People v. Apgar

690 N.W.2d 312, 264 Mich. App. 321
CourtMichigan Court of Appeals
DecidedJanuary 6, 2005
DocketDocket 247544
StatusPublished
Cited by57 cases

This text of 690 N.W.2d 312 (People v. Apgar) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Apgar, 690 N.W.2d 312, 264 Mich. App. 321 (Mich. Ct. App. 2005).

Opinions

Gage, J.

Defendant appeals as of right his jury trial conviction of third-degree criminal sexual conduct (CSC III), MCL 750.520d(l)(a) (sexual penetration with a person at least thirteen years of age and under sixteen years of age). The trial court sentenced defendant to fifty months to fifteen years in prison. We affirm.

I. FACTS AND PROCEDURE

The victim in this case is a thirteen-year-old girl. Defendant lived with the family of the victim’s friend in Dearborn. At her friend’s house, the victim willingly got into a car alone with defendant and his two friends because they invited her to go to “the store” with them. The victim testified that they drove around for several [324]*324hours while she was forced to smoke marijuana because a sharp knife-like object was pressed against her neck. They arrived at a home in Hamtramck. The victim did not attempt to escape because she did not know her whereabouts.

Defendant took the victim into an empty bedroom where they engaged in sexual intercourse. The victim testified that defendant had placed the knife-like object to her throat and threatened to kill her if she did not do as he said. The victim claimed in addition that both of defendant’s friends forced her to perform oral sex by threatening her with the same knife-life object. The victim also alleged that one of defendant’s friends burned a homemade tattoo onto her chest before forcing her to perform oral sex. The victim was dropped off at or near her home after midnight, and she told her grandmother that she had been raped.

At the hospital, the victim underwent an examination, and a rape test was administered. The victim sustained a small bruise to her right buttock and irritation and redness to her vaginal opening, which was consistent with forcible sexual assault. The victim’s vaginal area tested positive for semen, and a DNA test revealed that it matched defendant’s types. From the carpet in the bedroom of the Hamtramck house, the police recovered three semen stains that matched the DNA types of defendant and his two friends.

Defendant was originally charged with one count of first-degree criminal sexual conduct (CSC I), MCL 750.520b(l)(e) (person armed with a weapon or an object that the victim believes is a weapon), and one count of CSC I, MCL 750.520b(l)(d) (ii) (person is aided or abetted by one or more other persons and uses force or coercion to accomplish the sexual penetration). After the jury was selected, the prosecutor orally moved to [325]*325amend the felony information to include a charge of CSC III, MCL 750.520d(1)(a). The prosecutor argued that it was necessary to amend the felony information under People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), because CSC III under MCL 750.520d(l)(a) is not a necessarily lesser included offense of CSC I under either MCL 750.520b(1)(d) or (1)(e). The trial court denied the prosecutor’s request to amend the information as follows:

The Court: ... I am not amending any information two minutes before we swear the jury in.
So, I mean, that’s the ruling.
It’s latches, or whatever you want to call it, you guys [the prosecution] had a full opportunity, not you, but anybody in your office had an opportunity to do this at an earlier time.
The defense is here, ready to go to trial.
Your motion to amend the information is denied.
Okay?
The Prosecutor: But the Court is willing to give the lesser. There’s no—
The Court: Well, the lessers [sic] is something different, you know.
But I’m not amending anything.

Over defense counsel’s objection, the trial court subsequently provided a jury instruction on CSC III, and the jury convicted defendant on that charge.

II. AMENDING FELONY INFORMATION

Defendant first argues that the trial court erred by permitting the prosecution to amend the felony information to include a charge of CSC III and providing the corresponding jury instruction. Because the trial court [326]*326actually denied the prosecution’s request to amend the information, we find that defendant has framed the issue incorrectly. Rather, the question is whether the trial court erred in instructing the jury on CSC III as a necessarily included lesser offense of CSC I as charged. We review de novo claims of instructional error and determinations whether an offense is a necessarily included lesser offense. People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 (2003); People v Lowery, 258 Mich App 167, 173; 673 NW2d 107 (2003).

MCL 768.32(1) provides:

Except as provided in subsection (2), 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.

MCL 768.32(1) “only permits instructions on necessarily included lesser offenses, not cognate lesser offenses.” People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002); Cornell, supra at 356. A necessarily included lesser offense is an offense in which all its elements are included in the elements of the greater offense such that it would be impossible to commit the greater offense without first having committed the lesser offense. Mendoza, supra at 532; People v Bearss, 463 Mich 623, 627; 625 NW2d 10 (2001). A cognate lesser offense shares several of the same elements and same class or category as the greater offense but contains some elements distinct from the greater offense. Mendoza, supra at 532 n 4; Bearss, supra at 627. A requested instruction on a necessarily included lesser offense is appropriate “if the charged greater offense requires the jury to find a disputed factual element that is not part [327]*327of the lesser included offense and a rational view of the evidence would support it.” Cornell, supra at 357. The Cornell Court concluded that, pursuant to MCL 768.32, instructions on cognate lesser offenses are impermissible because they do not provide a defendant with adequate notice that he might be charged with the lesser offense. Cornell, supra at 353-355, 359; Bearss, supra at 628-629.

Defendant was charged with one count of CSC I perpetuated by one who is armed with a weapon or an instrument that the victim reasonably believes is a weapon, and a second count of CSC I perpetuated by one who is aided or abetted by one or more other persons, and the offender uses force or coercion to accomplish the act of sexual penetration. MCL 750.520b(l)(d) (ii) (e). The jury convicted defendant of CSC III, sexual penetration of another person at least thirteen years of age and under the age of sixteen, MCL 750.520d(l)(a). Neither of the charged counts of CSC I includes the element of the victim’s age. Thus, it is possible to commit CSC I under MCL 750.520b(l)(d) or (l)(e) without committing the uncharged offense of CSC III, MCL 750.520d(l)(a). Accordingly, under Cornell

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Cite This Page — Counsel Stack

Bluebook (online)
690 N.W.2d 312, 264 Mich. App. 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-apgar-michctapp-2005.