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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee/Cross-Appellant, v WILLIAM WESLEY DEVINE, Defendant-Appellant/CrossAppellee.

UNPUBLISHED November 22, 2005

No. 256185 Livingston Circuit Court LC No. 03-013877-FH

Before: Donofrio, P.J. and Zahra and Kelly, JJ. PER CURIAM. Defendant was charged with third-degree criminal sexual conduct (CSC-III) MCL 750.520d(1)(b) (force or coercion), and assault with intent to penetrate, MCL 750.520g(1). After a jury convicted defendant of both charges, defendant moved to vacate his conviction for assault with intent to penetrate on the grounds that convictions on both counts violated his right against double jeopardy. The trial court granted defendant's motion. For the CSC-III conviction, the trial court sentenced defendant, as a third-offense habitual offender, MCL 769.11, to 5 to 30 years in prison. Defendant appeals as of right his conviction. Plaintiff cross-appeals the trial court's double jeopardy ruling. We affirm. Defendant first argues that the trial court erred when it allowed the prosecutor to elicit testimony from the victim regarding a threat she heard of through her boyfriend. Defendant contends that admission of this testimony was improper because (1) there was no evidence linking defendant to the threat and (2) the probative value of the testimony was outweighed by its potential for unfair prejudice. We disagree. At trial, the prosecutor questioned the victim about the impact made on her by a threat that was related to her by her boyfriend. The victim testified that being informed of the threat made her unwilling to testify because she was afraid for herself and her daughter. Defendant objected on the basis of hearsay and relevance. The prosecutor argued that the testimony was offered to establish the victim's credibility. Because defendant did not specify the same grounds for challenge that he asserts on appeal, he has not preserved the claim raised on appeal. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). We review unpreserved evidentiary errors for plain error affecting a

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defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In contending that the prosecution was required to establish a link between the threat and defendant, defendant relies on People v Sholl, 453 Mich 730, 740; 556 NW2d 851(1996), in which our Supreme Court held that "A defendant's threat against a witness is generally admissible. It is conduct that can demonstrate consciousness of guilt." (Emphasis added.) However, in Sholl, the prosecution offered evidence of a threat made by the defendant to prove the defendant's consciousness of guilt. In this case, on the other hand, the prosecutor offered testimony about a threat made by someone to show that the witness was credible when she testified despite the fear caused in her by the threat. The prosecutor was not required to show a link between defendant and the threat when the evidence was offered for this purpose. Defendant also argues that the evidence should have been excluded under MRE 403 because its probative value was outweighed by its potential for unfair prejudice. We disagree. The victim's credibility was particularly probative in light of the evidence that the victim invited defendant into her home after the victim and defendant had been drinking and when there was little other corroborating evidence. The testimony about the threat caused no unfair prejudice to defendant because there was no evidence or even suggestion that the threat was linked to him. Defendant has failed to show a plain error in the admission of the victim's testimony about the threat.1 On cross appeal, plaintiff argues that the trial court erred in determining that his convictions for CSC-III and assault with intent to commit criminal sexual penetration violated double jeopardy protections. We disagree. "A double jeopardy challenge presents a question of law that we review de novo." People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). The federal and state guarantees of protection against double jeopardy are basically identical and protect a defendant against both successive prosecutions for the same offense and multiple punishments for the same offense. People v Nutt, 469 Mich 565, 574-575; 677 NW2d 1 (2004). "There is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other." People v Lugo, 214 Mich App 699, 708; 542 NW2d 921 (1995). Plaintiff asserts that there was no double jeopardy violation in this case because the assault was a distinct act that was completed before the penetration occurred. In support of its position, plaintiff relies on People v Swinford, 150 Mich App 507, 511; 389 NW2d 462 (1986), in which the defendant engaged in a car chase with the victim ultimately running her off the road. The defendant exited his car, and approached the victim. Id. He then "pulled the [victim] to the back seat of the car and proceeded to commit various acts of criminal sexual conduct. After threatening to kill her, the [defendant] drove away in his car." Id. The defendant was

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Furthermore, any error that may have arisen as a result of the unlimited admission of the disputed evidence could have been easily cured by a cautionary instruction pursuant to MRE 105. People v Bahoda, 448 Mich 261, 291 n 61; 531 NW2d 659 (1995). When defendant failed to request such an instruction, we cannot find error requiring reversal. Id.

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convicted of assault with intent to commit criminal sexual conduct involving penetration and first-degree criminal sexual conduct. Id. On appeal, the defendant argued that these convictions violated his right against double jeopardy. Id. at 515. This Court disagreed and determined that the defendant was convicted of the assault charge based on his actions during the car chase and the criminal sexual conduct charge arose out of the defendant's actions after the cars had come to a stop. Id. at 515-516. This Court stated, "Since each offense occurred separately, defendant was not subject to double jeopardy." Id. at 516. Plaintiff also relies on People v Colon, 250 Mich App 59, 63; 644 NW2d 790 (2002), in which the defendant broke into the victim's home and, over the course of 1

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