PEOPLE
v.
MEDRANO
Docket No. 45862.
Michigan Court of Appeals.
Decided November 19, 1980.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger, Prosecuting Attorney, and C. Sherman Mowbray, Assistant Prosecuting Attorney, for the people.
Thomas S. Ereland, for defendant.
*580 Before: ALLEN, P.J., and D.F. WALSH and G.R. McDONALD,[*] JJ.
G.R. McDONALD, J.
Defendant James B. Medrano was found guilty by a jury of criminal sexual conduct in the third degree, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), and was sentenced to 7-1/2 to 15 years in prison. He now appeals as of right.
The prosecution's case was based primarily on the testimony of the complaining witness. She stated that on September 3, 1978, she voluntarily went on a motorcycle ride with defendant. Defendant drove to a park, where the two got off the motorcycle and walked to a tree near a clearing. There, defendant spread his coat on the ground, threatened complainant and removed her clothes. The two had sexual intercourse, during which defendant pulled up complainant's bra and sucked on her breasts. Defendant denied coercing or threatening complainant, claiming that the sexual relations were consensual. After intercourse, the parties went to a restaurant for lunch and defendant took complainant home. There, blood was discovered on complainant's pants.
Defendant initially claims on appeal that the trial court erred in refusing to suppress the admission into evidence of complainant's blood-stained slacks and underpants. Defendant challenged the admission into evidence of these articles at a pretrial suppression hearing on relevancy grounds, arguing that the probative value of the items was outweighed by their inflammatory nature. The trial court considered the possible prejudice to be minimal and denied defendant's motion.
MRE 401 defines "relevant evidence" as "evidence *581 having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence". Here, the questions of whether penetration occurred and whether it was coerced were crucial to the determination of guilt or innocence. Complainant testified that she felt defendant's penis within her vagina and that it was painful. She further indicated that the blood stains on her clothes were not there prior to intercourse and that they were unrelated to menstruation. The physician who examined complainant following the incident testified that he found a bruising of the posterior portion of the opening to the vagina, with blood oozing from that location. He stated that the injury was consistent with attempted forced entry.
The slacks and underpants corroborated the testimony of complainant and the examining physician. As evidence they made it more probable that forced penetration took place. Thus, it is clear that the items had probative value. While relevant evidence may be suppressed if its probative value is substantially outweighed by its prejudicial impact, admission is nonetheless a matter within the trial court's discretion. MRE 403, People v Ingram, 36 Mich. App. 160, 162; 193 NW2d 342 (1971). Under the facts of this case we find no abuse of discretion.
Defendant also argues on appeal that the trial court erred in refusing to instruct on the offense of gross indecency, MCL 750.338b; MSA 28.570(2). While gross indecency is not a necessarily included lesser offense of third-degree criminal sexual conduct, the two offenses do have overlapping elements. Gross indecency may consist of oral or manual sexual acts committed without consent. *582 People v Howell, 396 Mich. 16; 238 NW2d 148 (1976). Third-degree criminal sexual conduct essentially involves nonconsensual sexual penetration. Therefore, gross indecency may be considered a cognate lesser included offense. See People v Ora Jones, 395 Mich. 379; 236 NW2d 461 (1975). Complainant's testimony that defendant sucked on her breast without consent would have supported a guilty verdict of gross indecency and an instruction on that offense would have been appropriate. Id.
Nonetheless, the lower court's refusal to so instruct does not mandate reversal. Instructions were given on the lesser included offenses of attempted criminal sexual conduct in the third degree, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), MCL 750.92; MSA 28.287, as well as criminal sexual conduct in the fourth degree, MCL 750.520e(1)(a); MSA 28.788(5)(1)(a), yet the jury convicted defendant of the charged offense. We conclude that the jury had no reasonable doubt as to defendant's guilt of the charged offense and that his conviction was not the result of the mere belief that he was guilty of some wrongdoing. The jury had ample opportunity to assuage any doubts by convicting defendant of one of the lesser offenses, but chose not to. Hence we perceive no prejudice in the trial court's refusal to instruct on gross indecency. Cf., People v Herbert Ross, 73 Mich. App. 588, 592; 252 NW2d 526 (1977).[1]
*583 Defendant's final claim on appeal is that the trial court erred in providing the jury with written portions of the jury instructions. During deliberations the jury requested written definitions of the charged and lesser included offenses. The court provided the attorneys with copies of the definitions, and all agreed that they were legally correct. Defendant argues on appeal that this procedure requires reversal, since it emphasized the offense elements to the detriment of other portions of the instructions. Defendant points out that the jurors did not receive additional instruction on the burden of proof and presumption of innocence, on circumstantial evidence, on the credibility of witnesses, on police officers as witnesses and on the defendant's theory of the case.
The issue is one of first impression in Michigan. We note initially that the purpose of instructions is to enable the jury to understand and apply the law to the facts of the case. People v Lambert, 395 Mich. 296, 304; 235 NW2d 338 (1975). There is no contention that the original oral charge did not adequately perform this function. However, the jury's request reveals that its members were uncertain as to the definitions of the offenses and, perhaps, the differences between the offenses. It was within the trial court's discretion to further instruct the jury. GCR 1963, 516.4, People v Johnson (On Rehearing), 71 Mich. App. 602, 607; 248 NW2d 633 (1976). Because the written definitions only functioned to aid the jury in following the earlier oral instructions, no prejudice to defendant is apparent. Cf., State v Frank, 284 NC 137; 200 SE2d 169 (1973). Neither the court rules nor case law specifically prohibit the use of written instructions. *584 See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 564. Therefore, we perceive no abuse of discretion in reinstructing in writing.
However, we do not intend this opinion to signal our general approval of the practice of providing juries with such written definitions. Specific rules outlining the proper procedure, as well as limits on the practice, are more appropriately left to the Supreme Court. While the use of written instructions has received approval in a majority of jurisdictions considering the question, the practice is not a matter beyond debate. 91 ALR3d 382. The usefulness of written instructions is obvious. Even in simple cases, instructions tend to be long and complex, and it may be unreasonable to expect oral instructions to be fully remembered. Access to written instructions could promote jury efficiency by saving the time spent in recollection and debate over what the instructions were. See Copeland v United States, 80 US App DC 308; 152 F2d 769 (1945). On the other hand, it is conceivable that written instructions might needlessly prolong deliberations. Jurors could endlessly reread a charge, debating real or imagined legal distinctions. Access could also cause undue weight to be given to particular portions of a charge. Because of a desire to make the written instructions identical to those given orally, delay in the commencement of the deliberations could result because of the time necessary to mechanically reproduce the oral charge. We conclude that, while written instructions may well serve as an important aid to the jury's function, widespread use would best be preceded by definitive guidelines from the Supreme Court. Nonetheless, we perceive no prejudice to defendant through the use of written instructions in this case.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] People v Richardson, 409 Mich. 126; 293 NW2d 332 (1980), does not mandate reversal in this case. In Richardson, jury rejection of the offense upon which the court refused to instruct could not be logically inferred from rejection of the lesser offenses actually instructed on. The defendant's theory of the case was that he did not intend for his actions to cause the decedent serious bodily harm. Instruction on second-degree murder and voluntary manslaughter did not provide an outlet for the jurors had they accepted the defendant's version of the incident. Here, defendant's request for instruction on gross indecency was based on his theory that complainant consented to intercourse, but not to having her breast sucked. However, if the jury had believed that theory it could have convicted defendant of criminal sexual conduct in the fourth degree.