People v. Swinford

• Decision Date: 08 July 1986
• Docket Number: Docket No. 80316
• Citation: 389 N.W.2d 462,150 Mich.App. 507
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Duane SWINFORD, Defendant-Appellant. 150 Mich.App. 507, 389 N.W.2d 462
• Court: Court of Appeal of Michigan — District of US

Page 462

389 N.W.2d 462

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Duane SWINFORD, Defendant-Appellant.

Docket No. 80316.

150 Mich.App. 507, 389 N.W.2d 462

Court of Appeals of Michigan.

Submitted Dec. 9, 1985.

Decided April 8, 1986.

Released for Publication July 8, 1986.

[150 MICHAPP 510] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., and Robert B. Ebersole, Chief Appellate Asst. Pros. Atty., for the people.

James R. Neuhard, State Appellate Defender, by Peter Jon Van Hoek, Detroit, for defendant on appeal.

Before HOLBROOK, P.J., and T.M. BURNS and HOOD, JJ.

PER CURIAM.

Defendant was convicted following [150 MICHAPP 511] a jury trial of assault with intent to commit criminal sexual conduct involving penetration, M.C.L. Sec. 750.87; M.S.A. Sec. 28.282, and first-degree criminal sexual conduct, M.C.L. Sec. 750.5.0b(1)(f); M.S.A. Sec. 28.788(2)(1)(f). He appeals as of right.

According to the testimony at trial, the complainant finished her work shift at the U.S. Post Office in Lansing at 4:00 a.m. on November 26, 1983, and left for home. While driving in a rural area toward Mason in Ingham County, she noticed a car following closely behind her. She increased her speed to 80 to 85 miles per hour in an attempt to elude the vehicle. During this chase, the other car rammed the back of her car three or four times. She lost control of her car and spun off the road, finally coming to a halt 50 feet from the road in a field. At the same time a car turned about in a driveway and returned to her location.

A man, later identified as the defendant, exited from the car and approached the complainant. He grabbed her neck, choked her, stated that he was going to rape her and threatened to kill her.

The man pulled complainant into the back seat of the car and proceeded to commit various acts of criminal sexual conduct. After threatening to kill her, the man drove away in his car. The complainant sought assistance at a nearby farmhouse and was taken for a medical examination at Sparrow Hospital in Lansing.

I

Defendant's first argument on appeal is that there was insufficient evidence of personal injury to the complainant to elevate the crime to criminal sexual conduct in the first degree. This claim is without merit.

In reviewing a claim based upon the sufficiency [150 MICHAPP 512] of the evidence, this Court must consider all the evidence in a light most favorable to the prosecution. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979). A verdict should be affirmed if a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. Id.

A person is guilty of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), if that person engages in sexual penetration of another through the use of force or coercion. This crime is elevated to first-degree criminal sexual conduct if force or coercion is used and the victim suffers personal injury. M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f). "Personal injury" is statutorily defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ". (Emphasis added.) M.C.L. Sec. 750.520a(j); M.S.A. Sec. 28.788(1)(j).

In the case at bar, the prosecution contends that the act of criminal sexual conduct was elevated to criminal sexual conduct in the first degree by the bodily injury and mental anguish suffered by the complainant. We agree.

The record indicates that the choking of complainant left visible handprints which lasted several days and caused the complainant to have muscle spasms in her neck. A pelvic examination performed directly after the rape revealed that parts of complainant's vaginal areas were swollen and torn and would take up to two weeks to heal. It was indicated that these tears were consistent with "very, very, very forceful intercourse".

This evidence was adequate to sustain a first-degree criminal conduct conviction on the theory of bodily injury. See People v. Gwinn, 111 Mich.App. 223, 239, 314 N.W.2d 562 (1981), lv. den. 417 [150 MICHAPP 513] Mich. 949 (1983); People v. Hollis, 96 Mich.App. 333, 337, 292 N.W.2d 538 (1980); People v. Kraai, 92 Mich.App. 398; 285 N.W.2d 309 (1979), lv. den. 407 Mich. 954 (1980).

Concerning the "mental anguish" factor, various panels of this Court have struggled to find a definition which would not render the statute impermissibly vague. Compare People v. Gorney, 99 Mich.App. 199; 297 N.W.2d 648 (1980), lv. den. 410 Mich. 911 (1981) (mental anguish must be extreme) with People v. Jenkins, 121 Mich.App. 195, 328 N.W.2d 403 (1982) (mental anguish must be significant). Recently, our Supreme Court in People v. Petrella, 424 Mich. 221, 257, 380 N.W.2d 11 (1986) settled the matter by holding that the term "mental anguish" under the statute means "extreme or excruciating pain, distress, or suffering of the mind," and that this meaning does not render the term void for vagueness.

The Supreme Court also listed the following factors which may be considered in determining whether a victim has suffered mental anguish:

"(1) Testimony that the victim was upset, crying, sobbing, or hysterical during or after the assault.

"(2) The need by the victim for psychiatric or psychological care or treatment.

"(3) Some interference with the victim's ability to conduct a normal life, such as absence from the workplace.

"(4) Fear of the victim's life or safety, or that of those near to her.

"(5) Feelings of anger and humiliation by the victim.

"(6) Evidence that the victim was prescribed some sort of medication to treat her anxiety, insomnia, or other symptoms.

"(7) Evidence that the emotional or psychological effects of the assault were long-lasting.

"(8) A lingering fear, anxiety, or apprehension about [150 MICHAPP 514] being in vulnerable situations in which the victim may be subject to another attack.

"(9) The fact that the assailant was the victim's natural father." 424 Mich. 270-271, 380 N.W.2d 11.

The Supreme Court stressed that no single factor was controlling and that each case must be decided on its own facts. 424 Mich. 270, 380 N.W.2d 11.

With these factors in mind, we note that, as a result of the rape, the complainant regularly saw a therapist and experienced marital problems. Further, she is fearful of working at night and relinquished her duties on the night shift, which resulted in a substantial pay cut. We hold that these manifestations of emotional trauma are sufficient to allow a rational trier of fact to find the element of "mental anguish" beyond a reasonable doubt.

Defendant also argues that the jury was incorrectly instructed as to the "mental anguish" element of personal injury. The trial court instructed the jury that:

"Mental anguish means any significant degree of mental distress which has occurred as a result of the alleged incident."

Defendant contends that the correct definition of mental anguish pursuant to People v. Simpson, 132 Mich.App. 259, 265, 347 N.W.2d 215 (1984), rev'd. 424 Mich. 221, 380 N.W.2d 11 (1986) is that mental anguish must be extreme or serious, which is defined as "any significant degree of mental distress greater than that normally attendant to criminal sexual assaults accomplished by force or coercion."

Defendant's argument is without merit. People v. Simpson, supra, was reversed in the same decision [150 MICHAPP 515] as People v. Petrella, supra. Moreover, the Supreme Court expressly disapproved of the above quoted language. We note that under People v. Petrella, supra, the instruction that was given by the trial court was erroneous, but we conclude that the error did not prejudice the defendant. We have reviewed the evidence in a light most favorable to the prosecution and determined that a rational trier of fact could find the element of mental anguish as defined in People v. Petrella, supra, beyond a reasonable doubt.

II

Defendant's second argument is that his two convictions violate his right against double jeopardy. We disagree.

Both the federal ¹ and Michigan ² constitutions protect against multiple prosecutions and multiple punishments for the same offense. "The double jeopardy prohibition does not operate to bar the prosecution of two dissimilar offenses that occur at different times." People v. Richard Johnson, 94 Mich.App. 388, 391, 288 N.W.2d 436 (1979). See also People v. Noth, 33 Mich.App. 18; 189 N.W.2d 779 (1971). There is no violation based on double prosecution if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other. People v. Johnson, supra; People v. Jones, 75 Mich.App. 261, 270-271, 254 N.W.2d 863 (1972).

In the case at bar, the defendant was tried and convicted of assault with intent to commit criminal sexual conduct involving penetration on the basis of the acts which occurred during the car chase which resulted in the complainant's loss of [150 MICHAPP 516] control of her car. The series of events arising after complainant's car came to rest was the basis of defendant's conviction for criminal sexual conduct in the first degree.

Unlike the first-degree criminal sexual conduct offense, the assault offense requires proof of specific intent. People v. Love, 91 Mich.App. 495, 283 N.W.2d 781 (1979). While defendant's intent to commit sexual penetration was not verbalized until he began the second assault on the complainant, the jury could have found that the intent was manifested prior to that time although its true purpose was not yet evident. Therefore, we conclude that the first assault involving the vehicles was completed before the criminal sexual conduct offense began. Since each offense occurred separately, defendant was not subject to double jeopardy.

Defendant also argues that the information was defective because he was...