People v. Provience

302 N.W.2d 330, 103 Mich. App. 69, 1981 Mich. App. LEXIS 2676

• Court: Michigan Court of Appeals
• Decided: January 21, 1981
• Docket: Docket 46653
• Status: Published

Opinions

R. B. Burns, J.

Defendant was convicted by a jury of third-degree criminal sexual conduct, contrary to MCL 750.520d(l)(b); MSA 28.788(4)(l)(b). On appeal defendant raises two issues, neither of which merits remand.

The complaining witness testified at trial that when she first noticed defendant he was coming out of an adult bookstore as she was walking to her car after work. Defendant asked her for a ride to an appointment, and she assented after some initial hesitation. The complainant further testified that after driving and talking with defendant for a while he threatened and forced her to have sexual intercourse with him.

Marylou Zuiderveen, the investigating officer, testified that sometime after the alleged assault she was informed that a man had been asking for the complainant at her place of work and she was assigned to be on watch. Officer Zuiderveen testified that subsequently she did see a man who fitted the description given by the complainant go into the adult bookstore and then enter the complainant’s place of work. Upon receiving a dispatch that a man inside was looking for the complainant, officer Zuiderveen arrested defendant.

No objection was made to either statement of the witnesses that defendant had been in the adult bookstore.

It is well settled that a claim of error to the admission of evidence made for the first time on appeal, which was not raised in the trial court, will not be considered by the appellate court. People v Eroh, 47 Mich App 669, 675; 209 NW2d 832 (1973). The purpose of this rule is to encourage the correction of errors at the trial level, at a time the rights of the parties can be saved, and thus avoid the waste and delay of new trials which could have been prevented. See 1 Wigmore, Evidence (3d ed), § 18, pp 322-323. An exception to the above rule has been recognized where the party appealing can show that denial of review would result in manifest injustice. People v Farnsley, 94 Mich App 34, 36; 287 NW2d 361 (1979). No such showing has been made in this case.

The complainant’s statement that she first noticed defendant as he was walking out of the adult bookstore related a fact that established the initial location of the parties. It was part of the episode, the res gestae. See McCormick, Evidence (2d ed), § 185, p 434. Officer Zuiderveen’s statement that she saw defendant enter the adult bookstore prior to his entering the complainant’s place of work concerned an event relevant to her surveillance and to the ultimate arrest and was part of the res gestae.

As to defendant’s claim that any relevance of the statements is outweighed by their unfair prejudicial effect, we do not agree that knowledge that defendant frequented an adult bookstore would so likely induce a juror to conclude that he was predisposed to commit a forcible sexual assault as to require a finding of manifest injustice. Defendant did not deny his sexual interest or advances, but rather he only denied that he employed force or coercion. In addition, the testimony that the complainant agreed to give a ride to defendant after she had just seen him leave the adult bookstore was favorable to defendant’s case to the extent it was likely to cause suspicion of the complainant’s allegedly innocent state of mind. By allowing the testimony to stand without objection, defense counsel may have hoped that the testimony would have such an impact on the jury.

For the reasons stated above, we find no manifest injustice and conclude that defendant has failed to preserve this issue on appeal.

Defendant’s second claim is that the trial court erred by not instructing the jury that if the defendant reasonably believed that the complainant consented, he could not be convicted of third-degree criminal sexual conduct. This issue has not been preserved for appeal. Trial counsel never requested the specific instruction which appellate counsel now claims should have been given. People v Barker, 97 Mich App 253; 293 NW2d 787 (1980).

Affirmed.

D. F. Walsh, J., concurred.