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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UNPUBLISHED

March 20, 2018

v No. 335374

Genesee Circuit Court

HARRY DOUGLAS NELSON, LC No. 16-039127-FH

Defendant-Appellant.

Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

PER CURIAM.

Defendant, Harry Nelson, appeals as of right his jury trial convictions of second-degree 

criminal sexual conduct (CSC-II) (person under 13 years of age), MCL 750.520c, and accosting 

a child for immoral purposes, MCL 750.145a. Nelson was sentenced, as a fourth-offense

habitual offender, MCL 769.12, to 25 to 40 years’ imprisonment for CSC-II, and 48 to 180 

months’ imprisonment for accosting a child for immoral purposes. Because there are no errors 

warranting relief, we affirm.

I. BASIC FACTS

On February 28, 2016, Nelson visited his daughter’s home. At one point, Nelson’s 

daughter left the home to pick up food. Nelson’s granddaughter, the victim, testified that after 

her mother left, Nelson walked into the living room, removed his glasses and teeth, knelt down 

on the floor by her, and pushed her legs apart with his hands. She stated that Nelson held her 

hands down so she could not move and then started kissing over her vaginal area with his tongue. 

She was wearing sweatpants at the time, and forensic testing confirmed that Nelson’s saliva was 

located on the crotch area of her pants. The victim stated that Nelson told her he would stop if 

she kissed him, but she refused. She testified that when she stood up from the couch, Nelson 

slapped her buttocks with his hand. She went upstairs, locked herself in her bedroom, and called 

her mother to tell her what happened.

When the victim’s mother learned what happened, she was shaking too much to drive so 

a couple of friends drove her home. She entered the home while on the phone with 911. She 

also had a handgun on her hip. While the victim recounted what had occurred, her mother and 

Nelson got into an argument. The testimony reflects that Nelson repeatedly apologized and 

asked the victim’s mother not to be upset. The argument, however, became physical and the 

victim’s mother pointed her gun at Nelson to stop him from talking. The 911 operator instructed 
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the victim’s mother to place her firearm in a safe, and while she was putting the gun away, 

Nelson left the house and ran to a nearby fire station. The victim’s mother pursued Nelson to the 

fire station and a physical altercation continued.

When the responding police officer arrived, Nelson was sitting on the ground and the 

victim’s mother was yelling at him. Nelson was placed in the back of a police car. The 

responding officer testified that he did not observe any bruising or bleeding on Nelson, and he 

stated that he found Nelson to be coherent.

Around 2:00 a.m., Nelson was interviewed at the police station. Before giving a 

statement, a police officer read him his Miranda 1rights while he read along on a separate piece 

of paper. Thereafter, he acknowledged each of the rights contained on the Miranda waiver form 

and signed the form. He then gave statements to the police, including that he tickled the victim’s 

inner thighs, that the victim put him in a headlock with her legs, and that he may have felt a 

sexual urge for a brief moment. Nelson also admitted that he pulled the victim’s legs apart and 

put his mouth toward her vagina, although he maintained that he never wanted to actually touch 

her vagina. Nelson also stated that he intended to smack the back of the victim’s legs as she 

stood, but that he possibly hit her buttocks. At the end of the interview, the police officer drafted 

a written statement for Nelson to sign. Nelson corrected one statement, changing the statement 

that he put his mouth “on” the victim’s vagina to a statement that he put his mouth “near” the 

victim’s vagina. He then signed the statement as the true and correct account of the events.

II. INVOLUNTARY CONFESSION

A. STANDARD OF REVIEW

Nelson first argues that his statement to the police should have been suppressed because 

it was not voluntary. This issue was not raised below, so it is unpreserved. We review an 

unpreserved constitutional error under the plain error standard. People v Shafier, 483 Mich 205, 

211; 768 NW2d 305 (2009). Under the plain error standard, the defendant must satisfy three 

requirements: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3) 

the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 

130 (1999). The third prong requires the defendant to establish that the error affected the 

outcome of the lower court proceedings. People v Borgne, 483 Mich 178, 196; 768 NW2d 290 

(2009). Even if all three requirements are met, reversal is only warranted when the plain, 

forfeited error resulted in an innocent defendant’s conviction, or it “seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” Carines, 460 Mich at 763 

(quotation marks and citation omitted).

 1 Miranda v Arizona, 384 US 436; 86 S C t 1602; 16 L Ed 2d 694 (1966).
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B. ANALYSIS

A statement is voluntary if the totality of all the surrounding circumstances shows that it 

is the product of an essentially free and unconstrained choice and not the result of an overborne 

will. People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988).

In determining whether a statement is voluntary, the trial court should 

consider, among other things, the following factors: the age of the accused; his 

lack of education or his intelligence level; the extent of his previous experience 

with the police; the repeated and prolonged nature of the questioning; the length 

of the detention of the accused before he gave the statement in question; the lack 

of any advice to the accused of his constitutional rights; whether there was an 

unnecessary delay in bringing him before a magistrate before he gave the 

confession; whether the accused was injured, intoxicated or drugged, or in ill 

health when he gave the statement; whether the accused was deprived of food, 

sleep, or medical attention; whether the accused was physically abused; and 

whether the suspect was threatened with abuse. [Id. at 334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of 

voluntariness,” id., and no single factor is determinative, People v Tierney, 266 Mich App 687, 

708; 703 NW2d 204 (2005). The ultimate test of admissibility is whether the totality of the 

circumstances indicates that the statement was freely and voluntarily made. Cipriano, 431 Mich 

at 334. The legal analysis on whether a statement is voluntary, is “essentially the same with 

respect to examining the ‘voluntary’ prong of a Miranda waiver.” People v Ryan, 295 Mich App 

388, 397; 819 NW2d 55 (2012).2

Nelson contends that his statement was involuntary because he was 65 years old, only 

had a ninth grade education, and had heart problems. He further asserts that during the interview 

he complained of fatigue and an ailing heart, and he mumbled at the end of the interview. 

Finally, he finds it significant that that his daughter, the victim’s mother, pointed a gun at his 

head just prior to the interview. However, on the record before this Court, those facts are 

insufficient to establish plain error. See Carines, 460 Mich at 763.

Nelson was sentenced as a fourth-offense habitual offender, which indicates that he has 

experience with legal proceedings. Further, at the beginning of the interview, he stated he knew 

what Miranda rights are, but had not yet been advised of his rights. Nelson then read to himself 

his Miranda rights while a police officer read them aloud. When asked about each individual 

Miranda right, he verbally responded that he understood the rights and then signed a Miranda

form indicating the same. Thereafter, throughout the interview, he never expressed 

unwillingness to talk to the police or a desire to end the interview. Further, the interview took 

place shortly after the alleged assault and only lasted for about an hour and 18 minutes. Nelson 

 2 Nelson does not challenge the voluntariness of his Miranda waiver. As such, despite the 

prosecution’s invitation to do so, we will not address this issue further.
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was coherent when he answered the police officer’s questions about his age, date of birth, 

highest level of education, and his ability to read and write. Nelson clearly stated that he was not 

under the influence of drugs or alcohol, and that he could understand the police officer. 

Although Nelson told the officer that he had lung and heart problems, Nelson also said that his 

health issues did not affect his mental capabilities. The police officer found Nelson coherent and 

not under the influence of drugs or alcohol. Further, the officer did not believe that Nelson

required medical attention as he did not appear to be bruised or bleeding. Nelson never 

requested medical attention, nor is there any evidence on the record suggesting that medical 

attention was, in fact, required. Viewed in context, there was no indication that Nelson’s 

statements that his “heart hurts” was indicative of physical heart pain. And the record reflects 

that after the interview, the police officer drafted a written statement which he then went over 

with Nelson. Nelson made one significant change to the statement and then signed it as a true 

and accurate account of what had happened. There is no evidence on the record that Nelson was 

deprived of food, sleep, or medical attention. Further, there is no indication that the police 

threatened him with physical abuse or actually physically abused him. Thus, based on the 

totality of the circumstances, Nelson’s statement appears to be the product of a free and 

unconstrained choice. As such, Nelson cannot establish plain error warranting reversal on this 

basis.

III. INEFFECTIVE ASSISTANCE

A. STANDARD OF REVIEW

Nelson’s trial lawyer did not move to suppress Nelson’s statements to the police, nor did 

he object to the admission of the police interview at trial. Nelson argues that his lawyer provided 

ineffective assistance by failing to move to suppress it. In the absence of a Ginther3 hearing, 

“our review of the defendant’s claim of ineffective assistance of counsel is limited to mistakes 

that are apparent on the record.” People v Mack, 265 Mich App 122, 125; 695 NW2d 342 

(2005).

B. ANALYSIS

In order to establish error warranting relief, Nelson must show that his lawyer’s decision 

fell below an objective standard of reasonableness under prevailing professional norms and that 

there is a reasonable probability that, but for the unprofessional error, the outcome of his trial 

would have been different. People v Gioglio (On Remand), 296 Mich App 12, 21-22; 815 

NW2d 589 (2012), remanded for resentencing 493 Mich 864. A defendant’s lawyer is presumed 

to be effective, and the defendant bears a heavy burden to demonstrate otherwise. People v 

Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). Here, Nelson argues his lawyer was 

ineffective for failing to move to suppress his confession on the grounds that it was involuntary. 

However, given that there is no evidence that the statement was, in fact, involuntary under the 

totality of the circumstances, Nelson cannot establish this his lawyer’s performance was 

 3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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deficient. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (stating that a 

defense lawyer is not required to advocate a meritless position).

Moreover, assuming arguendo that if Nelson’s lawyer had moved and succeeded in 

suppressing Nelson’s statement to the police, Nelson still cannot establish the prejudice prong to 

his ineffective assistance claim. The victim testified unequivocally that Nelson kissed her

vaginal area over her clothes. There was forensic evidence corroborating that Nelson’s saliva 

was on the crotch area of her pants. The victim immediately reported the incident and was 

crying and upset by it. There was testimony that Nelson apologized for what happened and 

urged the victim’s mother not to be upset by it. Thus, even in the absence of his statements, 

there was overwhelming evidence on the entire record in support of his convictions. Nelson was 

not denied the effective assistance of a lawyer.

Affirmed.

/s/ Michael J. Kelly

/s/ Kathleen Jansen

/s/ Patrick M. Meter