People v. Gorney

• Decision Date: 11 August 1980
• Docket Number: 78-642,Docket Nos. 78-641
• Citation: People v. Gorney, 297 N.W.2d 648, 99 Mich.App. 199 (Mich. App. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Paul GORNEY, Defendant-Appellant. 99 Mich.App. 199, 297 N.W.2d 648
• Court: Court of Appeal of Michigan

Page 648

297 N.W.2d 648

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Paul GORNEY, Defendant-Appellant.

Docket Nos. 78-641, 78-642.

99 Mich.App. 199, 297 N.W.2d 648

Court of Appeals of Michigan.

Aug. 11, 1980.

Released for Publication Nov. 5, 1980.

James R. Neuhard, State Appellate Defender, Kim R. Fawcett, Asst. State Appellate Defender, Detroit, for defendant-appellant.

[99 MICHAPP 202] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty., Neil P. Wackerly, Asst. Pros. Atty., for plaintiff-appellee.

[99 MICHAPP 203] Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

MAHER, Presiding Judge.

Defendant appeals as of right from his plea-based convictions for first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), and second-degree criminal sexual conduct, M.C.L. § 750.520c; M.S.A. § 28.788(3). Defendant was sentenced to imprisonment for 10 to 15 years on each count, the sentences to run concurrently.

The count charging defendant with first-degree criminal sexual conduct was based on sexual penetration of Colleen O'Farrell, defendant's 15-year old stepdaughter, who was residing in the same household at the time of the incident. Having reviewed the transcript of the plea taking, we find that the factual basis elicited from the defendant on this charge is sufficient to support a conviction for first degree criminal sexual conduct under M.C.L. § 750.520b(1)(b); M.S.A. § 28.788(2)(1)(b). See Guilty Pleas Cases, 395 Mich. 96, 128-132, 235 N.W.2d 132 (1975), GCR 1963, 785.7(3). We also find that the trial court complied with GCR 1963, 785.7 in accepting defendant's plea to the charge of first-degree criminal sexual conduct. We therefore affirm defendant's conviction of count one, and the sentence of 10 to 15 years based thereon.

The second count charging defendant with second-degree criminal sexual conduct was based upon defendant's sexual contact with another stepdaughter Maureen O'Farrell, in violation of M.C.L. § 750.520c(1)(f); M.S.A. § 28.788(3)(1)(f). Specifically, this count alleged that "he engaged in sexual contact with Maureen O'Farrell and caused personal injury to the said Maureen O'Farrell and used force or coercion to accomplish the said sexual contact [99 MICHAPP 204] by overcoming the said Maureen O'Farrell through the actual application of physical force or physical violence". In developing a factual basis with respect to count two, the sole reference to the complainant's personal injury consisted of defendant's acknowledgement that the complainant was "upset".

On appeal, the defendant contends inter alia that: (1) there was an insufficient factual basis for his conviction of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(f); M.S.A. § 28.788(3)(1)(f); and (2) this provision is unconstitutionally vague because, where the element of personal injury is mental anguish, there is an arbitrary distinction between second and fourth-degree criminal sexual conduct.

Michigan's Criminal Sexual Conduct statute, M.C.L. § 750.520a et seq.; M.S.A. § 28.788(1) et seq., which became effective on April 1, 1975, divides criminal sexual conduct into four degrees of seriousness. First-degree criminal sexual conduct is defined as sexual penetration with another person accompanied by any one of seven aggravating circumstances, ¹ and is a felony punishable by imprisonment for life to any term of years. Second-degree criminal sexual conduct is defined as sexual contact with another person accompanied by any of seven aggravating circumstances, ² and is a felony punishable by imprisonment for not more than 15 years. Third-degree criminal sexual conduct involves penetration accompanied by any of three aggravating circumstances, ³ and is a felony punishable by imprisonment for not more than 15 years. Finally, fourth-degree criminal sexual conduct involves sexual contact accompanied by two aggravating[99 MICHAPP 205] circumstances, ⁴ and is a misdemeanor punishable by imprisonment for not more than two years, or by a fine of not more than $500.

The defendant herein was charged under M.C.L. § 750.520c(1)(f); M.S.A. § 28.788(3)(1)(f), which provides:

"Sec. 520c. (1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact 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 the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v)."

M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a) provides:

"Sec. 520e. (1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:

"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v)."

Thus, the fourth-degree criminal sexual conduct provision is a necessarily included lesser offense of the second-degree criminal sexual conduct provision of which the defendant herein was convicted, the only difference between them being the element of personal injury. People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975).

Personal injury is defined in M.C.L. § 750.520a(f); M.S.A. § 28.788(1)(f) as: "bodily injury, disfigurement, [99 MICHAPP 206] mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ". It is the element of mental anguish which is the focus of the instant appeal.

We would conclude that if a victim is "upset", the element of mental anguish is not satisfied so as to justify a conviction of second-degree criminal sexual conduct. We must presume that the victim of any degree of criminal sexual conduct will be "upset" by the experience. Thus, the same act which may give rise to a felony charge of second-degree criminal sexual conduct could just as well constitute the misdemeanor offense of fourth-degree criminal sexual conduct.

It is a familiar rule of statutory construction that criminal statutes must be strictly construed. This principle requires that doubtful conduct be found not criminal. In large part, the principle is based on the idea of notice of prohibited acts, but it also reflects the idea that it is up to the Legislature to define criminal offenses and punishment. Restraint by the courts in interpreting criminal statutes works to avoid judicial infringement of that legislative function. Finally, strict constructinon serves to guard against the dangers of arbitrary and discriminatory application of otherwise vague legislative pronouncements. People v. Willie Johnson, 75 Mich.App. 221, 224-225, 255 N.W.2d 207 (1977).

Another rule of statutory construction is that courts will construe the language of a statute so as to give it effect rather than to nullify it. People v. Stickle, 156 Mich. 557, 121 N.W. 497 (1909). Statutes must be construed in light of the purpose to be accomplished. Geraldine v. Miller, 322 Mich. 85, 33 N.W.2d 672 (1948).

In view of the degree structure of the Criminal [99 MICHAPP 207] Sexual Conduct statute, with the gradations increasing in seriousness from fourth-degree to first-degree, we would conclude that the mental anguish component of personal injury, when used to elevate an offense from a fourth-degree misdemeanor to a second-degree 15-year felony, must involve "extreme" or "serious" mental anguish. It is possible to reach the same conclusion by application of the doctrine of ejusdem generis or the maxim of noscitur a sociis, where the meaning of a word is ascertained from the words which accompany it.

We further note that, when the criminal sexual conduct statute was first introduced on the floor of the Senate, the definition of personal injury included "extreme mental anguish or trauma". ⁵ The Legislature thus had an opportunity...