People v. Smith

• Decision Date: 02 May 1994
• Docket Number: No. 146170,146170
• Citation: 517 N.W.2d 255,205 Mich.App. 69
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Norman SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 255

517 N.W.2d 255

205 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Norman SMITH, Defendant-Appellant.

No. 146170.

Court of Appeals of Michigan.

Submitted Jan. 6, 1994, at Grand Rapids.

Decided May 2, 1994, at 9:55 a.m.

Released for Publication June 30, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Charles H. Koop, Pros. Atty., and Charles D. Hackney, Asst. Pros. Atty., for People.

Earl R. Spuhler, Fenton, for defendant on appeal.

Before SAWYER, P.J., and NEFF and TALBOT, ^* JJ.

SAWYER, Presiding Judge.

Defendant was convicted, following a jury trial, of four counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a); M.S.A. § 28.788(2)(1)(a), and four counts of "child sexually abusive activity," M.C.L. § 750.145c(2); M.S.A. § 28.342a(2). Defendant thereafter pleaded guilty of being a habitual offender (fourth offense). M.C.L. § 769.12; M.S.A. § 28.1084. Defendant was sentenced to life imprisonment for the criminal sexual conduct convictions and to thirteen years, four months to twenty years in prison for the child sexually abusive activity convictions. He now appeals and we affirm in part and reverse in part.

Defendant first argues that there was insufficient evidence to support his convictions of criminal sexual conduct. We disagree. We review a claim regarding the sufficiency of the evidence by looking at the evidence in the light most favorable to the prosecution and determining whether a rational trier of fact could find that each element of the offense was proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979).

The substance of defendant's argument is that there was conflicting evidence presented concerning his guilt. However, the question is not whether there was conflicting evidence, but rather whether there was evidence that the jury, sitting as the trier of fact, could choose to believe and, if it did so believe that evidence, that the evidence would justify convicting defendant. In this case, the victim, who was under the age of thirteen, testified that defendant had her perform fellatio on him on at least five separate occasions. If the jury chose to believe the victim's testimony, they would be justified in convicting defendant of four counts of criminal sexual conduct in the first degree.

Next, defendant argues that there was insufficient evidence to convict him of child sexually abusive activity. Defendant claims that no evidence whatsoever was presented supporting the charge. However, the victim testified that defendant took pictures of her while she was "holding her privates" (i.e., masturbating). Under M.C.L. § 750.145c(2); M.S.A. § 28.342a(2), a person is guilty of child sexually abusive activity if, inter alia, the person makes child sexually abusive material. Under M.C.L. § 750.145c(1)(i); M.S.A. § 28.342a(1)(i), child sexually abusive material includes any photographic image of the child engaging in a listed sexual act. Under M.C.L. § 750.145c(1)(e); M.S.A. § 28.342a(1)(e), a listed sexual act includes masturbation. Under M.C.L. § 750.145c(1)(f); M.S.A. § 28.342a(1)(f), masturbation means the real or simulated touching, rubbing, or otherwise stimulating of a clothed or unclothed genital, pubic area, buttocks, or female breast, for the purpose of real or simulated overt sexual gratification or arousal. We believe that defendant's act of having the victim touch her genital area while the defendant was taking a photograph comes sufficiently within this definition to allow a rational trier of fact to conclude that the victim was masturbating while defendant was making a photograph of her masturbating, thus allowing the jury to convict defendant of making child sexually abusive material and, therefore, rendering defendant guilty under the statute.

However, we agree with defendant that the evidence presented by the prosecutor was scant with respect to the number of occasions on which this conduct occurred. Even viewing the evidence in the light most favorable to the prosecutor, we can conclude that defendant took more than one photograph, but only on one occasion. It cannot be discerned from the victim's testimony exactly how many photographs were taken (she only refers to "pictures" in the plural) and the victim only specifically described one occasion on which defendant took photographs. ¹ Accordingly, while we conclude that the witness did give testimony sufficient to allow the conclusion by the jury that defendant committed one count of child sexually abusive activity, we cannot say that there was sufficient evidence to justify the conclusion that defendant committed four counts of child sexually abusive activity. Accordingly, we set aside three of defendant's four convictions of child sexually abusive activity, leaving in place only one conviction and sentence for that offense.

Defendant next argues that the trial court erred in allowing expert testimony concerning the delayed reporting of abuse, particularly with respect to allowing the prosecutor to introduce such evidence during his case in chief when the issue of delay had not been raised by the defense. We disagree. The Supreme Court restricted the use of expert testimony concerning child sexual abuse syndrome in People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990). Generally speaking, the Court held that while an expert cannot render, on the basis of the syndrome evidence, an opinion on whether the alleged victim was in fact abused, the expert is allowed to testify concerning whether particular conduct by the victim is consistent with having been abused to rebut an inference that the conduct is inconsistent with abuse. With respect to this latter point, the Court summarized its holding as follows:

We therefore conclude and would hold that persons otherwise properly qualified as experts in dealing with sexually abused children should be permitted to rely on their own experience and their knowledge of the experience of others to rebut an inference that specific behavioral patterns attributed to the victim are not uncharacteristic of the class of child sexual abuse victims.... Expert testimony should be admissible only to the extent that it is directed towards...