Docket No. 74123.
Decided July 1, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for defendant on appeal.
Defendant appeals from his jury convictions of armed robbery, MCL 750.529; MSA 28.797, and of separate counts of criminal sexual conduct in the first and second degree for acts charged as having occurred under circumstances involving the commission of another felony, MCL 750.520b(1)(c) and MCL 750.520c(1)(c); MSA 28.788(2)(1)(c) and MSA 28.788(3)(1)(c) respectively.
Defendant's victim was about to enter a car which she had borrowed from a friend when she was accosted by defendant who was carrying a stick. He told her that if she did what he said, he wouldn't hurt her. She dropped her purse which defendant picked up. He directed her to a vacant lot where he ordered her to participate in sexual acts, following which he refused her request to return her purse. While the victim was unable to recall precisely when it had happened, defendant at some point took the car keys from her hand and he left the scene of the crime in the car. Defendant argues that the evidence was insufficient as a matter of law to sustain convictions for sexual acts defined as being in the first and second degree by reason of having occurred under circumstances involving the commission of another felony. Defendant argues that here the act of robbery was independent of the completed sexual acts, rather than a part of or prelude to the sexual acts. He asserts that the robbery did not occur until after the sexual acts had been completed because that is when he left the victim and permanently deprived her of her purse. He cites, by analogy, People v LeFlore, 96 Mich. App. 557; 293 N.W.2d 628 (1980), where the Court was concerned with whether the facts therein showed an unarmed robbery or only separate offenses of assault and larceny.
Defendant testified to a different version of events which is not pertinent to the issues he raises, and which was obviously not believed by the jury.
LeFlore, however, was concerned with a continuity of intent between a forceful act and a larcenous taking of property, an element which is not required for "other-felony" criminal sexual conduct under the pertinent portions of 1974 PA 266. Only two elements exist under either § 520b(1)(c) (CSC I), or § 520c(1)(c) (CSC II): (1) either sexual penetration (CSC I) or sexual contact (CSC II), and (2) that such "occurs under circumstances involving the commission of any other felony". Even if we were to accept the argument that the statutory language must be construed to punish sexual acts occurring "during" the commission of any other felony, which we do not, defendant's own argument tacitly acknowledges the continuum of the armed robbery in focusing on the final act of defendant in leaving with his victim's purse after the sexual acts while ignoring the events preceding the sexual acts which included his taking possession of the purse while armed with the stick. The Legislature, however, did not attempt to narrowly define the coincidence or sequence of the sexual act and the other felony; rather it chose to address the increased risks to, and the debasing indignities inflicted upon, victims by the combination of sexual offenses and other felonies by treating the sexual acts as major offenses when they occur "under circumstances involving the commission of any other felony".
Defendant's contention that his convictions for armed robbery and criminal sexual conduct violate his constitutional protection against double jeopardy is answered by People v Robideau, 419 Mich. 458; 355 N.W.2d 592 (1984).
His final claim, that error occurred when a third party testified as to the victim's identification at a lineup, is true but the error is harmless. Such testimony is inadmissible hearsay and is not rendered admissible under MRE 801(d)(1). See People v Sanford, 402 Mich. 460; 265 N.W.2d 1 (1978). Here the third party and the victim were witnesses and subject to cross-examination, as in Sanford. Moreover, other evidence, including defendant's confession and his own testimony, makes the question of identification only remotely relevant. Beyond a reasonable doubt, the error was harmless.