People v. Davis

• Decision Date: 24 October 1980
• Docket Number: Docket No. 49674
• Citation: 101 Mich.App. 198,300 N.W.2d 497
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis DAVIS, Defendant-Appellant. 101 Mich.App. 198, 300 N.W.2d 497
• Court: Court of Appeal of Michigan — District of US

Page 497

300 N.W.2d 497

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis DAVIS, Defendant-Appellant.

Docket No. 49674.

101 Mich.App. 198, 300 N.W.2d 497

Court of Appeals of Michigan.

Oct. 24, 1980.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 199] Thomas P. McLaughlin, Jr., Harrison, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Leonard J. Malinowski, Thomas C. Nelson, Asst. Attys. Gen., Richard S. Allen, Pros. Atty., for plaintiff-appellee.

Before MacKENZIE, P. J., and ALLEN and WALSH, JJ.

PER CURIAM.

Defendant was charged in a four-count information with (1) criminal sexual conduct, (2) possession of a firearm while committing criminal sexual conduct, (3) armed robbery and, (4) possession of a firearm while committing armed robbery. Pursuant to a plea agreement, counts three and four were dropped, and defendant pled guilty to counts one and two. On November 5, 1979, he was sentenced to prison for eight to twenty years [101 MICHAPP 200] for violation of count one and two years in prison for violation of count two. He appeals of right, claiming four grounds for reversal or resentencing.

At the plea-taking hearing, defendant stated that he and a codefendant, Walker, went to the complainant's cabin at about 4:00 a. m., that both were armed and wearing nylon stocking masks, that they opened the cabin door and entered, that one of the two female occupants awakened, that they took the purse of one of the occupants and three bottles of liquor and left, that later they returned still armed and took both girls to the beach, that defendant was carrying a .22-caliber rifle when he "took" complainant to the beach, that, upon reaching the beach, he threw the weapon down and proceeded to have intercourse with the victim, and that during the period of intercourse, the gun lay approximately six feet away.

Of the four grounds which defendant raises as reasons for reversal, two may be disposed of peremptorily. ¹ First-degree criminal sexual conduct is punishable by life imprisonment or any term of years. The maximum sentence imposed by the court was well within the statutory maximum, and the minimum was less than two-thirds of the maximum. Thus, the sentence complied with People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972). Though defendant was only 18 years of age and had never been charged with an offense before, the seriousness of the act and the bizarre circumstances under which it was committed lead us to conclude that the prison term imposed by the court neither shocks the conscience of this Court [101 MICHAPP 201] nor is disproportionate to the crime committed. People v. Jackson, 29 Mich.App. 654, 656, 185 N.W.2d 608 (1971).

At sentencing, counsel for defendant objected to a statement in the presentence report that the defendant's attitude evidenced "a lack of caring for things". The court responded that "the court will disregard those portions which you felt were injurious to the well being of your client". Given the fact that the trial judge disclaimed reliance on the subjective evaluation of that part of the report to which counsel objected, we find no error. People v. Koch, 74 Mich.App. 132, 137, 253 N.W.2d 684 (1977).

The principal ground on which defendant relies for reversal is that at the time of sexual penetration, defendant was not armed with a weapon. Penetration occurred at the beach at which time the gun was lying approximately six feet away. First-degree criminal sexual conduct is defined as follows:

"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exist:

(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon." M.C.L. § 750.520b(1)(e); M.S.A. § 28.788(2)(1)(e). (Emphasis supplied.)

The issue raised is of first impression. Is an actor "armed with a weapon", as that term is used in the statute defining first-degree criminal sexual conduct if, at the time of sexual penetration, the actor is not physically holding the rifle but the rifle lies some six feet away?

While there are no Michigan cases directly on [101 MICHAPP 202] point, tangential Michigan case law suggests that the answer is "yes". Thus, the term "possession" has been held to include both actual and constructive possession. People v. Mumford, 60 Mich.App. 279, 282-283, 230 N.W.2d 395 (1975). One has constructive possession if one has proximity to the article together with indicia of control. Mumford, supra, People v. Harper, 365 Mich. 494, 506-507, 113 N.W.2d 808 (1962). In People v. Little, 58 Mich.App. 12, 226 N.W.2d 735 (1975), our Court held the prosecution need not prove physical possession of weapons in order to convict under a statute reading in pertinent part: "Any person who shall carry a * * * dangerous weapon * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony * * *." M.C.L. § 750.227; M.S.A. § 28.424. In People v. Khan, 80 Mich.App. 605, 264 N.W.2d 360 (1978), a case factually similar to the situation before us, defendant pulled the complainant into a garage and had intercourse with her after he first had pointed a rifle at complainant's brother and had threatened to kill her sister. Defendant had dropped the rifle before dragging complainant into the garage. The Court sustained a conviction of third-degree criminal sexual conduct saying:

"In the instant case, complainant had witnessed defendant pointing a rifle at her brother, had heard defendant threaten to kill her sister and had received a hard slap from defendant when she spurned his advances. At the very least, then, the jury could have interpreted the slap as a 'threat * * * to use...