Opinion
No. 334903
10-12-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID PAUL RODDA, JR., Defendant-Appellant.
UNPUBLISHED Marquette Circuit Court
LC No. 15-054161-FC Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (penetration of a person at least 13 years of age and under 16 years of age), and his sentence to concurrent terms of 5 to 15 years' imprisonment for each conviction. Defendant was also acquitted of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (penetration of a person at least 13 years of age and under 16 years of age which causes personal injury to the victim and force or coercion is used), which were charged in the alternative. We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The victim, a 15-year-old female, met defendant, a 37-year-old male, after they attended the same party. When leaving the party, the victim was visibly intoxicated. Defendant offered the victim and her friend to come to defendant's home. Once there, the victim and her friend continued to drink beer. When the victim's friend left for the night, the victim fell asleep on defendant's couch. She woke up later to defendant attempting to remove her pants. After a futile attempt at resisting defendant, the victim was vaginally and orally penetrated by defendant's genitalia. Defendant ejaculated in the victim's vagina and on the shirt she was wearing, a men's tank top.
Vaginal and oral swabs performed more than 24 hours after the incident tested negative for seminal fluid. The victim's shirt and pants, however, revealed the presence of sperm cells. A later DNA test matched the sperm cells conclusively to defendant. After amending the felony information twice, the prosecution tried defendant on two counts of CSC-I, and in the alternative, two counts of CSC-III. Defendant contended at trial that the shirt that contained his DNA belonged to him, he had previously used the shirt to clean up his own semen, and the victim took the shirt from his home on the night in question. Defendant presented expert testimony to the effect that the DNA found in the victim's pants was most likely a result of secondary transfer from the shirt, considering the vaginal swab was negative for seminal fluid.
After a three-day trial, the jury found defendant not guilty of the two counts of CSC-I, and found him guilty of the two counts of CSC-III. Defendant was sentenced as noted. This appeal followed.
II. AMENDMENT OF THE FELONY INFORMATION
Defendant argues that the trial court abused its discretion when it permitted the prosecution to amend the felony information. We disagree.
A. WAIVER
"[I]ssues for appeal must be preserved in the record by notation of objection[.]" People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000). A failure to properly object to an issue forfeits that issue, but does not extinguish the error; instead, it allows for plain error review. Id. at 215-216. See also People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Waiver, however, occurs when a defendant "affirmatively approve[s]" of an issue before the trial court, only to later argue that there was error on appeal. People v Jackson, 313 Mich App 409, 420; 884 NW2d 297 (2015). When waiver occurs, unlike forfeiture, the error is extinguished. Carter, 462 Mich at 215.
When the trial court considered the prosecution's request to amend the felony information, defense counsel agreed with the prosecution that the amended felony information would not cause defendant any unfair surprise or undue prejudice. Therefore, because defense counsel "affirmatively approved" the second amended felony information, this issue has been waived and the error extinguished. Carter, 462 Mich at 215-216; Jackson, 313 Mich App at 420. Nevertheless, because defendant also claims that his trial counsel was ineffective for failing to object to the amendment, we will consider the merits of defendant's argument.
B. STANDARD OF REVIEW AND APPLICABLE LAW
"This Court reviews for an abuse of discretion a trial court's decision to grant or deny a motion to amend an information." People v Perry, 317 Mich App 589, 594; 895 NW2d 216 (2016). "The trial court abuses its discretion when its decision falls outside the range of principled outcomes." Id.
"The court before, during, or after trial may permit the prosecutor to amend the information . . . unless the proposed amendment would unfairly surprise or prejudice the defendant." MCR 6.112(H). This Court has held that "the only legal obstacle to amending the information[,]" to add a newly charged offense, is "whether the amendment would cause undue prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend." People v McGee, 258 Mich App 683, 690; 672 NW2d 191 (2003) (internal quotation marks omitted). "A defendant may establish unfair surprise by articulating how additional time to prepare would have benefited the defense." Perry, 317 Mich App at 594. Even so, in order to prove that reversal is required due to the amendment, a defendant must show "that the alleged error undermined the reliability of the verdict." McGee, 258 Mich App at 693. This Court has previously held that where a defendant is aware of the proposed amendment before trial and is able to cross-examine witnesses regarding the new charge, the defendant cannot show that he was unfairly surprised. Perry, 317 Mich App at 594-595.
C. ANALYSIS
There is nothing on the record to suggest that defendant was somehow surprised or prejudiced by the amendment, where he was undisputedly aware of the prosecution's intent to amend the information, at the very latest, ten weeks before trial began when the trial court discussed the issue on the record. Indeed, defendant's trial counsel admitted on the record that defendant was aware that the police report contained allegations that would, if true, sustain all of the charges that were being added with the amendment. Further, there is nothing on the record, and defendant makes no allegations on appeal, that would suggest defendant's defense strategy was somehow altered by the amendment. Indeed, defendant's defense from the beginning of trial, both before and after the amendment, was that there was no sexual activity by defendant. Consequently, the amendment did not cause defendant to have an "insufficient opportunity to defend." McGee, 258 Mich App at 690. Moreover, even if defendant's defense had to change, he was provided more than adequate time to prepare that defense, provided that the amendment was accepted approximately seven weeks before trial. See Perry, 317 Mich App at 594-595.
In sum, because defendant did not suffer from an "unfair surprise [or] inadequate notice," and was provided a "[]sufficient opportunity to defend[,]" the trial court did not abuse its discretion in granting the prosecution's motion to amend the felony information. McGee, 258 Mich App at 690.
III. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecution committed misconduct by asking questions of defendant that shifted the burden of proof. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
"Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed de novo, but a trial court's factual findings are reviewed for clear error." Brown, 279 Mich App at 134. However, because defendant failed to make a contemporaneous objection or request for a curative instruction, the issue presented has not been preserved for review, see id., and therefore, this Court must review the "unpreserved claim for plain error affecting defendant's substantial rights." People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Carines, 460 Mich at 763.
"Given that a prosecutor's role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). When considering allegations of prosecutorial misconduct, this Court must "examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64. The prosecution is not permitted to "imply . . . that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof." People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010). However, "[w]here a defendant . . . advances, either explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment on the validity of the alternate theory cannot be said to shift the burden of proving innocence to the defendant." People v Reid, 233 Mich App 457, 478; 592 NW2d 767 (1999) (internal quotation marks omitted). Similarly, "[a]rguments regarding the weight and credibility of the witnesses and evidence presented by defendant do not shift the burden to the defendant to prove his innocence, but rather question the reliability of the testimony and evidence presented." People v Fields, 450 Mich 94, 107; 538 NW2d 356 (1995). Simply stated, "attacking the credibility of a theory advanced by a defendant does not shift the burden of proof." People v McGhee, 268 Mich App 600, 635; 709 NW2d 595 (2005).
B. ANALYSIS
Defendant testified during trial to a different version of events than the victim asserted. Part of defendant's argument was that the shirt in question belonged to him and that his DNA must have transferred from the shirt to the victim's pants. While the prosecution is not permitted to ask questions that would indicate to the jury that the burden of proof was somehow on defendant, the prosecution is permitted to challenge the veracity of defendant's version of events. See Fields, 450 Mich at 107. The prosecution in the instant case challenged defendant's veracity by pressing him during cross-examination regarding the credibility of his story and the reliability of his testimony in light of the evidence presented at trial. Defendant explained why his DNA would be found on the victim's shirt and pants, and the prosecution, therefore, was permitted to challenge the reliability of that defense by pointing out that it seemed like a post hoc attempt to explain the DNA evidence. See id. In so doing, the prosecution was not suggesting that defendant was required to prove his innocence, but only that his version of events was not entirely credible, based on the evidence. See McGhee, 268 Mich App at 635.
Defendant also testified that he was not at the same party as the victim on the night in question, but was at a local bar shooting billiards. Defendant testified that he could not remember specifically at which bar he was playing billiards. The prosecution pressed defendant on his inability to remember the exact bar, suggesting that given the severe consequences suffered by defendant due to the outcome of that night, he would be more likely to remember his exact whereabouts. That line of questioning challenged defendant's credibility as a witness, by indicating that defendant's memory of that night was not as clear as he previously indicated. The prosecution was entitled to challenge defendant's credibility where his version of events relied primarily on his testimony. See Fields, 450 Mich at 107.
The prosecution's questions did not impermissibly shift the burden of proof and, therefore, the prosecution did not commit misconduct requiring reversal. Id.; McGhee, 268 Mich App at 635.
IV. TESTIMONY REGARDING UNDERAGE DRINKING
Next, defendant argues that the trial court abused its discretion when it permitted the prosecution to elicit testimony that defendant allowed the victim to drink alcoholic beverages while at his home. Again, we disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
This issue is unpreserved because defendant failed to object to the challenged testimony before the trial court on the same grounds now argued on appeal. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Generally, "[w]hen the issue is preserved, we review a trial court's decision to admit evidence for an abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of evidence precludes admissibility." People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). However, because the issue presented has not been preserved for review, this Court must review the "unpreserved claim for plain error affecting defendant's substantial rights." Roscoe, 303 Mich App at 648.
Defendant argues that his testimony should have been excluded pursuant to MRE 403, or ruled as inadmissible pursuant to MRE 404(b)(1). However, MRE 404(a)(1) and MRE 405(a) provide the controlling law under the facts of this case. See People v Lukity, 460 Mich 484, 498-499; 596 NW2d 607 (1999). MRE 404(a)(1) allows "[e]vidence of a pertinent trait of character offered by an accused[.]" Once that evidence is admitted, however, the prosecution is permitted to, "[o]n cross-examination, inquir[e] [] into reports of relevant specific instances of conduct" relating to the alleged character trait. MRE 405(a).
B. ANALYSIS
Defendant's testimony on direct examination amounted to an assertion that his character would not allow him to act in a negative way toward children. Indeed, he stated that he had "kids of his own" and that affected his attitude toward children. Defendant stated that the allegations hurt him, because "that's not who [he is]." In short, defendant testified that as a matter of character, he could not have committed the actions alleged by the victim, a 15-year-old girl. Defendant's testimony "was clearly evidence of a pertinent trait of character in the context of a trial on charges" that defendant sexually assaulted an underage girl. Lukity, 460 Mich at 498 (internal quotation marks omitted). "Thus, this evidence offered by the accused was admissible under MRE 404(a)(1)." Lukity, 460 Mich at 498.
That testimony, however, "opened the door" to "cross-examination into relevant specific instances of conduct" that would rebut defendant's claimed character trait. Id.; MRE 405(a). The prosecution asked about defendant's decision to allow the victim to drink in his presence. That was a specific instance of conduct that rebutted defendant's assertion of character with respect to underage individuals. The prosecution also asked whether defendant would be angry if an adult allowed his underage children to drink alcohol. That question was in response to defendant's assertion that his character with respect to children arose out of his having children himself. The prosecution was permitted to ask questions regarding, and elicit testimony about, those subjects because they provided evidence of specific instances of conduct on cross-examination that rebutted a character trait asserted by defendant. MRE 404(a)(1); MRE 405(a); Lukity, 460 Mich at 498-499.
On the facts of this case, the prosecution did not err in eliciting, and the trial court did not err in permitting, the testimony now challenged by defendant. MRE 404(a)(1); MRE 405(a).
V. EXPERT WITNESS'S FINANCIAL INTEREST
Defendant argues that the trial court abused its discretion by permitting the prosecution to elicit testimony from defendant's expert witness regarding how much she was paid for her testimony. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Generally, "[w]hen the issue is preserved, we review a trial court's decision to admit evidence for an abuse of discretion, but review de novo preliminary questions of law, such as whether a rule of evidence precludes admissibility." Chelmicki, 305 Mich App at 62. However, given defendant's lack of objection during trial, the issue presented has not been preserved for review, and this Court must review the "unpreserved claim for plain error affecting defendant's substantial rights." Roscoe, 303 Mich App at 648; Aldrich, 246 Mich App at 113.
Defendant challenges the trial court's decision to allow the prosecution to ask his expert witness how much she was paid to testify on defendant's behalf as inadmissible character evidence pursuant to MRE 404(b) and properly excluded pursuant to MRE 403 due to its unfair prejudice. We disagree, however, because Michigan case law establishes that an expert witness's financial motive is admissible to show the expert's potential bias. "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility." MRE 611(c). Indeed, this Court has held that "the bias or interest of a witness is always a relevant subject of inquiry upon cross-examination." People v Morton, 213 Mich App 331, 334; 539 NW2d 771 (1995). The Michigan Supreme Court held similarly, opining that "the evidence of bias is almost always relevant[,]" and "that [t]he interest or bias of a witness has never been regarded as irrelevant." People v Layher, 464 Mich 756, 763-764; 631 NW2d 281 (2001) (internal quotation marks omitted). Once that testimony is admitted, the prosecution is "free to argue that defense counsel had 'bought' [the expert's] testimony by paying [her] a substantial amount of money." People v Unger, 278 Mich App 210, 236-237; 749 NW2d 272 (2008). This Court reasoned that such evidence "did not denigrate defense counsel as much as it tended to denigrate the expert witness himself. Moreover, counsel is always free to argue from the evidence presented at trial that an expert witness had a financial motive to testify." Id. at 237.
B. ANALYSIS
The record reveals that the prosecution elicited testimony from defendant's DNA expert witness that she was paid approximately $6,000 for her testimony. The law is clear that testimony regarding how much an expert witness is paid is relevant and admissible. See Layher, 464 Mich at 763-764. Further, this Court has held that the pecuniary interest of an expert witness reflects on the character of the expert witness, not on defendant. See Unger, 278 Mich App at 236-237. Provided that the testimony was relevant, admissible, and did not reflect poorly on defendant's character, defendant has provided no grounds on which we could hold that the evidence in question should have been excluded or deemed inadmissible. See Layher, 464 Mich at 763-764; see also Unger, 278 Mich App at 236-237.
In sum, the trial court did not err, plainly or otherwise, in allowing defendant's expert witness to state how much she was paid to testify as an expert witness. See id.; see also Layher, 464 Mich at 763-764.
VI. SCORING ERRORS
Defendant argues that the trial court erred in scoring defendant's offense variables (OVs), which led to an erroneous guideline range and requires reversal. We disagree.
A. STANDARD OF REVIEW AND GENERAL LAW
For preserved issues "[u]nder the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id. Unpreserved issues, however, such as those presented herein in light of defendant's failure to object to the scoring, are reviewed "for plain error affecting substantial rights." People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).
"When challenged, a sentencing factor need only be proved by a preponderance of the evidence." People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). "Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." People v McGraw, 484 Mich 120, 133; 771 NW2d 655 (2009). "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination." People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). "The trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable." Earl, 297 Mich App at 109.
B. OV 4
Defendant first challenges the score of 10 points for OV 4. Pursuant to MCL 777.34(1), OV 4 "is psychological injury to a victim." OV 4 is properly scored at 10 points when "[s]erious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a). "In making this determination, the fact that treatment has not been sought is not conclusive." MCL 777.34(2). "We have upheld a trial court's assessment of 10 points for OV 4 when the victim suffered personality changes, anger, fright, or feelings of being hurt, unsafe, or violated." People v Schrauben, 314 Mich App 181, 197; 886 NW2d 173 (2016) (internal quotation marks omitted). The trial court is also permitted to rely on the victim's demeanor during trial to determine whether the victim suffered a psychological injury. Id.
The record revealed testimony from the victim that she cried during the assault, slept underneath a coffee table afterward, and had been in contact with victim's rights advocates from a women's center. There was also testimony during trial that on the day following the assault, the victim appeared "very upset" and "rugged[.]" The trial court commented that the victim's testimony during trial was "somewhat flat," and revealed "the impact that [the assault] did have on her."
The trial court did not clearly err when it inferred from the victim's testimony that she cried during the assault and slept underneath a coffee table afterward, that the victim had "feelings of being hurt, unsafe, or violated." See Schrauben, 314 Mich App at 197 (internal quotation marks omitted). The trial court also avoided clear error when it inferred, based on other trial testimony, that the victim's feelings of hurt and violation continued to the next day, when she looked rugged and upset. See Earl, 297 Mich App at 109. Similarly, it was not clear error for the trial court to infer that the victim's psychological suffering continued until trial, when she gave testimony with a flat effect and had victim's rights representatives in the courtroom for support. See Schrauben, 314 Mich App at 197 (internal quotation marks omitted). Therefore, given the lack of clear error in the trial court's findings of fact considering the evidence presented and the reasonable inferences therefrom, the trial court properly determined that there was a preponderance of the evidence that supported that the victim suffered "[s]erious psychological injury requiring professional treatment[.]" MCL 777.34(1)(a).
OV 4 was properly scored at 10 points. MCL 777.34(1)(a).
C. OV 10
Defendant next challenges the scoring of OV 10. Pursuant to MCL 777.40(1), OV 10 "is exploitation of a vulnerable victim." OV 10 is properly scored at 5 points, as it was in this case, where "[t]he offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious." MCL 777.40(1)(c). Defendant, on appeal, does not challenge that the victim was a "vulnerable person[,]" which is a prerequisite to assigning any points under OV 10. People v Cannon, 481 Mich 152, 158; 749 NW2d 257 (2008). Instead, defendant argues that he did not exploit the victim's vulnerability. The statute defines "exploit" as "to manipulate a victim for selfish or unethical purposes." MCL 777.40(3)(b).
Testimony at trial revealed that the victim was intoxicated at the time of the assault, defendant knew that she was, and the victim was passed out when defendant asserted himself on her. Given his awareness of the victim's intoxication, the trial court did not clearly err in finding that defendant manipulated the victim's exhibited intoxication to his advantage, by asserting himself on her while she was passed out drunk on his couch. MCL 777.40(3)(b). Therefore, the trial court properly determined that there was a preponderance of the evidence that defendant "exploit[ed] [the] victim[,] who was intoxicated[.]" MCL 777.40(1)(c).
OV 10 was properly scored at 5 points. MCL 777.40(1)(c).
D. OV 11
Defendant next challenges the trial court's scoring of OV 11 at 25 points. Pursuant to MCL 777.41(1), OV 11 "is criminal sexual penetration." OV 11 is properly scored at 25 points where "[o]ne criminal sexual penetration occurred." MCL 777.41(1)(b). However, the statute clarifies that the trial court must "not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense." MCL 777.41(2)(c). "Vaginal penetration, fellatio, and cunnilingus are considered separate sexual penetrations when scoring OV 11 under MCL 777.41." People v Johnson, 298 Mich App 128, 132; 826 NW2d 170 (2012). "The statute instructs that only penetrations of the victim arising out of the sentencing offense are scored, but the one penetration that forms the basis of the sentencing offense is excluded." People v Wilkens, 267 Mich App 728, 743; 705 NW2d 728 (2005). "The phrase 'arising out of the sentencing offense' refers to all penetrations arising out of the entire assault." Id., quoting People v McLaughlin, 258 Mich App 635, 674; 672 NW2d 860 (2003).
The jury found defendant guilty of two counts of CSC-III, one each for the penile-oral penetration and the penile-vaginal penetration. The record is clear that both of the penetrations "aros[e] out of the entire assault." Wilkens, 267 Mich App at 743. Therefore, in scoring OV 11 for the penile-oral penetration conviction, there was a separate penetration, the penile-vaginal one, requiring a score of 25 points. MCL 777.41(1)(b). Similarly, when considering the conviction for the penile-vaginal penetration conviction, the penile-oral penetration required a score of 25 points for OV 11. MCL 777.41(1)(b). Indeed, this Court has held that when there are two separate penetrations arising out of the same assault, and the defendant is convicted of two crimes relating to each separate penetration, the proper score is 25 points for each conviction. See Wilkens, 267 Mich App at 743. Consequently, the trial court properly determined that there was a preponderance of the evidence supporting a score of 25 for OV 11 for each conviction. MCL 777.41(1)(b).
OV 11 was properly scored at 25 points.
In sum, because there was no scoring error, plain or otherwise, committed by the trial court during sentencing, we affirm defendant's sentence. Lockridge, 498 Mich at 392; Hardy, 494 Mich at 438.
VII. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, defendant argues that he was denied his constitutional right to the effective assistance of counsel. Again, we disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
This issue is unpreserved because defendant failed to "move the trial court for a new trial or a Ginther hearing." Jackson, 313 Mich App at 431. "Appellate review of an unpreserved argument of ineffective assistance of counsel, like this one, is limited to mistakes apparent on the record." Johnson, 315 Mich App at 174. "The denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo." Schrauben, 314 Mich App at 189, quoting Brown, 279 Mich App at 140.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
"Criminal defendants have a right to the effective assistance of counsel under the United States and Michigan Constitutions." Schrauben, 314 Mich App at 189-190, citing US Const, Am VI; Const 1963, art 1, § 20. "However, effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." Id. at 190. The United States Supreme Court has held that "in order to receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that 'counsel's representation fell below an objective standard of reasonableness' and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). "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).
B. ANALYSIS
Defendant argues that defense counsel was ineffective for failing to object to the prosecution's motion to amend the felony information and the trial court's scoring of OVs 4, 10, and 11. However, as discussed in Sections II and VI of this opinion, supra, there was no error in allowing the amendment of the felony information or in scoring the OVs. For that reason, had defendant's trial counsel objected as argued by defendant, those objections would have been futile. See Ericksen, 288 Mich App at 201. As such, because "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel[,]" defendant's argument on appeal is without merit. Id.
In sum, because the objections that defendant asserts should have been made would have been futile, defendant was not denied the effective assistance of counsel. Id.; Vaughn, 491 Mich at 669.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
/s/ Michael J. Riordan