PEOPLE OF MI V JOHN RUSSELL FALCONE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 11, 1997
Plaintiff-Appellee,
v
No. 186364
Berrien Circuit Court
LC No. 94-001048-FH
JOHN RUSSELL FALCONE,
Defendant-Appellant.
Before: Hoekstra, P.J., Murphy and Smolenski, JJ.
PER CURIAM.
Defendant was charged with fourth-degree criminal sexual conduct, MCL 750.520e(1)(b);
MSA 28.788(5)(1)(b) (sexual contact accomplished by force or coercion), and convicted by a jury of
attempted fourth-degree criminal sexual conduct, MCL 750.92; MSA 28.287. Defendant was
sentenced to two years’ probation, with the first 120 days to be served in jail. Defendant appeals as of
right. We affirm.
Defendant first argues that the evidence was insufficient to support a conviction for attempted
fourth-degree criminal sexual conduct. We disagree.
At trial, the complainant testified that she visited a next-door neighbor’s trailer pursuant to the
neighbor’s invitation for the purpose of meeting defendant. While engaging in conversation with
defendant, the complainant became increasingly uncomfortable with certain personal questions asked of
her by defendant. The complainant left and returned to her trailer by herself. A few minutes later,
defendant and the neighbor unexpectedly entered the complainant’s trailer, with defendant stating that
they were there to look at the trailer (the complainant and defendant had earlier discussed a sale of the
trailer). After the complainant showed defendant the trailer, the neighbor left but defendant remained.
The complainant and defendant eventually ended up in the complainant’s bedroom sitting on the
complainant’s bed and conversing. Defendant attempted to “scoot” toward the victim and touched her
face.
The complainant left the bedroom when the telephone rang. The complainant conversed on the
telephone with the neighbor’s wife for a while until defendant told the complainant in vulgar language to
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end the call. Defendant’s attitude changed and he appeared angry that the complainant had been talking
on the telephone. The complainant began getting scared and anxious. Defendant then suggested that
the complainant would be more comfortable if she removed her jeans. Defendant became obnoxious,
stating that he would like to see various intimate parts of her body, including her “crotch.” The
complainant voluntarily unbuttoned her jeans because she was scared. Defendant pulled off the
complainant’s jeans, grabbed her buttocks and then sat her on the couch. Defendant pulled his pants
down and began to masturbate in front of the complainant. Defendant pulled his pants up, laid on top of
the complainant on the couch, grabbed her breasts, lifted up her shirt and put his mouth on her breasts.
Defendant and the complainant sat up and defendant touched the complainant’s upper inner thigh.
Defendant then left the complainant’s trailer. During defendant’s course of conduct, the complainant
told defendant that she did not want the sexual contact to occur.
Viewing the complainant’s testimony in a light most favorable to the prosecution, we conclude
that sufficient evidence was presented that the crime of fourth-degree criminal sexual conduct was
completed. People v McCoy, ___ Mich App ___; ___ NW2d ___ (Docket No. 191854, issued
5/16/97), slip op p 1; People v Premo, 213 Mich App 406, 408; 540 NW2d 715 (1995). A jury
may convict a defendant of an attempt even where the evidence shows a completed crime. People v
Jones, 443 Mich 88, 103-104; 504 NW2d 158 (1993).
Next, defendant takes issue with the trial court’s decision to give the prosecutor’s requested
instruction on attempted fourth-degree criminal sexual conduct. In deciding to the give this instruction
over defendant’s objection, the trial court reasoned as follows:
I believe it was proper. The jury could interpret some of the actions of the
defendant as an attempt but not—not a completed act, and therefore, if there was some
question in their minds, again, I felt it was reasonable within—and it should be left to
the-to the discretion of the jury to at least consider that. Perhaps your argument is right,
but at least I felt there was some evidence to indicate that it could be an attempt rather
than the completed act.
Defendant argues that the instruction was not supported by the evidence because the evidence
indicates only that the completed offense of fourth-degree criminal sexual conduct either was or was not
committed.
The prosecutor, as well as the defendant, may request an instruction on a lesser-included
offense. People v Torres (On Remand), ___ Mich App ___; ___ NW2d ___ (Docket No. 197735,
issued 3/25/97). The offense of attempted fourth-degree criminal sexual conduct is a cognate lesser
included misdemeanor offense of the substantive misdemeanor offense of fourth-degree criminal sexual
conduct. MCL 750.520e(1)(b); MSA 28.788(5)(1)(b); MCL 750.92(3); MSA 28.287(3); Jones,
supra at 103, n 21. With respect to jury instructions as a whole, as well as instructions on cognate
lesser-included offenses and misdemeanor offenses specifically, the general rule is that the requested
instruction need not be given if not supported by the evidence. 1 People v Mills, 450 Mich 61, 81; 537
NW2d 909 (1995); People v Hendricks, 446 Mich 435, 445, n 16; 521 NW2d 546 (1994); People
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v Flowers, ___ Mich App ___; ___ NW2d ___ (Docket No. 175047, issued 4/15/97), slip op p 1.
With respect to the offense of attempt, our Supreme Court has stated as follows:
[A] judge . . . is obliged to instruct on attempt when the defense is that there
was only an attempt and there is evidence that the completed offense may not have
been committed or the defense is that the jury should not credit evidence tending
to show that it was completed. [People v Adams, 416 Mich 53, 60; 330 NW2d
634 (1982) (emphasis added.]
In this case, the prosecution’s theory of the case, as evidenced by the complainant’s testimony,
was that defendant had engaged in progressive touching culminating in sexual contact2 of the
complainant. The complainant’s testimony was corroborated, in certain respects, by the testimony of
the remaining prosecution witnesses, i.e., the neighbor, the neighbor’s wife and the police officer who
took the complainant’s complaint.
Defendant’s theory of the case was that he had not committed fourth-degree criminal sexual
conduct and that the complainant was lying. As part of this defense, defense counsel sought to discredit
various aspects of the complainant’s testimony, including whether sexual contact occurred. For
instance, defense counsel elicited evidence that the complainant had known that defendant and the
neighbor were coming over to her trailer, and that they accompanied her to her trailer. Defense counsel
elicited evidence that the complainant had previously told the police officer that she had taken her jeans
completely off by herself and that defendant had not pulled down his pants but instead had rubbed
himself over his pants. Defendant also elicited evidence that the complainant had not told the police
officer the following information: (1) that defendant had lowered his pants and masturbated in front of
her; (2) that defendant had requested to see her “crotch,” and; (3) that defendant had “licked” her
breast.3
We conclude that the attack on the victim’s credibility, including the evidence of her apparently
contradictory or inconsistent statements concerning whether defendant had committed at least one act of
sexual contact, constituted evidence supporting the prosecution’s request for an instruction on attempted
fourth-degree criminal sexual conduct. We conclude that the trial court did not err in giving the
instruction on attempted fourth-degree criminal sexual conduct.
Finally, defendant has effectively abandoned his remaining issues on appeal by failing to refer
this Court to any authority supporting his positions. People v Piotrowski, 211 Mich App 527, 530;
536 NW2d 293 (1995).
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
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1
In addition, where the charged crime is a felony, the misdemeanor for which an instruction is requested
must be supported by a rational view of the evidence. Hendricks, supra. However, in this case, the
charged offense was also a misdemeanor.
2
See MCL 750.520a(k); MSA 28.788(1)(k) (defining sexual contact).
3
We note that the victim also explained that she had not told the officer everything because she was
scared, ashamed, and not comfortable talking to a male police officer.
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