People v. Hutner

• Decision Date: 07 March 1995
• Docket Number: Docket No. 163662
• Citation: 530 N.W.2d 174,209 Mich. App. 280
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Derrick HUTNER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 174

530 N.W.2d 174

209 Mich.App. 280

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.James Derrick HUTNER, Defendant-Appellant.

Docket No. 163662.

Court of Appeals of Michigan.

Submitted Dec. 14, 1994, at Detroit.

Decided March 7, 1995, at 9:25 a.m.

Released for Publication April 17, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros.Atty., for the People.

Joseph P. Zanglin, Detroit, for defendant on appeal.

Before CORRIGAN, P.J., and MARK J. CAVANAGH and L.C. ROOT, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his bench conviction of first-degree felony murder, M.C.L. § 750.316;M.S.A. § 28.548, for which he was sentenced to life in prison without parole.We vacate the conviction of first-degree murder and remand for entry of a conviction of second-degree murder and sentencing for that offense.

Defendant's conviction arose out of the murder of a woman and the subsequent sexual penetration of her corpse in Detroit.According to the statement defendant gave to the police, the incident occurred as follows: in the early morning hours of August 9, 1992, defendant, who had no money, approached the victim, a prostitute, and asked her the price for oral sex.She told him it was twenty dollars.Defendant and the victim searched for and found a concealed location to perform the act.The victim patted defendant down for weapons.Defendant then grabbed the victim and choked her.She fell to the ground, whereupon he hit her in the head several times with a large lump of concrete.Defendant felt for a pulse, and, finding none, realized that the victim was dead.He dragged her body to a more secluded area and had sexual intercourse with the corpse.

Defendant went home, changed his clothes, and notified the police that he had found a body.Although not at first a suspect, he later confessed to the crime.

Defendant was charged with first-degree premeditated murder and, in the alternative first-degree felony murder, with the underlying felony being third-degree criminal sexual conduct, M.C.L. § 750.520d;M.S.A. § 28.788(4).The court found him guilty of felony murder and dismissed the alternative charge of premeditated murder.This appeal followed.

Defendant's first issue on appeal is whether the evidence was sufficient to convict him of felony murder where the basis for the underlying felony was the sexual penetration of a dead body.

When reviewing a claim of insufficient evidence following a bench trial, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11(1985).Circumstantial evidence, and reasonable inferences arising from the evidence, may constitute satisfactory proof of the elements of the offense.People v. Drayton, 168 Mich.App. 174, 176, 423 N.W.2d 606(1988).

Felony murder is (1) the killing of a human being; (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result; (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in M.C.L. § 750.316;M.S.A. § 28.548, of which third-degree criminal sexual conduct is one.People v. Thew, 201 Mich.App. 78, 85, 506 N.W.2d 547(1993).

The third-degree criminal sexual conduct statute prohibits engaging in sexual penetration with another person under certain circumstances, including where the penetration is accomplished by force or coercion or where the actor knows the victim is physically helpless.M.C.L. § 750.520d;M.S.A. § 28.788(4).A victim is defined as "the person alleging to have been subjected to criminal sexual conduct."M.C.L. § 750.520a(m);M.S.A. § 28.788(1)(m).

The question whether that statute proscribes engaging in sexual penetration with a dead body is one of first impression in this state.Courts of other states, when faced with the question whether a defendant may be convicted of rape where the victim was dead at the time of penetration, have reached contrary results.See anno: Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 ALR4th 1147, and cases cited there.However, the courts have been fairly unanimous in holding that the applicable statutory language must be carefully examined in order to determine this issue.See, e.g., State v. Brobeck, 751 S.W.2d 828, 831-832, 76 A.L.R.4th 1137(Tenn.1988);Lipham v. State, 257 Ga. 808, 809, 364 S.E.2d 840(1988);Commonwealth v. Sudler, 496 Pa. 295, 302-303, 436 A.2d 1376(1981);People v. Stanworth, 11 Cal.3d 588, 605, 114 Cal.Rptr. 250, 522 P.2d 1058(1974);People v. Sellers, 203 Cal.App.3d 1042, 1050, 250 Cal.Rptr. 345(1988).

We conclude that the crime of criminal sexual conduct requires a live victim at the time of penetration.Our statute, like the statutes at issue in Sudler, supra, andSellers, supra, defines third- degree criminal sexual conduct as engaging in nonconsensual sexual penetration with another "person."Furthermore, a "victim" is a "person alleging to have been subjected to criminal sexual conduct."A dead body is not a person.It cannot allege anything.A dead body has no will to overcome.It does not have the same potential to suffer physically or mentally as a live or even an unconscious or dying victim.SeeStanworth, supra;Sellers, supra.

We do not intend to minimize the heinousness of the crime of murdering a person in order to sexually assault that person's dead body.¹Under appropriate circumstances, such an activity might well support a conviction of first-degree premeditated murder; however, it generally cannot sustain a conviction of first-degree felony murder under this state's felony-murder statute.

We recognize that, in general, where the predicate crime underlying a charge of felony murder is part of a continuous transaction or is otherwise immediately connected with the killing, it is immaterial whether the underlying felony occurs before or after the killing.Thew, supra, 201 Mich.App. at 85-88, 506 N.W.2d 547.However, the situation is clearly different where the perpetration of the underlying felony requires a live victim.

Turning to the instant case, it is undisputed that the victim died before penetration, and that defendant knew she was dead.Therefore, the essential elements of the completed crime of third-degree criminal sexual conduct were not established.

A felony-murder conviction may also be sustained where the victim dies during the attempt to perpetrate the underlying crime.M.C.L. § 750.316;M.S.A. § 28.548.The prosecutor in the instant case urges us to uphold the verdict on the grounds that the victim died while defendant was...