People v. Ferguson

• Decision Date: 28 March 1973
• Docket Number: Docket No. 13564,No. 1,1
• Citation: 206 N.W.2d 812,45 Mich.App. 697
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otha FERGUSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 812

206 N.W.2d 812

45 Mich.App. 697

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otha FERGUSON, Defendant-Appellant.

Docket No. 13564.

Court of Appeals of Michigan, Division No. 1.

March 28, 1973.

Released for Publication May 15, 1973.

Sidney Kraizman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and J. H. GILLIS, JJ.

LESINSKI, Chief Judge.

The defendant was charged and convicted of statutory rape, M.C.L.A. § 750,520; M.S.A. § 28.788, and gross indecency, M.C.L.A. § 750.338b; M.S.A. § 28.570(2). He appeals as of right.

Two significant issues are raised on this appeal. On direct examination the complainant testified that she had been assaulted on other occasions by the accused and others. During cross-examination counsel for the defendant also alluded to prior assaults by the defendant and others on the complainant.

Defendant now contends that references to prior sexual assaults constitute impermissible evidence of prior offenses which the trial court should have either excluded altogether or cured immediately by instruction. Evidence of prior acts is admissible by statute. M.C.L.A. § 768.27; M.S.A. § 28.1050, only to show motive, intent, scheme, or plan on the part of the defendant.

Defendant claims that our decision in People v. Askar, 8 Mich.App. 95, 153 N.W.2d 888 (1967), is applicable here. There it was held that because of the possibility of prejudice in sex offenses, when evidence of prior acts is introduced the trial court must immediately instruct the jury that such evidence is admitted only for a limited purpose. Askar has been criticized by the Michigan Supreme Court in People v. Kelly, 386 Mich. 330, 336, 192 N.W.2d 494, 498 (1971). The Court said: 'the language concerning the necessity of immediate instructions is dicta'. All that is actually necessary, in the absence of a specific request at that time or a showing of a miscarriage of justice, is an instruction when the court makes its final instruction to the jury.

No limiting instruction was requested in the case before us. None was given in the final instructions by the court. This was error. People v. Kelly, Supra.

Furthermore, in his instruction concerning the gross indecency count, the judge charged the jury:

'Now, the second count in this information relates to the alleged crime of gross indecency, and the term gross indecency is used in a rather limited sense. It relates only to what is sometimes called oral perversion--instances in which there are sexual relations in which the mouth of one participant and the sexual organs of the other are involved.'

In People v. McCaleb, 37 Mich.App. 502, 195 N.W.2d 17 (1972), we reversed a conviction for gross indecency because the trial judge charged the jury that fellatio constituted the charged offense.

Here the Court instructed the jury that fellatio constituted gross indecency. Also he failed to charge them that an essential element of the crime of gross indecency was whether the defendant's conduct measured by their own common sense was indecent and improper. This too was error. People v. McCaleb, Supra.

Additionally, defendant asserts reversible error in that the trial court excluded from the jury's consideration those lesser offenses included within the charge of carnal knowledge of a female minor, the so-called 'Lemmons' or affirmative exclusion of lesser included offenses issue. See People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970). In view of our holding it is unnecessary for us to treat this issue.

Reversed and remanded.

J. H. GILLIS, Judge (concurring in part, dissenting in part).

I agree with the majority in their interpretation of People v. McCaleb, 37 Mich.App. 502, 195 N.W.2d 17 (1972), and that defendant's conviction for gross indecency must by reversed for new trial.

I vote to affirm defendant's conviction for statutory rape. The majority opinion states:

'On direct examination the complainant testified that she had been Assaulted on other occasions By the accused and others.' (Emphasis supplied.)

The single reference in complainant's Direct examination about which the majority is concerned occurred after she had explained how defendant and another stopped her on her way home from school on March 16, 1970, took her to the basement of a nearby home, and forced her to perform various sexual acts, including intercourse with 5 or 6 males there congregated. She went home, changed her clothes, and in response to her mother's inquiry of where she had been, stated, 'They did it again'. Reference to the transcript is now appropriate, for it reveals not just an assault but a prior rape:

'Q. What did your mother respond?

'A. She said, 'You mean they raped me,' and I said, 'Yes.'

'Q. Now, you said, 'They did it again.' Had something of (that) nature happened to you before?

'A. Yes.

'Q. All right, what happened then after these conversations took place with your mother?

'A. My father got up and said, 'Who?'--and I said, 'A boy named Otha, he Raped me in (a)n apartment building on 14th ¹'--* * *.' (Emphasis supplied.)

No objection was raised, but on cross-examination the prior incident was thoroughly explored in an obvious effort to impeach the credibility of that witness. No request for a limiting instruction was made, nor was one given.

The prosecution did not seek to argue from the above-quoted...