People of Michigan v. Dallas Gene Foster ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 15, 2022
Plaintiff-Appellee,
V No. 357065
Berrien Circuit Court
DALLAS GENE FOSTER, LC No. 2019-016129-FC
Defendant-Appellant.
Before: MURRAY, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right his conviction by a jury of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(a) (victim under 13). The trial court sentenced defendant to
25 to 53 years’ imprisonment. We affirm.
I. BACKGROUND
Defendant assisted his former fiancée at her home when she babysat the then four-year-old
complainant when the complainant’s father was at work. One day the complainant’s father asked
the child about her day at the babysitter’s, and she told him that earlier that day defendant had
licked her “butt” and motioned to her vaginal area. The complainant’s father consulted with the
police, and had her evaluated at the emergency room. Defendant told the police, and testified at
trial, that he had only playfully licked the complainant’s arm, and that he had assisted the child
after she went to the bathroom by spitting on bathroom tissue and wiping her.
II. ANALYSIS
A. INSUFFICIENT EVIDENCE
Defendant argues that insufficient evidence supported his conviction. We disagree.
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We review de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288
Mich App 192, 195; 793 NW2d 120 (2010). Due process1 requires that every element of a crime
be proven beyond a reasonable doubt to sustain a criminal conviction. People v Hampton, 407
Mich 354, 366; 285 NW2d 284 (1979), citing In re Winship, 397 US 358, 364; 90 S Ct 1068; 25
L Ed 2d 368 (1970). To determine if the prosecution produced evidence sufficient to support a
conviction, “an appellate court is required to take the evidence in the light most favorable to the
prosecutor” to ascertain “ ‘whether a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010), quoting
People v Hardiman, 466 Mich 417, 429; 646 NW2d 158 (2002). Direct and circumstantial
evidence, as well as all reasonable inferences that may be drawn from it, are properly considered.
Id.MCL 750.520b(1) provides that “[a] person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with another person” under various
circumstances, including, under Subsection (1)(a), when “[t]hat other person is under 13 years of
age.” Defendant argues that there “was no credible evidence at trial that [his] tongue was touching
[the complainant’s] vagina.”
The complainant testified that defendant “wiggled my butt” with his tongue while she was
on the couch. The complainant’s father testified that the child had told him that defendant had
licked her “butt” while babysitting her, and that, when he asked her to show him where defendant
licked, she pointed to her vagina and said that her pants were down at the time. Later that day, the
complainant reported to a sexual assault nurse examiner that she was at the emergency room
“because he licked my butt.” During therapy after the incident, the complainant told her therapist
that she did not want to go to the babysitter’s home any longer because defendant licked her with
her pants down more than once while she was there, and she pointed to her vaginal area. A forensic
scientist reported that DNA testing strongly indicated that defendant’s DNA was present in saliva
found in the panel of the complainant’s underwear, and on a vulvar swab taken of the
complainant’s anatomy during an examination. Even though the complainant was five years old
at trial and did not use the proper technical nomenclature for her anatomy, when viewed in a light
most favorable to the prosecution, reasonable jurors could conclude beyond a reasonable doubt
that the evidence established that defendant licked the complainant’s vagina.
Defendant protests that he explained the presence of his DNA on the complainant’s vagina
during his statement to the police, and in his testimony that he had used his saliva to moisten
bathroom tissue. The jury, however, had the duty and the best ability to determine defendant’s
credibility. An appellate court does “not interfere” with the fact-finder’s “assessment of the weight
and credibility of witnesses or the evidence.” People v Dunigan, 299 Mich App 579, 582; 831
NW2d 243 (2013). Instead, “ ‘a reviewing court is required to draw all reasonable inferences and
make credibility choices in support of the jury verdict.’ ” People v Gonzalez, 468 Mich 636, 640-
641; 664 NW2d 159 (2003), quoting People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78(2000).
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US Const, Am XIV; Const 1963, art 1, § 17.
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Defendant alternatively argues that, assuming that the evidence established that he licked
the complainant’s vagina, there was no evidence that his tongue actually went beyond mere contact
to actual penetration. See People v Payne, 90 Mich App 713, 722; 282 NW2d 456 (1979). The
CSC statute, however, defines sexual penetration as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of another person’s body, but emission of semen is not required.”
MCL 750.520a(r) (emphasis added). “ ‘[C]unnilingus requires the placing of the mouth of a
person upon the external genital organs of the female which lie between the labia, or the labia itself
[sic], or the mons pubes [sic].’ ” People v Legg, 197 Mich App 131, 133; 494 NW2d 797 (1992)
(alterations in original), quoting People v Harris, 158 Mich App 463, 470; 404 NW2d 779 (1987).
Here, the complainant described defendant performing cunnilingus on her genitalia. DNA
evidence obtained from a vulvar swab also established that defendant had done so. Such evidence
supported the jury’s determination that defendant committed CSC-I.
B. INSTRUCTIONAL ERROR
Defendant argues that he is entitled to a new trial because of erroneous jury instructions.
However, at trial defense counsel expressed satisfaction with the instructions as given. When a
party expresses satisfaction with the instructions as given to the jury, the party has waived any
claim of error respecting the instructions. People v Thorne, 322 Mich App 340, 346; 912 NW2d
560 (2017). Such waiver extinguishes any error and precludes appellate review. People v Carter,
462 Mich 206, 215, 219; 612 NW2d 144 (2000).
We review unpreserved issues for plain error affecting the defendant’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In Carines, our Supreme Court
explained:
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the plain, 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
independent of the defendant’s innocence. [Id. at 763-764 (quotation marks,
alteration, and citations omitted).]
A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80;
537 NW2d 909 (1995). “The trial court is required to instruct the jury with the law applicable to
the case and fully and fairly present the case to the jury in an understandable manner.” Id. Jury
instructions are reviewed “in their entirety to determine if there is error requiring reversal.” People
v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). “Jury instructions must not exclude
consideration of material issues, defenses, and theories for which there is supporting evidence.”
People v Kurr, 253 Mich App 317, 328; 654 NW2d 651 (2002). There is no error where the
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instructions “fairly presented the issues to be tried and sufficiently protected the defendant’s
rights.” McFall, 224 Mich App at 412-413.
Defendant argues that the trial court erred when it instructed the jury that “[t]he case, based
upon the evidence, has one count now, and so that’s what you will hear now because that’s what
the evidence supports that came in during the record.” Defendant states that the instruction was
misleading because it suggested that the prosecution had proved its case for the remaining charge.
However, the trial court did not reference defendant’s guilt in the challenged statement, which was
not an instruction pertaining to defendant’s culpability. The court stated that the evidence
supported one count, not one conviction. The statement communicated to the jury only that it
should not render a verdict in connection with the count that had been dismissed.
Jury instructions are to be reviewed in their entirety, and when considered in context, it is
apparent that the trial court informed the jury that it had dismissed a count against defendant that
the jury had initially been expected to consider. After both parties rested, and with the jury outside
the courtroom, defendant moved for a directed verdict of acquittal on a CSC-I charge predicated
on penetration with his foot and the prosecution agreed. The trial court considered the motion and
agreed to dismiss that charge. The trial court then included with its final jury instructions the
following:
So, now, these are my final instructions, and I will tell you that as I indicated
before, during the primary instructions, that these may change. The instructions
may change from the preliminaries to the finals, and you can see here that they
actually have. The case, based upon the evidence, has one count now, and so that’s
what you will hear now because that’s what the evidence supports that came in
during the record.
The trial court’s explanation did not communicate anything to the jury about defendant’s guilt on
the remaining count, only that it could not find defendant guilty of the dismissed count.
Next defendant argues that the trial court improperly instructed the jury regarding the
penetration element of CSC-I. The trial court instructed the jury as follows:
The defendant is charged with the crime of first-degree criminal sexual
conduct. To prove this charge, the prosecutor must prove each of the following
elements beyond a reasonable doubt. First, excuse me, that the defendant engaged
in a sexual act that involved touching of [the complainant’s] genital opening and/or
genital organ with the defendant’s mouth or tongue. Genital opening begins at the
labia majora.
Defendant protests that the instruction allowed the jury to find him guilty of CSC-I for merely
contacting the complainant’s vagina when a conviction of CSC-I requires sexual penetration. See
MCL 750.520b(1). We agree that it would have been plain error to allow the jury to find defendant
guilty of CSC-I for only a nonpenetrative touching of the complainant’s vagina.
However, the trial court’s instructions did not premise CSC-I on such mere touching; the
court specified that it required “touching of [her] genital opening and/or genital organ with the
defendant’s mouth or tongue.” As noted, the CSC statute and pertinent caselaw recognize
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cunnilingus as sexual penetration whether or not actual entry of the vaginal canal takes place.
MCL 750.520a(r); Legg, 197 Mich App at 133; Harris, 158 Mich App at 470. Accordingly, the
instruction equating penetration with defendant’s touching of the complainant’s genital opening
with his tongue reflected the statutory definition of sexual penetration. Further, the female genital
opening includes the labia majora, which is beyond the body surface. People v Bristol, 115 Mich
App 236, 238; 320 NW2d 229 (1981). “Defendant’s touching with his mouth of the urethral
opening, vaginal opening, or labia establish cunnilingus” as statutorily defined. Legg, 197 Mich
App at 133 (emphasis added). Therefore, an instruction that sexual penetration includes oral
touching of the female genital opening is consistent with the pertinent statute and caselaw.
In his supplemental brief, defendant argues that the trial court erred insofar as it did not
emphasize that the statutory definition of “sexual penetration” includes “any . . . intrusion,
however slight, of any part of a person’s body.” See MCL 750.520a(r). However, because the
instructions given included that defendant was charged with touching the complainant’s “genital
opening and/or genital organ with the defendant’s mouth or tongue,” and the definition of “sexual
penetration” also includes touching another’s genital opening with the tongue, the trial court
properly eschewed instructing the jury on the actual-intrusion facet of sexual penetration. The trial
court did not use the words “sexual penetration,” but the instructions given described the only way,
as this case was presented, that the jury could find that defendant sexually penetrated the
complainant’s genital opening by cunnilingus.
Defendant also argues in his supplemental brief that the instructional error was prejudicial
because the complainant’s statement that defendant “licked my butt” did not establish sexual
penetration nor permit such an inference. The evidence presented at trial, however, sufficed to
establish beyond a reasonable doubt that defendant committed CSC-I. The evidence indicated that
the complainant’s reference to her “butt” actually referred to her vagina. She physically
demonstrated to her father and her therapist that she meant her vagina. Moreover, defendant’s
DNA was detected in saliva on the crotch of the complainant’s underwear, and on vulvar swabs
taken of the complainant.
For these reasons, the challenged instructions “fairly presented the issues to be tried and
sufficiently protected the defendant’s rights.” McFall, 224 Mich App at 412-413. Defendant has
not demonstrated that the instruction undermined the reliability of the verdict, or otherwise
constituted plain error.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues in his supplemental brief that defense counsel provided ineffective
assistance by failing to object to the jury instructions insofar as they covered the sexual penetration
element of CSC-I. See People v Ullah, 216 Mich App 669, 685; 550 NW2d 568 (1996) (a trial
attorney’s failure to object to improper jury instructions can constitute ineffective assistance).
Because we conclude that the trial court correctly instructed the jury on the penetration element,
any attendant objection premised on instructional error would have been futile. “Failing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” Ericksen, 288 Mich App at 201.
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D. RIGHT TO A SPEEDY TRIAL
We review a trial court’s decision on a motion to dismiss for an abuse of discretion. People
v Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005). The trial court does not abuse its
discretion when it chooses an outcome within the range of reasonable and principled outcomes.
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We review de novo the
constitutional question whether a defendant was denied the right to a speedy trial. See People v
Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). A trial court’s factual findings are reviewed
for clear error. Id.A guarantee of the right to a “speedy and public trial” for a criminal defendant is found in
both the United States and Michigan Constitutions, and in Michigan is enforced by statute and
court rule. Williams, 475 Mich at 261, citing US Const, Am VI; Const 1963, art 1, § 20; MCL
768.1; MCR 6.004(A). The purpose of the speedy-trial guarantee is to “ ‘minimize the possibility
of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment
of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused
by arrest and the presence of unresolved criminal charges.’ ” People v Sierb, 456 Mich 519, 531
n 19; 581 NW2d 219 (1998), quoting United States v MacDonald, 456 US 1, 8; 102 S Ct 1497; 71
L Ed 2d 696 (1982). To determine whether a defendant has been denied the right to a speedy trial,
a court should balance the following four factors set forth in Barker v Wingo, 407 US 514; 92 S
Ct 2182; 33 L Ed 2d 101 (1972): “ ‘(1) the length of delay, (2) the reason for delay, (3) the
defendant’s assertion of the right, and (4) the prejudice to the defendant.’ ” People v Cain, 238
Mich App 95, 112; 605 NW2d 28 (1999), quoting Williams, 475 Mich at 261-262. In this case,
defendant asserted his right to a speedy trial in his motion to dismiss.
“The time for judging whether the right to a speedy trial has been violated runs from the
date of the defendant’s arrest.” Williams, 475 Mich at 261, citing United States v Marion, 404 US
307, 312; 92 S Ct 455; 30 L Ed 2d 468 (1971). It is presumed that a defendant is prejudiced after
a delay of 18 months, upon which “the burden shifts to the prosecution to show that there was no
injury,” and there is “an inquiry into the other factors to be considered in the balancing of the
competing interests to determine whether a defendant has been deprived of the right to a speedy
trial.” Williams, 475 Mich at 262 (quotation marks and citation omitted).
In this case, an arrest warrant for defendant was issued and defendant was arraigned on
October 30, 2019. Defendant apparently remained incarcerated until his trial began on October 14,
2020. Defendant, therefore, remained incarcerated for almost a year between his arrest and trial.
Regarding the reasons for the delay, it is undisputed that the COVID-19 pandemic was responsible
for the greater part of it. The trial court explained that it could not hold a trial for defendant because
of logistical problems resulting from compliance with administrative orders from March 2020 up
to the July 2020 hearing on defendant’s motion. The trial court noted that defendant’s case was
the oldest one under its jurisdiction involving a defendant in custody while awaiting trial, and
stated that it would be scheduled for trial as soon as trials resumed. The trial court also noted that
defendant’s agreement for an adjournment of all hearings until his DNA results were available
partly caused the delay, which lasted from late January, before the pandemic, until defendant filed
his motion for dismissal in June 2020. Defendant does not dispute the trial court’s factual findings.
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Delays and docket congestion are inherent in the court system, and, even if they are
“ ‘technically attributable to the prosecution, they are given a neutral tint and are assigned only
minimal weight in determining whether a defendant was denied a speedy trial.’ ” People v
Gilmore, 222 Mich App 442, 460; 564 NW2d 158, 167 (1997), quoting People v Wickham, 200
Mich App 106, 111; 503 NW2d 701 (1993). In United States v Smith, 494 F Supp 3d 772, 783
(ED Cal, 2020), the court found that “emergency health measures to limit the spread of COVID-
19” were responsible for a delay in the defendant’s trial that did not “weigh against the
Government” because “the Court’s inability to safely conduct a jury trial is a good-faith and
reasonable justification for the delay.” Similarly, in this case, the trial court could not hold the
prosecution responsible for the docket congestion and delays caused by COVID-19 safety
protocols. The prosecution had no ability to bring defendant to trial within several months of his
arrest, and should not be held responsible for a delay resulting from the need to protect the health
of all trial participants, and over which plaintiff had no control. Further, as the trial court noted,
the prosecution lacked responsibility for the delay resulting from defendant’s agreement, before
the pandemic, to adjourn until DNA testing results became available. Therefore, the one-year
delay from arrest to trial could not properly be imputed to plaintiff.
The fourth element, prejudice, is critical to the analysis of whether defendant’s speedy trial
rights were abridged. Cain, 238 Mich App at 112. “A delay that is under eighteen months requires
a defendant to prove that the defendant suffered prejudice.” Id. Defendant did not argue during
his motion hearing that the 12-month delay prejudiced him. Now he claims that he suffered
prejudice from that delay because he was not able to freely speak to his trial counsel or potential
witnesses while incarcerated. “In considering the prejudice to the defendant, the most serious
inquiry is whether the delay has impaired the defendant’s defense.” People v Simpson, 207 Mich
App 560, 564; 526 NW2d 33 (1994). “[I]n determining prejudice to a defendant, we do not look
at how the prosecutor’s case was improved during the delay, but to whether the defendant’s defense
was degraded.” People v Holtzer, 255 Mich App 478, 494; 660 NW2d 405 (2003). In this case,
defendant’s incarceration may have burdened his communication with others, but even defendant
does not assert that such communications were denied. Further, defendant does not identify any
potential witnesses with whom he was prevented from speaking, and at trial presented only his
own testimony in his defense. Defendant has failed to demonstrate that his defense suffered
prejudice by the delay.
In sum, considering the four Barker factors (length of delay, reason for delay, the
defendant’s assertion of the right, and prejudice), defendant has not established that the prosecution
or the court violated his right to a speedy trial. The one-year delay resulted from factors that could
not be imputed to plaintiff or the trial court, and could not have been avoided. Moreover, defendant
has failed to establish that he suffered prejudice by the delay. Accordingly, the trial court did not
abuse its discretion by denying defendant’s motion to dismiss based on a speedy-trial violation.
Affirmed.
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
/s/ James Robert Redford
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