Lead Opinion
Defendant was convicted, following a jury trial, of four counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA28.788(2)(l)(a), and two counts of child sexually abusive activity, MCL 750.145c(2); MSA 28.342a(2). He was sentenced to concurrent terms of eighteen to thirty years for each criminal sexual conduct conviction and seven to twenty years for each child sexually abusive activity conviction. He now appeals and we affirm.
Defendant first argues that he could not be convicted of criminal sexual conduct because of the age of the victims and the nature of the conduct. We disagree. Defendant’s convictions arise out of the videotaping of a three-year-old female victim who was forced to perform fellatio on her one-year-old male cousin. Defendant was seventeen at the time of the offense and there were four other individuals involved, two aged sixteen, one aged fifteen, and one aged twenty.
If D coerces X to commit a theft by threatening Xs life, X will be acquitted of larceny on the ground of duress. Today, and according to common law principles, D may be convicted of larceny. X was D’s innocent instrumentality. Therefore, at common law, D was the principal in the first degree of the offense. Conceptually, D’s guilt is not founded on accomplice-liability principles. Instead, D is directly liable for committing the crime through the instrumentality; D’s guilt is not derived from another culpable person. Xs acquittal, therefore, presents no bar to the conviction of the only culpable party. [Dressier, Understanding Criminal Law, 2d ed, § 30.06(B)(1), p 446.]
Likewise in the case at bar, defendant’s culpability is direct, not derivative. His guilt is not dependent, as the dissent argues, on whether the minor child can be considered criminally culpable. Rather, each child is merely the instrumentality by which defendant was able to achieve a sexual penetration (fellatio).
Indeed, Professor Dressier gives a specific example involving rape:
*304 Suppose that a culpable secondary party assists a primary party to commit a wrongful act, but the primary actor is acquitted because he lacked the requisite mens rea. For example, consider Regina v Cogan and Leak [(1976) 1 QB 217]. Leak convinced Cogan to have sexual intercourse with Leak’s wife by falsely telling him that she would agree to the intercourse. In fact, Leak compelled his wife to submit to Cogan. Cogan was acquitted of rape on the basis of the Morgan [Regina v Morgan, (1976) AC 182; 2 All E R 347] principle that his unreasonable mistake of fact regarding the wife’s consent negated the mens rea of the offense.
In light of Cogan’s acquittal, was Leak guilty of rape? The court answered the question affirmatively, providing two alternative theories. First, since Leak caused Cogan to misunderstand the attendant circumstances, Cogan was Leak’s innocent instrumentality. Thus, Leak was the principal in the first degree who used Cogan’s “body as the instrument for the necessary physical act.” [Dressier, supra, § 30.06(B)(3)(a), p 447.]
Again, this principle applies equally to the case at bar. Defendant is not guilty because he aided and abetted one child in committing a sexual penetration with the other, but as a principal for using one child as the instrumentality to perform a sexual penetration with the other. The fact that the children, due to their age, lack mens rea is of no moment to the case at hand.
Defendant next argues that he could not be charged with the crime of child sexually abusive activity because he lacked the intent to produce and distribute the videotape as required by the statute. We disagree.
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material ... is guilty of a felony. [MCL 750.145c(2); MSA 28.342a(2).]
In order to determine whether defendant’s actions fit within this definition, we must determine the meaning of the word “produce” as used in the statute. Unless defined in the statute, every word or phrase therein should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. MCL 8.3a; MSA 2.212(1), People v Lee,
Here, it is undisputed, indeed defendant admits, that a videotape of the children performing acts of a sexual nature was created. Accordingly, any argument that defendant did not “produce” child sexually abusive material is wholly without merit.
Further, such a holding is not contrary to the intent of the Legislature. We find no requirement within the statute that defendant must intend to distribute the material in order to be convicted of this crime. To the contrary, the Legislature enacted this statute, in part, to protect children. See People v Ward, 206 Mich App
Defendant next argues that his double jeopardy rights were violated with his two convictions for child sexually abusive activity when only one videotape of the two children existed. We disagree.
To determine what constitutes a single crime or offense under the statute, we must again examine legislative intent. People v Wakeford,
The portion of the statute under which defendant was charged and convicted provides that a person commits a felony when, inter alia, he induces “a child” to engage in “child sexually abusive activities.” MCL 750.145c(2); MSA 28.342a(2). We find this language to clearly provide that a felony has been committed when a person induces one child to perform prohibited acts. Because it is undisputed that two children were involved in this case, we conclude defendant was properly charged with and convicted of two counts of this crime.
This Court’s opinion in People v Smith,
We conclude that defendant’s rights against double jeopardy were not violated.
Defendant next argues that the trial court erred in refusing to give requested instructions on the lesser offenses of gross indecency and criminal sexual conduct in the second degree. We disagree. Turning first to the issue of an instruction on gross indecency, gross indecency and criminal sexual conduct are cognate offenses inasmuch as they share some elements, but the lesser offense has additional elements not found in the greater offense. People v Hendricks,
We are not persuaded that there is an inherent relationship between gross indecency and criminal sexual conduct. While both obviously involve sex offenses, they protect different societal interests. The focus of the criminal sexual conduct statute is the prevention of sexual assaults. Ward, supra at 42. Gross indecency, on the other hand, punishes sexual conduct that society considers indecent and improper. See People v Jones,
Defendant also argues that he was entitled to an instruction on second-degree criminal sexual conduct, also a cognate lesser-included offense of first-degree criminal sexual conduct. However, there was no evidence presented of a sexual contact for a sexual purpose, a necessary element of second-degree criminal sexual conduct, but not first-degree criminal sexual conduct. Accordingly, the trial court was not obligated to give an instruction on second-degree criminal sexual conduct.
Defendant next argues that the trial court erred in admitting the videotape that forms the basis of the child sexually abusive activity convictions because an inadequate foundation to admit the evidence existed. We disagree.
We review a trial court’s decision to admit or deny evidence for an abuse of discretion. People v McMillan,
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. [MRE 901(a).]
An examination of the rules of evidence and case law reveals no support for defendant’s position. First, nowhere in the language of MRE 901 can we discern a limitation to its applicability depending on the importance of the evidence. Further, in Berkey, supra, our Supreme Court held the rule applicable to the admission of audio tapes that made up the only demonstrative evidence to indicate that the defendant committed the crime. The evidence was obviously critical in obtaining a conviction against the defendant. Also, in People v White,
Thus, we must determine whether the videotape was properly admitted under MRE 901. We must also determine whether some other evidentiary bar to the evidence exists. Berkey, supra at 53. On the basis of
The mother of the female victim testified that she knew that defendant and his friends were videotaping on the day in question, that she watched the video twice on that day and at least once after it was repaired by the police, that she observed the tape being broken, and that she brought that tape to the authorities. She testified that she recognized various events on the tape that she observed during the day in question. She also stated that other than small differences in the two versions of the tape, they were essentially the same.
In addition, Chip Kinzler testified that he was present on the day the videotaping occurred, that he could identify portions of the videotape from his own personal knowledge, and that the video reflected events he saw on the day in question.
On the basis of this evidence, we conclude that the trial court did not abuse its discretion in finding the videotape to be properly authenticated as required by MRE 901.
We also conclude that no other evidentiary rule bars the admission of the videotape. We do not agree with defendant that his due process rights were violated because of an alleged ambiguity regarding whether one or two instances of child sexually abusive activity occurred. Contrary to defendant’s argument in his appellate brief, his two convictions of child sexually abusive activity arose out of the fact that two victims existed, not out of the fact that two separate instances were alleged.
We next address defendant’s argument that the trial court erred in denying defendant’s request for a change of venue where prejudicial pretrial publicity existed. We find no error in the trial court’s ruling.
We review a trial court’s determination whether to grant a request for a change of venue for an abuse of discretion. People v Passeno,
Here, we find no error in the trial court’s ruling. First, all the jurors who stated that they had seen some of the pretrial publicity also stated that they could hear the case impartially on the basis of the facts presented. Second, we conclude that defendant failed to carry his burden that the pretrial publicity was so extensive or biased against him that the jurors could not remain impartial. See People v Lee,
Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s motion.
Defendant next argues that because of the pretrial publicity and the potential of a biased jury, the trial court also erred in failing to grant defendant’s request for a waiver of jury trial over the prosecutor’s objection. MCL 763.3(1); MSA 28.856(1); MCR 6.401. Because we have already concluded that defendant’s jury was not biased, we find no error in the trial court’s ruling.
Finally, we consider defendant’s argument that the sentencing guidelines were erroneously scored. Defendant challenges the scoring of Offense Variables (ov) 2, 5, 9, and 13. The total score on the offense variables was eighty, which exceeds the fifty points necessary to achieve the highest offense severity level by thirty points. Thus, any corrections to the offense variable scoring must exceed thirty points for the corrections to be meaningful. That can be achieved only if we agree that ov 2 was misscored as well as either ov 5 or ov 9.
We will uphold the trial court’s scoring of the guidelines if there is evidence to support it. People v Hernandez,
Ten points may be scored for ov 9 where the defendant is the leader in a multiple offender situation. Although this was clearly a multiple offender situation, defendant argues that the evidence did not clearly establish that he was the leader. In upholding the scoring on this variable, the trial court pointed to defendant’s conduct and comments on the videotape of the events. Additionally, the evidence established that defendant brought the male victim into the bedroom before the first incident and both victims into the room before the second incident. There was also testimony that it was defendant who forced the female victim’s head between the male victim’s legs, as well as it being defendant who held both victims during a separate incident. It was also defendant who encouraged the children during each of the two episodes in question and it was defendant who called the others into the bedroom before the second episode.
Because the scoring of ov 5 and ov 9 was justified, those scores, along with the uncontested scores for ov 6 and ov 7, yield fifty points, placing defendant at the highest offense severity level, Level IV. Accordingly, we need not consider whether ov 2 and ov 13 were correctly scored because it would not affect the recommendations of the guidelines. See People v Johnson,
Affirmed.
Notes
There was also another sixteen-year-old present at the time, but he was not charged.
We do not disagree with the dissent’s position that a child under seven years of age is incapable of criminal culpability. See Burhans v Witbeck,
Defendant admitted at trial that at least one of the instances occurred.
Whether ov 13 was correctly scored is immaterial. Reducing the scores of ov 5, ov 9, and ov 13 all to zero would not change the recommendations of the guidelines, nor would reducing ov 2 and ov 13 to zero. It is only by reducing both ov 2 and ov 5 to zero or by reducing both ov 2 and ov 9 to zero that the guidelines are affected.
Concurrence Opinion
(concurring). While I agree with Judge Sawyer’s analysis in the lead opinion, I also believe defendant’s conviction as an accomplice can be justifiably affirmed for a somewhat different reason.
Authoritative case law analyzes accomplice culpability as derivative. That is, we envision a joint enterprise in which the main protagonist or real culprit is assisted in some fashion by an accomplice who either intends the crime or fulfills the scienter requirement with “guilty knowledge” of the principal’s intent. See People v Wilson,
This, however, is a case of first impression regarding whether our statute must be so restrictively interpreted where the main actor’s tender age raises an issue about the very existence of a crime, as opposed to a legal defense to conviction.
In many contexts it is highly significant that a young child lacking mens rea cannot commit a crime,
In this context, however, it is a classic distinction without a difference, because our accomplice statute literally requires no mens rea on the part of the “principal” actor.
MCL 767.39; MSA 28.979 reads:
Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.
This statute speaks of the “act constituting the offense,” not of the act and mens rea constituting the offense or crime. This statute makes culpable not only one who aids another, but also one who “procures” another to “commit the act. ”
Neither this statute nor our common law has required that the main protagonist supply the mens rea for the crime. There is no reason to require it in the present context. According to the jury verdict, defendant not only procured the act by the children but also supplied all the mens rea necessary for criminal sexual conduct in this case. He was thus properly convicted as an accomplice.
One can easily conceive of how very innocent children could be procured and counseled to commit some very terrible criminal acts. Under our statute, the responsible adult can be prosecuted, tried, convicted, and punished “as if he had directly committed such offense.”
Concurrence Opinion
(concurring in part and dissenting in part). I respectfully dissent and would instead affirm in part, reverse in part, and remand for resentencing.
I
The facts in this case are particularly disturbing. Defendant, an eleventh grade student at the time of this crime, and a group of his friends, decided, as they often did, to skip school and get drunk. They gathered at the home of one of the members of the group. As part of their fun, defendant and his friends decided to videotape their day. During the day, defendant and his friends forced a three-year-old girl and a one-year-old boy, who had the misfortune of living in the house, to engage in various activities of a sexual nature while the older boys videotaped them. Although an attempt was made to tape over and destroy the videotape, the mother of one of the victims eventually brought it to the authorities. Although the tape itself was broken, the authorities were able to cut out small pieces of the tape and splice the remaining portions back together. Defendant’s convictions arose out of his actions with respect to the children and out of the existence of the videotape.
II
Defendant’s first argument on appeal is that his convictions of first-degree criminal sexual conduct must be reversed. Defendant was convicted on the theory that because the children were under thirteen, and sexual penetration occurred, he was guilty of first-degree criminal sexual conduct as an aider and abettor. Defendant argues, however, that because the children were too young to have committed any
A
In order to be convicted as an aider and abettor of a crime, it is not necessary that the principal in the underlying crime be convicted. See People v Mann,
B
Our Supreme Court has held that children under seven years of age are “incapable of negligence and of intentional tort or crime.” Burhans v Witbeck,
I emphasize that our Supreme Court held that a child under seven is incapable of committing a crime, rather than finding age to be a defense to a crime. Were age merely a defense, defendant’s convictions could stand because a defense is personal to the offender and an aider and abettor is not entitled to assert the principal’s defense. See, e.g., Vaden v State,
The term “incapable,” however, is defined as “not having a necessary capacity or power of performance.” The Random House College Dictionary, Revised Edition (1984), p 671. Thus, it must follow that when a child under seven years of age performs some deed that would otherwise be considered a crime, no crime has been committed because the child lacks the power or capacity to commit it.
It follows that because the children could not commit the crime of first-degree criminal sexual conduct because of their ages, defendant’s convictions as an aider and abettor of those crimes cannot stand and should be reversed. In all other respects, I concur in the majority opinion.
Another panel of this Court reached the same conclusion, albeit in dicta, in the recent case of In re Hildebrant,