People v. McCurtis, Docket No. 31355
| Decision Date | 05 July 1978 |
| Docket Number | Docket No. 31355 |
| Citation | 269 N.W.2d 641,84 Mich.App. 460 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myron McCURTIS, Defendant-Appellant. 84 Mich.App. 460, 269 N.W.2d 641 |
| Court | Court of Appeal of Michigan — District of US |
[84 MICHAPP 461] Gerald Brock, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P. J., and BRONSON and WALSH, JJ.
A jury found defendant not guilty of robbery armed, M.C.L.A. § 750.529; M.S.A. § 28.797, but guilty of criminal sexual conduct in the first degree, M.C.L.A. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). He appeals, arguing the verdicts are inconsistent. We agree.
The amended information in this case charged [84 MICHAPP 462] that defendant "did engage in sexual penetration, to wit: sexual intercourse, with the COMPLAINANT and the sexual penetration occurred under circumstances involving the commission of another felony, to wit: Robbery Armed". The jury was instructed that an element of criminal sexual conduct in the first degree was the commission of a felony; specifically, armed robbery.
From the facts adduced at trial it is readily apparent how the jury arrived at its inconsistent verdicts. The complaining witness testified that she was grabbed by defendant from an apartment vestibule, forced into a nearby alley at knife-point, raped and robbed. However, on cross-examination she was asked:
"Let me, that means you really don't know whether he took the money or not, it could have been lost, or anything could have happened to it, right?"
An objection was interposed, but the trial court allowed the question:
The jury concluded that there was a reasonable doubt as to whether defendant committed robbery armed, but concluded he committed Some felony. However, defendant was not charged with sexual penetration under circumstances involving the commission of just any felony, but specifically with robbery armed. The jury having found one element of the crime not to have been proven beyond reasonable doubt, there was not sufficient evidence to find guilt beyond reasonable doubt of the greater offense.
In accordance with Burks v. United States, --- U.S. [84 MICHAPP 463] ----, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), when an appellate court reverses a case for insufficient evidence, it would be double jeopardy to remand the case for a new trial. Therefore, the case must be reversed and the defendant discharged.
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