551 N.W.2d 478 | Mich. Ct. App. | 1996
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Pete John ASEVEDO, Jr., Defendant-Appellant.
Court of Appeals of Michigan.
*479 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Kevin A. Lynch, Senior Assistant Prosecuting Attorney, for the people.
State Appellate Defender by Ralph C. Simpson, for the defendant on appeal.
Before HOEKSTRA, P.J., and SAAD and LATREILLE,[*] JJ.
PER CURIAM.
Following a jury trial, defendant was convicted in the Muskegon Circuit Court of three counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), and was sentenced to concurrent terms of twenty to seventy-five years' imprisonment. Defendant appeals as of right, and we affirm.
*480 The charges against defendant stem from an incident alleged to have occurred between 4:00 a.m. and 10:00 a.m. on January 1, 1991. According to the victim, she was abducted by defendant from the parking lot of a bar as she was walking to a friend's vehicle. She testified that over the next six hours she was repeatedly forced to engage in acts of sexual intercourse and fellatio in defendant's vehicle and in defendant's house. She reported sustaining numerous bruises from being pushed, pulled, manhandled, thrown, and slapped by defendant, but other than one bruise on her left arm incurred during the abduction, she was unable to recall when during the course of the incident the bruises were inflicted. Also, the victim offered testimony concerning the mental and emotional consequences she suffered, both during and after the incident. In response, defendant admitted engaging in sexual acts with the victim, but alleged them to have been consensual. Defendant's first claim on appeal is that there was insufficient evidence to support his convictions because the prosecution failed to establish the element of personal injury. M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1) states in pertinent part:
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 exist:
* * * * * *
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual penetration.
M.C.L. § 750.520a(j); M.S.A. § 28.788(1)(j) defines personal injury as:
"Personal injury" means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease or loss or impairment of a sexual or reproductive organ.
The instant case was submitted to the jury under both the mental anguish and the bodily injury definitions of personal injury, and defendant does not challenge the sufficiency of the evidence of mental anguish. Rather, defendant contends that the evidence of bodily injury was insufficient because the victim was unable to testify that her bodily injuries occurred contemporaneously with any of the numerous acts of sexual penetration. It is defendant's assertion that mental anguish and bodily injury are alternative theories of guilt and that if one is insufficient, his convictions must be reversed because of the inability to determine on which theory the conviction rests. See People v. Parks, 57 Mich. App. 738, 745, 226 N.W.2d 710 (1975). We disagree.
Somewhat surprisingly, we found no cases that have directly addressed the issue whether the various definitions of personal injury constitute alternative theories of guilt for which a jury must make independent findings of fact. While several reported cases have decided claims based on the sufficiency of the evidence relative as to both bodily injury and mental anguish, the conclusions in those cases that the evidence was sufficient relative to both bodily injury and mental anguish avoided resolution of the instant issue.[1]
We have found only two cases that deal with this issue in any fashion, and those cases address it only indirectly. In People v. Petrella, 424 Mich. 221, 380 N.W.2d 11 (1985), our Supreme Court noted in a footnote that it was unnecessary for it to address the sufficiency of the evidence supporting a claim of bodily injury given its conclusion that there was sufficient evidence of mental anguish. Id. at 272, n. 23, 380 N.W.2d 11. Similarly, in a separate opinion in People v. Burton, 433 Mich. 268, 304-305, 445 N.W.2d 133 (1989), then Chief Justice Riley obliquely addressed the issue in a response to a dissenting opinion by Justice Boyle. Chief Justice Riley stated, without analysis, that her conclusion that the prosecution had presented sufficient evidence of bodily injury for purposes of proving personal injury made it unnecessary to decide an issue relating to mental anguish.
We believe that the obvious conclusion to be drawn from these cases is that *481 bodily injury and mental anguish are not alternative theories upon which a jury is required to make independent findings, as proposed by defendant. When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory. People v. Johnson, 187 Mich. App. 621, 629-630, 468 N.W.2d 307 (1991). The same reasoning applies here. Because bodily injury, mental anguish, and the other conditions listed in M.C.L. § 750.520a(j); M.S.A. § 28.788(1)(j) are merely different ways of defining the single element of personal injury, we believe they should not be construed to represent alternative theories upon which jury unanimity is required. Accordingly, if the evidence of any one of the listed definitions is sufficient, then the element of personal injury has been proven.
In the present case, defendant does not challenge the sufficiency of the evidence regarding mental anguish. Therefore, on that basis alone, we find that the evidence of personal injury was sufficient, and we need not consider defendant's challenge to the evidence pertaining to bodily injury.
Next, defendant claims that the trial court improperly allowed the prosecution to introduce evidence that more than a month before the instant offense he had become enraged with his ex-girlfriend and had punched through a window in an effort to assault her. Defendant argues that this evidence was inadmissible to prove character and conformity therewith. MRE 404(b). At trial, defendant objected to the evidence, not on this basis, but on the ground of relevancy. An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. People v. Stimage, 202 Mich.App. 28, 30, 507 N.W.2d 778 (1993). Regardless, when read in context, the testimony was properly admitted to bolster the prosecution's theory that the events at issue were not consensual and was not admitted to show defendant's criminal propensity or to establish that he acted in conformity therewith. See People v. VanderVliet, 444 Mich. 52, 65, 508 N.W.2d 114 (1993).
Finally, defendant claims that his convictions should be reversed because an emergency room nurse that attended the victim after the incident testified that the victim was not "faking" and that she personally believed that the victim was raped. Defendant failed to object to the allegedly improper testimony. The failure to object to the admission of evidence waives appellate review in the absence of manifest injustice. People v. Turner, 213 Mich.App. 558, 583, 540 N.W.2d 728 (1995). Because we conclude that the evidence overwhelmingly supported defendant's convictions, we find no manifest injustice here.
Affirmed.
NOTES
[*] Stanley J. Latreille, 44th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.
[1] See People v. Himmelein, 177 Mich.App. 365, 442 N.W.2d 667 (1989); People v. Swinford, 150 Mich.App. 507, 389 N.W.2d 462 (1986); People v. Jenkins, 121 Mich.App. 195, 328 N.W.2d 403 (1982); People v. Gwinn, 111 Mich.App. 223, 314 N.W.2d 562 (1981).