(dissenting). I dissent and would remand for an evidentiary hearing for the reason that I am concerned with what, according to my perception of the case, may have happened here. This was, in my view, either a compromise verdict or a sham trial. The trial judge had before him a one-on-one situation. Extremely serious allegations *558were made. The judge may have had a reasonable doubt on the real charges (two acts of criminal sexual conduct in the first degree [csc-i] and felony firearm) and picked a lesser offense to resolve the matter.
How can we seriously believe otherwise when the evidence is so clear from the victim? Either she was raped twice by a man who used a gun or nothing happened at all, i.e., she was lying. The trial judge stated that the victim had no reason to lie, and then found the defendant guilty of only an assault with intent to commit esc. To make matters worse, he found the defendant not guilty of the gun charge. If the victim is to be believed at all, defendant is guilty of two counts of csc-i plus felony firearm. There is no testimony that would justify a middle ground.
The sentence was four years probation with the last year to be spent in the county jail. Anyone with a knowledge of reality knows that this is a slap on the wrist. Traditionally, the last year is suspended if the defendant is crime-free for the first part of the sentence. Either defendant is guilty of one of the most heinous offenses known to mankind or he is guilty of nothing. In either event, the sentence is not appropriate.
There is an indication here that the trial judge with the cooperation of the prosecutor and trial counsel may have used the device of a conviction of assault in order to dispose of a difficult case. This is so because at oral argument counsel for defendant acknowledged that the trial was a charade and that he knew the result before the trial began. When attorneys disclose such facts to us at oral argument I believe we have an obligation to pursue the matter to its conclusion. The relief I propose herein is designed to that end.
Whatever occurred here, everyone was supposed *559to be happy. The prosecutor had a conviction, the victim had at least some measure of satisfaction, and the defendant was presumed by everyone to be content with an assault conviction and no substantial sentence, given the fact that he might have been convicted of a crime that carries a life sentence.
What suffers are the system of justice and society as a whole. The public interest gains nothing and loses much if a vicious rapist gets probation or if an innocent man carries the burden of any conviction at all.
Our Supreme Court has said in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980):
Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant’s release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility.
The Court also said in People v Chamblis, 395 Mich 408, 428; 236 NW2d 473 (1975):
We are convinced that the cause of justice is not well served by convicting of assault and battery a defendant charged with murder. As a matter of policy people who commit serious crimes should be *560punished for those offenses, and those who did not commit such serious crimes should not be tried for those crimes only to be found guilty of a much lower offense. In the example cited, if the most serious offense for which a jury feels conviction is justified is assault and battery, the original charge of murder appears to bear no realistic relationship to the offense committed, and no good purpose would be served by allowing such an instruction.
At some point, both the defendant and the prosecution should be able to prevent any further potential for "compromise.” [Emphasis added.]
In order for an assault conviction to be justifiable in this case the trial court would have to have found that the witness was telling the truth when she stated that the defendant made some unlawful approaches to her with a view toward having sexual intercourse but that she was lying in her testimony about actual penetration. The trial judge did not make such a finding but instead clearly stated that he believed the witness and then, without any logical or factual basis, acquitted defendant of the felony-firearm charge and picked the assault charge as a vehicle for closing the case. If this is what occurred we should not let the conviction stand. However, counsel for defendant was frank to admit at oral argument that there were off-the-record matters that he could not discuss. I do not know what such off-the-record matters may have been nor do I know from the current record whether this was a compromise verdict or a charade.
If this trial was nothing more than the acting out of a prearranged scenario where defendant or his attorney, the prosecutor and the trial court cooperated for some reason in a trial that was not a trial at all, we should consider remanding for a new trial on all charges. See Anno: Plea of guilty *561as basis of claim of double jeopardy in attempted subsequent prosecution for same offense, 75 ALR2d 683, 691, for a discussion whether a conviction by plea of guilty was, by reason of a sham proceeding, not the basis for a double jeopardy claim. See also 21 Am Jur 2d, Criminal Law, § 257, p 452-453, discussing collusive convictions or acquittals.
Since there is much in the present record that is not available to us, I would remand under MCR 7.216(A)(5) for an evidentiary hearing that would place upon the record whether any understandings or other agreements were arrived at prior to trial that would justify trial counsel’s statement to this Court that the result was known in advance. I would reserve jurisdiction and would require the parties to file supplemental briefs on the appropriate remedy to be granted by this Court in light of the transcript on remand. I would specifically direct the parties to brief the issue of double jeopardy, i.e., if this Court finds that the original trial was a sham can it remand for a new trial on all original charges? I am not prepared at this point to reverse what might have been a serious armed esc case if, in fact, defendant or his counsel participated in a charade with the cooperation of others.