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### 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Plaintiff-Appellee/Cross-Appellant, UNPUBLISHED January 19, 2017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’C ONNELL , P.J., and M ARKEY and M URRAY , JJ.

P ER C URIAM

. Defendant, Troy Edward Thompson, appeals as of right his convi ctions, following a jury trial, of two counts of second-degree criminal sexual conduct ( CSC II), MCL 750.520c (multiple variables). The jury acquitted T hompson of first-degree crimin al 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 Ginther 1 hearing regarding the effectiveness of defense counsel and, on remand, the trial court granted a ne w trial. The prosecution crossappeals that decision by leave granted. 2 We affirm the trial court’s dec ision 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 T hompson engaged in sexual misconduct with her, including by touching her buttocks, breast s, and digitally penetrating her vagina. Thompson’s wife testified that the complainant consist ently and inappropriately sought out Thompson’s attention and act ed out when she did not receive it. Defense counsel argued that the complainant fabricated the allegations because she was angr y 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2 People v Thompson , unpublished order of the Court of Appeals, entered September 28, 2016 (Docket No. 326282).-2- Shortly before the trial, defense counsel indicated that he ha d received new information about the complainant, including that she had visited pornograp hic internet sites. He sought an adjournment to obtain an expert opinion and engaged a psycholog ist, Dr. Katherina Okla. Dr. Okla provided an affidavit in which she opined that forensic in terviewing protocols with the complainant were seriously violated, and that the complainant w as of an age that she was “highly sensitive to physical development and boundary issues which cou ld easily have influenced [the complainant’s] attention to, in terpretation of and responses to events, in the context of increasing knowledge of and interest in sexuality.” Dr. Okla further opin ed that such information “is essential for both investigators and . . . jurors when consider ing whether [the complainant] was accurately reporting actual experiences, as opposed to reporting what she came to believe was ‘the truth’ constructe d 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 counse l. Successor defense counsel ultimately did not call Dr . Okla to testify at trial, d id not use Dr. Okla’s affidavit to cross-examine prosecution witne sses, and did not engage any oth er expert to challenge the complainant’s credibility.

The jury found Thompson guilty as previously described. Thomp son filed a claim of appeal with this Court, seeking remand for an evidentiary heari ng on the basis that defense counsel provided ineffective assistance. Thompson predicated h is claim on defense counsel’s failure to offer Dr. Okla’s expert testimony at trial. This Co urt 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 poo r 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 t he 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 reg ard.

Dr. Okla’s affidavit was admitted into evidence, but she did n ot testify at the Ginther hearing. Defense couns el called a different psychologist, who also opined that violated interview protocols likely distorted compla inant’s account of pertinent e vents. Following the hearing, the trial court found that counsel was ineffective for failing to m ake use of Dr. Okla or a similar expert at trial and determined t hat the error warranted a new t rial.

II. STANDARDS OF REVIEW

We review de novo whether the trial court followed the scope o f 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 discretio n 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 o utcome that falls outside the r ange of reasonable and principled outcomes.” Id . at 217. When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the tria l 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 c all 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 l imited to the issue as raised in the motion to remand.” Thompson , unpub order at 1.

We adopt the learned trial cour t’s statements regarding the sc ope of the remand before it:

[T]he appeal specifically says a doctor, because that’s the doc tor that was involved in the underlying case for trial. The question on eff ective assistance of counsel is whether an expert was called. Clearly, one was iden tified and consulted, but they shouldn’t have to be bound by that. I unde rstand 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 so meone’s credibility with an und erlying hostility and lack of cooperation because that’s gonna impact how the Cou rt views it and how the questioning happens and the opinions that are potential ly issued. . . . [T]o me this is about whether or not the defense, in their disc retion should have called an expert witness. It was Dr. Okla at the time, but und erlying that, should an expert have been presented t o the jury on behalf of the defe nse. . . .
We further note that the motion advises that, at the start of t rial, defense counsel “asked for an adjournment so that a defense expert could be hired to evaluate the testimony and other evidence involving the complaining witne ss,” citing case law in which th is Court held that a failure to call an expert witness regarding witness questioning techniques cons tituted ineffective assistance. We conclude that the issue in t he motion was not limited solely to Dr. Okla and conclude that the trial court did not exceed the sc ope of the remand by exploring whether successor defense counsel should have called anot her expert on th e issue.

IV. INEFFECTIVE ASSIS TANCE OF COUNSEL

The prosecution also argues th at the trial court erred by gran ting 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 uns ound trial strategy. We disag ree.
A criminal defendant has the fundamental right to effective as sistance 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 coun sel, a defendant must show that-4- counsel’s performance fell below an objective standard of reaso nableness, and that the representation so prejudiced the d efendant as to result in depr ivation 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 counse l’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 ca lling it trial strategy.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). We give defense counse l 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 judgm ent in matters related to the defense. Trakhtenberg , 493 Mich at 52-53.

In this case, the trial court found that defense counsel’s sta ted 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 violati ons of the protocol up and down, over and over in this process th at should have been explored an d explained to the jury on behalf of the defense . . . .”

We are not definitely and firmly convinced that the trial cour t’s finding that successor defense counsel acted unreasonably was a mistake. Successor de fense 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. T he affidavit explores at length the violations of forensic interview ing protocol and additional iss ues 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 an d concluded that, under the cir cumstances, an expert opinion on forensic interviewing techniques and sources that may have infl uenced the complainant’s recollections was unwarranted in this case, particularly given that this case hinged on the complainant’s credibility. We c onclude the trial court did not clearly err in finding that successor defense counsel’s perf ormance 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 ri se to the level of a preponderance of the evidence, and the magnitude of the errors is less when t here is “relatively little evidence to support a guilty verdict to begin with (e.g., the uncorroborate d testimony of a single witness) . . . .” Id . (quotations marks and citation omitted). Defense counsel’s f ailure to introduce impeachment evidence may make a different result reasonably pro bable. 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 cre dibility was in this case, as di scussed above.-5- We are not definitely and firmly convinced that the trial cour t erred when it found that counsel’s error prejudiced Thom pson. The uncorroborated testim ony 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 imp ortance of impeachment evidence and demonstrates that had successor defense counsel ca lled Dr. Okla or another expert witness, a different result ma y have occurred on the remaining charges.

Our conclusion on this issue rende rs moot the remainder of Tho mpson’s issues on appeal.

We affirm.

/s/ Peter D. O’Connell /s/ Jane E. Markey /s/ Christopher M. Murray