PEOPLE OF MI V RUSSELL RICHARD STOKES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 22, 2008
Plaintiff-Appellee,
v
No. 276839
Kent Circuit Court
LC No. 06-002502-FH
RUSSELL RICHARD STOKES,
Defendant-Appellant.
Before: Murphy, P.J., and Bandstra and Beckering, JJ.
PER CURIAM.
Defendant Russell Richard Stokes appeals as of right his jury trial convictions for one
count of assault with intent to commit sexual penetration, MCL 750.520g(1), and three counts of
contributing to the delinquency of minors, MCL 750.145. Defendant was sentenced as an
habitual offender, second offense, MCL 769.10, to six months in jail and 60 months’ probation
for assault with intent to commit sexual penetration, and 90 days in jail for each count of
contributing to the delinquency of minors. We affirm.
Defendant first argues that his conviction for assault with intent to commit criminal
sexual conduct should be vacated because the admission of his inculpatory statement violated the
corpus delicti rule. When reviewing a trial court’s decision to admit evidence in satisfaction of
the corpus delicti requirement, we review for an abuse of discretion. People v King, 271 Mich
App 235, 239; 721 NW2d 271 (2006). “The corpus delicti rule requires that a preponderance of
direct or circumstantial evidence, independent of a defendant’s inculpatory statements, establish
the occurrence of a specific injury and criminal agency as the source of that injury before such
statements may be admitted as evidence.” Id., quoting People v Burns, 250 Mich App 436, 438;
647 NW2d 515 (2002); see also, People v McMahan, 451 Mich 543, 548-549; 548 NW2d 199
(1996); People v Konrad, 449 Mich 263, 269-270; 536 NW2d 517 (1995). The purpose of the
corpus delicti rule is to prevent a defendant from being convicted of a crime that did not occur
and to minimize the weight of a confession by requiring collateral evidence to support a
conviction. McMahan, supra at 548-549; Konrad, supra at 269. Where a defendant makes
admissions of fact that do not amount to confessions of guilt, those admissions may be admitted
to prove the corpus delicti of the crime. People v Rockwell, 188 Mich App 405, 407; 470 NW2d
673 (1991), citing People v Porter, 269 Mich 284, 289-291; 257 NW 705 (1934).
To convict defendant as charged, the prosecution had to prove beyond a reasonable doubt
that there was (1) an assault, (2) with the intent to commit criminal sexual penetration. MCL
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750.520g; People v Nickens, 470 Mich 622, 627; 685 NW2d 657 (2004). An assault ‘“is made
out from either an attempt to commit a battery or an unlawful act which places another in
reasonable apprehension of receiving an immediate battery.”’ People v Johnson, 407 Mich 196,
210; 284 NW2d 718 (1979), quoting People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978).
A “battery is an intentional, unconsented and harmful or offensive touching of the person of
another, or of something closely connected with the person.” People v Reeves, 458 Mich 236,
240 n 4; 580 NW2d 433 (1998).
Here, the prosecutor presented sufficient circumstantial evidence, apart from defendant’s
statement, that defendant assaulted the victim with the intent to commit sexual penetration. At
trial, the then 14 year-old victim testified that, after consuming alcohol provided by defendant,
she passed out; she woke up “next to” defendant, on a bed inside defendant’s camper, wearing
only her shirt and underwear. At that time, she perceived a sensation on the “inside . . . of [her]
vaginal area.” The victim denied removing her own pants, and testified to being with defendant,
drinking and smoking, before she passed out. Later, defendant drove the victim home; during
the trip, he gave her a silver ring. Circumstantial evidence and the reasonable inferences that
arise therefrom can constitute sufficient proof of the elements of a crime beyond a reasonable
doubt. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The circumstantial
evidence supported that there was an assault on the victim and, at least, an attempt at sexual
penetration.
Next, defendant argues that the trial court abused its discretion by excluding evidence,
under the rape shield statute, MCL 750.520j, that would have impeached the credibility of the
victim. We review a trial court’s decision to exclude such evidence for an abuse of discretion.
People v Hackett, 421 Mich 338, 349; 365 NW2d 120 (1984). An abuse of discretion occurs
where a trial court’s decision falls outside of the range of principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A trial court’s decision on a close
evidentiary question ordinarily will not be considered an abuse of discretion. People v Hine, 467
Mich 242, 250; 650 NW2d 659 (2002).
During cross-examination of the victim, defendant’s trial counsel asked the victim
whether she was familiar with the physical sensations associated with sexual penetration. The
prosecutor objected, and the trial court sustained the objection because “the statute in question
[MCL 750.520j] forecloses the inquiry.”
MCL 750.520j, provides:
(1) Evidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the victim’s
sexual conduct shall not be admitted under sections 520b to 520g [MCL
750.520b to MCL 750.520g] unless and only to the extent that the judge finds
that the following proposed evidence is material to a fact at issue in the case and
that its inflammatory or prejudicial nature does not outweigh its probative
value:
(a) Evidence of the victim’s past sexual conduct with the actor.
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(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.
The evidence at issue here does not fit within any exception to the rape shield statute.
Notably, there was no allegation that the victim had engaged in past sexual conduct with
defendant, and the proposed evidence would not have showed the source or origin of semen,
pregnancy or disease. MCL 750.520j(1)(b). Instead, defendant’s trial counsel appears to have
been searching for an admission that the victim had previously been sexually active, which,
while possibly relevant to explain her perception that the sensation she felt when she awoke in
bed next to defendant was indicative of sexual contact, is precisely the type of evidence that the
rape-shield statute seeks to prohibit. MCL 750.520j; People v Adair, 452 Mich 473, 480; 550
NW2d 505 (1996). It would only serve to cast a shadow on the victim’s reputation, specifically
demonstrating that she already had sexual experiences and knows what they feel like. The
evidence was inadmissible. Further, the exclusion of this evidence did not implicate defendant’s
Sixth Amendment confrontation rights, because it did not pertain to past consensual sexual
incidents between defendant and the victim, it did not demonstrate a possible source of bias on
behalf of the victim, it was not probative of any ulterior motive on the part of the victim and it
did not show that the victim previously made false accusations of rape. Hackett, supra at 348.
Therefore, the trial court did not abuse its discretion by precluding the admission of the contested
evidence.
Defendant next argues that the trial court committed plain error and violated defendant’s
Sixth Amendment right to confront the witnesses against him by precluding him from
impeaching the victim with her prior writings, which were posted on a social networking website
and which defendant asserted were inconsistent with the victim’s trial testimony. Defendant
failed to preserve this issue by arguing that the preclusion of the contested evidence violated his
Constitutional right to confront the witnesses against him. People v Coy, 258 Mich App 1, 12;
669 NW2d 831 (2003). Because defendant failed to preserve this issue, we review for plain error
that affected defendant’s substantial rights, i.e., there must be a showing that the error affected
that outcome. Carines, supra at 763. Ultimately, reversal is only required when the defendant is
actually innocent, or the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. Id. at 774.
The Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” US Const, Am VI. The
Michigan Constitution also guarantees the same right. Const 1963, art 1, § 20. The
Confrontation Clause, however, does not confer an unlimited right to admit all evidence a
defendant requests. People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). A
defendant must still comply with established rules of evidence and procedure, allowing the trial
court to exclude irrelevant evidence. Id. Thus, the right to present a defense does not include the
right to cross-examine witnesses on irrelevant issues. Hackett, supra at 344, quoting People v
Arenda, 416 Mich 1, 8; 330 NW2d 814 (1982). Trial courts retain “wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-examination based
on concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.” Adamski, supra at
138.
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As a general rule, out-of-court statements offered for their truth are considered
inadmissible hearsay and may not be admitted as substantive evidence. MRE 801(c); People v
Chavies, 234 Mich App 274, 281; 593 NW2d 655 (1999), overruled in part on other grounds
People v Williams, 475 Mich 245; 716 NW2d 208 (2006). However, a witness’s prior
inconsistent statement may be admitted to establish the truth of the matter asserted if the witness
is available for cross-examination at trial regarding the statement and if that prior statement “was
given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition . . . .” MRE 801(d)(1)(A).
On the record, defendant has not demonstrated the existence of plain error. Defendant
does not dispute that the trial court correctly determined that the writings themselves were
hearsay. He has not demonstrated that any of the writings were admissible as hearsay
exceptions. The record supports that defendant was allowed to probe all purported
inconsistencies between the victim’s trial testimony and her prior statements. Defendant was
able to elicit testimony related to the writings without their admission. Thus, he cannot
demonstrate that any error in the preclusion of the evidence affected the outcome of trial.
Defendant finally argues that he was denied a fair trial by cumulative error. Defendant’s
argument that the cumulative errors deprived him of a fair trial is without merit, because no
errors were found with regard to any of the above issues. People v Mayhew, 236 Mich App 112,
128; 600 NW2d 370 (1999).
We affirm.
/s/ William B. Murphy
/s/ Richard A. Bandstra
/s/ Jane M. Beckering
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