People v. Myers

• Docket Number: 363528
• Decision Date: 30 May 2024
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEAN TERRY MYERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEAN TERRY MYERS, Defendant-Appellant.

No. 363528

Court of Appeals of Michigan

May 30, 2024

UNPUBLISHED

Barry Circuit Court LCNo. 2021-000800-FC

Before: YATES, P.J., and CAVANAGH and BOONSTRA, JJ.

PER CURIAM.

Defendant was convicted after a jury trial of one count of assault with intent to commit criminal sexual conduct involving sexual penetration (AWI to commit sexual penetration), MCL 750.520g(1), and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e.^[1]The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12 to serve 240 to 480 months' imprisonment for his conviction of AWI to commit sexual penetration, and 60 to 180 months' imprisonment for the CSC-IV conviction.Defendant now appeals by right, arguing that defense counsel provided ineffective assistance of counsel by not presenting witnesses at trial to testify about the possible closure of the park at the time of the assault and for not objecting to the prosecution's expert's vouching testimony that was plainly erroneous.Defendant also argues that the cumulative effect of these errors warrants reversal of his convictions and a new trial.Additionally, defendant argues that his departure sentence was based on acquitted conduct and was disproportionate to the crime.For the reasons set forth in this opinion, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of defendant's sexual assault of the victim sometime in the winter of 2018 or early 2019.Defendant was a friend of the victim's mother and frequently came to their house to smoke methamphetamine.One morning in the winter of 2018 or early 2019, defendant drove the victim to school after she woke up late and missed the school bus.The victim testified that defendant first took her to McDonald's to have breakfast and then to Fish Hatchery Park in Hastings, Michigan, where he parked the vehicle, moved toward her, and grabbed her.She testified that defendant put his finger inside her pants and then placed his fingers inside of her.She testified that defendant told her to "shut up" and grabbed her throat.She testified that she was pushing and kicking defendant away as the assault continued for about one minute.She testified that when defendant stopped, he"said if I ever told anybody he'd kill my mom and make me watch and he'd finish the job."The victim testified that defendant dropped her off at school afterward at about 10:00 a.m.

The victim reported the incident to police in May 2021 with the help of a school counselor.Defendant was interviewed by detectives in June 2021 and denied assaulting the victim, although he acknowledged that he took her to school that day.Defendant was arrested shortly afterward.After a jury trial in June 2022, defendant was found guilty of AWI to commit sexual penetration and CSC-IV, but acquitted of CSC-I.Defendant moved for a new trial, arguing that defense counsel was ineffective and requesting an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 922(1973).The trial court held a hearing and ultimately denied defendant's motion.Defendant now appeals.

II.INEFFECTIVE ASSISTANCE OF COUNSEL IN INVESTIGATING AND PRESENTING WITNESSES

Defendant argues that defense counsel was ineffective because she did not explore the possibility that Fish Hatchery Park likely would have been closed at the time of the assault by presenting witnesses at trial, which would have cast reasonable doubt on the victim's testimony.We disagree.

"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law."People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246(2002).If the trial court has held a Ginther hearing, the trial court"first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel."Id.We review the trial court's factual findings for clear error.People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136(2012).A trial court's finding "is clearly erroneous when, although there is evidence to support it, the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made."People v Dendel, 481 Mich. 114, 130; 748 N.W.2d 859, amended481 Mich. 1201(2008)(quotation marks and citation omitted).

In People v Armstrong, 490 Mich. 281, 289-290; 806 N.W.2d 676(2011), the Michigan Supreme Court stated:

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel.First, the defendant must show that counsel's performance fell below an objective standard of reasonableness.In doing so, the defendant must overcome the strong presumption that counsel's assistance constituted sound trial strategy.Second, the defendant must show that, but for counsel's deficient performance, a different result would have been reasonably probable.

"Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."Trakhtenberg, 493 Mich. at 52(quotation marks and citation omitted).Decisions "regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy," which we"will not second-guess with the benefit of hindsight."People v Dixon, 263 Mich.App. 393, 398; 688 N.W.2d 308(2004)(quotation marks and citation omitted).

Here, both the victim and her mother testified that they could not remember the exact date of defendant's assault.The victim's attendance records showed that she was tardy for four days between November and December 2018, but she arrived before 8:55 a.m. on each of those days.Her attendance records showed one three-hour absence the morning of January 9, 2019.The victim testified that when she and defendant arrived at Fish Hatchery Park, it was about 9:00 a.m., and the park was empty.Detective Sergeant Karen Larson testified that after the winter of 2018, Spectrum Health bought Pennock Hospital, located across the street from the park, and "worked with the city to open Fish Hatchery Park during the wintertime, so the employees could park" there; before that, the park was always closed in the wintertime, and it was not unusual for the park to be empty.The victim testified that the park was completely empty when defendant drove her there.During closing argument, defense counsel mentioned this testimony and stated that there was "a possibility that the park wasn't even open in 2018.That it was still closed as [it] was traditionally."

After his trial and sentencing, defendant moved for a new trial.Defendant attached to his motion a copy of the Hastings City Council meeting on January 14, 2019, which showed that the city was still tentatively working toward an arrangement to lease the Fish Hatchery Lot parking lot to Spectrum Health.This demonstrated that regardless of whether the assault took place in the winter of 2018 or in early January 2019, the parking lot was not open to hospital employees until afterward.

During defendant's evidentiary hearing, defense counsel testified that she was aware that the driveway in the Fish Hatchery Park was traditionally closed in the winter because she conducted a proper investigation and called the city.However, she discovered that the park was not inaccessible while it was closed because the gate was only secured with a bungee cord that was not locked.Therefore, as a matter of trial strategy, she decided not to call any witnesses at trial to testify about the matter, as to not call attention to the fact that the gate was easily accessible.Other witnesses at the evidentiary hearing testified that there were city employees who would undo the bungee cord and drive in, and then lock it back up on their way out.They testified that it was "absolutely possible" that the gate was left open in December 2018 or January 2019 if someone was working in the park, and they confirmed that there was never a lock on the gate.A police officer who frequently entered the park in the winter testified that he sometimes forgot to secure the gate back with the bungee cord when he left.

After the testimonies were complete, the trial court stated that

what you [appellate counsel] presented here today, didn't convince me more likely that the park was closed....After I heard all the testimony, I thought huh, pretty easy to get in and out of the park.Park is opened occasionally in the winter, I'm sure if the gate's open, people go in there . . . you didn't convince me more, then not, today.From my perspective.If I were a juror, I wouldn't have felt more sure that [defendant] could not, did not get into the park.

The trial court ultimately denied defendant's motion, stating that it did not find defense counsel ineffective because it was reasonable trial strategy for her to decide not to explore the closure of the park further since the prosecution could have called forward a witness like the police officer to testify that it was easy to open the park gate and that he forgot to close it at times.The trial court also stated that the

weight of the prejudice in this case is miniscule in my mind, if existent at all . . . there was so much other stuff in this case that corroborated what happened.The additional testimony, I don't think would've strengthened the defendant's case at all.In fact, I found it to have potentially weakened the defendant's case.

The trial court's findings were not erroneous.SeeTrakhtenberg, 493 Mich. at 47.The trial court stated that defense counsel's performance did not fall below an...