People v. Gadomski

• Decision Date: 02 October 1998
• Docket Number: Docket Nos. 197049,197050
• Citation: 232 Mich.App. 24,592 N.W.2d 75
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Earl GADOMSKI, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Anthony Gadomski, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 75

592 N.W.2d 75

232 Mich.App. 24

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Earl GADOMSKI, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Anthony Gadomski, Defendant-Appellant.

Docket Nos. 197049, 197050.

Court of Appeals of Michigan.

Submitted Sept. 1, 1998, at Detroit.

Decided Oct. 2, 1998, at 9:15 a.m.

Released for Publication Jan. 8, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Elwood L. Brown, Prosecuting Attorney, and Timothy K. Morris, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Debra A. Gutierrez ), for Lawrence E. Gadomski.

Douglas R. Mullkoff, Ann Arbor, for Anthony Gadomski.

Before TALBOT, P.J., and FITZGERALD and YOUNG, Jr., JJ.

TALBOT, P.J.

Defendants Lawrence Earl Gadomski and Anthony Gadomski were tried in a joint trial before a single jury. Defendant Lawrence Gadomski was convicted of one count of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b; MSA 28.788(2), and found not guilty of three counts of CSC I. He was sentenced as an habitual offender, fourth offense, M.C.L. § 769.12; MSA 28.1084, to twenty to sixty years' imprisonment for his CSC I conviction. Defendant Anthony Gadomski was convicted of two counts of CSC I and one count of felonious assault, M.C.L. § 750.82; MSA 28.277, and found not guilty of three counts of CSC I and one count of first-degree home invasion, M.C.L. § 750.110a; MSA 28.305(a). He was sentenced as an habitual offender, second offense, M.C.L. § 769.10; MSA 28.1082, to concurrent terms of twenty-five to sixty years' imprisonment for each of his CSC I convictions and two to six years' imprisonment for his felonious assault conviction. Defendants appeal as of right. Their appeals were consolidated on this Court's motion. We affirm.

At trial, the victim testified that late on the evening of December 14, 1995, defendant Anthony Gadomski, an acquaintance of hers, entered her house uninvited through the bathroom window and proceeded to let his brother, defendant Lawrence Gadomski, and an unidentified third person in through the back door. After defendant Anthony Gadomski informed the victim that her incarcerated boyfriend owed him $10,000, he and his brother spent the remainder of the night forcing her to engage in various sexual acts and helping themselves to her food and drink. Once during the night, defendant Anthony Gadomski threatened the victim by holding a kitchen knife to her neck. Defendants left the victim's house on the following morning, taking some of her property with them. Defendant Anthony Gadomski testified that he was invited into the victim's house and that he and the victim engaged in consensual sex. Defendant Lawrence Gadomski did not testify.

Docket No. 197049

Defendant Lawrence Gadomski ¹ first argues that the trial court erred in denying his motion for a new trial brought on the ground that the jury's verdict was against the great weight of the evidence. We disagree. A trial court's decision on a motion for a new trial is reviewed for an abuse of discretion. People v. Torres (On Remand), 222 Mich.App. 411, 415, 564 N.W.2d 149 (1997).

Specifically, defendant contends that the trial court abused its discretion in denying his motion in the face of the victim's "wildly inconsistent" trial testimony. At the time of defendant's motion, the law provided that, in a motion for a new trial based on the great weight of the evidence, the trial court could act as a "thirteenth juror" and independently evaluate the credibility of the trial witnesses. See People v. Herbert, 444 Mich. 466, 476, 511 N.W.2d 654 (1993). The Michigan Supreme Court has subsequently rejected the "thirteenth juror" standard and explained that a trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand. People v. Lemmon, 456 Mich. 625, 627, 576 N.W.2d 129 (1998). However, neither the former nor the current understanding of the law with respect to such motions provides that this Court may make a credibility determination on appeal. To the contrary, it is well settled that this Court may not attempt to resolve credibility questions anew. See, e.g., People v. Daoust, 228 Mich.App. 1, 17, 577 N.W.2d 179 (1998); People v. McFall, 224 Mich.App. 403, 412, 569 N.W.2d 828 (1997). Accordingly, we cannot say that the trial court abused its discretion in denying defendant's motion for a new trial.

Next, defendant argues that he was denied his right to a unanimous jury verdict as a result of the trial court's instructions to the jury regarding the elements of CSC I. We disagree.

A trial court is required to instruct the jury concerning the law applicable to the case and to fully and fairly present the case to the jury in an understandable manner. MCL 768.29; MSA 28.1052; People v. Mills, 450 Mich. 61, 80, 537 N.W.2d 909 (1995), modified 450 Mich. 1212, 539 N.W.2d 504 (1995). In this case, the trial court instructed the jury that in order to find defendant guilty, it was required to find that defendant engaged in the specific act of sexual penetration alleged by the prosecution and that this act was accompanied by one of three alternative aggravating circumstances. The aggravating circumstances made available for the jury's consideration included (1) that the act occurred during the commission of a home invasion, see M.C.L. § 750.520b(1)(c); MSA 28.788(2)(1)(c), (2) that it involved aiding and abetting and force or coercion, see M.C.L. § 750.520b(1)(d)(ii); MSA 28.788(2)(1)(d)(ii), and (3) that it caused personal injury to the victim and involved force or coercion, see M.C.L. § 750.520b(1)(f); MSA 28.788(2)(1)(f). The trial court also instructed the jurors, in general terms, that it was their job to decide the facts of the case and that their verdict must be unanimous.

Defendant contends that the trial court should have instructed the jury that it was required to unanimously agree on the existence of at least one of the three aggravating circumstances alleged by the prosecution. He maintains that, because no special unanimity instruction was given, the jury might have unanimously agreed on the general existence of an aggravating circumstance without unanimously agreeing on the existence of any one of the aggravating circumstances in particular. Defendant failed to raise the issue at trial by requesting such an instruction or by objecting to the trial court's instructions on that basis. Accordingly, our review is limited to the question whether relief is necessary to avoid manifest injustice. See People v. Van Dorsten, 441 Mich. 540, 544-545, 494 N.W.2d 737 (1993); People v. Yarger, 193 Mich.App. 532, 536-537, 485 N.W.2d 119 (1992).

Criminal defendants are guaranteed a unanimous jury verdict under the state constitution. See Const 1963, art 1, § 14; People v. Cooks, 446 Mich. 503, 510-511, 521 N.W.2d 275 (1994). Consequently, trial courts are required to give proper instructions regarding the unanimity requirement. Id. at 511, 521 N.W.2d 275. In some circumstances, a general unanimity instruction such as the one given in this case is not adequate to ensure a defendant's right to a unanimous jury verdict. For instance, the Michigan Supreme Court has held that when the prosecution offers evidence of multiple acts by a defendant, each of which would satisfy the actus reus element of a single charged offense, the trial court is required to instruct the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree about the factual basis of the defendant's guilt. Id. at 530, 521 N.W.2d 275. Relying on this holding, defendant suggests that he was entitled to a special unanimity instruction in this case because the separate aggravating circumstances on which the jury was instructed involved alternative factual situations (i.e., a home invasion, aiding and abetting, or a personal injury). We are not persuaded by defendant's argument.

Michigan criminal juries are not required to unanimously agree upon every fact supporting a guilty verdict. See, e.g., People v. Espinosa, 142 Mich.App. 99, 105, 369 N.W.2d 265 (1985) (explaining that, in theory, a defendant could be convicted of murder by a jury in which six members were of the opinion that the defendant shot the victim acting as the principal, and the other six members were of the opinion that he aided and abetted another). More specifically, it is well settled that when a statute lists alternative means of committing an offense, which means in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theories. See People v. William Johnson, 187 Mich.App. 621, 629-630, 468 N.W.2d 307 (1991), cited with apparent approval in Cooks, supra at 515, n. 16, 521 N.W.2d 275; see also People v. Lynn, 223 Mich.App. 364, 366-367, 566 N.W.2d 45 (1997); People v. Asevedo, 217 Mich.App. 393, 551 N.W.2d 478 (1996); cf. Yarger, supra at 537, 485 N.W.2d 119. That was the case here. Where there is a single sexual penetration, the various aggravating circumstances listed in M.C.L. § 750.520b; MSA 28.788(2), constitute alternative means of proving a single CSC I offense, and would not support convictions of separate and distinct CSC I offenses. See People v. Willie Johnson, 406 Mich. 320, 330-331, 279 N.W.2d 534 (1979). Accordingly, defendant would have been properly convicted of CSC I even if some of jurors believed that he committed the offense solely on the basis of one aggravating circumstance, while the rest of the jurors believed that he committed the offense solely on the basis of another one of the aggravating circumstances.

In sum, we hold that when a defendant is tried...