People v. Simpson, Docket No. 50790

• Decision Date: 16 March 1984
• Docket Number: Docket No. 50790
• Citation: 347 N.W.2d 215,132 Mich.App. 259
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice Raymond SIMPSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 215

347 N.W.2d 215

132 Mich.App. 259

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice Raymond SIMPSON, Defendant-Appellant.

Docket No. 50790.

Court of Appeals of Michigan.

Submitted Nov. 3, 1983.

Decided Feb. 21, 1984.

Released for Publication March 16, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Fred R. Hunter, III, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendants-appellant.

Before MacKENZIE, P.J., and J.H. GILLIS and MEGARGLE ^*, JJ.

MacKENZIE, Presiding Judge.

Defendant appeals by leave granted from his conviction of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), after a bench trial. Defendant was sentenced to from 7 1/2 to 15 years imprisonment. The victim was the defendant's daughter, who was 19 or 20 years old at the time of the offense.

Defendant first claims that his conviction must be reversed because the court erred in permitting defendant's wife, who is also the victim's mother, to testify at the trial. In response to defendant's objection to his wife's testifying based on the spousal privilege statute, the court ruled that while defendant's wife could not testify as to any communications she had with defendant, she could otherwise testify under the statutory exception for "cases of prosecution for a crime committed against the children of either or both", M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162. Defendant argues that this exception should apply only where the child is a minor, and should not apply here since the victim was 19 or 20 years old at the time of the offense.

This argument has not heretofore been addressed by any Michigan appellate court. However, as a general matter, this Court has stated that the spousal privilege statute should be narrowly construed, and thus its exceptions should be broadly construed. People v. Love, 127 Mich.App. 596, 339 N.W.2d 493 (1983); People v. Wadkins, 101 Mich.App. 272, 283, 300 N.W.2d 542 (1980). Consequently, we hold that the exception for crimes committed against the children of one or both spouses is not restricted to minor children, but rather extends to all children regardless of age. The term "children" used in the statute does not necessarily imply any age limit, and the Legislature could have easily used the term "minor children" if such a limitation were intended. That the modern justification for spousal privilege is the preservation of marital harmony also supports our holding. People v. Love, supra; People v. Wadkins, supra, p. 283, 300 N.W.2d 542. It is unlikely that there is much marital harmony left to preserve where, as in the intant case, one spouse has committed a crime against the other spouse's child.

Defendant also contends that there was insufficient evidence to support his conviction of first-degree criminal sexual conduct. In reviewing the sufficiency of the evidence in an appeal from a bench trial, we must determine whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, People v. Marlin Smith, 119 Mich.App. 91, 94, 326 N.W.2d 434 (1982); People v. Gregory Johnson, 112 Mich.App. 483, 489, 316 N.W.2d 247 (1982), or whether the court clearly erred, People v. Triplett, 105 Mich.App. 182, 190-191, 306 N.W.2d 442 (1981), remanded 414 Mich. 898, 323 N.W.2d 7 (1982); People v. Anderson, 112 Mich.App. 640, 648; 317 N.W.2d 205 (1981). Defendant herein was convicted of first-degree criminal sexual conduct under Sec. (1)(f) of M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), i.e., defendant used force or coercion and caused personal injury to the victim. The element of personal injury is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ". M.C.L. Sec. 750.520a(f); M.S.A. Sec. 28.788(1)(f). In the present case, there was no evidence of any physical injury to the victim, and the prosecutor's theory was that the "personal injury" element was satisfied by the victim's having suffered "mental anguish".

Defendant argues that there was not sufficient evidence of mental anguish to justify his conviction of criminal sexual conduct in the first degree, and that his conviction should be reduced to third-degree criminal sexual conduct. At the trial, defendant had unsuccessfully moved for a directed verdict, arguing that the prosecutor had failed to establish the degree of mental anguish necessary for first-degree criminal sexual conduct. This Court has previously wrestled with the fact that under the criminal sexual conduct statute criminal sexual conduct can be elevated from the third degree to the first degree, or from the fourth degree to the second degree, based on proof of mental anguish as the requisite personal injury. Compare M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f) with M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), and M.C.L. Sec. 750.520c(1)(f); M.S.A. Sec. 28.788(3)(1)(f) with M.C.L. Sec. 750.520e(1)(a); M.S.A. Sec. 28.788(5)(1)(a). Since any forced or coerced sexual penetration or contact is likely to cause some mental anguish to the victim, it is necessary in some way to meaningfully distinguish the mental anguish needed to elevate the degree of the offense. However, attempts by this Court to do so have not met with uniform results.

In People v. Gorney, 99 Mich.App. 199, 297 N.W.2d 648 (1980), lv. den. 410 Mich. 911 (1981), a case decided after the trial of the instant case, it was concluded that "extreme" or "serious" mental anguish was required to elevate the offense. This approach was also used in the more recent case of People v. Thorin, 126 Mich.App. 293, 300-301, 336 N.W.2d 913 (1983). However, in People v. Jenkins, 121 Mich.App. 195, 198-202, 328 N.W.2d 403 (1982), which was followed in People v. Petrella, 124 Mich.App. 745, 760-764, 336 N.W.2d 761 (1983), the Gorney approach of requiring "extreme" or "serious" mental anguish was rejected, and the proper inquiry was found to be whether there was evidence of "any significant degree of mental distress greater than that normally attendant to criminal sexual assaults accomplished by force or coercion". People v. Jenkins, supra, 121 Mich.App. p. 201, 328 N.W.2d 403; People v. Petrella, supra, 124 Mich.App. p. 762, 336 N.W.2d 761 (quoting Jenkins, supra). Also, several other panels have expressly declined to endorse the Gorney standard. People v. Izzo, 116 Mich.App. 255, 259, 323 N.W.2d 360 (1982); People v. Baker # 2, 103 Mich.App. 704, 709, 304 N.W.2d 262 (1981), lv. den. 417 Mich. 1093 (1983).

The author of this opinion was on the Gorney panel, and another member of this panel was on the Jenkins panel. Both decisions acknowledged that to elevate the offense, some degree of mental anguish greater than that which could be expected to...