PEOPLE OF MI V CRAIG GEORGE COLEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 28, 1998
Clinton Circuit Court
LC No. 95-005949 FH
CRAIG GEORGE COLE,
Before: Doctoroff, P.J., and Fitzgerald and Talbot, JJ.
Defendant appeals by right from his conviction by jury of second-degree criminal sexual
conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), stemming from defendant’s actions toward his
girlfriend’s daughter. He was sentenced to six to fifteen years in prison. We affirm.
Defendant first argues that the trial court committed error requiring reversal in allowing testimony
regarding defendant's allegedly sexual touching of the victim's sister. Use of prior acts or conduct as
evidence of a defendant’s character must be excluded, except as allowed by MRE 404(b), to avoid the
danger of conviction based on a defendant’s history of misconduct. People v Golochowicz, 413 Mich
298, 308; 319 NW2d 518 (1982). To be admissible under MRE 404(b), bad acts evidence must
satisfy four requirements: (1) there must be some evidence that the defendant actually perpetrated the
bad act sought to be introduced; (2) it must be offered for a proper purpose; (3) it must be relevant;
and (4) its probative value must not be substantially outweighed by its potential for unfair prejudice. Id.
at 309. A proper purpose is one other than establishing the defendant’s character to show his
propensity to commit the offense. People v VanderVliet, 444 Mich 52, 74; 508 NW 2d 338 (1993),
modified 445 Mich 1205 (1994).
The prosecution offered the victim’s sister's testimony for the proper purpose of showing the
state of mind or intent of defendant. MRE 404(b); VanderVliet, supra at 74. Defendant’s main theory
of defense was that he was sleeping at the time he touched the victim. The testimony of her sister was
that defendant had touched her in a similar manner. Although prejudicial, this testimony was highly
probative with respect to the question of whether defendant had “accidentally” touched the victim or
had done so with criminal intent. After looking at the testimony and the theories of the defense and the
prosecution, we conclude that the trial court did not abuse its discretion in deciding to admit the victim’s
sister's testimony concerning defendant’s previous actions. People v Bahoda, 448 Mich 261, 290;
531 NW2d 659 (1995).
Defendant next argues that he was denied the effective assistance of counsel when his trial
counsel failed to object to the victim’s sister's testimony based on MRE 403. We disagree. The record
indicates that, measured against an objective standard of reasonableness and without the benefit of
hindsight, defendant’s counsel did properly object to this testimony. People v LaVearn, 448 Mich
207, 216; 528 NW2d 523 (1995). Although counsel did not expressly mention MRE 403, he did
argue that the evidence was more prejudicial than probative. While counsel may not have objected as
eloquently as defendant would have liked, defendant's evaluation of his counsel’s performance with the
benefit of hindsight is irrelevant. People v Mitchell, 454 Mich 145, 151 n 6, 167; 560 NW2d 600
Defendant next argues that his trial counsel failed to properly object to hearsay evidence
regarding the victim's statements to her sister, her mother and a detective. He maintains that this also
constituted ineffective assistance of counsel. We disagree. Defendant's counsel questioned the victim
and these witnesses at length, trying to develop the fact that the victim had made statements that were
inconsistent with each other. Defendant’s attorney used the inconsistencies in these statements when
presenting his closing argument to imply that the victim was lying, either in court or before when she
made the statements to the others. Just because these trial tactics did not succeed does not mean that
counsel's actions constituted ineffective assistance of counsel. People v Stewart (On Remand), 219
Mich App 38, 42; 555 NW2d 715 (1996).
Finally, defendant argues that the trial court should have reduced defendant’s sentence based on
defendant’s record as a veteran, and that the court improperly failed to take into account his veteran
and employment status when deciding defendant’s sentence. However, since the sentence imposed by
the trial court fell within the sentencing guidelines and defendant has not presented facts that would
constitute unusual circumstances to overcome the presumption of proportionality, People v Daniel, 207
Mich App 47, 54; 523 NW2d 830 (1994), we find the sentence to be valid.
/s/ Martin M. Doctoroff
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot