People v. Swearington , 84 Mich. App. 372 ( 1978 )

84 Mich. App. 372 (1978) 269 N.W.2d 467

PEOPLE
v.
SWEARINGTON

Docket No. 29707.

Michigan Court of Appeals.

Decided February 8, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

Frank L. McNelis, for defendant on appeal.

Before: BRONSON, P.J., and R.B. BURNS and R.E.A. Boyle,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering with intent to commit a larceny, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), and appeals.

Defendant first argues that the criminal sexual conduct act is unconstitutional on the grounds of overbreadth and vagueness. We need go no further than to note that defendant lacks standing to raise a constitutional challenge to the language of MCL 750.520a(h); MSA 28.788(1)(h). Defendant was not charged with "any other intrusion"; rather, the evidence at trial showed that defendant had required the complainant to perform an act of fellatio. Since defendant's conviction rests on the more specific language of the statute, he lacks standing to challenge the more general language on vagueness or overbreadth grounds. See People v Thompson, 76 Mich App 705, 710; 257 NW2d 268, 271 (1977), State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich App 204, 207; 226 NW2d 56, 58 (1974), lv granted, 393 Mich 793 (1975).

Defendant next argues that he was prejudiced by having the jury exposed to proposed exhibits of latent fingerprints that were not admitted into evidence. Ultimately, a state police crime lab technician was called by the prosecutor and testified that the prints could not be identified as those of defendant nor anyone else because of the lack of adequate ridge structure. In light of this testimony, we do not find that defendant was prejudiced such that retrial is required. People v Hunt, 77 Mich App 590, 596-597; 259 NW2d 147, 150 (1977), People v Miller, 28 Mich App 161, 165; 184 NW2d 286, 288 (1970), lv den, 384 Mich 826 (1971).

Defendant next argues that the absence of repeal of the gross indecency statute, MCL 750.338b; MSA 28.570(2), somehow entitles him to dismissal of the criminal sexual conduct charge or substitution of the gross indecency charge. Defendant fails, however, to raise a valid constitutional challenge to the criminal sexual conduct act. The prosecutor has broad discretion in selecting the appropriate charge where several statutes are arguably applicable. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693, 698 (1972).

Defendant next argues that reversible error was committed when the trial judge gave a further instruction on an element omitted in the original instructions to the jury two hours after the jury had commenced deliberation. The instruction was readily understandable, and did not place undue emphasis on the element, which was not, in any event, a controverted issue in the case.

The breaking and entering was an essential element of the offense of first-degree criminal sexual conduct in the instant case. Separate conviction thereon violated double jeopardy protections. See Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), People v Martin, 398 Mich 303, 309; 247 NW2d 303, 305 (1976). Thus we reverse the conviction for breaking and entering and affirm the conviction for first-degree criminal sexual conduct.

Affirmed in part, reversed in part.

NOTES

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