PEOPLE OF MI V GEORGE PERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 7, 2002
Plaintiff-Appellee,
v
No. 232243
Wayne Circuit Court
LC No. 00-004624
GEORGE PERSON,
Defendant-Appellant.
Before: Murphy, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(a) (person under thirteen). The trial court sentenced
him to eleven to twenty-five years’ imprisonment. Defendant appeals as of right. We affirm.
I. Basic Facts and Procedural History
The incidents giving rise to defendant’s prosecution for first-degree criminal sexual
conduct began when the victim was four years old and continued until the victim was six years
of age. The first incident occurred at the victim’s aunt’s home when defendant put his “wee wee
between [her] butt . . . and little private.” The victim stated that defendant repeated this conduct
more than five times but less than ten. In addition, the victim also stated that defendant put his
“wee wee” in “[her] private part” more than five times but less than ten. According to the
victim, sometimes she had her underwear on and sometimes she had them off. However, on one
occasion, the victim testified that defendant reached up her dress, pulled her underwear aside so
that he could place his penis in between the victim’s buttocks and vaginal area.
After defendant’s conduct came to light, the victim had a physical examination which
revealed no physical evidence of sexual assault, that being no trauma to the anal or vaginal
opening. The physical examination also revealed that the victim’s hymen was intact and that she
did not have any sexually transmitted diseases. The jury found defendant guilty on all three
counts of first-degree criminal sexual conduct.
II. Sufficiency of the Evidence
First, defendant argues that there was insufficient evidence of penetration to convict him
of first-degree criminal sexual conduct because the victim’s testimony was “uncertain.” We
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disagree. This Court reviews de novo claims pertaining to the sufficiency of the evidence.
People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). In a criminal case, the test
for determining the sufficiency of evidence is “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).
According to MCL 705.520a(m), among other things, “sexual penetration” includes “any
. . . 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.” [Emphasis
added.] In the instant case, the victim consistently testified that defendant placed his penis in
between her buttocks and genitalia more than five times. For purposes of the statute, the labia
are included in the “genital openings” of a female. People v Legg, 197 Mich App 131, 133; 494
NW2d 797 (1992). Thus, even if defendant’s penis only entered the victim’s labia, that is an
entry into the “genital openings” of the victim sufficient to establish penetration for purposes of
first-degree criminal sexual conduct. See Id. Similarly, the act of placing one’s penis in between
another’s buttocks in the area of the anal opening is indeed an act of sufficient physical
invasiveness to constitute “sexual penetration.” See People v Hammons 210 Mich App 554, 557;
534 NW2d 183 (1995) (stating that the defendant committed “an act of sufficient physical
invasiveness to constitute `sexual penetration’” for purposes of criminal sexual conduct, firstdegree where the victim’s underwear covered the vaginal opening but where the defendant’s
finger forced her underwear “inward.”)
This case turns on the victim’s credibility. The jury accepted the victim’s rendition of the
facts and by doing so thus determined that defendant engaged in sexual penetration with the
victim and that the victim was under the age of thirteen. MCL 750.520b(1)(a). Considering the
evidence presented in a light most favorable to the prosecution, we find that the evidence set
forth would warrant a reasonable juror in finding defendant’s guilt beyond a reasonable doubt.
We find no error in this regard.
III. Prosecutorial Misconduct
Next, defendant contends that the prosecutor mischaracterized the evidence during his
closing argument by suggesting that defendant placed his penis between the victim’s labia and
masturbated where such a claim was not supported by any evidence submitted during trial. We
disagree.
In closing argument, the prosecutor stated:
I submit to you that what [defendant] was doing was placing his penis between
the labia majora and masturbating. [Defendant] is a man who would know that if
you stick your penis inside of the child the way that you have sex with a woman,
that is going to leave evidence. She’s going to bleed. She’s going to cry. She’s
going to be injured. You cannot hide that. So what [defendant] did was he placed
his penis in the opening and he just masturbated.
Defendant did not object. In rebuttal, and again without objection, the prosecutor
revisited this theory and stated, “men who have had the opportunity to understand that bodies of
women, understand that placing the penis between the labia, which are the lips, is not going to
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cause any injury.” The jury found defendant guilty on all three counts of first-degree criminal
sexual conduct.
This Court reviews de novo claims for prosecutorial misconduct. People v Pfaffle, 246
Mich App 282, 288; 632 NW2d 162 (2001). We consider alleged prosecutorial misconduct on a
case by case basis. Incumbent upon this Court is to examine the remarks in context and
determine whether the prosecutor’s commentary deprived defendant of a fair trial by an impartial
decision maker. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). As an initial
matter, we observe that defendant did not object to the statements which defendant now claims
constitute prosecutorial impropriety. Thus, we review the issue for plain error. People v
Carines, 460 Mich 750, 752-753, 764; 597 N.W.2d 130 (1999); People v Schutte, 240 Mich App
713, 720; 613 N.W.2d 370 (2000). To avoid forfeiture, defendant must demonstrate plain error
that affected the outcome of the proceedings. Aldrich, supra at 110.
Defendant argues that it was improper for the prosecutor to suggest that defendant was “a
man who would know” that inserting his penis into a child’s vagina would necessarily leave
evidence of sexual trauma. And, to avoid leaving such evidence, defendant merely placed his
penis in between the victim’s labia and masturbated. Defendant takes exception to these
comments because they assume facts not placed into evidence at any time during the course of
the proceedings. Defendant therefore contends that the prosecutor distorted the record to secure
defendant’s conviction. We disagree.
A review of the prosecutor’s statements reveals that the prosecutor was merely positing
how defendant could have committed the act without leaving any signs of physical trauma.
Toward that end, the prosecutor was attempting to reconcile all of the evidence presented.
Moreover, the record reveals that not only did counsel for defendant fail to lodge an objection,
counsel actually responded to the prosecutor’s commentary. During defendant’s closing
argument, counsel pointed out that there was no evidence which would suggest that defendant
ever masturbated and that the prosecutor’s unsubstantiated comments in that regard did not
constitute evidence.
Simply put, there is nothing in the record upon which to discern the requisite plain error
that affected the outcome of defendant’s trial necessary to invade the jury’s province and
overturn defendant’s conviction. Similarly, there is nothing on the current record to suggest that
a timely objection and an immediate curative instruction rendered by the trial court would not
have purged any prejudicial effect cast by the prosecutor’s statements. People v Mayhew, 236
Mich App 112, 122-123; 600 NW2d 370 (1999).
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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