People of Michigan v. Jivonnie Ramone Jones ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 28, 2021
Plaintiff-Appellee,
v No. 349051
Muskegon Circuit Court
JIVONNIE RAMONE JONES, LC No. 17-002872-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
Defendant appeals by right his conviction of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b (multiple variables). Defendant claims that the exclusion of certain evidence under
the “rape-shield” statute, MCL 750.520j, violated his right to a fair trial and his right to a
reasonable opportunity to test the truth of the witness’s testimony under the Confrontation Clause,
US Const, Am VI. We affirm.
I. BACKGROUND
A. TRIAL
To provide context to defendant’s argument regarding the application of the rape-shield
statute in this case, we will first summarize the evidence presented at trial. Complainant testified
that she had known defendant for about a half a year at the time of the offense. Defendant, who
was homeless, arrived at complainant’s home on the night of February 27, 2017, and asked her to
cash a check for him. Defendant also asked to stay the night. Complainant and defendant gave
conflicting accounts of the events that followed. Complainant testified that when she received a
phone call from William Gilbert defendant threw her phone and became hostile. She testified that
defendant dragged her by her hair into a bedroom where he forced her to perform oral sex on him
and then proceeded to have intercourse with her. Complainant testified that she made it clear to
defendant that she did not want to engage in sexual activity, and that she physically resisted him
before he dragged her into the bedroom. She stated that defendant hit her in the head, causing
injury.
-1-
Gilbert testified that he stopped by complainant’s home the night of the incident to inquire
about purchasing a van her driveway. Gilbert explained what happened next:
When I approached the home, like I said, the lights were on. So I went to knock on
the door and at that time I heard some scuffling in the inside of the home. It was
muffled, like someone had been being stopped from talking, like they were being
muffled with their mouth or choked on or something like that. And that’s when she
had hollered out: Help me, help me.
Gilbert testified that the cries for help became more “urgent or more serious.” Gilbert called the
police and met with Officer Scott Everson at a nearby bar. Everson concluded that something
serious was happening and went to complainant’s home. When he knocked on the door he heard
“muffled and clear yells for help from what sounded to be a female’s voice.” Everson testified
that he heard the voice say “help me, help me, over and over and over again.” After attempting to
get someone’s attention, and trying to pry the door, Everson “forced entry” into the house, while
yelling the entire time. When Everson entered the house, he could see into a bedroom about three
feet to his right. Everson testified: “The Defendant was in what I’d call a flanking position directly
over the victim. He was also completely naked.” Everson told defendant to get up and get dressed.
Complainant also came out to the living room and got dressed. Everson noticed that complainant
had a large bump on her forehead and called an ambulance; complainant was taken to the
emergency room for treatment.
Defendant testified at trial that he had consensual oral and vaginal sex with complainant.
Defendant denied that he dragged complainant into the bedroom or forced her to do anything.
Defendant also denied that he caused complainant’s injuries and testified that she had them when
he arrived at her house. Defendant admitted that complainant was yelling “help me,” but said she
did not do so until the sex ended and that she was falsely claiming rape.
B. MOTION IN LIMINE
At the preliminary examination, defendant testified that complainant “is a well known
prostitute.” He further testified that while he was at her house on the night of the offense a man
came who defendant incorrectly assumed was Gilbert. Defendant said that complainant and this
man went into another room and that defendant heard complainant yelling “Help me, help me.”
Defendant noted that complainant “had a big bump on her head” when she came out of the room.
Defendant testified that when the third party left he and complainant had consensual sex.
The prosecution moved in limine “to preclude Defendant from introducing any evidence
that the victim might have been involved in any sexual conduct or activity with a third party other
than Defendant.” In addition to defendant’s testimony at the preliminary examination, the
prosecution asserted that defendant told the police that complainant had sex with the unidentified
third party while defendant was present at the home. The prosecution also sought to exclude a
Michigan State Police Crime Laboratory report indicating that a swab collected from
complainant’s person tested positive for the DNA of complainant, defendant, and an unrelated
unknown individual.
-2-
In response, defendant argued that evidence of the conduct relating to the third party who
“struck [complainant] on the forehead” and the DNA evidence did not fall within the purview of
the rape-shield statute. Defendant conceded that his observation that the third party had sex with
complainant and his testimony that complainant was a prostitute were covered by the statute but
argued that this evidence was necessary to his defense and excluding it would violate the
Confrontation Clause. See US Const, Am IV; Const 1963, art 1, § 20. Defendant maintained this
evidence was not being offered for character evidence, to prove consent, or general impeachment
purposes. Rather, defendant argued that the otherwise barred testimony was necessary to provide
context to the third party’s actions, i.e., it would explain why the man arrived in the middle of the
night and went into another room with complainant.
At a pretrial hearing, the trial court granted the prosecution’s motion in limine, stating:
In this case the information that was being sought by the defense on bringing
forth testimony and evidence of a third party’s sexual acts will be excluded and will
not be allowed in this court, and it will be because of Rape Shield laws that do apply
to this case.
II. ANALYSIS
A. RAPE SHIELD STATUTE
Defendant argues that the trial court erred by excluding evidence under the rape-shield
statute.1 We conclude that the trial court properly excluded defendant’s proffered testimony that
complainant was a prostitute; that she had sex with another man on the night in question while
defendant was present; and that complainant told defendant that she had been previously raped.
As for the DNA analysis of a swab collected from complainant, even assuming that this was not
covered by the rape-shield statute and would have otherwise been admitted, we conclude that
preclusion of this evidence was harmless.
MCL 750.520j, known at the rape-shield statute, provides in part:
(1) Evidence of specific instances of the complainant’s sexual conduct,
opinion evidence of the complainant’s sexual conduct, and reputation evidence of
the complainant’s sexual conduct shall not be admitted under sections 520b to 520g
unless and only to the extent that the judge finds that the following proposed
evidence is material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value:
1
“The decision whether to admit evidence is within the trial court’s discretion, which will be
reversed only where there is an abuse of discretion.” People v Gursky, 486 Mich 596, 606; 786
NW2d 579 (2010). A decision that falls outside the range of principled outcomes is an abuse of
discretion. People v Sharpe, 502 Mich 313, 324; 918 NW2d 504 (2018). “To the extent that the
trial court’s evidentiary decision involves underlying questions of law, such as whether a statute
precludes admissibility of evidence, this Court reviews those questions of law de novo.” Id.-3-
(a) Evidence of the complainant’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
The rape-shield statute generally prohibits the admission of three categories: (1) evidence
of specific instances of the complainant’s sexual conduct, (2) opinion evidence on the
complainant’s sexual conduct, and (3) reputation evidence of the complainant’s sexual conduct.
People v Sharpe, 502 Mich 313, 327; 918 NW2d 504 (2018). The statute then provides “two
narrow exceptions” in MCL 750.520j(1)(a) and (b). People v Adair, 452 Mich 473, 478; 550
NW2d 505 (1996) (quotation marks and citation omitted). “When applying the rape-shield statute,
trial courts must balance the rights of the victim and the defendant in each case.” People v Benton,
294 Mich App 191, 198; 817 NW2d 599 (2011).
To begin, defendant’s testimony that complainant is a well-known prostitute was reputation
evidence of complainant’s sexual conduct and therefore plainly within the scope of the rape-shield
statute. Defendant relies on People v Slovinski, 166 Mich App 158, 177-183; 420 NW2d 145
(1988), in which we held under the facts of that case that evidence that someone is engaged in
prostitution at the time of the offense was admissible as evidence of consent. In Slovinski,
however, the defendant asserted that the complainant was working as a prostitute at the time of the
offense and there were other witnesses who identified the complainant as a prostitute who worked
the area where the defendant picked her up. Id. at 146-147. In contrast, defendant does not allege
that complainant consented to sexual acts with him as a prostitute,2 nor has he offered any
supporting evidence that objectively shows that complainant was a prostitute. Accordingly, this
case did not fit in the narrow exception recognized by Slovinski and testimony that complainant
was a prostitute would have been improper reputation evidence.
Next, defendant’s statement that complainant had sex with another man is an assertion of
a specific instance of complainant’s sexual conduct, bringing it within the scope of the rape-shield
statute. It does not fit either exception listed in MCL 750.520j(1). Similarly, defendant’s claim
that complainant told him that she had been raped twice also described specific instances, albeit
involuntary instances, of complainant’s sexual conduct. Defendant did not assert that he was the
perpetrator of either of these alleged rapes, nor was defendant seeking to admit this evidence as
the source of semen, pregnancy, or disease. Therefore, it does not fit either exception under
MCL 750.520j(1).
Defendant argues that evidence barred by the rape-shield statute was nonetheless
admissible under People v Hackett, 421 Mich 338; 365 NW2d 120 (1984). In that case, the
Supreme Court held that evidence that is excluded by the rape-shield statute may be admissible if
required to allow the defendant “a reasonable opportunity to test the truth of a witness’ testimony,”
as guaranteed by the Confrontation Clause. Id. at 347. The Court gave three examples of when a
defendant’s constitutional right to confrontation requires admission of evidence otherwise barred
2
Indeed, defendant testified at the preliminary examination that complainant had “offered [him]
oral sex for free” and that on the night of the offense he “asked for the oral sex offer from our
past.”
-4-
by the rape-shield statute: (1) “for the narrow purpose of showing the complaining witness’ bias”;
(2) when the evidence is probative of “a complainant’s ulterior motive for making a false charge”;
and (3) “to show that the complainant has made false accusations of rape in the past.” Id. at 348.
The Court added that “[i]n exercising its discretion, the trial court should be mindful of the
significant legislative purposes underlying the rape-shield statute and should always favor
exclusion of evidence of a complainant’s sexual conduct where its exclusion would not
unconstitutionally abridge the defendant’s right to confrontation.” Id. at 349.
In this case, defendant does not explain how evidence of complainant’s reputation as a
prostitute, her past rapes, or sexual conduct with another man was necessary to preserve his
constitutional right to confront complainant. He does not contend that this evidence is an
indication of bias against him, that complainant had an ulterior motive or that she had made false
accusations in the past. Instead, defendant argues that the preclusion of the evidence violated his
constitutional right to present a defense. See People v Steele, 283 Mich App 472, 480; 769 NW2d
256 (2009) (“This Court reviews de novo whether defendant suffered a deprivation of his
constitutional right to present a defense.”).
As discussed, defendant’s proffered theory of the case was that a man came over to
complainant’s home when defendant was there; that while complainant and the man were in
another room complainant yelled “help me”; that complainant and the other man had sex; and that
when complainant emerged from the room she had a bump on her forehead. Defendant also asserts
that testimony that complainant is a prostitute was necessary to give context and credibility to this
version of events. The prosecution maintains that defendant could have, but chose not, to present
other evidence regarding the third party, i.e., that complainant had a bump on her head after going
in a different room with the third party. Indeed, the trial court precluded defendant only from
offering evidence of a “a third party’s sexual acts” and reminded defendant before his testimony
that he could not testify to “testify about her being a prostitute, having sex, or being raped by
another person.” Defense apparently concluded that testimony about the third party was not
helpful in absence of evidence that complainant had sex with the third party and was a prostitute,3
which indicates that defendant was attempting to introduce the evidence for the improper purposes
of impeaching complainant and placing her character into question. For these reasons, the trial
court did not abuse its discretion by precluding admission of the evidence covered by the rape-
shield statute and defendant was not denied his right to present a defense.
3
It is unclear what defendant would have testified to regarding complainant and the third party.
When the trial court was explaining its decision to grant the prosecutor’s motion in limine to
defendant, the court asked, “[Y]ou stated that there was another man that had sex with the alleged
victim; is that correct?” Defendant answered, “Oh yeah. Well, I—I—I never said that—well, yeah,
I—I said that—that she told me that she got raped twice.” Further, defendant testified at trial that
complainant had her injuries when he arrived at her home, which is inconsistent with his testimony
at the preliminary examination that he saw the bump on complainant’s head after she met with the
third party.
-5-
Defendant next argues that the DNA analysis was not covered by the rape-shield statute.
Defendant relies on Sharpe, 502 Mich at 324, in which the prosecution sought to admit evidence
of the 14-year-old complainant’s lack of other sexual partners, pregnancy and abortion. The
Supreme Court held that the evidence was not covered by the rape-shield statute and that it was
admissible under MRE 402 (relevancy) and MRE 403 (unfairly prejudicial) 4 because of its high
probative value. Id. at 326-334. The Court explained:
The evidence of [the complainant’s] pregnancy and abortion definitively
demonstrates that sexual penetration occurred. If the jury finds credible [the
complainant’s] testimony that she did not engage in sexual intercourse with anyone
other than defendant through November 2014, that testimony proves that defendant
was the man who sexually assaulted [the complainant]. [Id. at 333.]
Sharpe thus stands for the unremarkable proposition that evidence of the defendant’s guilt
voluntarily offered by the complainant is not precluded by the rape-shield statute, the purpose of
which is “to prevent unwelcome and unnecessary inquiry into a complainant’s sexual activities,
thereby protecting the complainant’s privacy and protecting the complainant from suffering unfair
prejudice based on her sexual history.” Id. at 330-331. By contrast, defendant sought to admit
DNA evidence from which he would have asked the jury to infer that complainant engaged in
sexual conduct with someone other than defendant, i.e., a specific instance of sexual conduct that
it is generally barred by the rape-shield statute. Defendant maintains, however, that the DNA
evidence is similar to evidence of a pregnancy and abortion, which Sharpe reasoned were evidence
that sexual activity occurred but were not, in and of themselves, specific instances of sexual
conduct. See id. at 328. Even assuming that Sharpe compels the conclusion that DNA evidence—
regardless of the purpose for which the defense seeks to use it—does not fall within the scope of
the rape-shield statute, the evidence would still have been inadmissible pursuant to MRE 402 and
MRE 403. We fail to see how the fact that complainant had sex with another man bears on the
question whether defendant’s actions occurred with the consent of the complainant. And as
already discussed, such evidence would have been highly prejudicial.
Finally, even if preclusion of the DNA evidence was error it would not require reversal
because it could not have affected the outcome of the trial.5 The record reveals little about the
4
MRE 402 states in part: “All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, the Constitution of the State of Michigan, these rules, or
other rules adopted by the Supreme Court.” MRE 403 provides: “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.”
5
MCL 769.26 provides:
No 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
-6-
DNA other than its presence. The report indicated only that the DNA was from an “unidentified,
unrelated individual.” The report did not indicate that it came come from a male donor, or from
semen or that it demonstrated sexual activity at the time defendant asserts it occurred. And as we
just noted, even assuming that the DNA was semen from the claimed third party, the evidence had
limited, if any, relevance to the defense’s theory of consent. For these reasons, defendant fails to
establish that admission of the DNA evidence, if erroneous, would more likely than not have led
to a different outcome at trial.
B. STANDARD 4 BRIEF
In a Standard 4 supplemental brief, defendant also argues that there was insufficient
evidence presented at the preliminary examination to justify bindover to the circuit court; he was
entitled to a directed verdict because the prosecution’s case was based on insufficient evidence;
the police officer’s testimony was hearsay because he was not wearing a body camera; and the
trial court failed to instruct the jury on the reasonable-doubt standard.6
Because defendant was convicted in a jury trial, any claims related to the bindover from
district court to the circuit court are irrelevant. See People v Bosca, 310 Mich App 1, 45; 871
NW2d 307 (2015) (“If a defendant is fairly convicted at trial, no appeal lies regarding whether the
evidence at the preliminary examination was sufficient to warrant a bindover.”) (quotation marks
and citation omitted). As to the sufficiency of the evidence at trial, in CSC cases, the victim’s
testimony is enough and does not require corroboration. See MCL 750.520h; People v DeLeon,
317 Mich App 714, 719; 895 NW2d 577 (2016). We will not second guess the jury’s credibility
determinations. See People v Mehall, 454 Mich 1, 6; 557 NW2d 110 (1997). A conviction of
examination of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice.
To properly apply the harmless-error test in a criminal proceeding, this Court must determine
whether the error was constitutional or nonconstitutional. See People v Cornell, 466 Mich 335,
363; 646 NW2d 127 (2002). “Evidentiary errors are nonconstitutional.” People v Blackmon, 280
Mich App 253, 259; 761 NW2d 172 (2008). “[I]f the issue is preserved, the defendant has the
burden of establishing a miscarriage of justice under a ‘more probable than not’ standard.” People
v Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019).
6
To preserve most claims of error, a party must object below. See People v Pipes, 475 Mich 267,
277; 715 NW2d 290 (2006). Defendant did not object to the admissibility of the police officer’s
testimony or to any issues related to the jury instructions. Therefore, those claims of error are
unpreserved. However, “[c]riminal defendants do not need to take any special steps to preserve a
challenge to the sufficiency of the evidence.” People v Cain, 238 Mich App 95, 116-117; 605
NW2d 28 (1999). We review unpreserved errors for plain error affecting substantial rights. See
People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). We review de novo challenges
to the sufficiency of the evidence. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37
(2011). “We view the evidence in the light most favorable to the prosecution to determine whether
a rational trier of fact could have found the essential elements of the crime to have been proved
beyond a reasonable doubt.” Id.-7-
CSC-I, in the circumstances relevant in this case, requires proof that the actor engaged in sexual
penetration with another person, causing injury, and using force or coercion. MCL 750.520b(1)(f).
Evidence admitted at trial unquestionably supported all of these elements.
Next, defendant attempts to characterize the testimony of a police officer as hearsay simply
because he was not wearing a body camera at the time of the incident. This argument is without
merit. The officer was not asked about a body camera, and he did not mention whether he was
wearing one. The officer testified at trial consistent with the Rules of Evidence.
Finally, defendant’s argument that the trial court failed to instruct the jury on the
reasonable-doubt standard is also baseless. We have reviewed the jury instructions and find no
support for defendant’s claim. Because there was a proper instruction, defendant’s argument that
his attorney failed to object to the trial court’s instruction is similarly without merit.
Affirmed.
/s/ Douglas B. Shapiro
/s/ David H. Sawyer
/s/ Jane M. Beckering
-8-