People v. Ferguson

206 N.W.2d 812, 45 Mich. App. 697, 1973 Mich. App. LEXIS 1154

• Court: Michigan Court of Appeals
• Decided: March 28, 1973
• Docket: Docket 13564
• Status: Published

Opinions

Lesinski, C. J.

The defendant was charged and convicted of statutory rape, MCLA 750.520; MSA 28.788, and gross indecency, MCLA 750.338b; MSA 28.570(2). He appeals as of right.

Two significant issues are raised on this appeal. On direct examination the complainant testified that she had been assaulted on other occasions by the accused and others. During cross-examination counsel for the defendant also alluded to prior assaults by the defendant and others on the complainant. i

Defendant now contends that references to prior sexual assaults constitute impermissible evidence of prior offenses which the trial court should have either excluded altogether or cured immediately by instruction. Evidence of prior acts is admissible by statute, MCLA 768.27; MSA 28.1050, only to show motive, intent, scheme, or plan on the part of the defendant.

Defendant claims that our decision in People v Askar, 8 Mich App 95 (1967), is applicable here. There it was held that because of the possibility of prejudice in sex offenses, when evidence of prior acts is introduced the trial court must immediately instruct the jury that such evidence is admitted only for a limited purpose. Askar has been criticized by the Michigan Supreme Court in People v Kelly, 386 Mich 330, 336 (1971). The Court said: "the language concerning the necessity of immediate instructions is dicta”. All that is actually necessary, in the absence of a specific request at that time or a showing of a miscarriage of justice, is an instruction when the court makes its final instruction to the jury.

No limiting instruction was requested in the case before us. None was given in the final instructions by the court. This was error. People v Kelly, supra.

Furthermore, in his instruction concerning the gross indecency count, the judge charged the jury:

"Now, the second count in this information relates to the alleged crime of gross indecency, and the term gross indecency is used in a rather limited sense. It relates only to what is sometimes called oral perversion — instances in which there are sexual relations in which the mouth of one participant and the sexual organs of the other are involved.”

In People v McCaleb, 37 Mich App 502 (1972), we reversed a conviction for gross indecency because the trial judge charged the jury that fellatio constituted the charged offense.

Here the Court instructed the jury that fellatio constituted gross indecency. Also he failed to charge them that an essential element of the crime of gross indecency was whether the defendant’s conduct measured by their own common sense was indecent and improper. This too was error. People v McCaleb, supra.

Additionally, defendant asserts reversible error in that the trial court excluded from the jury’s consideration those lesser offenses included within the charge of carnal knowledge of a female minor, the so-called "Lemmons” or affirmative exclusion of lesser included offenses issue. See People v Lemmons, 384 Mich 1 (1970). In view of our holding it is unnecessary for us to treat this issue.

Reversed and remanded.

Fitzgerald, J., concurred.