People v. Gorney , 99 Mich. App. 199 ( 1980 )

99 Mich. App. 199 (1980) 297 N.W.2d 648

PEOPLE
v.
GORNEY

Docket Nos. 78-641, 78-642.

Michigan Court of Appeals.

Decided August 11, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Neil P. Wackerly, Assistant Prosecuting Attorney, for the people.

Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.

Before: R.M. MAHER, P.J., and MacKENZIE and J.H. PIERCEY,^[*] JJ.

R.M. MAHER, P.J.

Defendant appeals as of right from his plea-based convictions for first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Defendant was sentenced to imprisonment for 10 to 15 years on each count, the sentences to run concurrently.

The count charging defendant with first-degree criminal sexual conduct was based on sexual penetration of Colleen O'Farrell, defendant's 15-year old stepdaughter, who was residing in the same household at the time of the incident. Having reviewed the transcript of the plea taking, we find that the factual basis elicited from the defendant on this charge is sufficient to support a conviction for first-degree criminal sexual conduct under MCL 750.520b(1)(b); MSA 28.788(2)(1)(b). See Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), GCR 1963, 785.7(3). We also find that the trial court complied with GCR 1963, 785.7 in accepting defendant's plea to the charge of first-degree criminal sexual conduct. We therefore affirm defendant's conviction of count one, and the sentence of 10 to 15 years based thereon.

The second count charging defendant with second-degree criminal sexual conduct was based upon defendant's sexual contact with another stepdaughter, Maureen O'Farrell, in violation of MCL 750.520c(1)(f); MSA 28.788(3)(1)(f). Specifically, this count alleged that "he engaged in sexual contact with Maureen O'Farrell and caused personal injury to the said Maureen O'Farrell and used force or coercion to accomplish the said sexual contact by overcoming the said Maureen O'Farrell through the actual application of physical force or physical violence". In developing a factual basis with respect to count two, the sole reference to the complainant's personal injury consisted of defendant's acknowledgement that the complainant was "upset".

On appeal, the defendant contends inter alia that: (1) there was an insufficient factual basis for his conviction of second-degree criminal sexual conduct, MCL 750.520c(1)(f); MSA 28.788(3)(1)(f); and (2) this provision is unconstitutionally vague because, where the element of personal injury is mental anguish, there is an arbitrary distinction between second and fourth-degree criminal sexual conduct.

Michigan's criminal sexual conduct statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., which became effective on April 1, 1975, divides criminal sexual conduct into four degrees of seriousness. First-degree criminal sexual conduct is defined as sexual penetration with another person accompanied by any one of seven aggravating circumstances,^[1] and is a felony punishable by imprisonment for life to any term of years. Second-degree criminal sexual conduct is defined as sexual contact that another person accompanied by any of seven aggravating circumstances,^[2] and is a felony punishable by imprisonment for not more than 15 years. Third-degree criminal sexual conduct involves penetration accompanied by any of three aggravating circumstances,^[3] and is a felony punishable by imprisonment for not more than 15 years. Finally, fourth-degree criminal sexual conduct involves sexual contact accompanied by two aggravating circumstances,^[4] and is a misdemeanor punishable by imprisonment for not more than two years, or by a fine of not more than $500.

The defendant herein was charged under MCL 750.520c(1)(f); MSA 28.788(3)(1)(f), which provides:

"Sec. 520c. (1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:

* * *

"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v)."

MCL 750.520e(1)(a); MSA 28.788(5)(1)(a) provides:

"Sec. 520e. (1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:

"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (v)."

Thus, the fourth-degree criminal sexual conduct provision is a necessarily included lesser offense of the second-degree criminal sexual conduct provision of which the defendant herein was convicted, the only difference between them being the element of personal injury. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

Personal injury is defined in MCL 750.520a(f); MSA 28.788(1)(f) as: "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ". It is the element of mental anguish which is the focus of the instant appeal.

We would conclude that if a victim is "upset", the element of mental anguish is not satisfied so as to justify a conviction of second-degree criminal sexual conduct. We must presume that the victim of any degree of criminal sexual conduct will be "upset" by the experience. Thus, the same act which may give rise to a felony charge of second-degree criminal sexual conduct could just as well constitute the misdemeanor offense of fourth-degree criminal sexual conduct.

It is a familiar rule of statutory construction that criminal statutes must be strictly construed. This principle requires that doubtful conduct be found not criminal. In large part, the principle is based on the idea of notice of prohibited acts, but it also reflects the idea that it is up to the Legislature to define criminal offenses and punishment. Restraint by the courts in interpreting criminal statutes works to avoid judicial infringement of that legislative function. Finally, strict construction serves to guard against the dangers of arbitrary and discriminatory application of otherwise vague legislative pronouncements. People v Willie Johnson, 75 Mich App 221, 224-225; 255 NW2d 207 (1977).

Another rule of statutory construction is that courts will construe the language of a statute so as to give it effect rather than to nullify it. People v Stickle, 156 Mich 557; 121 NW 497 (1909). Statutes must be construed in light of the purpose to be accomplished. Geraldine v Miller, 322 Mich 85; 33 NW2d 672 (1948).

In view of the degree structure of the criminal sexual conduct statute, with the gradations increasing in seriousness from fourth-degree to first-degree, we would conclude that the mental anguish component of personal injury, when used to elevate an offense from a fourth-degree misdemeanor to a second-degree 15-year felony, must involve "extreme" or "serious" mental anguish. It is possible to reach the same conclusion by application of the doctrine of ejusdem generis or the maxim of noscitur a sociis, where the meaning of a word is ascertained from the words which accompany it.

We further note that, when the criminal sexual conduct statute was first introduced on the floor of the Senate, the definition of personal injury included "extreme mental anguish or trauma".^[5] The Legislature thus had an opportunity to incorporate this definition but declined to do so. Nonetheless, in order to preserve the integrity of the criminal sexual conduct statute as a whole, we find it necessary to judicially construe the term as "extreme" mental anguish, in order to avoid finding the statute unconstitutionally vague.

Factors which may establish "extreme" mental anguish sufficient to justify a felony conviction of second-degree criminal sexual conduct may include the need by the victim for psychiatric care or some interference with the victim's ability to conduct a normal life, such as absence from the workplace. It would be futile to attempt an exhaustive list of all of the possible factors which would be required to establish the requisite degree of mental anguish, as this is better left for a case-by-case factual determination.

Although we find that defendant's guilty plea to count two was invalid because the element of personal injury was not established, a defendant need not submit to a trial on the merits in this type of case, nor in cases where there is a subsequent pregnancy or disease of which defendant is totally unaware.

In People v Long, 86 Mich App 676; 273 NW2d 519 (1978), this Court recognized that, before a trial court can accept a defendant's plea of guilty, the trial court must establish a factual basis by personally questioning the defendant about the crime. However, in accepting a plea of nolo contendere, the court may rely on the preliminary examination transcript to establish the factual basis of the offense. Under GCR 1963, 785.7(3)(b)(i) a nolo plea cannot be accepted unless the court "state[s] why a plea of nolo contendere is appropriate". In People v Long, supra, 683, this Court found that an appropriate reason for accepting a nolo plea exists when the defendant is "unable or unwilling to admit his guilt or relate the details of the alleged criminal conduct".

We conclude that, when the defendant lacks personal knowledge to establish the element of personal injury, a nolo plea would be more appropriate than a guilty plea, since it would allow the trial court to use the testimony of the complainant or other prosecution witnesses, e.g., doctors, psychiatrists, employers, relatives, etc. to establish that there has been a pregnancy, loss of a sexual organ, a disease, or extreme mental anguish.

Defendant's plea of guilty to second-degree criminal sexual conduct is reversed. The case is hereby remanded to the trial court, where defendant may either enter a plea of nolo contendere or submit himself to a trial on the merits.

Affirmed in part; reversed in part.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 750.520b; MSA 28.788(2).

[2] MCL 750.520c; MSA 28.788(3).

[3] MCL 750.520d; MSA 28.788(4).

[4] MCL 750.520e; MSA 28.788(5).

[5] Senate Bill 1207, Senate Journal 1974, Vol 2, p 963. The definition for § 520a(f) appears in its original version as follows:

"``serious personal injury' means extensive bodily injury, disfigurement, extreme mental anguish or trauma, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ".