People v. Abela
| Decision Date | 10 October 2013 |
| Docket Number | No. 307768,307768 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LAWRENCE JOSEPH ABELA, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court
Before: BECKERING, P.J., and O'CONNELL and SHAPIRO, JJ.
Defendant appeals as of right his jury-based conviction of third-degree criminal sexual conduct (CSC), MCL 750.520d(1)(c), and fourth-degree CSC, MCL 750.520e(1)(c). The trial court sentenced defendant to concurrent prison terms of 2-1/2 to 15 years for the third-degree CSC conviction and one to two years for the fourth-degree CSC conviction. We affirm.
Defendant was convicted of engaging in acts of digital penetration and sexual contact with the adult, mentally-disabled daughter of his former girlfriend, with whom he lived. The victim's mother ended her relationship with defendant in May 2010, but allowed defendant to continue residing with her and the victim until defendant found a new place to live.
The prosecution presented evidence that the victim's mother became more forceful in her efforts to make defendant leave her apartment. Following an argument at a restaurant on July 8, 2010, the group returned to the victim's mother's apartment and defendant instructed the victim's mother to do some laundry. The victim testified at trial that after returning from dinner with defendant and her mother, defendant pulled her into her mother's bedroom while her mother was downstairs doing the laundry. The victim stated that defendant touched her "who," which is another name for her vagina, and her butt, and that defendant put his finger inside her vagina. After defendant left the apartment the next morning, the victim told her mother that defendant had touched her in "wrong places." The victim also reported defendant's conduct to a certified nursing assistant, Phyllis Armstead, who was assisting the victim with life skills. The victim's mother testified that she instructed defendant to leave her apartment, but delayed making a report to the police for a few days. The defense theory at trial was that the victim's mental disability made her susceptible to suggestibility by her mother and others, and that the victim's mother influenced the victim into accusing defendant of sexual assault because shewanted defendant out of her apartment. Defense counsel presented an expert witness to support this theory.
Defendant raises numerous issues on appeal, some through previously retained appellate counsel, and many others in a pro se supplemental brief filed after appellate counsel was permitted to withdraw.
Defendant challenges the sufficiency of the evidence in both CSC convictions. When considering a challenge to the sufficiency of the evidence, an appellate court "reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). Circumstantial evidence and reasonable inferences arising therefrom may constitute satisfactory proof of the elements of a crime. People v Kissner, 292 Mich App 526, 534; 808 NW2d 522 (2011). The prosecution need not negate every theory consistent with innocence, but must prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant may provide. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000); People v Chapo, 283 Mich App 360, 363-364; 770 NW2d 68 (2009). Here, defendant was convicted of engaging in sexual penetration and sexual contact with a person he knew or had reason to know was "mentally incapable." MCL 750.520d(1)(c); MCL 750.520e(1)(c).
We disagree with former appellate counsel's argument that the evidence was insufficient to establish that the victim was "mentally incapable." "[M]entally incapable" is defined in MCL 750.520a(i) to mean that "a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct." The rationale for prohibiting sexual acts with a mentally incapable person is that such a person is presumed incapable of truly consenting to sexual acts. People v Breck, 230 Mich App 450, 455; 584 NW2d 602 (1998).
The prosecution presented overwhelming evidence that the victim had limited cognitive abilities. Every expert and lay witness testified regarding the victim's limited level of mental functioning. The prosecution's expert, Jackson Turner, testified that his evaluation of the victim revealed that she had an IQ that placed her in the range of mild mental retardation. The defense expert, Dr. Firoza Van Horn, did not personally evaluate the victim, but opined from the information she reviewed that the victim was operating at an even lower mental-age level than indicated by Turner.
Whether the victim's cognitive limitations rendered her incapable of appraising the nature of her conduct during the charged sexual acts is a separate inquiry from her level of mental competency. In Breck, 230 Mich App at 453-455, this Court, relying on the reasoning in People v Easley, 42 NY2d 50; 396 NYS2d 635; 364 NE2d 1328 (1977), which involved a similar New York statute, concluded that the "mentally incapable" element requires an assessment of the person's ability to understand the physical act and to appreciate nonphysicalfactors, such as the moral quality of the act. This Court found sufficient evidence that the victim was mentally incapable where a psychologist described the victim as mentally retarded and as lacking an ability to make an informed decision whether to engage in sexual relations. Breck, 230 Mich App at 455-456. In another case, People v Cox, 268 Mich App 440, 445-446; 709 NW2d 152 (2005), this Court found sufficient evidence that a victim was mentally incapable where the evidence supported a finding that "regardless of the victim's awareness of the events as they occurred, he did not understand the nonphysical aspects of the sex acts and was mentally incapable of consenting to the sexual relationship with defendant."1 Unlike in Cox, however, there was no contention in this case that the victim consented to sexual acts with defendant. Rather, the defense theory at trial was that the victim's allegations were the product of her susceptibility to suggestibility.
We note that limits on a person's cognitive abilities are not dispositive of whether a person is capable of appraising the nature of his or her conduct in a sexual encounter. As a New York court explained in People v Cratsley, 86 NY2d 81, 85-86; 629 NYS2d 992; 653 NE2d 1162 (1995):
"Mental retardation" is not a disease, disorder or disability, but a less-than-satisfactory administrative term used to identify the condition of a broad spectrum of people whose common trait is inadequate cognitive ability to meet the demands of society. Such an impairment may arise from any number of causes, including birth defect, head injury, disease and environmental factors, conditions leading to no common symptomatology in physiology, psychology, intellect or affect. Mental retardation is not necessarily a static condition, for experience has shown that with effective training and support, individuals are able to lead increasingly "normal" lives. [Citations omitted.]
Nonetheless, cognitive abilities are a factor affecting a person's ability to assess his or her conduct during a sexual encounter. Individuals who observe that person on a daily basis may also shed light on the person's ability to understand and cope with a sexual encounter. Id. at 87-88.
Although the evidence in this case indicated that the victim was able to recognize that defendant touched her in "wrong places," there was also evidence that the victim's cognitive deficits limited her ability to respond to situations or changing circumstances. The victim's certified nursing assistant, Armstead, testified that the victim was not able to cross a street by herself because the victim could not adequately process the information required for a safe crossing. The defense expert, Dr. Van Horn, also explained how a person with low cognitive abilities has problems dealing with change. Considering the evidence of the victim's mental deficits and the evidence that defendant removed the victim from a situation of her normal routine and placed her into a position where she was required to formulate a quick response to his actions, the evidence was sufficient to enable the jury to find beyond a reasonable doubt thatthe victim's mental deficits rendered her incapable of appraising the nature of her conduct. The evidence was sufficient to satisfy the "mentally incapable" element of the charged offenses. In addition, the evidence that defendant had resided in the same apartment as the victim and her mother for several months was sufficient to enable the jury to find beyond a reasonable doubt that defendant knew or had reason to know that the victim was mentally incapable.
We reject the argument in defendant's supplemental brief that the victim could not be mentally incapable because she was found competent to testify as a witness. The determination whether a witness is competent to testify is a judicial determination. MRE 601. The focus of a witness's competency to testify is on the witness's capacity and sense of obligation to testify truthfully and understandingly. People v Burch, 170 Mich App 772, 774; 428 NW2d 772 (1988). If a witness is deemed competent to testify under MRE 601, the weight and credibility of that witness's testimony remains a question for the jury. Id. at 775; see also People v Coddington, 188 Mich App 584, 597; 470 NW2d 478 (1991). Because the determination whether a witness is competent to testify under MRE 601 and the determination whether a person is mentally incapable within...
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