People v. Jansson

• Decision Date: 01 September 1982
• Docket Number: Docket No. 48104
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gustave Eric JANSSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 508

323 N.W.2d 508

116 Mich.App. 674

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gustave Eric JANSSON, Defendant-Appellant.

Docket No. 48104.

Court of Appeals of Michigan.

Submitted Jan. 19, 1982.

Decided June 8, 1982.

Rehearing Denied July 14, 1982.

Released for Publication Sept. 1, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Carol S. Irons, Chief Appellate Asst. Pros. Atty., for the People.

Carl Ziemba, Detroit, for defendant-appellant.

Before KAUFMAN, P. J., and V. J. BRENNAN and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Defendant Gustave Eric Jansson was convicted by a jury of criminal sexual conduct in the third-degree, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), and was sentenced to a term of 10 to 15 years in prison. He appeals as of right.

Carolyn Lamoreaux, the complainant, testified that on January 7, 1979, she was introduced to the defendant by a mutual friend at a Dunkin' Donuts Restaurant. The complainant was asked by the defendant if she was looking for a job and she answered she was. The defendant suggested that she fill out an application that night for a full-time secretarial position at his place of employment. The two left the restaurant and drove to the Stedman Agency. The defendant explained the responsibilities of the job while showing the complainant around the building. The two then entered Frank Stedman's office and the defendant and the complainant sat down. During the ensuing conversation, the defendant told the complainant that he was interested in "someone to fuck". The complainant indicated to the defendant that she would not "do things like that". Defendant walked over and turned off the light. The complainant stood up and was grabbed by the defendant. The defendant pulled the complainant to the floor and removed her clothing. He then removed his own clothing and had sexual intercourse with the complainant.

The complainant testified that she did not engage in the act willingly but was forced by the defendant. She was frightened and panicked and did not know what action to take.

Following intercourse, defendant called John Stedman. Mr. Stedman came to the office building. Complainant testified that when Mr. Stedman arrived at the office, the defendant lifted her blouse and underclothing to expose her breasts.

Complainant then waited outside the building for the defendant to drive her home. The defendant drove the complainant to Dunkin' Donuts. He asked the complainant for her phone number and she complied.

Complainant called David Heyboer, a police officer and former boyfriend. They met and she told him what had transpired. He encouraged her to report the incident to the police.

An intern at the Grand Rapids Police Department testified that the complainant came into the police department during the early morning hours of January 8, 1979, to make a complaint that she had been raped.

A representative of the crime laboratory testified that cervical smears obtained from the complainant indicated the presence of seminal fluid.

John Stedman testified that he was at the Stedman Agency office on the night of January 7, 1979. He stated that the defendant told the complainant "show Mr. Stedman what you have to offer". The complainant then lifted up her blouse and exposed her breasts.

The prosecution also offered the testimony of a Grand Rapids police officer concerning interviews she conducted with the defendant on January 11 and January 29, 1979. The defendant's statements, to the effect that intercourse occurred but was consensual, contained inconsistencies regarding details of defendant's involvement with the complainant on January 7, 1979.

Following the presentation of the prosecution's case, the defendant moved for a directed verdict. The motion was denied.

The defendant did not testify. The only witness called on behalf of the defense was a Mr. Vreeland who had accompanied Mr. Stedman to the office on the night in question. Mr. Vreeland indicated that the complainant came out of the building about 15 minutes after Mr. Stedman entered and said nothing about the alleged crime during a brief exchange with the witness.

The jury returned a verdict of guilty of criminal sexual conduct in the third degree, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), and the defendant was later sentenced to a term of 10 to 15 years in prison.

On appeal, defendant's appellate counsel presents seven issues for review and disposition. Although three of those issues are essentially procedural variations on a single, substantive, legal theme, we deem it appropriate to consider the questions separately.

SUFFICIENCY OF THE EVIDENCE

Defendant first argues that there was insufficient evidence adduced at trial to support his conviction and he was therefore denied due process in contravention of both the state and federal constitutions, U.S.Const., Am. XIV and Const.1963, art. 1, Sec. 17.

The pertinent standard of review is summarized succinctly in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980):

"Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant can be convicted of a criminal offense * * *."

In the present case, the defendant asserts that, because there was no indication in the record that the complainant advised or communicated to the defendant that she did not wish to engage in sexual intercourse, the defendant did not know that the sexual relations were nonconsensual and, therefore, could not have intended to engage in those relations by force or coercion. Without some manifestation of the complainant's unwillingness to engage in sexual relations, defense counsel argues that defendant could not have known of her nonconsent and, therefore, could not have intended to engage in sexual relations against the complainant's will but may rather have assumed that signs of physical resistance by the complainant were what defense counsel terms, "the final token manifestations of modesty".

Defendant in the case at bar was convicted of third-degree criminal sexual conduct. As alleged here, that offense required proof beyond a reasonable doubt that sexual penetration was accomplished by force or coercion. M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b). Force or coercion includes, but is not limited to, situations where the actor overcomes the victim through the actual application of physical force or physical violence or where the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats. M.C.L. Sec. 750.520b(1)(f)(i) and (ii); M.S.A. Sec. 28.788(2)(1)(f)(i) and (ii). People v. Payne, 90 Mich.App. 713, 282 N.W.2d 456 (1979); People v. Khan, 80 Mich.App. 605, 264 N.W.2d 360 (1978), lv. den. 402 Mich. 903 (1978).

The statute is silent on the defense of consent. However, this Court has previously stated that the statute impliedly comprehends that a willing, noncoerced act of sexual intercourse between persons of sufficient age who are neither mentally defective, or incapacitated nor physically helpless is not criminal sexual conduct. People v. Khan, supra, 619 fn.5, 264 N.W.2d 360. See also People v. Hearn, 100 Mich.App. 749, 300 N.W.2d 396 (1980).

Although consent therefore precludes conviction of criminal sexual conduct in the third degree by force or coercion, the prosecution is not required to prove nonconsent as an independent element of the offense. If the prosecution offers evidence to establish that an act of sexual penetration was accomplished by force or coercion, that evidence necessarily tends to establish that the act was nonconsensual. Cf., People v. Oliphant, 399 Mich. 472, 504, 510, fn.8, 250 N.W.2d 443 (1976) (Levin, J. dissenting). As noted earlier, the statute defines "force or coercion" to include situations in which the actor overcomes the victim through the actual application of physical force or physical violence, coerces the victim to submit by threatening to use force or violence and has the apparent present ability to execute those threats, or coerces the victim to submit by threatening to retaliate in the future against the victim or someone else and has the ability to execute that threat.

If it is established that the actor overcame the victim, it necessarily follows that the victim's participation in the act was nonconsensual.

Likewise if the actor coerces the victim to submit by threats of present or future harm, it necessarily follows that the victim engaged in the act nonconsensually. In short, to prove force or coercion as those terms are defined in the statute is to establish that the victim did not consent.

Defense counsel however would require that there be proved a specific intent to overcome the will of the victim and, as a necessary precondition, knowledge on the part of the actor that the victim was not engaging in the act consensually. In short, defense counsel would have us require some manifestation of nonconsent by the victim. In our judgment, this is simply a suggestion that we require proof that the victim resisted the actor or at least expressed an intent to resist. The express language of the statute precludes any such requirement, M.C.L. Sec. 750.520i; M.S.A. Sec. 28.788(9).

We are satisfied that there was evidence adduced at trial which would justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt of the offense with which he was charged and of which he was convicted. That being the case, the evidence is sufficient and the conviction does not contravene the due process requirement of the state and federal constitutions. People v. Hampton, supra.

DENIAL OF DEFENDANT'S MOTION TO QUASH

Defendant next argues that...