People v. Fisher, Docket No. 27805

• Decision Date: 18 July 1977
• Docket Number: Docket No. 27805
• Citation: 77 Mich.App. 6,257 N.W.2d 250
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick H. FISHER, Defendant-Appellant. 77 Mich.App. 6, 257 N.W.2d 250
• Court: Court of Appeal of Michigan — District of US

Page 250

257 N.W.2d 250

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick H. FISHER, Defendant-Appellant.

Docket No. 27805.

77 Mich.App. 6, 257 N.W.2d 250

Court of Appeals of Michigan.

July 18, 1977.

Released for Publication Sept. 2, 1977.

[77 MICHAPP 8] Baker, Durst, Marr & Nelson by Dane C. Nelson, Adrian, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., Prosecuting Attorneys Appellate Service, Keith D. Roberts, Asst. Atty. Gen., for plaintiff-appellee.

Before S. J. BRONSON, P. J., and CAVANAGH and BYRNS, ^* JJ.

CAVANAGH, Judge.

Defendant appeals as of right from a November 18, 1975, jury conviction for the offense of criminal sexual conduct in the second degree, M.C.L.A. § 750.520c(1)(b); M.S.A. § 28.788(3)(1)(b). He received a prison sentence of 21/2 to 15 years.

[77 MICHAPP 9]

I

The initial complaint, warrant, and information charged the defendant with having engaged in sexual misconduct with his 13-year-old daughter on April 8, 1975. At the preliminary examination, the victim testified that the event had transpired on the afternoon of May 8, 1975, not in April. The officer in charge of the case testified that in a previous conversation the defendant had admitted the truth of the allegations charged, but had stated that the event had occurred on April 8, 1975. The district court ruled that since sufficient evidence of a crime and the defendant's involvement had been established, the exact date of the offense was of little consequence.

Following the bind-over, the prosecutor filed an amended information which added an extra count of attempted criminal sexual conduct and alleged that the offense had occurred on May 8, 1975. The prosecution's trial witnesses reiterated their previous testimony concerning the date of the offense, and the trial court instructed the jury that the offense charged was alleged to have taken place on May 8.

While we do not dispute the defendant's contention that the prosecutor must try the defendant based on a specific criminal transaction, it is clear that the issue litigated and instructed on by the trial court was whether the defendant committed the alleged offense on May 8, 1975. Unlike People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), in which the trial court's instruction would have permitted the jury to find that the offense took place on a date unsupported by the evidence, this defendant had proper notice of the date of the offense charged and received a proper trial based on that information.

[77 MICHAPP 10]

II

During direct examination of the victim, the prosecutor attempted to inquire whether similar incidents had taken place between herself and her father. Defense counsel objected on the ground that the answer would prejudice the defendant by distracting the jury's attention to criminal activity for which the defendant had not been charged. The prosecutor responded that evidence of prior occurrences was admissible as relevant to the defendant's intent. Without stating his rationale, the trial court ruled that the witness could answer. The victim testified that similar sexual incidents had occurred three or four times before the event which gave rise to the charge. She had not reported these previous incidents because she had feared her father's reaction.

The defendant argues on appeal that the inquiry into prior criminal activity reversibly prejudiced his right to a fair trial. While we harbor several reservations regarding the trial court's ruling, the admission of this evidence does not require that the defendant receive a new trial.

With few exceptions, a trial court may not permit inquiries into a defendant's criminal activities which occurred either prior or subsequent to the criminal transaction for which the defendant has been charged. People v. Spillman, 399 Mich. 313, 319, 249 N.W.2d 73, 75 (1976), People v. DerMartzex, 390 Mich. 410, 413, 213 N.W.2d 97, 99 (1973). The danger of "diverting the trier of fact from an objective appraisal of the defendant's guilt or innocence" is rarely outweighed by the probative value of such evidence. Moreover, the possibility of the jury convicting the accused for uncharged, unrelated criminal acts raises several rarely recognized [77 MICHAPP 11] statutory and constitutional issues of notice and fairness. See M.C.L.A. § 767.76; M.S.A. § 28.1016.

The prosecutor successfully sought admission of the evidence under the statutory exception which allows proof of other criminal activities when relevant to the defendant's "motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question". M.C.L.A. § 768.27; M.S.A. § 28.1050. While the evidence need not directly tend to prove an essential element of the people's case, it must be probative of a matter in issue, e. g., identity, People v. Spillman, supra, People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971), nonconsent in a forcible rape, People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976), or purposeful conduct where relevant to the charge, People v. DerMartzex, supra. ¹ People v. Oliphant, supra, and People v. Spillman, supra, both recognize that the trial court faces a double task in determining whether to admit evidence under the statute: the court must determine (1) that the evidence is material to a matter in issue, and (2) that the prejudicial effect of the evidence will not substantially outweigh its probative value. People v. Oliphant, supra, 399 Mich. at 489-490, 250 N.W.2d at 449. In balancing prejudicial effect against probative value, the trial court should take into consideration such factors as the need for the evidence in order to satisfy an element of the prosecution's case, the defendant's theory of the case, the cumulative nature of the [77 MICHAPP 12] evidence, the tendency of the evidence to inflame or distract the trier of fact, and the degree to which the evidence will subject the trial to unnecessary delay. People v. Oliphant, supra, at 490, 250 N.W.2d at 449-450, People v. Spillman, supra, 399 Mich. at 321, 249 N.W.2d at 76.

The offense with which the defendant was charged does not require the prosecutor to prove the defendant's purpose or specific intent. The pertinent provisions provide as follows:

M.C.L.A. § 750.520c; M.S.A. § 28.788(3):

"(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:

"(b) That other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, or is related by blood or affinity to the fourth degree to the victim, or is in a position of authority over the victim and the actor used this authority to coerce the victim to submit.

"(2) Criminal sexual conduct in the second degree is a felony punishable by imprisonment for not more than 15 years."

M.C.L.A. § 750.520a; M.S.A. § 28.788(1):

"As used in sections 520a to 5201:

"(a) 'Actor' means a person accused of criminal sexual conduct.

"(b) 'Intimate parts' includes the primary genital area, groin, inner thigh, buttock, or breast of a human being.

"(g) 'Sexual contact' includes the intentional touching of the victim's or actor's intimate parts or the intentional[77 MICHAPP 13] touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.

"(i) 'Victim' means the person alleging to have been subjected to criminal sexual conduct."

Under the M.C.L.A. § 520a(g); M.S.A. § 28.788(1)(g), definition of "sexual contact", the defendant's specific intent is not an essential element of the crime. The actor must touch a genital area intentionally, but he need not act with the purpose of sexual gratification. Rather, it suffices if "that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification". ² (Emphasis supplied.) But much the same as motive is not an essential element in a criminal case, yet may be proven under the statute, the defendant's actual purpose behind the intentional touching is a matter in issue, and may be proven. Clearly the defendant's "motive or intent" within the meaning of M.C.L.A. § 768.27; M.S.A. § 28.1050, is "material" to his purpose in touching the victim, and his prior sexual misconduct with his daughter "tends to show" his intent in the particular misconduct for which he was charged.

While the prior acts of the defendant may have been material to an issue in the case, the trial court's decision did not consider the probable prejudice[77 MICHAPP 14] which would result from such evidence. ³ Although the evidence was minimal in length and did not dwell on inflammatory or distracting details, the abundance of other evidence from which the jury could infer a purpose of sexual gratification made the probative value of the evidence miniscule and its admission an abuse of discretion.

Even though this evidence should not have been admitted, we...