People of Michigan v. Derrius Lamar Thurmond

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, FOR PUBLICATION

October 26, 2023

Plaintiff-Appellee, 9:10 a.m.

v No. 361302

Washtenaw Circuit Court

DERRIUS LAMAR THURMOND, LC No. 18-000695-FH

Defendant-Appellant.

Before: K. F. KELLY, P.J., and JANSEN and CAMERON, JJ.

CAMERON, J.

Defendant appeals his jury trial convictions of inducing another person to become a

prostitute (i.e., “pandering”), MCL 750.455(b), third-degree criminal sexual conduct (CSC-III),

MCL 750.520d(1)(b), and human trafficking, MCL 750.462b. The trial court sentenced defendant

to concurrent prison terms of 72 months to 20 years for the pandering conviction, 57 months to 15

years for the CSC-III conviction, and 19 months to 10 years for the human-trafficking conviction.

We affirm defendant’s convictions of CSC-III and human trafficking, but vacate his conviction

and sentence for pandering.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The charged offenses involve a single victim, EC. The prosecution argued that defendant

recruited EC to engage in prostitution after they began dating in February or March 2018. Police

became involved on July 20, 2018, when they stopped a witness, TK, as he was leaving a Motel 6

in Washtenaw County. TK told the police that he had arranged to meet a prostitute at the motel.

He went to the room and gave a woman $200, but left almost immediately. Acting on this

information, the police went to the motel room and found EC and another woman, ML, in the

room. Officers saw a pair of men’s shoes in the room, which prompted them to check the bathroom

where they found defendant hiding in the bathtub. The police arrested defendant and took the two

women into custody. Neither woman was charged.

At trial, EC explained that she was at a low point in her life when she met defendant and

that she had a small child to care for. She explained that defendant had encouraged her to engage

in prostitution by promising that he would help her buy a house and a car. EC admitted that she

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had prostituted herself in Jackson County a few months before the charged activity in Washtenaw

County, and she had engaged in prostitution on other occasions at defendant’s request. The day

EC met with TK, defendant sent a taxicab to pick her up under the ruse of celebrating her birthday

at the Motel 6. When she arrived, EC discovered that defendant had made arrangements for her

to have sex with TK in exchange for money. EC also testified that defendant had physically and

sexually assaulted her on two separate occasions prior to the charged offense in this case. Finally,

the prosecution presented testimony from other witnesses who similarly described defendant’s

recruitment and mistreatment of other women. Defendant was convicted and sentenced as noted.

II. PANDERING

Defendant argues that the trial court erred by denying his motions for a directed verdict

and judgment notwithstanding the verdict (“JNOV”) on the charge of pandering. We agree.

A. STANDARD OF REVIEW

“In determining whether sufficient evidence exists to sustain a conviction, this Court

reviews the evidence in the light most favorable to the prosecution, and considers whether there

was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.”

People v Harris, 495 Mich 120, 126; 845 NW2d 477 (2014). This Court must “draw all reasonable

inferences and make credibility choices in support of the jury verdict. The scope of review is the

same whether the evidence is direct or circumstantial. Circumstantial evidence and reasonable

inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.”

People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (quotation marks and citation

omitted). “It is for the trier of fact, not the appellate court, to determine what inferences may be

fairly drawn from the evidence and to determine the weight to be accorded those inferences.”

People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). These same standards apply to a

motion for a directed verdict or a JNOV. People v Duenaz, 148 Mich App 60, 65-66; 384 NW2d

79 (1985).

Any questions of law, including questions of statutory interpretation, are reviewed de novo.

People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).

In doing so, our purpose is to discern and give effect to the Legislature’s

intent. We begin by examining the plain language of the statute; where that

language is unambiguous, we presume that the Legislature intended the meaning

clearly expressed—no further judicial construction is required or permitted, and the

statute must be enforced as written. We must give the words of a statute their plain

and ordinary meaning, and only where the statutory language is ambiguous may we

look outside the statute to ascertain the Legislature’s intent. [Id. at 329-330

(citations omitted).]

B. LAW AND ANALYSIS

Defendant was charged with violating MCL 750.455(b) by inducing EC to become a

prostitute between June 2018 and July 20, 2018, in Washtenaw County. MCL 750.455(b) provides

that it is unlawful to “[i]nduce[], persuade[], encourage[], inveigle[], or entice[] a person to become

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a prostitute.” (Emphasis added.) The narrow issue in this case is whether defendant could be

convicted of inducing or enticing EC to “become a prostitute” under this statute.

In Morey, 461 Mich at 328-329, our Supreme Court addressed MCL 750.455(b)1 to

determine whether the defendant should have been charged with enticing or inducing a woman to

become a prostitute where the woman had previously engaged in acts of prostitution. The Court

stated:

The clear dispute in this case is with respect to the phrase “to become a

prostitute.” The prosecutor contends that any time a defendant induces a female to

perform an act of prostitution—whether it be her first act of prostitution or a

subsequent act—the defendant has induced her “to become a prostitute”;

accordingly, a defendant could be charged under this section of the statute an

unlimited number of times with respect to the same female. Defendant, on the other

hand, makes a reasonable argument that once a female has performed an act of

prostitution she is a prostitute and can no longer be enticed to become what she

already is; she can only be enticed to continue being a prostitute. Thus, the narrow

question is whether the word “prostitute” signifies a status, that is, does it describe

a person with respect to her chosen livelihood, or does “prostitute” merely signify

a choice to engage in an activity, that is, one is a prostitute while engaging in an act

of prostitution, but ceases to be a prostitute when the act ceases. [Morey, 461 Mich

at 329; footnote omitted.]

The Court held that the statute did not apply to a person who had already worked as a

prostitute. Morey, 461 Mich at 329-334. It recognized that the term “prostitution” has been used

to refer to a profession or a means to earning a livelihood, and concluded that one typically could

not be enticed “to become a prostitute” more than once. Id. at 334-335.

Given this holding, we conclude that the evidence did not support defendant’s conviction

of inducing, persuading, or enticing EC to “become a prostitute” under MCL 750.455(b). At trial,

EC unequivocally testified that she first performed acts of prostitution for defendant in Jackson

County, months before the charged offense. EC continued to engage in prostitution on other

occasions leading up to the charged offense. EC stated that this did not occur every day, but it was

an ongoing activity. Indeed, EC also described the procedure that defendant would regularly

follow when she would engage in prostitution. Defendant arranged for the acts of prostitution and

would tell EC what was going to happen and when, and he would hide in the bathroom during the

encounters. He would then require that she turn over the money to him.

In Morey, the Court explained that a defendant could be convicted under MCL 750.455(b)

with respect to a person who previously performed acts of prostitution in the past if the person had

effectively abandoned prostitution, only to be led astray again by the defendant. Morey, 461 Mich

at 337-338. But in this case, there was no interruption to EC’s prostitution activity, or any

indication that EC had “abandoned prostitution” before the charged events in this case. Id. On

1

Although MCL 750.455 has been amended since the Supreme Court decided Morey, see 2014

PA 331, effective October 16, 2014, the language in Subsection (b) has not changed.

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the contrary, EC testified that she continued to engage in acts of prostitution at defendant’s request,

and there was no cessation in this activity before the charged events in Washtenaw County.

The prosecutor attempts to salvage defendant’s pandering conviction by noting it could

have used defendant’s prior conduct in Washtenaw County under MCL 762.8, which provides that

“[w]henever a felony consists or is the culmination of 2 or more acts done in the perpetration of

that felony, the felony may be prosecuted in any county where any of those acts were committed

or in any county that the defendant intended the felony or acts done in perpetration of the felony

to have an effect.” But here, defendant was not charged with violating MCL 750.455(b) on the

basis of his conduct in Jackson County. And even if he had been charged there, the offense of

pandering was complete once defendant persuaded EC to become a prostitute in Jackson County.

Thus, the prosecutor’s reliance on MCL 762.8 to buttress defendant’s pandering conviction is

misplaced because that statute contemplates “the culmination of 2 or more acts done in the

perpetration of that felony[,]” which did not happen here. We therefore vacate defendant’s

conviction and sentence for pandering.

We are nevertheless compelled to address our prior opinion, People v Slipson, 154 Mich

App 134; 397 NW2d 250 (1986), which is no longer binding precedent in Michigan.2 In Slipson,

the defendant was charged with inducing, persuading, or encouraging a female person to become

a prostitute under MCL 750.455. Slipson, 154 Mich App at 136. The charges were dismissed at

the preliminary exam because the circuit court judge concluded that the woman had been convicted

of prostitution six months earlier, and therefore the defendant could not have enticed her “to

become” a prostitute. Id. at 137. On appeal to this Court, we affirmed the dismissal. Id. at 139.

In doing so, we concluded that “[w]hile at some future point in time a person convicted of

prostitution in the past may no longer be considered a prostitute so as to be able to be induced ‘to

become’ a prostitute again for purposes of the pandering statute, five or six months is not long

enough.” Id. at 139. We disagree with the suggestion that, under the statute, abandonment of

prostitution requires a certain time period. Unless there is undisputed evidence like we have here,

factual questions of whether a defendant has enticed a person back into prostitution after the

activity had been abandoned is a question of fact left to the jury. There is no legal basis for

arbitrarily setting the period of abandonment at more than “five or six months.” We overrule

Slipson to the extent it imposes a temporal requirement on abandonment of prostitution.

III. OTHER-ACTS EVIDENCE

Next, defendant argues that the trial court erred by admitting other-acts testimony pursuant

to MRE 404(b)(1). We disagree.

A. STANDARD OF REVIEW

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

People v Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003). A court abuses its

2

“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),

they nevertheless can be considered persuasive authority.” People v Craig, 342 Mich App 217,

226 n 3; 994 NW2d 792 (2022) (quotation marks and citation omitted).

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discretion occurs when it chooses an outcome outside the range of reasonable and principled

outcomes. People v Galloway, 335 Mich App 629, 637; 967 NW2d 908 (2020). Any preliminary

questions of law are reviewed de novo. Washington, 468 Mich at 670-671.

B. LAW AND ANALYSIS

1. FOUNDATIONAL LAW

Other-acts evidence is governed by MRE 404(b). “The general rule under MRE 404(b) is

that evidence of other crimes, wrongs, or acts is inadmissible to prove a propensity to commit such

acts.” People v Denson, 500 Mich 385, 397; 902 NW2d 306 (2017). “Underlying the rule is the

fear that a jury will convict the defendant inferentially on the basis of his bad character rather than

because he is guilty beyond a reasonable doubt of the crime charged.” People v Crawford, 458

Mich 376, 384; 582 NW2d 785 (1998). Other-acts evidence may, however, be admissible for

another purpose. MRE 404(b)(1) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or

absence of mistake or accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the

conduct at issue in the case.

In People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), this Court articulated

the factors courts must consider when deciding whether to admit other-acts evidence under this

rule:

First, that the evidence be offered for a proper purpose under Rule 404(b); second,

that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the

probative value of the evidence is not substantially outweighed by unfair prejudice;

fourth, that the trial court may, upon request, provide a limiting instruction to the

jury.

2. WITNESS TESTIMONY

Defendant first challenges the trial court’s admission of testimony from two witnesses

regarding their experiences with defendant. This evidence was admitted under MRE 404(b)(1) to

show defendant’s plan or scheme to operate out of various area motels and target young, vulnerable

women to engage them in prostitution.3 At trial, one witness testified that defendant invited her

and her friend to a motel and then accused them of stealing his money. Defendant demanded that

they remain at the motel and engage in prostitution to pay him back. When they refused to

cooperate, defendant assaulted them. Another witness testified that she was lured to a motel under

the guise of interviewing for a job there. Defendant sent a taxicab to pick the woman up. When

3

The trial court held that the evidence was independently admissible under MCL 768.27b.

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she arrived, she met a man with a name associated with defendant. The woman had a drink, which

she set down to use the bathroom. After leaving the bathroom, she took a sip from her drink and

lost consciousness. When she awoke, the man was gone and the woman noticed that her pants

were unbuttoned. According to defendant, there is not a sufficient similarity between these events

and the charged conduct.

“[E]vidence of similar misconduct is logically relevant to show that the charged act

occurred where the uncharged misconduct and the charged offense are sufficiently similar to

support an inference that they are manifestations of a common plan, scheme, or system.” People

v Sabin, 463 Mich 43, 63; 614 NW2d 888 (2000). “There must be such a concurrence of common

features that the charged acts and the other acts are logically seen as part of a general plan, scheme,

or design.” People v Steele, 283 Mich App 472, 479; 769 NW2d 256 (2009). “A high degree of

similarity is required—more than is needed to prove intent, but less than is required to prove

identity—but the plan itself need not be unusual or distinctive.” People v Smith, 282 Mich App

191, 196; 772 NW2d 428 (2009).

The other-acts witnesses testified that defendant targeted young, vulnerable women to

engage them in prostitution or otherwise sexually exploit them was relevant to the charged conduct

in this case. That evidence, coupled with EC’s testimony that defendant had encouraged her to

prostitute herself, demonstrated that defendant employed a general scheme or pattern to target and

abuse young, vulnerable women. EC testified that she initially agreed to prostitute herself because

defendant had promised to help her buy a house or car, and she explained that she continued this

activity because she feared defendant, who would assault her and threaten her and her family if

she refused. He operated out of a few motels in both Washtenaw and Jackson counties. On the

date of the charged offense, defendant enticed EC to come to the Motel 6 in Washtenaw County

under the guise of celebrating her birthday. The other-acts witnesses described a similar pattern

of defendant using enticements (e.g., promises, jobs, or money) to lure or recruit them to motels

for purposes of prostituting or sexually exploiting them, and resorting to threats and violence if

they refused. In this case, there were sufficient similarities between the other incidents and the

charged offenses such that the trial court did not abuse its discretion in admitting the evidence.4

Defendant relies on Denson, 500 Mich 385, in support of his argument that the other-acts

evidence was erroneously admitted in this case. In Denson, the defendant was charged with assault

with intent to commit murder for an offense in October 2012, and the prosecution introduced under

MRE 404(b)(1) evidence of the defendant’s involvement in a prior assault in 2002. The Court

stated that the prosecution was relying on the alleged similarity between the two assaults to

establish the relevancy of the prior assault, but concluded that “the only similarity between these

two incidents is that both were assaults allegedly committed by defendant,” and “the evidence of

the 2002 incident was not probative of anything other than defendant’s allegedly bad character and

propensity to commit the charged offense.” Id. at 406-407. But this case is distinguishable from

Denson because, as discussed, there are similarities between the other incidents and the facts of

this case beyond defendant’s involvement.

4

Evidence of other sexual assaults committed by defendant was also admissible under MCL

768.27b, given that defendant was also charged with sexually assaulting EC.

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We also disagree with defendant that the other-acts evidence should have been excluded

under MRE 403 because it was unfairly prejudicial. Unfair prejudice under MRE 403 does not

refer to any damaging evidence, but rather to “the tendency of the proposed evidence to adversely

affect the objecting party’s position by injecting considerations extraneous to the merits of the

lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Pickens, 446 Mich 298, 337;

521 NW2d 797 (1994) (citation omitted). MRE 403 requires the trial court to balance certain

factors, including:

[T]he time required to present the evidence and the possibility of delay, whether

the evidence is needlessly cumulative, how directly the evidence tends to prove the

fact for which it is offered, how essential the fact sought to be proved is to the case,

the potential for confusing or misleading the jury, and whether the fact can be

proved in another manner without as many harmful collateral effects. [People v

Daniels, 311 Mich App 257, 273; 874 NW2d 732 (2015) (citation omitted).]

Unfair prejudice may exist where there is a danger that the evidence will be given undue or

preemptive weight by the jury or where it would be inequitable to allow use of the evidence.

People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008). Evidence offered under MCL

768.27b is also subject to exclusion under MRE 403.

The trial court did not abuse its discretion by refusing to exclude the evidence under MRE

403. The testimonies of the other-acts witnesses, specifically their descriptions of how defendant

generally treated and targeted young, vulnerable women—by offering them enticements to lure

them to motels, his efforts to engage them in prostitution or sexually assault them, and to threaten

and assault them when they resisted complying with his demands—was highly probative of

defendant’s plan or scheme to use these women for his own financial gain or to satisfy his personal

interests as described by EC. Furthermore, the trial court gave a cautionary instruction advising

the jury on the limited, permissible use of the evidence, which minimized any potential for unfair

prejudice. See People v Ericksen, 288 Mich App 192, 199-200; 793 NW2d 120 (2010) (“Jurors

are presumed to follow their instructions . . . .”). Accordingly, the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice.

2. CELL PHONE DATA

Defendant additionally argues that the trial court erroneously allowed the prosecution to

introduce data extracted from two cell phones recovered from defendant at the time of his arrest.

The extracted data included information about the charged offense, but also included several text

messages, Internet searches, photographs, and videos associated with prostitution and human

trafficking dating as far back as July 2017. Defendant argues that this evidence should have been

excluded under MRE 404(b) because it does not tend to make a consequential fact any more or

less probable.

Although these records do not fall within the scope of the human-trafficking charge as

alleged in the information, the records were still highly probative of defendant’s scheme or plan

to prostitute women and engage in human trafficking during the relevant time period. The records

showed that defendant was contacting people who were seeking women and arranging for

meetings at various motels. Some messages provided rates for various services by women. This

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evidence was highly probative of defendant’s engagement in human trafficking during the charged

timeframe, and therefore, would be admissible under MRE 404(b)(1).

Defendant also suggests on appeal that the prosecution failed to offer sufficient notice of

this evidence. But, defendant does not offer any authority or argument explaining why this was

improper. This argument is therefore abandoned on appeal. People v McPherson, 263 Mich App

124, 136; 687 NW2d 370 (2004) (“The failure to brief the merits of an allegation of error

constitutes an abandonment of the issue.”).

Further, defendant makes a cursory argument that the investigating detective should not

have been allowed to provide his opinion testimony that the telephone records showed evidence

of human trafficking. However, because the detective’s testimony was rationally based on his

personal review of the records, it was admissible under MRE 701 (allowing a lay witness to offer

testimony in the form of an opinion or inference if the opinion or inference is “(a) rationally based

on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony

or the determination of a fact in issue”). See People v Oliver, 170 Mich App 38, 49; 427 NW2d

898 (1988), citing MRE 701.

IV. DEFENDANT’S STANDARD-4 BRIEF

Defendant raises additional issues in a pro se supplemental brief, filed pursuant to Supreme

Court Administrative Order No. 2004-6, Standard 4. None of these arguments has merit.

A. SEVERANCE

Defendant argues that the trial court erred by denying his motion to sever the CSC-III

charge from the remaining two charges. We disagree.

1. STANDARD OF REVIEW

A trial court’s decision on a motion to sever charges is reviewed for an abuse of discretion.

People v Breidenbach, 489 Mich 1, 14-15; 798 NW2d 738 (2011); People v Duranseau, 221 Mich

App 204, 208; 561 NW2d 111 (1997). However, any factual findings relevant to the question

whether joinder is permissible are reviewed for clear error, and any questions of law are reviewed

de novo. People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009).

2. LAW AND ANALYSIS

Defendant moved to sever the CSC-III charge, asserting that it was based on a sexual

assault in early June 2018, which was unrelated to the conduct that formed the basis for the other

charged offenses. Defendant argued that whether his sexual encounter with EC in June 2018 was

consensual was unrelated to the activities on July 20, 2018. Defendant alternatively requested that

the trial court sever the CSC-III charge under MCR 6.120(B) because of unfairness to defendant,

the potential for confusion or prejudice because of the nature of the evidence, and the complexity

of the facts. The trial court denied defendant’s motion.

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MCR 6.120(A)5 permits a prosecutor to charge a single defendant with two or more

offenses, or to consolidate two or more informations against a single defendant for a single trial.

Under MCR 6.120(C), a trial court “must sever for separate trials offenses that are not related as

defined in subrule (B)(1).” A trial court generally is not required to sever charges that all stem

from a series of connected acts. Williams, 483 Mich at 235.

The CSC-III charge was closely related to the other charges. EC testified that defendant

developed a personal relationship with her, and then exploited that relationship by persuading her

to perform acts of prostitution and require her to turn the money over to him. EC also described

how defendant used threats, force, coercion, and other similar tactics to get her to cooperate with

his plan to prostitute her. According to EC, the sexual assault was one example of defendant’s use

of force and violence to cause her to fear him and to coerce her to continue to comply with his

demands to engage in acts of prostitution. There was ample evidence that all of the charged

offenses were related because they involved a series of connected acts or acts constituting parts of

a single scheme or plan. Accordingly, the trial court did not abuse its discretion by denying

defendant’s motion to sever the charges.

B. PROSECUTORIAL ERROR

Defendant argues that a new trial is required because of the prosecutor’s error.6 We

disagree.

1. STANDARD OF REVIEW

To preserve a claim of prosecutorial error, a defendant must timely and specifically

challenge the prosecutor’s statements or conduct. People v Unger, 278 Mich App 210, 234-235;

749 NW2d 272 (2008). Defendant did not object to the prosecutor’s conduct in the trial court on

the ground of prosecutorial misconduct. Thus, his claims of prosecutorial error are unpreserved.

We review unpreserved claims of prosecutorial error for plain error affecting defendant’s

substantial rights. People v Abraham, 256 Mich App 265, 275; 662 NW2d 836 (2003).

5

MCR 6.120(A) states: “The prosecuting attorney may file an information or indictment that

charges a single defendant with any two or more offenses. Each offense must be stated in a

separate count. Two or more informations or indictments against a single defendant may be

consolidated for a single trial.”

6

Defendant refers to the prosecutor’s actions as “misconduct.” Although “prosecutorial

misconduct” is a commonly accepted term of art in criminal appeals, it is a misnomer when

referring to allegations that do not involve violations of the rules of professional conduct or illegal

activity. People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015). Less egregious

conduct involving inadvertent or technical error is should be deemed “prosecutorial error.” Id. at

88. Defendant in this case does not allege a violation of the rules of professional conduct, or illegal

activity by the prosecutor. Therefore, we refer to defendant’s allegations using the term

“prosecutorial error.”

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2. LAW AND ANALYSIS

The test for prosecutorial error is whether the defendant was denied a fair trial. People v

Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). A prosecutor commits error by

“abandon[ing] his or her responsibility to seek justice and, in doing so, den[ying] the defendant a

fair and impartial trial.” People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014) (citation

omitted).

A defendant’s right to due process is violated when a prosecutor knowingly allows false

testimony from a witness to go uncorrected. People v Smith, 498 Mich 466, 475; 870 NW2d 299

(2015). In People v Loew, 340 Mich App 100, 128; 985 NW2d 255 (2022), this Court observed:

Perjury has been defined as a willfully false statement regarding any matter or

thing, if an oath is authorized or required . . . . [A] prosecutor’s knowing use of

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

the Fourteenth Amendment. Thus, to prove prosecutorial [error] on the basis of

perjury, a defendant must show two things—first, that a witness knowingly made a

false statement, and second, that the prosecutor knowingly elicited the false

statement. [Quotations marks and citations omitted.]

The defendant has the burden of demonstrating that a witness’s testimony was in fact false. See

People v Bass, 317 Mich App 241, 272-274; 893 NW2d 140 (2016).

EC testified during defendant’s preliminary examination that, 15 minutes before TK

arrived at the motel, defendant told her that she was “to do the thing[s] that were expected of” her.

EC denied that defendant used more explicit language. EC was asked what she meant by “the

things that were expected of her” and she testified that she was to have intercourse for money. At

trial, EC testified that when she was in the motel room with defendant on July 20, 2018, defendant

told her that a man would be coming to the room and she knew then that either she or ML would

be prostituting. She further testified at trial that defendant explicitly instructed her that, when the

man arrived, she was to have sex with him and collect the money.

Defendant argues that this variance in testimony constituted perjured testimony. We

disagree. Although EC used different language to explain what defendant told her to do when TK

arrived, the substance of her testimony at both proceedings was the same—that defendant expected

her to engage in sex with TK for money. Thus, defendant has not demonstrated that EC gave any

false testimony that required correction. “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.” Bass, 317 Mich App at 275.

Defendant next argues that the police or prosecution violated his right to due process by

failing to preserve a third cell phone that defendant alleges was taken from him at the time of his

arrest. The record does not support this claim.

Defendant repeatedly claimed in the trial court that the police seized three cell phones from

him at the time of his arrest, and he demanded production of video recordings from the third phone.

The prosecutor maintained that only two phones were recovered. Defendant’s claim of a third

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phone lacks factual support. Therefore, his claim that the prosecution violated his due process

rights is without merit.

Defendant also claims that the prosecutor failed to comply with MCL 780.701 because it

did not obtain an order granting immunity to TK. Before TK testified at defendant’s preliminary

examination, the prosecutor stated on the record that the prosecutor’s office had no intention of

charging TK with any crime related to this matter. After the case was bound over to the circuit

court, defendant requested any plea or immunity agreements, including any agreements related to

TK. The prosecutor denied that there were any agreements beyond what was stated on the record

at the preliminary examination.

Defendant’s claim of an immunity agreement is misplaced. The prosecution denied that

there was a grant of immunity of any kind. The prosecution’s decision not to prosecute EC was

disclosed to defendant at his preliminary examination. This is not a grant of immunity as

contemplated by MCL 780.701. Therefore, defendant has not demonstrated that MCL 780.701 is

applicable or shown that his right to due process was violated.

Defendant next argues that the prosecution suppressed dashcam and bodycam video

footage from the traffic stop of TK, in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194;

10 L Ed 2d 215 (1963). To establish a Brady violation, a defendant must show that “(1) the

prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its

totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). According

to the prosecutor, no bodycam video footage of the traffic stop existed because the Pittsfield

Township police did not have body cameras at that time. The dashcam video footage was provided

to standby defense counsel. Accordingly, defendant’s claim of a Brady violation fails.

Defendant also complains that the prosecution failed to provide him with GPS information

associated with the two cell phones recovered by the police at the time of defendant’s arrest. The

record discloses that the police searched the two cell phones and extracted data that included text

messages, Internet searches, videos, and photographs. During closing argument, defense counsel

argued that the prosecution could not prove that he was where he was alleged to be because it had

failed to obtain the GPS coordinates from his cell phones.

“For due process purposes, there is a crucial distinction between failing to disclose

evidence that has been developed and failing to develop evidence in the first instance.” People v

Anstey, 476 Mich 436, 461; 719 NW2d 579 (2006). “Although [the prosecution] is required to

disclose evidence that has been developed, it is not required to develop evidence . . . that defendant

hopes will provide him with a defense.” People v Green, 310 Mich App 249, 256; 871 NW2d 888

(2015). Because the prosecution had no duty to develop this evidence, defendant cannot establish

a due-process violation. Furthermore, because defendant has not made an appropriate offer of

proof to demonstrate factual support for this claim, he has not shown that an evidentiary hearing

on this issue is warranted.

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C. INEFFECTIVE ASSISTANCE OF COUNSEL

1. STANDARD OF REVIEW

Defendant also makes several claims of ineffective assistance of counsel. Because

defendant did not raise these claims in a motion for a new trial or request for an evidentiary hearing

in the trial court, and this Court denied his motion to remand, our review of this issue is limited to

errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

2. LAW AND ANALYSIS

To establish ineffective assistance of counsel, defendant must first establish that counsel’s

performance was deficient, which requires this Court to consider “whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.” People v Leffew, 508 Mich 625, 637; 975 NW2d 896 (2022). Defendant

must also demonstrate that he was prejudiced by counsel’s error. To establish prejudice, defendant

“must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. “Reasonable probability means ‘a

probability sufficient to undermine confidence in the outcome.’ ” Id.

When evaluating claims of ineffective assistance of counsel, a defendant must overcome

the strong presumption that counsel’s performance constituted sound trial strategy. People v

Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). This Court will not substitute its judgment

for that of trial counsel regarding matters of trial strategy or assess counsel’s competence with the

benefit of hindsight. People v Traver, 328 Mich App 418, 422-423; 937 NW2d 398 (2019); People

v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). But “a court cannot insulate the review

of counsel’s performance by calling it trial strategy.” People v Trakhtenberg, 493 Mich 38, 52;

826 NW2d 136 (2012). “Initially, a court must determine whether the strategic choices were made

after less than complete investigation, and any choice is reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.” Id. (quotation marks,

citation, and brackets omitted). Counsel will be found ineffective if a strategic decision was not

sound or reasonable. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). Failure to

advance a meritless argument or raise a futile objection does not amount to ineffective assistance

of counsel. Ericksen, 288 Mich App at 201.

The burden is on the defendant to establish the factual predicate for his claims. Carbin,

463 Mich at 600. To the extent that defendant requests that this Court remand this matter for an

evidentiary hearing to further develop defendant’s claims, remand is not warranted if a defendant

fails to demonstrate that further factual development will advance his position, see People v

McMillan, 213 Mich App 134, 141-142; 539 NW2d 553 (1995), or if a defendant fails to identify

facts that could provide a basis for relief, see People v Simmons, 140 Mich App 681, 685; 364

NW2d 783 (1985). We also note that defendant represented himself for a significant portion of

the pretrial proceedings, with the assistance of standby counsel. A defendant who succeeds in

asserting his right to self-representation will be held to the same standards as a member of the bar,

and his errors and omissions cannot be the basis of a successful appeal on the ground of ineffective

assistance of counsel. People v Burden, 141 Mich App 160, 164; 366 NW2d 23 (1985). Against

this backdrop, we will consider each of defendant’s claims of ineffective assistance of counsel.

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Defendant first argues that defense counsel did not properly investigate the case because

counsel failed to obtain a video recording of a sexual encounter between defendant and EC that

would have shown them engaging in consensual sex. EC testified at the preliminary examination

that such a video recording existed, but she was adamant that it was not made on the day of the

charged sexual assault. EC further testified that she had engaged in consensual sex with defendant

on other occasions, including when the video recording was made. Therefore, defendant has not

overcome the presumption that defense counsel reasonably determined that the video evidence

would not have aided his defense. We further reject defendant’s request for an evidentiary hearing

because there is no basis for concluding that further factual development is necessary.

Defendant next claims that defense counsel prevented him from testifying, thereby barring

him from raising a consent defense. But, defendant confirmed on the record that he and defense

counsel discussed defendant’s right to testify and that he chose to invoke his right not to testify.

Thus, the record does not support defendant’s claim that he was prevented from testifying.

Next, defendant contends that defense counsel was ineffective for not using a private

investigator to help locate ML and produce her as a witness at trial. The record indicates that the

trial court approved funds to allow defense counsel to hire a private investigator, but the record

does not disclose whether counsel attempted to have the investigator locate ML, or even whether

counsel was aware of ML’s location. Further, there is no indication that defense counsel requested

that the prosecutor produce ML for trial. Regardless, defendant has not submitted an affidavit or

other offer of proof showing what ML would have testified to, or how that would have bolstered

defendant’s case. There is therefore no basis for concluding that defense counsel performed

deficiently by failing to make further efforts to locate ML and produce her as a witness. Likewise,

defendant cannot demonstrate that he was prejudiced by the absence of her testimony, and remand

for an evidentiary hearing on this claim is not warranted.

Defendant further argues that defense counsel was ineffective for not impeaching EC’s trial

testimony with allegedly inconsistent statements that she made to the police on July 20, 2018.

First, defendant has not submitted copies of the allegedly inconsistent statements to the police.

Second, decisions regarding how to question a witness and conduct cross-examination is a matter

of trial strategy. People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). The record

discloses that defense counsel extensively cross-examined EC, including questioning her about

prior statements to the police. Defendant has not shown that counsel’s cross-examination was

unsound or objectively unreasonable. Cline, 276 Mich App at 637.

Defendant next argues that defense counsel was ineffective for not investigating and

retrieving cellular location data from his cell phone carrier and not requesting that the two cell

phones seized by the police be analyzed by a third party. The record shows that defense counsel

commented that she was considering asking the defense experts to examine the cell phones. Thus,

the record discloses that counsel considered this option. However, there is no evidence that further

investigation of defendant’s cellular location data or an independent examination of defendant’s

cell phones would have produced any evidence favorable to defendant. Defendant makes a

tangential argument that defense counsel was deficient for not obtaining backup data for a missing

third cell phone through defendant’s iCloud account. Once again, however, defendant has not

provided an offer of proof as to what this evidence would have shown. Thus, defendant has failed

to establish a factual predicate for his claims. Carbin, 463 Mich at 600. Without an appropriate

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offer of proof, defendant has not demonstrated that he is entitled to an evidentiary hearing on either

issue.

Next, defendant claims that he relied on inaccurate advice from defense counsel that caused

him to reject a plea offer that included a sentence agreement for a minimum sentence of 32 months’

imprisonment. According to defendant, counsel advised him that, if defendant went to trial, his

sentence under the guidelines would be 36 months to 20 years’ imprisonment. Defendant also

asserts that he told counsel that he wanted to appeal his constitutional issues, and counsel advised

him that the only way to do that was by going to trial. Defendant asserts that he relied on counsel’s

advice in deciding to reject the plea offer. Defendant now argues that counsel was ineffective for

(1) not properly advising him of his applicable guidelines range,7 and (2) failing to advise him that

he could enter a conditional plea, which would still allow him to appeal his constitutional issues.

In People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014), our Supreme Court

explained what a defendant must establish to prove ineffective assistance of counsel in the context

of a plea offer. First, “that counsel’s representation fell below an objective standard of

reasonableness . . . .” Id. at 592. And, second, “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. In

demonstrating prejudice, the “defendant must show the outcome of the plea process would have

been different with competent advice.” Id. Where, as here, the alleged prejudice resulting from

counsel’s ineffectiveness is that the defendant rejected a plea offer and stood trial,

a defendant must show that but for the ineffective advice of counsel

there is a reasonable probability that the plea offer would have been

presented to the court (i.e., that the defendant would have accepted

the plea and the prosecution would not have withdrawn it in light of

intervening circumstances), that the court would have accepted its

terms, and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and

sentence that in fact were imposed. [Id.]

When evaluating a plea offer, “[d]efense counsel must explain to the defendant the range

and consequences of available choices in sufficient detail to enable the defendant to make an

intelligent and informed choice.” People v Jackson, 203 Mich App 607, 614; 513 NW2d 206

(1994).

In this case, defendant relies solely on his unsupported allegations to argue that defense

counsel gave him deficient legal advice. The record does not disclose what discussions defendant

had with counsel regarding the prosecution’s plea offer, what representations defendant may have

made about any considerations that could impact his decision whether to accept or reject the plea

offer, or what advice counsel gave to defendant. Defendant has not submitted an affidavit or other

offer of proof addressing any of these matters. The unsupported allegations in defendant’s

7

At sentencing, the trial court calculated defendant’s guidelines ranges to be 72 to 120 months’

imprisonment for the pandering conviction, 57 to 95 months’ imprisonment for the CSC-III

conviction, and 19 to 38 months’ imprisonment for the human-trafficking conviction.

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Standard 4 Brief are insufficient to establish the factual predicate for this claim, or to justify a

remand for an evidentiary hearing. As to defendant’s related argument that he was not advised

about the option of a conditional plea, defendant has not offered this Court any evidence that the

prosecutor and the trial court would have agreed to a conditional plea. MCR 6.301(C)(2).

Accordingly, defendant has not demonstrated a reasonable probability that a conditional plea

would have been accepted by the trial court. For these reasons, this ineffective-assistance claim

cannot succeed.

Defendant also argues that defense counsel was ineffective for failing to challenge the

validity of defendant’s arrest. The record does not support this claim—thus this argument is

meritless. Defendant contends that the police did not have probable cause to arrest him at the

motel. As is discussed in Part IV-D of this opinion, the police properly entered the motel room

after knocking on the motel room door and being granted permission to enter the room. While in

the room, the police noticed a pair of men’s shoes, which permitted them to conduct a protective

sweep of the room. Defendant was found hiding in the bathroom and taken into custody. After

the police spoke to EC, defendant was arrested.

Defendant concedes that the police were permitted to initially detain him and conduct a

pat-down check for weapons pursuant to Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889

(1968), but he argues that once the police determined that he did not have any weapons and was

no longer a threat to officers’ safety, he should have been released. Under Terry, however, “[a]

brief, on-the-scene detention of an individual is not a violation of the Fourth Amendment as long

as the officer can articulate a reasonable suspicion for the detention.” People v Custer, 465 Mich

319, 327; 630 NW2d 870 (2001). The police had information that prostitution was occurring in

the motel room and then found defendant hiding in the bathroom. This was sufficient to justify

defendant’s continued detention while the police conducted their on-the-scene investigation. After

speaking to EC, coupled with the information the police had already obtained from TK, the police

had probable cause to arrest defendant on the basis of the prostitution activity occurring in the

motel room. Trial counsel was not ineffective for failing to file a futile motion.

D. THE SEARCH OF THE MOTEL ROOM

Defendant argues that the trial court erred by denying his motion to suppress on the ground

that the police unlawfully entered and searched the motel room, in violation of his Fourth

Amendment rights. We disagree.

1. STANDARD OF REVIEW

A trial court’s findings of fact at a suppression hearing are reviewed for clear error. People

v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). “A finding of fact is clearly erroneous if,

after a review of the entire record, an appellate court is left with a definite and firm conviction that

a mistake has been made.” People v Swirles, 218 Mich App 133, 136; 553 NW2d 357 (1996).

However, the trial court’s application of constitutional standards regarding searches and seizures

is entitled to less deference when the facts are uncontested. Williams, 472 Mich at 313.

Accordingly, the trial court’s ultimate ruling on a motion to suppress is reviewed de novo. Id.

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2. LAW AND ANALYSIS

Preliminarily, defendant raises the issue of standing and his expectation of privacy, and

there is no dispute that he was staying in the motel room. “[A]n occupant of a hotel or motel room

is [] entitled to the Fourth Amendment protection against unreasonable searches and seizures.”

People v Davis, 442 Mich 1, 10; 497 NW2d 910 (1993) (citations omitted). Thus, he has standing

to contest the validity of the search.

The prosecutor justified the warrantless entry of the motel room by classifying the

encounter as a “knock and talk” procedure, which is not a search under Fourth Amendment’s

warrant requirement. The knock-and-talk procedure typically is used when police have knowledge

of potential illegal activity that they believe requires further investigation, but does not provide

probable cause for a search warrant. Instead, police approach the person suspected of engaging in

illegal activity at the person’s residence, i.e., knock on the front door, identify themselves as police

officers, and request consent to search for the suspected illegality or illicit items. See People v

Frohriep, 247 Mich App 692, 697; 637 NW2d 562 (2001).

When the police approach a home and perform a proper knock and talk, there is no search

under the Fourth Amendment. People v Frederick, 500 Mich 228, 234; 895 NW2d 541 (2017).

The appropriate scope of a knock and talk is the same as the “implied license” that is granted in

general to all kinds of peddlers, solicitors, and hawkers. Id. A police officer may approach a home

and knock without a warrant because that is no more than any private citizen would be entitled to

do. Id. at 234-235 (citation omitted).

The police officers were entitled to approach the motel room and knock at the door to

gather additional information after receiving a report of suspected prostitution activity in the room.

This procedure was conducted at a reasonable hour of the day (shortly after 6:00 p.m.) and the

testimony indicated that ML voluntarily opened the door and began to speak with the police. After

ML opened the door, she went outside and spoke with one of the officers. The door remained

open and an officer testified that he introduced himself to EC, the other woman in the room who

matched the description provided by TK, and asked to speak with her. At the evidentiary hearing,

the officer was not sure who gave him permission to enter, but he agreed that he testified at

defendant’s preliminary examination that he asked for permission to enter the room and it was EC

who gave him permission to enter. The trial court also reviewed the preliminary examination

testimony when it ruled on defendant’s motion to suppress. Thus, there was evidence that the

police entered the motel room after EC gave them permission. Accordingly, the trial court did not

clearly err by finding that the police were given consent to enter the motel room.

We disagree with defendant’s contention on appeal that he had sole authority to give the

police permission to enter the motel room after the female guest, who had rented the room, left the

motel. Consent to search a motel or hotel room may be obtained from the person whose property

is searched or from a third party who possesses common authority over the premises. Whether a

third party has common authority to consent derives from the mutual use of the property by persons

having joint access or control over the property. People v Goforth, 222 Mich App 306, 311-312;

564 NW2d 526 (1997), following Illinois v Rodriguez, 497 US 177, 181; 110 S Ct 2793; 111 L Ed

2d 148 (1990), and United States v Matlock, 415 US 164, 171 n 7; 94 S Ct 988; 39 L Ed 2d 242

(1974). Furthermore, a search may be upheld on the basis of a third party’s consent if the police,

-16-

at the time of entry, reasonably believed that the person possesses common authority over the

premises, even if that person actually lacks authority. Goforth, 222 Mich App at 312.

In this case, TK advised the police that he met a woman at the motel room and she allowed

him inside. When the police arrived at the motel room, knocked on the door, and the door was

answered, EC, who matched the description provided by TK, was inside the room. She was never

asked for consent to search the room, but she agreed to allow the police to enter the room. Because

EC clearly occupied the room, and because she matched the description of the woman who TK

met for the purpose of engaging in sex in the room in exchange for money, the officer had a

reasonable basis for believing that EC had common authority over the room. There was no

evidence of any circumstances that would have given the officer reason to question whether EC

had authority to allow him to enter the motel room. Thus, up to that point, there was no action by

the police that amounted to a search under the Fourth Amendment because the police had not

exceeded the scope of the “knock and talk.”

While inside the room, the officer saw a pair of men’s shoes on the floor near the bathroom,

which provided a reasonable basis for believing that a male was also present in the room. The

shoes were in plain sight and visible from the officer’s location in the room where he had a right

to be based on his permission to be in the room. The shoes provided probable cause to believe that

there was a male occupying the motel room, which was an exigent circumstance that justified a

search of the room without a warrant to ensure the safety of the officers. People v Oliver, 417

Mich 366, 384; 338 NW2d 167 (1983); see also In re Forfeiture of $176,598, 443 Mich 261, 267-

268; 505 NW2d 201 (1993) (the exigent circumstances exception allows the police to search a

dwelling without a warrant if there is a risk of danger to the police or others inside or outside the

dwelling). Accordingly, the search of the motel room did not violate defendant’s Fourth

Amendment rights.

E. DEFENDANT’S HUMAN-TRAFFICKING CONVICTION

Defendant argues that the evidence was insufficient to support his conviction of human

trafficking. We disagree.

1. STANDARD OF REVIEW

Our review of this claim requires us to review the evidence in a light most favorable to the

prosecution to determine whether there was sufficient evidence to justify a rational trier of fact in

finding guilt beyond a reasonable doubt. People v Oros, 502 Mich 229, 239; 917 NW2d 559

(2018). We are required to draw all reasonable inferences and make credibility choices in support

of the jury’s verdict. Id. It is for the trier of fact, not this Court, to determine what inferences may

be fairly drawn from the evidence and to determine the weight to be accorded those inferences.

Id.

2. LAW AND ANALYSIS

Count III of the information charged defendant with human trafficking, contrary to MCL

750.462b, which states: “A person shall not knowingly recruit, entice, harbor, transport, provide,

or obtain an individual for forced labor or services.” “ ‘Forced labor or services’ means labor or

services that are obtained or maintained by force, fraud, or coercion.” MCL 750.462a(g).

-17-

Defendant claims that there was no evidence that he used force, fraud, or coercion to

require EC to engage in prostitution on July 20, 2018. He emphasizes that EC testified that she

went to the motel to spend her birthday with defendant, and that she sent him explicit photographs

and messages to make him excited to see her. Defendant also argues that EC voluntarily met with

TK, and that he did not force her to do so. Defendant’s arguments mischaracterize EC’s testimony.

EC testified that after she met defendant, defendant made her prostitute herself by engaging

in sex with others in exchange for money that defendant would collect. EC explained that

defendant initially told her it would be a one-time thing, but defendant continued to involve her in

this activity and she continued to participate because defendant promised that he would help her

buy a house and a car. EC said she eventually told defendant that she did not want to continue this

activity, but defendant physically assaulted her and threatened her and her family if she did not

continue to comply with his demands, causing her to fear defendant.

EC testified that defendant contacted her on July 20, 2018, and invited her to the motel.

According to EC, defendant led her to believe they were celebrating her birthday. She took a cab

to the motel, which defendant paid for. EC admitted sending defendant nude and explicit

photographs and text messages to make him excited to see her. After EC arrived at the motel,

defendant told her that a man would be coming to the motel, and she realized that defendant

expected her to prostitute herself. EC testified that she told defendant that she was not going to do

it, but defendant instructed her to have sex with the man, collect the money, and give it to him.

She complied because she was afraid of him.

EC’s testimony, viewed in a light most favorable to the prosecution, was sufficient to

enable the jury to find beyond a reasonable doubt that defendant was in an ongoing relationship

with EC that involved EC engaging in sexual activity with others at defendant’s direction and for

defendant’s financial benefit. The evidence was sufficient to support defendant’s conviction of

human trafficking beyond a reasonable doubt.

We affirm defendant’s convictions of CSC-III and human trafficking, but vacate his

conviction and sentence for pandering. We do not retain jurisdiction.

/s/ Thomas C. Cameron

/s/ Kirsten Frank Kelly

/s/ Kathleen Jansen

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