PEOPLE OF MI V DONALD LEON LEE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 12, 2000
Plaintiff-Appellee,
v
No. 216244
Washtenaw Circuit Court
LC No. 97-008561-FC
DONALD LEON LEE,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Neff and Smolenski, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), arising out of acts of sexual penetration
perpetrated by him on his minor daughter. He was sentenced to concurrent life sentences. Defendant
appeals as of right. We affirm.
Defendant first argues that error requiring reversal occurred when the prosecution solicited other
bad-acts evidence in violation of MRE 404(b). Because defendant failed to object to the admission of
the evidence, this issue is unpreserved, and defendant must demonstrate outcome-determinative plain
error in order to avoid forfeiture of this issue. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).
In this case, there is plain error. The prosecutor elicited evidence of another bad act committed
by defendant against the victim without providing the proper notice under MRE 404(b)(2). In addition,
we find entirely disingenuous the prosecution’s argument that the defendant opened the door to the line
of questioning by which the prosecutor elicited the other bad-acts evidence. Moreover, the evidence
was not proper under MRE 404(b)(1), even if reasonable notice had been given. The prosecution
failed to articulate a proper purpose and failed to make any demonstration at all that the evidence was
truly probative of something other than defendant’s propensity to commit sexual assaults upon his
daughter. People v Crawford, 458 Mich 376, 387-390; 582 NW2d 785 (1998). The articulated
reasons for the admission of the other bad-acts evidence were that it would negate lack of accident or
mistake, negate innocent intentions, and demonstrate sexual gratification. Here, the prosecution did not
have to show sexual gratification because defendant was charged under MCL 750.520b(1)(a); MSA
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28.788(2)(1)(a). See People v Lemons, 454 Mich 234, 253; 562 NW2d 447 (1997). In addition,
defendant denied the sexual penetrations for which he was charged. He did not argue mistake or
accident. Thus, the other bad-acts evidence was not necessary to prove lack of mistake or accident.
And, finally, while defendant admitted to penetration while allegedly placing medication on the victim’s
vaginal area, this penetration fits squarely within the definition of sexual penetration, MCL 750.520a(l);
MSA 28.788(1)(l), and thus, the prosecution did not have to negate any alleged innocent intent.
While we find that there was plain error in this case, we nevertheless affirm. Defendant has
failed to demonstrate that the plain error affected the outcome of the lower court proceedings. Carines,
supra. The evidence against defendant was overwhelming. Numerous instances of sexual penetration
of the victim by defendant were placed on the record. The record does not support a conclusion that
that the references to any previous assault occurring in Jackson were given any undue weight in light of
the other testimony. In addition, we find that the admission of the improper bad-acts evidence in this
case did not result in the conviction of an actually innocent defendant and did not seriously affect the
“fairness, integrity or public reputation of judicial proceedings.” Id.
Defendant also argues that the evidence was insufficient to sustain his conviction. When
reviewing claims of insufficient evidence, we view the evidence in the light most favorable to the
prosecutor to determine whether a rational trier of fact could find that the essential elements of the crime
were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992). We find no grounds for reversal.
A conviction under MCL 750.520b(1)(a); MSA 28.788(2)(1) requires proof of sexual
penetration of a victim under the age of thirteen. Lemons, supra. Viewing the testimony of the victim
and the other witnesses in a light most favorable to the prosecution, there was sufficient evidence from
which a reasonable jury could have found that the elements of three counts of first-degree criminal
sexual conduct were proved beyond a reasonable doubt. The victim testified to three distinct
penetrations, including two penile/vaginal penetrations, one of which occurred around Halloween of
1996 and the other around Christmas of 1996. She also testified that defendant placed his hand in her
vagina. A Michigan State Police trooper testified that the victim indicated that defendant engaged in
both penile and digital penetration of her vagina. In addition, two other witnesses testified that they
observed defendant engage in acts of digital penetration. The prosecutor presented evidence sufficient
to allow a rational trier of fact to conclude beyond a reasonable doubt that defendant sexually
penetrated the victim on three occasions.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Janet T. Neff
/s/ Michael R. Smolenski
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