Ineffective assistance of counsel; Failure to request a jury instruction on consent as a defense to CSC I; Trial strategy; Whether defendant was denied due process when the charges from both assaults were joined & he was tried jointly; Plain error review; People v. Carines; People v. Traver; MCR 6.120

Holding that defendant was not denied the effective assistance of counsel, and was not denied due process when the charges from both assaults were joined and he was tried jointly, the court affirmed his convictions. The case involved “sexual assaults that occurred at the same location, but on different dates and against different individuals.” Defendant argued that counsel was ineffective for failing to request a jury instruction on consent as a defense to CSC I. The evidence did not support a jury instruction on consent as to either of the assaults. “Both victims testified that, even though they initially met with defendant for the purpose of at least possibly exchanging money for sex, they immediately sought to leave after entering the house. The evidence indicated that defendant prevented both victims from leaving the house by use of weapons and physical force.” Further, it indicated that he forced them “to engage in multiple sexual acts. Both victims testified that they did not want to engage in the acts, and they both testified that they complied out of fear. The mere idea that the victims might have been open to engaging in sexual acts at one time—without more—simply does not support the necessity of a jury instruction on consent.” Thus, defense “counsel did not err by failing to request such an instruction.” Moreover, the court noted that “the trial court did instruct the jury that in order to convict defendant of the CSC I charges, it had to find that the prosecution proved beyond a reasonable doubt that defendant engaged in sexual penetration while he was armed with a weapon, or led a victim to reasonably believe that he was armed with a weapon.” The evidence established that he “did indeed engage in sexual penetration while armed with a weapon. Even if the jury had been instructed on consent as a defense, it is not reasonably probable that a different result would have occurred.”