People v. Lynn ( 1997 )

566 N.W.2d 45 (1997) 223 Mich. App. 364

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Kenneth Hersch LYNN, Defendant-Appellee.

Docket No. 188433.

Court of Appeals of Michigan.

Submitted December 17, 1996, at Grand Rapids. Decided May 9, 1997, at 9:05 a.m. Released for Publication July 16, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and David M. LaGrand, Assistant Prosecuting Attorney, for People.

Matthew P. Smith & Assoc., P.C. by Matthew P. Smith, Grand Rapids, and Kenneth H. Lynn, Sylvan Lake, in pro per for defendant-appellee.

Before BANDSTRA, P.J., and HOEKSTRA and S.F. COX^[*], JJ.

BANDSTRA, Presiding Judge.

Following a jury trial, defendant was convicted in the district court of violating M.C.L. § 750.448; M.S.A. § 28.703, a misdemeanor. He was sentenced to one day in jail, with credit for time served, thirty-two hours of work service, a $100 fine, and $400 in costs. Defendant appealed his sentence to the circuit court, which reversed defendant's conviction and remanded for retrial. We granted the prosecution leave to appeal and now reverse the circuit court's judgment and reinstate defendant's conviction and sentence.

The statute under which defendant was charged states:

Any person, male or female, ... who shall accost, solicit or invite another ... to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor. [MCL 750.448; MSA 28.703.]

At trial, defendant requested a bifurcated jury instruction that would have required the jurors to conclude unanimously that he had solicited either for prostitution or for a lewd or immoral act or, if neither of those determinations was made unanimously, to find defendant not guilty. The district court denied that request and instructed the jury that it could find defendant guilty if it concluded that he had accosted or solicited another person "for the purposes of prostitution, or for any other lewd or immoral act." The circuit court reasoned that this was error requiring reversal. We disagree.

In People v. Johnson, 187 Mich.App. 621, 468 N.W.2d 307 (1991), the defendant was convicted of second-degree murder. The jury was instructed that it was not necessary that it unanimously agree regarding which of the three alternative guilty states of mind (intent to kill or do great bodily harm, intent to create a very high risk of death or great bodily harm, or knowledge that death or great bodily harm would probably result) was proved in order to convict. Id. at 628-629, 468 N.W.2d 307. The defendant argued that the instruction allowed the jury to convict him without a unanimous verdict. A panel of this Court concluded otherwise, reasoning:

The alternate theories of a defendant's state of mind relate to a single element of a single offense. When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory. [Id. at 629-630, 468 N.W.2d 307.]

This reasoning was cited with apparent approval by our Supreme Court in People v. Cooks, 446 Mich. 503, 515, n. 16, 521 N.W.2d 275 (1994).^[1]

A panel of our Court recently followed the Johnson analysis in People v. Asevedo, 217 Mich.App. 393, 551 N.W.2d 478 (1996), where the defendant had been convicted of first-degree criminal sexual conduct. The defendant argued that the jury should have been required to conclude unanimously that the victim had suffered either bodily injury or mental anguish as a result of the criminal sexual conduct. This Court concluded otherwise, reasoning that bodily injury and mental anguish are "merely different ways of defining the single element of personal injury" required by the statute. Id. at 397, 551 N.W.2d 478. Because there was sufficient evidence of at least one of the listed definitions,^[2] the element of personal injury was proved. Id.

Under Johnson and Asevedo, the statute at issue here proscribes certain conduct undertaken for a prohibited purpose.^[3] The statute lists alternative means by which the prohibited purpose requirement may be fulfilled and the listed alternatives ("to commit prostitution or to do any other lewd or immoral act") are merely different ways of defining the single element of a prohibited purpose. The district court correctly concluded that the statute did not require that the requested instructions be given but, instead, that a general jury unanimity instruction was sufficient.^[4]

In a brief submitted in propria persona, defendant also argues that he was entrapped. However, defendant devotes only one short paragraph to this issue and cites no authority to suggest that entrapment occurred under the facts of this case. We are not convinced by defendant's cursory argument and are not required to search for precedents to support his position. Hover v. Chrysler Corp., 209 Mich.App. 314, 319, 530 N.W.2d 96 (1995).

We reverse the circuit court's judgment and remand to the district court for reinstatement of the conviction and sentence. We do not retain jurisdiction.

NOTES

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

[1] Defendant argues that we should apply the analysis of Cooks to determine that the general unanimity instruction provided in this case was insufficient and that the bifurcated instruction requested was required. However, we conclude that Johnson and People v. Asevedo, 217 Mich.App. 393, 551 N.W.2d 478 (1996) (see earlier discussion) are apposite, but Cooks is not. The issue raised in Cooks, supra at 515, 521 N.W.2d 275, was "whether the trial court's general unanimity instruction sufficiently protected defendant's right to a unanimous verdict, in light of the allegations of separate acts by the defendant, each of which would factually satisfy the elements of the charged offense." Our Supreme Court, id. at 515, 521 N.W.2d 275, recognized that this question is "analytically distinct" from the question at issue in Johnson, whether jury unanimity is required "[w]hen a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses...." In Cooks, the defendant was charged with one count of first-degree criminal sexual conduct and the complainant testified that he had penetrated her in three separate acts on three separate days. Id. at 506-507, 521 N.W.2d 275. The question reviewed in Cooks was whether the jury could convict the defendant without agreeing unanimously that one of the alleged offenses occurred. That kind of issue is certainly different than the one presented here, whether defendant's single telephone-call solicitation of Officer Newton was for the purpose of prostitution or for any other lewd or immoral act. In the words of Cooks, this is a "multitheory" case, not a "multiple acts" or "separate acts" case. Id. at 513-515, 521 N.W.2d 275. Because we thus find Cooks inapposite, we need not determine whether defendant would be entitled to the requested bifurcated instruction under the Cooks analysis.

[2] Before his conviction, defendant moved for a directed verdict, which was denied. He has not cross appealed regarding the denial of his motion or otherwise suggested that there is insufficient evidence to support the conviction.

[3] The facts here present an even more compelling case for affirming defendant's conviction than those in either Johnson or Asevedo. The statute here does not list separate and distinct alternative means of establishing an element of the offense. Instead, by use of the word "other," the statute indicates that "prostitution" is one activity falling within a broader category, "lewd or immoral act[s]." Accordingly, defendant could not logically complain if some jurors believed his purpose was to solicit prostitution but others believed his purpose was to solicit some other lewd or immoral act. All jurors would thus be in unanimous agreement that he had solicited a lewd or immoral act, prostitution or otherwise.

[4] Defendant has not argued that the statute, construed in this manner, violates constitutional guarantees of due process. See Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991).