PEOPLE OF MI V CHRISTOPHER GLENN SMITH-GOUIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellee,
v
No. 290489
Delta Circuit Court
LC No. 08-007973-FH
CHRISTOPHER GLENN SMITH-GOUIN,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Hoekstra and Whitbeck, JJ.
PER CURIAM.
Defendant Christopher Glenn Smith-Gouin appeals by right his conviction and sentence
for criminal sexual conduct in the third degree.1 We affirm.
I. Basic Facts And Procedural History
According to the 14-year-old complainant, Smith-Gouin sexually assaulted her at his
father’s house while the two were in the basement of the home, ostensibly waiting for open swim
to begin at the YMCA. The complainant testified that Smith-Gouin first kissed her, rubbed her
over her clothing, and finally penetrated her vagina despite her continued resistance. According
to the complainant, Smith-Gouin was not wearing a condom and ejaculated on her leg. The
complainant said that Smith-Gouin was going to have sex with her again, but stopped when his
father called from upstairs to tell him that someone had arrived. The complainant testified that
she was afraid to call for help because she was unsure how Smith-Gouin’s father would react.
She later left the home with Smith-Gouin and went with him to Wal-Mart and the YMCA where
they swam, sat in the sauna, and used the hot tub. Thereafter, according to the complainant,
Smith-Gouin took her home, where she showered and went to bed.
The complainant testified that she did not tell either her parents or her step-parents what
had happened because she did not know how they would react. However, she claimed that she
told one of her friends the next day that she had had sex with “someone that was overage.” She
also testified that she subsequently called complainant a number of times, intending to tell him
1
MCL 750.520d.
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that she did not want to talk to him anymore. However, according to the complainant, she
“chickened out” and simply exchanged small talk with him. She testified that she later explained
what had happened to a teacher, apparently after rumors began to circulate that she was pregnant
and she had an outburst in school. However, the complainant admitted that she subsequently
denied that anything had happened between her and Smith-Gouin when the guidance counselor
asked her. She also testified that she talked about the incident with her step-sister on the phone
while babysitting and began crying and related the incident to the couple when they arrived
home. She testified that she later told one of Smith-Gouin’s friends in an e-mail that SmithGouin had raped her.
At trial, Smith-Gouin admitted that he was with complainant on that day, but denied
having sex with her.
II. Ineffective Assistance Of Counsel
A. Standard Of Review
Smith-Gouin argues that trial counsel rendered ineffective assistance by failing to object
to the introduction of the complainant’s testimony that she informed others that he had sex with
her. Smith-Gouin contends that this was inadmissible hearsay and was highly prejudicial to his
defense because the case came down to a credibility contest. Because no Ginther2 hearing was
held, our review of Smith-Gouin’s claim is limited to mistakes apparent on the record.3
B. Legal Standards
Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. In order to overcome this presumption,
defendant must first show that counsel’s performance was deficient as measured
against an objective standard of reasonableness under the circumstances and
according to prevailing professional norms. Second, defendant must show that
the deficiency was so prejudicial that he was deprived of a fair trial such that there
is a reasonable probability that but for counsel’s unprofessional errors the trial
outcome would have been different.[4]
C. Applying The Standards
We conclude that Smith-Gouin cannot show that his counsel rendered ineffective
assistance. Even if, as Smith-Gouin argues, the statements would not have been admitted under
MRE 801(d)(1)(B) had counsel objected, counsel chose to utilize the complainant’s previous
statements, and the incompatibilities in her actions after the alleged attack, to discredit her. This
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
3
People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).
4
People v Solmonson, 261 Mich App 657, 663-664; 683 NW2d 761 (2004) (internal citations
omitted).
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was obviously a matter of trial strategy. Counsel used the statements in closing argument to
paint the complainant as a young girl who was attracted to Smith-Gouin and, lying, bragged
about having sex with him to initially gain attention from her friends. Counsel argued that, when
the attempt backfired and the complainant was faced with negative attention, she tried to tell the
truth that nothing had occurred, but had to continue lying about the encounter once the police
became involved. Counsel also pointed out the inconsistency of the complainant’s bragging
about sex with her claim of forcible rape. Counsel used the fact that the complainant’s teacher
and counselor did not take further action after the complainant made her denial to the counselor
to argue that, not only did Smith-Gouin not attack the complainant, he did not have sex with her
at all.
Given the record, we agree with the prosecutor’s assertion that defense counsel decided
to use the inconsistent statements, even those unfavorable to Smith-Gouin, to undermine the
complainant’s credibility. We will not second-guess matters of trial strategy on appeal, even if
the strategy is ultimately unsuccessful.5
III. Sentencing
A. Standards Of Review
Smith-Gouin argues that the trial court erred when it scored his prior record variables
(PRV), presumably PRV 2, 3, and 5, using his 1997 juvenile convictions, because he was not
afforded counsel during those proceedings. While Smith-Gouin acknowledges that his mother
signed a waiver of counsel form on his behalf, he argues that the trial court erred when it refused
to hold a Tucker6 hearing where he raised a question regarding the validity of the waiver. We
review for clear error the sentencing court’s findings of fact; however, we review de novo
questions of law.7
B. Legal Standards
The federal and state Constitutions guarantee a criminal defendant the right to the
assistance of counsel.8 Earlier convictions obtained in violation of this right may not be used to
enhance a criminal sentence.9 However, “a defendant who collaterally challenges an antecedent
conviction allegedly procured in violation of Gideon[ v Wainwright,10] bears the initial burden of
5
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004); People v Kevorkian, 248
Mich App 373, 414-415; 639 NW2d 291 (2001).
6
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
7
People v Alexander, 234 Mich App 665, 670; 599 NW2d 749 (1999).
8
US Const, Ams VI and XIV; Const 1963, art 1, § 20.
9
Tucker, 404 US at 449.
10
Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).
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establishing that the conviction was obtained without counsel or without a proper waiver of
counsel.”11
C. Applying The Standards
Smith-Gouin’s presentence investigation report (PSIR) reflects that as a juvenile he was
adjudicated on charges of second-degree home invasion, breaking and entering a building, and
malicious destruction of property over $100. The Delta County Probate Court Judge ordered
him placed on “[p]robation for [an] indefinite amount of time,” to pay a crime victim’s rights fee,
to write an apology letter, to have no contact with an apparent victim in the case, to be under
adult control at all times, and to attend counseling. Given this, Smith-Gouin cannot show that he
was denied his constitutional right to counsel in this earlier proceeding. Where a juvenile
adjudication does not result in incarceration, there is no deprivation of the constitutional right to
counsel.12 We find that the trial court’s decision not to hold a Tucker hearing was correct and
that the trial court did not err when it used Smith-Gouin’s prior juvenile adjudication in scoring
his guidelines.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
11
People v Carpentier, 446 Mich 19, 31; 521 NW2d 195 (1994).
12
Alexander, 234 Mich App at 671, citing People v Daoust, 228 Mich App 1, 19; 577 NW2d 179
(1998), overruled in part on other grds in People v Miller, 482 Mich 540, 561; 759 NW2d 850
(2008).
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