People v. Johnson, Docket No. 27857

• Decision Date: 19 April 1977
• Docket Number: Docket No. 27857
• Citation: 255 N.W.2d 207,75 Mich.App. 221
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie JOHNSON, Jr., Defendant-Appellant. 75 Mich.App. 221, 255 N.W.2d 207
• Court: Court of Appeal of Michigan — District of US

Page 207

255 N.W.2d 207

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie JOHNSON, Jr., Defendant-Appellant.

Docket No. 27857.

75 Mich.App. 221, 255 N.W.2d 207

Court of Appeals of Michigan.

April 19, 1977.

Rehearing Denied May 23, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 222] Townsend, Haley & Overton by Leonard Townsend, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and ALLEN and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant was charged in an information alleging four counts of criminal sexual conduct in the first degree and one count of armed robbery. M.C.L.A. § 750.520b; M.S.A. § 28.788(2), M.C.L.A. § 750.529; M.S.A. § 28.797. A jury found him guilty as [75 MICHAPP 223] charged of two counts of criminal sexual conduct and were unable to reach a verdict on the remaining three counts. Defendant was sentenced to prison and now appeals by right.

Michigan's new act defining criminal sexual conduct, 1974 P.A. 266, provides in relevant part as follows:

"Sec. 520b. (1) 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 * * *."

The statute goes on to list in seven sections, some with subsections, various circumstances, any of which would render "sexual penetration with another person" to be criminal sexual conduct in the first degree.

The penalty for such conduct is provided as follows:

"(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years."

In this case, count 1 of the information charged that defendant engaged in sexual penetration with another "under circumstances involving the commission of any other felony". M.C.L.A. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). Count 2 charged that defendant engaged in sexual penetration with another while "aided or abetted by one (1) or more other persons" and "use(d) force or coercion to accomplish the sexual penetration". M.C.L.A. § 750.520b(1)(d) (ii); M.S.A. § 28.788(2)(1)(d)(ii). Count 3 charged that defendant engaged in sexual penetration with another while "armed with a weapon or any article used or fashioned in a manner to lead the victim to [75 MICHAPP 224] reasonably believe it to be a weapon". M.C.L.A. § 750.520b(1)(e); M.S.A. § 28.788(2)(1)(e). Count 4 charged that defendant engaged in sexual penetration with another and that defendant "(did) use force or coercion to accomplish the sexual penetration" and "did cause personal injury to the complainant". M.C.L.A. § 750.520b(1) (f); M.S.A. § 28.788(2)(1)(f).

There is no need to recite the evidence at length. It was clearly sufficient to support a conviction on any single count contained in the information.

The evidence also clearly showed, however, that defendant had engaged in but one sexual penetration of one victim. ¹

As noted, the jury found defendant guilty of counts 2 and 4, and were unable to reach a verdict on the remaining counts.

On appeal, defendant claims violations of constitutional and statutory protections against double jeopardy. ² We find it unnecessary to discuss the constitutional issue. We are convinced that the Legislature intended that but one conviction under the criminal sexual conduct act could result from a single act of intercourse.

It is a familiar rule of statutory construction that criminal statutes must be strictly construed. See, e. g., People v. Ellis, 204 Mich. 157, 169 N.W. 930 (1918), Jads, Inc. v. Detroit, 41 Mich.App. 693, 200 N.W.2d 715 (1972); 1 Gillespie, Michigan Criminal [75 MICHAPP 225] Law and Procedure (2d ed.), § 8, pp. 13-18, and cases cited therein. The rule is most often employed in determining what actions come within the scope of a statutory prohibition. The principle requires that doubtful conduct be found not criminal. In large part, the principle in those cases is based on the idea of notice, ³ but this rule of strict construction of penal or criminal statutes also reflects the idea that it is the job of 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. Reflecting this policy is the following statement from an early Supreme Court case:

"No principle is more universally settled than that which deprives all courts of power to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents. Nothing can be a crime until it has been recognized as such by the law of the land." Ware v. Branch Circuit Judge, 75 Mich. 488, 491, 42 N.W. 997, 998 (1889).

Strict construction also serves to guard against the dangers of arbitrary and discriminatory application of otherwise vague legislative pronouncements. People v. Howell, 396 Mich. 16, 20, fn. 4, 238 N.W.2d 148 (1976).

It was on these and similar considerations that the "rule of lenity", as defined and applied in People v. Bennett, 71 Mich.App. 246, 247 N.W.2d 368 (1976), was formulated to resolve ambiguities in a single statutory scheme in favor of permitting only [75 MICHAPP 226] one rather than two criminal convictions absent clear legislative guidance to the contrary. ⁴

Further aiding our construction of the statute is the fact that it is but one section of a comprehensive statutory scheme defining criminal sexual conduct and providing punishment for violations. The gravamen of the offenses charged in counts 1-4 of the information in this case, all arising under a single section of this comprehensive statute, is clearly the unconsented-to sexual penetration of the complainant. While at least some of the circumstances listed in subsections (a)-(g) of M.C.L.A. § 750.520b(1); M.S.A. § 28.788(2), may amount to criminal behavior in their own right, in the context of the statutory scheme enacted by 1974 P.A. 266 they are merely elements which can serve to increase the penalty imposed for the criminal sexual conduct forbidden by the act.

We do not perceive any legislative intent, however, that proof of one or more of these aggravating circumstances could transform one criminal sexual act into many. Although the statute is not explicitly phrased in the alternative, we are of the opinion that the Legislature intended that the various aggravating circumstances be alternative ways of proving criminal sexual conduct in the first degree. Canons of strict construction and the...