PEOPLE OF MI V MARK WALTER STOCKMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2002
Plaintiff-Appellee,
v
No. 228525
Hillsdale Circuit Court
LC No. 00-248725-FC
MARK WALTER STOCKMAN,
Defendant-Appellant.
Before: Owens, P.J., and Markey and Murray, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count of first-degree criminal
sexual conduct, MCL 750.520b(1)(a). Defendant was sentenced to twelve to twenty years’
imprisonment. He appeals as of right. We affirm.
In this case, defendant was convicted of anally penetrating a seven-year-old boy after a
Halloween party held at a home. The next day, the victim told his mother and she took the
victim to the hospital and called the police. The police interviewed defendant on two occasions.
On the first occasion, defendant was confronted with the fact that the victim told the police that
defendant left “white glue type balls” on him. However, defendant denied that he sexually
assaulted the victim. Instead, defendant explained that the substance could have gotten on the
victim while defendant was sleepwalking or if the victim had taken a bath after defendant
because defendant had masturbated in the bathtub earlier that evening. The police interviewed
defendant on a second occasion, during which defendant admitted that he sexually assaulted the
victim.
First, defendant contends that the trial court clearly erred when it denied his motion to
suppress the first statement that he gave to the police because it was “not voluntary and knowing
in that the police employed trickery, deceit, and a lie in order to obtain the first confession.”
Specifically, defendant contends that the interrogating police officer told him, untruthfully, that
his semen had been found on the victim.
Generally, when reviewing the voluntariness of a confession, we review the record de
novo. People v Adams, 245 Mich App 226, 230; 627 NW2d 623 (2001). However, we review
the trial court’s factual findings for clear error. Id. A finding is clearly erroneous where, after
reviewing the entire record, we are “left with a definite and firm conviction that a mistake has
been made.” People v Parker, 230 Mich App 337, 339; 584 NW2d 336 (1998).
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In the instant matter, the trial court found that the police officer merely read defendant the
victim’s statement, which alleged that defendant had left “white glue type balls” on the victim.
Thus, the trial court found no merit in defendant’s contention that he was told that his semen had
been found on the victim. The trial court further opined:
Now, in this case, gentlemen, I have overwhelming testimony that Mr. Stockman
was never under arrest, he was free to go at all times. He knew that. He was
made aware of that. He never asked to be released. He never asked that the
questioning be stopped. He never asked for an attorney after being advised of
Miranda rights not just on one occasion but on two occasions. . . . He never asked
for counsel. He never asked the questioning to stop. He said he understood the
rights.
Then, in reference to the allegations regarding the white glue type balls, he gave
two possible reasons. Masturbation in a bathtub. The boy took a bath and it got
on him, or he simply was sleepwalking. Now, there is no reason to suppress those
statements. Those are statements made by the defendant. He offered those as
plausible reasons as to why the so-called sperm or semen – semen being on the
boy. There is no reason to suppress that. They were voluntarily made. They
were not against the will of this defendant. He made so – made them voluntarily,
intelligently, willingly at that point indicating some plausible response.
The trial court further found that defendant was “street smart,” was not easily intimidated,
appeared to have “above average intelligence,” and had previous contact with the police. Thus,
the trial court denied defendant’s motion to suppress the first statement.
As a preliminary matter, we note that where a “defendant’s statements were admissions
of fact, rather than a confession of guilt, no finding of voluntariness is necessary.” People v Gist,
190 Mich App 670, 671; 476 NW2d 485 (1991). Here, the statement at issue is not the second
statement in which defendant confessed to anally penetrating the victim. Instead, the issue
concerns the first statement, in which defendant denied the assault and instead offered
alternative, albeit implausible, explanations for how the “white glue type balls” might have
gotten on the victim. Thus, the statement at issue does not show guilt, and is not a confession.
We could, therefore, simply decline to consider this issue.
It should also be noted that even where a police officer makes a false statement to induce
a confession, the resulting confession is not automatically rendered involuntary and inadmissible.
People v Givans, 227 Mich App 113, 123; 575 NW2d 84 (1997). Instead, the false statement by
the police officer is just one of several factors to be considered when weighing the voluntariness
of a confession. Id. In People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988), our
Supreme Court opined as follows:
In determining whether a statement is voluntary, the trial court should consider,
among other things, the following factors: the age of the accused; his lack of
education or his intelligence level; the extent of his previous experience with the
police; the repeated and prolonged nature of the questioning; the length of the
detention of the accused before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether there was an
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unnecessary delay in bringing him before a magistrate before he gave the
confession; whether the accused was injured, intoxicated or drugged, or in ill
health when he gave the statement; whether the accused was deprived of food,
sleep, or medical attention; whether the accused was physically abused; and
whether the suspect was threatened with abuse.
“The ultimate test of admissibility is whether the totality of the circumstances surrounding the
making of the confession indicates that it was freely and voluntarily made.” Id.
Here, there was testimony that defendant, an eighteen-year-old man, was intelligent and
“street smart.” Defendant had prior experience with the police and was found to have been
involved in an armed robbery a few years ago. Defendant voluntarily went to the police station
with the police officer. Before the interview began, defendant was read his Miranda1 rights.
Defendant was also told that he was not under arrest and could leave at any time. There was no
indication that this interview was prolonged. Defendant did not complain that he was deprived
of food or medical attention, nor did defendant argue that he was physically abused or
threatened. Further, there is no indication that defendant was intoxicated at the time he made the
statement. Finally, we do not believe that the trial court clearly erred by finding that that
defendant’s primary complaint regarding the “trickery” purportedly used by the police officer
was not even supported by the evidence. Thus, we conclude that, under the totality of the
circumstances, the trial court did not err by denying defendant’s motion to suppress the first
statement.
Next, defendant argues that there was insufficient evidence presented at trial to support
his conviction. A challenge to the sufficiency of the evidence requires us to determine “whether
the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in
finding guilt beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399; 614 NW2d 78
(2000).
Defendant was convicted of first-degree criminal sexual conduct. MCL 750.520b(1)(a)
provides that “[a] person is guilty of criminal sexual conduct in the first degree if he or she
engages in sexual penetration with another person and . . . [t]hat other person is under 13 years of
age.” Sexual penetration is defined in pertinent part as “anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal openings
of another person’s body, but emission of semen is not required.” MCL 750.520a(l). Here, the
victim testified that defendant took the victim’s pants off and defendant put his penis “in my
butt.” The victim stated that this lasted approximately two minutes and was painful. When
defendant was finished, the victim had a “wet” substance on him, which he wiped off with a
towel after he ran to the bathroom. The victim was seven years old. As such, viewed in a light
most favorable to the prosecution, there was sufficient evidence to support defendant’s
conviction for first-degree criminal sexual conduct.
Nevertheless, defendant contends that the victim’s testimony was inconsistent with
statements he had previously given to police. Defendant also points out that plaintiff’s case
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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rested entirely on the victim’s testimony. It is well established, however, that we “should not
interfere with the jury’s role of determining the weight of the evidence or the credibility of
witnesses.” People v Lee, 243 Mich App 163, 167; 622 NW2d 71 (2000). Indeed, the jurors in
this case were presented with conflicting testimony, which required them to make a
determination concerning the credibility of each witness and the weight to afford each witness’
testimony. The jury apparently found the victim’s testimony credible, despite the inconsistencies
between his testimony and the statements he made to police. Thus, we find that defendant’s
argument fails.2
Finally, defendant contends that the trial court incorrectly scored fifty points for offense
variable seven (“OV-7”), MCL 777.37. MCL 777.37 provides:
(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by
determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:
(a) A victim was treated with terrorism, sadism, torture, or excessive
brutality . . . 50 points
(b) No victim was treated with terrorism, sadism, torture, or excessive
brutality . . . 0 points
(2) As used in this section:
(a) “Terrorism” means conduct designed to substantially increase the fear
and anxiety a victim suffers during the offense.
(b) “Sadism” means conduct that subjects a victim to extreme or
prolonged pain or humiliation and is inflicted to produce suffering or for the
offender’s gratification.
“The interpretation and application of statutes is a question of law that is reviewed de novo by
this Court.” People v Al-Saeigh, 244 Mich App 391, 394; 625 NW2d 419 (2001).
In this case, the trial court rejected defendant’s argument that OV-7 was improperly
scored, explaining as follows:
The Court finds that this variable has been properly scored. What I have is a very
young individual here, the victim, who was very obese, who suffered at the hands
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Defendant also contends that his conviction was against the great weight of the evidence.
Where, as here, a motion for a new trial is not made below, we will only consider the issue if the
failure to do so would result in a miscarriage of justice. People v Noble, 238 Mich App 647,
658; 608 NW2d 123 (1999). For the same reasons that we believe that there was sufficient
evidence to support defendant’s conviction, we conclude that the failure to consider this
argument would not result in a miscarriage of justice. Consequently, we decline to further
consider this issue.
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of this particular individual. He was beaten prior to this act taking place, struck
across – around his face and body parts, as described by the nurse based on the
bruises that she observed on him when he was taken to the hospital. He was
subjected to humiliation and pain. He indicated, I believe, even when he testified,
that he couldn’t walk right for about a week afterwards based on that beating.
Based on the conduct and the humiliation that this rather obese young boy went
through, the added effect that during the process of this rape that he was
threatened with physical harm, that he was going to be killed if he ever told
anyone, based on that increased anxiety that he has felt and the effect it has had
on his ability and self-esteem, I think the variable is properly scored and would
leave it at 50 points.
Here, we believe that the trial court’s findings support a conclusion that the victim was treated
with “sadism,” inasmuch as the evidence suggests that the victim was subjected to humiliation
and extreme pain. Indeed, the nurse who examined the victim also noticed bruising on his left
breast, right breast, and temple. There was also bruising and redness around the victim’s rectum.
In addition, the presentence investigation report indicates that defendant told the victim that he
would kill him if he told anyone. We find that this evidence supports a finding that defendant
also terrorized the victim. Thus, we do not believe that the trial court erred as a matter of law by
scoring OV-7 at 50 points. MCL 777.37.
Affirmed.
/s/ Donald S. Owens
/s/ Jane E. Markey
/s/ Christopher M. Murray
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