about the assaults that she could not remember. Defense counsel also thoroughly cross

- examined SJ to undermine the reliability of her allegations and suggested that SJ fabricated her allegations to retaliate against Seigel for his absence from her life growing up. Further, d efense counsel ’ s investigation and trial strategy went beyond cross

- examining the prosecution ’ s witnesses. The defense presented four witnesses of its

own , each of whom offered testimony that conflicted with crucial pieces of VD ’ s allegations.

Seigel unpersuasively relies on the Supreme Court ’ s decis ion in People v Ackley

, 497 Mich 381; 870 NW2d 858 (2015) , to argue that defense counsel was ineffective for failing to consult or call an expert witness

. In Ackley , 497 Mich at 389

- 390

, a case involving the disputed cause of a child’s death, the prosecut ion’s theory was that the defendant intentionally caused the child’s injuries, while the defense theory was that the injuries were caused by an accidental fall. Because there was no victim or eyewitness testimony, expert testimony “ was the cornerstone of the prosecution ’ s case. ” Id . at 384. The prosecution presented five expert witnesses whose conclusions went unrebutted by the defense. Id . By failing to investigate and secure expert assistance to counter the prosecution’s expert medical testimony, defense counsel’s performance resulted in a “defense theory without objective, expert testimonial support” and an attorney who- 7

-

was “insufficien tly equipped to challenge the prosecution’s experts.” Id . at 392. The Supreme Court therefore held that counsel’s performance was objectively unreasonable. Id . at 393.

Unlike in Ackley

, expert testimony played no role in this case. T he prosecution p resented no expert witnesses and relied heavily on VD’s and SJ’s testimony to meet its burden of proof and to establish Seigel’s propensity to commit this crime. The jury had the opportunity to observe these witnesses, as well as others presented by the p rosecution and defense, and weigh their credibility. “A lthough defendant believes that additionally presenting an expert

. . . would have been helpful, and defendant may even be right, that counsel could conceivably have done more, or that a particular tr ial strategy failed, does not mean counsel ’ s performance was deficient. ” People v Blevins , 314 Mich App 339, 351; 886 NW2d 456 (2016). Seigel has not established that counsel performed deficiently by failing to secure expert testimony on the fallibility of child memory.

For the same reasons, Seigel’s argument about defense counsel’s failure to consult a private investigator is just as meritless

. Seigel has provided this Court with no basis to conclude that these decisions were not a reasonable trial s trategy.

D . GENERAL F AILURE TO INVESTIGAT E

Along similar lines, Seigel argues that defense counsel ’ s failure to consult and call an expert witness and consult a private investigator resulted from an incomplete investigation.

“ Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary

, ” and conducting a “ less than complete investigation ” before making a strategic decision can amount to ineffective assistance. Trakhte nberg , 493 Mich at 52

- 53 ( cleaned up )

. As with Seigel ’ s previous claims, however, nothing in the record suggests that defense counsel failed to investigate the reliability or credibility of the sexual abuse allegations or determined that a further investi gation was necessary prior to deciding not to consult or call an expert witness and private investigator. Again , defense counsel successfully established weaknesses in the testimony and used these weaknesses to argue that the complainants lacked credibili ty and were motivated to fabricate their allegations. Counsel also presented four witnesses on behalf of the defense, all of whom testified either that the candy bowl referenced by VD never contained actual candy or that several people often visited Sei ge l ’ s home at random times of the day when VD lived there. There is no basis to conclude that defense counsel ’s failure to consult or call an expert witness or investigator stemmed from an inadequate investigation. See id

. at 52

.

E . FAILURE TO EXCLUD E OTHER

- ACTS EVIDENCE

Seigel also argues that defense counsel was ineffective for failing to advocate “ vigorously ” enough for the exclusion of the other

- acts evidence

. As discussed, the trial court did not abuse its discretion by admitting the other

- acts e vidence. Any more “vigorous” objection on this issue therefore would have been futile, and defense counsel is not constitutionally ineffective for failing to make futile or meritless objections. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010)

.- 8

- F. REMAND FOR EVIDE NTIARY HEARING

Finally, Seigel requests in the alternative that this C ourt remand the case to the trial court for an evidentiary hearing. Seigel ’ s request is improper because it was made in the text of his appellate brief

, rather than in a proper motion to remand under MCR 7.211(C)(1). Seigel attaches

numerous documents to his brief on appeal, including several affidavits, as appellate offers of proof, in an effort to show that defense counsel was ineffective for the discu ssed reasons. Most of the attached documents , however, were never offered as evidence in the trial court, and “to consider evidence presented on appeal that the parties failed to present to the trial court would be an impermissible expansion of the lower

- court record .” People v Morrison , 328 Mich App 647, 655; 939 NW2d 728 (2019). See MCR 7.210(A) (“Appeals to the Court of Appeals are heard on the original record.”). We therefore decline to consider the documents attached by Seigel that are presented for the first time on appeal.

Even if we exercised remarkable lenience to view Seigel’s request as a properly filed motion to remand, we would still reject his argumen t. A party seeking remand to develop a factual record for appeal must show “ that development of a factual record is required for appellate consideration of the issue

, ” and the request “ must be supported by affidavit or offer of proof regarding the facts t o be established at a hearing

, ” MCR 7.211(C)(1)

. None of the attached documents, even if we consider them appropriate offers of proof, set forth additional facts that would require further development to determine whether defense counsel was ineffective. See People v Williams , 275 Mich App 194, 200; 737 NW2d 797 (2007) ( “ Because defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective, we again deny defendant ’ s request for a remand. ” ). The existing record i s sufficient to determine that defense counsel was effective in Seigel ’ s case , so r emand for an evidentiary hearing is unwarranted.

IV. SENTENCING

Seigel next challenges his sentence, claiming error in the trial court ’ s assess ment of 25 points for offense variable (OV) 13 and consideration of the other

- acts evidence presented at trial.

A. STANDARD OF REVI EW

“ This Court reviews for clear error a trial court ’ s findings in support of a particular score under the sentencing guidelines but reviews de novo whether the trial court properly interpreted and applied the sentencing guidelines to the findings. ” People v McFarlane , 325 Mich App 507, 531

- 532; 926 NW2d 339 (2018). Under the sentencing guidelines, the trial court ’ s factual findings must be supported by a preponderance of the evidence. People v Lydic , 335 Mich App 486, 490; 967 NW2d 847 (2021). The trial court may draw “ reasonable inferences arising from the record evidence ” to sustain the scoring of an offe nse variable. People v Barnes , 332 Mich App 494, 499; 957 NW2d 62 (2020) (cleaned up).- 9

- B. OV 13

We begin with Seigel ’ s challenge to the scoring of OV 13 at 25 points

. OV 13 addresses an offender ’ s “ continuing pattern of criminal behavior. ” MCL 777.43( 1). The trial court must assess 25 points for OV 13 if “ [t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person [.] ” MCL 777.43(1)(c). To determine the appropriate

score under OV 13, the trial court must consider “ all crimes within a 5

- year period, including the sentencing offense

. . . , regardless of whether the offense resulted in a conviction. ” MCL 777.43(2)(a).

Seigel contends that the preponderance of the evidence did not establish three or more crimes against a person because he was only convicted of two counts of CSC

- II and trial testimony established only that he had sexually assaulted VD more than once. Seigel ’ s argument, however, fails to acknowledge that “ [w] hen calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR [presentence investigation report] , plea admissions, and testimony presented at a preliminary examination

. ” People v McChester , 310 Mich App 354, 358; 873 NW2d 646 (2015) (emphasis added) . At the preliminary examination, VD testified that she had rubbed lotion on Seigel ’ s penis at least twice and licked chocolate off of his penis at least twic e . The PSIR also stated that VD rubbed “ chocol ate, ranch dressing, lotion and other substances ” on Seigel ’ s penis and that VD touched or licked his penis “ numerous times. ” Though Seigel was only charged for two instances of CSC

, 4 all the referenced instances constitute CSC

- II, MCL 750.520c(1)(a), which is a crime against a person, MCL 777.16y. Th e fact th at the other instances did not result in a charge or conviction is irrelevant for scoring OV 13. See MCL 777.43(2)(a). In light of Seigel ’ s two convictions and the other instances of sexual abus e described at the preliminary examination and in the PSIR, there was sufficient evidence to conclude by a preponderance of the evidence that Seigel committed at least three CSC offenses during the time that VD lived with him. The trial court therefore did not clearly err by assessing 25 points for OV 13.

C. CONSIDERATION OF OTHER

- ACTS EVIDENCE

Finally, Seigel asserts that the trial court impermissibly relied at sentencing on the other

acts evidence presented at trial through SJ ’ s testimony

. Althoug h Seigel reasons that our Supreme Court ’ s decision in Beck , 504 Mich 605

, supports his position, Beck in fact forecloses it

. Beck held that a trial court may not rely on acquitted conduct when imposing a sentence because doing so is “ fundamentally inconsi stent with the presumption of innocence itself. ” Id . at 626

- 627, 629. Unlike uncharged acts , acquitted conduct has been “ formally charged and specifically adjudicated by a jury

, ” so “ u ncharged and therefore unconsidered

- by

- a

- jury conduct is apples to acquitted conduct ’ s oranges. ” Id . at 620,

4 Seigel was originally charged with one count of CSC

- I for fellatio and one count of CSC

- II. After the preliminary examination, Seigel was instead bound over on two counts of CSC

- II because VD testified to rubbing and licking Seigel’s penis but not to any sexual penetration. See MCL 750.520b(1)(a).- 10

-

622. Accordingly

, “ [w] hen a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that condu ct using a preponderance

- of

- the

- evidence standard. ” Id . at 626.

T he trial court relied on the other

- acts evidence that Seigel had also sexual ly assault ed SJ
to justif y the sentence it imposed

. This evidence was “ the type of ‘ uncharged conduct ’ that Beck expressly permits trial courts to consider. ” Barnes , 332 Mich App at 509 ( cleaned up ). The trial
court concluded that th is evidence showed Seigel ’ s proclivity to abuse vulnerable people within his own family, including his young daughter and granddaught er. Because the other

- acts evidence the trial court relied on was uncharged conduct rather than impermissible acquitted conduct, the trial court did not err by considering this evidence when imposing Seigel ’ s sentence. See id

. 5

We a ffirm.

/s/ Kristina Ro binson Garrett /s/ Anica Letica /s/ Allie Greenleaf Maldonado

5 Seigel does not otherwise challenge the proportionality of the upward departure sentence imposed by the trial court. Therefore, we decline to address the prosecution’s argument in support of the sentence’s p roportionality.