People v. Payne

• Decision Date: 22 December 1971
• Docket Number: Docket No. 9392,No. 1,1
• Citation: 194 N.W.2d 906,37 Mich.App. 442
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph PAYNE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 906

194 N.W.2d 906

37 Mich.App. 442

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph PAYNE, Defendant-Appellant.

Docket No. 9392.

Court of Appeals of Michigan, Division No. 1.

Dec. 22, 1971.

Released for Publication March 9, 1972.

Ashley Gorman, Troy, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and J. H. GILLIS and DANHOF, JJ.

PER CURIAM.

Defendant was convicted of taking indecent liberties with a 10-year-old girl by a trial judge sitting without a jury. M.C.L.A. § 750.336 (Stat.Ann.1954, Rev. § 28.568). The victim testified that defendant, while visiting in her parents' home, touched her breasts, disrobed her, forced her to lie down, positioned himself on top of her, and made overtly sexual movements while reclining thus. An older sister of the victim, returning home from shopping, found defendant and the victim together in a bedroom. As the older sister looked into the bedroom, the victim was pulling up her undergarments and slacks. The complainant was unable to testify whether defendant had effected genital penetration during the assault. A policewoman who interviewed the victim 2 days after the incident gave testimony which was largely cumulative of that given by the complainant. However, the policewoman related to the court that the child told her that defendant choked her during the assault and that he did, indeed, accomplish a penetration.

Defendant assigns as error the admission of the policewoman's hearsay testimony as to what the victim told her regarding the incident. In sex offenses, hearsay statements made by a victim of tender years to a witness who subsequently testifies to the content of these declarations are admissible as part of the Res gestae of the crime if the delay from the time of the incident to the time of the conversation is adequately explained. People v. Baker (1930), 251 Mich. 322, 232 N.W. 381; People v. Davison (1968), 12 Mich.App. 429, 163 N.W.2d 10. ¹ However, we feel it is unnecessary to determine if this concededly hearsay testimony is admissible as a segment of the continuing Res gestae of the crime; we hold that the error, if any, is harmless. The admission of hearsay is rendered harmless when the declarant of the out-of-court statement testifies to and substantiates the incompetent evidence. People v. Hallaway (1970), 25 Mich.App. 604, 181 N.W.2d 546. The testimony of the policewoman was largely cumulative of that of the victim. ² Where inadmissible hearsay of this nature is presented to a trial court sitting alone, we can assume that its verdict rested upon evidence properly offered and not upon the inadmissible testimony. People v. Davison, supra, at 433, 163 N.W.2d 10.

Further, defendant attacks the constitutionality of the indecent liberties statute as unduly vague. ³ We cannot accept this contention. The legislation penalizes conduct that is of such character that the common sense of society regards it as indecent and improper. People v. Hicks (1893), 98 Mich. 86, 56 N.W. 1102; People v. Szymanski (1948), 321 Mich. 248, 32 N.W.2d 451; People v. Healy (1933), 265 Mich. 317, 251 N.W. 393; People v. Visel (1936), 275 Mich. 77, 265 N.W. 781; People v. Lakin (1938), 286 Mich. 282, 282 N.W. 149; People v. Brandt (1969), 18 Mich.App. 267, 171 N.W.2d 59; People v. Dexter (1967), 6 Mich.App. 247, 148 N.W.2d 915; Armstrong v. Bannan (C.A.6, 1959), 272 F.2d 577. A penal statute, proscribing sexually offensive, anti-social conduct, is not unconstitutionally ambiguous because it fails '* * * to graphically outline the acts encompassed by the crime * * *.' People v. Green (1968), 14 Mich.App. 250, 251, 165 N.W.2d 270, 271. ⁴

Finally, defendant took the stand to deny the allegations of the complainant. The prosecutor on cross-examination and for the purposes of testing defendant's credibility brought defendant's past convictions to light. It remains the law of Michigan that, whenever defendant chooses to testify, his past convictions may be used by the prosecution to impeach his credibility. M.C.L.A. § 600.2158 (Stat.Ann.1962 Rev. § 27A.2158); People v. DiPaolo (1962), 366 Mich. 394, 115 N.W.2d 78; People v. Cybulski (1968), 11 Mich.App. 244, 160 N.W.2d 764; People v. Roney (1967), 7 Mich.App. 678, 153 N.W.2d 175.

The final allegation of error is that the trial court failed to make specific findings of fact at the conclusion of the case. While GCR 1963, 517.1, requires the court in a nonjury case or in a case tried with an advisory jury to make findings of fact and state separately its conclusions of law thereon, this court rule does not apply to criminal cases.

Affirmed....