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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DELMAR LEE TOTH, Defendant-Appellant.

UNPUBLISHED June 19, 2012

No. 304226 Lenawee Circuit Court LC No. 10-014725 - FC

Before: JANSEN, P.J., and CAVANAGH and HOEKSTRA, JJ. PER CURIAM. Defendant appeals as of right his bench trial convictions of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a), second-degree criminal sexual conduct, MCL 750.520c(1)(a), and attempted first-degree criminal sexual conduct, MCL 750.520b(1)(a). Defendant was sentenced to life imprisonment for each of the four convictions of first-degree criminal sexual conduct, 10 to 15 years' imprisonment for the second-degree criminal sexual conduct conviction, and 40 to 60 months' imprisonment for the attempted first-degree criminal sexual conduct conviction. For the reasons stated in this opinion, we affirm in part and remand for resentencing. Defendant's convictions are the result of criminal sexual conduct between defendant and the victim, who is his step-granddaughter. The victim testified to seven specific instances of sexual conduct with defendant. The sexual conduct first occurred when the victim was six years old. Defendant was alone with the victim in his basement when he brought the victim into an office and then into a closet where he removed her pants and performed oral sex on her by moving his tongue around her vagina. The second sexual encounter occurred when the victim was six years old and was driving a tractor with defendant outside of defendant's home. When they reached a swampy area behind defendant's house, defendant removed the victim's overalls and underwear and performed oral sex on the victim while she was on the ground. Defendant also touched the victim's breasts. The third instance of sexual conduct occurred in defendant's bedroom when the victim was six or seven years old. Defendant removed the victim's pants and performed oral sex on her, placing his tongue inside of her vagina. Defendant asked the victim to place her mouth on his penis, but the victim only spit on defendant's penis. Two more sexual encounters occurred in defendant's bedroom when the victim was approximately six or seven years old. Both times, defendant performed oral sex on the victim, placing his tongue around her vagina. -1-

The sixth sexual encounter occurred in defendant's car when the victim was approximately six or seven years old. Defendant and the victim were talking when defendant pulled down the victim's pants and underwear and performed oral sex on her, placing his tongue near her vagina. Defendant also touched the victim's breasts. The seventh sexual encounter occurred in a bedroom of defendant's house that the victim used when she was staying overnight. Defendant carried the victim to her bedroom, dropped her on the bed, pulled down her pants and underwear and performed oral sex on her. Defendant told the victim he wanted to teach her how to kiss and placed his lips against the victim's lips. Defendant told the victim that she was his favorite grandchild and that one day they would run away together to be married. Defendant also told the victim that if she said anything to her grandmother about the sexual encounters, her grandmother would be angry because the victim would be taking away her grandmother's boyfriend. The victim testified that defendant's statement scared her because she was scared her grandmother would be angry. The victim also testified that there were other instances of sexual conduct that occurred between her and defendant, but she did not remember those instances in detail. The victim did not talk about the sexual assault because defendant told her not to talk about it. The victim also did not report it because it was embarrassing and she did not want to talk about it. The victim wrote a story for an English class when she was in ninth grade titled "Kept Secret." The story detailed the sexual conduct between her and defendant. The victim's step-father found the story and confronted the victim, who admitted that the story was true. During defendant's trial, defendant's daughter testified that when she was about eight or nine years old she was sleeping in bed with defendant when he placed his hand under her underwear and touched her vagina. Defendant took his daughter's hand, placed it on his erect penis, and referred to himself as her boyfriend. After approximately 10 minutes, the sexual conduct ended when defendant's daughter told defendant that he was not her boyfriend. Defendant's daughter also testified that defendant would shower with her three year old sister. After the sexual encounter between her and defendant, defendant's daughter prevented defendant from showering or sleeping in the same bed with her sister. Defendant's daughter testified that she did not tell anyone about the sexual conduct between herself and defendant because there was no one to tell since her mother had left the family. Defendant's daughter admitted that she did not have a good relationship with defendant. Defendant elected to testify, and denied that any of the victim's allegations were true. Defendant was not asked about his daughter's allegations. The defendant's defendant's defendant's trial court found defendant guilty of first-degree criminal sexual conduct conduct with the victim in the basement, first-degree criminal sexual conduct conduct with the victim in the car, first-degree criminal sexual conduct conduct with the victim outside the house, first-degree criminal sexual conduct for for for for

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defendant's conduct with the victim in defendant's bedroom,1 second-degree criminal sexual conduct for touching the victim's breast,2 and attempted first-degree criminal sexual conduct for attempting to penetrate the victim's mouth with his penis. When sentencing defendant, the trial court departed from the sentencing guidelines. Defendant now appeals his convictions and sentences as of right. I. ADMISSION OF OTHER ACTS TESTIMONY Defendant argues that his daughter's testimony, admitted pursuant to MCL 768.27a,3 was improperly admitted at trial.4 "To preserve an evidentiary issue for review, a party opposing the admission of evidence must object" and "specify the same ground for objection that it asserts on appeal." People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Defendant never objected to the admission of the MCL 768.27a evidence and, thus, this issue is not preserved for appellate
1

The victim testified that defendant performed oral sex on her on three separate occasions in defendant's bedroom. The trial court did not specify which sexual encounter led to the conviction. The victim testified that defendant touched her breast outside and in defendant's car. The trial court did not specify which occasion led to the second-degree criminal sexual conduct conviction.
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MCL 768.27a provides: (1) Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a victim, evidence that the defendant committed another listed offense against a victim is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered. (2) As used in this section: (a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. (b) "Victim" means an individual less than 18 years of age.

We note that defendant also argues that we should hold his appeal in abeyance pending the Michigan Supreme Court's decision in People v Watkins, 489 Mich 863; 795 NW2d 147 (2011); however, we decline to do so. -3-

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review. An unpreserved claim is reviewed only for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999). Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial. Id. at 763. We will reverse only if "the error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Leshaj, 249 Mich App 417, 419; 641 NW2d 872 (2002). Defendant argues that the evidence was improperly admitted because MCL 768.27a requires that a defendant be convicted of a crime based on the evidence in order for testimony of that incident to be admitted at trial. "Where the language of the statute is unambiguous, the plain meaning reflects the Legislature's intent and this Court applies the statute as written. Judicial construction under such circumstances is not permitted." People v Schultz, 246 Mich App 695, 702-703; 635 NW2d 491 (2001). There is no statutory language included in MCL 768.27a that requires a conviction. Moreover, this Court has specifically stated that MCL 768.27a evidence is admissible "even if there was no conviction for the other crime." People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008). Accordingly, we reject defendant's claim that admission of his daughter's testimony was improper because he was never convicted of the described sexual conduct. Defendant also argues that the MCL 768.27a evidence regarding the sexual conduct between defendant and his daughter, who was eight or nine years old at the time, was prejudicial and should have been excluded. While all relevant evidence is inherently prejudicial, it is only unfairly prejudicial evidence that should be excluded under MRE 403. People v Wilson, 252 Mich App 390, 398; 652 NW2d 488 (2002). "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." People v Mardlin, 487 Mich 609, 627; 790 NW2d 607 (2010), citing People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). The evidence of the sexual conduct between defendant and his daughter had significant probative value in this case. The evidence illuminated defendant's propensity to commit criminal sexual conduct with young female children under his control. In Petri, 279 Mich App at 411, this Court held that evidence of "a defendant's propensity to commit criminal sexual behavior can be relevant and admissible" since it "demonstrate[s] the likelihood of the defendant committing criminal sexual behavior toward another victim." See also People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010) (evidence of the defendant's prior criminal sexual conduct was admissible under MCL 768.27a because it "made the likelihood of [the defendant's] behavior toward the victims at issue in this case more probable."). While prior case law has, at times, mandated the exclusion of propensity evidence, "our cases have never suggested that a defendant's criminal history and propensity for committing a particular type of crime is irrelevant to a similar charge." People v Pattison, 276 Mich App 613, 620; 741 NW2d 558 (2007). Also, defendant's prior criminal sexual conduct was probative of whether the victim in this case was providing truthful testimony. As this Court stated in Mann, 288 Mich App at 118, evidence of a defendant's prior criminal sexual conduct "was relevant because it tended to show that it was more probable than not that the two victims in this case were telling the truth when they indicated that [the defendant] had committed CSC offenses against them."

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As for the prejudicial effect of this evidence, while evidence of defendant's sexual conduct with his daughter may have been repugnant, the "danger the rule seeks to avoid is that of unfair prejudice, not prejudice that stems only from the abhorrent nature of the crime itself." People v Starr, 457 Mich 490, 500; 577 NW2d 673 (1998). Since defendant's daughter only testified about one instance of sexual conduct between herself and defendant that lasted for approximately 10 minutes, this evidence was not overwhelming or accompanied by significant explicit detail. Also, any risk of unfair prejudice was minimized because this was a bench trial, where a judge is presumed to have a greater understanding of the law and rule based on the law rather than emotion. People v Taylor, 245 Mich App 293, 305; 628 NW2d 55 (2001). Thus, defendant has failed to demonstrate that the significant "probative value" of this evidence was "substantially outweighed" by any potential prejudicial effect. Starr, 457 Mich at 499 (emphasis in original). II. JUDICIAL BIAS Defendant argues that the trial court judge's bias denied him a fair trial. In order to preserve the issue of judicial bias, a defendant must "raise [a] claim of judicial bias in the trial court." People v Jackson, 292 Mich App 583; 808 NW2d 541 (2011). Defendant offered no objection in the trial court on the basis of judicial bias. Thus, this issue is not preserved for appellate review. An unpreserved claim is reviewed only for plain error affecting substantial rights. Carines, 460 Mich at 764-765. Before the trial began, defendant requested that his bond conditions be modified to allow him contact with his grandchildren, other than the victim in this case. After filing this motion to modify bond, the prosecution filed its notice to introduce the MCL 768.27a evidence regarding defendant's sexual conduct with his daughter. The trial court judge denied defendant's request to modify the bond conditions, and instead increased defendant's bond from $5,000 for each count to $50,000 for each count, in part relying on the notice regarding admission of MCL 768.27a evidence and on the request that defendant be allowed to have contact with children. On appeal, defendant argues that the trial court judge's actions regarding his motion to modify bond demonstrate that the trial court was biased against him. This Court has recognized that "[c]omments critical of or hostile to counsel or the parties are ordinarily not supportive of finding bias or partiality." People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999). Moreover "[w]here a judge forms opinions during the course of the trial process on the basis of facts introduced or events that occur during the proceedings, such opinions do not constitute bias or partiality unless there is a deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible." Id. While the trial court judge significantly increased defendant's bond, there is no indication that the judge's decision was motivated by anything other than the facts of the case, particularly the new evidence regarding defendant's sexual conduct with his daughter. Moreover, nothing on the record indicates that the judge formed a deep-seated antagonism. The judge's statements implied only that the seriousness of the charges and the fact that defendant potentially molested other children in his family justified a more severe bond condition, and that under the circumstances his request to have contact with his other grandchildren was repugnant. -5-

Therefore, we conclude that defendant has failed to demonstrate plain error affecting his substantial rights in regard to the trial court judge's alleged bias. III. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant argues that defense counsel was ineffective for failing to object to his daughter's testimony about the alleged sexual conduct and for failing to move to disqualify the trial court judge on the basis of the judge's bias against him. In order to preserve the issue of ineffective assistance of counsel, a defendant must file a motion in the trial court for a new trial or for a hearing pursuant to People v Ginther, 390 Mich 436, 444; 212 NW2d 922 (1973). People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). Defendant did not file a motion for a new trial or a Ginther hearing. Thus, this issue is not preserved for appellate review. When reviewing a claim of ineffective assistance of counsel that has not been preserved for appellate review, our review is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). In order to establish a claim for ineffective assistance of counsel, a defendant must first demonstrate that "counsel's representation fell below an objective standard of reasonableness," which requires a showing "that counsel's performance was deficient." Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant then must demonstrate that "the deficient performance prejudiced the defense," which "requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. at 687. The Court has held that this second prong can be understood as asking whether "there was a reasonable probability that the outcome of the trial would have been different had defense counsel" adequately performed. People v Grant, 470 Mich 477, 496; 684 NW2d 686 (2004). Defendant argues that defense counsel's failure to object to the MCL 768.27a evidence constituted ineffective assistance of counsel. Because the evidence of defendant's conduct with his daughter was properly admitted pursuant to MCL 768.27a, as discussed supra, any objection by defense counsel would have been futile. This Court has repeatedly held that defense counsel is not obligated to raise futile objections and will not be deemed ineffective for failing to do so. See, e.g., People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003); People v Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002). Accordingly, we conclude that defendant has failed to meet the burden of establishing defense counsel was ineffective. Defendant also argues that defense counsel was ineffective for failing to move for dismissal of the trial court judge on the grounds of bias. As discussed supra, there is no evidence that the trial court judge was biased. Hence, any objection would have been futile, and trial counsel is not obligated to raise futile objections and will not be deemed ineffective for failing to do so. Id. Therefore, defendant has not demonstrated that he was provided ineffective assistance of counsel. IV. BASIS OF VERDICT -6-

Defendant argues that he is entitled to a new trial because the trial court improperly based its verdict, in part, on defendant's right to remain silent. A trial court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. People v Lanzo Const Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). A finding of fact is clearly erroneous when this Court is left with "a definite and firm conviction that a mistake was made." People v Brown, 279 Mich App 116, 127; 755 NW2d 664 (2008). MCR 2.517(A)(1) states that "[i]n actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specifally, state separately its conclusions of law, and direct entry of the appropriate judgment." As for a defendant's right to remain silent, a defendant's "post-arrest, post-Miranda silence may not be used substantively" because "there is no way to know after the fact whether [the silence] was due to the exercise of constitutional rights or to guilty knowledge." People v Shafier, 483 Mich 205, 214; 768 NW2d 305 (2009). Before making its findings of fact and conclusions of law, the trial court summarized the trial testimony, stating that defendant "gave no testimony as to whether or not his daughter's testimony was truthful." The trial court was merely summarizing the events of trial, not making a finding of fact or conclusion of law. A finding of fact involves a determination by a judge regarding disputed facts. Black's Law Dictionary (9th ed). When stating that defendant did not indicate whether his daughter was providing truthful testimony, the trial court was merely stating an undisputed fact, not making a determination based on conflicting facts. Moreover, a conclusion of law is a legal inference drawn from factual showings. Black's Law Dictionary (9th ed). Nothing in the trial court's statement amounts to a legal conclusion, as the trial court made no reference to any type of legal meaning of defendant's failure to indicate whether his daughter was providing truthful testimony. After summarizing the trial testimony, the trial court then made its findings of fact, stating that in its observations of the witnesses who testified, the victim in this case and defendant's daughter, were providing truthful testimony. Hence, the trial court specifically based its findings of fact on its observations of the victim's and the daughter's testimony, with no mention of defendant's silence. The trial court then stated its conclusions of law, namely, that defendant was guilty beyond a reasonable doubt of first-degree criminal sexual conduct, seconddegree criminal sexual conduct, and attempted first-degree criminal sexual conduct. Again, the trial court made no reference to defendant's silence. Thus, there is no evidence that the trial court based its verdict on defendant's right to remain silent. V. SENTENCING ISSUES Defendant argues that the trial court improperly scored Offense Variable (OV) 7, OV 10, and OV 12. Defendant also argues that the trial court's departure from the guidelines was unjustified. Accordingly, defendant maintains that he is entitled to resentencing. A. SCORING ISSUES We review preserved scoring issues "to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score." -7-

People v Waclawski, 286 Mich App 634, 680; 780 NW2d 321 (2009) (quotation and citation omitted). Defendant preserved his challenges to the scoring of OVs 7, 10, and 12 by objecting during sentencing. The application of the statutory sentencing guidelines is reviewed de novo. Id. Generally, scoring decisions for which there is any evidence in support will be upheld. Id. Pursuant to MCL 769.34(2), the sentencing guidelines in effect at the time of the offense govern sentencing calculations.5 1. OV 7 OV 7 is scored for aggravated physical abuse. MCL 777.37. At the time of the offense in this case, a score of 50 points for OV 7, aggravated physical abuse, was justified if "[a] victim was treated with terrorism, sadism, torture, or excessive brutality." MCL 777.37(1)(a). Otherwise, OV 7 is scored at zero points. MCL 777.37(1)(b). Terrorism was defined by the statute at that time as "conduct designed to substantially increase the fear and anxiety a victim suffers during the offense." MCL 777.37(2)(a). The trial court assessed 50 points for OV 7 based upon the victim's testimony that defendant told her not to tell her grandmother about the sexual conduct between them and that her grandmother would be angry because the victim "would be taking away [her grandmother's] boyfriend." The victim testified that she was scared her grandmother would be angry. The trial court explained that defendant's comment justified terrorism because it was "obviously done to increase the fear and anxiety that the victim suffered as well as to cover up the offense of the victim."

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At the time of the offense MCL 777.37 provided: (1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: "(a) A victim was treated with terrorism, sadism, torture, or excessive brutality . . . 50 points "(b) No victim was treated with terrorism, sadism, torture, or excessive brutality . . . 0 points "(2) As used in this section: "(a) `Terrorism' means conduct designed to substantially increase the fear and anxiety a victim suffers during the offense. "(b) `Sadism' means conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender's gratification."

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On appeal, defendant argues that the trial court's scoring of OV 7 at 50 points was error because defendant's conduct did not rise to the level of terrorism and defendant's conduct did not occur during the actual criminal sexual conduct. In People v Hunt, 290 Mich App 317, 324-325; 810 NW2d 588 (2010), this Court summarized several cases where a score of 50 points for OV 7 was upheld. The facts of the cases summarized demonstrate the type of conduct that is "designed to substantially increase" the fear and anxiety the victim experiences during the offense. MCL 777.37(1). In Hunt, 290 Mich App at 324-325, this Court stated: In People v Wilson, 265 Mich App 386, 396

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