Summary
holding that an initial physical assault before two separate acts of penetration may satisfy the personal injury element of both penetrations
Summary of this case from People v. CroskeyOpinion
Docket No. 119165.
Decided July 23, 1991, at 9:15 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert John Berlin, Chief Appellate Lawyer, and Laura Z. Dyze, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Fred E. Bell), for the defendant on appeal.
Before: GILLIS, P.J., and SAWYER and REILLY, JJ.
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2) (1)(f), and one count of breaking and entering an occupied dwelling with the intent to commit a felony therein, MCL 750.110; MSA 28.305. Defendant was sentenced to concurrent terms of thirty to fifty years' imprisonment for the convictions of first-degree criminal sexual conduct and to ten to fifteen years' imprisonment for the conviction of breaking and entering. Defendant appeals as of right. We affirm.
Defendant first claims that there was insufficient evidence to support his conviction of the second count of first-degree criminal sexual conduct. The victim testified that defendant beat her for twenty minutes, striking her forty to sixty times and inflicting numerous injuries. After the victim stopped screaming, defendant grabbed her by the hair and removed his clothes. Defendant ripped the victim's dress. Defendant then pulled the victim's hair and made her move to a position where she could perform fellatio on him. Defendant then attempted to force the victim into the bedroom. The victim was struggling because she did not want to go into the bedroom, where her toddler was sleeping. Defendant complied with the victim's pleas not to go into the bedroom. Defendant brought the victim back into the living room and pushed her onto the floor. Defendant, who was on top of the victim, demanded that she perform fellatio on him, which she did. Defendant then performed cunnilingus on the victim. The victim observed her child watching and crying. Defendant told the victim to perform fellatio on him again. The victim begged defendant to let her go to her child. Defendant gathered some of his belongings and left. Clumps of the victim's hair were on the floor. The victim testified that defendant was in her apartment for less than thirty minutes.
Defendant was charged with two counts of first-degree criminal sexual conduct. The first count involved fellatio; the second, cunnilingus. Defendant claims that the initial beating, while sufficient to supply the personal injury element for the count involving fellatio, was insufficient to supply the personal injury element for the count involving cunnilingus. Defendant relies on People v Payne, 90 Mich. App. 713, 717-719; 282 N.W.2d 456 (1979), where this Court held that an initial beating could not support the personal injury element for penetrations that occurred after the first one.
Another panel of this Court rejected Payne in People v Hunt, 170 Mich. App. 1, 8; 427 N.W.2d 907 (1988), holding:
The beating visited upon the complainant immediately prior to the series of sexual penetrations is sufficient to supply the element of personal injury with respect to each of the subsequent penetrations so as to support multiple convictions under MCL 750.520b(1)(f); MSA 28.788(2)(1)(f).
In doing so, this Court noted that the defendant never indicated his intention to discontinue the attack during the entire episode. Id. at 9. We agree with Hunt.
Defendant also claims that Hunt is distinguishable because of the immediacy of the penetrations following the assault. We hold that the penetrations in this case occurred within ten minutes of the assault and there was no indication of the defendant's intention to discontinue the attack during the entire episode. Hence, there was sufficient evidence to support the personal injury element with respect to the count involving cunnilingus. Id.
Defendant also claims that the prosecutor improperly questioned his alibi witness' failure to contact the police before trial. Defendant further claims that the prosecutor's remarks during closing argument concerning the alibi witness' failure to come forward were also improper. We note that defendant failed to object below and, therefore, the issue is not preserved absent manifest injustice.
The alibi witness testified that she had known defendant for twenty-five or thirty years. The witness and the defendant dated on and off throughout the years, but dated exclusively during the summer of the assault. The witness and defendant were involved in a sexual relationship. The witness learned of defendant's arrest on the sex charge on the Sunday after he was arrested. The witness denied learning the date of the alleged crime; however, she later testified that, at one point, she was with defendant every night until one or two in the morning, when she left to go home. When asked why she did not go to the police, the witness responded that she was unaware of the proceedings beyond defendant's arrest and that she assumed that defendant was innocent.
Defendant relies on People v Kraai, 92 Mich. App. 398, 410-411; 285 N.W.2d 309 (1979), for the proposition that an alibi witness has no legal duty to report her knowledge. We note that Kraai dealt with an alibi witness' failure to report her knowledge concerning the defendant's escape. This Court held that it was impermissible for the prosecutor to discredit the witness by insinuating that she failed to act as a good citizen. Id.
On numerous occasions, this Court has held that the credibility of a witness may be attacked by showing that he failed to speak or act when it would have been natural to do so if the facts were in accordance with his testimony. People v Clifton Fuqua, 146 Mich. App. 250, 254-256; 379 N.W.2d 442 (1985); People v Lafayette, 138 Mich. App. 380, 388-389; 360 N.W.2d 891 (1984); People v McClow, 40 Mich. App. 185, 192-193; 198 N.W.2d 707 (1972). Therefore, a prosecutor may question an alibi witness regarding why he did not come forward with his story before trial after the prosecutor has shown that it would have been natural for the witness to come forward. Id.
Defendant claims that it would be unnatural for an alibi witness to disclose information to the police. Instead, he argues that the witness would disclose the information to defense counsel. There is no indication that the witness in this case disclosed the information to anyone until contacted by defense counsel the Friday before trial. As noted above, the witness had an intimate and long-term relationship with defendant. She knew why the police had custody of defendant and she also believed that defendant could not have committed the crime because he was with her. Under these circumstances, we believe that it would have been natural for her to disclose the information to the police. Fuqua, supra at 255-256. Hence, no manifest injustice resulted.
Affirmed.