PEOPLE OF MI V HANK OLIVER BAILEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 5, 2011
Plaintiff-Appellee,
v
No. 293730
Ionia Circuit Court
LC No. 08-14203-FH
HANK OLIVER BAILEY,
Defendant-Appellant,
Before: SAWYER, P.J., and WHITBECK and WILDER, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions of four counts of second-degree
criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (victim under age 13). Defendant was
sentenced to serve 60 to 180 months in prison for all four counts. We affirm defendant’s
convictions and sentences, but remand for entry of a corrected judgment of sentence.
Defendant was convicted of sexually assaulting two minor females, who are the
grandchildren of his then girlfriend (now wife). Defendant claims on appeal that he was denied a
fair trial because of allegedly improper vouching made by the prosecutor during her closing
argument. After reviewing defendant’s unpreserved claim of prosecutorial misconduct, we find
no plain error. People v Pipes, 475 Mich 267, 279; 715 NW2d 290 (2006).
A prosecutor generally may not “vouch for the credibility of his witnesses to the effect
that he has some special knowledge concerning a witness’ truthfulness.” People v Bahoda, 448
Mich 261, 276; 531 NW2d 659 (1995). In none of the cited instances did the prosecutor imply
such knowledge. The first instance constitutes a legitimate assertion that the prosecutor had met
the burden of proof, and three other instances are arguments by the prosecutor that, based on the
facts, several prosecution witnesses were credible and worthy of belief. People v Unger, 278
Mich App 210, 240; 749 NW2d 272 (2008). A prosecutor may “comment on his own witnesses’
credibility during closing argument, especially when there is conflicting evidence and the
question of the defendant’s guilt depends on which witnesses the jury believes.” People v
Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). The last instance is merely a proper
assertion “that the evidence establishes defendant’s guilt.” People v Swartz, 171 Mich App 364,
370; 429 NW2d 905 (1988).
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Defendant also argues that the trial court abused its discretion and denied his right to
present a defense by denying his request to visually demonstrate the position of defendant, his
wife, and the victims while riding in a truck in which both victims testified they were sexual
touched. However, the proposed demonstration did not fairly illustrate the circumstances.
Defense counsel intended to measure out the length of the truck seat on a courtroom bench and
sit between defendant and his wife in the measured space. While exact similarity of conditions is
not required, Lopez v GMC, 224 Mich App 618, 627-628; 569 NW2d 861 (1997), defense
counsel did not argue that his body size was comparable to the eight and nine-year-old victims,
and a difference in size between defense counsel and the victims is a significant matter that could
impact the fairness of the comparison. Therefore, the trial court did not abuse its discretion by
denying this request for a demonstration. People v Bulmer, 256 Mich App 33, 34; 662 NW2d
117 (2003). Further, defendant was not denied the right to present a defense as he had ample
opportunity to present his own version of events occurring in the truck and to directly challenge
the credibility of the victims. See People v Kurr, 253 Mich App 317, 327; 654 NW2d 651
(2002).
Next, defendant argues that the trial court should have denied the prosecutor’s request to
admit evidence of defendant’s alleged prior acts under MRE 403 and MCL 768.27a. MCL
768.27a provides an exception to MRE 404(b)’s exclusion of propensity evidence with respect to
certain offenses, including CSC II, by recognizing its potential relevance in those circumstances.
As with all relevant evidence, however, it “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403; see People v Pattison, 276 Mich App 613, 621; 741 NW2d 558 (2007).
Defendant observes, and the record demonstrates, that there were some differences between the
other acts described and the acts for which he was on trial. However, there were many
similarities including the ages of the victims (under 13) and the fact that defendant touched them
by placing his hand on their bottoms and chests. All of the incidents, charged and uncharged,
involved repeated touchings over the course of a day (sometimes in the presence of defendant’s
wife) during the same week. Because the other acts were admissible under MCL 768.27a and
were not unduly prejudicial, we conclude that the trial court did not abuse its discretion by
admitting this evidence.
Defendant also argues that his convictions are not supported by sufficient credible
evidence. MCL 750.520c(1)(a) provides as follows:
(1) A person is guilty of criminal sexual conduct in the second degree if
the person engages in sexual contact with another person and if any of the
following circumstances exists:
(a) That other person is under 13 years of age.
“Sexual contact” is defined to include
the intentional touching of the victim’s or actor’s intimate parts or the intentional
touching of the clothing covering the immediate area of the victim’s or actor’s
intimate parts, if that intentional touching can reasonably be construed as being
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for the purpose of sexual arousal or gratification, done for a sexual purpose, or in
a sexual manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger. [MCL 750.520a(q).]
Defendant asserts that the prosecutor did not submit evidence to prove that the touching
was done for a sexual purpose. In People v Piper, 223 Mich App 642, 647; 567 NW2d 483
(1997), this Court stated that “[t]he statute’s language is clear and its inclusion of a reasonable
person standard provides a structure to guide the jury’s determination of the purpose of the
contact.” In the instant case, the victims testified that defendant intentionally and repeatedly
touched their buttocks and breasts. There was no evidence that such touching was done for a
legitimate purpose. Therefore, it was not unreasonable for the jury to conclude that defendant
had touched the victims for a sexual purpose. In addition, defendant’s argument concerning the
credibility of the victims’ testimony is not persuasive, as this Court defers to the credibility
determinations of the trier of fact. People v Avant, 235 Mich App 499, 506; 597 NW2d 864
(1999).1
Defendant also asserts that he was denied a fair trial due to the ineffective assistance of
counsel. Defendant bears a heavy burden to show that his attorney’s conduct fell below an
objective standard of reasonableness, which prejudiced defendant as a result. People v McGraw,
484 Mich 120, 142; 771 NW2d 655 (2009), citing Strickland v Washington, 466 US 668; 104 S
Ct 2052; 80 L Ed 2d 674 (1984). To establish prejudice, defendant must show that but for his
attorney’s error, the result of the proceeding would have been different. Id. Defendant must
overcome a strong presumption that his attorney’s performance constituted sound trial strategy.
Id.
First, defendant argues that his attorney was ineffective for failing to object to the alleged
instances of prosecutorial misconduct. As we concluded earlier in this opinion, defendant failed
to establish any plain error with respect to the prosecutor’s conduct. A defense attorney cannot
be faulted for failing to raise a futile objection. People v Gist, 188 Mich App 610, 613; 470
NW2d 475 (1991).
Second, defendant argues that his attorney failed to object to the prosecutor’s
examination of two witnesses regarding the reluctance to testify of the wife of the defendant
during the preliminary examination for a separate case against defendant. Even if it was
improper, as defendant claims, for his attorney to fail to object to the prosecutor’s references to a
preliminary examination that was not at issue in this case, defendant fails to establish prejudice
1
Defendant’s unpreserved great weight argument is premised entirely on the discussion
advanced in support of his insufficient evidence claim, which we have concluded is without
merit.
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given the weight of the evidence supporting his convictions—particularly the testimony of the
victims.
Third, citing several instances of apparently inconsistent testimony, defendant argues that
his attorney failed to conduct a proper cross-examination of the victims. Defendant’s attorney
challenged the victims’ credibility by pointing to specific inconsistencies in their testimony.
That his attorney did not challenge other possible inconsistencies in the victims’ testimony does
not mean that his assistance was constitutionally deficient. Indeed, it is a reasonable trial
strategy to draw the jury’s attention to some of the inconsistencies in the victims’ testimony, but
to refrain from an extended confrontation, which could be perceived as bullying the child
victims.
Fourth, defendant claims that his attorney erred by failing to have certain school
documents authenticated or entered as evidence. Defendant does not explain how the documents
would have been useful to his defense, but the prosecutor suggests that the documents might
have shed some light on whether one of the victims skipped school during the week she visited
defendant’s residence, or whether she came to the house after school. However, both parties
agreed that the girl had been at the house at the same time as the other victim and whether the
girl was truant was of little value to the pertinent issues of the case.
Fifth, defendant argues that his attorney failed to present a viable closing argument.
Defendant complains that trial counsel erred in referencing and describing (at length) various
murder cases and historical events—including the Susan Smith and Scott Peterson cases, the
Salem Witch Trials, the internment of Japanese Americans during World War II, and the
McCarthy hearings—in order to illustrate three fundamental principles: that a defendant is
presumed innocent until proven guilty, that the prosecution has the burden of proof, and that
guilt must be shown beyond a reasonable doubt. Choosing to reference historical circumstances
that would resonate with members of the jury in order to emphasize the responsibilities they have
is not an unreasonable trial strategy. Further, defendant’s attorney then examined the evidence
within the context of the three principles he illustrated. Thus, counsel’s closing argument does
not establish defendant’s claim of ineffective assistance.
Sixth, defendant argues that his attorney failed to “present a known defense” by failing to
file a motion to quash the second felony habitual offender supplement from the second amended
information. Both parties agree that the supplemental information incorrectly stated that
defendant had been convicted of a prior felony. However, defendant’s sentences were not
enhanced based on the habitual offender statutes. Therefore, defendant was not prejudiced and is
not entitled to relief on this basis.
On appeal, defendant raises the unpreserved argument that offense variable (OV) 9
should have been scored at zero points instead of 10 points because there was just one victim.
Pursuant to the statute, a score of 10 points for OV 9 is appropriate where “[t]here were 2 to 9
victims who were placed in danger of physical injury or death, or 4 to 19 victims who were
placed in danger of property loss.” MCL 777.39(c). When scoring OV 9, only people placed in
danger of injury or loss of life when the sentencing offense was committed should be considered.
See People v McGraw, 484 Mich 120; 771 NW2d 655 (2009). Although defendant’s argument
is premised upon the fact that he only touched one victim at a time, he cannot reasonably argue
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that the assaults did not coincide during several points of the victim’s visits to their
grandmother’s house in 2008. First, he reportedly “tried to touch [both victims] on [thei]r
bottoms” when playing games with them and another male grandchild on their grandmother’s
bed. Sometime later, defendant repeatedly touched the victims, who sat between him and their
grandmother, while riding in their grandmother’s truck to get a pizza. After returning from this
errand, the victims testified that defendant again touched them while playing games with them.
Thus, defendant fails to show plain error affecting any substantial right. Pipes, 475 Mich at 279.
Defendant also argues that OV 10 should have been scored at zero points instead of 15
points. MCL 777.40(1)(c) provides the following scoring guidelines for OV 10:
(a) Predatory conduct was involved............. 15 points
(b) The offender exploited a victim’s physical disability, mental disability, youth
or agedness, or a domestic relationship, or the offender abused his or her authority
status......................... 10 points
***
(d) The offender did not exploit a victim’s vulnerability....................................... 0
points
The prosecutor argues that a score of 15 points was appropriate because predatory conduct was
involved. MCL 777.40(1)(a). “Predatory conduct” is defined as a “preoffense conduct directed
at a victim for the primary purpose of victimization.” MCL 777.40(3)(a). The prosecutor fails to
identify, and the record does not demonstrate, such preoffense conduct to warrant a score of 15
points.
However, the record does support a score of 10 points for OV 10. “‘Exploit’ means to
manipulate a victim for selfish or unethical purposes.” MCL 777.40(3)(b). Given the ages of the
victims and defendant’s position of authority in the household of their grandmother, a score of 10
points would have been appropriate. Nonetheless, subtracting 5 points from defendant’s total
OV score would not affect his minimum sentencing range, which would remain at 43 to 86
months. MCL 777.64. Thus, any error by the trial court in assessing defendant 15 points instead
of 10 points for OV 10 was harmless. People v Davis, 468 Mich 77, 83; 658 NW2d 800 (2003).
Finally, we agree with defendant and the prosecutor that an inaccurate reference to
defendant being a second-offense habitual offender should be removed from the judgment of
sentence, and we remand for that purpose, as well as to correct the scoring error in OV 10.
Defendant’s convictions and sentences are affirmed. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ William C. Whitbeck
/s/ Kurtis T. Wilder
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