Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsNov 20, 1980
101 Mich. App. 687 (Mich. Ct. App. 1980)
101 Mich. App. 687300 N.W.2d 41

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Docket No. 47618.

Decided November 20, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

Socorro G. Arce, for defendant.

Before: D.C. RILEY, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

Defendant was charged with first-degree criminal sexual conduct, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c) (hereinafter CSC I). He was convicted in a nonjury trial of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b) (hereinafter CSC III), and sentenced to 6 to 15 years imprisonment. He appeals by right, GCR 1963, 806.1.

The trial judge's findings of fact did not specify the subsection of CSC III under which he found defendant guilty. Our analysis of defendant's second issue, infra, discloses that the verdict can only have been premised on CSC III subsection (b).

Subsection (c) of CSC I involves sexual penetration during the commission of another felony. Subsection (b) of CSC III involves sexual penetration effected by means of force or coercion. Defendant first claims on appeal that his conviction must be reversed because CSC III subsection (b) is not a necessarily or cognate lesser included offense of CSC I subsection (c).

Defendant cites People v Secreto, 81 Mich. App. 1; 264 N.W.2d 99 (1978), lv den 406 Mich. 1019 (1979), as one case in support of his argument. In Secreto, defendant was convicted of 2 counts CSC I: sexual penetration during the commission of another felony and sexual penetration through force or coercion which causes personal injury. On appeal to this Court, it was held, inter alia, that CSC I perpetrated during the commission of another felony has no lesser included offenses in CSC III or CSC IV:

"[t]here are no crimes corresponding to third and fourth-degree criminal sexual conduct and thus those offenses are not lesser included offenses, necessarily or otherwise, to the greater offense of first-degree criminal sexual conduct brought under MCLA 750.520b(1)(c)." Secreto, supra, 4.

In People v Green, 86 Mich. App. 142; 272 N.W.2d 216 (1978), a case also cited by defendant, one of the charged offenses was CSC I — an aider and abettor used force or coercion to accomplish sexual penetration. MCL 750.520b(1)(d); MSA 28.788(2)(1)(d). Defendant requested, but was denied, jury instructions on CSC II and IV as well as attempt instructions on all four degrees of criminal sexual conduct. With regard to the CSC III and CSC IV instructions, the Court held that neither type of criminal sexual conduct constituted a lesser included offense of CSC I where a charge of that nature is premised on facts involving an aider and abettor:

"There is no category of third- or fourth-degree criminal sexual conduct which corresponds to subsection (d) of first- and second-degree criminal sexual conduct. * * * Consequently, there was no error in refusing to instruct on CSC IV and attempted CSC III or IV since these offenses are not lesser included offenses of CSC I and II subsection (d)." Green, supra, 150-151. Secreto held that neither CSC III nor IV is a lesser included offense of CSC I subsection (c). Green held that CSC I subsection (d) has no lesser included offenses, necessarily or otherwise, in CSC III or IV. Both Green and Secreto analyzed the question by determining whether the corresponding categories of the charged offense were elements of the claimed lesser included offenses, on the face of the statute. Thus, because CSC I based on facts involving an aider and abettor using force or coercion to accomplish sexual penetration is exactly reflected on the face of CSC II, but for the penetration element, the Court in Green did find that CSC II is a necessarily included lesser offense. Green, supra, 150.

Judge CYNAR'S dissent in Green, 86 Mich. App. 142, 153-154, analyzed the relationship between CSC I subsection (d) and CSC III subsection (b) as follows:
"I find no support for the majority's proposition that a defendant charged with CSC I subsection (d)(ii) would not receive fair notice of possible prosecution for CSC III or CSC IV.
"Moreover, an examination of the elements of the offenses indicates that this is a situation of necessarily lesser-included offenses. * * *
"CSC III subsection (b) requires proof of:
"1) sexual penetration and
"2) force or coercion.
* * *
"CSC I subsection (d)(ii) requires proof of:
"1) sexual penetration,
"2) force or coercion, and
"3) one or more aiders and abettors.
"Thus, CSC I subsection (d)(ii) consists of all the elements of CSC III subsection (b), plus the additional element of an aider and abettor. Since proof of CSC I subsection (d)(ii) necessarily proves all the elements of CSC III subsection (b) and CSC IV subsection (a), these latter offenses are necessarily included offenses of CSC I subsection (d)(ii). People v Ora Jones, 395 Mich. 379, 387; 236 N.W.2d 461 (1975).[1]
"[1] In a similar fashion the majority points out that these offenses are lesser-included offenses of CSC 1 subsection (f), which requires proof of 1) sexual penetration, 2) force or coercion, and 3) injury to the victim. What the majority fails to see is that CSC II subsection (b) and CSC IV subsection (a) are necessarily included offenses of both CSC I subsection (d)(ii) and subsection (f)."
Whether we agree with his analysis or not, it does not aid us here, because the greater offense in Green was CSC I subsection (d) rather than, as here, CSC I subsection (c).

To relegate the determination of both necessarily and cognate lesser included offenses to a mechanical comparison of the wording of the criminal sexual conduct statute is to conduct only an analysis of the question of necessarily included lesser offenses. Such an approach with regard to cognate lesser included offenses courts erroneous conclusions because the crucial question with regard to cognates is whether the offense charged provided defendant with fair notice that he must also defend against such lesser included offenses. People v Ora Jones, 395 Mich. 379, 388; 236 N.W.2d 461 (1975), reh den 396 Mich. 976 (1976).

Cognate lesser included offenses share overlapping elements with the greater offense and such overlapping elements relate to a common statutory purpose. People v Bryant, 80 Mich. App. 428, 433; 264 N.W.2d 13 (1978), lv den 402 Mich. 942 (1978). But, the greater and the lesser may each include one or more elements not shared with the other. The test for a cognate lesser included offense is, thus, two-fold. People v Rood, 83 Mich. App. 350, 352; 268 N.W.2d 403 (1978). Although two offenses may share a common statutory purpose, if there are no overlapping elements, they are not cognate. People v Matuja, 77 Mich. App. 291, 295; 258 N.W.2d 79 (1977). Likewise, although two offenses may share one element, they are not cognate where they serve to remedy two separate problems. People v Davenport, 89 Mich. App. 678, 683; 282 N.W.2d 179 (1979).

In the instant case, CSC I subsection (c) and CSC III subsection (b) share an overlapping element: sexual penetration. Whether the two types of criminal sexual conduct are related to a common statutory purpose requires consideration of the question whether the lesser offense protects the same societal interests as the greater. People v Payne, 90 Mich. App. 713, 720; 282 N.W.2d 456 (1979). Further, the question of whether one offense is a cognate of another must be resolved by referring to the evidence adduced at trial to determine whether the record would support a conviction of the lesser offense. Payne, supra, 720, Bryant, supra, 433.

In the case at bar, the record reveals that defendant broke into the victim's home, entered her bedroom while she was asleep, turned the ceiling light on for one moment, and then jumped on top of her on the bed. After asking who else was in the home (only the victim's children, who were also asleep), and where the victim's money was located, the defendant stated in colloquial terms that he intended to sexually assault the victim. He did so, effecting penetration. He then turned the complainant over on her stomach, placed a pillow over her head, and asked where her purse was kept. She told him, after he refused to allow her to turn over, and he took the purse and left the home. Sometime during the assault, defendant told the complainant that he did not want to hurt her.

Because he found some question as to whether the evidence established that defendant had actually taken the purse, the trial judge found defendant guilty of CSC III. This finding was consistent with the evidence, given proof that defendant entered the home without the victim's permission or knowledge, jumped on top of her on the bed and, during the course of the sexual penetration, impliedly threatened her by stating that he did not want to hurt her.

We further find that the overlapping elements, sexual penetration, have the shared purpose of protecting the public from the most invasive type of sexual assault. Although the method of effecting sexual penetration may differ in theory, depending on which type is charged, and thus be supposed to involve different societal interests, the evidence of this case supports a finding that, here, CSC III subsection (b) is a cognate lesser included offense of CSC I subsection (c). The issue must be decided on a case-by-case basis, Ora Jones, supra, 390, and not merely by reference to the face of the statute.

The remaining question for our consideration is whether defendant had fair notice that he would be required to defend against a charge of CSC III subsection (b), from the language of the information:

"* * * Defendant * * * did engage in sexual penetration, to-wit: SEXUAL INTERCOURSE with the COMPLAINANT and the sexual penetration occurred under circumstances involving the commission of another felony, to-wit: Larceny in a building, Contrary to Sec. 750.520b(1) MCLA."

In People v Chamblis, 395 Mich. 408, 418; 236 N.W.2d 473 (1975), reh den 396 Mich. 976 (1976), the Michigan Supreme Court considered the issue of fair notice and concluded that "[t]o assure defendant's due-process rights to fair notice, the trial judge may not instruct on lesser included offenses over defendant's objection unless the language of the charging document `be such as to give the defendant notice that he could at the same time face the lesser included offense charge'. United States v Whitaker, 144 US App DC 344, 350; 447 F.2d 314, 320 (1971)." Just preceding this statement, the Court quoted as follows from United States v Brewster, 165 US App DC 1, 14, fn 32; 506 F.2d 62, 75, fn 32 (1974):

"As a caveat, we note that in a situation where the lesser included offense statute under which a defendant was convicted is relatively remote textually from the greater offense statute under which he was charged or where the logical connection between the statutes is not so obvious or well established, we might well hold that the lesser included offense conviction could not stand for want of proper notice in the indictment. In such a situation, our holding would depend on the precise record of the case and the terms of the specific statutes involved."

Using the language of Brewster, we do not find that the statute under which defendant was convicted is at all "remote textually from the greater offense statute under which he was charged". Nor do we find that "the logical connection between the statutes is not * * * obvious or well established". The criminal sexual conduct act is explicitly arranged by degrees. It being a general rule of statutory interpretation that the Legislature is "presumed to know of and legislate in harmony with existing laws * * *", People v Harrison, 194 Mich. 363, 369; 160 N.W. 623 (1916), MCL 768.32; MSA 28.1055 may be applied in this case to the end that the textual proximity of and logical connection between first degree criminal sexual conduct subsection (c) and third degree criminal sexual conduct subsection (b), preclude the defendant from claiming lack of fair notice that a barebones charge of the former required him to defend against the latter as a cognate lesser included offense. We thus reject his claim that his conviction of CSC III subsection (b) should be reversed because that offense is not a lesser included offense of CSC I subsection (c).

"Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense."

Defendant also asserts error because the trial judge did not explicitly state in his findings of fact under which subsection of CSC III he found defendant guilty. Although the court did not specify the subsection, a reading of the record clearly discloses the path that the judge followed in reaching his verdict. See, People v Cook, 89 Mich. App. 72, 80; 279 N.W.2d 579 (1979), lv den 406 Mich. 1002 (1979), People v Jackson, 81 Mich. App. 18, 20; 264 N.W.2d 101 (1978).

The Legislature has provided for three varieties of CSC III. Subsection (a) involves sexual penetration with a person between the ages of 13 and 16. Subsection (b) involves sexual penetration effected by means of force or coercion. Subsection (c) involves sexual penetration with a person who is mentally defective. While evidence of force or coercion is present in the instant case, there is nothing implicating defendant in an act of sexual penetration with a mentally defective person, or with a person who was between the ages of 13 and 16. The judge having made adequate findings of fact in all other respects, we thus reject defendant's assertion and affirm his conviction.


D.C. RILEY, P.J., concurs in result only.

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