People v. Gast

465 N.W.2d 346, 186 Mich. App. 436

• Court: Michigan Court of Appeals
• Decided: December 5, 1990
• Docket: Docket No. 129648
• Status: Published

Opinions

ON REMAND

Before: Danhof, C.J., and Sullivan and McDonald, JJ.

Danhof, C.J.

On January 22, 1988, we issued an unpublished opinion per curiam affirming defendant’s jury convictions of three counts of second-degree criminal sexual conduct, MCL 750.520c(l) (a); MSA 28.788(3)(l)(a) (Docket No. 95879). We held that, since defendant had admitted hugging the complainant girls, but denied that he touched them for sexual purposes, he had put intent in issue and the trial court properly ruled that under MRE 404(b) the girls could testify in the separate trials. Judge McDonald dissented, believing that, since defendant simply denied altogether touching the girls in improper places, defendant had not put intent in issue. On May 30, 1990, our Supreme Court, in lieu of granting leave to appeal, remanded the matter to this Court for reconsideration in light of People v Engelman, 434 Mich 204; 453 NW2d 656 (1990), 434 Mich 915 (1990). We again affirm.

We find nothing in Engelman mandating a different result in our case. As we read the opinion, Engelman primarily concerned the second part of the test of People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), for admissibility of other acts evidence under MRE 404(b); whereas our decision focused on the third part of the Golochowicz test. The Engelman Court said that the prosecution had failed to establish that one of the MRE 404(b) exceptions, or any other permissible inference, had been established. The Court expressly stated that, since it was deciding the case on the basis of the second part of the Golochowicz test, it did not need to extensively discuss the remaining parts of the test. Engelman, supra, p 224.

The instant case, on the other hand, revolved solely around the third part of the Golochowicz test, which requires that the issue or fact to be proved by the proffered evidence be material or "in issue,” in that it was put in issue by the defense. The narrow dispute between our opinion and Judge McDonald’s dissent concerned whether defendant’s admission that he hugged and otherwise touched the girls put in issue the question of his intent. We decided that since defendant had not completely denied physical contact, but had claimed that his contact was innocent, this case was more akin to People v Vesnaugh, 128 Mich App 440; 340 NW2d 651 (1983), where the similar acts testimony was permitted, than it was to People v Major, 407 Mich 394; 285 NW2d 660 (1979), where the defendant had simply denied altogether any physical contact. We adhere to this viewpoint, and, as stated, we find nothing in Engelman which would affect our decision in this regard. Therefore, we once again affirm defendant’s conviction.

Affirmed.

Sullivan, J., concurred.