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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 27, 2018

v No. 339909

Ingham Circuit Court

JASON LANELLE TOWNSEND, LC No. 17-000010-FC

Defendant-Appellant.

Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

Defendant appeals as of right his conviction of first-degree criminal sexual conduct 

involving personal injury, MCL 750.520b(1)(f). Defendant was sentenced as a fourth habitual 

offender, MCL 769.12, to serve 25 to 50 years in prison. We affirm.

I. FACTS

This case arises from defendant’s nonconsensual anal penetration of the victim, with 

whom defendant was having a consensual sexual relationship. The victim and defendant initially 

met on social media and developed a relationship that the victim described as “friends with 

benefits.” By contrast, defendant described the relationship as sexual only, not a friendship. 

They agree that they had sexual relations on about seven occasions at the victim’s home, but 

were not dating.

On October 27, 2016, defendant and two friends went to the victim’s place of 

employment to apply for jobs. He testified that it was his understanding that the victim had 

agreed to assist him with getting a job there. The two agreed to meet at her home after the victim 

was done with work. The victim testified that the purpose of the meeting was to have sex. 

Defendant testified that he did not know the purpose of the meeting, and also testified that he 

thought the purpose was to talk about his job application, but agreed that the only reason he had 

gone to the victim’s home in the past was to have sex with her. Defendant also testified that the 

encounter was “supposed to be a quickie” because someone was waiting for him in the car.

When defendant arrived, he and the victim engaged in consensual oral and vaginal

intercourse. According to the victim, defendant then tried to put his penis into her anus and she 

told him “no.” The victim testified at trial that despite her protests, defendant forcibly held her 

down and penetrated her anus with his penis for about three minutes. By contrast, defendant 
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testified that after they had had consensual oral and vaginal sex, he was preparing to leave when 

the victim suggested anal sex. He admitted that during the anal sex the victim said “don’t” and 

“stop,” but he believed that it was part of role-playing that they were engaging in, and so did not 

stop. Afterward, defendant left. The victim discovered that she was bleeding from her anus and 

arranged transportation to the hospital, where it was confirmed that she had suffered injuries 

from forced trauma. Subsequent analysis of swabs taken of the victim’s vaginal and anal areas 

during the physical examination confirmed the presence of defendant’s DNA. Defendant was 

charged with first-degree criminal sexual conduct.

Unbeknownst to defendant, the victim made an audio recording with her telephone of 

their sexual encounter. She testified that she had previously made similar audio recordings of 

her sexual encounters with defendant and with other men. At trial, the audio recording was 

played for the jury and defendant admitted that the recording does not include any indication that 

the victim suggested or agreed to anal sex. Defendant sought to introduce evidence of prior 

sexual conduct with the victim involving digital-anal penetration and also evidence of prior roleplaying in the relationship as part of his consent defense. The trial court denied defendant’s 

request, reasoning that the evidence was not relevant to the charged offense.

Defendant admitted at trial that he had lied to the investigating detective during the 

investigation about whether he had engaged in anal sex with the victim. After re-direct 

examination, the trial court questioned defendant further about the reason for his lies. Afterward, 

defendant moved for a mistrial, arguing that the trial court’s questioning, together with a 

comment made regarding defense counsel, demonstrated judicial bias. The trial court denied the

motion, and the jury found defendant guilty. Defendant now appeals to this Court.

II. ANALYSIS

A. JUDICIAL BIAS

Defendant first contends that the trial court abused its discretion by failing to grant his 

motion for a mistrial. Defendant argues that the trial court pierced the veil of judicial 

impartiality during trial by berating defense counsel in front of the jury and improperly 

questioning defendant. We disagree.

This Court will not reverse a trial court’s decision regarding a motion for mistrial absent 

an abuse of the trial court’s discretion, which occurs when the trial court’s decision falls outside 

the range of principled outcomes. People v Lane, 308 Mich App 38, 60; 862 NW2d 446 (2014). 

A mistrial should be granted only for “an irregularity that is prejudicial to the rights of the 

defendant and impairs his ability to get a fair trial.” Id. (quotation marks and citations omitted). 

Whether judicial misconduct denied a defendant a fair trial is a question of constitutional law 

that is reviewed de novo. People v Stevens, 498 Mich 162, 168; 869 NW2d 233 (2015).

“Due process requires that an unbiased and impartial decision-maker hear and decide a 

case.” Kern v Kern-Koskela, 320 Mich App 212, 231; 905 NW2d 453 (2017) (quotation marks 

and citation omitted). A trial judge is presumed to be fair and impartial, however, and a party 

claiming judicial bias must overcome “a heavy presumption of judicial impartiality.” People v 

Biddles, 316 Mich App 148, 152; 896 NW2d 461 (2016) (citation omitted). A trial judge’s 
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conduct deprives a party of a fair trial if the conduct pierces the veil of judicial impartiality. 

Stevens, 498 Mich at 170. “A judge’s conduct pierces this veil and violates the constitutional 

guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely 

that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy 

or partiality against a party.” Id. at 171. Whether the trial court pierced the veil of judicial 

impartiality is a “fact-specific analysis” that must be determined by considering the totality of the 

circumstances. Id. at 171-172. We do not apply a harmless error analysis to a claim of judicial 

partiality, and instead determine “whether the judge’s conduct improperly influenced the jury 

without considering the weight of the evidence presented against the aggrieved party or whether 

the conduct actually contributed to the jury’s verdict.” Id. at 171 n 3.

To determine whether a trial judge pierced the veil of judicial impartiality, we consider “a 

variety of factors, including the nature of the judicial conduct, the tone and demeanor of the trial 

judge, the scope of the judicial conduct in the context of the length and complexity of the trial 

and issues therein, the extent to which the judge’s conduct was directed at one side more than the 

other, and the presence of any curative instructions,” as well as any other relevant factors. Id. at 

172. Judicial misconduct may include “belittling of counsel, inappropriate questioning of 

witnesses, providing improper strategic advice to a particular side, biased commentary in front of 

the jury, or a variety of other inappropriate actions.” Id. at 172-173.

In this case, defendant argues that the trial court demonstrated partiality by berating 

defense counsel during trial within the hearing of the jury in a way that suggested that counsel 

was dishonest and using deceptive tactics. Defendant argues this occurred when the trial court 

stated:

I want to advise the jury that if either attorney felt that there were items that were 

unclear on anything, they would have a right to copies[,] they had to have them 

transcribed by someone they chose and then to have those provided. So to sit here 

and say that they couldn’t hear something is rather disingenuous since those 

options are always available and the Court provides resources if needed.

Defendant argues that the trial court made this comment to the jury in response to defense 

counsel’s questioning of a detective regarding the audio recording:

Defense Counsel. Okay. You have had an opportunity to listen to the 

recording from [the victim’s] phone prior to yesterday’s court hearing?

Detective. Yes.

Defense Counsel. Okay. And there is [sic] things on that recording that 

are sort of in the background, maybe hard to hear in this setting?

Detective. Possibly.

Defense Counsel. Okay. Would you — such as, like words that were said 

would be easier to hear if you weren’t in a big room like this and the 

circumstances we are listening?
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Detective. Yes.

Defense Counsel. Okay. And on that recording, it’s about a minute or so 

in before we hear actual sex begin, would you agree with that?

Detective. Yes.

Defense Counsel. Okay. So—and at the end of the recording you can 

hear a little bit of conversation after the sex ends?

Detective. Yes.

Defense Counsel. And at the very end you can actually hear the voices get 

very far from —

ASSISTANT PROSECUTOR: Judge, I am going to object to asking 

the witness to interpret the piece of evidence. It is an exhibit and it’s available for 

the jury to —

THE COURT: What exactly is the point of these questions?

Defense Counsel: Just to point out areas of the recording that 

maybe would be better heard by listening closer to it.

THE COURT: I see. Objection sustained.

Defendant later moved for a mistrial on the basis that the trial court’s statement displayed 

partiality. In ruling on the motion outside the hearing of the jury, the court indicated its 

reasoning:

Now, as for your other comment, you continuously use—well, where is this piece 

of evidence you didn’t give me, when you have it in your hands. You could use 

whatever techniques you wish to try to ferret out additional commentary that may 

have been on those tapes. Instead, you don’t do that. You sit back and make and 

pretend like they are doing something bad. All I said is you have the right to do 

the same things they had and you had an opportunity to see that evidence. I don’t 

think that’s improper.

We disagree that the comment to the jury was a suggestion by the trial court that defense 

counsel was dishonest or deceptive. A review of the record indicates that defense counsel had 

suggested that the recording was incomplete. During her opening statement, defense counsel 

asked, “[W]as the recording altered in any way? And if so, why? Is everything there? Are we 

hearing everything?” Nor was the comment directed at defense counsel alone. The record 

indicates that the prosecutor, who also apparently was concerned about whether the jury could 

properly hear the recording when it was played, had been admonished by the trial court for 

adjusting the volume without the court’s consent.
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The trial court’s comment was directed to “either counsel” and indicated that both 

attorneys had the evidence available to them and nothing precluded either of them from 

analyzing the data or transcribing any parts of the audio either side considered hard to hear. The

trial court’s comment was an apt clarification to the jury that neither party had been deprived of 

the complete audio recording, and the singular use of the word “disingenuous” in this context 

was not so egregious as to pierce the veil of judicial impartiality. Considering the nature and 

tone of the comment, the brevity of the comment, and that the comment referenced both counsel, 

we conclude that the comments, taken as a whole, did not pierce the veil of judicial impartiality.

Defendant also argues that the trial court questioned him in a manner that suggested he 

was not credible and that there was something wrong with defendant “lawyering up,” thereby 

denying him a fair trial. Again, we disagree.

MRE 614(b) permits the trial court to question witnesses called by itself or by a party. 

Judicial questioning has boundaries, however. Stevens, 498 Mich at 174. “It is inappropriate for 

a judge to exhibit disbelief of a witness, intentionally or unintentionally,” and judges “should 

avoid questions that are intimidating, argumentative, or skeptical.” Id. at 174-175. A trial judge 

demonstrates partiality when he undermines a party’s witness and implies that he has his own 

opinions about witness credibility. See id. at 180-183. When the tone and demeanor of the trial 

court apparent in the lower court record is hostile to a defendant’s witness or demonstrates 

partiality, that fact weighs in favor of granting the defendant a new trial. Id. at 187.

In this case, defendant admitted during his testimony that he was asked three times by the 

investigating detective about whether he had anal intercourse with the victim and lied each time. 

On direct examination, defendant explained why he had lied to the detective, stating:

Detective McGuire, she was untruthful to me when she told me that I never gave 

her my address and invited her to my home to talk to me about what issues she 

wanted to do the investigation about, and I felt I had probably said too much. She 

wasn’t going to be truthful. It was not going to get me home no time soon. So 

instead of asking for an attorney—and I had not had my free phone call or was 

able to use the phone to call an attorney or to call my relatives. Now I am 

shutting down.

On re-direct examination, when asked why he had continued to lie, defendant answered:

I didn’t want to lawyer up and ask for my attorney. I wanted to hear what I was 

being charged with. I have never thought that I would be charged with something 

like this for something that I did not do, and I wanted to hear what she had to say.

After re-direct examination, the trial court questioned defendant further on this point:

The Court. Sir, let me just ask you, you say you didn’t want to lawyer up?

Defendant. I did not want to ask for an attorney at the time.

The Court. Okay. You didn’t want to lawyer up then? That’s what that 

means, isn’t it?
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Defendant. Right.

The Court. Okay. Didn’t you tell that detective that you had a lawyer on 

the way down there?

Defendant. I did tell her I had an attorney on the way down. However, I 

did not want to ask for my attorney to be present because I was not planning on 

making a statement.

The Court: You had a lawyer on the way down to lawyer up?

Defendant: Correct.

The Court. So I don’t understand when you say you didn’t want to lawyer 

up when you were lawyering up, sir?

Defendant. Okay. I had not talked to my relatives. I knew that I would 

have an attorney coming. I had not talked to anybody. I had not had a legal 

representation coming.

The Court. That isn’t what I asked you. You told me—or you told us that 

you were lying to the officer because you didn’t want to lawyer up, when, in fact, 

you knew you had a lawyer on the way down there. I don’t understand how your 

family has anything to do with it. You knew the lawyer was coming.

Defendant. Because I had talked to my mom when I got arrested. The 

officer allowed me to call my mother.

The Court. So you did talk to your mother?

Defendant. I talked to my mom, but I had not talked to her once I hit the 

county jail.

The Court. I see, but you had had phone calls?

The Defendant. I had one call prior to getting to the county jail.

The Court. Okay. Thank you. Any other questions based on that?

It is evident that the trial court was questioning defendant to clarify his testimony. 

Defendant’s testimony was unclear; he testified that he lied to the detective because he did not 

want to “lawyer up” at that time. Upon further questioning by the trial court, defendant

confirmed that he had, in fact, already sought an attorney who was on his way to the 

interrogation, and so he had already effectively “lawyered up.” Contrary to defendant’s 

assertion, there is no indication that the trial court disparaged him for requesting counsel. The 

trial court’s questioning seems to have been directed toward clarifying defendant’s rather 

confusing assertion that he lied because he did not want to request an attorney, particularly given 

defendant’s admission that he was aware an attorney was on the way and given that the events of 
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lying and requesting an attorney would normally seem to bear little relationship to one another. 

We further note that, again, the trial court’s questioning of defendant was limited in duration and 

scope. We conclude that the trial court’s questioning of defendant did not exceed the scope of 

permissive judicial questioning. See People v McDonald, 303 Mich App 424, 437; 844 NW2d 

168 (2013). We therefore find that the trial court did not abuse its discretion by denying 

defendant’s motion for mistrial.

B. SUPPRESSION OF THE AUDIO RECORDING

Defendant next contends that the victim made an audio recording of the sexual encounter 

without defendant’s consent in violation of MCL 750.539d(1)(a), warranting suppression of the 

recording at trial. We disagree.

We note initially that defendant expressly waived any objection at trial to the admission 

of the audio recording. Generally, a party may not waive an objection, then argue on appeal that 

the resultant action was error; rather, the waiver extinguishes any error. People v Kowalski, 489 

Mich 488, 503; 803 NW2d 200 (2011). If the objection had not been waived, however, and 

merely had been forfeited by counsel’s failure to object, we would review the unpreserved claim 

of error to determine whether the error is plain and affected substantial rights, meaning that it 

affected the outcome of the proceedings, and it either resulted in the conviction of an innocent 

person, or seriously affected the fairness, integrity, or public reputation of the proceedings. Id. at 

505-506. Under either analysis, we conclude that the trial court did not err by admitting the 

audio recording.

Defendant argues that by recording the sexual encounter, the victim violated Michigan’s 

eavesdropping statutes, MCL 750.539a et seq. Specifically, MCL 750.539d(1)(a) provides, in 

relevant part:

(1) Except as otherwise provided in this section, a person shall not do either of 

the following:

(a) Install, place, or use in any private place, without the consent of the 

person or persons entitled to privacy in that place, any device for observing, 

recording, transmitting, photographing, or eavesdropping upon the sounds or 

events in that place.

In this case, there is no dispute that the victim placed or used a device for recording, i.e. 

her phone, in her bedroom.1 We next consider whether the victim’s bedroom was a “private 

place” within the meaning of the statute, and conclude that it was. MCL 750.539a(1) provides:

 1 We note that the victim was not eavesdropping. “Eavesdropping,” as defined in MCL 

750.539a(2), is limited to the “private discourse of others,” and thus a participant in a 

conversation “may record it without ‘eavesdropping’ because the conversation is not the 

‘discourse of others.’ ” Lewis v LeGrow, 258 Mich App 175, 185; 670 NW2d 675 (2003). We 
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(1) “Private place” means a place where one may reasonably expect to be safe 

from casual or hostile intrusion or surveillance but does not include a place to 

which the public or substantial group of the public has access.

In Lewis v LeGrow, 258 Mich App 175, 185; 670 NW2d 675 (2003), this Court stated

that “a bedroom in a private home in which a couple engages in intimate relations fulfills the 

definition of a ‘private place’ under subsection 539a(1) because reasonable people expect ‘to be 

safe from casual or hostile intrusion’ within a bedroom.” Id. at 188 (citation omitted). We 

question, however, if under the circumstances of this case defendant can be a person “entitled to 

privacy in that place,” being a bedroom in the victim’s home, once he left the realm of 

consensual activity and embarked upon a felonious assault of the victim.

However, we need not determine the merits of that assertion because we reject 

defendant’s suggestion that if the victim violated MCL 750.539d in recording their sexual 

encounter, the recording was subject to suppression in defendant’s criminal prosecution. 

Suppression of evidence is not an appropriate remedy for a statutory violation when there is no 

indication in the statute that the Legislature intended that remedy. People v Mazzie, ___ Mich 

App ___, ___; ___ NW2d ___ (2018) (Docket No. 343380); slip op at 4. Accordingly, we hold 

that suppression would not be an appropriate remedy even if the victim had indeed violated MCL 

750.539d.

In his brief on appeal, defendant agrees that the exclusionary rule does not apply to 

evidence obtained by a private party without state intervention, even if obtained unlawfully, but 

urges us nonetheless to suppress the evidence as a matter of public policy. We decline to do so. 

The exclusionary rule, being the suppression of any unlawfully obtained evidence, is the remedy 

for a violation of the constitutional prohibition against unreasonable searches. People v 

Cartwright, 454 Mich 550, 558; 563 NW2d 2018 (1997). The goal of the exclusionary rule is to 

deter police misconduct. People v Hawkins, 468 Mich 488, 499; 668 NW2d 602 (2003) The

prohibition against unreasonable searches and seizures, however, does not apply to a search or 

seizure conducted by a private person not acting as an agent of the government and acting 

without the government’s participation or knowledge. Detroit Edison Co v Stenman, 311 Mich 

App 367, 387; 875 NW2d 767 (2015); People v McKendrick, 188 Mich App 128, 141; 468 

NW2d 903 (1991). Because this Court will not create a remedy that the Legislature chose not to 

create, see Hawkins, 468 Mich at 500, we decline defendant’s invitation to extend the 

exclusionary rule, as a matter of public policy, to the actions of private persons. We hold that the 

trial court did not plainly err by allowing the admission of the audio recording as evidence 

because there was no basis for its suppression.

C. EVIDENCE OF PRIOR SEXUAL ACTS

Defendant also contends that the trial court improperly limited his ability to introduce 

evidence of the victim’s past sexual conduct with defendant. We disagree.

 

further note that MCL 750.539h provides civil remedies for eavesdropping, but not for other

conduct prohibited by MCL 750.539d.
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We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. 

People v Sharpe, 502 Mich 313, 323; 918 NW2d 504 (2018). An abuse of discretion exists if the 

trial court’s decision falls outside the range of principled outcomes. Id. at 324. If a trial court’s 

evidentiary decision involves an underlying question of law, such as whether a statute precludes 

the admission of evidence, we review such a question de novo. Id. An evidentiary error does 

not merit reversal in a criminal case unless, after an examination of the entire cause, it appears 

that it is more probable than not that the error was outcome determinative. People v Burns, 494 

Mich 104, 110; 832 NW2d 738 (2013). In addition, the determination of admissibility of 

evidence under the rape-shield statute is within the sound discretion of the trial court. People v 

Hackett, 421 Mich 338, 349; 365 NW2d 120 (1985). When making a determination under the 

statute, the trial court should be mindful of the legislative purpose of the statute and favor 

exclusion of evidence when exclusion will not “unconstitutionally abridge” the defendant’s right 

to confrontation. Id.

Defendant argues that he should have been permitted to introduce testimony that the 

victim had previously permitted digital-anal penetration during their sexual encounters. The trial 

court determined that such testimony was inadmissible under the rape-shield statute, MCL 

750.520j, which provides in relevant part:

(1) Evidence of specific instances of the victim’s sexual conduct, opinion 

evidence of the victim’s sexual conduct, and reputation evidence of the victim’s 

sexual conduct shall not be admitted . . . unless and only to the extent that the 

judge finds that the following proposed evidence is material to a fact at issue in 

the case and that its inflammatory or prejudicial nature does not outweigh its 

probative value:

(a) Evidence of the victim’s past sexual conduct with the actor.

Thus, the victim’s sexual history with others is generally irrelevant and therefore 

inadmissible. People v Adair, 452 Mich 473, 481; 550 NW2d 505 (1996). But when the 

evidence in question is evidence of the victim’s consensual sexual relations with the defendant, 

the public policy interests in excluding such evidence are no longer the primary focus, which 

shifts to materiality and balancing the probative value of such evidence against the prejudicial 

effect. Id. at 481-482. We conclude that the trial court in this case did not abuse its discretion by 

excluding the evidence that the defendant’s past sexual relationship with the victim allegedly 

included digital-anal penetration. Because the only charged conduct before the trial court was 

penile-anal penetration, evidence of previous consensual digital-anal penetration was not 

material to the issue at trial, and the trial court did not abuse its discretion by favoring the 

exclusion of the evidence.

Defendant also argues that the trial court abused its discretion by denying his request to 

present evidence that he and the victim had a history of role-playing during consensual sex; 

defendant argues that this evidence was relevant to support his argument that he believed the 

victim was role-playing when she told him to stop the penile-anal penetration. Even if relevant, 

evidence may be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or 

needless presentation of cumulative evidence. People v Blackston, 481 Mich 451, 461; 751
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NW2d 408 (2008). Further, under the rape shield statute, MCL 750.520j(1)(a), evidence of the 

victim’s past sexual conduct with the actor is not admissible “unless and only to the extent that 

the judge finds that the . . . proposed evidence is material to a fact at issue in the case and that its 

inflammatory or prejudicial nature does not outweigh its probative value.”

Here, the trial court excluded evidence that role-playing had occurred in the past, holding

that unless evidence was presented that role-playing had occurred during the act in question, 

evidence of prior role-playing was irrelevant. As noted, the determination of admissibility of 

evidence under the rape-shield statute is within the sound discretion of the trial court. Hackett,

421 Mich at 349. Mindful of the legislative purpose of the statute, and favoring exclusion of 

evidence when exclusion will not “unconstitutionally abridge” the defendant’s right to 

confrontation, id., we conclude that the trial court did not abuse its discretion in excluding the 

evidence.

Affirmed.

/s/ Mark T. Boonstra

/s/ Kathleen Jansen

/s/ Michael F. Gadola