People v. Nelson

• Decision Date: 25 October 1977
• Docket Number: Docket No. 30773
• Citation: 261 N.W.2d 299,79 Mich.App. 303
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Thomas NELSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 299

261 N.W.2d 299

79 Mich.App. 303

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Thomas NELSON, Defendant-Appellant.

Docket No. 30773.

Court of Appeals of Michigan.

Oct. 25, 1977.

Released for Publication Jan. 13, 1978.

Carl Ziemba, 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., Robert Weisberg, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

BEASLEY, Judge.

Defendant was charged with four counts of criminal sexual conduct under the new 1974 statute. (M.C.L.A. § 750.520b; M.S.A. § 28.788(2)). Following a jury verdict of guilty on all four counts, defendant was sentenced to not less than twenty nor more than forty years imprisonment on each count with the sentences to run concurrently. Defendant now appeals as of right. For the reasons indicated, we affirm.

Defendant first asserts that he was deprived of a fair trial and due process of law when a single criminal incident resulted in his trial on four separate counts of criminal sexual conduct in the first degree. The victim was a seven-year-old girl on her way to school. The evidence indicates that the defendant, whom she identified in court, put a coat around her face and forced her into a vacant house. The defendant was identified also by neighborhood people who saw him running from the house. The charges, as explained by the trial court, were:

"So count one alleges intercourse with a person under the age of thirteen. Count two alleges intercourse while the defendant was allegedly armed with a weapon. Count three alleges fellatio with a person under the age of thirteen; and count four alleges fellatio with the defendant allegedly then and there armed with a weapon or an article used or fashioned in a manner to lead a person to reasonably believe it to be a weapon."

There is no need to recite the evidence at length since clearly there was sufficient evidence to support a conviction on each of the four counts.

The statute in question provides:

"(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:

(a) That other person is under 13 years of age.

(b) The other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, the actor is related to the victim by blood or affinity to the fourth degree to the victim, or the actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

(c) Sexual penetration occurs under circumstances involving the commission of any other felony.

(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists:

(i) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.

(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in subdivision (f)(i) to (v).

(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.

(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:

(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.

(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.

(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.

(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.

(g) The actor causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless.

(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." ¹

On appeal, defendant says that this statute should not be interpreted to mean that if, in a single episode or event, a defendant accomplishes several penetrations, each unlawful under the statute, he is guilty of a separate felony for each. Thus, defendant would say that the illegal sexual intercourse and the illegal fellatio, occurring on the same occasion, constituted one and only one felony. In addition, although the statute defines both sexual intercourse with a person under thirteen years of age and sexual intercourse while armed with a weapon, or any article used or fashioned in a manner to lead the victim to believe it to be a weapon, as criminal sexual conduct in the first degree, defendant says that, where a defendant commits one act of sexual intercourse with a person under thirteen years of age and while armed in the manner described in the statute, the statute should be interpreted to mean that only one felony has been committed. Last, defendant says that, in any event, the prosecutor should have been compelled to elect on which count he would go to the jury.

Thus, the principal issue here is whether, under the new criminal sexual conduct statute, a single sexual penetration, accompanied by more than one of the statute's enumerated special circumstances, can result in two distinct criminal charges for purposes of trial, conviction and sentencing. As will be set forth more fully below, it is our conclusion that this issue is not answered automatically in the affirmative based upon present case law, that this issue does not lend itself to easy resolution by the application of labels, that this issue is controlled by a determination of legislative intent, that legislative intent is seldom explicitly made known on this subject either in statutory language or in legislative history, that the legislative intent can be deduced from the overall purpose and background of a statute, that such deduction here demonstrates an intent to tighten the legislative provisions regarding criminal sexual conduct, that, consistent with that intent, the statute should be interpreted to protect the separate interests of the victim and society by punishing separately each violation of one of those separate interests, and that this interpretation is constitutional unless double jeopardy receives a judicially expanded interpretation.

To place this issue in proper perspective, we quote the words of former Chief Justice Earl Warren:

"The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant's conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.

"In every instance the problem is to ascertain what the legislature intended. Often the inquiry produces few if any enlightening results. Normally these are not problems that receive explicit legislative consideration. But this fact should not lead the judiciary, charged with the obligation of construing these statutes, to settle such questions by the easy application of stereotyped formulae. It is at the same time too easy and too arbitrary to apply a presumption for or against multiple punishment in all cases or even to do so one way in one class of cases and the other way in another. Placing a case in the category of unit-of-offense problems or the category of overlapping-statute problems may point up the issue, but it does not resolve it." (Emphasis added.) ²

Chief Justice Warren's words come from a dissent; he, himself, had written for the majority in a prior case which held that only one punishment was proper in prosecutions of a single bank robbery under the Federal Bank Robbery Act. ³ However, no matter what his personal view of a particular case may have been, his words make clear that he recognized both the complex nature of the problem and the fact that seemingly logical, but simplistic, solutions were of no assistance even though they might be enticing for determining legislative intent or constitutional limitations for a case at hand.

Chief Justice Warren also emphasizes the reason why resort is so often made to stereotyped formulae. That reason is that legislative intent, although all important, is very difficult to determine especially since the possibility of multiple punishment ⁴ seldom receives explicit legislative consideration. In such situations, stereotyped formulae come readily to hand under the guise of statutes of construction, ⁵ categories of problems, or rules of universal application. As Chief Justice Warren notes, such...