People v. McConnell

• Decision Date: 06 May 1983
• Docket Number: Docket No. 58449
• Citation: People v. McConnell, 332 N.W.2d 408, 122 Mich.App. 208 (Mich. App. 1983)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Howard McCONNELL, Defendant-Appellant. 122 Mich.App. 208, 332 N.W.2d 408
• Court: Court of Appeal of Michigan — District of US

Page 408

332 N.W.2d 408

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.William Howard McCONNELL, Defendant-Appellant.

Docket No. 58449.

122 Mich.App. 208, 332 N.W.2d 408

Court of Appeals of Michigan.

Submitted Aug. 2, 1982.

Decided Nov. 9, 1982.

Released for Publication May 6, 1983.

[122 MICHAPP 209]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Peter D. Houk, Pros.Atty., Janis L. Blough, Chief Appellate Asst. Pros.Atty., and Susan K. Marshall, Asst. Pros.Atty., for the People.

State Appellate Defender by Rolf E. Berg, Ann Arbor, for defendant-appellant.

Before DANHOF, P.J., and J.H. GILLIS, and KNOBLOCK, ^* JJ.

PER CURIAM:

Defendant was convicted by a jury of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(a);M.S.A. Sec. 28.788(3)(1)(a) and was sentenced[122 MICHAPP 210] to a prison term of 2 1/2 to 15 years.He appeals as of right raising three issues.

The six-year-old victim, Beth Ann Thompson, testified at trial.Though her testimony was at times contradictory, it disclosed that on one night in July, 1980, while her mother was out with her boyfriend, defendant and three other adults spent the night with Beth Ann, her three-year-old sister and her cousin.After Beth Ann had fallen asleep, defendant woke her and took her into her mother's bedroom where he touched her on her "cookie".Beth Ann's mother testified that "cookie" was Beth Ann's word for her genitals.Beth Ann did not tell her mother about the incident but did tell her aunt approximately one week later.

Beth Ann's aunt, Mary King, testified that she was with Beth Ann during the weekend of July 13, 1980.She was allowed to testify, over defense objection, concerning the statements Beth Ann made to her relative to the incident.According to Mrs. King, Beth Ann appeared nervous and upset when she made the statements and was shaking and complained of a stomacheache.Beth Ann told Mrs. King that defendant had tried to put his "privates" in her mouth and between her legs and that he was "messing with her".Beth Ann also told her aunt that she had not told her mother about the incident.

Defendant asserts as his first issue on appeal that it was reversible error for the trial court to allow the complainant's aunt, Mary King, to testify relative to the statements made to her by complainant concerning the incident approximately one week after the incident.At trial, defense counsel's only objection to the testimony was that the delay between the time of the incident [122 MICHAPP 211] and the statements made by the complainant to Mrs. King had not been explained.The prosecutor thereafter laid the foundation by eliciting testimony from the complainant concerning the reasons for the delay.After hearing this testimony, the trial court ruled that Mrs. King's testimony was admissible, finding the reason for the delay to be Beth Ann's fear of her mother's disbelief and her concern that her mother would think she was a "bad girl".

The complaint or statements of a victim of criminal sexual conduct may be admissible as an exception to the hearsay rule under MRE 803(2) as an excited utterance.People v. Turner, 112 Mich.App. 381, 316 N.W.2d 426(1982).The excited utterance exception and its common law predecessor (the res gestae exception) have been liberally interpreted when applied to children who are victims of sexual assaults.19 A.L.R.2d 579, Sec. 5, p 586.Thus, where the victim is a child of tender years, testimony recounting her prior out-of-court statements concerning the details of the assault may be admissible as part of the res gestae despite the lapse of time between the incident and the statements, provided the delay is explained.People v. Bonneau, 323 Mich. 237, 35 N.W.2d 161(1948);People v. Davison, 12 Mich.App. 429, 163 N.W.2d 10(1968);People v. Edgar, 113 Mich.App. 528, 317 N.W.2d 675(1982).The reasoning behind such a liberal application in sexual abuse cases involving children is twofold: first, a child victim may be under stress caused by the event for a longer period of time than an adult; second, a delay between the event and the child's complaint may be attributed to the child's tender years, the perpetrator's threats, or the child's fright.People v. Edgar, supra;People v. Bonneau, supra.In the present case, Mrs. King's[122 MICHAPP 212] testimony must be evaluated in light of the requirements of MRE 803(2) and the tender years rule.

On the record presented, the trier of fact could reasonably conclude that the sexual assault upon the six-year-old victim in the present case by a family friend was a startling event and that Beth Ann was still under stress caused by the event for a week thereafter.Beth Ann's statements were volunteered and, therefore, spontaneous.Finally, the one-week delay between the incident and the statements made to Mrs. King does not preclude admissibility since there was sufficient evidence to support the trial court's finding that the delay was caused by the victim's tender age and fear of her mother's reaction.The trial court properly admitted the challenged testimony.

Defendant next contends that his conviction should be reversed because the information alleged that the offense occurred on July 4, 1980, while the prosecutor's proofs at trial showed that it could have occurred on either July 3, 1980, or July 4, 1980.While there was conflicting testimony from the witnesses at trial as to whether the night in question was July 3 or July 4, 1980, all the testimony was confined to those two dates.Defendant presented an alibi to both dates in question.M.C.L. Sec. 767.45(2);M.S.A. Sec. 28.985(2) states that an information shall contain the time of the offense as near as may be but no variance as to time shall be fatal unless time is of the essence of the offense.Time...