People v. Vasquez, Docket No. 11097

• Decision Date: 28 March 1972
• Docket Number: Docket No. 11097,No. 2,2
• Citation: 197 N.W.2d 840,39 Mich.App. 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Luis VASQUEZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 840

197 N.W.2d 840

39 Mich.App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Luis VASQUEZ, Defendant-Appellant.

Docket No. 11097.

Court of Appeals of Michigan, Division No. 2.

March 28, 1972.

Released for Publication June 7, 1972.

Richard J. Ruhala, Draper, Daniel & Ruhala, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

PER CURIAM.

Defendant was convicted by a judge in the Genesee County Circuit Court of sodomy, M.C.L.A. § 750.158; M.S.A. § 28.355, and was sentenced to a prison term of 4 to 15 years. He appeals of right.

Defendant makes four allegations of error on appeal. The first concerns the sufficiency of the evidence. An examination of the record reveals that there was sufficient evidence, if believed by the court, to sustain a verdict of guilty beyond a reasonable doubt. People v. Cheeks, 25 Mich.App. 641, 181 N.W.2d 570 (1970).

Defendant's second allegation is that the trial court erred in allowing the victim's mother to testify with respect to the victim's complaint to her of the sexual assault. The testimony of a victim of tender years may be corroborated by another witness, as a Res gestae exception to the hearsay rule, if the delay in making the complaint is caused by fear and there is no indication the story is manufactured. People v. Woodward, 21 Mich.App. 549, 175 N.W.2d 842 (1970). That is the case here.

There is also no merit in defendant's contention that the prosecutor committed reversible error by attempting to introduce evidence of similar incidents. The trial judge sustained defense counsel's objection. In the absence of proof to the contrary, it is presumed that the trial judge was not prejudiced and followed the law. People v. Farmer, 30 Mich.App. 707, 186 N.W.2d 779 (1971).

Finally, defendant argues that sodomy between a male and female is not possible. People v. Askar, 8 Mich.App. 95, 153 N.W.2d 888 (1967) is controlling on this point and is contrary.

Affirmed.

* MICHAEL D. O'HARA, former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.