People v. King

• Decision Date: 31 July 2012
• Docket Number: Docket No. 301793.
• Parties: PEOPLE v. KING.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 465

824 N.W.2d 258

PEOPLE

v.KING.

Docket No. 301793.

Court of Appeals of Michigan.

Submitted March 6, 2012, at Grand Rapids.

Decided July 31, 2012, at 9:20 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker) for defendant.

Before: METER, P.J., and FITZGERALD and MARKEY, JJ.

MARKEY, J.

Defendant appeals by right his jury trial convictions of two counts of first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(b)( ii ). The victim of the offenses was defendant's 13–year–old granddaughter. The trial court sentenced defendant to two concurrent prison terms of 12 to 30 years and to lifetime electronic monitoring, MCL 750.520n. Defendant asserts two evidentiary trial errors and also asserts that lifetime electronic monitoring is not authorized by law in this case. Regarding the last issue, we would vacate the order for lifetime electronic monitoring but for MCR 7.215(J)(1), which requires that we follow the rule of law established in People v. Brantley, 296 Mich.App. 546, 823 N.W.2d 290 (2012). We explain our disagreement with Brantley in part II below and request that a conflict panel be convened. MCR 7.215(J)(2) and (3). We affirm.

I. EVIDENTIARY ISSUES

Defendant raises two evidentiary issues on appeal, framing each as a violation of his constitutional right to present a defense. Defendant first argues he was denied his constitutional right to present a defense because the trial court precluded presentation of purported evidence that his daughter Jennifer, the victim's mother, had in the past required her children to steal things for her. The defense theorized this evidence should be admitted under MRE 404(b) to show that Jennifer had a plan, scheme, or system of enticing her own daughters into dishonest behavior to serve her own ends and that Jennifer and her daughters fabricated the allegations against defendant. Second, defendant asserts he was denied his constitutional right to present a defense when the trial court precluded testimony under MRE 404(a)(1) regarding defendant's reputation for positivelyinteracting with teenagers at the Kent County Juvenile Detention Facility where defendant had been employed for many years as a youth specialist. To address defendant's arguments, we must first summarize some of the evidence presented at trial.

A. SUMMARY OF TRIAL TESTIMONY

Defendant's convictions arose out of a sexual assault committed on his granddaughter on October 26, 2008, when she was 13 years old. The victim did not live with defendant at the time, but that night she spent the night at his apartment after he picked her up from the Kent County Juvenile Detention Facility. She had been arrested for shoplifting. Matthew Fenske, superintendent of the detention facility, testified that records established that the victim was released to defendant's custody on the day in question. She returned with defendant to his apartment and slept in his bed that night. The victim testified that twice during the night defendant attempted vaginal intercourse, partially penetrating her. The victim also testified that defendant molested her and her sisters (JR and DR) on other occasions.

The trial court permitted the prosecution to present evidence under MRE 404(b) of sexual incidents between defendant and both JR and Jennifer. JR testified that defendant sexually touched her in 2004, when she, her mother, and siblings were staying with defendant. JR was 13 at the time. During the visit, JR sometimes slept in defendant's bed. One time, when the victim was also in bed with their grandfather, JR awoke to find defendant's hand in her pants. JR testified defendant put his fingers in her vagina while he masturbated himself.

DR testified that although she had slept in her grandfather's bed once, nothing inappropriate had happened. DR also testified she had not seen anything inappropriate. DR remembered that the victim tried to wake her one night, but she could not understand what the victim was saying. According to DR, one time the victim had tried to tell her something about defendant and made “a little joke” about something going on. When DR stated that she was “gonna tell momma,” the victim stated, “I'm just playing,” and then, “I was just lying.”

Jennifer testified that growing up, she did not live with her father but when she was 6 or 7 years old she started spending summers with him. When she was about 11 years old, she stayed with defendant for a couple of weeks when he was living in Chicago. According to Jennifer, one night defendant had sexual intercourse with her. Jennifer testified that she ran away for few days, but was returned to defendant's home. She never told anyone what happened, but she refused any further childhood visits with defendant.

During the investigation of this case, Jennifer secretly tape-recorded a conversation with defendant. In the conversation, defendant recalled “what happened between [Jennifer] and [defendant] when [Jennifer] was younger [.]” Defendant explained the incident as having woken up with Jennifer on top of him moving around and he was “feeling unloved” and “so alone.” When confronted with the victim's allegations, defendantdid not deny them, but said he did not remember because of his use of drugs and alcohol.

Detective Daniel Adams interviewed defendant at the Kent County Juvenile Detention Facility where defendant was working. A tape recording of this interview was played for the jury. During the interview, defendant said he could not remember the alleged incidents because of drug and alcohol abuse.

In his defense, defendant presented the testimony of several relatives who were living in the Chicago household when Jennifer visited. They testified they observed no inappropriate sexual activity. Two nieces and a nephew testified they had stayed with defendant when they were in high school or grade school and nothing inappropriate happened. Another nephew, who was a minister, a high school principal, and a former superintendent at the detention facility, testified to defendant's stellar reputation for truth and honesty.

Defendant's wife, Tammi King, testified that on the night defendant picked the victim up from the detention facility, she observed defendant and the victim in the kitchen arguing over the shoplifting incident. Defendant slapped the victim, and Mrs. King tried to defuse tensions by offering to fix the victim something to eat. Afterward, she escorted the victim to an upstairs bedroom. Mrs. King went back downstairs, but later checked to confirm the victim was asleep in the upstairs bedroom. She went back downstairs, finished her work in the kitchen, and retired for the evening with defendant in their downstairs bedroom.

Defendant testified, denying that he sexually abused the victim, or JR, or Jennifer. With respect to Jennifer, however, he remembered a time when she was visiting only for a short time, maybe a week, and Jennifer had climbed atop him and rubbed against him in a sexual manner. Defendant testified that he did not sexually respond. Defendant also testified that on one occasion the victim behaved similarly. He denied he initiating any sexually motivated contact with either Jennifer or the victim.

B. STANDARD OF REVIEW

A trial court's decision whether to admit or exclude evidence will be affirmed in the absence of a clear abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). The trial court abuses its discretion when its decision is outside the range of principled outcomes. People v. Feezel, 486 Mich. 184, 192, 783 N.W.2d 67 (2010). We review de novo the trial court's rulings on preliminary questions of law regarding the admissibility of evidence, such as the application of a statute or rule of evidence. People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999). A preserved trial error in admitting or excluding evidence is not grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative. Id. at 495–496, 596 N.W.2d 607. Preserved nonstructural trial error of constitutional magnitude will not merit reversal if it is harmless beyond a reasonable doubt. People v. Graves, 458 Mich. 476, 482, 581 N.W.2d 229 (1998).

Whether a defendant was denied his constitutional right to present a defense is a question of law we review de novo. People v. Unger, 278 Mich.App. 210, 247, 749 N.W.2d 272 (2008). In this case, defendant did not preserve his constitutional claims by presenting them to the trial court. People v. Bauder, 269 Mich.App. 174, 177–178, 712 N.W.2d 506 (2005). Appellate review of unpreserved constitutional claims is for plain error affecting the defendant's substantial rights. People v. Shafier, 483 Mich. 205, 219–220, 768 N.W.2d 305 (2009). This requires the defendant to show that the plain error affected the outcome of the proceedings. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). Moreover, reversal is warranted only if the error resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedingsregardless of the guilt or innocence of the accused. Id.

C. RIGHT TO PRESENT A DEFENSE

Defendant's claim—that his constitutional right to present a defense was violated by the trial court's ruling excluding alleged evidence that Jennifer required her children to steal things for her benefit—is without merit. There is no doubt that based on the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process or Confrontation Clauses, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d...