refusing to find “assault with intent to do great bodily harm less than murder” a lesser included offense of criminal sexual conduct because sexual assault is a particularly heinous form of assault and the prohibition of these crimes serves different societal interests
How later courts described this case
- refusing to find “assault with intent to do great bodily harm less than murder” a lesser included offense of criminal sexual conduct because sexual assault is a particularly heinous form of assault and the prohibition of these crimes serves different societal interests
Written by the judges who cited it.
The opinion
N. J. Kaufman, P.J.
(concurring in part, dissenting in part). Judge Allen has done a fine job in this case of first impression and I fully agree with his resolution of all but the first issue. As to that issue, I would affirm the first-degree criminal sexual conduct convictions for Counts I, II, IV, and V; affirm the assault conviction for Count VI; and reduce the first-degree criminal sexual conduct conviction for Count VII to third-degree criminal sexual conduct. My determinations are based on the facts of this case.
Immediately after beating complainant, defendant had vaginal intercourse with her (Count I). Complainant then asked defendant if she could go to the bathroom. Defendant permitted this but held onto her. While in the bathroom, defendant made complainant perform fellatio (Count IV). Defendant maintained his physical hold on complainant, returned to the bedroom with her, and had vaginal intercourse with her (Count II). Thinking she could escape from defendant, complainant again asked to go to the bathroom. Defendant *725 accompanied her, held onto her and made her commit a second act of fellatio (Count V).
At that point, complainant ran out of the bathroom ahead of the defendant to the bedroom window. A secure window screen prevented her escape. Defendant pursued her and told her not to do anything stupid. Defendant put on his clothes, complainant put on a shirt and they sat in the dining room for a short time. Defendant gave complainant some ice water, discussed his desire to see her again, and secured her phone number.
Defendant then ordered complainant back into the bedroom, told her to remove her clothes, and performed cunnilingus (Count VII) and anal intercourse (Count VI) on her.
Defendant’s assaults on the complainant can be divided into two criminal series. The first series began when defendant beat complainant and ended when complainant broke free from the defendant for a time, got partially dressed and sat in the dining room with defendant. The second series began when defendant ordered complainant back into the bedroom for the last two sexual assaults and ended when the assaults were completed.
As Judge Allen notes, one of the elements of first-degree criminal sexual conduct under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) is personal injury to the victim. We all agree that the complainant’s injuries support the jury’s verdict of first-degree criminal sexual conduct on Count I. But the majority conclude that the injuries "occurred prior to and as the means of coercion for the first act of criminal sexual conduct” only. Under that interpretation of the facts, defendant’s remaining convictions of first-degree criminal sexual conduct should be reduced to third-degree criminal sexual conduct.
*726 In my view, however, the injuries occurred prior to and as the means of coercion for the first series of sexual assaults. By maintaining his hold on the complainant after the first, second and third assaults, defendant plainly indicated his intention to continue the attack. Therefore, there is no need to "transfer” the injuries to the second, third, and fourth sexual acts. Each of these assaults was part of the first series of acts which defendant sought to induce by the beating. For that reason, I would affirm the first-degree criminal sexual conduct convictions for Counts II, IV and V as well as Count I.
The jury found defendant guilty of assault with intent to commit criminal sexual conduct on Count VI and I have no difficulty affirming that verdict. The jury also found defendant guilty of first-degree criminal sexual conduct on Count VII. However, since this assault occurred in the second series of sexual acts, I agree with the majority that the initial beating cannot be used to prove personal injury and elevate that offense from third- to first-degree criminal sexual conduct.