People Of The State Of Mich. v. David
| Decision Date | 18 November 2010 |
| Docket Number | No. 08-009464-FC,No. 291537,No. 08-016840-FC,291537,08-009464-FC,08-016840-FC |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT CARL DAVID, a/k/a ROBERT CARL DAVIDS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Before: O'Connell, P.J., and Bandstra and Murray, JJ.
Defendant was charged with several counts of criminal sexual conduct ("CSC") in two separate cases, each involving a different victim under the age of 13. The cases were consolidated for trial. In LC No. 08-009464-FC, defendant was convicted by a jury of one count of first-degree CSC, MCL 750.520b(1)(a), and two counts ofsecond-degree CSC, MCL 750.520c(1)(a). In LC No. 08-016840-FC, the same jury found defendant guilty of one count of first-degree CSC, MCL 750.520b(1)(a). Defendant was sentenced to concurrent prison terms of 25 to 60 years for each first-degree CSC conviction, and 3 to 15 years for each second-degree CSC conviction. He appeals as of right. We affirm.
Defendant was convicted of sexually abusing two underage female foster children while they were living in the home that defendant shared with his wife. Defendant was convicted of two counts of sexual contact and one count of digital penetration involving JB, who was approximately nine years old at the time of the incidents. Defendant was also convicted of engaging in cunnilingus with DJ, who was approximately 11 or 12 years old at the time.
Defendant raises several issues challenging the admissibility of each victim's allegations of sexual abuse in the case involving the other victim. We conclude that the evidence was admissible under MCL 768.27a, that the evidence was not subject to exclusion under MRE 403, and that defendant's constitutional challenges to the validity and application of MCL 768.27a are without merit.
This Court reviews a trial court's decision to admit evidence for an abuse of discretion. People v Washington, 468 Mich 667, 670; 664 NW2d 203 (2003). Any preliminary questions of law are reviewed de novo. Id.
MCL 768.27a provides:
Included within the definition of "listed offense" in MCL 28.722 are acts that constitute either first-degree CSC, MCL 750.520b, or second-degree CSC, MCL 750.520c. MCL 28.722(e)(x). See also People v Watkins, 277 Mich App 358, 364; 745 NW2d 149 (2007). Because the other-acts evidence in this case involved sexual acts against a minor, which would constitute acts of first-or second-degree CSC, they qualify as listed offenses for purposes of MCL 768.27a. Thus, the evidence of defendant's other acts of sexual abuse was admissible under MCL 768.27a, and the evidence could be "considered for its bearing on any matter to which it is relevant."1 Indeed, defendant does not dispute that the other-acts evidence qualifies for admission under that statute. Instead, defendant argues that, notwithstanding MCL 768.27a, the evidence should have been excluded under MRE 403 because it was unduly prejudicial. He also argues that MCL 768.27a is unconstitutional because it violates the separation of powers provision in Const 1963, art 6, § 5, and because application of the statute violates the Ex Post Facto Clause of the federal and state constitutions, US Const, art 1, § 10; Const 1963, art 1, § 10.
This Court has previously considered and rejected defendant's constitutional challenges to MCL 768.27a. In People v Pattison, 276 Mich App 613, 619-620; 741 NW2d 558 (2007), this Court held that MCL 768.27a does not invade the Supreme Court's exclusive rulemaking authority because it is a substantive rule of evidence that does not principally regulate the operation or administration of the courts. See also People v Wilcox, 280 Mich App 53, 54-55; 761 NW2d 466 (2008), rev'd on other grounds 486 Mich 60 (2010), and Watkins, 277 Mich App at 362-365. The Court in Pattison, 276 Mich App at 618-619, also held that application of MCL 768.27a does not violate the Ex Post Facto Clause, because it does not lower the quantum of proof or value of the evidence needed to convict a defendant. See also Wilcox, 280 Mich App at 54-55. Accordingly, there is no merit to defendant's constitutional challenges to MCL 768.27a.
We now turn to defendant's argument based on MRE 403. Evidence that is admissible under MCL 768.27a is subject to exclusion under MRE 403. See Pattison, 276 Mich App at 621. Under MRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v Sabin (After Remand), 463 Mich 43, 5758; 614 NW2d 888 (2000). Although the other-acts evidence in this case was prejudicial in the sense that it was damaging to defendant, "unfair prejudice" for purposes of MRE 403 does not mean any prejudice, but rather refers to "the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock." People v Pickens, 446 Mich 298, 336337; 521 NW2d 797 (1994), quoting People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984).
Defendant contends that a lack of similarity between the sexual acts against each victim supports excluding the evidence under MRE 403. But as this Court explained in Watkins, 277 Mich App at 365, "similarity is simply an inapposite consideration under MCL 768.27a." The alleged lack of similarity is simply not a basis for concluding that the evidence was unfairly prejudicial. Defendant also argues that the evidence should have been excluded under MRE 403 because of its tendency to bolster the credibility of each victim concerning the alleged sexual abuse. However, that is a permissible purpose of the evidence. Evidence offered under MCL 768.27a properly can be used to show a defendant's propensity to commit criminal sexual behavior against a minor. Pattison, 276 Mich App at 619-620. Thus, use of the evidence for this purpose does not implicate MRE 403 by injecting considerations extraneous to the merits of the case. Defendant has not shown that the other-acts evidence should have been excluded under MRE 403.
Lastly, although defendant also argues that the other-acts evidence was not admissible under MRE 404(b), because the evidence involves "listed offenses" under MCL 28.722, the admissibility of the evidence is governed by MCL 768.27a, and it is unnecessary to consider MRE 404(b). People v Smith, 282 Mich App 191, 205; 772 NW2d 428 (2009); People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008).
Defendant argues that there was insufficient evidence of penetration to support his conviction of first-degree CSC against JB. We disagree.
An appellate court's review of the sufficiency of the evidence to sustain a conviction does not turn on whether there was any evidence to support the conviction, but whether there was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). This Court reviews the evidence in a light most favorable to the prosecution. Id. at 514-515. This Court will not interfere in the trier of fact's role in determining the weight of evidence or the credibility of witnesses, and all conflicts in the evidence must be resolved in favor of the prosecution. People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005).
The prosecution need only show penetration of the genital opening, not the vagina, and touching of the labia majora is sufficient to establish penetration. People v Bristol, 115 Mich App 236, 237-238; 320 NW2d 229 (1981). The victim's testimony alone can provide sufficient evidence to support a conviction. See People v Smith, 205 Mich App 69, 71; 517 NW2d 255 (1994), aff'd 450 Mich 349 (1995), amended 450 Mich 1212 (1995).
JB's testimony describing how defendant touched her "private part" with his finger, and explaining that defendant would move his finger and that this made her feel strange, viewed in a light most favorable to the prosecution, was sufficient to enable the jury to find that defendant penetrated JB by touching her clitoris with his finger for purposes of sexual gratification. Thus, there was sufficient evidence of penetration to support defendant's conviction. Furthermore, contrary to what defendant asserts, we found nothing inconsistent between the prosecutor's closing argument and the testimony at trial. The prosecutor's comments properly were based on the evidence and reasonable inferences...
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