Filed 10/5/18 P. v. Nicolas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Kenneth Lee Nicolas appeals from the judgment convicting him of three counts of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b))[1] and five counts of non-forcible lewd act upon a child 14 years of age or younger. (§ 288, subd. (a).) He argues his conviction must be reversed because the trial court erred (1) by dismissing a juror for bias during deliberations; and (2) by denying his motion for a new trial based on ineffective assistance of counsel.

We find no error and affirm the judgment.

It is undisputed the dismissed juror expressed an opinion that Filipinos—a nationality group that includes Nicolas’s two victims and their parents—would do almost anything for money, and that she believed her insight was relevant in light of the evidence that the victims’ father had filed a lawsuit against Nicolas on their behalf. Even if it were possible to construe the juror’s comments in a more benign fashion, the trial court did not abuse its discretion by concluding the juror was relying on an improper ethnic bias to suggest these victims were more likely to have fabricated their claims than non-Filipino victims would have been. That conclusion supported the trial court’s decision to dismiss the juror.

Nicolas contends his counsel was ineffective for failing to adequately investigate and present evidence demonstrating his victims had motives to lie about his alleged abuse. Nicolas primarily faults his trial counsel for declining to build a speculative case that his victims’ father, an allegedly abusive, controlling, and manipulative man, persuaded them to fabricate allegations of sexual abuse against Nicolas so the father could then file a lawsuit against Nicolas for money. Nicolas also faults his counsel for not producing additional evidence to undermine the veracity of his own daughter, who also accused him of sexual abuse, and by not calling his younger daughter to testify on his behalf.

Following an evidentiary hearing, the trial court concluded counsel’s alleged failures were strategic decisions, were objectively reasonable, and even if mistaken, were not prejudicial. We agree. Demonstrating that different defense counsel might have adopted a different defense strategy is not enough to prove ineffective assistance of counsel.

FACTS

In early 2011, Nicolas became involved in a relationship with Ruby C., who shared custody of her minor daughters, A., age 10, and L., age 9, with her husband, Andy C. Ruby sometimes spent the night at Nicolas’s house, and she brought along her daughters and their half-brother during the periods she had custody. Nicolas also had two daughters residing with him, J. and C., who were somewhat older than A. and L.

Later that year, when Ruby was working a night shift, she would often leave the girls and their brother at Nicolas’s house overnight while she was at work. A. testified that she and her siblings did not have a room to sleep in at Nicolas’s house, so at Nicolas’s suggestion, she and L. slept in his bed, while their brother slept on the couch. The first night, Nicolas also slept on the couch, but after that he slept in the bed in between the two girls. Starting in approximately September, Nicolas began touching A., underneath her clothes, on her breasts and between her legs, and putting his finger inside her. He did that on two or three occasions. He also touched A.’s breast with his mouth.

After Nicolas began touching A., she started sleeping on the couch when at his house because she was afraid and did not want to deal with Nicolas. Because of her fear, A. never spoke to Nicolas about what he was doing. After A. started sleeping on the couch, Nicolas sometimes invited her to come sleep in the bed, but she stayed on the couch—not because it was more comfortable, but because she was afraid Nicolas might touch her again.

A. was concerned that Nicolas might do the same thing to L., and she encouraged L. to sleep on the couch with her, but she did not tell L. what Nicolas had done to her. However, A. did tell her friends, Emma and Morgan.[2]

After Thanksgiving, Ruby and her children moved into Nicolas’s home. Once the family moved in, A., L., and their brother shared a bedroom, and she did not sleep in Nicolas’s bed again.

At some point after A. told her two friends what Nicolas had done to her, she also told her mother. Ruby responded by telling A. not to tell anyone. She explained to A. that Nicolas denied touching A., that they needed a place to live, and that she didn’t want Nicolas’s own daughters to have no place to go.

However, Emma shared with her own mother what A. had told her about Nicolas, and Emma’s mother contacted the police. Two police officers then went to A.’s and L.’s school and interviewed both of them. L. initially told the officer that she liked Nicolas, and she denied he had done anything to her. However, after being reminded of the importance of telling the truth, L. reported that during the time she was sleeping on Nicolas’s bed, he had touched her breasts and the area between her legs, putting his finger inside her. She estimated he had done it about six times.

L. stated she told Ruby after the first time Nicolas touched her, and Ruby told L. she had yelled at him about it. L. said there was no one else in the bed when Nicolas touched her, and it hurt every time. She was shocked and scared, but continued to sleep in his bed because she had nowhere else to go. L. did not tell anyone about it other than Ruby, and later A.

After talking to A. and L., the police interviewed J. and C., Nicolas’s daughters. Both denied he had ever sexually abused them. However, J., the older daughter, later reported to a therapist that Nicolas had touched her inappropriately. By that time, J. was living with her aunt and uncle, who disliked Nicolas, and her aunt had told J. that she once confronted Nicolas about bathing naked with J. and C. when they were younger.

J. recalled being in her father’s bed in the middle of the day, and having her vagina touched. It made her feel very uncomfortable. She also remembered sleeping in his bed frequently as a little girl, and that he always had his shirt off.

Nicolas was arrested, and charged with child sexual abuse. The amended complaint alleged nine counts, including one count of oral copulation or sexual penetration of a child under 10 years of age (§ 288.7(b)) and three counts of lewd act upon a child under 14 (§ 288(a)), involving A.; two counts of oral copulation or sexual penetration of a child under 10 years of age (§ 288.7(b)) and two counts of lewd act upon a child under 14 (§ 288(a)), involving L.; and one count of lewd act upon a child under 14 (§ 288(a)), involving J.

The complaint also alleged: as to counts 2 and 6, that Nicolas had substantial sexual conduct with both A. and L., pursuant to section 1203.66, subdivision (a)(8); and as to counts 2, 3, 4, 6, 8 and 9, that pursuant to section 667.61, subdivisions (b) and (e)(4), Nicolas committed a lewd act upon a child under 14 against more than one victim.

Nicolas testified in his own defense at trial. He denied ever touching A., L., or J. inappropriately. He explained that when his own girls were little, he had a VCR in his bedroom so they would sometimes get into his bed with him. And although he slept without his shirt on because it was warm, he never slept naked with the girls. He also acknowledged bathing with his daughters when they were young because he did not want them to drown.

Nicolas stated that Ruby told him in October or November of 2011 that L. had claimed he touched her inappropriately. He denied it and suggested they talk to L. together. When he asked L. about her allegation, she replied “Oh, nothing happened,” and she continued to sleep in his bed after that. Nicolas testified it was about a month after L.’s report that Ruby and her children moved into his home.

Nicolas also introduced evidence suggesting A., L., and J. all had motivations to fabricate their accusations against him. He described his relationship with J. as a difficult one due to personality conflicts. He stated she was “volatile,” and that “she threw pots, clay pots and things,” when they fought. He claimed that as J. got older, “she would tend to distort things, lie, I guess. We all do.”

Nicolas also introduced testimony from a former girlfriend, who had remained in touch with his daughters after the two of them split up, even allowing J. to live with her for a month during a particularly rough patch in J.’s relationship with Nicolas. The girlfriend supported his portrayal of J., stating she was so concerned about J.’s inability to get along with Nicolas that she asked J., on several occasions, if Nicolas had ever abused her. The girlfriend responded J. always denied that any abuse had happened, stating “she just didn’t like her dad.” The girlfriend testified that shortly after Nicolas was arrested, J. had informed her she would “put the final nail in his coffin,” and “make sure he never gets out.”

J. herself admitted in her testimony that she hated Nicolas, but she said she would not lie about what happened to her.

As to A. and L., Nicolas introduced evidence that A. and L. did not like him and did not want him to marry their mom. He also introduced evidence that A. had told her friend, Morgan, that her mom would sue Nicolas for touching her, as well as evidence that the girls’ father, Andy, had already filed a lawsuit against him on their behalf. In his closing argument, Nicolas’s counsel brought up the fact that Andy had already sued Nicolas for money, in the context of explaining why A.’s disclosure of the abuse to her friends was likely fabricated. While conceding he could not prove the lawsuit had actually been a motivating factor in A. and L.’s claims of abuse, or that Andy had been behind any scheme to fabricate testimony, counsel noted it was “interesting,” and “kind of gives some extra twist to this plot.”

During deliberations, one juror was removed for bias. After an alternate juror was seated, the jury began its deliberations anew and returned a verdict convicting Nicolas on the first eight counts. The jury was unable to reach a verdict on the ninth count involving J., and that count was later dismissed.[3] The jury also found true that Nicolas committed a lewd act upon a child under 14 against more than one victim.

Nicolas moved for a new trial, arguing the court had violated his constitutional rights when it dismissed the juror, who appeared to have been at odds with the other panel members regarding his guilt, and also that his counsel had been ineffective because he failed to introduce other available evidence tending to prove that Andy had influenced the two girls to fabricate their claims against Nicolas, and that J. had reasons to fabricate her claims as well.

The court held a two-day evidentiary hearing on the motion for new trial, and Nicolas’s trial counsel testified at length concerning his trial strategy. Following the hearing, the court denied the motion, reiterating its belief that the dismissed juror “was basing decisions based on a nationality trait, not a careful weighing of the two witnesses who were in court.”

The court also concluded that the alleged flaws in Nicolas’s trial counsel’s performance were strategic, did not fall below the standard of care, and that even if he made mistakes, they did not cause prejudice. The court determined that trial counsel had made an intentional decision not to introduce evidence about the troubled relationship between A. and L.’s parents, and “that he was just going to attack the credibility of the girls.” The court also noted that Ruby, A. and L.’s mother, was an unpredictable and “dangerous” witness because counsel could not be sure where her loyalties lay, and it was consequently reasonable for Nicolas’s counsel to decide not to solicit her testimony.

The court stated it was troubled by trial counsel’s claim he had made a strategic decision to wait until trial to reveal the existence of Andy’s complaint against Nicolas because he had hoped to ambush the prosecution with it. The court noted its disapproval of that strategy, while also noting “it would only have worked to the benefit of the defendant.” The court also concluded that trial counsel’s late revelation of the complaint—and the document’s consequent exclusion from evidence—did not prejudice Nicolas because the court would have excluded the hearsay information Nicolas sought to highlight even if the complaint itself had been admitted into evidence, and because Nicolas had been allowed to inform the jury of the fact that Andy filed the complaint against him.

The court also viewed the evidence involving Andy, and portraying the troubled relationship between the girls’ parents, as having limited probative value, and noted it might have been excluded under Evidence Code section 352.[4]

The court sentenced Nicolas to a total prison term of 30 years to life, consisting of 15 years to life on count 1, a consecutive 15 years to life on count 5, and a concurrent 15 years to life on the remaining counts. The court also imposed a restitution fine and retained jurisdiction to award restitution to A. and L.

DISCUSSION

1. Juror Bias

Nicolas first contends the trial court erred by removing a juror for bias during jury deliberations. We review this claim under an abuse of discretion standard, but employ a heightened standard to ensure the decision does not infringe on Nicolas’s right to an independent jury.

“Because of the importance of juror independence, review of the decision to discharge a juror involves ‘“a somewhat stronger showing” than is typical for abuse of discretion review. . . .’ [Citation.] The basis for a juror’s discharge must appear on the record as a ‘“demonstrable reality”’ and ‘involves “a more comprehensive and less deferential review” than simply determining whether any substantial evidence’ supports the court’s decision. [Citation.] The reviewing court does not reweigh the evidence but looks to see whether the court’s ‘“conclusion is manifestly supported by evidence on which the court actually relied.” [Citation.]’ [Citation.] This heightened standard is used by reviewing courts to protect a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury [citation], which are also hallmarks in American jurisprudence.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 (Allen).)

Applying that standard, we find no abuse of the trial court’s discretion in this case. The issue of juror bias arose on the second day of the jury’s deliberations, after the jury had already informed the court it was deadlocked and that further deliberation would not be fruitful. The court responded by instructing the jury, pursuant to CALCRIM No. 3551, to continue deliberations. Soon after, the jury foreperson sent a note to the court asking if it was possible to excuse a juror based upon ethnic bias.

The court then questioned the foreperson about the circumstances prompting her note. The foreperson explained that one of the jurors had made an assertion about Filipinos, the ethnic group to which A., L., and their parents belong: “She said that Filipino people will do anything to make money, or something like that—or along those lines. She was implying that—basically that Filipinos will do a broad range of things . . . in order for, like, a monetary gain. Basically they would do whatever it takes, or along those lines.” The foreperson expressed concern the statement reflected the other juror’s “reason for believing what she does.”

After the foreperson returned to the jury room, the prosecutor asserted that the juror’s statement suggested she was relying on an ethnic bias against Filipinos to judge the credibility of witnesses, noting the victims were Filipino. In response, Nicolas’s counsel argued the comments were a fair comment relating to evidence that A. had told a friend that her mother planned to sue Nicolas for putting his hand in her pants, and also that Andy had already filed a lawsuit against Nicolas on their behalf, shortly after Nicolas was arrested.

When the court questioned the juror who made the comment, she acknowledged having made it, explaining that most of her friends were Filipino and she had told the other jurors “that most of them, they just do whatever for money. . . . [¶] They like to gamble. They like to get easy money.” The juror denied that her beliefs about Filipinos had affected her deliberations, but when the trial court asked her why she made her comment, she suggested that everyone had opinions about people, mentioning “I told them Mexican people, we—they care about our kids. American people, they do the different ways. So it was only a comment to let them know my opinion.”

The court also asked the juror whether her comment “they’ll do anything for money” was a reference to the testimony that A. and L.’s father had filed a lawsuit. She answered “yes,” and confirmed it was her belief that Filipinos are more likely to file lawsuits for money than other people.

The trial court found that the juror’s comments reflected “classic bias,” and excused her from further service on the jury. The next morning, the jury restarted its deliberations after an alternate was appointed to replace the excused juror.

Nicolas cites People v. Wilson (2008) 44 Cal.4th 758, 831, for the proposition that it is not misconduct for a juror to rely on his or her personal experience in evaluating how people of a certain ethnicity might react differently to life experiences. However, Wilson is distinguishable because in that case, “the alleged problems with Juror No. 5 arose during deliberations at the penalty phase rather than the guilt phase . . . .” (Id. at p. 830.) As the Supreme Court explained, that distinction “is significant [because unlike] the factfinding function undertaken by the jury at the guilt phase, ‘the sentencing function [at the penalty phase] is inherently moral and normative, not factual; the sentencer’s power and discretion . . . is to decide the appropriate penalty for the particular offense and offender under all the relevant circumstances.’ [Citation.] Given the jury’s function at the penalty phase under our capital sentencing scheme, for a juror to interpret evidence based on his or her own life experiences is not misconduct.” (Ibid.)

In this case, by contrast, the dismissed juror was relying on her ethnic bias to help her judge the credibility of the victims during the fact finding stage, implying that because they were Filipino, it was more plausible to conclude their claims against Nicolas were part of a scheme to get money. We cannot fault the trial judge for concluding that demonstrates “classic bias.”

Nicolas also relies on Allen, supra, 53 Cal.4th 60, but the juror in that case was not discharged for bias. Instead, the juror was discharged by the trial court for “impermissible reliance on facts not in evidence” (id. at p. 76), after he declared that he disbelieved the testimony of a witness (Connor) because Connor’s story hinged on a claim that he had a Hispanic coworker punch his timecard for him, making it appear that Connor had been at work when he actually was not. The juror flatly rejected Connor’s story, based on his personal experience with Hispanics that convinced him ‘“they never cheat on timecards.”’ (Id. at p. 66.) The Supreme Court concluded the juror’s reliance on his personal experience, in the “context of timecards and the workplace,” to evaluate the credibility of Connor’s testimony was not an impermissible reliance on facts outside the record because his opinion “did not involve specialized information from an outside source.” (Id. at p. 78.)

Significantly, the Supreme Court acknowledged in Allen that it would be improper for a juror to base a credibility determination “on prejudice or stereotype,” (Allen, supra, 53 Cal.4th at p. 78) or to “apply differing standards to the consideration of different witnesses.” (Ibid.) The court then explained that the juror’s opinion about the honesty of Hispanic people in the workplace did not qualify as either of those things because it “expressed no general bias against any group of which the witness Connor might have been a member.” (Ibid.) In this case, the juror’s opinion not only expressed a bias about the group to which witnesses belonged, but two of those witnesses were the complaining witnesses. And she implied their Filipino heritage made the testimony of those witnesses more suspect, and less credible, than the testimony of a non‑Filipino witness. Allen neither excuses nor justifies such bias.

Finally, Nicolas suggests the juror’s views about Filipinos cannot be characterized as a bias because she stated that many of her friends are Filipino. He cites no authority for the proposition that being friends with individual members of a racial or national group is inconsistent with holding a biased view of the group in general, and we are aware of none. As Nicolas otherwise acknowledges, the relevant test to decide if a juror should be removed for bias is whether a juror holds a view that “renders a juror unable to fairly weigh [a witness’s] testimony . . . .” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.) We find no error in the trial court’s determination that the dismissed juror in this case met that test.

2. Ineffective Assistance of Counsel

As Nicolas explains, his defense strategy at trial was three-pronged: (1) he testified on his own behalf, denying the allegations of sexual abuse; (2) he presented numerous character witnesses who testified he had no sexual interest in children; and (3) he presented evidence that his alleged victims had reasons to fabricate their charges against him. Nicolas claims his counsel provided him with ineffective assistance because of alleged errors and omissions in establishing the third prong, and he argues the court erred by denying his motion for a new trial on that ground.

A criminal defendant’s right to effective assistance of counsel is constitutionally guaranteed. (U.S. Const., 6th Amend.; Strickland v. Washington (1984) 466 U.S. 668, 684-685.) To establish a violation of that right, the defendant must show both that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that the lapse was prejudicial. (Id. at pp. 687-688, 691-692.) Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)

“‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.)

When we review a claim of ineffective assistance of counsel made in support of a motion for new trial, we apply a mixed standard of review. We defer to the trial court’s factual findings if supported by substantial evidence, but we exercise de novo review, over the ultimate issue of whether the defendant’s constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)

Nicolas claims his trial counsel was ineffective largely because he failed to obtain and present more detailed evidence about allegations revealed in the lawsuit that A. and L.’s father, Andy, had filed against him, even though it was undisputed counsel knew about the lawsuit for months prior to trial. Nicolas argues this evidence supported the assertion A. and L. “had a financial motive to fabricate the allegations of sexual abuse.”

Specifically, Nicolas points to the documents attached to the complaint, including an Orange County Social Services report that suggested A. and L. had accused Andy of subjecting them to lengthy “time outs,” sometimes for overnight periods, without allowing them to use the restroom. It also indicated Andy may have withheld insulin from A. on more than one occasion when he was angry, and that he had a prior history of domestic violence. Although the evidence Nicolas cites is hearsay, he posits it would have been possible for his attorney to introduce it into evidence through the testimony of either the girls or their mother to support an assertion that Andy was manipulative and controlling, and thus may have persuaded the girls to make up allegations of sexual abuse for money. Nicolas also points to available evidence that Andy’s former spouse had recounted his abusive and controlling behavior toward her, including the facts that he had “a problem with his ‘temper’” and a tendency to “yell profanities.” She also claimed Andy had later told her he hated Ruby, and that he claimed Ruby “always yelled at A. and L.”

We are not convinced that trial counsel’s failure to present this evidence at trial was ineffective assistance of counsel. We begin by noting we are bound by the trial court’s factual determination that counsel’s decision was intentional and strategic, rather than inadvertent. That determination is fully supported by the evidence. Indeed, the only evidence suggesting inadvertence was counsel’s claim at trial that his late proffer of the complaint itself was caused by his failure to obtain a certified copy before trial. However, as Nicolas acknowledges, the factual information he wanted his counsel to bring forth from the complaint was hearsay, and thus could not have been introduced into evidence by way of that document. Instead, his counsel would have had to question witnesses at trial in an attempt to draw out the information. That opportunity was unaffected by whether or not he had obtained a certified copy of the complaint.

We are likewise unpersuaded by Nicolas’s assertion that his counsel’s failure to try to prove that Andy was an abusive and manipulative father, who could have persuaded his daughters to fabricate claims of abuse, was an objectively unreasonable choice. The argument ignores A.’s direct testimony in which she denied that she ever spoke to her father about the abuse before she was interviewed by the police, or that he had encouraged her “to make these things up.” Nicolas also fails to acknowledge that the theory is largely implausible, given that neither A. nor L. made any effort to report their claims formally. The reason their claims came to light was that A.’s friend, Emma, told her mother what A. had told her. And L. initially denied any abuse, even when interviewed by the police, admitting what happened only after being reminded of the importance of telling the truth. That chain of events seems unlikely for a child who has been coached to lie about being abused.

Nicolas fails to acknowledge that none of his proposed evidence directly proved his theory. If there were evidence that Andy had a history of making up claims, of filing questionable lawsuits, or of encouraging his daughters to lie for fun or profit, our conclusion might be different. But Nicolas identifies no such evidence.

Instead, he suggests his trial counsel acted unreasonably by declining to construct an elaborate trial-within-a-trial in an effort to persuade the jury that Andy was a bad and manipulative person, and to encourage the jury to speculate that, as a consequence, he probably manipulated A. and L. to fabricate their abuse allegations so he could file his lawsuit. Such a speculative argument seems tailor made for potential exclusion under Evidence Code section 352, just as the trial court suggested. Under these circumstances, it was not unreasonable for Nicolas’s trial counsel to reject such a strategy.

Nicolas also claims his counsel erred by failing to question Ruby about whether she believed Andy might have influenced the girls to fabricate their claims against him—a suspicion Ruby had voiced to a therapist who interviewed her prior to trial. However, he undermines this claim when he also faults his trial counsel for failing to object when Ruby testified at trial that she believed her daughters’ claims, and that she could tell when they were lying, and when they were telling the truth. In light of that testimony, it seems unlikely that if asked, Ruby would have supported the theory that her daughters had actually been manipulated by Andy to lie.

Even if Ruby had provided such testimony, we note it would only have confirmed the trial court’s finding that she was a dangerously inconsistent and unpredictable witness, and thus not a particularly persuasive one. We agree with the trial court that Nicolas’s trial counsel acted reasonably in electing not to question Ruby further.

Nicolas’s assertion that his counsel was prejudicially ineffective because he failed to object when Ruby testified that she believed her daughters, and would know if they were lying, fails for similar reasons. Although this is one instance where counsel acknowledged he made a mistake, because he would have had no reason not to object, his failure to do so was not prejudicial. A mother may be expected to vouch for the veracity of her child. Here, however, Ruby’s claim was undermined by the undisputed evidence that she took no action to protect her daughters after each had reported being sexually abused by Nicolas. It is difficult to reconcile that inaction with her asserted belief in their veracity. And Nicolas’s counsel immediately highlighted that inconsistency by asking Ruby why, if she believed her daughters’ claims, she had nonetheless allowed them to keep living with her in Nicolas’s house. Her inability to provide an answer to that question, other than to say it was because she “got no place to go at that time,” provided strong support for the inference she did not immediately believe her daughters’ claims.

Finally, Nicolas complains of his trial counsel’s failures to (1) introduce additional evidence of J.’s deceitful conduct and her hatred of him; (2) introduce evidence that her aunt and uncle might have manipulated her because of their own hatred toward Nicolas; and (3) call J.’s sister, C., to testify as a percipient or character witness for Nicolas. He argues that if this additional evidence pertaining to J. had been admitted, the jury might have been more skeptical about the claims asserted by A. and L. We are unpersuaded that any of those decisions were unreasonable, or had a prejudicial effect on the outcome.

J. admitted in her testimony that she hated Nicolas, so that point was undisputed. Thus, admitting additional evidence to support it, or to establish that J.’s aunt and uncle might have influenced J. with their own hatred of him, would not likely advance the ball for the defense. Moreover, emphasizing the fact Nicolas was hated by numerous family members, and allowing them to explain why, could well have been counterproductive for Nicolas.

Nicolas’s younger daughter C. had been expected to testify at trial, and at one point, his trial counsel characterized her as a critical witness for the defense. However, counsel explained he began to lose confidence in her after his investigator informed him she had “kind of changed her mind on the whole thing and does not believe what she has to say will help [Nicolas]. The more she thinks about it, she realizes she has no idea what happened because she was so young and that she did not witness anything between the two little girls and [Nicolas], but can’t recall what truly happened with J[.] and [Nicolas].” Moreover, defense counsel was concerned that some of the statements C. had made were inconsistent with the defense theory relating to A. and L., and also that C. had been portrayed in social services records as a potentially unreliable witness—inclined to “kind of doing her own thing.” After he questioned J. at the trial, counsel concluded he no longer needed C.’s testimony.

Trial counsel’s concerns about C.’s potential testimony are all reasonable, as was his evolving view of her usefulness to the defense. His consequent decision not to call her as a witness did not fall below an objective standard of reasonableness. Moreover, we cannot conclude C.’s testimony, as outlined in her declaration filed in support of Nicolas’s motion for a new trial, would have had any impact on the outcome of the counts involving A. and L. As C. concedes in her declaration, her belief that Nicolas was enjoying a healthy and supportive relationship with A. and L. was based in part on the fact she did not know they were sleeping in his bed—a fact she learned only later.

Based on the foregoing, we find no error in the trial court’s denial of Nicolas’s motion for a new trial.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.