Background
Adil Hniker was convicted of third- and fourth-degree criminal sexual conduct involving force or coercion. The complainant testified that she fell asleep on Hniker’s couch and awoke partially undressed while he was digitally penetrating her. Hniker had denied touching her and asserted that his DNA would not be found on her, but testing identified his DNA on swabs from her neck and genitalia.
During trial, the complainant volunteered that she reported the assault because she knew Hniker had “tried to do it with other people.” The court immediately struck the statement but denied Hniker’s motion for a mistrial. The court also declined to instruct the jury on consent and, after Hniker expressly waived his right to testify and both sides rested, declined to reopen the proofs. Hniker received concurrent sentences of 4 to 15 years for CSC-III and one to two years for CSC-IV.
The Court’s Holding
The Court of Appeals affirmed the convictions. It held that the trial court did not abuse its discretion by denying a mistrial because the complainant’s other-acts statement was an unsolicited response to a proper, open-ended question rather than testimony intentionally elicited by the prosecutor. The statement was promptly stricken, the jury was instructed not to consider stricken evidence, and the DNA evidence corroborated the complainant’s account.
The court also held that a consent instruction lacked evidentiary support. Evidence that the complainant and Hniker were friends, exchanged friendly messages, and voluntarily met at his apartment did not show that she consented to sexual contact while asleep. Moreover, the instructions requiring proof of force or coercion necessarily required the jury to find that the contact was nonconsensual.
Hniker knowingly waived his right to testify, and the record did not show a clear later request to withdraw that waiver or identify the testimony he would have offered. Any error in refusing to reopen the proofs was harmless beyond a reasonable doubt, and counsel was not ineffective for advising against testimony that would have conflicted with Hniker’s earlier denial of any sexual contact. The court nevertheless ordered resentencing because no evidence showed that Hniker moved the complainant to greater danger or held her captive beyond the time needed to commit the offenses, making the 15-point assessment under Offense Variable 8 improper.
Key Takeaways
- An unsolicited reference to a defendant’s alleged prior misconduct does not necessarily require a mistrial when it is promptly stricken and adequately addressed by jury instructions.
- A consent instruction is unwarranted without evidence that the complainant agreed to the sexual conduct; friendship and voluntary presence at the location are insufficient.
- OV 8 cannot be scored for asportation or captivity when the complainant voluntarily entered the location and the record shows no movement or restraint by the defendant.
Why It Matters
The decision illustrates the distinction between an inadvertent, curable reference to other acts and prosecutorial conduct serious enough to require a new trial. It also confirms that a court need not give a defense instruction based on circumstances that do not actually support the asserted defense.
For sentencing, the opinion reinforces that OV 8 requires evidence of actual movement to greater danger or captivity beyond that inherent in the offense. Because removing the 15 points lowered Hniker’s guidelines range, resentencing was required despite affirmance of both convictions.