People v. Borders

• Decision Date: 20 January 1972
• Docket Number: No. 2,Docket No. 11170,2
• Citation: People v. Borders, 37 Mich.App. 769, 195 N.W.2d 331 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Arnold BORDERS, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 331

195 N.W.2d 331

37 Mich.App. 769

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Larry Arnold BORDERS, Defendant-Appellant.

Docket No. 11170.

Court of Appeals of Michigan, Division No. 2.

Jan. 20, 1972.

Rehearing Denied March 16, 1972.

Released for Publication March 17, 1972.

Farhat, Burns and Luoma, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Bruce A. Barton, Pros.Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and TARGONSKI, ^* JJ.

DANHOF, Judge.

After a jury trial the defendant was convicted of carnal knowledge of a female under the age of 16. M.C.L.A. § 750.520;M.S.A. § 28.788.His motion for new trial was denied and he now appeals contending that the people did not produce sufficient evidence to support a jury finding that penetration had been proven beyond a reasonable doubt.It is well-settled that one of the elements of the offense of rape is penetration by the male organ.People v. Rivers, 147 Mich. 643, 111 N.W. 201(1907);People v. Courier, 79 Mich. 366, 44 N.W. 571(1890).We find the defendant's contention to be meritorious and we reverse and remand for entry of a judgment convicting the defendant of assault with intent to rape, M.C.L.A. § 750.85;M.S.A. § 28.280, and for sentencing on that conviction.

The victim of the alleged crime was a 5-month-old infant who suffered injuries in the vaginal area that required medical treatment.The defendant denies his guilt and there were no eyewitnesses.The defendant made several admissions, which were admitted into evidence, but he has always denied using his penis.The defendant was the only adult male who had access to the child at the time the crime was committed, and if she was raped he was the only person who could be guilty.The strongest evidence of penetration was the testimony of a physician who stated that the injury was compatible with the type of injury that would occur when a penis was forcibly introduced into the vagina.However, the injury could have been caused by some other object.Viewing the record as a whole, we hold that the evidence was not sufficient to support a reasonable inference that there had been penetration of the child by the defendant.

We are not unmindful of the fact that penetration may be proved by circumstantial evidence, and that the testimony of a physician showing the condition of the parts is an important item of evidence.People v. Scouten, 130 Mich. 620, 90 N.W. 332(1902).The test for determining the sufficiency of circumstantial evidence was set forth in People v. Aikin, 66 Mich. 460, 483, 33 N.W. 821, 831(1887) as follows:

'The verdict of guilty in a criminal case resting upon circumstantial evidence is built upon a series of facts connected logically together, and one fact succeeding another in a certain order; one fact resting or depending upon another as a result of the proceeding.These material and essential facts necessary to convict, following one another, and each adding strength and conviction to the other and the whole, and which, as a whole, complete a perfect and irresistible chain, must each and every one be established and proved.And who can say that this chain, so formed, is a perfect and complete chain to a moral certainty, or beyond a reasonable doubt, if there be a want of such moral certainty or a reasonable doubt as to the existence of one of these links, without which the chain is broken and incomplete?Each necessary link, each and every material and necessary fact, upon which a conviction depends, must be proved beyond a reasonable doubt.'

In this case the final link in the chain is missing.There was ample evidence, both circumstantial and direct, to support a finding that the defendant had committed a crime.However, there was not sufficient evidence of penetration to support a finding that the crime was rape.

Although the defendant's...