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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RICHARD MICHAEL SHAW, Defendant-Appellant.

UNPUBLISHED February 3, 2005

No. 252489 Montmorency Circuit Court LC Nos. 02-000194-FC 02-000195-FC 02-000196-FC 02-000197-FC 02-000198-FC 02-000199-FC 02-000200-FC 02-000201-FC

Before: Markey, P.J., and Murphy and O'Connell, JJ. PER CURIAM. Defendant appeals as of right following a jury trial that resulted in his conviction for six separate charges of first-degree criminal sexual conduct (CSC I), MCL 750.520b, one charge of CSC II, MCL 750.520c, and one charge of CSC III, MCL 750.520d. The trial court sentenced defendant to concurrent terms of 18 to 35 years in prison for each CSC I conviction and 9 to 15 years in prison for the CSC II and CSC III convictions. We affirm. Defendant is the victim's stepfather. At trial, the victim testified that defendant forcibly performed various sexual acts on her beginning from the time she was eleven years old continuing until after she had grown and moved into her own apartment. While somewhat vague about exact dates, the victim provided vivid descriptions of eight particular incidents. She testified that she remembered the earliest recited incident clearly because defendant pulled his penis out of her vagina during intercourse and ejaculated on her abdomen. On another occasion, defendant forced her to have intercourse in his truck while on a snowy back road near his hunting cabin. The record reflects that the victim was a petite girl and defendant was tall and weighed roughly three hundred pounds. According to the victim, defendant routinely used his size advantage to overcome her staunchest resistance. The victim recalled in detail how a seatbelt buckle dug into her back and how defendant pinned her wrists together and forced her legs apart to subdue her and have intercourse with her in the truck's cramped cab.

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Another occasion stuck out in her mind because she was home from school with an upset stomach. Nevertheless, defendant forced her to perform fellatio on him and she gagged when he ejaculated into her mouth. A relatively recent incident involved the victim awakening in her apartment to find defendant beside her bed. Defendant had let himself in using a spare key the victim had given his wife. He pinned the victim, ripped off her underwear, and forcibly penetrated her vagina with his penis. The most recent event occurred when he forced her to have intercourse (in his words, "for old-times' sake") during a visit when she expected him to be absent. She was twenty-two years old. Her testimony reflected that the eight incidents she related at trial were merely the incidents, out of hundreds, that she remembered most clearly. In addition to the victim's testimony, a police officer testified that defendant admitted having sexual intercourse with the victim on at least two occasions over a six-month period. Defendant also told the police officer about an occasion a few years earlier when the victim emerged from the shower, approached him on his bed, and spontaneously began rubbing his exposed penis. Defendant told the officer that he had taken a dose of prescription drugs and did not respond to the victim. He mentioned that he soon lost his erection, so she began performing fellatio. He told the officer that the medication caused him to either black out or blank out and he did not remember anything else. Defendant initially pleaded no contest to two of the charges, but later withdrew the plea. At trial, defendant denied any wrongdoing and denied admitting any sexual contact to police, but nevertheless testified about an incident very similar to the one the officer described. Defendant testified that he had taken his medication and was lying on his bed "half out of it" when the victim entered the room naked and attempted to have sex with him. In the defendant's account at trial, the event occurred only a few months before his arrest and he preempted any contact by telling her to "get her clothes on and go home." Defendant claimed that the victim contrived the allegations of abuse and rape because of his interference in her relationship with a boyfriend who was more than ten years her senior. In response, the prosecution presented the victim's diary in which she described, from an early age, her fear of defendant, her vain efforts to ward off his advances, a concern for her younger sisters, reservations about telling the authorities, and her desire to live on her own, free from defendant's molestation. Defendant first challenges the trial court's decision to provide the jury with a list of the elements of CSC I, II, and III rather than read them to the jury on the record. Defendant specifically waived this issue below when the trial court told counsel, "Here's a list of the elements. I wouldn't be giving it, since I don't want to

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