People v. Vaughn

• Decision Date: 05 December 1990
• Docket Number: Docket No. 115457
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin Eugene VAUGHN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 365

465 N.W.2d 365

186 Mich.App. 376

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin Eugene VAUGHN, Defendant-Appellant.

Docket No. 115457.

Court of Appeals of Michigan.

Submitted Oct. 2, 1990, at Lansing.

Decided Dec. 5, 1990, at 9:05 a.m.

Released for Publication Feb. 11, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the People.

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

Before WAHLS, P.J., and DOCTOROFF and ALLEN, ^* JJ.

ALLEN, Judge.

Defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(d); M.S.A. Sec. 28.788(2)(1)(d), and third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), following a bench trial in the Genesee Circuit Court. He was sentenced on January 11, 1989, to two concurrent terms of two to fifteen years in prison. He appeals as of right and raises three issues. We affirm.

At about 1:00 a.m. on July 30, 1987, complainant, then aged twenty-one, and her boyfriend's then ten-year-old sister, were invited by defendant to his home next door to eat pizza. Defendant, a married man, had lived next door to complainant for about two years. On that particular evening his wife was away from home on a camping trip.

Complainant and the child accepted defendant's offer, went next door, ate pizza, drank orange pop, and watched TV. They then fell asleep. When complainant awoke she found herself in a double bed, as defendant, who was naked, was removing her pants. Though she resisted, defendant removed her pants, got on top of her and inserted his penis into her vagina. The assault lasted about ten minutes. She was uncertain whether he ejaculated.

Defendant then got up and held complainant's arms over her head while another person, a tall, dark, skinny man, got on top of her and inserted his penis into her vagina. Afterwards, the men let her go. She dressed and returned to her house, carrying the ten-year-old with her. About noon the next day, complainant was awakened by a telephone call from a sister who, upon being informed of what had happened, took complainant to Hurley Medical Center. There complainant was examined and blood, saliva, and semen samples were taken.

A serologist with the State Police testified that his analysis of the blood, semen, and saliva samples in the sexual assault kit and of the blood and saliva samples taken from defendant indicated that defendant was a Group A secretor with a genetic marker identified as PGM-2-plus and that the complainant was a Group A secretor with a genetic marker identified as PGM-1-plus. Examination of the complainant's underpants indicated the presence of the genetic markers found both in defendant and in complainant. It also indicated the presence of a genetic marker that did not belong to either defendant or complainant. He concluded that, while defendant could not be the source of any sperm found in complainant's underpants, defendant could not be excluded as the source of the seminal stain in her underpants.

The child testified that she and complainant went to defendant's house in late summer, where she ate pizza and drank some pop. She stated that she started getting dizzy and her head hurt so she laid down on the couch and fell asleep. She said she woke up to go to the bathroom and heard the complainant screaming, but that a guy, who may or may not have been defendant, told her shut up and go lie down. She did as instructed. She explained she woke up the next day in the complainant's house.

Defendant testified that he did not invite complainant or the child to come over to his home on the night in question, and that they did not come to his house that night. He stated that he ordered pizza around 9:00 p.m. and that he and his son ate the pizza. Thereafter, he had three male visitors, one each at about 10:30, 11:00 and 12:00 p.m., respectively. One of the visitors that night and his son testified in support of defendant's version of what transpired.

I

Defendant first contends that the evidence was insufficient to support his CSC III conviction because the serologist could not positively identify defendant as the perpetrator and because several defense witnesses testified in support of defendant's denial that complainant was ever invited to his home or was present on the night in question. We disagree.

We review a challenge to the sufficiency of the evidence in an appeal from a bench trial by viewing the evidence presented in a light most favorable to the prosecution and determining whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985). A trier of fact may make reasonable inferences from the facts of record, but may not indulge in inferences completely unsupported by any evidence, either direct or circumstantial. Id., at 275, 380 N.W.2d 11.

The essential elements of the offense of CSC III, as charged in the instant case, are: (1) sexual penetration of the complainant, (2) achieved by force or coercion. M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b); People v. Hurst, 132 Mich.App. 148, 151, 346 N.W.2d 601 (1984). Force or coercion is defined as:

(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the

present ability to execute these threats. [M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f).]

Complainant unequivocally testified that, against her will, defendant undressed her and inserted his penis into her vagina for about ten minutes. That the sexual entry was against complainant's will and that an assault occurred that night in defendant's home is corroborated by the testimony of the ten-year-old companion of complainant who testified that she awoke in defendant's house to hear complainant screaming and was told by "some guy" to "[s]hut up or go lay down." Defendant, however, denied the assault took place. Two or more defense witnesses supported his testimony in part. On this record, the question, then, is one of credibility. Credibility is a matter for the trier of fact to ascertain. We will not resolve it anew. People v. Jackson, 178 Mich.App. 62, 65, 443 N.W.2d 423 (1989).

Defendant also faults the trial court for finding sufficient evidence to convict defendant of CSC I. The trial court specifically found in part:

(1) That the unidentified man committed a sexual act by a penetration of the complainant's genital opening by his penis.

(2) That at the time of the sexual act this unidentifed [sic] man was aided or assisted by the defendant's action of holding the complainant's arms down.

(3) That the unidentified man and the defendant used force to commit the sexual act and overcame the complainant through the actual application of physical force.

The Court therefore concludes, based on these findings of fact, that under MCL 750.520b(1)(d)(ii) the unidentified man has committed the crime of criminal sexual conduct in the first degree, and that the defendant pursuant to the aiding abetting statute (MCL 1767.391) [sic] is therefore guilty of criminal sexual conduct in the first degree as charged in Count I Defendant argues that, unlike the usual case, no principal has been identified whom defendant can be said to have aided and abetted. Relying on established case law that stands for the proposition that, although it is unnecessary that the principal actually be convicted, it is still necessary to establish the guilt of the principal, see People v. Burgess, 67 Mich.App. 214, 240 N.W.2d 485 (1976), lv. den. 397 Mich. 830 (1976); People v. Williams No. 1, 45 Mich.App. 623, 207 N.W.2d 176 (1973); People v. Laine, 31 Mich.App. 271, 187 N.W.2d 505 (1971), lv. den. 385 Mich. 752 (1971), defendant argues that, in the instant case, the unknown principal's guilt cannot be established because plaintiff was unable to identify him. The question raised may be one of first impression.

Defendant is correct that a defendant may not be convicted as an accessory where the guilt of a principal has not been shown. People v. Brown, 120 Mich.App. 765, 771, 772, 328 N.W.2d 380 (1982). However, this rule "only applies to those cases in which legally insufficient evidence is adduced to permit the conclusion that there was a guilty principal." (Emphasis added.) Id., at 772, 328 N.W.2d 380. To place the issue of aiding and abetting before a trier of fact, the evidence need only tend to establish that more than one person committed the crime, and that the role of a defendant charged as an aider and abettor amounts to something less than the direct commission of the offense. Id., at 770, 328 N.W.2d 380. We can find no case law that requires that the evidence must establish that a particular, named individual was the principal. In fact, this Court's decision in Brown strongly suggests the opposite is true. In Brown, the named principal and the accessory were tried together. The jury acquitted the principal but convicted the accessory as an aider and abettor. This Court upheld the accessory's conviction because the evidence established that a third-party prosecution witness who had pled guilty of second-degree murder at an earlier date, was "a guilty principal." Id., at 772, 328 N.W.2d 380. Therefore, we conclude that the evidence need not show that a specifically named individual was the guilty principal, but only that some individual was a guilty principal.

In the instant case, the evidence was overwhelming that there was a guilty principal, albeit his name, rank, and social security number remains unknown. Complainant testified that a second man had intercourse...