PEOPLE OF MI V GREGORY JOHN WALKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 25, 2008
Plaintiff-Appellee,
v
No. 275656
Wayne Circuit Court
LC No. 06-010957-01
GREGORY JOHN WALKER,
Defendant-Appellant.
Before: O’Connell, P.J., and Borrello and Gleicher, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of third-degree criminal
sexual conduct, MCL 750.520d(1)(a). He was sentenced as a second habitual offender, MCL
769.10, to concurrent prison terms of 12½ to 22½ years for each count. He appeals as of right.
We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
This case arose while the thirteen-year-old victim was babysitting at the house of a family
friend named Mona while Mona went shopping. Mona had two adult guests staying at the house,
defendant and a man named Mike. The record reflects that after Mona’s children went to bed,
the victim went down to the basement to watch the men play cards. While in the basement, she
drank two alcoholic coolers. After the game, Mike suggested that the victim sleep in his
basement bedroom while he slept on a couch in another area of the basement, but defendant
insisted that the victim sleep upstairs. The victim testified that she went upstairs and lay down
on the couch to watch television. Defendant followed her upstairs, sat on the floor, and watched
with her. After about thirty minutes, defendant moved to the couch and removed the victim’s
pants. He first penetrated her vagina with his penis, but eventually stopped to prevent
ejaculation. He then performed cunnilingus on her and digitally penetrated her vagina. The
victim did not initially tell Mona about the incident, but the next day defendant made a vulgar
statement to Mona about sexually penetrating the victim. Mona told him that he had better not
be serious, and defendant did not say anything more. A few months later, the victim took a trip
up north with Mona and some of her friends. One of them asked the victim whether she had ever
had sex, and the victim said that she had never had consensual sex. Crying, she then asked Mona
whether someone could get pregnant from an individual who had undergone a vasectomy. When
one of the women asked the victim if defendant, who openly discussed his vasectomy, was the
individual who had sex with her, she confided in Mona that defendant had touched her
inappropriately. When they returned from the trip, Mona took the victim to report the matter to
police.
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Defendant first argues that the trial court committed reversible error by creating a
conclusive presumption regarding the complainant’s age. The argument stems from an
instruction to the jury about reasonable doubt. After the jury asked to be reinstructed on the
issue of reasonable doubt, the court reiterated the elements of the charged crimes, and for the
sake of example, stated:
The elements, the easy one in terms of what the parties have already stipulated to
is the age of the complainant. That’s one of the elements. Okay? Is the
complainant thirteen, fourteen or fifteen? The prosecutor has to prove that
beyond a reasonable doubt.
Defendant argues that the trial court erred because the parties had not stipulated to the
victim’s age. In context, however, the trial court did not conclusively state that the parties had
stipulated that the victim was a particular age, but instead, it specifically instructed the jury that it
must determine whether the prosecutor established the age element beyond a reasonable doubt.
Furthermore, the victim testified about her date of birth without contradiction, and, according to
the date she provided, she was still thirteen years of age when she testified at trial. Therefore,
the jury had ample evidence of the victim’s age and no evidence to contradict it. This explains
why defense counsel, in his closing argument, conceded that the prosecutor had proven, beyond
a reasonable doubt, that the victim was somewhere between the ages of 13 and 16 years old and
added that it was “true” and that there “was no question about that.” This statement was
tantamount to a stipulation regarding the victim’s age, and defendant cannot now complain that
the trial court took counsel at his word. See People v Gonzalez, 256 Mich App 212, 224; 663
NW2d 499 (2003).
Defendant next argues that the trial court should not have allowed Mona to testify about
the victim’s recitation of events that occurred on their trip up north. We disagree. The decision
whether to admit evidence is within the discretion of the trial court and will not be disturbed
absent an abuse of discretion. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). An
error that results in the admission of evidence does not merit reversal unless it appears that it is
more probable than not that the error was outcome determinative. MCL 769.26; People v Lukity,
460 Mich 484, 495-496; 596 NW2d 607 (1999).
In this case, the trial court did not abuse its discretion when it admitted Mona’s testimony
regarding statements that the victim made a few months after the offense. Defendant argues that
the testimony was hearsay. At the outset, we note that defendant did not object when the victim
testified that she had informed Mona about the relevant events on a trip up north. On appeal,
defendant does not raise any claim of error regarding this testimony. Instead, defendant argues
that the trial court abused its discretion by allowing Mona to testify about the victim’s statements
to her while on the trip.
According to MRE 801(d)(1)(B), a witness’s prior consistent1 statement is not hearsay if
it is offered to rebut an implication that the victim acted on an ulterior motive for bringing the
1
Although defendant argues that not all the statements elicited were consistent with the victim’s
testimony, we are not persuaded. Those statements that were offered for the proof of the matter
(continued…)
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allegations, conformed them to some improper influence, or outright fabricated them. Defendant
is quick to point out, however, that a victim’s “consistent statement made after the motive to
fabricate arose does not fall within the parameters of the hearsay exclusion for prior consistent
statements.” People v Rodriquez (On Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996).
Although defendant argues that the victim’s motive to fabricate predated all of the statements
presented, this argument takes an overly narrow view of the case.
During the victim’s cross-examination, defense counsel elicited that Mona and defendant
had a falling out that predated the trip up north, and that they had other arguments that eventually
led to Mona asking defendant to leave her home. Defense counsel asked the victim whether
Mona really took a shopping trip on the night at issue, or whether she secretly went out for an
evening with someone other than her boyfriend. Defendant also asked the victim about her own
behavior on the night in question, such as her smoking and drinking alcohol. In defense
counsel’s opening statement, he had told the jurors that they would hear two versions of events,
implying that the victim fabricated her version. So before the prosecutor examined Mona about
the victim’s statements to her, defendant had implied several motives for fabricating the
allegations, including Mona’s improper influence.
Although the victim testified that defendant and Mona had engaged in arguments before
the trip up north, the record reflects that the two adults traded rancorous words and emotional
barbs many other times between the trip up north and the time defendant was charged.
According to defendant’s own testimony, his relationship with Mona was scarred by a series of
breaches of confidentiality about Mona’s private life, some occurring before he was charged with
these crimes and some occurring afterward. The insidious implication at trial was that the
witnesses were reacting to defendant’s threatened and actual disclosure of their misdeeds.
Defendant admitted that he made at least some of these disclosures after the victim and Mona
went up north. The general implication of improper influence was not dampened by defendant’s
efforts to assert earlier grounds for the witnesses’ “real” motives. In any event, the trial court did
not act outside the scope of its discretion by allowing the prosecutor to rebut the somewhat vague
allusions to Mona’s wrongful influence before they were fully presented by defense counsel.
MRE 801(d)(1)(B).
Finally, defendant argues that the trial court improperly addressed his refusal to admit
guilt and used it against him at sentencing. We disagree. Defendant did not object to the
sentencing court’s repeated reference to his claims of innocence, so we review the issue for plain
error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999). A sentencing court “cannot base its sentence even in part on a defendant’s refusal to
admit guilt.” People v Yennior, 399 Mich 892; 282 NW2d 920 (1977). However, there is some
legal support for the proposition that if “the court did no more than address the factor of
remorsefulness as it bore upon defendant’s rehabilitation, then the court’s reference to a
defendant’s persistent claim of innocence will not amount to error requiring reversal.” People v
Wesley, 428 Mich 708, 713; 411 NW2d 159 (1987) (Archer, J., joined by Griffin, J.). Here, the
trial court’s statements addressed defendant’s potential for rehabilitation and the court’s
(…continued)
asserted were all consistent with the victim’s testimony of events. MRE 801(c).
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corresponding duty to protect society. The court also addressed the issue of defendant’s cross
accusations against the victim and his abrasive demeanor at trial and sentencing, which went
well beyond mere denial.2 Under the circumstances, we are not persuaded that the trial court
committed plain error by referring to defendant’s remorselessness, so we do not vacate his
sentence on these unpreserved grounds. Carines, supra.
Affirmed.
/s/ Peter D. O’Connell
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
2
It is worth noting that the stated constitutional basis for the general rule is that a defendant
should not be compelled to incriminate himself. People v Conley, 270 Mich App 301, 314; 715
NW2d 377 (2006); US Const Am V; Const 1963, art 1, § 17. In this case, however, defendant
openly waived his Fifth Amendment rights, so the ordinarily clear application of the bright-line
rule in Yennior, supra, is blurred by a defendant’s demonstrably remorseless and patently
fabricated rendition of events. Certainly, we should not stretch the rule’s application so far that it
provides immunity to a defendant for his decision to assign blame to the victim or otherwise
demonstrate his absolute lack of remorse, civility, or conscience.
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