Defendant appeals as of right his conviction after jury trial of one count of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(d); MSA 28.788(2)(1)(d), and one count of second-degree criminal sexual conduct, MCL 750.520c(1)(d); MSA 28.788(3)(1)(d). Defendant was sentenced to concurrent terms of 12 to 20 and 9 to 15 years.
Original charges for CSC and kidnapping were brought against defendant, William Byrd, Lеslie Grant (Tank), and Lee Grant. Subsequently, Lee and Leslie Grant entered guilty pleas. Attorney Thomas Frank was retained as counsel for defendant and William Byrd, defendant’s brother. Prior to trial Frank raised several motions, including a request for separate trials. The trial court took the severance motion under advisement, but ultimately denied the motion. Attorney Frank then filed a motion to withdraw as counsel for both defendant and William Byrd. The trial court granted Frank’s motion to withdraw as counsel for William Byrd and retained Frank as counsel for defendant.
Prior to trial, counsel for William Byrd, joined by defendant’s counsel, moved for separate trials. The trial court denied the motion.
*771 The complainant testified that on April 4, 1981, between 7 and 8 p.m. she was hitchhiking from Bay City to Petoskey, standing near the highway at a point where 1-75 and M-23 intersect. A dark green car with a loud muffler stopped and picked her up. There were four occupants in the car, who identified themselves to complainant. Lee Grant was the driver. Codefendant William Byrd was the right front seat passenger. Complainаnt got into the back seat of the car and sat in the middle with defendant on her left and Tank on her right. Complainant stated that she listened and sang along to music on the car radio and smoked cigarettes and marijuana.
As they then drove on, complainant testified that defendant touched her hair and said he was going to make love to hеr. Complainant said she answered, "No you’re not.” Desiring at this point to get out of the car, complainant told the men that she had to go to the bathroom. Defendant then said, "you can have it the hard way or the easy way”, and he touched her leg and reached under her dress. Complainant testified that she screamed and that defеndant and Tank laughed and reached to pull her underwear off. When complainant protested, defendant told Tank to show her a knife. No actual knife was shown at that time. Complainant’s underwear was then removed by her or the men, and defendant attempted unsuccessfully to have sexual intercourse with her.
After complainant smоked a cigarette, defendant and William Byrd pulled her legs apart and defendant took a lighter and held it up to her vagina. Defendant then put his finger into her vagina. Complainant testified that Tank and defendant then made her touch their penises with her hand.
*772 At length the group stopped at a school, ostensibly to allow complainant to relieve herself. The driver, Lee Grant, hung onto complainant as they approached the school and descended a flight of stairs to a janitorial area. Complainant testified that Tank and defendant held her legs while Lee had sexual intercourse with her. Complainant screamed, Lee hit her several times, and she brokе away and ran across a field. She stated that Lee then tackled her, and that Tank and William Byrd held her legs while Lee again had sexual intercourse with her. Defendant and Tank then followed suit. While Tank was having sexual intercourse with complainant, the other men drove up in the car and threw out complainant’s clothes. Complainant еventually managed to effect an escape.
The assailants’ car became stuck in the mud near the school and was abandoned. Investigating officers located the vehicle and determined that it was registered to Lee Grant. Found near the rear of the school were a pair of underwear, a brown bag contаining pajamas, and envelopes and papers bearing the complainant’s name. Lee and Leslie Grant were arrested that evening, and William Byrd was picked up two days later.
Defendant turned himself in to the state police, was arrested, and made a statement. In defendant’s statement he acknowledged that he was in the car with the Grants and William Byrd and that they picked up complainant while she was hitchhiking. According to defendant’s statement, he and complainant laughed and joked with them and defendant held complainant around the neck as she held his penis. Defendant stated that complainant told the men that they could do anything they wanted with her as long as they did not hurt *773 her and that they never threatened her at any time. Defendant stated that he, Tank, and Lee Grant had sex with complainant. Defendant testified that complainant wanted to have sex with him, that he never threatened her or hit her, and that she did not resist.
Defendant first contends that he was denied his due process right to fair trial when the lower court, in supplemental jury instructions, instructed on a theory which had not been charged in the information nor argued at trial. We agree that the supplemental instructions contained a defect, but we do not find cause for reversal.
In
People v Petrella,
The court’s giving of the original instructions on the charged CSC offenses and their lesser-included offenses was uneventful. However, after the jury had deliberated for a period of time, it asked to be instructed once again as to the elements of those offenses. When the judge repeated his instructions on first-degree CSC, he included an extra element:
*774 "Now, then, also that the defendant caused personal injury to the complainant. Now personal injury means a bodily injury. It also includes any disfigurement, chronic pain, pregnancy, loss or impairment. And mental anguish, by the way, means suffering which occurs at the time of the alleged act.”
In explaining the difference between first-degree and third-degree CSC, the court stated "thе third has the same elements as this with the exception of one thing. And that is without personal injury.” One of the jurors then indicated that he was confused about the term "mental anguish”. The trial court explained once again that "mental anguish means suffering which occurs at the time of the alleged act”.
Defense counsel made no objectiоn to the supplemental instruction. Where no objection to erroneous instructions is made at trial this Court will not reverse absent a showing of manifest injustice or that the charge omits an essential component of an offense.
People v Biegajski,
Defendant argues that when the trial court added the personal injury element in its supplemental instructions it wаs providing the jury with an alternate theory for conviction of first-degree CSC. Both in its initial and supplemental instructions, however, the trial court included the aiding and abetting element as an essential element of first-degree CSC. Thus, rather than providing the jury with an alternate theory of convicting defendant of first-degree CSC, the trial court in its supplementаl instructions gave the charged offense
*775
an added element of personal injury to the complainant. Because the instruction placed an additional burden on the prosecutor, there was no prejudice to defendant. See
People v Love,
This result obviates any need to consider defendant’s challenge to the court’s definition of "mental anguish” included in its instruction on personal injury. Compare
People v Gorney,
Defendant suggests in the alternative that we consider whether the failure of his trial counsel to object to the supplemental jury instructions deniеd defendant his right to effective assistance of counsel under the "big mistake” standard of
People v DeGraffenreid,
Defendant next asserts that the trial court erred in failing to order that defendant and William Byrd be separately tried. Attorney Frank had moved for separate trials while still the attorney of record for both men. The trial court denied that motion in a written opinion, noting that the defendants had failed to make the "required affirmative showing of prejudice”. Attorney Frank then moved to withdraw as joint counsel and subsequently filed an affidavit stating that William Byrd could assume a trial posture that if any crime took place it was committed only by defendant. The court per *776 mitted Frank to withdraw as counsel for William Byrd, citing "a definite possibility of antagonistic defenses”. On the first day of trial, both defendants mоved for severance and the motions were denied by the trial court.
There is a strong policy favoring joint trials in the interest of justice, judicial economy, and administration. Defendants do not have an absolute right to separate trials.
People v Meyers (On Remand),
The decision to hold a joint trial is within the trial court’s discretion. MCL 768.5; MSA 28.1028. This Court will not reverse a trial court’s decision concerning joint trials unless there has been an abuse of discretion.
People v Miller,
The instant case does not present the situation found in
Hurst, supra,
where each defendant in attempting to exculpate himself implicated his codefendant. See
People v Walter Moore, 78
Mich App 294, 299;
Statements made by each defendаnt were admitted at trial. Defendant argues that the admission of William’s out-of-court statements, with several references to defendant left intact, was prejudicial in that it bolstered the prosecution’s case on a critical and material issue — whether sexual penetration or contact had occurred. In his appellate brief, defendant highlights an excerpt from William Byrd’s statement to the police in which William stated that all the men had sex with complainant. 1
Defendant’s argument is not persuasive. As we have previously noted, defendant never denied *778 having sexual intercourse with complainant. 2 The thrust of defendant’s theory was that complainant originally consented to having intercourse, but then got mad and decided to "cry wolf’. William Byrd’s statement was consistent in all relevant respects with both the defendant’s theory of the case and the statement that defendant made to the police. Finally, we note that William Byrd testified at trial and defendant’s counsel had the opportunity to cross-examine him. Compare Duby, supra, pp 252-253.
Defendant further maintains that, since the trial court found sufficient potential for antagonism between the positions of the two defendants to justify separate representation, its conclusion that separate trials were not needed raised an inconsistency. This contention is specious. This Court has previously observed that the potential for prejudice is greater in the joint representation of codefendants than in the joint trial of codefendants, each represented by separate counsel.
People v Aguilar,
Defendant asserts that his convictions should be reversed bеcause several witnesses testified that complainant told them she had been raped. This testimony was improper hearsay, defendant claims, and prejudicially bolstered complainant’s credibility. We agree with defendant that at least some of these statements were hearsay not subject
*779
to any exception, including that relating to excited utterances. MRE 803(2);
People v Gee,
Defendant also objects to the testimony of Dr. Hollerman, who testified that he took an oral history from complainant and examined her. Hollerman described her physical and emotional condition to the jury and testified that complainant’s physical condition was consistent with that of a recent assault; that is, she had fresh blunt forсe bruises and lacerations all over her body and bleeding in the vaginal area. Defendant argues that the impact of Hollerman’s testimony was to place the medical and scientific stamp of approval on complainant’s claim that the sexual acts were committed against her will.
The examining physician in a criminаl sexual conduct case is a proper witness as long as his testimony may assist the jurors in their determination of the existence of certain elements of the offense charged.
People v McGillen #2,
These rules were not offended here. Hollerman merely testified that in his expert opinion, on the basis of complainant’s emotional state and because of the nature of her physical injuries, complainant had experienced a fairly significant assault. This was not error.
People v Gerald Wells,
Finally, defendant claims that the prosecutor’s misstatement of the evidence during closing argument requires reversal of his convictions. Defense counsel failed to object to the prosecutor’s misstatement, hence appellate review is precluded absent a miscarriage of justice.
People v Etchison,
During closing argument the prosecutor erroneously stated that Hollerman had testified that the reason there were lacerations to complainant’s outer genitalia was because the vagina was not lubricated. A review of Hollerman’s testimony reveals that Hollerman did not make the statement attributed to him by the prosecutor. An attorney may not argue or refer to facts not of record.
People v Knolton,
Affirmed.
Notes
Immediately after this statement was read, the trial court gave a cautionary instruction to the jury.
In his closing argument, defendant’s counsel stated:
"Sharmon Byrd never denied that he did not [sic] have sexual intercourse with [complainant]. He’s always maintained that. His position is that he did not use force and coercion and that she consented to it on the facts and circumstances of this case. And I’ll get into that.”