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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UNPUBLISHED 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: MARKEY, P.J., and METER and SHAPIRO, JJ. 

PER CURIAM. 

 The trial court adjudicated the juvenile respondent guilty of two counts of assault with 

intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1), and placed 

him outside his home in a non-secured facility. Respondent now appeals by right. We affirm. 

 Respondent’s adjudication arises from allegations that he sexually assaulted two twin 

boys at his family home in 2013. Respondent’s mother and the victims’ mother were friends. In 

the summer of 2013, respondent’s mother agreed to babysit the eight-year-old twins. At the 

time, respondent was 11 years old. Respondent and the twins spent a lot of time together, 

watching television, playing video games, and wrestling. The twins, aged 10 at the time of trial, 

both testified that respondent would 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 twins claimed that respondent threatened to beat them if they 

disclosed the sexual assaults. The twins continued to go to respondent’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 asserted that the twins’ testimony 

was inconsistent and not credible. 
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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. Respondent acknowledges 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 assault 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 they’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 in a bench trial are reviewed for clear error, which occurs “if the 

reviewing court is left with a definite and firm conviction that 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 fact may make reasonable inferences 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 respondent suggests, there is nothing from which to conclude 

that the trial court improperly admitted any out-of-court statements 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 repeated their allegations against respondent in response to 

questioning by others. The evidence indicated that the twins first 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’ first disclosure and trial. One twin 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 about the assaults from a neighbor, she 

spoke to the twins. After speaking to the twins, she transported 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 also spoke to “Kids Talk” about the 

sexual assaults. As both parties acknowledge, Kids Talk is a community based program that 

conducts forensic interviews of child victims. Also, as the trial court noted, both twins testified 

at trial and repeated the same allegations. 
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 From this evidence, a trier of fact could reasonably infer that over a two-year period, the 

twins disclosed consistent allegations against respondent to their 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 noted 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 know 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 the trial court’s findings of fact 

give no indication that the court relied on any inadmissible evidence and only drew reasonable 

inferences from admissible evidence, respondent’s claim fails. 

II. EFFECTIVE ASSISTANCE OF COUNSEL 

 Respondent also argues that he is entitled to a new trial because defense counsel was 

ineffective. Because respondent did not raise an ineffective assistance of counsel claim in the 

trial court, our review of this issue is limited to mistakes apparent on the record. People v Heft, 

299 Mich App 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of 

counsel, a defendant must show that his or her attorney’s performance 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 sexual 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 considered 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 it 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 ineffective assistance claim fails. 

 The significance of the siblings’ proposed testimony is that they never saw or heard 

anything unusual between respondent and the twins. Still, all of the proposed witnesses 

conceded that they were not constantly at the home and supervising 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 that he was “often” at the home. The third witness, who worked 

outside the home, would have testified only that he was “frequently” at the family home. In 

addition, none of the witnesses averred that they supervised the boys when they were at home. 

Conversely, defense counsel called respondent’s mother as a witness, and she testified that she 

babysat for the twins and never observed anything unusual between the twins and respondent. 
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This testimony served the same purpose that would have been served by the siblings’ proposed 

testimony, and it was not unreasonable for defense counsel to believe that the testimony of 

respondent’s mother would be considered more significant because she was the person who was 

actually responsible for supervising the twin boys. Thus, it was not objectively unreasonable for 

defense counsel to call respondent’s mother as a witness in lieu of the siblings. Moreover, apart 

from the fact that the siblings were not always present or responsible for supervising the twins, 

respondent’s testimony indicated that even his mother was not constantly supervising the 

activities between him and the twin boys. Respondent stated that his mother sometimes came 

downstairs to tell him and the twins to quiet down, which supports that the boys were sometimes 

left alone in the family room. The siblings’ proposed testimony would not have significantly 

altered this portrayal of the circumstances in the home. Consequently, respondent has also failed 

to establish a reasonable probability that the proposed testimony would have affected the 

outcome of trial. 

B. FAILURE TO OBJECT 

 Respondent also argues that defense counsel was ineffective for failing to object to 

“hearsay” testimony of the twin’s mother that the twins told her that respondent had punched 

them hard, locked them in a garage, was rough with them, and that they did not want to go to 

respondent’s house. Initially, we note that the citation to the record provided by respondent is 

for testimony elicited by his own counsel during cross-examination. 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 during 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 theory that it was respondent’s 

mother, and not the twin’s mother, who ended the babysitting arrangement, defense counsel 

apparently sought to establish that despite reports of how harsh respondent was treating the 

twins, their mother continued to send them to respondent’s home for many months. For 

example, at one point, defense counsel 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 conversation with [respondent’s mother] until January of 2014 regarding 

this?” and “So three months later? Your boys been complaining this entire time about 

[respondent] being rough?” In closing argument, defense counsel stated, “Nothing of any 

incident was brought to the attention of the parents, during this [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), and “this Court will not 

second-guess defense counsel’s judgment on matters of trial strategy.” 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 counsel.” People v Stewart (On 

Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). The record indicates that defense 

counsel attempted to use the twins’ reports of respondent’s harsh treatment to undermine the 

credibility of the twins’ mother. Moreover, the reports did not 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 counsel exercised reasonable trial 
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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