Opinion
Docket No. 76918.
Decided September 17, 1985. Leave to appeal denied, 424 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Derrick A. Carter), for defendant on appeal.
Defendant appeals as of right from his jury convictions for first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). He was sentenced to prison for from 12-1/2 to 25 years for first-degree criminal sexual conduct and from 7-1/2 to 15 years for second-degree criminal sexual conduct.
Defendant's convictions stem from two incidents with his 8-year-old step-granddaughter in December, 1982. Approximately three months later, after watching a television program in which a sexual assault was made upon one of the characters, the victim informed her mother of these events. Approximately one week later, the victim's parents notified the police.
On appeal defendant claims evidentiary error in six instances. In five instances, defendant did not object below. Failure to object precludes appellate review absent manifest injustice. MRE 103(a)(1); People v Owens, 108 Mich. App. 600, 604; 310 N.W.2d 819 (1981). Although no manifest injustice is presented, a substantive review of each of the claims indicates that they are without merit.
The first claim of error concerns the testimony of the victim's mother that she took the victim to a psychologist. Defendant contends that this evidence is hearsay because it constitutes nonverbal conduct which the mother intended as an assertion that she acted with a belief in the existence of the alleged crimes. The prosecution counters that the evidence is not a statement offered to prove the mother's belief, but that it is offered merely to explain the delay of one week between the time that the victim revealed these events and the time that police were notified. MRE 801(a) defines a statement for hearsay purposes as: (1) an oral or written assertion; or (2) nonverbal conduct of a person, if it is intended by him as an assertion. The Note to MRE 801(a) states that the rule is identical to FRE 801(a). The Advisory Committee's Note to FRE 801(a) provides that a preliminary determination is required to determine whether an assertion is intended when evidence of conduct is offered on a theory that it is not a statement and thus not hearsay. It further provides that the burden of showing that an intention existed is upon the proponent or party claiming the existence of an intention. Ambiguous cases will be resolved in favor of admissibility. We observe that no preliminary determination was made below, and the record contains no evidence that the victim's mother intended to make an assertion by her conduct. We conclude that the evidence is not hearsay, and was admissible. Compare, People v Davis, 139 Mich. App. 811, 813; 363 N.W.2d 35 (1984).
The second claim of error concerns the testimony of Officer Klann that the victim's family was very emotional when they reported the incidents to him. Defendant contends that this testimony constitutes hearsay and evidence of prior consistent statements. We disagree. The officer's testimony merely establishes the fact of the family's report and his perception of them. This evidence in no way repeats the substance of the report given by the victim's family.
The third claim of error concerns the prosecuting attorney's request to Officer Klann to read a sentence from his report and Klann's mistake by beginning to read aloud the sentence. ("`While she was sitting on the roll-a-way [sic] she stated her grandfather walked up to h----'".) Defendant contends that this is hearsay and evidence of prior consistent statements. The error is harmless, because the witness was promptly instructed to read the sentence to himself. Further, the portion read is not damaging.
The fourth claim of error concerns the mother's testimony that the victim informed her of the incident and Officer Klann's testimony that the victim gave him a statement. According to defendant, these are inadmissible prior consistent statements. We disagree, because the testimony merely establishes that the victim reported the events. The testimony does not repeat the substance of the victim's statements.
The fifth claim of error concerns the testimony of Officer Klann which clarified the source of words contained in his report. We find no error since defense counsel also elicited this testimony for clarification purposes.
Defendant's final claim of error concerns the testimony of the victim's mother that she waited one week to inform police because she wanted to consult with her husband, and with a minister and a psychologist. The trial court overruled defendant's objection with respect to relevancy. On appeal defendant claims that the evidence is hearsay. Evidentiary objections must be specific and state the precise ground or grounds for the objection. Failure to state the proper reason precludes appellate review unless there is manifest injustice. MRE 103(a)(1); Joba Construction Co, Inc v Burns Roe, Inc, 121 Mich. App. 615, 626; 329 N.W.2d 760 (1982). We find no manifest injustice and no abuse of discretion in the trial court's ruling. The testimony explains the one-week delay. Further, it relates to credibility, a key issue in a criminal sexual conduct case such as this where it is the complainant's word against the defendant's word.
Defendant's convictions are affirmed.