People v. Evans

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RYAN MATTHEW EVANS, Defendant-Appellant.

No. 353139

Court of Appeals of Michigan

April 21, 2022

UNPUBLISHED

Macomb Circuit Court LC No. 2018-001704-FC

Before: Letica, P.J., and Redford and Rick, JJ.

Per Curiam.

Defendant appeals as of right his jury trial convictions of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1). The court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to two concurrent terms of 30 to 50 years' imprisonment. The court also ordered that defendant be subject to lifetime electronic monitoring and registration as a sexual offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The 34-year-old defendant was convicted of sexually assaulting the victim, the daughter of his then fiancée, in their residence in Chesterfield Township. Defendant lived in the home with his fiancée (the victim's mother), her four daughters, and the eldest daughter's boyfriend. The prosecution presented evidence that in December 2017 defendant sexually assaulted the victim, who was 13 years old at the time, on two occasions while she was sleeping.

The victim testified that on December 1, 2017, her friend, RW spent the night at the victim's home. Defendant and the victim's mother went out to the casino. After the couple arrived home late at night, defendant entered the bedroom to say good night to the girls. According to the victim and RW defendant smelled like beer and appeared to be intoxicated. Later that night, defendant entered the bedroom and digitally penetrated the victim's vagina, waking her from her sleep. The victim was wearing a t-shirt and spandex shorts, and defendant placed his hand under her shorts. During the assault, the victim tried to kick or tap RW's foot to wake her, but did not succeed. The victim was too scared to cry out or scream. Although there was another male living in the home, the victim identified defendant as the perpetrator in light of his tattoo and build. Later, the victim revealed the assault to RW, but asked RW not to disclose the act to anyone else. Over the next two weeks, the victim spent as much time as she could at RW's home.

On December 14, 2017, the victim's sister, DM, had a friend, HM, spend the night. Although the sleepover occurred during the week, their school was closed the next day because of a snowstorm. DM became ill that evening and slept with the victim's mother. Consequently, the victim and HM spent the night sleeping on the living room floor. Once again, the victim awoke to find defendant digitally penetrating her vagina. For the second incident, HM awoke during the sexual assault, but defendant stopped the assault at that time.^[1] HM promptly went back to sleep. Defendant instructed the victim to come to the bedroom that he shared with the victim's mother, but she did not comply. Later that morning, the victim disclosed this incident to her friend, RW.

Defendant went outside and shoveled snow with DM, while the victim and HM made pancakes. Defendant requested that the victim assist in snow shoveling, but she obtained permission from her mother to go to RW's home. The victim's mother asked defendant to drive the victim to RW's home. While defendant drove the victim to RW's home, there was no conversation. Later, defendant inquired, over the phone, whether RW was aware of what happened and asked the victim for a "clean slate." The victim placed the phone call on speakerphone for RW and RW's mother to hear. The victim opined that defendant was inquiring if RW was aware of the assaults. That evening, defendant brought the victim fast food to RW's home because the rest of the victim's family had eaten dinner at a restaurant. The victim expressly denied that she argued with defendant about an earbud case or its contents.

The victim returned home that evening. RW's mother texted the victim's mother to ensure that the victim had a discussion with her. During the conversation, the victim disclosed only the first sexual assault to her mother. When questioned, defendant cried and denied that he would ever do such an act.^[2] That evening, the victim's mother drove defendant to his relative's home and took the victim to the police station the next day. Many days later, the victim disclosed the second incident that occurred on the snow day to her mother via text message.

Defendant testified at trial that he knew the victim's mother since 2013, and lived with the family for 18 months before the victim's allegations occurred. He acted as a stepfather and, until recently, had a good relationship with the victim. The two had nicknames for each other and participated in activities together. However, defendant was concerned about the victim's friends. He denied committing any act of sexual assault.

In his testimony, the defendant stated that on December 14, 2017 he was watching videos on the television when the victim took the remote to play video games. The victim was laughing and giggling with some "guy" who was also playing the video game. Defendant asked the victim to shovel snow, but she obtained permission to go to RW's home from her mother. Defendant grabbed an earbud case from the victim and found a condom inside of it. This discovery caused an argument between defendant and the victim, and the argument continued as defendant drove the victim to RW's house. When defendant called the victim later about a "clean slate," he was referring to his discovery of a condom in the earbud case and not any sexual assault. When defendant discussed the allegations with the victim and the victim's mother, his fiancée, he did not proffer the discovery of the condom as a motive for the victim to lie. Defendant explained that he was surprised and taken off guard by the allegations. Furthermore, the only claim of sexual assault raised at that time allegedly occurred two weeks earlier on the night of the casino outing.

Despite defendant's denial of the allegations, he was convicted as charged. Defendant filed a motion for new trial, challenging the partial closure of the courtroom, prosecutorial error, the denial of effective assistance of counsel, and the sentencing requirements of sex offender registration and lifetime electronic monitoring. The trial court denied defendant's motion.

II. PARTIALLY CLOSED COURTROOM

Defendant first alleges that he is entitled to a new trial because the trial court erroneously closed the courtroom during the victim's testimony. We disagree.

Before trial, the prosecutor moved for partial closure of the courtroom during the victim's testimony citing the trauma to the 13-year-old victim and relying on MCL 600.2163a. In response, defense counsel stipulated to this limited closure of the courtroom. Consequently, in light of the stipulation, the trial court entered an order granting the motion, ^[3] without rendering any findings addressing the factors for courtroom closure. When trial commenced, ^[4] the courtroom was apparently closed for the victim's testimony, but the trial was broadcast on closed-circuit television to the public, MCL 600.2163a(19).

Both the federal and state constitutions guarantee criminal defendants the right to a public trial. U.S. Const, Am VI; Const 1963, art 1, § 20; People v Vaughn, 491 Mich. 642, 650; 821 N.W.2d 288 (2012). Although the right is not absolute and may be limited, id. at 653, to justify a courtroom closure and facilitate appellate review of a trial court's decision, the court must state the interest that justified the closure and articulate specific findings to support the closure. People v Davis, __ Mich. __, __; __ N.W.2d __ (2022) (Docket No. 161396), slip op at pp 9-10. Further, the closure must be no broader than needed to protect the interest justifying it. Id. at slip op at p 10.

Also, "the effect of a partial closure of trial does not reach the level of a total closure and only a substantial, rather than compelling reason for the closure is required." People v Russell, 297 Mich.App. 707, 720; 825 N.W.2d 623 (2012).

To balance the rights of child victims while still protecting the constitutional right to public trials, our Legislature adopted MCL 600.2163a(18), which provides:

If upon the motion of a party made before trial the court finds on the record that the special arrangements specified in subsection (19) are necessary to protect the welfare of the witness, the court must order those special arrangements. In determining whether it is necessary to protect the welfare of the witness, the court must consider all of the following factors:

(a) The age of the witness.

(b) The nature of the offense or offenses.

(c) The desire of the witness or the witness's family or guardian to have the testimony taken in a room closed to the public.

(d) The physical condition of the witness.

MCL 600.2163a(19) requires the trial court to determine "on the record that [closure] is necessary to protect the welfare of the witness[.]" If that determination is made, the trial court must order one or more of several listed options that include removal of all unnecessary persons from the courtroom and public broadcast during witness testimony, defendant's courtroom placement away from the victim and all other witnesses, and podium placement in front of the witness stand. In this case, the trial court's order was consistent with the option prescribed in MCL 600.2163a(19)(a), which states:

[t]hat all persons not necessary to the proceeding be excluded during the witness's testimony from the courtroom where the trial is held. The witness's testimony must be broadcast by closed-circuit television to the public in another location out of sight of the

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