COA 370161 PEOPLE OF MI V STACE RYAN SMITH Opinion - Per Curiam - Unpublished 9/28/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
September 28, 2026
10:29 AM
V No. 370161
Charlevoix Circuit Court
STACE RYAN SMITH, LC No. 2023-047814-FC
Defendant-Appellant.
Before: MARIANI, P.J., and FEENEY and TREBILCOCK, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for (1) two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a); MCL 750.520b(2)(b) (sexual penetration;
victim under 13 years old, defendant over 17 years old); and (2) one count of second-degree
criminal sexual conduct (CSC-II), MCL 750.520c(1)(a); MCL 750.520c(2)(b) (sexual contact;
victim under 13 years old, defendant over 17 years old). The trial court sentenced defendant to
serve concurrent sentences of (1) 25 to 40 years, and (2) 8 to 15 years in prison, for each conviction
respectively, along with lifetime registration as a Tier III sex offender under the Sex Offenders
Registration Act (SORA), MCL 28.721 et seq., and lifetime electronic monitoring, MCL
750.520n(1). We affirm.
I. FACTS
Defendant dated, and then married, the victim’s mother. He was part of the victim’s
household when the victim was 3 to 15 years old. The victim testified that defendant eventually
began “molesting” her, elaborating as follows:
He would touch me with his hands. He would have me undress for him. He would
have me touch him or use my mouth. He also engaged in penetrative sex with me,
which began before I had started my period. This went on for a really long time.
It changed as I got older. After I started my period the penetration stopped and it
was just having me touch him, or he wanted to touch me.

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In March 2016, the victim called 911 to report that defendant was physically assaulting her mother.
Defendant was convicted of domestic assault, and the victim and her mother moved away from
him.
In October 2021, defendant moved to Arizona, and in November 2021, the victim reported
the alleged sexual abuse to police. In April 2023, a detective with the Charlevoix County Sheriff
asked the local Arizona police to speak with defendant. Two Arizona detectives interviewed
defendant outside his trailer, recording the interview with a body camera. Among the statements
captured was defendant’s assertion that the victim’s mother “had [the victim] call 911 and she lied
about what was happening.”
Defendant was charged with two counts of CSC-I, one count of CSC-II, and one count of
assault by strangulation or suffocation.1 A two-day jury trial was held. The victim, then 23 years
old, testified at trial, as did her mother, Sara Hawkins; her best friend, Autumn Rosselit; her former
boyfriend, Tyler Nichols; defendant’s ex-fiancée, Jennifer Moses; defendant’s sister, Sarah
Oldham; and the investigating police detective. During trial, and outside the presence of the jury,
the trial court inquired whether there was a statute of limitations issue for the strangulation charge.
After researching the matter, the prosecuting attorney asked the court to dismiss the strangulation
charge for that reason, and the court did so. By this time, however, the jury had already heard the
victim’s account that defendant strangled her. The jury found defendant guilty of the remaining
charges, and the trial court sentenced defendant, as stated earlier.
Following sentencing, defendant moved for a new trial or an evidentiary hearing to develop
his claim of ineffective assistance of trial counsel, or, alternatively, for correction of his sentence.
After holding a hearing on the motion, the trial court issued an opinion denying it in all its facets.
This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant argues that defense counsel provided ineffective assistance in a
variety of ways. We will address, and dismiss, each argument in turn.
A. PRESERVATION AND STANDARD OF REVIEW
Defendant preserved these claims by raising them in a motion for a new trial or evidentiary
hearing filed in the trial court as well as in a motion to remand filed in this Court. See People v
Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020); People v Sabin (On Second
Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). “Whether a person has been denied
effective assistance of counsel is a mixed question of fact and constitutional law. A judge first
must find the facts, and then must decide whether those facts constitute a violation of the
defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465 Mich
575, 579; 640 NW2d 246 (2002). “This Court reviews findings of fact for clear error and questions
of law de novo.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). But when, as in
1 The victim testified that defendant strangled and threatened to kill her during one attempted
sexual assault because she yelled “at him that he was raping [her] . . . .”

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this case, the trial court did not conduct an evidentiary hearing, review of a claim of ineffective
assistance is limited to mistakes apparent on the existing record. People v Fyda, 288 Mich App
446, 450; 793 NW2d 712 (2010).2
B. LEGAL STANDARDS
The United States Constitution guarantees a criminal defendant “the Assistance of Counsel
for his defence.” US Const, Am VI. The Michigan Constitution likewise provides criminal
defendants the right to “the assistance of counsel for his or her defense[.]” Const 1963, art 1, § 20.
A criminal defendant has the fundamental right to effective assistance of
counsel. However, it is the defendant’s burden to prove that counsel did not provide
effective assistance. To prove that defense counsel was not effective, the defendant
must show that (1) defense counsel’s performance was so deficient that it fell below
an objective standard of reasonableness and (2) there is a reasonable probability
that defense counsel’s deficient performance prejudiced the defendant. The
defendant was prejudiced if, but for defense counsel’s errors, the result of the
proceeding would have been different. [Heft, 299 Mich App at 80-81 (citations
omitted).]
* * *
We give defense counsel wide discretion in matters of trial strategy because counsel
may be required to take calculated risks to win a case. To show that defense
counsel’s performance was objectively unreasonable, the defendant must overcome
the strong presumption that defense counsel’s decisions constituted sound trial
strategy. This Court will not substitute its judgment for that of defense counsel or
review decisions with the benefit of hindsight. [Id. at 83 (citations omitted).]
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), lv den
488 Mich 1045 (2011).
1. THE VICTIM’S TESTIMONY
2 As noted, however, defendant did move for an evidentiary hearing both below and before this
Court. And this Court’s denial of defendant’s motion was “without prejudice to a case call panel
of this Court determining that remand is necessary[.]” People v Smith, unpublished order of the
Court of Appeals, entered March 19, 2026 (Docket No. 370161). Accordingly, while our review
of defendant’s claims of ineffective assistance is for errors apparent on the record now before us,
we are not foreclosed from determining, based upon that record, that a remand for further
development of those claims is necessary. Upon plenary review of defendant’s claims, however,
we continue to see no need for a remand to properly adjudicate the claims.

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Defendant first challenges defense counsel’s performance in connection with the victim’s
testimony that defendant: (1) strangled the victim, (2) slapped the victim, and (3) subjected the
victim’s mother to domestic violence. MRE 404(b)(1) generally provides that “[e]vidence of any
other crime, wrong, or act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” Under MRE 404(b)(2),
however, such “evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
absence of mistake, or lack of accident.”
Notably, the Legislature enacted an exception to the general prohibition of propensity
evidence with MCL 768.27b(1), which states that
in a criminal action in which the defendant is accused of an offense involving
domestic violence or sexual assault, evidence of the defendant’s commission of
other acts of domestic violence or sexual assault is admissible for any purpose for
which it is relevant, if it is not otherwise excluded under Michigan rule of evidence
403. [MCL 768.27b(1), as amended by 2018 PA 372.3]
Under MRE 403, “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
The following considerations may lead a court to exclude such evidence under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. This list of
considerations is meant to be illustrative rather than exhaustive. [People v
Berklund, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 367568);
slip op at 10 (quotation marks and citation omitted).]
“[W]hen applying MRE 403 to evidence admissible under MCL 768.27b, courts should weigh the
propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.”
Id. at ___; slip op at 10.
According to defendant, the victim’s testimony that he strangled her, slapped her, and
subjected her mother to domestic violence was all inadmissible under MRE 403, and defense
counsel performed ineffectively by failing to secure its exclusion on that basis. Applying MRE
403 to each challenged piece of testimony, however, we do not find grounds to conclude that
counsel performed ineffectively.
3 MCL 768.27b(1) has since been amended, but the only change was the addition of crimes related
to prostitution to the other acts that could be considered. See 2024 PA 184.

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a. STRANGULATION TESTIMONY
As an initial matter, defendant correctly asserts that defense counsel performed deficiently
by failing to notice the statute-of-limitations issue regarding his strangulation charge.
Nevertheless, defendant fails to establish that any prejudice resulted. As noted, the trial court
noticed the issue, and, at the prosecution’s request, dismissed the charge. Defendant argues that
he suffered prejudice even so, because, had the strangulation charge been dismissed before trial,
no evidence related to the strangulation allegation would have then been admissible at trial because
it would have been barred by MRE 403. We disagree.
The victim testified that when she was 10 years old—after the sexual abuse had been
occurring for some time—defendant came into her room and tried to wake her up “to molest [her].”
She pretended to be asleep, but when that “didn’t work,” defendant started “spreading” her legs.
She “yelled at him that he was raping [her], and he then put his hands around [her] throat and
strangled [her] and told [her] that he was going to kill [her],” causing her to fear for her life.
Further, according to the victim, “after he strangled [her,] the blood vessels had popped in [her]
face around [her] eyes . . . .”
Starting with this evidence’s “probative value,” MRE 403, we conclude that the alleged
strangulation was relevant to the jury’s evaluation of whether the victim was telling the truth about
the alleged sexual misconduct. This incident was particularly significant because defendant’s
reaction to the victim’s attempt to offer resistance illustrated why she feared resisting or reporting
on other occasions.
Citing MRE 403, defendant argues that the strangulation evidence should have been
excluded because of “unfair prejudice” or as “needlessly presenting cumulative evidence.” We
hold that those dangers did not substantially outweigh the probative value. That the strangulation
was a unique occurrence suggests that it was not cumulative at all, but rather a description of a
singular event that best explained the victim’s fears. And its close relation to defendant’s course
of sexually assaultive conduct suggests that any prejudice resulting from it was not unfair. See
People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995) (“All evidence offered by the parties is
‘prejudicial’ to some extent, but the fear of prejudice does not generally render the evidence
inadmissible. It is only when the probative value is substantially outweighed by the danger of
unfair prejudice that evidence is excluded.”).
b. SLAP TESTIMONY
The victim also testified that one day, she told defendant that she did not “want to drive
with [defendant], and he just immediately backhanded [her] across the face and it split [her] lip
open.” He then “dragged [her] by [her] ear back up the stairs and into the house, and then threw
[her] into [her] bedroom and told [her] to . . . [g]et the F out.” According to the victim, she began
to pack her things and called her father to pick her up, but defendant “apologized to [her] and told
[her that she did not] have to leave,” upon which she called her father and told him not to come.
She added that she did not believe that defendant was actually remorseful, but she agreed to stay
because she was worried about a possible altercation between defendant and her father.

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While not as closely related to an attempted sexual assault, evidence of defendant’s resort
to brutality, and of the victim’s learning the dire consequences of resisting him, shed light on the
relationship between defendant and the victim as well as the system of power and fear that
defendant maintained in order to continue his assaults. Again, the concerns outlined in MRE 403
did not substantially outweigh the probative value of the challenged evidence. Because the hit on
the face was described as a unique occurrence, it was not cumulative, but rather a description of a
singular event that explained the victim’s fears in a different way from the other evidence. And
because it was relevant to defendant’s relationship with the victim, any resulting prejudice was not
“unfair.” Defendant was on trial for CSC-I and CSC-II, and the victim had described many
instances of very disturbing sexual aggression. The hit on the face was far from the worst of
defendant’s alleged actions and therefore raised little concern that the jury might focus on
punishing defendant for it instead of properly considering the charged crimes.
c. DOMESTIC VIOLENCE TESTIMONY INVOLVING HER MOTHER
The victim also testified about hearing her mother and defendant fighting one day.
According to the victim, defendant “was screaming at her [mother], and [she] heard her [mother]
get pushed up against the closet” and tell defendant that “he was hurting her and asking him to
stop.” The victim testified that the victim “was scared,” and that while she had “suspected”
defendant had been hurting her mother, she “had never heard” it before, and so called 911. She
stated that she then lied to the police, telling them that defendant had never “hurt” herself or her
mother before. She explained that “even with the police right there [she] was terrified of him.”
She further testified that the police took defendant “to jail overnight,” and then she and her mother
moved out.
Although this incident involved violence directed toward the victim’s mother, and not the
victim, the evidence of defendant’s use of violence in the home, and of the victim’s learning the
consequences of resisting him, illustrated that the fears that kept the victim quiet about the sexual
assaults for so long included concern that defendant would hurt her mother in retaliation. Further,
a closed door being between herself and defendant on this occasion, as opposed to all of the
incidents where she was the victim, explained why she felt emboldened to call 911 on this
occasion. Moreover, this was the event that put an end to her and her mother’s living with
defendant. The fact that domestic violence created the opportunity for the victim and her mother
to separate themselves from defendant, as opposed to an amicable parting of ways, was relevant
evidence for the jury to consider. Additionally, the victim’s account countered defendant’s claim
in his Arizona interview that the victim’s mother encouraged the victim to “call 911 and she lied
about what was happening.”
We again conclude that the MRE 403 dangers did not substantially outweigh the probative
value described above because the evidence presented unique aspects and therefore was not
cumulative, and it fairly explained the victim’s fears and why the victim and her mother stopped
living with defendant. The violence’s relevance and probative value toward illustrating
defendant’s relationship with the victim and her mother indicates that any prejudice from hearing
about it was not “unfair.” And, again, because the described violence toward the victim’s mother
was far from the worst of defendant’s actions described at trial, there was little likelihood that the
jury would simply focus on punishing defendant for that evidence.

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d. CONCLUSION REGARDING VICTIM’S TESTIMONY
Defendant’s argument that the jury was overpersuaded by these three acts of domestic
violence or confused about what it was deciding is unpersuasive. We note that the victim was the
first witness called and that she described the sexual assaults before describing any of these three
other incidents. We further note that, with its final jury instructions, the trial court clearly
described the three criminal charges actually at issue and twice admonished, “You must not convict
the Defendant in this case solely because you think he is guilty of other bad conduct. The evidence
must convince you beyond a reasonable doubt that the Defendant committed the offenses for which
he is now on trial or you must find him not guilty.” “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003). “[A] limiting instruction prohibiting the jury from drawing
an improper inference” should therefore eliminate “any possible unfair prejudice.” People v
Houston, 261 Mich App 463, 469-470; 683 NW2d 192 (2004), aff’d 473 Mich 399 (2005).
Accordingly, the record does not support defendant’s argument that those other incidents
persuaded the jury to find him guilty of CSC-I and CSC-II.
For all the reasons set forth above, objections to the victim’s testimony—regarding the
times that defendant strangled her, slapped her, and engaged in domestic violence against her
mother—on the basis of MRE 403 would have been properly overruled, and defense counsel was
not ineffective for failing to advance a meritless argument or raise a futile objection. See Ericksen,
288 Mich App at 201.
2. VOUCHING
Defendant further argues that defense counsel provided ineffective assistance by failing to
object to Rosselit’s testimony, which improperly vouched for the victim’s credibility. We
disagree.
“It is generally improper for a witness to comment or provide an opinion on the credibility
of another witness, because credibility matters are to be determined by the jury.” People v Dobek,
274 Mich App 58, 71; 732 NW2d 546 (2007). “Criminal cases are usually fought on the battlefield
of witness credibility, and this is particularly true in situations involving the credibility of a victim
of a CSC crime where the only witnesses present are the victim and the perpetrator . . . .” People
v Lemmon, 456 Mich 625, 642 n 22; 576 NW2d 129 (1998) (citation omitted). But there are
certainly “times when it is better not to object and draw attention to an improper comment.” People
v Bahoda, 448 Mich 261, 287 n 54; 531 NW2d 659 (1995).
In this case, Rosselit testified that she and the victim were close friends since fourth grade,
that she knew that the victim’s “home life was not good,” that the victim was afraid of defendant,
and that she “knew [the victim] was sexually active for most of our middle school friendship, but
it was always just referred to as an older guy.” Rosselit recounted that “the only explanation I
could come to was that [the sexual activity] was happening at home.” She elaborated as follows:
I feel like it was something I always knew in the back of my head. When
she told me freshmen year, like, confirmed for me that it was [defendant], it did not
feel like that big of a . . . revelation. It felt like something I already knew, and so it

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was very easy for me to just take in stride. I believed her instantly. There was not
much for me to question.
Rosselit’s testimony provided her own observations and thought processes; she did not
simply assert that the victim was trustworthy and should be believed. In a discussion between the
parties and court outside the presence of the jury, defense counsel explained that he did not object
to Rosselit’s testimony—that she believed the victim—because Rosselit also testified that “they’d
been best buddies since they were [in] fourth grade or something.” Considering that Rosselit was
the victim’s close friend, and that Rosselit was testifying on behalf of the prosecution, it was not
unusual or unpredictable that she believed the victim’s allegations. In fact, that is something that
the jury likely expected and noticed before it was ever directly vocalized. Defense counsel’s
decision to not raise an attendant objection served the strategic purpose of not drawing additional
attention to, and therefore compounding, any implication that Rosselit was vouching for the victim.
See Bahoda, 448 Mich at 287 n 54; Heft, 299 Mich App at 83. Moreover, the trial court properly
instructed the jury regarding its responsibility to determine credibility and consider bias when
doing so. “Jurors are presumed to follow their instructions, and instructions are presumed to cure
most errors.” Abraham, 256 Mich App at 279. “[A] limiting instruction prohibiting the jury from
drawing an improper inference” should therefore eliminate “any possible unfair prejudice.”
Houston, 261 Mich App at 469-470.
3. HEARSAY
Defendant further argues that defense counsel provided ineffective assistance by failing to
object to Rosselit’s and Nichols’s4 hearsay testimony. We disagree.
Hearsay is a statement that “the declarant does not make while testifying at the current trial
or hearing” and that “a party offers in evidence to prove the truth of the matter asserted in the
statement.” MRE 801(c). Hearsay is generally inadmissible unless an exception exists. MRE
802. But a declarant-witness’s prior statement is not hearsay if it “is consistent with the declarant’s
testimony and is offered to rebut an express or implied charge that the declarant recently fabricated
it or acted from a recent improper influence or motive in so testifying[.]” MRE 801(d)(1)(B). To
introduce a prior consistent statement through a third party, four elements must be satisfied:
(1) the declarant must testify at trial and be subject to cross-examination; (2) there
must be an express or implied charge of recent fabrication or improper influence or
motive of the declarant’s testimony; (3) the proponent must offer a prior consistent
statement that is consistent with the declarant’s challenged in-court testimony; and,
(4) the prior consistent statement must be made prior to the time that the supposed
motive to falsify arose. [People v Jones, 240 Mich App 704, 707; 613 NW2d 411
(2000) (quotation marks and citation omitted).]
In this case, Rosselit testified in detail about what the victim told her about the abuse,
including that the victim started disclosing the incidents to her when she was “10 or 11” and that
4 Tyler Nichols was the victim’s former boyfriend.

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the victim revealed more details in the years that followed. Nichols testified that in 2016, the
victim told him that “she was essentially sexually abused and physically abused, and then she
opened up a little later about that it was her former stepfather.” He further testified that the victim
told him that defendant “would basically make her perform sexual acts on him” before allowing
her to go out with friends.
Defendant argues that Rosselit’s and Nichols’s testimonies failed to satisfy elements (2)
and (4) as set forth in Jones. See id.
Element (2) concerns whether there was “an express or implied charge of recent fabrication
or improper influence or motive of the declarant’s testimony[.]” Id. (quotation marks and citation
omitted). During defendant’s Arizona interview, defendant stated that his ex-wife “had [the
victim] call 911 and she lied about what was happening,” and, when asked about the victim’s
allegations, defendant stated, “That didn’t happen,” and, “No, that’s not true. Never anything like
that ever happened.” Therefore, there was clearly an express charge of recent fabrication regarding
the victim’s allegations. See id.
Element (4) concerns whether the prior consistent statement was “made prior to the time
that the supposed motive to falsify arose.” Id. (quotation marks and citation omitted). Defendant
asserts that the motive to falsify arose in March 2016, when the victim called 911 to report
defendant’s acts of domestic violence against her mother. But even if so, that would have still, at
a minimum, allowed for the admission of everything the victim told Rosselit beginning in the fifth
grade and continuing up until that March 2016 call to 911. Those disclosures occurred during the
years that the victim lived with defendant and the alleged sexual abuse was occurring. During that
time, the victim told Rosselit that: (1) defendant “was violent towards her mom,” (2) she feared
defendant, and (3) she was engaging in sexual activities with “an older guy” often enough that
Rosselit believed those activities could only have been with someone that was “already in her life.”
Defendant has not shown how it is reasonably probable that, had only this portion of the challenged
testimony been admitted, the outcome of his trial would have been different. Accordingly, even
if there were a colorable basis to object to some of the challenged testimony, we do not see grounds
to conclude that the absence of such objection amounted to constitutionally ineffective assistance
of counsel.
4. OTHER ACTS OF DOMESTIC VIOLENCE
Defendant further argues that he was provided ineffective assistance when defense counsel
failed to object to testimony from the victim’s mother, Hawkins, and defendant’s former fiancée,
Moses, regarding other acts of domestic violence. According to defendant, this testimony was
inadmissible under MRE 403. We disagree.
As previously stated, the Legislature enacted an exception to the general prohibition of
propensity evidence with MCL 768.27b(1), which states that
in a criminal action in which the defendant is accused of an offense involving
domestic violence or sexual assault, evidence of the defendant’s commission of
other acts of domestic violence or sexual assault is admissible for any purpose for
which it is relevant, if it is not otherwise excluded under Michigan rule of evidence
403. [MCL 768.27b(1), as amended by 2018 PA 372.]

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Under MRE 403, “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
The following considerations may lead a court to exclude such evidence under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. This list of
considerations is meant to be illustrative rather than exhaustive. [Berklund, ___
Mich App at ___; slip op at 10 (quotation marks and citation omitted).]
Here again, “when applying MRE 403 to evidence admissible under MCL 768.27b, courts should
weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial
effect.” Id. at ___; slip op at 10.
a. HAWKINS’S TESTIMONY
In this case, Hawkins testified that she left defendant in March 2016, because she “was
being abused” by him. According to Hawkins, defendant “started off with mental abuse and over
the years it progressed to sexual and physical abuse.” She explained that she decided to move out
after defendant “shov[ed] [her] into a wall, kind of throwing [her] around, and [the victim] locked
herself in her bedroom and called 911.”
The probative value of Hawkins’s brief testimony regarding other acts of domestic violence
was not outweighed by unfair prejudice. Hawkins’s testimony concerned events that were close
in time to defendant’s alleged sexual abuse of the victim; although Hawkins’s testimony concerned
defendant’s actions against an adult, the domestic violence between Hawkins and defendant
occurred in the victim’s presence and resulted in the victim calling 911. Moreover, during
defendant’s Arizona interview, he denied sexually assaulting the victim, and he asserted that the
victim was falsely accusing him at her mother’s behest—specifically, that Hawkins forced the
victim to call 911 and lie to the police. Therefore, the need for evidence beyond the victim’s
testimony was warranted.
Defense counsel was not ineffective for failing to object to testimony that was admissible
under MCL 768.27b(1) and MRE 403. See Ericksen, 288 Mich App at 201.
b. MOSES’S TESTIMONY
Moses also testified that although she had been engaged to defendant, their relationship
ended in 2018 “[w]hen he lost it one day” and she “[w]oke up in the morning to [her] four year
old screaming . . . running up the stairs.” Moses did not provide further details regarding the
incident aside from the fact that she called 911 “related to a domestic dispute.”
The probative value of Moses’s testimony regarding another act of domestic violence was
not outweighed by unfair prejudice. Moses’s testimony was extremely brief and lacked detail—it
was provided to specifically rebut defendant’s assertion of falsification, not provide more details

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to enrage the jury. Considering that defendant’s theory was that the victim’s family was heavily
biased against defendant, and that the victim was falsely accusing him, evidence of a domestic-
violence situation with a different family was useful for the jury’s determination whether to believe
the victim.
Defense counsel was not ineffective for failing to object to testimony that was admissible
under MCL 768.27b(1) and MRE 403. See id.
5. OTHER ACTS OF SEXUAL ABUSE
Defendant further argues that he was provided ineffective assistance when defense counsel
failed to object to testimony from defendant’s sister, Oldham, regarding other acts of sexual abuse.
We disagree.
Another exception to MRE 404(b)(1)’s general prohibition of propensity evidence is MCL
768.27a, which states that “in a criminal case in which the defendant is accused of committing a
listed offense against a minor, evidence that the defendant committed another listed offense against
a minor is admissible and may be considered for its bearing on any matter to which it is relevant.”
The Michigan Supreme Court has held that “MRE 403 applies to evidence admissible under MCL
768.27a,” and “when applying MRE 403 to evidence admissible under MCL 768.27a, courts must
weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial
effect.” People v Watkins, 491 Mich 450, 486-487; 818 NW2d 296 (2012). Again, the following
considerations may lead a court to exclude such evidence under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony. This list of
considerations is meant to be illustrative rather than exhaustive. [Id. at 487-488
(citation omitted).]
In this case, defendant’s sister, Oldham, testified that, starting when she was 9 years old
and defendant 15 years old, defendant would force her to watch pornography, lick her vagina, and
penetrate her vagina with his penis. She further testified that the assaults continued for “a really
long time,” and that “there were many incidences where [she] would be left with him and didn’t
want to be, and would cry and scream, and would still have to stay with him, and it would
continue.”5
The probative value of Oldham’s testimony regarding another act of sexual abuse was not
outweighed by unfair prejudice. Although Oldham’s testimony concerned acts that occurred about
5 As an initial matter, defendant challenges the reliability of Oldham’s testimony on the grounds
that no corroborating records from Oldham’s physician or counselor were presented. But the
prosecution’s notice of intent to present this evidence included the name of Oldham’s pediatrician
as well as the name of the hospital that she had testing done.

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20 years prior to the alleged actions in this case, both circumstances involved defendant repeatedly
victimizing a young girl with whom he lived, despite their clear rejections at his advances. The
defense theory in this case focused on impugning the victim’s credibility while suggesting that the
other witnesses who were closely connected to her merely repeated what the victim told them. In
this respect, Oldham’s account was unique, coming from a person who had a closer familial
relationship to defendant than to the victim. As the only other witness accusing defendant of
sexually assaulting her when she was a child, Oldham’s testimony offered something of
independent value for the jury to consider, as opposed to cumulative evidence.
Evidence that defendant previously committed sexual assault was relevant to proving that
defendant committed the offenses at issue in this case because, as explained, the evidence
supported the victim’s credibility, presented circumstances similar to those underlying the charged
offense, and provided the jury with a more complete picture of defendant’s history. See e.g.,
Berklund, ___ Mich App at ___; slip op at 10-11. “And to any extent that a danger of unfair
prejudice may persist, the trial court can minimize that danger by instructing the jury on the proper
use of the other-acts evidence,” id., which the trial court properly did in this case.
Accordingly, defense counsel was not ineffective for failing to object to testimony that was
admissible under MCL 768.27a(1) and MRE 403. See Ericksen, 288 Mich App at 201.
6. CONFRONTATION CLAUSE
Defendant further argues that he was provided with ineffective assistance because defense
counsel failed to object to the presentation of his Arizona interview video as a violation of his
confrontational rights. We disagree.
“In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with
the witnesses against him[.]” US Const, Am VI. “The confrontation right is incorporated to apply
to states through the Due Process Clause of the Fourteenth Amendment.” People v Bruner, 501
Mich 220, 227; 912 NW2d 514 (2018); see Const 1963, art 1, § 20. “The right is implicated only
for ‘testimonial’ evidence, because the Confrontation Clause applies to ‘witnesses’ against the
accused—in other words, those who ‘bear testimony.’ The threshold question for any
Confrontation Clause challenge, therefore, is whether the proffered evidence is testimonial.”
Bruner, 501 Mich at 227 (citation omitted). “Testimony is a solemn declaration or affirmation
made for the purpose of establishing or proving some fact.” Id. (quotation marks and citation
omitted). “Testimonial statements of witnesses absent from trial may be admitted only where the
declarant is unavailable, and only where the defendant has had a prior opportunity to cross-
examine.” Id. (quotation marks and citation omitted).
“[T]he Confrontation Clause applies only to statements used as substantive evidence.”
People v Fackelman, 489 Mich 515, 528; 802 NW2d 552 (2011). Accordingly, “courts must
consider the circumstances under which the evidence in question came about to determine whether
it is testimonial.” People v Nunley, 491 Mich 686, 706; 821 NW2d 642 (2012). Testimonial
evidence is “made under circumstances that would lead an objective witness reasonably to believe
that it would be available for use at a later trial.” Id. at 709.

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Defendant argues that the video recording of his Arizona interview was not properly
presented because neither of the two participating Arizona detectives testified; instead, a Michigan
detective offered testimony relating to the video.6
Defendant correctly asserts that the video included testimonial evidence subject to
confrontational rights; however, the only testimonial statements were by defendant, not the
Arizona officers.7 The United States Supreme Court has stated that, “even when interrogation
exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the
Confrontation Clause requires us to evaluate.” Davis v Washington, 547 US 813, 822 n 1; 126 S
Ct 2266; 165 L Ed 2d 224 (2006). Further, defendant does not identify any statements made by
the Arizona detectives that were then used as testimonial evidence at trial, or about which he could
have conducted valuable cross-examination had they appeared as live witnesses. Moreover,
defendant’s statements during his Arizona interview were consistent with his defense theory at
trial—that the victim and her mother were falsely accusing him out of personal animus.
For these reasons, any objection to the video under Confrontation Clause grounds would
have been meritless, and defense counsel’s decision to stipulate to admission of the video and
provide argument based upon its content was reasonable. See Ericksen, 288 Mich App at 201.
7. CUMULATIVE ERROR
Defendant further argues that the cumulative effect of the above claims of error deprived
him of a fair trial. We disagree.
“The cumulative effect of several minor errors may warrant reversal where the individual
errors would not.” People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003). As
discussed, defense counsel’s failure to notice, and act upon, the statute-of-limitations issue
concerning the strangulation charge constituted deficient performance. But, as discussed, the trial
court noticed the problem, the charge was dismissed, and the matter left defendant at no
disadvantage. And to the extent counsel was deficient for failing to object to Rosselit’s and
6 Defendant presents this argument as a Confrontation Clause issue, but he also offers argument
relating to authentication formalities. “To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a finding that the
item is what its proponent claims it is.” MRE 901(a). Our Legislature has provided “examples
. . . of evidence that satisfies the requirement,” including, “[t]estimony that an item is what it is
claimed to be.” MRE 901(b)(1). In this case, the Michigan detective testified about how his
investigation led to the creation of the video and how he obtained it from Arizona. He further
testified that he recognized defendant and an Arizona police detective from the video. Defendant
does not assert that the video is actually inauthentic. To the extent that defendant implies that one
of the Arizona detectives needed to travel to Michigan to authenticate the video, the argument is
inapt.
7 As for defendant’s testimonial statements, defendant was available to testify at trial had he wished
to provide any explanation, clarification, or contradiction of what he was shown saying in the
video—he simply decided not to exercise that right.

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Nichols’s testimony, we do not see any meaningful prejudice from that failure given the scope of
testimony that would have been admitted regardless. Because we do not see reversible error in the
combined effect of these errors, and have entirely rejected defendant’s other claims of ineffective
assistance, his assertion of cumulative error is unavailing.
III. CRUEL OR UNUSUAL PUNISHMENT
Defendant further challenges the constitutionality of lifetime SORA registration and
electronic monitoring.
A. PRESERVATION AND STANDARD OF REVIEW
Because defendant raised these claims in the trial court, they are preserved for appellate
review. See People v Burkett, 337 Mich App 631, 635; 976 NW2d 864 (2021). Questions of
constitutional law are reviewed de novo. LeBlanc, 465 Mich at 579. “Statutes are presumed to be
constitutional, and the party challenging a statute has the burden of showing the contrary.” People
v Burkman, 513 Mich 300, 326; 15 NW3d 216 (2024). “A facial challenge involves a claim that
there is no set of circumstances under which the enactment is constitutionally valid, while an as-
applied challenge considers the specific application of a facially valid law to individual facts.”
People v Jarrell, 344 Mich App 464, 482; 1 NW3d 359 (2022) (quotation marks and citations
omitted).
B. LIFETIME SORA REGISTRATION
Defendant first argues that SORA’s lifetime registration requirement constitutes cruel or
unusual punishment, both facially and as-applied. We disagree.
“The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, §
16, whereas the United States Constitution prohibits cruel and unusual punishment, US Const, Am
VIII. If a punishment passes muster under the state constitution, then it necessarily passes muster
under the federal constitution.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011)
(quotation marks and citation omitted). “[T]he issue under Const 1963, art 1, § 16 . . . concerns
whether the punishment concededly chosen or authorized by the Legislature is so grossly
disproportionate as to be unconstitutionally ‘cruel or unusual.’ ” People v Bullock, 440 Mich 15,
34 n 17; 485 NW2d 866 (1992). Michigan courts consider a four-factor balancing test when
evaluating whether a punishment is unconstitutionally cruel or unusual: “(1) the severity of the
sentence relative to the gravity of the offense; (2) sentences imposed in the same jurisdiction for
other offenses; (3) sentences imposed in other jurisdictions for the same offense; and (4) the goal
of rehabilitation . . . .” People v Parks, 510 Mich 225, 242; 987 NW2d 161 (2022).
Defendant’s convictions of CSC-I render him a Tier III offender under SORA. MCL
28.722(v)(iv). Tier III offenders’ “reporting requirements are independent of any offender’s indi-
vidual risk of reoffending.” People v Kardasz, ___ Mich ___, ___; ___ NW3d ___ (2025) (Docket
No. 165008); slip op at 35.
Tier III offenders are subject to lifetime registration requirements and must report
in person four times per year. They cannot petition for removal based on age,
infirmity, low risk of recidivism, or sustained offense-free conduct. . . .

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In addition to periodic in-person reporting requirements, all registrants must
report any changes to their registry information. Changes in residency, employ-
ment, educational enrollment, and name must be reported in person within three
business days. Changes in vehicle information, email address, internet identifiers,
phone numbers, and travel plans of seven days or longer must also be reported
within three days, although the 2021 SORA provided that those reports can be made
either in person or by mail. [Id. at ___; slip op at 13-14 (citations omitted).]
In Kardasz, ___ Mich at ___; slip op at 42, the Supreme Court clarified “that the 2021
SORA is punishment but not cruel or unusual in every instance . . . .” The Court focused its
“analysis on Tier III offenders” as those who “committed the most severe registrable offenses and
are subject to the most onerous requirements under the 2021 SORA.” Id. at ___; slip op at 34.
The Court concluded “that the 2021 SORA is not grossly disproportionate in all instances,” and
therefore not cruel or unusual on its face. Id.
The Court also rejected the defendant’s as-applied challenge. Id. The Court held that
SORA does not support the goal of rehabilitation, id. at ___; slip op at 41, but that the other
pertinent considerations did not weigh against proportionality for purposes of the constitutional
analysis, explaining as follows:
On balance, the 2021 SORA is not cruel or unusual punishment either in all
instances or as applied to [the defendant]. Tier III offenders have committed
serious sex offenses. Their punishment is unique to sex offenses, but it is in
alignment with a plurality of states that utilize sex-offender-registration schemes in
accordance with the federal SORNA requirements. Moreover, [the defendant]
committed the most elevated registrable offense and has not provided evidence to
support a claim that lengthy registration requirements are not appropriate relative
to his individualized level of risk of reoffending. [Id. at ___; slip op at 41-42.]
Kardasz does not necessarily establish that any Tier III offender’s as-applied challenge to
SORA as cruel or unusual must fail. But the instant as-applied challenge is hardly distinguishable
from that rejected in Kardasz. The defendant in Kardasz was convicted of one count of CSC-I
“for the sexual assault of his five-year-old daughter.” Id. at ___; slip op at 2. In this case, defendant
was convicted of two counts of CSC-I, and one count of CSC-II, for the sexual assault of his
stepdaughter, who described numerous sexual assaults that were occurring by the time she was “in
early middle school or elementary school.” Nor has defendant identified any other grounds upon
which to conclude that his as-applied challenge could or should prevail despite the analysis set
forth in Kardasz.
For these reasons, we reject defendant’s claim that lifetime SORA registration constitutes
constitutionally cruel or unusual punishment.
C. LIFETIME ELECTRONIC MONITORING
Defendant also argues that lifetime electronic monitoring is constitutionally cruel or
unusual. We disagree.

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MCL 750.520b(2)(d) requires the trial court to “sentence the defendant to lifetime
electronic monitoring” for a conviction of CSC-I. MCL 750.520c(2)(b) similarly mandates
lifetime electronic monitoring for persons convicted of CSC-II when the offense “involved sexual
contact committed by an individual 17 years of age or older against an individual less than 13 years
of age.”
In People v Hallak, 310 Mich App 555, 567; 873 NW2d 811 (2015), rev’d in part on other
grounds 499 Mich 879 (2016), the defendant challenged lifetime electronic monitoring both
facially, and as-applied, as cruel or unusual. The defendant was a doctor convicted of CSC-II,
whose victim testified that when she was 12 years old, the defendant held her “breast for between
1 and 30 seconds with his left hand on the outside of her shirt” during her medical examination.
Id. at 560. The jury also “heard testimony from several witnesses who also claimed to have
experienced similar treatment from [the defendant] while under his care.” Id. at 562.
This court held that lifetime electronic monitoring was punishment, but not cruel or unusual
punishment, either facially or as applied. Id. at 571, 577. This court stated that “sexual abuse of
children under the age of 13 is a grave offense in all instances.” Id. at 575 n 8. This Court further
noted that “[m]any states have imposed the penalty of lifetime electronic monitoring for various
CSC cases,” and that “at least 11 (including Michigan) have mandated lifetime monitoring for
defendants convicted of the most serious CSC offenses or CSC with a minor.” Id. at 575.
Hallak is binding precedent, and defendant offers no convincing way to distinguish this
case from it. In fact, this case involved conduct of greater violence, intensity, and frequency
perpetrated against a younger victim over whom defendant was in a greater position of authority
and trust. We therefore reject defendant’s claim that lifetime electronic monitoring constitutes
unconstitutionally cruel or unusual punishment. See id. at 571, 577.
IV. UNREASONABLE SEARCH
Defendant further argues that lifetime electronic monitoring is a constitutionally
unreasonable search. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Because defendant raised this claim in the trial court, it is preserved for appellate review.
See Burkett, 337 Mich App at 635. Questions of constitutional law are reviewed de novo.
LeBlanc, 465 Mich at 579.
B. LIFETIME ELECTRONIC MONITORING
“The right of the people to be secure in their persons . . . against unreasonable
searches . . . shall not be violated . . . .” US Const, Am IV; see also Const 1963, art 1, § 11. In
Hallak, 310 Mich App at 577-578, the defendant argued that lifetime electronic monitoring
violated the Fourth Amendment to the United States Constitution. This Court concluded “that
lifetime electronic monitoring for a defendant 17 years or older convicted of CSC–II involving a
minor under 13 is not unreasonable.” Id. at 579. This Court explained that although “it may
certainly be that such monitoring of a law-abiding citizen would be unreasonable, on balance the
strong public interest in the benefit of monitoring those convicted of CSC–II against a child under

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the age of 13 outweighs any minimal impact on defendant’s reduced privacy interest.” Id. at 581.
In this case, considering that defendant was convicted of two counts of CSC-I and one count of
CSC-II against a child under the age of 13, defendant’s lifetime electronic monitoring requirement
does not constitute an unreasonable search in violation of the United States or Michigan
Constitutions. See id. at 579, 581.
Affirmed.
/s/ Philip P. Mariani
/s/ Kathleen A. Feeney
/s/ Christopher M. Trebilcock

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