People v. Wilhelm
Decision Date | 06 August 1991 |
Docket Number | Docket No. 115560 |
Citation | 476 N.W.2d 753,190 Mich.App. 574 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald WILHELM, Defendant-Appellant. (On Rehearing) |
Court | Court of Appeal of Michigan — District of US |
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.
Joseph J. Farah, Flint, for defendant-appellant.
Before SHEPHERD, P.J., and J.H. GILLIS and CAVANAGH, JJ.
Defendant was charged with first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2)(1)(f), and kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. Following a jury trial, defendant was convicted of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b). Defendant was sentenced to from three years and nine months to ten years' imprisonment. Defendant appealed as of right. While this Court originally reversed defendant's conviction, we granted rehearing on our own motion and now affirm.
Defendant first claims that the trial court erred when it denied his request to instruct the jury concerning second-degree criminal sexual conduct. The trial court denied the instruction, ruling that defendant did not dispute penetration and, therefore, there was no evidence to support the instruction. There is a split on this Court concerning whether second-degree criminal sexual conduct is a necessarily included lesser offense of first-degree criminal sexual conduct. Compare People v. Norman, 184 Mich.App. 255, 259-260, 457 N.W.2d 136 (1990), and People v. Garrow, 99 Mich.App. 834, 298 N.W.2d 627 (1980), with People v. Green, 86 Mich.App. 142, 150-152, 272 N.W.2d 216 (1978), People v. Secreto, 81 Mich.App. 1, 264 N.W.2d 99 (1978), and People v. Thompson, 76 Mich.App. 705, 707-708, 257 N.W.2d 268 (1977). We agree with Norman and Garrow, which hold that second-degree criminal sexual conduct is not a necessarily included lesser offense of first-degree criminal sexual conduct, but is instead a cognate lesser included offense. Because second-degree criminal sexual conduct is a cognate offense of first-degree criminal sexual conduct, defendant cannot seek reversal on the basis of the trial court's refusal to instruct the jury on an offense inconsistent with the evidence and his theory of the case. People v. Heflin, 434 Mich. 482, 499, 456 N.W.2d 10 (1990). Here, the victim testified that penetration, as opposed to sexual contact, occurred; defendant testified that consensual sexual contact and penetration occurred. Under these circumstances, the trial court properly declined defendant's request to instruct the jury with regard to second-degree criminal sexual conduct. Id. But see and compare People v. Triplett, 163 Mich.App. 339, 344-346, 413 N.W.2d 791 (1987), remanded on other grounds 432 Mich. 568, 442 N.W.2d 622 (1989).
Defendant next claims that the trial court abused its discretion when it prohibited him from introducing certain testimony concerning alleged prior acts of the victim. Both the victim and defendant were in a bar. They were not together. Defendant claimed that he observed the victim lift her shirt and expose her breasts to two men who were sitting at her table. The victim also allegedly allowed one of the two men to "fondle" her breasts. Defendant claimed that another witness had also seen this activity.
During trial, the prosecutor learned that defendant intended to introduce this evidence. The prosecutor argued that the rape-shield statute, M.C.L. Sec. 750.520j; M.S.A. Sec. 28.788(10), 1 prohibited evidence of the victim's sexual conduct with another. Defendant moved to have this evidence admitted as relevant to the issue whether the victim had consented to intercourse with him later that same evening in his boat that was parked in his parents' driveway. The prosecutor noted that defendant had failed to comply with the statute's notice requirement. M.C.L. Sec. 750.520j(2); M.S.A. Sec. 28.788(10)(2).
Defendant argued that the lifting of the shirt was not sexual conduct. Defendant also argued that another state's similar rape-shield statute had been held not to prohibit such evidence, citing State v. Colbath, 130 N.H. 316, 540 A.2d 1212 (1988). Defendant claimed that such evidence was relevant to the issue of consent.
The court noted that the statute's motion requirement had not been complied with and, therefore, the prosecutor's ability to procure witnesses to rebut the existence of the victim's alleged acts had been impaired. Defendant claimed that the prosecutor still had the victim available to deny the accusations and cited People v. Lucas, 160 Mich.App. 692, 408 N.W.2d 431 (1987). In Lucas, this Court held that the notice requirement was unconstitutional when applied to preclude evidence of specific instances of sexual conduct between the victim and the defendant. In essence, this Court believed that the purpose of the notice requirement was not served in such cases, because the victim and the defendant were likely the only witnesses to the prior conduct. We note that after the instant trial, our Supreme Court, in lieu of granting leave to appeal, remanded Lucas to our Court for a determination of whether exclusion of the proposed evidence was harmless error. People v. Lucas, 433 Mich. 878, 446 N.W.2d 291 (1989). Subsequently, this Court held that the error was not harmless, and our Supreme Court denied leave. People v. Lucas (On Remand), 469 N.W.2d 435 lv. den. 434 Mich. 925 (1990). The prosecutor in Lucas appealed, and the United States Supreme Court reversed, holding that a determination of whether the notice requirement violated a defendant's right of confrontation must be made case by case. Michigan v. Lucas, 500 U.S. ----, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). In doing so, the Supreme Court noted that the statute protected the prosecution from surprise and allowed it to interview persons who knew the parties and to investigate otherwise whether such a prior relationship actually existed. Id.
The prosecutor in the instant case indicated that this Court's original decision in Lucas was distinguishable because it involved a relationship between the victim and the defendant and, therefore, investigation of other witnesses would be of little benefit. The prosecutor argued that the instant allegations required investigation beyond the questioning of the victim.
Defendant claimed that the victim could deny the accusation. Defendant again argued that the lifting of the shirt was not sexual conduct.
The court stated that the lifting of the shirt was indecent exposure and conduct covered by the statute. The court ruled that the original Lucas case was distinguishable and that, in the instant case, the prosecutor would be prejudiced by waiver of the notice requirement of the statute because he could not investigate other witnesses to the alleged incidents.
By enacting the rape-shield law, the Legislature recognized that in the vast majority of cases, evidence of a rape victim's prior sexual conduct with others and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment, is irrelevant and, therefore, inadmissible. People v. Hackett, 421 Mich. 338, 347-348, 365 N.W.2d 120 (1984). The allowance of such evidence in the past caused victims to refuse to report the crime or to testify for fear that the proceedings would veer from an impartial examination of the accused's conduct on the date in question and instead take on aspects of an inquisition during which the victim would be required to acknowledge and justify her past. People v. Arenda, 416 Mich. 1, 330 N.W.2d 814 (1982). Hence, the law encourages a victim to report the assault by protecting the victim's sexual privacy. Id. Moreover, the law bars evidence that may prejudice and mislead the jury and is only of arguable probative worth. Id. There are certain limited situations in which such evidence may be relevant and its admission may be required to preserve a defendant's constitutional right of confrontation. Hackett, supra 421 Mich. at 348, 365 N.W.2d 120.
While the rape-shield statute discusses the requirements to be followed where the proffered evidence falls within M.C.L. Sec. 750.520j(1)(a) and (b); M.S.A. Sec. 28.788(10)(1)(a) and (b), our Supreme Court has held that such a hearing procedure applies where the defendant claims that he would be denied his right of confrontation by the exclusion of the victim's prior sexual conduct with third persons. Hackett, supra at 350, 365 N.W.2d 120. Moreover, our Supreme Court held that the trial court retains the discretion to exclude relevant evidence where its probative value is substantially outweighed by the risks of unfair prejudice or where it would lead to confusion of the issues or misleading the jury. Id. at 351, 365 N.W.2d 120.
On appeal, defendant argues that the public nature of the victim's acts removes them from the scope of the rape-shield statute because the underlying policy of protecting the victim from unwarranted invasions of her privacy is inapplicable. Defendant relies on Colbath, supra.
In Colbath, the defendant and the victim were in a tavern. The victim directed unspecified "sexually provocative attention" toward several men in the tavern, including the defendant. The defendant testified that he had felt the victim's breasts and bottom and that she had rubbed his crotch before they left the tavern and went to the defendant's trailer. There they had intercourse, which the defendant claimed was consensual and the victim claimed was not. While in the trailer, the defendant's live-in female companion came home, suspecting the defendant's infidelity. Upon discovering the pair, she violently assaulted the victim and dragged her outside by the...
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