People v. Dowdy

• Decision Date: 22 April 1986
• Docket Number: Docket No. 84923
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randall Lee DOWDY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 820

384 N.W.2d 820

148 Mich.App. 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randall Lee DOWDY, Defendant-Appellant.

Docket No. 84923.

Court of Appeals of Michigan.

Submitted Dec. 12, 1985.

Decided Jan. 22, 1986.

Released for Publication April 22, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Olga Agnello-Raspa, Asst. Pros. Atty., for the People.

State Appellate Defender by Richard B. Ginsberg, for defendant-appellant on appeal.

Before DANHOF, C.J., and J.H. GILLIS and WARSHAWSKY ^*, JJ.

PER CURIAM.

Defendant pled guilty as charged to kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, five counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), and possession of a firearm during the commission of a felony, M.C.I. Sec. 750.227b; M.S.A. Sec. 28.424(2), pursuant to a sentence agreement with the prosecutor. Under the terms of the agreement, defendant would enter a guilty plea to all seven counts in exchange for the prosecutor's recommendation of a 10 to 20 year sentence for each of the first-degree criminal sexual conduct and kidnapping counts. On October 30, 1984, defendant was sentenced to prison for 2 years on the felony firearm charge, and to concurrent terms of imprisonment of from 10 to 20 years on the remaining counts, which would be served consecutively to the felony firearm sentence. Defendant appeals as of right.

Defendant first claims that his kidnapping conviction must be set aside because an inadequate factual basis exists in the record for the asportation element. GCR 1963, 785.7(3)(a) requires the trial court to establish support for a finding of guilt by questioning the defendant in order to insure that the defendant's plea is accurate. Defendant has failed to preserve the issue for appellate review, however, by failing to file a motion to withdraw his plea in the lower court. GCR 1963, 785.7(7)(a), now MCR 6.101(F)(7)(a). If defendant had filed such a motion alleging this defect, the trial court would have had an opportunity to correct the error by supplementing the record and then giving defendant the option of affirming the plea and sentence on the kidnap count or withdrawing the plea. GCR 1963, 785.7(7)(b), now MCR 6.101(F)(7)(b).

Defendant next contends that his plea convictions on the five counts of first-degree criminal sexual conduct result in multiple punishments for a single offense, contrary to the double jeopardy clauses of the Michigan Constitution, Const 1963, art 1, Sec. 15, and the United States Constitution, US Const, Am V. Defendant contends that the analysis employed in People v. Johnson, 406 Mich. 320, 279 N.W.2d 534 (1979), is equally applicable to this case. He argues that the mere fact that penetration can be established through more than one of the many alternatives enumerated in the statutory definition of "sexual penetration" does not establish that more than one offense occurred. Defendant draws an analogy between first-degree criminal sexual conduct and armed robbery, relying upon People v. Wakeford, 418 Mich. 95, 341 N.W.2d 68 (1983). Defendant has admitted assaulting the complainant in five separate penetrations (one vaginal, two oral, and two anal). Defendant argues that by allowing punishment for each separate penetration, a prosecutor may turn one offense into several offenses.

Defendant's "unit of prosecution" argument requires us to determine whether the Legislature intended to authorize punishment for each sexual penetration or for one sexual assault regardless of the number of sexual penetrations. People v. Robideau, 419 Mich. 458, 469, 355 N.W.2d 592 (1984); People v. Wakeford, supra, 418 Mich. pp. 107-108, 341 N.W.2d 68; People v. Johnson, supra, 406 Mich. pp. 327-330, 279 N.W.2d 534. Legislative intent may be determined by the language of the statute defining criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), which provides:

"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:"

Sexual penetration is defined by M.C.L. Sec. 750.520a; M.S.A. Sec. 28.788(1) as:

" 'Sexual penetration' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required."

From the face of the statute, it appears that the gravamen of first-degree criminal sexual conduct is sexual penetration accomplished under any of the enumerated circumstances. People v. Johnson, supra, p. 330, 279 N.W.2d 534.

In light of the language and focus of the statute, we believe the Legislature intended to punish separately each criminal sexual penetration. Accord, People v. Nelson, 79 Mich.App. 303, 261 N.W.2d 299 (1977), rev'd in part 406 Mich. 1020, 281 N.W.2d 134 (1979) (defendant's convictions on two counts of first-degree criminal sexual conduct based upon two penetrations, vaginal and oral, occurring as part of a continuous sexual assault, do not violate the constitutional prohibition against being twice put in jeopardy for the same offense). The offense of first-degree criminal sexual conduct has been completed after sexual penetration has occurred by any one of the enumerated circumstances. From the language of the statute, it appears that the Legislature intended to authorize separate punishment for each completed sexual penetration. We conclude that defendant's sentences for five acts of penetration are not for the "same offense" and therefore no double jeopardy violation is shown. See also, People v. Rogers, 142 Mich.App. 88, 92, 368 N.W.2d 900 (1985). Compare People v. Morton, 423 Mich. 650, 377 N.W.2d 798 (1985).

We reject defendant's argument that the analysis applied in People v. Johnson, supra, applies and controls here. The issue considered by the Johnson Court, whether a single penetration accompanied by more than one of the aggravating factors enumerated in M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2) could support conviction for more than one count of first-degree criminal sexual conduct, differs from the issue raised by this case. It is...