People of Michigan v. Jerome Junior Watson ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 30, 2022
Plaintiff-Appellee,
v No. 353605
Wayne Circuit Court
JEROME JUNIOR WATSON, LC No. 19-007471-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 356971
Wayne Circuit Court
JEROME JUNIOR WATSON, LC No. 19-007471-01-FC
Defendant-Appellee.
Before: LETICA, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his convictions, following a bench trial, of assault with intent
to do great bodily harm, less than murder (AWIGBH), MCL 750.84(1)(a), and assault by
strangulation, MCL 750.84(1)(b). The trial court sentenced defendant as a second-offense habitual
offender, MCL 769.10, to concurrent prison terms of 83 months to 15 years for each conviction.
After defendant filed a motion for resentencing, the trial court vacated one of the assault
convictions on double-jeopardy grounds and held that defendant was entitled to resentencing. This
Court granted the prosecution’s application for leave to appeal that decision. People v Watson,
unpublished order of the Court of Appeals, entered July 28, 2021 (Docket No. 356971). We affirm
defendant’s convictions in Docket No. 353605, but reverse the trial court’s order vacating one
count of assault and ordering resentencing in Docket No. 356971, and remand to that court for
further proceedings.
-1-
I. FACTS
Defendant was convicted of assaulting CS in his Detroit home in the early morning hours
of September 9, 2019. Before the offense, defendant and CS spoke to each other and discussed
plans to develop a dating relationship. On September 8, 2019, CS took a bus to meet defendant.
Defendant met CS at the bus stop and the two walked to defendant’s house. Thereafter, they spent
time together and had consensual sex before a later dispute led to a physical altercation. The
prosecution’s theory at trial was that defendant assaulted CS because defendant was upset that she
would not have sex with him again. There was evidence that defendant punched, stomped, and
strangled CS during the episode. Ultimately, CS left the house and was transported to a hospital
where she spoke with the police and with a nurse examiner. After defendant was arrested, he gave
a statement to the police in which he admitted that when CS tried to leave, he “snapped” and hit
her four times with an open hand and pulled her hair.
At trial, defendant asserted that he acted in self-defense. Defendant claimed that as he and
CS were arguing, CS picked up a bat, hit him in the leg, and tried to swing a crutch at him, and,
fearing that he would be harmed, he defended himself by hitting CS in the face, tackling her, and
holding her down. The trial court rejected defendant’s self-defense claim and convicted him of
AWIGBH and assault by strangulation, but acquitted him of additional charges of first-degree
criminal sexual conduct, MCL 750.520b, torture, MCL 750.85, kidnapping, MCL 750.349, and
felonious assault, MCL 750.82.
II. DOCKET NO. 353605
A. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present sufficient evidence to prove the
requisite intent to sustain his convictions of AWIGBH and assault by strangulation, and failed to
disprove beyond a reasonable doubt that he acted in lawful self-defense. We disagree. We review
de novo a challenge to the sufficiency of the evidence. People v Miller, 326 Mich App 719, 735;
929 NW2d 821 (2019). When ascertaining whether sufficient evidence was presented at trial to
support a conviction, we must view the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012).
“[A] reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the [trier of fact’s] verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78
(2000).
1. AWIGBH
The elements of AWIGBH are: “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.”
People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) (quotation marks and citation
omitted). Defendant argues only that the prosecution failed to prove beyond a reasonable doubt
that he possessed the requisite intent. The intent to do great bodily harm less than murder is “an
intent to do serious injury of an aggravated nature.” People v Brown, 267 Mich App 141, 147;
703 NW2d 230 (2005) (quotation marks and citation omitted). “An actor’s intent may be inferred
-2-
from all of the facts and circumstances, and because of the difficulty of proving an actor’s state of
mind, minimal circumstantial evidence is sufficient.” People v Fetterley, 229 Mich App 511, 517-
518; 583 NW2d 199 (1998) (citations omitted). A trier of fact may infer an intent to inflict great
bodily harm from the actor’s actions, including “the making of threats.” People v Stevens, 306
Mich App 620, 629; 858 NW2d 98 (2014). Although actual injury to the victim is not an element
of the offense, “injuries suffered by the victim may also be indicative of a defendant’s intent.” Id.Viewed in a light most favorable to the prosecution, there was sufficient evidence to
establish that defendant acted with an intent to inflict great bodily harm. There was evidence that
defendant and CS were engaged in a dispute, which escalated, and defendant admitted that he
“snapped” and struck CS in her face with an open hand four times, pulled her hair, tackled her,
and held her down. CS testified that defendant became upset because she refused his request for
sex, and then punched her in the head “several time[s],” punched her in the mouth “several times,”
and “stomped” her in the stomach and head while wearing shoes. During the assault, defendant
also threatened to “drop kick” CS and her baby. In addition, there was ample evidence, including
photographic evidence and testimony from police officers and nurses, that CS suffered numerous
injuries as a result of the assault. Considering the evidence that defendant struck CS multiple times
during an argument and visibly injured her, a trier of fact could have rationally inferred that
defendant acted with an intent to inflict great bodily harm.
In challenging the sufficiency of the evidence of intent, defendant asserts that there were
“only two spots—not pools” of CS’s blood at the crime scene, and that CS’s injuries “were
generally very small and the lip injury was the only injury that required stitches, and only two
stitches at that.” Thus, defendant essentially argues that CS’s injuries were not serious enough to
sustain the intent element for AWIGBH. This argument fails, however, because actual injury is
not an element of the offense that must be proven by the prosecution, although a victim’s injuries
may be probative of a defendant’s intent. Stevens, 306 Mich App at 629. Furthermore, defendant’s
challenge is related to the weight of the evidence rather than its sufficiency. See People v Scotts,
80 Mich App 1, 9; 263 NW2d 272 (1977). The same argument that defendant now raises on appeal
was presented to the trial court during trial. Thus, the trial court was aware of this argument. This
Court will not interfere with the trier of fact’s determinations regarding weight of the evidence.
People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). Applying this standard, there
was sufficient evidence to enable the trier of fact to find beyond a reasonable doubt that defendant
acted with the intent to inflict great bodily harm, and we will not disturb the trier of fact’s
determination.
2. ASSAULT BY STRANGULATION
A person is guilty of assault by strangulation if he (1) assaults another person, (2) by
“intentionally impeding normal breathing or circulation of the blood by applying pressure on the
throat or neck or by blocking the nose or mouth of another person.” MCL 750.84(1)(b) and (2).
Defendant argues that the trial court’s finding that he did not accidently put his hands on CS’s neck
“is not the same thing as intentionally trying to stop a person’s air flow in their neck,” and
therefore, the court erred by concluding that the evidence was sufficient to prove that he intended
to strangle or suffocate CS. We disagree.
-3-
There was evidence that during the incident, defendant put his hands around CS’s neck,
“squeezing really, really hard” to the point that CS believed that she was unconscious, and CS
“was just breathing really, really heavy,” and “felt weak.” During a strangulation assessment by
a sexual assault nurse examiner (SANE), CS reported that she was having “difficulty breathing, a
raspy voice, coughing, trouble swallowing, painful swallowing, neck pain, nausea, vomiting,
dizziness, headache, and loss of consciousness,” which the SANE testified can be signs and
symptoms of strangulation. In addition, even though “the outward signs of strangulation” are only
seen in approximately half of strangulation cases, CS had “several abrasions noted throughout her
neck,” which were consistent with strangulation. This evidence, viewed in a light most favorable
to the prosecution, was sufficient to enable a rational trier of fact to find that defendant
intentionally impeded CS’s breathing by applying pressure to her neck. MCL 750.84(2). While
defendant admitted that he had his hands on CS’s neck, he seeks to credit his testimony that he
was only restraining CS and did not intend to strangle or hurt her. The credibility of defendant’s
testimony was for the trier of fact to determine, and this Court will not interfere with the trier of
fact’s determinations regarding credibility. Unger, 278 Mich App at 222. The evidence, viewed
in a light most favorable to the prosecution, was sufficient to support defendant’s conviction of
assault by strangulation.
3. SELF-DEFENSE
Defendant also argues that the prosecution failed to disprove beyond a reasonable doubt
that he acted in self-defense. At common law, self-defense is an affirmative defense that, if
established, will justify otherwise punishable criminal conduct. People v Dupree, 486 Mich 693,
707; 788 NW2d 399 (2010). The Self-Defense Act, MCL 780.971 et seq., codified the
circumstances in which a person may use self-defense. People v Leffew, ___ Mich ___, ___; ___
NW2d ___ (2022) (Docket Nos. 161797 & 161805); slip op at 12. As applicable to this case,
which involves self-defense with nondeadly force, MCL 780.972(2) provides:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses force other than deadly force may use force other than
deadly force against another individual anywhere he or she has the legal right to be
with no duty to retreat if he or she honestly and reasonably believes that the use of
that force is necessary to defend himself or herself or another individual from the
imminent unlawful use of force by another individual.
MCL 780.972(2) “removed the traditional common-law duty to retreat, so long as the individual
engaging in self-defense or defense of others was not committing or had not committed a crime
and had a legal right to be where they were when they used force.” People v Ogilvie, ___ Mich
App ___, ___; ___ NW2d ___ (2022) (Docket No. 354355); slip op at 4 (quotation marks and
citation omitted).
“Once a defendant satisfies the initial burden of producing some evidence from which a
jury could conclude that the elements necessary to establish a prima facie defense of self-defense
exist, the prosecution bears the burden of disproving the affirmative defense of self-defense
beyond a reasonable doubt.” Dupree, 486 Mich at 712. “In general, a defendant does not act in
justifiable self-defense when he or she uses excessive force or when the defendant is the initial
aggressor.” People v Guajardo, 300 Mich App 26, 35; 832 NW2d 409 (2013).
-4-
Defendant introduced the concept of self-defense at trial. Defendant testified that as he
and CS were arguing, CS picked up a bat, hit him in the leg, and tried to swing a crutch at him,
and, fearing that he would be harmed, he defended himself by hitting CS in the face, tackling her,
and holding her down. During his police interview, defendant stated that he hit CS first without
giving an indication that he believed that the use of that force was necessary to defend himself
from CS. In particular, defendant stated that he had been drinking, and, when CS tried to leave,
he “snapped” and hit her four times with an open hand and pulled her hair. In addressing these
statements at trial, defendant explained that he slapped CS first because she “was hostile” as she
came toward him with the bat and he was afraid of being hit.
In essence, defendant asks this Court to accept his version of the events presented at trial
as fact. Although there was evidence that could support a self-defense claim, there was ample
evidence to rebut it. CS testified that defendant became upset, struck her first—multiple times—
and that, during the beating, she picked up an object in an effort “to stop him from hitting [her].”
Defendant made statements that were also inconsistent with his claim of self-defense. A trier of
fact could reasonably infer that his statement that he snapped and hit CS was consistent with CS’s
testimony that defendant became upset and hit her, thereby making defendant the initial aggressor.
Furthermore, the trial court heard defendant’s testimony placing into context why he stated that he
hit CS first, and apparently rejected it. Conflicting evidence and factual disputes are matters for
the trier of fact to resolve. Miller, 326 Mich App at 735. Viewed in a light most favorable to the
prosecution, the evidence was sufficient to enable a rational trier of fact to conclude beyond a
reasonable doubt that defendant did not act in justifiable self-defense.
B. HEARSAY
Next, defendant argues that he is entitled to a new trial because of the introduction of
testimony describing CS’s statements to a SANE, which defendant argues was inadmissible
hearsay and improperly bolstered CS’s credibility. We disagree. As defendant acknowledges, he
did not object to the testimony that he now challenges on appeal, leaving this issue unpreserved.
Accordingly, our review is limited to plain error affecting respondent’s substantial rights. People
v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
1. CS’S STATEMENTS TO ENGLE
“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is inadmissible at trial unless there is a specific exception allowing its introduction. MRE
802. MRE 803(4) provides an exception for
[s]tatements made for purposes of medical treatment or medical diagnosis in
connection with treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably necessary to such diagnosis and
treatment.
The rationale supporting the admission of hearsay under MRE 803(4) is “(1) the self-
interested motivation to speak the truth to treating physicians in order to receive proper medical
-5-
care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the
patient.” People v Meeboer (After Remand), 439 Mich 310, 322; 484 NW2d 621 (1992).
“Particularly in cases of sexual assault,” “a victim’s complete history and a recitation of the totality
of the circumstances of the assault are properly considered to be statements made for medical
treatment.” People v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). Further,
identification of the perpetrator is necessary to adequate diagnosis and treatment. Meeboer (After
Remand), 439 Mich at 322. Additionally, an injury need not be readily apparent because in cases
of sexual assault, “the injuries might be latent, such as contracting sexually transmitted diseases or
psychological in nature and thus not necessarily physically manifested at all[.]” Mahone, 294
Mich App at 215.
The record supports that CS’s statements to the SANE were reasonably necessary for
diagnosis or treatment of CS, and thus subject to the hearsay exception in MRE 803(4). CS came
to the hospital emergency room after being assaulted, including suspected sexual assault. The
SANE explained that she took CS’s medical history for medical treatment purposes. The SANE
testified that she asked CS about the “assault history” to determine what type of examination to
conduct and to determine what treatment or procedures might be necessary, explaining that the
assault history “guides [the] entire medical forensic exam.” The SANE described examining CS
for physical injuries, and discussing a follow-up examination to evaluate if CS’s injuries were
healing appropriately and if CS needed any post-assault medical-related care. Although the
examination was conducted after CS had been interviewed by the police, the record discloses that
the purpose of the SANE’s examination “was to evaluate and assess the patient, [her] injuries, and
[her] needs post assault.” The SANE testified that she had no affiliation with law enforcement,
and her job as a SANE was not to determine if a crime occurred. Under these circumstances, CS’s
statements to the SANE during the sexual assault examination were reasonably necessary for her
diagnosis or treatment. Accordingly, this hearsay evidence was admissible under MRE 803(4),
and therefore, its introduction at trial was not plain error.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that trial counsel was ineffective by failing to object to the hearsay
testimony. Because defendant failed to raise this ineffective-assistance claim in the trial court in
a motion for a new trial or request for an evidentiary hearing, our review is limited to mistakes
apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “To
demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and that this performance caused him or her prejudice.” People v Nix, 301 Mich App 195,
207; 836 NW2d 224 (2013). “To demonstrate prejudice, a defendant must show the probability
that, but for counsel’s errors, the result of the proceedings would have been different.” Id.For the reasons previously discussed, the SANE’s testimony regarding the statements CS
made during the sexual assault examination was admissible under MRE 803(4). Therefore, trial
counsel’s failure to object was not objectively unreasonable. “Failing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.” People
v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Consequently, defendant cannot
establish a claim of ineffective assistance of counsel on this basis.
-6-
III. DOCKET NO. 356971
The prosecution’s sole claim on appeal is that the trial court erred by vacating one of
defendant’s convictions under MCL 750.84 on double-jeopardy grounds. We agree. “A double
jeopardy challenge presents a question of constitutional law reviewed de novo on appeal.” People
v Ackah-Essien, 311 Mich App 13, 30; 874 NW2d 172 (2015).
The United States and Michigan Constitutions both protect against double jeopardy, which
includes protection against multiple punishments for the same offense.1 US Const, Am V; Const
1963, art 1, § 15. “The multiple punishments strand of double jeopardy is designed to ensure that
courts confine their sentences to the limits established by the Legislature and therefore acts as a
restraint on the prosecutor and the Courts.” People v Miller, 498 Mich 13, 17-18; 869 NW2d 204
(2015) (quotation marks and citation omitted).
MCL 750.84 provides:
(1) A person who does either of the following is guilty of a felony
punishable by imprisonment for not more than 10 years or a fine of not more than
$5,000.00, or both:
(a) Assaults another person with intent to do great bodily harm, less than
the crime of murder.
(b) Assaults another person by strangulation or suffocation.
* * *
(3) This section does not prohibit a person from being charged with,
convicted of, or punished for any other violation of law arising out of the same
conduct as the violation of this section.
The trial court found defendant guilty of two counts of assault under this statute, one under
a theory that he committed AWIGBH, MCL 750.84(1)(a), and one under a theory that he
committed assault by strangulation, MCL 750.84(1)(b).
In People v Barber (On Remand), 332 Mich App 707, 709; 958 NW2d 288 (2020), this
Court held that “double jeopardy precludes [a] defendant’s conviction of both assault by
strangulation and AWIGBH arising from a single incident of assault.” In that case, a Michigan
State Police (MSP) trooper attempted to effectuate a seizure of the defendant, and the defendant’s
brother “wrapped his arm around the trooper’s neck, choked him, violently pulled him back several
1
This prohibition includes “three related protections: (1) it protects against a second prosecution
for the same offense after acquittal; (2) it protects against a second prosecution for the same offense
after conviction; and (3) it protects against multiple punishments for the same offense.” People v
Smith, 478 Mich 292, 299; 733 NW2d 351 (2007) (quotation marks and citation omitted). Only
the third protection—the multiple punishments strand—is at issue here.
-7-
feet, and yelled at [the defendant] to run.” Id. at 711. This Court originally affirmed the
defendant’s convictions of both AWIGBH and assault by strangulation under an aiding and
abetting theory, People v Barber, unpublished per curiam opinion of the Court of Appeals, issued
November 27, 2018 (Docket No. 339452), but our Supreme Court vacated that part of the opinion
and remanded the case to this Court to “address the defendant’s argument that the Legislature did
not intend for a single act to result in convictions for both” AWIGBH and assault by strangulation,
People v Barber, 505 Mich 937 (2019). On remand, as noted, this Court resolved that issue in
favor of the defendant. Barber (On Remand), 332 Mich App at 709.
In this case, the trial court found that defendant was guilty of AWIGBH with the following
reasoning:
Um, with regard to the assault with intent to do great bodily harm, uh, the
photographs which have been admitted into evidence in the Wayne County SAFE
reports certainly or Exhibits 27-67 establish that [CS] had more and [sic] 50
injuries. And those were undoubtedly in this court’s opinion based upon the
evidence that’s been introduced, uh, were caused by Mr. Watson.
Mr. Watson admitted during his interrogation that he just snapped and
struck [CS] even though she had not struck him.
I believe the evidence establishes not only he had the ability to injure, injure
[CS], but that he did in fact injure her, uh, with his hands.
The next question is whether he intended to do great bodily harm. . . . This
element I believe is proved beyond a reasonable doubt because the evidence
establish [sic] that [CS] was spitting or drip, dripping blood, uh, after she was, uh,
beaten by the defendant and left the house.
Uh, certainly . . . the evidence establishes beyond a reasonable doubt that,
uh, the blood on the driveway was [CS’s] and whether she spat the blood because
of the laceration to the lip or because of the injury to the eye, uh, there certainly
was a, a blood stain, uh, caused by the injuries inflicted, uh, by Mr. Watson.
And, again, there were more than 50 injuries suffered by, um, [CS]
including the laceration above her eye and the laceration of her lip that required,
uh, stitches. . . .
Additionally, [the SANE] testified the injuries to [CS’s] neck were
consistent with strangulation. . . . [I]t indicates that [CS] had difficulty breathing,
a raspy voice, coughing, trouble swallowing, was painful to swallow . . . had a
headache and loss of consciousness and her face was rather flush. . . . And certainly
the photographs of the neck, uh, the injures to [CS’s] neck as well as the testimony
from [CS] that there were, uh, the defendant had one, if not two, hands around his
-- her neck and that she was having difficulty breathing and perhaps even lost
consciousness, uh, collectively, uh, establish that there was an intent, uh, to do, uh,
great bodily harm, and that I find the defendant, uh, guilty of that charge.
-8-
Next, with regard to assault by strangulation, the trial court reasoned as follows:
[T]he facts clearly establish the defendant grabbed [CS] around the neck at
least one if not two hands meaning that that occurred while the defendant was in
the process of beating [CS] with his fist and causing physical injuries. Uh, because
the strangulation occurred while the defendant was severely beating [CS] I think
it’s been established beyond a reasonable doubt the placement of the defendant’s
hand on [CS’s] neck was not an accident.
Uh, additionally, uh, there were more, there was more than ample evidence
to establish that the battery was committed by strangulation . . . .
We agree with the prosecution that the trial court misapplied Barber (On Remand). In that
case, the defendant was convicted of both AWIGBH and assault by strangulation for the singular
act of choking the MSP trooper. See Barber (On Remand), 332 Mich App at 711-712. And our
Supreme Court specifically directed this Court to address whether a “single act” may constitute
the basis for convictions of both AWIGBH and assault by strangulation. Barber, 505 Mich 937.
Thus, while Barber (On Remand) stated that two such convictions cannot arise from “a single
incident of assault,” it more precisely stands for the proposition that two such convictions cannot
arise from a “single act” of assault.2
Here, in contrast, there were at least two acts of assault. One act occurred when defendant
repeatedly struck CS in the face with his fist and caused multiple injuries, including bleeding. The
second act occurred when defendant strangled CS. Specifically, CS testified that defendant
punched her in the head “several time[s],” punched her in the mouth “several times,” and
threatened to “drop kick” her and the baby. Later, CS ran up the stairs, and defendant “dragged
[her] down the stairs” and “start[ed] choking” her with his hand. CS “felt like that he was about
to kill [her] or something,” and she “was just breathing really, really heavy” and “felt weak.”
The trial court conceptually distinguished between these two acts of assault when rendering
its findings—first, when it explained that the intent for the AWIGBH conviction was supported by
the evidence that defendant caused CS to bleed from the eye and lip and “[a]dditionally” the
evidence that defendant strangled CS, and second, when it explained that “the strangulation
occurred while the defendant was severely beating [CS].” Simply put, the trial court understood
2
At oral argument, defendant stated that Miller and Barber (On Remand) stand for the proposition
that “the Legislature did not intend multiple punishments in the same trial” for multiple violations
of the respective statutes at issue in those cases. We disagree. In Miller, the defendant was
convicted of operating while intoxicated (OWI), MCL 257.625(1), and OWI-injury, MCL
257.625(5), for a single car accident that injured his passenger. Miller, 498 Mich at 15-16. In
Barber (On Remand), the defendant was convicted of AWIGBH and assault by strangulation for
a single choking incident. See Barber (On Remand), 332 Mich App at 711-712. Both of these
cases involved a single act that constituted a violation of two distinct criminal provisions. There
is nothing in either of these cases to undermine the longstanding principle that a defendant may
receive multiple punishments for committing “separate and distinct” crimes. People v Colon, 250
Mich App 59, 63-64; 644 NW2d 790 (2002).
-9-
that defendant engaged in two acts of criminal assault—physical beating and strangulation. These
findings were supported by the evidence, and double jeopardy does not preclude two separate
convictions for both AWIGBH and assault by strangulation because defendant committed two
independent acts. First, there was the beating in the basement. Second, there was the strangulation
after the victim fled up the basement stairs and defendant then dragged her back down. See People
v Colon, 250 Mich App 59, 63-64; 644 NW2d 790 (2002) (concluding that the defendant’s multiple
assault convictions did not violate double jeopardy because “the incidents composing these crimes
were separate and distinct”).
We acknowledge that the trial court found that the act of strangulation was evidence that
supported a finding that defendant had the intent to commit great bodily harm for the purposes of
the AWIGBH conviction. In other words, the evidence suggested, and the trial court apparently
reasoned, that the act of strangulation occurred while the overall assault that constituted AWIGBH
was occurring. This, however, also does not preclude a conclusion that defendant committed two
independent violations of MCL 750.84. A defendant may commit two closely related, independent
offenses during a single criminal transaction. Compare People v Ryan, 295 Mich App 388, 404;
819 NW2d 55 (2012) (explaining that “in the case at bar, while the two volitional acts of sexual
penetration constituted distinct offenses, they were part of the same transaction”). Thus, while
defendant committed an assault by strangulation while he was committing AWIGBH, this overlap
does not mean that defendant may only be found guilty of one violation of MCL 750.84 for the
purposes of double jeopardy. Therefore, the trial court erred by vacating one of the assault
convictions, and we reverse its judgment in this regard.
IV. CONCLUSION
We affirm in Docket No. 353605, reverse in Docket No. 356971, and remand to that court
for further proceedings consistent with our opinion. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
-10-