Opinion
Docket No. 77-2964.
Decided August 6, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Kathaleen Rae Price, Assistant Prosecuting Attorney, for the people.
Reid Reid, P.C. (by Lawrence J. Emery), for defendant.
Before: V.J. BRENNAN, P.J., and BRONSON and CYNAR, JJ.
On June 9, 1977, defendant was found guilty of charges of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, and assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(1); MSA 28.788(7)(1). He was sentenced to concurrent terms of 5 to 15 years imprisonment on the breaking and entering count and 5 to 10 years imprisonment for the assault. Defendant now appeals as of right.
The complaining witness, Sheila Neff, testified that on the night of November 25, 1976, she had left the front door of her house unlocked so that her son could enter. She was awakened by the sound of footsteps and a door opening and closing. When there was no response to her calls, she became afraid and dialed the operator. Defendant entered her bedroom as she was explaining that an intruder was in her home. He attempted to knock the phone out of her hand and a struggle ensued. After being told the police were on the way, defendant began to leave, but instead changed his mind. He jumped on the complainant's bed, grabbed her wrists, and stated his intention to engage in sexual intercourse with her. After a further struggle he left the room.
At this point Mrs. Neff testified that she put on a bathrobe and walked into the hallway where she again encountered defendant. She pushed him away and ran out the front door. By this time, a police helicopter was overhead. A police officer appeared on the scene as she approached a neighbor's house.
Defendant was arrested while exiting from the complainant's house. A search of his person uncovered Mrs. Neff's wallet. The complainant also testified that a cassette recorder had been moved from a closet to a spot near the back door.
Defendant initially alleges that the trial court erred in permitting the prosecutor to use defendant's 1970 conviction of attempted breaking and entering for impeachment purposes.
As a general rule, the trial judge has discretion to admit or exclude evidence of defendant's past convictions when offered for impeachment purposes. People v Jackson, 391 Mich. 323, 336; 217 N.W.2d 22 (1974). When called upon to rule on the admissibility of prior convictions the trial judge must recognize his discretion on the record, People v Cherry, 393 Mich. 261; 224 N.W.2d 286 (1974), and should exercise his discretion with reference to three specific criteria: (1) the extent to which the offense bears on credibility; (2) the similarity of the prior offense to that charged; and (3) whether defendant's defense is severely impaired if the fear of impeachment leads him to choose not to testify. People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978). The Crawford criteria are guidelines for the trial judge to follow in exercising his discretion and affirmative misapplication of these factors has been held to require reversal. See for example People v Crawford, supra, and People v Baldwin, 405 Mich. 550; 275 N.W.2d 253 (1979). However, there is no requirement that the trial judge refer to these factors or make on-the-record findings regarding them. People v Roberson, 90 Mich. App. 196; 282 N.W.2d 280 (1979).
In the present case the trial judge ruled on defendant's motion to suppress the prior conviction as follows:
"THE COURT: Well, the Prosecutor can't use it for those purposes. He can merely bring it in for a view for the benefit of the jury for the purpose of attacking the credibility of the witness, his likelihood of telling the truth or not telling the truth under oath. The prior conviction does involve a crime of moral turpitude. I think it is fair for the jury to be informed of the entire past history of the Defendant in regard to their assessment of his likelihood of telling the truth under oath, the likelihood of his truth and veracity. The Defendant has his past life to live with, as all of us do. All of us have our past mistakes to explain. Mr. Love has the opportunity here to explain his past mistakes if he desires to, and the jury has the right to take this into account in determining credibility. I feel no useful purpose being served by Mr. Love taking the stand and appearing to the jury with a halo over his head and without giving the jury all the facts regarding his past life in so far as credibility is concerned."
We find no error in the trial judge's exercise of discretion. His ruling indicates that he was aware of his discretion and that he believed the prior offense was probative of defendant's lack of credibility. We will not presume from a silent record that the other considerations set forth in Crawford, supra, were ignored in the present case. In the absence of an affirmative misapplication of the Crawford criteria, we conclude that the evidence was properly admitted for impeachment purposes.
Defendant next raises several constitutional challenges to various parts of the criminal sexual conduct act. Prior to discussing these, it is necessary to outline the pretrial motion giving rise to these challenges.
Prior to trial defense counsel moved for a bill of particulars on the assault count. He contended that under the criminal sexual conduct act the offense of assault with intent to commit criminal sexual conduct involving penetration could be committed in so many different ways that he was unable to defend against the charge. Specifically, he requested the prosecutor to designate which kind of first-degree criminal sexual conduct the defendant was alleged to have committed.
The trial judge granted defendant's motion, stating that the language of the assault count was too broad. The trial judge then read through each of the means of committing first-degree criminal sexual conduct listed in MCL 750.520b; MSA 28.788(2) and asked the prosecutor which of these theories he was relying upon. The prosecutor responded that he was relying upon subsection (1)(c), sexual penetration under circumstances involving the commission of another felony. Alternatively he declared that he was relying upon subsection (1)(f)(i), using physical force to commit the penetration and causing personal injury.
Specifically, Count II charged defendant with "assault with intent to commit criminal sexual conduct involving penetration; to-wit; sexual intercourse.
Subsequently, defense counsel unsuccessfully moved to dismiss the charge based upon subsection (1)(c) of MCL 750.520b; MSA 28.788(2) on the ground that it was overbroad. On appeal, he raises this argument once more contending that many sexual penetrations committed in the course of a felony are consensual and therefore noncriminal. He also contends that both an assault conviction based upon subsection (1)(c) and a conviction for the underlying offense of breaking and entering with intent to commit larceny would constitute multiple punishment for the same offense. Defendant further alleges that the element of "personal injury" required under subsection (1)(f)(i) is unconstitutionally vague.
We need not address these difficult constitutional problems in the context of the present case. This is because the trial judge erred in requiring the prosecutor to specify the theories of first-degree criminal sexual conduct under which he was proceeding. The statute under which defendant was charged. MCL 750.520g; MSA 28.788(7), reads as follows:
"(1) Assault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years.
"(2) Assault with intent to commit criminal sexual conduct in the second degree is a felony punishable by imprisonment for not more than 5 years."
Subsection (2) of this statute requires an "intent to commit criminal sexual conduct in the second degree". In requiring the prosecutor to designate a theory of first-degree criminal sexual conduct, the trial judge must have read subsection (1) as requiring an intent to commit criminal sexual conduct in the first degree.
However, such a requirement is at odds with the plain language of the statute. All that is required under subsection (1) is an "intent to commit criminal sexual conduct involving sexual penetration". Such an intent is satisfied by a showing that defendant intended to commit third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), which also involves sexual penetration.
More specifically all that is really required for a conviction under subsection (1) of MCL 750.520g; MSA 28.788(7) is proof that (1) defendant committed an assault (2) with the intent to commit sexual penetration. There is no requirement that one prove an intent to commit criminal sexual conduct, as that is necessarily established by proof of the other elements.
This conclusion is implicitly supported by CJI 20:6:01 which requires only proof of the assault, proof of a sexual purpose, and proof of the intent to sexually penetrate.
The above conclusion is borne out by an examination of the proof required to establish third-degree criminal sexual conduct. One type of third-degree criminal sexual conduct occurs when one engages in sexual penetration with another and "force or coercion is used to accomplish the sexual penetration", MCL 750.520d; MSA 28.788(4). Thus, proof of the intent to commit this type of criminal sexual conduct is established by proof of the intention to commit a forcible sexual penetration. This intention will necessarily be established by proof of assault plus proof of the intent to sexually penetrate. The intention to use force in effectuating the sexual penetration is established by the assault itself, as one definition of a criminal assault is an:
"attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect." People v Sanford, 402 Mich. 460, 477; 265 N.W.2d 1 (1978).
Thus when coupled with the intent to commit sexual penetration, proof of the assault necessarily establishes the intent to commit the kind of criminal sexual conduct prohibited by MCL 750.520d; MSA 28.788(4).
As the above analysis illustrates, the questions of whether personal injury occurred and whether the assault was perpetrated in the course of another felony were erroneously injected into the case by the trial judge's ruling on defendant's motion. Despite this added burden being placed on the prosecutor, the jury found defendant guilty of the assault charge. Under either of the theories upon which the prosecutor was forced to rely, the jury would have had to have concluded that defendant committed an assault with the intent to sexually penetrate. As that alone is sufficient to establish the elements of the assault charge, defendant was not injured as a result of the operation of those provisions relating to personal injury or the commission of the assault in the course of another felony. In the absence of any injury to defendant as a result of the operation of these statutes defendant lacks standing to raise the constitutional challenges argued on appeal. State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich. App. 204, 207; 226 N.W.2d 56 (1974).
Defendant raises several other issues on appeal. We find these to be without merit. The instructions to the jury on the assault count, although inaccurate to the extent noted above, did not act to prejudice defendant. In all other respects the instructions, when viewed in their entirety, People v Roberson, 44 Mich. App. 105, 108; 205 N.W.2d 50 (1972), were not erroneous.
The prosecutor's closing argument alluding to the need to stop "fear", although bordering on the improper, was not objected to. Since any resulting prejudice could have been rectified by a curative instruction, this issue does not require reversal. People v Smith, 73 Mich. App. 463, 470; 252 N.W.2d 488 (1977). No error occurred as a result of his referring to the evidence as "uncontroverted". People v Franklin, 70 Mich. App. 343, 347; 245 N.W.2d 746 (1976).
In the absence of a hearing regarding prejudice, defendant's issue regarding the nonproduction of two res gestae witnesses is not properly before us. People v Willie Pearson, 404 Mich. 698, 714; 273 N.W.2d 856 (1979).
Finally, we conclude that under the circumstances of the case, the trial judge properly denied defendant's motion for a continuance to obtain a new attorney. People v Charles O Williams, 386 Mich. 565; 194 N.W.2d 337 (1972).
The motion, which was made after the jury was selected, merely claimed general dissatisfaction with defendant's appointed attorney, rather than any specific problem. There was no showing of a breakdown in communication between the defendant and counsel or that counsel had been appointed at too late a date to prepare for trial. Furthermore, the attorney in question was defendant's second appointed attorney.
Affirmed.