People v. Garland

Per Curiam.

Defendant was convicted by a jury of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), and of absconding in criminal proceedings, MCL 750.199a; MSA 28.396(1). He was sentenced to concurrent prison terms of from ten to fifteen years and two to four years. Defendant appeals as of right.

Defendant was charged with sexually assaulting his seven-year-old daughter, Jaydeen, on January 7, 1982,'by touching her vaginal area. At trial it was established that in January, 1982, Jaydeen was attending school for the educable mentally impaired and that she functioned very low academically. She was twice determined prior to trial to be incompetent to testify. However, following a third pretrial hearing, the district court judge found her competent to testify at trial. At an in camera proceeding, the trial court likewise concluded that Jaydeen was able to understand the difference between truth and falsehood and qualified her as a witness.

Jaydeen testified that on January 7, 1982, she *305and defendant took a bath together and then defendant put his finger in her vagina. On cross-examination, Jaydeen denied that she had been home alone with her father and both admitted and denied that defendant had touched her vagina. Prior to her testimony, Jaydeen’s school teacher and school principal testified as to Jaydeen’s statements made to them on the day following the incident.

The witnesses testified that on January 8, 1982, Jaydeen and a young boy were found exposing themselves underneath a cement turtle on the school playground. When the witnesses confronted the children, Jaydeen blurted out that she would not take the boy out to "play games” like she and her father did anymore. When questioned about the "games,” Jaydeen responded that she and her father would go up and down in a chair together, would take baths together, and lie in bed and look at pictures of naked women. When asked if her father touched her, Jaydeen responded yes and pointed to her vaginal area. Jaydeen told them that the "games” had occurred the preceeding evening when her mother and sisters were gone. Both witnesses testified that Jaydeen became progressively more excited and upset as the questioning continued. After the conversation, the principal called protective services and charges were eventually brought against defendant.

The testimony of Lynett Purdy, Jaydeen’s half sister and defendant’s stepdaughter, and the testimony of Sherry Bishop, defendant’s natural daughter, were admitted under MRE 404(b) to show defendant’s scheme, plan or system. Purdy was fourteen years old and Bishop was twenty-one at the time of trial. Both witnesses testified that, when they were young, defendant had engaged in what he called "games” with them. Purdy recalled *306that she would sit naked in chairs with defendant until he ejaculated, they would shower together and lie in bed together and look at pictures of naked women. Bishop testified to similar episodes.

In his defense, defendant presented the testimony of Helen Garland, his present wife and Jaydeen’s stepmother, and Heidi and Susan Vincent, Helen’s daughters and defendant’s stepdaughters. They testified that on January 7, 1982, Jaydeen was not left home with defendant but that she had gone to K-mart with her stepmother and stepsister. When they returned, Helen Garland and defendant went to the movies while Susan Vincent gave Jaydeen a bath and put her to bed.

Defendant raises several issues on appeal, the first of which involves the admission of the testimony of the school teacher and principal relating to Jaydeen’s statements. The court admitted the statements under the excited utterance exception to the hearsay rule. MRE 803(2). In order for Jaydeen’s statement to be admissible under this exception, her statement must (1) have arisen out of a startling occurrence, (2) have been made before there had been any time to contrive or misrepresent, and (3) relate to the circumstances of the startling occurrence. People v Gee, 406 Mich 279; 278 NW2d 304 (1979). The determination of whether the statement is admissible as an excited utterance is within the trial court’s discretion. People v Lobaito, 133 Mich App 547; 351 NW2d 233 (1984).

While it is arguable that the startling event which provoked Jaydeen’s statement was the playground incident, we are not convinced that the sexual assault of the previous evening was not causally connected.

Although Jaydeen did not immediately report *307the assault either that evening or early the following morning, this Court has previously found that an overnight delay or even a delay of several days does not negate application of the excited utterance exception if there was a plausible explanation for the delay. See People v Soles, 143 Mich App 433; 372 NW2d 588 (1985); People v Cobb, 108 Mich App 573; 310 NW2d 798 (1981); In the Matter of Meeboer, 134 Mich App 294; 350 NW2d 868 (1984). Here the victim was a seven-year-old child of limited mental ability. Furthermore, the defendant had apparently threatened his daughter not to tell anyone of the "games.” These circumstances make it unlikely that Jaydeen would have contrived or misrepresented the sexual matters and provide a plausible explanation for the delay. Meeboer, supra. We conclude that the trial court did not abuse its discretion in admitting the statement.

Defendant next claims that the trial court erred by refusing to exclude the similar-acts testimony of Lynett Purdy and Sherry Bishop. MRE 404(b) and MCL 768.27; MSA 28.1050 allow the admission of similar-acts testimony under limited circumstances. Whether or not to admit the testimony is within the trial court’s discretion. People v Alexander, 142 Mich App 231; 370 NW2d 8 (1985). People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982), set forth the requirements which must be met before such evidence may be introduced:

(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the *308slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of the factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.

After applying the test to the facts at hand, we find no abuse of discretion by the trial judge in allowing the testimony to be presented to the jury.

The crux of defendant’s claim is that the testimony was not material to a determination of guilt and that it failed to show a common scheme. We disagree. Not only did the witnesses testify to defendant’s use of the term "games” but each witness also described remarkably similar conduct. Moreover, each testified that the episodes occurred when they were prepubescent. Accordingly, we believe that the prior acts were so similar that they established defendant’s scheme, plan or system in engaging in the misconduct. Since defendant put into issue his opportunity to commit the offense, the testimony was admissible to show his method or system of committing the acts. Finally, we note that the trial court instructed the jury as to the limited purpose of admitting the similar-acts evidence. Under these circumstances, we are not persuaded that the admission was an abuse of discretion.

Neither do we believe that the Supreme Court’s decision in People v Jones, 417 Mich 285; 335 NW2d 465 (1983), mandates a different conclusion. Unlike the prior-acts testimony in Jones, the evidence in the instant case was admitted only under a similar-acts analysis. The Supreme Court recognized that evidence of prior sexual acts between a *309defendant and others could be admissible on this basis. 417 Mich 290, n 1.

Defendant also contends that error occurred when the trial court excluded him from the in camera competency hearing. MCL 600.2163; MSA 27A.2163 provides that an examination of a child may be made either "publicly, or separate and apart.” As defense counsel acknowledged on the record, this determination is within the discretion of the court. We do not dispute that defendant has a right to be personally present during any stage of the proceedings when his substantial rights may be adversely affected. People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984); MCL 768.3; MSA 28.1026. Nonetheless, we do not believe that defendant’s absence from the in camera hearing which was strictly limited to the issue of competency adversely affected his substantial rights.

We likewise reject defendant’s claim that it was error to permit both attorneys to examine the witness during the hearing. The statute does not proscribe the parties from questioning the witness but only requires that the court conduct its own inquiry and make its own determination. MCL 600.2163; MSA 27A.2163. A review of the record reveals that this requirement was met.

Finally, we note that defendant failed to object to the court’s determination to qualify the child as a witness. Defendant’s failure to object to the admission of the testimony waived his right to assert this error on appeal. Cobb, supra.

Next, defendant asserts that the prosecutor impermissibly led Jaydeen during his examination of the witness. The trial court has discretion to permit the use of leading questions. MCL 768.24; MSA 28.1047. Given the witness’s age, mental abilities and the nature of the offense, we are not *310persuaded that the use of leading questions was improper.

We are equally unpersuaded that the prosecutor’s comments during closing or rebuttal argument were improper and require reversal. Defendant failed to object to any comments during closing argument and his objections during rebuttal were limited to charges of facts not in evidence. After each objection, the court duly instructed the jury that they were to judge the facts. Moreover, our review of the record indicates that, in both closing and rebuttal argument, the prosecutor was merely commenting on the evidence and the demeanor of the witnesses and the inferences which could be drawn therefrom. His comments were within the ambit of proper closing argument. People v Buckey, 424 Mich 1; 378 NW2d 432 (1985); People v Janear, 140 Mich App 222; 363 NW2d 455 (1985). Defendant cannot claim error merely because the testimony of the witnesses was emotional and sympathetic.

Because we do not find that any errors occurred in the conduct of the trial, we do not believe that defendant was denied a fair and impartial trial.

Defendant’s final issue concerns the court’s departure from the sentence recommended by the Michigan sentencing guidelines. In articulating its reasons for departure, the trial court explained that the guidelines did not adequately meet the requirements of the case because defendant’s sexual activities were of an ongoing nature, the victim was young and she experienced emotional difficulties. These reasons were sufficient to satisfy the departure policy set forth in the guidelines. Administrative Order 1984-1, 418 Mich lxxx (1984); People v Kenneth Johnson, 144 Mich App 125; 373 NW2d 263 (1985); People v Fleming, 142 Mich App 119; 369 NW2d 499 (1985). Neither does the ten- to *311fifteen-year sentence imposed on defendant for sexually assaulting his seven-year-old daughter shock our judicial conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983).

Affirmed.