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UNPUBLISHED

November 14, 2019

v No. 343986

Ingham Circuit Court

ARIQUE DANTE ARDISTER, LC No. 17-000238-FH

Defendant-Appellant.

Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.

PER CURIAM.

Defendant was convicted by a jury of four counts of third-degree criminal sexual 

conduct, MCL 750.520d(1)(a) (sexual penetration with a person at least 13 and under 16 years of 

age). The trial court sentenced defendant to serve four to 15 years’ imprisonment. Defendant 

appeals as of right. We affirm.

I. FACTS

In the fall of 2015, the then 14-year-old victim met defendant, who was a friend of her 

older sister. The victim began socializing regularly with defendant and her sister’s other friends. 

The victim’s mother testified that thereafter she noticed that the victim’s behavior changed; the 

victim stopped getting good grades at school, stopped socializing with her usual school friends, 

began to socialize exclusively with her older sister’s friends including defendant, and began to 

do her own laundry. When the mother questioned the victim about wearing a different type of 

underwear than usual, the victim replied merely that she was growing up. 

In April 2016, the victim’s mother learned that while she had been out of town, defendant 

and the victim had been stopped by police while driving together at 3:00 in the morning. When 

the mother questioned her about whether she was having a sexual relationship with defendant, 

the victim denied it. The victim’s mother also confronted defendant about whether he and the 

victim were engaged in a sexual relationship, which defendant denied. 

In October 2016, the victim’s mother found notecards in the victim’s room, written by the 

victim, in which the victim expressed that she loved some person, was sad because their sexual 
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relationship had ended, and was hurt because the person had a new girlfriend. Upon reading the 

notecards, the victim’s mother demanded to look at the victim’s cell phone where she discovered 

sexually suggestive text messages between the victim and defendant. The victim then admitted 

to her mother that she had been having a sexual relationship with defendant. When the victim’s 

mother again confronted defendant about the relationship, he sent her a message denying the 

relationship, but also saying that it was nothing to be concerned about because the victim was 

unhurt and was not pregnant. 

Defendant was charged with third-degree criminal sexual conduct, MCL 750.520d(1)(a). 

At trial, when the victim’s mother testified that she learned about the relationship after 

discovering the notecards, the prosecutor asked her to read the notecards to the jury. The trial 

court asked defense counsel if he objected, and defense counsel stated “No, I’ve seen them. No 

objection, your Honor.” 

Thereafter, the victim testified that she first had sex with defendant in January 2016 when 

she was 15 and defendant was 22 years old. The victim further testified that from that time until 

October 2016, she and defendant had sexual intercourse every weekend. She also testified that 

she had written the notecards because she was upset and was attempting to process her feelings. 

At the conclusion of trial, the jury found defendant guilty of four counts of third-degree criminal 

sexual conduct. Defendant now appeals, challenging the effectiveness of his counsel at trial. 

II. DISCUSSION

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

his counsel did not seek to exclude from evidence the victim’s statements as recorded in the 

notecards. Defendant argues that the victim’s statements in the notecards were inadmissible 

hearsay because the sole purpose of the admission of the statements was to bolster the victim’s 

credibility and corroborate the complainant’s testimony. We disagree that defense counsel at 

trial was ineffective. 

The right to counsel is guaranteed by both the United States and Michigan Constitutions, 

US Const, Am VI; Const 1963, art 1, §20, and includes the right to the effective assistance of 

counsel. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). To preserve a claim of 

ineffective assistance of counsel a defendant is required to move for a new trial or for an 

evidentiary hearing before the trial court. People v Head, 323 Mich App 526, 538-539; 917 

NW2d 752 (2018). Where, as here, the defendant fails timely to raise ineffective assistance of 

counsel before the trial court, the issue is unpreserved and our review of the issue is limited to 

error apparent on the record. See Id. at 539. 

Whether a defendant was deprived of effective assistance of counsel is a mixed question 

of fact and law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review 

the trial court’s factual findings for clear error, and review questions of law de novo. Head, 323 

Mich at 539. Whether counsel was effective is an objective standard that requires us to 

determine whether the acts or omissions by counsel in question were outside the wide range of 

professionally competent assistance. Vaughn, 491 Mich at 669. To establish a claim of 

ineffective assistance of counsel, the defendant must demonstrate “(1) that trial counsel’s 

performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.” 
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People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). Prejudice in this context means “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id., quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 

2052; 80 L Ed 2d 674 (1984). This Court presumes that defense counsel provided effective 

assistance, and the burden upon the defendant to prove that counsel was ineffective is a heavy 

one. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016). 

When a defendant claims ineffective assistance of counsel, he or she also has the burden 

of establishing the factual predicate of the claim. People v Douglas, 496 Mich 557, 592; 852 

NW2d 587 (2014). Here, defendant’s underlying assertion is that defense counsel at trial was 

ineffective because he failed to object to the admission into evidence of the victim’s statements 

in the notecards, which defendant contends was inadmissible hearsay. 

Hearsay is defined by MRE 801(c) as “a statement, other than the one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted.” Generally, hearsay is inadmissible. MRE 802; People v Shaw, 315 Mich App 

668, 673; 892 NW2d 15 (2016). However, if evidence is offered for a purpose other than to 

prove the truth of the matter asserted, then it is not hearsay by definition. People v Musser, 494 

Mich 337, 350; 835 NW2d 319 (2013). For example, when a statement is offered to explain why 

certain action was taken, it is not hearsay. People v Chambers, 277 Mich App 1, 11; 742 NW2d 

610 (2007). Thus, an out-of-court statement may be admitted to show the effect of the statement 

on the hearer or the reader, if that effect is relevant. People v Ortiz, 249 Mich App 297, 309; 642 

NW2d 417 (2002).

Here, the victim’s statements in the notecards were not introduced to prove the truth of 

the matter asserted in the statements, which was that she had been in a sexual relationship with 

someone and was sad that the relationship had ended. Rather, the statements were offered during 

the victim’s mother’s testimony to demonstrate that the statements had the effect of causing the 

mother to confront first the victim and then defendant with her suspicions of a sexual 

relationship between the victim and defendant. Because the statements were not offered to prove 

the truth of the matter asserted in the statements, they were not hearsay and were not subject to 

objection on that ground. See Musser, 494 Mich at 350. Counsel was not ineffective for failing 

to raise a meritless or futile objection. People v Putnam, 309 Mich App 240, 245; 870 NW2d 

593 (2015). 

In addition, counsel’s decision not to challenge the admissibility of the statements in the 

notecards appears to have been part of his defense strategy. Generally, decisions regarding 

whether to raise objections are presumed to be matters of trial strategy, and declining to object to 

evidence often is consistent with sound trial strategy. People v Unger, 278 Mich App 210, 242-

243; 749 NW2d 272 (2008). Failure to object to inadmissible hearsay evidence is objectively 

unreasonable when defense counsel has no basis to reasonably conclude that allowing the 

inadmissible hearsay testimony would create a tactical advantage for the defense. Shaw, 315 

Mich App at 676-677. But defense counsel may choose not to object to the admission of 

evidence for strategic reasons, and if the strategy is reasonable, then counsel’s performance in 

that regard is not deficient. Randolph, 502 Mich at 12. 
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In this case, our review of the record reveals that defense counsel’s theory of the case was 

that defendant had been falsely accused by the victim, who was infatuated with defendant and 

longed to be romantically involved with her older sister’s friend. During his opening statement

at trial, defense counsel referenced the notecards, and explained to the jury that the notecards 

demonstrated that the victim was in love with the defendant and was upset that her feelings were 

not reciprocated, and perhaps wished for others to believe that she was in a relationship with 

defendant. Defense counsel stated, in relevant part:

There’s two sides to every story, and this one you can figure out. This case is 

really about three note cards. This young lady – well, you wouldn’t really call it a 

letter and you wouldn’t really call it a diary entry, but she wrote on three 

notecards her feelings for Arique Ardister. Now, this isn’t -- this isn’t a young gal 

that just had casual contact with Mr. Ardister. Her sister lived with Mr. Ardister 

for quite a while. They were all –all friends. And, this young lady’s mother used 

to let her go, pretty much, wherever she wanted to go whenever she wanted to go. 

So, like most teenage girls if she can get out of the house and go 

someplace else well that’s what she was going to do and that’s what she did. She 

followed her sister, Kelsie. Now, all of the things that the Prosecutor told you 

happened were supposed to have happened at times when they were in about an 

800 square foot house with a whole bunch of people. It never happened. [The 

victim] wrote something on a card, and you’ll see it. 

I’m not going to tell you what the evidence is, you guys can hear it – that 

said that she made love to Arique. That was how she felt. She also wrote on that 

card that she was upset because Arique had a girlfriend and Arique wasn’t paying 

as much attention to her. You’re going to find out that Arique was this little girl’s 

fallback, just like the rest of [the] folks that hung out in that group. That this little 

girl, this is who she relied on. She relied on these people. 

* * * 

And, it couldn’t have happened. Based on that alone I think you’ll get a 

really good flavor of what this is. This little girl was in love with this character 

over here. She thought he was one of the greatest roller skaters that ever lived. 

And he paid attention to her when nobody else would, and he talked to her just 

like the rest of the kids did. And, she fell in love with him. I don’t think there’s 

any question about that. And she wrote these three notecards at some point, and 

for some reason she stuck them ... in the mirror in her bedroom. I don’t know 

why she did that. I think maybe you’ll be able to figure it out. Maybe she wanted 

her mother to find them. I don’t know, maybe she wanted some attention. Who 

knows? I have no idea what teenage girls [do]. I had enough trouble with my 

own. But, one thing is true, that’s what she wanted to happen. That’s not what 

happened. 
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Again during closing argument, defense counsel argued that the victim was young, emotional, 

and infatuated with the defendant, as illustrated by the notecards, and that the victim therefore 

fabricated the relationship. 

This Court will not second-guess trial counsel in matters of trial strategy, nor do we 

assess counsel’s performance with the benefit of hindsight. People v Foster, 319 Mich App 365, 

391; 901 NW2d 127 (2017). In addition, simply because defense counsel’s chosen strategy is 

unsuccessful does not render his or her performance constitutionally defective. People v 

Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2002). Here, the record as a whole 

demonstrates that counsel used the statements in the notecards to show that the victim was 

infatuated with defendant, consistent with the defense’s theory of the case, and defendant has 

failed to overcome the strong presumption that his trial counsel’s performance was sound. 

In addition, a defendant claiming ineffective assistance of counsel must establish that 

there is a reasonable probability that, but for counsel’s alleged error, the outcome of the 

proceedings would have been different. People v Jackson, 313 Mich App 409, 431; 884 NW2d 

297 (2015). Here, the evidence against defendant was substantial. The victim testified with 

specificity regarding the times, places, and details of her relationship with defendant. She 

testified that she and defendant had sex when she was 15 years old and he was 22 years old, and 

that they had sexual intercourse every weekend from January 2016 until October 2016. This 

testimony is consistent with that of the victim’s sister and mother that the victim spent weekends 

in defendant’s company, often staying overnight at defendant’s house, during that time period. 

The victim’s mother also testified that the victim’s behavior changed in ways that prompted her 

to suspect a relationship between the victim and defendant. The victim’s testimony also was 

corroborated by defendant’s sexually suggestive messages with the victim and his message to the 

victim’s mother denying the relationship, but suggesting that if it had occurred it was not 

concerning because the victim was unhurt and not pregnant. In light of the other evidence of 

defendant’s guilt, defendant cannot establish that the result of the proceedings would have been 

different had counsel successfully objected to the admission of the statements in the notecards.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Michael F. Gadola

/s/ James Robert Redford