People v. Willie Johnson

58 Mich. App. 165 (1975) 227 N.W.2d 272

PEOPLE
v.
WILLIE JOHNSON

Docket No. 19455.

Michigan Court of Appeals.

Decided January 29, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.

Carl Ziemba, for defendant on appeal.

Before: BASHARA, P.J. and DANHOF and VAN VALKENBURG,^[*] JJ.

Leave to appeal applied for.

BASHARA, P.J.

Defendant, along with co-defendant Edwards, was tried for rape, MCLA 750.520; MSA 28.788, assault with intent to commit sodomy, MCLA 750.85; MSA 28.280, and assault with intent to commit gross indecency, MCLA 750.85; MSA 28.280. On November 21, 1973, a jury in Recorder's Court found defendant guilty of assault with intent to commit sodomy, but acquitted as to the remaining charges.

Complainant, Geraldine Ratliff, testified that she was returning from a visit with a friend at about midnight. She met two other friends while walking home and stopped to talk. Defendant and Edwards approached her, ordered her two friends to leave, and dragged her into an abandoned building. They threw her down and forced vaginal, anal and oral intercourse on her. She testified that she did not consent to any of defendants' actions and that she had never seen either man before.

Defendant testified that he met complainant on the street and she suggested that he come with her. While outside defendant and his co-defendant, Edwards, and the complainant drank some wine. When a police car drove by all three went inside. Defendant testified that he had vaginal intercourse with complainant but that she consented to it. He denied having oral or anal sex with complainant.

Defendant first argues that the jury by acquitting him of the charge of rape found that the complainant consented to have intercourse. Defendant then claims since the complainant consented to intercourse, the jury's verdict finding him guilty of assault with intent to commit sodomy was inconsistent.

Jury verdicts are only inconsistent if they cannot be explained in any rational manner. People v Phillips, 43 Mich. App. 581; 204 NW2d 250 (1972); People v Widgren, 53 Mich. App. 375; 220 NW2d 130 (1974).

Assuming that the jury found complainant consented to intercourse, it does not necessarily follow that the jury must find she consented to other crimes. Assault with intent to commit sodomy and rape are distinct and separate crimes, each having different elements. Consent to intercourse is not the same as consent to sodomy. The jury was not obligated to believe the complainant's nor the defendant's testimony in totality. They were free to believe parts of each. People v Camak, 5 Mich App 655; 147 NW2d 746 (1967); People v Gray, 23 Mich. App. 139; 178 NW2d 172 (1970). While the jury evidently believed the defendant's testimony that the complainant consented to intercourse, they apparently believed the complainant when she testified that acts of sodomy were forced upon her.

We think the jury could have fairly concluded on the evidence that the complainant consented to intercourse but was forced to commit acts of sodomy. Thus, a rational basis for the verdict is present.

Defendant next contends that reversible error was committed by the trial judge when she failed to explicitly instruct the jury that a verdict of guilty must be a unanimous verdict of all the members of the jury.

This assignment of error, although not totally new to our jurisdiction, is of recent vintage. In People v Washington, 43 Mich. App. 150; 203 NW2d 744 (1972), and People v King,^[1] 51 Mich. App. 788; 216 NW2d 76 (1974), this Court was called upon to decide the same allegation of error. In both Washington, supra, and King, supra, it was emphasized that a trial court should instruct the jury that their verdicts must be unanimous. We are in agreement with this rule and would caution trial courts that they should so instruct juries.

GCR 1963, 516.2 provides that "No party may assign as error the giving or the failure to give an instruction unless he objects thereto * * *." An examination of the record in this case discloses that defendant was given an opportunity to object to the charge as given. He did not do so. In fact defendant indicated he was satisfied with the charge. If there was any error, it could have easily been cured by the requesting of a supplemental instruction. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v Brocato, 17 Mich. App. 277, 305; 169 NW2d 483 (1969).

In addition, defendant declined a specific offer by the trial court to have the jury polled as provided by GCR 1963, 512.2. If defendant had any doubt as to the unanimity of the jury verdict he would have had the jury polled. Defendant cannot on appeal urge reversal where the alleged error could have been cured prior to the discharge of the jury.

Further, the instructions given in this case comport with those given in People v King, supra, where another panel of our Court rejected the same argument posited by defendant.

There being no manifest injustice, this allegation of error is not properly before us. People v Everett, 27 Mich. App. 120; 183 NW2d 378 (1970). People v Compian, 38 Mich. App. 289; 196 NW2d 353 (1972).

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] In People v King, supra, application for leave to appeal has been filed with the Supreme Court.