People of Michigan v. Torri Montague Durden

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

July 28, 2022

Plaintiff-Appellee,

v No. 353012

Oakland Circuit Court

TORRI MONTAGUE DURDEN, LC No. 2019-271864-FC

Defendant-Appellant.

Before: SHAPIRO, P.J., and RICK and GARRETT, JJ.

PER CURIAM.

Following a jury trial, defendant Torri Durden was convicted of first-degree criminal

sexual conduct (CSC-I), MCL 750.520b(1) (multiple variables), and assault by strangulation, MCL

750.84(1)(b). The trial court sentenced Durden as a fourth-offense habitual offender, MCL 769.12,

to concurrent prison terms of 18 to 50 years for the CSC-I conviction and 9 to 50 years for the

assault conviction. Durden appeals as of right, raising several challenges to his convictions. For

the reasons set forth in this opinion, we affirm.

I. FACTUAL BACKGROUND

Durden was convicted of sexually assaulting AW at Durden’s apartment on June 23, 2019.

Durden met AW on a dating application, they texted for a few weeks, and Durden invited AW to

his apartment. AW agreed to meet Durden at his apartment before she went to work on the

morning of June 23. AW alleged that while sitting on Durden’s bed, Durden began to kiss her, but

she told him to stop. Durden asked her “what was the point of coming over if [she] wasn’t trying

to” have sex with him. AW responded that “just because [she] came over, that didn’t mean that

[she] wanted to . . . have sex with him.” Durden then began to strangle her. AW screamed, and

Durden told her to shut up. AW told Durden that she had asthma and couldn’t breathe, and he

briefly allowed her to get up to use her inhaler. According to AW, Durden then began to again

choke her, forcibly held her down, and anally penetrated her without her consent. Before AW left,

Durden took a photograph of AW’s identification and told her, “If you don’t f**k with me, I won’t

f**k with you.”

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After leaving Durden’s apartment, AW immediately called her boss and told her boss what

happened. AW drove to work, and when she arrived, a coworker took her to the hospital. The

hospital could not give AW a proper sexual assault examination, so AW was referred to HAVEN,

an organization that offers services for victims of sexual assault. There, AW received a forensic

medical examination by a sexual assault nurse examiner (SANE), Katrina Ferris, who observed

injuries to AW’s anal region consistent with AW’s account of the assault. Ferris did not observe

any injuries to AW’s neck area, but testified that AW complained of other symptoms consistent

with strangulation. DNA collected during the examination was consistent with Durden being a

contributor. AW attended a follow-up medical examination approximately three weeks later, at

which AW disclosed continued symptoms consistent with strangulation.

The prosecution also presented the testimony of KM, who testified that she met Durden on

Facebook in 2008, and eventually invited him to her house. According to KM, Durden tried to

initiate sexual activity and she told him to stop, but Durden sexually assaulted her. Durden also

told KM that he knew where she lived if she told anyone. Durden was later convicted of second-

degree criminal sexual conduct in that matter.

Durden now appeals, raising issues through his appointed appellate counsel and in a

Standard 4 brief.1

II. BRIEF FILED BY COUNSEL

In the brief filed by Durden’s counsel, Durden challenges the admission of photographic

evidence, argues the trial court erroneously excluded his proposed character evidence, and claims

prosecutorial misconduct during closing arguments. We address each issue in turn.

A. PHOTOGRAPHIC EVIDENCE

Durden first argues that the trial court erred by admitting photographs of AW taken during

a follow-up medical examination. Durden contends that the photographs were not properly

authenticated because the nurse who took the photos did not testify at trial. Durden further argues

that admission of the photographs violated his Sixth Amendment right of confrontation.

Preliminarily, although Durden preserved the issue that the photographs were not properly

authenticated by objecting on this basis at trial, he did not argue that admission of the photographs

violated his constitutional right of confrontation. The latter issue is therefore unpreserved. See

People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011) (“[A]n objection on one ground

is insufficient to preserve an appellate argument based on a different ground.”). We review a trial

court’s decision to admit evidence for an abuse of discretion. People v Duncan, 494 Mich 713,

722; 835 NW2d 399 (2013). A trial court abuses its discretion when its decision falls outside the

range of reasonable outcomes. Id. at 722-723. Any preliminary questions of law, including

1

Under Administrative Order No. 2004-6, a “Standard 4 brief” refers to a pro se brief filed to raise

additional claims on appeal against the advice of counsel. People v Ryan, 295 Mich App 388, 392

n 1; 819 NW2d 55 (2012).

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questions involving the interpretation of rules of evidence, are reviewed de novo. Id. at 723. De

novo review means that “we review the issues independently, with no required deference to the

trial court.” People v Beck, 504 Mich 605, 618; 939 NW2d 213 (2019). Unpreserved issues are

reviewed for plain error affecting a defendant’s substantial rights, meaning that the defendant must

show prejudice. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

At trial, Ferris testified that when she examined AW on June 23, 2019, she took

photographs of AW’s injuries, including petechiae in AW’s eye,2 which could be associated with

strangulation. Ferris testified that AW attended a follow-up examination, in part to determine

whether the petechiae observed on June 23 may have been caused by an injury, or was a natural

condition associated with AW. Ferris was not present during the follow-up examination, but

photographs of AW taken on that date were included in AW’s medical records and did not depict

petechiae in AW’s eye, which led Ferris to conclude that the petechiae observed on June 23 was

an actual injury.

Durden argues that the photographs from AW’s follow-up examination were not

admissible because the nurse who conducted that examination and took the photographs did not

testify at trial, and therefore, the photographs could not be authenticated. The trial court disagreed

because it determined that the photographs were part of AW’s medical records, which were self-

authenticating under MRE 902(11).

MRE 901(a) provides that as a condition precedent to the admission of evidence, the

evidence must be authenticated. Authentication requires the proponent—the party introducing the

evidence—to produce “evidence sufficient to support a finding that the matter in question is what

its proponent claims.” MRE 901(a). Under MRE 902, however, some types of evidence may be

treated as self-authenticating. MRE 902 provides, in pertinent part:

Extrinsic evidence of authenticity as a condition precedent to admissibility

is not required with respect to the following:

* * *

(11) Certified Records of Regularly Conducted Activity. The original or a

duplicate of a record, whether domestic or foreign, of regularly conducted business

activity that would be admissible under rule 803(6), if accompanied by a written

declaration under oath by its custodian or other qualified person certifying that

(A) The record was made at or near the time of the occurrence of the matters

set forth by, or from information transmitted by, a person with knowledge of those

matters;

(B) The record was kept in the course of the regularly conducted business

activity; and

2

Ferris described petechiae as “burst blood vessels” caused by increased pressure in the head.

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(C) It was the regular practice of the business activity to make the record.

A party intending to offer a record into evidence under this paragraph must

provide written notice of that intention to all adverse parties, and must make the

record and declaration available for inspection sufficiently in advance of their offer

into evidence to provide an adverse party with a fair opportunity to challenge them.

MRE 803(6) provides:

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

* * *

(6) Records of Regularly Conducted Activity. A memorandum, report,

record, or data compilation, in any form, of acts, transactions, occurrences, events,

conditions, opinions, or diagnoses, made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that business

activity to make the memorandum, report, record, or data compilation, all as shown

by the testimony of the custodian or other qualified witness, or by certification that

complies with a rule promulgated by the supreme court or a statute permitting

certification, unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness. The term “business” as used in this

paragraph includes business, institution, association, profession, occupation, and

calling of every kind, whether or not conducted for profit.

The photographs in question were taken during AW’s follow-up medical examination.

Before trial, the prosecution filed a notice of its intent to introduce AW’s certified medical records,

which included these photographs, under MRE 902(11). The records were produced during

discovery and were available to Durden before trial. Durden did not object to the prosecution’s

notice under MRE 902(11), and did not otherwise argue, either below or on appeal, that the

proffered certified medical records did not satisfy the requirements of MRE 902(11) or MRE

803(6). In any event, the prosecution introduced, and the trial court admitted into evidence, the

certificate from the custodian of the medical records. The certificate affirmed that the medical

records, including the photographs, complied with the requirements of MRE 902(11).

Accordingly, the trial court did not abuse its discretion by ruling that the medical records, including

the photographs from AW’s follow-up examination, were admissible without further

authentication.

Durden also argues, for the first time on appeal, that admission of the photographs violated

his rights under the Confrontation Clause because he could not cross-examine the person who took

the photographs at AW’s follow-up examination.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him . . . .” US Const, Am VI. See also

Const 1963, art 1, § 20. The right of confrontation ensures that a witness testifies under oath at

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trial and is available for cross-examination. People v Yost, 278 Mich App 341, 370; 749 NW2d

753 (2008). In general, the Confrontation Clause bars the use of a witness’s testimonial statements

if the witness is unavailable for trial, unless the defendant had a prior opportunity to cross-examine

the witness. Crawford v Washington, 541 US 36, 59; 124 S Ct 1354; 158 L Ed 2d 177 (2004).

In People v Dinardo, 290 Mich App 280, 290-291; 801 NW2d 73 (2010), this Court held

that machine-generated breath test results showing a defendant’s blood alcohol level were

nontestimonial. The results were “generated entirely by a machine without the input of any human

analyst,” and as such, there was no witness to confront about the results. Id. at 290. “The machine

was the sole source of the test results, which spoke entirely for themselves,” and no expert

interpretation was required for the fact-finder to understand the results. Id. Therefore, because “a

machine is not a witness in the constitutional sense,” any “data automatically generated by a

machine [is] accordingly nontestimonial in nature.” Id. at 290-291.

Applied here, the right of confrontation is not implicated when photographs are offered

into evidence because a photograph does not involve a witness bearing testimony and is

nontestimonial. The analysis from Dinardo supports this conclusion because a photograph is

entirely generated by a camera, and a camera is not a witness subject to cross-examination. Not

only is a photograph nontestimonial, but it does not constitute a statement. A statement is “an oral

or written assertion” or “nonverbal conduct of a person, if it is intended by the person as an

assertion.” MRE 801(a). The photographs at issue did not involve any assertion of a person, and

their contents “spoke entirely for themselves.” Dinardo, 290 Mich App at 290. We also agree

with the persuasive conclusions drawn by federal courts that have held that photographs are

nontestimonial evidence.3 See, e.g., United States v Clotaire, 963 F3d 1288, 1295 (CA 11, 2020)

(holding that still frame pictures from a surveillance camera do not implicate the Confrontation

Clause because “[s]urveillance cameras are not witnesses, and surveillance photos are not

statements”); United States v Lopez-Moreno, 420 F3d 420, 436 (CA 5, 2005) (holding that a

photocopy of an identification card is nontestimonial “because it in no way involves a witness

bearing testimony”).

Because the photographs at issue do not qualify as testimonial statements, they do not

implicate Durden’s rights under the Confrontation Clause. Accordingly, Durden has not

demonstrated any plain error from admission of the photographs.

B. CHARACTER EVIDENCE

Durden next argues that the trial court erred by precluding him from calling three defense

witnesses. The witnesses were other women who Durden had met online and who would have

testified that they engaged in consensual sex with Durden. Durden contends that this testimony

was admissible as evidence of his character to show that he was not violent or likely to engage in

forcible sexual activity with other women.

3

Decisions from federal courts of appeals are not binding on this Court, but we may consider them

for their persuasive value. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).

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We review the trial court’s decision to exclude the proposed testimony for an abuse of

discretion. Duncan, 494 Mich at 722. Character evidence is generally not admissible to prove

that the defendant acted in conformity with the allegations supporting the charged offenses. MRE

404(a). MRE 404(a)(1) does, however, authorize the accused to introduce evidence of a “pertinent

trait of character.” Under this rule, “a defendant may offer evidence that he or she has a character

trait that makes it less likely that he or she committed the charged offense.” People v Roper, 286

Mich App 77, 93; 777 NW2d 483 (2009). For example, a defendant’s character for peacefulness

is a pertinent character trait in a case involving alleged violent conduct. People v Zitka, 335 Mich

App 324, 342; 966 NW2d 786 (2020).

Further, MRE 405 governs the methods of proving character. In all cases in which

character evidence is admissible, “proof may be made by testimony as to reputation or by

testimony in the form of an opinion.” MRE 405(a). And only on cross-examination of a character

witness, or when character is an essential element of the charge or defense, may proof of specific

instances of the defendant’s conduct be introduced. MRE 405(a); MRE 405(b). Still, another

requirement to introduce character evidence—as with all evidence—is that the evidence must be

relevant. See MRE 402 (“Evidence which is not relevant is not admissible.”). Relevant evidence

is “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. Thus, before determining whether the proposed evidence constitutes a “pertinent trait

of character” under MRE 404(a)(1), the evidence must be “logically relevant.” See People v

VanderVliet, 444 Mich 52, 61-62; 508 NW2d 114 (1993) (stating that MRE 404 “presumes a

showing of logical relevance” under MRE 401 and 402).

Durden attempted to offer the testimony of three women whom he had met online to show

that he had consensual sexual relations with them without using force or coercion. Durden

contends that their testimony would have refuted AW’s and KM’s testimony that he forced them

to engage in sexual activity. According to Durden’s offer of proof, however, the three witnesses

all engaged in consensual sex with him.4 Conversely, AW and KM both testified that they refused

to consent to sexual activity with Durden. Although the testimony of the proposed witnesses was

probative of Durden’s character to engage in sexual relations with other consenting women, it was

not probative of how Durden would react when consent for sex was refused. The type of character

evidence that would have been relevant here would have been testimony from other women who

met Durden online and refused to have sex with him. The fact that Durden did not become forceful

or violent with other women who consented to sexual activity with him did not have any tendency

to make it more or less probable whether he would act the same way when confronted with a

4

The offer of proof stated that Durden’s appellate counsel had spoken with trial counsel, and trial

counsel confirmed that he had subpoenaed these three witnesses. The offer of proof continued:

All three women were present in the courthouse during the trial and were prepared

to testify on Mr. Durden’s behalf. All three women were prepared to testify that

they had met Mr. Durden online, and then subsequently met him in person. All

three women engaged in sexual relations with Mr. Durden and none experienced

violence or coercion by [Mr.] Durden.

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woman who refused to consent to sex. Because the proffered evidence was not probative of

Durden’s character in this latter context, the evidence was not relevant under MRE 401.

Accordingly, the trial court did not abuse its discretion by excluding this evidence.

Durden also argues that the trial court’s exclusion of the proposed testimony violated his

constitutional right to present a defense. We review this question of constitutional law de novo.

People v Unger, 278 Mich App 210, 247; 749 NW2d 272 (2008). “A defendant has a

constitutionally guaranteed right to present a defense, which includes the right to call witnesses.”

Yost, 278 Mich App at 379. However, this right is not absolute and sometimes must yield to the

state’s legitimate interests in implementing rules over the conduct of criminal trials. Unger, 278

Mich App at 250. The rules of evidence “do not abridge an accused’s right to present a defense

so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to

serve.’ ” Id., quoting United States v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413

(1998), in turn quoting Rock v Arkansas, 483 US 44, 56; 107 S Ct 2704; 97 L Ed 2d 37 (1987). In

particular, an accused’s right to present a defense is not infringed by application of MRE 402,

which helps to ensure the integrity of criminal trials by prohibiting the admission of irrelevant

evidence. Unger, 278 Mich App at 250. Thus, “the right to present a defense extends only to

relevant and admissible evidence.” People v Solloway, 316 Mich App 174, 198; 891 NW2d 255

(2016) (quotation marks and citation omitted). Here, as explained above, the proposed evidence

was not relevant to Durden’s character toward women who refused to consent to sex. Accordingly,

the trial court’s exclusion of the evidence did not violate Durden’s right to present a defense.

Further, Durden argues that defense counsel was ineffective for failing to argue the proper

theory of admissibility for his proposed character evidence at trial. Durden raised this issue in a

motion for a new trial, which the trial court denied. “To establish a claim of ineffective assistance

of counsel, a defendant must show that counsel’s performance fell below an objective standard of

reasonableness and that, but for defense counsel’s errors, there was a reasonable probability that

the result of the proceeding would have been different.” People v Brown, 279 Mich App 116, 140;

755 NW2d 664 (2008) (quotation marks and citation omitted). A defendant must overcome the

presumption that counsel’s challenged conduct might be considered sound trial strategy. Id.

At trial, defense counsel argued that the proposed testimony was intended to refute the

prosecution’s evidence that Durden had a modus operandi, or scheme, with respect to his pattern

of behavior involving relationships with women he met online. On appeal, Durden complains that

counsel should have instead argued for admission of the testimony as character evidence. In

particular, Durden contends that trial counsel should have argued that KW’s testimony “squarely

put Mr. Durden’s character and propensity on trial and therefore, at a minimum, opened the door

to opinion testimony about his character.” As already explained, however, the proposed testimony

simply was not admissible due to its lack of relevance, even if offered for a character purpose.

Thus, Durden cannot show that there is a reasonable probability that the trial court would have

decided this issue differently if counsel had emphasized the character purpose of the evidence.

Indeed, Durden argued this purpose in his motion for a new trial, and the trial court still determined,

properly, that the evidence was not admissible. Therefore, Durden’s ineffective-assistance claim

also fails.

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C. PROSECUTORIAL MISCONDUCT

Durden also argues that he was denied a fair trial because the prosecutor made comments

during closing argument that were not supported by the evidence at trial. Durden concedes that

this issue is unpreserved because there was no objection to the prosecutor’s remarks at trial. People

v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Review of an unpreserved claim of

prosecutorial misconduct is limited to whether plain error affecting substantial rights occurred. Id.

“The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial

trial.” Id. Prosecutors may not make a statement of fact that is unsupported by the evidence, but

they may argue the evidence and reasonable inferences arising from the evidence in support of

their theory of the case. People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).

Durden argues that the following emphasized portion of the prosecutor’s rebuttal argument

was not supported by the evidence:

Now, in this case, you heard from Nurse Ferris tell you what [AW] told

her . . . . “He laid me on the bed, started touching, kissed me. I told him to stop.

He did for a minute and then he started again. I tried to delay, he grabbed my arms,

pinned them over my head. I said stop, he did for a second. He asked why I came

over if we were not having sex. I said I came to just chill. I didn’t want to have

sex. The next thing I remember, he started choking me. I was screaming and tried

to get away. My body went limp. He told me to stop yelling. I said let me up, I

can’t breathe. He let up. I was trying to leave, but he wouldn’t let me. He told me

to turn over, pulled my pants the rest of the way down and anally raped me. I was

supposed to be at work, and I told him I had to leave. He said that work wasn’t that

far. He was almost done. He took a photo of my license. I got dressed and left.”

[Emphasis added.]

Durden contends that AW never testified that she told Durden that she needed to go to

work and that Durden responded by telling her that her work was not far away and he was almost

done. However, it is clear from the prosecutor’s argument that the prosecutor was quoting AW’s

statement to Ferris, which Ferris repeated during her trial testimony. In that statement, AW

reported: “I was supposed to be at work. I told him I had to leave. He said that work wasn’t that

far, and he was almost done.” The prosecutor’s remarks were supported by AW’s statements to

Ferris, which were a matter of evidence. Accordingly, the remarks were not improper.

Durden also argues that defense counsel was ineffective for failing to object to the

prosecutor’s remarks. Counsel need not make a futile objection. Unger, 278 Mich App at 256.

Because any objection to the remarks would have been futile, defense counsel was not ineffective

for failing to object.

III. STANDARD 4 BRIEF

In his Standard 4 brief, Durden raises various evidentiary and constitutional challenges to

his convictions. For the reasons explained below, Durden’s arguments lack merit.

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A. RIGHT OF CONFRONTATION

First, Durden again challenges the admission of the photographs from AW’s follow-up

medical examination. He also argues that Ferris should not have been permitted to testify about

the nurse’s notes from that follow-up examination, which revealed that AW reported that she was

experiencing a sore throat, headaches, memory loss, and neck pain and tenderness on that date.

As explained in Section II(A), the trial court did not abuse its discretion by admitting the

photographs from AW’s follow-up examination. Because Durden did not object to Ferris’s

testimony about the notes from the follow-up examination, our review of that claim is limited to

plain error affecting substantial rights. Carines, 460 Mich at 763.

The notes, like the photographs, were part of AW’s certified medical records. Therefore,

they were admissible under MRE 902(11), even without the testimony of the person who prepared

the notes.

Further, the introduction of the notes did not violate Durden’s rights under the

Confrontation Clause. “As a rule, if an out-of-court statement is testimonial in nature, it may not

be introduced against the accused at trial unless the witness who made the statement is unavailable

and the accused has had a prior opportunity to confront that witness.” Bullcoming v New Mexico,

564 US 647, 657; 131 S Ct 2705; 180 L Ed 2d 610 (2011). “To rank as ‘testimonial,’ a statement

must have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to

later criminal prosecution.’ ” Id. at 659 n 6, quoting Davis v Washington, 547 US 813, 822; 126

S Ct 2266; 165 L Ed 2d 224 (2006) (alterations in original).

In Ohio v Clark, 576 US 237, 246; 135 S Ct 2173; 192 L Ed 2d 306 (2015), the United

States Supreme Court applied the “primary purpose” test to statements made to persons other than

law enforcement officers—in that case, statements made by a three-year-old child to his teacher

involving suspected child abuse. The Supreme Court held that the introduction of the child’s

statements at a criminal trial of the child’s abuser did not violate the Confrontation Clause because

the primary purpose of the conversation with the teacher “was to protect a vulnerable child who

needed help,” not “to gather evidence for [the defendant’s] prosecution.” Id. at 247. In reaching

its conclusion, the Supreme Court emphasized the informality of the conversation at issue and the

nature of the teacher-student relationship. Id. at 247-249. “Courts must evaluate challenged

statements in context, and part of that context is the questioner’s identity. Statements made to

someone who is not principally charged with uncovering and prosecuting criminal behavior are

significantly less likely to be testimonial than statements given to law enforcement officers.” Id.

at 249.

This Court has also previously held that statements made to a SANE are nontestimonial

where the primary purpose of the nurse’s questions and examination is to meet an ongoing

emergency. People v Garland, 286 Mich App 1, 11; 777 NW2d 732 (2009). See also People v

Spangler, 285 Mich App 136, 154; 774 NW2d 702 (2009) (“[T]o determine whether a sexual abuse

victim’s statements to a SANE are testimonial, the reviewing court must consider the totality of

the circumstances of the victim’s statements and decide whether the circumstances objectively

indicate that the statements would be available for use in a later prosecution or that the primary

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purpose of the SANE’s questioning was to establish past events potentially relevant to a later

prosecution rather than to meet an ongoing emergency.”).

Ferris testified that AW was referred to HAVEN after visiting the emergency room on the

day of the assault. After this initial examination, AW agreed to come back for a follow-up

examination a few weeks later. The notes at issue merely referenced AW’s physical condition as

reported at the follow-up examination, which helped determine whether AW’s observable and

disclosed symptoms were a natural variance or an actual injury. There was no evidence that the

police attended the follow-up investigation, or that the examining nurse was personally involved

in the investigation of Durden. In fact, defense counsel specifically asked Ferris whether her role

as a SANE was to investigate crime, and Ferris responded, “My job is to take care of the patient”

and later stated, “I am not investigating a crime at all.” As Ferris explained, SANEs are specially

trained as nurses to treat victims of sexual assault. On this record, the totality of the circumstances

shows that AW’s statements during her follow-up examination were reasonably necessary for

medical diagnosis and treatment. Because the objective circumstances do not show that the

primary purpose of the SANE’s questioning was to establish past events relevant to a later

prosecution, the notes qualify as nontestimonial and do not implicate the Confrontation Clause.

Garland, 286 Mich App at 11. Accordingly, Durden has established no plain error in the admission

of Ferris’s testimony about the follow-up examination.

B. JURY INSTRUCTIONS

Next, Durden argues that the trial court erred by failing to instruct the jury on the defense

of consent, and by failing to instruct the jury on the lesser offense of third-degree criminal sexual

conduct (CSC-III), MCL 750.520d. We generally review claims of instructional error de novo to

the extent that they involve questions of law. People v Gillis, 474 Mich 105, 113; 712 NW2d 419

(2006). “But a trial court’s determination whether a jury instruction is applicable to the facts of

the case is reviewed for an abuse of discretion.” Id. (quotation marks and citation omitted).

Here, however, Durden did not request either a consent instruction or lesser-offense

instruction at trial. Moreover, before closing arguments, the trial court discussed its proposed jury

instructions with the parties. The prosecutor objected to the court’s inclusion of the consent

instruction for CSC, M Crim JI 20.27, because no evidence of consent had been presented. The

trial court agreed, and defense counsel failed to object. Then, after the trial court instructed the

jury, it asked the attorneys if there were “any changes or corrections to the instructions as read”

and defense counsel replied, “No, your Honor.” Because defense counsel affirmatively approved

of the instructions as given, any claim of instructional error is waived. See People v Kowalski,

489 Mich 488, 504; 803 NW2d 200 (2011) (“[B]y expressly . . . approving the jury instructions on

the record, defendant waived any objection to the erroneous instructions, and there is no error to

review.”).

Durden also argues that trial counsel was ineffective for not requesting a jury instruction

on consent. Because Durden did not raise this ineffective-assistance claim in an appropriate

motion in the trial court, our review of this issue is limited to mistakes apparent on the record.

People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014). Again, “[t]o establish a claim

of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below

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an objective standard of reasonableness and that, but for defense counsel’s errors, there was a

reasonable probability that the result of the proceeding would have been different.” Brown, 279

Mich App at 140 (quotation marks and citation omitted). A defendant must overcome the

presumption that counsel’s challenged conduct might be considered sound trial strategy. Id.

“Jury instructions must include all the elements of the charged offense, and must not

exclude material issues, defenses, or theories if the evidence supports them.” People v Kosik, 303

Mich App 146, 155; 841 NW2d 906 (2013). “A defendant asserting an affirmative defense must

produce some evidence on all elements of the defense before the trial court is required to instruct

the jury regarding the affirmative defense.” People v Crawford, 232 Mich App 608, 620; 591

NW2d 669 (1998). Consent is an affirmative defense and “lack of consent is not an element of

the crime to be proven by the prosecution.” People v Waltonen, 272 Mich App 678, 689 n 4; 728

NW2d 881 (2006). “In the context of the CSC statutes, consent can be utilized as a defense to

negate the elements of force or coercion.” Id. at 689. The consent instruction for CSC, M Crim

JI 20.27, informs the jury that “[a] person consents to a sexual act by agreeing to it freely and

willingly, without being forced or coerced.” As an affirmative defense, Durden needed to present

some evidence on all elements of the consent defense before the trial court had to instruct the jury

on it. See People v Guajardo, 300 Mich App 26, 34-35; 832 NW2d 409 (2013).

There was no direct evidence presented that AW consented to any sexual activity with

Durden. AW denied consenting, and Durden presented no evidence that he and AW engaged in

sexual activity, let alone that any such activity was consensual. The two defense witnesses who

were called at trial merely testified that they were present in Durden’s apartment on the date of the

offense and did not hear anyone scream or call for help. The record thus did not clearly support

giving a consent instruction because there was little, if any, evidence that AW engaged “freely and

willingly” in sexual acts with Durden. M Crim JI 20.27. Any objection that defense counsel made

would have been futile because the trial court was not required to instruct on the consent defense.5

Accordingly, defense counsel was not ineffective for failing to make a futile objection. Unger,

278 Mich App at 256.

Even if the consent instruction should have been requested by trial counsel, Durden cannot

show that any failure to do so prejudiced him. In People v Matuszak, 263 Mich App 42, 59; 687

NW2d 342 (2004), this Court discussed, in the context of reviewing an ineffective-assistance-of-

counsel claim, defense counsel’s failure to request a consent instruction in a case in which the

defendant was charged with CSC-I for engaging in sexual penetration accomplished by force or

coercion and causing personal injury. This Court held that the defendant’s argument did not

require reversal because, by instructing the jury that it could not find the defendant guilty beyond

a reasonable doubt unless it found that the sexual penetration had occurred through force or

coercion, the court “implicitly required the jury to find that the complainant did not consent to

5

At the very least, the trial court’s decision to remove the consent instruction based on the lack of

evidence presented was not an abuse of discretion because it was within the bounds of reasonable

outcomes. See Gillis, 474 Mich at 113.

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sexual intercourse before it could find defendant guilty.” Id., quoting People v Johnson, 128 Mich

App 618, 623; 341 NW2d 160 (1983).

Here, the trial court instructed the jury that, for the charge of CSC-I involving the use of

force or coercion to accomplish sexual penetration, MCL 750.520b(1)(f), the jury had to find the

element of force or coercion beyond a reasonable doubt. Defense counsel also raised the issue of

consent during closing argument and, even without the instruction on consent, the jury would have

considered consent in evaluating whether the prosecution proved the necessary element of force

or coercion. Further, AW’s testimony that she did not consent to the sexual activity was heavily

corroborated, both by testimony from her boss, her coworker, and Ferris, and through the medical

evidence. Consequently, there is not a reasonable probability that, but for the absence of a consent

instruction, the jury would have acquitted Durden of CSC-I.

C. DOUBLE JEOPARDY

Durden also argues that the prosecutor’s “statements to the jury misled them into the

violating the double jeopardy clause” because it was improper to state that Durden could be

convicted of CSC-I using the assault by strangulation charge as the underlying felony. We

construe Durden’s argument as raising a claim of prosecutorial misconduct predicated on a double

jeopardy violation. “A double jeopardy challenge presents a question of constitutional law that

this Court reviews de novo.” People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).

Const. 1963, art. 1, § 15 states that “[n]o person shall be subject for the same offense to be

twice put in jeopardy.” The federal Constitution similarly provides that “[n]o person shall . . . be

subject for the same offence to be twice put in jeopardy of life or limb.” US Const, Am V. Our

Supreme Court has stated that “the Michigan and federal double jeopardy clauses should be

construed in a parallel fashion.” People v Smith, 478 Mich 292, 302 n 7; 733 NW2d 351 (2007).

“The prohibition against double jeopardy provides three related protections: (1) it protects against

a second prosecution for the same offense after acquittal; (2) it protects against a second

prosecution for the same offense after conviction; and (3) it protects against multiple punishments

for the same offense.” Nutt, 469 Mich at 574.

In People v Ream, 481 Mich 223, 225; 750 NW2d 536 (2008), the Supreme Court

addressed whether it violates double jeopardy for a defendant to be convicted and sentenced for

both felony murder and the underlying felony. The Court held that “convicting and sentencing a

defendant for both first-degree felony murder and the predicate felony does not violate the

‘multiple punishments’ strand of the Double Jeopardy Clause if each offense has an element that

the other does not.” Id. at 240. The Court observed that “[f]irst-degree felony murder contains an

element not included in first-degree criminal sexual conduct, namely, the killing of a human being”

and “first-degree criminal sexual conduct contains an element not necessarily included in first-

degree felony murder, namely, a sexual penetration.” Id. In its analysis, the Court in Ream also

expressed its agreement with the conclusion in People v Robideau, 419 Mich 458; 355 NW2d 592

(1984), overruled on other grounds in People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007),

“that convicting and sentencing a defendant for both first-degree criminal sexual conduct [under

MCL 750.520b(1)(c)] and the predicate ‘other’ felony does not violate the ‘multiple punishments’

strand of the Double Jeopardy Clause.” Ream, 481 Mich at 232.

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In this case, Durden was charged with CSC-I under multiple theories. He was charged

with CSC-I under the alternative theories that (1) he engaged in sexual penetration accomplished

by force or coercion and caused personal injury, MCL 750.520(b)(1)(f), and (2) he engaged in

sexual penetration “under circumstances involving the commission of any other felony,” namely,

assault by strangulation, MCL 750.520b(1)(c).6 At issue here is whether convictions of CSC-I

predicated on sexual penetration during the commission of any other felony, MCL 750.520b(1)(c),

and the “other felony” violate the “multiple punishments” strand of double jeopardy. Therefore,

the operative question for purposes of Durden’s double jeopardy argument is whether the offenses

of assault by strangulation and CSC-I each contain an element that the other does not.

In People v Lydic, 335 Mich App 486, 498 n 9; 967 NW2d 847 (2021), this Court explained

the elements of assault by strangulation:

MCL 750.84(1)(b) criminalizes “[a]ssault[ing] another person by

strangulation or suffocation.” An “assault is either an attempt to commit a battery

or an unlawful act that places another in reasonable apprehension of receiving an

immediate battery.” People v Terry, 217 Mich App 660, 662; 553 NW2d 23 (1996).

And a “battery is the consummation of an assault.” Id. Additionally, MCL

750.84(2) defines “strangulation or suffocation” as “intentionally impeding normal

breathing or circulation of the blood by applying pressure on the throat or neck or

by blocking the nose or mouth of another person.”

The elements of the CSC-I charge at issue are that (1) the defendant engaged in sexual penetration

with another person, (2) under circumstances involving the commission of any other felony. MCL

750.520b(1)(c).

Thus, assault by strangulation contains an element not included in CSC-I—strangulation

of another person—and CSC-I contains an element not included in assault by strangulation—a

sexual penetration. Although Durden’s commission of an assault by strangulation was used as the

aggravating factor to support the CSC-I charge, CSC-I does not necessarily require proof of an

assault by strangulation. Put differently, it is possible to commit CSC-I without first committing

an assault by strangulation. Because CSC-I and assault by strangulation each contain an element

that the other does not, the offenses are not the “same offense” under the multiple punishment

strand of double jeopardy. See Ream, 481 Mich at 242. Therefore, Durden may be punished

separately for each offense. Accordingly, there is no merit to Durden’s claim that the prosecutor

violated his double-jeopardy protections.

D. HEARSAY

Durden next argues that the trial court erred by allowing inadmissible hearsay testimony

from AW’s coworker and Ferris on their conversations with AW. Because Durden did not object

6

The jury did not specify whether it found Durden guilty under one or both theories.

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to the challenged testimony at trial, these claims are unpreserved and reviewed for plain error

affecting Durden’s substantial rights. Carines, 460 Mich at 763.

First, Durden argues that testimony from AW’s coworker about statements made by AW

disclosing the sexual assault was inadmissible hearsay. Hearsay is “a statement, other than the one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” MRE 801(c). Hearsay is generally inadmissible unless it falls within an

established exception to the hearsay rule. MRE 802. MRE 803(2) provides an exception to the

rule for excited utterances. An excited utterance is “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or

condition.” MRE 803(2). Thus, there are two requirements for admitting a statement as an excited

utterance: “1) that there be startling event, and 2) that the resulting statement be made while under

the excitement caused by the event.” People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998).

Although the passage of time is a relevant consideration, “there is no express time limit for excited

utterances.” Id. at 551.

In this case, AW spoke to her coworker shortly after leaving Durden’s apartment. AW

explained that after leaving Durden’s apartment, she went directly to work, which was nearby, and

was met by her coworker. The coworker testified that AW was shaking and crying when she

arrived at work. The coworker took AW to the police station. AW did not at first tell the coworker

what happened, but after ten minutes when they were at the station, AW, who was still visibly

upset and crying, told her what happened. According to the coworker, AW “explained that she

was raped, and, you know, very torn by the situation.” While at the hospital, AW was still visibly

upset and provided more detail, telling the coworker that she was anally raped by someone she

met online.

The record reveals that the requirements for an excited utterance were satisfied. AW’s

statements related to a sexual assault, which qualifies as a startling event. See Smith, 456 Mich at

552 (“There can be no question that the sexual assault in this case was a startling event.”). AW

was also still under the stress or excitement caused by the event when she made the statements to

her coworker. AW proceeded directly to work after the assault, and she was shaking, crying, and

visibly upset, which were indications that she was still under the stress of excitement caused by

the sexual assault when she spoke to her coworker. Accordingly, AW’s statements to her coworker

were properly admitted under MRE 803(2) as excited utterances.

Durden also argues that AW’s statements to Ferris did not qualify as excited utterances

because they were made five hours after the startling event. But the record does not reflect that

AW’s statements to Ferris were offered as excited utterances. Rather, they qualified for admission

under MRE 803(4), which provides:

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

* * *

(4) Statements Made for Purposes of Medical Treatment or Medical

Diagnosis in Connection with Treatment. Statements made for purposes of medical

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treatment or medical diagnosis in connection with treatment and describing medical

history, or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as reasonably necessary to

such diagnosis and treatment.

“The rationale supporting the admission of statements under this exception is the existence of (1)

the reasonable necessity of the statement to the diagnosis and treatment of the patient, and (2) the

declarant’s self-interested motivation to speak the truth to treating physicians in order to receive

proper medical care.” Garland, 286 Mich App at 8-9.

It is undisputed that AW’s statements to Ferris were made during Ferris’s medical

examination of AW, which occurred the same day as the sexual assault. AW’s statements to Ferris

were also reasonably necessary for AW’s diagnosis and treatment. In sexual assault examinations,

having the “victim’s complete history and a recitation of the totality of the circumstances of the

assault are properly considered to be statements made for medical treatment.” People v Mahone,

294 Mich App 208, 215; 816 NW2d 436 (2011). As Ferris testified, she asked AW why she came

in for the forensic medical examination and about her medical history because these questions

“guide[]” the examination of the patient. AW’s responses, introduced through Ferris’s testimony,

undoubtedly qualified as statements made for the purpose of medical treatment or diagnosis under

MRE 803(4). Accordingly, these statements were properly admitted.

E. INEFFECTIVE ASSISTANCE OF COUNSEL

Durden next argues that his counsel committed several errors that amount to ineffective

assistance of counsel.

Again, our review of these issues is limited to mistakes apparent on the record. 7 Lopez,

305 Mich App at 693. “To establish a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and that, but

for defense counsel’s errors, there was a reasonable probability that the result of the proceeding

would have been different.” Brown, 279 Mich App at 140 (quotation marks and citation omitted).

A defendant must overcome the presumption that counsel’s challenged conduct might be

considered sound trial strategy. Id.

Durden first argues that counsel was ineffective for failing to present evidence of a text

message that AW allegedly sent to Durden’s girlfriend in which AW admitted that the allegations

against Durden were false. This issue was discussed at sentencing. The prosecutor advised that

the matter was investigated by an expert in the computer crimes division, who determined that the

purported text message was fraudulent. The expert examined AW’s telephone and was willing to

testify that there were no messages on AW’s phone that were sent to the girlfriend’s phone; the

records for AW’s account similarly showed that no messages were sent to Durden’s girlfriend.

7

Durden raised some of these ineffective-assistance arguments in a pro se motion for a new trial,

but the trial court declined to consider the motion because it was not properly filed. Durden never

refiled or renewed the motion.

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Further, when the prosecutor asked to examine Durden’s girlfriend’s telephone, she said that she

no longer had that phone. Defense counsel explained at sentencing that he was also aware of the

message at the time of trial:

We discussed the text message. That’s the reason we didn’t call that particular

witness and address that issue during the trial because we couldn’t verify that it was

a viable text message or couldn’t verify its origin.

To the extent that Durden argues that defense counsel was ineffective for not calling his

girlfriend to testify about the text message that she claimed to have received from AW, the

available record shows that this issue was investigated by the prosecutor and defense counsel, and

that the text message was believed to be fraudulent. Under these circumstances, it was not

objectively unreasonable for defense counsel not to pursue or attempt to admit this evidence.

Presenting evidence of this text message might have harmed Durden’s case by allowing the jury

to find that Durden knew about or encouraged the fabrication of evidence, thereby supporting an

inference of consciousness of guilt.8 Therefore, Durden has not shown that trial counsel was

ineffective for declining to introduce this evidence at trial.

Next, Durden argues that defense counsel was ineffective for not calling or consulting an

expert witness to review AW’s claim of strangulation to determine whether it was consistent with

the medical evidence. Although Durden emphasizes that AW showed no visible signs of having

been strangled, such as marks around her neck, when she was examined, an expert was unnecessary

to establish this point. Ferris admitted that there were no visible signs of injury on AW’s neck at

the time of AW’s examination. Ferris explained that the pressure necessary to affect a person’s

breathing can be less than what is necessary to cause visible injuries. Ferris also testified that she

relied on other evidence to conclude that AW had symptoms consistent with being strangled, such

as her description of being unable to breathe, dizziness, headaches, memory loss, and the petechiae

observed in AW’s eyes.

Durden asserts that defense counsel should have consulted an expert to determine whether

AW’s claim of strangulation was consistent with the medical evidence, but Durden has not

provided an offer of proof, such as an affidavit from a proposed expert, showing what testimony

an expert could have provided if called. Without an appropriate offer of proof, Durden has not

met his burden of establishing the factual predicate for his claim that counsel was ineffective for

not calling a defense expert or investigating whether an expert’s testimony might have assisted the

defense. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (noting that the “defendant has

the burden of establishing the factual predicate for his claim of ineffective assistance of counsel”).

Durden also argues that defense counsel was ineffective for not impeaching AW’s

testimony that she had bruising on her neck. Durden contends that this testimony conflicted with

the medical records, which revealed that AW had no visible injuries to her neck at the time of her

8

At sentencing, the prosecutor also shared that a letter was sent and addressed to AW’s mother

from a nonexistent law firm claiming that AW had perjured herself. The prosecutor believed that

the letter was illegitimate and shared the letter with the trial court.

-16-

examination. Although defense counsel did not directly question AW about this alleged

inconsistency, he emphasized throughout trial that the medical records did not show that there was

any injury to AW’s neck. During closing argument, defense counsel relied on the medical records

to argue that AW had normal range of motion in her neck and that her neck was supple at the time

of her examination, which contradicted AW’s disclosed injuries. Counsel urged the jury to look

at the photographs of AW, which he argued showed that she had no injuries, such as scratches,

abrasions, contusions, or bruising to her neck. He argued that the medical records showed that

there were no neck injuries to support that AW was strangled. While defense counsel could have

questioned AW directly about the alleged inconsistency between her testimony about bruising and

what was depicted in photographs and medical records, counsel reasonably may have concluded

that such questioning would have allowed AW to explain that the bruising did not appear until

after she was examined by Ferris, and had healed by the time of the follow-up examination. Under

the circumstances, Durden has not overcome the presumption that counsel’s decision to instead

use the medical records and photographs to argue that AW’s testimony was not credible was a

reasonable trial strategy.

Durden also complains that defense counsel induced him not to testify by telling him that

testifying did not work out for his last three clients. But the record shows that Durden voluntarily

waived his right to testify at trial. Defense counsel asked Durden a series of questions on the

record, and Durden confirmed that he would not testify, that this was his own decision, and that

no one had coerced or forced him to make that decision. Accordingly, the record does not support

this ineffective-assistance claim.

Lastly, Durden contends that he disagreed with defense counsel about whether to request

a bench trial. Nothing in the record suggests that Durden expressed a preference for a bench trial.

In any event, whether to request a bench trial is a matter of strategy that an appellate court will not

second-guess. See People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).

The fact that a strategy did not succeed does not mandate a conclusion that counsel was ineffective.

People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). Nor is there any

basis for concluding that the outcome of Durden’s trial would have been different if he had been

tried before a judge instead of a jury. Accordingly, Durden’s claims of ineffective assistance of

counsel lack merit.

F. PERJURY

Finally, Durden argues that the prosecutor knowingly used perjured testimony from AW

because she testified that she had bruises on her neck from being strangled by Durden, but Ferris

testified that AW did not have any visible injuries to her neck during the medical examination.

This issue was not properly preserved before the trial court, and therefore we review it for plain

error affecting Durden’s substantial rights. Carines, 460 Mich at 763.

A prosecutor may not knowingly use false testimony to obtain a conviction. People v

Smith, 498 Mich 466, 475-476; 870 NW2d 299 (2015). “[A] conviction obtained through the

knowing use of perjured testimony offends a defendant’s due process protections guaranteed under

the Fourteenth Amendment.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009).

To this end, a prosecutor has a duty to correct false evidence when it is presented, including

-17-

evidence related to a witness’s credibility. People v Lester, 232 Mich App 262, 276-277; 591

NW2d 267 (1998), overruled on other grounds in People v Chenault, 495 Mich 142, 152; 845

NW2d 731 (2014). That said, merely because testimony conflicts with another witness’s testimony

does not compel the conclusion that the prosecutor knowingly used perjured testimony. See

People v Bass, 317 Mich App 241, 275; 893 NW2d 140 (2016) (“Although an inconsistent prior

statement may be a mechanism to impeach a witness’s credibility at trial, it is not definitive

evidence that the trial testimony is false.”).

Ferris’s testimony that there were no visible injuries to AW’s neck at the time of the initial

medical examination does not establish that AW’s testimony about bruises on her neck was false,

because AW’s testimony was not restricted to the date of this examination. AW also did not

specify when the bruising on her neck first developed. In any event, this alleged inconsistency

was presented to the jury, thereby enabling it to assess AW’s credibility. Accordingly, because

Durden has not established that the prosecutor knowingly introduced, or failed to correct, perjured

testimony, there was no due-process violation.

Affirmed.

/s/ Douglas B. Shapiro

/s/ Michelle M. Rick

/s/ Kristina Robinson Garrett

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