Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Shorter

Court of Appeals of Michigan

June 7, 2018

DAKOTA LEE SHORTER, Defendant-Appellant.

          Ingham Circuit Court LC No. 16-000519-FH

          Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.

          Shapiro, P.J.

         Defendant appeals his jury conviction of third-degree criminal sexual conduct (CSC-III) (incapacitated complainant), MCL 750.520d(1)(c), and fourth-degree criminal sexual conduct (CSC-IV) (incapacitated complainant), MCL 750.520e(1)(b). The trial court sentenced defendant to 30 to 180 months' imprisonment for the CSC-III conviction and 12 to 24 months' imprisonment for the CSC-IV conviction. On appeal, defendant argues that the trial court erred by granting the prosecution's motion to allow the complaining witness to testify while accompanied by a support dog and its handler. We agree, and so reverse and remand for a new trial.


         The incident giving rise to the charges occurred early in the morning of May 1, 2016, in complainant's home in a mobile home community. Complainant and defendant both testified at trial, and their testimony about the events of the day are generally consistent until the point in time when they prepared to go to sleep. Complainant and defendant, along with two other friends, traveled to a rodeo together in complainant's car. The group had planned to camp nearby that night after the rodeo, but it rained and they decided to drive home instead. Defendant drove the group home in complainant's car and dropped off the other two friends first. When they arrived at complainant's home, it was about 4:30 a.m., so she told defendant that he could sleep on an air mattress at her home that night and that she would drive him to his house when they woke up. Defendant and complainant had known each other for some time as friends. They had never spent the night together or had any sexual contact with each other, although they both agreed that they had been flirting during the day. After entering the complainant's home, they discovered that the air mattress had been left in the car and because it was raining, neither wanted to go back outside to get it. Complainant answered a phone call and sat on her bed when conversing. During that time, defendant lay down with his head on her upper leg, and complainant did not object. From this point in the chronology, the complainant's and defendant's testimony differ significantly.

         Complainant testified that she told defendant that he could sleep with her in her queen-sized bed but that she would not engage in any sexual contact. She testified that "[w]e agreed that we could-as both adults we could sleep in my bed without being intimate, and I made that very clear to him." She explained that they dressed in separate rooms, and that she was clothed in leggings and a t-shirt with a bra underneath. According to complainant, at about 6:30 a.m., she woke to the sound of her roommate leaving for work, and discovered that defendant was sexually assaulting her. She testified that "[w]hen I woke up to my roommate leaving for work, I was on my back and [defendant] was to the left of me and he had unfastened my bra and his left hand was in my pants." She explained that defendant had pulled down the front of her leggings, that he was penetrating her vagina with his fingers, and that his other hand was underneath her shirt and bra on her breast. Complainant stated she was "terrified, " and immediately jumped up, told defendant she needed to go to the bathroom, and went to the end of the hallway to her roommate's room to seek help from Tyler Johnson, her roommate's boyfriend.

         Defendant's testimony as to what occurred before they fell asleep differed from complainant's only in that he testified that she did not make any statements about not wanting to have any sexual contact. Defendant testified, however, that he did not expect that there would be any sexual activity and that they changed clothes in separate rooms. Defendant testified that he was awakened by the sounds of the roommate leaving, and that when he awoke; he found that complainant had wrapped herself around him, i.e. she had "cuddled up" to him. According to defendant, complainant's leg was across his waist and her head was on his chest. He stated that he attempted to roll her off him by pushing her hip and thigh, but that she "snuggled" back. He admitted that he kissed her on the forehead. Defendant testified that he then fell back asleep. He testified that there had been no sexual contact that the complainant's behavior after she awoke was a complete surprise, and that he did not understand it. On cross-examination, he agreed that he did not have the complainant's consent to do anything sexual, and repeated that he had not done so. He was also asked about statements he had made to the officer that the prosecution argued were inconsistent with his testimony. Defendant agreed that he told the officer that he touched complainant's butt and thigh, and explained that this occurred while he was attempting to move her off him. When asked whether he had admitted to the officer that he had touched complainant's belly and back under her shirt, defendant denied making such a statement. Defendant also testified that he could not offer a reason why the complainant would make up the charges against him.

         Johnson, complainant's housemate's boyfriend, testified that when complainant entered his room that morning, she was so upset that he could barely understand her. Because Johnson's phone was dead, he and complainant walked to the park manager's home to call the police. The manager described complainant's emotional state as "absolutely hysterical to the point I couldn't understand her." He concluded that complainant was saying that there was a dead body in her bed and he informed the police of this in his 911 call. The manager testified that he then walked back to complainant's house just as defendant was coming out the door and he told defendant that he should come with him because he had been reported as dead. Finally, he testified that when he and defendant reached his house, he asked defendant if he had done something wrong and defendant responded, "Yea, I did."[1] The police officers, who testified, agreed that the complainant was very upset when they arrived. One officer testified that "[s]he was shaking and her breathing was to the point where almost hyperventilating."

         After giving her statement to the police, the complainant went to Sparrow Hospital for a sexual assault examination. The sexual assault nurse examiner found no injury to the complainant's vaginal area. A DNA test of the surface of her breast revealed male DNA, but upon testing, it was concluded that the DNA did not belong to defendant. Before the start of trial, the prosecutor and defense counsel informed the court of these results, and the parties agreed that it was not necessary to present a full chain of custody for the DNA.

         It appears uncontested that the defense counsel was not informed prior to trial that the prosecution intended to have complainant testify while accompanied by a support dog and the animal's handler. It was first raised during voir dire when the prosecutor asked potential jurors about the possibility of a support animal in the courtroom while the complainant testified. On the following trial day, before opening statements, the prosecution raised the issue again. When the judge learned that in addition to the dog, a handler would have to be present next to the witness stand to hold the dog's leash, she expressed concern about whether there was evidence of a "necessity for that support animal." Defense counsel objected to the use of a support dog noting that there had to be "some basis for the need for that animal to be here. You know, I usually experience this in kid's cases or something of that nature, and we're dealing with an adult woman. I'm not sure if there's some special exception that gives rise to the need for this, but at this point I would ask that she testify solely on her own." The trial court citing People v Johnson, 315 Mich.App. 163; 889 N.W.2d 513 (2016), stated that "there should be some kind of a showing of a need that it would promote the expeditious and effective ascertainment of the truth." The prosecution responded:

Judge, I think my response to that is that it will limit her emotional outbursts when she's testifying. This is a victim who has been teary eyed multiple times when I've spoken to her, without even getting into, you know, the facts of what occurred to her and the actual testimony that she will be giving. We did a trial preparation meeting at my office last week where Preston, the dog, was present. She was less emotional with him in the room. She indicated she felt more comfortable and that is something that she wants. I think that it-it would be a benefit to both sides to have her control her emotions through the use of the support dog.

         The trial court then granted the prosecution's request, concluding, "That's sufficient for this Court in that it will limit her emotional display on the stand. I agree that that could even be beneficial to the Defendant. And that there's already been, sort of, a trial run with the dog and it's been a successful one at that. So, I think that's a sufficient basis for her to use the support animal while testifying."

         When instructing the jury at the outset of the complainant's testimony and, again, at the end of the trial, the court instructed the jury that you must "not allow the use of a support animal to influence your decision in any way, " and that "you should not consider the witness's testimony to be any more or less credible because of the animal's presence." Closing arguments focused on the credibility of the complainant and defendant, and who the jury should believe. The jury returned, after several hours, and advised the court that they had reached a verdict as to the CSC IV charge, but not as to the CSC III charge. The court gave them the deadlocked jury instruction; they resumed deliberations, and sometime later, returned a verdict of guilty on both counts.

         II. ANALYSIS

         Defendant contends that the trial court erred in allowing the complainant to testify while accompanied by a support animal and its handler.[2]

         In making its ruling, the trial court relied on People v Johnson, 315 Mich.App. 163; 889 N.W.2d 513 (2016). In that case, the defendant was accused of sexually assaulting his six-year-old niece, and the trial court permitted a support dog to be with the six year old and her ten-year-old brother during their testimony. Id. at 171-172. The defense appealed on the ground that allowing the support dog was improper. Id. at 173. The Johnson Court affirmed the conviction finding no error and concluding, as a matter of first impression that allowing the use of a support dog is within the authority of a trial court and is not "inherently prejudicial." Id. at 181. Johnson also held that pre-trial notice of an intent to use a support ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.