People v. McGill

346 N.W.2d 572, 131 Mich. App. 465

• Court: Michigan Court of Appeals
• Decided: January 17, 1984
• Docket: Docket 63207
• Status: Published

Opinion

Shepherd, J.

Defendant was convicted by a jury of criminal sexual conduct in the fourth degree, MCL 750.520e(l)(a); MSA 28.788(5)(l)(a). He then received a bench trial on the supplemental information charging him as a habitual offender, MCL 769.10; MSA 28.1082. Following his conviction on that charge, defendant was sentenced on March 5, 1982, to a term of from 24 to 36 months imprisonment. He appeals as of right.

Facts

The complainant, a 13-year-old ninth-grader who had twice cared for defendant’s children prior to July 18, 1981, testified at trial as follows.

Defendant’s girlfriend came to her house and asked her to babysit for defendant’s children during the evening of July 18, 1981. She and defendant’s girlfriend got into defendant’s car. Defendant told the complainant that they had to go to his cousin’s house to pick up the children, but instead he drove to Sterling State Park. Once in the parking lot at the park, defendant told his girlfriend to look for the children. When she had left, defendant told the complainant to get into the front seat so he would not have to turn around to talk to her.

After the complainant moved to the front seat, defendant began talking to her about modeling. He indicated to her that he was an agent of some sort and that he would fly her in his private plane to a one-hundred-thousand dollar home he had for her in Arizona. He told her that he would take her to Ann Arbor one weekend so his friend could take pictures of her so that she could become a model.

The defendant then began touching her in various places. Defendant twice put his hand on her leg and each time he complied when complainant told him to remove it. Defendant then put his hand inside the complainant’s underpants; when she told him to remove it, he told her he was checking to see if she had an appendectomy scar. He subsequently removed his hand upon her demand but began telling her how he had been in jail in Arizona. At that point, defendant put his hand up the back of her shirt. He then placed his hand on her breast underneath her underclothes. When the complainant told him to remove his hand, defendant did so; he then shook her hand and told her he was glad to be her agent.

The complainant testified that at this point she still thought that defendant was an agent of some type but that she was frightened. They were about 40 to 45 minutes from her home and she knew no one who lived in the Sterling State Park area. Defendant’s girlfriend eventually returned to the car after about one-half hour. Defendant then drove the complainant home where he paid her three dollars and allowed her to go into her house.

Defendant testified at trial that he never touched the complainant.

On appeal, defendant raises four issues, none of which requires reversal.

I

Defendant first argues that the prosecutor failed to file the supplemental information in a timely manner and defendant’s habitual offender conviction must therefore be vacated. Defendant’s argument is patently meritless.

The original information charging defendant with criminal sexual conduct in the fourth degree was filed in the circuit court on September 16, 1981. The supplemental information was filed on September 18, 1981, two days later, and the day on which defendant was arraigned. We find a two-day delay between the filing of informations to fall within the requirements for prompt filing of a supplemental information. See People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). Although People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), which defines "promptly” to mean generally not more than 14 days after a defendant’s arraignment in circuit court on the underlying felony, had not been decided at the time of defendant’s arraignment or trial, we find its logic persuasive. At any rate, we do not believe that the prosecutor was required to file the supplemental information simultaneously with the information on the most recent felony. See People v Martin, 100 Mich App 447; 298 NW2d 900 (1980); People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980). The two-day delay did not render the filing tardy.

II

The second issue raised by defendant is somewhat more substantial. Defendant argues that no evidence was presented at trial to show that defendant used force or coercion to effectuate the sexual contact complained of here. Since force or coercion is an element of criminal sexual conduct in the fourth degree, defendant argues that his conviction must be reversed.

The trial court instructed the jury on the element of force or coercion as follows:

"Further, that the defendant used force, this is the third element, that the defendant used force or coercion to commit the sexual act. The term force or coercion— the term force or coercion means the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences. It is sufficient force if the defendant overcame the complainant through actual application of physical force or physical violence. It is sufficient force if the defendant made the complainant submit by threatening to use force or violence on the complainant, and the complainant believed that the defendant had the present ability to carry out these threats.”

That instruction is in accordance with CJI 20:5:3, which defines use of force or coercion as "the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences”.

The statute governing criminal sexual conduct in the fourth degree reads in pertinent part:

"(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:

"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (iv).” MCL 750.520e(l)(a); MSA 28.788(5)(l)(a).

Section 520b(l)(f), MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), provides:

"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:

"(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

"(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.

"(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, 'to retaliate’ includes threats of physical punishment, kidnapping, or extortion.

"(iv) When the actor engages in the medical treatment or examination of the victim in a manner of for purposes which are medically recognized as unethical or unacceptable.” (Emphasis supplied.)

It is clear that the facts in this case do not indicate force or coercion as specifically described in the circumstances listed in § 520b(l)(f), subds (i)(iv). However, force or coercion is not specifically limited by statute to those examples. MCL 750.520e(l)(a). Therefore, if the facts in this case could reasonably be construed to indicate the presence of force or coercion, defendant’s argument on this issue would lack merit.

We conclude that, on the facts of this case, defendant’s actions were "sufficient to create a reasonable fear of dangerous consequences”, CJI 20:5:3, and, in light of the totality of the circumstances, were such that they could have been found by the jury to constitute coercion.

Little case law exists in Michigan defining the terms "force” or "coercion” in the context presented here. The only case offered by defendant, Moran v People, 25 Mich 356 (1872), is distinguishable on both its facts and law. The defendant there was charged with having raped a 16-year-old girl who had been left with him by her father for treatment of consumption. The jury was charged that, if it found that defendant’s representations were false and fraudulent, that the complaining witness believed them and therefore consented to the defendant’s solicitations, and that she would not otherwise have yielded, they should find defendant guilty of rape. On appeal, the Supreme Court reversed, noting that the jury instruction left out all idea of force as a necessary element of the crime charged. The jury was told, in effect, that the defendant might be found guilty of rape though he neither used nor threatened to use any force whatever in case of the complaining witness’s refusal. The Court stated:

"If the statute, or the definition of rape, did not contain the words 'by force’ or 'forcibly,’ doubtless a consent procured by such fraud as that referred to, might be treated as no consent; but the idea of force can not thus be left out and ignored, nor can such fraud be allowed to supply its place, though it would doubtless supply, and satisfy, all other terms of the definition.

"In fact, we think the terms of the statute in reference to force, are satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of great bodily harm, or danger to life or limb, which the prisoner has, for the purpose of overcoming her will, caused her to apprehend as the consequence of her refusal, and without which she would not have yielded.” Moran, supra, pp 364-366.

In the instant case, however, there was no consent or yielding to the touching by the complainant such as was induced by fraud in Moran. Further, the statute in question in the instant case does not require that there be actual force — it may also be satisfied by a finding of coercion or, according to the Criminal Jury Instructions and as intimated in Moran, even a finding of a reasonable fear of dangerous consequences. Finally, the specific means of making sexual contact in Moran, via medical treatment, is now defined as force or coercion by statute. MCL 750.520b(l)(f)(iv); MSA 28.788(2)(l)(f)(iv).

In the instant case, while defendant did not use actual violence or verbally threaten the complainant with violence, we believe that there was sufficient evidence of coercion to enable the jury to convict defendant of criminal sexual conduct in the fourth degree. While we agree with defendant that his promises of a house, trips, and a modeling career came closer to being fraud or trickery than force or coercion, defendant did not stop with promises. He repeatedly and intimately touched the complainant despite her continued requests and orders to defendant to remove his hands from her. The complainant was only 13 years old. Defendant was an older and presumably stronger man. Defendant took the complainant to a state park far from her home. Complainant knew no one who lived nearby and testified that she was frightened. Given the totality of these circumstances, it could certainly be inferred that a coercive atmosphere existed and that defendant knew, or should have known, that his actions were coercive to a child.

Furthermore, given the above facts, the jury could have concluded that the complainant possessed a reasonable fear of dangerous consequences. As has been noted, the complainant testified that she was afraid. We believe her fear to have been reasonable given the vulnerable position of a young girl taken to an isolated and distant location by an older and stronger adult male.

We do not hold here that the type of actual conduct described in the instant case will always satisfy the "force or coercion” element. Were the victim older or had the undesired touching occurred in a place from which the victim could easily leave or from which she could summon help, a fear of dangerous consequences might not be deemed reasonable and an atmosphere of coercion might not exist. Each case must be examined on its own facts to determine whether force or coercion is indeed present. As the Court of Appeals of Maryland said in State v Rusk, 289 Md 230, 246; 424 A2d 720 (1981):

"Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel [v State, 221 Md 464; 157 A2d 922 (1960)]; Dumer v State, 64 Wis 2d 590; 219 NW2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v Benavidez, 255 Cal App 2d 563; 63 Cal Rptr 357 (1967); State v Douglas, 256 La 572; 237 So 2d 382, death sentence vacated 408 US 937; 92 S Ct 2864; 33 L Ed 2d 756 (1970); State v Bouldin, 153 Mont 276; 456 P 2d 830 (1969); Blotkamp v State, 45 Md App 64; 411 A 2d 1068 (1980).”

Similarly, in discussing whether consent obtained through fear is a valid consent, it has been said:

" 'Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. The age of the prosecutrix is always important to be considered in such cases.’ ” State v Carter, 265 NC 626, 630; 144 SE2d 826 (1965), quoting 44 Am Jur, Rape, § 13, p 910.

Citing Carter, supra, the Court of Appeals of North Carolina stated that "the age of the woman is an important consideration in determining what situations would reasonably induce submission due to fear or coercion”. State v Ricks, 34 NC App 734, 735; 239 SE2d 602 (1977). While, like Carter, Ricks was a rape case and involved the question of whether consent had been obtained, we believe that the age of the victim is also an important consideration in determining which situations would inspire a reasonable fear of dangerous consequences or would be coercive to a particular victim. We therefore conclude that sufficient evidence existed from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, i.e., that force or coercion were present in the instant case.

Ill

Defendant next argues that his habitual offender conviction must be reversed because the information charged him with having been convicted of three prior felonies, MCL 769.12; MSA 28.1084, when defendant had in fact only been convicted of one prior felony and the appropriate habitual offender statute would have been MCL 769.10; MSA 28.1082. The proofs at trial showed, and the trial court found, that defendant had had only one prior felony conviction. Defendant was sentenced appropriately, according to the sentencing terms of MCL 769.10(l)(a); MSA 28.1082(l)(a), and was given a sentence the maximum of which was 1-1/2 times the maximum term possible for the underlying felony. It is clear from the record that, although the statute was incorrectly cited in the information, defendant was convicted on the proper charge.

The mere erroneous citation of a staute in an information does not mandate reversal, particularly in the instant case. See People v Hopper, 274 Mich 418, 421; 264 NW 849 (1936); People v Dayton, 18 Mich App 313, 316; 171 NW2d 57 (1969). Furthermore, since defendant failed to object to the error at trial, there is no issue for review on appeal. People v Hernandez, 80 Mich App 465, 468; 264 NW2d 343 (1978), lv den 406 Mich 938 (1979); People v Fuzi, 46 Mich App 204, 209-210; 208 NW2d 47 (1973). The defect could easily have been cured at trial had a timely objection been made. People v Willett, 110 Mich App 337, 343; 313 NW2d 117 (1981); People v Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980).

IV

Finally, defendant argues that fourth-degree criminal sexual conduct is not a felony for purposes of the habitual offender statute since it is designated a misdemeanor by its own terms. We disagree. Although the conduct punished in the statute is termed a misdemeanor, it is punishable by up to two years imprisonment. The Code of Criminal Procedure defines felony as:

"[A] violation of a penal law of this state for which the offender, upon conviction, may be punished by death or imprisonment for more than one year, or an offense expressly designated by law to be a felonly.” MCL 761.1(g); MSA 28.843(g). .

See People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979), wherein it was held that resisting a police officer, a misdemeanor under the Penal Code, was a felony for the purposes of charging the defendant as a second felony of fender. See, also, People v Reuther, 107 Mich App 349; 309 NW2d 256 (1981); People v Stiles, 99 Mich App 116; 297 NW2d 631 (1980), lv den 410 Mich 891 (1981); People v Davis, 89 Mich App 588, 595-597; 280 NW2d 604 (1979). We conclude, therefore, that the offense of criminal sexual conduct in the fourth degree is a felony for the purposes of the habitual offender statutes despite its express designation as a misdemeanor.

Conclusion

Defendant has failed to convince this Court that there exists any error sufficient to justify the reversal of his conviction.

Affirmed.