People v. Walker

81 Mich. App. 202 (1978) 265 N.W.2d 82

PEOPLE
v.
WALKER

Docket No. 77-107.

Michigan Court of Appeals.

Decided February 6, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward B. Meth, Prosecuting Attorney, for the people.

Robert W. Thomas, for defendant on appeal.

Before: BRONSON, P.J., and ALLEN and T.M. BURNS, JJ.

T.M. BURNS, J.

defendant was charged in a two-count information with criminal sexual conduct in the third degree, MCLA 750.520d; MSA 28.788(4), and breaking and entering an occupied dwelling with an intent to commit criminal sexual conduct in the third degree, MCLA 750.110; MSA 28.305. After extensive deliberation, the jury acquitted defendant on count one, the criminal sexual conduct charge, and convicted him of the breaking and entering charge. After his motion for acquittal notwithstanding the verdict was denied, defendant was sentenced to serve 6 to 15 years in prison.

I

Before the trial in this case, defense counsel filed a motion in limine to allow cross-examination of the complainant on her past sexual experiences. At the argument on the motion, defense counsel stated he wished to show, among other things, the victim's reputation for chastity as bearing on defendant's state of mind on the breaking and entering charge. The trial court found the section of the statute prohibiting inquiry into the complainant's sexual past,^[1] except in limited circumstances, applicable to this prosecution and a bar to the admission of reputation evidence. Defendant claims on appeal that this ruling was reversibly erroneous.

Before examining defendant's claim, it may be wise to identify the issues that are not involved. This case does not involve a claim that MCLA 750.520j; MSA 28.788(10) is unconstitutional because it bars relevant evidence on the issue of the complainant's consent (rebutting the state's case) or evidence relevant to the complainant's credibility or veracity. See, People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977); People v Dawsey, 76 Mich. App. 741; 257 NW2d 236 (1977); People v Patterson, 79 Mich. App. 393; 262 NW2d 835 (1977). What defendant does claim is that the circuit court incorrectly applied the statute to exclude evidence relevant to the issue of defendant's intent on the breaking and entering charge, i.e., to show that he did not have the felonious intent claimed by the prosecutor.

The statute by its own terms excludes evidence only for prosecution under §§ 520b to 520g (MCLA 750.520b-520g; MSA 28.788[2]-28.788[7]). It does not apply to the breaking and entering charge. Two questions are therefore presented: (1) would the proposed evidence have been admissible if only a breaking and entering had been charged, and (2) is it admissible where defendant is also charged with an offense within the prohibitory section? These questions would not arise if the prosecutor had proceeded only on the first count — the evidence would be inadmissible.

What defense counsel sought to do was use one person's reputation for chastity (the victim's) to prove or argue that another person's conduct (defendant's entry of the house) was not done with the criminal intent charged. That distinguishes the present case from those in which it is stated that the victim's reputation may be shown to prove her conduct (consent) in a particular instance. People v Ryno, 148 Mich. 137; 111 N.W. 740 (1907).

In this regard, the case appears to be unique. However, there are analogous situations. In a homicide prosecution, the deceased's reputation for ferocity, brutality and the like may be shown if known by the defendant in support of defendant's claim that he acted in self-defense, that is, that he had a reasonable belief that he was in imminent danger of death or great bodily harm. People v Walters, 223 Mich. 676, 680; 194 N.W. 538 (1923).

Similar reasoning would support defendant's claim here. If defendant knew the victim's reputation for chastity was bad, it would make his argument^[2] that he did not intend to force himself on her more plausible than if this evidence were not admitted. See Michigan Proposed Rules of Evidence, Rule 401, 399 Mich. 969.

Had this prosecution been solely for breaking and entering with intent to commit criminal sexual conduct in the third degree, evidence of the complainant's reputation for chastity would have been admissible as bearing on defendant's state of mind at the time of the breaking and entering.

This raises the second question noted above, what effect does the fact that defendant was also charged with criminal sexual conduct in the third degree, under which the evidence would not have been admissible, have on the question of admissibility? According to McCormick, the general practice where evidence is admissible for one purpose and inadmissible for another is to admit the evidence subject to a limiting instruction on use unless the legitimate use of the evidence is so slight compared to the possibility of jury misuse of the evidence that the trial court feels compelled to exclude the evidence entirely. McCormick, Evidence (2d ed), § 59, pp 135-136. This evidence could provide a rebuttal for the state's claim of criminal intent and would have been admissible for that purpose.

The trial court could have admitted the evidence subject to a limiting instruction in the present case. However, rather than order what may be a useless new trial, cf. People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973), the appropriate remedy is a remand to the trial court to allow defendant to present evidence on the question of the complainant's reputation for chastity and that defendant knew of this reputation. If her reputation was not bad, or if defendant did not have knowledge of this reputation, no reversible error is presented.

II

Defendant also claims that he should have been allowed to cross-examine the complainant as to specific acts of intercourse with third persons to show bias on the part of the witness. It does not appear that evidence of specific acts with third persons would be especially relevant to showing the complainant's motive in bringing the charges in the present case. This argument is rejected.

III

Defendant next contends that the trial court abused its discretion in refusing to grant his motion in limine to suppress reference to his 1972 assault with intent to take indecent liberties conviction should he take the stand.^[3] A 15-year-old conviction for breaking and entering with intent to commit larceny was suppressed.

This contention is not well taken. Although assault with intent to take indecent liberties may be substantially the same conduct as criminal sexual conduct in the third degree, defendant was acquitted of that charge. The prior conviction is not so closely related to the breaking and entering charge on which defendant was convicted, as to require its exclusion for impeachment purposes. See, People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974).

IV

Defendant finally contends that the jury's verdict was fatally inconsistent. In ruling on defendant's motion for judgment of acquittal, the trial court stated:

"To me the main distinction with Count One and Count Two is a matter of time. In Count One the People would have to prove certain things beyond a reasonable doubt occurred, in Count Two, breaking and entering charge, that they did find the Defendant guilty of, I find that need not — the People need not prove there was sexual penetration, but that the Defendant at the time of the breaking and entering had that requisite intent. I don't feel that the charges against the Defendant are mutually exclusive in this case, because the time factor, I do find sufficient facts during the course of the trial for which the jury could indeed find the Defendant guilty."

This response provides the rational explanation required to uphold the verdict. People v Phillips, 43 Mich. App. 581; 204 NW2d 250 (1972), People v Willie Johnson, 58 Mich. App. 165; 227 NW2d 272 (1975), lv den, 394 Mich. 755 (1975), cert den, 423 U.S. 849; 96 S. Ct. 91; 46 L. Ed. 2d 72 (1975), People v Goodchild, 68 Mich. App. 226; 242 NW2d 465 (1976), lv den, 397 Mich. 830 (1976).

Remanded for proceedings consistent with part one of this opinion. We do not retain jurisdiction.

NOTES

[1] MCLA 750.520j; MSA 28.788(10) provides: "(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

"(a) Evidence of the victim's past sexual conduct with the actor.

"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

"(2) If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1)."

[2] Defendant did not testify at trial. However, a statement made by him shortly after his arrest was read to the jury. In this statement, defendant claimed to have had intercourse with the complainant on prior occasions and that the acts out of which the prosecution arose were consensual.

[3] This issue is not made moot by defendant's failure to testify at trial. People v McCartney, 60 Mich. App. 620; 231 NW2d 472 (1975).