People v. Kraai

• Decision Date: 19 September 1979
• Docket Number: Docket No. 77-262
• Citation: 92 Mich.App. 398,285 N.W.2d 309
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard L. KRAAI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 309

285 N.W.2d 309

92 Mich.App. 398

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard L. KRAAI, Defendant-Appellant.

Docket No. 77-262.

Court of Appeals of Michigan.

Sept. 19, 1979.

Released for Publication Nov. 29, 1979.

State Appellate Defender James R. Neuhard by F. Martin Tieber, Deputy State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Lee Wm. Atkinson, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and MAHER and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

Defendant was charged with and convicted by jury trial of first-degree criminal sexual conduct contrary to M.C.L. § 750.520b; M.S.A. § 28.788(2). ¹ Defendant also pled guilty to an additional charge of being a habitual second felony offender, M.C.L. § 769.10; M.S.A. § 28.1082, and was sentenced to two concurrent prison terms of 60 to 90 years. ² He now appeals as of right. We find numerous errors denying defendant a fair trial and reverse.

Briefly stated, the facts indicate that the 15-year-old complainant was attacked by a man while walking through a park in Lansing, Michigan, around noon on January 23, 1976, and was forced to perform an act of fellatio on her assailant. Defendant offered an alibi defense. Other facts will be detailed when necessary to our discussion of the issues.

Defendant raises four claims of error which warrant discussion: (1) that the evidence introduced at the preliminary examination as to the element of personal injury suffered by the victim was insufficient to support binding over defendant on a charge of first-degree criminal sexual conduct; (2) that the trial court erred in allowing the prosecution to introduce evidence of another sexual assault allegedly perpetrated by defendant; (3) that the trial court reversibly erred in its jury instructions on use of the evidence of defendant's escape; and (4) that the prosecution's introduction of one rebuttal witness was so prejudicial as to constitute reversible error.

I

At defendant's preliminary examination, the complainant testified that during the sexual assault she had suffered a bloody nose, a slap in the face, a punch to the stomach, strangulation until she lost consciousness and mental anguish. Defendant contends on appeal that none of these purported injuries was sufficient to constitute "personal injury" within the meaning of M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), the provision setting forth the elements of first-degree criminal sexual conduct relevant to this prosecution, because no injury was severe or permanent in nature, and that he therefore should not have been bound over on that charge.

The statutory element of "personal injury" for purposes of establishing first-degree criminal sexual conduct is defined in M.C.L. § 750.520a(f); M.S.A. § 28.788(1)(f):

" 'Personal injury' means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ."

The pertinent Michigan Criminal Jury Instruction, CJI 20:2:11, further provides as follows:

"Personal injury means bodily injury. It also includes any disfigurement, chronic pain, pregnancy, disease, loss or impairment of a sexual or reproductive organ, or mental anguish. Mental anguish means suffering which occurs at the time of the alleged act."

We find no indication in the statute that the injuries suffered must necessarily be permanent or substantial. It is sufficient that the assailant inflict bodily injury of the sort described by the complainant in the instant case. People v. Thompson, 76 Mich.App. 705, 710, 257 N.W.2d 268 (1977).

We also reject defendant's related contention that the statutory definition of "personal injury" is void for vagueness because, without some saving interpretation of the term, there is no principled distinction between first- and third-degree criminal sexual conduct. Defendant particularly focuses on the mental anguish component of "personal injury". He argues that conduct which would otherwise constitute only third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(b); M.S.A. § 28.788(4)(1)(b) (sexual penetration accomplished by force or coercion), necessarily causes at least temporary mental anguish to the victim, thus allowing prosecutors to arbitrarily raise the charge to first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f) (sexual penetration accomplished by force or coercion with infliction of personal injury). Defendant decries this lack of specific criteria to guide prosecutorial charging discretion and asks us to read into the definition of "personal injury" a requirement for serious psychiatric impairment rather than mere mental anguish.

We note defendant's constitutionally based challenge to the statute because, raised in an appropriate case, it has arguable merit. But this is not such a case. Defendant lacks standing to raise the issue because the evidence of bodily injury to complainant clearly supports a charge of first-degree as opposed to third-degree criminal sexual conduct. Thompson, supra. Cf., People v. Swearington, 84 Mich.App. 372, 374, 269 N.W.2d 467 (1978).

II

Defendant's next allegation of error concerns the trial court's decision to allow evidence, under a similar acts theory, that defendant had perpetrated another sexual assault on a 17-year-old victim in a parklike area in Lansing, Michigan, on February 12, 1976. ³ Over defense counsel's objection, the trial court ruled that the similar act evidence was material to a matter in issue and that it was more probative than prejudicial.

Although evidence of a defendant's other bad act is generally inadmissible because it prevents an objective determination of defendant's guilt or innocence of the crime charged, People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973), there are a limited number of statutory and judicial exceptions to this exclusionary rule. See People v. Wilkins, 82 Mich.App. 260, 265-270, 266 N.W.2d 781 [92 Mich.App. 405] (1978), for a comprehensive delineation of those exceptions.

Under the circumstances of the instant case, the most likely rationale for introducing evidence of another alleged sexual assault by defendant was to prove the identity of the perpetrator of the charged offense. ⁴ See Wilkins, supra at 269, 266 N.W.2d 781. See also People v. Kelly, 386 Mich. 330, 333-335, 192 N.W.2d 494 (1971); People v. Oliphant, 399 Mich. 472, 489, 250 N.W.2d 443 (1976); People v. Clark, 62 Mich.App. 740, 742-744, 233 N.W.2d 856 (1975); People v. Gibson, 66 Mich.App. 531, 536-537, 239 N.W.2d 414 (1976); People v. Golochowicz, 89 Mich.App. 57, 59-60, 279 N.W.2d 576 (1979). Because defendant offered an alibi defense, the central factual dispute at trial was whether defendant and not some other individual had committed the sexual assault which complainant described.

Once a basis for offering evidence of a defendant's other bad act is established, however, it must still be shown that the evidence meets the threshold requirements for admission. These requirements were stated in People v. Smith, 87 Mich.App. 18, 22, 273 N.W.2d 573, 575 (1978):

"(1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, I. e., is probative of a matter 'in issue'; and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence's probative value against its prejudicial effect before deciding whether to admit it."

See also Golochowicz, supra, 89 Mich.App. at 59-60, 279 N.W.2d 576; Wilkins, supra, 82 Mich.App. at 267-268, 266 N.W.2d 781; Oliphant, supra. More specifically, where a defendant's other bad act is offered to prove identity, the test for admission is as follows:

" '(T)he inference of identity arises when the marks common in the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.' People v. Haston, 69 Cal.2d 233, 246, 70 Cal.Rptr. 419, 428, 444 P.2d 91, 100 (1968)."

People v. Jones, 83 Mich.App. 559, 566, 269 N.W.2d 224, 227 (1978).

In the instant case, there was sufficient evidence to show that defendant actually committed the other bad act. But we find a fatal deficiency in the absence of special circumstances common to both the other act and the charged offense from which one could logically infer that the identity of the perpetrator was the same in both instances.

Among the more unpersuasive similarities alleged by the prosecution below were the following: both acts occurred during the afternoon in secluded park areas, both acts involved young victims taken by surprise, and neither act involved robbery as a motive. These attributes of both incidents are also common to many other sexual assaults.

Other common factors emphasized by the prosecution were the manner in which the assailant grabbed both victims from behind by placing one hand over the mouth and the other arm around the waist or shoulders, the way in which both sexual assaults were initiated by rubbing and sucking the victim's breasts, and the similarities between the victims' physical descriptions of their assailant (E. g., caucasian, blue coat, brown pants, medium build). The prosecutor also pointed out that the two assaults occurred within a few weeks of each other and in the same area of the city. The similarity in method of grabbing the victims and in initial attention to the victims' breasts does tend to indicate a common Modus operandi. But again the methods common to these two incidents are not particularly distinctive when compared to...