People v. Thorin

Decision Date05 August 1983
Docket NumberDocket No. 64394
Citation126 Mich.App. 293,336 N.W.2d 913
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven James THORIN, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Steven L. Pence, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant.

Before DANHOF, C.J., and ALLEN and WALSH, JJ.

ALLEN, Judge.

Defendant was charged and bound over for trial on a charge of criminal sexual conduct in the first degree (CSC-I), M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). The alleged assault occurred on the night of September 17, 1981, in Escanaba. He was tried by a jury January 25-27, 1982, and found guilty of criminal sexual conduct in the third degree (CSC-III), M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4). Sentenced on March 9, 1982, to 10 to 15 years in prison, he appeals as of right raising six issues.

The complainant testified that on September 17, 1981, she bowled at the Bowlarama in Escanaba, leaving there about five minutes before 12:00 midnight. As she was getting into her car, she was hit by a man wearing a ski mask. The man pushed her into the passenger seat and drove out of the parking lot to an unmarked private road where he forced her to disrobe. He then performed oral and vaginal sex and attempted anal sex. At no time did he remove the ski mask. He then had complainant drive him back to the same parking lot where he had first accosted her. Complainant testified that when the man got out of the car, she tried to run him down, but lost sight of him after chasing him around a couple of times.

Complainant then drove to the front of the bowling alley where she told several men she had been raped and believed her assailant was still in the parking lot. The men ran to the parking lot where one of the men, Greg Morehouse, saw a man jump up from behind a green and white van saying "they're after me". Morehouse and the other men chased the man, but lost sight of him near the Delta Inn Motel. The motel manager called the police who, upon searching the parking lot, found the defendant lying underneath a pickup truck. Defendant was arrested. Later Morehouse looked underneath the green and white van and found a ski mask similar to the mask complainant had described as being worn by her assailant.

Defendant testified that he bowled the night of the alleged assault and then went to Stropich's Bar, where he watched a football game on TV which ended shortly before midnight; that he went out to his car and drove to the bowling alley where, while in the process of parking, his car was struck by a dark sports car; that he chased the car on foot, caught up with it and knocked on the car door; that as he did so, he heard the word "rape" and saw three men running toward him shouting threats; that he fled to the Delta Inn parking lot where he hid beneath a parked truck. Two witnesses, the Stropich brothers, testified that defendant was a member of their bowling team and had gone with them to Stropich's Bar that night where they watched a game on TV.

1. Did the trial court err by instructing sua sponte on CSC-III, in addition to the charged offense of CSC-I, without also instructing on CSC-IV?

Defendant argues that CSC-IV is a lesser offense under CSC-I and that assault with intent to commit sexual penetration and attempted CSC are also lesser included offenses on which the jury should have been instructed even though no request for such instructions was made. To hold otherwise, argues defendant, allows the trial court to pick and choose among several possible included offenses and thus guide the jury. The issue raised is of first impression.

This Court has held that CSC-IV is not a necessarily included lesser offense of CSC-I. People v. Baker # 2, 103 Mich.App. 704, 304 N.W.2d 262 (1981); People v. Green, 86 Mich.App. 142, 272 N.W.2d 216 (1978). The Court in Baker # 2, noted that CSC-IV is usually a factually included lesser offense and found error because the trial court failed to give the requested CSC-IV instruction. In People v. Worrell, 111 Mich.App. 27, 314 N.W.2d 516 (1981), this Court found assault with intent to commit CSC to be a cognate lesser offense of CSC-III. In Green, supra, 86 Mich.App. p. 152, 272 N.W.2d 216, this Court held that "attempt is necessarily included in the completed offense". But see People v. Browning, 106 Mich.App. 516, 528, 308 N.W.2d 264 (1981), where the failure to give an attempt instruction was found to be harmless error where the testimony supported a finding "that the victim was, in fact, raped and no evidence [was presented] to support a conclusion that there was a mere attempt to rape her".

In our opinion, it was not error for the court to instruct on CSC-I and CSC-III only. Defendant has cited no authority, and we can locate none, for the proposition that a court must sua sponte instruct on all possible lesser included offenses and cognate offenses when it chooses to instruct sua sponte on one lesser included offense. Had defendant wished to have other offenses submitted to the jury, he could have requested them. The decision whether to request instructions on lesser offenses is often a matter of trial strategy, and we do not believe that defense counsel's failure to so request was a serious error indicating ineffectiveness of counsel under People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976); People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). We see no reason to find that the general rule stated by the Supreme Court in People v. Richardson, 409 Mich. 126, 135, 293 N.W.2d 332 (1980), 1 should be inapplicable where the trial court sua sponte instructs on one lesser included offense.

II. Did the trial court err by excluding testimony from the prosecution's medical expert as to what would likely be found under the fingernails of the assailant?

On cross-examination of the people's medical expert, defense counsel asked the witness what, if anything, he would expect to find under the fingernails of the assailant. When the prosecution objected, the trial court sustained the objection and precluded argument on the question. Defendant claims that the trial court abused its discretion. Assuming, arguendo, that this was error, the error became harmless when defense counsel directed the same question to a subsequent expert witness and was given an answer. The fingernail evidence was subsequently fully explored and the jury was informed that no fecal matter or blood was found in the defendant's fingernail scrapings and that such scrapings could have been removed by defendant before the warrant was issued. Thus, any error was harmless. People v. Prast (On Rehearing), 114 Mich.App. 469, 319 N.W.2d 627 (1982), People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981).

III. Did the trial court abuse its discretion by denying defendant's motion for dismissal on the ground that there had been an insufficient showing of personal injury?

When the prosecution rested, defendant moved to dismiss on the ground there had been an insufficient showing of personal injury, viz: "mental anguish" as required in M.C.L. Sec. 750.520a(f); M.S.A. Sec. 28.788(1)(f). The court ruled it would submit both CSC-I and CSC-III to the jury and allowed the prosecution to reopen proofs.

People v. Gorney, 99 Mich.App. 199, 297 N.W.2d 648 (1980), lv. den. 410 Mich. 911 (1981), held that the term "mental anguish" as applied to the offense of CSC-I must be "extreme" or "serious". Two indicia of extreme mental anguish were noted by the Court: "the need by the victim for psychiatric care or some interference with the victim's ability to conduct a normal life, such as an absence from the workplace". Id., 99 Mich.App. p. 207, 297 N.W.2d 648. In People v. Izzo, 116 Mich.App. 255, 323 N.W.2d 360 (1982), this Court found sufficient evidence of "extreme" mental anguish to go to the jury even though the complainant was not given psychiatric care and at best was described as extremely upset with "residual, albeit perhaps only short term emotional suffering". Clearly, under Izzo, there was sufficient evidence of extreme mental anguish to go to the jury. Even under Gorney, the case was jury decisionable. Complainant testified that, she was unable to return to work for a week after the incident, remaining in the house for the entire time, and that, when she finally did return, she refused to work nights. She also stopped going out to her car alone at night and, according to her husband, was very frightened by any sudden noise or any unexpected person entering the house.

IV. Was the admission of blood typing and electrophoresis evidence error?

Prior to trial defendant moved for suppression of evidence of blood typing tests, including a process known as electrophoresis. Body fluids taken from both the defendant and the victim were analyzed at the State Police laboratory as a result of which it was determined that defendant was a type O secretor and the victim a type A secretor. Sperm found on paper tissues found in the back seat of the car where the sexual assault occurred matched defendant's blood type O. Samples of the paper tissues, saliva and blood were also analyzed by electrophoresis which revealed that the stains on the tissues matched defendant's body fluids, but not the victim's. Defendant contends the evidence was inadmissible under People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669 (1979).

On the question of the admissibility of blood type evidence which serves only to include defendant in a class of possible perpetrators, various panels of this Court have come to diverse conclusions. Sturdivant held that blood type evidence that the assailant was a non-secretor had no probative value and was inadmissible. In People v. Horton, ...

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