People v. Robinson
| Decision Date | 05 January 1978 |
| Docket Number | Docket No. 77-198 |
| Citation | 80 Mich.App. 559,264 N.W.2d 58 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oliver Anthony ROBINSON, Defendant-Appellant. 80 Mich.App. 559, 264 N.W.2d 58 |
| Court | Court of Appeal of Michigan — District of US |
[80 MICHAPP 560] Charles A. Haas, 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., Timothy Baughman, Asst. Pros. Atty., for plaintiff-appellee.
Before D. E. HOLBROOK, P. J., and KAUFMAN and McDONALD, * JJ.
On October 14, 1976, defendant was convicted by a Recorder's Court jury of three counts of criminal sexual conduct in the first degree, M.C.L.A. § 750.520b(1); M.S.A. § 28.788(2)(1), and one count of attempted armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, M.C.L.A. § 750.92; M.S.A. § 28.287. On November 5, 1976, defendant was sentenced from 71/2 to 15 years in prison on the criminal sexual conduct counts and 2 to 5 years in prison on the attempted armed robbery count. Defendant appeals as of right.
On December 23, 1975, the complainant, an 18-year old lady, accepted a ride from an acquaintance,[80 MICHAPP 561] Allen Cousins. Mr. Cousins drove the complainant to a store where she intended to buy cigarettes. As complainant left the store, she noticed defendant standing across the street, and, according to her testimony, defendant crossed the street, approached her from the left, put his arm around her neck and placed a knife at her throat.
Mr. Cousins testified that while he was waiting in his truck outside the store he noticed the complainant lying on the street behind the truck. As he left the truck to investigate, the defendant held a knife to Cousins' neck and demanded money. When Cousins stated that he had no money, the defendant forced Cousins and the complainant into the truck and told Cousins to drive the truck around the corner. Mr. Cousins obeyed and parked the truck at the defendant's command. The defendant then demanded that complainant perform fellatio on him and told Cousins to get down on the floor of the truck. Cousins moved to the floor where he unlatched the truck door and ran away.
At defendant's command, while he threatened her with a knife, complainant performed fellatio upon him in the truck. Shortly thereafter, the defendant forced the complainant out of the truck where they were met by two other men. These three men took complainant to a vacant house where they each had sexual intercourse with her in an empty back bedroom. After the three men left her, complainant ran to a nearby house and called the police. After a stop at Detroit General Hospital, complainant went to the police station where she identified the defendant as her assailant in a lineup.
The first issue raised on appeal was whether a defendant may be charged and convicted of multiple counts of criminal sexual conduct.
[80 MICHAPP 562] The defendant was charged with four counts of criminal sexual conduct in the first degree, M.C.L.A. § 750.520b; M.S.A. § 28.788(2), and two counts of assault with intent to rob being armed, M.C.L.A. § 750.89; M.S.A. § 28.284.
M.C.L.A. § 750.520b; M.S.A. § 28.788(2) provides as follows "(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:"
The statute then lists various circumstances, any of which would render "sexual penetration with another person" to be criminal sexual conduct in the first degree. The section and subsections relevant here are as follows:
"(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." M.C.L.A. § 750.520b(1)(c), (e), (f)(ii); M.S.A. § 28.788(2)(1)(c), (e), (f)(ii).
The jury considered defendant's guilt on count one, assault with intent to rob Allen Cousins; count three, sexual penetration (fellatio) occurring [80 MICHAPP 563] during the commission of another felony; count four, sexual penetration (fellatio) while armed with a weapon; count seven, sexual penetration (intercourse) while armed with a dangerous weapon. The trial judge also instructed the jury as to the lesser included offense of attempted armed robbery. After deliberating, the jury returned the following verdict:
The evidence shows that defendant had engaged in two sexual penetrations of one victim, that being intercourse and fellatio.
On appeal, defendant claims violation of constitutional and statutory protection against double jeopardy. We find it unnecessary to discuss the constitutional issue. People v. Johnson, 75 Mich.App. 221, 224, 255 N.W.2d 207 (1977). We hold that the Legislature intended that but two convictions under the criminal sexual conduct act [80 MICHAPP 564] could result from one act of intercourse and one act of oral sex.
In People v. Willie Johnson, supra, the Court avoided discussing the defendant's challenge to the Michigan criminal sexual conduct act on double jeopardy grounds. The Court elected instead to find that a conviction on more than one count under the statute violated clear legislative intent. The Court held:
Johnson, at 226-227, 255 N.W.2d at 210.
This Court adopts the Johnson rationale and holds that the defendant's conviction in the instant case on three counts of criminal sexual conduct, arising out of only two acts of penetration, violated the clear legislative intent.
Defendant's conviction as to criminal sexual conduct in the first degree, to-wit fellatio in the commission of another felony, is hereby vacated and defendant stands convicted of one count of criminal sexual conduct in the first degree (fellatio) while armed with a...
To continue reading
Request your trial
-
State v. Boozer
...People v. Helton, 39 Ill.App.3d 672, 349 N.E.2d 508 (1976); Morris v. State, 272 Ind. 452, 398 N.E.2d 1284 (1980); People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978); State v. Davis, 624 S.W.2d 72 (Mo.App.1981); Vaughan v. State, 614 S.W.2d 718 (Mo.App.1981); State v. Dennis, 537 S.......
-
Peck v. State
...v. Perez, 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63 (1979); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978); State v. Hill, 104 Ariz. 238, 450 P.2d 696 (1969). We have previously upheld four counts of sexual assault that occ......
-
State v. Carter
...People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); People v. Helton, 39 Ill.App.3d 672, 349 N.E.2d 508 (1976); People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978); Hamill v. Wyoming, 602 P.2d 1212 We, therefore, conclude that where a defendant commits separate acts of our statutori......
-
People v. Van Dorsten
...532, 485 N.W.2d 119 (1992), lv. pending, to control this issue. Each act of penetration was a separate crime. People v. Robinson, 80 Mich.App. 559, 566, 264 N.W.2d 58 (1978), lv. den., 407 Mich. 860 (1979). In Yarger, supra, this Court held that when a defendant is charged with one criminal......