On Dеcember 19, 1979, defendant, Harold Groff Dimitris (also known as Billy Lee Jack), was convicted of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), by a Van Burén County Circuit Court jury. On February 20, 1980, defendant was sentenced to a prison term of from 11 to 35 years with credit for 520 days already served. Defendant appeals as of right.
The first issue raised by defendant is whether the trial court committed rеversible error when it ruled that defendant could be questioned about otherwise inadmissible evidence of prior convic
After filing a notice of intent to claim the defense of insanity, defense counsel moved to prevent cross-examinаtion of defendant with evidence of his prior convictions. Relying on
People v Musser, 53
Mich App 683;
On direct examination, defense counsel elicited from defendant that he was arrested and cоnvicted of the four prior offenses, evidence of which the trial court had ruled admissible. After this first reference to defendant’s prior convictions, the trial court gave a cautionary charge to the jurors, informing them that evidence of defendant’s past arrests and convictions was admissible only for purposes of determining the question of sanity and could not be considered as evidence of defendant’s guilt. On cross-examination, the prosecutor also asked defendant about the same convictions:
”Q. Now, in 1952, it is correct, is it not, that you were arrested and charged and convicted of delinquency, threat with a knife?
"A. Yes.
”Q. And in 1953 you were arrested and convicted of escape frоm Glenn Mills Reform School?
'A. Yes.
"Q. And in 1966 it is correct, is it not, that you were arrested and convicted of a larceny charge?
"A. Yes.
"Q. And in 1970 you were arrested and convicted of a charge of robbery by threat?
'A. Yes.”
However, the question presented in the instant case is different frоm that presented in
Woody
and
Musser.
Here, evidence of defendant’s prior convictions was not admitted during the testimony of defendant’s expert witness, but during defendant’s testimony. Thus, this case is factually similar to
People v Morris,
In Morris, defendant raised the insanity defense. Before her psychiatric expert was called to the stand, defendant testified. The prosecutor, in order to rebut the insаnity defense, asked the defendant if it was true that she had been arrested three times for shoplifting. Id., 751. Defense counsel immediately raised an objection, which was sustained. Conсluding that it was error to ask defendant about her prior arrests, the Morris Court stated at 752:
"The prosecutor argued that People v Woody,380 Mich 332 , 335-339;157 NW2d 201 (1968), allowed him to pose this question for the purpose of determining sanity after defendant had raised her insanity defense. Woody and subsequent cases in this Court which address that issue are clearly distinguishable from the present case on the basis that the prosecutors were permitted to rebut insanity defenses by such evidence only after the defendants’ expert psychiatric witnesses had testified. The improper question in the present case was tenderеd before defendant’s expert witness testified and was also directed to the defendant. The rationalebehind the holding in the Woody case is that evidence of a defendant’s prior arrests, convictions and other antisocial conduct becomes material to the determination of a defendant’s sanity once it is shown that such evidence is relevant to the formation of the expert witness’s opinion. People v Hammack, 63 Mich App 87 , 93;234 NW2d 415 (1975). Furthermore, the holding announced in Woody was stated to be controlled by a prior Supreme Court ruling that, 'in geheral * * * as to a defendant who does not testify in his own behalf, evidence of former convictions or offenses is not admissible except in cases wherein such evidence is material and relevant to the issue being tried’. Woody, supra, 339.” (Emphasis added.)
We agree with the rationale of Morris. Application of Morris to the instant case requires a finding that it was error to allow evidence of defendant’s prior convictions to come in during defendant’s testimony. Here, as in Morris, the prosecutor’s questions сould not be seen as an attempt to rebut the diagnosis of defendant’s expert witness, who had not yet taken the stand. Rather, the questions must be viewed as an attempt to impеach defendant’s credibility. This was improper and requires reversal. Morris, supra, MRE 609.
Since it is likely to be an issue at a new trial, we also address the question of whether the trial court committеd error in instructing the jury as to what is required to find defendant guilty of first-degree criminal sexual conduct.
Defendant argues that the following instructions to the jury were erroneous:
"First, that the defеndant engaged in a sexual act which involved some actual entry into the genital or anal openings of the complainant’s body. It is alleged in this case that the sexual аct was committed by a penetration of the complainant’s body by the defendant’s penis. Such entry into the anal or genital openings is enough. It is not necessary that there be a completed sexual act or emission of semen. Or, it must be proven beyond a reasonable doubt that the defendant engaged in an oral sexual act with the сomplainant. That is, that the act involved contact between the mouth of one party and the sex organ of the other.
"It is alleged in this case that the sexual act was committed by contact of the mouth of the complainant with the penis of the defendant.” (Emphasis added.)
The complained of jury instructions deal with fellatio and follow the instructions reсommended in CJI 20:2:02. Defendant claims that in order to be convicted of first-degree criminal sexual conduct there must be a finding of penetration (i.e., an intrusion), not just contact as wаs stated in the instructions.
In
People v Sommerville,
"MCL 750.520b(l); MSA 28.788(2X1) defines first-degree criminal sexual cоnduct as sexual penetration with another person under certain enumerated circumstances. MCL 750.520a(h); MSA 28.788(l)(h) defines sexual penetration as follows:
"' "Sexual penetrаtion” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.’
"Cunnilingus is nowhere defined to require an intrusion. Indeed, such an action would be physically most difficult. The same is true of fеllatio, if forcibly performed by a male actor upon a male victim. See, e.g., People v Hollis,96 Mich App 333 ;292 NW2d 538 (1980). Thus, it is not the intrusion or penetration which elevates cunnilingus to first-degree criminal sexual conduct. Rather, it is quite reasonable to interpret the inclusion of both oral sexual acts in the definition of sexual penetration as based on the belief that each is as offensive to the victim and to society as is forcible penetration. Cf. People v Payne,90 Mich App 713 , 722;282 NW2d 456 (1979), where another panel of this Court seems to have concluded that penetration is required of first-degree criminal sexual acts involving oral sexual assaults. Thus, CJI 20:2:02, which defines oral sexual acts as involving contact between the mouth of one party and the sex organs of another, was properly given as an instruction in the instant case.” Id., 480-481.
We find: that the rationale of Sommerville applies with equal force to the offenses of cunnilingus and fellatio and that the trial court did not err in giving the complained of instructions, which followed those recommended in CJI 20:2:02. 1
Finally, we note that during his cross-examination of defendant the prosecutor elicited from defеndant that defendant had been incarcerated since his arrest on the instant charge. This ques
Reversed.
Notes
The statement appearing in
People v Payne,