People v. Bowyer

• Decision Date: 06 August 1981
• Docket Number: Docket No. 47846
• Citation: 310 N.W.2d 445,108 Mich.App. 517
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky Michael BOWYER, Defendant-Appellant. 108 Mich.App. 517, 310 N.W.2d 445
• Court: Court of Appeal of Michigan — District of US

Page 445

310 N.W.2d 445

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky Michael BOWYER, Defendant-Appellant.

Docket No. 47846.

108 Mich.App. 517, 310 N.W.2d 445

Court of Appeals of Michigan.

Aug. 6, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 519] Thomas J. Rasdale, Bay City, for plaintiff-appellee.

Peter J. Van Hoek, Detroit, for defendant-appellant.

Before MAHER, P. J., and ALLEN and CYNAR, JJ.

PER CURIAM.

The information filed on March 5, 1979, charged the defendant with one count of criminal sexual conduct in the first degree under M.C.L. § 750.520b; M.S.A. § 28.788(2). On the same date and at the same time, a supplemental information was filed, charging the defendant as a third-time felony offender. He was tried and convicted by a jury on July 9, 1979, of first-degree criminal sexual conduct. M.C.L. § 750.520b; M.S.A. § 28.788(2). He subsequently pled guilty to a supplemental information admitting two prior convictions. On August 6, 1979, defendant was sentenced to a prison term of from 25 to 50 years. Defendant's motion for a new trial or, in the alternative, resentencing was denied, and he appeals as of right.

Five-year old Kimberly Davis was the principal prosecution witness. Kim testified that she lived [108 MICHAPP 520] with her natural father, Gary Davis, and her stepmother, Pamela Davis. Her natural mother, Gisela Bowyer, was married to defendant. Kim testified as to various acts of sexual misconduct involving herself and defendant. The acts took place while Kim was on a weekend visit to the Bowyers.

Although Kim's testimony contained some inconsistencies, other aspects including testimony regarding oral sex acts were consistent. She also made drawings in court in conjunction with what she and the defendant did.

Defendant's first claim of error concerns the trial court's denial of a motion for directed verdict. Additionally, the defendant contends that even had the proper standard been applied, the evidence was insufficient to be presented to the jury and/or that the evidence was contrary to the great weight of the evidence. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), recognizes that the proper standard to be applied in passing on motions for directed verdicts in criminal cases is enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Hampton decision states 407 Mich. on page 368, 285 N.W.2d 284.

"In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, (People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976)), view that evidence in a light most favorable to the prosecution, People v. Vail, 393 Mich. 460, 463, 227 N.W.2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, supra, (443 U.S.) p. 319 (99 S.Ct. 2789)."

The trial court in denying the motion for a [108 MICHAPP 521] directed verdict at the close of the prosecutor's case in chief stated that the court was satisfied that there was sufficient testimony to demonstrate the commission of a crime and that it was the defendant who committed the crime. The trial court did use the applicable standard as announced in Hampton, supra. The record supports the trial court's ruling in denying the motion for directed verdict.

As stated in Hampton, supra, 372-373, 285 N.W.2d 284:

"The standards governing the grant or denial of a motion for a new trial are different from those for a directed verdict. M.C.L. § 770.1; M.S.A. § 28.1098, provides:

" 'The court in which the trial of any indictment shall be had may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.'

"Under this statute, a new trial may be granted if the trial judge finds that the guilty verdict was not in accordance with the evidence introduced and that an injustice has been done. People v. Henssler, 48 Mich. 49, 51, 11 N.W. 804 (1882), People v. Rayford Johnson, 391 Mich. 834, 218 N.W.2d 378 (1974). See, also, GCR 1963, 527.1(5). The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion, People v. Andrews, 360 Mich. 572, 104 N.W.2d 199 (1960), People v. Lowenstein, 309 Mich. 94, 14 N.W.2d 794 (1944)."

Defendant contends that even if the evidence is found to be legally sufficient for the case to have gone to the jury, there is such a strong possibility that the resulting conviction was unsupported factually that this Court should overturn the conviction. A major part of defendant's argument is [108 MICHAPP 522] premised on the contention of inconsistencies in the testimony of Kimberly Ann Davis. It is for the jury to decide who to believe and what testimony of a particular witness to believe. People v. Hancock, 326 Mich. 471, 504, 40 N.W.2d 689 (1950), People v. Franszkiewicz, 302 Mich. 144, 153-154, 4 N.W.2d 500 (1942), People v. English, 302 Mich. 463, 469, 4 N.W.2d 727 (1942), People v. Miceli, 35 Mich.App. 176, 178, 192 N.W.2d 335 (1971), People v. Strunk, 11 Mich.App. 99, 101-103, 160 N.W.2d 602 (1968).

In People v. Stewart, 36 Mich.App. 93, 98, 193 N.W.2d 184 (1971), this Court stated that great deference should be given to the trier of fact because of the problems inherent in reviewing a cold transcript. The Court stated:

"When an appellate court is confronted with a challenge to the judgment of the trier of the facts, it will not easily be moved to overturn the judgment below. The trier of the facts, be it judge or jury, has had the opportunity to listen to the witnesses and observe their demeanor; he has had the opportunity to observe and evaluate the plethora of subjective and objective factors which together influence his opinion of the credibility of the witnesses. These factors do not survive in the stenographic transcription, we merely have a record of the words spoken at trial an incomplete record at best. For this reason, an appellate court is reluctant to overturn the judgment of the trier of fact and substitute its judgment, which must necessarily be based on an inadequate description of the factors which lead the trier of fact to reach its decision."

The jurors had an opportunity to listen to the witnesses, observe their demeanor, evaluate and weigh the testimony, and determine their credibility. The trial court did not abuse its discretion in denying the motion for a new trial. The testimony [108 MICHAPP 523] was sufficient under Hampton not only to deny the motion for directed verdict but also to support the jury verdict.

Defendant alleges that the prosecutor impermissibly flouted the rules of evidence in his arguments to the jury by stating that unanswered questions would remain in the case. No objections were raised during trial to the prosecutor's remarks, and unless a miscarriage of justice would result, the issue cannot be raised now, People v. Clark, 88 Mich.App. 88, 276 N.W.2d 527 (1979), People v. Moncure, 94 Mich.App. 252, 288 N.W.2d 675 (1979). We find no miscarriage of justice in the present case.

Defendant's third contention is that he was denied his right to notice since the information stated the date of the offense as "on or about 2/2/79". Again, no objection was made during trial to the information, and the issue thus is not preserved for review, People v. Atsilis, 60 Mich.App. 738, 231 N.W.2d 534 (1975), People v. Stinson, 88 Mich.App. 672, 278 N.W.2d 715 (1979). Defendant's contention also fails on its merits because a time variance is permissible unless time is an element of the offense or of the essence of the offense, see M.C.L. § 767.51; M.S.A. § 28.991, and neither exception applies here. See also, People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976).

Defendant contends that the in-court drawings were admitted improperly as demonstrative evidence. The specific ground of objection now raised, irrelevancy, was not the ground raised at trial. The first drawing, at least, depicting a mouth and a penis, was relevant to the case and, therefore, properly admitted. Even if the other drawings were admitted improperly, no reversible error occurred.

[108 MICHAPP 524] Defendant's final contention concerns sentencing. During sentencing on August 6, 1979, the following exchange took place:

"THE COURT: * * * We have reviewed the material you submitted and it has, I believe, been added to the pre-sentence report. It would primarily address itself to the reason why I should not now impose a sentence because you contend that you are innocent of that offense and that the jury...