People of Michigan v. Steven Nichol, 343738

Background

Defendant Steven Nichol, boyfriend of the victim’s mother, was convicted by a jury of second-degree criminal sexual conduct (victim under 13) for touching an 11‑year‑old girl’s vagina while she slept; sentenced as a second‑offense habitual offender to 60–270 months.
The victim alleged the incident occurred New Year’s Eve/New Year’s Day while she was in a dark room with siblings; she disclosed the abuse about nine months later.
The prosecution introduced other‑acts evidence: testimony from a former stepson alleging decades of abuse, defendant’s admission and prior conviction for digital penetration of a stepdaughter, and defendant’s own trial testimony admitting past abuse.
The trial court admitted the other‑acts evidence over MRE 403 objections; the court found it probative on propensity and credibility given similarities and lack of physical evidence for the charged touching.
Defendant raised multiple ineffective‑assistance‑of‑counsel (IAC) claims (failure to admit hearsay about the brother, failure to object to vouching, eliciting a detective’s credibility view, failure to impeach with prior testimony, failure to present various documents and witnesses, and timing/discrepancy issues); most claims were unpreserved and reviewed for errors apparent on the record.
The Court of Appeals affirmed: other‑acts evidence admissible and no constitutional IAC error shown (some tactical omissions possibly deficient but not prejudicial; several claims lacked record support).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of past‑sex‑abuse (other‑acts) evidence	Other acts admitted were probative to show propensity, likelihood, and to bolster victim’s credibility; necessary given no physical evidence.	Evidence was more prejudicial than probative: dissimilar (penetration vs brief touching), long time lapse, unfairly suggested propensity.	Admitted: similarities (child, genitals, same household relationship, hand contact) and reliability (admissions/conviction) outweighed prejudice; no abuse of discretion.
IAC — failure to admit mother’s report that brother touched victim (hearsay)	N/A (prosecution opposed hearsay admission).	Trial counsel should have sought admission under present‑sense impression (MRE 803(1)) or excited utterance to present alternate suspect.	Counsel arguably deficient for not pursuing present‑sense theory, but defendant not prejudiced: jury heard mother’s testimony and considered it.
IAC — failure to object to witness statements about victim’s inability to lie (vouching)	N/A (prosecution used MRE 608 to rehabilitate witness after defendant attacked credibility).	Counsel should have objected to inadmissible opinion/vouching about honesty.	No deficiency: defendant attacked victim’s truthfulness in opening, so reputation/opinion evidence under MRE 608(a) was proper; objection would be futile.
IAC — eliciting detective’s view on defendant’s veracity	N/A (prosecution questioned credibility of defendant).	Counsel erred by asking detective whether defendant was telling the truth, eliciting unfavorable impression.	Not deficient: question was part of strategy to show defendant had previously admitted past abuse and thus would tell truth now; tactical choice.
IAC — failure to impeach victim with preliminary exam about eyes closed	N/A	Counsel should have used prior testimony to show inconsistency about whether victim could identify assailant.	Not deficient: trial testimony and prelim exam were consistent (used technique to see a little); no basis for impeachment failure.
IAC — failure to pursue clothing discrepancy, note, therapist note, date inconsistency	N/A	Counsel should have introduced/explored documents and testimony to undermine victim’s account.	No prejudice or record support: many claims lack record or involve privileged/confidential materials; register of actions is not evidence.

Key Cases Cited

People v Watkins, 491 Mich 450 (2012) (factors for excluding other‑acts evidence under MRE 403)
People v Babcock, 469 Mich 247 (2003) (abuse‑of‑discretion standard for evidentiary rulings)
People v McGhee, 268 Mich App 600 (2005) (standard of review for bad‑acts evidence admission)
People v Solloway, 316 Mich App 174 (2016) (temporal gap does not automatically preclude other‑acts evidence)
People v Grant, 470 Mich 477 (2004) (IAC is mixed question of fact and law; Strickland framework applied)
People v Lukity, 460 Mich 484 (1999) (opening statement attacking truthfulness permits prosecution to present rebuttal reputation evidence)
People v Armstrong, 490 Mich 281 (2011) (failure to pursue an evidentiary theory may be deficient absent strategy justification)
People v Unger (On Remand), 278 Mich App 210 (2008) (review scope for unpreserved IAC claims)