TAWAS CITY – Three Michigan Court of Appeals judges have affirmed a sentence handed down by Iosco County’s 23rd Circuit Court Judge David C. Riffel stemming from the conviction of a Hale man in a 2018 gang rape case.
In their Nov. 5 unpublished opinion, Michigan Third District Court of Appeals Judge David H. Sawyer and Michigan 4th District Court of Appeals Judges Michael J. Kelly and Brock Swartzle upheld 41-year-old Brian Scott Thayer’s June 2019 sentence to 12 to 30 years in prison after a jury found him guilty on three felony charges.
Thayer was one of five men involved in a brutal gang rape case where a 17-year-old woman was raped, sexually assaulted and filmed over the period of several hours in April of 2018 while she was unconscious in a Whittemore home.
He was found guilty by a jury on two counts of 1st-degree criminal sexual conduct (CSC) and a count of child sexually abusive activity. Under his sentence he must comply with a lifetime GPS monitoring on the Michigan Sex Offender Registry. Under the sentencing guidelines he must serve a minimum of 12 years in prison. His earliest release date is June 6, 2030.
Thayer was the last to receive a sentence in the case, and the only to opt for a jury trial. The others involved struck plea deals for their involvement. The judges’ “unpublished” opinion means that it is a decision of a court that is not available for citation as precedent because the court deems the case to have insufficient precedential value.
In Thayer’s appeal, he argued that there was an affirmative defense to consent to sexual penetration in the case. Affirmative defense is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.
He argued that in his jury trial he was not given a complete defense when the trial court failed to give jury instruction regarding the “affirmative defense of consent to sexual penetration.”
“Yet, Thayer’s lawyer did not request a jury instruction on consent as a defense to sexual penetration under MCL 750.520b(1)(c). Instead, while the proposed jury instructions were being discussed, he stated, ‘I agree that there’s a case that says that if—with respect to the sexually abusive material that consent is not a defense.’”
The opinion goes on to state that after the jury instructions were read, Thayer’s lawyer indicated he had no objection to the instructions as read.
“By expressly approving the jury instructions on the record, Thayer waived any objection to the jury instructions, so there is no error to review,” as stated in the opinion, which cited the case of People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011).
In a footnote to the opinion, the judges stated that under Thayer’s charges, consent as a defense would not work with 1st-dgree criminal sexual conduct charges and there would still be no reversible error in the case.
“This Court has previously held that because consent is not a defense to a charge of producing child sexually abusive material, a defendant cannot argue consent as a defense to a CSC-I charge under MCL 750.520b(1)(c). People v Wilkens, 267 Mich App 728; 705 NW2d 728 (2005). Thus, Thayer, who was charged with CSC-I under MCL 750.520b(1)(c), with the underlying felony being the production of child sexually abusive material, cannot argue consent as a defense to the charge under MCL 750.520b(1)(c).,” stated the opinion.
According to the Michigan State Police, the incident occurred at a Whittemore home on April 4, 2018.
According to a report, the victim was plied with Captain Morgan rum and was blacked out at the time of the rapes, which were recorded on a cell phone camera. She told troopers that she could not recall any of the details that occurred that day, but was shown pictures from one of the assailant’s cell phone.