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In People v. Thompson, 117 Mich. App. 522, 528-529; 324 N.W.2d 22 (1982), this Court found that an instruction had improperly shifted to a defendant the burden of proof regarding consent and held that if, on remand, the evidence warranted a consent instruction, the court should indicate that the burden is on the prosecution to disprove consent beyond a reasonable doubt.
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Docket No. 53296.
Decided April 27, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad J. Sindt, Prosecuting Attorney, and Gerald L. Charland, Senior Assistant Prosecuting Attorney, for the people.
Nora J. Pasman and John Nussbaumer, Assistants State Appellate Defender, for defendant on appeal.
Before: R.B. BURNS, P.J., and D.F. WALSH and MacKENZIE, JJ.
After a jury trial, defendant was convicted of kidnapping, MCL 750.349; MSA 28.581, and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788 (2). Defendant was sentenced to imprisonment for 2 concurrent terms of 15 to 30 years and now appeals by right.
In People v Adams, 389 Mich. 222; 205 N.W.2d 415 (1973), the Court held that it was necessary to interpolate an element of asportation or its equivalent in the crime of kidnapping to prevent the kidnapping statute from being unconstitutionally overbroad. The necessary asportation could not be merely incidental to the commission of another underlying lesser crime. In People v Barker, 411 Mich. 291; 307 N.W.2d 61 (1981), the Court held that the Adams rule applied to cases in which the underlying crime is coequal in punishment to kidnapping. Kidnapping and first-degree criminal sexual conduct are coequal in punishment.
Here the trial judge instructed the jury on asportation as follows:
"[D]uring the course of such confinement the defendant must have forcibly moved the victim or caused her to be moved from one place to another for the purpose of abduction and kidnapping, or must have hidden the victim and kept her in secret confinement."
The instruction as given was insufficient to convey the essential point that the asportation could not be merely incidental to the charged criminal sexual conduct. While counsel for defendant made no relevant objection to the trial judge's instructions, defendant's right to a jury determination upon all essential elements of the offense requires that the trial judge's instructions include all of the essential elements of the offense charged and not exclude from jury consideration material issues, defenses, or theories if there is evidence to support them. People v Liggett, 378 Mich. 706, 714; 148 N.W.2d 784 (1967), People v Reed, 393 Mich. 342, 349-350; 224 N.W.2d 867 (1975). Failure to adequately instruct the jury here on the essential element of asportation was reversible error.
It was also reversible error, even absent objection, for the trial judge to fail to instruct the jury on the defense of consent to first-degree criminal sexual conduct. See People v Hearn, 100 Mich. App. 749; 300 N.W.2d 396 (1980). As in Hearn, defendant's theory here was that complainant had consented to sexual intercourse. Although Hearn involved commission of first-degree criminal sexual conduct by sexual penetration while armed with a weapon, MCL 750.520b (1)(e); MSA 28.788 (2)(1)(e), we believe that the reasoning used in Hearn is equally applicable where defendant is charged with commission of the crime by sexual penetration under circumstances involving commission of a felony, MCL 750.520b (1)(c); MSA 28.788 (2)(1)(c). The prosecution's reliance on People v LaPorte, 103 Mich. App. 444; 303 N.W.2d 222 (1981), is misplaced. Contrary to the prosecution's assertion in its brief on appeal, the Court did not determine in that case that the jury need not be instructed on consent where the charge is criminal sexual conduct during the commission of a felony. We see no basis for such a distinction.
The prosecution also relies on the trial judge's instruction that consent is a defense to kidnapping and argues that the jury could not have reasonably found that complainant consented to sexual intercourse but not to kidnapping. We are not persuaded that consensual sexual intercourse is necessarily impossible in the course of a kidnapping. Moreover, the jury is the sole judge of all the facts and can choose, without any apparent logical basis, what to believe and what to disbelieve. People v Vaughn, 409 Mich. 463, 466; 295 N.W.2d 354 (1980).
The foregoing errors require reversal of both convictions and a new trial. Defendant here was charged with having committed first-degree criminal sexual conduct by sexual penetration under circumstances involving commission of a felony, MCL 750.520b (1)(c); MSA 28.788 (2)(1)(c). The felony relied upon was the charged kidnapping. Since we discern no clear legislative intent in the criminal sexual conduct statute to authorize multiple convictions for a single criminal act, defendant's conviction of both kidnapping and first-degree criminal sexual conduct violated the constitutional prohibition of double jeopardy. People v Swearington, 84 Mich. App. 372; 269 N.W.2d 467 (1978), People v Peete, 102 Mich. App. 34; 301 N.W.2d 53 (1980), lv den 411 Mich. 962 (1981), People v Brown, 105 Mich. App. 58; 306 N.W.2d 392 (1981), People v Bouknight, 106 Mich. App. 798; 308 N.W.2d 703 (1981), People v Clement Anderson, 111 Mich. App. 671; 314 N.W.2d 723 (1981). We recognize, however, that some panels of this Court have taken a contrary position. See People v Robideau, 94 Mich. App. 663; 289 N.W.2d 846 (1980), and People v Ferrell, 99 Mich. App. 609; 299 N.W.2d 366 (1980). On remand, the jury should be instructed that it may convict defendant, if at all, of only one of the two offenses. See People v Jankowski, 408 Mich. 79, 92-94; 289 N.W.2d 674 (1980).
In People v Washington, 100 Mich. App. 628, 632-633; 300 N.W.2d 347 (1980), the Court said:
"Evidence of prior consistent statements of a witness is generally inadmissible as substantive evidence. Brown v Pointer, 390 Mich. 346, 351; 212 N.W.2d 201 (1973), People v Hallaway, 389 Mich. 265, 276; 205 N.W.2d 451 (1973) (Justice BRENNAN, concurring). Evidence of prior consistent statements is admissible, however, to rebut a charge of recent fabrication or as evidence of whether or not a witness had made a prior inconsistent statement. People v Harris, 86 Mich. App. 301, 305; 272 N.W.2d 635 (1978), People v Coles, 79 Mich. App. 255, 260-261; 261 N.W.2d 280 (1977). The evidence in the instant case must qualify under the recent fabrication exception if it is to be admissible, since no evidence of any prior inconsistent statement had been brought out during cross-examination. In Brown v Pointer, 41 Mich. App. 539, 548; 200 N.W.2d 756 (1972), rev'd on other grounds 390 Mich. 346 (1973), this Court set forth the guidelines for admission of prior consistent statements to rebut a charge of `recent fabrication':
"`Michigan permits the admissibility of prior consistent statements in order to rehabilitate an impeached witness if (1) the impeachment of the sworn testimony attacked the witness as having had a motive for changing or falsifying his testimony so as to have been of recent contrivance or fabrication, and (2) if the earlier consistent statement was given at a time prior to the existence of any fact which would motivate bias, interest, or corruption. People v Miniear, 8 Mich. App. 591 [ 155 N.W.2d 222] (1967); People v Gardineer, 2 Mich. App. 337 [ 139 N.W.2d 890] (1966).'"
On remand, complainant's prior consistent statements shall not be admitted except for one of the purposes ponted out in Washington.
The trial judge instructed the jury:
"Consent is a complete defense to the crime of kidnapping provided that you find the following:
"First, that the victim's consent to go with the defendant was not obtained by fraud, duress or threats; and, secondly, that the victim's consent was present throughout the commission of the alleged offense. If you find both of those elements present, then you must return a verdict of not guilty to the charge of kidnapping."
The prosecution bears the burden of proving defendant's guilt beyond a reasonable doubt and, where defendant produces enough evidence to put an affirmative defense into controversy, the prosecution bears the burden of disproving the affirmative defense beyond a reasonable doubt. Compare People v Garbutt, 17 Mich. 9 (1868) (insanity), People v Coughlin, 65 Mich. 704; 32 N.W. 905 (1887) (self-defense), and People v MacPherson, 323 Mich. 438; 35 N.W.2d 376 (1949) (alibi). Shifting of the burden of proof in a criminal case goes to the very heart of the judicial process, and a shift in the burden of proof may not be inferred absent express statutory language to that effect. People v Rios, 386 Mich. 172, 174-175; 191 N.W.2d 297 (1971). The instruction reproduced above erroneously suggested that the burden of proof on the issue of consent had shifted to defendant. On remand, if the evidence introduced warrants instructions on consent as a defense to kidnapping or criminal sexual conduct, the instructions should indicate that the burden is on the prosecution to disprove consent beyond a reasonable doubt.
Reversed and remanded for further proceedings in accordance with the foregoing.