People v. Van Dorsten

Decision Date12 January 1993
Docket NumberDocket No. 94454
Citation494 N.W.2d 737,441 Mich. 540
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles VAN DORSTEN, Defendant-Appellee.
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Thomas Casey, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Ronald S. Pichlik, Asst. Pros. Atty., Battle Creek, for the People.

J. Richard Colbeck, Coldwater, for defendant-appellee.

PER CURIAM.

The Court of Appeals reversed the defendant's first-degree criminal sexual conduct conviction because the jury was not instructed that in order to convict it must unanimously agree on a specific criminal act. There was no request for such an instruction, nor was there an objection to the instructions given. We conclude that, in the circumstances of this case, there was no manifest injustice in failing to give such an instruction, and we remand the case to the circuit court for further proceedings in accordance with the remainder of the Court of Appeals opinion.

I

On the evening of August 9, 1983, following an altercation at a Battle Creek bar, complainant requested a ride from defendant Van Dorsten and Terry Doyle. However, Van Dorsten and Ms. Doyle thought the complainant had stolen some of Ms. Doyle's jewelry and that a friend of the complainant's had struck Ms. Doyle's dog with a pool cue. Instead of taking her home, they drove the complainant to a garage where Ms. Doyle beat her. They then drove to a wooded area where, according to the complainant, she was sexually assaulted. She testified that the defendant threatened her with a knife and committed five separate acts of sexual penetration.

Defendant was charged with a single count of first-degree criminal sexual conduct. 1

The case was tried twice. In the first trial, defendant and Ms. Doyle were found guilty of first-degree CSC, and defendant was sentenced to forty to sixty years in prison. However, on appeal, the Court of Appeals reversed and ordered a new trial. 2

The case was then retried in December 1989, this time with Ms. Doyle agreeing to testify for the prosecution. 3 Doyle basically corroborated the complainant's version of the events. Defendant testified on his own behalf, admitting that Doyle had beaten the complainant, but denying having committed any sexual assaults. The jury found the defendant guilty of first-degree CSC, and again he received a forty- to sixty-year prison sentence.

II

On appeal, the Court of Appeals again reversed in an unpublished per curiam opinion dated July 15, 1992. 4 The Court noted that defendant was charged with a single count, but the complainant testified to multiple penetrations. The trial court had instructed the jury in general terms that its verdict must be unanimous. Defendant did not object to the instruction given and made no request for a further instruction concerning unanimity with respect to a particular penetration. The Court of Appeals found error requiring reversal, relying on People v. Yarger, 193 Mich.App. 532, 485 N.W.2d 119 (1992):

"We find People v. Yarger, 193 Mich.App. 532, 485 N.W.2d 119 (1992), lv. pending, to control this issue. Each act of penetration was a separate crime. People v. Robinson, 80 Mich.App. 559, 566, 264 N.W.2d 58 (1978), lv. den., 407 Mich. 860 (1979). In Yarger, supra, this Court held that when a defendant is charged with one criminal act and there is evidence presented of more than one such act, it is error not to instruct the jury that a guilty verdict must be based on a specific single act. The Yarger panel stated that 'error occurred when the jury was not instructed that it must unanimously agree on which act(s) was proven beyond a reasonable doubt.' Otherwise, the possibility could exist that, 'for example, six jurors were convinced that fellatio had occurred, but not intercourse, while the other six jurors held the opposite view.' Id. [193 Mich.App. at 537, 485 N.W.2d 119]. Because the error results in manifest injustice, defendant's failure to object does not preclude appellate review. Id.

"We therefore reverse defendant's conviction. If retried, defendant should either be charged with a separate count of criminal sexual conduct for each act of penetration or the jurors should be appropriately instructed that to find defendant guilty they must unanimously agree on which act of penetration was established beyond a reasonable doubt." 5

The prosecutor has filed an application for leave to appeal.

III

A number of courts have discussed the question whether a jury must be instructed that its verdict must be unanimous with respect to a particular act or theory where there are several that might support conviction of the offense. E.g., Schad v. Arizona, 501 U.S. ----, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); Vitello v. United States, 425 F.2d 416 (CA 9, 1970); People v. Paintman, 92 Mich.App. 412, 418, 285 N.W.2d 206 (1979), rev'd on other grounds, 412 Mich. 518, 315 N.W.2d 418 (1982), cert. den., 456 U.S. 995, 102 S.Ct. 2280, 73 L.Ed.2d 1292 (1982); People v. Johnson, 187 Mich.App. 621, 468 N.W.2d 307 (1991); People v. Yarger, supra. However, we find no need to reach that issue in the instant case. As noted, the defendant did not raise the issue in the trial court by requesting an instruction on a requirement of unanimity with regard to a particular act. Nor did he object to the judge's instructions on that basis. As we explained in People v. Kelly, 423 Mich. 261, 271-272, 378 N.W.2d 365 (1985):

"This Court has stated that 'instructional error should not be considered on appeal unless the issue has been preserved by an objection to the instruction in the trial court.' People v. Handley, 415 Mich. 356, 360, 329 N.W.2d 710 (1982). Relief will be granted absent an objection only in cases of manifest injustice. See, e.g., People v. Woods, 416 Mich. 581, 610, 331 N.W.2d 707 (1982); People v. Rand, 397 Mich. 638, 643, 247 N.W.2d 508 (1976); People v. Townes, 391 Mich. 578, 586, 218 N.W.2d 136 (1974). The United States Supreme Court has enunciated a similar test. It stated that '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.' Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1976). Relief will be given only when necessary to avoid manifest injustice to the defendant."

We find no manifest injustice in this case. 6 The number or specific identification of acts of sexual penetration was not in dispute in this case. The defendant's position was simply that there was no sexual assault committed. It was obvious to the participants in the trial that the verdict turned on whether the jury believed the testimony of the complainant and Terry Doyle on the one hand, or found reasonable doubt that any sexual assault occurred, as claimed by the defendant. Given that posture of the case, there was no reason for the parties to focus on the specifics of individual penetrations. In this context, the failure to give an instruction requiring unanimity on a particular act in no way impeded the defense or denied the defendant a fair trial.

Accordingly, we reverse that portion of the Court of Appeals judgment that required a new trial because of the failure to give such an instruction.

IV

As explained above, 7 the Court of Appeals also directed that at a new trial there should be an evidentiary hearing, with specific findings made regarding defendant's claim that he and Ms. Doyle were married, precluding her testimony under the spousal privilege statute. 8 This remedy must be modified in light of our reversal of the Court of Appeals decision on the instructional issue. We remand this case to the Court of Appeals, which, while retaining jurisdiction, shall remand the case to the Calhoun Circuit Court for a hearing on the spousal privilege issue, in accordance with the Court of Appeals opinion. 9 Following the hearing and findings by the circuit court, the Court of Appeals shall again review the issue.

MICHAEL F. CAVANAGH, C.J., and MALLETT, RILEY, LEVIN, BRICKLEY, BOYLE and ROBERT P. GRIFFIN, JJ., concur.

2 The basis of the reversal...

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