People v. McGill

• Decision Date: 20 March 1984
• Docket Number: Docket No. 63207
• Citation: 346 N.W.2d 572,131 Mich.App. 465
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Eugene McGILL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 572

346 N.W.2d 572

131 Mich.App. 465

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Eugene McGILL, Defendant-Appellant.

Docket No. 63207.

Court of Appeals of Michigan.

Submitted Oct. 4, 1983.

Decided Jan. 17, 1984.

Released for Publication March 20, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Michael W. LaBeau, Pros. Atty. and William D. Bond, Asst. Pros. Atty., for the People.

James A. Kandrevas, Southgate, for defendant-appellant on appeal.

Before KELLY, P.J., HOOD and SHEPHERD, JJ.

SHEPHERD, Judge.

Defendant was convicted by a jury of criminal sexual conduct in the fourth degree, M.C.L. Sec. 750.520e(1)(a); M.S.A. Sec. 28.788(5)(1)(a).

He then received a bench trial on the supplemental information charging him as a habitual offender, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082. Following his conviction on that charge, defendant was sentenced on March 5, 1982, to a term of from 24 to 36 months imprisonment. He appeals as of right.

FACTS

The complainant, a 13-year-old ninth grader who had twice cared for defendant's children prior to July 18, 1981, testified at trial as follows.

Defendant's girlfriend come to her house and asked her to babysit for defendant's children during the evening of July 18, 1981. She and defendant's girlfriend got into defendant's car. Defendant told the complainant that they had to go to his cousin's house to pick up the children, but instead he drove to Sterling State Park. Once in the parking lot at the park, defendant told his girlfriend to look for the children. When she had left, defendant told the complainant to get into the front seat so he would not have to turn around to talk to her.

After the complainant moved to the front seat, defendant began talking to her about modeling. He indicated to her that he was an agent of some sort and that he would fly her in his private plane to a one-hundred-thousand dollar home he had for her in Arizona. He told her that he would take her to Ann Arbor one weekend so his friend could take pictures of her so that she could become a model.

The defendant then began touching her in various places. Defendant twice put his hand on her leg and each time he complied when complainant told him to remove it. Defendant then put his hand inside the complainant's underpants; when she told him to remove it, he told her he was checking to see if she had an appendectomy scar. He subsequently removed his hand upon her demand but began telling her how he had been in jail in Arizona. At that point, defendant put his hand up the back of her shirt. He then placed his hand on her breast underneath her underclothes. When the complainant told him to remove his hand, defendant did so; he then shook her hand and told her he was glad to be her agent.

The complainant testified that at this point she still thought that defendant was an agent of some type but that she was frightened. They were about 40 to 45 minutes from her home and she knew no one who lived in the Sterling State Park area. Defendant's girlfriend eventually returned to the car after about one-half hour. Defendant then drove the complainant home where he paid her three dollars and allowed her to go into her house.

Defendant testified at trial that he never touched the complainant.

On appeal, defendant raises four issues, none of which requires reversal.

I

Defendant first argues that the prosecutor failed to file the supplemental information in a timely manner and defendant's habitual offender conviction must therefore be vacated. Defendant's argument is patently meritless.

The original information charging defendant with criminal sexual conduct in the fourth degree was filed in the circuit court on September 16, 1981. The supplemental information was filed on September 18, 1981, two days later, and the day on which defendant was arraigned. We find a two-day delay between the filing of informations to fall within the requirements for prompt filing of a supplemental information. See People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979). Although People v. Shelton, 412 Mich. 565, 315 N.W.2d 537 (1982), which defines "promptly" to mean generally not more than 14 days after a defendant's arraignment in circuit court on the underlying felony, had not been decided at the time of defendant's arraignment or trial, we find its logic persuasive. At any rate, we do not believe that the prosecutor was required to file the supplemental information simultaneously

                with the information on the most recent felony.  See  People v. Martin, 100 Mich.App. 447, 298 N.W.2d 900 (1980);   People v. Mohead, 98 Mich.App. 612, 295 N.W.2d 910 (1980).  The two-day delay did not render the filing tardy
                

II

The second issue raised by defendant is somewhat more substantial. Defendant argues that no evidence was presented at trial to show that defendant used force or coercion to effectuate the sexual contact complained of here. Since force or coercion is an element of criminal sexual conduct in the fourth degree, defendant argues that his conviction must be reversed.

The trial court instructed the jury on the element of force or coercion as follows:

"Further, that the defendant used force, this is the third element, that the defendant used force or coercion to commit the sexual act. The term force or coercion--the term force or coercion means the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences. It is sufficient force if the defendant overcame the complainant through actual application of physical force or physical violence. It is sufficient force if the defendant made the complainant submit by threatening to use force or violence on the complainant, and the complainant believed that the defendant had the present ability to carry out these threats."

That instruction is in accordance with CJI 20:5:3, which defines use of force or coercion as "the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences".

The statute governing criminal sexual conduct in the fourth degree reads in pertinent part:

"(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:

"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (iv)." M.C.L. Sec. 750.520e(1)(a); M.S.A. Sec. 28.788(5)(1)(a).

Section 520b(1)(f), M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), provides:

"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:

"(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

"(ii) When 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.

"(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.

"(iv) When the actor engages in the medical treatment or examination of the victim in a manner of for purposes which are medically recognizes as unethical or unacceptable." (Emphasis supplied.)

It is clear that the facts in this case do not indicate force or coercion as specifically described in the circumstances listed in Sec. 520b(1)(f), subds. (i)-(iv). However, force or coercion is not specifically limited by statute to those examples. MCL 750.520e(1)(a). Therefore, if the facts in this case could reasonably be construed to indicate the presence of force or coercion, defendant's argument on this issue would lack merit.

We conclude that, on the facts of this case, defendant's actions were "sufficient to create a reasonable fear of dangerous Little case law exists in Michigan defining the terms "force" or "coercion" in the context presented here. The only case offered by defendant, Moran v. People, 25 Mich. 356 (1872), is distinguishable on both its facts and law. The defendant there was charged with having raped a 16-year-old girl who had been left with him by her father for treatment of consumption. The jury was charged that, if it found that defendant's representations were false and fraudulent, that the complaining witness believed them and therefore consented to the defendant's solicitations, and that she would not otherwise have yielded, they should find defendant guilty of rape. On appeal, the Supreme Court reversed, noting that the jury instruction left out all idea of force as a necessary element of the crime charged. The jury was told, in effect, that the defendant might be found guilty of rape though he neither used nor threatened to use any force whatever in case of the complaining witness's refusal. The Court stated:

consequences", CJI 20:5:3, and, in light of the totality of the circumstances, were such that they could have been found by the jury to constitute coercion.

"If the statute, or the definition of rape, did not contain the words 'by force,' or 'forcibly', doubtless a consent procured by such fraud as that referred to, might be treated as no consent; but the idea of force can not thus be left out and ignored, nor can such fraud be allowed to supply its place, though it would doubtless supply, and satisfy, all the other terms of the definition.

* * *

* * *

"In fact, we think the terms of the statute in reference to force, are satisfied by any sexual intercourse to which the woman...