PEOPLE OF MI V JOSEPH MORALES
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 28, 2002
Plaintiff-Appellee,
v
No. 230683
Oakland Circuit Court
LC No. 99-169490-FC
JOSEPH MORALES,
Defendant-Appellant.
Before: Kelly, P.J. and Murphy and Murray, JJ.
PER CURIAM.
After a second trial1, defendant was convicted of three counts of first-degree criminal
sexual conduct, MCL 750.520b(1)(a) (person under thirteen years of age), and four counts of
second-degree criminal sexual conduct, MCL 750.520c(1)(a) (person under thirteen years of
age). Defendant was sentenced to fourteen to fifty years’ imprisonment for each of his firstdegree criminal sexual conduct convictions and to five to fifteen years’ imprisonment for each of
his second-degree criminal sexual conduct convictions. We affirm.
Defendant first argues that the trial court erred in dismissing his motion to disqualify the
prosecutor without first conducting a hearing. We disagree.
Defendant brought a motion to dismiss the charges, or alternatively, to disqualify the
prosecutor’s office based on alleged ex parte communications between the prosecutor and the
jurors from the first trial. Defendant failed to request an evidentiary hearing at the trial court
level; therefore, this issue is not properly preserved for appellate review. “As a general rule,
issues not raised before and considered by the lower court are not properly preserved for
appellate review.” People v Connor, 209 Mich App 419, 422; 531 NW2d 734 (1995).
Accordingly, this issue will not be reviewed absent a showing of plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130
(1999).
Defendant argues that the trial court should have held an evidentiary hearing to determine
what, if anything, was said during the conversation between the prosecutor and the jurors from
1
Defendant’s first trial resulted in a hung jury.
-1-
the first trial, which defendant alleges was an improper ex parte communication under MRPC
3.5(b).2 However, by defendant’s own admission, the prosecutor was permitted by the trial court
to speak to the first jury after the trial court declared a hung jury and dismissed the jurors.
“Once the jury has been officially discharged . . . the jury’s legal duties cease to exist; it no
longer functions as a unit charged to perform a solemn task but rather as [twelve] unsworn
members of the community; its relationship to the case has been terminated. . . .”’ People v
Henry, 248 Mich App 313, 319; 639 NW2d 285 (2001), quoting People v Rushin, 37 Mich App
391; 194 NW2d 718 (1971). Therefore, by definition, the prosecutor did not speak to the jurors
concerning a “pending matter” under the purview of MRPC 3.5(b).
Defendant seems to argue that the prosecutor received some sort of tactical advantage
based on these communications with the jurors that participated the first trial, because the
prosecutor brought a motion to limit the number of defense character witnesses at the second
trial. At the second trial, defendant was permitted to present only five of the eight original
character witnesses from the first trial. A review of the testimony of the three witnesses absent
from the second trial reveals that the testimony of each witness was cumulative to the testimony
of the five character witnesses who testified at the second trial. Thus, defendant fails to
demonstrate a plain error affecting his substantial rights.
Defendant next argues that the trial court abused its discretion when it limited defendant
to the presentation of five character witnesses. We review the trial court’s decision to admit or
exclude evidence for an abuse of discretion. People v McCray, 245 Mich App 631, 634-635;
630 NW2d 633 (2001), citing People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). This
Court “will find an abuse of discretion only if an unprejudiced person, considering the facts upon
which the trial court made its decision, would conclude that there was no justification for the
ruling made.” People v Miller, 198 Mich App 494, 495; 499 NW2d 373 (1993).
Defendant agrees that the trial court had discretion to limit the number of character
witnesses; however, defendant argues that the trial court failed to exercise its discretion in
limiting the number of character witnesses. We disagree. In People v Nemer, 218 Mich 163,
167-168; 187 NW 315 (1922), the Michigan Supreme Court held that the trial court in that case
did not abuse its discretion when it limited the number of defense character witnesses to six. In
Nemer, the Court noted the following:
The members of this [C]ourt well remember that it has been the universal practice
in the courts of this State to limit the number of character witnesses. The practice
has been so universal and of such long standing that it has not been questioned
until this case. An examination of the authorities discloses that the practice is
2
MRPC 3.5(b) provides that “[a] lawyer shall not . . . communicate ex parte with [a judge, juror,
prospective juror, or other official] concerning a pending matter, except as permitted by law . . .
.” Defendant also relied upon MCJC 3(A)(4), which provides:
A judge shall not initiate, permit, or consider ex parte communications, or
consider other communications made to the judge outside the presence of the
parties concerning a pending or impending proceeding . . . .”
-2-
general. The power to limit was in the trial judge. We do not think he abused it
in the instant case. [Id. at 169.]
Here, the prosecution brought a motion in limine to limit the number of character
witnesses defendant could present at trial. The prosecution argued that, at the first trial,
defendant called sixteen witnesses who testified about defendant’s character, and argued that the
witnesses were cumulative, time consuming, and “not felt to be helpful by any of the jurors in
the first trial.” The prosecution also argued that the trial court had the discretion to exclude
evidence, even if it was relevant, if the presentation of such evidence causes undue delay, wastes
time, or is a needless presentation of cumulative evidence.
Considering the facts before the trial court when it made its decision, it cannot be said
that an unprejudiced person would conclude that there was no justification for the trial court’s
ruling. The prosecution gave several reasons regarding why the trial court should limit the
number of defense character witnesses, while defendant offered nothing substantively regarding
why he should be allowed to present all eight of the character witnesses. Therefore, the trial
court did not abuse its discretion in limiting the number of defense character witnesses.
Next, defendant contends that the evidence presented at trial was insufficient to sustain
his convictions for first-degree criminal sexual conduct in relation to the charges based on acts of
cunnilingus. Again, we disagree. “When reviewing a claim regarding the sufficiency of the
evidence, this Court examines the evidence in a light most favorable to the prosecution to
determine if a rational jury could find that the essential elements of the offense were proved
beyond a reasonable doubt.” People v Joseph, 237 Mich App 18, 20; 601 NW2d 882 (1999).
A defendant is guilty of first-degree criminal sexual conduct if the defendant engages in
sexual penetration with another person and one of several circumstances exists. Relevant to the
instant case is the circumstance requiring the sexual penetration of a person who is under thirteen
years of age. MCL 750.520b(1)(a). Sexual penetration is defined as “sexual intercourse,
cunnilingus, fellatio, 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(m) (emphasis added).
Defendant maintains that kissing on the vagina without any intrusion into the opening
constitutes “contact,” but does not constitute “penetration” for purposes of first-degree criminal
sexual conduct. However, an “act of cunnilingus, by definition, involves an act of sexual
penetration.” People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992). The Legg Court
noted that, in People v Harris, 158 Mich App 463, 470; 404 NW2d 779 (1987), a panel of this
Court concluded that “‘it is evident that cunnilingus requires the placing of the mouth of a person
upon the external genital organs of the female which lie between the labia, or the labia itself
[sic], or the mons pubes [sic].’” Legg, supra at 133. Additionally, in People v Lemons, 454
Mich 234, 254-255; 562 NW2d 447 (1997), the Michigan Supreme Court determined that, while
it is necessary to demonstrate actual penetration when attempting to establish an act of fellatio,
cunnilingus, by definition, does not require penetration. We conclude that there was sufficient
evidence to establish defendant performed acts of cunnilingus on the victim based on her
testimony. When reviewing the evidence in a light most favorable to the prosecution, the
victim’s testimony that defendant kissed her on her “front private” with his tongue while moving
-3-
his tongue around was sufficient to establish the element of penetration necessary to sustain his
convictions for first-degree criminal sexual conduct.
Finally, defendant argues that the trial court erred when it failed to instruct the jury on the
statutory definition of penetration. We disagree. “A party must object or request a given jury
instruction to preserve the error for review.” People v Sabin (On Second Remand), 242 Mich
App 656, 657; 620 NW2d 19 (2000). After the trial court instructed the jury, defendant did not
object or request an instruction on the statutory definition of penetration. Therefore, defendant
has not properly preserved this issue for appellate review. Unpreserved allegations of error
regarding issues involving jury instructions are reviewed for plain error. Carines, supra at 766767; People v Knapp, 244 Mich App 361, 375; 624 NW2d 227 (2001). In order to avoid
forfeiture of unpreserved errors, a defendant must demonstrate that an error occurred, the error
was plain, i.e., clear or obvious, and the error affected the defendant’s substantial rights, i.e.,
affected the outcome of the trial court proceedings. Carines, supra at 761-764.
The trial court instructed the jury as follows regarding the charges involving cunnilingus:
The Defendant is charged in Counts 5, 6 and 7 with the crime of First Degree
Criminal Sexual Conduct.
To prove this charge, the Prosecutor must prove each of the following elements
beyond a reasonable doubt:
First, that the Defendant engaged in a sexual act that involved the touching of [the
victim’s] genitals with the Defendant’s tongue.
Second, that [the victim] was less than thirteen (13) years old at the time of the
alleged act.
The trial court’s instruction basically mirrors that of the standard criminal jury instruction. See
CJI2d 20.1. The victim testified that defendant kissed her “front private” with his tongue, and
that she felt his tongue move around. Although defendant claims the trial court erred in failing to
provide further instruction on the element of penetration, such reasoning is unsupported by case
law. As previously stated, this Court has held that an act of cunnilingus, by definition, involves
an act of sexual penetration. Legg, supra at 132-133. Therefore, the trial court did not err in
instructing the jury regarding the charges based on cunnilingus. Accordingly, defendant has
failed to demonstrate a plain error affecting his substantial rights.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Christopher M. Murray
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
