People v. Armstrong

• Decision Date: 13 July 1995
• Docket Number: Docket No. 167385
• Citation: 536 N.W.2d 789,212 Mich.App. 121
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Kirk ARMSTRONG, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 789

536 N.W.2d 789

212 Mich.App. 121

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Kirk ARMSTRONG, Defendant-Appellant.

Docket No. 167385.

Court of Appeals of Michigan.

Submitted March 8, 1995, at Lansing.

Decided June 9, 1995.

Approved for Publication

July 13, 1995, at 9:05 a.m.

Released for Publication Sept. 15, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Marilyn J. Day, Assistant Prosecuting Attorney, for the People.

Kitchen & Stringer, J.D. by Thomas L. Stringer, Dexter, for defendant.

Before DOCTOROFF, C.J., and MARK J. CAVANAGH and SMOLENSKI, JJ.

PER CURIAM.

Defendant Douglas Kirk Armstrong was convicted by a jury of one count of second-degree criminal sexual conduct, M.C.L. § 750.520c(1); M.S.A. § 28.788(3)(1), and sentenced to three to fifteen years' imprisonment. Defendant appeals as of right. We affirm.

In 1991, the fifteen-year-old female victim, defendant's stepsister, ¹ spent the night at defendant's home. During the night, the victim was awakened when she was sexually assaulted by defendant.

We are first called on to construe the term affinity as used in the second-degree criminal sexual conduct statute. The information charged defendant, and the jury was instructed, with the following relevant provisions of that statute:

(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exist:

* * * * * *

(b) That other person is at least 13 but less than 16 years of age and any of the following:

* * * * * *

(ii) The actor is related by blood or affinity to the fourth degree to the victim.

* * * * * *

(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless, ² and any of the following:

(i) The actor is related to the victim by blood or affinity to the fourth degree. [M.C.L. § 750.520c(1)(b)(ii) and (h)(i); M.S.A. § 28.788(3)(1)(b)(ii) and (h)(i).]

Where a statute is clear and unambiguous, judicial construction or interpretation is precluded. People v. Jones, 190 Mich.App. 509, 512, 476 N.W.2d 646 (1991). However, if reasonable minds could differ with regard to the meaning of a statute, then judicial construction is appropriate. Michigan ex rel. Oakland Co. Prosecutor v. Dep't of Corrections, 199 Mich.App. 681, 689, 503 N.W.2d 465 (1993). In this case, the statute, M.C.L. § 750.520a et seq.; M.S.A. § 28.788(1) et seq., does not define the term "affinity." Defendant argues that he could not have committed the offense of second-degree criminal sexual conduct because he was not related by affinity to the victim where they were only stepbrother and stepsister. The prosecutor argues that the Legislature intended that the term "affinity" be construed in accordance with its common and approved definition, which includes all relationships by marriage. Thus, we believe judicial construction of the term "affinity" is appropriate in this case.

When statutory construction is necessary, this Court must "determine and give effect to the intention of the Legislature." Jones, supra 190 Mich.App. at 513, 476 N.W.2d 646. " '[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject' matter as that with which they were associated at common law." People v. Reeves, 448 Mich. 1, 8, 528 N.W.2d 160 (1995) (quoting Pulver v. Dundee Cement Co., 445 Mich. 68, 75, 515 N.W.2d 728 [1994].

Defendant relies on Bliss v. Caille Bros Co., 149 Mich. 601, 113 N.W. 317 (1907). In Bliss, the statute at issue disqualified "a judge from sitting in a case in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties." Id. 149 Mich. at 607, 113 N.W. 317. Our Supreme Court stated:

An examination of authorities has led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband. [Id. 149 Mich. at 608, 113 N.W. 317. See also Black's Law Dictionary (6th ed.), p. 59.]

This Court has applied the Bliss definition of affinity to the criminal sexual conduct statutes. In People v. Denmark, 74 Mich.App. 402, 406, 254 N.W.2d 61 (1977), the victim, who was the thirteen-year-old sister of the defendant's wife, alleged that she had been sexually assaulted by the defendant. The defendant was charged with, and convicted of, first-degree criminal sexual conduct pursuant to M.C.L. § 750.520b(1)(b); M.S.A. § 28.788(2)(1)(b), which at that time provided in relevant part:

(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

* * * * * *

(b) The other person is at least 13 but less than 16 years of age and ... the actor is related to the victim by blood or affinity to the fourth degree.

On appeal, the defendant argued that the first-degree criminal sexual conduct statute was unconstitutionally vague because the term "affinity" was undefined. Id. at 408, 254 N.W.2d 61. This Court held that the statute was not unconstitutionally vague. Id. at 409, 254 N.W.2d 61. This Court quoted the Bliss definition for the purpose of establishing that the term "affinity" had an accepted meaning. Id. at 408, 254 N.W.2d 61.

However, the term "affinity" is not capable of precise definition. In re Estate of Bordeaux, 37 Wash.2d 561, 564, 225 P.2d 433 (1950). Rather, at common law, whether someone was related to another by affinity depended upon the legal context presented. See generally id. at 566-573, 225 P.2d 433. The factual and legal context in which our Supreme Court defined affinity in Bliss differs from the factual and legal context of this case. Reeves, supra. The Bliss definition of affinity also predates the statutes dealing with criminal sexual conduct by approximately six decades. See 1974 PA 266. Additionally, in Bliss, our Supreme Court expressly limited the applicability of the definition of affinity that it adopted:

We should keep in mind, also, the fact that the use of the doctrine [of affinity] attempted is for the purpose only of determining whether in support of a high public policy affecting the administration of the law a juror or a judge should be regarded as indifferent or as biased. [Bliss, supra 149 Mich. at 608, 113 N.W. 317.]

Moreover, the factual and legal context in which this Court in Denmark applied the Bliss definition of affinity differs from that of this case, particularly where legislative intent was not at issue in Denmark. Thus, we do not believe that Bliss and Denmark provide conclusive guidance concerning whether the Legislature intended the term "affinity" to encompass stepbrothers and stepsisters. Sizemore v. Smock, 430 Mich. 283, 291, n. 15, 422 N.W.2d 666 (1988); Topps-Toeller, Inc. v. City of Lansing, 47 Mich.App. 720, 729-730, 209 N.W.2d 843 (1973); Administrative Order No. 1994-4.

Defendant also points to the marriage statute, M.C.L. § 551.3; M.S.A. § 25.3, as support for his argument that the Bliss definition is the proper definition of affinity. The marriage statute provides:

No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, nor his sister, brother's daughter, sister's daughter, father's sister, or mother's sister, or cousin of the first degree. [M.C.L. § 551.3; M.S.A. § 25.3.]

However, the marriage statute is not consistent with the Bliss definition of affinity. If it were, the statute would also prohibit a man from marrying his wife's sister because this would be a relationship between one spouse and a blood relative of the other spouse. See Bliss, supra. Thus, the marriage statute does not give additional weight to defendant's argument that Michigan has consistently defined the term "affinity."

Accordingly, we turn to principles of statutory construction for guidance. All provisions of the Penal Code are construed according to the fair import of their terms. M.C.L. § 750.2; M.S.A. § 28.192; People v. McBride, 204 Mich.App. 678, 682, 516 N.W.2d 148 (1994). Statutory language should be given a reasonable construction, considering its purpose and the object sought to be accomplished. Jones, supra. Where a word is undefined by statute it is to be construed according to its common and approved usage. In doing so, resorting to the dictionary definition is appropriate. People v. Barajas, 198 Mich.App. 551, 555, 499 N.W.2d 396 (1993). However, courts cannot expand the scope of the statutory prohibition. Reeves, supra. The Legislature is presumed to be familiar with the rules of statutory construction. Jones, supra.

In fashioning the criminal sexual conduct statute, M.C.L. § 750.520a et seq.; M.S.A. § 28.788(1) et seq., the Legislature intended to protect young persons from sexual contact by persons with whom they have a special relationship, such as relatives. See M.C.L. § 750.520c; M.S.A. § 28.788(3); see also generally People v. Mosko, 441 Mich. 496, 506, 495 N.W.2d 534 (1992); People v. Garrison, 128 Mich.App. 640, 645-646, 341 N.W.2d 170 (1983); Denmark, supra 74 Mich.App. at 410, 254 N.W.2d 61; Senate Legislative Analysis, SB 1207, July 18, 1974.

The term "affinity" is "neither an unusual nor esoteric word; nor does that criminal sexual conduct statute use the term in an uncommon...