Opinion
Docket No. 75834.
Decided May 6, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Jane Shallal, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Rolf E. Berg), for defendant on appeal.
Before: BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.
Charged with one count of first-degree criminal sexual conduct, defendant was found guilty by a jury of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b). Sentenced November 2, 1983, to serve 10 to 15 years in prison, defendant appeals as of right.
The sole issue raised on appeal is whether the trial court adequately instructed the jury on the defense of consent. The court's instructions on third-degree criminal sexual conduct were taken directly from CJI 20:4:01 and 20:4:06. The instruction on consent, to which no objection was taken, was as follows:
" The Court: The defense claimed by the defendant is that he is not guilty of criminal sexual conduct because the complainant, Sharon Preston, consented to any and all sexual contact that the defendant had with the complainant. This defense is called consent. A willing act of sexual intimacy or intercourse between persons of sufficient age who are neither mentally defective, mentally incapacitated nor physically helpless is not criminal sexual conduct.
"If the evidence does not convince you beyond a reasonable doubt that the sexual acts complained of were not consented to, then the defendant is not guilty of the crime of [sic] conduct."
Defendant claims the instruction was inadequate because it predicated criminal responsibility on the victim's subjective consent rather than on defendant's reasonable belief that the victim consented. Counsel contends that, even in the absence of objection, the trial court should sua sponte have given an instruction similar to the instruction in People v Mayberry, 15 Cal. 3rd 143, 155; 125 Cal.Rptr. 745; 542 P.2d 1337 (1975), that "if a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to engage in sexual intercourse," the jury should find the defendant not guilty. We are not persuaded.
The instruction in Mayberry was required by statute. No Michigan case law requires the trial court to define consent in terms of a defendant's reasonable and honest belief. Further, when an identical claim of error was raised in People v Provience, 103 Mich. App. 69, 73; 302 N.W.2d 330 (1981); lv den 411 Mich. 1058 (1981), it was flatly rejected, the Court stating:
"Defendant's second claim is that the trial court erred by not instructing the jury that if the defendant reasonably believed that the complainant consented, he could not be convicted of third-degree criminal sexual conduct. This issue has not been preserved for appeal. Trial counsel never requested the specific instruction which appellate counsel now claims should have been given. People v Barker, 97 Mich. App. 253; 293 N.W.2d 787 (1980)." (Emphasis supplied.)
Finally, our Court has held that a trial court's instructions taken directly from CJI 20:4:01 and 20:4:06 regarding the necessary elements of third-degree criminal sexual conduct, implicitly require the jury to find that the complainant did not consent to sexual intercourse before the jury may find defendant guilty. People v Jansson, 116 Mich. App. 674; 323 N.W.2d 508 (1982). See also People v Johnson, 128 Mich. App. 618, 623; 341 N.W.2d 160 (1983).
Affirmed.