People v. Payne

• Decision Date: 19 June 1979
• Docket Number: Docket No. 77-4108
• Citation: 90 Mich.App. 713,282 N.W.2d 456
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry W. PAYNE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 456

282 N.W.2d 456

90 Mich.App. 713

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry W. PAYNE, Defendant-Appellant.

Docket No. 77-4108.

Court of Appeals of Michigan.

June 19, 1979.

Released for Publication Aug. 22, 1979.

James R. Neuhard, State Appellate Defender, by Janet Tooley, Deputy Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and ALLEN and GLASER, ^* JJ.

ALLEN, Judge.

Defendant appeals his April 26, 1977, jury conviction on five counts of first-degree criminal sexual conduct (CSC), M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), and one count of assault with intent to commit criminal sexual conduct, M.C.L. § 750.520g; M.S.A. § 28.788(7). Defendant was charged with seven counts of CSC I. Counts 1, 2 and 3 charged vaginal intercourse, counts 4 and 5 charged fellatio, count 6 charged anal intercourse, and count 7 charged cunnilingus. Count 3 was dropped, and the jury returned a verdict of the lesser assault offense in count 6. Defendant was sentenced to life imprisonment on each of the five CSC I convictions and was sentenced to 6 to 10 years in prison for the assault conviction. Defendant's appeal is of right.

The acts of sexual conduct occurred during the morning hours of September 18, 1976. The complainant testified that she had been extremely intoxicated when she went to bed. She was awakened by someone in bed with her whom she identified as defendant and whom she had never met before. The complainant attempted to escape but was dragged back to the bedroom and beaten severely about the face. She then submitted to her assailant. The complainant submitted to subsequent sexual acts out of fear of further injury. There was no further beating or injury, however, defendant did maintain a hold on complainant's arm between acts, even when she used the bathroom. The complainant did make at least one unsuccessful attempt to escape during the attack upon her.

Due to the way the case was presented to the jury the major issues at trial were (1) whether the acts were done with the consent of the complainant, and (2) the credibility of the defendant and the complainant. The defendant testified that he was intoxicated in the early morning hours of September 18, 1976, and was walking by the house where complainant was staying when complainant's brother invited him in for a beer and then offered defendant his sister as well. ¹ According to defendant, complainant consented to several sexual acts. He and complainant then had an altercation, thus explaining the beating of complainant. They soon resolved their differences and had additional sexual relations.

I.

One of the elements of the type of first-degree criminal sexual conduct defendant was charged with and convicted of is personal injury to the victim. ² In this case we are presented with injuries that occurred prior to and as the means of coercion for the first act of criminal sexual conduct. The injuries readily support the jury's verdict of CSC I for the first count, but confront us with the question, apparently of first impression, of whether these same injuries can be transferred to the subsequent sexual acts in order to meet the element of personal injury in CSC I. We think not.

What the prosecution showed by the evidence it submitted to the jury was one act of CSC I and five acts of CSC III (except for one instance where the jury found a lesser offense). Third-degree sexual conduct, ³ in this case, is simply the sexual assault through force or coercion but without the injury. And this is what took place in all but the first attack. The initial beating affects the latter assaults in that it is part of the force or coercion through which defendant accomplished his assault. The use of the beating in this manner in these subsequent assaults is acceptable since there were additional instances of fear associated with each additional assault. But there were no additional injuries associated with the latter assaults. Holding on to the complainant's arm between acts did not create an injury sufficient to raise the assault from CSC III to CSC I.

The Legislature included the highest possible punishment in this state in the penalty provision for first-degree criminal sexual conduct. Before this penalty may be imposed the prosecutor must show all of the elements of the crime. To the extent certain elements are lacking, the offender does not go unpunished; rather, he is punished according to the lesser crime committed. In the instant case, defendant was convicted five times of CSC I and was sentenced five times to the maximum penalty of life in prison. Yet all of the elements of CSC I were shown only once. Only the first count can carry a conviction of CSC I; the other counts, having no evidence to support the injury element ⁴ but having evidence to support all elements of CSC III and having a jury verdict which found all of those elements, must be reduced to convictions of third-degree sexual conduct. The accompanying punishments are to be commensurate with the actions of defendant and the penalties intended by the Legislature.

II.

The second issue of first impression in this case concerns lesser included offenses. The jury was instructed on CSC I, II, III, IV, assault with intent to commit sexual conduct, ⁵ and gross indecency. ⁶ Defendant had requested further instructions on assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, aggravated assault, M.C.L. § 750.81a; M.S.A. § 28.276(1), and indecent exposure, M.C.L. § 750.335a; M.S.A. § 28.567(1), but the court declined to instruct on these crimes. It was unnecessary to instruct on aggravated assault or indecent exposure since those crimes carry a penalty of one year or less and do not approach the seriousness of the charged offense. People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473 (1975). The Chamblis rule as to these lesser crimes continues in good standing. People v. Miller, 406 Mich. 244, 277 N.W.2d 630 (1979).

Although the assault with intent to injure offense does not fall within the Chamblis rule, there was no error in refusing to instruct on it either. This is so because assault with intent to do great bodily harm less than murder is not a lesser included offense of first-degree criminal sexual conduct. It is clearly not a necessarily lesser included offense since CSC I can be committed without committing the offense of assault with intent to injure less than murder. People v. Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975).

To be a cognate lesser offense the two crimes must share several elements and be of the same class or category. People v. Jones, supra, at 387, 236 N.W.2d 461. If the primary offense gives fair notice that a defendant may have to defend against a certain lesser offense, then that lesser offense may be an included lesser offense. People v. Jones, supra, at 388, 236 N.W.2d 461; People v. Chamblis, supra, 395 Mich. at 418, 236 N.W.2d 473; People v. Green, 86 Mich.App. 142, 148-149, 272 N.W.2d 216 (1978). A lesser included offense will have a common statutory purpose protecting the same societal interests as the greater offense. People v. Jones, supra, 395 Mich. at 389, 236 N.W.2d 461; People v. Green, supra, 86 Mich.App. at 149, 272 N.W.2d 216. When dealing with a cognate lesser offense the evidence adduced at trial must support a conviction on that offense. People v. Jones, supra, 395 Mich. at 390, 236 N.W.2d 461; People v. Chamblis, supra, 395 Mich. at 423-424, 236 N.W.2d 473.

Except for having certain elements in common with criminal sexual conduct, assault with intent to do great bodily harm less than murder meets none of the requirements for a lesser included offense. Criminal sexual conduct is a distinct type of assaultive offense. The Legislature has gone to great lengths to carve out sexual assaults from other types of assaults. Society views sexual assaults as particularly heinous and the Legislature has determined punishments for the various types of criminal sexual conduct. There is a specific "assault" crime associated with criminal sexual conduct. With this statutory backdrop, we find that assault with intent to do great bodily harm less than murder is a different type of offense than and protects a different societal interest than criminal sexual conduct, and hence it is not a lesser offense of criminal sexual conduct.

It is highly doubtful that when defendant was charged with sexual offenses he was fairly placed on notice to defend against general assault charges. The evidence adduced at trial indicated much more of an intent on the part of defendant to commit sexual acts than to do great bodily harm less than murder. The lesser assault charge in this case was the criminal sexual assault charge, and this was given. The evidence was not presented to the jury on the basis of assault with intent to do great bodily harm less than murder. Defendant contends that his theory of the case suggests nonsexual assault. But defendant is now, in effect, asking for an instruction on a crime he was never charged with (I. e., assault) and therefore, under this analysis, there is no greater offense from which there can be lesser offenses and hence there is no right to have an instruction on such a "lesser" offense. ⁷

III.

Defendant's remaining issues merit considerably less discussion.

There is no merit in defendant's contention that the court must instruct on all elements of criminal sexual conduct for each individual count of criminal sexual conduct. A jury charge is read as a whole, People v. Khan,80 Mich.App. 605, 264 N.W.2d 360 (1978), and in the absence of objection will not require reversal unless there is manifest injustice. GCR 1963, 516.2; People v. Douglas, 75 Mich.App. 241, 254 N.W.2d 856 (1977). There is no question ...