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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UNPUBLISHED

January 21, 2020

v No. 343920

Berrien Circuit Court

JOSHUA ERROL MIX, LC No. 2017-003309-FC

Defendant-Appellant.

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

PER CURIAM.

Defendant appeals as of right his jury trial convictions of first-degree criminal sexual 

conduct, MCL 750.520b(1)(c) (sexual penetration under circumstances involving another 

felony); kidnapping, MCL 750.349; third-degree criminal sexual conduct, MCL 750.520d(1)(b) 

(sexual penetration by force or coercion); assault with intent to commit sexual penetration, MCL 

750.520g(1); domestic violence, MCL 750.81; and ethnic intimidation, MCL 750.147b. We 

affirm.

I. FACTS

The victim met defendant in February 2016. The victim testified that after they started 

dating, defendant became jealous and possessive. According to the victim, defendant started 

having “episodes” during which his personality would change. At first the episodes were 

monthly, but by the end of their relationship, the episodes were daily. During the episodes, 

defendant verbally and physically abused the victim.

The victim recalled an incident that occurred in a hotel room in March 2017 when

defendant “flipped” and threw the victim’s phone across the room. He also threw a lamp at the 

victim, and it hit her. The victim left the hotel room and went to the lobby to call a cab home. 

The police were called to investigate what happened, but the victim did not disclose the incident

to the police because she was embarrassed.

The victim recalled another incident that occurred around April 15, 2017. The victim 

went to defendant’s apartment while he was sleeping. When he woke up, he could not find his 

cell phone, and he accused the victim of taking it. He then hit the victim hard on her back.
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There was another incident that occurred sometime between April 19 and April 25, 2017. 

The victim arrived at defendant’s apartment while defendant was intoxicated. Defendant became 

angry with the victim and went to shower, at which point the victim tried to leave. But defendant 

heard her leaving, and came out of the shower naked and grabbed her keys. He then threw the 

victim onto the couch, held her down with his knees, and started to masturbate on her. The 

victim thought she was going to pass out or that defendant was going to kill her.

Defendant eventually took off the victim’s pants, but the victim held the front of her 

vagina so defendant could not penetrate it. Defendant grabbed the victim and moved her onto 

his bed, which was near the couch because defendant lived in a studio apartment. The victim 

continued to hold her vagina while on the bed, and she begged defendant to stop. Defendant 

rolled the victim over and penetrated her anally while the victim continued begging him to stop. 

After defendant finished, he rolled off of her and fell asleep. The victim left defendant’s

apartment and returned to her own apartment. She had blood in her underwear because her anus 

was bleeding.

That same morning,1 the victim went to work and told her coworker, Jennifer Greathouse, 

what defendant did. Greathouse recounted at trial that the victim said that defendant had 

sodomized her, and that the victim’s whole body was shaking.

On the same day that the victim told Greathouse what happened, defendant called the 

victim to ask why she left his place, and she told him that she left because he raped her. 

Defendant was remorseful and blamed the alcohol. Defendant and the victim exchanged 

numerous text messages in which they discussed what happened the night before. Screenshots of 

those text messages were entered into evidence at trial. Defendant also sent the victim a video of 

him masturbating and laughing. The victim testified that even after defendant sexually abused 

her, she wanted to make her relationship with him work because she still loved him. Their 

relationship nevertheless ended sometime before July 6, 2017, because defendant started seeing 

someone else.

On July 6, 2017, the victim decided to report what defendant did to his probation officer, 

Steve Church. Church corroborated the victim’s testimony of what she said defendant did. 

Church described to the victim how defendant abused his first wife, and before Church could say 

what he did to his second wife, the victim stopped him saying that she did not want to know.2 

Church encouraged the victim to report defendant to the police.

 1 The victim testified that defendant sexually assaulted her around 3:00 or 4:00 a.m.

2 Defendant’s second wife, Karina Dawn-Marie Demorrow, testified at trial. Her testimony 

about defendant was similar to the victim’s. Demorrow testified that after she married 

defendant, he changed. He started verbally and physically abusing her, but Demorrow continued 

the relationship despite the abuse. Demorrow testified that defendant tried to penetrate her 

without her consent by flipping her onto her back, but Demorrow kicked him, and he stopped. 

Demorrow testified that one day after defendant had verbally abused her, she decided that she 
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On July 7, 2017, the victim reported the incident to a Berrien County Detective 

Lieutenant. The detective realized that the victim reported the incident to the wrong police 

station and sent her to the Chikaming Township Sheriff’s Department. Caleb Slavens, the 

Chikaming Township Patrol Sergeant, interviewed the victim. During the interview, the victim

read Sergeant Slavens her text-message exchanges with defendant, and Sergeant Slavens 

requested that she save those text messages, which she did.

Defendant was convicted as described, and now appeals.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he is entitled to a new trial because defense counsel at trial 

provided ineffective assistance by (1) failing to have an expert in cell-phone forensics testify and

(2) failing to admit pictures showing that defendant and the victim were together between April 

15 and April 18.

Defendant preserved his ineffective assistance of counsel claim by moving for a Ginther3

hearing in this Court. People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). A panel 

of this Court granted defendant’s motion.4 The trial court held a Ginther hearing, and ultimately 

denied defendant’s motion for a new trial. The trial court’s findings of fact and conclusions of 

law following the hearing will be discussed where relevant.

Whether a defendant received effective assistance of counsel is a mixed question of fact 

and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This 

Court reviews questions of constitutional law de novo, and factual findings are reviewed for 

clear error. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).

To demonstrate ineffective assistance, “a defendant must show that (1) counsel’s 

performance fell below an objective standard of reasonableness and (2) but for counsel’s 

deficient performance, there is a reasonable probability that the outcome would have been 

different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Effective 

assistance is “strongly presumed,” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012), 

and the defendant bears the heavy burden of proving otherwise, People v Dixon, 263 Mich App 

393, 396; 688 NW2d 308 (2004).

A. EXPERT IN CELL-PHONE FORENSICS

 

was done, and she called the police and filed a police report. Defendant was convicted of 

domestic violence in that case.

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

4 People v Joshua Errol Mix, unpublished order of the Court of Appeals, entered January 14, 

2019 (Docket No. 343920). 
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Defendant argues that defense counsel provided ineffective assistance at trial when he 

failed to call an expert in cell-phone forensics because such an expert would have testified that 

the text messages between defendant and the victim after the incident could have been 

fabricated, or alternatively the expert’s testimony could have bolstered defendant’s argument that 

the messages were taken out of context. We disagree.

“Decisions regarding what evidence to present, whether to call witnesses, and how to 

question witnesses are presumed to be matters of trial strategy[.]” People v Horn, 279 Mich App 

31, 39; 755 NW2d 212 (2008). Counsel’s failure to call an expert witness amounts to ineffective 

assistance only if it deprived the defendant of a substantial defense. See Payne, 285 Mich App at 

190. “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) (quotation marks and 

citation omitted).

A couple days after the victim reported defendant to the police, she dropped her cell 

phone into a river. The victim had already saved the text messages in her cell-phone cloud as 

instructed during her interview with Sergeant Slavens, so the prosecution was able to recover the 

messages and present them as evidence at trial.

In his original appellate brief to this Court, defendant asserted that defense counsel never 

discussed the text messages with defendant, and that, had counsel done so, counsel “would have 

learned that [defendant] does not believe that the messages are authentic.” According to 

defendant, the only way to prove his claim and determine the authenticity of the text messages 

was to consult an expert in cell-phone forensics. Defendant asserted that such an expert would 

have explained that “a screenshot of a text message does not suffice to authenticate the message” 

because “text messages can be faked in two very easy ways.” Defendant concluded that “[t]he 

jurors needed to be educated on how the text messages could have been faked, especially since 

[defendant] disputed their authenticity,” and that “a reasonable juror could conclude that there’s 

a possibility that [the victim] faked the text messages and then disposed of her phone to prevent a 

forensic extraction.”

At the Ginther hearing, defendant’s trial counsel stated that he showed and discussed the 

text messages with defendant before trial. Defense counsel also testified that he did not hire a 

forensics expert for trial because defendant did not “deny that they were his text messages,” but 

instead told counsel that the messages were taken out of context. Defense counsel felt that if he 

argued at trial that the text messages were faked, his argument would “be unsupported by fact.” 

Defense counsel explained that, instead, his trial strategy was to argue that the messages were 

taken out of context, distorted, and manipulated.

Defendant appeared to testify similarly. Though he initially asserted that the text 

messages were not authentic, defendant testified on cross-examination that, when he said that the 

messages were “not authentic,” he meant that he had not read the messages when the victim sent 

them:

Mr. Mead [the prosecutor]: Mr. Mix, when you say that the text messages 

are not authentic, I just want to make sure I understand exactly what you mean. 
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Do you mean that they’re chopped up, taken out of context; or do you mean that 

they’re just made up from beginning to end?

Defendant: Some of it—Some of the words in the balloons look like it 

was conversations that Amy and I had, and then some of the conversation and 

words in there aren’t—I never even read. But that could have been because I was 

at work, too, and those things could have been—

I mean there was—The word that is being used in court today is 

voluminous. Her and I had probably four or 5,000 text messages back and forth.

And I worked 12 hours a day seven days a week. And for many of those 

hours as my job—I could not get away from my job to talk to her, and so I’d have 

a backlog of up to 20, 30, 40 messages before I even was able to—I could have 

been answering a message from 20, 30 messages prior to the one she—than the 

one that there was a—a response to on any—on any given day. So, I mean, the 

conversation could be—You know, you could take your pick out of, like I said, 

3,000 messages.

Mr. Mead: So it sounds like what you’re saying is that they could, in fact, 

be authentic, you just necessarily wouldn’t have read everything that you were 

responding to?

Defendant: Yes. And I don’t dispute, and I know that she won’t dispute 

the fact that she would accuse me of many different things on many different 

dates.

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The Court: So you testified, with respect to the actual text messages, that 

you’re not—you’re not really sure they’re not authentic; you’re saying that there 

might be stuff before or after in the whole conversation that may be missing, but 

the actual text messages, you’re not disputing the authentity [sic]—authenticity, 

rather, right?

Defendant: I cannot dispute the authenticity of all the text messages.

The Court: Okay.

Defendant: There are some of the text messages that I would have to 

dispute because I never read them.

The trial court ultimately found that defendant did not deny the authenticity of the text messages 

and held that a cell phone expert at trial would have been unnecessary.

In defendant’s supplemental brief after remand, defendant argues that the trial court 

misunderstood defendant’s argument. Defendant contends that his argument has always been 

“that the screenshots inaccurately portrayed the actual back and forth between [defendant] and 
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[the victim], [and] that the messages as represented in the four corners of the screenshots were 

not actual conversations that [defendant] and [the victim] had had.” Defendant now argues that 

“the only way” to establish that the messages “were taken out of context” was “to present an 

expert on cell phone forensics to establish precisely how [the victim] could have accomplished 

this.”

We begin by noting the obvious: defendant’s argument has changed from his initial 

appellate brief to his supplemental brief. In his first brief, he argued that an expert in cell-phone 

forensics could have explained “how the text messages could have been faked” and that the 

jurors could have concluded “that [the victim] faked the text messages and then disposed of her 

phone to prevent a forensic extraction.” In his supplemental brief, he argues not that the 

messages were faked, but that “the screenshots inaccurately portrayed the actual back and forth 

between” the victim and defendant. By shifting away from his original argument, we conclude 

that defendant intended to abandon his original argument that defense counsel at trial was 

ineffective for not presenting evidence that the victim faked the text messages.5

Defendant’s remaining argument—that an expert in cell-phone forensics was necessary to 

establish that the text messages were taken out of context—is without merit. Defense counsel’s 

argument at trial was that the text messages were taken out of context; counsel argued that the 

text messages had been distorted and manipulated. Defendant broadly asserts that “the only way 

to [establish that the text messages were taken out of context] was to present an expert on cell 

phone forensics to establish precisely how [the victim] could have accomplished this.” Yet the 

testimony of the expert at the Ginther hearing did not explain how the victim could have taken 

the messages out of context; he only testified about the ways a person could fake text messages 

and conversations. Defendant does not explain how the testimony of an expert in cell-phone 

forensics could have supported defendant’s argument that the text messages were taken out of 

 5 Even if defendant insists on pursuing this abandoned argument, it would be meritless. The trial 

court found that defendant did not believe that the text messages were faked. While defendant 

testified that he thought the messages were not authentic, his testimony made clear that, to him, a 

message was “not authentic” if he had not read the message. He explained that he and the victim 

sent thousands of messages back and forth, and that his work schedule prevented him from being 

able to respond to all of the victim’s messages. Thus, defendant was not asserting that the victim 

faked the messages, and the trial court’s finding of the same was not clearly erroneous. 

Defendant’s trial counsel similarly testified that defendant never told him that the messages were 

faked, but instead told him that the messages were taken out of context. Along the same lines, 

defense counsel testified that he talked to defendant on numerous occasions about the text 

messages, which was contrary to defendant’s assertions in his initial appellate brief. The trial 

court appeared to credit defense counsel’s testimony, which supports the court’s conclusion that

defense counsel had no reason to pursue an argument that the messages were faked. That is, it 

was not objectively unreasonable for defendant’s trial counsel to refuse to pursue an argument 

that he believed, and that the evidence available to him confirmed, would “be unsupported by 

fact.” Defense counsel’s decision to not call an expert in cell-phone forensics to testify in 

support of an argument “unsupported by fact” did not amount to ineffective assistance.
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context, let alone how this testimony was “the only way” to establish that. This is especially true 

because, as a matter of common sense, to establish that a text message was taken “out of 

context,” one must know “the context” of the message. It is unclear how an expert, rather than a 

person to the conversation, is better suited to say what “the context” of a text message was, let 

alone how an expert is “the only” person who can say that.6 We therefore conclude that defense 

counsel at trial was not ineffective for not calling an expert in cell-phone forensics because 

defendant failed to establish that this decision deprived him of a substantial defense. See Payne, 

285 Mich App at 190.

B. PHOTOGRAPHS

Defendant next contends that defense counsel at trial was ineffective for failing to admit 

photos of the victim and defendant together between April 15 and April 18. Defendant argues 

that the photos could have been used at trial to explain why the victim changed her testimony 

from the preliminary examination (where she said that defendant raped her on April 15) to the 

testimony she gave at trial (where she said that defendant raped her between April 19 and April 

25), thereby impeaching her credibility and bolstering defendant’s theory that the victim was 

lying to get back at defendant after she found out that he was cheating on her. We disagree.

At the preliminary examination, the victim testified that defendant sexually abused her on 

either April 14, 15, or 16. She said that she determined the date by looking at her old text 

messages. The victim also stated that she did not see defendant until “days after” the incident.

Right before jury selection on the first day of defendant’s trial, defense counsel and the 

trial court discussed the admissibility of the photographs that defendant had stored on his cell 

phone. The photographs were of the victim, and they were taken by defendant. The dates of the 

photographs showed that defendant and the victim were together on April 15, 16, and 18. 

Defense counsel stated that he received the photographs a week and a half before trial. He also 

stated that he failed to disclose them to the prosecution at the status conference, which was a 

week before the first day of trial. The trial court told defense counsel that under MCR 

6.201(A)(6), defense counsel was required to allow the prosecution an opportunity to inspect the 

photographs, and because defense counsel violated this rule, the trial court would not permit the 

introduction of the photographs.

At trial, the victim stated that defendant hit her on the back around April 15, and that the 

incident in which defendant penetrated her occurred between April 19 and April 25. When 

questioned by defense counsel about the accuracy of her preliminary examination testimony, the 

victim admitted that she misstated the date of the sexual abuse at the preliminary examination. 

The victim also admitted during trial that she continued a relationship with defendant after he 

sexually abused her.

 6 Indeed, at the Ginther hearing, defendant—not the expert—explained that the text messages 

were taken out of context because the victim would text him “20, 30, 40 messages” while he was 

at work and unable to respond, and so his responses “could have been answering a message from 

20, 30 messages prior . . . .”
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At the Ginther hearing, defense counsel admitted that he received the photographs over a 

month before trial. Defense counsel stated that he did not know why he told the trial court that

he did not receive the photographs until a week and a half before trial. He also testified that he 

committed an error by not timely disclosing the photographs to the prosecution.

The victim testified at the Ginther hearing that she realized she was mistaken about her 

dates after the prosecution brought it to her attention after the preliminary examination but before 

trial. She realized that the text message she thought was about the sexual assault was actually 

about the incident where defendant hit her in the back. The trial court found that although 

defense counsel committed an error, his error did not prejudice defendant.

We agree with the trial court that defense counsel’s failure to timely disclose the

photographs to the prosecution, which resulted in the photos being excluded from trial, fell 

below an objective standard of reasonableness. See Trakhtenberg, 493 Mich at 52. And we 

likewise agree with the trial court that the error was not outcome determinative. Defendant 

argues that the photographs “supply a tangible reason for” why the victim changed the day of the 

rape—the victim “changed her story because she had seen the photographs and realized that they 

contradicted her story.” The victim admitted at trial that she misstated the date of the sexual 

abuse at the preliminary examination and that she continued a relationship with defendant after 

he sexually abused her. It therefore appears that the photographs do not contradict the victim’s 

“story.” She admitted that she originally testified to the wrong date, so that piece of 

impeachment was already before the jury. More importantly, she admitted that she continued a 

relationship with defendant after he sexually abused her, so photographs of them together 

following the date of the rape would not have “contradicted her story”; it would have 

corroborated what she said. We therefore conclude that defense counsel’s failure to have the 

photographs admitted was not outcome determinative, so defendant is not entitled to relief.7

Affirmed.

/s/ Colleen A. O’Brien

/s/ Amy Ronayne Krause

/s/ Michael F. Gadola

 7 Defendant also argues that the cumulative effect of trial counsel’s errors warrants reversal. As 

explained, trial counsel’s only error was failing to admit the photographs, but that failure did not 

prejudice defendant or result in an unfair trial. Defendant is therefore not entitled to relief. See 

People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001).