Order Michigan Supreme Court
Lansing, Michigan
April 30, 2021 Bridget M. McCormack,
Chief Justice
162210 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 162210
COA: 344253
Dickinson CC: 17-005436-FC
JOSEPH CHARLES FOX,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 10, 2020
judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REVERSE that part of the judgment of the Court of
Appeals addressing the defendant’s claim that he was denied a fair trial because the
Dickinson Circuit Court denied the defendant’s request for a jury instruction on assault
and battery.
Defendant was charged with assault with intent to do great bodily harm
(AWIGBH), MCL 750.84(1)(a). He filed a pretrial motion requesting that the jury be
instructed on the offense of assault and battery, MCL 750.81(1). Defendant took the
position that assault and battery is a lesser-included offense of AWIGBH and that a
rational view of the evidence would support the instruction. See People v Cornell, 466
Mich 335, 356-357 (2002). The circuit court heard argument on the motion after the
close of proofs. At that time, the prosecutor agreed that assault and battery is a
necessarily included lesser offense of AWIGBH. The prosecutor nevertheless objected to
the motion on the ground that the intent element of AWIGBH (to do great bodily harm
less than murder) was not disputed because the defense was a general denial that any
assault occurred. See id. at 356 (“A lesser-included offense instruction is only proper
where the charged greater offense requires the jury to find a disputed factual element
which is not required for a conviction of the lesser-included offense.”) (quotation marks
and citation omitted). The circuit court agreed with the prosecutor and denied
defendant’s motion for that reason.
Defendant was convicted of AWIGBH. The Court of Appeals affirmed the
conviction. Addressing the circuit court’s ruling on the requested instruction, the Court
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of Appeals held that assault and battery is not a necessarily included lesser offense of
AWIGBH but rather a cognate offense for which a trial court is not required to give jury
instructions. People v Fox, unpublished per curiam opinion of the Court of Appeals,
issued September 10, 2020 (Docket No. 344253), pp 3-4.
The Court of Appeals noted that this Court granted leave to appeal on a similar
question in People v Haynie, 504 Mich 974 (2019), regarding whether assault and battery
is a lesser-included offense of assault with intent to murder (AWIM), MCL 750.83. The
Court of Appeals explained that “in Haynie our Supreme Court chose not to address
whether assault and battery is a necessarily included lesser included offense of AWIM
and instead relied on the prosecution’s concession in that case that assault and battery is a
lesser included offense of AWIM. The prosecution has made no such concession in this
case and, therefore, we will address the issue based on the existing jurisprudence
regarding jury instructions for necessarily included lesser offenses.” Fox, unpub op at 3
n 2 (citation omitted; emphasis added). Although the Court of Appeals correctly
described our resolution of Haynie, see People v Haynie, 505 Mich 1096 (2020), the
Court of Appeals failed to acknowledge the prosecution’s concession in the trial court.
While it is well established that an appellee can argue in support of an alternative ground
for affirmance, in this case the trial prosecution’s concession that assault and battery is a
lesser-included offense of AWIGBH waived its appellate argument to the contrary. See
People v Carter, 462 Mich 206, 214 (2000).
For that reason, like we did in Haynie, we assume without deciding that assault
and battery is a lesser-included offense of AWIGBH. And on this record, we conclude
that a rational view of the evidence supported the requested instruction and that the trial
court erred by refusing to give it. See Cornell, 466 Mich at 357. To the extent the
prosecution relies on evidence of injury to argue otherwise, we repeat our observation in
Haynie that “[w]hile the severity of injury bears on intent, it is not necessarily dispositive,
and the jury should be free to make its own determination after weighing the evidence.”
Haynie, 505 Mich at 1097.
Regarding the defense theory of the case, while defense counsel asserted in
opening argument that the prosecution would not be able to prove that an assault
occurred, an attorney’s arguments are not evidence, and the general denial does not lead
to the conclusion that the intent element of AWIGBH was not disputed. A criminal
defendant is generally permitted to present inconsistent defenses, and so long as there is
sufficient evidence to support a proposed jury instruction, the instruction should be given.
See People v Lemons, 454 Mich 234, 245-248 (1997). Similarly, when a rational view of
the evidence would support a conviction on assault and battery for a defendant charged
with AWIGBH, it is error to prevent the defendant from arguing that no assault occurred,
but that if one did, the defendant did not act with the intent to cause great bodily harm
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less than murder. We further conclude that this error was not harmless. Haynie, 505
Mich at 1097 (holding that the failure to give a requested instruction on a lesser-included
offense was not harmless because “the evidence clearly supported an instruction on
assault and battery”).
Accordingly, we REMAND this case to the Dickinson Circuit Court for a new
trial. In all other respects, leave to appeal is DENIED, because we are not persuaded that
the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction.
ZAHRA, J. (dissenting).
I dissent from this Court’s order peremptorily reversing the September 10, 2020
judgment of the Court of Appeals. I agree with this Court’s conclusion that the
prosecution waived its argument that assault and battery, MCL 750.81(1), is not a lesser
included offense of assault with intent to do great bodily harm, MCL 750.84(1)(a), by
advancing a contrary position in the trial court. I disagree, however, with the Court’s
decision to grant defendant a new trial without plenary review of the record and the
remaining issues regarding whether the trial court abused its discretion in denying
defendant’s requested jury instruction for the charge of assault and battery. Instead, I
would remand this case to the Court of Appeals to consider (1) whether a rational view of
the evidence supported defendant’s requested instruction, see People v Cornell, 466 Mich
335, 357 (2002) (“[A] requested [jury] instruction on a necessarily included lesser
offense is proper if the charged greater offense requires the jury to find a disputed factual
element that is not part of the lesser included offense and a rational view of the evidence
would support it.”) (emphasis added), and (2) if so, whether any error that may have
occurred in failing to give that instruction was harmless, see People v Haynie, 505 Mich
1096, 1103 (ZAHRA, J., concurring in part and dissenting in part) (“Under this Court’s
guidance in People v Cornell, if an instruction on a lesser included offense should have
been given to the jury at trial, but was not, reversal is not warranted unless the
instructional error was not harmless.”). Because this Court disposes of this case without
plenary review of those issues, I dissent.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 30, 2021
a0427
Clerk