197 N.W.2d 276 | Mich. Ct. App. | 1972
PEOPLE
v.
KRANZ
Michigan Court of Appeals.
*70 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Francis D. Brouillette, Prosecuting Attorney, for the people.
David J. Lori, for defendant on appeal.
Before: DANHOF, P.J., and T.M. BURNS and VAN VALKENBURG,[*] JJ.
PER CURIAM.
Defendant appeals from his nonjury conviction for taking indecent and improper liberties with a child under the age of 16 years contrary to MCLA 750.336; MSA 28.568. Defendant raises three issues on appeal: (1) the verdict was contrary to the weight of the evidence; (2) MCLA 750.336; MSA 28.568 is unconstitutional; and (3) the trial court committed reversible error by inadvertently delivering its verdict before defense counsel gave his closing argument.
The victim's aunt testified that she observed the defendant on his knees, holding the child up against him with his hands on her hips, making movements such as would be associated with sexual intercourse. The aunt testified that the child suffered no bodily harm during the episode; but she was unable to state whether or not the defendant's or the child's clothes were in disarray at the time of the crime.
Defendant testified that he had assumed a squatting position and was playfully holding the child against his knees in a teasing manner. He denied kneeling and denied making any movements which *71 might be misconstrued as being associated with sexual intercourse. The trial court accepted the aunt's testimony as true, and found the defendant guilty as charged.
Conviction for indecent liberties requires the showing of two essential elements. First, there must be an assault. People v Carr, 2 Mich. App. 222 (1966). Second, the liberties taken with the child must be such "as the common sense of society would regard as indecent and improper"; however, such liberties need not be with the private parts of the child to warrant conviction. People v Hicks, 98 Mich. 86, 90 (1893).
The aunt's testimony supported a finding of indecent liberties with the child. The finding of the trial court sitting as the trier of fact, particularly when the veracity and credibility of the witnesses is at issue, will not be disturbed by this Court unless clearly erroneous. GCR 1963, 517.1. The trial court's finding in the instant case cannot be said to be clearly erroneous.
Defendant's contention that the statute here challenged is unconstitutional is without foundation. See People v Hicks, supra; Armstrong v Bannan, 272 F2d 577 (CA 6, 1959).
At the close of the trial, the trial court inadvertently delivered its verdict before defendant's counsel had opportunity to present his closing argument. The attorney protested, and the trial court then allowed him to deliver his closing statement. Defendant alleges that this constituted reversible error. We have reviewed the entire record and conclude that it does not "affirmatively appear that the error complained of has resulted in a miscarriage of justice". MCLA 769.26; MSA 28.1096; GCR 1963, 529.1.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.