People v. Nickens, No. 123992 (MI 10/15/2004), 123992.

Decision Date15 October 2004
Docket NumberNo. 123992.,123992.
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DENNIS L. NICKENS, Defendant-Appellee.
CourtMichigan Supreme Court

Appeal from Wayne Circuit Court, Craig S. Strong, J.

Court of Appeals, Cavanagh and Cooper, JJ. (Meter, P.J., dissenting). (Docket No. 237794).

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the people. [Detroit, MI]

Cyril C. Pessina for the defendant. [Harper Woods, MI]

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

Defendant was charged with criminal sexual conduct in the first degree (CSC-I) involving personal injury and the use of force or coercion to accomplish sexual penetration, MCL 750.520b(1)(f). Over defendant's objections, the trial court additionally instructed the jury on assault with intent to commit CSC involving sexual penetration, MCL 750.520g(1). The jury acquitted defendant of the CSC-I charge, but found him guilty of assault with intent to commit CSC.

We granted leave to appeal to consider whether assault with intent to commit CSC involving sexual penetration, MCL 750.520g(1), is included within the offense of first-degree CSC involving personal injury and the use of force or coercion to accomplish sexual penetration, MCL 750.520b(1)(f).1 The Court of Appeals held that because MCL 750.520g(1) was not a necessarily lesser included offense of MCL 750.520b(1)(f), the trial court erred by instructing the jury on the assault offense.2 We hold that the trial court did not err in its instruction to the jury because the assault offense is a necessarily lesser included offense of first-degree CSC involving personal injury and the use of force or coercion to accomplish sexual penetration. Therefore, we reverse the decision of the Court of Appeals and reinstate defendant's assault conviction.

I. FACTS AND PROCEEDINGS

We adopt as our own the following facts set forth by the Court of Appeals:

Defendant's conviction arises from allegations that he sexually assaulted his former girlfriend. The complainant and defendant dated intermittently for several years and had two children. At some point, the complainant began dating another man named Frank. According to the complainant, defendant did not accept this new relationship. When the complainant ultimately ended her relationship with Frank in August 2000, she discussed the possibility of reconciling with defendant.

On September 9, 2000, at approximately 4:30 a.m., the complainant claimed that Frank unexpectedly came to her home and stayed for half an hour. According to the complainant, defendant called during this time and "exchanged some words" with Frank over the telephone. Later that day, the complainant stated that defendant visited her house. The complainant testified . . . that defendant straddled her, tore her clothes, and pulled down her pants. Throughout the assault, the complainant asserted that defendant accused her of being intimate with Frank, called her derogatory names, and punched her repeatedly in the head.

The complainant indicated that defendant subsequently dragged her into her bedroom, pushed her over a chair, and punched her in the stomach. Defendant then told her to stand up, pushed her backwards, and said, "[s]uck my [penis], bit—." The complainant claimed that when she attempted to stand up, defendant punched her in the stomach again and caused her to regurgitate. Defendant ultimately pulled her head up, placed his penis on the side of her mouth, and ejaculated "all over" her. As a result of defendant's actions, the complainant stated that she suffered a blood clot in her stomach, bruising on her chest and left eye, and a swollen left cheek. On September 14th, the complainant reported the sexual assault to the police. She later obtained a personal protective order against defendant.

Defendant was charged with CSC-I under MCL 750.520b(1)(f). A jury trial was held and, over defendant's objections, the trial court additionally instructed the jury on assault with intent to commit CSC involving sexual penetration, MCL 750.520g(1).3 The jury acquitted defendant of the CSC-I charge, but found him guilty of assault with intent to commit CSC. On appeal, the Court of Appeals held, inter alia, that under this Court's decision in People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002), the trial court erred by instructing the jury on the lesser offense because MCL 750.520g(1) is not a necessarily lesser included offense of MCL 750.520b(1)(f). We granted the prosecution's application for leave to appeal.

II. STANDARD OF REVIEW

Whether assault with intent to commit CSC involving sexual penetration is included within the offense of CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration is a question of law, which this Court reviews de novo. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 (2003).

III. ANALYSIS
A. Cornell and MCL 768.32

In Cornell, supra at 357, this Court held that, under MCL 768.32,4 a lesser offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense. "Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense." Mendoza, supra at 532 n 3. Thus, an instruction on a lesser offense is proper where "all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction." Id. at 533.5

Further, in Cornell this Court expressly stated that the decision in that case would apply "to those cases pending on appeal in which the issue has been raised and preserved." Cornell, supra at 367. Here, defense counsel objected to the trial court giving the lesser offense instructions. Moreover, neither the prosecution nor defendant asserts that the issue is unpreserved. Because defendant's case was pending on appeal and the alleged error was raised and preserved for review, our decision, by the express directive in Cornell, applies to this case. Thus, the instruction on assault with intent to commit CSC involving sexual penetration was appropriate if such an offense is a necessarily lesser included offense of CSC-I involving personal injury and the use of force or coercion to accomplish sexual penetration.

B. The Elements of Assault with Intent to Commit CSC Involving Sexual Penetration

MCL 750.520g(1) states, "Assault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years." This Court has not had occasion to formally delineate the elements of this particular offense. Relying on its own case law, however, the Court of Appeals concluded that the elements of assault with intent to commit CSC involving sexual penetration are as follows: "(1) an assault; (2) with an improper sexual purpose or intent; (3) an intent to commit an act involving penetration; and (4) an aggravating circumstance." Slip op at 2 n 2. Because we believe that the Court of Appeals misinterprets MCL 750.520g(1), we reject its definition of that offense.

We hold that the elements of assault with intent to commit CSC involving penetration are simply (1) an assault, and (2) an intent to commit CSC involving sexual penetration. Nothing in MCL 750.520g(1) requires the existence of an aggravating circumstance or that the assault is made with an improper sexual purpose or intent. Further, "[w]hen a statute sets forth a crime and its punishment without designating its elements, courts must look to the common law for guidance." People v Langworthy, 416 Mich 630, 643 n 22; 331 NW2d 171 (1982).

An assault "`is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.'" People v Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979), quoting People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978). The first type is referred to as an "attempted-battery assault," whereas the second is referred to as an "apprehension-type assault." People v Reeves, 458 Mich 236, 244; 580 NW2d 433 (1998). As such, an assault can occur in one of two ways.

Moreover, a "battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Id. at 240 n 4. Therefore, a battery is the successful accomplishment of an attempted-battery assault. See Perkins & Boyce, Criminal Law (3d ed, 1982), p 151 ("[W]hen we speak of an assault we usually have in mind a battery which was attempted or threatened. The attempt may have failed or it may have succeeded. If it failed it constitutes an assault only. If it succeeded it is an assault and battery."); see also MCL 750.81. Stated differently, an attempted-battery assault is a necessarily lesser included offense of a completed battery because it is impossible to commit a battery without first committing an attempted-battery assault.

C. The Elements of First-Degree CSC Involving Personal Injury and the Use of Force or Coercion to Accomplish Sexual Penetration

MCL 750.520b provides in pertinent part:

(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:

* * *

(f) The actor causes personal injury to the victim and force or coercion is used to accomplish 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...

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