PEOPLE OF MI V CLEOTHA WOODS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 14, 1998
Plaintiff-Appellee,
v
No. 199255
Recorder’s Court
LC No. 96-001360
CLEOTHA WOODS,
Defendant-Appellant.
Before: Saad, P.J., and Wahls and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial convictions of six counts of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(e-f); MSA 28.788(2)(1)(e-f), and one count of
assault with intent to do great bodily harm, MCL 750.84; MSA 28.279. He was sentenced to twenty
five to fifty years’ imprisonment for each CSC I conviction and five to ten years’ imprisonment for the
assault with intent to do great bodily harm conviction, the sentences to run concurrently. We affirm in
part but vacate two of defendant’s CSC I convictions.
I
Defendant first argues that he was denied his constitutional right to present a defense when the
trial court refused to admit evidence concerning his history of mental illness, and his trial counsel was
ineffective for failing to adequately investigate and present the defenses of diminished capacity and
insanity. We disagree with both contentions.
Whether defendant’s right to present a defense was violated by the exclusion of evidence is a
constitutional question. We review constitutional questions de novo. People v Pitts, 222 Mich App
260, 263; 564 NW2d 93 (1997). A criminal defendant has a right under the federal constitution to
confront witnesses and to present a defense. People v Whitfield, 425 Mich 116, 124-125 n 1; 388
NW2d 206 (1986). However, the right to confront witnesses and to present a defense extends only to
relevant and admissible evidence. People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984).
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In the present case, defendant has failed to present any argument concerning whether the
proffered evidence was relevant to his defenses of insanity and diminished capacity. This issue has
therefore been abandoned. People v Kent, 194 Mich App 206, 209-210; 486 NW2d 110 (1992).
Moreover, the proffered evidence is not relevant to the defenses of insanity or diminished capacity.
Relevant evidence means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without
the evidence. MRE 406. The fact that defendant may have received treatment for mental illness at
some point in his life does not tend to establish that he was legally insane or under diminished capacity
during the precise period of time in question. Because the proffered evidence was not relevant, the
constitutional right to present a defense was not implicated by the trial court’s exclusion of such
evidence.
Defendant’s ineffective assistance claim based on his counsel’s failure to investigate and present
the insanity and diminished capacity defenses is not supported by the record. Because defendant failed
to move for a new trial or an evidentiary hearing on this basis below, appellate review is foreclosed
“unless the record contains sufficient detail to support defendant’s claims, and, if so, review is limited to
the record.” People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995). A defendant
claiming ineffective assistance of counsel based upon defective performance has the burden of showing
that counsel’s performance fell below an objective standard of reasonableness and that there is a
reasonable probability that but for the alleged errors the result of the proceeding would have been
different. People v Mitchell, 454 Mich 145, 157-158; 560 NW2d 600 (1997). Also, the defendant
has the burden of overcoming the presumption that the challenged action constituted sound trial strategy.
Id. at 156.
There is no indication in the record that defense counsel failed to fully investigate and present the
defenses of insanity and diminished capacity. Although defendant has appended an affidavit and
supporting documentation on this issue to his brief on appeal, we cannot consider such materials
because our review is limited to the record as it existed at trial. Barclay, supra at 672. We note that
the record does indicate that an independent analysis apparently did not support defendant’s insanity
and diminished capacity defenses. Furthermore, defense counsel’s cross-examination of witnesses and
closing argument demonstrate that he presented the insanity and diminished capacity defenses as best he
could under the circumstances. Since there is no indication in the record that counsel’s performance fell
below an objective standard of reasonableness, defendant’s claim for ineffective assistance of counsel
must fail. Mitchell, supra at 157-158.
II
Defendant’s second argument is that the trial court abused its discretion by admitting evidence
of other bad acts committed by him and that counsel’s failure to object to such evidence constituted
ineffective assistance of counsel. Most of defendant’s allegations of error on this issue are without merit
because the purported “evidence” of bad acts was in fact never admitted. The volunteered testimony of
one of the victims that defendant had, on a prior occasion, tied her up and left her nude in the basement
overnight was stricken from the record. Moreover, contrary to defendant’s assertion on appeal, no
evidence was admitted indicating that defendant had previously raped and assaulted the victim’s
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daughter and beaten the victim on a prior occasion. The prosecutor merely asked defendant whether he
had done such things, and defendant replied that he had not. No evidence was presented to contradict
defendant’s denials. The prosecutor’s question did not itself constitute evidence. There is no reason to
believe that the trier of fact, here the trial court, impermissibly considered matters that were not admitted
into evidence when reaching its verdict. Defendant’s argument concerning evidence of these bad acts is
therefore without merit.
However, evidence was admitted that defendant fled after the crime to St. Louis with false
identification, and that he barricaded himself into a house and threatened to kill himself when the FBI
intercepted him. We conclude that such evidence was admissible as evidence of flight. People v
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). The fact that defendant fled after committing
the crime may indicate his consciousness of guilt. Id. Moreover, the details of his escape, including
criminal actions, were also admissible as part of the res gestae of the escape. Id. at 4-5. Use of false
identification is a means to avoid detection while a fugitive from justice and is related to defendant’s
escape. Defendant’s act of barricading himself in a home to avoid capture was also part of the res
gestae of his flight from the authorities. This evidence was properly admitted.
Defendant’s argument that his counsel was ineffective in handling the admission of this evidence
fails. Defense counsel objected to the admission of evidence concerning defendant’s use of a false
name and barricading himself in a home. Counsel’s performance with regard to such evidence thus did
not fall below an objective standard of reasonableness. As previously noted, the other evidence of bad
acts was in fact never admitted. Therefore, even if counsel had objected to the prosecutor’s questions,
there is no reason to believe that a different result at trial would have been reached.
III
Finally, defendant argues that he received six CSC I convictions for only three acts of sexual
penetration and that three of his convictions therefore must be vacated. This issue was not raised before
the trial court. However, we may consider this issue because the question is one of law and the record
is factually sufficient. People v Brown, 220 Mich App 680, 681; 560 NW2d 80 (1996). We review
questions of law de novo. People v Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995).
Under MCL 750.520b; MSA 28.788(2), a person who engages in sexual penetration with
another may be convicted of CSC I when any one of several aggravating circumstances exist. The two
aggravating circumstances at issue in the present case are the use of a weapon, MCL 750.520b(1)(e);
MSA 28.788(2)(1)(e), and personal injury to the victim when force or coercion is used, MCL
750.520b(1)(f); MSA 28.788(2)(1)(f). When enacting the CSC I statute, the Legislature did not intend
for a single act of penetration accompanied by more than one aggravating circumstance to result in
multiple convictions. People v Johnson, 406 Mich 320, 323; 279 NW2d 534 (1979).
Defendant was charged with six counts of CSC I: three counts involving use of a weapon
(including one count each for penetration of the victim’s mouth, vagina, and anus) and three counts
involving personal injury (again including one count each for penetration of the victim’s mouth, vagina,
and anus). According to the evidence presented at trial, defendant inserted his penis into the victim’s
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mouth and anus only once. There were three penetrations of the victim’s vagina, but only two such
penetrations were charged in the information. We therefore conclude that there was only evidence to
support four of the six CSC I convictions. We therefore vacate two of defendant’s CSC I convictions.
Two of defendant’s six CSC I convictions are vacated. The remaining convictions and
sentences are affirmed. We remand to the trial court for the ministerial task of correcting defendant’s
judgment of sentence. The trial court shall ensure that the corrected judgment of sentence is transmitted
to the Department of Corrections. Brown, supra at 685. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Myron H. Wahls
/s/ Hilda R. Gage
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