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In Thangavelu, however, the Michigan Court of Appeals clearly stated that it would have agreed with the prosecutor's position that the act of cunnilingus was so obviously unethical and unacceptable that no medical testimony was necessary to so inform the jury, if the trial had been limited to the act of cunnilingus.
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Docket No. 78-2309.
Decided April 1, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: T.M. BURNS, P.J., and M.F. CAVANAGH and MacKENZIE, JJ.
Defendant was convicted by a Wayne County Circuit Court jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), on October 24, 1977, and was sentenced to a term of three to ten years. His motion for a new trial was denied, and he appeals as of right.
The complainant alleged that defendant physician conducted a pelvic examination in the course of which he performed cunnilingus on her while she was being examined by him for lice.
At trial, defendant admitted examining the complainant's pubic area for lice after an examination of complainant's two children revealed that they were infested with lice. The examination was performed, according to defendant, because the complainant complained of itchiness. However, he denied that he performed oral sex upon her and contended that the charges were brought as part of an attempt by the complainant to extort money from him. According to his testimony, the night of the alleged offense he received a threatening telephone call from the complainant's husband. Later that evening, the complainant's husband called defendant at his home and offered to drop the whole thing if defendant would pay $5,000 in cash by the next morning. Defendant said he would consult his attorney and hung up the telephone. Complainant admitted on cross-examination that at one time she would have dropped the charges for $10,000.
At the time the act allegedly took place, complainant's father was in the defendant physician's waiting room, and complainant's mother was in another examining room; in addition, the complainant's children, defendant's brother-in-law, and defendant's physician-wife were also on the premises in other areas of the defendant's office suite.
Defendant contends that the trial judge erred in the giving of the instructions on the elements of first-degree criminal sexual conduct and its lesser included offenses. First-degree criminal sexual conduct is defined in MCL 750.520b; MSA 28.788(2) as follows:
"Sec. 520b.(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exist:
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(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
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(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable."
To find criminal sexual conduct in the first degree here, the necessary element of force or coercion had to be established by proof that the medical treatment or examination was conducted in a manner or for purposes medically recognized as unethical or unacceptable.
Defendant asserts that there was no expert evidence explaining the type of conduct that is medically unethical or unacceptable and that the trial court's instructions did not provide the jury with any guidance or standard in order to determine whether the defendant's conduct was proscribed.
Despite the requirement that the treatment or examination be medically recognized as unethical or unacceptable, the prosecution produced no medical testimony. It was argued by the prosecutor that the act of cunnilingus is so obviously unethical and unacceptable that no medical testimony need be presented to so inform the jury. While this approach disregards a strict reading of the statutory language, we could subscribe to it if the trial of this case had been limited to the act of cunnilingus. We find, however, that this defendant was deprived of a fair trial because the jury was not limited to consideration of the specific act of cunnilingus charged; rather, the jury was allowed to speculate both about the propriety of making any examination of the pubic area and about the propriety of the nature of a pelvic examination which defendant admitted performing on a date other than the date of the alleged offense. This pelvic examination included insertion of fingers into the complainant's vagina and rectum while she was on her hands and knees on the examination table.
That the prosecutor and the court both regarded the propriety of the pubic examination was at issue is shown by the record. In his opening statement, the prosecutor told the jury that the element of force or coercion was met by "false examination". When defense attorney moved to exclude any jury instruction on first-degree criminal sexual conduct under MCL 750.520b(1)(f)(iv) because there had been no medical testimony, the court denied that motion, stating:
"Now, if we take the testimony of the complainant in the case to the effect that she had no complaint, with respect to her genitals, as far as they were concerned, and there was no need on the part of the doctor to make any examination on that part, maybe the jury will believe it, maybe it won't. It will be up to the jury. That part of the motion will be denied." (Emphasis added.)
In his closing argument, the prosecutor deliberately invited the jury not to be limited to considering whether or not the defendant committed the act of cunnilingus, indicating that the examination was unethical medical conduct and that aspects of the examination involved penetration:
"What crime has been committed? She testified that the doctor, under the guise of examining her to see if down there she had any nits or any louse, asked her to drop her pants and she did. And then she later got up on the examination table. It was obviously done, using medical examination as a pretext. That's force, and that's the first element that is required. The second element is penetration, okay? We know, of course, she testified that he put his finger in her rectum. She also testified that he put his hand in her vagina and what felt to her to be his whole hand. In other words, she testified after the incident in which he licked her clitoris, he told her to get down on all fours on the examination table. He pushed her head down and at that point she felt — in her testimony — what felt like his whole hand go up her vagina and then he asked her repeatedly how does that feel? How does that feel; how does that feel? And her testimony was, `It feels like you're hitting a bone', that's her testimony regarding penetration. In addition, she testified that at one point he licked her clitoris." (Emphasis added.)
The court instructed the jury that the information charged that the sexual penetration with which defendant was charged was cunnilingus, but the court did not caution the jury that they must find that cunnilingus occurred in order to find the necessary element of penetration for first-degree criminal sexual conduct. Neither was the jury instructed to disregard touchings and "penetrations" other than cunnilingus in determining whether defendant was guilty. The lack of medical testimony and the prosecutor's inference that all of the physician's actions were prohibited allowed the jury to conclude that all of defendant's acts were bad acts and, therefore, he probably performed the act charged. We thus conclude that defendant was deprived of a fair trial.
While no one would argue that medical testimony is necessary to prove that cunnilingus is not acceptable and ethical medical treatment, we believe the better view is to require medical testimony in prosecuting violations under MCL 750.520b(1)(f)(iv). Touchings which are ordinarily prohibited are often necessary for medical examination and treatment. The patient may not be aware of what is medically necessary or acceptable and what is not. Criminal statutes must be strictly construed in favor of the defendant where his substantial rights are concerned. Dimmers v Hillsdale Circuit Judge, 289 Mich. 482; 286 N.W. 798 (1939). The statute, directed at the physician who may seek to take improper advantage of the close professional relationship between physician and patient, is clear and unambiguous in requiring that the conduct be medically unethical or unacceptable.
Defendant also contends that he was denied a fair trial by different remarks of the prosecutor which appealed to the emotions and prejudices of the jury. A review of the record reveals the following prejudicial comments:
"And the Defense Attorney's statement that all of this allegedly happened out of the clear blue sky doesn't happen that way. There's always some buildup where the man asks for sex. Well, it doesn't happen that way. Maybe in a normal man it doesn't, but it does happen that way. Women are raped on the street, they are raped in their own house. Daughters are raped by fathers. It happens and it happens that doctors rape patients. It does happen or else why would we be in law? Or why is there a special section in law exactly for this crime? If you don't know from your own common knowledge that that happens, I'm shocked, but it does happen.
"Now, why would he take that risk? I don't know. Thank heavens I'm not called upon to prove beyond a reasonable doubt an answer beyond a reasonable doubt. Every question you have in your mind, that question is in my mind, too. But the reason why he chooses to do this for excitement, the reason he chooses to get his kicks from his patients and the answer to that question is not an element of this crime. It's not something I have to prove. There's no way I could. There is no way I could fathom what goes on in this man's mind, much less prove it to you. The elements that I have to prove are penetration, injury and force and that's it. Those have to be proved beyond a reasonable doubt. And let's understand this, presumption of innocence and beyond a reasonable doubt."
The prosecutor's reference to women being raped on the street, daughters being raped by their fathers, and patients being raped by their doctors was unnecessary and highly prejudicial. Of even greater prejudice was the prosecutor's statement that he did not know why the defendant chose to "get his kicks from his patients". There was no testimony of any similar charges or accusations against defendant, yet the prosecutor's use of the plural let the jury speculate that defendant is an habitual sex offender.
The remarks at issue were not met with an objection. However, if prosecutorial comments nonetheless result in the denial of a fair trial, they may be cause for reversal. People v Knolton, 86 Mich. App. 424, 428; 272 N.W.2d 669 (1978). We conclude that the remarks, having the effect of arousing the passions of the jury and diverting its attention from the proper issues, resulted in a miscarriage of justice.
We additionally note that the prosecutor's remarks concerning the credibility of witnesses strayed dangerously close to constituting an expression of personal opinion. See People v Couch, 49 Mich. App. 69; 211 N.W.2d 250 (1973). Particularly inappropriate were the remarks that defendant's nurse would "say anything", that she "wasn't worth cross-examining" and that she would "make it up as she went along".
Repeated expressions in closing argument conveyed the prosecutor's opinion that defendant was lying. This Court in People v Tarpley, 41 Mich. App. 227, 237; 199 N.W.2d 839 (1972), on a similar record of multiple inflammatory and prejudicial remarks reversed despite the failure of defense counsel to object, stating:
"In the instant case the goal of an objection by the defendant would have been a cautionary instruction by the trial judge. In our opinion an instruction would not have eliminated the prejudice created by the prosecutor's inflammatory and prejudicial remarks especially in the light of the cumulative effect of their number and frequency during the course of the argument. Defendant's failure to object will not, therefore, bar this Court from affording the appropriate relief. People v Montevecchio, [ 32 Mich. App. 132 (1971)] supra, 166. Defendant need not be bound by his attorney's failure to object since the cumulative effect of the prosecutor's conduct constitutes a miscarriage of justice requiring reversal of his conviction. People v Brocato, 17 Mich. App. 277 (1969)."
Reversed and remanded for a new trial. T.M. Burns, J., concurred.
I cannot agree with my sister's conclusion that the trial court's instructions did not provide the jury with any guidance or standard by which they could determine whether the defendant's conduct was proscribed. The trial court clearly instructed on first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and clearly instructed the jury on the definition of cunnilingus. I can conceive of no instance when cunnilingus could be medically recognized as an ethical or acceptable practice. The average lay person or juror would not need expert medical testimony to come to this same conclusion. The meaning of the language here involved is understandable to a person of ordinary intelligence and, for this reason, I feel the jury was competent to make this determination. People v Cabassa, 249 Mich. 543, 549; 229 N.W. 442 (1930). This is not to say that medical testimony is unnecessary in most conceivable prosecutions under this section of the statute. It is only because this particular practice is readily understandable by a juror as being medically unethical or unacceptable.
A reading of the closing arguments of counsel and instructions by the court in their entirety persuades me that this defendant was not denied a fair trial. The portion of the transcript quoted by the majority to indicate that the trial court placed the question of the propriety of the entire examination before the jury occurred outside the presence of the jury and was never again mentioned or referred to in the court's instructions. The portion of the prosecutor's argument cited by the majority occurred on rebuttal and clearly was in response to matters propounded by a defense counsel during his closing argument. The prosecutor's comments in closing and rebuttal when read in their entirety did not exceed the bounds of permissible advocacy. I also take note of the fact that neither the instructions given by the trial court nor any of the comments of the prosecuting attorney were objected to by defense counsel.
This was a close case. It basically resolved itself down to a matter of credibility between the complainant and the defendant. The defendant through cross-examination of the complainant, by his own testimony, and by defense counsel's argument clearly presented to the jury defendant's theory of the case. The fact that the jury chose to disbelieve the defendant's version does not mean that he was denied a fair trial. I would affirm the conviction.