People v. Garrow, Docket No. 46343

• Decision Date: 02 September 1980
• Docket Number: Docket No. 46343
• Citation: 99 Mich.App. 834,298 N.W.2d 627
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gregg Owen GARROW, Defendant-Appellee. 99 Mich.App. 834, 298 N.W.2d 627
• Court: Court of Appeal of Michigan — District of US

Page 627

298 N.W.2d 627

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gregg Owen GARROW, Defendant-Appellee.

Docket No. 46343.

99 Mich.App. 834, 298 N.W.2d 627

Court of Appeals of Michigan.

Sept. 2, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 835] Frank E. Stanley, Grand Rapids, for defendant-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., Carol S. Irons, Asst. Pros. Atty., for plaintiff-appellant.

Before R. B. BURNS, P. J., and MacKENZIE and KALLMAN ^*, JJ.

KALLMAN, Judge.

The defendant, Gregg Owen [99 MICHAPP 836] Garrow, was charged with criminal sexual conduct in the first degree, contrary to M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1) (f). The charge arose from an alleged sexual attack on Valerie Werkema. A jury trial began on June 12, 1979, and the trial judge directed a verdict of not guilty on June 13, 1979, stating that the prosecutor's inability to submit proof as to the sexual nature of the alleged attack required the case to be dismissed. The people appeal as of right.

At trial, Werkema testified that she and defendant had lived together but she had asked him to leave and had resisted his attempts at reconciliation. She said that on the morning of October 29, 1978, she was in bed with another man, James Vlasich, when she heard a loud noise in her living room. She said she put on her robe, went into the living room, and was met there by the defendant, who yelled, started to push and shove, and then hit her in the face. Vlasich came out to see what was going on, but left the house when defendant pulled a knife and told him to leave. Defendant told Werkema that if she took him back he would stop, but Werkema told him she would not take him back. Kathryn Mahar, a mutual friend of Werkema and defendant, came in, attempted to break up the fight, then left after Werkema asked her to telephone the police. During the scuffle, defendant slashed Werkema's waterbed.

Werkema said defendant knocked her down and inserted his fingers into her vagina. She said he caught his fingers on her IUD and pulled it, which caused her severe pain. Werkema indicated that their friend returned and that the three continued to struggle until defendant and Mahar left.

During direct questioning of Mahar, the court excused the jury to hear arguments on the admissibility[99 MICHAPP 837] of a tape recording. During that conference, the court asked the prosecutor what proofs had been shown or would be shown regarding the sexual nature of the defendant's act. The prosecutor argued that a conviction for criminal sexual conduct in the first degree does not require proof as to the sexual nature of the act. When the prosecutor told the judge he would introduce no further proof as to the sexual nature of the act, the court called back the jury and directed a verdict of not guilty.

The prosecution argues on appeal that the court erred in ruling that to convict of first-degree criminal sexual conduct, the prosecution must establish that the sexual penetration was for the purpose of arousing, stimulating or gratifying sexual emotions.

M.C.L. § 750.520b; M.S.A. § 28.788(2) states, in pertinent part:

"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 exists: * * *", M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1).

"Sexual penetration" is defined within the statute:

" 'Sexual penetration' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." M.C.L. § 750.520a(h); M.S.A. § 28.788(1)(h).

The plain meaning of this statute is that an act of criminal sexual conduct in the first degree is [99 MICHAPP 838] committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances, regardless of the sexual purpose of the act. People v. Hernandez, 80 Mich.App. 465, 474, 264 N.W.2d 343 (1978).

Nevertheless, CJI 20:2:04 suggests that sexual purpose is an element of first-degree criminal sexual conduct. The standard instruction states:

"If you find that any act occurred, it must have been a sexual act. It must have had as its purpose the arousing, stimulating or gratifying of the sexual emotions (or it must have been done with some other sexually improper intent or purpose)."

The use note to this instruction states that it must be given "where there is any question about the sexual nature of the act".

We agree with the majority in Hernandez, supra, that CJI 20:2:04 is erroneous as it conflicts with the statutory elements of first-degree criminal sexual conduct. Because the trial court in the instant case based its directed verdict of acquittal on the opinion that first-degree criminal sexual conduct requires proof of sexual purpose, that ruling was erroneous.

Defendant nevertheless contends that because this Court has held that second-degree criminal sexual conduct is a lesser included offense of first-degree criminal sexual conduct, the sexual purpose that is an element of second-degree criminal sexual conduct is also an element of first-degree criminal sexual conduct. Second-degree criminal sexual conduct is defined in M.C.L. § 750.520c; M.S.A. § 28.788(3):

"A person is guilty of criminal sexual conduct in the [99 MICHAPP 839] second degree if the person engages in sexual contact with another person and if any of the following circumstances exists: * * *".

"Sexual contact" is defined within the statute:

" 'Sexual contact' includes the intentional touching of the victim's or actor's intimate parts or the intentional 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." M.C.L. § 750.520a; M.S.A. § 28.788(1)(g)....