People v. Corbiere

559 N.W.2d 666 (1996) 220 Mich. App. 260

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas Wilbert CORBIERE, Defendant-Appellant.

Docket No. 188096.

Court of Appeals of Michigan.

Submitted October 16, 1996, at Marquette. Decided November 26, 1996, at 9:15 a.m. Released for Publication February 25, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Thomas L. Smithson, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for People.

State Appellate Defender by Rolf E. Berg, for defendant-appellant on appeal.

Before GRIBBS, P.J., and MacKENZIE and RICHARD ALLEN GRIFFIN, JJ.

RICHARD ALLEN GRIFFIN, Judge.

Defendant was convicted by a jury of two counts of criminal sexual conduct in the third degree, M.C.L. § 750.520d(1)(b); M.S.A. § 28.788(4)(1)(b), for raping his wife by means of force or coercion. Thereafter, defendant pleaded guilty of being an habitual offender, third offense, M.C.L. § 769.11; M.S.A. § 28.1083, and was sentenced to seventeen to thirty years in prison. On appeal, the sole issue raised by defendant is whether the trial court committed error requiring reversal in refusing defendant's request for a jury instruction regarding the misdemeanor offense of domestic assault. M.C.L. § 750.81(2); M.S.A. § 28.276(2). We affirm and hold that domestic assault is not a necessarily included misdemeanor of third-degree criminal sexual conduct.

I

At trial, the victim testified that when defendant returned home from work on November 18, 1994, he accused her of having an extramarital affair. For the next twelve hours, defendant held the victim captive in the couple's home and unsuccessfully tried to obtain her "confession" by hitting her with objects, slapping her, and pulling her hair. During the terrifying ordeal, defendant raped the victim on two different occasions by forced sexual penetration.

Following the conclusion of proofs, defendant requested a jury instruction regarding the misdemeanor offense of domestic assault, M.C.L. § 750.81(2); M.S.A. § 28.276(2). Although defendant had been charged with two counts of domestic assault, the prosecutor dismissed the misdemeanor charges after the defense rested. The trial court refused to give defendant's requested misdemeanor instruction, stating that third-degree criminal sexual conduct and domestic assault do "not relate [to] the protection of the same interests" and that proof of domestic assault is not "necessarily presented as part of the proof of the greater charged offense." During closing argument, defense counsel conceded that defendant physically abused the victim, but denied that defendant forcibly penetrated the victim's vagina.

II

On appeal, defendant contends that the trial court committed error requiring reversal in refusing to issue a domestic assault instruction. According to defendant, this crime is a lesser included misdemeanor of third-degree criminal sexual conduct. We disagree.

In People v. Stephens, 416 Mich. 252, 261-265, 330 N.W.2d 675 (1982), our Supreme Court held that a court must instruct concerning a lesser included misdemeanor where (1) there is a proper request, (2) there is an "inherent relationship" between the greater and lesser offense, (3) the requested misdemeanor is supported by a "rational view" of the evidence, (4) the defendant has adequate notice, and (5) no undue confusion or other injustice would result. See also People v. Hendricks, 446 Mich. 435, 444-446, 521 N.W.2d 546 (1994); People v. Rollins, 207 Mich.App. 465, 468, 525 N.W.2d 484 (1994). Offenses are inherently related if they relate to the protection of the same interests and are related in an evidentiary manner such that, generally, proof of the misdemeanor is necessarily presented in proving the greater offense. People v. Steele, 429 Mich. 13, 19, 412 N.W.2d 206 (1987); see also Hendricks, supra at 445, 521 N.W.2d 546; Stephens, supra at 262, 330 N.W.2d 675, quoting United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314 (1971).

III

We hold that defendant's requested instruction regarding the misdemeanor offense of domestic assault fails to satisfy the second part of the Stephens test. Both criminal sexual conduct and domestic assault are abusive, degrading acts of violence. However, contrary to defendant's contention, similarities in the general nature or effect of the two crimes do not necessarily establish that the offenses protect the same interests. Indeed, this portion of the Stephens test would lack consequence if it were satisfied whenever the nature or effect of two different crimes could be worked into the same strategically crafted, general category. Thus, our analysis looks beyond the nature or effect of each crime and focuses on the precise problems the Legislature sought to countervail. Using this more precise analysis, we conclude that the Legislature enacted the third-degree criminal sexual conduct and domestic assault statutes to protect different societal interests.

Our Legislature enacted the criminal sexual conduct statutes to strengthen laws prohibiting particular kinds of sexual conduct. See People v. Langworthy, 416 Mich. 630, 644, 331 N.W.2d 171 (1982); People v. Ward, 206 Mich.App. 38, 42, 520 N.W.2d 363 (1994); People v. Nelson, 79 Mich.App. 303, 319, 261 N.W.2d 299 (1977), affirmed in part and vacated in part on other grounds, 406 Mich. 1020, 281 N.W.2d 134 (1979); see also People v. Armstrong, 212 Mich.App. 121, 536 N.W.2d 789 (1995). On the other hand, "assault statutes deal only with general contacts among individuals," People v. Barnett, 165 Mich.App. 311, 318-319, 418 N.W.2d 445 (1987), and preserve "safety and security" by protecting people against corporal harm. Hendricks, supra at 449, 521 N.W.2d 546; People v. Smith, 143 Mich.App. 122, 131, 371 N.W.2d 496 (1985). Recognizing this disparity in statutory focus, this Court has repeatedly held that criminal sexual conduct and assault statutes were enacted to protect distinct Legislative interests. For example, in People v. Harris, 133 Mich.App. 646, 651, 350 N.W.2d 305 (1984), this Court rejected the argument that felonious assault is a lesser included offense of first-degree criminal sexual conduct because "the two offenses do not serve a common statutory purpose but serve to remedy two distinct problems." Also, this Court held in People v. Payne, 90 Mich.App. 713, 720, 282 N.W.2d 456 (1979), that assault with intent to do great bodily harm less than murder is of a different "class or category" than criminal sexual conduct. In reaching this conclusion, our Court reasoned, at 720-721, 282 N.W.2d 456:

The Legislature has gone to great lengths to carve out sexual assaults from other types of assaults. Society views sexual assaults as particularly heinous and the Legislature has determined punishments for the various types of criminal sexual conduct. There is a specific "assault" crime associated with criminal sexual conduct. With this statutory backdrop, we find that assault with intent to do great bodily harm less than murder is a different type of offense than and protects a different societal interest than criminal sexual conduct, and hence it is not a lesser offense of criminal sexual conduct. [Emphasis added.]

See also Ward, supra at 43, 520 N.W.2d 363 (criminal sexual conduct and child sexually abusive activity are crimes that "prohibit conduct violative of distinct social norms"); Barnett, supra at 318, 418 N.W.2d 445 (the child torture statute protects different interests than the assault and battery statute).

We agree with the cases cited and conclude that the societal interests furthered by the criminal sexual conduct statutes are distinct from the interests associated with statutes criminalizing assaults in general. In enacting the criminal sexual conduct statutes, the Legislature chose not to have sexual misconduct prosecuted under general assault statutes or to identify criminal sexual conduct as a heightened degree of assault. Instead, the Legislature devised a comprehensive statutory scheme harshly penalizing limited and specifically defined forms of sexual conduct. In fact, the Legislative history reveals that the Legislature intentionally changed the name of the crime from "sexual assault" to "criminal sexual conduct" so that the established legal definition for "assault" would not impede criminal sexual conduct prosecutions. See Legislative Service Bureau Bill Analysis, House Substitute for Senate Bill No. 1207, July 12, 1974, Memorandum, Analysis of House Substitute SB 1207, from Don P. LeDuc Office of Criminal Justice Programs, Department of Management and Budget, to Governor William G. Milliken, July 9, 1974. In our view, this history reveals a Legislative intent to make criminal sexual conduct a uniquely heinous crime that is distinct from and far more invasive of human sanctity and dignity than common assault.

Additionally, we conclude that proofs relative to the misdemeanor offense are not generally shown in proving third-degree criminal sexual conduct. Domestic assault is a specific intent crime, People v. Terry, 217 Mich.App. 660, 662, 553 N.W.2d 23 (1996), that is proved by establishing that the defendant and the victim are associated in one of the ways set forth in M.C.L. § 750.81(2); M.S.A. § 28.276(2) and that the defendant either intended to batter the victim or that the defendant's unlawful act placed the victim in reasonable apprehension of being battered. See People v. Johnson, 407 Mich. 196, 210, 284 N.W.2d 718 (1979); People v. Sanford, 402 Mich. 460, 479, 265 N.W.2d 1 (1978); CJI2d 17.2.

On the other hand, third-degree criminal sexual conduct is a general intent crime proved by showing that the defendant committed a proscribed sexual act. People v. Pettway, 94 Mich.App. 812, 817, 290 N.W.2d 77 (1980); see also CJI2d 20.12(2)(a), 20.15, and 20.24(1)-(4); see Langworthy, supra at 645, 331 N.W.2d 171, People v. Brown, 197 Mich.App. 448, 450, 495 N.W.2d 812 (1992), and People v. Perry, 172 Mich.App. 609, 623, 432 N.W.2d 377 (1988). Therefore, proof of domestic assault is not necessarily or even generally established by showing third-degree criminal sexual conduct because, unlike criminal sexual conduct, domestic assault cannot be proved without establishing criminal intent. See Washington v. Walden, 67 Wash.App. 891, 841 P.2d 81 (1992); In re Nash, 149 Vt. 63, 66, 539 A.2d 989 (1987); Vermont v. Bourn, 139 Vt. 14, 16, 421 A.2d 1281 (1980); State v. Gerring, 378 N.W.2d 94, 98 (Minn.App.1985).

Affirmed.