People v. Wilson
| Decision Date | 02 November 1992 |
| Docket Number | Docket Nos. 127686,127688 and 128325,127687 |
| Citation | 493 N.W.2d 471,196 Mich.App. 604 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carolyn WILSON, Defendant-Appellant. (Two Cases) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Annette SANFORD, Defendant-Appellant. (Two Cases) |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Andrew J. Marks, Pros. Atty., and Margaret Zuzich Bakker, Asst. Pros. Atty., and Kathryn M. Neville, Appellate Counsel, for the people.
Milton J. Marovich, P.C. by Milton J. Marovich, Kalamazoo, for Carolyn Wilson.
Patricia S. Slomski, Detroit, for Annette Sanford.
Before MURPHY, P.J., and GRIBBS and FITZGERALD, JJ.
These consolidated appeals as of right arise from convictions in two separate joint jury trials. Defendants Carolyn Wilson and Annette Sanford were each found guilty of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), for forcing Wilson's minor son to engage in sexual intercourse with Sanford's minor daughter. 1 Wilson was sentenced to concurrent prison terms of ten to forty years and twenty to forty years. Sanford was sentenced to concurrent prison terms of ten to forty years and eighteen to forty years. Wilson appealed, Docket No. 127686, and Sanford appealed, Docket No. 127688.
Defendants were also each found guilty of one count of aiding and abetting first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), and one count of aiding and abetting third degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a), for allowing various men to engage in sexual penetration of Wilson's minor son and Sanford's minor daughter. Wilson was sentenced to concurrent prison terms of twenty to forty years and five to fifteen years, and Sanford was sentenced to concurrent prison terms of ten to forty years and five to fifteen years. Sanford appealed, Docket No. 127687, and Wilson appealed, Docket No. 128325.
Wilson first argues that her conviction of two counts of first-degree criminal sexual conduct arising from a single act of sexual penetration involving two victims resulted in multiple punishments for a single offense, contrary to the Double Jeopardy Clauses of the Michigan Constitution, Const. 1963, art. 1 Sec. 15, and the United States Constitution, U.S. Const., Am.V. Specifically, she contends that, under the criminal sexual conduct statute, the appropriate "unit of prosecution" is the act rather than the victim. The prosecution argues that each victim was individually penetrated and therefore each victim was separately subjected to criminal sexual conduct.
In interpreting the first-degree criminal sexual conduct statute, Michigan courts have consistently held that the Legislature intended to punish separately each criminal sexual penetration. People v. Johnson, 406 Mich. 320, 330, 279 N.W.2d 534 (1979); People v. Dowdy, 148 Mich.App. 517, 521, 384 N.W.2d 820 (1986); People v. Nelson, 79 Mich.App. 303, 261 N.W.2d 299 (1977), vacated in part 406 Mich. 1020, 281 N.W.2d 134 (1979). In this case, each victim was indisputably penetrated. We conclude that Wilson's convictions for two acts of penetration that occurred at the same time are not for the "same offense" and therefore no double jeopardy violation is shown. 2
Wilson next argues that the trial court erred in denying her motion for a directed verdict because the prosecutor failed to establish that the act between the two minor children constituted a crime. Specifically, Wilson contends that, because the children were the "principals" against each other and could not have been convicted of a felony because of their ages, she could not have aided and abetted a crime. We disagree.
A conviction of aiding and abetting requires proof of the following elements:
(1) the underlying crime was committed by either the defendant or some other person, (2) the defendant performed acts or gave encouragement which aided and assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time of giving aid or encouragement. [People v. Genoa, 188 Mich.App. 461, 463, 470 N.W.2d 447 (1991).]
The underlying crime in this case requires the prosecution to prove that sexual penetration of a child under the age of thirteen occurred. The statute specifies no age of culpability, and, indeed, the minors could have been criminally charged in juvenile court.
The children were not charged with any offenses. However, the conviction of a principal is not necessary for the conviction of a party aiding and abetting. Genoa, supra at 463-464, 470 N.W.2d 447. The prosecution need prove only that the principal committed the crime. The evidence was sufficient to show that each child committed first-degree criminal sexual conduct against the other and that Wilson forced the children to engage in the crime.
Next, Wilson asserts that the prosecutor posed improper questions regarding the relationship between her and Sanford. Wilson failed to object to the prosecutor's questions, thereby precluding appellate review in the absence of manifest injustice. People v. Potra, 191 Mich.App. 503, 512, 479 N.W.2d 707 (1991). We have reviewed the alleged improper questions in the context in which they were made and conclude that Wilson was not denied a fair and impartial trial by the questions. People v. Foster, 175 Mich.App. 311, 317, 437 N.W.2d 395 (1989). 3
Because we have concluded that no errors occurred, we reject Wilson's argument that the cumulative effect of the errors requires reversal.
Next, Wilson maintains that her sentences violate the principle of proportionality announced in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). Defendant's ten-to forty-year sentence is within the minimum recommended guidelines range 4 and is therefore presumptively proportionate. People v. Dukes, 189 Mich.App. 262, 266, 471 N.W.2d 651 (1991). Defendant's twenty-to forty-year sentence is also within the minimum recommended guidelines range. 5 Given the circumstances of the offenses and the offender, we conclude that the sentences are neither excessively severe nor unfairly disparate. People v. Tyler, 188 Mich.App. 83, 88, 468 N.W.2d 537 (1991).
Wilson claims that the evidence presented at trial was insufficient to support a conviction of aiding and abetting the commission of first-and third-degree criminal sexual conduct for allowing unknown men to commit sexual acts with the children. Wilson concedes that medical evidence was presented that tends to prove that sexual abuse occurred, but claims that the evidence was insufficient because neither child could identify the men involved. 6 We disagree.
Although a defendant may not be convicted of aiding and abetting if the guilt of the principal has not been shown, People v. Vaughn, 186 Mich.App. 376, 382, 465 N.W.2d 365 (1990), the identity of the principal is not necessary if the existence of a guilty principal is proven:
To place the issue of aiding and abetting before the 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. ]
The evidence presented at trial reveals that the two children were penetrated on several different occasions by a series of different men ranging in number from four or five to ten or twelve. The medical evidence revealed that the male victim had been systematically anally penetrated, and that the female indicated signs of vaginal penetration. Both children testified that both defendant Wilson and defendant Sanford would meet in the bedroom with whatever man was visiting at the time. Each child described the sexual acts committed on them in defendants' presence. The evidence was clearly sufficient to support Wilson's conviction of aiding and abetting the sexual acts.
Wilson again raises the issue of improper prosecutorial questions relating to her relationship with Sanford, and again there was no objection to the prosecutor's questions. Nonetheless, we conclude that she was not denied a fair and impartial trial by the prosecutor's questions.
Lastly, Wilson maintains that the trial court improperly scored offense variable 9 because she was not a "leader" in the commission of first-degree criminal sexual conduct upon her son.
Review of sentencing guideline calculations by this Court is limited. People v. Harris, 190 Mich.App. 652, 663, 476 N.W.2d 767 (1991). A sentencing court has discretion to determine the appropriate scores on a sentencing information report, provided evidence exists to support the scores. People v. Warner, 190 Mich.App. 26, 27, 475 N.W.2d 397 (1991). The Sentence Review Committee strongly recommends that scoring decisions for which any support exists be upheld by this Court. Id.
Wilson received ten points for OV 9 for being a "leader in a multiple offender situation." In objecting to the score, Wilson merely denied that she was the leader. We agree with the trial court that the evidence produced at trial supports the conclusion that Wilson was the leader of the criminal activity.
Defendant Sanford first claims that she was denied the effective assistance of counsel because defense counsel failed to move for a change of venue on the basis of pretrial publicity. Sanford's failure to request an evidentiary hearing on her claim of ineffective assistance of counsel limits our review to errors apparent on the record. People v. Armendarez, 188 Mich.App. 61, 74, 468 N.W.2d 893 (1991). Her claim that the jurors...
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