442 N.W.2d 764 | Mich. Ct. App. | 1989
PEOPLE
v.
DREYER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Herb Jordan), for defendant on appeal.
Before: MacKENZIE, P.J., and HOOD and BRENNAN, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(b); MSA 28.788(2)(1)(b), and was sentenced to a prison term of from five to fifteen years. Defendant appeals as of right and we affirm.
Defendant first argues that the trial court committed error mandating reversal by admitting into evidence complainant's testimony regarding subsequent acts of sexual abuse committed by defendant upon her. Defendant contends that the Jenness-DerMartzex [People v Jenness, 5 Mich 305 (1858); People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973)] exception did not survive the adoption of the Michigan Rules of Evidence. Defendant alternatively contends that, if the exception did survive, *737 the trial court erred by extending it to evidence of alleged subsequent acts of sexual abuse.
The fourteen-year-old complainant testified at trial that in November, 1986, defendant, her stepfather, forced her to have anal sex in the basement of their house. Defendant ordered complainant to pull her pants down and to bend over a step ladder. Defendant then inserted his penis in her rectum.
Complainant then testified over defendant's objection that on two occasions after that, in February, 1987, defendant took her to a motel and forced her to engage in sexual intercourse with him. On both occasions, defendant penetrated complainant's vagina with his penis.
Defendant was charged with and convicted of the November, 1986, incident.
The admissibility of evidence rests within the sound discretion of the trial court and the exercise of that discretion will not be overturned on appeal unless there has been a clear abuse of that discretion. People v Johnson, 174 Mich App 108, 112; 435 NW2d 465 (1989). We hold that the trial court did not abuse its discretion by admitting into evidence complainant's testimony regarding acts of sexual abuse committed by defendant upon her that occurred subsequent to the act for which defendant was charged.
The Jenness-DerMartzex exception survived the adoption of the Michigan Rules of Evidence. This Court has utilized the exception in cases decided after the rules of evidence took effect. See People v Skinner, 153 Mich App 815, 823; 396 NW2d 548 (1986); People v Garvie, 148 Mich App 444, 450; 384 NW2d 796 (1986), lv den 426 Mich 851 (1986). Furthermore, we note that the Supreme Court in People v Jones, 417 Mich 285; 335 NW2d 465 (1983), declined to extend the Jenness-DerMartzex *738 exception to evidence of prior sexual acts between the defendant and persons other than complainant. We have no doubt about the continued vitality of the exception.
We do not believe that the trial court erred by admitting into evidence complainant's testimony regarding subsequent acts of sexual abuse committed by defendant. The rationale behind the Jenness-DerMartzex exception is that prior sexual acts between the defendant and the victim are a part of the principal transaction necessary to weigh the victim's testimony regarding the principal transaction. DerMartzex, supra, pp 413-415. The admission of the subsequent-act testimony in this case was consistent with that rationale. In the Jenness and DerMartzex cases, it was the incredibility inherent in a seemingly isolated act of sexual misconduct within a household that prompted the courts to admit the evidence of prior misconduct. The same is true of subsequent acts because they are part of the pattern of abuse. The offense charged need not always be based on the last incident of sexual misconduct. When, as here, it is not, the victim's credibility is still subject to being undermined by the isolated appearance of the charged offense. Although the subsequent acts of sexual abuse occurred away from home, it was the stepfather-stepdaughter relationship that gave defendant the authority and opportunity to take complainant out of the house to avoid discovery. Therefore, the trial court properly applied DerMartzex in admitting complainant's testimony concerning the subsequent acts of misconduct.
Defendant also argues that he was denied a fair trial and his right to confront witnesses due to the prosecutor's improper injection of facts not in evidence into his closing argument. We disagree. Defendant raised a timely objection to the challenged *739 remark, which was sustained by the trial court. The jury was instructed to disregard the challenged remark. At the close of trial, the jury was instructed on the proper consideration to be afforded the closing arguments of the attorneys. Under these circumstances, defendant was not denied a fair trial or his right to cross examine witnesses against him.
Affirmed.