People v. Watts
| Decision Date | 26 December 1985 |
| Docket Number | Docket No. 76918 |
| Citation | 378 N.W.2d 787,145 Mich.App. 760 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Royal D. WATTS, Defendant-Appellant. 145 Mich.App. 760, 378 N.W.2d 787 |
| Court | Court of Appeal of Michigan — District of US |
[145 MICHAPP 761] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for People.
James R. Neuhard, State Appellate Defender by Derrick A. Carter, Detroit, for defendant on appeal.
Before DANHOF, C.J., and V.J. BRENNAN and J.H. GILLIS, Jr., JJ.
Defendant appeals as of right from his jury convictions for first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), and second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a). He was sentenced to prison for from 12 1/2 to 25 years for first-degree criminal sexual conduct and from 7 1/2 to 15 years for second-degree criminal sexual conduct.
Defendant's convictions stem from two incidents with his 8-year-old step-granddaughter in December, 1982. Approximately three months later, after watching a television program in which a sexual assault was made upon one of the characters, the victim informed her mother of these events. Approximately one week later, the victim's parents notified the police.
On appeal defendant claims evidentiary error in six instances. In five instances, defendant did not object below. Failure to object precludes appellate review absent manifest injustice. MRE 103(a)(1); People v. Owens, 108 Mich.App. 600, 604, 310 [145 MICHAPP 762] N.W.2d 819 (1981). Although no manifest injustice is presented, a substantive review of each of the claims indicates that they are without merit.
The first claim of error concerns the testimony of the victim's mother that she took the victim to a psychologist. Defendant contends that this evidence is hearsay because it constitutes non-verbal conduct which the mother intended as an assertion that she acted with a belief in the existence of the alleged crimes. The prosecution counters that the evidence is not a statement offered to prove the mother's belief, but that it is offered merely to explain the delay of one week between the time that the victim revealed these events and the time that police were notified. MRE 801(a) defines a statement for hearsay purposes as: (1) an oral or written assertion; or (2) nonverbal conduct of a person, if it is intended by him as an assertion. The Note to MRE 801(a) states that the rule is identical to FRE 801(a). The Advisory Committee's Note to FRE 801(a) provides that a preliminary determination is required to determine whether an assertion is intended when evidence of conduct is offered on a theory that it is not a statement and thus not hearsay. It further provides that the burden of showing that an intention existed is upon the proponent or party claiming the existence of an intention. Ambiguous cases will be resolved in favor of admissibility. We observe that no preliminary determination was made below, and the record contains no evidence that the victim's mother intended to make an assertion by her conduct. We conclude that the evidence is not hearsay, and was admissible. Compare, People v. Davis, 139 Mich.App. 811, 813, 363 N.W.2d 35 (1984).
The second claim of error concerns the testimony of Officer Klann that the victim's family was [145 MICHAPP 763] very emotional when they reported the incidents to him. Defendant contends that this testimony constitutes hearsay and evidence of prior consistent statements. We disagree. The officer's testimony merely establishes the fact of the family's report and his perception of them. This evidence in no way repeats the substance of the report given by the victim's family.
The third claim of error concerns the...
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...139 Mich.App. 811, 363 N.W.2d 35 (1984) (child victim bursting into tears when interrogated about the defendant); People v. Watts, 145 Mich.App. 760, 378 N.W.2d 787 (1985) (mother's act of taking child to a psychologist not intended as an assertion that crimes were committed). While the cit......
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