People v. Wesley, Docket No. 79299

• Decision Date: 22 April 1986
• Docket Number: Docket No. 79299
• Citation: 148 Mich.App. 758,384 N.W.2d 783
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Harris WESLEY, Defendant-Appellant. 148 Mich.App. 758, 384 N.W.2d 783
• Court: Court of Appeal of Michigan — District of US

Page 783

384 N.W.2d 783

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Harris WESLEY, Defendant-Appellant.

Docket No. 79299.

148 Mich.App. 758, 384 N.W.2d 783

Court of Appeals of Michigan.

Submitted Oct. 10, 1985.

Decided Nov. 22, 1985.

Released for Publication April 22, 1986.

[148 MICHAPP 759] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

[148 MICHAPP 760] State Appellate Defender by James Krogsrud, for defendant-appellant on appeal.

Before J.H. GILLIS, P.J., and CYNAR and EVANS, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his March 21, 1984, jury conviction for criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a). Defendant was sentenced to a prison term of from 40 to 60 years.

This case involves an incident which occurred at defendant's apartment located on Van Buren in Bay City on August 13, 1983. The complainant, Melissa Wright, testified that she was seven years old and was playing in the park near defendant's apartment when she decided to go to defendant's apartment for some popcorn. When defendant answered the door, she in fact asked him for some popcorn. However, at some point that afternoon, defendant took his penis out of his pants and placed it in Melissa's mouth. According to Melissa, defendant also touched her in the vaginal area. Two other witnesses, both age seven, testified that they witnessed the offense in question.

Defendant, age 57, testified that Melissa did come to his house on the day in question and asked for some popcorn. Defendant, however, denied any sexual contact with Melissa.

Defendant raises six issues on appeal, none of which require reversal.

Defendant first argues that the trial court erred in ruling that jurors could not ask questions during the presentation of evidence.

Defendant's failure to object to the trial court's refusal to allow the jurors to ask questions of the [148 MICHAPP 761] witness precludes appellate review, unless a miscarriage of justice would otherwise result. People v. Charles, 58 Mich.App. 371, 378-379, 227 N.W.2d 348 (1975) lv den. 397 Mich. 815 (1976).

The practice of permitting questions to witnesses propounded by jurors is within the sound discretion of the trial court. People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972). In this case, at the time the jury asked permission to ask the seven-year-old witness, Sampson, a question, the witness had just been sworn in. The trial judge ruled that "at least for the time being" he was not going to entertain questions from the jury. The trial court's ruling did not preclude the jury from asking witnesses questions at a later time during the trial. While it would have been a better practice to establish on the record the content of the jury's question of the witness, we conclude that no miscarriage of justice resulted from the trial court's ruling.

Defendant also argues that the trial court committed an error requiring reversal by refusing to give CJI 3:1:12 (Witnesses--Conflicting Testimony) in its entirety. The court deleted subparagraph (3) from its instruction.

CJI 3:1:12(3), as it existed at the time of the trial in this case, read as follows:

"(3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant."

Jury instructions must be read as a whole, People v. Johnson, 93 Mich.App. 667, 670, 287 N.W.2d 311 (1979), and not extracted piecemeal in an effort to establish error requiring reversal. People v. Choate, 88 Mich.App. 40, 45, 276 N.W.2d 862 (1979), lv den. 406 Mich. 940 (1979).

[148 MICHAPP 762] The omission of subparagraph (3) did not remove an issue from the jury's consideration. The trial court instructed the jury on its role in evaluating the testimony for weight, believability and credibility. Our review of the record indicates that the jury was given the greater portion of the requested instruction and that the trial court fully instructed the jury on the burden of proof beyond a reasonable doubt. We therefore conclude that the instructions, taken as a whole, adequately informed the jury of the applicable law. People v. Stewart, 126 Mich.App. 374, 337 N.W.2d 68 (1983).

Defendant next argues that the trial court impermissibly considered his denial of guilt in imposing sentence.

Our review of the record indicates that the trial court's consideration was not contrary to People v. Yennior, 399 Mich. 892, 282 N.W.2d 920 (1977). The trial court merely stated that defendant's failure to accept the fact that he has a problem suggested that rehabilitation would not be forthcoming and that, therefore, the sentence should not be reduced.

The next issue raised by defendant involves the trial court's consideration of uncharged crimes in determining defendant's sentence.

"A trial judge has wide discretion in imposing a sentence, and may consider other criminal activity for which no conviction resulted, provided the defendant is given an opportunity for refutation"; however, the trial judge may not make an independent finding of a defendant's guilt on another charge....