Opinion
351635
01-06-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GARY LAWRENCE DAVIS-HEADD, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 18-009282-01-FH
Before: Boonstra, P.J., and Gleicher and Letica, JJ.
PER CURIAM.
Defendant appeals by right his bench-trial convictions of two counts of second-degree child abuse, MCL 750.136b(3). The trial court sentenced him to concurrent prison terms of 4 to 10 years for each conviction. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In June 2018, defendant was living with his then-wife, KDH, their two children, and defendant's two other sons, RDH and GDH. On the morning of June 24, 2018, defendant's next-door neighbor called 911 after she heard screaming coming from the family's home. When the police and Children's Protective Services ("CPS") arrived at the house, they discovered that RDH and GDH had visible bruising and red marks on their arms, legs, and backs. The children told CPS investigators and police officers that defendant had struck them repeatedly with either a belt or a whip. Two days later, the children were examined at Children's Hospital, and hospital staff took photographs of the children's injuries. On June 28, 2018, both children were forensically interviewed at Kids Talk. In October 2018, defendant was charged with two counts of second-degree child abuse, MCL 750.136b(3), and in the alternative, two counts of third-degree child abuse, MCL 750.136b(5). He was also charged with domestic violence in a separate proceeding, after he allegedly assaulted KDH. And he was named as a respondent in a child protective proceeding.
At a bench trial held in August and September 2019, RDH and GDH both testified that on June 24, 2018, defendant had beaten them repeatedly with a belt or whip, which was described by RDH as a long cord that could have been made of leather. The children testified that defendant had beaten them similarly many times in the past. Pictures of the children's injuries, taken at the Children's Hospital, were admitted into evidence. Defendant's neighbor, Syretta Brown, testified that she called 911 after she heard screaming and the sound of children being beaten with an object for forty-five minutes. A police officer who responded to the home testified that she could hear a man screaming, "She doesn't love you. I am the only one here for you. I'm the only one that cares for you." Defendant was the only adult male found in the home. The officer also testified that both children had bruises and red marks on their arms and legs. Defendant's theory of the case was that he had disciplined the children with a belt within the permissible limits of corporal punishment, and that the children had been coached in their testimony by their biological mother.
The trial court found defendant guilty and sentenced him as described. Defendant filed postconviction motions in the trial court for a new trial and resentencing, arguing that he was denied the effective assistance of counsel and that the trial court erred in its scoring of offense variables (OVs) 9 and 10 of the sentencing guidelines. Defendant also requested an evidentiary hearing on the issue of his trial counsel's effectiveness. The trial court denied defendant's motions. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel at trial in several respects. Although defendant raised these claims in the trial court, because the court denied defendant's request without an evidentiary hearing, our review of defendant's claims is limited to mistakes apparent from the record. People v Lane, 308 Mich.App. 38, 68; 862 N.W.2d 446 (2014).
Whether a defendant was denied the effective assistance of counsel is a mixed question of fact and law. People v Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012). Effective assistance of counsel is presumed and a defendant bears a heavy burden to prove otherwise. People v Putman, 309 Mich.App. 240, 248; 870 N.W.2d 593 (2015). "To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense." People v Riley, 468 Mich. 135, 140; 659 N.W.2d 611 (2003), citing Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); see also People v Pickens, 446 Mich. 298, 302-303; 521 N.W.2d 797 (1994). "In order to demonstrate that counsel's performance was deficient, the defendant must show that it fell below an objective standard of reasonableness under prevailing professional norms. In so doing, the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy." Riley, 468 Mich. at 140. To establish prejudice, a defendant must demonstrate a reasonable probability that the result of the proceeding would have been different but for counsel's error. People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013). The defendant bears the burden of establishing the factual predicate for his claim. Putman, 309 Mich.App. at 248.
A. FAILURE TO CALL REBUTTAL WITNESSES
Defendant argues that defense counsel performed deficiently by failing to call a family friend and business associate, Theodius Cross (Cross), as a rebuttal witness. Defendant argued at trial that GDH and RDH were coached by their biological mother to falsely accuse defendant of child abuse. Defendant asserts, and Cross avers by affidavit, that Cross would have testified that on the day after the assault, June 25, 2018, GDH told Cross that GDH's biological mother had told him to "just say what I tell you to say and you will come live with me."
A claim of ineffective assistance of counsel premised on the failure to call witnesses is analyzed under the same standard as all other claims of ineffective assistance of counsel. People v Jurewicz, 506 Mich. 914; 948 N.W.2d 448 (2020). Accordingly, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different. Id. Defendant has not met this burden.
Initially, defendant has not demonstrated that Cross's proffered testimony would have been admissible. The testimony involved out-of-court statements by both GDH and GDH's biological mother. Defendant has not demonstrated that the testimony would not have been found to be inadmissible hearsay. See MRE 801 (defining "hearsay" as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"), MRE 802 (hearsay is not admissible except as provided by the rules of evidence), and MRE 805 ("Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.").
Defendant contends that GDH's statement was inconsistent with his trial testimony that he had not had contact with his biological mother, and therefore would have been admissible to impeach GDH. See People v Jenkins, 450 Mich. 249, 256; 537 N.W.2d 828 (1995) (holding that prior unsworn statements of witnesses may be admissible for impeachment purposes, but not substantively). According to defendant, Cross's testimony would show that GDH, contrary to his trial testimony, had been secretly speaking to his biological mother since Christmas of 2017. However, GDH admitted at trial that he had contact with his biological mother sometime around Christmas 2017, and then again several times during the two days before the June 24, 2018 events. Because there is no evidence as to when the biological mother made the alleged statement to GDH, and GDH acknowledged having contact with his mother during the days leading up to the June 24, 2018 events, it cannot be said that Cross's testimony would have been admissible to impeach GDH's trial testimony. Therefore, defense counsel's failure to call Cross as a witness did not fall below an objective standard of reasonableness. Jurewicz, 506 Mich. at 914.
Moreover, defendant would not have been able to argue that GDH's prior statement was true, i.e., that GDH's mother had actually told him to "say what I tell you to say." Again, evidence of a witness's prior unsworn statement, even if admissible for impeachment purposes, is inadmissible as substantive evidence. People v Lundy, 467 Mich. 254, 257; 650 N.W.2d 332 (2002), citing Jenkins, 450 Mich. at 260-261. Therefore, defendant in incorrect in arguing on appeal that, had Cross been called to testify, he "would have been able to tell the trier of fact that [GDH] 1) had been secretly speaking to his biological mother since Christmas of 2017, and, 2) that his biological mother was coaching him on what to say to both CPS and the police."
Furthermore, even if Cross's testimony would have been admissible, defendant cannot demonstrate that there is a reasonable probability that Cross's proposed testimony would have affected the outcome of the proceedings. Id. Even if GDH's credibility was impeached, there was significant additional evidence establishing, beyond a reasonable doubt, that defendant physically abused his children on the morning of June 24, 2018. A neighbor contacted the police because the neighbor heard continuous screams coming from defendant's house, a police officer responded to defendant's home and observed bruises and red marks on both boys, and photographs of the children's injuries were taken at the hospital. The trial court found that the photographs taken at the hospital on June 26, 2018 showed significant bruising and red marks all over the children's bodies. Moreover, the defense theory at trial was not that defendant had not struck his children repeatedly with a belt on June 24, 2018, but rather that defendant's actions that day fell within the bounds of allowable discipline. Impeachment of GDH's credibility with a prior inconsistent statement was unlikely to alter the outcome of the proceedings considering the large body of photographic and testimonial evidence substantiating the abuse, particularly considering that the defense was not disputing that defendant had struck the children. Accordingly, there is no reasonable probability that Cross's testimony would have affected the outcome of the proceedings.
In a similar vein, defendant also argues that defense counsel was ineffective in failing to call "a single rebuttal witness" to challenge the children's testimony related to ongoing abuse. Defendant identifies three individuals who, if called, would have testified that they knew the family well, that they had frequent contact with the children, that they never saw any signs of abuse, and that the children never disclosed any abuse. We disagree that defense counsel's failure to call these additional witnesses was objectively unreasonable or prejudiced defendant. Defense counsel elicited testimony from Brown, a next-door neighbor, that she had never before heard anything like what she heard on June 24, 2018. Moreover, the children testified that they had never disclosed the abuse to anyone other than their mother, that defendant usually struck them on parts of their body that were not visible, and that on at least one occasion visible marks were concealed by makeup. In any event, defendant's abuse of the children on June 24 was itself sufficient to support his convictions, even if the factfinder was persuaded that such abuse had never happened before. See MCL 750.136b(3) (stating that a person is guilty of second-degree child abuse if he "knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm result.") (emphasis added). Defendant has not shown a reasonable probability that the outcome of the trial would have been different if defendant had called additional witnesses to testify that they had not observed evidence of ongoing abuse. Jurewicz, 506 Mich. at 914.
B. FAILURE TO IMPEACH THE CHILDREN'S TESTIMONY
Defendant also argues that defense counsel was ineffective in failing to effectively cross-examine the children, particularly in failing to impeach them with prior inconsistent statements they made during forensic interviews conducted in June and August 2018 and during an adjudication trial in the child protection proceeding in March 2019. We disagree.
In general, whether and how to impeach a witness are matters of trial strategy, left to counsel's professional judgment. People v Flowers, 222 Mich.App. 732, 737; 565 N.W.2d 12 (1997). This Court will not second-guess counsel's strategy with the benefit of hindsight. People v Dixon, 263 Mich.App. 393, 398; 688 N.W.2d 308 (2004).
Contrary to defendant's representations, the record shows that defense counsel pointed out inconsistencies in RDH's and GDH's trial testimony on multiple occasions, including using video excerpts from statements the children made during their Kids Talk interviews in June 2018. During RDH's trial testimony, defense counsel played excerpts from his Kids Talk interview to highlight discrepancies between RDH's trial testimony and his statements made during the interview regarding the number of times defendant had beaten him, whether his biological mother showed him a picture of defendant's alleged "boyfriend," whether RDH told anyone about the beatings before June 24, 2018, his knowledge of whether the biological mother encouraged the neighbor to contact CPS, and who had applied makeup on RDH's face to conceal bruising. Similarly, during GDH's testimony, defense counsel used excerpts from his Kids Talk interview to point out discrepancies regarding who had applied makeup to conceal the bruising and whether GDH blamed his paternal grandmother for taking him away from his biological mother. Although GDH was not specifically shown an excerpt from the Kids Talk interview, he was asked on cross-examination to explain discrepancies in reports related to when and how frequently he had contact with his biological mother.
In sum, the record discloses that defense counsel repeatedly, and competently, exposed inconsistencies between the children's trial testimony and earlier statements they had made concerning defendant's abuse. Although defense counsel did not reference the children's testimony from the child protection proceeding, counsel elected to use a video recording of an interview as opposed to a trial transcript to highlight past inconsistent statements. Defendant has not overcome the presumption of reasonable trial strategy. Flowers, 222 Mich.App. at 737. The children were 10 and 11 years old at the time of trial, and counsel reasonably may have determined that efforts at impeachment and attacking a child witness's credibility would be more effective through the use of a video recording of the children's previous statements as opposed to having them read a transcript of their prior testimony at the child protective proceeding.
Despite defense counsel's cross-examination and significant impeachment efforts, defendant argues that defense counsel missed several opportunities to further impeach the children's credibility with prior inconsistent statements. However, after reviewing the examples cited by defendant, it is apparent that the prior testimony either was not inconsistent with the children's trial testimony, or the alleged discrepancies were immaterial. For example, GDH testified at trial that he only had contact with his mother, whether by phone or e-mail, around Christmas 2017 and in the few days before the June 24, 2018 events. Defendant asserts that defense counsel failed to impeach GDH with inconsistent statements on this point made during the March 2019 trial in the child protection proceeding. However, GDH's statements made in March 2019 were not significantly or materially inconsistent with his trial testimony in this case.
At the March 2019 proceeding, GDH was asked if he had been allowed contact with his mother, and the follow colloquy occurred:
Q. Let me ask you, when you lived with our dad[, ] were you allowed to have contact with your mom?
A. No, but I snuck sometimes, like, because there was a house phone in the downstairs and if Katie told me to go down there or something I would ask Nana to use it and I would tell her I was calling my mom and she would just say yeah and I did it. But I only did that like twice. I did it once in December and another time
like, two days before we left. And I think there was a few other times before that. But it was only for a split second.
Q. Those were phone calls?
A. Yeah.
Q. Did you try to have other contact with your mom?
A. I would email her on my iPad because she gave me -I gave her my email address and we could email each other.
Q. Would anything happen when you had contact with your mom?
A. No, we would just talk about stuff. She sent me pictures of my siblings and stuff.
Q. Did your dad allow you to have contact with your mom?
A. No, that's why I was sneaking. And I told her about what was happening and that's why she sent the police and stuff over there.
Q. Did you ever get, you said sneaking, did you ever get caught by your dad when you were contacting your mom?
A. I almost got caught by Katie because she told me to watch the sign language video, but I went on a private browser and went to gmail and then I started e-mailing mommy and then she almost saw the screen but I never got caught.GDH's prior testimony regarding contact with his mother was substantially consistent with the testimony he gave in this trial. Defense counsel could have concluded, as a matter of trial strategy, that it was not worth cross-examining a minor child further regarding the precise number of phone calls, emails, or visits that had occurred over the previous two years. Flowers, 222 Mich.App. at 737.
Defendant also argues that defense counsel was ineffective in failing to impeach the children regarding discrepancies in their identification of the instrument defendant used during the beatings. We disagree. The record shows that the children variously stated that they were beaten with a "belt" or a "whip." RDH described the "whip" as long, relatively thin, and made of leather. The precise label the children gave to the instrument used by defendant was not material, especially when defendant admitted to disciplining the children with a belt. There is no evidence on the record that the trial court's decision rested on whether the injuries were made with a belt or a whip. Defendant has not demonstrated that his counsel's conduct in not pursuing this line of inquiry was either objectively unreasonably or prejudicial. Id.
Defendant also alleges that defense counsel was ineffective in failing to impeach GDH with inconsistencies in his recounting of how the events of June 24, 2018 unfolded. In his trial testimony, GDH testified that he awoke to being beaten by defendant. Further, he said that he was beaten first, and that defendant then told him to sit outside the bedroom on the couch while RDH received his beating. GDH did not know, or could not recall, if defendant used a belt or a whip. He said the beating was more than 5 or 10 minutes long. Because it had taken so long, GDH did not know how many times he was hit. However, at the trial in the family court proceeding, GDH testified that both he and RDH were awake and listening to defendant and KDH talking in another room. Later, when defendant came into their bedroom, the boys pretended that they were asleep. GDH testified in that proceeding that RDH was "spanked" first, while GDH waited outside the bedroom. GDH testified that it was hard to tell if defendant used a belt or a whip. He also believed that the beating could have lasted about 10 minutes.
GDH's testimony in the two trials was generally consistent. The only real discrepancy related to GDH's statements regarding which child received the first beating. It is difficult to conclude that defense counsel's failure to highlight this discrepancy fell below an objective standard of reasonableness or was prejudicial, especially, again, in light of the fact that defendant admitted to using a belt on both children that night. Id.
Finally, defendant argues that defense counsel performed deficiently by failing to cross-examine the children regarding "wild allegations" they made in their Kids Talk interviews related to naked parties in the home, sexual molestation, beatings to GDH's private parts, the use of makeup to conceal marks, "boyfriends" in the home, and the paternal grandmother's consumption of alcohol while the children were in her care. Defendant contends that had defense counsel explored these issues with the children, it would have been readily apparent that the children had been coached and that their stories were crafted by the children's biological mother. However, contrary to defendant's representations, many of these allegations were explored with the children. Both boys were cross-examined about their allegations that various adults used makeup to conceal the bruising on their faces. RDH was questioned about being shown a picture of defendant's boyfriend, seeing naked men in the home, and about his belief that defendant had killed someone in the home. Therefore, the record does not support defendant's claim that defense counsel was ineffective in not exploring areas that might have revealed that the children had been coached. To the extent defendant argues that defense counsel should have spent more time exploring these areas, we note that, as a matter of trial strategy, counsel may not have wished to "open the door" to a discussion of these various allegations which, after all, were not relied upon by the prosecution in charging defendant and were not a part of the prosecution's case in chief. Id.
In sum, the record shows that defense counsel did question both children about inconsistencies between their trial testimony and statements made during their Kids Talk interview and during the child protection proceeding. There is no indication that a more detailed cross-examination would have yielded a different outcome, particularly in light of the photographic evidence and the testimony of the responding police officer and the next-door neighbor. Moreover, the trial court's findings demonstrate that the court was fully aware of the children's inconsistencies that were brought out during their testimony. In light of the court's awareness and the substantiating testimony, defense counsel's decision not to explore every prior inconsistent statement did not likely affect the outcome of the proceedings. Defendant has not demonstrated that counsel rendered constitutionally ineffective assistance by electing not to press the children further on their prior inconsistent statements. Id.
C. FAILURE TO OBJECT TO BIOLOGICAL MOTHER'S CONTACT WITH CHILDREN
Defendant also notes that, during the trial, the children's biological mother entered the witness room before and between the children's testimony. Defendant argues that defense counsel was ineffective in failing to object. We disagree. Defendant admits that when he brought this issue to defense counsel, counsel in turn discussed the issue with the prosecution. Further, there is no evidence on the record that the children's mother influenced the children's testimony during these brief interactions. Under these circumstances, the record fails to establish that defense counsel performed below an objective standard of reasonableness by not objecting on the record. Jurewicz, 506 Mich. at 914. Moreover, considering that the children's testimony was corroborated by photographic evidence and the testimony of two independent witness, the record also provides no basis for concluding that, but for counsel's alleged error, there is a reasonable probability that the outcome of the trial might have been different had defense counsel objected on the record. Id.
III. ADMISSIBILITY OF OTHER-ACTS EVIDENCE
Defendant argues that the trial court erred by permitting the admission of testimony from GDH and RDH that defendant had abused them in a similar manner many times before June 24, 2018. Defendant maintains that evidence of any acts of abuse before that time was subject to MRE 404(b)(1), and should not have been allowed at trial because the prosecutor did not provide pretrial notice of its intent to introduce the other-acts evidence, contrary to MRE 404(b)(2).Defendant argues in the alternative that defense counsel was ineffective in not objecting to any alleged abuse that occurred before June 24, 2018. We disagree. We review a defendant's unpreserved claim of evidentiary error for plain error affecting substantial rights. People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019); People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999).
MRE 404(b)(1) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but is admissible for other, noncharacter purposes. MRE 404(b)(2) requires the prosecution to "provide written notice at least 14 days in advance of trial, or orally on the record later if the court excuses pretrial notice on good cause shown, of the general nature of any evidence it intends to introduce" under this rule.
Defendant's argument is predicated on his position that the evidence relevant to the charges against him was limited to the events of June 24, 2018. This is factually incorrect. Although the original felony information, filed on October 26, 2018, identified the "date of the offense" as "6/24/2018 MS," it further alleged that defendant had physically assaulted both children "on multiple occasions." More significantly, the information was amended on February 26, 2019, to specifically list the date of the offense as "2015-06/24/2018." Accordingly, defendant was clearly aware that he was charged with child abuse for acts committed between 2015 and June 24, 2016. During closing argument, the prosecutor reiterated, without objection, that the date of the offenses included 2015 through June 24, 2018. Therefore, and contrary to defendant's representations, testimony related to events occurring before June 24, 2018 was not other-acts evidence subject to MRE 404(b)(1), but was, in fact, evidence germane to the charged offenses. Consequently, defendant has failed to establish that the children's testimony about other episodes of abuse should not have been admitted. And because this testimony was not improper, defense counsel was not ineffective in failing to object; defense counsel is not ineffective for failing to raise a meritless or futile objection. People v Miller, 326 Mich.App. 719, 731-732; 929 N.W.2d 821 (2019).
IV. DENIAL OF MOTION FOR NEW TRIAL OR EVIDENTIARY HEARING
Defendant's postconviction motions included a motion for a new trial or an evidentiary hearing. The trial court denied the motion without conducting an evidentiary hearing, concluding that a Ginther hearing was not necessary because, even if defendant's complaints about defense counsel's conduct were true, there was no reasonable probability that the alleged errors affected the outcome of defendant's trial. Defendant argues that the trial court erred by so concluding. We disagree.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
A Ginther hearing is a method by which "[a] defendant who wishes to advance claims that depend on matters not of record can properly . . . seek at the trial court level an evidentiary hearing for the purpose of establishing his claims[.]" Ginther, 390 Mich. at 443. However, the decision to deny a Ginther hearing is not an abuse of discretion where the "defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective[.]" People v Williams, 275 Mich.App. 194, 200; 737 N.W.2d 797 (2007). We review for an abuse of discretion a trial court's decision to deny a Ginther hearing. Id. An abuse of discretion occurs when the trial court chooses an outcome outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008).
In his postconviction motion and on appeal, defendant argues that he was denied the effective assistance of counsel as already discussed. The trial court held a hearing to determine whether to grant defendant's motion for a new trial or Ginther hearing. During this hearing, the trial court accepted all of defendant's representations and ultimately concluded that even if defense counsel had acted in the manner suggested by defendant, the result of the proceeding would have been the same. The trial court found credible and compelling not only the children's testimony, but also the photographs of the children's severe injuries, and the corroborating testimony of two independent witness, and concluded that none of defendant's ineffective assistance claims were prejudicial. As discussed, we agree. The trial court did not abuse its discretion by determining that further development of the record was not necessary to resolve defendant's claims. Williams, 275 Mich.App. at 200.
V. SCORING OF OFFENSE VARIABLES
Defendant also argues that the trial court erred by assessing 10 points for both offense variable (OV) 9 and OV 10. We disagree. When reviewing a trial court's scoring decision, we review for clear error the trial court's findings of fact, which must be supported by a preponderance of the evidence. People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). We review de novo the trial court's determination whether the facts as found satisfy the scoring conditions articulated in the statute. Id. The trial court may rely on inferences that arise from the record evidence when making the finding underlying its scoring of offense variables. People v Early, 297 Mich.App. 104, 109; 877 N.W.2d 271 (2012).
Defendant argues that the trial court erred by assessing 10 points for OV 9 because it improperly determined that there were at least two victims of each assault. We disagree. OV 9 considers the number of persons victimized, and a score of 10 points is appropriate when there are 2 to 9 persons "placed in danger of physical injury or loss of life." MCL 777.39(2)(a). "A person may be a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a physically threatened situation, may suffice to count the person as a victim." People v Baskerville, 333 Mich.App. 276, 294; 963 N.W.2d 620 (2020) (citation omitted). But OV 9 may not be scored on the basis of conduct outside the particular transaction that gave rise to the sentencing offense. Id.
Defendant was convicted of two counts of second-degree child abuse, one for RDH and one for GDH. Contrary to defendant's assertion, however, the trial court did not aggregate the two children who were each a victim of physical abuse to conclude that there were two victims for purposes of scoring OV 9. Instead, the court considered each sentencing offense, but then noted that both children were at risk of physical injury for each offense. "The sentencing offense is defined as the crime of which the defendant has been convicted and for which he or she is being sentenced." People v Carpenter, 322 Mich.App. 523, 529; 912 N.W.2d 579 (2018) (quotation marks and citation omitted). The record shows that when defendant was physically assaulting RDH, GDH, who was instructed to wait on a couch outside the bedroom, was in close proximity to a physically threatened situation and therefore at risk of injury, as were the other children in the house. Baskerville, 333 Mich.App. at 294. The same can be said for RDH when GDH was being assaulted. Id. Consequently, the trial court did not err by finding that there were two victims for purposes of scoring OV 9. See People v Sargent, 481 Mich. 346, 350-351 n 2; 750 N.W.2d 161 (2008) (stating that "in a robbery, the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present at the scene of the robbery who were placed in danger of injury or loss of life").
Defendant also argues that the trial court erred by assessing 10 points for OV 10. We disagree. OV 10 addresses exploitation of a vulnerable victim and the court must assess 10 points when "[t]he 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." MCL 777.40(1)(b). "Exploit" means "to manipulate a victim for selfish or unethical purposes. Exploit also means to violate section 50b of the Michigan penal code, 1931 PA 328, MCL 750.50b, for the purpose of manipulating a victim for selfish or unethical purposes." MCL 777.40(3)(b). "Abuse of authority status" "means a victim was exploited out of fear or deference to an authority figure, including, but not limited to, a parent, physician, or teacher." MCL 777.40(3)(d). Defendant contends that OV 10 should have been assessed 0 points because defendant's crime did not involve the exploitation of a vulnerable victim. We disagree.
The trial court found that defendant "took advantage" of the children's youth and his domestic relationship and authority status over them as their father and adult household member. This inference was supported by the record. People v Early, 297 Mich.App. 104, 109; 877 N.W.2d 271 (2012). The evidence established that, before and during the beatings, defendant screamed at the children that he was "the man of the house," told them that he was the only one who loved them, and told them that their biological mother did not love them. This conduct more than supports a finding that defendant manipulated the children for selfish or unethical purposes. See MCL 777.40(3)(b). Moreover, Defendant also ordered the children to submit to the abuse in the context of his authority to punish them as their father, and further used his position of authority over the children to ensure that neither child would be present in the same room to witness the beating of the other child. MCL 777.40(3)(d). The record therefore supports the trial court's 10-point score for OV 10.
VI. CUMULATIVE ERROR
Defendant also argues that the cumulative effect of several errors deprived him of due process and a fair trial. However, cumulative error only warrants reversal when several errors combine to undermine the confidence in the reliability of the verdict. People v Dobek, 274 Mich.App. 58, 106; 732 N.W.2d 546 (2007). In this case, defendant has failed to establish any error. "Absent the establishment of errors, there can be no cumulative effect of errors meriting reversal." Id.
Affirmed.