586 N.W.2d 555 (Mich.App. 1998), 204213, People v. Morse

Docket Nº:Docket No. 204213.
Citation:586 N.W.2d 555, 231 Mich.App. 424
Opinion Judge:SAAD, P.J.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Keith MORSE, Defendant-Appellant.
Judge Panel:Before SAAD, P.J., and WAHLS and GAGE, JJ.
Case Date:December 10, 1998
Court:Court of Appeals of Michigan
 
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Page 555

586 N.W.2d 555 (Mich.App. 1998)

231 Mich.App. 424

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Stephen Keith MORSE, Defendant-Appellant.

Docket No. 204213.

Court of Appeals of Michigan.

December 10, 1998

Aug. 28, 1998

Submitted Feb. 4, 1998, at Detroit.

Released for Publication Dec. 10, 1998.

[231 Mich.App. 425] James D. A. Buttrey, Howell, for the defendant.

Before SAAD, P.J., and WAHLS and GAGE, JJ.

SAAD, P.J.

[231 Mich.App. 426] I

NATURE OF THE CASE

Charged with seven counts of first-degree criminal sexual conduct 1 and two counts of second-degree criminal sexual conduct 2 against his former wife's two daughters, defendant vehemently denies these charges and contends that the complainants have motive to lie. Defendant appeals the trial court's denial of his pretrial request to introduce evidence that Mr. Wiltse, who lived with the complainants' mother, sexually abused the girls three years before defendant's alleged offenses. Wiltse pleaded guilty to sexual abuse charges and is now serving a prison sentence. Defendant contends that complainants' allegations against him are "highly similar" in nature to Wiltse's previous sexual abuse. Defendant says that if the jury is not allowed to learn of the Wiltse offenses against complainants, then the jury will inevitably conclude that the complainants' highly age-inappropriate sexual knowledge could only come from defendant having committed such acts.

The trial court ruled that the proffered evidence must be excluded under Michigan's rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10), which precludes evidence of prior sexual conduct of the victim. Defendant argues that the rape-shield law is intended to prevent a rape trial from becoming a trial of a victim's morality and sexuality, and thus has no relevance to this case, where defendant seeks only to show that nonconsensual sexual acts are the real source of the two girls' age-inappropriate knowledge. [231 Mich.App. 427] Defendant also avers that the girls disliked and

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successfully got rid of Mr. Wiltse by using these similar allegations and that they similarly dislike and want to get rid of him. Thus, according to defendant, the girls' unusual knowledge of sex and their motive will be made clear only if the jury is told about the earlier sexual abuse. Accordingly, defendant asks this court to reverse the trial court's ruling that the rape-shield statute precludes admission of this evidence.

II

FACTS AND PROCEEDINGS

During the preliminary examination, eight-year-old E.A.P. 3 testified that she lived with her grandmother, but that earlier in the year she had lived in two motels with her mother, sister, brother, and defendant, and that

[defendant] ... lifted up my ... nightgown and stuck his hand down my underwear.... He put his finger in my private.... I was sleeping on the ground and he ... asked me to get in bed with him.... [W]hen I went to face [my sister and brother], he stuck his private into my butt.... It was around like four times.... He said if I ever told anybody then he would beat my butt.

The other complainant, C.L.P., testified that she was nine years old and gave the same account of her and her sister's past and present living arrangements, adding that one of the periods in a motel included the Easter holiday. She testified that "[defendant] likes to tickle me and he put his hand down my underwear and tickled me, but he tickled my private too.... He'd just touch it." She also testified that "Saturday [231 Mich.App. 428] morning.... with my nightgown on, [defendant] stuck his thing-a-ma-jig in my butt."

The people charged defendant with three counts of first-degree criminal sexual conduct (finger penetration of vagina/anus) and three counts of first-degree criminal sexual conduct (finger penetration of vagina), regarding E.A.P., and with one count of first-degree criminal sexual conduct (penile penetration of vagina/anus) and two counts of second-degree criminal sexual conduct, regarding C.L.P.

Defendant maintains (1) the acts did not occur and (2) the details provided by the girls are false and are instead the product of sexual assaults perpetrated by one Bradley Wiltse, some three years earlier. According to defendant, Wiltse pleaded guilty of molesting E.A.P. and was accused of doing the same to C.L.P., and the sexual assaults alleged here are highly similar to the acts that occurred with Wiltse. 4 Defendant contends that exclusion of this evidence would violate his Sixth Amendment right to confrontation as well as his right to present a defense.

In denying defendant's motion in limine, the trial court found that this evidence should be excluded under the rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10). Because both parties requested a stay if the trial court ruled against them, the trial court stayed proceedings to permit this appeal.

This Court initially denied defendant's interlocutory application for leave to appeal on February 13, 1997. Defendant then sought leave to appeal to the Supreme Court, which remanded the case to this [231 Mich.App. 429] Court for our consideration as on leave granted. 455 Mich. 852, 567 N.W.2d 242 (1997).

III

ANALYSIS

Michigan's rape-shield statute, M.C.L. § 750.520j; MSA 28.788(10), provides as follows:

(1) Evidence of specific instances of the victim's sexual conduct ... shall not be admitted under sections 520b to 520g 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...

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