                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 27, 2017
               Plaintiff-Appellee,

v                                                                    No. 331954
                                                                     Saginaw Circuit Court
LARRY DUANE CURRINGTON,                                              LC No. 14-040592-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of five counts of first-
degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(e) (sexual penetration while armed
with a weapon), two counts of second-degree criminal sexual conduct (CSC-II),
MCL 750.520c(1)(e) (sexual contact while armed with a weapon), two counts of unlawfully
driving away of an automobile, MCL 750.413, two counts of kidnapping, MCL 750.349, two
counts of extortion, MCL 750.213, one count of armed robbery, MCL 750.529, one count of
assault with intent to do great bodily harm less than murder, MCL 750.84, and one count of
felonious assault, MCL 750.82. The trial court sentenced defendant as a fourth habitual
offender, MCL 769.12, to life in prison for each CSC-I conviction and each kidnapping
conviction, and to prison terms of 600 months to 75 years for each CSC-II conviction, 240
months to 40 years for each unlawfully driving away of an automobile conviction, 700 months to
90 years for each extortion conviction, 600 months to 75 years for the armed robbery conviction,
600 months to 75 years for the assault with intent to do great bodily harm less than murder
conviction, and 120 months to 15 years for the felonious assault conviction. Two of the CSC-I
sentences were ordered to be served consecutively to two other CSC-I sentences, which
themselves were ordered to be served consecutively to the two kidnapping sentences. The final
sentence for CSC-I was ordered to be served consecutively to three of the CSC-I sentences and
one of the kidnapping sentences. All other sentences were ordered to run concurrently. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Defendant’s convictions stem from three separate sexual assaults perpetrated on three
separate victims on different dates. The assaults generally occurred in the victim’s vehicle while
defendant was armed with a bladed weapon. In two of the assaults, defendant drove the victim’s

                                                -1-
vehicle to a different location before assaulting her. Defendant robbed at least one victim. The
boyfriend of one of the victims interrupted the assault on her soon after it began, pulling
defendant out of the car; defendant fled on foot.

        At trial, before the opening of proofs but after jury selection, defense counsel informed
the trial court that defendant had informed him that he would like to represent himself.
Defendant then told the trial court that he was “losing confidence” in his counsel because
counsel had not obtained evidence related to the rental of “On Demand” movies from a cable
provider, which defendant believed would substantiate his alibi defense that he was babysitting
on the night that one of the assaults occurred. Defense counsel told the court that the issue had
only recently been raised, and stated that he “would make inquiry” and contact an investigator to
pursue the matter. The court asked defendant if under these circumstances he would be willing
to have defense counsel continue representing him, and defendant responded, “Yes, Your Honor.
As long as, you know, we understand, and me and him understood together, that he would pursue
the defense that I’ve chosen for myself vigorously, I don’t have a problem with that.” The court
found that defendant’s request for self-representation was not unequivocal and stated that it was
“not going to proceed any further with any further inquiry as to self-representation by the
defendant.”1

       The three victims testified regarding the assaults. They identified defendant as their
attacker. DNA evidence, taken from one of the victim’s breasts and underwear, was matched to
defendant and presented at trial.

        Michigan State Police (MSP) Detective Trooper Robert Scott testified that he participated
in the investigation of the assaults. Scott testified that a “Mr. Frank”2 was interviewed “by one
of the members of our team” about his possible involvement, but Scott was not sure who had
conducted the interview. Scott testified that “Mr. Frank” was cleared of any involvement. When
asked who had cleared “Mr. Frank,” Scott testified that he did not know. Defense counsel then
objected to Detective Scott’s answer as hearsay. The trial court allowed the testimony, stating
that “police officers’ information from one to another, is subject to being admitted; his
knowledge and working with that team and the investigation. So the objection is overruled.”

        MSP Detective Trooper Adam Green testified that he had never met Frank Reed, but was
asked to “follow up” with him. Green testified that he believed Reed was one of the people
listed as being in the area of the assaults when they took place. When asked who interviewed
Reed, Green stated, “We did interview Frank Reed; we followed up with his coworkers.” Green
further testified that in the course of the investigation it was revealed to the investigative team
that Reed and a coworker were delivering mail together at the time some of the assaults took


1
  Although defendant characterizes this action by the trial court as “denying” his request for self-
representation, and although the trial court did in fact additionally indicate that it was denying
defendant’s request, we agree with the trial court that defendant did not in fact make an
unequivocal request to represent himself.
2
    It appears from the record that the person referred to as “Mr. Frank” is Frank Reed.


                                                  -2-
place. Green testified that as far as he understood, Reed and his coworker were cleared of
suspicion.

         Defendant presented the testimony of a witness who was thirteen years old in 2014, who
testified that defendant was at her residence all evening on September 6, 2014, the date one of
the assaults occurred. The witness testified that she ordered “On Demand” television that
evening. The witness’s mother also testified that she could not remember the actual date, but did
know that on one particular occasion defendant had watched her daughter at her apartment and
had rented “On Demand” movies.

        On the fourth day of trial, after the prosecution had presented its proofs, defendant again
raised concerns about his counsel’s representation. Defendant argued that his trial counsel did
not question one of the victims, as he had wanted, about the underwear on which defendant’s
DNA was found. Defendant agreed that it was too late to represent himself in cross-examining
witnesses, and did not expressly request to represent himself. To the contrary, defendant did not
correct the trial court when it stated, “[b]ut my understanding is right now you’re not asking to
represent yourself, you just wanted to place your objections on the record, and I just wanted to
make sure that all of that is clear.”

       The jury convicted defendant as described. This appeal followed.

                           II. DENIAL OF SELF-REPRESENTATION

        Defendant argues that the trial court improperly denied his request to represent himself.
We disagree. We review for clear error “the trial court’s factual findings surrounding a
defendant’s waiver.” People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004). “Clear error
exists when the reviewing court is left with a definite and firm conviction that a mistake has been
made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). “However, to the
extent that a ruling involves an interpretation of the law or the application of a constitutional
standard to uncontested facts,” our review is de novo. Russell, 471 Mich at 187.

        “[I]t is a long-held principle that courts are to make every reasonable presumption
against the waiver of a fundamental and constitutional right, including the waiver of the right to
the assistance of counsel.” Id. at 188. “[W]hile the right of self-representation is a fundamental
constitutional right, other interests, such as the failure to effectively waive the right to
counsel . . . may in some instances outweigh the defendant’s constitutional right to act as his own
counsel.” Id. at 189, citing Martinez v Court of Appeal of California, 528 US 152, 162; 120 S Ct
6845; 145 L Ed 2d 597 (2000). “[A]lthough the right to counsel and the right of self-
representation are both fundamental constitutional rights, representation by counsel, as guarantor
of a fair trial, ‘is the standard, not the exception,’ in the absence of a proper waiver.” Id. at 189-
190, quoting Martinez, 528 US at 161.

       As our Supreme Court explained in People v Williams, 470 Mich 634, 642; 683 NW2d
597 (2004):

              The right of self-representation under Michigan law is secured by Const
       1963, art 1, § 13 and by statute, MCL 763.1. In [People v] Anderson, [398 Mich
       361,] 367-368[; 247 NW2d 857 (1976)], this Court held that a trial court must
                                                 -3-
         make three findings before granting a defendant’s waiver request. First, the
         waiver request must be unequivocal. Second, the trial court must be satisfied that
         the waiver is knowingly, intelligently, and voluntarily made. To this end, the trial
         court should inform the defendant of potential risks. Third, the trial court must be
         satisfied that the defendant will not disrupt, unduly inconvenience, and burden the
         court or the administration of court business.

“Consistent with Anderson,” the Williams Court stated, “MCR 6.005(D)(1)3 governs procedures
concerning a defendant’s waiver of the right to an attorney.” Id.

        The record in this case shows that defendant did not make an unequivocal request to
represent himself at trial. Defendant admits on appeal that his desire to proceed pro se was based
on his desire to pursue an alibi defense. After defense counsel agreed to speak with a private
investigator about the “On Demand” records, defendant stated that he would be satisfied with
defense counsel continuing to represent him if counsel vigorously pursued the alibi defense.
Thus, any request to represent himself was far from “unequivocal,” and there was no need for the
trial court to engage in further colloquy with defendant regarding the Anderson factors or the
requirements of MCR 6.005(D)(1). Defendant also later admitted, when expressing renewed
concerns about his counsel’s performance, that at the time he originally raised the issue of
representing himself, he and his counsel “had agreed upon a defense.”

         Further, while no records from the cable provider (assuming they exist) were ultimately
presented at trial concerning the “On Demand” movies allegedly ordered on September 6, 2014,
defense counsel did present two witnesses in support of this alibi defense. And the record
indicates that defense counsel faxed a cover letter and subpoena in an attempt to obtain the
requested records. It thus appears that defense counsel actually did pursue defendant’s chosen
defense. Although defendant later raised other issues relating to his counsel’s performance, he
did not argue that defense counsel did not pursue the alibi defense that was the subject of his
initial concern. The issues that defendant raised on the fourth day of trial arguably may have
implicated a potential claim of ineffective assistance of counsel, but on appeal defendant presents
no such argument.



3
    MCR 6.005(D)(1) provides as follows:
                 The court may not permit the defendant to make an initial waiver of the
         right to be represented by a lawyer without first

                 (1) advising the defendant of the charge, the maximum possible prison
         sentence for the offense, any mandatory minimum sentence required by law, and
         the risk involved in self-representation, and

                (2) offering the defendant the opportunity to consult with a retained
         lawyer or, if the defendant is indigent, the opportunity to consult with an
         appointed lawyer.



                                                 -4-
       We find no error in the trial court’s denial of defendant’s request to represent himself.

                                III. ADMISSION OF HEARSAY

        Defendant also argues that the trial court improperly admitted hearsay testimony in
violation of his right of confrontation. We disagree. At trial, defendant raised a timely objection
to the challenged testimony on hearsay grounds, and thus preserved that issue for appeal. People
v Jackson, 292 Mich App 583, 594; 808 NW2d 541 (2001). However, he did not object on the
ground that the admission of the challenged testimony violated his right of confrontation; this
issue is therefore unpreserved. Id. (noting that the issue of whether the admission of evidence
violates a defendant’s right to confrontation must be preserved by defendant’s objection on that
basis at trial).

       We review preserved evidentiary issues for an abuse of discretion. Id. “The trial court
abuses its discretion when its decision falls outside the range of principled outcomes or when it
erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862 NW2d 446
(2014). We review de novo questions of law “such as whether a rule of evidence of statute
precludes the admission of the evidence.” People v Katt, 468 Mich 272, 278; 662 NW2d 12
(2003). We review unpreserved claims of constitutional error for “plain error affecting
substantial rights.” Id.

        The challenged testimony of Detective Scott was that “in the course of the investigation,”
another individual, “Mr. Frank,” had been cleared of suspicion. The detective did not recount a
specific statement made about the subject. Rather, he testified regarding the investigative
process in order to explain how the police had turned their attention from that individual to
others, including defendant.

        The challenged testimony was not hearsay. Hearsay is defined as “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). Statements “offered to show the effect of the out-
of-court statement on the hearer,” such as statements “offered to show why police officers acted
as they did,” are not hearsay. People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007).
And while “[t]he Confrontation Clause prohibits the admission of all out-of-court testimonial
statements unless the declarant was unavailable at trial and the defendant had a prior opportunity
for cross-examination,” it “does not bar the use of out-of-court testimonial statements for
purposes other than establishing the truth of the matter asserted. Thus, a statement offered to
show the effect of the out-of-court statement on the hearer does not violate the Confrontation
Clause.” Id. at 10-11; citing US Const, am VI; Const 163, art 1, § 20. This is the case with
Scott’s testimony. The trial court did not err by admitting this evidence.

        Further, even if the challenged testimony were hearsay and thus admitted in error, “[a]
preserved error in the admission of evidence does not warrant reversal unless “after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Burns, 494 Mich 104, 110; 832 NW2d 738
(2013) (quotation marks and citation omitted). In this case, considering the DNA evidence and
the fact that all of the victims identified defendant as the perpetrator, we cannot conclude that
testimony that another person was cleared of suspicion by police investigators affected the

                                                -5-
outcome of defendant’s trial. Similarly, the admission of that testimony, even if we were to find
it plainly erroneous, did not affect defendant’s substantial rights. See People v Carines, 460
Mich 750, 772; 597 NW2d 130 (1999).

       Affirmed.



                                                           /s/ Jane E. Markey
                                                           /s/ Mark T. Boonstra




                                               -6-
