            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 14, 2020
               Plaintiff-Appellee,

v                                                                   No. 344159
                                                                    Calhoun Circuit Court
JON THOMAS FOX,                                                     LC No. 2016-003474-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(c); unlawful imprisonment, MCL 750.349b;
assault by strangulation, MCL 750.84(1)(b); and interference with electronic communications,
MCL 750.540(5)(a). The trial court sentenced defendant to concurrent sentences of 285 to 855
months’ imprisonment for each count of CSC-I, 100 to 180 months’ imprisonment for his
conviction of unlawful imprisonment, 67 to 120 months’ imprisonment for his conviction of
assault by strangulation, and 16 to 24 months’ imprisonment for his conviction of interference with
electronic communications. We affirm.

        Defendant and the victim had an extremely tumultuous relationship that lasted several
years. On the night in question, defendant waited for the victim inside her home. When she
entered, defendant grabbed her and attempted to tie her hands around her back. Defendant escorted
the victim to the bathroom to allow her to vomit and then proceeded to bring her to the bedroom.
Defendant took the victim’s cell phone to prevent her from calling 911. The victim was able to
free her hands, but defendant grabbed her by her throat and threw her to the ground. Defendant
digitally penetrated the victim while she laid on the ground. Soon thereafter, defendant inserted
his penis into her vagina. The victim testified that this encounter was nonconsensual. Later that
same day, the victim contacted defendant to discuss what transpired. She testified that she did not
want to involve police because she wanted to keep her family together. Dissatisfied with the
discussion with defendant, the victim contacted police a few hours later. During the phone call,
the victim made statements about defendant stealing a motorcycle and how defendant raped her.
This 911 call was admitted into evidence without objection.


                                                -1-
        Defendant first argues that he received ineffective assistance of counsel during the plea-
bargaining process because defense counsel did not inform him of the potential sentence he faced
if found guilty as charged and that he would have accepted the alleged plea of one year of
incarceration had he known the full potential sentence. Determining whether a defendant received
ineffective assistance of counsel is a mixed question of fact and constitutional law. People v Head,
323 Mich App 526, 539; 917 NW2d 752 (2018). This Court reviews findings of facts for clear
error and questions of law de novo. Id. “The trial court’s findings are clearly erroneous if this
Court is definitely and firmly convinced that the trial court made a mistake.” People v Shaw, 315
Mich App 668, 671; 892 NW2d 15 (2016). Because we remanded for an evidentiary hearing,1 we
review the trial court’s findings for clear error.

        In order to receive a new trial on the basis of ineffective assistance of counsel, defendant
“must show both that counsel’s representation fell below an objective standard of reasonableness,
and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Smith v Spisak, 558 US 139, 149; 130 S Ct 676; 175
L Ed 2d 595 (2010) (quotation marks and citation omitted); People v Trakhtenberg, 493 Mich 38,
51; 826 NW2d 136 (2012). “Because the defendant bears the burden of demonstrating both
deficient performance and prejudice, the defendant necessarily bears the burden of establishing the
factual predicate for his claim.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

       A criminal defendant, as at trial, “is entitled to the effective assistance of counsel in the
plea-bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). In
demonstrating prejudice with respect to ineffective assistance of counsel in the plea-bargaining
process, the “ ‘defendant must show the outcome of the plea process would have been different
with competent advice.’ ” Id. at 592, quoting Lafler v Cooper, 566 US 156, 163; 132 S Ct 1376;
182 L Ed 2d 398 (2012). If the alleged prejudice results from a defendant rejecting a plea offer
and standing 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., quoting Lafler, 566 US at 164.]

        In this case, defense counsel admitted during the evidentiary hearing that he did not inform
defendant of his minimum sentencing guidelines range. “The decision to plead guilty is the
defendant’s,” and defense counsel must provide sufficient enough advice during plea negotiations
to allow defendant “to make an informed and voluntary choice between trial and a guilty plea.”
People v Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995). Because defense counsel did




1
 See People v Fox, unpublished order of the Court of Appeals, entered February 8, 2019 (Docket
No. 344159).


                                                 -2-
not advise defendant of his minimum sentencing guidelines range, defendant was unable to make
an informed and voluntary choice between trial and the alleged one year of incarceration.

       However, defendant cannot establish prejudice. We note that defendant’s offer of proof
by way of an affidavit from defense counsel raises the question whether defendant was ever offered
one year of incarceration. First, at the evidentiary hearing, there was testimony that defendant was
never offered such a plea. Second, and more curiously, defense counsel’s affidavit has the
language “one year in custody” stricken and handwritten above “a sentence of” the word
“guideline.” This suggests that defendant was offered a guideline sentence instead of one year of
incarceration.

        Notwithstanding, there is not a reasonable probability that defendant would have accepted
the plea, whether the plea offer was for one year of incarceration or not. Throughout the entire
trial and even at the evidentiary hearing, defendant adamantly maintained his innocence. Even
during the evidentiary hearing, defendant testified that he “couldn’t bring [him]self to plead guilty
to something that [he] didn’t do.” The trial court determined that, because of defense counsel’s
and defendant’s and his mother’s testimonies about rejecting any plea offer because of defendant’s
innocence, there was not a reasonable probability that defendant would have accepted the plea
without the clarifying effects of hindsight. Similar to Douglas, we can find no clear error in the
trial court’s determination.

       Defendant also argues that he received ineffective assistance of counsel because defense
counsel failed to object to inadmissible hearsay. Generally, this Court reviews claims of
evidentiary error for an abuse of discretion. See People v Bergman, 312 Mich App 471, 482; 879
NW2d 278 (2015). Unpreserved claims of evidentiary error are reviewed for plain error affecting
defendant’s substantial rights. See People v Coy, 258 Mich App 1, 12; 699 NW2d 831 (2003).
Under this standard,

       [f]irst, there must be an error; second, the error must be plain (i.e., clear or obvious);
       and third, the error must affect substantial rights (i.e., there must be a showing that
       the error was outcome determinative). Moreover, reversal is warranted only when
       plain error resulted in the conviction of an actually innocent defendant or seriously
       affected the fairness, integrity, or public reputation of judicial proceedings,
       independent of guilt or innocence. [Id. (citations omitted).]

MRE 801 defines hearsay 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.” Generally,
hearsay is inadmissible. MRE 802. Under MRE 803(2), the exception for present sense
impressions allows for the admission of a hearsay statement if three requirements are met:

       (1) the statement must provide an explanation or description of the perceived event,
       (2) the declarant must have personally perceived the event, and (3) the explanation
       or description must have been made at a time substantially contemporaneous with
       the event. [People v Chelmicki, 305 Mich App 58, 63; 850 NW2d 612 (2014)
       (quotation marks omitted).]




                                                  -3-
In many, “if not most, instances precise contemporaneity is not possible and hence a slight lapse
is allowable.” Id. (quotation marks and citation omitted).

        In this case, although unclear, at least several hours passed from the time of the assault to
the time the victim called 911. The victim testified that when she woke up later that afternoon
after the assault, she contacted defendant to try and get a sense of what happened. Only after
contacting defendant and not receiving the answers she sought did the victim contact police.
Admittedly, the victim was unable to call police during the assault, or even soon thereafter, because
defendant had her phone. However, when she awoke, she could have called police. We have
recognized an allowance of time for a “statement made less than a minute or even several minutes
after the event observed to qualify under [the present sense impression] exception.” People v
Bowman, 254 Mich App 142, 145; 656 NW2d 835 (2002). However, similar to Bowman, the
statements made to police were not made “merely a few minutes after” the assault. See id. Instead,
there was an indeterminate length of time between the assault and the 911 call, plus a conversation
with defendant about what transpired. See id. “To call such an account a present sense impression
is to rob the phrase of its meaning, and we will not interpret the language of this evidentiary rule
in a sense so contrary to its fair and natural import.” See id. at 145-146 (quotation marks and
citation omitted). Therefore, we hold that the 911 call did not constitute a present sense
impression.

        Another exception to the general rule against hearsay is an excited utterance. MRE 803(2)
allows for the admission of a hearsay statement when a “statement relating to a startling event or
condition [was] made while the declarant was under the stress of excitement caused by the event
or condition.” There must be a (1) startling event, and (2) the resulting statement must be made
while under the excitement caused by the startling event. People v Smith, 456 Mich 543, 550; 581
NW2d 654 (1998). “The question is not strictly one of time, but of the possibility for conscious
reflection.” Id. at 551. Although the passage of time is a relevant consideration, “there is no
express time limit for excited utterances.” Id. The admissibility of such statements does not
necessarily depend on the amount of time that elapsed since the startling event, but rather whether
the declarant was still under the stress of excitement resulting from that event. Id. at 551-552.

        In this case, there can be no question that the sexual assault was a startling event.
According to the victim’s testimony, she was unaware that defendant would be present in her home
when she returned from her friend’s house. Further, although she knew that it was defendant when
he grabbed her, her testimony revealed that this encounter was unlike any that she had experienced
with defendant before and that it was nonconsensual. Therefore, the relevant question is whether
the victim was still under the stress of the assault when she contacted police several hours later.
See id.

       Though the time that passes between the event and the statement is an important
       factor to be considered in determining whether the declarant was still under the
       stress of the event when the statement was made, it is not dispositive. It is necessary
       to consider whether there was a plausible explanation for the delay. [Id. at 551.]

       Part of the victim’s delay in contacting police can be attributed to the fact that defendant
had her phone. Assuming the assault happened at midnight and lasted until 5:00 a.m., the victim
would have been unable to contact police this entire time. Furthermore, the victim testified that


                                                -4-
she then fell asleep. Although unclear at what time the victim woke up, it was sometime later on
the afternoon of the assault. This would also serve as a plausible explanation for the victim’s
continued delay in contacting police. See id. It was not until after she woke up and contacted
defendant that she contacted police. Again, it is unclear how much time had passed between when
the victim woke up and when she contacted police. However, her testimony reveals that it was at
least a few hours. She stated that when she finished contacting defendant, she “then pondered and
thought about it, maybe, a few hours at most, and then decided that [contacting the police] would
be the right course of action.” “[I]t is the lack of capacity to fabricate, not the lack of time to
fabricate, that is the focus of the excited utterance rule.” Id. Although there are plausible
explanations for the victim’s delay in contacting police and making the statements, the victim’s
own testimony evidences that she “pondered and thought about it.” This is the type of conscious
reflection that our Supreme Court determined was the relevant question. It is a “continuing level
of stress arising from the [startling event] that preclude[s] any possibility of fabrication.” See id.
at 553. While the victim was undoubtedly emotional during her call to 911, we cannot conclude
that there was an “overwhelming influence” that lasted between her waking up and her disclosure
of the assault to police. See id. at 552. Therefore, the statements do not qualify as excited
utterances.

        Still, the analysis cannot end there. After determining that the evidence was inadmissible,
we must next determine whether the error affected defendant’s substantial rights. We find that it
did not. The admission of these statements did not amount to plain error because the admission of
the statements was not outcome-determinative: there was other evidence that corroborated
defendant’s guilt. The jury still heard testimony from the victim about the assault and what
transpired after the assault. “[T]he complainant’s testimony can, by itself, be sufficient to support
a conviction of CSC,” People v Szalma, 487 Mich 708, 724; 790 NW2d 662 (2010), and “a jury is
free to believe or disbelieve, in whole or in part, any of the evidence presented,” People v Perry,
460 Mich 55, 63; 594 NW2d 477 (1999). Moreover, reversal is unwarranted because the admission
of the victim’s 911 call did not affect the fairness, integrity, or public reputation of the trial. See
Coy, 258 Mich App at 12.

        With regard to defendant’s ineffective assistance of counsel claim relating to the
statements, we hold that counsel was not ineffective. Defense counsel is afforded wide latitude on
matters of trial strategy, and this Court will not substitute its judgment for that of defense counsel,
review the record with the added benefit of hindsight on such matters, or second-guess defense
counsel’s judgment on matters of trial strategy. See People v Unger, 278 Mich App 210, 242-243;
749 NW2d 272 (2008). The record demonstrates that defense counsel refrained from objecting to
the admission of the 911 call because of trial strategy. Specifically, defense counsel stated that he
believed the call indicated that the victim was just trying to “strike back” at defendant and that,
because defendant did not give the victim what she wanted by way of remaining at the house, she
decided to call 911. Defense counsel believed that the discussion about the motorcycle at the
beginning of the call would negatively affect the victim’s credibility. We are not left with a definite
and firm conviction that the trial court erred in determining that defense counsel was not
ineffective. See Head, 323 Mich App at 539.

       Lastly, defendant argues that the prosecution engaged in prosecutorial misconduct. We
disagree. We review unpreserved claims of prosecutorial misconduct for plain error. See People
v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).


                                                 -5-
       [T]he test for prosecutorial misconduct is whether a defendant was denied a fair
       and impartial trial. A defendant’s opportunity for a fair trial can be jeopardized
       when the prosecutor interjects issues broader than the defendant’s guilt or
       innocence. Issues of prosecutorial misconduct are decided case by case, and this
       Court must examine the entire record and evaluate a prosecutor’s remarks in
       context. The propriety of a prosecutor’s remarks depends on all the facts of the
       case. [People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007) (quotation
       marks and citation omitted).]

       Defendant challenges the prosecutor’s comments during her opening statement and closing
argument about the victim being tied up and defendant’s inability to “get hard.” With regard to
the prosecutor’s statements about the victim being tied up, defendant asserts that there was no
evidence to support such statements. On the contrary, there was ample evidence by way of
testimony from both the victim and defendant about defendant attempting to tie the victim’s hands
during the assault. Although later testimony revealed that the victim was not fully tied and
eventually released herself from her constraints, there was evidence of which the prosecutor could
reasonably infer that the victim’s hands were tied. See Dobek, 274 Mich App at 66. Therefore,
defendant’s reliance on the overall fact that the victim’s hands were ultimately untied is misguided
because testimony supported that defendant at least attempted to tie her hands.

        However, the prosecutor’s comments about defendant’s inability to get an erection was
improper. “A prosecutor may not make a statement of fact to the jury that is not supported by
evidence presented at trial and may not argue the effect of testimony that was not entered into
evidence.” Unger, 278 Mich app at 241. The record does not support any type of finding that
defendant was unable to become erect during the assault. There was, however, evidence of penile
and digital penetration of the victim by defendant. Therefore, the prosecutor’s comments about
defendant not being “actually hard” and defendant getting angry because “he couldn’t get hard”
were improper. However, reversal for a new trial is not required. Defendant cannot establish plain
error affecting his substantial rights as a result of the prosecutor’s comments. We find that the
comments about defendant’s inability to get an erection were not outcome-determinative.

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ David H. Sawyer
                                                             /s/ Michael J. Riordan




                                                -6-
