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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED January 10, 1997

No. 190959 Recorder's Court No. 94-007804

MICHAEL LOUIS BISZALIK, Defendant-Appellant.

Before: Griffin, P.J., and T.G. Kavanagh* and D.B. Leiber,** JJ. PER CURIAM. Defendant appeals from his jury trial convictions of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and two counts of indecent exposure, MCL 750.335a; MSA 28.567(1). Defendant was sentenced to concurrent sentences of 30 to 180 months' imprisonment for the second-degree criminal sexual conduct conviction, and nine months' imprisonment for each indecent exposure conviction. We affirm. I Defendant first argues that the trial court abused its discretion in denying defendant's motion to cross-examine complainant about complainant's exposure to sexual acts his birth mother engaged in with other men, and that defendant was thus denied his right of confrontation. Defendant argues that he should have been permitted to cross-examine the complainant as to other possible sources of his sexual knowledge, because it would have affected the reliability of complainant's testimony and aided the jurors in weighing whether defendant, as opposed to others, molested complainant. Defendant also argues that the trial court's denial of his request to present evidence as to other potential perpetrators of

* Former Supreme Court Justice, sitting on the Court of Appeals by
assignment pursuant to Administrative Order 1996-10.
** Circuit judge, sitting on the Court of Appeals by assignment.
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criminal sexual conduct on the complainant violated his rights to a fair trial and effective assistance of counsel. We disagree. The rape-shield law, with certain specific exceptions, was designed to exclude evidence of the victim's sexual conduct with persons other than defendant. People v Arenda, 416 Mich 1, 10; 330 NW2d 814 (1982). The prohibitions contained in the rape-shield law represent a legislative determination that, in most cases, such evidence is irrelevant, and that inquiries into sex histories, even when minimally relevant, carry a danger of unfairly prejudicing and misleading the jury. Id. In Arenda, supra, the defendant sought to introduce evidence of the victim's possible sexual conduct with others to explain the victim's ability to describe the sexual acts that allegedly occurred and to dispel any inference that this ability resulted from experiences with defendant. Id. at 11. The trial court had granted the prosecution's motion in limine based on the rape-shield statute to prohibit the admission of any evidence of sexual conduct between the victim and any person other than the defendant. Id. at 6. On appeal, the defendant argued that the rape-shield statute's prohibitions infringed his Sixth Amendment right of confrontation. Id. at 7. The Supreme Court held that the trial court properly excluded the evidence under the rape-shield statute without denying the defendant his constitutional rights of confrontation and cross-examination. Id. at 13. The Court concluded that the defendant's argument was insufficient to allow admission and that, generally, the relevancy of evidence of the source of a criminal sexual conduct victim's knowledge of specific sexual acts will be minimal and the potential for prejudice great. Id. at 12-13. Although this Court has held that evidence of a child rape victim's sexual contact with those other than the defendant may at times be more probative than prejudicial, People v Haley, 153 Mich App 400, 406; 395 NW2d 60 (1986), the facts of the instant case do not lend themselves to such a holding. In the instant case, there was no evidence that anyone but defendant had abused complainant, unlike in Haley. Moreover, this Court has held that a trial court considering admission of evidence of a rape victim's past sexual experience should favor exclusion as long as exclusion does not abridge the defendant's right of confrontation. People v Byrne, 199 Mich App 674, 678; 502 NW2d 386 (1993). Defendant's right to confrontation was not abridged by the trial court, as the court only precluded cross-examination regarding the victim's sexual conduct with those other than defendant, ruling that such evidence was more prejudicial than probative. Defendant was free to cross-examine complainant about his observations of others' sexual behavior, as long as the questions did not concern sexual conduct between complainant and persons other than defendant. We conclude that the trial court did not abuse its discretion in prohibiting the admission of evidence of complainant's sexual contact with persons other than defendant as more prejudicial than probative, and that defendant's right to confrontation was not abridged. Arenda, supra at 11. II Defendant next argues that the trial court erred in failing to give a specific unanimity instruction. Defendant argues that there was no instruction that the jury had to be unanimous as to which transaction -2

was the basis of each conviction and that the instruction given misdirected the jury as to what they must find concerning the basic element of penetration. Defendant failed to properly preserve this issue by requesting that the trial court give a specific unanimity instruction or by objecting to the trial court's failure to give one, limiting our review to the prevention of manifest injustice to defendant. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993). Juries in criminal cases are required to return a unanimous verdict. Const 1963, art 1,

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