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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DENNIS L. NICKENS, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH CAVANAGH, J.

Chief Justice:

Justices:

Maura D. Corrigan

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

FILED JULY 20, 2004

No. 123992

Defendant was charged with criminal sexual conduct in the first degree (CSC-I) involving personal injury and the use of force or coercion to accomplish sexual penetration, MCL 750.520b(1)(f). court intent additionally to commit Over defendant's objections, the trial instructed CSC the jury on assault with MCL

involving

sexual

penetration,

750.520g(1).

The jury acquitted defendant of the CSC-I

charge, but found him guilty of assault with intent to commit CSC. We granted leave to appeal to consider whether assault with intent to commit CSC involving sexual penetration, MCL

750.520g(1), is included within the offense of first-degree CSC involving to personal injury and sexual the use of force or MCL

coercion

accomplish

penetration,

750.520b(1)(f).1

The Court of Appeals held that because MCL

750.520g(1) was not a necessarily lesser included offense of MCL 750.520b(1)(f), the trial court erred by instructing the jury on the assault offense.2 We hold that the trial

court did not err in its instruction to the jury because the assault offense is a necessarily lesser included

offense of first-degree CSC involving personal injury and the use of force or coercion to accomplish sexual

penetration. Court of

Therefore, we reverse the decision of the Appeals and reinstate defendant's assault

conviction. I. FACTS AND PROCEEDINGS We adopt as our own the following facts set forth by the Court of Appeals: Defendant's conviction arises from allegations that he sexually assaulted his former girlfriend. The complainant and defendant dated intermittently for several years and had two children. At some point, the complainant began dating another man named Frank. According to the complainant, defendant did not accept this new relationship. When the complainant ultimately
1

469 Mich 949 (2003).

Unpublished opinion per curiam, issued April 24, 2003 (Docket No. 237794).

2

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ended her relationship with Frank in August 2000, she discussed the possibility of reconciling with defendant. On September 9, 2000, at approximately 4:30 a.m., the complainant claimed that Frank unexpectedly came to her home and stayed for half an hour. According to the complainant, defendant called during this time and "exchanged some words" with Frank over the telephone. Later that day, the complainant stated that defendant visited her house. The complainant testified . . . that defendant straddled her, tore her clothes, and pulled down her pants. Throughout the assault, the complainant asserted that defendant accused her of being intimate with Frank, called her derogatory names, and punched her repeatedly in the head. The complainant indicated that defendant subsequently dragged her into her bedroom, pushed her over a chair, and punched her in the stomach. Defendant then told her to stand up, pushed her backwards, and said, "[s]uck my [penis], bit--." The complainant claimed that when she attempted to stand up, defendant punched her in the stomach again and caused her to regurgitate. Defendant ultimately pulled her head up, placed his penis on the side of her mouth, and ejaculated "all over" her. As a result of defendant's actions, the complainant stated that she suffered a blood clot in her stomach, bruising on her chest and left eye, and a swollen left cheek. On September 14th, the complainant reported the sexual assault to the police. She later obtained a personal protective order against defendant. Defendant 750.520b(1)(f). defendant's was A charged jury with was CSC-I held under and, MCL over

trial

objections,

the

trial

court

additionally

instructed the jury on assault with intent to commit CSC

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involving sexual penetration, MCL 750.520g(1).3 acquitted defendant of the CSC-I charge, but

The jury found him

guilty of assault with intent to commit CSC.

On appeal,

the Court of Appeals held, inter alia, that under this Court's decision in People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002), the trial court erred by instructing the jury on the lesser offense because MCL 750.520g(1) is not a necessarily lesser included offense of MCL

750.520b(1)(f).

We granted the prosecution's application

for leave to appeal. II. STANDARD OF REVIEW Whether assault with intent to commit CSC involving sexual penetration is included within the offense of CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration is a question of law,

which this Court reviews de novo. Mich 527, 531; 664 NW2d 685 (2003).

People v Mendoza, 468

The trial court also instructed the jury on the offense of aggravated assault, MCL 750.81a(1). However, the jury did not find defendant guilty of this offense and, thus, we express no opinion on the validity of the trial court's instruction on this offense.

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III. ANALYSIS A. Cornell and MCL 768.32 In Cornell, supra at 357, this Court held that, under MCL 768.32,4 a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense. "Necessarily included lesser offenses are

offenses in which the elements of the lesser offense are completely subsumed in the greater offense." Mendoza,

supra at 532 n 3.

Thus, an instruction on a lesser offense

is proper where "all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction." Id. at 533.5

Further, in Cornell this Court expressly stated that the decision in that case would apply "to those cases

pending on appeal in which the issue has been raised and

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MCL 768.32(1) provides in pertinent part:

[U]pon 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. I remain committed to my position in People v Mendoza, 468 Mich 527, 548-556 (CAVANAGH, J., concurring). Nonetheless, this Court's decisions in Cornell and Mendoza are the current law in the state of Michigan.
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preserved." objected to

Cornell, supra at 367. Here, defense counsel the trial court giving the lesser offense nor

instructions.

Moreover,

neither

the

prosecution

defendant asserts that the issue is unpreserved. defendant's case was pending on appeal and the

Because alleged

error was raised and preserved for review, our decision, by the express directive in Cornell, applies to this case. Thus, the instruction on assault with intent to commit CSC involving sexual penetration was appropriate if such an

offense is a necessarily lesser included offense of CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration. B. The Elements of Assault with Intent to Commit CSC Involving Sexual Penetration MCL 750.520g(1) states, "Assault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years." This Court has not had occasion to formally Relying Appeals to

delineate the elements of this particular offense. on its own case the law, however, of the Court with are of

concluded commit CSC

that

elements sexual

assault

intent as

involving

penetration

follows:

"(1) an assault; (2) with an improper sexual purpose or intent; (3) an intent to commit an act involving Slip op

penetration; and (4) an aggravating circumstance." 6


at 2 n 2.

Because we believe that the Court of Appeals

misinterprets MCL 750.520g(1), we reject its definition of that offense. We hold that the elements of assault with intent to commit CSC involving penetration are simply (1) an assault, and (2) an intent Nothing an to in commit MCL CSC involving sexual the the

penetration. existence of

750.520g(1) circumstance

requires or that

aggravating

assault is made with an improper sexual purpose or intent. Further, "[w]hen a statute sets forth a crime and its

punishment without designating its elements, courts must look to the common law for guidance." People v Langworthy,

416 Mich 630, 643 n 22; 331 NW2d 171 (1982). An assault "'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable battery.'" apprehension of receiving an immediate

People v Johnson, 407 Mich 196, 210; 284 NW2d

718 (1979), quoting People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978). The first type is referred to as an

"attempted-battery assault," whereas the second is referred to as an "apprehension-type assault." Mich 236, 244; 580 NW2d 433 (1998). can occur in one of two ways. People v Reeves, 458 As such, an assault

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Moreover, a "battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." 240 n 4. Therefore, of an a battery is the Id. at

successful See p 151

accomplishment Perkins &

attempted-battery Law (3d ed,

assault. 1982),

Boyce,

Criminal

("[W]hen we speak of an assault we usually have in mind a battery which was attempted or threatened. have failed or it may have succeeded. constitutes an assault only. assault and battery."); see The attempt may If it failed it

If it succeeded it is an also MCL 750.81. Stated

differently, an attempted-battery assault is a necessarily lesser included offense of a completed battery because it is impossible to commit a battery without first committing an attempted-battery assault. C. The Elements of First-Degree CSC Involving Personal
Injury and the Use of Force or Coercion to Accomplish
Sexual Penetration
MCL 750.520b provides in pertinent part: (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: * * * (f) The actor causes personal injury to the victim and force or coercion is used to accomplish penetration. Force or coercion includes but is not limited to any of the following circumstances: 8


(i) When the actor overcomes the victim through the actual application of physical force or physical violence. (ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats. (iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion. (iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable. (v) When the actor, through concealment or by the element of surprise, is able to overcome the victim. Thus, an actor may be found guilty under MCL

750.520b(1)(f) if the actor (1) causes personal injury to the victim, (2) engages in sexual penetration with the

victim, and (3) uses force or coercion to accomplish the sexual penetration. D. "Assault With Intent to Commit CSC Involving Sexual
Penetration" is a Necessarily Lesser Included Offense of
CSC-I Involving Personal Injury and the Use of Force or
Coercion to Accomplish Sexual Penetration
The issue for this Court to resolve is whether CSC-I, under MCL 750.520b(1)(f), always includes an "assault with intent to commit CSC involving sexual penetration," MCL

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750.520g(1).

In other words, are all the elements of MCL

750.520g(1) subsumed into MCL 750.520b(1)(f) such that one cannot commit CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration

without first committing an assault with intent to commit CSC involving sexual penetration? We hold that the

elements are subsumed and, therefore, MCL 750.520g(1) is a necessarily lesser included offense of MCL 750.520b(1)(f). In every instance where an actor commits CSC-I

involving personal injury and uses force or coercion to accomplish sexual penetration, the actor first commits an attempted-battery involving sexual assault with the intent The to commit "force CSC or

penetration.

term

coercion," as contained in MCL 750.520b(1)(f), necessarily contemplates a situation in which an assault has occurred. If, for example, the actor uses physical force to

accomplish sexual penetration, a nonconsensual and harmful touching has occurred. Because a battery includes an

attempted-battery assault, an assault has also occurred. Likewise, coercion, occurred. a if the actor overcomes and of harmful force to the victim by has of

nonconsensual application

touching the person

"The

another is not unlawful,--and, therefore, not a battery--if the recipient consents to what is done, provided this

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consent (1) is not coerced or obtained by fraud, (2) is given by one legally capable of consenting to such a deed, and (3) does not relate to a matter as to which consent will not be recognized as a matter of law." Perkins &

Boyce, Criminal Law (3d ed, 1982), p 154 (emphasis added). As such, the criminal law if views the coerced victim consent as no

consent

at

all.6

Thus,

is

coerced

into

agreeing to sexual penetration, the victim cannot be said to have lawfully consented and, thus, a battery has

occurred.

Because a battery includes an attempted-battery

assault, an assault has also occurred. In sum, nonconsensual sexual penetration with another is, in and of itself, an attempted-battery assault and a battery. As such, the first prong of MCL 750.520g(1), an

assault, is always satisfied when the actor commits CSC-I under MCL 750.520b(1)(f). Moreover, we also believe that

the second prong of MCL 750.520g(1), an intent to commit CSC involving sexual penetration, is always satisfied when the actor commits CSC-I under MCL 750.520b(1)(f).

"Submission under fear is not `consent' as the word is used in the law. If a man said, `I consent to be slapped,' at the point of a pistol and in fear of instant death if he did not say so, this would be no real consent to the slapping and the blow would constitute a battery." Id. at 155

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We

can

envision

no

circumstance

in

which

an

actor

could unintentionally or accidentally use force or coercion to sexually penetrate his victim and, therefore, lacked the necessary mens rea under MCL 750.520g(1) or MCL

750.520b(1)(f). intent crime.

We acknowledge that CSC-I is a general Langworthy, supra at 645. We are further

cognizant that assault with intent to commit CSC involving sexual crime. penetration Under may be viewed as a specific this intent is a

these

circumstances,

however,

distinction without a difference.7

This Court has recently noted that "the enactment of MCL 768.37, which abolished the defense of voluntary intoxication except in one narrow circumstance, has significantly diminished the need to categorize crimes as being either `specific' or `general' intent crimes." People v Maynor, 470 Mich __, __; __ NW2d __ (2004) (opinion by Taylor, J.). Additionally, we find this Court's reasoning in Langworthy persuasive in this particular case. Although the issue in Langworthy was whether CSC-I was a general or specific intent crime, this Court made the following observations: [W]e reject defendant's argument that if an applicable lesser included offense of a criminal sexual conduct offense requires specific intent, it necessarily follows that the greater offense also requires proof of specific intent. . . . We concur with the United States Court of Appeals, writing in United States v Thornton, 162 US App DC 207, 210-211; 498 F2d 749 (1974): "Actually, as has been stated, `[A]ll attempts require specific intent'; so if it were to follow appellant's logic of superimposing the (continued...) 12


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E. Application The trial court properly instructed the jury on the lesser offense of assault with intent to commit CSC

involving sexual penetration.

An instruction on a lesser

offense is proper where "all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction." Mendoza, supra at 533. First, MCL 750.520g(1) is a

necessarily lesser included offense of MCL 750.520b(1)(f). Additionally, a rational view of the evidence indicates

that there was sufficient support for the instruction on MCL 750.520g(1). The testimony of the complainant

presented at trial indicates that defendant tore off the

(...continued) specific intent of an included crime upon the greater offense, a specific intent would be required for practically every crime. This could not be the law. The differing requirements for lesser offenses result principally from the differing nature of the crimes and from their historical and legislative definitions. The requirement of a specific intent for lesser crimes exists because of a desire to protect the individual against conviction on slight evidence. The same protection is unnecessary where substantial overt acts are committed and fully consummated offenses are provable. There is no rule of law that crimes which carry greater punishment require the proof of greater, or even the same, criminal intent as included or related crimes which carry lesser punishment. . . ." [Langworthy, supra at 644-645 (emphasis added).]

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complainant's clothes; repeatedly beat her; stated, "[s]uck my [penis], bit--;" placed his penis on the side of the complainant's mouth; and ejaculated on the complainant.8

Under these circumstances, the trial court did not err by instructing the jury on assault with intent to commit CSC involving sexual penetration. IV. CONCLUSION We conclude that assault with intent to commit CSC involving necessarily personal accomplish Accordingly, sexual lesser penetration, included the MCL 750.520g(1), of CSC-I or is a

offense of

involving to

injury

and

use

force MCL of

coercion

sexual we

penetration, the

750.520b(1)(f). the Court of

reverse

decision

Appeals and reinstate defendant's assault conviction. Michael F. Cavanagh Maura D. Corrigan Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

Because MCL 750.520g(1) is a necessarily lesser included offense of MCL 750.520b(1)(f)--i.e., it is impossible to commit the latter without first committing the former--and the facts alleged supported the lesser instruction, defendant was on notice of the included offense and was not prejudiced by the instruction. See, e.g., People v Adams, 389 Mich 222, 242-244; 205 NW2d 415 (1973); see also Schmuck v United States, 489 US 705, 717719; 109 S Ct 1443; 103 L Ed 2d 734 (1989).

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