Docket No. 47707.
Decided August 13, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.
Robert E. Novitke, for defendant.
The defendant was convicted of three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and was sentenced to three concurrent terms of from 6 to 15 years imprisonment. He appeals as of right from the trial court's order denying his motion for a new trial.
The defendant first claims that the trial court erred in determining that there was sufficient evidence set forth at trial to sustain the jury's finding of guilty on all three counts. Specifically, the defendant claims that there was insufficient evidence set forth at trial for a rational trier of fact to conclude that he sexually assaulted the complainant, as five witnesses testified that they were either with or saw defendant during the time period in which the complainant alleged she was sexually assaulted. However, the complainant described her assailant to police within an hour of being assaulted. Upon hearing the complainant's description, an acquaintance of the defendant was able to tell the authorities that the description matched the defendant's. The complainant immediately picked the defendant out of a photographic show-up, and a raffle ticket from the same sequence of tickets as was found in the defendant's pocket was found at the scene of the crime. In People v Smalls, 61 Mich. App. 53, 58; 232 N.W.2d 298 (1975), and in People v Flippo, 70 Mich. App. 652, 660; 247 N.W.2d 321 (1976), the defendants claimed error on similar grounds: that, because of their alibi defenses, there was insufficient evidence presented at trial to support the jury's verdicts of guilty. Quoting from Smalls, supra, this Court in Flippo, supra, 660 held as follows:
"`On appeal defendant first contends that the evidence produced at trial was insufficient to support a finding of guilty beyond a reasonable doubt. Defendant argues that the identification by the teller and the assistant manager of the bank should not have been believed and that, in light of the testimony of his alibi witness, the evidence was insufficient. Claims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and such questions are generally to be decided by the jury. People v Boynton, 46 Mich. App. 748; 208 N.W.2d 523 (1973); People v Hughes, 26 Mich. App. 355; 182 N.W.2d 631 (1970). After listening to the testimony and observing the demeanor of the witnesses, the jury chose to disbelieve defendant. We shall not substitute our judgment for theirs.'"
Similarly, we believe the issue in this case to be one of credibility which was properly left to the jury. Based upon the complainant's testimony and the circumstantial evidence supporting such testimony, we find that there was sufficient evidence for a rational jury to conclude that defendant was guilty beyond a reasonable doubt. Therefore, the trial court did not abuse its discretion in denying the defendant's motion for a new trial on such grounds.
The defendant also claims his limited ability to cross-examine complainant as to her past sexual conduct denied him his constitutional right to confrontation. MCL 750.520j; MSA 28.788(10) allows a defendant charged with criminal sexual conduct to cross-examine a complainant about her prior sexual conduct in order to establish the source of semen so long as such cross-examination is material to a fact at issue. Inasmuch as a criminologist testified as to finding semen stains on the complainant's underwear, which could have been up to three months old, the trial court did not abuse its discretion in allowing defense counsel to question complainant only as to the last time she had had sexual intercourse within a three-month period. In People v Thompson, 76 Mich. App. 705; 257 N.W.2d 268 (1977), and in People v Khan, 80 Mich. App. 605; 264 N.W.2d 360 (1978), this Court held that such a procedure does not deny a defendant his right of confrontation, as the state's interest in prosecuting sex crimes outweighs the importance of allowing irrelevant and immaterial cross-examination regarding a victim's prior sexual conduct. Such reasoning applies here. The limitation as to the questioning of complainant was proper.
The defendant's third claim of error is that the trial court erred in admitting the complainant's semen-stained clothing into evidence as exhibits. Since defense counsel failed to make a proper objection, claiming the introduction of such to be inordinately prejudicial to his client, the issue has not been properly preserved for review. MRE 103(a)(1). Defense counsel did, however, object to the admission of defendant's semen-stained clothing and a kitchen knife found by police officers who were investigating the case as being more prejudicial than probative. Because the criminologist had already testified that she had found semen stains on defendant's clothing, the introduction of such an exhibit served only to illuminate her unobjected-to testimony. It cannot be said that the clothing was so irrelevant or prejudicial that the trial court clearly erred in allowing such to be admitted. People v McKinney, 88 Mich. App. 715; 278 N.W.2d 728 (1979).
The defendant claims the knife should not have been admitted as an exhibit because it had not been positively identified by the complainant and because the complainant had testified that she guessed that the defendant had laid the knife on the ground while forcing her to engage in fellatio, vaginal intercourse and anal intercourse. Complainant testified that defendant held a knife to her neck and chest to get her to the location of the alleged rape. She identified the knife as being similar to the one used by defendant. In People v Stanley Mitchell, 37 Mich. App. 351, 357; 194 N.W.2d 514 (1971), this Court, quoting from 22A CJS, Criminal Law, § 709, pp 949-951, stated:
"`To justify their admission, a proper foundation must be laid, and such articles must be identified as the articles they are purported to be, and shown to be connected with the crime of with accused; however, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than to the admissibility of the articles in question.'"
Similarly, the fact that defendant may have laid down the knife during the commission of the criminal sexual acts and the fact that the complainant did not positively identify the knife go to the weight of the evidence rather than its admissibility. Khan, supra, 609-610.
Defendant's final predication of error, that the prosecutor's closing statement unduly prejudiced defendant, was not properly preserved for appellate review as it was not objected to at trial. As defense counsel made no objection to the prosecutor's remark, appellate review is precluded unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v Tenbrink, 93 Mich. App. 326, 332; 287 N.W.2d 223 (1979), People v Blassingame, 59 Mich. App. 327, 335; 229 N.W.2d 438 (1975). We do not find that such degree of prejudice resulted from the prosecutor's statement in the instant case.
I concur separately as I was the author of the dissenting opinion in People v Dawsey, 76 Mich. App. 741; 257 N.W.2d 236 (1977). In this case, however, I feel the 6th Amendment rights of defendant were not violated. There was a lengthy cross-examination of complainant by defense attorney. The defendant was also allowed to recall complainant for further cross-examination. Because everything about which the defendant wished to cross-examine the complainant was permitted by the trial court, I concur in the result of this opinion.