People v. Proveaux
| Decision Date | 16 April 1987 |
| Docket Number | Docket No. 87816 |
| Citation | 157 Mich.App. 357,403 N.W.2d 135 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Davis PROVEAUX, Defendant-Appellant. |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Paul J. Fischer, Asst. Pros. Atty., for the People.
Alvin C. Sallen, Southfield, for defendant-appellant on appeal.
Before SULLIVAN, P.J., and SHEPHERD and SHUSTER, * JJ.
Defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), following a jury trial. On appeal, defendant raises a question of first impression: whether he could be convicted of first-degree criminal sexual conduct on the theory that he was armed within the meaning of the statute when the victim had disarmed defendant prior to penetration. We answer in the affirmative. Defendant also argues that the circuit court erred in admitting serological evidence including defendant in a class of individuals who could have committed the crime. We find no error and affirm defendant's conviction.
The victim went to a bar with her friend Meredith and Meredith's brother Donald. Defendant, whom the victim claimed not to know, asked the victim to dance, and she declined. Defendant made a "snide remark." Defendant later danced with Meredith while the victim joined some friends at another table. When she returned, defendant had joined Meredith and Donald. Meredith and Donald asked if they could play pool on the pool table in the victim's basement. The victim agreed so long as they kept quiet.
When the victim arrived home, several people were present, including defendant. The victim told Meredith and Donald to make sure everyone left when the pool-playing was over and that only Meredith should remain.
The victim then went to bed in her first-floor bedroom. She closed the door, but there was no lock. The next thing she remembered was being awakened by defendant with a knife at her throat. Defendant said, "You're not going to tell me no this time, bitch, because I'll cut your throat." The victim got up, saying she wanted to go to the bathroom. She went to the basement stairs, assuming that everyone was still there, but no one was. She noticed that the back door was wide open and went outside. Defendant pulled her back in, grabbing her from behind and putting the knife to her throat. Back in the house, the victim got away from defendant again when he lost his balance, and she went out the front door and started to yell. Again, defendant grabbed her from behind, put his hand over her mouth and the knife to her throat, and told her to "loosen up" or he would cut her. At that point, the victim somehow got the knife out of defendant's hand and threw it towards some bushes or the street. Defendant began hitting her on the side of the head and pulled her back into the house. Defendant then pulled the victim to the floor and had sexual intercourse with her.
Afterwards, the victim got up, saying she was going to get a cigarette. Defendant said he would get her one of his own. When he stepped out the front door, the victim locked it. She secured the back door, from which the door handles had been taken, by slipping a knife into the jamb. The victim called the police, who arrested defendant outside the house. Both police officers observed that defendant's clothes were in disarray: his shirt was unbuttoned, his pants were unzipped, and his shoes were untied. The knife was found in the street, apparently four or five feet from the curb.
At the close of the prosecutor's proofs, defendant moved to dismiss the first-degree criminal sexual conduct charge on the grounds of insufficient evidence. Alternatively, defendant moved for a reduction of the charge to assault with intent to commit first-degree criminal sexual conduct or to third-degree criminal sexual conduct. Defendant argued that, according to the evidence, the victim had disarmed him before sexual penetration was accomplished. Penetration was therefore accomplished by force or coercion alone, satisfying the elements of third-degree criminal sexual conduct, but not while armed with a dangerous weapon, as required for first-degree sexual conduct. The court denied defendant's motion.
The elements of third-degree criminal sexual conduct relevant to this case require sexual penetration accomplished by force or coercion, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b). First-degree criminal sexual conduct requires sexual penetration when one of eight aggravating circumstances is present. The statutory provision pertinent to this case is M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e):
In People v. Davis, 101 Mich.App. 198, 201-203, 300 N.W.2d 497 (1980), defendant's rifle was lying six feet away while penetration occurred. This Court concluded that possession included both actual and constructive possession. Constructive possession occurs if one has proximity to the article together with indicia of control. The Court held that the actor need not have the weapon in his hands while committing the offense charged, so long as he has knowledge of the weapon's location and it is reasonably accessible.
Subsequently, in People v. Flanagan, 129 Mich.App. 786, 797-798, 342 N.W.2d 609 (1983), the defendant forced two young girls to perform several acts of sexual intercourse and fellatio after displaying a knife which he held to the throat of one girl and forcing them into his car. The defendant argued that he could not be convicted of all counts of first-degree criminal sexual conduct charged. The defendant argued that he was not armed during two incidents of fellatio because the knife was not on his person when those assaults occurred. Citing Davis, the Court rejected the defendant's argument. The evidence showed that the knife was on the seat next to defendant during the assaults and, after the initial assaults, defendant retrieved the knife and held it clenched in his teeth during further assaults.
The instant case is different from both Davis and Flanagan. Here, the testimony showed that defendant's knife had been thrown outside the house before sexual penetration occurred inside the house. The knife was not within defendant's reach and it is unclear if defendant knew where the knife landed. It would be difficult to say that defendant had constructive possession of the knife.
Criminal statutes are to be strictly construed. People v. Saxton, 118 Mich.App. 681, 690, 325 N.W.2d 795 (1982). We believe, however, that defendant was armed with a weapon within the statute's meaning so as to make the crime first-degree criminal sexual conduct. Defendant had possession of the knife when he began his assault on the victim. When he awakened her, he held the knife at her throat. When the victim went out the back door, defendant pulled her back into the house with the knife at her throat. When she got away a second time and headed out the front door, defendant followed her and again put the knife to her throat, telling her to "loosen up" or he would cut her.
It is enough that defendant began the assault with a knife, putting the victim in fear and traumatizing her. The sexual penetration was part of a continuing event beginning with the armed assault. Undoubtedly, the Legislature intended to discourage the use of weapons by elevating forcible sexual penetration to a first-degree offense when the offender is armed. The possession of a weapon makes the sexual assault more reprehensible, increases the victim's danger, and lessens the victim's chances of escape. People v. Hurst, 132 Mich.App. 148, 152, 346 N.W.2d 601 (1984). The statutory purpose of a higher penalty for the more reprehensible crime must continue through the assault even if the accused is disarmed in this fashion. A policy that prevents conviction of the first-degree offense merely because at some point during the criminal transaction the offender lost his weapon would not be consonant with the Legislature's intent. A rule requiring actual or constructive possession of the weapon through the course of the sexual assault would mean that a defendant could first subdue the victim with a weapon and then discard it before actual penetration. Such a rule would mean that the victim's actions in defending herself lessened the crime's seriousness.
The trial court did not err in denying the motion to reduce the charge. Moreover, viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found the crime's essential elements proven beyond a reasonable doubt. The trial court therefore did not err in denying defendant's motion to dismiss at the close of the prosecutor's proofs. Defendant's conviction was supported by sufficient evidence. People v. Petrella, 424 Mich. 221, 268, 380 N.W.2d 11 (1985).
David Woodford, a laboratory scientist with the Michigan State Police Crime Laboratory specializing in forensic serology, testified for the prosecution. Based on an analysis of defendant's whole blood and a dried saliva sample, Woodford determined that defendant's blood type is A, his PGM blood enzyme is type 1, and defendant is a secreter, that is, he secretes factors from his ABO blood type into his body fluids. Woodford then analyzed a dried semen stain on the victim's nightgown. The stain had been stored in liquid nitrogen to preserve any traces of PGM. Woodford found that the stain...
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