Opinion
No. 352535
05-20-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. COREY BERNARD HOWELL, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-006506-01-FC Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ. PER CURIAM.
Defendant, Corey Howell, appeals as of right his jury trial convictions of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(e) and (f). The trial court sentenced Howell as a fourth-offense habitual offender, MCL 769.12, to 35 to 80 years in prison for each conviction, to be served concurrently. Because there are no errors warranting reversal, we affirm.
I. BASIC FACTS
Howell's convictions arise from the sexual assault of 15-year-old FH in December 2006. Howell was 22 years old at the time. FH had voluntarily joined Howell, his sister Tracey Howell, and their friend Norman at Tracey's apartment to drink alcohol and listen to music. FH testified that she fell asleep on Tracey's bed, but awoke to Howell pulling off her pants. FH told him to stop, but he instructed her to shut up, showed her a gun, and demonstrated that the gun was loaded. Howell then forcibly penetrated her vagina with his penis, forced her to put his penis in her mouth, and then penetrated her vagina with his penis again. FH recounted that she had substantial vaginal bleeding as a result of the assault. She also recalled that Howell made her urinate in a closet when, during the assault, she told him she had to go to the bathroom.
Later that night, Norman and Howell drove FH to her friend's house. FH told a man who lived with her friend what happened, and the next morning she disclosed the sexual assault to a family friend, who notified the police. FH was transported to the hospital by ambulance and underwent a rape-kit examination.
In February 2007, Howell was charged with both CSC-I and third-degree criminal sexual conduct (CSC-III). However, FH failed to appear for Howell's preliminary examination and the charges were dismissed without prejudice. In 2016, the Wayne County Prosecutor's Office Rape Kit Task Force reopened the investigation and charges were refiled. As indicated above, the jury found Howell guilty of three counts of CSC-I.
II. OTHER-ACTS EVIDENCE
A. STANDARD OF REVIEW
Howell argues that the trial court erred by admitting evidence of his prior CSC-II conviction for an offense committed against a seven-year-old child. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012). "A trial court abuses its discretion when it choses an outcome falling outside the range of principled outcomes." Id .
B. ANALYSIS
Howell argues that his CSC-II conviction for an offense committed in 2011 was inadmissible under MRE 404(b)(1), which prohibits evidence of other crimes "to prove the character of a person in order to show action in conformity therewith," but allows such evidence when offered for other, noncharacter purposes. However, the evidence was offered and admitted under MCL 768.27a, which provides, in pertinent part:
(1) Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. . . .In cases where MCL 768.27a applies, "it supersedes MRE 404(b)." Watkins, 491 Mich at 476-477.
(2) As used in this section:
(a) "Listed offense" means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
(b) "Minor" means an individual less than 18 years of age.
MCL 768.27 allows other-acts evidence for nonpropensity purposes similar to MRE 404(b)(1). --------
Both CSC-I and CSC-II are offenses listed in MCL 28.722, so they both qualify as "listed offenses" for purposes of MCL 768.27a. Further, FH and the victim of Howell's CSC-II crime were both minors because they were both under the age of 18 at the time of the alleged crimes. Thus, MCL 768.27a(1) applies, and evidence of Howell's CSC-II crime in 2011 was admissible and could be considered "for its bearing on any matter to which it is relevant" subject only to the limitations in MRE 403.
As a result, Howell's reliance on MRE 404(b)(1) to argue that the CSC-II offense was not admissible to show his propensity to commit sexual assaults against minors is misplaced. MCL 768.27a "permits the use of [such] evidence to show a defendant's character and propensity to commit the charged crime." Watkins, 491 Mich at 470. However, because evidence admitted under MCL 768.27a remains subject to the restrictions of MRE 403, id. at 486, we consider Howell's arguments that the evidence of his CSC-II crime was not relevant under MRE 401 and was unduly prejudicial under MRE 403.
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Generally, relevant evidence is admissible except as otherwise provided by law. MRE 402. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403.
Howell contends that the 2011 CSC-II crime was not relevant because of the age differences between the victims. FH was 15 years old at the time of the charged offenses in this case, whereas the victim of Howell's CSC-II crime was seven years old. Although there are age-based differences with respect to physical and emotional maturity and understanding of sexual conduct, both victims were under the legal age of consent for consenting to sexual activity. The evidence that Howell committed a sexual offense against a seven-year-old child in 2011 was probative of his propensity to engage in sexual activity with underage victims, such as FH. Therefore, the evidence was relevant.
Howell also argues that the evidence should have been excluded under MRE 403 because it was unduly prejudicial, particularly because the young age of the CSC-II victim was more likely to enrage the jurors. Yet, the CSC-II victim's age was still a relevant consideration given that FH was also an underage female at the time of the offenses. Moreover, the trial court only introduced the judgment of sentence of the prior conviction, which was likely to have less emotional impact than the seven-year-old victim's testimony. The trial court also twice instructed the jury—once immediately after the challenged evidence was admitted and again in the court's final instructions—that it could not convict Howell solely because it might think he was guilty of other bad conduct, and that "the evidence must convince you beyond a reasonable doubt that the defendant committed the alleged crime or you must find him not guilty." These instructions minimized the potential for any unfair prejudice. See People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011) (stating that jurors are presumed to follow their instructions). In sum, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion by admitting this evidence at trial.
III. PREARREST DELAY
Howell argues that the trial court erred by denying his second motion to dismiss on grounds of prearrest delay. We disagree.
Before trial, the trial court granted Howell's motion to dismiss the charges on the basis of prearrest delay. In a prior appeal by the prosecutor, this Court reversed that decision. People v Howell, unpublished per curiam opinion of the Court of Appeals, issued December 27, 2018 (Docket No. 340773). This Court's prior opinion contains the following summary of the proceedings related to Howell's motion to dismiss:
Defendant was originally charged with CSC in February 2007 for allegedly assaulting FH. FH failed to appear at the May 2007 preliminary examination, and as a result, the charges against defendant were dismissed without prejudice. In May 2008, DNA results revealed that DNA in the sexual assault kit matched defendant. Officer Kimree Beckem was instructed to locate FH after the DNA results had come in; however, there is no indication that Officer Beckham could reach FH. After the charges were dismissed, FH's sexual assault kit was sealed and placed in storage. The prosecution asserted that in 2012, FH was again contacted, and she stated that she was not emotionally capable of pursuing the case at that time. In 2016, FH was again contacted, an investigation was conducted, and the prosecution refiled the charges. Defendant filed a motion arguing that his due process rights had been violated due to the prosecution's delay in charging defendant the second time. The trial court granted defendant's motion to dismiss. [Howell, unpub op at 1.]Although two witnesses died before they could be interviewed, this Court held that "defendant failed to satisfy his burden of demonstrating actual and substantial prejudice due to the delay between the commission of the alleged sexual assaults and his arrest in 2017, and there is no evidence that the prosecution sought the delay to gain a tactical advantage." Id ., unpub op at 4.
On remand, Howell again moved for dismissal on the ground that his due-process rights were violated by the prearrest delay. The trial court denied the motion, concluding that this Court had already decided the issue. The law-of-the-case doctrine provides that "an appellate court's determination of law will not be differently decided on a subsequent appeal in the same case if the facts remain materially the same." People v Kozyra, 219 Mich App 422, 433; 556 NW2d 512 (1996). Here, in the prior appeal, this Court squarely addressed and decided the issue whether the prearrest delay in this case violated Howell's right to due process. This Court concluded that Howell did not satisfy his burden of demonstrating actual and substantial prejudice due to the prearrest delay and that there was no evidence that the prosecution sought the delay so that it could gain a tactical advantage. Howell, unpub op at 4. This Court's decision established the law of the case with respect to this issue.
Howell argues that this Court should decline to apply the law-of-the-case doctrine because the facts have materially changed since this Court's prior decision. He asserts that because Tracey's trial testimony indicated that she was with Norman at all times during the timeframe surrounding the charged sexual assault, Tracey's testimony can be used to establish a factual basis for the testimony that Norman could have offered, thereby demonstrating that Howell was prejudiced by the delay, which led to the loss of Norman's testimony. This argument presumes that Norman would have testified in a manner similar to Tracey. There is no basis for this assumption. Indeed, FH's testimony also established that Norman was present at the house during the timeframe surrounding the charged assaults. However, FH's testimony differed in significant respects from Tracey's testimony. Just as it would be improper for this Court to assume from Norman's presence at the house with FH that his testimony would therefore have mirrored FH's testimony, it would be equally improper to assume from Norman's presence at the house with Tracey that his testimony would have mirrored her testimony. Rather, there is no way of knowing what testimony Norman would have offered, or whether it would have supported FH's or Tracey's respective accounts. Norman was never interviewed, so there is no record of what information he might have provided. In any event, regardless of what testimony Norman may have been able to offer, Tracey's trial testimony does not establish a material change of circumstances because Tracey was not an unavailable witness to Howell before he brought his first motion to dismiss. For these reasons, Howell has not provided a persuasive reason for avoiding application of the law-of-the-case doctrine to allow him to revisit this issue.
IV. SPEEDY TRIAL
In a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, Howell argues that it was not necessary for him to demonstrate prejudice from the delay because prejudice is presumed after a delay of more than 18 months. This argument conflates a claim of prearrest delay with a speedy trial claim. A speedy trial claim considers the delay between a defendant's arrest and the defendant's trial. When evaluating a speedy trial claim, "[f]ollowing a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury." People v Williams, 475 Mich 245, 262; 716 NW2d 208 (2006). In this case, Howell's motion to dismiss was based on a claim of prearrest delay, not a violation of his right to a speedy trial. Because the presumption of prejudice that arises when there is a delay of more than 18 months from a defendant's arrest until the time of trial does not apply to a claim of prearrest delay, Howell's argument is without merit.
V. JURY INSTRUCTION
A. STANDARD OF REVIEW
Howell argues that the trial court erred by denying his request for a lesser offense jury instruction on CSC-III. Instructional issues concerning questions of law are reviewed de novo. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
B. ANALYSIS
Before trial, the trial court granted Howell's motion to dismiss the CSC-III charges because they were barred by the applicable statute of limitations. See MCL 767.24. Thereafter, Howell requested at trial that the jury be instructed on CSC-III as a lesser offense of CSC-I. The trial court denied the request because CSC-III was a time-barred offense and Howell refused to waive the statute-of-limitations defense.
In People v Burns, 250 Mich App 436, 440; 647 NW2d 515 (2002), this Court observed that "[i]t is well established in Michigan that a statute of limitations defense . . . in a criminal case is a nonjurisdictional, waivable affirmative defense." This Court recognized that "the lesser included offense doctrine permits both the prosecution and the defendant to request that the jury be instructed on applicable lesser included offenses of the charged offense," but concluded that "[a] defendant's assertion of a statute of limitations defense directly affects the trial court's duty to properly instruct the jury in a trial on a related charge that is not time-barred." Id. at 440-441. In that case, the defendant was charged with second-degree murder and requested jury instructions on the lesser offenses of voluntary and involuntary manslaughter, which were time-barred. This Court held that granting the defendant's requested instructions "would contravene the trial court's explicit duty to instruct the jury on the law applicable to the case." Id . at 441. The Court therefore concluded that "the issue whether a defendant is innocent or guilty of an uncontroverted time-barred offense is, per se, not submissible to the jury unless the defendant waives the defense." Id . at 442. As a result, "unless a defendant waives a statute of limitations defense against time-barred offenses, the jury, or the judge in a bench trial, may not be permitted to consider whether a defendant should be acquitted or convicted of such offenses." Id .
On appeal, Howell argues that Burns is distinguishable because the time-barred offense in that case was a cognate offense rather than a lesser-included offense. In support, he directs this Court to our Supreme Court's decision in People v Cornell, 466 Mich 335, 354-357; 646 NW2d 127 (2002), which differentiated between lesser included offenses and cognate lesser offenses with respect to jury instructions. However, notwithstanding the distinction between cognate offenses and lesser-included offenses, nothing in Cornell conflicts with or undermines this Court's decision in Burns. Indeed, the decision in Burns did not turn on whether a requested lesser offense qualifies as a necessarily included or cognate offense, but rather on how a time-barred offense affects a court's duty under MCL 768.29 to instruct the jury on the applicable law. See Burns, 250 Mich App at 441-442. This Court reasoned:
[T]o require a trial court to grant such a request regarding time-barred offenses would contravene the trial court's explicit duty to instruct the jury on the law applicable to the case. Jury instructions on cognate lesser included offenses that cannot, as a matter of law, result in acquittal or conviction do not present law applicable to the case. An uncontested statute of limitations defense is distinguishable from other affirmative defenses in that, absent a waiver, the defense is conclusive, i.e., a defendant may not be charged with or, therefore, tried on the time-barred offense. Consequently, the issue whether a defendant is innocent or guilty of an uncontroverted time-barred offense is, per se, not submissible to a jury unless the defendant waives the defense. Therefore, MCL 768.32, which permits an accused to be found guilty on a degree of the offense charged in the indictment that is inferior to the charged offense, is not applicable with regard to time-barred offenses. Accordingly, jury instructions on time-barred offenses would impermissibly misrepresent the issues to be tried and would interject issues into jury deliberations that do not further the purpose for which a jury is impaneled. [Id. (citations omitted).]We conclude that Burns applies. Consequently, because CSC-III was a time-barred offense and Howell did not waive his statute-of-limitations defense to that charge, the trial court did not err by denying his request for a lesser offense instruction on CSC-III.
VI. DIRECTED VERDICT
A. STANDARD OF REVIEW
Howell next argues that the trial court erred by denying his motion for a directed verdict of acquittal. "When reviewing a trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt." People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014) (quotation marks and citation omitted).
B. ANALYSIS
Howell was charged with three counts of CSC-I under alternative theories. To obtain a conviction, therefore, the prosecution had to prove beyond a reasonable doubt (1) that Howell engaged in sexual penetration with FH and (2) he was armed with a weapon or an article used or fashioned in a manner to lead FH to believe it was a weapon or he caused personal injury to FH and force or coercion was used to accomplish the sexual penetration. See MCL 750.520b(1)(e) and (f). Here, FH testified that when she told Howell to stop, he told her to shut up and showed her that he had a gun, which he demonstrated was loaded. She also stated that the assault caused her to bleed substantially. This testimony was sufficient to enable the jury to find beyond a reasonable doubt that Howell committed three acts of sexual penetration under circumstances while armed with a weapon, and that Howell used force or coercion to accomplish the sexual penetration and caused personal injury.
On appeal, Howell acknowledges FH's testimony, but argues it should be discounted because FH had a motive to fabricate the assault, because she had but did not take opportunities to ask Tracey and Norman for help, because her explanation of being afraid to ask for help does not make sense in light of her testimony that she called for Tracey's help when Tracey was not in the room, and because she made inconsistent statements regarding where the gun was during the assault. Those arguments all pertain to FH's credibility. Because this Court "must defer to the fact-finder by drawing all reasonable inferences and resolving credibility conflicts in support of the jury verdict," People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007), Howell's argument is without merit.
VII. PRESENTENCE REPORT
A. STANDARD OF REVIEW
Finally, Howell argues that the trial court erred by denying his request to strike prejudicial information in his presentence investigation report (PSIR) without conducting an evidentiary hearing to determine the accuracy of the information. We review a trial court's response to challenged information in a PSIR for an abuse of discretion. People v Uphaus (On Remand), 278 Mich App 174, 181; 748 NW2d 899 (2008).
B. ANALYSIS
At sentencing, a defendant may challenge the accuracy or relevancy of any information contained in a presentence report. People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009). There is a presumption that information contained in a PSIR is accurate unless the defendant raises an effective challenge. People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009). When a defendant challenges the accuracy of information, the defendant bears the burden of going forward with an effective challenge. Id. If an effective challenge is raised, the prosecution must prove by a preponderance of the evidence that the facts are as the prosecution asserts. Id. Once a challenge to the accuracy of information has been alleged, the trial court is required to respond. Id. If necessary, the court may adjourn the sentencing to allow the parties to prepare a challenge or respond to a challenge. Id.
In this case, Howell did not effectively challenge the accuracy of the information. The family history portion of Howell's PSIR contained statements his mother made to a probation agent:
[Howell's mother] reported since [Howell] was convicted of another sexual crime, one of her daughters disclosed to her some incidents from when they were younger. Her daughter told her she once walked in on Mr. Howell holding a girl from behind and fondling her vagina. The girl was approximately 13 or 14, and he was around 20. Additionally, [Howell's mother] reported one of her sons disclosed that Mr. Howell sexually molested him from the ages of 8 to 12. He reported it shortly before the statute of limitations ran, but no legal action was taken.At sentencing, Howell objected to the "allegations and denied those things occurred because somebody reported to the mother who reported to the probation officer." He denied that "these things occurred," and noted that he had never been charged and the allegations had never been brought to anyone's attention. Thus, although Howell denied the underlying allegations, he did not challenge the accuracy of the statement in the report, i.e., that his mother made a report that her children had disclosed additional acts of sexual abuse perpetrated by Howell. Because there was no effective challenge to the information in the PSIR, Howell is not entitled to relief.
Howell also argues that his mother's statement should have been stricken because it was based on hearsay within hearsay. The rules of evidence, however, do not apply at sentencing, MRE 1101(b)(3), and hearsay may be included in a presentence report, People v Fisher, 442 Mich 560, 576-577; 503 NW2d 50 (1993).
Finally, Howell argues that his lawyer was ineffective for failing to request an evidentiary hearing. Because Howell failed to raise this ineffective-assistance claim in an appropriate motion in the trial court or a motion to remand in this Court, our review of this issue is limited to errors apparent from the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005). To establish ineffective assistance, Howell first must demonstrate that trial counsel's performance fell below an objective standard of reasonableness. See People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). Second, he must demonstrate that, but for counsel's deficient performance, a different result would have been reasonably probable. See id. In doing so, Howell must overcome the strong presumption that counsel's assistance constituted sound trial strategy. See id. at 290.
Here, Howell's lawyer recognized that the challenged information was unfavorable to Howell and it was therefore reasonable to make the request to have the information stricken from the PSIR. As the prosecutor pointed out, however, the source of the information was Howell's own family members. A request for an evidentiary hearing carried the risk that, if a hearing was held, it could provide the prosecutor with an opportunity to elicit even more damaging information about Howell's history of inappropriate sexual conduct with minors. Given the risk that an evidentiary hearing would result in more unfavorable testimony, Howell has not demonstrated that his lawyer acted unreasonably by declining to request an evidentiary hearing. Furthermore, Howell has not demonstrated that he was prejudiced by his lawyer's failure to request an evidentiary hearing. In particular, Howell has not submitted any affidavits from any family members or other witnesses disputing the accuracy of the information attributed to them in the PSIR, or otherwise indicating what information they would provide at a hearing. Consequently, Howell's claim of ineffective assistance is without merit.
Affirmed.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Brock A. Swartzle