Defendant Douglas Kirk Armstrong was convicted by a jury of one count of second-degree criminal sexual conduct, MCL 750.520c(l); 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, 1 spent the night at defendant’s home. During the night, the victim was awakened when she was sexually assaulted by defendant.
We are first called on to construe the term *123 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,[ 2 ] and any of the following:
(i) The actor is related to the victim by blood or affinity to the fourth degree. [MCL 750.520c(l)(b)(ii) and (h)(i); MSA 28.788(3)(l)(b)(ii) and (h)(i).]
Where a statute is clear and unambiguous, judicial construction or interpretation is precluded.
People v Jones,
When statutory construction is necessary, this Court must "determine and give eifect 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,
Defendant relies on
Bliss v Caille Bros Co,
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
*125
affinity to the criminal sexual conduct statutes. In
People v Denmark,
(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 Wash 2d 561, 564;
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,
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 *127 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,
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,
The term "affinity” is "neither an unusual nor esoteric word; nor does the criminal sexual con *128 duct 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 (rév 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,
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,
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 *130 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
*131
offense variable 7 (offender exploitation of victim vulnerability).
People v Derbeck,
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.
Affirmed.