People v. Worrell

• Decision Date: 26 January 1982
• Docket Number: Docket No. 53944
• Citation: 111 Mich.App. 27,314 N.W.2d 516
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack WORRELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 516

314 N.W.2d 516

111 Mich.App. 27

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack WORRELL, Defendant-Appellant.

Docket No. 53944.

Court of Appeals of Michigan.

Submitted May 21, 1981.

Decided Nov. 2, 1981.

Released for Publication Jan. 26, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael W. LaBeau, Pros. Atty., and William D. Bond, Asst. Pros. Atty., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Before V. J. BRENNAN, P. J., and T. M. BURNS and PANNUCCI, ^* JJ.

V. J. BRENNAN, Presiding Judge:

Defendant was charged with criminal sexual conduct in the third degree, M.C.L. § 750.520d(1)(a); M.S.A. § 28.788(4)(1)(a). By supplemental information, he was charged with being a second-felony offender M.C.L. § 769.10; M.S.A. § 28.1082. On June 17, 1980, he was convicted by a jury of assault with intent to commit criminal sexual conduct involving sexual penetration. M.C.L. § 750.520g(1); M.S.A. § 28.788(7)(1). He, thereafter, pled guilty to the supplemental information. Defendant was sentenced from 21/2 to 15 years imprisonment. He appeals as of right.

The events forming the basis for the criminal sexual conduct charge occurred during the evening of November 2, 1979. The complainant testified that, on this date, she was thirteen years old. She had gone to the apartment of a friend and neighbor to assist with the neighbor's baby. She had known the defendant for several months and often met with him at the neighbor's home but never at her own home. She testified that, although she liked and previously had kissed defendant, she was not sure that she wanted to be his girlfriend.

At one point in the evening, the complainant went upstairs to use the bathroom and then stayed to pick up some dirty clothes. Approximately ten minutes later, defendant also came up to the bathroom. He took her bluejeans and underwear down to her knees. Complainant testified that she did not know how but she ended up lying on the floor in the bathroom. Defendant lay on top of her, between her legs. On direct examination, the complainant testified that defendant's penis entered into her vagina. On cross-examination, she stated that it was "possible" that defendant had been rubbing her and that his penis had not entered her.

The neighbor's testimony essentially corroborated the complainant's testimony. The neighbor testified that complainant and defendant had been upstairs for 30 minutes when, after calling for complainant to come down, she went upstairs to get her. Upon opening the bathroom door, she saw complainant and defendant lying half-nude on the floor in the previously described sexual position.

The issue of first impression in this case concerns the lesser offenses included in a charge of third-degree criminal sexual conduct when the principal charge involves a victim between the ages of thirteen and sixteen. On appeal, defendant contends that the trial court committed error requiring reversal when it instructed the jury on assault with intent to commit criminal sexual conduct involving sexual penetration, M.C.L. § 750.520g(1); M.S.A. § 28.788(7)(1), on the theory that it was a lesser included offense of the charged crime of third-degree criminal sexual conduct, M.C.L. § 750.520d(1)(a); M.S.A. § 28.788(4)(1)(a).

The provision of third-degree criminal sexual conduct under which defendant was charged is premised upon engaging in sexual penetration with a person at least 13 years of age and under 16 years of age, M.C.L. § 750.520d(1)(a); M.S.A. § 28.788(4)(1)(a). The defendant contends that the instruction given the jury on assault with intent to commit criminal sexual conduct involving sexual penetration was erroneous because it is neither a necessarily lesser nor cognate included offense of third-degree criminal sexual conduct. Alternatively, defendant argues that assuming, arguendo, the criminal sexual assault charge is a lesser included offense, the information did not provide fair notice nor did the evidence adduced at trial warrant the trial court's instructing the jury on this lesser offense. We disagree.

Traditionally, Michigan has clearly recognized that an information charging statutory rape necessarily embraces the lesser included offense of assault with intent to commit rape. People v. Phillips, 385 Mich. 30, 36, 187 N.W.2d 211 (1971), People v. Oberstaedt, 372 Mich. 521, 524, 127 N.W.2d 354 (1964), People v. Eddy, 252 Mich. 340, 346, 233 N.W. 336 (1930), People v. Martin, 208 Mich. 109, 175 N.W. 233 (1919), People v. Abbott, 97 Mich. 484, 56 N.W. 862 (1893), People v. McKee, 7 Mich.App. 296, 151 N.W.2d 869 (1967), lv. den. 379 Mich. 785 (1967).

Under modern analysis, while assault with intent to commit criminal sexual conduct may not be a necessarily lesser included offense of third-degree criminal sexual conduct, we have no difficulty in concluding that it is a viable cognate lesser offense. People v. Ora Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975), People v. Payne, 90 Mich.App. 713, 719, 282 N.W.2d 456 (1979). To be a cognate lesser offense, the two crimes must share several elements and be of the same class or category. Ora Jones, supra, Payne, supra. A lesser included offense will share a common statutory purpose, protecting the same societal interests as the greater offense. People v. Green, 86 Mich.App. 142, 148-149, 272 N.W.2d 216 (1978). The fact that a lesser offense within the same category as the greater offense charged has an element not included within the greater does not preclude the lesser from being included with the greater. Ora Jones, supra, 388-389, 236 N.W.2d 461, People v. Robinson, 101 Mich.App. 687, 301 N.W.2d 41 (1980). However, in order for a trial court to instruct on a cognate lesser offense, it is necessary that the evidence adduced during trial must support a conviction on that offense. Ora Jones, supra, 390, 236 N.W.2d 461, People v. Chamblis, 395 Mich. 408, 423-424, 236 N.W.2d 473 (1975), Payne, supra, 720, 282 N.W.2d 456, Robinson, supra, 692, 301 N.W.2d 41. Thus the final resolution of whether one offense is a cognate of another must be resolved by referring to the evidence on a case-to-case basis to determine whether the record would support a conviction of the lesser offense.

Application of the above rules of law demonstrates that third-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct share a common statutory purpose, protect the same societal interests, and seek to remedy the same problem: criminal sexual conduct. Moreover, the two crimes share overlapping elements: sexual penetration or attempt to commit sexual penetration. Further, the fact that the lesser offense has an assault element which is not included within the greater analytically does not mandate that the lesser offense cannot be a cognate of the greater.

However, defendant strenuously argues that the trial court was precluded from instructing the jury on the criminal sexual assault charge as a cognate lesser included offense because nothing in the trial evidence showed that defendant used or threatened actual physical force or violence to accomplish the sexual acts. He reasons that since the complainant consented to the sexual acts, he could not have committed the crime of assault with intent to commit criminal sexual conduct involving sexual penetration.

We are not persuaded by defendant's argument since it is contrary to a long line of cases holding that force against the will of a female under the age of sixteen is not necessary to sustain a conviction for assault with intent to commit rape.

In People v. Courier, 79 Mich. 366, 368, 44 N.W. 571 (1890), the Court stated the common-law rule that actual violence or actual assault is not an essential element of the crime of assault with intent to commit rape when the person allegedly assaulted is under the age of consent.

"In cases of this kind it is not necessary that it should be shown, as in rape, that the accused intended to gratify his passion at all events. If he intended to have sexual intercourse with the child, and took steps looking towards such intercourse, and laid hands upon her for that purpose, although he did not mean to use any force, or to complete his intent if it caused the child pain, and desisted from his attempt as soon as it hurt, he yet would be guilty of an assault with intent to commit the crime charged in the information. Force, against the will of the female, is not a necessary element of the crime charged here. Sexual intercourse is sufficient, and if an assault is made, with the design of sexual intercourse with a child under the statutory age, the crime of an assault with intent to carnally know and abuse the child is committed. If indecent liberties are taken with the child with no intent to have sexual intercourse, it is punishable as an assault; and the lesser crimes are contained within the greater, and, under an information charging carnal knowledge and abuse, the accused may be convicted of assault with intent to commit such carnal knowledge and abuse or of simple assault. Campbell v. People, 34 Mich. 351, People v. McDonald, 9 Id.Mich. 150, Hanna v. People, 19 Id.Mich. 316."

The Courts subsequently have held that a defendant's intent to employ force to overcome any resistance offered by the complainant, or its actual use, is not a necessary element of assault with intent to commit rape when the female is under the statutory age. People v. Goulette, 82 Mich. 36, 45 N.W. 1124 (1890), People v. Chamblin, 149 Mich. 653, 113 N.W. 27 (1907), People v. Kongeal, 212 Mich. 307, 180 N.W. 636 (1920), Eddy, supra. The sole case, People v. Dowell, 136 Mich. 306, 99 N.W. 23 (1904), which held that actual violence is essential to the commission of the crime of assault with intent to commit rape, even upon a girl under the age of consent, has been expressly distinguished by subsequent cases. See E...