Michigan Court of AppealsJun 9, 1995
212 Mich. App. 121 (Mich. Ct. App. 1995)
212 Mich. App. 121536 N.W.2d 789

Docket No. 167385.

Submitted March 8, 1995, at Lansing.

Decided June 9, 1995; approved for publication July 13, 1995, at 9:05 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

Kitchen Stringer, J.D. (by Thomas L. Stringer), for the defendant.


Defendant Douglas Kirk Armstrong was convicted by a jury of one count of second-degree criminal sexual conduct, MCL 750.520c(1); MSA 28.788(3)(1), and sentenced to three to fifteen years' imprisonment. Defendant appeals as of right. We affirm.

In 1991, the fifteen-year-old female victim, defendant's stepsister, spent the night at defendant's home. During the night, the victim was awakened when she was sexually assaulted by defendant.

Defendant's father married the victim's mother.

We are first called on to construe the term affinity as used in the second-degree criminal sexual conduct statute. The information charged defendant, and the jury was instructed, with the following relevant provisions of that statute:

(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exist:

* * *

(b) That other person is at least 13 but less than 16 years of age and any of the following:

* * *

(ii) The actor is related by blood or affinity to the fourth degree to the victim.

* * *

(h) That other person is mentally incapable, mentally disabled, mentally incapacitated, or physically helpless,[] and any of the following:

"Physically helpless" means in part that a person is asleep. MCL 750.520a(i); MSA 28.788(1)(i).

(i) The actor is related to the victim by blood or affinity to the fourth degree. [MCL 750.520c(1)(b)(ii) and (h)(i); MSA 28.788(3)(1)(b)(ii) and (h)(i).]

Where a statute is clear and unambiguous, judicial construction or interpretation is precluded. People v Jones, 190 Mich. App. 509, 512; 476 N.W.2d 646 (1991). However, if reasonable minds could differ with regard to the meaning of a statute, then judicial construction is appropriate. Michigan ex rel Oakland Co Prosecutor v Dep't of Corrections, 199 Mich. App. 681, 689; 503 N.W.2d 465 (1993). In this case, the statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., does not define the term "affinity." Defendant argues that he could not have committed the offense of second-degree criminal sexual conduct because he was not related by affinity to the victim where they were only stepbrother and stepsister. The prosecutor argues that the Legislature intended that the term "affinity" be construed in accordance with its common and approved definition, which includes all relationships by marriage. Thus, we believe judicial construction of the term "affinity" is appropriate in this case.

When statutory construction is necessary, this Court must "determine and give effect to the intention of the Legislature." Jones, supra at 513. "`[W]ords and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject' matter as that with which they were associated at common law." People v Reeves, 448 Mich. 1, 8; 528 N.W.2d 160 (1995) (quoting Pulver v Dundee Cement Co, 445 Mich. 68, 75; 515 N.W.2d 728).

Defendant relies on Bliss v Caille Bros Co, 149 Mich. 601; 113 N.W. 317 (1907). In Bliss, the statute at issue disqualified "a judge from sitting in a case in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties." Id. at 607. Our Supreme Court stated:

An examination of authorities has led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband. [ Id. at 608. See also Black's Law Dictionary (6th ed), p 59.]

This Court has applied the Bliss definition of affinity to the criminal sexual conduct statutes. In People v Denmark, 74 Mich. App. 402, 406; 254 N.W.2d 61 (1977), the victim, who was the thirteen-year-old sister of the defendant's wife, alleged that she had been sexually assaulted by the defendant. The defendant was charged with, and convicted of, first-degree criminal sexual conduct pursuant to MCL 750.520b(1)(b); MSA 28.788(2)(1)(b), which at that time provided in relevant part:

(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

* * *

(b) The other person is at least 13 but less than 16 years of age and . . . the actor is related to the victim by blood or affinity to the fourth degree.

On appeal, the defendant argued that the first-degree criminal sexual conduct statute was unconstitutionally vague because the term "affinity" was undefined. Id. at 408. This Court held that the statute was not unconstitutionally vague. Id. at 409. This Court quoted the Bliss definition for the purpose of establishing that the term "affinity" had an accepted meaning. Id. at 408.

However, the term "affinity" is not capable of precise definition. In re Estate of Bordeaux, 37 Wn.2d 561, 564; 225 P.2d 433 (1950). Rather, at common law, whether someone was related to another by affinity depended upon the legal context presented. See generally id. at 566-573. The factual and legal context in which our Supreme Court defined affinity in Bliss differs from the factual and legal context of this case. Reeves, supra. The Bliss definition of affinity also predates the statutes dealing with criminal sexual conduct by approximately six decades. See 1974 PA 266. Additionally, in Bliss, our Supreme Court expressly limited the applicability of the definition of affinity that it adopted:

We should keep in mind, also, the fact that the use of the doctrine [of affinity] attempted is for the purpose only of determining whether in support of a high public policy affecting the administration of the law a juror or a judge should be regarded as indifferent or as biased. [ Bliss, supra at 608.]

Moreover, the factual and legal context in which this Court in Denmark applied the Bliss definition of affinity differs from that of this case, particularly where legislative intent was not at issue in Denmark. Thus, we do not believe that Bliss and Denmark provide conclusive guidance concerning whether the Legislature intended the term "affinity" to encompass stepbrothers and stepsisters. Sizemore v Smock, 430 Mich. 283, 291, n 15; 422 N.W.2d 666 (1988); Topps-Toeller, Inc v City of Lansing, 47 Mich. App. 720, 729-730; 209 N.W.2d 843 (1973); Administrative Order No. 1994-4.

Defendant also points to the marriage statute, MCL 551.3; MSA 25.3, as support for his argument that the Bliss definition is the proper definition of affinity. The marriage statute provides:

No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, nor his sister, brother's daughter, sister's daughter, father's sister, or mother's sister, or cousin of the first degree. [MCL 551.3; MSA 25.3.]

However, the marriage statute is not consistent with the Bliss definition of affinity. If it were, the statute would also prohibit a man from marrying his wife's sister because this would be a relationship between one spouse and a blood relative of the other spouse. See Bliss, supra. Thus, the marriage statute does not give additional weight to defendant's argument that Michigan has consistently defined the term "affinity."

Accordingly, we turn to principles of statutory construction for guidance. All provisions of the Penal Code are construed according to the fair import of their terms. MCL 750.2; MSA 28.192; People v McBride, 204 Mich. App. 678, 682; 516 N.W.2d 148 (1994). Statutory language should be given a reasonable construction, considering its purpose and the object sought to be accomplished. Jones, supra. Where a word is undefined by statute, it is to be construed according to its common and approved usage. In doing so, resorting to the dictionary definition is appropriate. People v Barajas, 198 Mich. App. 551, 555; 499 N.W.2d 396 (1993). However, courts cannot expand the scope of the statutory prohibition. Reeves, supra. The Legislature is presumed to be familiar with the rules of statutory construction. Jones, supra.

In fashioning the criminal sexual conduct statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., the Legislature intended to protect young persons from sexual contact by persons with whom they have a special relationship, such as relatives. See MCL 750.520c; MSA 28.788(3); see also generally People v Mosko, 441 Mich. 496, 506; 495 N.W.2d 534 (1992); People v Garrison, 128 Mich. App. 640, 645-646; 341 N.W.2d 170 (1983); Denmark, supra at 410; Senate Legislative Analysis, SB 1207, July 18, 1974.

The term "affinity" is "neither an unusual nor esoteric word; nor does the criminal sexual conduct statute use the term in an uncommon or extraordinary context." Denmark, supra at 408. Random House College Dictionary (rev ed) defines the term "affinity" as a "relationship by marriage or by ties other than those of blood." Barajas, supra; see also MCL 8.3a; MSA 2.212(1). The common and ordinary meaning of affinity is marriage. State v C H, 421 So.2d 62, 63 (Fla App, 1982). The term "step" is defined as "a prefix used in kinship terms denoting members of a family related by the remarriage of a parent and not by blood." Random House College Dictionary (rev ed). Thus, pursuant to the rules of statutory construction, it would appear that defendant and the victim were related by affinity because they were family members related by marriage.

Moreover, the specific rules of statutory construction are merely aids to interpretation. People v Russo, 439 Mich. 584, 595; 487 N.W.2d 698 (1992). In looking to the object of the second-degree criminal sexual conduct statute and the harm it is designed to remedy, and in applying a reasonable construction that best accomplishes the purpose of that statute in this case, we are persuaded that the term "affinity" encompasses the relation between a stepbrother and a stepsister. Russo, supra. If the term were not so construed, then the first-and second-degree criminal sexual conduct statutes would impose a penalty more severe where the perpetrator sexually assaulted a spouse's brother or sister than where the perpetrator sexually assaulted a stepbrother or stepsister. In this time of divorce, remarriage, and extended families, we see no reason why the Legislature would give enhanced protection to a victim related to a perpetrator as an in-law but not to a victim related to a perpetrator as a stepbrother or stepsister. Thus, defining the term "affinity" to encompass the relation between a stepbrother and a stepsister avoids a construction of the second-degree criminal sexual conduct statute that would yield absurd results. People v Weatherford, 193 Mich. App. 115, 119; 483 N.W.2d 924 (1992). Accordingly, we find no error in the jury instructions or defendant's conviction of second-degree criminal sexual conduct.

Next, defendant argues that his absence from the portion of his trial where defense counsel rested defendant's case without calling any defense witnesses prejudiced him because he was denied the opportunity to object to the failure to present evidence on his behalf. We disagree.

Where the record is silent concerning whether defendant's absence for a portion of his trial was voluntary or whether defendant knew of, and intentionally decided to abandon, his right to be present at that portion of the trial, we cannot presume that defendant validly waived this right. People v Woods, 172 Mich. App. 476, 478-479; 432 N.W.2d 736 (1988). However, the test for whether defendant's absence from a part of his trial requires reversal of his conviction is whether there was any reasonable possibility that defendant was prejudiced by his absence. People v Morgan, 400 Mich. 527, 536; 255 N.W.2d 603 (1977); Woods, supra at 480.

The record reveals that, during the prosecution's case, the prosecutor and defense counsel stipulated in defendant's presence that Tom Bicksman, a potential witness, could be stricken from the witness list. Pursuant to this stipulation, the prosecutor stated that both she and defense counsel believed that Bicksman's testimony would be cumulative because Bicksman had not been present in the room where defendant's crime occurred. After the prosecution rested its case and the jury was excused, defendant confirmed to the trial court that he would not testify. Defense counsel indicated to the trial court in defendant's presence that Bicksman might be called as a defense witness, but that counsel first had to confer with defendant.

After a recess in the proceedings, the trial court noted that defendant was not present and then called in the jury pursuant to an agreement with defense counsel that the proceedings could be conducted without defendant. The trial court stated that it understood that defense counsel had conferred with defendant, and that the defense would rest, which defense counsel confirmed. The jury was excused until the next day, and the trial court, the prosecution, and defense counsel proceeded to discuss jury instructions. When the trial reconvened the following day, defendant neither objected to the fact that no evidence would be presented on his behalf nor requested that proofs be reopened to permit the presentation of evidence on his behalf.

On appeal, defendant does not specify any particular witness or evidence that should have been, but was not, presented on his behalf. Moreover, defendant does not argue that Bicksman would have presented new or additional relevant evidence. Thus, where the one witness the defense contemplated calling would have presented only cumulative testimony, we conclude that defendant's brief absence from the trial did not make any difference in the result reached. Morgan, supra at 537. Reversal of defendant's conviction is not required. Id.; Woods, supra.

Finally, defendant argues that the trial court abused its discretion in scoring certain sentencing variables. We disagree. The trial court did not abuse its discretion in scoring fifteen points for offense variable 7 (offender exploitation of victim vulnerability). People v Derbeck, 202 Mich. App. 443, 449; 509 N.W.2d 534 (1993). The record reveals that there is an approximately thirteen-year age difference between defendant and the victim. Because of her age, the victim could not provide her own transportation and was thus dependent on another for a ride home on the night defendant's offense occurred. In the presentence investigation report, defendant stated that he provided the victim with beer and that, although he knew she was underage, he saw no harm in doing so "since she was in my protection." The victim testified that she slept in defendant's bedroom because she "trusted him," and she "wasn't going to argue with him about it" because "he's the older brother, and he always wins." Thus, the record contained evidence that defendant exploited the victim on the basis of her age or his position of authority. See People v Cotton, 209 Mich. App. 82, 84; 530 N.W.2d 495 (1995); Michigan Sentencing Guidelines (2d ed), p 45.

The trial court did not abuse its discretion in scoring twenty-five points for offense variable 12 (criminal sexual penetrations). Derbeck, supra. The victim testified that during the sexual assault defendant put his fingers inside her vagina and then touched her breast through her bra. Thus, the record contained evidence that defendant penetrated the victim during the same criminal transaction as the sexual contact. Sentencing Guidelines, p 45.