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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 10, 2017

v No. 328839 Wayne Circuit Court CORTEZ DAJUAN BROOKS, LC No. 15-003408-FC

Defendant-Appellant.

Before: B OONSTRA , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals by right his b ench trial convictions of eigh t counts of first-degree criminal sexual conduct (CSC 1)—four counts of CSC 1 pursuant t o MCL 750.520b(1)(a) (victim under 13 years of age), and four counts of CSC 1 pursua nt to MCL 750.520b(1)(b)( ii ) (victim between 13 and 16 years of age and actor is a member of the same household as the victim). The trial court sentenc ed defendant to concurrent terms of 20 to 40 years’ imprisonment for each of the eight convictions. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from the victim’s allegations that defendant repeatedly sexually abused her when she was between the ages of 3 and 14 years old. All b ut one of the inci dents occurred during times when defendant shared a home with the victim and h er mother. The victim testified to numerous instances of sexual abuse, indeed “too many to coun t,” the incidents ceasing only temporarily during a period of time when defendant did not resi de in the home. The last episode of sexual misconduct occurred in 2 012 in defendant’s home (defe ndant having moved out of the victim’s home in 2009) when the victim was 14 years old. The v ictim’s mother testified that she was not aware of the abuse until t he victim informed her of it in 2014.

Before trial, the prosecution ga ve defendant notice, pursuant to MCL 768.27a, of its intent to introduce other acts e vidence in the form of testimon y from a witness to whom defendant had exposed himself, in front of whom he had masturbated, and to whom he offered money for sex when she was 15 years old. Defense counsel objec ted at trial on the grounds that the notice had not contained a precise statement of the witness ’s testimony, and also that the evidence was more prejudicial than probative in violation of MRE 403. The trial court overruled defendant’s objection. The witness, who was the victim’s cousi n, testified that she had been-2- sleeping on a couch with her romantic partner at the victim’s h ome, and that defendant masturbated in front of her and her partner and offered her mon ey for sex with her or her partner. The witness testified that she did not tell anyone about the in cident until after learning what had happened to the victim.

Defendant was convicted as described above. At sentencing, th e trial court assessed 5 points for prior record variable (PRV) 5, based on defendant ha ving committed two “qualifying prior misdemeanors.” This appeal followed.

II. ADMISSION OF OTHER ACTS EVIDENCE

Defendant argues that the trial court reversibly erred when it allowed the admission of testimony regarding other acts of alleged sexual misconduct und er MCL 768.27a without conducting an MRE 403 balancing test or requiring proper notice from the prosecution. We disagree.

This Court reviews a trial court’s decision regarding the admi ssibility of other acts evidence for an abuse of discretion. People v Dobek , 274 Mich App 58, 84-85; 732 NW2d 546 (2007). A trial court abuses its discretion when its decision falls “outside the range of reasonable and principled outcomes.” People v Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010). “Because an abuse of discretion standard contemplates that ther e may be more than a single correct outcome, there is no abuse of discretion where the evid entiary question is a close one.” People v Smith , 282 Mich App 191, 194; 772 NW2d 428 (2009).

Defendant challenges the trial court’s decision to allow the t estimony of the witness regarding sexual misconduct perpetrated by defendant toward her and her partner when she was 15 years old. The prosecution o ffered the testimony as propens ity evidence under MCL 768.27a. “A defendant’s propensity to commit criminal sexual behavior can be relevant and admissible under [MCL 768.27a] to demonstrate the likelihood of the defend ant committing criminal sexual behavior toward another minor.” People v Petri , 279 Mich App 407, 411; 760 NW2d 882 (2008). In pertinent part, MCL 768.27a states: “[i]n a crimin al case in which the defendant is accused of committing a listed offense against a minor, evidenc e 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.” For purposes of the statute, “ ‘[l]isted offense’ means that term as defined in section 2 of the sex o ffenders registration act, [MC L 28.722].” MCL 768.27a(2)(a).

Defendant does not challenge t he applicability of MCL 767.27a to the circumstances of his case. Defendant was charged with eight counts of CSC 1, a “listed offense” for purposes of admissibility under MCL 768.27a. See MCL 28.722(j); MCL 28.722 (w)( iv ) (listing a violation of MCL 750.520b as a “Tier III” listed offense). His alleged p rior acts of sexual misconduct were chargeable under MCL 750.449a(2) 1 and MCL 750.145a 2 , either of which is also a “listed

1 “A person who engages or offers to engage the services of anot her person, who is less than 18 years of age and who is not his or her spouse, for the purpose of prostitution, lewdness, or-3- offense” for purposes of MCL 768.27a. See MCL 28.722(s)( iv ) (listing a violation of MCL 750.449a(2) as a “Tier I” listed offense); MCL 28.722(u)( i ) (listing a violation of MCL 750.145a as a “Tier II” listed offense). Thus, MCL 768.27a indisputably applied, rendering evidence of the witness’s allegations presumptively a dmissible against defendant at trial.

However, defendant objects to the prosecution’s presentation o f other acts evidence on the ground that the witness’s te stimony was “more prejudicial t han probative,” and should have been ruled inadmissible under MRE 403. Specifically, defendant argues that the trial court erred when it failed to conduct an appr opriate balancing test in cons idering whether the other acts testimony was admissible under MRE 403, which applies to eviden ce admitted under MCL 768.27a and permits the exclusion of otherwise admissible e vidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” MRE 403; People v Brown , 294 Mich App 377, 386; 811 NW2d 531 (2011).

Our Supreme Court has instructed trial courts to engage in the MRE 403 balancing analysis with respect to every piece of evidence offered under MCL 768.27a. People v Watkins
, 491 Mich 450, 489; 818 NW2d 296 (2012). Here, the trial court conducted a relatively brief analysis. However, any error on the part of the trial court in failing to explain its reasoning further was harmless because MRE 403 does not bar admission of the challenged evidence. See id . at 491.

MRE 403 permits the exclusion of otherwise admissible evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” MRE 403 (emphasis added). When a pplying MRE 403 to MCL 768.27a evidence, “courts must weigh the propensity inferen ce in favor of the evidence’s probative value rather than its prejudicial effect.” Watkins , 491 Mich at 487. The MRE 403 balancing test involves consid eration of the following:

(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 assignation, by the payment in m oney or other forms of consider ation, is guilty of a crime punishable as provided i n section 451.” MCL 750.449a(2).

2 “A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the ind ividual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 year s of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act o f depravity or delinquency, or who encourages a child less than 16 years of age, regardless of whe ther the person knows the individual is a child or knows th e actual age of the child, or an individual whom he or she believes is a child less than 16 years of age to engage in any of those acts is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $4,000.00, or both.” MCL 750.145a.-4- 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 . [ Watkins , 491 Mich at 487-488.]

Evidence offered against a party is “by its very nature . . . p rejudicial[;] otherw ise there would be no point in presenting it.” People v Fisher , 449 Mich 441, 451; 537 NW2d 577 (1995). “Evidence is unfairly prejudicial when ‘there exists a danger that marginally probat ive evidence will be given undue or preemptive weight.’ ” People v Kowalski , 492 Mich 106, 137; 821 NW2d 14 (2012), citing People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (1998). When there is a bench trial, prejudice is considered minimal because “it is u nlikely that the court would consider the evidence for anything other than the proper purpos e for which it was offered.” People v Bailey , 175 Mich App 743, 746; 438 NW2d 344 (1989); see also People v Lanzo Constr Co , 272 Mich App 470, 484; 726 NW2d 746 (2006) (“In a bench trial , the trial court is presumed to know the applicable law.”).

The record clearly reveals that defendant was charged with lis ted sexual offenses against a minor, and that the witness’s testimony also involved listed sexual offenses against a minor. The testimony was therefore hi ghly probative of defendant’s pro pensity for sexual abuse of minors. Additionally, several other similarities existed betwe en the victim’s and the witness’s allegations. The witness testified that she was 15 years old w hen defendant exposed himself to her and propositioned her for sex. Although the victim was muc h younger when defendant allegedly began sexually abusing her, she testified that his la st act of sexual abuse occurred when she was 14 years old. Every one o f the incidents of sexual abu se described by the victim occurred in defendant’s residence, when he was alone with her. The incident to which the witness testified also occurred in defendant’s residence when t he witness and her partner were isolated from other individuals in the home. The witness’s tes timony demonstrated defendant’s propensity for sexually abusing convenient and available young females. This propensity inference has probative value. Watkins , 491 Mich at 487.

Defendant further argues that, in light of the “ample” evidenc e of defendant’s guilt, the witness’s testimony was unnecessar y. However, as defendant con cedes, this case was a contest of credibility. The victim’s allegations provided ample eviden ce of defendant’s guilt only if they were credited by the trial court. The witness’s other acts tes timony supported the victim’s credibility. See id . at 492, 464-465 (finding that the trial court had misapplied the MRE 403 test in the MCL 768.27a context by “fail[ing] to weigh in favor of t he evidence’s prob ative value the extent to which the other-acts evidence [allegations that the d efendant had sexually abused his daughter 20 years prior] supported the victim’s [the defendant’ s granddaughter] credibility and rebutted the defense’s att ack thereof.”); see also People v Duenaz , 306 Mich App 85, 100; 854 NW2d 531 (2014) (“The evidence of t he similar assault against the other victim was very probative and important to the prosecution’s case, especially b ecause defendant was able to claim a lack of physical evidence of sexual assault.”) In sum, the witness’s testimony was highly probative. See Watkins , 491 Mich at 491.

Additionally, the other acts testimony was not unfairly prejud icial. The acts described by the witness and the victim were similar: both oc curred in part when the girls were at similar ages, both occurred in defendant’s home, both involved an opportunist ic crime of convenience, and both involved young girls related to defendant’s live-in girlfr iend but unrelated by blood to-5- defendant. Although the witness de scribed an event that occurr ed when she was 15 years old, 12 years before defendant’s trial, her alleged abuse would have oc curred when the victim was five years old, and during the time period that the victim was suffe ring ongoing sexual abuse at the hands of defendant. And although the witness only testified to a single encounter rather than repeated abuse, she did not live in defendant’s home. There we re no notable “intervening acts” to affect the analysis, and to the extent that the witness’s te stimony was aged or contained inconsistencies, reliability and credibility are matters proper ly left to the finder of fact. People v Sherman-Huffman , 241 Mich App 264, 266; 615 NW2d 776 (2000). Notably, defense counsel cross-examined the witness about a 2010 conviction for uttering and publishing, a crime of dishonesty, to which the witness admitted, and the trial court was able to consider that fact when weighing the credibility of the witness’s testimony. Because t he highly probative value of AA’s testimony was not substantially outweighed by the danger of unf air prejudice, the trial court did not abuse its discretion when it permitted its presentation at defendant’s trial.

Defendant also argues that it was unfair to allow the prosecut ion’s presentation of the challenged other acts evidence because the prosecution’s failur e to provide timely notice of the content of the witness’s testimony before trial was a violation of MCL 768.27a. However, defendant has failed to show tha t the prosecution did not compl y with the applicable notice requirements. In pertinent part, MCL 768.27a requires that, “[ i]f the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial . . . including the statements of witnesses or a summary of the substance of any testimony that i s expected to be offered.” MCL 768.27a(1).

Before defendant’s trial, the prosecution provided defendant t imely notice of its intent to offer the witness’s testimony pursuant to MCL 768.27a, in order to establish defendant’s propensity for sex with minors. The notice specified that the prosecution intended to “use evidence at trial that [d]efendant exposed his genitals, offere d money for sex, and masturbated in front of [the witness] in 2003 when [the witness] was approxima tely 15 years old.” At a final pretrial conference, defendant requested a more precise stateme nt regarding the intended testimony. At trial, defense counsel argued that it would be f undamentally unfair to allow the prosecution to present the witness’s testimony because the pros ecution had not provided defense counsel with a more precise statement of the witness’s allegati ons as defendant had requested. The trial court overruled the objection, holding that the prose cution’s failure to provide defense counsel with a written statement regarding the witness’s intend ed testimony did not deprive defendant of a fair trial because such a statement did not exis t in tangible form, and defendant would have the opportunity to cross-examine the witness regardi ng her allegations. This was not an abuse of the trial court’s dis cretion. Defendant was not en titled to a witness statement under MCL 768.27a, which clearly requires either a statement or a summary of testimony. The prosecution provided defendant timely notice and included a rea sonably specific summary of the intended testimony. Because this is all that was required unde r MCL 768.27a, the trial court did not abuse its discretion when it allowed the prosecution to pre sent the challenged other acts evidence at trial.-6- III. PRV 5

Defendant also argues that the trial court erred when it asses sed PRV 5 at five points, rather than zero points , based on a mistake of fact regarding t he existence of prior misdemeanors. Again, we disagree.

Defendant failed to preserve this claim of error by raising it at the sentencing hearing, in a proper motion for resentencing, or in a proper motion to rema nd filed with this Court. MCL 769.34(10); MCR 6.429(C); People v McChester , 310 Mich App 354, 357; 873 NW2d 646 (2015). We review unpreserved c hallenges to the scoring of the sentencing guidelines for plain error affecting the defenda nt’s substantial rights. People v Odom , 276 Mich App 407, 411; 740 NW2d 557 (2007).

A defendant is entitled to be s entenced according to accuratel y assessed guidelines and on the basis of accurate information. People v McGraw , 484 Mich 120, 131; 771 NW2d 655 (2009). A defendant is entitled to a remand for resentencing w hen the trial court made an error in assessing the sentencing guidelines or relied on inaccurate information to determine defendant’s sentence. People v Francisco , 474 Mich 82, 88-89; 711 NW2d 44 (2006).

Under MCL 777.55(1)(d), PRV 5 should be assessed at five point s when “[t]he offender has 2 prior misdemeanor convictions.” The statute defines a “p rior misdemeanor conviction” as “a conviction for a misdemeanor under a law of this state, a po litical subdivision of this state, another state, a political subdivision of another state, or the United States if the conviction was entered before the sentencing offense was committed.” MCL 777. 55(3)(a). However, for purposes of MCL 777.55(1)(d), trial courts are instructed to co unt a prior misdemeanor “only if it is an offense against a person or property, or a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a); People v Crews , 299 Mich App 381, 397; 829 NW2d 898 (2013).

Defendant correctly a rgues that his two prior convictions for operating a vehicle on a suspended license, MCL 257.904, were not for crimes “against a person or property,” and should not be counted for purposes of assessing PRV 5. However, defen dant’s presentence investigation report (PSIR) reveals a prior misdemeanor convict ion for domestic violence, MCL 750.81, and a prior misdemeanor conviction for resisting an d obstructing a police officer, MCL 750.479. Both are offenses against a person. MCL 777.16d; MCL 777.16x. Thus, these adjudications were properly count ed toward the sentencing court ’s assessment of PRV 5. Crews
, 299 Mich App at 387-388.-7- IV. LACK OF POLYGRAPH EXAMINATION

Defendant argues in his Standard 4 brief 3 that he was denied his due process right to a fair trial when he was not pr ovided with an opportunity to exon erate himself through a polygraph examination. We disagree.

Defendant failed to preserve this issue for appeal by raising it in the trial court. People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). This Court review s unpreserved claims of error for pl ain error affecting defendant ’s substantial rights. People v Jones , 468 Mich 345, 355; 662 NW2d 376 (2003). A plain error is one that is “clear or obvious,” and the error must affect the defendant’s “substantia l rights.” People v Walker (On Remand) , 273 Mich App 56, 66; 728 NW2d 902 (2006). Further, “[r]evers al is warranted only when the plain, forfeited error resulted in the conviction of a n actually innocent defendant or an error seriously affected the fai rness, integrity or public repu tation of judicial proceedings independent of the defendant’s innocence.” People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999) (internal quotations and alterations omitted).

MCL 776.21(5) provides, “A defenda nt who allegedly has committ ed a crime under [MCL 750.520b to 750.520e and MCL 750.520g], shall be given a p olygraph examination or lie detector test if the defendant requests it .” (Emphasis added.) A defendant has the right to request a polygraph examination under the statute until he or s he is found guilty of the offense. People v Phillips , 469 Mich 390, 396; 666 NW2d 657 (2003).

Defendant was charged with C SC 1 under MCL 750.520b, and would therefore have been entitled to the administra tion of a polygraph examination had he requested one. The record reveals, however, that defendant never requested such an examin ation and thus failed to assert his statutory right under MCL 776.21(5). See Phillips , 469 Mich at 396. Nothing requires a trial court to sua sponte assert this right for every defendant charg ed under the above-mentioned statutes. We find no plain erro r requiring reversal.

IV. INEFFECTIVE ASS ISTANCE OF COUNSEL

Finally, defendant claims in his Standard 4 brief that he was deprived of the effective assistance of counsel when defense counsel failed to (1) convey a plea offer to defendant, (2) procure defendant’s participati on in a polygraph examination, a nd (3) object to the improper assessment of PRV 5. We disagree.

Defendant did not move the trial court for a new trial or a Ginther 4 hearing. Petri , 279 Mich App at 410. Therefore, this Court’s review of defendant’s ineffective assistance of counsel claims is limited to mistakes apparent on the record. People v Davis , 250 Mich App 357, 368;

3 An appellate brief filed in propria persona by a criminal defe ndant pursuant to Administrative Order No. 2004-6.

4 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-8- 649 NW2d 94 (2002). Whether a person has been denied effective assistance of counsel is a mixed question of law and fact. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s findings of fact, if any, are reviewe d for clear error, and this Court reviews the ultimate constitutional issue arising from an ineff ective assistance of counsel claim de novo.” Id

. “Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” People v Swain , 288 Mich App 609, 643; 794 NW2d 92 (2010). To establish a claim of ineffective assistance of counsel, “a defendant must show (1) that defense counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that defense counsel’s deficient performance so p rejudiced the defendant that there is a reasonable probabil ity that, but for counsel’s unpro fessional errors, the result of the proceeding would have been different.” People v Fonville , 291 Mich App 363, 383; 804 NW2d 878 (2011), citing Strickland v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

A defendant’s Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process. Lafler v Cooper , 566 US ___; 132 S Ct 1376, 1384; 182 L Ed 2d 398 (2012). To be effective, a trial counsel’s assistance must ena ble the defendant to make an informed and voluntary choice b etween entering a guilty plea an d moving forward to trial. People v Corteway , 212 Mich App 442, 446; 538 NW2d 60 (1995). Trial counsel is required to explain “the range and consequen ces of available choices in suf ficient detail to enable the defendant to make an intelligent and informed choice.” People v Jackson , 203 Mich App 607, 614; 513 NW2d 206 (1994). Although a claim of ineffective assi stance of counsel may be based on counsel’s failure to communicate a plea offer, defendant mus t prove by a preponderance of the evidence that a plea offer was made and that his counsel fa iled to communicate it to him. People v Williams , 171 Mich App 234, 242; 429 NW2d 649 (1988).

Defendant cannot show that defense counsel was ineffective for failing to adequately inform him of a plea offer, or of the consequences of accepting such an offer, because defendant has provided no evidence that the prosecution ever offered a pl ea bargain in the first place. Indeed, at the final pretrial c onference, the prosecution expla ined to the trial court that no offer had been made because “defense does not want an offer.” Defens e counsel confirmed the prosecution’s statement, and defendant did not object. Defenda nt has provided no evidence that the prosecution extended an offer between the time of the final pretrial conference and the beginning of defendant’s trial. Defendant thus has failed to e stablish a factual predicate for his claim. People v Hoag , 460 Mich 1, 6; 594 NW2d 57 (1999).

Further, defendant has not shown that he is entitled to relief for any alleged failure of counsel to adequately advise him of the consequences for reject ing a plea offer. Although defendant asserts that “things may have been different” if he h ad considered a plea agreement, after which he “would have at least had the option” of acceptin g such an agreement, defendant does not assert that he would likely have accepted an agreement rather than go to trial. Such noncommittal statements are insufficient to prove that “but for the ineffective advice of counsel there is a reasonable probability that the plea offer would hav e been presented to the court.” Lafler , 132 S Ct at 1384. Nor has defendant suggested that a sentenc e pursuant to any plea agreement would have been less se vere than the sentence actuall y imposed. The trial court’s-9- sentence of 20 to 40 years’ imprisonment was within defendant’s sentencing guidelines range of 171 to 285 months. Additionally, MCL 750.520b(2)(a) permits a trial court to impose a sentence of life imprisonment for a CSC 1 conviction. Defendant cannot show a reasonable probability that either his convictions or sentences would have been less s evere had he accepted a plea offer (had one been made) and thus ca nnot demonstrat e prejudice.

Defendant also argues that counsel was ineffective for failing to procure defendant’s participation in a polygraph ex amination. Defendant suggests t hat, had he known that he would not be able to exonerate himself with a polygraph examination, he would have “went with a jury.” However, as of the final pretrial conference, it was de fendant’s intention to move forward with a jury trial. Defendant signed a written waiver of jury trial on June 25, 2015, a little more than a week after the final pret rial conference and less than t wo weeks before his trial. Defendant’s case had been pending since March 5, 2015, and it i s difficult to believe that defendant still expected to rely on the results of a polygraph examination at trial when he signed his waiver and elected to move forward with a bench trial. In any case, defendant cannot show that he was prejudiced by defense counsel’s alleged failure to provide defendant with an opportunity to particip ate in a polygraph examination. Evidenc e relating to any polygraph examination would have been inadmissible at defendant’s trial. Jones , 468 Mich at 355 (“The bright-line rule that evidence relating to a polygraph examinat ion is inadmissible is well established.”). Defendant cannot show that, had he participate d in a polygraph examination, the outcome of the proceedings would have been any different. Defe ndant thus cannot demonstrate prejudice.

Finally, defendant’s third claim of ineffective assistance of counsel, alleging error in defense counsel’s failure to object to the trial court’s assess ment of PRV 5, is also without merit. We have already determined that the trial court’s assessment of PRV 5 was proper, and defense counsel cannot be considered obj ectively unreasonable for faili ng to object. “Ineffective assistance of counsel cannot be predicated on the failure to ma ke a frivolous or meritless motion.” People v Riley , 468 Mich 135, 142; 659 NW2d 611 (2003). Therefore, defendant has not shown that he was deprived of the effective assistance of c ounsel.

Affirmed.

//s/ Mark T. Boonstra /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly