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People v. Lewis3/20/2003
UNPUBLISHED
Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520(b)(1)(f), for forcing an act of sexual penetration on his live-in girlfriend. He appeals his conviction as of right. We affirm.
On December 7, 2001, defendant arrived home intoxicated and attempted to have sexual intercourse with the victim, his live-in girlfriend. Although the facts were in dispute as to the sequence of events that followed, it was undisputed that the victim telephoned 911 that evening. After placing the telephone call, the victim was unable to speak into the telephone because defendant was pulling her away from it. The 911 dispatcher heard the disturbance and crying through the telephone. She dispatched police to the victim's residence. While the police were en route, the dispatcher updated them that the disturbance may be a criminal sexual assault in progress.
When police arrived, they handcuffed defendant, who appeared intoxicated and appeared to have been physically exerting himself. The victim was very upset, was sweating and was crying. She had abrasions on her face. She told the interviewing officer that defendant struck her in the face, physically grabbed her, and eventually forced nonconsensual sexual intercourse on her after ripping off her underpants. The victim told the officer that she and defendant fell on the ground before the act of penetration. The victim was transported to the hospital and spoke to the emergency room nurse. The victim indicated that her boyfriend raped her and that he pulled her hair, bent her finger back, and punched her. The victim told the emergency room physician that her boyfriend forced vaginal intercourse against her will, that he hit her and that he bit her left shoulder. The victim had visible injuries, including abrasions on her left cheek and left upper lip, and a bite wound on her left shoulder.
At the time of trial, the victim was pregnant with defendant's child and admitted that she did not want to get defendant in trouble. She denied that the sexual penetration was forced. The victim admitted that she was angry with defendant on the night of December 7, 2000, because he was intoxicated. The victim also admitted that defendant demanded sexual intercourse and that a physical altercation subsequently took place during which defendant hit and bit her. He pulled her hair and her clothes. The victim testified that she fought defendant, but she never told him "no" to his demand for intercourse. Her underwear eventually ripped after being pulled in opposite directions by her and defendant. After that, the victim told defendant to go ahead and do whatever he wanted. She voluntarily removed her nightgown and allowed defendant to have sexual intercourse with her. She testified that she was tired of resisting defendant and knew that he would not give up no matter how much she resisted. The victim testified that after the sexual intercourse, defendant went to the kitchen. When he returned to the bedroom, she told him that she might leave him for another man. Another physical altercation took place. The victim testified that hitting and biting occurred during this second altercation. While the victim admitted that she was assaulted before the penetration, she claimed that all of her injuries occurred during the second incident, after the act of sexual penetration for which defendant was charged. The victim claimed that she telephoned 911 after falling to the floor during the second incident. She admitted, however, that she previously told the police and the emergency room physician that the penetration was not consensual.
I.
Defendant first argues that the evidence was insufficient to sustain his c
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