-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee/Cross-Appellant, 

UNPUBLISHED 

January 19, 2017 

V No. 326282 

Calhoun Circuit Court 

TROY EDWARD THOMPSON, LC No. 2014-001104-FC 

 Defendant-Appellant/CrossAppellee. 

Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ. 

PER CURIAM. 

 Defendant, Troy Edward Thompson, appeals as of right his convictions, following a jury 

trial, of two counts of second-degree criminal sexual conduct (CSC II), MCL 750.520c (multiple 

variables). The jury acquitted Thompson of first-degree criminal sexual conduct. The trial court 

sentenced Thompson to serve concurrent terms of 4 to 16 years’ imprisonment for his 

convictions. This Court previously remanded for a Ginther1 hearing regarding the effectiveness 

of defense counsel and, on remand, the trial court granted a new trial. The prosecution crossappeals that decision by leave granted.2

 We affirm the trial court’s decision to grant a new trial. 

I. FACTUAL BACKGROUND 

 The complainant and her family moved in with Thompson’s family when the 

complainant was 13 years old. The complainant testified that Thompson engaged in sexual 

misconduct with her, including by touching her buttocks, breasts, and digitally penetrating her 

vagina. Thompson’s wife testified that the complainant consistently and inappropriately sought 

out Thompson’s attention and acted out when she did not receive it. Defense counsel argued that 

the complainant fabricated the allegations because she was angry about her unrequited romantic 

feelings for Thompson. 

 

1 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 

2 People v Thompson, unpublished order of the Court of Appeals, entered September 28, 2016 

(Docket No. 326282). 
-2- 

 Shortly before the trial, defense counsel indicated that he had received new information 

about the complainant, including that she had visited pornographic internet sites. He sought an 

adjournment to obtain an expert opinion and engaged a psychologist, Dr. Katherina Okla. Dr. 

Okla provided an affidavit in which she opined that forensic interviewing protocols with the 

complainant were seriously violated, and that the complainant was of an age that she was “highly 

sensitive to physical development and boundary issues which could easily have influenced [the 

complainant’s] attention to, interpretation of and responses to events, in the context of increasing 

knowledge of and interest in sexuality.” Dr. Okla further opined that such information “is 

essential for both investigators and . . . jurors when considering whether [the complainant] was 

accurately reporting actual experiences, as opposed to reporting what she came to believe was 

‘the truth’ constructed under the influence of internal sources such as fantasy, and/or external 

sources of ideas and information from media.” 

 While proceedings were adjourned, Thompson received new counsel. Successor defense 

counsel ultimately did not call Dr. Okla to testify at trial, did not use Dr. Okla’s affidavit to 

cross-examine prosecution witnesses, and did not engage any other expert to challenge the 

complainant’s credibility. 

 The jury found Thompson guilty as previously described. Thompson filed a claim of 

appeal with this Court, seeking remand for an evidentiary hearing on the basis that defense 

counsel provided ineffective assistance. Thompson predicated his claim on defense counsel’s 

failure to offer Dr. Okla’s expert testimony at trial. This Court granted the motion, limiting 

proceedings on remand “to the issue as raised in the motion to remand.”3

 

 At the Ginther hearing, successor defense counsel testified that he had a poor relationship 

with Dr. Okla. When asked why he did not at least use Dr. Okla’s affidavit, counsel opined that 

Dr. Okla was biased toward the prosecution and he feared that the prosecution would take 

advantage of the document. When asked to identify anything in the affidavit that reflected Dr. 

Okla’s alleged bias, defense counsel admitted error in that regard. 

 Dr. Okla’s affidavit was admitted into evidence, but she did not testify at the Ginther

hearing. Defense counsel called a different psychologist, who also opined that violated interview 

protocols likely distorted complainant’s account of pertinent events. Following the hearing, the 

trial court found that counsel was ineffective for failing to make use of Dr. Okla or a similar 

expert at trial and determined that the error warranted a new trial. 

II. STANDARDS OF REVIEW 

 We review de novo whether the trial court followed the scope of a remand order. 

Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 127; 737 NW2d 782 (2007). We 

review for an abuse of discretion the trial court’s decision to admit expert witness testimony. 

People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). The trial court abuses its 

 

3 People v Thompson, unpublished order of the Court of Appeals, entered October 29, 2015 

(Docket No. 326282). 
-3- 

discretion when it “chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” Id. at 217. When reviewing an ineffective assistance of counsel claim, this Court 

reviews for clear error the trial court’s findings of fact, and reviews de novo questions of law. 

People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A finding is clearly erroneous if, 

after reviewing the entire record, we are definitely and firmly convinced that the trial court made 

a mistake. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). 

III. SCOPE OF REMAND PROCEEDINGS 

 The prosecution first argues that the trial court exceeded the scope of this Court’s remand 

order by allowing the defense to call an expert other than Dr. Okla. We disagree. 

 “When a case is remanded by an appellate court, proceedings on remand are limited to 

the scope of the remand order.” People v Canter, 197 Mich App 550, 567; 496 NW2d 336 

(1992). This Court ordered that “[p]roceedings on remand are limited to the issue as raised in the 

motion to remand.” Thompson, unpub order at 1. 

 We adopt the learned trial court’s statements regarding the scope of the remand before it: 

[T]he appeal specifically says a doctor, because that’s the doctor that was 

involved in the underlying case for trial. The question on effective assistance of 

counsel is whether an expert was called. Clearly, one was identified and 

consulted, but they shouldn’t have to be bound by that. I understand and it would 

be the perfect world for that to happen, but they shouldn’t now be bound to call 

and have this Court determine someone’s credibility with an underlying hostility 

and lack of cooperation because that’s gonna impact how the Court views it and 

how the questioning happens and the opinions that are potentially issued. . . . 

[T]o me this is about whether or not the defense, in their discretion should have 

called an expert witness. It was Dr. Okla at the time, but underlying that, should 

an expert have been presented to the jury on behalf of the defense. . . . 

We further note that the motion advises that, at the start of trial, defense counsel “asked for an 

adjournment so that a defense expert could be hired to evaluate the testimony and other evidence 

involving the complaining witness,” citing case law in which this Court held that a failure to call 

an expert witness regarding witness questioning techniques constituted ineffective assistance. 

We conclude that the issue in the motion was not limited solely to Dr. Okla and conclude that the 

trial court did not exceed the scope of the remand by exploring whether successor defense 

counsel should have called another expert on the issue. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL 

 The prosecution also argues that the trial court erred by granting Thompson’s motion for 

a new trial because Thompson did not demonstrate that successor defense counsel’s reasons for 

failing to call Dr. Okla were unsound trial strategy. We disagree. 

 A criminal defendant has the fundamental right to effective assistance of counsel. US 

Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 

80 L Ed 2d 657 (1984). To prove ineffective assistance of counsel, a defendant must show that 
-4- 

counsel’s performance fell below an objective standard of reasonableness, and that the 

representation so prejudiced the defendant as to result in deprivation of a fair trial. Strickland v 

Washington, 466 US 668, 687-688, 690; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v 

Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). 

 The defendant must overcome the strong presumption that counsel’s tactics were matters 

of sound trial strategy. People v Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999). “Yet a 

court cannot insulate the review of counsel’s performance by calling it trial strategy.” People v 

Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). We give defense counsel wide 

discretion in matters of trial strategy because counsel may be required to take calculated risks to 

win a case. People v Pickens, 446 Mich 298, 325; 521 NW2d 797 (1994). But counsel always 

retains the duty to make reasonable investigations and exercise professional judgment in matters 

related to the defense. Trakhtenberg, 493 Mich at 52-53. 

 In this case, the trial court found that defense counsel’s stated reasons for failing to call 

Dr. Okla or another witness were illogical and incomprehensible. The trial court additionally 

found that the affidavit established that “[t]here were violations of the protocol up and down, 

over and over in this process that should have been explored and explained to the jury on behalf 

of the defense . . . .” 

 We are not definitely and firmly convinced that the trial court’s finding that successor 

defense counsel acted unreasonably was a mistake. Successor defense counsel’s stated reasons 

for failing to call Dr. Okla were contradicted by the contents of Dr. Okla’s affidavit, as successor 

defense counsel himself admitted on reviewing the affidavit. The affidavit explores at length the 

violations of forensic interviewing protocol and additional issues that could have affected the 

complainant’s recollection of events. This evidence supported Thompson’s defense theory that 

the complainant fabricated the events out of bias or fantasy. No reasonable counsel could have 

reviewed Dr. Okla’s affidavit and concluded that, under the circumstances, an expert opinion on 

forensic interviewing techniques and sources that may have influenced the complainant’s 

recollections was unwarranted in this case, particularly given that this case hinged on the 

complainant’s credibility. We conclude the trial court did not clearly err in finding that 

successor defense counsel’s performance fell below an objective standard of reasonableness.4

 

 The defendant must also show that “but for counsel’s deficient performance, a different 

result would have been reasonably probable.” Trakhtenberg, 493 Mich at 56 (quotation marks 

and citation omitted). The magnitude of the errors need not rise to the level of a preponderance 

of the evidence, and the magnitude of the errors is less when there is “relatively little evidence to 

support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness) . . . 

.” Id. (quotations marks and citation omitted). Defense counsel’s failure to introduce 

impeachment evidence may make a different result reasonably probable. See id. 

 

4

 The prosecution’s argument that defense counsel must have been effective because he obtained 

acquittals on some of the charges is unavailing. If anything, this fact establishes exactly how 

important the complainant’s credibility was in this case, as discussed above. 
-5- 

 We are not definitely and firmly convinced that the trial court erred when it found that 

counsel’s error prejudiced Thompson. The uncorroborated testimony of a single witness, the 

complainant, was the sole support for the verdict in this case. Further, the jury’s acquittal of 

Thompson on the most serious of the offenses underlines the importance of impeachment 

evidence and demonstrates that had successor defense counsel called Dr. Okla or another expert 

witness, a different result may have occurred on the remaining charges. 

 Our conclusion on this issue renders moot the remainder of Thompson’s issues on appeal. 

 We affirm. 

/s/ Peter D. O’Connell 

/s/ Jane E. Markey 

/s/ Christopher M. Murray