190 Mich. App. 574
PROCEDURAL POSTURE: Defendant appealed a judgment from the trial court (Michigan), which entered judgment on a jury verdict that convicted defendant of third degree criminal sexual conduct in violation of Mich. Comp. Laws § 750.520d(1)(b) (Mich. Stat. Ann. § 28.788(4)(1)(b)). Defendant received a sentence of three years and nine months to 10 years' imprisonment.
-Wilhelm (D) was at a bar where he observed the victim lift her shirt for her two male companions. -Wilhelm also saw that she allowed one of her companions to touch her breasts.
-Later that night, the victim went home with him and they engaged in sexual intercourse, which she later claimed was nonconsensual.
-Wilhelm was subsequently convicted of third-degree criminal sexual conduct.
-At trial, Wilhelm sought to introduce evidence of the victim’s public behavior at the bar.
-The prosecutor moved to exclude the evidence, arguing that the state’s rape shield statute prohibited evidence of the victim’s prior sexual conduct with others.
-After defendant was charged with first degree criminal sexual conduct and kidnapping, a jury convicted defendant of third degree criminal sexual conduct.
-The court affirmed defendant's conviction and sentence.
Where the victim testified that penetration, rather than sexual contact, occurred, and where defendant testified that consensual sexual contact and penetration had occurred, the trial court properly denied defendant's request to instruct the jury regarding second degree criminal sexual contact.
-The trial court also did not err in prohibiting defendant from introducing certain testimony concerning alleged sexual acts of the victim directed toward two other men in a bar that defendant claimed to have observed. Defendant had failed to comply with the notice requirement of the rape-shield statute, Mich. Comp. Laws § 750.520j (Mich. Stat. Ann. § 28.788(10)).
-The public nature of the victim's alleged acts did not remove those acts from the protection of the rape-shield statute.
-Moreover, although defendant observed the victim's alleged conduct with third parties, it was not relevant to the issue whether she consented to sexual intercourse with defendant later that evening.
OUTCOME: The court affirmed defendant's conviction and sentence for third degree criminal sexual conduct.
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