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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, UNPUBLISHED November 10, 2015

v No. 322369 Ingham Circuit Court GLENN SILL LATOSKI, LC No. 13-000589-FC
Defendant-Appellant.

Before: G ADOLA , P.J., and H OEKSTRA and M. J. K ELLY , JJ.

P ER C URIAM

. Defendant appeals as of right from his jury trial convictions of third-degree criminal sexual conduct (CSC III), MCL 750.520d (multiple variables), an d assault by strangulation, MCL 750.84(1)(b). Defendant was s entenced as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of 150 to 264 months for the CSC III conviction and 28 to 180 months for the assault by s trangulation c onviction. We affirm.

This case involves a sexual assa ult that occurred while defend ant and the victim were in a dating relationship. The victim testified that on the night of the assault, defendant had been drinking and became belligerent when she denied his sexual adva nces. According to the victim, she was lying next to defendant on a couch when he asked her to engage in sexual relations, to which she responded, “[A]bsolutely not.” The victim testified that she was almost asleep when she felt defendant move on top of her. She testified that she tried to push defendant away and keep her legs together, but he forced them open. The victim to ld defendant, “Get off me. I’m not having sex with you,” but def endant moved her underwear asi de and forced his fingers inside of her. When the victim tried to push defendant off again, he held her arms down and had penial-vaginal intercourse with h er. The victim explained that she tried to make noise, but defendant wrapped his hands around her throat and squeezed so s he could not breathe.
Defendant’s sole argument on appeal is that the trial court re versibly erred when it failed to issue a curative instruction or strike the testimony of the victim at trial concerning alleged threats she received from defendant’s sisters. The challenged testimony took place during the following exchange between the p rosecutor and the victim:-2- Q . Okay. Was that the last tim e you talked to Sergeant [Meliss a] Brown [1] leaving the sheriff’s offi ce [the day of the assault]?

A . No.

Q . When did you talk to her next?

A . I believe that I called her with a concern about—I talked to her at the hospital because I was getting threatening voicemails and threa tening Facebook messages, and I talked to her about those. . . .

Q . Okay. So let’s talk about when you talked to her about the threatening Facebook messages that you were getting. Was it related to thi s incident?

A . Yes.

Q . Was it [defendant] w ho was threatening you?

A . No, it was his sisters.

Q . Okay. And you talked to her about that for help?

A . Yes.

Q . If I’m understanding you corre ctly, did she take care of tha t for you?

A . Yes, ma’am.

Q . And when you talked to [Sergeant Brown], how were you feelin g when you talked to her about that issue?

A . I was very scared. I didn’t know what to do.

Q . Did you talk to her in person or on the phone?

A . In person.
Defense counsel : Your honor, this is i rrelevant as it re lates to my client.
The prosecutor : I’m trying to get to a different place, and it’s not working. I can strike that.
Defense counsel : Thank you.

1 Sergeant Brown is an officer with the Ingham County Sheriff’s Department and was the first officer to interact with the victim after the assault.-3- Although defendant raised a releva ncy objection to the testimon y at trial, he did not ask the court to rule on his objection, to strike the testimony from the reco rd, or to issue a cu rative instruction. Therefore, we review this issue for plain error affecting defen dant’s substantial rights. People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). “To avoid forfei ture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and th e plain error affected substan tial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Even if a defendant satisf ies these three requirements, reversal is only warranted if the error resulted in the convict ion of an innocent defendant or seriously affected the fairne ss, integrity, or public reputatio n of the proceedings. Id.
In general, evidence that a def endant threatened a witness is admissible to show the defendant’s consciousness of guilt. People v Sholl , 453 Mich 730, 740; 556 NW2d 851 (1996). Evidence that a witness was threatened by someone other than th e defendant may be admissible for its relevance to the witness’s credibility. People v Johnson , 174 Mich App 108, 112; 435 NW2d 465 (1989). Specifically, such evidence may be used to ex plain a witness’s bias, reluctance to testify, or pri or inconsistent statements. Id. ; People v Clark , 124 Mich App 410, 412; 335 NW2d 53 (1983). In this case, there was no direct lin k between the alleged threats and defendant, so the testimony was not relevant to demonstrate def endant’s consciousness of guilt. The challenged testimony was also not offered for any permissib le purpose related to the victim’s credibility. Therefore, the challenged testimony was improper.
The parties dispute what the prosecutor meant when she respond ed to defense counsel’s objection by stating, “I can strike that.” Defendant argues th at the prosecutor’s statement was a request for the trial court to s trike the challenged testimony. Plaintiff argues that the prosecutor meant she would cease her line of questioning and move on. Pla intiff’s explanation is more plausible, given that immediately before stating, “I can strike that,” the prosecutor clarified, “I’m trying to get to a different place, and it’s not working.” In any event, it was immediately apparent that the judge did not m ake any ruling that the victim ’s testimony should be stricken. In light of the judge’s silence, defendant could have asked the tr ial court to strike the testimony from the record and issue a curative instruction. Yet, defenda nt did not make such a request. Defendant cites no authority indicating that the trial court wa s required to sua sponte strike the testimony or provide a curative instruction.
Moreover, defendant cannot show that he was prejudiced by the testimony. At trial, the victim provided a detailed accoun t of the assault. Sergeant Br own testified that she answered the victim’s cell phone after the assault, and defendant, thinking the victim was on the line, stated, “[D]on’t tell on me . . . , don’t be mad at me and don’t tell o n me.” Brown explained that the victim had redness at the base of her neck. The sexual assault nurse who examined the victim also testified that the victim had an area of redness at the ba se of her throat, which the nurse said was consistent with the victim’ s account that defendant put his hands around her throat. Brown testified that defendant’s niece, who was in the residence at t he time of the assault, reported that she heard the victim say, “[N]o” and “Get the fuck off me.” Th is suggests that the niece overheard the victim’s pleas for defendant to stop the assault. Further, the testimony that defendant’s sisters threatened t he victim was brief, and was ne ver mentioned again.
In light of the overwhelming evidence of defendant’s guilt, we cannot conclude that the disputed testimony resulted in the conviction of an innocent de fendant. Carines , 460 Mich at-4- 763. Also, although the challeng ed testimony was improper, it was not so egregious that it compromised the integrity of the proceedings. A defendant “is entitled to a fair trial but not a perfect one for there are no perfect trials.” People v Miller , 482 Mich 540, 559; 759 NW2d 850 (2008) (citations and quotation marks omitted).

Affirmed.

/s/ Michael F. Gadola /s/ Joel P. Hoekstra /s/ Michael J. Kelly