People v. Johnson
People v. Johnson
Opinion of the Court
Following a jury trial, defendant was found guilty of third-degree criminal sexual conduct, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a). He was sentenced to from ten to fifteen years in prison. Defendant appeals his conviction and sentence as of right. We affirm.
I
Defendant first argues that jury bias denied him a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by the Michigan Constitution, Const 1963, art 1, § 20, and that the trial court’s denial of his motion for a mistrial was an abuse of discretion. We disagree.
The trial court’s finding that a juror has the ability to render an impartial verdict may only be reversed for clear abuse of discretion. People v Roupe, 150 Mich App 469, 474; 389 NW2d 449 (1986), lv den 426 Mich 863 (1986). Similarly, the trial court’s discretionary decision regarding a
We find no abuse of discretion, either in regard to the trial court’s ruling on jury impartiality or in regard to its denial of the motion for a mistrial.
II
Defendant also argues that the trial court committed error requiring reversal by reprimanding defendant during cross-examination. This argument is without merit. Trial courts have a duty to control trial proceedings, with wide powers of discretion in fulfilling this duty. MCL 768.29; MSA 28.1052. People v Burgess, 153 Mich App 715, 719; 396 NW2d 814 (1986). Reversal is not warranted unless the judge "pierces the veil of judicial impartiality” by commenting in such a way as to unduly
The record is clear that the trial court was merely exercising control over the proceedings to see that defendant’s testimony did not wander from the facts in repeated unresponsive answers on cross-examination. Defendant had accused the prosecutor’s chief witness, the fourteen-year-old boy who was the victim in this case, of having been caught selling marijuana at school, although defendant conceded that he had no basis for this assertion. When defense counsel asked the judge to assist defendant in answering questions in order to prevent the prosecutor from arguing with defendant, the judge admonished defendant in clear and certain terms. This the judge was entitled to do in fulfilling his duty to control the proceedings. Hence his reprimand of defendant did not "pierce the veil of judicial impartiality” and did not deny defendant a fair trial.
III
Likewise without merit is defendant’s next argument, which he had previously presented at the motion to quash — that a "kiss” only involves the "lips,” that the "lips” are not part of the "mouth,” and that therefore at the preliminary examination insufficient evidence of "fellatio” existed to establish "sexual penetration” in order to bind defendant over on a charge of third-degree criminal sexual conduct.
We find this argument unpersuasive. The distinction is meaningless when determining whether oral stimulation of a penis occurred.
The "sexual penetration” defined by the third-degree criminal sexual conduct statute, MCL 750.520d; MSA 28.788(4), includes "fellatio ... or
It is impossible to conceive that, when an adult "kisses” the penis of a fourteen-year-old child, such activity does not constitute "fellatio.” Whether "lips” are considered part of the mouth or only related to the mouth, use of the lips on a penis certainly falls within the definition of "fellatio” — "oral stimulation of the penis” or "a sexual activity involving oral contact with the male genitals,” — since lips are, concededly, at least related to the mouth.
Thus the evidence at the preliminary examination indicating that defendant kissed the victim’s penis was sufficient to support the amended information charging defendant with fellatio in violation of the third-degree criminal sexual conduct statute. The trial court properly denied defendant’s motion to quash.____
Defendant next argues that error requiring reversal occurred in the trial court’s jury instruction for third-degree criminal sexual conduct. Defendant’s argument is essentially the same as that set forth in the previous issue. Defendant argues that, since the "lips” are not part of the "mouth,” no sexual penetration occurred because defendant’s "mouth” never came in contact with the victim’s penis, and therefore the standard jury instruction for third-degree criminal sexual conduct (CJI 20:4:02) was inadequate.
We find no error in the court’s instruction. As shown in analysis of the previous issue, contact between defendant’s "lips” and the victim’s penis was sufficient to establish the sexual penetration needed for fellatio and third-degree criminal sexual conduct. Hence the instruction was not erroneous when stating that the prosecutor must establish beyond a reasonable doubt that defendant’s "mouth” came in contact with the victim’s penis. To hold otherwise would contravene established law by extracting piecemeal one word from the jury instructions to find error requiring reversal. People v Wesley, 148 Mich App 758, 761; 384 NW2d 783 (1985). Although the instruction was not perfect, there is no basis for reversal where the instructions in their entirety fairly presented the issues to the jury and tried sufficiently to protect the rights of the accused. People v Federico, 146 Mich App 776, 785; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). Further, defense counsel never objected to the instruction at trial; hence the alleged error does not require reversal absent a miscarriage of justice. Id., pp 784-785. MCL 769.26; MSA 28.1096. MCR 2.516(C). No miscarriage of justice is apparent here.
Defendant next argues that the trial court erred in denying his motion to indorse two witnesses as res gestae witnesses.
Although defense counsel was made aware at the preliminary examination of the existence of the two younger boys who were with the victim when he first separated himself from his friends and approached defendant, the record discloses no attempts by defense counsel at that time to have the boys indorsed and produced by the prosecutor. It was not until after the trial court denied defendant’s motion for a mistrial that defense counsel moved to indorse and produce the two boys. Defense counsel argued that the boys could testify about the victim’s condition and potential prior inconsistent statements.
When denying the motion, the trial court noted that the victim’s condition when he left was not relevant because the victim had left with defendant voluntarily, the incident occurred several hours after the victim and defendant left together, and defense counsel could just as easily have asked the victim’s friends about his condition. The court also noted that defense counsel had made no effort to contact the two boys.
A trial court’s ruling as to the status of an alleged res gestae witness will not be reversed on appeal unless clearly erroneous — that is where, upon review of the entire record, this Court is left with the definite and firm conviction that a mistake has been made. People v Lamar, 153 Mich App 127, 138; 395 NW2d 262 (1986).
Here, we are not left with the definite and firm conviction that the trial court was mistaken in ruling that the two boys were not res gestae
VI
Defendant argues that he should be resentenced because the trial court heard testimony about a pending charge of first-degree criminal sexual conduct during the sentencing proceeding.
The trial judge held two sentencing hearings. At the first hearing, the prosecutor noted that there was a charge of first-degree criminal sexual conduct pending against defendant, to which charge defendant stood mute. When defense counsel objected to the court’s consideration of such information, the trial court held an evidentiary hearing to ascertain its validity and heard testimony from the alleged victim in the pending first-degree criminal sexual conduct case.
Use of the sentencing guidelines is mandatory, but imposing sentence based on the recommended ranges is not. People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985). The sentencing judge may deviate from these guidelines if he finds them inappropriate. People v McLeod, 143 Mich App 262; 372 NW2d 526 (1985). Here, the judge found the guidelines inappropriate, stating on the record that relevant factors were punishment and the protection of society. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). The sentence imposed does not exceed the statutory maximum, is not excessive, and does not shock our conscience. Id.
VII
Defendant’s final argument is that the cumulative effect of trial court errors deprived him of a fair trial. It is true that, while a single error may not of itself justify reversal, the totality of errors may justify reversal if defendant is denied a fair trial. People v Morris, 139 Mich App 550, 563; 362 NW2d 830 (1984). However, a defendant is not
Defendant in this case was not denied a fair trial, because none of defendant’s arguments have been persuasive to this Court. Defendant showed no jury prejudice. The trial court’s cautioning of defendant during cross-examination was not erroneous. The trial court did not err in denying defendant’s motion to quash the information. The trial court’s instruction to the jury on the charge of third-degree criminal sexual conduct did not amount to error requiring reversal, and any possible error was harmless beyond a reasonable doubt because no juror would have voted for acquittal. People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976). The trial court did not err in determining that the two younger boys were not res gestae witnesses.
Affirmed.
One of the jurors, Dean Fenwick, had asked to be excused from jury duty because of prejudicial information about defendant. When questioned, Fenwick said that Arlene Heppner (a prospective juror for another trial) had told him in the judge’s deliberation room, during recess in voir dire for the instant case, that defendant was kicked out of her bowling alley for following little boys into the restroom. However, when the trial court, the prosecutor and defense counsel questioned Mrs. Heppner under oath, Mrs. Heppner maintained that, although her husband had contacted the police about defendant’s activities, she had not told Fenwick about defendant’s being kicked out; rather, she had only told him that she knew defendant as a customer at the bowling alley. She also maintained that Fenwick had told her that he had seen defendant at the bowling alley before. She asserted that she never said anything to any of the other jurors.
The prosecutor and defense counsel agreed to excuse Fenwick. Upon questioning the jury, each juror denied having overheard Fen-wick’s conversation or having acquired any information about the case before, during or after jury selection. When defense counsel presented Mrs. Heppner to the jury as a memory refresher, the jury’s response remained unchanged. Both attorneys were satisfied with the jurors’ responses, and declined further questioning.
However, defense counsel then moved for a mistrial on grounds
We note in passing that defendant’s allusions to general committee comments of the Criminal Jury Instructions are not binding on this Court. People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1976).
A res gestae witness is an eyewitness to some event in the continuum of a criminal transaction whose testimony would aid in developing full disclosure of the facts surrounding the alleged commission of an offense. People v Baskin, 145 Mich App 526, 530-531; 378 NW2d 535 (1985). The witness need not be an eyewitness to the actual criminal event in order to be a res gestae witness. Id. It is the prosecutor’s duty to indorse and produce at trial all res gestae witnesses. Id. MCL 767.40; MSA 28.980.
When imposing sentence, the trial court also noted defendant’s two previous sexually-related offenses in 1977 and 1979. Defendant
Dissenting Opinion
(dissenting). I believe the trial court erred in failing to quash the information pursuant to defendant’s motion timely made prior to trial.
Defendant was charged with third-degree criminal sexual conduct, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a), which provides:
(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:
(a) That other person is at least 13 years of age and under 16 years of age.
Both third-degree criminal sexual conduct and
"Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.
The amended information charged that defendant engaged in sexual penetration to-wit: fellatio with another person who was fourteen years of age. The only evidence of sexual penetration presented at the preliminary examination held on May 10, 1985, was (1) that defendant touched the victim’s penis and (2) "he kissed me there.” That establishes contact but not penetration. Another panel of this Court has recently explored this issue. In People v Harris, 158 Mich App 463, 469; 404 NW2d 779 (1987), the Court noted the definition of fellatio:
That is defined in Dorland’s Illustrated Medical Dictionary, 23d ed, as: "The act of taking the penis into the mouth.” Obviously, by definition, fellatio includes the necessity of a penetration. Webster’s New Collegiate Dictionary indicates similarly that the word indicates "to suck” or "oral stimulation of the penis.”
MCL 750.520a(k); MSA 28.788(l)(k) defines sexual contact as follows:
(k) "Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can*648 reasonably be construed as being for the purpose of sexual arousal or gratification.
Penetration is defined in the next section, (1), supra and requires some "intrusion.” Webster’s New Collegiate Dictionary defines kiss: (verb) "to touch with the lips . . . ”; (noun) "a caress with the lips.” It is an exercise in casuistry to equate contact with penetration or intrusion . Moral outrage makes high sounding but inappropriate justification. Courts are diffident in grappling with these concepts, and understandably so. In People v Hicks, 98 Mich 86, 90; 56 NW 1102 (1893), the Court commented on an indecent liberties statute:
In this case as in State v Millard, 18 Vt [574] 577 [1846], it may be said that "no particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” The prosecution in that case was for indecent exposure of the person.
In order to deny defendant’s motion to quash the trial court had to determine that a kiss of the penis amounts to fellatio in violation of MCL 750.520d(l)(a); MSA 28.788(4)(l)(a). To do so blurs the distinction between contact and penetration. There is no testimony here or evidence to support any penetration, however slight, and I think therefore the defendant was wrongly charged. To the extent that People v Camon, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982),
I would reverse.
The analysis made here does not apply to cunnilingus. I think the Sommerville Court correctly determined that the oral contact for cunnilingus is sufficient because by definition, penetration is not required. Contrary to that Court’s dicta "The same is true of fellatio . . . ,” 110 Mich App 480, the same is not true of fellatio.
People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), and People v Howell, 396 Mich 16; 238 NW2d 148 (1976). Neither side has briefed the feasibility of attempt charges.
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