People v. Oliphant

250 N.W.2d 443, 399 Mich. 472, 1976 Mich. LEXIS 226

• Court: Michigan Supreme Court
• Decided: December 31, 1976
• Docket: 55781, (Calendar No. 6)
• Status: Published

Opinions

Ryan, J.

Defendant, after one mistrial due to jury disagreement, was convicted on charges of forcible rape, MCLA 750.520; MSA 28.788, and gross indecency, MCLA 750.338b; MSA 28.570(2). After the convictions were affirmed¹ defendant was granted leave to appeal by this Court² so that we might consider the issues raised. Following a brief recitation of the facts, we will discuss the issues in the order in which they were briefed by the parties.

Complainant, a Michigan State University student, met defendant while window-shopping on June 1, 1971 and agreed to accompany him to a nearby bar where they could talk. The topics included race, racial prejudice and marijuana. Later she agreed to ride in his car to a place with a band where they might dance. Defendant drove complainant to one bar which was closed, a second where complainant was denied admission because of her age, and a third which did not have a band. During this time period defendant also made three stops at gas stations and one at a car wash. Complainant first indicated her desire to return to her dormitory as they drove away from the closed bar. Defendant, however, insisted on stopping at the other places. Throughout the evening the inside door handle on the passenger side of defendant’s car was missing and complainant could leave the car only by rolling down the window and opening the door from the outside.

At this point the testimony of complainant and defendant diverge. Complainant testified that defendant drove to an unfamiliar section of the city, instructing complainant not to "go for the door” and told her to sit on the console near him so they would look like boyfriend and girl friend. She testified to a change in his demeanor; that from being friendly, defendant suddenly became threatening and demanding. She testified: "He said if I didn’t do what he wanted * * * he had a gun or knife in the car and that he could take care of me with it.” Defendant parked the car in a secluded area and by means of further threats, forced complainant to remove her undergarments and engage in various sexual acts, including intercourse.

Complainant testified that while defendant said he had a weapon, she never saw one and that defendant did not strike her or tear her clothes. Complainant testified that after intercourse she was allowed to replace her clothing and was driven back to her dormitory. On the way, defendant told her that she shouldn’t prosecute him, that she could never prove rape, and that he had a tape recorder in the car. Though she was asked to sign a paper saying she would not prosecute, this never occurred. While she was getting out of the car, defendant again warned her not to prosecute and then said, "be sure and get the license plate of the car.” Upon returning to her dormitory room, the campus police were called and complainant was taken to the University health center where an examination revealed evidence of recent intercourse.

Defendant, testifying in his own behalf, admitted he had engaged in acts of fellatio and intercourse with the complainant, but stated she had consented. Defendant denied that he threatened complainant or forced her in any way. After dropping complainant off at her dormitory, defendant went to the East Lansing State Police station and stated that, after engaging in sex, he had told complainant that she had an unpleasant body odor, that she had become angry, and that he was apprehensive as to what she might do. Defendant was in the police station when the report of the alleged rape came in.

In attacking complainant’s claim that she did not consent to intercourse, the defense counsel elicited testimony which emphasized the fact that complainant was not forced to enter defendant’s car, that she did not attempt to flee from defendant as they drove from nightspot to nightspot, that she was not beaten nor her clothes torn, that no weapon was displayed, that she did not kick or bite defendant. The fact that defendant presented himself at the police station on the night in question, stating that he had had an argument with complainant and was apprehensive as to what she might do, was also argued to be inconsistent with rape.

In rebuttal, the people brought on three witnesses who testified that they had also been raped by defendant under circumstances in many respects similar to those in which complainant was allegedly raped. The substance of their testimony is discussed hereinafter.

I

The first question presented is whether the trial court committed reversible error in allowing into evidence the testimony concerning the three alleged prior rapes to prove the defendant’s scheme, plan or system in raping the complainant. The people offered the testimony of the three witnesses pursuant to MCLA 768.27; MSA 28.1050 which reads:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Past decisions of this Court have upheld the statute’s validity.³ Defendant challenges the applicability of the statute in his case where the only contested issue is consent. The people contend that the defendant had a sophisticated scheme, plan or system whereby, should his advances meet resistance, he would commit rape while orchestrating the circumstances so as to preclude his victims from proving their nonconsent.

A

First, we must determine whether the acts of rape testified to reveal a plan or scheme to arrange the circumstances surrounding the episodes in such a way as to make it appear that the victim consented. A brief summary of the testimony of the three witnesses follows.

Witness "A” testified that on the morning of December 24, 1970, she was walking to work. When approximately one mile from her destination, defendant stopped his car and offered her a ride. Because it was cold, "A” accepted the ride and there was friendly conversation about the weather. Upon reaching Eberhard’s food store parking lot, "A’s” destination, defendant insisted "A” accompany him on a short errand to get some marijuana. Though "A” said she didn’t have time because she had to go to work, defendant convinced her. The atmosphere was still friendly.

After driving for a short time and further conversation about marijuana, defendant stopped the car, reached across "A” and pulled off the inside door handle on the passenger side of the car. Defendant then crudely stated his intention to have intercourse with "A”. "A” testified that defendant told her not to do anything to make him angry and to do as he ordered or he would "hurt” her, "shoot” her, and "kill” her. "A” could not leave the auto after defendant had suddenly become threatening and demanding, because the door handle had been removed. He asked her if she had ever dated a black man and she told him yes.

"A” was ordered to lie on the floor in the back of the car and take off her slacks and underwear while defendant continued to drive. Defendant then parked the car, removed his pants, and moved into the back seat. He had intercourse with "A” and then told her to replace her clothing and get back into the front seat. During the entire episode "A” was not struck or beaten, nor did she ever see a weapon, though the threats of harm were repeated.

Defendant stated he would drive her back to Lansing to her original destination. On the way, while still in the countryside, the car apparently ran out of gas. Defendant began to walk to a farm house. When alone, "A” searched the glove compartment for a gun, found none, and left the car and ran to a road commission truck to get help. The men from the road commission took "A” to the state police who, in turn, took her to a hospital for examination. No complaint was ever filed.

Witness "B” testified that she was a student at Michigan State University. On February 1, 1971 she was hitchhiking on Grand River Avenue to meet a friend in Okemos and look for a job. Defendant and another male picked her up in defendant’s car and told her they would take her where she wanted to go. Conversation was friendly and touched the subjects of marijuana, defendant’s job, and white women dating black men. Defendant also told "B” that he could get her a job and he would take her to his boss’s house.

After stopping at a store, they arrived at a house in an area of Lansing unfamiliar to "B”. Once inside the house, "B” was told that it was not the boss’s house. Defendant abruptly and crudely stated his intentions. By means of threats, "B” was forced to dance in the nude. Defendant then made her lie on the sofa and had intercourse with her. During this time, defendant threatened to shoot "B” up with heroin so she would not know what she was doing, handcuff her, and referred to a shotgun in the closet. After the second man, who had originally been in the car with defendant, also had intercourse with "B”, she was given back her clothes and driven back to East Lansing.

"B” filed a complaint and the defendant was acquitted by a jury on the charge of rape on May 12, 1971.

Witness "C” testified that on February 5, 1971, while a student at Lansing Community College, she was hitchhiking in Lansing and was picked up by defendant. There was another male passenger in the car and "C” sat in the back seat. After some friendly conversation, defendant said he had to run a quick errand but, if "C” would ride along with him to a "chick’s” apartment, he would give her a ride the rest of the way to her home. Upon arriving at the house, defendant persuaded "C” to come in and meet the "chick.” Once the three had left the car and entered the apartment, it became apparent that there was no "chick” there. Defendant then told "C” that he had brought her there to have intercourse and that only if she stripped naked and danced would she be allowed to leave. He told her "[y]ou’ve got five minutes to take off your clothes and dance or it’s all over.”

"C” tried to leave and was struck on the forehead by defendant’s fist. "C” tried to kick defendant and there was a struggle. Defendant then threatened "C” with death and said he had killed others. The male passenger was called in to support defendant’s statement that he had killed others. Defendant said he liked picking up "good looking white chicks” and having intercourse with them. "C” testified she was afraid she would be killed and so she took off her clothes and danced as defendant had ordered. Soon thereafter defendant pushed "C” down on the sofa and had intercourse with her. Defendant later suggested "C” go to the police and offered to drive her there. He gave "C” his college identification card and asked her to remember his name and address. Defendant then took "C” to within two blocks of her home and dropped her off.

"C” filed a complaint and, on October 28, 1971, the defendant was acquitted on the charge of rape.

The people point out that all four alleged rapes occurred during a five-month period, and all four involved college-age women. All four incidents began with a public meeting and friendly conversation. In each case race was discussed, either in the context of interracial dating or racial prejudice. The conversations with all four women also touched on marijuana.

Witnesses "A”, "B” and "C” entered defendant’s car immediately, and complainant entered his car soon after their initial meeting. All four women got into defendant’s car voluntarily and rode with him for a time expecting to go to a particular place but a deviation was made from the expected route, upon one excuse or another not likely to arouse fear on the part of the women. All four were then driven to an area unfamiliar to them where the intercourse took place.

Complainant and "C” were riding in a car with a seemingly friendly man, engaged in light conversation when, upon finding themselves in an unfamiliar area, the man became threatening and demanding. Witnesses "A” and "B” went with a seemingly friendly man on an "errand” to an unfamiliar apartment, whereupon the man became threatening and demanding. All four were told to submit or they would be harmed with a weapon of some kind though no weapon was produced. All four testified that they submitted to defendant’s sudden and crudely spoken demands out of fear that they would be beaten and possibly killed if they didn’t. Only "C” attempted to physically fight back in the face of defendant’s threats. Aside from the short struggle with "C”, the defendant did not beat or rip the clothes of any of the women. Three were given a ride home, and witness "A” was being driven home when she escaped from the defendant’s car.

In all of the cases there were apparent opportunities for the women to flee from defendant. The women testified that when these chances occurred, they did not feel the need to flee because defendant was friendly. After the frightening change in defendant’s demeanor, the women were not allowed a chance to escape.

Defendant told witness "C” that she should go to the police and furnished her with his name and address and college identification card. Defendant told complainant that going to the police would be futile, since she couldn’t prove anything and he had a tape recorder in the car. He then told complainant to be sure and get his license number. Both women went to the police station alleging rape against a man they apparently knew. Knowledge of defendant’s name, address, college identification and car license numbers, along with other facts such as the lack of bruises and apparent opportunities to escape would tend to lessen the women’s credibility when they told their story of rape.

We agree with the trial court and the Court of Appeals that the testimony of "A”, "B”, and "C” goes beyond tending to show that defendant raped other young women. The many similarities in all four cases tend to show a plan or scheme to orchestrate the events surrounding the rape of complainant so that she could not show nonconsent and the defendant could thereby escape punishment. Defendant’s plan made it appear that an ordinary social encounter which culminated in voluntary sex had simply gone sour at the denouement due to his reference to complainant’s unpleasant body odor; a vain and bitter woman seeking revenge against an innocent man.

B

We must next determine whether defendant’s scheme, plan or system in doing the act was material and thus capable of being proved under MCLA 768.27; MSA 28.1050. On its face, the statute allows proof of other acts only when motive, intent, absence of mistake or accident, or the scheme, plan or system in doing the act are material. Here, nonconsent is the fact to be proved. The logical relevancy of evidence tending to show a plan or scheme to make it appear as if consent was given is plain. Materiality, however, is a narrower concept than relevancy.

"In the courtroom the terms relevancy and materiality are often used interchangeably, but materiality in its more precise meaning looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to prove a proposition which is not a matter in issue or probative of a matter in issue, the evidence is properly said to be immaterial. As to what is 'in issue’, that is, within the range of the litigated controversy, we look mainly to the pleadings, read in the light of the rules of pleading and controlled by the substantive law.” McCormick on Evidence (2d ed), § 185.

Under this definition evidence probative of a matter "in issue” is material. Evidence of a plan or scheme on the part of defendant to orchestrate events to make proof of nonconsent difficult is, of course, probative of the contested issue of nonconsent.

We note that under the statute it is not required that the evidence of similar acts directly tend to prove an essential element of the people’s case. This is evident from the fact that while "motive” is enumerated in the statute, motive is never an essential element to be proved in a criminal case. "Identity” which is always an essential element in a criminal prosecution is not mentioned in the statute but clearly may be proved by the use of similar acts evidence. People v Kelly, 386 Mich 330; 192 NW2d 494 (1971). Here the similar acts were offered to prove a proposition — the plan or scheme, which was probative of a matter in issue —nonconsent. The testimony is material within the meaning of the statute.⁴

Relevant and material evidence may still be excluded from a trial if the probative value is substantially outweighed by its unfairly prejudicial effect.⁵ In determining admissability the court must balance many factors including: the time necessary for presenting the evidence and the potential for delay; how directly it tends to prove the fact in support of which it is offered; whether it would be a needless presentation of cumulative evidence; how important or trivial the fact sought to be proved is; the potential for confusion of the issues or misleading the jury; and whether the fact sought to be proved can be proved in another way involving fewer harmful collateral effects.

The fact to be established, nonconsent, is crucial in a rape case. Rape is defined by the statute applicable to this case⁶ as intercourse with a woman by force and against her will. Proof of penetration, however slight, is sufficient. Often the more serious problem is proving nonconsent. It has sometimes been said that a showing of "resistance to the utmost” by the woman is necessary to convict. People v Geddes, 301 Mich 258; 3 NW2d 266 (1942). Absent a physical struggle resulting in bruises or lacerations, such resistance is often difficult to prove. It is now well settled in this state, however, that failure to physically resist to the utmost is excused if the complainant’s will was overcome by fear of the defendant. People v Myers, 306 Mich 100; 10 NW2d 323 (1943); Strang v People, 24 Mich 1 (1871); People v Palmer, 47 Mich App 512; 209 NW2d 710 (1973); People v Dockery, 20 Mich App 201; 173 NW2d 726 (1969).

In the case at bar the complainant and defendant are in substantial agreement on what happened prior to defendant’s alleged change in demeanor and his threats. On the key issue of consent there is directly contradictory testimony; thus the trier of fact must look to the attendant circumstances and the parties’ behavior prior and subsequent to the act of intercourse. It then becomes material to know whether defendant orchestrated those circumstances to give the appearance of consent and to make proof of nonconsent difficult. Relations at one moment casual and friendly could, in the next, turn ugly and threatening, and an act of intercourse forced upon an unwilling woman would be no less rape because the behavior of the defendant had for the greater portion of the time spent together been friendly and nonthreatening.

Certainly, the fact that an individual commits a rape at one time has no bearing on whether another woman consented to intercourse at a later time. Lovely v United States, 169 F2d 386 (CA 4, 1948). Here, however, the people did not offer the prior acts to prove prior rapes, or that the defendant is a bad man with criminal propensities. The people offered the prior acts to show the scheme, plan or system employed by the defendant in raping the complainant in a manner and under circumstances which gave the appearance of consent should he meet with resistance.

It is true that even if a plan to orchestrate events to make it appear that the woman consented is shown, this is not conclusive proof that the woman did not consent.⁷ Evidence of such a plan, however, along with evidence of the other circumstances surrounding the intercourse, is both relevant and material to the issue of consent and therefore properly admissible under MCLA 768.27; MSA 28.1050.

This, statute was recently interpreted by this Court in People v Kelly, supra, where we held the trial court did not err in admitting evidence of prior and subsequent acts of defendant which tended to show a scheme, plan or system, even where such acts also tended to prove prior crimes by the defendant.

"In the instant case, the defendant allegedly entered the victim’s motel room, forced her at gunpoint to put a pillow case over her head, and then raped her twice. The rapist in this case wore no clothes while perpetrating the crime. The defendant then allegedly fled with all of the victim’s cash and her tape recorder.

"The testimony of Miss Coleman reveals a strikingly similar crime. Again, the defendant allegedly entered Miss Coleman’s motel room, forced her at gunpoint to put a pillow case over her head, and then raped her three times. The rapist wore no clothes during the rape. The defendant then allegedly fled with cash, a watch, and a check. Clearly this subsequent act of the defendant tends to show a scheme, plan or system on his part in performing these acts.

"The defendant was also forced to testify on cross-examination about his altercation in a motel room with a lady and her boyfriend. While there was no rape involved in that incident, the facts are sufficient to tend to show a common scheme, plan or system on the part of the defendant within the latitude of cross-examination.” 386 Mich at 334-335.

Kelly involved robbery (a specific intent crime) as well as rape, and the evidence of other similar acts tended to show a scheme, plan or system material to the issues of intent and identity. In the case at bar, prior similar acts show a scheme, plan or system material to the issue of consent. The acts offered here are at least equally "strikingly similar” as those in Kelly. Other jurisdictions have reached results similar to our application of MCLA 768.27; MSA 28.1050 in Kelly and in this case, either under a similar statute or the common law.⁸

The trial judge in this case recognized that the statute is cast in permissive language and undertook to balance probative value against possible prejudice to the defendant. There was extensive argument on this point by the parties out of hearing of the jury. After study, the judge determined that the jury ought to be able to hear the testimony of the three witnesses, properly limited by the exclusion of certain matters which the judge concluded were too inflammatory and of too little probative value. Prior to each witness’s testimony and in his jury charge, the judge instructed the jury as to the limited purpose for which the evidence was being offered and for which they were to consider it.⁹

Concluding, as we do, that the testimony was "material” in compliance with the statute, we decline at this stage to upset the trial court’s judgment as to the balance of probative value and prejudicial effect.¹⁰ The facts summarized above exhibit such similarities as to be probative of a plan or scheme. The dearth of evidence on consent, aside from the contradictory testimony of complainant and defendant, make evidence as to the circumstances of the incident particularly important in this case. We are not unmindful of the danger of this type of evidence prejudicing the jury against the defendant. On these facts, however, there is no basis to conclude that the trial judge, who addressed the issue with great care, abused his discretion in concluding that the probative value was not substantially outweighed by the potentially unfair prejudicial effect.

The fact that the instant jury returned a verdict of guilty, while a prior jury which had not been presented the evidence of plan or scheme was unable to reach a verdict, does not prove that the evidence was unduly prejudicial, but suggests no more than that the instant jury may have found it probative.

II

The second issue presented by defendant stems from the fact that the defendant had already been acquitted of the rapes testified to by witnesses "B” and "C”. Defendant contends that allowing testimony on these two alleged rapes constituted reversible error as a violation of the doctrine of collateral estoppel as embodied in defendant’s Fifth Amendment right against double jeopardy.

The keystone of defendant’s argument is Ashe v Swenson, 397 US 436; 25 L Ed 2d 469; 90 S Ct 1189 (1970). Ashe involved a conviction for the robbery of a participant in a card game after the defendant had previously been acquitted of robbing another of the players in the same game. The Supreme Court held that the first jury had determined that the state had failed to prove defendant had been one of the robbers in the first trial and was, therefore, precluded from trying to prove the same fact in the second trial which was identical in all aspects except for the named victim. Ashe involved a single criminal episode and the relitigation of the same fact after it had been decided in defendant’s favor in the first trial.

In the case at bar, the jury had to decide whether defendant raped complainant on June 1, 1971. The two other incidents testified to which resulted in acquittals were not part of the same criminal episode,¹¹ nor did they turn on the same crucial fact. An issue of fact in each of the prior trials was whether "B” and "C” consented to the intercourse or submitted as the result of the threat of force. These issues are distinct from the question of whether complainant consented to intercourse or submitted as the result of the threat of force. Assuming the only rational basis for the prior acquittals was a consent determination favorable to defendant,¹² this could in no way bar the people from proving nonconsent on the part of complainant.

Defendant would have us extend Ashe to bar the use of probative evidence simply because it had been offered once before in a trial dealing with an entirely separate event which resulted in acquittal. Defendant cites Wingate v Wainwright, 464 F2d 209 (CA 5, 1972), and Blackburn v Cross, 510 F2d 1014 (CA 5, 1975), in support of his position. But those decisions of a foreign Federal Circuit Court of Appeals involved an expansion of the Ashe holding¹³ — an expansion this Court is not bound to adopt. The Wingate court stated:

"Although both Mr. Justice Brennan in his concurrence and Chief Justice Burger in his dissent discuss the 'same transaction’ test as a standard for double jeopardy we do not believe that the holding in Ashe rests on that foundation. Instead the Court speaks in terms of prohibiting a relitigation in any future lawsuit between the same parties of issues actually determined at a previous trial.” 464 F2d at 213. (Emphasis in original.)

Although the majority opinion in Ashe does not discuss the meaning of the expression "same transaction”, nevertheless the facts of Ashe presented a "same transaction” issue. We read Ashe in the context of the facts on which it was based as holding that an issue of ultimate fact litigated in favor of defendant in one trial cannot be relitigated by the government in a subsequent trial for an offense arising out of the same transaction.¹⁴

Collateral estoppel as embodied in the Fifth Amendment does not preclude the receipt of testimony material to establishing a crime simply because it was offered and received in a prior trial on a totally distinct matter where defendant was acquitted. As the court below noted, Ashe does not vitiate the above principle as expressed as the law of this state in People v Johnston, 328 Mich 213; 43 NW2d 334 (1950).¹⁵ People v Oliphant, 52 Mich App 242; 217 NW2d 141 (1974).

The evidence here was not offered in an effort to convict defendant of the rápe of witness "B” or "C”, but rather to show thé scheme, plan or system employed by the defendant. As noted above,¹⁶ proof of such a scheme, plan or system does not conclusively negative consent. The. integrity of defendant’s acquittals in théke cases is not threatened. Reference will be had to the words of the Constitution, "nor shall any pérson be subject for the same offense to be twice put in jeopardy of life or limb”¹⁷ (emphasis added). Ashe held that collateral estoppel was incorporated in the Fifth Amendment’s guarantee against double jeopardy. Double jeopardy arises when there is relitigation of the same facts from the same transaction. There is no double jeopardy in the instant case.

In the case at bar the people were not using the prior cases as dry runs to sharpen their case. The testimony was not intended to prejudice the defendant in the eyes of the jury, and there were specific instructions on the purposes for which the testimony was offered and its permissible uses. We hold that the testimony of the two witnesses was not inadmissible under the doctrine of collateral estoppel as embodied in the Fifth Amendment double jeopardy provisions.

III

Defendant’s third argument is that the trial court’s failure to conduct a formal competency hearing as required by MCLA 767.27a; MSA 28.966(11) was reversible error and that the nunc pro tunc competency hearing ordered by the Court of Appeals¹⁸ is not permissible under the statute and is a denial of defendant’s constitutional rights.

The case at bar is controlled by our decision in People v Lucas, 393 Mich 522; 227 NW2d 763 (1975), which involved similar facts. Here defendant was remanded for an evidentiary hearing at the trial court level. After the submission of evidence, the court found defendant had been competent to stand trial at the time of trial. Following Lucas, we find no reversible error on this point.

IV

Defendant next contends that the trial court’s denial of his challenge of the jury array deprived him of his right to an impartial jury drawn from a fair cross section of the community. This claim is based on the fact that no persons between the ages of 18 and 21 appeared on the array. Defendant contends that since the Age of Majority Act, MCLA 722.52; MSA 25.244(52), was effective prior to his trial, and that many 18- to 21-year-olds had registered to vote and were, therefore, eligible for jury service under MCLA 600.1306; MSA 27A.1306, the fact that no 18- to 21-year-olds were available to be picked for the jury which tried his case was constitutionally improper.

We note that defendant first raised this challenge on the first day of his second trial when the basis for the objection had been apparent for some time. Thus, the objection, exhaustively discussed and denied on the merits by the trial court, ought to have been rejected as not timely under MCLA 600.1354; MSA 27A.1354. We decline to disturb the jury verdict on this point. MCLA 600.1354; MSA 27A.1354.

V

Defendant’s final contention is that, because he was retried after one jury had failed to agree upon a verdict, he was twice placed in jeopardy in violation of his constitutional rights. This objection was not raised in the trial court, the Court of Appeals, or in the application for leave to appeal. While this Court does have the power to review error which has not been properly preserved, such power is only to be exercised in compelling circumstances to avert a miscarriage of justice. People v Farmer, 380 Mich 198; 156 NW2d 504 (1968). There is nothing to justify the exercise of this power where the record in this case reveals facts clearly within the authority of United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), and People v Duncan, 373 Mich 650; 130 NW2d 385 (1964). Accordingly we decline to consider this issue as not properly presented.

Affirmed.

Williams, Coleman, Fitzgerald, and Lindemer, JJ., concurred with Ryan, J.

Kavanagh, C. J.

(for reversal). Admitting the testimony of the other asserted "victims” of defendant was reversible error.

The only matter in issue in this case was whether or not the prosecutrix consented to the admitted sexual intercourse with the defendant.

The majority opinion finds that evidence of defendant’s past sexual conduct is "material to know whether defendant orchestrated those circumstances to give the appearance of consent and to make proof of nonconsent difficult”.

This misses the point.

The issue is not whether the appearance of consent was created, but whether in fact consent was given. Evidence of the defendant’s prior alleged rapes of other women at other times could never be material to the issue of this complainant’s consent.

People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), relied upon heavily by the majority, will not support the theory for which it is cited. The effect of Kelly, where the issue was identity, was to hold that scheme, plan or modus operandi could be material to proof of that issue. Scheme, plan, motive, modus operandi, etc. of defendant’s' alleged prior rapes can never be material to the question of whether or not consent was given.

In a similar circumstance, the Supreme Court of Rhode Island in State v Beaulieu, — RI —; 359 A2d 689, 692 (1976), appropriately held that

"under the present circúmstances, the suspect testimony should have been omitted from the record. We have already stated that, pertaining to the charge of rape, the solitary issue herein is whether prosecutrix consented. The defendant admits to having performed the act as described and, thus, questions of guilty knowledge or intent are rendered irrelevant. As the premise was framed by another court, '[t]he fact that one woman was raped * * * has no tendency to prove that another woman did not consent.’ Lovely v United States, 169 F2d 386, 390 (CA 4, 1948).”

Three women testified at this trial that defendant had raped them in the past.

In the case of one of these witnesses, no charges were ever filed. In the other two cases, the defendant was tried and acquitted of rape.

It is anomalous that these witnesses should be permitted to testify that defendant did rape them, when a jury had determined that he did not.

As the United States Court of Appeals recently observed in Wingate v Wainwright, 464 F2d 209, 215 (CA 5, 1972):

"It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime”.

The trial judge instructed the jury that "You and you alone are the sole judges of the credibility of this testimony by these witnesses * * *

That is not the case. The juries that acquitted defendant of rape in the previous cases were "the sole judges of the credibility of * * * these witnesses”.

"[T]he double jeopardy clause, which includes the doctrine of collateral estoppel under Ashe1 prohibits the state from relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.” Blackburn v Cross, 510 F2d 1014, 1017 (CA 5, 1975).² Defendant was denied a fair trial. I would reverse.

Levin, J., concurred with Kavanagh, C. J.

1 52 Mich App 242; 217 NW2d 141 (1974).

2 393 Mich 780 (1974).

3 See People v Kelly, 386 Mich 330, 334; 192 NW2d 494, 498 (1971), and cases cited therein.

4 The testimony of the four young women also included facts which tended to show a pattern in the actual sexual contact between defendant and the women. This evidence was irrelevant and immaterial to establishing a scheme, plan or system to orchestrate events so as to indicate consent. Admission of this testimony was not reversible error, however, because it was not inflammatory or unduly prejudicial. The testimony merely reflected "one man’s rather commonplace style of engaging in sex”. Defendant’s brief at p 27.

5 Jones on Evidence (6th ed), § 4:6, p 392. See also FR Ev, 403 (effective July 1, 1975), and 2 Wigmore, Evidence (3d ed), § 300 et seq., and 6 Wigmore, Evidence (Chadbourn rev), § 1904.

6 MCLA 750.520; MSA 28.788 was repealed by 1974 PA 266, § 3, effective November 1, 1974. Section 2 of 1974 PA 266 provides:

"All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or begun before the effective date of this amendatory act.”

The incident on which this action is based occurred on June 1, 1971 and the information was filed September 17, 1971. For the current provisions dealing with criminal sexual conduct, see MCLA 750.520a et seq.; MSA 28.788(1) et seq.

7 "[H]e in a few minutes ravished this fair creature, or at least would have ravished her, if she had not, by a timely compliance, prevented him.” Fielding, Jonathan Wild, Book III, Ch 7, quoted in McDonald v Wainwright, 493 F2d 204, 206 (CA 5, 1974).

8 State v Downing, 109 Ariz 456; 511 P2d 638 (1973). State v Finley, 85 Ariz 327; 338 P2d 790 (1959), which noted the fact that in each alleged rape the defendant went through a personality change from a "normal” to a "frightening” demeanor. Dean v State, 277 So 2d 13 (Fla, 1973). Williams v State, 110 So 2d 654 (Fla, 1959). State v Gonzales, 217 Kan 159; 535 P2d 988 (1975). State v Hampton, 215 Kan 907; 529 P2d 127 (1974). See also cases complied in 77 ALR2d 841.

9 Before the jury heard the testimony of witnesses "A”, "B”, and "C”, the court instructed the jury as follows:

"The prosecution is going to call some additional witnesses.

"You and you alone as the trier of facts will evaluate the testimony you are about to hear. However, it is the court’s understanding that the testimony of these witnesses may involve other acts on the part of the defendant.

“Evidence of alleged prior similar acts by the defendant may be relevant and material in showing the defendant’s motive or intent or his alleged scheme, plan or system in doing the alleged act in question. However, this evidence of other alleged offenses or acts on the part of the defendant is not admissible at this trial to show that the defendant is more likely to have committed the act charged in this case, or to show that the defendant is guilty of other crimes of rape, or to show the criminal character of the accused, but rather this testimony will be admitted solely as that evidence might bear upon the issue of the defendant’s motive, or intent, or his alleged scheme, .plan or system in doing the alleged act in question here, that is, the alleged rape of [complainant] on June 1, 1971.

"You and you alone are the sole judges of the credibility of this testimony by these witnesses, and you may in turn consider this testimony when you evaluate the testimony of [complainant] and Mr. Oliphant with regard to which testimony you will believe and how much weight and credit you will give it.

“However, again the fact that the defendant had relations with any of these other young ladies does not necessarily make the defendant guilty of rape in this matter, but rather it is testimony that you may properly consider in determining the credibility of the witnesses.”

The portion of the jury charge dealing with the similar acts testimony was substantially the same as the above quoted cautionary instruction with the addition of the following two paragraphs:

"I would also advise you that just because you find that there were some common similarities between incidents related here does not in and of itself mean that the defendant raped [complainant]. Normal, every day, common acts should not in and of themselves be considered part of any common scheme or plan.

“In order to consider the testimony of ["A”], of ["B”], and of ["C”], you must find that there was in fact a common scheme, plan or system in order that that system be material in this case and in order for that system to bear upon the issues in this case as I have and will define them.”

10 "The separate and distinct acts to be admissible must have a reasonably close relation in scheme and pattern and in time to the act charged in order to be admissible under the common plan or scheme exception. The determination, however, of whether independent criminal acts are so closely connected with the crime charged as to be admissible is in the first instance a matter resting largely within the discretion of the trial court, and this court will not reverse unless there is a clear abuse of discretion. Whether evidence which is otherwise admissible should be excluded for remoteness also rests largely in the discretion of the trial court.” State v DePauw, 246 Minn 91, 95-96; 74 NW2d 297, 300 (1955).

11 "B” was allegedly raped on February 1, 1971 and "C” was allegedly raped on February 5, 1971, while complainant was raped on June 1, 1971.

12 In the prior trials for the rape of "B” and "C”, defendant admitted he had intercourse but contended that it was consensual. In the case at bar, the people signed the following stipulation: STIPULATION IN SUPPLEMENT OF THE RECORD

It is hereby agreed and stipulated by the parties that the record in this case be supplemented with the following information:

That in Ingham County Circuit Court case Number 22543, Charles Oliphant, defendant therein, was acquitted by a jury of the charge of rape MCLA 750.520; [MSA 28.788] on May 12, 1971; the complainant being [B].

That in Ingham County Circuit Court case Number 22741, Charles Oliphant, the defendant therein, was acquitted by a jury of the rape MCLA 750.520; [MSA 28.788] on October 28, 1971; the complainant being [C].

In each of the above cases Charles Oliphant judicially admitted that sexual intercourse took place between he [sic] and the complainant; but asserted that such act occurred voluntarily with the complainant’s consent.

In each of the above cases the complainant claimed that the sexual intercourse with Charles Oliphant occurred as the result of the threat of force.

That in each of the above cases the complainants stated that they were over the age of 16 and Charles Oliphant did not contest such claim.

An issue of fact in each case for the jury to resolve was whether or not the sexual intercourse was voluntary or the result of the threat of force.

The foregoing stipulation is approved as to form and content.

13 "In Wingate v Wainwright, 464 F2d 209 (CA5, 1972) this Circuit signiñcantly expanded the Ashe holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the robbery of a small store. At his trial, the state introduced evidence tending to show that Wingate had committed four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing remarks there was heavy reliance by the prosecutor on the evidence of additional robberies.

"This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of which depends upon a successful relitigation of a fact issue which had previously been settled adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. Hence, there is no diiference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.” Blackburn v Cross, 510 F2d at 1017 (emphasis added).

14 This Court has held that the concept of double jeopardy does include the "same transaction” test. People v White, 390 Mich 245; 212 NW2d 222 (1973). However, this does not require the adoption of the Wingate-Blackburn interpretation of Ashe. Offering evidence of a prior crime, for which defendant has been acquitted, to a jury embarked on a distinct inquiry, as here, does not involve asking the second jury to convict defendant for the prior crime. It does not involve the second jury contradicting the first jury, since the first jury did not find that defendant did not commit the crime, only that the people had not proved that he had beyond a reasonable doubt.

15 "The general rule on the subject is stated in 22 CJS, p 1118, in the following language:

" 'Similarly, evidence tending to show the commission of other offenses is admissible if it tends to show motive, system, method, or course of conduct, a plan or scheme to commit a series of crimes including the one on trial, or the intimate and apparently confidential relations between the informer and accused. On the other hand, evidence of other offenses which does not tend to prove the bribery charge should be excluded.

" 'The fact that accused was tried and acquitted of the other offense does not bar the introduction of evidence thereof in a prosecution for bribery where such evidence shows the general plan or system of the bribe, or illustrates accused’s acts in the transaction on trial, or throws light on the later evidence.’

"In the instant case it is suggested that the doctrine of res judicata should be applied to preclude the introduction of testimony offered and received in the prosecution for conspiracy. The language of the second paragraph of the above quotation from CJS is directly in point on this issue. Defendant is not on trial for the offense charged against him in the prior case. The question presently at issue is whether, as charged by the prosecution, he accepted a bribe in violation of the statute on which the information is based. Testimony tending legitimately to establish such offense, or some element thereof, may not be excluded solely on the ground that it was offered and received in the prior case as bearing on defendant’s guilt of the offense there charged.” People v Johnston, 328 Mich at 226-227.

16 See text accompanying fn 7, supra.

17 US Const, Am V.

18 The Court of Appeals on April 12, 1973 entered an order in part as follows:

"It is further ordered that the motion to remand be, and the same is hereby, granted. The cause is remanded to the Circuit Court for the County of Ingham for the sole purpose of making a record of all facts and circumstances surrounding the commitment of Charles E. Oliphant to the Forensic Center for Psychiatric Evaluation and the subsequent proceedings taken by the court thereon. It is suggested that the hearing for that purpose be held expeditiously and that the issue raised by the motion for peremptory reversal be treated as an issue on appeal to be briefed by both parties and considered by the court when the case is submitted.”

1 Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970).

2 See also, People v Gray, 393 Mich 1, 3; 222 NW2d 515 (1974).

1 MCLA 750.520; MSA 28.788.

2 MCLA 750.338b; MSA 28.570(2).