PEOPLE OF MI V REGINALD EUGENE TURNER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellee,
v
No. 247599
Wayne Circuit Court
LC No. 02-012504-01
REGINALD EUGENE TURNER,
Defendant-Appellant.
ON RECONSIDERATION
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of two counts of criminal sexual conduct in
the first degree (CSC I), the victim being under thirteen years of age, MCL 750.520b(1)(a), and
one count of criminal sexual conduct in the second degree (CSC II), the victim being under
thirteen years of age, MCL 750.520c(1)(a), entered after a jury trial. We previously affirmed
defendant’s convictions. People v Turner, unpublished memorandum opinion of the Court of
Appeals, issued September 30, 2004 (Docket No. 247599). Defendant subsequently moved for
rehearing, and we granted the motion and vacated our previous opinion. On reconsideration, we
affirm.
Complainant, who was seven years old at the time of trial, testified that when she was
five and six years old, defendant, her father, placed his penis in her mouth, penetrated her vagina
with his tongue, and touched her vagina over her clothing. Complainant’s mother testified that
she and defendant did not argue and that she never observed defendant act inappropriately with
complainant.
Defendant argues that trial counsel rendered ineffective assistance by failing to present
certain protective services records he asserts would have shown that complainant’s mother
complained about his behavior, and might have shown that complainant was sexually abused by
other children. We disagree.
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Counsel must have made errors so serious that he was not performing as the “counsel”
guaranteed by the federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20;
People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Counsel’s deficient performance
must have resulted in prejudice. To demonstrate the existence of prejudice, a defendant must
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show a reasonable probability that but for counsel’s error, the result of the proceedings would
have been different. Id., 600. The defendant bears the burden of proving that counsel rendered
ineffective assistance. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999); see also
People v Grant, 470 Mich 477; 684 NW2d 686 (2004).
Because defendant did not request a new trial or an evidentiary hearing, our review is
limited to mistakes apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002). Reviewing defendant’s assertions regarding the contents of the protective
services records, we hold that because defendant failed to produce any evidence to establish that
the records contain any relevant information, any decision trial counsel made regarding the
records was trial strategy. Defendant has also failed to demonstrate that had the records been
introduced into evidence, they would have produced a different result. Given the lack of relevant
information concerning the records and the overwhelming evidence of defendant’s guilt, we
reject defendant’s claim of error in this regard.
In his Standard 11 brief, defendant raises two arguments regarding the dates of the
offenses in the information. Defendant first argues that the dates of the offenses were not stated
with sufficient specificity in the information under MCL 767.45(1)(b) and MCL 767.51 and that
the trial court erred in denying defendant’s motion to require plaintiff to provide specific dates in
the information. We disagree. The trial court’s determination regarding the degree of specificity
required in the information regarding the time of the offense will not be reversed absent an abuse
of discretion. People v Naugle, 152 Mich App 227, 233; 393 NW2d 592 (1986).
An information need only state “[t]he time of the offense as near as may be.” MCL
767.45(1)(b). However, “the court may on motion require the prosecution to state the time or
identify the occasion as nearly as the circumstances will permit, to enable the accused to meet
the charge.” MCL 767.51. The trial court should consider the following non-exclusive factors in
determining whether the time of the offense is sufficiently specific in the information: “(1) the
nature of the crime charged; (2) the victim’s ability to specify a date; (3) the prosecutor’s efforts
to pinpoint a date; and (4) the prejudice to the defendant in preparing a defense.” Naugle, supra,
233-234.
Defendant incorrectly asserts in his Standard 11 brief that the amended information did
not contain the dates the offenses allegedly occurred. In fact, the amended information listed the
date of the CSC I offense as “2000” and the date of the CSC II offense as “2001.” In addition,
the caption in the information lists the date of the offense as “07/04/2002.” Neither MCL
767.45(1)(b) nor MCL 767.51 require the specification of an exact date of the offense in the
information. See id., 234 n 2. Moreover, temporal variances are not fatal “unless time is of the
essence of the offense.” MCL 767.45(1)(b); People v Stricklin, 162 Mich App 623, 634; 413
NW2d 457 (1987). Time is not of the essence nor a material element in a criminal sexual
conduct case when the victim is a child. Stricklin, supra, 634.
We find that given the circumstances in this case, the trial court did not abuse its
discretion in not requiring more specificity in the information regarding the dates of the offenses.
The victim was five and six years old when defendant abused her. “[C]hildren who are victims
of ongoing sexual assaults have difficulty remembering the exact dates of the individual
assaults.” Naugle, supra, 235. The child’s inability to remember the exact dates in turn renders
it difficult for the prosecutor to specify a date in the information. We are not persuaded by
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defendant’s contention that the lack of a specific date precluded an alibi defense. Neither MCL
767.45(1)(b) nor MCL 767.51 require the specification of an exact date of the offense in the
information. See Naugle, supra, 234 n 2. Moreover, under the circumstances, offering an alibi
for an extended period of time would have been a futile gesture. See id., 234-235. Under the
facts of this case, the offense dates in the information were identified “as nearly as the
circumstances [would] permit.” MCL 767.51. The trial court did not abuse its discretion in
holding that the information was sufficiently specific.
We also reject defendant’s contention that the prosecutor abused its discretion in charging
defendant because the information alleges that defendant committed an offense against the
victim on July 4, 2002, and defendant was incarcerated at that time. As we previously observed,
temporal variances in the information are not fatal unless time is of the essence, MCL
767.45(1)(b), and time is not of the essence in a criminal sexual conduct case when the victim is
a child. Stricklin, supra, 634. Moreover, the prosecutor has broad charging discretion to bring
any charges that are supported by the evidence. People v Nichols, 262 Mich App 408, 415; 686
NW2d 502 (2004). Even if defendant was incarcerated on one of the dates the information
alleged that he committed an offense, the evidence supported the charges. We therefore find no
merit to defendant’s contention that the prosecutor abused its discretion in charging defendant.
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
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