text:
    GRZEBIK v KERR
    Docket No. 78-3626.
    Submitted April 10, 1979, at Detroit.
    Decided June 26, 1979.
    Plaintiff Barbara R. Grzebik sustained injuries as a result of a collision between the motorcycle on which she was riding, which was being operated by defendant and third-party plaintiff Harold Poling, and the automobile operated by third-party defendant Nelva Ruth Keefer. Also involved in that collision was the motorcycle operated by defendant Nolan R. Kerr, who had as his passenger one Steven Elkins. Kerr initiated a negligence suit against Keefer, and Keefer filed a third-party complaint against Poling. Keefer’s insurer offered to settle with all the parties at the policy limits in exchange for full releases from all the parties and the dismissal of the Kerr suit. These conditions were met. Each of the parties signed a release. In exchange for a payment of $33,000 present plaintiff Grzebik released “Keefer and all other persons * * * from all claims * * * of every nature and kind whatsoever”.
    Plaintiff Grzebik thereafter brought the present suit against Kerr and Poling on the basis of their alleged negligence in operating the motorcycles at the time of the accident. Poling added Keefer as a third-party defendant on the basis of his potential contribution claim against Keefer if plaintiff prevailed. Poling and Kerr moved for accelerated judgment on the basis that the release barred plaintiff’s cause of action. The Washtenaw Circuit Court, Patrick J. Conlin, J., granted accelerated judgment for defendants, and, also, dismissed Poling’s suit against Keefer. Plaintiff appeals, arguing that all the parties were laboring, at the time of the execution of the release, under the mistaken understanding that plaintiff had no negligence cause of action because of the guest passenger statute, but that such a cause of action became available when the guest passenger statute was held unconstitutional. Held:

    1. The scope of a release from tort liability which is fairly and knowingly made without concealment, fraud, duress or mutual mistake is governed by the intent of the parties as expressed in terms of the release.

      References for Points in Headnotes

       28 Am Jur 2d, Estoppel and Waiver § 158.

       28 Am Jur 2d, Estoppel and Waiver § 156.

      2. The general release from tort liability, running as it did to the automobile driver and all others involved in the collision, operated as a release of the operator of the motorcycle on which plaintiff was riding and of the operator of the other motorcycle involved in the collision. The fact that the release was executed prior to the date that the Supreme Court held that the higher standard of proof required of guest passengers was unconstitutional does not affect the validity of the release, since it is clear that the driver of the automobile intended the release to protect against possible contribution claims which might arise out of changes in the law, and since it was common knowledge at the time of the execution of the release that the guest passenger statute was under attack.
    Affirmed
    1. Release — Tort Liability — Scope — Fairly and Knowingly Made — Mistake — Intent.
    The scope of a release from tort liability which is fairly and knowingly made without concealment, fraud, duress, or mutual mistake is governed by the intent of the parties as expressed in the terms of the release.
    2. Release — Tort Liability — Applicability — Subsequent Case Law — Intent — Knowledge.
    A general release from tort liability executed as part of a settlement with the driver of an automobile by the passenger on a motorcycle which collided with the automobile, such release running to the automobile driver and all other persons involved in the collision, operates to release the operator of the motorcycle and others involved in the collision from liability, even though the release was executed prior to the date the Supreme Court held the higher standard of proof required of guest passengers to be unconstitutional, where it is clear that the automobile driver intended the release to protect against possible contribution claims which might arise out of changes in the law and it was common knowledge at the time of the execution of the release that the guest passenger statute was under attack.

      Kenneth E. Prather, for plaintiff.

      Draugelis, Ashton & Scully (by Richard T. Hayes), for defendant Poling.

      Harvey, Kruse & Westen, P.C. (by P. J. Collins and Michael A. Gunderson), for defendant Kerr.

      Davis & Fajen, for defendant Keefer.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Per Curiam.

Plaintiff appeals the circuit court’s August 30, 1978, order granting accelerated judgment in favor of defendants on the grounds that a release executed by plaintiff barred her cause of action. GCR 1963, 116.1(5). Defendant Poling cross-appeals the dismissal of his third-party complaint against defendant Keefer.

On April 13, 1974, defendants Kerr and Poling were operating their motorcycles on public roads in Ypsilanti. They were allegedly racing one another. Plaintiff was a passenger on the Poling motorcycle, and one Steven Elkins, not a party herein, was a passenger on the Kerr motorcycle. At an intersection the motorcycles collided with a car operated by Keefer. All four persons on the motorcycles were injured, with plaintiff being the most seriously injured.

The four motorcyclists were then represented by the same counsel. On May 22, 1974, defendant Kerr initiated a negligence suit against Keefer, and Keefer filed a third-party complaint joining Poling as a third-party defendant. Plaintiff never started a suit against Keefer. On July 7, 1975, subsequent to negotiations, Keefer’s insurer offered to settle with all parties at the policy limit of $50,000. The $50,000 was divided as follows: Grzebik-$33,000, Elkins-$4,000, Poling-$2,000, and Kerr-$11,000. In its offer, the insurer made it clear that the offer was contingent on "full releases of all claims” from all four parties, and dismissal of the Kerr suit. These conditions were met. The releases signed by each party were entitled "RELEASE IN FULL” and were identical except for names and amounts. Plaintiffs release stated that,

"I, Barbara Rose (Turner) [plaintiff], for the sole consideration of $33,000 (Thirty Three Thousand) Dollars, to me in hand paid by Nelva Keefer have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge said Nelva Keefer and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident to me which occurred on or about the 13th day of April, 1974, by reason of an auto/motorcycle accident and of and for all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.
"It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known or unknown, suspected and unsuspected.”

Plaintiff signed this release on July 21, 1975.

The instant case was commenced on January 14, 1977, by plaintiff. She sued Poling and Kerr on their alleged negligence in operating their motorcycles which resulted in the accident which injured her. Poling added Keefer as a third-party defendant on the basis of his potential contribution claim against Keefer if plaintiff prevailed in her suit. Defendants Poling and Kerr interposed plaintiff’s release to Keefer as a defense to the suit. The lower court agreed that the release precluded the instant suit and granted accelerated judgment for defendants. Poling’s suit against Keefer was dismissed also.

The intent of the parties to a release, expressed in the terms of the release, governs the scope of the release. Detroit Automobile Inter-Insurance Exchange v Joseph, 67 Mich App 393; 241 NW2d 221 (1976), Auto-Owners Ins Co v Higby, 57 Mich App 604; 226 NW2d 580 (1975). A release covers only the claims intended by the parties to be released. Auto-Owners Ins Co v Higby, supra, at 606. A release must be "fairly and knowingly” made. Denton v Utley, 350 Mich 332, 342; 86 NW2d 537 (1957), Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972). Hence, equity will intervene where there is concealment, fraud, duress, or mutual mistake. Denton v Utley, supra at 342, Detroit Automobile Inter-Insurance Exchange v Joseph, supra, at 396, and our review is de novo. Farwell v Neal, supra, at 355.

On appeal and in the court below, plaintiff contends that all parties labored under the mistaken understanding that plaintiff had no negligence cause of action because of the guest passenger statute, MCL 257.401; MSA 9.2101, and consequently her release was not intended to be a release of such a claim. Plaintiff makes this argument because when she executed her release on July 21, 1975 (and when all other parties executed their releases), the guest passenger statute precluded guest passenger suits based on ordinary negligence, but this statute was declared unconstitutional on September 8, 1975, in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), and the holding in Manistee Bank was given retroactive effect. Dunham v Lowinger, 395 Mich 793; 235 NW2d 153 (1975), Old Reliable Fire Ins Co v Schaub, 85 Mich App 294; 271 NW2d 206 (1978). Defendants, on the other hand, argue that the release is broad enough to cover this situation and it was precisely this type of situation that the release was intended to cover.

The lower court accepted defendants’ position, and so do we. The broad language of the release on its face certainly encompasses a negligence claim such as plaintiff’s. Indeed, plaintiff does not suggest otherwise. Plaintiffs position, based on the theory of mutual mistake, is that nobody realized that plaintiff was not barred by the guest passenger statute from prosecuting a negligence claim against the operators of the motorcycles. We cannot accept plaintiffs reasoning, since the release was expressly designed to release any and all claims. The fact that the existence of a certain claim was not recognized by the parties would be the very possibility the release was intended to cover. The fact that in reality the parties could not know of this possible claim does not affect our conclusion since, as a matter of law, the claim did exist and the release was therefore intended to cover it.

This is not the usual type of case where a release is attacked on the basis of mutual mistake as to the extent of injury. Plaintiff is not claiming additional, previously unknown, injuries. Nor did plaintiff receive an insubstantial sum in releasing her claims for $33,000. Nothing has happened to plaintiff to make the consideration any less fair now than it was when plaintiff agreed to it. This leads us to an important distinction raised in Smith v City of Flint School District, 80 Mich App 630; 264 NW2d 368 (1978). In that case plaintiff executed a release with defendant’s employee, unaware that he was an employee, and under well-settled law the release was held to release the defendant-employer and could not be avoided on the grounds of mistake. The distinction noted by the Smith Court was that in the usual "unforeseen injury” cases it is virtually impossible to discover the injury, whereas in the Smith case an "unknown defendant” was involved which could be discovered, but the plaintiff had simply failed to make the discovery. The instant case falls much closer to the unknown defendant situation than to one of unforeseen injury.

While there is some merit to plaintiff’s position that its negligence action against defendants was undiscoverable, under the circumstances of this case it is better to consider the action as one within plaintiff’s realm of knowledge. It was common knowledge in the state that the guest passenger statute was under attack. The Manistee Bank case had been argued over a year prior to signing of plaintiff’s release, and a decision was anticipated. If the parties had not intended for the release to cover potential guest passenger claims, it would have been a simple matter to provide an exception in the release. Moreover, from the record in this case it is apparent that a possible guest passenger claim was a consideration, since Keefer insisted on full release from all parties. Keefer, settling at the maximum limit of her policy, had just cause for concern about any suit in which she might be added for purposes of contribution. The possibility of a negligence claim against Kerr and/ or Poling was apparent to all—as evidenced by the proceedings in the Kerr-Keefer suit. To the extent it is argued that plaintiff (as opposed to other parties) was unaware of the state of guest passenger law, it cuts against any contention of mutual mistake.

At first blush, Chuby v General Motors Corp, 69 Mich App 563; 245 NW2d 134 (1976), lends support to plaintiff. In that case plaintiff, as administratrix of her minor son’s estate, signed general releases in January, 1972, releasing General Motors and other defendants from all liability in connection with the death of her son when the gas tank in a Corvair automobile in which he was riding exploded. On the date the release was signed, Michigan apparently did not recognize liability for loss of society and companionship in a wrongful death action. Subsequent to the signing of the releases, the Supreme Court, in Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), held there could be such recovery as to any cause of action accruing before March 30, 1972. In Chuby, the trial court held that even a cause of action which was mistakenly believed not to exist was released because of the all-inclusive language contained in the releases. On appeal, this Court reversed, saying:

"It appears clear to this Court that equity must strike down the instant release, if it was not fairly and knowingly made. It appears to this Court that the parties had no way of knowing, at the time the releases were executed, that the estate of the decedent had a cause of action for loss of society and companionship. The releases were also apparently executed under the mistaken assumption that decedent had experienced no pain and suffering.” (Emphasis added.) 69 Mich App at 567.

The underscored language quoted above distinguishes Chuby from the case before us. In the instant case there was no mistake as to the extent of the injuries. Further, in Chuby, the petition in probate court for settlement of the claim stated that decedent’s death was instantaneous on impact and that there was no pain and suffering when, apparently, the deceased burned to death and suffered some pain. The probate court’s approval of the release was made without the court knowing the full facts or even knowing that General Motors was a party defendant. We seriously question whether the Chuby panel would have reversed. the trial court had these additional and distinguishing factors not been present. In our opinion Chuby falls within the type of case mentioned in footnote 2, supra, where the release is attacked on grounds of mistake as to type of injury.

At the time the releases were signed plaintiff’s guest passenger status on the Poling motorcycle precluded suit in ordinary negligence against Poling only. She was not precluded from such suit against Kerr or Keefer. Thus, the subsequent decision in Manistee Bank does not give plaintiff any wider right than she enjoyed when she signed the releases. At the time of signing the releases, plaintiff had a cause of action for gross negligence against Poling. Obviously, the releases given Poling were intended to cover this situation. Finally, it must have been obvious to Keefer’s and Kerr’s insurers that if the law were to be changed in the Manistee Bank case, which had been pending for one year in the Supreme Court, contribution could be asked from Keefer and Kerr.

Accordingly, we cannot accept plaintiff’s subsidiary argument that her release was not intended to release claims against Kerr and/or Poling. As mentioned, the release was very broad, containing the language "and all other persons”, and avoidance of suits against Kerr and Poling in particular was one of the considerations behind the release. At the very least, Kerr and Poling were intended to be covered by the "all other persons” language.

Affirmed, costs to defendants.

       We note that the parties consistently consider Keefer to be a joint tortfeasor with Kerr and Poling. The relationship is that of concurrent tortfeasors. Laster v Gottschalk, 75 Mich App 290; 255 NW2d 210 (1977), Witucke v Presque Ilse Bank, 68 Mich App 599; 243 NW2d 907 (1976). See also Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970).

       For example, Van Avery v Seiter, 383 Mich 486; 175 NW2d 744 (1970), aff’g 13 Mich App 88; 163 NW2d 643 (1968), Ryan v Alexy, 373 Mich 50; 127 NW2d 845 (1964), Hall v Strom Construction Co, 368 Mich 253; 118 NW2d 281 (1962), Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), Anno: Avoidance of release of personal injury claims on ground of fraud or mistake as to extent or nature of injuries, 71 ALR2d 82.

       This brings up an observation which casts some suspicion on plaintiffs position. Plaintiff argues the "unknown” guest passenger claim with respect to both Kerr and Poling. However, plaintiff was the guest passenger only of Poling, and therefore the argument with respect to Kerr is inapposite. Whatever negligence claim now exists against Kerr existed at the time of the release. Yet plaintiff never pursued it. Nor did plaintiff ever pursue any possible claim of gross negligence which always existed against Poling.

       See Smith v Flint School Dist, 80 Mich App 630, 633; 264 NW2d 368 (1978).

       The petition for authority to settle did not name General Motors, and hence, the probate judge who signed the petition without a hearing was unaware he was releasing General Motors.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v UPSHAW
    Docket No. 78-2900.
    Submitted May 3, 1979, at Detroit.
    Decided July 26, 1979.
    On March 3, 1977, defendant, Randall P. Upshaw, was convicted, on his plea of guilty, of unarmed robbery. At the time of the commission of the crime defendant was a minor. In May, 1978, defendant moved the Recorder’s Court of Detroit to dismiss his case and expunge his record. A visiting judge, David E. Wilson, granted defendant’s motion. The people appeal. Held:

    There are only two procedures by which a criminal record may be expunged: 1) under a youthful offender statute where a trial court may set aside a conviction of a person who at least five years previously had pled guilty to a single offense which occurred before his 21st birthday; and, 2) under a statutory provision where a new trial may be ordered when it shall appear to the court that justice has not been done and where a dismissal follows the order of a new trial. Since defendant qualifies under neither method his record may not be expunged.
    Remanded with instructions.
    Criminal Law — Criminal Record — Expungement of Criminal Record — Infants.
    There are only two procedures by which a criminal record may be expunged: 1) under a youthful offender statute where a trial court may set aside a conviction of a person who, at least five years previously, had pled guilty to a single offense which occurred before his 21st birthday; and, 2) under a statutory provision where a new trial may be ordered when it shall appear to the court that justice has not been done and where a dismissal follows the order of a new trial; a trial court cannot expunge a criminal trial record except by one of these two statutory methods (MCL 780.621, 770.1; MSA 28.1274[101], 28.1098).
    References for Points in Headnote
    47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children § 59.
    Expungement of Juvenile Court records. 71 ALR3d 753.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

This is an appeal by the plaintiff from a visiting Detroit Recorder’s Court Judge’s order granting defendant’s motion to dismiss his case and expunge his record.

The defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, on October 9, 1976. He pled guilty to unarmed robbery, MCL 750.530; MSA 28.798, on March 3, 1977, and was sentenced to one year’s probation and assessed $100 restitution. In May, 1978, defendant brought a motion to dismiss the case and expunge his record.

There are two procedures by which a criminal record may be expunged. Under the youthful offender act, a trial court may set aside a conviction of a person who has pled guilty to a single offense which occurred before his 21st birthday. MCL 780.621; MSA 28.1274(101). The defendant was 17 at the time of the offense. However, the statute requires that a motion to set aside a conviction "shall not be made until the expiration of 5 years from the time of the entry of the • guilty plea * * *.” The defendant was convicted on March 3, 1977. The motion was filed in May, 1978. Since five years had not elapsed since the time of the offense, the statute cannot be employed here.

The second procedure involves the granting of a new trial followed by a dismissal of the case. Under MCL 770.1; MSA 28.1098, a trial court can grant a new trial "for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done * * In People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), the Court noted that the underlying policy behind the trial court’s power to consider motions for new trial was the desire "to reform erroneous judgments and/or orders”. Id., 522. There is no allegation in the record or in the defendant’s motion that the trial court erred in the original proceedings.

A trial court cannot accomplish indirectly what it cannot do directly. People v John Williams, 65 Mich App 531, 534; 237 NW2d 545 (1975). There is no statutory authority for expunging the defendant’s record. There is no allegation of any error requiring a new trial. The fact that the defendant may be handicapped by his record is unfortunate, but does not present sufficient reason for this Court to create a method for expunging his record.

This case is remanded to the trial court so that it may vacate its order, reinstate the defendant’s conviction and order defendant’s fingerprints, arrest card and description in the subject causes to be refiled.


author: Cynar, J.

text:
    PEOPLE v LOVE
    Docket No. 77-2964.
    Submitted April 9, 1979, at Lansing.
    Decided August 6, 1979.
    Charles E. Love was convicted by a jury in Ingham Circuit Court, Thomas L. Brown, J., of breaking and entering with intent to commit larceny and assault with intent to commit criminal sexual conduct involving sexual penetration. Defendant appeals and alleges that the trial court erred in permitting the prosecutor to use his prior conviction of attempted breaking and entering for impeachment purposes. Defendant also raises several constitutional challenges to various parts of the criminal sexual conduct act and other questions dealing with the instructions to the jury, the propriety' of the prosecutor’s closing argument, nonproduction of two res gestae witnesses and denial of his motion for a continuance to obtain a new attorney. Held:

    1. Charles E. Love’s prior conviction was properly admitted into evidence for impeachment purposes. In ruling on defendant’s motion to suppress the conviction the trial judge indicated on the record that he was aware of his discretion and stated a belief that the evidence was admissible because it was probative of defendant’s lack of credibility. This satisfies the requirement that a trial judge must recognize his discretion on the record with reference to how the offense bears on credibility. The Court of Appeals will not presume from a silent record that other discretionary considerations were ignored. There was no showing of an affirmative misapplication of necessary criteria by the trial judge in exercising his discretion.
    2. A discussion of defendant’s constitutional challenges to the validity of the criminal sexual conduct act is unnecessary because the trial judge erred in requiring the prosecutor to specify theories of first-degree criminal sexual conduct. The statute provides that the intent to commit third-degree criminal sexual conduct is satisfied by proof that a defendant committed an assault with intent to commit sexual penetration. Where a defendant is charged under this statute it is error to require a prosecutor to specify and proceed on theories of first-degree criminal sexual conduct, such as whether personal injury occurred or whether the assault was perpetrated in the course of another felony. In spite of the added burden placed on the prosecutor, of proceeding on first-degree criminal sexual conduct theories, the jury found the defendant guilty of the assault charge. Under either theory the jury would have had to conclude that defendant committed an assault with intent to sexually penetrate. That alone is sufficient to establish the elements of the assault charge. Defendant was not injured as a result of the introduction of the first-degree theories. In the absence of any injury defendant lacks standing to raise the constitutional challenges argued on appeal.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 30, 126, 146.
    29 Am Jur 2d, Evidence § 320 et seq.

       65 Am Jur 2d, Rape §§ 88, 89.
    30 Am Jur 2d, Evidence §§ 1124 et seq., 1138.

       58 Am Jur 2d, New Trial §§ 12, 31.

      3. Defendant’s questions dealing with instructions to the jury, propriety of the prosecutor’s closing argument, nonproduction of two res gestae .witnesses and denial of his motion for a continuance to obtain a new attorney are without merit.
    Affirmed.
    1. Criminal Law — Evidence — Prior Convictions — Impeachment — Credibility — Admissibility of Evidence — Criteria — Discretion — Exercise of Discretion.
    A trial judge has discretion to admit or exclude evidence of a defendant’s past convictions when offered for impeachment purposes; when called upon to rule on the admissibility of prior convictions the trial judge must recognize his discretion on the record and should exercise his discretion with reference to three specific criteria: (1) the extent to which the offense bears on credibility; (2) the similarity of the prior offense to that charged; and (3) whether defendant’s defense is severely impaired if the fear of impeachment leads him to choose not to testify; these criteria are guidelines for the trial judge to follow in exercising his discretion and affirmative misapplication of these factors may require reversal; however, there is no requirement that the trial judge refer to those factors or make on-the-record findings regarding them.
    2. Criminal Law — Evidence — Prior Convictions — Impeachment — Credibility — Discretion — Exercise of Discretion — Appeal and Error.
    Evidence of a prior conviction was properly admitted for impeachment purposes where the trial court indicated an awareness of his discretion to admit or exclude the evidence and a belief that the prior offense was probative of defendant’s lack of credibility; the Court of Appeals will not presume from a silent record that the trial court ignored other required factors such as similarity of the prior offense and whether fear of impeachment would impair the defense to the point that defendant would choose not to testify.
    3. Criminal Law — Criminal Sexual Conduct — Assault — Sexual Penetration — Statutes.
    The intent to commit third-degree criminal sexual conduct is satisfied by proof that a defendant committed an assault with the intent to commit sexual penetration (MCL 750.520g; MSA 28.788[7]).
    4. Constitutional Law — Criminal Law — Statutes — Standing to Challenge — Prejudice.
    A criminal defendant lacks standing to raise constitutional challenges to statutes which were erroneously injected into his trial where he was not injured as a result of the error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Kathaleen Rae Price, Assistant Prosecuting Attorney, for the people.

      Reid & Reid, P.C. (by Lawrence J. Emery), for defendant.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Cynar, J.

On June 9, 1977, defendant was found guilty of charges of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, and assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(l); MSA 28.788(7X1). He was sentenced to concurrent terms of 5 to 15 years imprisonment on the breaking and entering count and 5 to 10 years imprisonment for the assault. Defendant now appeals as of right.

The complaining witness, Sheila Neff, testified that on the night of November 25, 1976, she had left the front door of her house unlocked so that her son could enter. She was awakened by the sound of footsteps and a door opening and closing. When there was no response to her calls, she became afraid and dialed the operator. Defendant entered her bedroom as she was explaining that an intruder was in her home. He attempted to knock the phone out of her hand and a struggle ensued. After being told the police were on the way, defendant began to leave, but instead changed his mind. He jumped on the complainant’s bed, grabbed her wrists, and stated his intention to engage in sexual intercourse with her. After a further struggle he left the room.

At this point Mrs. Neff testified that she put on a bathrobe and walked into the hallway where she again encountered defendant. She pushed him away and ran out the front door. By this time, a police helicopter was overhead. A police officer appeared on the scene as she approached a neighbor’s house.

Defendant was arrested while exiting from the complainant’s house. A search of his person uncovered Mrs. Neffs wallet. The complainant also testified that a cassette recorder had been moved from a closet to a spot near the back door.

Defendant initially alleges that the trial court erred in permitting the prosecutor to use defendant’s 1970 conviction of attempted breaking and entering for impeachment purposes.

As a general rule, the trial judge has discretion to admit or exclude evidence of defendant’s past convictions when offered for impeachment purposes. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). When called upon to rule on the admissibility of prior convictions the trial judge must recognize his discretion on the record, People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), and should exercise his discretion with reference to three specific criteria: (1) the extent to which the offense bears on credibility; (2) the similarity of the prior offense to that charged; and (3) whether defendant’s defense is severely impaired if the fear of impeachment leads him to choose not to testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The Crawford criteria are guidelines for the trial judge to follow in exercising his discretion and affirmative misapplication of these factors has been held to require reversal. See for example People v Crawford, supra, and People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). However, there is no requirement that the trial judge refer to these factors or make on-the-record findings regarding them. People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979).

In the present case the trial judge ruled on defendant’s motion to suppress the prior conviction as follows:

"THE COURT: Well, the Prosecutor can’t use it for those purposes. He can merely bring it in for a view for the benefit of the jury for the purpose of attacking the credibility of the witness, his likelihood of telling the truth or not telling the truth under oath. The prior conviction does involve a crime of moral turpitude. I think it is fair for the jury to be informed of the entire past history of the Defendant in regard to their assessment of his likelihood of telling the truth under oath, the likelihood of his truth and veracity. The Defendant has his past life to live with, as all of us do. All of us have our past mistakes to explain. Mr. Love has the opportunity here to explain his past mistakes if he desires to, and the jury has the right to take this into account in determining credibility. I feel no useful purpose being served by Mr. Love taking the stand and appearing to the jury with a halo over his head and without giving the jury all the facts regarding his past life in so far as credibility is concerned.”

We find no error in the trial judge’s exercise of discretion. His ruling indicates that he was aware of his discretion and that he believed the prior offense was probative of defendant’s lack of credibility. We will not presume from a silent record that the other considerations set forth in Crawford, supra, were ignored in the present case. In the absence of an affirmative misapplication of the Crawford criteria, we conclude that the evidence was properly admitted for impeachment purposes.

Defendant next raises several constitutional challenges to various parts of the criminal sexual conduct act. Prior to discussing these, it is necessary to outline the pretrial motion giving rise to these challenges.

Prior to trial defense counsel moved for a bill of particulars on the assault count. He contended that under the criminal sexual conduct act the offense of assault with intent to commit criminal sexual conduct involving penetration could be committed in so many different ways that he was unable to defend against the charge. Specifically, he requested the prosecutor to designate which kind of ñrst-degree criminal sexual conduct the defendant was alleged to have committed.

The trial judge granted defendant’s motion, stating that the language of the assault count was too broad. The trial judge then read through each of the means of committing first-degree criminal sexual conduct listed in MCL 750.520b; MSA 28.788(2) and asked the prosecutor which of these theories he was relying upon. The prosecutor responded that he was relying upon subsection (l)(c), sexual penetration under circumstances involving the commission of another felony. Alternatively he declared that he was relying upon subsection (l)(fXi), using physical force to commit the penetration and causing personal injury.

Subsequently, defense counsel unsuccessfully moved to dismiss the charge based upon subsection (l)(c) of MCL 750.520b; MSA 28.788(2) on the ground that it was overbroad. On appeal, he raises this argument once more contending that many sexual penetrations committed in the course of a felony are consensual and therefore noncriminal. He also contends that both an assault conviction based upon subsection (l)(c) and a conviction for the underlying offense of breaking and entering with intent to commit larceny would constitute multiple punishment for the same offense. Defendant further alleges that the element of "personal injury” required under subsection (l)(f)(i) is unconstitutionally vague.

We need not address these difficult constitutional problems in the context of the present case. This is because the trial judge erred in requiring the prosecutor to specify the theories of first-degree criminal sexual conduct under which he was proceeding. The statute under which defendant was charged, MCL 750.520g; MSA 28.788(7), reads as follows:

"(1) Assault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years.
"(2) Assault with intent to commit criminal sexual conduct in the second degree is a felony punishable by imprisonment for not more than 5 years.”

Subsection (2) of this statute requires an "intent to commit criminal sexual conduct in the second degree”. In requiring the prosecutor to designate a theory of first-degree criminal sexual conduct, the trial judge must have read subsection (1) as requiring an intent to commit criminal sexual conduct in the first degree.

However, such a requirement is at odds with the plain language of the statute. All that is required under subsection (1) is an "intent to commit criminal sexual conduct involving sexual penetration”. Such an intent is satisfied by a showing that defendant intended to commit third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), which also involves sexual penetration.

More specifically all that is really required for a conviction under subsection (1) of MCL 750.520g; MSA 28.788(7) is proof that (1) defendant committed an assault (2) with the intent to commit sexual penetration. There is no requirement that one prove an intent to commit criminal sexual conduct, as that is necessarily established by proof of the other elements.

The above conclusion is borne out by an examination of the proof required to establish third-degree criminal sexual conduct. One type of third-degree criminal sexual conduct occurs when one engages in sexual penetration with another and "force or coercion is used to accomplish the sexual penetration”, MCL 750.520d; MSA 28.788(4). Thus, proof of the intent to commit this type of criminal sexual conduct is established by proof of the intention to commit a forcible sexual penetration. This intention will necessarily be established by proof of assault plus proof of the intent to sexually penetrate. The intention to use force in effectuating the sexual penetration is established by the assault itself, as one definition of a criminal assault is an:

"attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” People v Sanford, 402 Mich 460, 477; 265 NW2d 1 (1978).

Thus when coupled with the intent to commit sexual penetration, proof of the assault necessarily establishes the intent to commit the kind of criminal sexual conduct prohibited by MCL 750.520d; MSA 28.788(4).

As the above analysis illustrates, the questions of whether personal injury occurred and whether the assault was perpetrated in the course of another felony were erroneously injected into the case by the trial judge’s ruling on defendant’s motion. Despite this added burden being placed on the prosecutor, the jury found defendant guilty of the assault charge. Under either of the theories upon which the prosecutor was forced to rely, the jury would have had to have concluded that defendant committed an assault with the intent to sexually penetrate. As that alone is sufficient to establish the elements of the assault charge, defendant was not injured as a result of the operation of those provisions relating to personal injury or the commission of the assault in the course of another felony. In the absence of any injury to defendant as a result of the operation of these statutes defendant lacks standing to raise the constitutional challenges argued on appeal. State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich App 204, 207; 226 NW2d 56 (1974).

Defendant raises several other issues on appeal. We find these to be without merit. The instructions to the jury on the assault count, although inaccurate to the extent noted above, did not act to prejudice defendant. In all other respects the instructions, when viewed in their entirety, People v Roberson, 44 Mich App 105, 108; 205 NW2d 50 (1972), were not erroneous.

The prosecutor’s closing argument alluding to the need to stop "fear”, although bordering on the improper, was not objected to. Since any resulting prejudice could have been rectified by a curative instruction, this issue does not require reversal. People v Smith, 73 Mich App 463, 470; 252 NW2d 488 (1977). No error occurred as a result of his referring to the evidence as "uncontroverted”. People v Franklin, 70 Mich App 343, 347; 245 NW2d 746 (1976).

. In the absence of a hearing regarding prejudice, defendant’s issue regarding the nonproduction of two res gestae witnesses is not properly before us. People v Willie Pearson, 404 Mich 698, 714; 273 NW2d 856 (1979).

Finally, we conclude that under the circumstances of the case, the trial judge properly denied defendant’s motion for a continuance to obtain a new attorney. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972).

Affirmed.

       Specifically, Count II charged defendant with "assault with intent to commit criminal sexual conduct involving penetration; to-wit; sexual intercourse.

       This conclusion is implicitly supported by CJI 20:6:01 which requires only proof of the assault, proof of a sexual purpose, and proof of the intent to sexually penetrate.

       The motion, which was made after the jury was selected, merely claimed general dissatisfaction with defendant’s appointed attorney, rather than any specific problem. There was no showing of a breakdown in communication between the defendant and counsel or that counsel had been appointed at too late a date to prepare for trial. Furthermore, the attorney in question was defendant’s second appointed attorney.


author: D. C. Riley, J.

text:
    PEOPLE v BATES
    Docket No. 77-3317.
    Submitted June 22, 1979, at Detroit.
    Decided August 6, 1979.
    Leave to appeal denied, 407 Mich —.
    James Bates was convicted of delivery of heroin, St. Clair Circuit Court, Ernest F. Oppliger, J. The defendant appeals, alleging that 1) the trial court improperly allowed the admission of evidence of a delivery of heroin subsequent to the transaction for which the defendant was on trial, 2) lack of authorization to deliver is an element of the crime which had to be proven by the people but that, under certain provisions of the Controlled Substances Act, the burden of proof on this issue was unconstitutionally shifted to the defendant, and 3) the trial court committed reversible error when it instructed the jury on the use of defendant’s prior convictions where no such evidence was brought forth at trial. Held:

    1. The evidence of the subsequent delivery of heroin was relevant to a factual dispute, the defendant’s intent to deliver. The trial judge gave proper cautionary instructions regarding the use of the evidence of similar acts. There was no abuse of the trial court’s discretion by allowing evidence of the second sale of heroin to be introduced.
    2. Lack of a license to deliver narcotics is not an element of the crime of delivery of heroin. The evidential demands placed on the defendant by the relevant portions of the Controlled Substances Act do not impermissibly shift the burden of proof to the defendant. Had the defendant presented some competent evidence that he was authorized by license to deliver heroin (a readily ascertainable fact particularly within his knowledge) the prosecution would have had to prove to the contrary beyond a reasonable doubt.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 321.

       29 Am Jur 2d, Evidence § 320 et seq.

       29 Am Jur 2d, Evidence §§ 320 et seq., 333.

    Admissibility of evidence as to other offenses as affected by defendant’s acquittal of that offense. 86 ALR2d 1132.

       29 Am Jur 2d, Evidence §§ 298, 321.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 45, 47.

       29 Am Jur 2d, Evidence § 12.

       51 Am Jur 2d, Licenses and Permits § 1.

       5 Am Jur 2d, Appeal and Error § 715 et seq.

      3. The instruction on the use of evidence of the defendant’s prior convictions was in response to a request for such instructions by defense counsel. Invited errors occasioned by defense tactics may not, on appeal, be assigned as grounds for reversal.
    Affirmed.
    1. Criminal Law — Evidence — Similar Acts — Admissibility — Statutes.
    Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice; however, the similar acts statute provides a statutory exception to the rule (MCL 768.27; MSA 28.1050).
    2. Criminal Law — Evidence — Similar Acts — Issue in Dispute — Statutes.
    Evidence of similar criminal acts must be necessary to an issue in dispute to be admissible under the similar acts statute (MCL 768.27; MSA 28.1050).
    3. Criminal Law — Evidence — Other Bad Acts — Admissibility — Requirements — Statutes.
    Evidence of a defendant’s bad acts other than the charged offense is inadmissible unless it satisfies the following requirements: (1) there must be substantial evidence that the defendant actually perpetrated the bad act the evidence of which is sought to be introduced, (2) there must be some special circumstances of the bad act which are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense, (3) the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense, and (4) the matter which they tend to prove is disputed by the defendant, for example, in opening argument, by the evidence adduced in cross-examination of prosecution witnesses or by the presentation of evidence (MCL 768.27; MSA 28.1050).
    4. Criminal Law — Evidence — Similar Acts — Admissibility of Evidence.
    Admission at trial of evidence of a criminal defendant’s similar bad acts depends upon, inter alia, the availability of other, less harmful sources of proof, the tendency of the evidence to inflame the jury, the potential for confusion of the issues and the need for the proffered evidence to prove an element of the case.
    5. Drugs and Narcotics — Delivery of Controlled Substance — Lack of Authorization — Elements — Statutes.
    Lack of authorization to deliver is not an element of the crime of delivery of a controlled substance under the Controlled Substances Act (MCL 335.301 et seq.; MSA 18.1070 et seq.).

    6. Drugs and Narcotics — Delivery of Controlled Substance — Lack of Authorization — Burden of Proof — Statutes.
    The Controlled Substances Act does not impermissibly shift the burden of proof from the people to a defendant on the issue of lack of authorization to deliver; once the people have presented a prima facie case of delivery of a controlled substance, the defendant has the burden of injecting the issue of authorization to deliver by offering some proof that the delivery was authorized and the people thereupon are obliged to establish the contrary beyond a reasonable doubt (MCL 335.356[2]; MSA 18.1070[56][2]).
    7. Licenses — Definition — Words and Phrases.
    A license is the permission by competent authority to do an act which, without such permission, would be illegal.
    8. Criminal Law — Appeal and Error — Invited Error — Defense Counsel.
    Invited errors occasioned by tactics by defense counsel may not, on appeal, be assigned as grounds for reversal.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. C. Riley, J.

Defendant was jury convicted of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and sentenced to a term of 7-1/2 to 20 years imprisonment.

The essential facts of the alleged crime are not in dispute. State Police Trooper Phillip Maddox testified that, at the time of defendant’s arrest, he was working undercover in the City of Port Huron. On December 15, 1975, at approximately 5 p.m., he met defendant in the Red Shingle Bar, and tried to arrange for the purchase of heroin. Defendant told the officer that he would meet him at room 9 of the nearby Serenade Motel. At that time, defendant received $50 from Maddox and instructed him to return to the bar. Shortly thereafter, Bates returned, led Maddox outside, and directed him to go to a post located in front of the bar. While defendant stood by, Maddox picked up a brown paper bag which contained five metal foil packets, later determined to contain heroin.

Following the officer’s testimony concerning the events of December 15, 1975, he further indicated, in response to questioning by the prosecutor, that he had a similar dealing with defendant on or about January 21, 1976. Over objection by defense counsel, the trial court ruled that evidence of the subsequent sale was admissible under the similar acts statute, MCL 768.27; MSA 28.1050, to show scheme, design or intent, and further cautioned the jury as to its limited admissibility.

Defendant testified in his own behalf, and denied any delivery of heroin. He admitted taking the $50 from Maddox at the Serenade Motel as a favor, but stated that a man named Allan Brown had actually been the supplier of the narcotics.

On appeal, defendant raises three issues which we consider in turn.

First, he contends that the trial judge erred in admitting evidence of the January 21, 1976, transaction.

Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice. People v Wilkins, 82 Mich App 260, 265; 266 NW2d 781 (1978), People v Gibson, 66 Mich App 531, 536; 239 NW2d 414 (1976). However, MCL 768.27; MSA 28.1050 provides a statutory exception to the rule:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

Similar acts may not be introduced unless the matter they tend to prove is disputed. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), Wilkins, supra, at 268. Such matters are deemed disputed by a defendant, where, for example, he places them in issue by opening argument, cross-examination, or the presentation of affirmative evidence. Wilkens, supra, at 268-269. In the case at bar, defendant, by opening argument, and testimony that he took no part in the actual delivery, clearly put in issue the question of his intent to deliver.

However, Wilkins, supra, at 267-268, went on to catalogue an additional three-step analysis regarding the admission of similar acts:

"First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), McCormick, Evidence (2d ed), § 190.
"Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v Lundberg, supra [364 Mich 596; 111 NW2d 809 (1961)], People v Padgett, 306 Mich 545; 11 NW2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. See, People v Locke, 275 Mich 333; 266 NW 370 (1936), Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325 (1956). In the absence of such a connection, the evidence would be inadmissible.
"The third requirement is that the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense. People v Oliphant, supra, [399 Mich 472; 250 NW2d 443 (1976)], People v Riddle, 322 Mich 199; 33 NW2d 759 (1948), People v Stander, 73 Mich App 617; 251 NW2d 258 (1977).” (Emphasis in original. Footnotes omitted.)

Applying the Wilkins criteria to the present case, the parties concede that there was substantial evidence that defendant actually delivered heroin to Officer Maddox on January 21, 1976.

With regard to the second element, the record offers striking similarities between the two heroin transactions in issue. Both incidents involved the illegal delivery of heroin in which both defendant and Officer Maddox were participants. Both involved the same motel and room number, and in each the delivery and subsequent pickup occurred at the Red Shingle Bar. The factual setting in each transaction was the same. Defendant’s acts were not spurious and unrelated, but differed only in time and quantity of heroin delivered.

Inasmuch as defendant admitted his participation in the actual delivery of January 21, 1976, the circumstances of that transaction are particularly probative of defendant’s scheme, plan, and system in committing the presently charged ojíense as they relate to the intent to deliver. Because intent to deliver is a statutory element of the instant crime, its materiality to a determination of defendant’s guilt is patent. Thus, Wilkins’ third requirement is also met.

Despite the satisfaction of these standards, it remains necessary to finally consider whether the probative value of the evidence outweighs the prejudicial effect. People v Oliphant, supra, at 489-490. Admission at trial depends upon, inter alia, the availability of other, less harmful sources of proof, the tendency of the evidence to inflame the jury, the potential for confusion of the issues, and the need for the proffered evidence to prove an element of the case. Oliphant, supra, People v Spillman, 399 Mich 313, 319-320; 249 NW2d 73 (1976), People v Wilkins, supra, at 270-271, People v Fisher, 77 Mich App 6, 11; 257 NW2d 250 (1977).

Looking to the present facts, we note in the record a paucity of other evidence from which to show defendant’s intent to commit the offense. Nor can we conclude that the evidence of the second transaction was unduly inflammatory, or that it was likely to confuse the issues in the trial. Intent was a clearly defined issue in the case, and the trial judge’s cautionary instruction meticulously limited the jury’s reflection of the challenged evidence to that question. We hold, therefore, on these facts, that the lower court did not abuse its discretion by admitting into evidence testimony regarding the second sale of heroin. See People v Jones, 83 Mich App 559, 567; 269 NW2d 224 (1978), People v McNeill, 81 Mich App 368, 378; 265 NW2d 334 (1978).

Defendant’s next allegation bears upon two provisions of the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq.

Section 41(1) provides in pertinent part:

"Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.” MCL 335.341(1); MSA 18.1070(41X1).

Section 56(1) and (2) states that:

"(1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.
"(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this act, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption.” MCL 335.356(1) and (2); MSA 18.1070(56X1) and (2).

Specifically, defendant asserts that, pursuant to § 41(1), lack of authorization to deliver is an element of the crime which must be proven by the people; and that, under § 56(1) and (2), the burden of proof is, in violation of due process, unconstitutionally shifted to him.

Defendant’s first premise has been rejected by this Court in People v Bailey, 85 Mich App 594, 596-597; 272 NW2d 147 (1978), and People v Lyons, 70 Mich App 615, 618-619; 247 NW2d 314 (1976). See also People v Dean, 74 Mich App 19; 253 NW2d 344 (1977), lv den in part 401 Mich 841 (1977). The reliance placed upon People v Rios, 386 Mich 172, 178; 191 NW2d 297 (1971), and People v Stewart (On Rehearing), 400 Mich 540, 551; 256 NW2d 31 (1977), is misguided. Those decisions held that lack of a license was an element of the crime of sale of narcotics, but involved conviction under a differently worded statute than that at issue in the present case.

Nor, as a corollary, do we find that § 56 impermissibly shifts the burden of proof to defendant to establish a license in order to fit within an exception to the statute. In People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), the Supreme Court construed MCL 750.227; MSA 28.424 which prohibits the carrying of a weapon in a vehicle "without a license to so carry”; and MCL 776.20; MSA 28.1274(1) which gives defendant the burden of establishing any applicable exemption. The Court held at 616:

"[W]e are persuaded that the crime defined by MCLA 750.227; MSA 28.424 as it concerns this case, has but one element. We are satisfied that the operative words of the statute as they pertain to this defendant are:
" '* * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.’
"The language in the statute 'without a license so to carry said pistol as provided by law’ does not add an element to the crime, but simply acknowledges that a person may be authorized so to carry a pistol. This is of the essence of a license.
"A license is the permission by competent authority to do an act which, without such permission, would be illegal.
"Accordingly we hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof— not necessarily by official record—that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.” (Emphasis supplied.)

In People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), defendants alleged that the securities in question were exempt from the registration requirement and that their burden of proving an exemption, as required by statute, violated their constitutional right to be innocent until proven guilty. The Court responded that defendants’ exemption argument was in the nature of an affirmative defense, and reiterated the underscored reasoning of Henderson, supra. 396 Mich at 711-714.

Similarly, we hold, as have other panels of this Court, People v Bailey, supra, at 597-598, People v Dean, supra, at 27, see also People v Beatty, 78 Mich App 510, 514; 259 NW2d 892 (1977), that the evidential demands placed on defendant by § 56(1) and (2) are not constitutionally proscribed. The prosecution establishes a prima facie case by evidence linking defendant with each element of the crime of delivery of heroin. Upon defendant’s presentation of some competent evidence that he is authorized by license (a readily ascertainable fact particularly within his knowledge), the people must then prove to the contrary beyond a reasonable doubt.

Finally, defendant’s contention that the trial court committed reversible error when it instructed the jury on the use of defendant’s prior criminal convictions, where no such evidence was brought forth at trial, merits little discussion. The transcript reveals that defense counsel requested a limiting instruction on impeachment by previous felony conviction although the trial judge originally did not intend to so instruct the jury. Defendant was never impeached by his convictions at trial; defense counsel apparently believed the charge was necessary due to his own repeated references to defendant’s prior record during voir dire and opening statement. Invited errors occasioned by defense tactics may not, on appeal, be assigned as grounds for reversal. People v McDaniels, 38 Mich App 174, 177; 196 NW2d 25 (1972), lv den 387 Mich 787 (1972), People v Atkinson, 35 Mich App 338, 341; 192 NW2d 687 (1971), lv den 386 Mich 772 (1971).

Affirmed.

       In his opening statement to the jury defense counsel stated that
      "The real question I think in this case is going to be, whether or not what happened was actually a crime. * * * [T]he issue I think when everything is all boiled down here will be whether or not the role Mr. Bates played in this particular transaction is a crime.”

       US Const, Am V; Const 1963, art 1, § 17.

       "Any person not having a license under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years nor more than life.” MCL 335.152; MSA 18.1122, since repealed.


author: Cynar, P.J. D. C. Riley, J.,

text:
    WYNN v COLE
    Docket No. 77-4320.
    Submitted February 13, 1979, at Detroit.
    Decided August 6, 1979.
    Plaintiff Victoria Wynn, along with her husband, sued Verna Cole and others seeking damages for, among other things, malicious libel allegedly committed on a form sent out to one of Mrs. Wynn’s former employers requesting an evaluation of certain of her qualities and abilities. Various parties and claims were subsequently dropped and, after one appeal to the Court of Appeals, the defamation claim against Verna Cole went to trial in the Genesee Circuit Court, Earl E. Borradaile, J. At the close of plaintiffs’ proofs, the court ruled that the statements were protected by a qualified privilege, which could only be overcome by a showing of actual malice, and granted a directed verdict in favor of the defendant for failure to show malice. The only evidence of malice came from Mrs. Wynn and consisted of several incidents tending to show that defendant didn’t like her. Plaintiffs, on appeal, concede that the statements are protected by a qualified privilege. Held:

    Malice, in a defamation case, is established by proof that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. Plaintiffs’ proofs, without more, are insufficient to infer malice on the part of the defendant.
    Affirmed.
    D. C. Riley, J., dissented. She would hold that, while weak, the facts were sufficient to raise a jury question as to malice. She would reverse.
    Opinion of the Court
    1. Libel and Slander — Qualified Privilege — Actual Malice. Statements made by a former employer about his former employee to a prospective employer and at the prospective employer’s request are protected by a qualified privilege, and, in order to be entitled to damages for defamation, the former employee must show that the statements were made with "actual malice”.

      References for Points in Headnotes

       50 Am Jur 2d, Libel and Slander §§ 273-275.

       50 Am Jur 2d, Libel and Slander §§ 174, 175.
    Sufficiency of plaintiff’s allegations in defamation action as to defendant’s malice. 76 ALR2d 696.

       50 Am Jur 2d, Libel and Slander § 462.

      2. Libel and Slander — Malice — Words and Phrases.
    Malice, in a defamation case, is established by proof that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether or not it was false.
    3. Libel and Slander — Evidence — Malice.
    Evidence of several incidents tending to indicate that the defendant did not particularly like the plaintiff, without more, is insufficient to raise the inference that defendant committed a libel of plaintiff "with knowledge that the statements were false or with reckless disregard for their truth”, that is, that they were made with malice.
    Dissent by D. C. Riley, J.
    4. Libel and Slander — Evidence — Malice.

      Evidence of several incidents tending to indicate that the defendant did not like the plaintiff is sufficient to raise a jury question as to whether the defendant committed a libel of plaintiff "with knowledge that the statements were false or with reckless disregard for their truth”, that is, whether they were made with malice.

      Neal L. Grossman, for plaintiffs.

      Simen & Zimmer, P.C., for defendant.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

Plaintiffs appeal as of right from a directed verdict entered against them at the close of their proofs.

Plaintiffs filed this action in 1973 alleging several causes of action against various defendants. Various parties and claims were subsequently dropped and, after one appeal to this Court, Wynn v Cole, 68 Mich App 706; 243 NW2d 923 (1976), the case was remanded for trial on plaintiffs’ defamation claim against defendant. The substance of this claim was that Victoria Wynn’s prospective employer, the Red Cross, had requested information concerning her abilities as a nurse from previous employers, including the Flint Department of Public Health (hereinafter FDPH). Plaintiffs alleged that defendant, in her capacity as director of the FDPH, had maliciously published to the Red Cross false and defamatory statements regarding plaintiff’s previous employment with the FDPH (references to "plaintiff” hereinafter refer to plaintiff Victoria Wynn). The allegedly libelous publication consisted of a form sent out by the Red Cross requesting evaluation of various qualities and abilities of plaintiff. This form also indicated the information would be held in strict confidence. The form was completed and returned to the Red Cross under the names of S. Collins, Supervisor, and M. Cole, Director, FDPH. Although the form does not indicate who filled it out, other than being sent out under both names, the answers were formulated by either Shirley Collins or Verna Cole. The evaluation of ability as fair was made by Shirley Collins. Ability to work in a group was evaluated by Shirley Collins as fair. Intelligence and ability to grasp ideas was evaluated as fair by Shirley Collins. Personality was evaluated by Verna Cole as poor. Stability and dependability was evaluated as fair by Shirley Collins. Character, integrity and honesty was marked fair. Personal appearance was marked average. Under personal handicaps, Shirley Collins wrote "disgruntled about something most of the time”. Attendance record is indicated as good. Under the item "would you hire this person into your organization”, is "no”, and Shirley Collins would not give this evaluation. The reason for leaving was "resignation-sick” and may have been written by Shirley Collins. The additional words "Felt Vicki did not really apply herself to the best of her ability. Eager to get on the bandwagon if trouble existed” were the observations of Shirley Collins.

Plaintiff testified that after finishing her nurses training in June 1968, she was employed by the Flint Visiting Nurses Association (hereinafter FVNA) for about 19 months. Her immediate supervisor was Betty Anderson. Plaintiff first met the defendant when the defendant came to the FVNA on a social visit. Plaintiff had a feeling defendant did not like her because she did not speak to her at that time. At a point when she was with the FVNA for about a year, defendant came to work at the FVNA as a director of nursing. Sometime between the fall of 1969 and February 1970, after defendant would come in to speak to different employees but not to plaintiff, the plaintiff asked the defendant what she had done or if there was something she wasn’t doing that was upsetting her. Defendant told her, "I just don’t like you”. The plaintiff also indicated the defendant contended plaintiff talked too much and wasted time coming back to the office when house calls were over. During a conference between plaintiff and defendant, the defendant gave to the plaintiff some literature to read to enable her to have a better insight about herself. A few days after receiving the literature, she was called into the defendant’s office and, without given a reason, was presented with a choice either to quit or be fired. Plaintiff resigned from the FVNA on the promise she would have a better evaluation for another job.

In the spring, sometime in March or April 1970, plaintiff took a civil service test to work as a junior public health nurse with the FDPH. The director of nursing was Helen Bruening and her immediate supervisor was Shirley Collins. Plaintiff’s work was reviewed regularly, and, one time, she was told she talked too much. After plaintiff had worked for about six months, defendant was hired as a director of the FDPH, replacing Mrs. Bruening. Plaintiff had limited personal contact with the defendant. During the 13-month period while plaintiff worked at the FDPH, two specific incidents took place. Once, after helping to locate a lost chart, plaintiff took the chart to the defendant, put her hand on her shoulder and asked her if that is what she was looking for. Defendant shook plaintiff’s hand off her shoulder, said "Don’t ever touch me”, turned around, went to her office and slammed the door. On another day after she was fired she took her written resignation in and was stopped by the defendant, who asked, "What did you do to Mrs. So-and so. We are getting phone calls what you said to her and what she said to you.” "I said, well I didn’t do anything to her.” After the defendant was there two to three months, plaintiff went to her and asked if she could be put to work where she could have easy access to the bathroom until the time she was going to have surgery performed or take personal leave, since she did not have sufficient sick leave accumulated. The reason given by defendant for not granting leave was that the City of Flint was having a financial crisis, and the job would not be filled if she left. She was told to resign or be fired, and she resigned. The plaintiff submitted a letter of resignation but denied the choice of words were hers. Although this was a civil service position, she did not become aware of a grievance procedure until three to four years after she left.

Plaintiff was working in a private nursing home in Flint when she applied for a position as a nurse with the Red Cross and had an interview about the first week of February, 1973. Plaintiff left the interview with a feeling she was hired subject to work recommendations being received from past employers. She submitted her resignation to the nursing home. One day before her last day at the nursing home, plaintiff received a call from the director of nursing at the Red Cross, stating she was not fit for work with the Red Cross because she received an unsatisfactory work rating from an undisclosed party.

Defendant testified she was the director of nursing at the FDPH when she received a reference form from the Flint Red Cross regarding the plaintiff. After a discussion, the form was filled out by Shirley Collins with her approval. The completed form contained the combined opinion of Shirley Collins and defendant, and Shirley Collins signed the completed form with her approval. Opinions of Verna Cole were based on what she learned herself and from various people, including Mrs. Collins.

Defendant was hired on December 1, 1970. Plaintiff called in sick on December 16, 1970, and did not return until early February when she said she had to have surgery and inquired about sick leave. She was told she could have sick leave. She was on sick leave until she wrote a letter of resignation sometime later in February.

According to Carol Krumbach, who was a director at the American National Red Cross at the time plaintiff sought employment as a nurse, it was standard procedure to send out reference forms to former employers. A response was received from the FDPH and it was a factor in the decision not to employ the plaintiff. While not knowing how to describe it, the reference form played a part in not employing the plaintiff.

At the close of the evidence, defendant moved for a directed verdict on several grounds. The trial judge characterizing the motion as one "to dismiss for failure to carry the burden of proof’, granted defendant’s motion. In support thereof he stated:

"The record is woefully weak when showing malice. The burden is upon the plaintiff quite clearly to show malice, and the Court cannot find, other than the testimony of the plaintiff alone, nobody else but plaintiff alone, that the defendant had a malicious intent to do her harm.”

On appeal, plaintiff correctly concedes that defendant’s publication of the allegedly defamatory statements were clothed with a qualified privilege which can only be overcome by a showing of "actual malice”. See Parks v Johnson, 84 Mich App 162, 168-169; 269 NW2d 514 (1978), Tumbarella v The Kroger Co, 85 Mich App 482, 493-494; 271 NW2d 284 (1978). However, there is a split among the panels of this Court as to what is meant by "actual malice”. Some cases define "malice” as some species of ill will or bad faith. Wynn v Cole, supra, 714, Iacco v Bohannon, 70 Mich App 463, 467; 245 NW2d 791 (1976). Others have adopted the definition set forth in New York Times v Sullivan, 376 US 254, 280; 84 S Ct 710; 11 L Ed 2d 686 (1964), and have concluded that malice is established by proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not”. Tumbarella v The Kroger Co, supra, 495, Peisner v Detroit Free Press, Inc, 82 Mich App 153, 164; 266 NW2d 693 (1978), Brunn v Weiss, 32 Mich App 428, 431; 188 NW2d 904 (1971). Although previous decisions of the Michigan Supreme Court have employed the former definition, e.g. Powers v Vaughan, 312 Mich 297, 306-307; 20 NW2d 196 (1945), in the most recent pronouncement from that Court on the subject it appears to have adopted the New York Times definition. See Arber v Stahlin, 382 Mich 300, 308; 170 NW2d 45 (1969). Therefore, notwithstanding dicta to the contrary in the initial appeal of this case, Wynn v Cole, supra, 714, we will apply the New York Times standard to the case at bar.

In determining whether the trial court erred in entering a directed verdict, this Court views the evidence in a light most favorable to the nonmoving party. Humenik v Sternberg, 371 Mich 667, 669; 124 NW2d 778 (1963). If the evidence, when viewed in this manner, establishes a prima facie case, then a directed verdict is improper. Caldwell v Fox, 394 Mich. 401, 407; 231 NW2d 46 (1975).

We conclude that a directed verdict was properly entered in this case. Plaintiff offered no evidence of defendant’s state of mind at the time the allegedly defamatory statement was made. Although plaintiff did testify as to several incidents which tend to indicate that defendant did not particularly like her, this, without more, is insufficient to raise the inference that defendant committed the alleged libel with knowledge that the statements were false or with reckless disregard for their truth. In the absence of any evidence of malice, defendant’s statements are protected by her qualified privilege and the case was properly taken from the jury’s consideration.

Affirmed. Costs to defendant.

D. E. Holbrook, Jr., J., concurred.

D. C. Riley, J.,

(dissenting). Viewing the evidence in a light most favorable to the plaintiffs, I am unable to conclude that the evidence of malice is so wanting as to preclude plaintiffs’ presentation of their cause to a jury.

Despite plaintiffs’ ostensibly weak case, under either definition of malice, the facts presented here were sufficient to infer a malevolent state of mind on defendant’s part at the time of the publication. Although the trial judge may have arrived at the correct ultimate result, it was not, in view of the facts proffered, and at this state of the proceeding, his decision to make. I would therefore reverse and remand for further proceedings.

       There exists a qualified privilege to defame where "the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.” Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887), Wynn v Cole, supra, 713.

       Under the circumstances of this case, there is no basis for treating plaintiffs motion as a motion to dismiss. See GCR 1963, 504. Therefore, for purposes of this appeal, we will consider the trial judge’s order as granting plaintiffs motion for a directed verdict.

       We note, however, that in ruling on the motion, the trial judge improperly discredited plaintiffs testimony. The credibility of the witnesses is for the jury to decide. Sacred Heart Aid Society v Aetna Casualty & Surety Co, 355 Mich 480, 486; 94 NW2d 850 (1959).