PEOPLE OF MI V PAUL VINCENT WRIGHT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 26, 2001
Plaintiff-Appellee,
v
No. 216488
Genesee Circuit Court
LC No. 98-002629-FH
PAUL VINCENT WRIGHT,
Defendant-Appellant.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of seven counts of thirddegree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a) (victim between
thirteen and fifteen years of age). The convictions stem from a relationship between defendant
and the then-fourteen-year-old sister of defendant’s girlfriend. The trial court sentenced
defendant to concurrent terms of ten to fifteen years’ imprisonment on each count. We affirm.
Appellate counsel raises one issue on appeal, and defendant raises three additional issues
in propria persona. We will consider each in turn.
Appellate counsel argues that the trial court erroneously admitted over hearsay objections
three letters that the complaining witness wrote. We disagree. The complainant wrote one of the
letters to defendant, and two to friends of her own age and gender, but none was sent. The letters
were written during the course, and reveal the sexual nature, of the complainant’s relationship
with defendant. The trial court admitted them as exempt from the definition of hearsay as prior
consistent statements offered to rebut a charge of recent fabrication, MRE 801(d)(1)(B), and
alternatively as excepted hearsay as statements of the complainant’s then-existing state of mind
or emotion, MRE 803(3).
Defense counsel’s statements to the prospective jurors during voir dire suggested that the
complainant, when originally confronted with one of the letters indicating an improper
relationship with defendant, had maintained that the improper relationship was purely a matter of
fantasy, but that later, when the romance between defendant and the complainant’s sister ended,
admitted to the sexual relationship with defendant. Defense counsel thus implied that the
complainant changed her story to allege that the sexual relationship occurred. Because defense
counsel had placed before the jury the implication that the complainant’s current posture was a
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fabrication borne of antipathy resulting from defendant’s decision to move away from the
complainant’s sister, the letters were properly admitted to rebut that defense theory. MRE
801(d)(1)(B).
Defendant in propria persona first argues that the trial court erroneously admitted
evidence of unrelated bad acts, when the prosecutor had failed to provide notice of the intention
to introduce such evidence as required by MRE 404(b)(2). This argument was not preserved
below with a timely objection and, therefore, defendant must show plain error that affected his
substantial rights. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999).
The evidence in question did not concern other bad acts, as envisioned by MRE 404(1),
but instead concerned activity that was part of the course of conduct at issue at trial. Before trial,
the prosecutor agreed to drop one count because it concerned alleged conduct that took place in
Oakland County, where the prosecutor and the judge agreed at the preliminary examination that
defendant should be bound over on charges stemming from alleged conduct taking place in
Genesee County exclusively. At trial, the prosecutor elected to drop the one count in order to
avoid creating an issue for appeal. Nonetheless, the conduct in question remained germane to the
question before the jury. After the prosecutor elicited testimony about the initial digital and oral
sexual contact that occurred between the complainant and defendant, the prosecutor logically
elicited testimony concerning the next such encounter, and how defendant and the complainant
progressed, in both frequency and degree, in their sexual activity. The circumstances
surrounding the first act of sexual intercourse was part of the totality of the circumstances about
which the jury was entitled to hear evidence.
The practical and procedural maneuver of dropping one count among several that
concerned one episode in a series of related behaviors did not operate to sever that alleged
conduct from its obvious linkage to the conduct over which defendant was actually charged and
tried. Under these circumstances, there was not plain error affecting defendant’s substantial
rights and defendant is not entitled to appellate relief for this unpreserved claim of error.
Carines, supra.
Defendant next argues that the trial court abused its discretion in declining to grant the
jury’s request to have certain testimony played back. We disagree. MCR 6.414(H) governs how
a court should respond to a jury’s request to review evidence, providing:
If, after beginning deliberation, the jury requests a review of certain testimony or
evidence, the court must exercise its discretion to ensure fairness and to refuse
unreasonable requests, but it may not refuse a reasonable request. The court may
order the jury to deliberate further without the requested review, so long as the
possibility of having the testimony or evidence reviewed at a later time is not
foreclosed.
Review of the trial court’s treatment of the jury’s request in this case reveals that the court acted
consistently with the rule. Further, defense counsel assented on the record to the way that the
trial court responded to the jury’s request, thus waiving this issue. See People v Carter, 462
Mich 206, 214-216; 612 NW2d 144 (2000).
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Finally, defendant argues that the trial court erroneously seated the jury according to the
struck-jury method expressly forbidden by our Supreme Court in People v Miller, 411 Mich 321,
323-324; 307 NW2d 335 (1981). However, defense counsel used only two of five allowed
peremptory challenges, see MCR 6.412(E)(1), and expressed satisfaction on the record with the
jury as selected. Thus, defendant waived appellate review of this issue. Carter, supra.
The issue lacks merit in any event. Miller concerned examination and challenges, both
peremptory and for cause, of prospective jurors in batches of seventy-three and thirty-seven,
which had the effect of greatly diluting the effectiveness of the peremptory challenges. Miller,
supra at 324-325. The procedure used in this case neither involved such great numbers, nor
forced counsel to target for peremptory challenges a panel larger than that finally seated. The
trial court conducted examination of a total of twenty-six prospective jurors, but the parties’
inquiries and challenges attendant to peremptory challenges were directed at the fourteen
prospective jurors seated in the jury box. Because defense counsel was permitted five
peremptory challenges, MCR 6.412(E)(1), but used only two, counsel suffered no dilution in the
exercise of that right.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R Gage
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