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### STATE OF MICHIGAN

COURT OF APPEALS

In re RICCARDO COVIN.

PEOPLE OF THE STATE OF MICHIGAN,

Petitioner-Appellee, UNPUBLISHED June 20, 2017

v No. 331637 Wayne Circuit Court RICCARDO COVIN, Family Division LC No. 14-515820-DL Respondent-Appellant.

Before: M ARKEY , P.J., and M ETER and S HAPIRO , JJ.

P ER C URIAM

. The trial court adjudicated the juvenile respondent guilty of two counts of assault with intent to commit criminal sexua l conduct involving penetration, MCL 750.520g(1), and placed him outside his home in a non-s ecured facilit y. Respondent now appeals by right. We affirm.

Respondent’s adjudication arises from allegations that he sexu ally assaulted two twin boys at his family home in 2013. Respondent’s mother and the v ictims’ mother were friends. In the summer of 2013, respondent’s mother agreed to babysit the e ight-year-old twins. At the time, respondent was 11 years ol d. Respondent and the twins sp ent a lot of time together, watching television, playing vide o games, and wrestling. The t wins, aged 10 at the time of trial, both testified that respondent w ould sometimes use his body to restrict their movement and attempt to insert his penis into their mouths. In the fall of 2013, the twins expressed to their mother that they no longer wanted to go to respondent’s house, but did not relate that they were being sexually assaulted. The t wins claimed that respondent th reatened to beat them if they disclosed the sexual assaults. The twins continued to go to re spondent’s house until January 2014, when they ultimately disclosed the sexual incidents to a neighbor, who was respondent’s classmate. Respondent denied any wrongdoing. The defense asse rted that the twins’ testimony was inconsistent a nd not credible.-2- I. TRIAL COURT’S FINDINGS OF FACT

Respondent first argues that the trial court improperly relied on inadmissible evidence to find that the twins’ accounts were credible. We disagree. Res pondent acknowledg es that this issue is unpreserved. We therefore review this claim for plain error affecting respondent’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

In support of his argument, respondent relies on the following emphasized excerpt from the trial court’s findings of fact:

The one thing about this case that would be hard for me would be the fact that two eight years olds, at the time that this alleged assaul t occurred, would come together and create a story that’s false and continue to advocate that story over a two year time frame through numerous interviews and they did that all because of why or what? It’s hard for me to believe that. It’ s hard for me to believe that these two young eight year olds, who are now ten, have come in here to lie on [respondent] and say that [respondent] did this and t hey’re just getting together to lie on [respondent ]. Why? [Emphasis added.]

Findings are sufficient if it appears that the trial court was aware of the issues in the case and correctly applied the law. People v Smith , 211 Mich App 233, 235; 535 NW2d 248 (1995). A trial court’s factual findings i n a bench trial are reviewed for clear error, which occurs “if the reviewing court is left with a definite and firm conviction tha t the trial court made a mistake.” People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012) (citation omitted). In determining its findings of fact, the trier of f act may make reasonable inferen ces from evidence in the record, but may not make inferences completely unsupported by any direct or circumstantial evidence. People v Vaughn , 186 Mich App 376, 379-380; 465 NW2d 365 (1990).

Initially, contrary to what r espondent suggests, there is noth ing from which to conclude that the trial court improperly admitted any out-of-court state ments the twins made. However, there was evidence from which a trier of fact could reasonably infer that during an approximate two-year period, the twins rep eated their allegations against r espondent in response to questioning by others. The evidence indicated that the twins f irst disclosed the sexual assaults in February 2014. The trial began in December 2015. Thus, there was a period of approximately two years between the twins’ firs t disclosure and trial. One t win testified that his neighbor was the first person that he and his brother told and was the only person they told without being asked about it. The twins’ mother testified that after learning abou t the assaults from a neighbor, she spoke to the twins. After speaking to the twins, she transport ed them to the police station. As a result of meeting with the police, a case was initiated against respondent. In response to a question asked by defense counsel, one twin testified that he a lso spoke to “Kids Talk” about the sexual assaults. As both parties acknowledge, Kids Talk is a c ommunity based program that conducts forensic interviews of child victims. Also, as the tr ial court noted, both twins testified at trial and repeated the same allegations.-3- From this evidence, a trier of fact could reasonably infer tha t over a two-year period, the twins disclosed cons istent allegations against respondent to th eir mother, the police, Kids Talk, and at trial. Indeed, respondent was charged and tried and did not argue at trial or on appeal that the twins ever gave different accounts of what occurred. As no ted earlier, the trial court was allowed to make reasonable inferences from the evidence. Vaughn , 186 Mich App at 379-380. Furthermore, in a bench trial, the trial court is presumed to k now the applicable law and “the difference between admissible and inadmissible evidence.” People v Wofford , 196 Mich App 275, 282; 492 NW2d 747 (1992). For this reason, and because th e trial court’s findings of fact give no indication that the court relied on any inadmissible ev idence and only drew reasonable inferences from admissible evid ence, respondent’s claim fails.

II. EFFECTIVE ASSISTANCE OF COUNSEL

Respondent also argues that he is entitled to a new trial beca use defense counsel was ineffective. Because respondent did not raise an ineffective a ssistance of counsel claim in the trial court, our review of this issue is limited to mistakes ap parent on the record. People v Heft

, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate inef fective assistance of counsel, a defendant must show that his or her attorney’s perfo rmance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice.” People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the proceedings would have been different.” Id

.

A. FAILURE TO CALL WITNESSES

Respondent argues that defense counsel should have called his three adult siblings because they lived in the house during the period when the sexu al assaults allegedly occurred. “Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy.” People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012) (citation omitted)

. Defense counsel’s failure to a call a witness is only considere d ineffective assistance if it deprived the defendant of a substantial defense. Id. “A substantial defense is one that might have made a difference in the outcome of the trial.” People v Chapo , 283 Mich App 360, 371; 770 NW2d 68 (2009) (citation omitted). Respondent attempts to establish the factual predicate for his claim with affidavits from each of his siblings. But i t is “impermissible to expand the record on appeal.” People v Powell , 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). Moreover, even if the affidavits are considered, respondent’s i neffective assistance claim fails.

The significance of the siblings’ proposed testimony is that t hey never saw or heard anything unusual between res pondent and the twins. Still, all of the proposed witnesses conceded that they were not constantly at the home and supervis ing the boys such that the charged sexual assaults could not have occurred. According to their affidavits, one witness would have only testified that she was “usually” in the common area of the house, and another witness would have testified tha t he was “often” at the home. The third witness, who worked outside the home, would have testified only that he was “freque ntly” at the family home. In addition, none of the witnesses av erred that they supervised th e boys when they were at home. Conversely, defense counsel cal led respondent’s mother as a wit ness, and she testified that she babysat for the twins and never observed anything unusual betwe en the twins and respondent.-4- This testimony served the same purpose that would have been ser ved by the siblings’ proposed testimony, and it was not unreasonable for defense counsel to b elieve that the testimony of respondent’s mother would be considered more significant becaus e she was the person who was actually responsible for supervis ing the twin boys. Thus, it w as not objectively unreasonable for defense counsel to call respondent’s mother as a witness in lie u of the siblings. Moreover, apart from the fact that the siblings were not always present or resp onsible for supervising the twins, respondent’s testimony indicated that even his mother was not c onstantly supervising the activities between him and the twin boys. Respondent stated th at his mother sometimes came downstairs to tell him and the twins to quiet down, which suppo rts that the boys were sometimes left alone in the family room. The siblings’ proposed testimon y would not have significantly altered this portrayal of the ci rcumstances in the home. Conse quently, respondent has also failed to establish a reasonable probab ility that the proposed testimo ny would have affected the outcome of trial.

B. FAILURE TO OBJECT

Respondent also argues that defense counsel was ineffective fo r failing to object to “hearsay” testimony of the twin’s mother that the twins told he r that respondent had punched them hard, locked them in a garage, was rough with them, and th at they did not want to go to respondent’s house. Initially, we note that the citation to th e record provided by respondent is for testimony elicited by his own counsel during cross-examinat ion. Regardless, it is apparent that defense counsel made a strategic decision not to object to the mother’s testimony regarding these matters during direct examination and to revisit them dur ing cross-examination.

A primary defense theory was that respondent was being falsely accused as retaliation for his mother’s no longer babysitting the twins. To support the t heory that it was respondent’s mother, and not the twin’s moth er, who ended the babysitting ar rangement, defense counsel apparently sought to establish that despite reports of how hars h respondent was treating the twins, their mother continued to send them to respondent’s home for many months. For example, at one point, defense co unsel asked the twin’s mother, “So your boys started to complain about going to [respondent’s] house in October of 2013 and I believe your testimony said you didn’t have a conversati on with [respondent’s mother] until January of 2014 regarding this?” and “So three months lat er? Your boys been complaining this entire time about [respondent] being rough?” In closing argument, defense counse l stated, “Nothing of any incident was brought to the attention of the parents, during th is [babysitting] period, that anything was going on between [the twins] and [respondent].”

Decisions about defense strategy, including what arguments to make, are matters of trial strategy, People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999), a nd “this Court wil l not second-guess defense counsel’s judgment on matters of trial str ategy.” People v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011). “The fact that defense counsel’s strategy may not have worked does not constitute ineffective assistance of couns el.” People v Stewart (On Remand) , 219 Mich App 38, 42; 555 NW2d 715 (1996). The record indicat es that defense counsel attempted to use the twins’ reports of respondent’s har sh treatment to undermine the credibility of the twins’ mother. Moreover, the reports did no t involve any allegations of sexual abuse, so they were not likely to prejudice respondent in that regard. For these reasons, respondent has not overcome the presumption that defense counse l exercised reasonable trial-5- strategy by not objecting to the testimony of the twin’s mother and using that testimony to support a defense theory.

We affirm.

/s/ Jane E. Markey /s/ Patrick M. Meter /s/ Douglas B. Shapiro