People v. Crear

• Decision Date: 18 October 2000
• Docket Number: Docket No. 209195.
• Citation: 242 Mich. App. 158,618 N.W.2d 91
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George CREAR, III, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

618 N.W.2d 91

242 Mich. App. 158

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George CREAR, III, Defendant-Appellant.

Docket No. 209195.

Court of Appeals of Michigan.

Submitted May 2, 2000, at Detroit.

Decided August 15, 2000, at 9:05 a.m.

Released for Publication October 18, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek), for the defendant on appeal.

Before McDONALD, P.J., and GAGE and TALBOT, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of three counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(b); MSA 28.788(2)(1)(b), and two counts of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(b); MSA 28.788(3)(1)(b). For the first-degree criminal sexual conduct convictions, defendant was sentenced to prison terms of life, forty to seventy-five years, and twenty-five to forty years. For the second-degree criminal sexual conduct convictions, defendant was sentenced to prison terms of eight to fifteen years and ten to fifteen years. All sentences are to be served concurrently. Defendant appeals as of right. We affirm. Defendant is a former band instructor at Whittier Middle School and Central High School in Flint. He was convicted for his sexual abuse of the victim that occurred over two school years, 1982-83 and 1983-84, beginning when the victim was in seventh grade. When the victim began seventh grade she was twelve years old, but she turned thirteen years old in November 1982.

Within the first few months of the 1982-83 school year, defendant initiated a friendship with the victim, which resulted in the victim confiding in defendant regarding problems at home and relying on defendant for support. However, the relationship changed around Thanksgiving of 1982. At that point, instead of giving her friendly advice, defendant began making comments that made the victim uncomfortable such as "I see you looking at me." In February 1983, following a band concert after school hours and while waiting for the victim's mother to pick her up, defendant grabbed the victim's hand and placed it on top of his clothes over his penis. From that point, defendant escalated his sexual acts with the victim, including making the victim fondle his unclothed penis and making the victim perform fellatio on him and swallow his ejaculate. The victim estimated that defendant had her fondle him and perform oral sex on him at least ten to fifteen times in the last few months of the school year when she was in seventh grade. These incidents took place in a room known as the "hot box" across the hall from the band room.

When the victim returned to school the following year for eighth grade, defendant was no longer the band instructor at Whittier, but taught at Central High School, which was located next to Whittier. Defendant's wife, Cherlyn Crear, was the band instructor at Whittier that year, but because of illness, Cherlyn often was absent or could not conduct her class. Accordingly, defendant often taught Cherlyn's class at Whittier and still had access to the "hot box." In addition, defendant arranged for the victim to be a teacher's aide to Cherlyn, which involved further contact between the victim and defendant at Central and at Whittier. The victim testified that when the school year began, defendant resumed the sexual abuse, making the victim fondle him and perform oral sex on him in the "hot box" and in the band room at Central. Eventually, defendant's sexual abuse of the victim progressed to digital penetration of her vagina.

Defendant continued to sexually abuse the victim until March 1984, when she was still in eighth grade. Following an incident where defendant slapped the victim across the face in front of some other students, the victim decided to report the slap and the sexual abuse to the school's principal. The school took the victim's statement, and the police were contacted. However, no charges were brought against defendant at that time. Shortly thereafter, the victim was required to transfer to another school. Her mother decided not to pursue the matter criminally because of the way the school handled it and the harm caused to the victim.

Later, in 1987, two women who had been students of defendant came forward and alleged to the Flint School District that they had been sexually abused by defendant while they were students in the late 1970s. In part because of these allegations, defendant left Michigan in 1987 and took a job in Miami, Florida, as a band instructor at Palmetto High School. Defendant also explained that his move was motivated in part by the death of his wife Cherlyn from cancer in 1985. When defendant relocated to Florida, Liz Crawford, who had also been a student of his in the late 1970s moved with him. He and Liz were married in 1988.

In 1994 or 1995, criminal charges were filed against defendant in Florida after former female students alleged that defendant engaged in sexual conduct with them while they were high school students in his band classes.¹ After seeing media coverage of the Florida criminal proceedings, the victim decided in 1995 to again come forward and the instant criminal proceedings were initiated against defendant.

Defendant first argues that his prosecution for the charged offenses, which occurred in 1983, was time-barred under the applicable statute of limitations, M.C.L. § 767.24(1); MSA 28.964(1), and that the trial court erred in applying the nonresident tolling provision of the statute to conclude that the six-year period of limitation was tolled during the time that he resided in Florida. Defendant, who moved to Florida in 1987, argues that the tolling provision should not apply because he was residing openly and publicly in Florida and could have been extradited back at any time to defend against any charges. We disagree with defendant's interpretation of the tolling provision in M.C.L. § 767.24(1); MSA 28.964(1).

The statute provides, in relevant part:

(1) An indictment for the crime of murder may be found at any period after the death of the person alleged to have been murdered. Indictments for the crimes of kidnapping, extortion, assault with intent to commit murder, and conspiracy to commit murder shall be found and filed within 10 years after the commission of the offense. Except as otherwise provided in subsection (2), all other indictments shall be found and filed within 6 years after the commission of the offense. However, any period during which the party charged did not usually and publicly reside within this state shall not be considered part of the time within which the respective indictments shall be found and filed. [MCL 767.24(1); MSA 28.964(1) (emphasis added).]

In People v. McIntire, 232 Mich.App. 71, 591 N.W.2d 231 (1998), the defendant made a similar argument regarding the nonresident tolling provision of M.C.L. § 767.24(1); MSA 28.964(1). There, this Court held that the nonresident tolling provision of M.C.L. § 767.24(1); MSA 28.964(1) is plain and unambiguous. Id. at 98, 591 N.W.2d 231. In McIntire, this Court relied on the well-established rule that the Legislature is presumed to have intended the meaning it plainly expressed, People v. Gould, 225 Mich.App. 79, 83, 570 N.W.2d 140 (1997). This Court concluded that the statute must be applied as written and that it did not prevent the limitation period from being tolled even though the defendant was living openly in South Carolina, it was easy for the authorities to locate him, he did not leave this state to avoid prosecution, and the defendant's absence did not prevent prosecutors from going forward with the case. McIntire, supra at 98, 591 N.W.2d 231. This Court specifically concluded that applying the tolling provision under those facts was what the Legislature intended and rejected the views of a minority of other states that limited application of a tolling provision only where a suspect had absconded or was not amenable to process. Id. at 99-100, 591 N.W.2d 231. This Court also pointed out that Michigan's tolling provision applies only in those situations where a suspect is no longer a resident of this state, not just where the suspect is absent from this state. Id. at 100, n. 16, 591 N.W.2d 231.

We are cognizant that this Court's decision in McIntire was reversed by our Supreme Court, People v. McIntire, 461 Mich. 147, 599 N.W.2d 102 (1999), which reversed on other grounds and did not address the statute of limitations question. As a result, this Court's decision is not binding precedent under MCR 7.215(H)(1). See Taylor v. Kurapati, 236 Mich.App. 315, 344-346, n. 42, 600 N.W.2d 670 (1999). Nevertheless, we find that this Court's analysis of the statute of limitations question in McIntire is both persuasive and applicable to this case. Thus, because there is no dispute that defendant had resided in Florida since 1987, we conclude that the trial court did not err in holding that the period of limitation was tolled after defendant moved to Florida in 1987 and that, consequently, the charges in this case were timely filed.

Defendant also challenges the constitutionality of the tolling provision in M.C.L. § 767.24(1); MSA 28.964(1), arguing that it impermissibly infringes on his constitutional right to travel. We find no merit to this argument. The provision applies only where residency is established in another state and, therefore, is tailored so that it does not unreasonably infringe upon a defendant's right to travel. Further, we believe that the tolling provision advances a compelling state interest in permitting later prosecutions in cases where a defendant no longer resides in the jurisdiction. Therefore, the tolling provision is not unconstitutional. Dunn v. Blumstein, 405 U.S. 330, 338-339, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972...