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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAWAN ALAN BOWDEN, Defendant-Appellant.

UNPUBLISHED December 13, 2011

No. 299018 Kalamazoo Circuit Court LC No. 09-001568-FC

Before: MARKEY, P.J., and FITZGERALD and BORRELLO, JJ. PER CURIAM. A jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b (helpless or incapacitated victim; victim injured), and the trial court sentenced as a fourth habitual offender, MCL 769.12, to a prison term of 12 to 36 years. Defendant appeals as of right. We affirm. Defendant's conviction arises from the sexual assault of the 16-year old victim during the early morning hours of June 9, 2008, at a hotel in Kalamazoo following a party at which the victim became intoxicated to the point of losing consciousness. Forensic evidence established that multiple men engaged in sexual intercourse with the victim. Defendant did not deny that he was one of these men, but he asserted that he and the victim engaged in consensual intercourse before the party began. At trial, the victim testified that she thought of defendant as her brother because his father and her mother had dated for eight years and that she did not have any romantic relationship with defendant. She was present at the hotel at defendant's invitation to swim in the hotel's pool. She testified that she participated in a drinking game and that defendant encouraged her to drink a substantial number of shots of tequila and/or vodka. She denied engaging in consensual intercourse with anyone while at the hotel. More than three hours after she was last seen consuming alcohol, the victim's blood alcohol content was .37. Hotel surveillance recordings established that defendant was alone with the victim on two separate occasions after she was rendered unconscious by alcohol intoxication. The jury convicted defendant of one count of criminal sexual conduct and acquitted him of a second count. Defendant first argues that he was denied a fair trial by the presence on the jury of a juror who advised the trial court that, over the previous 20 years, his "entire social network and circle friends [were] police officers, detectives, command officers for the City of Kalamazoo" and that he knew one of the investigating officers socially. We disagree. -1-

This Court reviews defendant's unpreserved challenge to the presence of the juror on the panel for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). An unpreserved error is not a ground for reversal unless the defendant can demonstrate that the error was plain, that it affected the outcome of defendant's trial, and that it resulted in the conviction of an actually innocent person or that it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of defendant's innocence." Id. (citation omitted). A criminal defendant has a constitutional right to be tried by a fair and impartial jury. US Const, Am VI; Const 1963, art 1,

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