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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED December 6, 1996

No. 181643 LC No. 94-001133-FH

LARRY MICHAEL MOORE, Defendant-Appellant.

Before: Markey, P.J., and Michael J. Kelly and M.J. Talbot,* JJ. PER CURIAM. A jury convicted defendant of one count of third-degree criminal sexual conduct (CSC III), MCL 750. 520d(1)(a); MSA 28.788(4)(1)(a), and one count of attempted CSC III, MCL 750.92(2); MSA 28.287(2). He was sentenced to a term of four to fifteen years' imprisonment for the CSC III conviction, and a term of two to five years' imprisonment for the attempted CSC III conviction. Defendant appeals of right, and we affirm. Defendant asserts that the evidence was insufficient to convict him of either charge and that his motion for directed verdict of acquittal should have been granted. We disagree. This Court reviews a challenge to the sufficiency of the evidence and a denial of a directed verdict using the same standard, i.e., we view the evidence in a light most favorable to the prosecution to determine whether there was sufficient evidence for a rational trier of fact to find that the essential elements of the crime were proven beyond a reasonable doubt. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993); People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995), citing People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). The victim, who was fifteen years old at the time of the assault, accompanied two friends on a weekend visit to defendant's hunting campsite in a remote location in Cheboygan County. Early one morning, defendant asked the victim to help him check on some beaver traps. Defendant and the victim went into a deer blind, where defendant forcibly performed fellatio on the victim. Upon returning to * Circuit judge, sitting on the Court of Appeals by assignment. -1

camp, the victim told one of his friends about this incident. Later, the victim was left alone in the camper with defendant while the victim's two friends went for a walk. Defendant locked the door, approached the victim, unzipped the victim's pants and began rubbing the victim's penis. He stopped when the two friends returned after being gone for only a few minutes. MCL 750.520d(1)(a); MSA 28.788(4)(1)(a) provides that a person is guilty of CSC III if he engages in sexual penetration with another person who is at least thirteen years of age and under sixteen years of age. MCL 750.520a(l); MSA 28.788(1)(l) defines "sexual penetration" to include fellatio. Here, the prosecution established that the victim was fifteen years old at the time of the assault. The element of penetration was proven when the victim testified that defendant pulled down his pants and performed fellatio on him. Despite defendant having disputed this incident, the victim's testimony i s sufficient to establish penetration and CSC III when we examine the evidence in a light most favorable to the prosecution. Wolfe, supra; Lugo, supra. The jury was free to believe the victim over defendant. People v Herbert , 444 Mich 466, 473-474; 511 NW2d 654 (1993). Thus, defendant was not entitled to a directed verdict on the CSC III charge. Jolly, supra. We reach the same conclusions with respect to the attempted CSC III charge. An attempt consists of (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime, and (2) an act in furtherance of that intent which, as it is most commonly phrased, goes beyond mere preparation. People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993), citing LaFave & Scott, Substantive Criminal Law,

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