People v. Carlson ( 2010 )

779 N.W.2d 821 (2010)

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Joseph Ryan CARLSON, Defendant-Appellee.

Docket No. 140264. COA No. 287420.

Supreme Court of Michigan.

March 31, 2010.

Order

On order of the Court, the application for leave to appeal the November 5, 2009 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE only that part of the judgment of the Court of Appeals that vacates the defendant's convictions of and sentences for first-degree criminal sexual conduct based on oral penetration of the victim and REMAND this case to the Court of Appeals. The challenged evidence that was found to be arguably admissible by the Court of Appeals supported a finding of cunnilingus, which, by definition, is penetration. See MCL 750.520a(r). On remand, the court is to consider whether that evidence was admissible under the circumstances of this case. See People v. Meeboer, 439 Mich. 310, 484 N.W.2d 621 (1992). The court shall also determine whether a remand for a new trial is appropriate pursuant to Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.

We do not retain jurisdiction.