Mistrial; Prosecutorial error; Other-acts evidence; MRE 404(b); Distinguishing People v Ullah; Curative instruction; Consent instruction; Right to present a defense; M Crim JI 20.27; CSC III under MCL 750.520d(1)(b); CSC IV under MCL 750.520e(1)(b); Force or coercion; Right to testify; Waiver; People v Bonilla-Machado; Ineffective assistance of counsel; Strickland v Washington; Scoring of OV 8; MCL 777.38(1)(a); Asportation or captivity; People v Barrera; Resentencing; People v Francisco

The court held that defendant-Hniker was not entitled to a mistrial, consent instruction, or new trial based on right-to-testify or ineffective-assistance claims, but was entitled to resentencing because OV 8 was improperly scored. Hniker was convicted of CSC III and CSC IV after the victim testified she awoke on his couch to nonconsensual sexual contact. The trial court denied his mistrial motion after the victim made an unsolicited other-acts comment, refused a consent instruction, declined to reopen proofs after he had waived his right to testify, and scored 15 points for OV 8. On appeal, the court held a mistrial was not warranted because the challenged testimony was in answer to a “single, open-ended” proper question, was immediately stricken, and was not intentionally elicited by the prosecutor. The court next held that the consent instruction was unsupported because there was “nothing to suggest” the victim was awake and consenting when the sexual contact began, and the force-or-coercion instructions sufficiently protected Hniker’s rights. It also rejected his right-to-testify and ineffective-assistance claims because he knowingly waived testimony and failed to show prejudice. But the court held that OV 8 was improperly scored because the victim voluntarily went to the apartment, there was no evidence she was moved to greater danger, and “[n]o asportation occurred.” Affirmed, but remanded for resentencing.