People v. Garland

393 N.W.2d 896, 152 Mich. App. 301
CourtMichigan Court of Appeals
DecidedJune 3, 1986
DocketDocket 80901
StatusPublished
Cited by6 cases

This text of 393 N.W.2d 896 (People v. Garland) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Garland, 393 N.W.2d 896, 152 Mich. App. 301 (Mich. Ct. App. 1986).

Opinions

Per Curiam.

Defendant was convicted by a jury of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), and of absconding in criminal proceedings, MCL 750.199a; MSA 28.396(1). He was sentenced to concurrent prison terms of from ten to fifteen years and two to four years. Defendant appeals as of right.

Defendant was charged with sexually assaulting his seven-year-old daughter, Jaydeen, on January 7, 1982,'by touching her vaginal area. At trial it was established that in January, 1982, Jaydeen was attending school for the educable mentally impaired and that she functioned very low academically. She was twice determined prior to trial to be incompetent to testify. However, following a third pretrial hearing, the district court judge found her competent to testify at trial. At an in camera proceeding, the trial court likewise concluded that Jaydeen was able to understand the difference between truth and falsehood and qualified her as a witness.

Jaydeen testified that on January 7, 1982, she [305]*305and defendant took a bath together and then defendant put his finger in her vagina. On cross-examination, Jaydeen denied that she had been home alone with her father and both admitted and denied that defendant had touched her vagina. Prior to her testimony, Jaydeen’s school teacher and school principal testified as to Jaydeen’s statements made to them on the day following the incident.

The witnesses testified that on January 8, 1982, Jaydeen and a young boy were found exposing themselves underneath a cement turtle on the school playground. When the witnesses confronted the children, Jaydeen blurted out that she would not take the boy out to "play games” like she and her father did anymore. When questioned about the "games,” Jaydeen responded that she and her father would go up and down in a chair together, would take baths together, and lie in bed and look at pictures of naked women. When asked if her father touched her, Jaydeen responded yes and pointed to her vaginal area. Jaydeen told them that the "games” had occurred the preceeding evening when her mother and sisters were gone. Both witnesses testified that Jaydeen became progressively more excited and upset as the questioning continued. After the conversation, the principal called protective services and charges were eventually brought against defendant.

The testimony of Lynett Purdy, Jaydeen’s half sister and defendant’s stepdaughter, and the testimony of Sherry Bishop, defendant’s natural daughter, were admitted under MRE 404(b) to show defendant’s scheme, plan or system. Purdy was fourteen years old and Bishop was twenty-one at the time of trial. Both witnesses testified that, when they were young, defendant had engaged in what he called "games” with them. Purdy recalled [306]*306that she would sit naked in chairs with defendant until he ejaculated, they would shower together and lie in bed together and look at pictures of naked women. Bishop testified to similar episodes.

In his defense, defendant presented the testimony of Helen Garland, his present wife and Jaydeen’s stepmother, and Heidi and Susan Vincent, Helen’s daughters and defendant’s stepdaughters. They testified that on January 7, 1982, Jaydeen was not left home with defendant but that she had gone to K-mart with her stepmother and stepsister. When they returned, Helen Garland and defendant went to the movies while Susan Vincent gave Jaydeen a bath and put her to bed.

Defendant raises several issues on appeal, the first of which involves the admission of the testimony of the school teacher and principal relating to Jaydeen’s statements. The court admitted the statements under the excited utterance exception to the hearsay rule. MRE 803(2). In order for Jaydeen’s statement to be admissible under this exception, her statement must (1) have arisen out of a startling occurrence, (2) have been made before there had been any time to contrive or misrepresent, and (3) relate to the circumstances of the startling occurrence. People v Gee, 406 Mich 279; 278 NW2d 304 (1979). The determination of whether the statement is admissible as an excited utterance is within the trial court’s discretion. People v Lobaito, 133 Mich App 547; 351 NW2d 233 (1984).

While it is arguable that the startling event which provoked Jaydeen’s statement was the playground incident, we are not convinced that the sexual assault of the previous evening was not causally connected.

Although Jaydeen did not immediately report [307]*307the assault either that evening or early the following morning, this Court has previously found that an overnight delay or even a delay of several days does not negate application of the excited utterance exception if there was a plausible explanation for the delay. See People v Soles, 143 Mich App 433; 372 NW2d 588 (1985); People v Cobb, 108 Mich App 573; 310 NW2d 798 (1981); In the Matter of Meeboer, 134 Mich App 294; 350 NW2d 868 (1984). Here the victim was a seven-year-old child of limited mental ability. Furthermore, the defendant had apparently threatened his daughter not to tell anyone of the "games.” These circumstances make it unlikely that Jaydeen would have contrived or misrepresented the sexual matters and provide a plausible explanation for the delay. Meeboer, supra. We conclude that the trial court did not abuse its discretion in admitting the statement.

Defendant next claims that the trial court erred by refusing to exclude the similar-acts testimony of Lynett Purdy and Sherry Bishop. MRE 404(b) and MCL 768.27; MSA 28.1050 allow the admission of similar-acts testimony under limited circumstances. Whether or not to admit the testimony is within the trial court’s discretion. People v Alexander, 142 Mich App 231; 370 NW2d 8 (1985). People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982), set forth the requirements which must be met before such evidence may be introduced:

(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the [308]*308slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of the factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.

After applying the test to the facts at hand, we find no abuse of discretion by the trial judge in allowing the testimony to be presented to the jury.

The crux of defendant’s claim is that the testimony was not material to a determination of guilt and that it failed to show a common scheme. We disagree. Not only did the witnesses testify to defendant’s use of the term "games” but each witness also described remarkably similar conduct. Moreover, each testified that the episodes occurred when they were prepubescent. Accordingly, we believe that the prior acts were so similar that they established defendant’s scheme, plan or system in engaging in the misconduct. Since defendant put into issue his opportunity to commit the offense, the testimony was admissible to show his method or system of committing the acts.

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People v. Garland
393 N.W.2d 896 (Michigan Court of Appeals, 1986)

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393 N.W.2d 896, 152 Mich. App. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-garland-michctapp-1986.