People v. Hunt

• Decision Date: 29 August 1988
• Docket Number: Docket No. 95340
• Citation: 170 Mich.App. 1,427 N.W.2d 907
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Therrian Walter HUNT, III, Defendant-Appellant. 170 Mich.App. 1, 427 N.W.2d 907
• Court: Court of Appeal of Michigan — District of US

Page 907

427 N.W.2d 907

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Therrian Walter HUNT, III, Defendant-Appellant.

Docket No. 95340.

170 Mich.App. 1, 427 N.W.2d 907

Court of Appeals of Michigan.

Submitted Nov. 17, 1987.

Decided July 18, 1988.

Released for Publication Aug. 29, 1988.

[170 MICHAPP 2] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Larry L. Roberts, Asst. Pros. Atty., for People.

Carolyn A. Blanchard, Detroit, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and DOCTOROFF and CLULO, ^* JJ.

CLULO, Judge.

Defendant appeals as of right his conviction for two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1), and the lower court's denial of his motion for a new trial and evidentiary hearing. Defendant was sentenced to twenty to forty years on each count, to be served concurrently. We affirm.

On July 29, 1985, at approximately 4:00 p.m., a young girl appeared in the back of a Kentucky [170 MICHAPP 3] Fried Chicken franchise located on West Jefferson in River Rouge. She came into the area running fast and screaming. She appeared to be highly upset and very excited and had a large lump on her head and a bruised lip which had been bleeding. She indicated that she had just been raped and that the rapist was in the lobby of the Kentucky Fried Chicken franchise. The manager called the police while another employee tried to calm the girl down. By the time the police arrived, the man accused by the young girl had left.

At the trial, the victim testified that she was seventeen years of age and had been visiting her sister and the defendant, who was her sister's friend. During a period of time in which the complainant and the defendant were alone in the defendant's car, the defendant said that he wanted to go to his father's house in Detroit to pick up a check. Defendant's father was not at the house and the pair went from there to the house of a friend of defendant. While at this second house, the defendant took the complainant to a small bedroom and began showing pornographic films on the television set in the room. The complainant tried to run, but defendant grabbed her. When she started to scream, the defendant proceeded to beat her about the head and face. He then undressed the complainant and forced her to have oral sex. He put his tongue in her vagina and put his penis in her mouth. Following that, defendant put his penis in complainant's vagina. The complainant testified that they stopped at a Kentucky Fried Chicken for ice because her face was swollen following the beating inflicted by the defendant. This is where she ran to the back of the store and told the persons there that she had been raped and needed help. She also testified that she had taken no drugs or alcohol and that she neither made [170 MICHAPP 4] advances towards the defendant during the episode nor encouraged him in any way. She insisted that he forced her and that she had no other choice than to submit because she was being beaten.

The defendant took the stand and indicated that he and the complainant had spent the day driving around from place to place for marijuana and cocaine which they shared. He indicated that the pair had sex in the car, that there was no force, and that the complainant had been "coming on to him" for some time. A police officer testified that the complainant did not show any signs of being under the influence of either alcohol or drugs, an observation which was corroborated by an emergency room physician who treated the complainant. The physician indicated that complainant was crying and had swelling, tenderness and pain in her scalp and face, that movement of her jaw caused her pain, that her lip was swollen and that she was not under the influence of drugs or alcohol.

The jury's verdicts of guilty represent their response to one count of fellatio and one count of sexual intercourse. Only two counts went to the jury, the prosecution having moved to dismiss the third count.

Defendant raises the question whether personal injuries inflicted upon the complainant prior to multiple sexual penetrations can constitute aggravating circumstances so that each penetration is first-degree criminal sexual conduct. We are satisfied on the facts of this case that defendant's question can be answered in the affirmative.

Defendant's argument stems from the obligation placed upon the prosecution to prove every element of the crime charged beyond a reasonable doubt, consonant with the due process clauses of the Fourteenth Amendment of the United States [170 MICHAPP 5] Constitution and Const. 1963, art. 1 Sec. 17. People v. Wright, 408 Mich. 1, 20, 289 N.W.2d 1 (1980); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Defendant here was charged with three counts of first-degree criminal sexual conduct contrary to M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f). It is clear from the reading of the statutory scheme defining the elements of first-degree criminal sexual conduct that an act of criminal sexual conduct in the first degree is committed where there is sexual penetration as defined by the act under any one of the enumerated circumstances listed. People v. Garrow, 99 Mich.App. 834, 837-838, 298 N.W.2d 627 (1980). The first Michigan case dealing with the relationship between the sexual act and the enumerated circumstances of Sec. 520b(1) was People v. Johnson, 406 Mich. 320, 279 N.W.2d 534 (1979), where the Supreme Court held that one sexual penetration, even if accompanied by more than one of the aggravating circumstances enumerated in the statute, may give rise to only one criminal charge for purposes of trial, conviction, and sentencing. After reviewing conflicting Court of Appeals decisions, the Court stated, id at 330, 279 N.W.2d 534:

"We conclude that it was the intent of the Legislature to delineate precisely the scope of M.C.L. 750.520b; MSA 28.788(2) by providing that when a sexual penetration is accompanied by any of the aggravating circumstances enumerated in the statute, such penetration constitutes criminal sexual conduct in the first degree. It appears from the face of the statute that the gravamen of MCL 750.520b; MSA 28.788(2) is sexual penetration accomplished under any of the enumerated circumstances."

Shortly after its decision in People v. Johnson, supra, the Supreme Court peremptorily reversed [170 MICHAPP 6] two first-degree criminal sexual conduct convictions in People v. Nelson, 406 Mich. 1020, 281 N.W.2d 134 (1979). The reversal was based on its recent decision in Johnson, supra; however, the Court did let stand two other convictions of criminal sexual conduct in the first degree based on one act of intercourse and one act of fellatio upon one complainant during the same criminal transaction. The relationship with these two cases is referenced by this Court in People v. Brown, 105 Mich.App. 58, 69, 306 N.W.2d 392 (1981), aff'd 419 Mich. 458, 355 N.W.2d 592 (1984).

In Brown, the armed defendant kidnapped the complainant and sexually penetrated her four times. He was charged with first-degree criminal sexual conduct during the felony of kidnapping and was also charged with first-degree criminal sexual conduct while armed with a weapon. While his conviction for the first count was reversed because of deficient instructions on the asportation element of kidnapping, this Court noted:

"We realize that the jury, in convicting defendant of one count of CSC while armed with a dangerous weapon, found that the prosecution had proved defendant was armed during the CSC offenses. Therefore, defendant could have been convicted of all three offenses if he had been charged with committing both CSC offenses while armed with a weapon." Brown, supra, p. 68 n. 3, 306 N.W.2d 392.

In People v. Dowdy, 148 Mich.App. 517, 521, 384 N.W.2d 820 (1986), the defendant pled guilty to kidnapping, felony-firearm, and five counts of first-degree criminal sexual conduct. In affirming his convictions for all five counts, the Dowdy Court stated:

"In light of the language and focus of the statute, [170 MICHAPP 7] we believe the Legislature intended to punish separately each criminal sexual penetration.... The offense of first-degree criminal sexual conduct has been completed after sexual penetration has occurred by any one of the enumerated circumstances. From the language of the statute, it appears that the Legislature intended to authorize separate punishment for each completed sexual penetration. We conclude that defendant's sentences for five acts of penetration are not for the 'same offense'...."

Whether physical injury prior to multiple sexual penetrations can raise all penetrations to first-degree criminal sexual conduct was addressed by this Court in People v. Payne, 90 Mich.App. 713, 282 N.W.2d 456 (1979), as a question "apparently of first impression." In Payne, the complainant was awakened in bed by the defendant, who beat her about the face and then performed multiple sexual penetrations. He was convicted of five counts of first-degree criminal sexual conduct based on the aggravating circumstance of personal injury. The majority in Payne held, id. at 718-719, 282 N.W.2d 456:

"What the prosecution showed by the evidence it submitted to the jury was one act of CSC I and five acts of CSC III (except for one instance where the jury found a lesser offense). Third-degree sexual conduct, in this case, is simply the sexual assault through force or coercion but without the injury. And this is what took place in all but the first attack. The initial beating affects the latter assaults in that it is part of the force or coercion through which defendant accomplished his assault. The use of the beating in this manner in these subsequent assaults is acceptable since there were additional instances of...