People v. Anderson

• Decision Date: 28 January 1982
• Docket Number: Docket No. 44497
• Citation: 314 N.W.2d 723,111 Mich.App. 671
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clement Bailey ANDERSON, Defendant-Appellant. 111 Mich.App. 671, 314 N.W.2d 723
• Court: Court of Appeal of Michigan — District of US

Page 723

314 N.W.2d 723

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clement Bailey ANDERSON, Defendant-Appellant.

Docket No. 44497.

111 Mich.App. 671, 314 N.W.2d 723

Court of Appeals of Michigan.

Submitted Oct. 16, 1980.

Decided Dec. 15, 1981.

Released for Publication Jan. 28, 1982.

[111 MICHAPP 673] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Gary R. Dettloff, Asst. Pros. Atty., for the People.

P. E. Bennett, Asst. State Appellate Defender, for defendant on appeal.

Before BRONSON, P. J., and HOLBROOK and RANSOM ^*, JJ.

RANSOM, Judge.

Defendant was convicted by a jury of one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), and one count of assault with intent to commit unarmed robbery, M.C.L. § 750.88; M.S.A. § 28.283, for which he was sentenced to terms of life and 5 to 15 years imprisonment respectively.

FACTS

On May 28, 1978, at approximately 1:30 a. m., [111 MICHAPP 674] Janice Dowdell, the complainant, and her friend, Janice Watson, after getting off the Jefferson Avenue bus in the City of Detroit, walked up Woodward Avenue to catch another bus to Highland Park. Defendant and three other men were sitting on the curb at a bus stop. Dowdell and Watson kept walking to the next bus stop and the four men started walking with them. The six of them waited at the next stop and, when no buses came, they began walking up Woodward again.

After the six people had walked together for some time, the three other men caught a bus, and defendant kept walking and talking with Dowdell and Watson. At one point the three of them saw a man following them. Defendant said he had a lot of money on him and did not want to be robbed. The three left Woodward and walked toward John R. Defendant grabbed each girl by the hand, and they began running. At this point the testimony of the defendant diverges from that of Dowdell and Watson.

According to Dowdell and Watson, defendant pushed both girls down to the ground and fell on top of them. Defendant pulled off the pouch in which Watson had carried her money. Watson then got away from defendant and ran down an embankment after help.

Dowdell testified that after Watson ran away, defendant struggled with Dowdell. During the struggle, defendant stuck his hand in the front and then in the back of Dowdell's shorts, and said "Give me your money". While his hand was in the back of her shorts, defendant stuck his finger into her rectum, saying a second time, "Give me your money". Dowdell testified defendant tried to pull [111 MICHAPP 675] her shorts down. During the struggle defendant bit Dowdell on the arm. As a result of the struggle, Dowdell was dirty, scratched, and her clothing was disheveled. While defendant and Dowdell were still struggling on the embankment, Watson returned with a cab driver and two policemen, and the policemen then arrested defendant.

Defendant claims that while running up the embankment the three of them fell either because Dowdell tripped defendant or helped to trip him. Defendant reached for his wallet thinking they were trying to rob him. Watson ran off in the direction from which they had come. Defendant put his arm around Dowdell's neck and one hand between her legs and sat her on her butt. Dowdell said she wanted to go home and started crying. Defendant told her not to worry and started brushing the dirt off her clothes. As the defendant and Dowdell were walking down the hill to look for Watson, the police arrived and arrested the defendant. Defendant denied knocking Dowdell and Watson down, denied sticking his finger in Dowdell's rectum, and denied asking Dowdell for money.

The Court admitted into evidence the testimony of Anita Williams. Anita Williams, age 18, testified that on the evening of April 5, 1978, she was going home on a bus from which she alighted at about 9:30 or 10 and walked across the street. Defendant followed Williams across the street, walked past her, turned around, grabbed her by the neck, and started choking her. Defendant pushed her into an alley, asked her for her money and took her purse. He then threw her to the ground, bit her face, and started feeling in her panties. During subsequent [111 MICHAPP 676] cross-examination defendant admitted that he assaulted Anita Williams on April 5, 1978.

Defendant raises three issues on appeal.

DOUBLE JEOPARDY

Defendant contends that his convictions for criminal sexual conduct in the first degree and assault with intent to commit unarmed robbery violate the double jeopardy provisions of the Federal and State Constitutions.

In the case at bar, assault with intent to commit unarmed robbery was an essential element of the first-degree criminal sexual conduct charge. The jury was instructed that in order to find defendant guilty of first-degree criminal sexual conduct it had to find defendant guilty of assault with intent to commit unarmed robbery.

We reaffirm the decision of People v. Swearington, 84 Mich.App. 372, 269 N.W.2d 467 (1978), and hold that where the underlying felony is a required element for conviction of criminal sexual conduct in the first degree, separate convictions thereon violate guarantees against double jeopardy. Also, see People v. Armstrong, 100 Mich.App. 423, 298 N.W.2d 752 (1980), wherein this Court reiterated the principle of People v. Swearington, supra, but distinguished the factual situation where the accompanying felony charged was not the underlying felony essential to conviction of criminal sexual conduct in the first degree.

Based on the double jeopardy violation in the case at bar, defendant's conviction for assault with intent to commit unarmed robbery is vacated.

[111 MICHAPP 677] SEXUAL INTENT

Defendant also asserts that his conviction for criminal sexual conduct must be reversed because the trial court did not instruct the jury that the offense required a finding that the penetration had as its purpose sexual gratification. Defendant's argument is based on the fact that CJI 20:2:04 and its Use Note provides:

If you find that any act occurred, it must have been a sexual act. It must have had as its purpose the arousing, stimulating or gratifying of the sexual emotions (or it must have been done with some other sexually improper intent or purpose).

USE NOTE: Where there is any question about the sexual nature of the act, this instruction must be given. It is appropriate for criminal sexual conduct in the first or third degree, i.e., sexual penetration ONLY ; sexual contact is limited to that which can 'reasonably be construed as being for the purpose of sexual arousal or gratification.' " (Emphasis in original.)

Use of the Criminal Jury Instructions is not required, but is encouraged. See, Supreme Court Administrative Orders 1977-1 and 1978-5, People v. Turner, 86 Mich.App. 177, 182, 272 N.W.2d 346 (1978), vacated on other grounds 407 Mich. 890 (1980).

This Court has held on several occasions, however, that CJI 20:2:04 inaccurately defines the statutory offense of first-degree criminal sexual conduct by requiring that the penetration have as its purpose sexual gratification or stimulation. People v. Hernandez, 80 Mich.App. 465, 474, 264 N.W.2d 343 (1978), lv. den. 406 Mich. 938 (1979), People v. Garrow, 99 Mich.App. 834, 837-838, 298 N.W.2d 627 (1980), People v. Bailey, 103 Mich.App. 619, 626-627, 302 N.W.2d 924 (1981). We reaffirm [111 MICHAPP 678] the finding that CJI 20:2:04 does not correctly state the law with regard to first-degree criminal sexual conduct. M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1) requires only a sexual penetration as defined by M.C.L. § 750.520a(h); M.S.A. § 28.788(1)(h) and the presence of some additional aggravating circumstance (in this case a penetration under circumstances involving the commission of some other felony) for the defendant's acts to constitute first-degree criminal sexual conduct. See, M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c) and People v. Pettway, 94 Mich.App. 812, 815, 290 N.W.2d 77 (1980).

Defendant contends, however, that if there need be no proof that the penetration was intended to obtain sexual gratification, absurdities would abound because minor felonies would be transformed into first-degree criminal sexual conduct without any change in the intent of the actor. Defendant's argument considers definition of the offense and reasonableness in sentencing totally by reference to mens rea to the exclusion of the specific acts committed by the defendant.

We believe there is no absurdity in changing the definition of the crime and increasing the potential maximum sentence where the actor's commission of some felony also involves acts subjecting the victim to personal degradation. An assault with intent to commit unarmed robbery is a serious offense in its own right, but where the assailant effects a sexual penetration by inserting his finger into the victim's anus, we believe this additional act can rationally be the basis for making the actor's conduct an offense carrying a more severe potential penalty than a mere assault. Sexual penetration could well create psychological problems for the victim over and above any mental difficulties which might possibly flow from an assault.[111 MICHAPP 679] It is not unreasonable to treat more seriously an assault in which the victim is subjected to dehumanizing and degrading sexual acts than an assault in which no such degradation occurs. This is true quite apart from any intent to obtain sexual gratification on the part of the actor. ¹

Defendant further contends that if an intent to obtain sexual gratification is not implicit in the statute, it is unconstitutionally overbroad. We disagree. As applied to defendant, the statute prohibits sexual penetration of the victim as a circumstance of assault with intent to commit unarmed robbery. As such, the statute does not prohibit innocent...