197 N.W.2d 840 | Mich. Ct. App. | 1972
PEOPLE
v.
VASQUEZ
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Richard J. Ruhala, for defendant on appeal.
Before: BRONSON, P.J., and V.J. BRENNAN and O'HARA,[*] JJ.
*574 PER CURIAM.
Defendant was convicted by a judge in the Genesee County Circuit Court of sodomy, MCLA 750.158; MSA 28.355, and was sentenced to a prison term of 4 to 15 years. He appeals of right.
Defendant makes four allegations of error on appeal. The first concerns the sufficiency of the evidence. An examination of the record reveals that there was sufficient evidence, if believed by the court, to sustain a verdict of guilty beyond a reasonable doubt. People v Cheeks, 25 Mich. App. 641 (1970).
Defendant's second allegation is that the trial court erred in allowing the victim's mother to testify with respect to the victim's complaint to her of the sexual assault. The testimony of a victim of tender years may be corroborated by another witness, as a res gestae exception to the hearsay rule, if the delay in making the complaint is caused by fear and there is no indication the story is manufactured. People v Woodward, 21 Mich. App. 549 (1970). That is the case here.
There is also no merit in defendant's contention that the prosecutor committed reversible error by attempting to introduce evidence of similar incidents. The trial judge sustained defense counsel's objection. In the absence of proof to the contrary, it is presumed that the trial judge was not prejudiced and followed the law. People v Farmer, 30 Mich. App. 707 (1971).
Finally, defendant argues that sodomy between a male and female is not possible. People v Askar, 8 Mich. App. 95 (1967), is controlling on this point and is contrary.
Affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
