People v. Sommerville, Docket No. 44034
| Citation | 100 Mich.App. 470,299 N.W.2d 387 |
| Decision Date | 06 October 1980 |
| Docket Number | Docket No. 44034 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Colen SOMMERVILLE, Defendant-Appellant. 100 Mich.App. 470, 299 N.W.2d 387 |
| Court | Court of Appeal of Michigan (US) |
[100 MICHAPP 475] James R. Neuhard, State Appellate Defender, Steven R. Whalen, Asst. State Appellate Defender, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter R. George, Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P. J., and V. J. BRENNEN and MILLER, * JJ. [100 MICHAPP 476] J. H. GILLIS, Presiding Judge.
On September 15, 1978, defendant was found guilty by a jury of two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f). Count one was based on sexual intercourse; count two was based on cunnilingus. Defendant was sentenced to 15 to 25 years on each count, such sentences to run concurrently.
Defendant appeals as of right.
At approximately 1:30 a. m. on July 6, 1977, defendant's mother awoke to find her son, the defendant, kneeling on her bed, straddling her legs. After asking him what he wanted, and being told that he intended to sexually assault her, the complainant screamed and was immediately engaged in a struggle during which defendant covered her face and mouth with a pillow every time she screamed. Finally, defendant allowed the complainant to sit up in order to recover her breath, at which point she ran from the bedroom. Defendant caught her in the hallway, threw her to the floor, placed his mouth on her genitals, and later penetrated her vagina with his penis. Subsequently, defendant demanded that she give him her purse, from which he took $5. Defendant then left the house, after warning the complainant not to tell his sister or the police what had happened. Defendant's father was no longer living at the time.
After assuring herself that the defendant had left her home, the complainant locked herself in her bedroom, and called her minister. Reverend Kutz and his wife testified that they immediately drove to Mrs. Sommerville's home, where she ran from the front door to the vehicle as soon as it pulled up. Mrs. Sommerville told the Kutzes that her son had raped her and they took her to their home.
[100 MICHAPP 477] At the Kutz home, Mrs. Sommerville declined to call the police or to seek medical treatment because she was then unwilling to implicate her son as her assailant. Instead, she took a warm bath and then talked with the Kutzes until approximately 4 a. m. Reverend and Mrs. Kutz both testified that they observed scratches and abrasions on Mrs. Sommerville's face when they arrived at the Kutz home, and Mrs. Kutz testified that she noticed that Mrs. Sommerville was bleeding from her vagina as she prepared to take her bath.
On July 6, Mrs. Sommerville worked in the morning and spent the afternoon at the Kutz home. That evening, she decided that she would report the crime and was interviewed by two uniformed policemen. Thereafter, on July 7, she and Mrs. Kutz met a police detective at her home, where she described the attack and gave the police her nightgown and the underwear she had put on just after the assault. Prints were dusted for, but none were found. The clothing was submitted to the crime lab, together with blood and saliva samples from both defendant and his mother. Tests resulted in the findings that defendant is a type O secreter, Mrs. Sommerville is a type O nonsecreter, and type O secretions were found in the semen stains on the nightgown. 1 Thus, the forensic lab technician testified that defendant could have been a donor of the semen on the nightgown.
Defendant's case was founded on an alibi supported by the testimony of five friends with whom he was alleged to have spent the evening of July 5. The trial testimony was consistent among the [100 MICHAPP 478] defense witnesses as to defendant's actions on the evening of July 5. However, this testimony was contradicted to some extent by prior inconsistent statements made by defendant when he was first contacted by the police.
At the close of the trial, the court instructed the jury as to first-degree criminal sexual conduct on the basis of cunnilingus and on the basis of sexual intercourse, as well as second, third, and fourth-degree criminal sexual conduct. These instructions will be more fully detailed hereafter. The verdict forms were read and explained, and the jury retired to deliberate. When they returned, the following dialogue occurred:
Further facts will be given as the need arises.
[100 MICHAPP 479] Defendant raises ten issues on appeal. He first challenges the jury instructions on first and second-degree criminal sexual conduct. M.C.L. § 750.520b(1)(f) and § 750.520c(1)(f); M.S.A. § 28.788(2)(1)(f) and § 28.788(3) (1)(f), provide in pertinent part that:
The defendant argues that, because the trial court omitted the personal injury, force and coercion elements from the first-degree charge and the personal injury element from the second-degree charge, reversible error occurred.
Defense counsel failed to object to the instructions as given. Indeed, he noted on the record that he was satisfied therewith. Thus, absent a finding of manifest injustice, the issue has not been preserved for review. People v. Stinson, 88 Mich.App. 672, 674, 278 N.W.2d 715 (1979). We find no manifest injustice in this case. As in People v. Payne, 90 Mich.App. 713, 722, 282 N.W.2d 456 (1979), jury instructions must be read as a whole, and the existence of a verdict form correctly listing each [100 MICHAPP 480] element of the charged and lesser included offenses may also be considered in resolving an issue such as this. After a review of the instructions we find that on the whole, they sufficiently informed the jury of the elements necessary to convict defendant on each count of first-degree criminal sexual conduct.
Defendant's second issue challenges the trial court's failure to instruct the jury that cunnilingus requires penetration of the victim's vagina with the assailant's mouth. The instruction which was given merely required proof of contact, rather than penetration.
M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1) defines first-degree criminal sexual conduct as sexual penetration with another person under certain enumerated circumstances. M.C.L. § 750.520a(h); M.S.A. § 28.788(1)(h) defines sexual penetration as follows:
" '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."
Defendant argues that the wording of the foregoing statute requires an intrusion as a means of distinguishing sexual penetration from sexual contact. We disagree.
Cunnilingus is nowhere defined to require an intrusion. Indeed, such an action would be physically most difficult. The same is true of fellatio, if forcibly performed by a male actor upon a male victim. See, e. g., People v. Hollis, 96 Mich.App. 333, 292 N.W.2d 538 (1980). Thus, it is not the intrusion or penetration which elevates cunnilingus to first-degree criminal sexual conduct. Rather, it is quite reasonable to interpret the inclusion of both oral [100 MICHAPP 481] sexual acts in the definition of sexual penetration as based on the belief that each is as offensive to the victim and to society as is forcible penetration. Cf. People v. Payne, 90 Mich.App. 713, 722, 282 N.W.2d 456 (1979), where another panel of this Court seems to have concluded that penetration is required of first-degree criminal sexual acts involving oral sexual assaults. Thus, CJI 20:2:02, which defines oral sexual acts as involving contact between the mouth of one party and the sex organs of another, was properly given as an instruction in the instant case.
Defendant's third issue asserts that the admission into evidence of testimony as to Mrs. Sommerville's character and defendant's veracity was error. During cross-examination of Mrs. Sommerville, the following questions and answers were noted on the transcript:
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