People v. Cooks

521 N.W.2d 275, 446 Mich. 503

• Court: Michigan Supreme Court
• Decided: August 29, 1994
• Docket: 97114, (Calendar No. 11)
• Status: Published

Opinions

Griffin, J.

In this case, defendant was charged with one count of first-degree criminal sexual conduct,¹ but testimony elicited from the complainant at trial referred to three incidents of sexual penetration. Although the jury was instructed in general terms that its verdict must be unanimous, defendant’s conviction of second-degree criminal sexual conduct was vacated by the Court of Appeals because the trial court refused to instruct the jurors that unanimous agreement about a specific act of penetration is required for conviction. Because materially identical evidence was offered with respect to each of the alleged acts of penetration and there is no reason to believe the jury was confused or disagreed about the basis of defendant’s guilt, we conclude that the trial court did not err, and we reverse the decision of the Court of Appeals.

i

Charging defendant with one count of first-degree criminal sexual conduct, the information alleged that "on or about Jan, 1989,” defendant "[d]id engage in sexual penetration, to-wit: anal intercourse with the complainant, a person under 13 years of age, contrary to sec. 750.520 B (1) M.C.L.A.” Complainant was ten years of age at the time of the alleged acts.

The complainant testified that in January 1989, she and her four siblings lived with their cousin, Joanne Burris, in a house in Detroit. Defendant and George White lived in the basement of the home.

Complainant stated that Ms. Burris was away from the home during the day for a week in January 1989 to cook at a church revival.² Although she could not remember the specific date, the child recalled that on Monday morning during this week, she and defendant were alone in the home. Defendant allegedly approached complainant from behind while she was cleaning the living room and began fondling her breast and vagina. Defendant then began kissing her, whereupon he turned her around and pushed her against a wall. 'While holding her arms for approximately five minutes, the child believed defendant penetrated her anus with his penis.³

Complainant testified to a second similar sexual assault by defendant that allegedly occurred the next morning as she was cleaning her room. She stated that defendant approached her and again began fondling her breasts and vagina while trying to kiss her. After defendant turned the victim and forced her against a wall, she believed that defendant again penetrated her anus with his penis.⁴

The victim then testified to a third act of anal penetration by defendant that allegedly occurred the next day under similar circumstances. While the child was folding clothes in the dining room, defendant approached her, began fondling her breasts and vagina, then forced her against a wall. She testified that she then felt what she believed to be defendant’s penis penetrate her anus.⁵

Although these incidents allegedly occurred in January 1989, complainant did not inform Joanne Burris, her legal guardian, of the sexual assaults until Easter Sunday in March 1989, because she thought she would "get[] in trouble.” When, later that evening, Burris took the victim to the hospital, the examining physician found no medical evidence of sexual penetration. Defendant denied all the allegations, he did not testify, and the defense rested without calling any witnesses.

At the close of proofs, defense counsel requested the trial judge to give the following special instruction: "Members of the jury, you must be unanimous as to which specific act of penetration occurred, if any, before you can find the Defendant guilty of esc in the first degree.”

While declining to give the requested instruction, the trial court’s instructions to the jury included the following:

The evidence in this case must convince you, beyond a reasonable doubt, that the crime occurred on or about January, 1989, within the City of Detroit. The Defendant is charged with the crime of esc in the first degree. The Defendant pleads not guilty to this charge. To establish this charge, the Prosecution must prove each of the following elements beyond a reasonable doubt:

First, that the Defendant, Ricky Cooks, engaged in a . . . specific sexual act which involves some actual entry into the anal opening of [the complainant’s] body.

It is alleged . . . that the sexual act was committed by a penetration of the Complainant[’s] . . . body by the Defendant, Ricky Cooks’ penis. Any such entry into the anal opening is enough.

The court explained the elements of several lesser offenses, including second-degree criminal sexual conduct,⁶ and then instructed the jury:

If you all have agreed upon one verdict, your foreperson should mark that verdict.

A verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agree upon that verdict.

The jury found defendant guilty of second-degree criminal sexual conduct. In an unpublished per curiam opinion,⁷ the Court of Appeals reversed the conviction, citing People v Yarger, 193 Mich App 532, 537; 485 NW2d 119 (1992).

Thereafter, we granted the prosecutor’s application for leave to appeal, "limited to whether the Detroit Recorder’s Court failed to instruct the jury properly with regard to its obligation to render a unanimous verdict.” 444 Mich 875 (1993).

II

While the Sixth Amendment of the federal constitution includes the right of an accused to a unanimous verdict in federal criminal prosecutions, see Andres v United States, 333 US 740; 68 S Ct 880; 92 L Ed 1055 (1948),⁸ the United States Supreme Court has held that the Fourteenth Amendment does not mandate unanimous verdicts for convictions in noncapital criminal prosecutions in state courts. Johnson v Louisiana, 406 US 356; 92 S Ct 1620; 32 L Ed 2d 152 (1972); Apodaca v Oregon, 406 US 404; 92 S Ct 1628; 32 L Ed 2d 184 (1972). Thus, the right to a unanimous jury verdict in noncapital state criminal proceedings must be grounded in state law.

At common law, civil as well as criminal defendants were entitled to unanimous jury verdicts. See McRae v Grand Rapids, L & D R Co, 93 Mich 399; 53 NW 561 (1892).⁹ This right was preserved by the ratifiers of the original Michigan Constitution,¹⁰ and the current version of the state constitution maintains the unanimity requirement, albeit in criminal prosecutions only.¹¹

In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement. See, generally, People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967) ("Defendant has a right to have a properly instructed jury pass upon the evidence”). In this case, we must determine whether a general unanimity instruction to the jury was adequate in light of the pattern of conduct offered as evidence of a single charged offense.

in

In finding that the trial court erred in this case, and that reversal was required, the Court of Appeals relied exclusively on Yarger, supra, and reasoned:

Error occurred, because the jury was not instructed that it must unanimously agree on which of the separate act(s) was proven beyond a reasonable doubt.

Under Yarger, defendant is entitled to a unanimity instruction. He asked for one to be given, but it was not given. If Yarger’s holding has any meaning — and the [People v Van Dorsten, 441 Mich 540, 543; 494 NW2d 737 (1993)] Court specifically declined to approve or disapprove Yarger — it must say that the failure to give a unanimity instruction is not always harmless.

Accordingly, we hold Van Dorsten to its facts and follow Yarger here to reverse.[¹²]

Defendant agrees with the panel’s application of Yarger, and points to the decisions in People v Jenness, 5 Mich 305 (1858), and People v Pottruff, 116 Mich App 367; 323 NW2d 402 (1982), as additional support for an affirmance of the Court of Appeals. We disagree.

After considering the arguments presented in this appeal and carefully reviewing the relevant federal and state authority available, we reach the conclusion that a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense. The critical inquiry is whether either party has presented evidence that materially distinguishes any of the alleged multiple acts from the others.¹³ In other words, where materially identical evidence is presented with respect to each act, and there is no juror confusion, a general unanimity instruction will suffice.

In this regard, Yarger, Jenness, and Pottruff are distinguishable from the case at bar. Whereas at least one of the alternative alleged acts in Yarger, Jenness, and Pottruff were supported or rebutted by a materially distinct piece of evidence, the evidence presented against defendant here was materially identical with regard to all three of the alleged acts of penetration. As indicated below, we find this distinction to be dispositive.

A

The decision in United States v Gipson, 553 F2d 453 (CA 5, 1977), is considered a seminal ruling regarding the need for a specific unanimity instruction when evidence of multiple acts by a defendant are placed before a jury to support a single charged offense.¹⁴ There, the United States Court of Appeals for the Fifth Circuit reversed the defendant’s conviction of "selling or receiving a stolen vehicle moving in interstate commerce, in violation of 18 USC 2313,” on the ground that an improper jury instruction abridged the defendant’s right to a unanimous jury verdict.¹⁵ Id. at 455.

The court explained that the prohibited acts in question constituted "two distinct conceptual groupings; the first consisting of receiving, concealing, and storing, and the second comprised of bartering, selling, and disposing.” Id. at 458. The court then opined:

[T]he two conceptual groupings are sufficiently different so that a jury finding of the actus reus . . . would not be "unanimous” if some of the jurors thought the defendant committed only an act in the first conceptual grouping while others believed he committed an act only in the second. [Id.]

Because the challenged instruction did not separate the distinct acts of the "housing of stolen vehicles” versus the "marketing of stolen vehicles” in the minds of the jurors, the panel reversed:

The . . . instruction authorized the jury to return a guilty verdict despite the fact that some jurors may have believed that Gipson engaged in conduct only characterizable as receiving, concealing, or storing while other jurors were convinced that he committed acts only constituting bartering, selling, or disposing. Thus, . . . the jury was permitted to convict Gipson even though there may have been significant disagreement among the jurors as to what he did. [Id. at 458-459.]

Recently, the United States Supreme Court addressed a somewhat related question in Schad v Arizona, 501 US 624; 111 S Ct 2491; 115 L Ed 2d 555 (1991), in the context of determining the constitutionality of criminal statutes that provide alternative means of defining a criminal offense, i.e., multitheory statutes.¹⁶ The Schad Court affirmed the defendant’s murder conviction and, in the process, rejected a constitutional attack against an Arizona statute that alternatively defined the mens rea of first-degree murder as "murder which is . . . wilful, deliberate or premeditated ... or which is committed ... in the perpetration of, or attempt to perpetrate . . . robbery.” 501 US 628, n 1.

In Schad, the defendant argued in the Supreme Court that the trial court’s instruction, which "did not require the jury to agree on one of the alternative theories of premeditated and felony murder,” deprived him of his constitutional right to a unanimous jury verdict. 501 US 630. Because the jury in the defendant’s trial agreed unanimously "that [the defendant] murdered either with premeditation or in the course of committing a robbery,” id., the Schad Court framed the issue in the following manner: "whether it was constitutionally acceptable to permit the jurors to reach one verdict based on [sic] any combination of the alternative findings.” Id. The Court answered this question in the affirmative. 501 US 645-646.

Although the "conceptually distinct” Gipson test was not utilized by the Supreme Court in Schad, its application to the issue now before us by other federal courts has produced an analytical framework that we find instructive.

For example, in United States v Duncan, 850 F2d 1104 (CA 6, 1988), cert den sub nom Downing v United States, 493 US 1025 (1990), the government offered two unrelated false statements allegedly made by the defendant, "that $115,000 of income received was a capital gain rather than ordinary income, and that [the defendant] had paid $8,800 in interest when he had not,” as evidence of a single unlawful tax return. Id. at 1106. Relying on Gipson, the Duncan panel reversed the defendant’s conviction:

[T]he jury in this case needed to agree on the willful falsity of one factually distinct false statement because the statements are "conceptually distinct.” Although both the interest deduction and the income characterization arose from the same transaction, the circumstances of their formulation and the proof bearing upon their willful falsity were distinct. . . . When distinct proof is required to establish distinct affirmative acts as elements of an offense, specific unanimity is necessary. [Id. at 1113.][¹⁷]

On the other hand, where the government has presented evidence of a series of materially indistinguishable acts, each of which would factually satisfy the actus reus element of the alleged criminal offense, numerous federal courts have declined to require a specific unanimity instruction. In United States v Ferris, 719 F2d 1405, 1406 (CA 9, 1983), a case on which the prosecutor here relies, the defendant was convicted of one count of possession of controlled substances with intent to distribute. Because the prosecutor presented evidence of "various acts of possession” that allegedly occurred between November 20, 1980, and January 29, 1981, the defendant argued on appeal that

the trial court deprived him of his constitutional right to a unanimous verdict by declining a prof-erred [sic] instruction that the jury must be in unanimous agreement on the precise act of possession with intent to distribute as alleged in Count i. [Id]

The United States Court of Appeals for the Ninth Circuit disagreed and affirmed the defendant’s conviction. Id. at 1407. The court distinguished Gipson, supra, and noted:

In the case before us, the various acts indicating knowing possession were not inconsistent with each other; and even if one set of jurors might have focused on one part of the transaction while another set focused upon a different part, it does not follow that either set of jurors were in disagreement with the other. [Jd.][¹⁸]

Similarly, in United States v Sutherland, 656 F2d 1181 (CA 5, 1981), cert den 455 US 949 (1982), three codefendants challenged their convictions of conspiracy to violate the federal Racketeer Influenced and Corrupt Organization Act, 18 USC 1962(c), arguing, inter alia, "that the [trial] court erroneously refused a requested instruction that required the jury to be unanimous as to the same overt acts that formed the basis of their verdict.” Id. at 1202. Noting that certain acts " 'are sufficiently analogous to permit a jury finding of the actus reus element of the offense to be deemed "unanimous” despite differences among the jurors as to which of the . . . acts the defendant committed,’ ” id. at 1202 (quoting Gipson, supra at 458), the Court affirmed the defendants’ convictions:

[T]he jury need not specifically have considered and agreed as to which of a large number of potential overt acts of bribery were established by the government. These acts were not distinguished in any significant respect and the evidence as to each is remarkably similar. Therefore this series of alleged acts comprises one "conceptual group” and the jury need not have unanimously agreed as to. which was proyen. [Id.][¹⁹]

In the light of Gipson and its progeny, it appears that federal trial courts must give a specific unanimity instruction to the jury if 1) the alternative acts presented as evidence are conceptually distinct or there are distinct proofs regarding each alternative, or 2) other factors are present that create a genuine possibility of juror confusion or disagreement. Where the government offers a series of similar acts as proof of the actus reus and there is no indication of juror confusion or disagreement, the general unanimity instruction is deemed sufficient. Ferris, Sutherland, Duncan.

B

The rule that a specific unanimity instruction is unnecessary when the government presents materially identical evidence to support each alleged act by a defendant is also recognized in state courts in the context of multiple incidents of sexual assault. For example, the Connecticut Supreme Court has adopted a "continuing offense” exception to the need for a specific unanimity instruction when alternative acts are presented as evidence of a single criminal offense.²⁰ In State v Spigarolo, 210 Conn 359, 389; 556 A2d 112 (1989), the prosecution alleged in two counts of an information that the defendant unlawfully committed "certain 'acts’ likely to impair the health or morals of the victims.” However, the prosecution "identified six separate acts specifying the manner in which the defendant committed the offense.”

On the appeal of his conviction, the defendant argued that he was "denied . . . his constitutional right to a unanimous verdict,”²¹ id. at 363, because the trial court instructed the jury that "it is necessary that the State prove that only one of those acts [was] committed by the defendant.” Id. at 389. The Connecticut Supreme Court observed:

"Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” [Id. at 389 (quoting State v Bailey, 209 Conn 322, 334; 551 A2d 1206 [1988]).]

Applying this standard to the record before it,²² the Spigarolo court opined that a specific unanimity instruction was unnecessary and affirmed the defendant’s conviction:

The six specific acts . . . involved subjecting the victims to either active or passive participation in sexual activity .... Because the state was unable to specify with greater precision the times of the alleged incidents, it necessarily proceeded under a theory that the defendant’s conduct was in the nature of a continuing offense. . . . Under these circumstances, the acts specified in the counts were not conceptually distinct within the meaning of Gipson. [Id. at 391-392.][²³]

The California courts have taken a similar approach.²⁴ In a case strikingly similar to the instant appeal, the defendant was convicted of "committing a lewd act upon a child on and between March 1, 1983, and May 31, 1983.” People v Winkle, 206 Cal App 3d 822, 824; 253 Cal Rptr 726 (1988). The victim, who was six years old at the time of the alleged events, testified that she lived with her defendant uncle and his family during this period and claimed that he put his penis inside her vagina "more than once a week.” She stated that these acts occurred when she and her uncle "were home alone, 'sometimes in the bathroom and sometimes in the bedroom,’ ” and that the acts also occurred in the bathroom at the defendant’s workplace. Id.

On appeal, the defendant argued that "the trial court erred in failing to instruct the jury that it must unanimously agree on the underlying act forming the basis of a finding of guilt.” Id. at 825. The court disagreed and affirmed.

After acknowledging the general applicability of a California standard jury instruction²⁵ to cases in which the information charges a single criminal offense, but evidence of multiple acts by defendant is produced at trial, the Winkle court noted:

[T]here is a "continuous conduct exception” to the need for a unanimity instruction.

The continuous conduct exception occurs in two circumstances — when the two offenses are so closely connected in time that they form part of one transaction or when the offense consists of a continuous course of conduct. [Id. at 826.]

The court concluded that "because the victim was of a tender age at the time of the acts of molestation and because she testified about repeated incidents of the same act of sexual molestation, a unanimity instruction was unnecessary.” Id. at 828.²⁶

Similarly, in People v Deletto, 147 Cal App 3d 458, 462; 195 Cal Rptr 233 (1983), the defendant was charged with "oral copulation with a person under 14 years of age and 10 years younger than [the defendant].” At trial, the victim testified that "(1) defendant made oral contact with her genital area, and (2) defendant placed his penis in her mouth and ejaculated . . . during the summer of 1980 at the [same] residence[.]” Id. at 465.

After reviewing the evidence, the Deletto court stated:

This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence.

The defense similarly provided the jury with no evidence that focused on one act but not the other. [Id. at 466-467.]

Therefore, the court concluded that a unanimity instruction was not necessary because "neither defense evidence nor defense argument suggested even remotely to the jury that they could somehow distinguish between the two acts . . . testified to by the minor.” Id. at 468.²⁷

c

We are persuaded by the foregoing federal and state authority that if alternative acts allegedly committed by defendant are presented by the state as evidence of the actus reus element of the charged offense, a general instruction to the jury that its decision must be unanimous will be adequate unless 1) the alternative acts are materially distinct (where the acts themselves are conceptually distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the factual basis of defendant’s guilt.²⁸ Against this backdrop, a clear distinction emerges between the decisions in Yarger, Jenness, and Pottruff (in which a specific unanimity instruction was mandated) and the case at bar.

In Yarger, the defendant was charged with one count of third-degree criminal sexual conduct.²⁹ At trial, the prosecution presented evidence of distinct types of penetration through testimony of the fifteen-year-old victim that she "consensually performed fellatio on defendant . . . after which defendant penetrated her vagina with his penis.” Id. at 534. The defendant impeached the victim’s testimony in general with "evidence of prior false accusations of rape and her earlier denials that any impropriety had occurred between them.” Id. In addition, the defense specifically impeached the allegation of vaginal penetration with the complainant’s preliminary examination testimony at which she stated "that she and defendant 'had intercourse,’ but that 'nothing went inside’ her and that defendant placed his penis 'by’ her vagina.” Id.

The Yarger panel reversed the defendant’s conviction and reasoned: "[A] possibility exists that, for example, six jurors were convinced that fellatio had occurred, but not intercourse, while the other six jurors held the opposite view.” Id. at 537.

In Jenness, the defendant was charged with one count of committing incest with his niece. Although the information listed February 24, 1858, as the date of the alleged act, the niece testified at trial that she had sexual intercourse with the defendant "on the 17th day of January, 1858, ... at her room in the Howard House, in the city of Detroit.” Id. at 307. She then testified about "numerous acts of sexual intercourse between herself and [the defendant], at various places within and without the said city of Detroit, commencing in 1853.” Id. at 308. The complainant’s parents corroborated her claim that she had sexual intercourse with the defendant at various places during the preceding five years by testifying about "[a]cts of improper and indecent familiarity between defendant and [the complainant], at various times before the commission of the alleged act at the Howard House.” Id. at 308-309.

In its instructions to the jury, the trial court stated:

[T]hough the information alleges that the [defendant] had criminal connection with his niece, ... in this city, on the 24th day of February, time and place are immaterial, and the jury may find him guilty, if from the evidence they believe that the act was not committed at the Howard House, but was committed in some other place in the city of Detroit, within the period of six years prior to the time of filing this information. [Id. at 312.]

Thus, the instruction allowed the jury to convict the defendant without requiring unanimity on any one of numerous acts of intercourse that allegedly occurred within and without the City of Detroit during a period of five years.

On appeal, this Court reversed the defendant’s conviction and explained:

This was subjecting the defendant to the risk of conviction upon a great number of acts, occurring at different times and places, against which he could not be expected to be prepared to defend; and yet an acquittal or conviction would be no bar to a future prosecution of any, except that at the Howard House. The jury can not be thus sent fishing for the charge which they are to try. [Id. at 328.]

In Pottruff, the defendant was charged with, and convicted of, one count of first-degree criminal sexual conduct. The five-year-old victim testified at trial that the defendant forced her to perform fellatio and to submit to vaginal intercourse. In support of the allegation of vaginal penetration, the prosecution also produced expert medical testimony.

Although the defendant apparently denied engaging in vaginal intercourse, he presented a separate defense with regard to the fellatio allegation. The defendant claimed that the zipper on his pants was broken and that the child "grabbed his penis and put it in her mouth . . . because she saw her mother do it and she thought she would like to be like her mother.” Pottruff, supra at 370. The panel granted defendant a new trial on other grounds, but noted in dicta:

[S]ome jurors may have been convinced that defendant committed the act of fellatio while others may have been convinced only that vaginal penetration had occurred .... [TJhis problem can be avoided on retrial either by charging defendant with separate counts or by instructing the jury that they must find unanimously that defendant committed either one or the other of the acts .... [Id. at 375-376.]

Unlike the proofs in Yarger, Jenness, and Pottruff, the evidence offered in this case to support each of the alleged acts of penetration was materially identical, i.e., the complainant’s equivocal testimony of an anal penetration,³⁰ occurring in the same house over an unspecified three-day period in January 1989, while only she and defendant were in the room. Thus, the multiple acts alleged by the prosecutor were tantamount to a continuous course of conduct.

Furthermore, unlike the defendants in Yarger and Pottruff, defendant here did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act.³¹ He merely denied the existence of any inappropriate behavior. Thus, the sole task of the jury was to determine the credibility of the victim with respect to the pattern of alleged conduct. Because neither party presented materially distinct proofs regarding any of the alleged acts, the factual basis for the specific unanimity instruction mandated in Yarger, Jenness, and Pottruff was nonexistent.

Like the prosecutors in Spigarolo and Winkle the prosecutor here was unable to specify in the information the precise dates of the alleged penetrations, other than "on or about Jan, 1989.”³² Unlike Jenness, the child victim then testified about identical incidents of anal penetration on three successive days, consistent with the charge in the information. Absent any indication of juror confusion or disagreement over the existence of any of the alternative acts, a specific unanimity instruction is not required on these facts.³³

IV

In conclusion, when the state offers evidence of multiple acts by a defendant, each of which would satisfy the actus reus element of a single charged offense, the trial court is required to instruct the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree about the factual basis of the defendant’s guilt. When neither of these factors is present, as in the case at bar, a general instruction to the jury that its verdict must be unanimous does not deprive the defendant of his right to a unanimous verdict.³⁴

The decision of the Court of Appeals is reversed.

Cavanagh, C.J., and Brickley, Boyle, Riley, and Mallett, JJ., concurred with Griffin, J.

1 MCL 750.520b; MSA 28.788(2).

2 However, Joanne Burris testified that she cooked for her church revival in November, not January, and that she was never away from the home in January 1989.

3 On cross-examination with respect to this incident, the victim admitted that she was "not sure” whether there was actual penetration and acknowledged that she did not feel any pain during the alleged penetration. Also, on cross-examination, defense counsel attempted to impeach the victim’s testimony with a prior inconsistent statement to police in which she stated that this incident occurred after defendant pushed her into her bedroom and held her against a wall.

4 On cross-examination, defense counsel elicited testimony from the victim to the effect that she was again unsure whether defendant actually penetrated her anus on this occasion. Defense counsel also used the victim’s preliminary examination testimony in an attempt to impeach her testimony on direct examination that she locked her bedroom door after the second assault. At the preliminary examination, Young testified that the lock on her bedroom door did not work.

5 In addition to these alleged acts of anal penetration, complainant testified that on the following day after dinner, she went into the alley behind her home to feed the dogs. As she attempted to reenter the home, defendant stopped her and again began kissing the child while fondling her chest and vagina. Complainant testified that as defendant was about to unbutton his pants, George White emerged from inside the home. When White asked what was going on, the child claimed that defendant ran.

Complainant stated that she and White then went inside, where White told the child that he had been looking out the kitchen window and wanted to know what had happened. She allegedly told White that defendant started kissing her and feeling her "chest and stuff.” When defendant later came into the kitchen, White purportedly confronted him regarding the incident.

George White also testified at defendant’s trial. He recalled seeing defendant and the victim behind the house in January, but testified that when he asked the child what they were doing, she stated that defendant "wasn’t doing anything.”

6 MCL 750.520c; MSA 28.788(3). While a charge of first-degree criminal sexual conduct requires proof of sexual penetration, the prosecutor need show only that the accused engaged in sexual contact with another person in order to prove second-degree criminal sexual conduct. MCL 750.520a(k); MSA 28.788(l)(k) provides:

"Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.

7 Issued April 7, 1993 (Docket No. 126607).

8 See also FR Crim P 31(a): "The verdict shall be unanimous.”

9 [T]he right of trial by a jury of 12 men became fixed centuries ago in the common law, and unanimity of verdict became requisite, until . . . this right came to be regarded as the great bulwark of the liberty of the citizen. Whether charged with an offense against the commonwealth, or in a controversy with another, the right could always be invoked. . . . This was the sense in which the common-law jury was understood, — a jury of 12, whose verdict must be unanimous. [McRae, supra at 401.]

10 "The right of trial by jury shall remain inviolate.” Const 1835, art 1, § 9. As Justice Cooley stated in Swart v Kimball, 43 Mich 443, 448; 5 NW 635 (1880):

The Constitution of the State provides that "The right of trial by jury shall remain . . . .” Article vi. § 27. The right is to remain. What right? Plainly the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State. [Emphasis in original.]

See also McRae, supra at 405 ("[T]his part of the Constitution [article 6, § 27], providing that 'the right of trial by jury shall remain,’ means the right as it existed at the common law, which was well understood in the previous jurisprudence of the State .... This right was a trial by a jury of 12 good men and true, whose determination must be unanimous . . .”).

11 Const 1963, art 1, § 14 provides: "The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.”

Likewise, the Michigan Court Rules pertaining to criminal cases provide: "A jury verdict must be unanimous.” MCR 6.410(B).

12 In People v Van Dorsten, the defendant did not request a specific unanimity instruction, nor did he object to the instruction given and, therefore, failed to preserve the issue for appellate review. Because the "number or specific identification of acts of sexual penetration was not in dispute,” this Court found no manifest injustice in affirming the defendant’s conviction and expressly declined to review the merit of the Yarger decision. Id. at 545.

13 See, e.g., comment, Right to jury unanimity on material fact issues: United States v Gipson [553 F2d 453 (CA 5, 1977)], 91 Harv L R 499, 501-502 (1977):

It is not always clear where to draw the line dividing more general, "material” fact issues, on which the jury properly must be unanimous in order to convict, from more specific, "immaterial” issues, on which jurors may disagree without foreclosing the possibility of an acceptable guilty verdict.

14 See, e.g., 3 LaFave & Israel, Criminal Procedure, § 23.7(f), pp 50-52; 3 Cook, Constitutional Rights of the Accused (2d ed), § 17:3, pp 47-51; comment, n 13 supra.

15 Among other evidence adduced at Gipson’s trial, a witness testified that he heard a vehicle enter the driveway adjacent to his home one morning and noticed Gipson walking away from the car. The vehicle was later identified as an automobile that had been stolen the previous night. After the police established surveillance of the car, Gipson was seen "walking around the car and taking something out of the stolen car’s glove compartment.” Id. at 455. During their surveillance, the police also observed two men examining the vehicle. One of the men later testified at Gipson’s trial that he and his acquaintance inspected the automobile because his acquaintance’s friend was attempting to sell it. However, the witness was unable to positively identify Gipson at trial as his acquaintance’s friend. When Gipson was arrested two weeks after the morning in question, he had in his possession a set of keys that fit the stolen automobile.

16 The issue raised in Schad is analytically distinct from the question presented here. In this appeal, we must determine whether the trial court’s general unanimity instruction sufficiently protected defendant’s right to a unanimous verdict, in light of the allegations of separate acts by the defendant, each of which would factually satisfy the elements of the charged offense. On the other hand, the task before the United States Supreme Court in Schad was to examine the extent to which a statute could constitutionally define alternative means of committing a single criminal offense. See also People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991), in which the Court stated that "[w]hen a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory” (holding that juror unanimity was not required regarding the three alternative definitions of malice necessary for a murder conviction).

17 The Duncan panel went on to note that even where specific unanimity is necessary, a general instruction on unanimity will suffice

unless under the count in question: (1) the nature of the evidence is exceptionally' complex or the alternative specifications are contradictory or only marginally related to each other; or (2) there is a variance between indictment and proof at trial; or (3) there is tangible indication of jury confusion, as when the jury has asked questions or the court has given regular or supplementary instructions that create a significant risk of nonunanimity. [Id. at 1114.]

See also United States v Echeverry, 698 F2d 375 (CA 9, 1983), modified 719 F2d 974, 975 (CA 9, 1983) ("When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice”) (emphasis added), United States v Payseno, 782 F2d 832, 837 (CA 9, 1986) (a general instruction was insufficient where three acts of extortion, directed at separate victims at different times and locations, created "uncertainty and confusion regarding the basis for the conviction”), and United States v Beros, 833 F2d 455 (CA 3, 1987).

18 See also Vitello v United States, 425 F2d 416, 419 (CA 9, 1970), cert den 400 US 822 (1970) (in a pre-Gipson case, the defendant’s conviction of perjury was affirmed despite the fact that the trial court "failed to instruct the jury that all twelve jurors must unanimously agree upon at least one of the [three] statements as charged in the indictment”).

19 In addition to Ferris and Sutherland, other federal appellate courts have ruled that a specific unanimity instruction is unnecessary where the government presents a series of similar acts as evidence of a single criminal offense. See, e.g., United States v Schiff, 801 F2d 108, 115 (CA 2, 1986), cert den 480 US 945 (1987) (general unanimity charge found sufficient where "the alleged acts were closely interrelated and carried out by a single individual”); United States v Frazin, 780 F2d 1461, 1468 (CA 9, 1986), cert den 479 US 844 (1986) (a general unanimity instruction was sufficient in a mail and wire fraud prosecution in which there existed evidence of misrepresentations to numerous investors, in light of the rule that "a specific instruction that the jury must agree on a particular set of facts is required only where it appears that a conviction might rest upon different jurors having found the existence of different facts .... That situation arises where the complex nature of the evidence, a discrepancy between the evidence and the indictment, or some other particular factor creates a genuine possibility of juror confusion”); and United States v Natelli, 527 F2d 311, 324 (CA 2, 1975), cert den 425 US 934 (1976) (where the government offered two statements as evidence of an alleged falsely prepared proxy statement, the court found no error in the trial court’s refusal to instruct the jurors that "they must be unanimous on which, if either, of the two specifications had been proven materially false”). See also Duncan, supra at 1111 ("Sometimes alternative factual specifications are so closely related that a jury need not be unanimous as to which factual predicate or specification supports the defendant’s guilt”).

20 See also Trubitt, Patchwork verdicts, different-jurors verdicts, and American jury theory: Whether verdicts are invalidated by juror disagreement on issues, 36 Okla L R 473, 537 (1983) ("Where several instances of conduct clearly make up part of a 'continuing offense’ or general scheme or plan, ... a patchwork verdict is proper”).

21 The Connecticut Constitution provides, in pertinent part: "The right of trial by jury shall remain inviolate . . . .” Conn Const 1965, art 4, § 19. We note that this is the identical language used by the framers in the original Michigan Constitution. See n 10. The term "inviolate” has since been removed from this provision of the Michigan Constitution. See Const 1963, art 1, § 14.

22 The evidence indicated that the defendant engaged in numerous sexual activities with his girlfriend’s children at their apartment between August and December of 1984. However, various statements provided by the children "were at times incomplete and inconsistent, and on one occasion in December, 1985, the [female] victim . . . recanted previous statements and said that no sexual activity between herself and the defendant had taken place.” Id. at 363. The prosecutor also presented medical evidence that a December 1984 examination of the female revealed the presence of gonorrhea in her throat.

23 See also State v Mancinone, 15 Conn App 251, 279; 545 A2d 1131 (1988), app den 209 Conn 818 (1988), cert den 489 US 1017 (1989) (a case on which the Spigarolo court relied in which a specific unanimity instruction was found not to be required, in part because, although the state presented evidence that the defendant furnished alcohol and marijuana to minors on numerous occasions, "[t]he jury’s verdict must be seen as unanimous with regard to the single concept of providing illegal substances to the victims”).

24 Like Michigan and Connecticut, the California Constitution requires unanimous jury verdicts in criminal prosecutions: "Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict.” Cal Const 1974, art 1, § 16.

25 “The defendant is charged with the offense of __. He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts.” [Id. at 826, n 4 (quoting CALJIC No. 17.01 [4th ed 1979]).]

26 The court distinguished its decision from that in People v Gordon, 165 Cal App 3d 839; 212 Cal Rptr 174 (1985), wherein "a child testified to an attempted act of sodomy for which no date was given and to a second act which occurred during a camping trip, . . . [but another] witness, who had accompanied the victim and the defendant on the camping trip, in essence testified that the defendant did not have the opportunity to be alone with the victim.” Id. at 828-829. The Gordon court reversed the defendant’s conviction as a result of the failure to give the specific unanimity instruction, " '[because] some of the jurors may have believed the lack of opportunity defense to the second act, and other jurors not, and . . . some jurors may have believed there was penetration with respect to the first act of sodomy but not the second, and others not ....’” Id. at 829 (quoting Gordon at 856).

27 See also People v Moore, 211 Cal App 3d 1400, 1415-1416; 260 Cal Rptr 134 (1989) (in affirming the defendant’s conviction despite the trial court’s failure to instruct the jury that, inter alia, "all jurors must agree that [the defendant] committed the same act or acts” when alternative acts are offered as evidence, the court opined that "where there is no reasonable basis, by way of evidence or argument, upon which the jury could have distinguished the acts, there is no reason to suspect the verdict was not unanimous”) (relying on Deleito, supra, and People v Meyer, 197 Cal App 3d 1307; 243 Cal Rptr 533 [1988]).

Most recently, Winkle, Deletto, and Moore were cited with approval by the California Supreme Court in People v Jones, 51 Cal 3d 294, 322; 270 Cal Rptr 611; 792 P2d 643 (1990) (affirming the defendant’s conviction of four counts of lewd and lascivious acts where the victim testified about "frequent [once or twice each month] molestations by defendant, at five separate locations, consisting exclusively of oral copulation”).

28 We believe this approach is particularly apt in cases such as this one, where there is an allegation of a pattern of sexual penetrations committed against a child who may have difficulty remembering distinct facts that were peculiar to each alleged incident of sexual misconduct. Indeed, the court in Winkle, supra, not only held that a specific unanimity instruction was not required in these circumstances, it concluded that such an instruction should not be given:

Since at trial no attempt was made to distinguish the acts[,] . . . the jury had no basis on which to distinguish between the acts about which [the victim] testified.

In a situation in which a very young child testifies about a series of similar molestations without identifying any specific dates, the unanimity instruction should not be given as it would be confusing for the jury to be given an instruction requiring them to agree on a specific act, when there is no specific act for them to agree upon. . . . Here, the jury’s verdict indicates that the jurors believed [the victim], not [the defendant]. [Id. at 830.]

29 MCL 750.520d; MSA 28.788(4).

30 Again, the child testified that, during all three incidents, she was unsure whether defendant actually penetrated her anus. Moreover, during closing argument, defense counsel focused on the fact that the complainant did not feel any pain during the three alleged incidents.

31 The fact that defendant sought to show inconsistency in the complainant’s testimony regarding the room in which the first incident occurred, or the operability of the door lock after the second incident, did not materially distinguish any of the separate acts. See, e.g., Winkle, supra.

Although it would be impossible to articulate all factual variations of the instant record in which the alternative acts would be materially distinct, a specific unanimity instruction would clearly be necessary if, in regard to only one of the alleged incidents, the complainant testified about the existence of significant pain or defendant offered an alibi witness to rebut the allegation. See also Schad, supra: "We would not permit ... an indictment charging that the defendant assaulted either x on Tuesday or y on Wednesday . . . .” 501 US 651 (Scalia, J., concurring). Likewise, were defendant here charged in a one-count information with anal penetration of x on Tuesday or anal penetration of y on Wednesday and the trial court refused to instruct the jury that it must unanimously agree on which of the two acts defendant committed, we would not hesitate to overturn defendant’s conviction to vindicate of his right to a unanimous verdict.

32 Because the complainant could not identify the specific dates of the three alleged incidents, the prosecutor was forced to "proceed[] under a theory that the defendant’s conduct was in the nature of a continuing offense.” Spigarolo, supra at 391. We note that defendant actually benefited from this prosecutorial dilemma; had the complainant been able to specify with greater particularity the dates of the three alleged penetrations, the prosecutor might have charged defendant with three counts of first-degree criminal sexual conduct.

33 Even if we were to conclude that the trial court erred in failing to give the requested specific unanimity instruction, reversal of the Court of Appeals decision would still be warranted. Because defendant was convicted of second-degree criminal sexual conduct, which does not require a showing of penetration, he was not prejudiced by failure to give the proffered instruction. Thus, any error that could be assigned to this omission did not result in a miscarriage of justice. See MCL 769.26; MSA 28.1096.

Moreover, because defendant did not object to the instructions given regarding second-degree criminal sexual conduct or request a specific unanimity instruction with respect to a particular act of sexual contact, he is not entitled to relief from conviction of this lesser included offense. "The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” MCL 768.29; MSA 28.1052. When a defendant fails to preserve for appellate review an alleged instructional error, "[rjelief will be granted . . . only in cases of manifest injustice.” People v Kelly, 423 Mich 261, 272; 378 NW2d 365 (1985). See also People v Grant, 445 Mich 535; 520 NW2d 123 (1994). In the case at bar, we find no manifest injustice in upholding defendant’s second-degree criminal sexual conduct conviction for the same reasons articulated in People v Van Dorsten, supra at 545:

The number or specific identification of acts . . . was not in dispute .... The defendant’s position was simply that there was no sexual assault committed. It was obvious to the participants in the trial that the verdict turned on whether the jury believed the testimony of the complainant ... or found reasonable doubt that any sexual assault occurred, as claimed by the defendant. ... In this context, the failure to give an instruction requiring unanimity on a particular act in no way impeded the defense or denied the defendant a fair trial.

34 Although we hold in this case that a specific unanimity instruction was not required, we caution that in most cases, the evidence will be materially distinct regarding one of the multiple acts allegedly committed by the defendant. See, e.g., Yarger, Jenness, and Pottruff, supra.