People v. Lee

Docket Number349920
Decision Date16 December 2021
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KEVIN ANTHONY LEE, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US


Wayne Circuit Court LC No. 19-000780-01-FC

Before: Gadola, P.J., and Jansen and O'Brien, JJ.


Defendant was convicted after a jury trial of five counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (penetration with person under 13) [1] and was sentenced to 25 to 60 years' imprisonment. Defendant appeals as of right, raising numerous challenges to his convictions and sentence. We affirm.


This case arises from allegations of sexual assault made by defendant's niece, IH. In October 2016, IH, then age seven, moved into the home of her aunt, Courtney Carr, and defendant. At that time, Carr and defendant were married, and the couple lived together with their three young children. IH commonly slept in the same bed with Carr and defendant; she testified that one night while in bed with Carr and defendant, she felt defendant's private part touch her bottom. The next day, defendant took her outside and told her that if she wanted to live there and get a Minecraft video game she would have to "follow through" with what he did to her.

IH testified that thereafter defendant sexually assaulted her on multiple occasions. She testified that after the family moved to a different house in October 2017, defendant continued to sexually assault her, primarily involving defendant putting "his front private part in [her] vagina."

IH testified that this happened on the couch in the living room, in Carr's bedroom, and in IH's bedroom. She described a specific assault that occurred in the summer of 2018 when defendant called her into the living room and told her to take her clothes off. IH testified that defendant put his penis in her vagina, and that it was very painful and she cried out and begged defendant to stop. IH alleged that defendant also put his private part in her mouth and her butt. When IH went to the bathroom afterwards, she saw blood coming out of her vagina and it burned when she urinated. Defendant cleaned up the blood from the couch and the bathroom floor. IH testified that she told Carr about the bleeding when Carr got home from work, but did not disclose that defendant had assaulted her.

Carr testified that one day in the summer of 2018, defendant called her at work to tell her that IH was bleeding and suggested that IH had gotten her first period. Carr was concerned, but concluded that defendant's theory about IH's period could be correct given her age. Carr testified that when she got home she suggested that they take IH to the hospital, but that defendant became angry and accused Carr of suggesting that he was a child molester.

Carr and defendant separated on September 3, 2018. When Carr told IH that defendant would not be returning to the home, IH used her tablet to disclose defendant's abuse to Carr writing, "[H]e put his P thing in my vagina." IH told Carr that the abuse had been ongoing and that defendant had assaulted her the day that she had been bleeding.

Carr reported IH's allegations to the police, and the next day Carr gave the police two cell phones that belonged to defendant. One of the phones was an iPhone that Carr testified defendant used for personal use. She testified that she knew the password to the iPhone, but that she did not often use that phone and that defendant had not been willing to allow others to use the iPhone. By contrast, defendant testified that he permitted others in the family to use the iPhone, and that sometimes the children in the home played with the phone. He testified that although it was password protected, he usually set the phone on "sleep" mode so that the phone could be used without re-entering the password. He testified that he often left the iPhone on the coffee table where others had access to it, and placed it on the kitchen table or another table to charge it, where again, other family members had access to it.

The police obtained warrants to search the information contained in the phones. Upon searching the iPhone, police discovered that the phone's internet search history included a search for the phrase "raped kids" on July 31, 2018, and another search for "kids getting raped videos" on August 29, 2018. The search history also revealed that in the same general time frame, the device had been used to access several pornography websites.

The medical records from IH's examination at Children's Hospital were admitted without objection. According to the medical records, IH came to the hospital for an examination because defendant "forced her to have sex with his penis" two or three weeks earlier. The examination did not yield any significant physical findings. Jessica Ojala, an expert in sexual assault nurse examination, testified that the lack of physical findings did not preclude the possibility of sexual assault involving penetration.

Defendant denied IH's allegations. He testified that the day IH was bleeding he found her in the bathroom with her pants around her thighs, visibly upset. Defendant testified that he and Carr earlier had discovered IH masturbating, and he concluded that she had inadvertently hurt herself or perhaps had started her period. Defendant cleaned up the blood from the bathroom floor, getting some of the blood on his shirt in the process. Defendant testified that he opposed Carr's suggestion that they take IH to the hospital because of the expense. During cross-examination, the prosecution confronted defendant with earlier statements he made to police and to the child protective services worker, emphasizing inconsistencies. The jury found defendant guilty of three counts of CSC-I involving vaginal penetration and two counts of CSC-I involving oral penetration. This appeal followed.


Defendant contends that the trial court erred by allowing the admission into evidence of the search history discovered by police while searching his iPhone.[2] He argues that the affidavit supporting the warrant used to obtain the information did not demonstrate facts to establish a link between the iPhone and the alleged criminal activity, and thus did not demonstrate probable cause to search the iPhone. The prosecution concedes that the warrant was not supported by probable cause to search the iPhone for internet searches, but contends that the introduction of the evidence discovered on the iPhone was harmless error. We conclude that the introduction of the search history discovered on the iPhone was not error because the search of the iPhone was conducted pursuant to valid consent.


We observe initially that defendant's evidentiary challenge is unpreserved. To preserve an evidentiary issue for review on appeal, the party opposing the admission of evidence must challenge the admission of the evidence before the trial court asserting the same basis for objection thereafter asserted on appeal. People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). Specifically, a defendant who challenges the admissibility of evidence on Fourth Amendment grounds must object to the admission of the evidence before the trial court on that same basis. People v Hughes, 506 Mich. 512, 522-523; 958 N.W.2d 98 (2020).

Although defendant in this case opposed admission of the iPhone search history, he did not challenge the evidence on the Fourth Amendment grounds now asserted on appeal. We review unpreserved claims of error for plain error. Id. Under the plain error rule, the defendant bears the burden of establishing that plain error occurred affecting his or her substantial rights. Id. at 523 n 4. Reversal is warranted only when "the forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 523-524 n 4. We also observe that under MCL 769.26, "[n]o judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice."


Both the United States and Michigan Constitutions guarantee the right of persons to be free from unreasonable searches and seizures. U.S. Const, Am IV; Const 1963, art 1, § 11; People v Hughes (On Remand), ___ Mich. App___, ___;___ N.W.2d___ (2021) (Docket No. 338030); slip op at 5. Thus, whether a search is lawful depends upon whether it is reasonable. People v Mahdi, 317 Mich.App. 446, 457; 894 N.W.2d 732 (2016). Generally, a search conducted without a warrant and without probable cause to believe that evidence of wrongdoing might be located at the place to be searched is per se unreasonable. Id. at 458. Absent circumstances falling within an exception to the warrant requirement, when evidence is obtained in contravention of the constitutional protection against unreasonable searches, under the judicially created exclusionary rule the evidence must be excluded. Hughes, ___ Mich.App. at ___; slip op at 5.

A search warrant must "particularly describ[e] the place to be searched and the persons or things to be seized," U.S. Const, Am IV, as well as the alleged criminal activity that justifies the warrant. Hughes, 506 Mich. at 538. A search warrant and the affidavit supporting the warrant also must provide some context that connects the...

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