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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 19, 2020
Plaintiff-Appellee,
v No. 349105
Wayne Circuit Court
DWIGHT ANDREW JONES, LC No. 18-002173-01-FC
Defendant-Appellant.
Before: GLEICHER, P.J., and K. F. KELLY and SHAPIRO, JJ.
PER CURIAM.
After his first trial ended with a hung jury, a second jury convicted defendant of two counts
of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), for the sexual assault of his
five-year-old daughter, SJ. Defendant contends that the trial court improperly declared a mistrial
at his first trial and violated his right to be free from double jeopardy by conducting a second. He
also challenges the sufficiency of the evidence supporting his convictions, the admission of his
statement to the police, the court’s denial of his second jury’s request to rehear his testimony during
deliberations, and the imposition of consecutive sentences for his convictions. We affirm
defendant’s convictions, but vacate defendant’s sentences and remand for further sentencing
consideration.
I. BACKGROUND
SJ testified that her father sexually assaulted her two years earlier when she was five years
old. She described that defendant called her into another room away from her siblings. He
instructed SJ to remove her clothes and then removed his own clothes. SJ described that defendant
then placed his penis into her vagina, answering in the affirmative that defendant “actually put [his
penis] inside . . . your private area, . . . inside where you pee.” SJ asserted that she bled from her
vagina after. SJ further described that defendant put his penis inside her mouth and touched it
against her butt. When SJ’s mother knocked on the door, her father instructed her to get dressed.
SJ indicated that she immediately told her mother about the abuse. However, SJ’s mother
did not contact the authorities. Rather, at some unknown point, SJ’s maternal grandmother
contacted Child Protective Services. SJ underwent a medical examination, but the record does not
-1-
indicate how much time passed between the assault and the exam. It appears that the examining
physician noted nothing out of the ordinary.
Defendant voluntarily came to the police station to speak with Officer Ernine Porter.
Defendant denied that he had sexual intercourse with SJ. However, he claimed that he awoke one
night and found SJ placing his penis in her mouth.
II. DOUBLE JEOPARDY
Defendant’s case proceeded to a jury trial in December 2018. The only witnesses at that
trial were SJ and Officer Porter. The jury began deliberating at 11:20 a.m. on the second day of
trial. The jury asked questions at 2:03 p.m. and 3:20 p.m., and was eventually excused for the
afternoon. The following morning, the jury indicated that it had been unable to reach a unanimous
verdict. At 10:50 a.m., the court instructed the jury consistent with M Crim JI 3.12 to “return to
the jury room and resume your deliberations in the hope that after further discussion, you’ll be
able to reach a verdict.” The court reminded the jurors to try to reach a decision “without violating”
their individual judgments or giving up their “honest beliefs” and to “carefully and seriously
consider the views of” the other jurors.
The jury submitted another note indicating that it was deadlocked at approximately 1:40
p.m. The court advised the attorneys that it intended to inquire “how long they’ve been
deadlocked” and whether “any further deliberations would bear fruit.” “That way . . . if there’s a
mistrial declared, at least there will be a record . . . .” Neither attorney had “[a]ny other thoughts”
and the jury was brought back into the courtroom.
Upon questioning, the jurors stated in unison that they had not reached a verdict on either
of defendant’s CSC charges and had been deadlocked since the previous day. They believed that
no unanimous verdict could be reached with further deliberation. The jury foreperson agreed that
the jurors had “a fundamental difference of opinion such that a verdict cannot be reached.”
Accordingly, the court declared a mistrial. In doing so, the court did not first ask the attorneys’
thoughts.
Defendant’s second jury trial was conducted in March 2019. SJ and Officer Porter again
testified. Agent Richard Buyse also testified that he was present during defendant’s statement and
corroborated Porter’s version of events. And defendant took the stand. This time the jury
convicted defendant as charged.
Defendant contends that the circuit court prematurely declared a mistrial absent manifest
necessity. As the mistrial was declared in error, defendant contends that the second trial violated
his right to be free from being twice placed in jeopardy for the same offense. Generally, we review
de novo double jeopardy issues and review with “great deference” the “[n]ecessarily intertwined”
issue whether the court properly granted a mistrial. People v Lett, 466 Mich 206, 212-213; 644
NW2d 743 (2002). However, defendant failed to preserve his challenge by objecting below and
our review is limited to plain error affecting defendant’s substantial rights. People v Meshell, 265
Mich App 616, 628; 696 NW2d 754 (2005).
Under both the federal and Michigan constitutions, a defendant may not be twice placed in
jeopardy for the same offense. US Const, Ams V, XIV; Const 1963, art 1, § 15; People v
-2-
Echavarria, 233 Mich App 356, 362; 592 NW2d 737 (1999). Jeopardy attaches when a jury is
empaneled. As such, “the Double Jeopardy Clause . . . protects an accused’s interest in avoiding
multiple prosecutions even where no determination of guilt or innocence has been made.” Lett,
466 Mich at 215. However, it is well settled that a second trial is not precluded when a mistrial is
declared based on “manifest necessity.” Id. “Manifest necessity is not a precisely defined concept
and must be determined case by case.” Echavarria, 233 Mich App at 363. “The constitutional
concept of manifest necessity does not require that a mistrial be ‘‘necessary’’ in the strictest sense
of the word. Rather, what is required is a ‘‘high degree’’ of necessity.” Lett, 466 Mich at 218. A
jury’s inability to reach a unanimous, impartial verdict, resulting in a deadlocked or hung jury is
the “prototypical example” of manifest necessity to declare a mistrial. Oregon v Kennedy, 456 US
667, 672; 102 S Ct 2083; 72 L Ed 2d 416 (1982); Lett, 466 Mich at 217; People v Ackah-Essien,
311 Mich App 13, 31; 874 NW2d 172 (2015).
At defendant’s first trial, the witnesses testified for only one hour and forty minutes. The
jury deliberated for considerably longer, approximately seven hours. Jurors asked several
questions. And yet, the jury could not reach a consensus. The jury first realized this predicament
on the first day of deliberation. The jurors tried to push through the impasse and continued their
deliberations before alerting the court. The jury deliberated for another two hours after the court
read the deadlocked jury instruction. The jurors then informed the court that they could not reach
a unanimous decision and would be unable to do so with additional deliberation. Only then did
the court declare a mistrial. On this record, the trial court did not abuse its discretion in determining
that a mistrial was manifestly necessary. As the trial court acted within its discretion in declaring
a mistrial, it did not violate defendant’s right to be free from double jeopardy by conducting a
second trial. Accordingly, defendant is not entitled to relief.
III. SUFFICIENCY OF THE EVIDENCE
Defendant next contends that the prosecution presented insufficient evidence at the second
trial that defendant sexually penetrated SJ, requiring reversal of his CSC-I convictions.
We review de novo a defendant’s challenge to the sufficiency of the evidence, “view[ing]
the evidence in the light most favorable to the prosecution to determine whether a rational trier of
fact could have found the essential elements of the crime to have been proved beyond a reasonable
doubt.” People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” Carines, 460 Mich at 758 (quotation marks and citation omitted). In
making our assessment, we do “not interfere with the factfinder’s role of determining the weight
of the evidence and the credibility of witnesses.” People v Kosik, 303 Mich App 146, 150; 841
NW2d 906 (2013). “It is for the trier of fact, rather than this Court, to determine what inferences
can be fairly drawn from the evidence and to determine the weight to be afforded to the inferences.”
Id. at 150-151.
To convict a defendant of CSC-I under MCL 750.520b(1)(a), the prosecutor must establish
that the defendant engaged in the sexual penetration of a person under the age of 13. MCL
750.520a(r) defines “sexual penetration” as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of another person’s body, but emission of semen is not required.”
-3-
The charges against defendant were based on SJ’s description of penile-vaginal penetration
and fellatio. At trial, SJ specifically described that defendant put his “wiener” or “dick” “inside”
“where you pee” and that she bled afterward. She also specifically testified that defendant placed
his penis “inside” her mouth. The victim’s testimony, standing alone, was sufficient to support
defendant’s convictions. MCL 750.520h. And the jury credited the victim’s testimony over
defendant’s bizarre claim that SJ initiated an act of fellatio. We may not interfere with the jury’s
assessment of the witnesses’’ testimony.
IV. THE CORPUS DELICTI RULE
Defendant argues that the admission of his police statement violated the corpus delicti rule
because there was no evidence of sexual penetration independent of his statement. Because
defendant did not object to the admission of his police statement on this basis below, our review
is limited to plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.
The corpus delicti rule provides that a defendant’s confession or other inculpatory
statements cannot be used to convict him of a crime unless there’s other proof that the offense
actually occurred. It protects a defendant from being convicted of an offense that no one
committed. See People v Williams, 422 Mich 381, 388; 373 NW2d 567 (1985). “Under the corpus
delicti rule, a defendant’s confession may not be admitted unless there is direct or circumstantial
evidence independent of the confession establishing (1) the occurrence of the specific injury and
(2) some criminal agency as the source of the injury.” People v Schumacher, 276 Mich App 165,
180-181; 740 NW2d 534 (2007) (cleaned up). And the rule does not bar the admission of
statements that are neither a confession nor an admission of some inculpatory fact. Id. at 181.
Defendant’s police statement was not the only evidence of sexual penetration in this case.
SJ’s testimony sufficiently established that sexual penetration occurred. Accordingly, the
admission of defendant’s statement did not violate the corpus delicti rule. Further, because an
objection to defendant’s statement on this ground would have been futile, defendant’s contention
that his attorney was ineffective in failing to seek preclusion is without merit. See People v
Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
V. JURY REQUEST TO REHEAR TESTIMONY
Defendant contends that during his retrial, the court improperly denied the jury’s request
to rehear defendant’s testimony during deliberations. Again, defendant did not contemporaneously
object and our review is limited to plain error affecting defendant’s substantial rights. Carines,
460 Mich at 763-764.1
1
At trial, defense counsel indicated that he did not object to the trial court’s responsive instruction,
but counsel did not affirmatively approve of the instruction. Therefore, we view this issue as
merely forfeited, rather than waived. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000);
People v Jackson (On Reconsideration), 313 Mich App 409, 420; 884 NW2d 297 (2015).
-4-
After only a few hours of deliberations, the jury asked to rehear defendant’s testimony.
The trial court responded as follows:
Um, we don’t have the ability.
As you can see, we have a busy courtroom and the court reporter can’t, uh,
you know, just very quickly, uh, provide you with a transcript, uh, from, uh, the
recently held trial and so, um, if you really need it, it’s gonna take days. So, what
I would of [sic] suggest is you rely on your collective memory and your notes, um,
as it relates to Mr. Jones’ testimony.
The court provided the jury with other requested materials and the jury resumed its deliberations.
Approximately two hours later, the jury reached a verdict.
MCR 2.513(P) provides:
If, after beginning deliberation, the jury requests a review of certain
testimony or evidence that has not been allowed into the jury room under subrule
(O), the court must exercise its discretion to ensure fairness and to refuse
unreasonable requests, but it may not refuse a reasonable request. The court may
make a video or audio recording of witness testimony, or prepare an immediate
transcript of such testimony, and such tape or transcript, or other testimony or
evidence, may be made available to the jury for its consideration. The court may
order the jury to deliberate further without the requested review, as long as the
possibility of having the testimony or evidence reviewed at a later time is not
foreclosed.
Pursuant to this court rule, a defendant does not have an absolute right for the jury to rehear
testimony; that decision is left to the trial court’s discretion. People v Carter, 462 Mich 206, 218;
612 NW2d 144 (2000). But if a jury requests to rehear testimony, a court cannot instruct the jury
in a manner that precludes the possibility of later review of the testimony. Id. at 208.
The trial court properly instructed the jury to deliberate further without the requested
testimony. Because the jury had been deliberating for only a short time when it made the request
and a transcript was not immediately available, it was appropriate for the court to instruct the jury
to rely on its collective memory and notes. Further, the court’s instruction communicated that a
transcript could be provided if the jury “really need[ed] it,” but that it would take some days to
prepare. As the court did not foreclose the possibility that the jury could obtain a transcript or
rehear the testimony in the future, defendant is not entitled to relief. See People v McDonald, 293
Mich App 292, 297; 811 NW2d 507 (2011).
VI. CONSECUTIVE SENTENCING
Finally, defendant challenges the trial court’s imposition of consecutive 25-to-55-year
sentences for his two CSC convictions.
In Michigan, concurrent sentencing is the norm, but consecutive sentences may be imposed
if specifically authorized by statute. People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012).
-5-
MCL 750.520b(3) provides such authority in CSC-I cases: “[t]he court may order a term of
imprisonment imposed under this section to be served consecutively to any term of imprisonment
imposed for any other criminal offense arising from the same transaction.” We review for an abuse
of discretion a court’s decision to impose consecutive sentences that are authorized by statute.
People v Norfleet, 317 Mich App 649, 654; 897 NW2d 195 (2016). To allow for appellate review,
a trial court exercising its discretion in this manner must “articulate on the record the reasons for
each consecutive sentence imposed.” Id. “[R]equiring trial courts to justify each consecutive
sentence imposed will help ensure that the ‘strong medicine’ of consecutive sentences is reserved
for those situations in which so drastic a deviation from the norm is justified.” Id. at 655.
In Norfleet, 317 Mich App at 666, “the trial court spoke only in general terms, stating that
it took into account defendants ‘background, his history, [and] the nature of the offenses
involved.’ ” Here, the trial court stated:
All right. So, uh, I think this is a pretty egregious case. Uh, we have a
situation where the defendant . . . sexually assaulted his five year old daughter not
once, but twice, uh, arising out of the same incident. Uh, penetrated her in her
mouth and vagina and has offered a defense, that’s his right certainly, and I’m not
going to hold that against him, uh, that this was all just a big misunderstanding and
mistake, uh, leading to his conviction.
I think the defense, uh - - I think the jury was right, defense, um, lacks
credibility. And I don’t think its reasonable to believe that a five year old girl, um,
is going to engage in sexual conduct, uh, absent, um, it being forced upon her.
And certainly I think she offered very credible testimony at the trial. Um,
her testimony that she was taken out of a room, uh, with her siblings and, uh, forced
to engage in sexual acts with her father, uh, certainly more credible than the story,
uh, offered by the defense that somehow he was asleep, uh, in bed in a drunken
state and that he was, uh, awaken to having his daughter’s, uh, mouth on his penis.
Uh, to say that I think that is absurd is an under statement [sic]. Um, and I
think, you know, the verdict, uh, reflects, uh, the strength of [defendant’s] defense
and the absurdity of it.
Uh, I think he is nothing less than a sexual predator. And understanding
that, um, I’m gonna sentence him to 25 to 55 on Count 1, and 25 to 55 on Count 2.
Count 2 is to run consecutive to Count I.
The court’s reasons for imposing a consecutive sentence were nothing more than “general
terms” that were insufficient to support its decision. The court described this as “a pretty egregious
case,” discussed the incredibility and absurdity of the defense theory, determined that the victim
“offered very credible testimony,” and deemed defendant “nothing less than a sexual predator.”
The court did not explain how this case involving a single incident of sexual assault was more
egregious than other CSC-I cases, such as a case of prolonged abuse, or how defendant’s acts made
him more predatory than a defendant in a similar child sex abuse case. Moreover, conflicting
testimony creating a credibility contest is common in many challenged criminal matters. On this
-6-
record, the trial court did not adequately support the imposition of a consecutive rather than a
concurrent sentence and therefore, we cannot find that the court acted within its discretion. We
must vacate defendant’s sentences and remand for further consideration.
We affirm defendant’s convictions, but vacate his sentences and remand for further
consideration of his sentences. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
-7-