PEOPLE OF THE STATE OF MICHIGAN v SHADRACH JAMES CUNNINGHAM
No. 366138
STATE OF MICHIGAN COURT OF APPEALS
January 15, 2025
UNPUBLISHED; LC No. 2021-060328-FC; Marquette Circuit Court
Before: N. P. HOOD, P.J., and REDFORD and MALDONADO, JJ.
PER CURIAM.
A jury found defendant guilty of two counts of first-degree criminal sexual conduct (CSC-I),
I. FACTUAL BACKGROUND
In 2021, the victim and defendant attended the same university and were friends; they both were involved in collegiate sports. In the late evening of January 16, defendant invited the victim to a gathering in a dormitory suite near his own suite. The victim met defendant and other individuals in the dormitory. When she saw defendant, she observed that defendant appeared somewhat intoxicated. After approximately 10 minutes, defendant grabbed the victim‘s hand and led her down the hallway into his own suite and bedroom.
Defendant closed the bedroom door, put his arm around the victim, and kissed her. The victim testified that she was surprised by the kiss because they had never kissed before. While the victim kissed defendant back briefly, she quickly decided she did not want to kiss him. The victim then pulled away, but defendant grabbed the victim‘s neck more forcibly to kiss her again. Defendant also pulled the victim across his lap, and the victim believed defendant‘s intentions were to have sex. She told defendant to stop and that she did not want to have sex, but defendant merely replied that he would not tell anyone. The victim described how she became fearful
Defendant violently put his fingers inside the victim‘s vagina, causing the victim to go into shock. Defendant also penetrated the victim‘s vagina with his penis before grabbing a condom from his desk. While doing so, defendant held the victim down with one of his hands. The victim described herself as being still pinned and unable to move. The victim continuously told defendant to stop, but defendant did not listen. Defendant subsequently flipped the victim onto her knees, which was painful for the victim because she was recovering from knee surgery, and her face was pushed up against a ladder used to access the lofted bed. Defendant again penetrated the victim‘s vagina. The victim did not believe she could escape defendant because he overpowered her with his size and strength. Defendant eventually stopped and sat down. The victim gathered her clothes and shoes, put them on quickly, and left.
Immediately following the incident, the victim disclosed the incident to her father and stepmother, who then contacted law enforcement. The victim met with a campus police officer at approximately 2:00 a.m., who described the victim‘s demeanor as fluctuating between very quiet and extremely upset. In addition, the victim contacted one of her friends, and told this friend that defendant “raped her” and that he did not listen when she told him to stop.
The victim went to the hospital because she was experiencing vaginal bleeding. She testified that she had a swollen lip and scratches on her neck and breast. Paperwork from a nurse‘s examination of the victim revealed swelling “to bottom lip and bite mark“; possible bruising on the neck along with pain to the touch; a mark, possibly bruising or discoloration, on the left side of the chest with pain to the touch; an “abrasion” or “scratch” on an unspecified arm; swelling on “labia minora,” which is “tissue ... surrounding the vagina and urethra“; and an “abrasion near cervix.” After the victim left the hospital, she received a message from defendant that read: “Hey, I think we hung out last night. I don‘t really remember much, but I‘m sorry if I was tripping.” The victim did not respond to the message. In the aftermath of the incident, the victim experienced psychological symptoms, such as anxiety attacks, and attempted suicide twice.
Defendant testified at trial. He agreed that the sexual encounter occurred, but, according to his version of events, everything that occurred was consensual. He testified that the victim never gave any verbal or physical indication that she did not want to engage in the sexual encounter. Defendant was convicted by a jury and sentenced as earlier described. This appeal followed.
II. ANALYSIS
A. JURY INSTRUCTIONS
Defendant raises three challenges to the instructions read to the jury. First, he argues that M Crim JI 20.25 should not have been given. Second, he contends that the jury needed to unanimously agree on the manner in which the victim sustained personal injury. Third, he
“To preserve an instructional error for review, a defendant must object to the instruction before the jury deliberates.” People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003). Defendant concedes that he failed to preserve his first and second challenges because he did not object to M Crim JI 20.25 and M Crim JI 20.9 as given. However, defendant preserved his third challenge by requesting that the trial court include additional language for M Crim JI 20.27.
Generally, we review de novo preserved issues involving jury instructions. People v Montague, 338 Mich App 29, 37; 979 NW2d 406 (2021). Furthermore, “[t]his Court reviews the trial court‘s determination whether a jury instruction is applicable to the facts of the case for an abuse of discretion.” Id. (quotation marks and citation omitted). A trial court abuses its discretion when its “decision is outside the range of principled outcomes.” Id. (quotation marks and citation omitted). However, we review defendant‘s unpreserved first and second challenges for plain error affecting defendant‘s substantial rights. Gonzalez, 256 Mich App at 225. “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.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To affect substantial rights, the error must be prejudicial, i.e., the error “affected the outcome of the lower court proceedings.” Id.
A defendant is entitled to have a jury that is correctly instructed. Montague, 338 Mich App at 37. The trial court must “instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner.” Id. (quotation marks and citation omitted). Such instruction must include the charged offenses’ elements as well as “any material issues, defenses, and theories that are supported by the evidence.” Id. at 37-38 (quotation marks and citation omitted). If the instructions “fairly presented the issues to be tried and sufficiently protected the defendant‘s rights,” there is no error. Id. at 38 (quotation marks and citation omitted). “Finally, jury instructions are reviewed in their entirety, and there is no error requiring reversal if the instructions sufficiently protected the rights of the defendant and fairly presented the triable issues to the jury.” Id.
1. M CRIM JI 20.25
The trial court did not plainly err by instructing the jury that the victim‘s testimony did not need to be corroborated.
During the jury voir dire, the prosecution informed the prospective jurors: “There‘s going to be a jury instruction that the victim‘s testimony does not need to be corroborated, meaning that if you believe through her testimony that I prove this case beyond a reasonable doubt, you don‘t need anything more than that to convict the [d]efendant.” This was a reference to M Crim JI 20.25, which provides: “To prove this charge, it is not necessary that there be evidence other than the testimony of [name complainant], if that testimony proves guilt beyond a reasonable doubt.” Later, the prosecution asked the prospective jurors if there was any specific evidence that they expected to see. The trial court interjected and stated that it would instruct the jury about the definition of evidence. Additionally, the trial court stated that there was
But the issue is sometimes all the evidence you have is testimony of witnesses, so that‘s kind of the context of the question.
The prosecution asked the prospective jurors if there was “concern about that instruction or concern about having to potentially just rely on the victim‘s testimony, itself,” to which the prospective jurors gave no such indication. After the close of proofs, the trial court gave M Crim JI 20.25.
M Crim JI 20.25 is a result of
In People v Smith, 149 Mich App 189, 195; 385 NW2d 654 (1986), this Court held that “[t]he trial court did not err in reading as part of its instructions CJI 20:1:01,2 which accurately states the law as provided in MCL 750.520h; MSA 28.788(8).” Smith, 149 Mich App at 191. In holding that the trial court did not err by reading the instruction to the jury, this Court not only relied on the instruction accurately encompassing
Defendant argues that highlighting M Crim JI 20.25 during voir dire constituted improper bolstering of the victim‘s testimony. Although it is impermissible to vouch for the credibility of a witness, see People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004); People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007), this did not occur in this case. Neither the prosecution nor the trial court commented on whether the victim‘s testimony was credible; rather, they merely highlighted the state of Michigan law, i.e., that corroborating evidence is not needed so long as the victim‘s testimony proved the elements beyond a reasonable doubt. In fact, the trial court twice emphasized that the jury must find the elements proven beyond a reasonable doubt, which highlighted to the jury that the victim‘s testimony must nonetheless prove the elements of the offenses.
Defendant also takes issue with the trial court‘s use of the word “victim,” during voir dire when the trial court stated that there was a “jury instruction that says that the testimony of a victim need not be corroborated.” Defendant asserts that such a reference deprived him of his presumption of innocence, but he provides no authority to establish that the trial court‘s statement was improper.
Defendant relies upon People v Stanaway, 446 Mich 643, 677 n 37; 521 NW2d 557 (1994), for the principle that “the legal status of an accuser as victim does not obtain until a conviction is entered.” However, that statement addressed circumstances unrelated to a trial in a criminal sexual conduct case. Instead, the issue involved the discoverability of a statutorily privileged health record in a criminal trial. Id. Moreover, this statement was made in a footnote in the majority opinion, to address a suggestion raised by a concurring justice, and had no bearing on the Supreme Court‘s ruling. Consequently, the statement was nonbinding obiter dicta. People v Peltola, 489 Mich 174, 190 n 32; 803 NW2d 140 (2011). Defendant has failed to show error that was clear or obvious. See Carines, 460 Mich at 763.
Even if the trial court‘s statement amounted to error, defendant cannot show that it was outcome-determinative error. See id. In the trial court‘s singular use of the term, the trial court did not refer to the specific victim in this case; rather, the trial court referred to the instruction and to a hypothetical victim in general terms. Later, when instructing the jury, the trial court used the victim‘s name. Defendant has not demonstrated that a single reference to a hypothetical victim was the basis for the jury‘s verdict, rather than the evidence presented.
The trial court did not plainly err by failing to give an unanimity instruction regarding the manner in which personal injury could occur.
During the prosecution‘s closing remarks, the prosecution without objection made the following remarks about the personal injury element for
What we‘re focused on here is either bodily injury or mental anguish. You all do not have to agree on a specific theory of personal injury. Some people may think that [the victim] suffered mental anguish as a result of this assault. Others may think that she did not, but suffered bodily injury as a result of this sexual assault. Think of the marks on her neck. A mark on her neck that appeared to be developing into a bruise. The bit [sic] mark on her lip. The swelling in her vagina. The abrasion that was near her cervix. And it‘s okay if not everybody is in agreement with what form of personal injury that [she] suffered, as long as you all believe that some form of personal injury, whether it‘s bodily injury or mental anguish occurred. [Emphasis added.]
The trial court gave M Crim JI 20.9, which defines the element of personal injury. M Crim JI 20.9(2) provides: “Personal injury means bodily injury, disfigurement, chronic pain, pregnancy, disease, loss or impairment of a sexual or reproductive organ, or mental anguish. Mental anguish means extreme pain, extreme distress, or extreme suffering, either at the time of the event or later as a result of it.” M Crim JI 20.9(3) contains a list of considerations in determining whether there was mental anguish. The trial court gave the jury a general unanimity instruction, but, when giving M Crim JI 20.9, it did not give a specific unanimity instruction for the manner in which the personal injury element could occur.
However, in People v Asevedo, 217 Mich App 393, 397; 551 NW2d 478 (1996), this Court explicitly held that a jury was not required to unanimously agree on how a victim sustained personal injury for purposes of CSC-I. This Court reasoned
that bodily injury and mental anguish are not alternative theories upon which a jury is required to make independent findings, as proposed by defendant. When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory. The same reasoning applies here. Because bodily injury, mental anguish, and the other conditions listed in
MCL 750.520a(j) ; MSA 28.788(1)(j) are merely different ways of defining the single element of personalinjury, we believe they should not be construed to represent alternative theories upon which jury unanimity is required. Accordingly, if the evidence of any one of the listed definitions is sufficient, then the element of personal injury has been proven. [Id. at 397 (emphasis added).]
Defendant requests this Court to revisit this issue, but, as a case decided after November 1, 1990, Asevedo is binding on this Court. See MCR 7.215(J)(1). Furthermore, we discern no error in its reasoning.
3. M CRIM JI 20.27
The trial court did not err by refusing to add defendant‘s requested language regarding the prosecution‘s burden to prove the absence of consent.
During the trial court and parties’ discussion of the jury instructions, defendant took issue with M Crim JI 20.27, which addresses consent. More specifically, M Crim JI 20.27(4) provides: “If you find that the evidence raises a reasonable doubt as to whether [name complainant] consented to the act freely and willingly, then you must find the defendant not guilty.” Defense counsel did not object to the inclusion of this paragraph but, instead, requested the following language be added to the beginning of this paragraph: “The Prosecutor bears the burden of proving the absence of consent beyond a reasonable doubt.” The trial court noted that this was “crafted from some caselaw on this issue about affirmative defenses, which consent is.” The prosecution opposed this language, and the trial court agreed. The trial court reasoned that the prosecution‘s
burden of proof is proving force or coercion, which, since that‘s the absence of consent, I don‘t really think it‘s necessary to give further burden of proof on this issue. I think the Prosecutor always has the burden of proof on force or coercion, and the Instruction says that consent can only exist without that.
Moreover, the trial court reasoned that “[m]y general sense is that additional detail and affirmative defenses and burden, it short of adds confusion rather than keeping the straightforward concept in the Jury Instruction that consent can only exist in the absence of force or coercion.”
On appeal, defendant contends that, because consent was an affirmative defense, the trial court erred by not adding language to M CRIM JI 20.27 specifying that the prosecution had the burden of proving the absence of consent beyond reasonable doubt. Defendant points to People v Thompson, 117 Mich App 522, 525-526; 324 NW2d 22 (1982), in which this Court held that the failure “to instruct the jury on the defense of consent to” CSC-I constituted error requiring reversal. Additionally, this Court took issue with the trial court‘s instruction on consent for the charge of kidnapping, holding that the instruction was erroneous because it improperly shifted the burden to the defendant on consent, which was an affirmative defense. Id. at 528-529. Accordingly, this Court instructed that, on remand, if the evidence “warrants instructions on consent as a defense to kidnapping or criminal sexual conduct,” the trial court must properly instruct the jury about the burden being on the prosecution. Id. at 529. Similarly, in People v Hearn, 100 Mich App 749, 755; 300 NW2d 396 (1980), this Court held that the trial court should have instructed the jury about consent, which was the theory of defendant‘s defense. Although the defendant testified that the victim consented to the sexual relations, “[t]he trial court ... failed to instruct on consent.” Id. at 752.
This case is distinguishable from both Thompson and Hearn because the trial court did instruct the jury about consent. The court explicitly instructed the jury that, if it determined there was consent, it must acquit defendant. Moreover, the instruction did not improperly shift the burden to defendant to prove consent; rather, it informed the jury that, if the evidence raised a reasonable doubt about consent, it must acquit defendant. This was a reference to the prosecutor‘s burden, not defendant‘s burden. Although defendant‘s requested language may have informed the jury about the prosecutor‘s burden in a different way, the instructions given to the jury fairly presented the issues and sufficiently protected defendant‘s rights, see Montague, 338 Mich App at 38, because there was no danger of the jury placing the burden on defendant to prove consent.
B. GREAT WEIGHT OF THE EVIDENCE
Next, defendant argues that his convictions were against the great weight of the evidence. More specifically, defendant contends that it was unbelievable and defied physical reality for him to remove the victim‘s jeans, leggings, shorts, and underwear in one motion. Similarly, defendant argues that it was unbelievable and defied physical reality for him to hold the victim down with one hand while using the other to remove his pants, grab a condom from a drawer, remove it from its package, and place the condom on his penis. We disagree.
A defendant must move for a new trial to preserve the assertion that the jury‘s verdict was against the great weight of the evidence. People v Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014). Defendant failed to do so, leaving this issue unpreserved. “Unpreserved challenges to the great weight of the evidence are reviewed for plain error affecting the defendant‘s substantial rights.” Id.
“The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” People v Anderson, 322 Mich App 622, 632; 912 NW2d 607 (2018) (quotation marks and citation omitted). This Court explained that
[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial. [U]nless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury‘s determination. [Id. (citation omitted; alterations in original).]
Nonetheless, “[i]t is the province of the jury to determine questions of fact and assess the credibility of witnesses.” Id. (quotation marks and citation omitted; alteration in original).
In this case, the victim agreed that defendant removed the victim‘s jeans, leggings, sport shorts, and underwear in “one fluid motion.” Prior to the removal, defendant started to unbutton the victim‘s jeans. The victim explained that defendant “dug his fingers into ... my pants and my shorts” “[a]nd ripped off the bottom half of what I was wearing.” Defendant was an athlete, and
Additionally, the victim explained how defendant “first put [his penis] inside of my vagina and I was still laying on my back at this point, he had one hand kind of like on my lower abdomen ... keeping me there, and he reached back and grabbed a condom from his desk.” The victim explained that she “could touch [the desk] from sitting on the end of the futon,” and the victim agreed that defendant did not “have to get up to reach the desk at all.” Defendant presented a photograph of his bedroom, which allowed the jurors to assess for themselves whether defendant could have reached the desk from the futon. Moreover, our review of the exhibit suggests that the desk was a couple feet away from the futon, a distance reasonably within someone‘s reach. The victim testified that she went into shock and effectively resigned herself to the situation in the hopes of it ending soon. It was not unbelievable or against physical realities for defendant to obtain and utilize the condom from a desk within reaching distance while keeping the shocked victim pinned with his body and the other hand. Although the victim may have given different statements at a prior Title IX hearing, defense counsel used this to impeach the victim, and it was within the province of the jury to determine credibility.3 Defendant‘s conviction is not against the great weight of the evidence.
C. CRUEL OR UNUSUAL PUNISHMENT
Next, defendant argues that mandatory LEM constitutes cruel or unusual punishment as applied to him. We disagree.
At sentencing, defendant challenged mandatory LEM as being cruel or unusual punishment under both the United States and Michigan Constitutions. Defendant conceded that the monitoring was mandatory pursuant to
This Court reviews de novo constitutional issues, People v Pennington, 240 Mich App 188, 191; 610 NW2d 608 (2000), and the interpretation and application of a statute, People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). The United States Constitution prohibits cruel and unusual punishment,
For CSC-I offenses,
“A party challenging the constitutionality of a statute has the burden of proving its invalidity.” People v Jarrell, 344 Mich App 464, 482; 1 NW3d 359 (2022). Challenges may be either “facial” or “as applied.” Id. “A facial challenge involves a claim that there is no set of circumstances under which the enactment is constitutionally valid, while an as-applied challenge considers the specific application of a facially valid law to individual facts.” Id. (quotation marks and citations omitted). Defendant argues that, as applied to him, mandatory LEM for CSC-I constitutes cruel or unusual punishment.
As a threshold matter, there must first be a punishment in order for the cruel or unusual prohibition to apply. Id. at 483. This Court previously held that LEM constitutes a punishment. Hallak, 310 Mich App at 571. Therefore, this threshold matter has been met. Moving to the next part of the analysis, this Court recently explained:
To determine whether a punishment is cruel or unusual, courts assess whether it is “unjustifiably disproportionate” to the offense committed by considering four factors: (1) the harshness of the penalty compared to the gravity of the offense, (2) the penalty imposed for the offense compared to penalties imposed for other offenses in Michigan, (3) the penalty imposed for the offense in Michigan compared to the penalty imposed for the same offense in other states, and (4) whether the penalty imposed advances the goal of rehabilitation. [Jarrell, 344 Mich App at 484 (quotation marks and citation omitted).]
This Court previously held that LEM for a CSC-II conviction was not cruel or unusual punishment under the Michigan Constitution, Hallak, 310 Mich App at 573-574, and it rejected the defendant‘s facial and as-applied challenge, id. at 576-577. In doing so, this Court described how LEM allows law enforcement to ensure that an offender is not in a prohibited location, and how LEM acts as a deterrent. Id. at 574.
Although defendant is subject to mandatory LEM, after his release from prison, LEM does not prohibit defendant from traveling, working, or moving about legally as he wishes. See id. at 581. Additionally, “[t]here are few crimes considered as grave in our society as CSC-I,” Jarrell, 344 Mich App at 485, which is reflected by the Legislature‘s decision to make CSC-I punishable “by imprisonment for life or for any term of years,”
The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger. [
MCL 28.721a .]
The Legislature has also distinguished between CSC-I offenses like those in the present case versus those that involve an offender 17 years of age or older and victim under 13 years of age. For the latter situations, the offender is subject to a mandatory minimum of 25 years in prison. See
For the second factor, for largely the same reasons espoused in Hallak, we believe mandatory LEM is not unduly harsh when compared to other penalties imposed for other offenses in Michigan. Mandatory LEM is not only required for CSC-I, which is the gravest of the CSC offenses, but also for CSC-II,
For the third factor, we rely on Hallak‘s determination that LEM for sex offenders is not unique to Michigan. As this Court stated, “[A]t least 11 (including Michigan) have mandated lifetime monitoring for defendants convicted of the most serious CSC offenses or CSC with a
Therefore, none of the four factors weigh in defendant‘s favor, and we hold that the punishment of mandatory LEM is not grossly disproportionate to the gravity of the CSC-I offenses committed by defendant. Defendant largely ignores this four-factor test and, instead, focuses on his age and how his youthful attributes were not considered in sentencing. Defendant was 18 years old at the time of the offenses and did not have a criminal record. He relies on People v Parks, 510 Mich 225, 247-254; 987 NW2d 161 (2022), in which the Court questioned the societal line drawn between those age 17 and those age 18, relying in part on various scientific studies that demonstrated the juvenile aspects of an 18-year-old‘s brain. The Parks Court held that imposing mandatory life without parole for 18-year-old defendants who are convicted of first-degree murder constituted cruel or unusual punishment under the Michigan Constitution. Id. at 265-266. However, in reaching this conclusion, it determined that all four factors weighed in the defendant‘s favor, which stands in contrast to the present case. Moreover, mandatory life in prison without parole is a far more serious punishment than mandatory LEM, which shaped the Court‘s analysis of the four factors. Finally, Parks did not involve the unique dangers posed by CSC offenders. Such differences persuade us that, although the trial court was precluded from considering defendant‘s attributes of youth and lack of criminal record, this on its own does not overcome the presumption of validity to the statutory sentence.
D. CUMULATIVE ERROR
Finally, defendant argues that the cumulative effects of the errors deprived him of a fair trial. We disagree.
This Court “review[s] this issue to determine if the combination of alleged errors denied defendant a fair trial.” Dobek, 274 Mich App at 106. “The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted.” Id. Without any errors, there can be no basis for a new trial. See id. None of defendant‘s challenges to his convictions hold merit: the trial court did not err or plainly err in any of the challenged instructions, and the verdict was not against the great weight of the evidence. Defendant has failed to show that the reliability of the verdict was undermined. Therefore, defendant was not denied a fair trial and is not entitled to relief.
Affirmed.
/s/ Noah P. Hood
/s/ James Robert Redford
/s/ Allie Greenleaf Maldonado