People v. Barnett, Docket No. 82996

• Citation: 165 Mich.App. 311,418 N.W.2d 445
• Decision Date: 05 February 1988
• Docket Number: Docket No. 82996
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Courtney Arcia BARNETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 445

418 N.W.2d 445

165 Mich.App. 311

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Courtney Arcia BARNETT, Defendant-Appellant.

Docket No. 82996.

Court of Appeals of Michigan.

Submitted May 4, 1987.

Decided Dec. 21, 1987.

Released for Publication Feb. 5, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Kevin M. Bramble, Asst. Pros. Atty., for people.

Milton J. Marovich, P.C. by Milton J. Marovich, Kalamazoo, for defendant-appellant.

Before J.H. GILLIS, P.J., and SULLIVAN and TALBOT, ^* JJ.

PER CURIAM.

Defendant was charged with child torture, M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1). Following a jury trial, defendant was convicted of child cruelty, M.C.L. Sec. 750.136; M.S.A. Sec. 28.331. A second jury subsequently convicted defendant of being an habitual offender, third offense, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant was sentenced to a term of five years and four months to eight years in prison. Defendant now appeals as of right, raising five claims of error. We affirm.

The charge against defendant stemmed from an incident which occurred in the family home in October of 1983. Defendant's son, Courtney Wadley, age eight, testified that he left his home without permission to visit a friend. After returning, he watched television before his father, the defendant, ordered him to the basement. Defendant, who was "upset," ordered the child to remove all his clothing and to lie across a bed. Defendant then proceeded to strike the child with a thick belt. The child attempted to avoid the blows and so the defendant went upstairs and returned with a roll of beige-colored tape. Defendant bound the ankles, feet, and wrists of his naked eight-year-old son as the child was lying on the basement floor. After binding the child's wrists and ankles, defendant suspended the child upside down from a pipe running across the ceiling using a second belt. With his naked and bound child dangling upside down in midair, defendant proceeded to whip the child with the first belt until the second belt suspending the child broke. After the child fell to the ground, defendant began striking the child with a dog leash and a yardstick. Not quite finished, defendant struck the child in the face with his hands and began kicking the child in the stomach. At this time, the child's mother came downstairs and stopped the beating. She took the tape off the child's wrists and ankles, cleaned him up, and put him to bed. The following day, the child attended school despite orders from defendant to stay home. The child's condition was observed by school officials who summoned authorities to investigate the suspected child abuse. The medical testimony presented at trial indicated that the child suffered, among other injuries, a perforation of both of his eardrums.

On appeal, defendant first contends that the trial court abused its discretion by prohibiting the introduction of certain impeachment testimony. The trial court ruled that the proffered testimony was inadmissible because defense counsel failed to lay a proper foundation pursuant to MRE 613 to impeach a prosecution witness with extrinsic evidence of a prior inconsistent statement. We publish this opinion in hopes that it will guide the bench and bar in laying a proper foundation for the admission of evidence pursuant to MRE 613.

MRE 613 provides:

"(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, if written the statement must be shown to the witness and if oral, its substance and the time, place, and person to whom the statement was made must be disclosed to the witness, and on request must be shown or disclosed to opposing counsel.

"(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)."

When attempting to impeach a witness with a prior inconsistent statement made by the witness, a proper foundation must be laid by questioning the witness as to the time and place of the statement and the person to whom it was allegedly made. People v. Santana, 139 Mich.App. 484, 488, 363 N.W.2d 702 (1984). Once a proper foundation is laid and the witness either admits or denies making the statement, the witness may be impeached by proof of the statement. Id.

In the instant case, defense counsel failed to lay a proper foundation for admission of proffered impeachment testimony. Defense counsel first asked the witness, Flora Barnett, if she told her mother-in-law that she had struck the child. The witness responded negatively to this inquiry. In questioning the witness regarding the substance of the alleged statement, defense counsel did not allude to a time or place when this statement was allegedly made. Defense counsel subsequently inquired whether the witness had a telephone conversation with her mother-in-law a few days after the incident; however, defense counsel failed to inquire as to the substance of this conversation. Defense counsel never specifically tied his inquiry regarding the substance of the conversation to the foundational factors of time and place. Therefore, defense counsel failed to lay a proper foundation for admission of the proffered impeachment testimony. The trial court did not abuse its discretion in ruling that the evidence was inadmissible.

Defendant next argues that the trial court erred in denying his motion for a directed verdict on the charge of child torture. In reviewing this claim of error, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime charged were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980); People v. Marks, 155 Mich.App. 203, 399 N.W.2d 469 (1986).

In the instant case, the evidence was sufficient for a rational trier of fact to convict defendant of child torture. By the very nature of the beating, the methodical way in which the defendant continued to beat the child, and the high degree of pain and injury inflicted upon the child, the jury could reasonably infer that all of the essential elements of the crime had been established beyond a reasonable doubt. See People v. Shelton, 138 Mich.App. 510, 513-515, 360 N.W.2d 234 (1984). The trial court did not err in denying defendant's motion for a directed verdict.

Defendant also argues that the trial court erred in instructing the jury, over defendant's objection, on the offense of child cruelty. At the conclusion of trial, the jury was instructed on the charge of child torture and also on the offense of child cruelty. Defendant asserts that since he was never charged with child cruelty and had no notice of the child cruelty charge, the trial court erred in instructing the jury on the offense. We disagree.

It is well settled that a trial court has no authority to convict a defendant of an offense with which he was not charged unless the defendant has had adequate notice. DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975); People v. Quinn, 136 Mich.App. 145, 356 N.W.2d 10 (1984). However, fair notice requirements are satisfied if the subsequent charge is a lesser included offense of the original charge. Ora Jones, supra, 395 Mich. p. 388, 236 N.W.2d 461; People v. William James, 142 Mich.App. 225, 227, 369 N.W.2d 216 (1985); Quinn, supra, 136 Mich.App. p. 147, 356 N.W.2d 10. Child cruelty is a necessarily lesser included offense of child torture. Shelton, supra, 138 Mich.App. p. 515, 360 N.W.2d 234. Accordingly, defendant had adequate notice and the trial court did not err in giving the...