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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v FRANK DOUGLAS HENDERSON, Defendant-Appellant.

UNPUBLISHED June 21, 2011

No. 297994 Ingham Circuit Court LC No. 08-001406-FH

Before: WHITBECK, P.J., AND MARKEY AND K. F. KELLY, JJ. PER CURIAM. A jury convicted defendant Frank Henderson of three counts of third-degree criminal sexual conduct (CSC III).1 The trial court sentenced Henderson as a third habitual offender2 to serve concurrent prison sentences of 15 to 25 years on each count. Henderson appeals as of right. We affirm. I. FACTS Henderson's convictions arose as a result of two separate sexual assaults that occurred at the home of the complainant's aunt. Henderson was a frequent visitor at the aunt's home during the time period in question. The first assault occurred in July or August 2008. The complainant testified that Henderson came in to the room that she shared with her brother and cousin and told her that her aunt wanted to see her. However, instead of taking her to her aunt, Henderson pulled the complainant into an unoccupied bedroom, where he pushed her onto the bed, removed her clothes, and penetrated her vagina with his finger and his penis. The complainant said that Henderson stopped when one of the other children in the home at the time was seen in the doorway. The complainant, then 14 years old, did not immediately notify an adult about the encounter, but instead told her two younger relatives not to tell anyone what they had seen. At trial, the relatives testified that they had witnessed the complainant and Henderson together in a room at the aunt's home. Henderson's brother specifically stated that he heard his sister crying and saw Henderson moving up and down on top of her.

1 2

MCL 750.520d(1)(a) (victim between 13 and 16 years). MCL 769.11. -1-

The next incident occurred in September 2008, when the complainant again stayed at her aunt's house. When complainant learned that Henderson would be present without any other adults at the home, she asked her older cousin to stay, but he refused. Later, Henderson tried to engage the complainant in conversation, and she tried to leave the room. He prevented her from leaving, pulled her onto the bed, pushed her clothes down, and again penetrated her vagina with his finger and his penis. Afterward, the complainant observed bleeding in her vaginal area. She did not immediately report this incident either. However, in November 2008, she eventually told her mother what had occurred, which led to an investigation and the trial at issue in this appeal. II. 180-DAY RULE A. STANDARD OF REVIEW Henderson argues that his convictions must be vacated because he was not brought to trial within 180 days. This Court reviews de novo interpretation and application of the 180-day rule.3 B. LEGAL STANDARDS MCL 780.131--the 180-day rule--provides, in part, as follows: Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint.[4] MCL 780.133 in turn divests the court of personal jurisdiction if the provisions of MCL 780.131 are not complied with.5 C. APPLYING THE STANDARDS Despite the fact that Henderson's trial occurred more than 15 months after he was taken into custody, he is not entitled to relief under the 180-day rule. Henderson's reliance on MCL 780.131 is misplaced. This Court has held that MCL 780.131 is applicable only to prisoners serving time in a state penal institution and is not applicable to individuals awaiting trial in a county jail.6 Here, Henderson has not alleged that he was an inmate of a correctional facility at
3 4 5 6

People v McLaughlin, 258 Mich App 635, 643; 672 NW2d 860 (2003). Emphasis added. People v Lown, 488 Mich 242, 247; 794 NW2d 9 (2011). McLaughlin, 258 Mich App at 643-644. -2-

any time from the date the charges in the instant case were filed. Rather, the parties indicate, and the lower court record confirms, that Henderson was detained in the Ingham County jail before trial. Accordingly, Henderson is not entitled to relief under MCL 780.131. Likewise, Henderson is not entitled to relief under MCR 6.004(D)(1), the counterpart to MCL 780.131, because that rule also explicitly limits its applicability to state prisoners.7 Thus, Henderson is not entitled to reversal of his convictions for failure to be tried within 180 days of his arrest. Additionally, we note that, in arguing this issue in his brief on appeal, Henderson at times frames this issue as implicating his constitutional right to a speedy trial.8 It is important to clarify that the 180-day rule and the speedy trial right are two separate concepts. The 180-day rule is a creation of statute and court rule, whereas the right to a speedy trial is guaranteed by the United States and Michigan constitutions. When a defendant claims a violation of the right to a speedy trial, a trial court must consider four factors: "(1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of the right, and (4) any prejudice to the defendant."9 As to the fourth element, when the delay is less than 18 months, the defendant bears the burden to prove prejudice.10 Here, Henderson's trial occurred more than 15 months--but less than 18 months--after he was taken into custody. Thus, to the extent that he raises his constitutional right to a speedy trial, he bears the burden to prove prejudice from the delay. However, in making his argument on appeal, Henderson relies solely on the authority provided by the 180-day rule in MCL 780.131 and MCR 6.004(D)(1), and does not raise the issue of prejudice. Thus, to the extent that Henderson challenges his trial delay on constitutional grounds, that argument fails. III. EVIDENTIARY RULING A. STANDARD OF REVIEW Henderson argues that the trial court improperly denied his request for an evidentiary hearing related to a sexually transmitted infection (STI) that the complainant contracted but that Henderson claimed he had not. We review the trial court's decisions to admit or exclude evidence for an abuse of discretion.11 Likewise, a trial court's decision related to a motion for an evidentiary hearing is reviewed for an abuse of discretion.12

7 8

See id. at 644 n 2.

US Const, Am VI; Const 1963, art 1,

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