People v. Kosters

• Decision Date: 28 April 1989
• Docket Number: Docket No. 100128
• Citation: 175 Mich.App. 748,438 N.W.2d 651
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elroy L. KOSTERS, Defendant-Appellant. 175 Mich.App. 748, 438 N.W.2d 651
• Court: Court of Appeal of Michigan — District of US

Page 651

438 N.W.2d 651

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elroy L. KOSTERS, Defendant-Appellant.

Docket No. 100128.

175 Mich.App. 748, 438 N.W.2d 651

Court of Appeals of Michigan.

Submitted April 20, 1988.

Decided March 20, 1989.

Released for Publication April 28, 1989.

[175 MICHAPP 750] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Wesley J. Nykamp, Pros. Atty., and Gregory J. Babbitt, Asst. Pros. Atty., for the People.

Catchick & Dodge by David A. Dodge, Grand Rapids, for defendant-appellant.

Before WEAVER, P.J., and McDONALD and PETERSON, ^* JJ.

WEAVER, Presiding Judge.

Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). For each count defendant received concurrent sentences of seven to thirty-five years in prison. He appeals as of right. We affirm.

[175 MICHAPP 751] Defendant was charged with the sexual abuse of his two children. His daughter was not yet two years old at the time of the alleged abuse, and his son was five. In addition to the testimony of defense witnesses, evidence at trial included the testimony of defendant's five-year-old son, Patricia McNees, a licensed practical nurse who interviewed the son before he was examined by a physician, Dr. Francis Banfield, the children's pediatrician, Dr. David Hickok, a medical expert in the area of child abuse, Margaret Kosters, defendant's ex-wife, and police involved in the investigation. Defendant testified in his own behalf.

I

On appeal, defendant asserts that the trial court improperly admitted hearsay statements which his son made to Nurse McNees. We agree that this testimony should have been excluded under MRE 803(4), since the statements were not reasonably necessary to medical diagnosis and treatment. See People v. Wilkins, 134 Mich.App. 39, 43, 349 N.W.2d 815 (1984), lv. den., 422 Mich. 862 (1985). However, the error was harmless because the remaining evidence against defendant was overwhelming.

Defendant's five-year-old son gave direct testimony against his father. Even though the child's testimony was at times inconsistent, it was credible and the jury believed it. In fact, in this particular case of multiple incidents of abuse over a period of time, the child's very inconsistency lends credibility to his testimony, since it tends to show that the boy was relying on his child's memory and was not delivering prelearned and adult-inculcated testimony.

The boy's testimony was explicit. The child testified that he saw his father put his finger into his [175 MICHAPP 752] little sister's vagina, that while all three were in the bathroom defendant touched both the girl's and the boy's "privates" (groin and buttock area), and that defendant touched him with a nail in the genital area. It cannot reasonably be maintained that an adult touching a child's genitals with a nail is normally within the range of the imagination or experience of a five-year-old child. Young children like this five-year-old child do not often see, if ever, such things on television or read about them in books.

In addition to the child's direct testimony, there was also the testimony of defendant's ex-wife and the examining physician. The fact of sexual abuse was clearly shown as to both children. The examining physician testified to his findings of vaginal penetrations and injuries to defendant's daughter and of repeated anal penetrations to both children.

Further, the circumstantial evidence against defendant was strong. It is well established that circumstantial evidence and reasonable inferences arising therefrom are sufficient to constitute satisfactory proof of the elements of a criminal offense. People v. Frank Johnson, 146 Mich.App. 429, 434, 381 N.W.2d 740 (1985), lv. den., 425 Mich. 855 (1986).

The circumstantial evidence presented at trial indicated the unlikelihood that sexual injuries to the two children could have occurred while in their mother's custody because there had been no males in the house other than the maternal grandfather and, during the period in question, the children had not been out of the mother's presence except twice with a babysitter for only an hour. Moreover, defendant had the opportunity to commit the acts, particularly on three occasions, after which the mother observed a vaginal irritation on the daughter. Defendant told police that he had been alone with his daughter on one of these [175 MICHAPP 753] occasions, and he also made statements both to police and to a friend tending to indicate his guilt.

In light of the direct and circumstantial evidence against defendant, the error of admitting the hearsay testimony of Nurse McNees was harmless beyond a reasonable doubt, since no juror would have voted for acquittal. People v. Christensen, 64 Mich.App. 23, 32-33, 235 N.W.2d 50 (1975), lv. den., 397 Mich. 839 (1976).

II

Defendant also argues that the trial court improperly admitted expert testimony comparing pubic hairs taken from defendant with those allegedly found in the diaper of defendant's daughter following defendant's visitation. We disagree with this contention. The pubic hair evidence did not need to be excluded because it tended to connect defendant with the crime and was admissible under MRE 401. See People v. Horton, 99 Mich.App. 40, 49-51, 297 N.W.2d 857 (1980), vacated on other grounds, 410 Mich. 856, 301 N.W.2d 775 (1980), on remand, 107 Mich.App. 739, 310 N.W.2d 34 (1981), lv. den., 418 Mich. 942, 344 N.W.2d 2 (1984); People v. Goree, 132 Mich.App. 693, 701, 349 N.W.2d 220 (1984); People v. Furman, 158 Mich.App. 302, 327-328, 404 N.W.2d 246 (1987), lv. den., 429 Mich. 851 (1987).

The instant case is clearly distinguishable from People v. Nichols, 341 Mich. 311, 67 N.W.2d 230 (1954). Nichols was a paternity case. Here, the pubic hairs were found immediately after defendant's visitation of June 18, 1986--which defendant admitted was one during which he had been alone with his daughter, and following which the mother observed a vaginal irritation on the child. Hence, unlike the situation in Nichols, the evidence showing that the pubic hairs could have [175 MICHAPP 754] come from defendant was relevant and admissible because of its tendency to make the existence of other important facts more probable or less probable than it would be without the evidence. MRE 401.

III

We also reject defendant's contention that it was error requiring reversal for a prosecution witness to state on cross-examination that defendant had taken a polygraph in conjunction with a previous sexual abuse charge.

In responding to defense counsel's request that she tell the jury when she had been advised by the Ottawa County Sheriff's Department that, in their opinion, the son had not been sexually abused by defendant, defendant's ex-wife replied: "When Elroy took the lie-detector test." Upon defense counsel's objection and the trial court's instruction, defendant's ex-wife rephrased her answer. The trial court offered a curative instruction, but defendant declined it when the court refused to advise the jury that he had passed the lie-detector test.

The results of a polygraph (lie-detector) test are not admissible as evidence in Michigan. People v. Frechette, 380 Mich. 64, 68, 155 N.W.2d 830 (1968). However, a brief, inadvertent reference to a polygraph is harmless. People v. Tyrer, 19 Mich.App. 48, 51, 172 N.W.2d 53 (1969), app. dis., 385 Mich. 484, 189 N.W.2d 226 (1971). The mere mention of a polygraph by a witness is not grounds for mistrial. People v. Paffhousen, 20 Mich.App. 346, 351, 174 N.W.2d 69 (1969), lv. den., 383 Mich. 825 (1970).

The answer of defendant's ex-wife was responsive to a poorly phrased question. Because the jury knew that the police did not charge defendant [175 MICHAPP 755] following the earlier allegations, it is not reasonable to assume that the jury could have believed defendant did not pass the test. The matter was not mentioned again either by the witness or by counsel. The reference to defendant's polygraph was brief and inadvertent and was therefore harmless. Tyrer, supra. No reversal is required because defendant shows no prejudice. See People v. Alvin Johnson, 396 Mich. 424, 436-437, 240 N.W.2d 729 (1976), reh. den., 396 Mich. 992 (1976), cert. den., 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).

IV

Defendant further contends that there occurred prosecutorial misconduct requiring reversal when the prosecutor questioned defendant as to his sexual orientation and preference. We are unpersuaded by this argument.

In Michigan, a witness may be cross-examined on any matter relevant to an issue in the case. MRE 611(b), MRE 401. Since there is no known connection between child abuse and the sexual orientation of those who sexually abuse children, the prosecutor's questions appear to have been irrelevant and the trial court correctly terminated this line of questioning.

The trial court should also have instructed the jury to disregard the answers. See People v. Stinson, 113 Mich.App. 719, 726-727, 318 N.W.2d 513 (1982), lv. den., 417 Mich. 957 (1983). However, failure to so instruct the jury was not error requiring reversal because (1) defense counsel never asked for a curative instruction and (2) defense counsel on redirect examination elicited the same answers to the same questions to which he had objected on cross-examination. Defense counsel's omission to request a curative instruction waived any error in [175 MICHAPP 756] the trial court's failure to give such instruction. Because defendant shows no prejudice, reversal is not required. People v. Robinson, 386 Mich. 551, 562-563, 194 N.W.2d 709 (1972).

V

We also reject defendant's argument that the trial court abused its discretion in allowing the prosecutor to examine defendant's five-year-old son by leading questions. It was within the trial judge's discretion to allow the prosecutor a fair amount of leeway in asking...