People v. Biegajski

• Decision Date: 06 May 1983
• Docket Number: Docket No. 52927
• Citation: People v. Biegajski, 332 N.W.2d 413, 122 Mich.App. 215 (Mich. App. 1983)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John William BIEGAJSKI, Defendant-Appellant. 122 Mich.App. 215, 332 N.W.2d 413
• Court: Court of Appeal of Michigan

Page 413

332 N.W.2d 413

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.John William BIEGAJSKI, Defendant-Appellant.

Docket No. 52927.

122 Mich.App. 215, 332 N.W.2d 413

Court of Appeals of Michigan.

Submitted July 21, 1982.

Decided Nov. 19, 1982.

Released for Publication May 6, 1983.

[122 MICHAPP 218]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., William L. Cahalan, Pros.Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros.Atty., Civil and Appeals, and Carolyn Schmidt, Asst. Pros.Atty., for the People.

State Appellate Defender by Derrick A. Carter, Detroit, for defendant-appellant on appeal.

Before T.M. BURNS, P.J., and BEASLEY and SIMON, ^* JJ.

PER CURIAM.

On April 10, 1980, defendant, John William Biegajski, was convicted as charged by a Wayne County jury of first-degree criminal sexual conduct, in violation of M.C.L. Sec. 750.520b(1);M.S.A. Sec. 28.788(2)(1), cruelty to a child, in violation of M.C.L. Sec. 750.136;M.S.A. Sec. 28.331, and torture of a child, in violation of M.C.L. Sec. 750.136a;M.S.A. Sec. 28.331(1).After being sentenced to not less than 4 1/2 years nor more than 12 years on the criminal sexual conduct count, not less than 2 years nor more than 4 years on the child cruelty count, and not less than 4 years nor more than 10 years on the child torture count, the sentences to be served concurrently, defendant appeals his convictions as of right.

The victim, the son of defendant's 18-year-old girlfriend, was two years old at the time of the offenses.After living together at various residences [122 MICHAPP 219] for about five months, defendant, the child and the child's mother moved to a Westland home in November of 1979.Soon thereafter, defendant, although not the child's father, began to administer discipline in the form of severe beatings and slappings.

The victim's mother testified that defendant exercised control over her son.She stated that defendant would vent his anger by assaulting the child and that these incidents occurred between November 15 and December 22, 1979.

At some point during the five week period at the Westland home, the child's mother discovered that her son inadvertently had cut his penis while zipping up his pajamas.When she attempted to apply ointment to the wound, defendant interfered and applied his own "treatment", which consisted of having the child lie naked on the bathroom floor while defendant poured rubbing alcohol over the child's penis and groin area.Repeated dousings of alcohol resulted in the formation of scabs and chemical burns on the child's penis, scrotum and groin area.

Also testifying at trial was the parties' physician, D.F. Hopkins.Dr. Hopkins testified that his examination of the child during the latter portion of December 1979, revealed that the child sustained chemical burns on the penis and inner thighs, as well as bruises on the abdomen, ear, buttocks, back, and chest.Upon further examination, Dr. Hopkins discovered that an object had been inserted into the victim's rectum, causing a tearing of the sphincter muscle and damage to the anal area.

On appeal, defendant raises five issues.First, he maintains that the trial court erred by allowing an arresting officer to testify, over defense counsel's [122 MICHAPP 220] objection, concerning the facts surrounding defendant's arrest on January 6, 1980.

The arresting officer, Lennis Hayes, testified that when he and his partner arrived at defendant's residence to effect the arrest, they discovered that defendant was hiding from them in the basement.When the officers informed defendant that they had a warrant for John Biegajski's arrest, defendant lied to them about his identity.In testifying regarding the events surrounding the arrest, defendant explained that he concealed himself from the officers because he thought they were investigating him regarding a stolen automobile.

The trial court gave the following charge to the jury concerning the foregoing incident:

"Members of the Jury, there has been some evidence that the defendant attempted to hide immediately before he was arrested.You should first determine whether you believe the testimony and whether you believe that such testimony establishes that the defendant was running away or either hiding.Such evidence is not enough to convict or prove that the defendant committed a crime.It may point to panic, mistake, or fear equally as well.It is, however, a circumstance which you may consider in weighing the evidence in which you may find shows a consciousness of guilt."

The trial court did not err by allowing Officer Hayes to testify pertaining to defendant's secretive actions during the arrest.Evidence of an attempt to avoid arrest and flight in a criminal case is relevant, material, admissible and can lead to an inference of guilt.¹

Defendant next claims that conviction of both child cruelty and child torture violates the double [122 MICHAPP 221] jeopardy prohibitions of the United States ² and Michigan Constitutions.³Defendant asserts that the two convictions were based on the same acts and, consequently, he was subjected to multiple punishment for one offense.

Among other things, the Fifth Amendment guarantee against double jeopardy safeguards against multiple punishments for the same offense.⁴In Iannelli v. United States, ⁵the Supreme Court set forth the test applicable to multiple punishments:

" ¹⁷ The test articulated in Blockburger v. United States, 284 US 299; 52 S Ct 180; 76 L Ed 306(1932) serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction.In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.'* * * As Blockburger and other decisions applying its principle reveal, * * * the Court's application of the test focuses on the statutory elements of the offense.If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.SeeGore v. United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405(1958).

We think that the Blockburger test would be satisfied in this case.The essence of the crime of conspiracy is agreement, * * * an element not contained in the statutory definition of the Sec. 1955[18 USC 1955] offense.In a similar fashion, proof of violation of Sec. 1955 requires establishment of a fact not required for conviction for conspiracy to violate that statute.To establish violation of Sec. 1955the prosecution must prove that the defendants actually did 'conduct, finance, manage,[122 MICHAPP 222] supervise, direct, or own all or part of an illegal gambling business.'Sec. 1955(a).The overt act requirement in the conspiracy statute can be satisfied much more easily.Indeed, the act can be innocent in nature, provided it furthers the purpose of the conspiracy."(Citations omitted.)

M.C.L. Sec. 750.136;M.S.A. Sec. 28.331, the child cruelty statute, provides in pertinent part:

"Any parent or guardian or person under whose protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under 16 years of age, or who habitually causes or permits the health of such child to be injured, his or her life endangered by exposure, want or other injury to his or her person, or causes or permits him or her to engage in any occupation that will be likely to endanger his or her health, or deprave his or her morals or who habitually permits him or her to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall, upon conviction, be deemed guilty of a felony."

M.C.L. Sec. 750.136a;M.S.A. Sec. 28.331(1), the child torture statute, provides:

"Any parent or guardian or person under whose protection or control any child may be, who tortures such child, shall be guilty of a felony and may be punished by imprisonment for not more than 10 years."

The elements of the offense of cruelty to a child under the portion of the statute with which defendant was charged are (1)defendant was an individual, such as a parent, guardian, or camp counselor, [122 MICHAPP 223] who was responsible for the protection of a child, and (2)defendant punished the child in a cruel or unlawful manner.

The child torture statute, unlike the child cruelty statute, does not contain the word "punish".Rather, the infliction of torture upon a child constitutes the offense of child torture.Since the statute does not define "torture", we construe the word "according to the common and approved usage of the language".⁶

Black's Law Dictionary defines torture as "the infliction of violent bodily pain upon a person".⁷Torture also has been defined as "the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure".⁸

In view of the fact that the Legislature chose to use the word punishment in the child cruelty statute only, we hold that a punishment motive is not part of the child torture statute, but rather "torture", in terms of the statute, refers to the infliction of violent bodily pain upon a child to satisfy sadistic motives.We conclude that the Legislature intended the child torture statute to apply to instances of sadism or vileness, where the "parent or guardian or person under whose protection or control any child may be" inflicts pain for purposes other than punishment.

The prosecutor based the child torture count on defendant's administering of rubbing alcohol to the victim's penis and defendant...