                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      January 3, 2019
              Plaintiff-Appellee,

v                                                                     No. 338641
                                                                      Oakland Circuit Court
TORIAN DEWAYNE MEDLOCK,                                               LC No. 2016-260835-FC

              Defendant-Appellant.


Before: MURRAY, C.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

      A jury convicted defendant of three counts of first-degree criminal sexual conduct (CSC-
I), MCL 750.520b(1)(f), and the trial court sentenced him as a second-offense habitual offender,
MCL 769.10, to 28 to 50 years in prison for each conviction, to be served concurrently.
Defendant appeals as of right, and we affirm.

                        I. COUNSEL’S ISSUE - PREARREST DELAY

        Defendant argues that his right to due process was violated by the approximate nine-year
delay between the time he was first identified as a possible suspect in July 2007 and the time of
his arrest in October 2016. Whether a delay in charging a defendant violated his right to due
process is reviewed de novo. People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d
391 (2011).

       A due process violation can result from a delay between the date of the offense and the
defendant’s arrest. But a defendant does not have a constitutional right to be arrested. See
People v Patton, 285 Mich App 229, 236; 775 NW2d 610 (2009). As explained in Patton:

       “Before dismissal may be granted because of prearrest delay there must be actual
       and substantial prejudice to the defendant’s right to a fair trial and an intent by the
       prosecution to gain a tactical advantage.” People v Crear, 242 Mich App 158,
       166; 618 NW2d 91 (2000), overruled in part on other grounds People v Miller,
       482 Mich 540 (2008). Substantial prejudice is that which meaningfully impairs
       the defendant’s ability to defend against the charge in such a manner that the
       outcome of the proceedings was likely affected. People v Adams, 232 Mich App
       128, 135; 591 NW2d 44 (1998). “ ‘[A]ctual and substantial’ prejudice requires
       more than generalized allegations.” Id. If a defendant demonstrates prejudice,

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       the prosecution must then persuade the court that the reason for the delay
       sufficiently justified whatever prejudice resulted. People v Cain, 238 Mich App
       95, 109; 605 NW2d 28 (1999). [Patton, 285 Mich App at 237.]

A defendant cannot merely speculate generally that a delay resulted in lost memories, witnesses,
or evidence, even when the delay was especially long. People v Woolfolk, 304 Mich App 450,
454; 848 NW2d 169 (2014), aff’d 497 Mich 23 (2014).

        Although defendant established that there was a delay of more than nine years in
arresting him after he was identified as a suspect, he did not establish either an intent by the
prosecution to gain a tactical advantage, or actual and substantial prejudice to his ability to
defend against the charges. There are at least two reasons for this conclusion.

        First, despite the prosecutor being unable to offer any reason for the delay, defendant
presented no evidence that the delay was intended to give the prosecution a tactical advantage.
The DNA evidence and the victim’s identification of defendant formed the foundation for the
prosecution’s case. The DNA evidence was available in 2007, and there is no basis for
concluding that the delay in defendant’s arrest rendered the victim’s identification of defendant
in 2016 any stronger than it would have been in 2007. Defendant argues that the substantial
mental anguish endured by the victim over the years, which was probative of the personal injury
element of the charged CSC-I offenses,1 helped bolster the prosecution’s case. However, the
evidence showed that the victim received physical injuries during the offense, and then
experienced significant emotional problems that affected her functioning and daily life
immediately after the offense. This evidence would have been available at an earlier trial if
defendant had been arrested after the discovery of the DNA match in 2007. Thus, the delay was
not significant to enabling the prosecution to prove the personal injury element of the offenses.

         Second, with respect to whether defendant demonstrated substantial prejudice to his right
to a fair trial, defendant argues that he was prejudiced because the jury heard evidence about the
victim’s mental and emotional state over a 10-year period, which it would not have heard if this
case had been promptly prosecuted. As indicated, the evidence of the victim’s mental anguish,
either at the time of the offense or later, was relevant to the personal injury element of the CSC-I
charges. However, the prejudice necessary to establish a due process violation does not refer to
the state’s ability to prove its case; it is concerned with whether the defendant’s ability to defend
against the charge has been substantially impaired. Patton, 285 Mich App at 237. Regardless,
the victim’s testimony indicated that she was profoundly affected emotionally close in time to
the offense. She described dropping out of school, staying in her room for four months, and



1
 Defendant was convicted of violating MCL 750.520b(1)(f), under which a person is guilty of
CSC-I if the person engages in sexual penetration of another person and “[t]he actor causes
personal injury to the victim and force or coercion is used to accomplish sexual penetration.”
“Personal injury” is defined in MCL 750.520a(n) as “bodily injury, disfigurement, mental
anguish, chronic pain, pregnancy, disease, or loss of impairment of a sexual or reproductive
organ.”


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avoiding social interaction during that period. This same evidence would have been available if
defendant had been charged in 2007.

        Defendant has also failed to explain how the mere passage of time substantially impaired
his ability to defend against the charges. To establish a due process violation based on prearrest
delay, defendant must demonstrate prejudice that is both “actual” and “substantial.” Patton, 285
Mich App at 237. Defendant speculates that video evidence was not preserved, but he has
offered no evidence that video evidence actually existed, or would have still been available at the
time the DNA match was discovered in July 2007, approximately seven months after the sexual
assault. Similarly, defendant speculates that witnesses might have supported his defense, but he
has not identified any specific witness or other evidence that was known to exist in 2007, but
which became unavailable due to the delay in bringing charges.

        In sum, defendant failed to establish either that the prosecution intended to gain a tactical
advantage by delaying his arrest, or that the delay caused actual and substantial prejudice to his
ability to defend against the charges. Therefore, the trial court did not err by denying
defendant’s motion to dismiss.

                           II. 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 which have merit.

                       A. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant argues that he was denied the effective assistance of counsel because the
motion to dismiss filed by defense counsel confused concepts relating to the right to a speedy
trial with prearrest delay. Because defendant failed to raise an ineffective assistance argument in
a motion for a new trial or request for an evidentiary hearing in the trial court, our review of this
issue is limited to errors apparent from the record. Woolfolk, 304 Mich App at 453-454. To
establish ineffective assistance of counsel, defendant must show that counsel’s performance fell
below an objective standard of reasonableness, and that the representation so prejudiced
defendant that he was denied the right to a fair trial. People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994). To establish prejudice, defendant must show that there was a reasonable
probability that, but for his counsel’s error, the result of the proceeding would have been
different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).

       We agree with defendant that defense counsel’s motion to dismiss conflated principles
applicable to a speedy trial claim with those for a due process claim based on prearrest delay.
However, defendant must still establish that he was prejudiced by counsel’s deficient
performance. He has not done so. For one, the trial court was aware of the differences between
the two types of claims and addressed the merits of both of them, finding no merit to either.
Additionally, the trial court did not err by denying defendant’s motion to dismiss based on
prearrest delay. In this issue, defendant has not offered anything more that would change the
analysis or outcome of the prearrest delay issue. Therefore, defendant’s ineffective-assistance
argument cannot succeed.



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                                           B. PERJURY

        Next, defendant argues that he was denied a fair trial because the victim offered perjured
testimony at trial, which the prosecutor failed to correct. Because defendant did not raise this
issue in the trial court, it is unpreserved. Therefore, we review the issue for plain error affecting
defendant’s substantial rights. People v Abraham, 256 Mich App 265, 274; 662 NW2d 836
(2003). An error is plain if it is clear or obvious, and an error affects substantial rights if it is
prejudicial, i.e., if it affects the outcome of the proceedings. People v Jones, 468 Mich 345, 355-
356; 662 NW2d 376 (2003).

       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); People v Cooper, 309 Mich App 74,
88; 867 NW2d 452 (2015). A defendant’s right to due process is violated when the prosecution
allows false testimony from one of its witnesses to go uncorrected. People v Smith, 498 Mich
466, 475; 870 NW2d 299 (2015). The defendant has the burden of demonstrating that the
evidence or testimony was in fact false. See People v Bass, 317 Mich App 241, 272; 893 NW2d
140 (2016).

        Defendant contends that the victim’s trial testimony about being assaulted in the truck by
defendant was false because the doctor who treated her at the hospital testified that she only had
a scratch or scratches to her face and a cut inside her lip. Defendant argues that because the
doctor did not find any injuries to the victim’s head or neck, she therefore lied about defendant
elbowing her in the face four or five times, causing her to strike her head on the truck, and lied
about defendant choking her. However, the doctor explained that such injuries can differ in
different individuals. He also stated that patients who reported being strangled do not always
have physical marks on their necks. Therefore, the doctor’s testimony does not establish that the
victim’s testimony about being assaulted was false. Further, because the doctor’s testimony
about the results of his examination was presented to the jury, defendant cannot claim that the
victim’s allegedly contradictory testimony stood uncorrected. Rather, it was up to the jury to
evaluate the competing testimony and determine whether the doctor’s testimony affected the
credibility of the victim’s account of the assault.

       As for the lack of evidence of any injury to the victim’s vaginal or anal areas, that was
not inconsistent with the sexual acts she described, which the doctor explained in his testimony.
Thus, this too does not establish that the victim perjured herself.

        Defendant also argues that the victim committed perjury because some of the details
mentioned in her trial testimony were not included in her police statements. Defendant notes that
the victim did not mention the condition of the interior of the truck’s door or her license being
taken by defendant. He also notes that the victim testified at trial that she willingly got into
defendant’s truck, but one of her police statements indicated that she was forced into the truck.
The victim also inconsistently described the area where defendant parked as being both an
abandoned lot and a driveway. Defendant claims that these inconsistencies are all indications
that the victim was lying under oath. The victim addressed some of the inconsistencies at trial.
She testified that if the officer wrote down in his report that she was forced into the truck; that
was not accurate. She explained that she did not mention to one of the officers that defendant
took her driver’s license because the officer did not ask. She further explained how defendant

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parked in a driveway, which was next to an abandoned lot and an abandoned house. At most,
defendant has established some alleged inconsistencies between the victim’s trial testimony and
prior statements. As this Court recognized in Bass, 317 Mich App at 275, “[a]lthough 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.” Moreover, because these alleged
inconsistences were presented to the jury, defendant was not denied a fair trial. It was up to the
jury to determine whether the victim’s trial testimony was in fact inconsistent with her prior
statements and, if so, whether the inconsistencies affected the credibility of her testimony.
Defendant has not established that the prosecutor knowingly presented, or failed to correct,
testimony known to be false.

                                       C. SENTENCING

       Defendant argues that he was improperly sentenced as an habitual offender pursuant to
MCL 769.10 because the prosecutor failed to timely file notice of the prosecution’s intent to seek
sentence enhancement.

       MCL 769.13(1) provides:

               In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under section 10, 11, or 12 of this chapter,
       by filing a written notice of his or her intent to do so within 21 days after the
       defendant’s arraignment on the information charging the underlying offense or, if
       arraignment is waived, within 21 days after the filing of the information charging
       the underlying offense. [Emphasis added.]

        According to the record, defendant was arraigned on the warrant in district court on
October 8, 2016. A preliminary examination was held on November 15, 2016, and defendant
was bound over for trial. On November 18, 2016, the prosecutor filed the general information
charging defendant with three counts of CSC-I. Also on November 18, 2016, the prosecutor
filed a notice of intent to seek sentence enhancement, pursuant to MCL 769.10 and MCL 769.13.

        In his argument on appeal, defendant argues that the notice of intent to seek sentence
enhancement was untimely because it was filed more than 21 days after October 8, 2016, which
is the date defendant was arraigned on the warrant. Defendant’s argument confuses the
arraignment on the warrant with the arraignment on the information. MCL 769.13(1) clearly
states that the 21-day period runs from the time a defendant is arraigned on the information. See
People v Richards, 315 Mich App 564, 588-589; 891 NW2d 911 (2016), rev’d in part on other
grounds 501 Mich 921 (2017). Using the date that defendant was arraigned on the information,
which is the operative date for purposes of MCL 769.13, the habitual-offender notice was timely
filed.




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Affirmed.



                  /s/ Christopher M. Murray
                  /s/ Douglas B. Shapiro
                  /s/ Michael J. Riordan




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