Opinion
352925
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AUSTIN JAMES WOODBURY, Defendant-Appellant.
UNPUBLISHED
Clinton Circuit Court LC No. 2019-010252-FC
Before: Cameron, P.J., and Jansen and Gleicher, JJ.PER CURIAM.
Defendant appeals as of right his jury trial convictions for one count of assault by strangulation, MCL 750.84(1)(b), two counts of first-degree criminal sexual conduct (CSC-I) premised on penetration involving the commission of assault by strangulation, MCL 750.520b(1)(c), two counts of CSC-I premised on penetration involving the commission of unlawful imprisonment, MCL 750.520b(1)(c), one count of CSC-I premised on personal injury and force or coercion, MCL 750.520b(1)(f), one count of third-degree criminal sexual conduct (CSC-III) premised on force or coercion, MCL 750.520d(1)(b), two counts of CSC-III premised on the victim being between 13 and 15 years of age, MCL 750.520d(1)(a), and one count of distribution of marijuana without remuneration (distribution of marijuana), MCL 333.7410(7). The trial court granted defendant a directed verdict of not guilty on one count of kidnapping, MCL 750.349, and the jury found defendant not guilty of one count of CSC-I premised on personal injury and force or coercion and one count of CSC-III premised on force or coercion. The trial court sentenced defendant to 18 to 70 years' imprisonment for each count of CSC-I, 6 to 15 years' imprisonment for each count of CSC-III, 6 to 10 years' imprisonment for assault by strangulation, and 365 days' incarceration for distribution of marijuana. We affirm.
Defendant does not challenge his convictions and sentences for the two counts of CSC-III premised on the victim's age or the count of distribution of marijuana.
I. FACTUAL BACKGROUND
The victim in this case was a 13-year-old female at the time of the offenses for which defendant was convicted. Defendant, who was 22 years old at the time, met the victim online, and the two messaged nearly every day for some time. Around September 2018, defendant picked the victim up from her grandmother's house, where the victim was living at the time, in the middle of the night. The victim went with defendant willingly and, for about a week, lived as if they were boyfriend and girlfriend in defendant's trailer home.
According to the victim, after the first week, defendant began forcing her to engage in penile-vaginal and penile-oral sex against her will nearly every day. During vaginal intercourse, defendant would put one hand around the victim's neck and choke her. The victim testified that she did not want to be choked. During oral sex, defendant would force the victim's mouth onto his penis. Both the choking and forced oral sex made it difficult for the victim to breathe. In addition, the victim testified that she was not allowed to leave the home without defendant, and that defendant worked nearly every day, locking her inside. On three occasions when the victim managed to escape the home, defendant caught her and brought her back.
The victim had a laptop and old cell phone of defendant's that she could use to communicate with her friends. And while she considered calling the police, she decided not to because she was afraid she would be placed in juvenile detention for running away and did not want to get defendant into trouble. Ultimately, however, she told her ex-boyfriend that she was scared, and he apparently alerted the police. On September 20, 2018, about three weeks after arriving at defendant's home, the police knocked on defendant's door. Defendant answered and consented to the police entering his home, and the police found and removed the victim, who was not wearing anything but a shirt at the time.
In her initial statement to the police, the victim said she had been living with defendant of her own volition, but several weeks later she told the police about the above facts. Defendant gave a statement to the police at the time the victim was removed from his home and the day after, when he voluntarily went to the police station for a formal interview. According to defendant, the victim had been there the whole time voluntarily. He also asserted that she wanted to have sex with him and wanted him to choke her during sex. Defendant told the police that he thought the victim was 15 years old, but he knew the age of consent was 16 years.
Defendant was not arrested on September 20, 2018.
Following a jury trial, defendant was convicted as indicated. Defendant now appeals.
II. STANDARDS OF REVIEW
We review constitutional questions de novo. People v Wiley, 324 Mich.App. 130, 150; 919 N.W.2d 802 (2018). We also review claims of instructional error de novo. People v Hartuniewicz, 294 Mich.App. 237, 242; 816 N.W.2d 442 (2011). Jury instructions are considered "as a whole to determine whether the court omitted an element of the offense, misinformed the jury on the law, or otherwise presented erroneous instructions." Id. Preliminary questions of law regarding the admissibility of evidence are reviewed de novo, but a trial court's ultimate decision is reviewed for an abuse of discretion. People v Duenaz, 306 Mich.App. 85, 90; 854 N.W.2d 531 (2014). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id.
III. DISCUSSION
Defendant argues the trial court erred by concluding consent was not a viable defense to the charges against him, excluding evidence relevant to that defense, and instructing the jury that consent was not a defense. Defendant further argues that these errors deprived him of his right to present a defense. Finally, defendant argues the instructional error was essentially a directed verdict of guilty on some of the charges against him in violation of his right to have a jury determine his guilt.
Criminal defendants have a state and federal constitutional right to present a defense. People v Unger, 278 Mich.App. 210, 250; 749 N.W.2d 272 (2008). "However, an accused's right to present evidence in his defense is not absolute." Id. States have "broad latitude under the Constitution to establish rules excluding evidence from criminal trials," and "[s]uch rules do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve." Id. (quotation marks and citation omitted).
Criminal defendants also have the right to a jury that is properly instructed concerning the law applicable to the case. People v Spaulding, 332 Mich.App. 638, 653; 957 Mich. 843 (2020). "Jury instructions must include all the elements of the charged offense and must not exclude material issues, defenses, and theories if the evidence supports them." Id. (quotation marks and citation omitted). However, "[e]ven if somewhat imperfect, instructions do not create error if they fairly presented the issues for trial and sufficiently protected the defendant's rights." Id. (quotation marks and citation omitted; alteration in original).
On the second day of trial, before the victim was called to testify, defense counsel informed the trial court outside the presence of the jury that he intended to introduce evidence that the victim searched the internet for pornography with terms "like teen and punish together." Defense counsel argued the evidence would be relevant to impeach the victim if she denied wanting to be choked during sex by showing she had a "mindset" for that sort of thing. Defense counsel also argued that the evidence was not excludable under the rape-shield statute, MCL 750.520j, because it was not sexual conduct, and, even if it were, exclusion would violate defendant's right to present a defense in this case. The prosecution argued the evidence was covered by the rape-shield statute as it was clearly sexual activity. The trial court, while noting that the issue of strangulation was "at the heart of the Defendant's defense," held the evidence was not admissible. The court concluded the evidence was not relevant under the circumstances:
First of all, we have a-a minor child, secondly we have what appears to be some kind of sexual or sexually explicit materials that were viewed prior to the time that these-that the-the Defendant and the victim because [sic] associated. All that being said, the Court's concern is that the information that would be utilized for impeachment purposes would likely lead to a-to testimony related to the underlying reasons for the child leaving her home to begin with.
The court went on to note that, even if the evidence were relevant, its probative value was substantially outweighed by the risks of unfair prejudice, confusion of the issues, or misleading the jury. The court concluded exclusion would not violate defendant's right to confrontation. Therefore, the court ordered that no mention of the search history be made before the jury.
Later, the trial court excused the jury when defense counsel was cross-examining the victim. The court noted that it was "concerned about rehashing issues of consent." The court continued:
[T]here is first of all, no ability for a 13[-]year[-]old to consent, and to even ask the questions to raise in the jury's mind the prospect that it is permissible is-is inappropriate, and I'm not saying you're [defense counsel] doing it deliberately, but I'm giving a cautionary instruction before the jury comes back out.
Additionally, based on our prior conversation outside the presence of the jury and as it related to the suffocation issue, People v Wilkens, 267 Mich.App. 728[; 705 N.W.2d 728 (2005)], if you cannot consent to the [CSC], you cannot consent to the underlying felony. So I am giving a cautionary instruction before the jury comes back in that it is entirely irrelevant-entirely irrelevant-to delve into issues about whether the witness voluntarily engaged in that conduct, because under Wilkens . . . she can't consent.Thus, the trial court barred any "questions that suggest that consent is an option." However, the court permitted defense counsel to research the matter over night and present any counterargument he may develop. Defense counsel did so, raising the same arguments defendant presents on appeal. Notably, defense counsel argued consent was a valid defense to assault by strangulation, unlawful imprisonment, and the element of force or coercion. After some additional discussion on the next day of trial, the trial court affirmed its earlier conclusion, but noted consent could not be used as a defense against any of the charges or elements defense counsel identified. The court concluded:
If there is no evidence of strangulation, that can certainly be argued to the jury, or the other variables-unlawful imprisonment or force or coercion, but the defense of consent cannot be used, there has to be a lack of evidence in order to effectively argue against that enhancement variable.
Accordingly, the court gave the following instruction to the jury during final jury instruction:
Consent is not a defense. A minor under the age of 16 cannot consent to a sex act, nor to acts alleged to have been committed during the course of a sex act. The prosecutor bears the burden of proof beyond a reasonable doubt as to all elements of each offense charged.
After the jury began deliberating, the jury sent out a note indicating: "[D]oes consent is not a defense, does it negate, quote, must be-must have been against [the victim's] will?" With the prosecution's agreement and over defense counsel's objection, the trial court further instructed the jury: "[Y]es, it does negate."
When instructing the jury on the counts of CSC-I premised on penetration during the commission of assault by strangulation, the court explained that assault by strangulation requires that the prosecution prove, among other things, an intentional forceful, violent, or offensive touching of the victim, and that touching "must have been against [the victim's] will." The court gave the same instruction when explaining the independent charge of assault by strangulation.
Defendant was charged with six counts of CSC-I, and four counts were premised on MCL 750.520b(1)(c) while two counts were premised on MCL 750.520b(1)(f). Under MCL 750.520b(1)(c) and (f):
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
* * *
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
* * *
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.
The first theory of liability has two elements: "(1) a sexual penetration (2) that occurs during the commission of another felony." Wilkens, 267 Mich.App. at 737. The second theory requires that the defendant: "(1) causes personal injury to the victim, (2) engages in sexual penetration with the victim, and (3) uses force or coercion to accomplish the sexual penetration." People v Nickens, 470 Mich. 622, 629; 685 N.W.2d 657 (2004).
In Wilkens, this Court addressed whether consent was a defense to CSC-I premised on penetration involving the commission of another felony. Wilkens, 267 Mich.App. at 736. In that case, the underlying felony was producing child sexually abusive material, MCL 750.145c(2). Id. The Court first concluded that, under the plain language of the statute, consent was not a defense to the element of sexual penetration. Id. at 737. However, the Court noted that "[i]f consent were a defense to the second element of MCL 750.520b(1)(c), i.e., the underlying felony, then it would be an appropriate defense to the charge under MCL 750.520b(1)(c)." Id. The Court cited People v Thompson, 117 Mich.App. 522, 526; 324 N.W.2d 22 (1982), and stated, "[f]or example, because consent is a complete defense to the felony of kidnapping, MCL 750.349, consent is a defense to MCL 750.520b(1)(c) when the underlying felony is kidnapping." Wilkens, 267 Mich.App. at 737. Nevertheless, the Wilkens defendant could not assert a consent defense to the second element because consent was not a defense to the underlying felony of producing child sexually abusive material. Id. at 737-738.
In People v Waltonen, 272 Mich.App. 678, 688; 728 N.W.2d 881 (2006), this Court determined that the Wilkins Court "distinguished Thompson on faulty grounds, because the Thompson panel did not hold that the trial court erred in failing to give a consent instruction on the basis that consent was a defense to kidnapping. Rather, this Court in Thompson spoke in terms of consent to the sexual penetration." The Waltonen Court stated that Thompson was problematic because it relied "on the proposition that a consent defense is implicit under the CSC statutes, which most certainly runs contrary to accepted principles of statutory construction." Id. at 689. Nonetheless, the Waltonen Court agreed with the Wilkens analysis regarding MCL 750.520b(1)(c). Id.
The plain and unambiguous language of § 520b(1)(c) does not require proof of force or coercion and does not otherwise provide for the defense of consent. We agree with Wilkens that the issue of consent relative to charges brought under § 520b(1)(c) can only arise in the context of the underlying felony because if a defendant successfully argues the existence of consent with respect to the underlying felony, assuming that consent is a legally recognizable defense, the prosecution cannot establish the second element of CSC I pursuant to § 520b(1)(c). Here, there is no dispute that the crime of delivery of a controlled substance is not subject to a consent defense; therefore, consent is not a defense to the particular CSC I charges on which defendant is being prosecuted. The problem with implying that a consent defense is viable under § 520b(1)(c) with respect to sexual penetration, other than the fact that making such an implication runs afoul of principles of statutory construction, is that it results in a judicial modification of statutory language. The language of § 520b(1)(c) encompasses all acts of "sexual penetration," and ruling in favor of defendant's position would alter this clear language by carving out an exception for certain acts of sexual penetration, i.e., consensual sexual penetration. The statute does not provide that it applies to "nonconsensual sexual penetration," but rather it simply refers to "sexual penetration." [Id. at 689-690.]
The Waltonen Court also relied on People v Starks, 473 Mich. 227, 229-230; 701 N.W.2d 136 (2005), wherein our Supreme Court addressed whether consent was a defense to assault with intent to commit criminal sexual conduct involving sexual penetration (AWICSC) where the victim was 13 years old. The Court summarized the relevant facts as follows:
[D]efendant, an employee of the facility [for delinquent boys], asked the complainant, a resident, whether he wanted her to perform fellatio on him . . . . Defendant then instructed the complainant to remove his pants, and the complainant unzipped and unbuttoned his pants at defendant's request. Defendant was observed by another employee bending over in front of the complainant less than two feet from him while the complainant held up his unzipped, unbuttoned pants. The complainant testified that defendant was about to commit fellatio when the other employee walked into the room . . . . [Id. at 237.]
The Court noted that AWICSC has two elements: "(1) an assault, and (2) an intent to commit [criminal sexual conduct] involving sexual penetration." Id. at 234 (quotation marks and citation omitted; alteration in original). Further, the Court explained that while consent is ordinarily a defense to an attempted-battery assault such as that at issue there, "consent must be given by one who is legally capable of giving consent to the act." Id. at 234-235. Because the 13-year-old victim in Starks could not legally consent to the attempted battery of sexual penetration, the defendant could not assert consent as a defense. Id. at 235-237. "[A] thirteen-year-old child cannot legally consent to sexual penetration with another person because sexual penetration of a thirteen-year-old child is automatically third-degree criminal sexual conduct." Id. at 235.
The Waltonen Court concluded that "[l]ikewise, pursuant to the plain language of § 520b(1)(c), sexual penetration occurring 'under circumstances involving the commission of any other felony' is also automatically criminal sexual conduct. The statute leaves no room for consent." Waltonen, 272 Mich.App. at 690. Therefore, consent was not a defense for the CSC-I charge brought against the Waltonen defendant where the underlying felony was delivery of a controlled substance. Id.
The trial court concluded that, in this case, because the sexual penetration was committed against a 13-year-old who could not consent to the penetration, consent was also not a defense to the underlying felonies because she could not consent to any act committed during the commission of the sexual penetration. We cannot conclude that the trial court erred in this regard. In this case, the underlying felonies used to support defendant's CSC-I convictions were assault by strangulation and unlawful imprisonment. A defendant is guilty of assault by strangulation if he (1) assaults another person (2) by "intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person." MCL 750.84(1)(b) and (2). As Starks noted, consent is a defense to assault, therefore, consent is arguably a defense to assault by strangulation. Starks, 473 Mich. at 234. A person commits unlawful imprisonment if he "knowingly restrains another person" under certain circumstances. MCL 750.349b(1). Restrain "means to forcibly restrict a person's movements or to forcibly confine the person so as to interfere with that person's liberty without that person's consent or without lawful authority." MCL 750.349b(3)(a) (emphasis added). Thus, consent is a defense to unlawful imprisonment as well. However, we do not believe that a child of 13 is legally capable of consenting to strangulation or unlawful imprisonment. See LME v ARS, 261 Mich.App. 273, 288; 680 N.W.2d 902 (2004) (because the victim of the sexual act was 14 years old, "the law refuses to permit the adult in the relationship to claim consent as a defense."); People v Gengels, 218 Mich. 632, 641; 188 N.W. 398 (1922) ("Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting."). See also People v Cash, 419 Mich. 230, 242; 351 N.W.2d 822 (1984) (statutory rape legislation, as a strict liability offense, has been "upheld as a matter of public policy because of the need to protect children below a specified age from sexual intercourse on the presumption that their immaturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct.")
Thus, we cannot conclude that prohibiting defense counsel from arguing the issue of consent to the jury deprived defendant of his right to present a defense. Unger, 278 Mich.App. at 250. For these reasons, defendant's convictions and sentences for CSC-I involving the commission of a felony (both assault by strangulation and unlawful imprisonment) and the independent charge of assault by strangulation are affirmed.
With respect to defendant's conviction of CSC-I involving personal injury and force or coercion, defendant argues that he is entitled to reversal because of confusion from the trial court's consent instructions. Defendant argues consent is a defense to both the personal injury element and force or coercion element. With respect to the force or coercion element, defendant is incorrect. Consent is, ordinarily, a defense to force or coercion. Waltonen, 272 Mich.App. at 689. But MCL 750.520b(1)(f) requires that the force or coercion be "used to accomplish sexual penetration." (Emphasis added.) Because the victim could not legally consent to force or coercion used to accomplish sexual penetration because of her age, her factual consent to such force or coercion is unavailing to defendant's defense. Starks, 473 Mich. at 235-237. Therefore, defendant has failed to establish grounds for reversal of his conviction and sentence for CSC-I involving personal injury and force or coercion.
This is in contrast to MCL 750.520b(1)(c), which merely requires "a direct interrelationship between the felony and the sexual penetration." Waltonen, 272 Mich.App. at 693. Indeed, that provision does not even "require that the sexual penetration occur during the commission of the underlying felony." Id. at 692.
Additionally, defendant is not entitled to reversal of his CSC-III conviction premised on force or coercion. Like CSC-I premised on personal injury and force or coercion, the force or coercion for CSC-III must be "used to accomplish the sexual penetration." MCL 750.520d(1)(b). Thus, while consent would ordinarily be a defense available to a defendant, here, the victim was legally incapable of consenting to the force or coercion used. Starks, 473 Mich. at 235-237. And CSC-III does not include the personal injury requirement; indeed, that is the one element distinguishing the two provisions. This conviction and sentence are affirmed.
And defendant does not challenge his CSC-III convictions premised on the victim's age.
Defendant also presents two evidentiary claims of error. The first claim is that the trial court erred by excluding evidence of electronic communications between defendant and the victim while she was staying in defendant's home. As far as this Court can tell from the record, defendant never attempted to admit this evidence. Thus, not only is this issue not preserved, but there can be no error on the trial court's part.
Defendant's second evidentiary claim is that the trial court erred by excluding evidence that the victim searched for pornography with terms "like teen and punish together" on the internet. As noted, the trial court determined this evidence was not relevant, and concluded that the risk of unfair prejudice substantially outweighed the probative value of this evidence. This was not an abuse of discretion. Before trial, the parties stipulated that the circumstances leading to the victim living with her grandmother could not be introduced, namely, that the victim had been sexually assaulted by her stepfather. The evidence established that the victim made these internet searches before the three weeks that she spent with defendant. Thus, in making its determination on this issue, the trial court stated that the evidence would likely lead to "testimony related to the underlying reasons for the child leaving her home to begin with," which the parties stipulated would not be admitted at trial. Thus, it was not an abuse of discretion for the trial court to preclude admission of the internet-search evidence because the risk of unfair prejudice outweighed its probative value.
In light of our resolution of the above issues, and our conclusion that the consent jury instruction was not erroneous, defendant's claim that the trial court directed a verdict of guilty on several charges is now moot as its resolution would have no practical legal effect. People v Richmond, 486 Mich. 29, 34-35; 782 N.W.2d 187 (2010).
Affirmed.
Thomas C. Cameron, Kathleen Jansen, Elizabeth L. Gleicher