People v. Green

• Decision Date: 02 October 1978
• Docket Number: Docket No. 30813
• Citation: 86 Mich.App. 142,272 N.W.2d 216
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lewis GREEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 216

272 N.W.2d 216

86 Mich.App. 142

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Richard Lewis GREEN, Defendant-Appellant.

Docket No. 30813.

Court of Appeals of Michigan.

Oct. 2, 1978.

Released for Publication Dec. 18, 1978.

Marc L. Goldman, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William F. Delhey, Pros.Atty., for plaintiff-appellee.

Before ALLEN, P. J., and CYNAR and FREEMAN, ^* JJ.

ALLEN, Presiding Judge.

Defendant was charged with and convicted of criminal sexual conduct in the first degree sexual penetration of another while aided or abetted by one or more other persons and by the use of force or coercion to accomplish the sexual penetration, M.C.L. § 750.520b(1)(d)(ii);M.S.A. § 28.788(2)(1)(d)(ii), and armed robbery, M.C.L. § 750.529;M.S.A. § 28.797.Defendant was jointly tried before a jury with his accomplice and codefendant, John Denny, who was also found guilty and whose appeal is pending in this Court.¹ Sentenced to 50-75 years in prison on the criminal sexual conduct conviction and life imprisonment on the armed robbery conviction on July 8, 1976, defendant appeals of right.

The complaining witness and victim was picked up by defendant and his accomplice while she was hitchhiking.She was taken to a building where she was forced to participate in acts of sexual intercourse and fellatio with both defendants.In the course of her abduction and the assault upon her, the victim was struck and injured.Prior to releasing the victim the defendants took, at knifepoint, what money she had.The victim also believed that at least one of her assailants was armed.At trial defendant did not deny sexual activity with the complaining witness, but claimed that she consented.

On appeal, defendant claims the trial court erred reversibly by admitting into evidence two prior similar convictions.Defendant also claims reversible error in the trial court's failure to give requested jury instructions on nine necessarily included lesser offenses as mandated by the decision in People v. Jones, 395 Mich. 379, 236 N.W.2d 461(1975).

I.IMPEACHMENT BY PRIOR SIMILAR CONVICTIONS

Prior to trial, defense counsel moved that the court issue a protective order prohibiting cross-examination of defendant regarding prior convictions for first-degree criminal sexual conduct.The motion was denied for the same reason the court denied an identical motion made on behalf of codefendant Denny.²Defendant took the stand and on cross-examination by the assistant prosecutor was asked whether just three months prior to trial he had pled guilty to two counts of criminal sexual conduct in the first degree.Defendant answered yes.In instructing the jury the trial court instructed that defendant's admission of his prior convictions was to be considered only as it affected his credibility and not as evidence of guilt of the offense charged.

The trial court properly recognized it had discretion to admit or exclude the prior convictions under the standards set forth in People v. Jackson, 391 Mich. 323, 217 N.W.2d 22(1974).The problem is that the trial court then applied the standards upside down.In other words, the court made the same error it made in People v. Cash, 80 Mich.App. 623, 264 N.W.2d 78(1978).Impeachment by evidence of convictions for similar crimes should be admitted with caution.Id. at 627, 264 N.W.2d 78.The more similar the prior conviction to the offense charges, the greater is the amount of caution required.People v. Crawford, 83 Mich.App. 35, 268 N.W.2d 275(1978).Unlike Cash, the error cannot be considered harmless in the present case.There, the defendant denied being convicted of the similar crime and consequently the jury did not know, as was admitted here, that the defendant had committed the act before.

Accordingly, we reverse defendant's convictions and remand for a new trial.Upon retrial the court should weigh the prejudicial effect versus the probative value of the prior conviction as set forth in Jackson, supra, and as further explained in Cash and Crawford, supra.See also, MRE 609.³Since upon retrial defendant may again request lesser included offense instructions, we proceed to discuss this exceedingly complex issue.

II.ATTEMPT INSTRUCTIONS

The trial court instructed the jury on first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(d)(ii);M.S.A. § 28.788(2)(1)(d)(ii), third-degree sexual conduct (penetration accomplished by force or coercion), M.C.L. § 750.520d(1)(b);M.S.A. § 28.788(4)(1)(b), armed robbery, M.C.L. § 750.529;M.S.A. § 28.797, unarmed robbery, M.C.L. § 750.530;M.S.A. § 28.798, and larceny from a person, M.C.L. § 750.357;M.S.A. § 28.589.Defendant's counsel requested additional instructions on criminal sexual conduct in degrees II and IV, attempt instructions on all four degrees of criminal sexual conduct, and attempt instructions for each of the three theft offenses.⁴The trial court refused to give the instructions on criminal sexual conduct II and IV because sexual penetration as opposed to sexual contact was admitted by the defendant and therefore, according to the court, there was no factual basis to give the instructions.The court also ruled that there was no factual basis upon which to give any of the requested attempt instructions.

Two classes of lesser included offenses are recognized in Michigan necessarily included lesser offenses and cognate lesser offenses.People v. Jones, supra.The Supreme Court in Jones described a necessarily included lesser offense as one which must be committed whenever the greater offense is committed.Under Jones, the evidence will always support conviction of a necessarily included lesser offense if it supports conviction of the greater offense, and refusal to give a requested instruction on such an offense is error.In Jones, a cognate lesser offense was described as sharing several elements with and as being of the same class or category as the greater offense, but it may contain some elements not found in the greater offense.In order to be a lesser included cognate offense, the charged offense must provide fair notice to the defendant that he will have to defend against the lesser offense.A cognate offense has a common statutory purpose and protects the same societal interests as the greater offense.If evidence is presented at trial which would support conviction of the cognate offense, then an instruction on that offense must be given if requested.

In the case at barthe trial court instructed on unarmed robbery and larceny from a person which are necessarily included lesser offenses, and such a requested instruction must be given.People v. Lovett, 396 Mich. 101, 238 N.W.2d 44(1976).Since an attempt to commit an offense is simply a failure in the perpetration of the offense, M.C.L. § 750.92;M.S.A. § 28.287, it is readily apparent why an attempt is also necessarily included in the greater offense.All of the elements of the attempt are the same as those of the greater offense except some act which is not completed.Under the Jones reasoning, the fact that all of the evidence produced at trial indicated a completed armed robbery is an insufficient reason for not instructing on necessarily included lesser offenses, since the jury is the sole judge of all of the facts and can choose, without any apparent logical basis, what to believe and what to disbelieve.People v. Chamblis, 395 Mich. 408, 420, 236 N.W.2d 473(1975).

The same logic supporting the decision in Lovett should apply to a requested attempt instruction to unarmed robbery and larceny from a person.Hence, we conclude that the attempts to unarmed robbery and larceny from a person are necessarily included lesser offenses to their greater, completed offenses.Since the offenses of unarmed robbery and larceny from a person are necessarily included lesser offenses of armed robbery, the lesser attempt offenses of these two theft offenses are also necessarily included lesser offenses of armed robbery.It was consequently error to refuse to give the requested instruction to attempted unarmed robbery, attempted larceny from a person, and attempted armed robbery.

III.CRIMINAL SEXUAL CONDUCT INSTRUCTIONS

We further find that the lower court erred in refusing to instruct on the necessarily included lesser offenses of second-degree criminal sexual conduct (CSC) and attempted first- and second-degree CSC.Defendant was charged under subsection (d) of criminal sexual conduct in the first degree, that is, an actor and aider or abettor used force or coercion to accomplish sexual penetration.M.C.L. § 750.520b(1)(d)(ii);M.S.A. § 28.788(2)(1)(d)(ii).This subsection, along with all of the other types of first-degree criminal sexual conduct, is carried through to second-degree criminal sexual conduct.The only difference between the two degrees is that sexual penetration must be accomplished for first-degree CSC, whereas only sexual contact need be engaged in for second-degree CSC.Since all of the elements of CSC II are the same as those of CSC I except for penetration, and there cannot be penetration without contact, second-degree CSC is a necessarily included lesser offense of CSC I. People v. Secreto, 81 Mich.App. 1, 264 N.W.2d 99(1978);People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268(1977).

There is no category of third- or fourth-degree criminal sexual conduct which corresponds to subsection (d) of first- and second-degree criminal sexual conduct.This is also true for several of the other types of first- and second-degree sexual conduct.For these types of CSC I and II, including subsection (d), neither CSC III nor CSC IV are lesser included offenses, necessarily included or otherwise.People v. Secreto, supra.Consequently, there was no error in refusing to instruct on CSC IV and attempted CSC III or IV since these offenses are not lesser included offenses of CSC I...