People v. Nyx

Decision Date18 July 2007
Docket NumberDocket No. 127897 (Calendar No. 4).
Citation734 N.W.2d 548,479 Mich. 112
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Maurice Lamont NYX, Defendant-Appellee.
CourtMichigan Supreme Court

TAYLOR, C.J.

The issue in this case is whether a defendant charged with a crime that the Legislature has divided into degrees, such as first-degree criminal sexual conduct (CSC I), may, pursuant to MCL 768.32(1), properly be convicted of a lesser degree of the charged offense, such as second-degree criminal sexual conduct (CSC II), where the crime of a lesser degree contains an element not within the charged offense of a greater degree. The Court of Appeals held that People v. Cornell1 forbids this result.

We agree and hold that a defendant charged with an offense consisting of various degrees may not, consistent with MCL 768.32(1), be convicted of a lesser degree of the charged offense where the lesser degree contains an element not found within the higher degree. The judgment of the Court of Appeals is affirmed.

I. FACTS AND PROCEEDINGS BELOW

Defendant was employed as the dean of a school in Detroit. A student accused defendant of having penetrated her vagina. As a result, defendant was charged with one count of CSC I by an actor who is in a position of authority over the victim and uses this authority to get the victim to submit to penetration of the vagina with a penis and the victim is at least 13 but less than 16 years of age. MCL 750.520b(1)(b)(iii). Defendant was also charged with two counts of CSC I by an actor who is in a position of authority over the victim and uses this authority to get the victim to submit to penetration of the vagina with a finger and the victim is at least 13 but less than 16 years of age. MCL 750.520b(1)(b)(iii).

The trial court presided over a bench trial. The complainant testified about the sexual penetration. A police officer testified that when questioned, defendant had admitted engaging in sexual contact but had denied that any penetration had occurred. The court acquitted defendant of the CSC I charges, stating that it "could not quite believe" the complainant's assertion that the penetration had occurred and that "sometimes kids exaggerate."2 The court then convicted defendant of two counts of CSC II (sexual contact for the purpose of sexual gratification with a complainant between 13 and 15 years of age). MCL 750.520c(1)(b)(iii).

Defendant appealed in the Court of Appeals, arguing that the trial court was without authority to consider the cognate lesser offense of CSC II. The prosecutor argued that MCL 768.32(1) authorized the trial court to convict defendant of CSC II, after having acquitted him of CSC I, because CSC is a crime divided into degrees. The Court of Appeals agreed with defendant, determining that the prohibition in Cornell, supra, against considering cognate lesser offenses had been violated.3 The CSC II convictions were vacated, and the case was remanded for the entry of an order of discharge.

We granted the prosecutor's application for leave to appeal.4

II. STANDARD OF REVIEW

Whether MCL 768.32(1) permits a defendant to be convicted of an offense of a lesser degree that contains an element not found within the charged offense of a higher degree is a question of statutory interpretation that we review de novo.5 When interpreting statutes, our goal is to give effect to the intent of the Legislature by applying the plain language of the statute.6

III. ANALYSIS

MCL 768.32(1) provides:

Except as provided in subsection (2),7 upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.

Pursuant to this language, when a defendant is charged with an offense "consisting of different degrees," the fact-finder may acquit the defendant of the charged offense and find the defendant "guilty of a degree of that offense inferior to that charged in the indictment . . . ."

There is no dispute that criminal sexual conduct is a crime the Legislature has divided into degrees. There is first-degree criminal sexual conduct,8 second-degree criminal sexual conduct,9 third-degree criminal sexual conduct (CSC III),10 and fourth-degree criminal sexual conduct (CSC IV).11 The elements of CSC II are not all subsumed within CSC I. While the prosecutor need not show the that perpetrator of a sexual penetration had any particular criminal intent in order to obtain a conviction of CSC I, MCL 750.520a(p), CSC II requires proof of one of several intents that are not always present when CSC I is committed.12 Thus CSC II is not a necessarily included lesser offense of CSC I.13 Rather, it is a cognate lesser offense.14

The only question in the case at bar is whether CSC II, even though it is not a necessarily included lesser offense of CSC I, is still "inferior" to CSC I.

As early as 1861, this Court pointed out in People v. McDonald15 that "It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it."16 Then, in 1869, in Hanna v. People17 this Court considered the similarly worded predecessor of MCL 768.32(1) and held that the statute should "be construed as extending to all cases in which the statute has substantially, or in effect, recognized and provided for the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade includes a charge for the less." Hanna, supra at 321 (emphasis added).

In 2002, in Cornell, we overruled earlier cases that had allowed instructions on cognate lesser offenses and returned to the construction of the statute that had been given in Hanna and in Justice Coleman's dissent in People v. Jones.18 In summarizing Justice Coleman's dissent in Jones, we noted that Justice Coleman construed MCL 768.32 to only permit consideration of "necessarily included lesser offenses." Cornell, supra at 347, 646 N.W.2d 127. The Cornell Court, id. at 354, 646 N.W.2d 127, also cited with approval the following language from People v. Torres (On Remand):19

We believe that the word "inferior" in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. The controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense. [Emphasis added.]

Thus, Cornell construed MCL 768.32(1) as limiting convictions of lesser offenses to those that are "necessarily included" lesser offenses. Cornell, supra at 356 n. 9, 359, 646 N.W.2d 127.

We have made similar statements in subsequent cases. In People v. Mendoza,20 we stated:

We are confident that we applied the appropriate canon of statutory construction in construing MCL 768.32 by giving "inferior offense" its common-law meaning when it was codified by the Legislature.

The Mendoza Court also stated:

[W]e held [in Cornell] that an inferior-offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense, meaning, 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, 664 N.W.2d 685 (emphasis added).]

The Mendoza Court went on to conclude:

[T]he elements of voluntary and involuntary manslaughter are included in the elements of murder. Thus, both forms of manslaughter are necessarily included lesser offenses of murder. Because voluntary and involuntary manslaughter are necessarily included lesser offenses, they are also "inferior" offenses within the scope of MCL 768.32. [Id. at 541, 664 N.W.2d 685 (emphasis added).]

Similarly, in People v. Nickens,21 we unanimously reiterated the Cornell/Mendoza construction of MCL 768.32(1), stating:

In Cornell, supra at 357, 646 N.W.2d 127, this Court held that, under MCL 768.32, 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, 664 N.W.2d 685.

Consistently with McDonald, Hanna, Torres, Cornell, Mendoza, and Nickens, we hold that MCL 768.32(1) precludes a judge or a jury from convicting a defendant of a cognate lesser offense even if the crime is divided into degrees. We do this because the word "inferior" in MCL 768.32(1) is best understood as meaning an offense that is necessarily included in the greater charge.

To reiterate, MCL 768.32(1) requires the lesser offense to be inferior to the charged offense, and an offense is only inferior when all the elements of the lesser offense are included within the greater offense. Thus, even if the crime is divided by the Legislature into degrees, the offense of a lesser degree cannot be considered under MCL 768.32(1) unless it is inferior, i.e., is within a subset of the elements of the charged greater offense. Given that all the elements of CSC II are not included within CSC I, the trial court was without authority to convict defendant of CSC II after it acquitted him of CSC I. Thus, the Court of Appeals properly vacated defendant's convictions and remanded the case for...

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