People v. Nyx

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 18, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 127897

MAURICE LAMONT NYX,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

The issue in this case is whether a defendant charged with a crime that the

Legislature has divided into degrees, such as first-degree criminal sexual conduct

(CSC I), may, pursuant to MCL 768.32(1), properly be convicted of a lesser

degree of the charged offense, such as second-degree criminal sexual conduct

(CSC II), where the crime of a lesser degree contains an element not within the

charged offense of a greater degree. The Court of Appeals held that People v

Cornell1 forbids this result.

1
People v Cornell, 466 Mich 335; 646 NW2d 127 (2002).
 We agree and hold that a defendant charged with an offense consisting of

various degrees may not, consistent with MCL 768.32(1), be convicted of a lesser

degree of the charged offense where the lesser degree contains an element not

found within the higher degree. The judgment of the Court of Appeals is

affirmed.

I. FACTS AND PROCEEDINGS BELOW

Defendant was employed as the dean of a school in Detroit. A student

accused defendant of having penetrated her vagina. As a result, defendant was

charged with one count of CSC I by an actor who is in a position of authority over

the victim and uses this authority to get the victim to submit to penetration of the

vagina with a penis and the victim is at least 13 but less than 16 years of age.

MCL 750.520b(1)(b)(iii). Defendant was also charged with two counts of CSC I

by an actor who is in a position of authority over the victim and uses this authority

to get the victim to submit to penetration of the vagina with a finger and the victim

is at least 13 but less than 16 years of age. MCL 750.520b(1)(b)(iii).

The trial court presided over a bench trial. The complainant testified about

the sexual penetration. A police officer testified that when questioned, defendant

had admitted engaging in sexual contact but had denied that any penetration had

occurred. The court acquitted defendant of the CSC I charges, stating that it

“could not quite believe” the complainant’s assertion that the penetration had

2

occurred and that “sometimes kids exaggerate.”2 The court then convicted

defendant of two counts of CSC II (sexual contact for the purpose of sexual

gratification with a complainant between 13 and 15 years of age). MCL

750.520c(1)(b)(iii).

Defendant appealed in the Court of Appeals, arguing that the trial court was

without authority to consider the cognate lesser offense of CSC II. The prosecutor

argued that MCL 768.32(1) authorized the trial court to convict defendant of CSC

II, after having acquitted him of CSC I, because CSC is a crime divided into

degrees. The Court of Appeals agreed with defendant, determining that the

prohibition in Cornell, supra, against considering cognate lesser offenses had been

violated.3 The CSC II convictions were vacated, and the case was remanded for

the entry of an order of discharge.

We granted the prosecutor’s application for leave to appeal.4

II. STANDARD OF REVIEW

2
But, at a remand hearing held months later, the court puzzlingly stated on
the record that that the prosecutor had shown CSC I, that the court “believed every
word she [the complaint] said,” and that the court had hoped that by giving
defendant a break he would not have to go to prison. Defendant was, however,
sentenced to concurrent prison terms of 3 to 15 years of imprisonment for his CSC
II convictions.
3
Unpublished opinion per curiam, issued January 13, 2005 (Docket No.
248094).

3

 Whether MCL 768.32(1) permits a defendant to be convicted of an offense

of a lesser degree that contains an element not found within the charged offense of

a higher degree is a question of statutory interpretation that we review de novo.5

When interpreting statutes, our goal is to give effect to the intent of the Legislature

by applying the plain language of the statute.6

III. ANALYSIS

MCL 768.32(1) provides:

Except as provided in subsection (2),[7] upon an indictment
for an offense, consisting of different degrees, as prescribed in this
chapter, the jury, or the judge in a trial without a jury, may find the
accused not guilty of the offense in the degree charged in the
indictment and may find the accused person guilty of a degree of
that offense inferior to that charged in the indictment, or of an
attempt to commit that offense.

Pursuant to this language, when a defendant is charged with an offense

“consisting of different degrees,” the fact-finder may acquit the defendant of the

charged offense and find the defendant “guilty of a degree of that offense inferior

to that charged in the indictment . . . .”

(…continued)
4
474 Mich 1099 (2006).
5
People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005).
6
People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
7
Subsection 2 provides different rules regarding lesser included offenses
when a defendant is charged with a major controlled substance offense.

4

 There is no dispute that criminal sexual conduct is a crime the Legislature

has divided into degrees. There is first-degree criminal sexual conduct,8 second-

degree criminal sexual conduct,9 third-degree criminal sexual conduct (CSC III),10

and fourth-degree criminal sexual conduct (CSC IV).11 The elements of CSC II

are not all subsumed within CSC I. While the prosecutor need not show the that

perpetrator of a sexual penetration had any particular criminal intent in order to

obtain a conviction of CSC I, MCL 750.520a(p), CSC II requires proof of one of

several intents that are not always present when CSC I is committed.12 Thus, CSC

8
MCL 750.520b. CSC I is a felony punishable by imprisonment for life or
any term of years. MCL 750.520b(2). A defendant convicted of CSC I may not
be sentenced to probation. MCL 777.1
9
MCL 750.520c. CSC II is a felony punishable by imprisonment for not
more than 15 years. MCL 750.520c(2). A defendant convicted of CSC II is
eligible for a probationary sentence. MCL 777.1
10
MCL 750.520d. CSC III is a felony punishable by imprisonment for not
more than 15 years. MCL 750.520d(2). A defendant convicted of CSC III may
not be sentenced to probation. MCL 777.1.
11
MCL 750.520e. CSC IV is a misdemeanor punishable by not more than
two years of imprisonment. MCL 750.520e(2). A defendant convicted of CSC IV
is eligible for a probationary sentence. MCL 777.1.
12
“Sexual contact” is statutorily defined to mean the intentional touching of
the victim’s or actor’s intimate parts or the intentional touching of the clothing
covering the immediate area of the victim’s or actor’s intimate parts, if that
intentional touching can reasonably be construed as being for the purpose of
sexual arousal or gratification, done for a sexual purpose, or in a sexual manner
for revenge, or to inflict humiliation, or out of anger. MCL 750.520a(o)

5

II is not a necessarily included lesser offense of CSC I.13 Rather, it is a cognate

lesser offense.14

The only question in the case at bar is whether CSC II, even though it is not

a necessarily included lesser offense of CSC I, is still “inferior” to CSC I.

As early as 1861, this Court pointed out in People v McDonald15 that “It is

a general rule of criminal law, that a jury may acquit of the principal charge, and

find the prisoner guilty of an offense of lesser grade, if contained within it.”16

13
Lesser offenses are divided into necessarily included lesser offenses and
cognate lesser offenses. An offense is considered a necessarily included lesser
offense if it is impossible to commit the greater offense without first having
committed the lesser offense. Cornell, supra at 345.
14
A cognate lesser offense is one that shares elements with the charged
offense but contains at least one element not found in the higher offense. Cornell,
supra at 345. We have found that CSC II is a cognate lesser offense of CSC I. In
People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997), we held that
because CSC II requires proof of an intent not required by CSC I,
that defendant intended to seek sexual arousal or gratification, CSC
II is a cognate lesser offense of CSC I. In short, it is possible to
commit CSC I without first having committed CSC II.
We note that following the Lemons decision the CSC II statute was
amended to add three other possible intents that would prove a CSC II, namely, an
intentional touching “in a sexual manner for revenge, or to inflict humiliation or
out of anger.” See n 12 of this opinion.
15
People v McDonald, 9 Mich 149, 152 (1861) (emphasis added).
16
This is consistent with the United States Supreme Court’s statement in
Schmuck v United States, 489 US 705, 717-718; 109 S Ct 1443; 103 L Ed 2d 734
(1989), that it is an ancient doctrine of the common law that a defendant cannot be
held to answer a charge not contained in the indictment brought against the
defendant.

6

Then, in 1869, in Hanna v People17 this Court considered the similarly worded

predecessor of MCL 768.32(1) and held that the statute should “be construed as

extending to all cases in which the statute has substantially, or in effect,

recognized and provided for the punishment of offenses of different grades, or

degrees of enormity, wherever the charge for the higher grade includes a charge

for the less.” Hanna, supra at 321 (emphasis added).

In 2002, in Cornell, we overruled earlier cases that had allowed instructions

on cognate lesser offenses and returned to the construction of the statute that had

been given in Hanna and in Justice Coleman’s dissent in People v Jones.18 In

summarizing Justice Coleman’s dissent in Jones, we noted that Justice Coleman

construed MCL 768.32 to only permit consideration of “necessarily included

lesser offenses.” Cornell, supra at 347. The Cornell Court, id. at 354, also cited

with approval the following language from People v Torres (On Remand):19

We believe that the word “inferior” in the statute does not
refer to inferiority in the penalty associated with the offense, but,
rather, to the absence of an element that distinguishes the charged
offense from the lesser offense. The controlling factor is whether the
lesser offense can be proved by the same facts that are used to
establish the charged offense. [Emphasis added.]

17
Hanna v People, 19 Mich 315, 320-321 (1869).

18
People v Jones, 395 Mich 379; 236 NW2d 461 (1975).

19
People v Torres (On Remand), 222 Mich App 411, 419-420; 564 NW2d

149 (1997).

7

Thus, Cornell construed MCL 768.32(1) as limiting convictions of lesser offenses

to those that are “necessarily included” lesser offenses. Cornell, supra at 356 n 9,

359.

We have made similar statements in subsequent cases. In People v

Mendoza,20 we stated:

We are confident that we applied the appropriate canon of
statutory construction in construing MCL 768.32 by giving “inferior
offense” its common-law meaning when it was codified by the
Legislature.
The Mendoza Court also stated:

[W]e held [in Cornell] that an inferior-offense instruction is
appropriate only if the lesser offense is necessarily included in the
greater offense, meaning, all the elements of the lesser offense are
included in the greater offense, and a rational view of the evidence
would support such an instruction. [Id. at 533 (emphasis added).]
The Mendoza Court went on to conclude:

[T]he elements of voluntary and involuntary manslaughter are
included in the elements of murder. Thus, both forms of
manslaughter are necessarily included lesser offenses of murder.
Because voluntary and involuntary manslaughter are necessarily
included lesser offenses, they are also “inferior” offenses within the
scope of MCL 768.32. [Id. at 541 (emphasis added).]
Similarly, in People v Nickens,21 we unanimously reiterated the

Cornell/Mendoza construction of MCL 768.32(1), stating:

20
People v Mendoza, 468 Mich 527, 532 n 2; 664 NW2d 685(2003).
21
People v Nickens, 470 Mich 622, 626; 685 NW2d 657 (2004). In
Nickens, supra at 624, we held that assault with intent to commit CSC involving
sexual penetration, MCL 750.520g(1), was a necessarily included lesser offense of
CSC I, conduct involving personal injury and the use of force or coercion to
accomplish sexual penetration. MCL 750.520b(1)(f).

8

 In Cornell, supra at 357, this Court held that, under MCL
768.32, a lesser offense instruction is appropriate only if the lesser
offense is necessarily included in the greater offense. “Necessarily
included lesser offenses are offenses in which the elements of the
lesser offense are completely subsumed in the greater offense.”
Mendoza, supra at 532 n 3.

Consistently with McDonald, Hanna, Torres, Cornell, Mendoza, and

Nickens, we hold that MCL 768.32(1) precludes a judge or a jury from convicting

a defendant of a cognate lesser offense even if the crime is divided into degrees.

We do this because the word “inferior” in MCL 768.32(1) is best understood as

meaning an offense that is necessarily included in the greater charge.

To reiterate, MCL 768.32(1) requires the lesser offense to be inferior to the

charged offense, and an offense is only inferior when all the elements of the lesser

offense are included within the greater offense. Thus, even if the crime is divided

by the Legislature into degrees, the offense of a lesser degree cannot be considered

under MCL 768.32(1) unless it is inferior, i.e., is within a subset of the elements of

the charged greater offense. Given that all the elements of CSC II are not included

within CSC I, the trial court was without authority to convict defendant of CSC II

after it acquitted him of CSC I. Thus, the Court of Appeals properly vacated

defendant’s convictions and remanded the case for the entry of an order of

discharge.

The prosecution would have us interpret MCL 768.32(1) as forbidding

instructions on cognate lesser offenses except when the Legislature has divided a

9

crime into degrees.22 We reject this argument for a variety of reasons. First, it is

contrary to over 130 years of caselaw construing the word “inferior” to mean only

lesser crimes that are subsumed within the greater crime, and would require us to

overrule numerous cases where we have so held. Also, it would return Michigan

to an era when instructions on cognate lesser offenses were given. Cornell ended

that era.

It is true that the prosecutor’s construction would only allow cognate lesser

offense instructions in cases where the Legislature has divided crimes into

degrees. But there are many crimes that have been so divided by the Legislature.

The list includes, at least, murder,23 CSC,24 home invasion,25 child abuse,26

vulnerable adult abuse,27 retail fraud,28 fleeing and eluding,29 and money

laundering.30 Thus, if we were to adopt the position of the prosecution, we would

have a situation in which instructions on cognate lesser offenses are not allowed

22
We note that in Mendoza, supra at 533 n 5, we rejected the suggestion
that our construction of MCL 768.32(1) in Cornell, that inferior offenses were
limited to necessarily included lesser offenses, was dictum.
23
MCL 750.316; MCL 750.317.

24
MCL 750.520b through MCL 750.520e.

25
MCL 750.110a.

26
MCL 750.136b.

27
MCL 750.145n.

28
MCL 750.356c; MCL 750.356d.

29
MCL 750.479a.

30
MCL 750.411l through MCL 750.411o.

10

except in cases where a defendant is charged with any degree of murder, CSC,

home invasion, child abuse, vulnerable adult abuse, retail fraud, fleeing and

eluding, and money laundering other than the lowest degree of such offense.31 We

are persuaded that the bright-line rule of Cornell, which simply precludes

conviction of cognate lesser offenses no matter the charge, is consistent with MCL

768.32(1) and is thus preferable.

Further, given that cognate lesser offenses contain at least one element not

contained within the greater charge, there would be a due process concern if the

prosecution’s approach were adopted because defendants are entitled to know the

charges against them.

In Schmuck v United States,32 the United States Supreme Court stated:

It is ancient doctrine of both the common law and of our
Constitution that a defendant cannot be held to answer a charge not
contained in the indictment brought against him. This stricture is
based at least in part on the right of the defendant to notice of the
charge brought against him. Were the prosecutor able to request an
instruction on an offense whose elements were not charged in the
indictment, this right to notice would be placed in jeopardy.
[Citations omitted.]

In general, when a defendant is bound over on a “degreed” offense, the

defendant is informed of the nature of the charges against him or her and of the

31
We recognize that a cognate lesser offense may not exist for each of
these formally degreed offenses. But, where they do exist, Justice Corrigan’s view
would wrongfully allow conviction of an offense that is not “inferior” to the crime
charged.

11

elements that the prosecutor must prove beyond a reasonable doubt in order to

obtain a conviction. If the prosecutor is allowed to seek a jury instruction on a

cognate lesser offense, the prosecutor would essentially be asking the jury to

convict the defendant on the basis of an element or elements against which the

defendant did not have notice that he or she would be required to defend. As

applied to this case, when defendant was bound over on the charges of CSC I, he

was notified that the prosecutor had to prove beyond a reasonable doubt that he

had engaged in sexual penetration with the victim. But the information did not

serve to notify defendant that he was also subject to conviction of the cognate

lesser offense of sexually touching the victim for the purpose of sexual arousal or

gratification.

Thus, the adoption of the prosecutor’s interpretation of the statute would

render the statute subject to constitutional challenge. When there are two possible

interpretations of a statute, by one of which it would be constitutional and by the

other it would be constitutionally suspect, it is our duty to adopt the one that will

save the statute.33 Moreover, “[a] statute must be construed, if fairly possible, so

as to avoid not only the conclusion that it is unconstitutional but also grave doubts

(…continued)
32
Schmuck v United States, 489 US 705, 717-718; 109 S Ct 1443; 103 L
Ed 2d 734 (1989).
33
Blodgett v Holden, 275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927).

12

upon that score.”34 We avoid such constitutional problems in this case by relying

on a definition of a lesser “inferior” offense that has been recognized in our

caselaw for over 130 years.

Given that a conviction of CSC II involves proof of an element that is not

contained within an indictment of CSC I, there is a serious question whether the

prosecutor’s interpretation would render MCL 768.32(1) unconstitutional; but the

interpretation that we reiterate today, which is consistent with over 130 years of

caselaw, precludes any due process concern. Finally, the cognate regime ended by

Cornell returned the charging power to the executive branch. This is as it should

be and is consistent with this Court’s longstanding separation of powers concerns

in criminal charging matters.35 See, e.g., Genesee Prosecutor v Genesee Circuit

Judge, 386 Mich 672; 194 NW2d 693 (1972).36

IV. THE ERROR WAS NOT HARMLESS

34
United States v Jin Fuey Moy, 241 US 394, 401; 36 S Ct 658; 60 L Ed
1061 (1916), citing United States ex rel Attorney General v Delaware & Hudson
Co, 213 US 366, 408; 29 S Ct 527; 53 L Ed 836 (1909).
35
In her dissent in People v Jones, Justice Coleman pointed out that the
prosecutor determines the initial charge and allowing the defendant to have an
instruction regarding a cognate lesser offense could infringe “the prosecutor’s
right to decide what crime is to be charged.” Jones, supra at 400 (Coleman, J.,
dissenting).
36
See also People v Perry, 460 Mich 55, 63 n 19; 594 NW2d 477 (1999):
[T]he defendant has a right to notice of the charge, while the
prosecutor has the right to select the charge and avoid verdicts on
extraneous lesser offenses preferred by the defendant.

13

 We reject any suggestion that the error that occurred here was harmless.

When defendant went to trial, People v Lemons had held that CSC II was a

cognate lesser offense of CSC I and People v Cornell had held that MCL

768.32(1) forbids consideration of cognate lesser offenses. Given this case law,

the error was plain and we conclude that it seriously affected the “fairness,

integrity or public reputation of judicial proceedings.” People v Carines, 460

Mich 750, 763; 597 NW2d 130 (1999).

Defense counsel waived a jury, cross-examined witnesses, called a witness

of his own, and made his closing argument in defense of a charge that defendant

had sexually penetrated the complainant, i.e., CSC I. Given that controlling

caselaw had established that it was improper to consider cognate lesser offenses

and that CSC II was a cognate lesser offense of CSC I, it is not too surprising that

defense counsel did not object to a police officer’s testimony that defendant had

admitted a touching. Neither the prosecutor nor defense counsel asked the court to

consider convicting defendant of CSC II. That is, the case was submitted to the

court as an all-or-nothing case.

In rendering its verdict, the trial court acquitted defendant of CSC I. Thus,

defense counsel was successful in obtaining an acquittal of the charged offense.37

37
The trial court’s subsequent comments at a later hearing that it actually
did believe the complainant’s testimony regarding penetration are, of course,
without legal consequence and only serve to reflect poorly on the judge’s initial
verdict.

14

But the trial court sua sponte went on to convict defendant of two counts of the

separate, uncharged offense of CSC II, citing police testimony that defendant had

admitted sexual contact with the victim. Had defense counsel known that the trial

court was going to consider the uncharged cognate lesser offense of CSC II as a

possible verdict, defense counsel might have requested a new preliminary

examination, and he may have adopted a different strategy at trial,38 including, at

least, objecting to the police officer’s testimony regarding his alleged admission of

a sexual touching.39 Indeed, if defendant knew he might be convicted of CSC II,

defense counsel may not have withdrawn his motion to suppress evidence of the

statement or for a Walker40 hearing just before the trial began.

38
As was stated in People v Adams, 202 Mich App 385, 391; 509 NW2d
530 (1993), where offenses have different elements
the defendant may well prepare his defense, including the cross-
examination of prosecution witnesses, in an entirely different
manner for the lesser offense than he would for the greater offense.
However, once the trial is completed . . . it is . . . impossible . . . for
the defendant to adjust his trial strategy to encompass the newly
added offense.
39
Justice Young argues in his partial dissent that defense counsel actually
challenged the confession. Post at 12. While defense counsel challenged whether
a confession of sexual touching was made in his closing argument, he did not
object when the police officer testified that defendant had made such an
admission.
40
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Justice Young argues in his partial dissent that there is a complete dearth of
coercion or involuntariness. Post at 13. This is not too surprising given that no
hearing was held. Indeed, if the motion to suppress the defendant’s statement was
denied and he was told he was also facing conviction for CSC II, he may well
have sought a plea bargain.

15

 It is also the case that defendant may not have waived a jury trial if he had

known that a conviction of CSC II was going to be a considered as a permissible

verdict.41 It is impossible for the prosecutor to prove that, in an alternative trial

where defendant was provided with notice defendant still would have been

convicted of CSC II.42 Accordingly, the trial court’s improper consideration of a

cognate lesser offense after its failure to inform defendant that he might be subject

to conviction for CSC II cannot be deemed harmless.

V. RESPONSE TO JUSTICE CORRIGAN’S DISSENT

Justice Corrigan believes the word “inferior” in MCL 768.32(1) only refers

to necessarily included lesser offenses if the charged offense is not a formally

degreed offense. We, in contrast, conclude that the word “inferior” in MCL

768.32(1) has the same meaning, i.e., all the elements of the lesser offense are

included in the greater offense, no matter the charge. As previously set forth, case

after case, starting with McDonald all the way through Nickens, have indicated

that a lesser crime was not “inferior” unless it was contained within the higher

41
Justice Corrigan asserts in her dissent that defense counsel likely waived
the right to a jury in hopes that the trial court would convict defendant of a lesser
charge. Post at 22 n 8. While we are sure this does happen in some cases, we find
it significant that defense counsel did not argue, even in the alternative, for the
court to convict defendant of a lesser offense if it was not going to acquit the
defendant of CSC I.
42
Justice Corrigan argues in her dissent that a rational view of the evidence
supported the CSC II convictions. Post at 23. While this is true, it is irrelevant
because defendant had no notice that such a verdict would be permissible given
that he was charged with CSC I.

16

charged offense. Justice Corrigan accuses the majority of giving the word

“inferior” a “hidden, counterintuitive meaning.” Post at 7. But we have simply

given it the meaning found in case after case after case. Indeed, Justice Corrigan

has not cited, and cannot cite, a single case where this Court held that pursuant to

MCL 768.32(1) a cognate lesser offense was “inferior” to a higher charged

offense.43 Justice Corrigan further claims that Hanna and Cornell “simply

presumed that formally degreed offenses were within the scope of the statute.”

43
Justice Corrigan does point out that, before 1980, second-degree murder
contained an element not contained within first-degree felony murder, and argues
from this that notice would have been a problem under our analysis. Post at 7.
First, in our past jurisprudence, it typically was the defendant who requested a jury
instruction regarding a cognate lesser included offense. And even on those
occasions when a prosecutor requested an instruction regarding a cognate lesser
included offense, the defendant frequently did not object because being convicted
of the cognate offense (e.g., second-degree murder) was preferable to being
convicted of the charged offense (e.g., first-degree felony murder). Second,
before 1980, this Court’s caselaw allowed jury instructions regarding cognate
lesser included offenses. Thus, defendants were on notice that such an instruction
might be given and there was no notice problem. In contrast, the case at bar was
tried after Cornell forbade the giving of cognate lesser offense jury instructions.
Defendant had every right to expect his trial to be conducted consistently with
Cornell. Indeed, if defendant had feared a conviction of CSC I and requested the
court to consider convicting him of CSC II, the prosecutor would have had every
right to object and ask the court to comply with Cornell by only considering the
charged offense of CSC I. If defense counsel had requested the court to consider
convicting defendant of CSC II as a lesser offense, defendant would not be
entitled to relief pursuant to the “invited error” doctrine. As we explained in
People v Jones, 468 Mich 345, 352 n 6; 662 NW2d 376 (2003), a party cannot
seek appellate review of an instruction that the party itself requested. Appellate
review is precluded because when a party invites the error, the party waives the
right to seek appellate review, and any error is extinguished. Id.
(continued…)

17

Post at 5 (emphasis omitted). We cannot agree. Given that some lesser degreed

offenses are cognate lesser offenses containing an element not included within the

higher charge, the language of the Court in Hanna and Cornell actually suggests

that the Court did not consider such cognate lesser offenses to be “inferior.”44

Justice Corrigan correctly asserts that CSC II, III, and IV “carry less severe

maximum punishments,” post at 2, than CSC I. She argues from this that CSC II,

III, and IV are thus automatically “inferior” to CSC I. However, Justice Corrigan

neglects to consider the fact that, under her analysis, CSC III is an inferior offense

to CSC II. Yet, both CSC II and CSC III carry the same penalty—a 15-year

maximum sentence. It is also the case that a defendant convicted of CSC II is

eligible for probation, whereas a defendant convicted of CSC III is precluded from

receiving a probationary sentence. Thus, one cannot legitimately claim that CSC

III is an inferior offense to CSC II on the basis of the sentencing consequences of

a conviction. Moreover, even though CSC II, III, and IV carry less severe

maximum sentences than CSC I, this does not prove that they are inferior offenses

to CSC I, given that in Cornell we specifically indicated that the word “inferior” in

(…continued)
We do note that the prosecution could have avoided the problem this appeal
presents if it had simply charged defendant in the alternative with CSC I and CSC
II.
44
As stated in Hanna, the statute applies “wherever the charge for the
higher grade includes a charge for the less.” Hanna, supra at 321. As stated in
Cornell, supra at 347, MCL 768.32 only permits consideration of “necessarily
included lesser offenses.”

18

the statute does not refer to inferiority in the penalty associated with the offense

but, rather, to the absence of an element that distinguishes the charged offense

from the lesser offense. Cornell, supra at 354.45

In her dissent, Justice Corrigan, post at 15 n 4, attempts to distinguish the

United States Supreme Court opinion in Schmuck, stating that the case did not

address formally degreed inferior offenses and did not hold that the constitution

mandates the test set forth in FR Crim P 31(c). We find the cited language from

Schmuck fully applicable.46 The Court said it was “ancient doctrine of both the

45
Justice Corrigan asserts, post at 27, that the sensible rule that Cornell
restored to Michigan is “being upset.” To the contrary, one of the rules of Cornell
was that no cognate lesser offense instructions could be given. It is Justice
Corrigan who would blur this bright-line rule and allow cognate lesser offense
instructions whenever a defendant is charged with one of the many degreed
offenses. Justice Corrigan further complains, post at 26, that prosecutors will now
be forced to charge defendants in the alternative whenever they wish a fact-finder
to be able to convict a defendant of a cognate lesser offense of a degreed offense.
We do not see this as a negative development because it provides notice to a
defendant of the crimes of which he may be convicted.
46
Justice Corrigan cites Hopkins v Reeves, 524 US 88; 118 S Ct 1895; 141
L Ed 2d 76 (1998), for the proposition that some states use the cognate evidence
test for lesser included offense instructions. Post at 15 n 4. This, of course, is true
and used to be true in Michigan. But this does not take away from the fact that a
defendant is constitutionally entitled to notice of the crime with which he or she is
charged. Indeed, Hopkins actually supports our opinion because it specifically
states that it is a “distortion” to allow a defendant to be convicted of a cognate
offense because it would allow the jury to find a defendant guilty of elements the
state had not attempted to prove. Id. at 99. Such a “distortion” occurred in this
case. Justice Corrigan also cites Paterno v Lyons, 334 US 314; 68 S Ct 1044; 92
L Ed 1409 (1948). In that case the defendant was charged with receiving stolen
property. Five months later he pleaded guilty of attempted larceny. Years later
the defendant argued that because attempted larceny was not a necessarily
included lesser offense of receiving stolen property, he did not have constitutional
(continued…)

19

common law and of our Constitution that a defendant cannot be held to answer a

charge not contained in the indictment brought against him.” Schmuck, supra at

717.47 Thus, it is clear the Court did rely on the constitution, and, in actuality, it

did address formally degreed inferior offenses to the extent they might contain an

element not in the charged offense by stating that a defendant could not be held to

answer for such a lesser charge without violating the common law and the

constitution. Moreover, we indicated in Cornell, supra at 356, n 9 that “[w]hile

MCL 768.32 does not use the same phrasing as FR Crim P 31(c), which refers to

‘an offense necessarily included in the offense charged,’ as we have already

explained, the wording of MCL 768.32 also limits consideration of lesser offenses

to necessarily included lesser offenses.”

Justice Corrigan also accuses the majority of invoking the constitutional

avoidance doctrine without first identifying an ambiguity in the statute. Post at

13. Our caselaw has interpreted “inferior” to mean included within the higher

charged offense for over 130 years, whereas Justice Corrigan would interpret

“inferior” to mean an offense with a lesser number only, even if the lesser

(…continued)
notice. Not surprisingly, the United States Supreme Court found that the
defendant had sufficient notice of the crime to which he pleaded guilty. The
situation in the case at bar is far different. Indeed, if defendant, after having been
charged with CSC I, had later pleaded guilty of CSC II then argued that he did not
have sufficient notice of the CSC II charge, his claim would be summarily
rejected.

20

numbered offense contains an element not within the charged offense. Surely,

there is no error in the majority’s pointing out that the dissent’s interpretation of

the statute would render it unconstitutional and that this is an additional reason

supporting the majority’s decision to maintain the interpretation of the statute that

has prevailed for 130 years.

Justice Corrigan asserts that there is no “constitutional dilemma,” post at 1.

But even the prosecution, while arguing that this is not such a case, acknowledges

in its brief that “given the modern rise of complex offenses with multiple

alternative elements, it is possible for due process to be raised in a given

case . . . .” Moreover, we noted with approval in Cornell, supra at 346, that one of

Justice Coleman’s concerns with giving jury instructions for cognate lesser

offenses was that it threatens a defendant’s due process rights. Thus, it is wholly

inaccurate for the dissent to deny that a constitutional problem exists.”

Justice Corrigan cites two foreign cases, Salinas v United States48 and State

v Foster,49 for the proposition that a defendant may be convicted of a lesser

degreed offense without violating a defendant’s constitutional right to notice.

Neither case supports the dissent.

(…continued)
47
Justice Corrigan effectively reads the words “except when a defendant is
charged with a degreed offense” into the Supreme Court’s words.
48
Salinas v United States, 277 F2d 914 (CA 9, 1960).
49
State v Foster, 91 Wash 2d 466; 589 P2d 789 (1979).

21

 In Salinas, the defendant was charged with arson in the first degree and

convicted of arson in the second degree. In rendering its opinion, the Salinas

court first reiterated that an information or indictment must contain an averment of

every essential element of the crime with which a defendant is charged in order

that he or she may prepare his or her defense. As applicable here, it is without

contest that the information did not allege that defendant had contact with the

victim’s groin “for the purpose of sexual gratification” as the trial court concluded.

Next, the Salinas court indicated that first- and second-degree arson denounce

“but one crime” and that “an indictment charging the more aggravated degree

necessarily contains all of the elements of the lower degree.” Salinas, supra at

918. Indeed, the Salinas court stated that it could not perceive how one could

commit first-degree arson without having committed second-degree arson. The

case at bar is dissimilar because all agree that it is possible to commit CSC I

without having committed CSC II.

In State v Foster the defendant was charged with first-degree assault but the

jury convicted him of second-degree assault. The Foster court, stating that it was

following the Salinas court, indicated that it viewed assault as “one offense” and

that the two crimes are not “separate and distinct” from one another.” Foster,

supra at 472. This is a different situation from the case at bar because CSC I and

CSC II are not but one crime and, while some of their elements overlap, the crimes

are properly viewed as separate and distinct.

22

 Finally, Justice Corrigan, post at 9-13, posits that, notwithstanding the

contrary holding in People v Lemons, CSC II may not be a cognate lesser offense

of CSC I, i.e., it may be a necessarily included lesser offense. Justice Corrigan

notes that Lemons was decided before Cornell and before People v Tombs, 472

Mich 446; 697 NW2d 494 (2005).50 Justice Corrigan, post at 10, asserts that these

“major adjustments” in our lesser included offense jurisprudence warrant at least a

reexamination of the pre-Cornell analysis in Lemons. The dissent also notes that

before Lemons was decided, the Court of Appeals had held in three cases that CSC

II was a necessarily included lesser offense of CSC I.51

First, we note that the prosecutor has not made this argument. Second, the

subset of elements test for determining whether an offense is a necessarily

included lesser offense or a cognate lesser offense has not changed and was not

affected in any way by Cornell.52

50
In Tombs, this Court recognized the longstanding principle that a
criminal statute is presumed to include a criminal intent or mens rea, absent an
express or implied indication that the Legislature wanted to dispense with it. Id. at
456-457 (opinion by Kelly, J.), 466 (opinion by Taylor, C.J.). This rule is
presumed because otherwise innocent conduct would be criminalized.
51
Justice Corrigan, however, neglects to note that in at least three other
cases the Court of Appeals had held that CSC II was a cognate lesser offense of
CSC I. See, e.g., People v Wilhelm (On Rehearing), 190 Mich App 574, 577; 476
NW 2d 753 (1991), People v Norman, 184 Mich App 255, 259-260; 457 NW2d
136 (1990), and People v Garrow, 99 Mich App 834; 298 NW2d 627 (1980).
Needless to say, the cases cited by Justice Corrigan were overruled by Lemons.
52
As noted in footnotes 13-14 of this opinion, an offense is considered a
necessarily included lesser offense if it is impossible to commit the greater offense
without first having committed the lesser offense, whereas a cognate lesser offense
(continued…)

23

 Justice Corrigan argues that Tombs modified the intent that must be proven

for a conviction of CSC I. It is noted that Lemons states that the sexual

penetration necessary for a conviction of CSC I “can be for any purpose.” Justice

Corrigan asserts that, now that Tombs requires the showing of a criminal intent,

the broader criminal intent requirement of CSC I required by Tombs “plainly

includes the narrower intent required for CSC II.” Post at 10.

Assuming, without deciding, that the Legislature did not include any

express or implied indication that it wanted to dispense with a criminal intent

requirement for all the ways that CSC I may be committed,53 we are unpersuaded

that CSC II is actually a necessarily included lesser offense of CSC I rather than a

cognate lesser offense.54

Lemons indicated that the sexual penetration necessary for a conviction of

CSC I “can be for any purpose.” We take this to mean that the prosecution need

(…continued)

is one that shares elements with the charged offense but contains at least one

element not found in the higher offense. Cornell, supra at 345.

53
As explained more fully in Justice Markman’s concurrence, sometimes
CSC I is in fact a strict liability offense. People v Cash, 419 Mich 230, 240; 351
NW2d 822 (1984) (reasonable mistake of age is not a defense to a charge of
having sex with a minor). This fact alone shows that CSC II is not a necessarily
included lesser offense of CSC I because CSC II always requires proof of a
general criminal intent. Thus, it is possible to commit CSC I without having
committed CSC II. Neither Justice Corrigan nor Justice Young deals with this
fact.
54
We note that Justice Corrigan, Justice Young, and Justice Weaver would
overrule People v Lemons (an opinion authored by Justice Boyle and decided
(continued…)

24

not prove a particular purpose. In any event, the question is whether the elements

of CSC II are “completely subsumed” in the greater offense of CSC I, Mendoza,

supra at 532 n 3, that is, whether it is impossible to commit CSC I without having

committed CSC II. People v Nickens, 470 Mich 622, 633 n 8; 685 NW2d 657

(2004).

As previously indicated, CSC II can be proven by showing one of several

intents: intentional touching of intimate parts that can reasonably be construed as

being for the purpose of sexual arousal or gratification, done for a sexual purpose,

or in a sexual manner for revenge, or to inflict humiliation, or out of anger. MCL

750.520a(o).

MCL 750.520b provides that “[a] person is guilty of criminal sexual

conduct in the first degree if he or she engages in sexual penetration” and “sexual

penetration” is statutorily defined to mean sexual intercourse, cunnilingus, fellatio,

anal intercourse, or any other intrusion, however slight, of any part of a person’s

body or of any object into the genital or anal openings of another person’s body,

MCL 750.520a(p).

We are satisfied that a defendant perpetrating a sexual penetration

punishable by the CSC I statute could have a criminal/non-innocent intent that

could not reasonably be construed as coming within one of the intents listed in the

(…continued)

unanimously) without any argument or briefing from the prosecution that it was

(continued…)

25

CSC II statute.55 That is, the limited number of specific intents that establish a

CSC II are not the only criminal/non-innocent intents that exist that could support

a conviction of CSC I. Although one of the criminal intents necessary for a

conviction of CSC II will frequently be present when a sexual penetration occurs,

one of those intents will not always be present. Other criminal/non-innocent

intents can be present. Thus, it is possible to commit CSC I without first having

committed CSC II, and the elements of CSC II are not “completely subsumed” in

the greater offense of CSC I. Accordingly, CSC II is properly considered a

cognate lesser offense of CSC I.

VI. CONCLUSION

(…continued)
wrongly decided.
55
The following types of situations would appear to constitute CSC I
without reasonably being construed as an act involving one of the CSC II intents.
A defendant who, because of a sadistic personality or a perverse curiosity,
penetrates a stranger’s rectum with an object. The intent to do this, however
characterized, could hardly be reasonably construed as an act done for the purpose
of sexual arousal or gratification, or for revenge, or to inflict humiliation, or out of
anger. Or, should a man, to avoid child support, attempt to induce a miscarriage
of the child borne by his girlfriend by penetration of her womb through her vagina
with a sharp object, his intent would be financial and his behavior could not
reasonably be construed as an act done for the purpose of sexual arousal or
gratification, or for revenge, or to inflict humiliation, or out of anger. Finally, if a
prisoner assaults another inmate by sticking his or her finger up the other inmate’s
rectum because the victim was rumored to have smuggled narcotics into the prison
in his or her rectum, such a defendant’s behavior could hardly be reasonably
construed as an act done for the purpose of sexual arousal or gratification, or for
revenge, or to inflict humiliation, or out of anger. These examples, while
admittedly unpleasant, and perhaps even bizarre, make the point that it is possible
to commit a CSC I without having necessarily committed a CSC II.

26

 For the reasons we stated, we hold that MCL 768.32(1) does not allow a

defendant to be convicted of cognate lesser offenses even when the Legislature

has divided the crime into degrees. The Court of Appeals judgment is affirmed,

and the case is remanded to the trial court for an order of discharge.

Clifford W. Taylor
Stephen J. Markman

27

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 127897

MAURICE LAMONT NYX,

Defendant-Appellee.

_______________________________

MARKMAN, J. (concurring).

I concur fully with the lead opinion, but write separately to articulate why

the rule proposed in Justice Corrigan’s dissent is particularly unfair in the context

of the criminal sexual conduct (CSC) statutes, which are at issue in this case.

Generally, a “degreed” offense criminalizes a single act and defines the

maximum punishment for that act on the basis of the circumstances underlying its

commission. For example, the home invasion statute criminalizes the act of

breaking and entering a dwelling or entering a dwelling without permission.

However, a defendant’s maximum term of incarceration is determined by the

circumstances surrounding the commission of that act. Thus, a defendant who

intends to commit or actually commits a felony while engaged in that criminal act

is guilty of first-degree home invasion and subject to a statutory maximum

sentence of 20 years in prison. MCL 750.110a(2) and (5). A defendant who
intends to commit or actually commits a misdemeanor while engaged in that same

criminal act is guilty of third-degree home invasion and is subject to a maximum

penalty of 5 years in prison. MCL 750.110a(4) and (7). However, in either case, a

defendant charged with home invasion is on notice that he or she has been charged

with a single criminal act-- breaking and entering or entering without permission--

and that his or her term of incarceration will be determined by the circumstances

surrounding the commission of that act.

In contrast, the CSC statutes are unique among the “degreed” offenses

because they apply to related, but distinct, criminal sexual acts-- criminal sexual

penetration and criminal sexual contact. In order to obtain a conviction for first-

degree CSC (CSC-I) or third-degree CSC (CSC-III), the prosecutor must prove

that the defendant engaged in “sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body

or of any object into the genital or anal openings of another person’s body,” MCL

750.520a(p), under one of a variety of circumstances. MCL 750.520b(1) and

750.520d(1). Thus, the relationship between CSC-I and CSC-III is exactly the

same as the relationship between other “degreed” offenses, such as home invasion.

A defendant charged with CSC-I or CSC-III has notice that he or she is being

charged with a single criminal offense-- sexual penetration-- and that the potential

term of incarceration will be determined on the basis of the circumstances

surrounding the commission of that offense. However, in order to obtain a

conviction for second-degree CSC (CSC-II) or fourth-degree CSC (CSC-IV), the

2

prosecutor must prove that the defendant engaged in the conduct that involved

“intentional touching of the victim’s or actor’s intimate parts or the intentional

touching of the clothing covering the immediate area of the victim’s or actor’s

intimate parts, if that intentional touching can reasonably be construed as being for

the purpose of sexual arousal or gratification, done for a sexual purpose, or in a

sexual manner for: (i) [r]evenge[,] (ii) [t]o inflict humiliation [, or] (iii) [o]ut of

anger,” MCL 750.520a(o), under one of a variety of circumstances. MCL

750.520c(1) and 750.520e(1). In other words, CSC-II and CSC-IV not only

contemplate a different criminal act than CSC-I or CSC-III-- sexual contact

instead of sexual penetration-- but also include an intent element that the

prosecutor is not required to prove in order to obtain a conviction for CSC-I or

CSC-III. That is, the prosecutor need only prove sexual penetration to obtain a

conviction for CSC-I or CSC-III, while the prosecutor must prove both sexual

contact and a bad intent to obtain a conviction for CSC-II or CSC-IV.

Thus, a defendant who is bound over or indicted for CSC-I on the basis of

an allegation of sexual penetration has no notice that he or she is also subject to

incarceration for engaging in sexual contact with the victim.1 In the instant case,

1
While the statutes clearly identify CSC-II as a lesser degree of CSC-I, and
CSC-IV as a lesser degree of CSC-III, it is critical to recognize that the statutes
apply to two essentially distinct and separate criminal acts, each of which requires
distinct and separate proofs. This is roughly the equivalent of the Legislature
combining the assault and arson statutes, or similarly unrelated statutes, into a new
“threatening conduct” statute and then dividing that statute into degrees. Under
that scenario, a defendant charged with “first-degree threatening conduct (arson)”
(continued…)

3

defendant likely failed to object to or otherwise refute the introduction of a

statement he made to the police admitting sexual contact, because it was not

relevant to his defense that no sexual penetration had occurred. Moreover,

defendant would not have had a strong motivation to object to or otherwise refute

any evidence offered by the prosecutor regarding his “intent” in engaging in

sexual contact with the victim, because such intent is not relevant in a prosecution

for CSC-I and it is not incompatible with the claimed defense that no penetration

occurred. Indeed, allowing the admission may have been compatible with a

potential defense that the victim exaggerated her encounter with defendant and

that, while he may have done something inappropriate, he did not commit CSC-I.2

Allowing that evidence to be used subsequently to convict the defendant of a

separate and distinct offense for which he was not even charged is inherently

unfair and, in my judgment, violates a defendant’s fundamental right to due

(…continued)

could not reasonably be expected to prepare for trial and be fairly placed on notice

that he or she could also be convicted of an uncharged assault simply because that

assault is labeled as “second-degree threatening conduct (assault).” Similarly,

when defendant was charged with CSC-I, he was placed on notice that he was

subject to incarceration for committing a criminal sexual penetration. However,

charging him with CSC-I did not fairly notify him that he was also subject to

incarceration for an essentially distinct and separate criminal act, CSC-II.

2
As the dissent correctly notes, defendant’s theory of the case was that no
sexual contact of any kind occurred between himself and the victim. However, the
critical fact remains that defense counsel had no incentive to challenge the
admission of the confession because it was not relevant to the charge of CSC-I and
because it could have potentially formed the basis of a different theory of defense-
-namely that the victim had exaggerated the incident.

4

process. I see little difference in a constitutional sense between defendant in this

case, who was convicted of the uncharged offense of CSC-II, and a defendant who

was charged with, but ultimately acquitted of, assault with intent to murder, but

who was nevertheless convicted of an uncharged felonious assault on the basis

that the elements of that offense were proven at trial.

The dissent argues that our decision in People v Tombs, 472 Mich 446; 697

NW2d 494 (2005), “has obviously modified our understanding of the intent

required to prove CSC I.” Post at 10. In Tombs, supra at 451, this Court stated

that “we tend to find that the Legislature wanted criminal intent to be an element

of a criminal offense, even if it was left unstated.” According to the dissent,

Tombs calls into question our assertion in People v Lemons, 454 Mich 234, 253;

562 NW2d 447 (1997), that “[s]exual penetration [under CSC-I] can be for any

purpose.” Rather, the dissent argues, a “penetration committed without a criminal

purpose would likely fail to satisfy the mandates of Tombs.” Post at 11 (emphasis

in original). I disagree. Tombs did not do away with “strict liability” offenses, but

instead correctly acknowledged that such offenses are generally disfavored. One

“strict liability” offense that has been recognized by this Court for 85 years is the

act of committing sexual penetration with a victim under the age of 16. People v

Gengels, 218 Mich 632; 188 NW 398 (1922). In Gengels, the defendant was

charged under the former statutory rape statute, MCL 750.520, which prohibited

“carnal knowledge of a female under 16.” The defendant argued that the victim

5

told him she was 18 and, therefore, he was entitled to a defense based on a good-

faith or reasonable mistake of age. We rejected such a defense:

But in the crime charged here proof of the intent goes with
proof of the act of sexual intercourse with a girl under the age of
consent. It is not necessary for the prosecution to prove want of
consent. Proof of consent is no defense, for a female child under the
statutory age is legally incapable of consenting. Neither is it any
defense that the accused believed from the statement of his victim or
others that she had reached the age of consent.” [Id. at 641.]

Sexual penetration of a victim under the age of 16 remains a strict liability

offense under the current criminal sexual conduct statutes. People v Cash, 419

Mich 230, 240; 351 NW2d 822 (1984).3 In Cash, the defendant was charged with

CSC-III but asserted that he was entitled to a “reasonable mistake of age” defense.

This Court noted that Gengels is consistent with the rule of the vast majority of

states, and of the federal courts, rejecting the “reasonable mistake of age” defense.

Id. Moreover, Gengels is consistent with the common-law definition of “statutory

3
Neither Justice Corrigan nor Justice Young disputes that CSC-I and CSC-
III are, in certain circumstances, strict liability offenses. Given that understanding,
the dissenters’ argument that CSC-II is a necessarily included lesser offense of
CSC-I cannot be maintained. An offense is considered a “necessarily included
lesser offense” when “‘it is impossible to commit the greater without first having
committed the lesser.’” People v Cornell, 466 Mich 335, 345; 646 NW2d 127
(2002) (citation omitted). A defendant may be convicted of CSC-I without the
jury making any finding at all regarding a criminal intent. However, in order to
obtain a conviction for CSC-II, the jury must always find beyond a reasonable
doubt that the defendant intended to commit an act that can “reasonably be
construed as being for the purpose of sexual arousal or gratification, done for a
sexual purpose, or in a sexual manner.” Because it is possible to commit CSC-I
without having first committed CSC-II, the latter is a cognate lesser offense and,
pursuant to Cornell, may not be considered.

6

rape” as a strict liability offense. Because there was no indication that the

Legislature intended to abrogate the common law, this Court held that sexual

penetration of a victim who is at least 13 but less than 16 constitutes a strict

liability offense and, therefore, “reasonable mistake of age” is not a defense. Id. at

250.

In the instant case, defendant was charged with the sexual penetration of a

victim who is at least 13 but less than 16. Had defendant met a victim of the same

age on the street and engaged in the same conduct as was charged, he would have

been strictly liable for CSC-III. MCL 750.520d(1)(a). However, because

defendant is “in a position of authority over the victim and used this authority to

coerce the victim to submit,” MCL 750.520b(1)(b)(iii), the presence of that

additional aggravating fact subjects him to punishment for CSC-I. The existence

of an aggravating fact does not impose a new mens rea on an act for which

defendant would otherwise be strictly liable under the CSC-III statute. Because

defendant remains strictly liable for engaging in the sexual penetration of the

underage victim in this case, I do not believe that Tombs requires any showing of

criminal intent.4

Stephen J. Markman
4
Even if I were to agree that the Legislature did not wish to dispense with a
criminal intent requirement for the crime of CSC-I, I would still concur with the
lead opinion that CSC-II is not a necessarily included lesser offense of CSC-I. As
noted by the lead opinion, CSC-I can be committed in a variety of ways without
implicating one of the CSC-II states of mind. Ante at 26 n 55.

7

8

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 127897

MAURICE LAMONT NYX,

Defendant-Appellee.

CAVANAGH, J. (concurring in the result only).

I concur with the result reached by the lead opinion affirming the Court of

Appeals decision to vacate defendant’s conviction for second-degree criminal

sexual conduct (CSC II), MCL 750.520c. Defendant did not have adequate

notice that he faced the charge of CSC II, so convicting him of that offense

would violate his right to due process. However, I do not join the lead opinion in

full because, as Justice Corrigan has noted, I believe the lead opinion’s

characterization of the word “inferior” is contrary to the established definition

and historical use of the term. See People v Mendoza, 468 Mich 527, 550-551;

664 NW2d 685 (2003) (opinion by Cavanagh, J.).

Michael F. Cavanagh
Marilyn Kelly
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 127897

MAURICE LAMONT NYX,

Defendant-Appellee.

YOUNG, J. (concurring in part and dissenting in part).

I concur in that portion of the lead opinion that concludes that, where an

accused is charged with an offense “consisting of different degrees,” MCL

768.32(1) permits the accused to be found guilty of an inferior offense as that term

has been defined in People v Cornell.1 I believe that the statute permits a

defendant to be found guilty of a necessarily included lesser offense, but not a

cognate lesser offense, of the charged offense.

However, I disagree with the lead opinion’s conclusion that the statute has

been violated. Because it is impossible to commit first-degree criminal sexual

conduct (CSC I), MCL 750.520b, without first having committed second-degree

criminal sexual conduct (CSC II), MCL 750.520c, CSC II is a necessarily included

lesser offense of CSC I. Therefore, the trial court was free to find, on the basis of

1
466 Mich 335; 646 NW2d 127 (2002).
the victim’s testimony as well as defendant’s confession, defendant guilty of

second-degree criminal sexual conduct. Moreover, even if an error had occurred

in this case, the unpreserved error would be harmless under plain error review.

Because the lead opinion concludes otherwise, I dissent. I would reverse the

judgment of the Court of Appeals and remand the case for consideration of

defendant’s remaining appellate issues.

I. FACTUAL BACKGROUND AND TRIAL COURT DECISION

Because the lead opinion’s description of the facts is so divergent from my

own, I provide the following facts, taken from the trial record.

The testimony in this case indicates that on two separate days defendant,

the dean of students at a charter high school, led the victim into a dark, deserted

stairway at the high school and sexually assaulted her.2 The victim testified that

on the first occasion, defendant penetrated her vagina with his finger and his penis.

The victim testified that during the second incident, occurring two days later,

defendant both fondled and digitally penetrated her vagina, but was interrupted

when another student, the victim’s friend, attempted to open the door to the

2
Testimony provided by a school official indicated that this stairway was
off limits to students and was generally chained and padlocked shut. Only four
school personnel had keys to the padlock, including defendant. An internal
investigation revealed that the light fixture in the stairway was not functional,
consistent with the victim’s testimony that the stairway was completely dark.

2

stairway.3 This testimony was corroborated by the student, who testified that she

opened the door to the stairway and it “shut right back.”4

The second stairway incident was also consistent with a statement given by

defendant during a police interview in which he described the victim as the

aggressor in the sexual encounter. In his statement, defendant told the officer that

the victim “had been following him for the last two weeks,” that her following him

“bothered him,” and that he went to the dark, off limits stairway area with the

victim. Defendant stated that upon arriving in the deserted stairway, the victim

pulled her pants down, “grabbed his penis, and attempted to put it inside her

vagina.” Defendant further stated that “his hand went between [the victim’s] legs,

touching her vagina.” However, defendant indicated that the incident ended when

“someone came to the door” and defendant “pushed the door back with his arm.”

In rendering its verdict, the trial court observed that the victim’s testimony

regarding being with the defendant in the dark stairway was substantiated by the

witness’s testimony, and was “also corroborated by what the defendant admits

3
The victim testified that defendant immediately pushed the door closed as
it started opening.
4
The witness testified that she was “worried” and started looking for the
victim. The witness went to the stairway area because the victim had told her the
location of the previous incident. The witness also testified that she observed
defendant flirting with the victim on several occasions before the incidents,
including “digging” in the victim’s back pockets and jacket pockets that were
“located over her breasts.”

3

happened.”5 Noting that there were some inconsistencies in the victim’s

testimony, the trial court ruled that it was basing its verdict on what it could “rely

upon”—defendant’s admission that he touched the victim’s vagina. The trial court

found defendant guilty of two counts of CSC II,6 finding that defendant

“intentionally touched the groin area or genital area of the complainant, and that

this was done for sexual purposes.”7

II. CSC II IS A NECESSARILY INCLUDED LESSER OFFENSE OF CSC I

The lead opinion cites People v Lemons8 for the proposition that CSC II is a

cognate lesser offense of CSC I because CSC II contains an additional “element”

that is not found in CSC I. However, as explained below, the plain language of

5
The trial court subsequently expressed disbelief that any “teacher would
allow themselves [sic]” to be in an unlit stairway area “with a child.” However,
the trial court noted that “not only the complainant says it happened, her friend
says it happened, and even the defendant admits that it happened.”
6
By the trial court’s own admission, it convicted defendant of CSC II and
impliedly acquitted defendant of CSC I although the court subsequently
acknowledged that “[t]he People established CSC I.” The court “hop[ed] that by
compromising a verdict,” it would give “the defendant a break” and that he
“wouldn’t have to go to prison.” The trial court “was surprised,” however, to find
that defendant had two prior felony convictions that negatively affected his
minimum sentence range under the sentencing guidelines.
7
The trial court also ruled that the victim was 13 to 15 years old at the time
and that defendant used his position of authority over the victim.
8
454 Mich 234; 562 NW2d 447 (1997). In Lemons, the defendant was
charged with CSC I for receiving cunnilingus from her son and stepdaughter, both
of whom were under 13 years of age. The defendant sought and was denied a jury
instruction on CSC II, the trial judge concluding that oral contact was sufficient to
establish cunnilingus. The Lemons Court reversed the Court of Appeals
determination that the trial court erred by refusing to instruct the jury on CSC II on
two bases. First, the Court concluded that CSC II was a cognate lesser offense
(continued…)
4

MCL 750.520b and 750.520c reveals that both crimes contain only two elements.

Rather, what the lead opinion refers to as an additional “element” is actually part

of the definition of one of the two elements. Additionally, the lead opinion

independently concludes that CSC II is a cognate lesser offense of CSC I because

it is possible to commit CSC I without first having committed CSC II. The lead

opinion hypothesizes that a defendant who commits CSC I could possess a

criminal purpose “that could not reasonably be construed as coming within the

intents listed in the CSC II statute.”9 Ultimately, however, the conclusion that

CSC II is a cognate lesser offense of CSC I is premised on a misreading of the

relevant statutes.

Both CSC I and CSC II are general intent crimes,10 each containing two

elements.11 For either crime, a defendant “is guilty of criminal sexual conduct”

where the defendant engages in sexual conduct and any of the several delineated

(…continued)

because CSC II required proof that the “defendant intended to seek sexual arousal

or gratification.” Id. at 253. Second, the Court concluded that cunnilingus “by

definition” did “not require penetration.” Id. at 255.

9
Ante at 26.
10
People v Langworthy, 416 Mich 630, 645 n 26; 331 NW2d 171 (1982).
The mens rea requirement of general intent crimes is satisfied by proving that the
defendant purposefully or voluntarily performed the wrongful act at issue. People
v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983); Langworthy, supra at
639, 644; People v Nowack, 462 Mich 392, 405; 614 NW2d 78 (2000).
11
As a statutory criminal offense, the establishment of elements is a
decision for the Legislature. See People v Selwa, 214 Mich App 451, 458; 543
NW2d 321 (1995).

5

“circumstances” exist.12 The principal difference between these two offenses is

the type of evidence necessary to satisfy the sexual conduct element—CSC I

requires that the defendant commit “sexual penetration,” while CSC II requires

“sexual contact.”

Both of the sexual conduct elements are statutorily defined. “Sexual

penetration” is defined at MCL 750.520a(p) as

sexual intercourse, cunnilingus, fellatio, anal intercourse, or any
other intrusion, however slight, of any part of a person’s body or of
any object into the genital or anal openings of another person’s
body, but emission of semen is not required.

“Sexual contact,” on the other hand, is defined at MCL 750.520a(o) as

includ[ing] the intentional touching of the victim’s or actor’s
intimate parts or the intentional touching of the clothing covering the
immediate area of the victim’s or actor’s intimate parts, if that
intentional touching can reasonably be construed as being for the
purpose of sexual arousal or gratification, done for a sexual purpose,
or in a sexual manner for:

12
These delineated “circumstances” are duplicative, and requires the
existence of one of several aggravating factors in addition to the sexual conduct,
including: the victim being less than 13 years old, MCL 750.520b(1)(a),
750.520c(1)(a); the victim’s young age combined with the familial relationship
between the defendant and victim, MCL 750.520b(1)(b)(i) or (ii),
750.520c(1)(b)(i) or (ii) or combined with the defendant’s use of an authoritative
position over the victim, MCL 750.520b(1)(b)(iii) or (iv), 750.520c(1)(b)(iii) or
(iv); the sexual conduct’s occurring during the commission of a felony, MCL
750.520b(1)(c), 750.520c(1)(c); the defendant’s use of a weapon, MCL
750.520b(1)(e), 750.520c(1)(e); the defendant’s causing personal injury to the
victim and using force or coercion to accomplish the sexual act, MCL
750.520b(1)(f), 750.520c(1)(f); or the victim’s mental incapacity or physical
helplessness combined with personal injury, a familial relationship, or the
defendant’s use of an authoritative position over the victim. MCL 750.520b(1)(g),
750.520b(1)(h)(i), 750.520b(1)(h)(ii), 750.520c(1)(g), 750.520(c)(h)(i),
750.520c(1)(h)(ii).

6

 (i) Revenge
(ii) To inflict humiliation
(iii) Out of anger.

Therefore, under the plain language of the statute, the “sexual contact”

element of CSC II is satisfied where there is an intentional touching of either the

victim’s or actor’s intimate parts, and that intentional touching “can reasonably be

construed as being for the purpose of sexual arousal or gratification, done for a

sexual purpose, or in a sexual manner” for revenge, to inflict humiliation, or out of

anger. Id. Contrary to the claims of the lead opinion, the definition of “sexual

contact” does not add a third element to CSC II; rather, it provides meaning to one

of the two elements delineated in MCL 750.520c. This statutory language is clear

and includes a “reasonable person” or objective assessment of the purpose behind

the sexual contact, thereby limiting criminal liability to only those intentional

touchings that may “reasonably be construed” as being sexually motivated.

Thus, defendant’s claimed subjective motivation for committing the sexual

touching plays no role under the plain language of the definition of “sexual

contact.” Certainly, a defendant is free to argue to the jury that the prosecutor has

failed to prove the “sexual contact” element of the offense because an objective

assessment of the facts and circumstances indicates that the sexual contact was not

done for a sexual purpose. However, there is no basis in the statute from which to

conclude that defendant’s subjective motivation precludes a jury from concluding

that the element has been proven, and that the sexual touching could be reasonably

construed as “being for the purpose of sexual arousal,” “done for a sexual

7

purpose,” or done “in a sexual manner for . . . [r]evenge[,] to inflict humiliation[,]”

or “[o]ut of anger.”

As the lead opinion correctly notes, the proper test for determining whether

CSC II is a necessarily included lesser offense of CSC I is whether the elements of

the lesser offense are completely subsumed in the greater offense, and it is

impossible to commit CSC I without having committed CSC II. In order to

demonstrate that it is theoretically possible to commit CSC I without having

committed CSC II, the lead opinion provides a list of colorful examples of sexual

penetration, wherein the defendant claims to have a motivation for the penetration

that does not fall within MCL 750.520a(o). In posing these examples, the lead

opinion fails to reckon with a critical legal fact: the plain definition of “sexual

contact” requires an objective assessment of the purpose behind the sexual

conduct. Thus, the defendant’s subjective motivation for the conduct is utterly

irrelevant. In each and every one of the examples listed, the “sexual contact”

element would be satisfied because a reasonable juror could construe the purpose

for the sexual conduct as satisfying MCL 750.520a(o).

Because I believe that the elements of CSC II are completely subsumed in

CSC I because it is impossible to commit the greater offense without having

committed the lesser offense, CSC II is an “inferior offense” under MCL

768.32(1). Therefore, no statutory violation occurred when the trial court sua

sponte found defendant guilty of the necessarily included lesser offense.

III. HARMLESS ERROR

8

 Assuming arguendo that an error occurred in this case, I believe that the

error was harmless. As an unpreserved nonconstitutional error, the applicable

standard of review is for plain error.13 Under the plain error rule, defendant must

show that an error occurred, that the error was plain, and that the plain error

affected a substantial right of the defendant.14 In order to show that a substantial

right was affected, defendant must show that the error affected the outcome of the

trial proceedings.15 Defendant’s failure to establish a plain error affecting a

substantial right precludes a reviewing court from acting on such an error.16

However, even where a defendant establishes that the plain error affected a

substantial right, reversal is only warranted “‘when the plain, forfeited error

resulted in the conviction of an actually innocent defendant or when an error

seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings . . . .’”17

The lead opinion contends that defendant, being charged only with CSC I,

tendered an “all or nothing” defense regarding whether “defendant had sexually

13
People v Grant, 445 Mich 535; 520 NW2d 123 (1994). The same
standard of review applies to forfeited constitutional errors. People v Carines, 460
Mich 750; 597 NW2d 130 (1999).
14
Grant, supra at 552-553; United States v Olano, 507 US 725, 731-734;
113 S Ct 1770; 123 L Ed 2d 508 (1993).
15
Id.
16
Id.
17
People v Pipes, 475 Mich 267, 279; 715 NW2d 290 (2006), quoting
Carines, supra at 763 (internal citations and quotation marks omitted); Olano,
(continued…)

9

penetrated the complainant.”18 Thus, defendant’s conviction of CSC II resulted in

prejudice. Unfortunately, this assertion is not supported by the trial court record.

The defense theory was not predicated on the claim that no penetration had

occurred; rather, the defense theory advanced at trial was that no sexual

misconduct of any kind occurred.

THE DEFENSE ACTUALLY TENDERED AT TRIAL

The lead opinion states that the error that occurred in this case was not

harmless because defendant “may have adopted a different strategy at trial,”

including “objecting to the police officer’s testimony regarding his alleged

admission of a sexual touching.”19 The lead opinion further states that, but for the

error, defense counsel “may not have withdrawn his motion to suppress the

statement or for a Walker[20] hearing just before the trial began.”21 Similarly, the

concurring opinion opines that the error was outcome determinative because of

“the critical fact” that “defense counsel had no incentive to challenge the

admission of the confession . . . .”22

(…continued)

supra at 736; Johnson v United States, 520 US 461, 469-470; 117 S Ct 1544; 137

L Ed 2d 718 (1997).

18
Ante at 14.
19
Ante at 15.
20
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
21
Ante at 15.
22
Ante at 3 n 2.

10

 All these claims of prejudice, however, are belied by a review of the trial

court record, which reveals the actual defense presented at trial. The theory of

defense presented at trial was that no sexual conduct of any type occurred between

defendant and the victim, that the victim lied about the alleged incidents, and that

the victim had motive to lie because one of her classmates attempted to extort

money from defendant.23 The chosen defense of denying all sexual conduct

necessarily encompasses denying sexual penetration as well as denying sexual

contact. Defense counsel cross-examined prosecution witnesses, focusing on

inconsistencies in their testimony in an effort to attack their credibility. The sole

defense witness, a math teacher at the school, testified that his attendance records

indicated that both witnesses were in his math class at the time of the events,

further attacking their credibility. Because the defense presented was a complete

denial of the alleged events, it is unclear how the defense trial strategy might have

changed had defense counsel known that the trial court was going to find

defendant guilty of CSC II on the basis of sexual conduct that defendant admitted

committing.

Moreover, the trial court record conclusively establishes that defense

counsel in fact challenged the confession by arguing at trial that the inculpatory

statement was never made. During closing argument, defense counsel forthrightly

argued to the trial court that “[t]here were no admissions and no statement made

23
Testimony adduced at trial revealed that after the victim told a classmate
about the first incident, the classmate attempted to extort $3,000 from defendant.

11

by Mr. Nyx.” Therefore, rather than claim that the statement was involuntary or

the product of coercion, defense counsel made the strategic decision to claim that

it was not given. While the lead opinion claims that the defendant would have

sought suppression of the statement in a Walker hearing but for the error, this

course of action would unavoidably require acknowledging that an inculpatory

statement was given. Such an action would have undermined the actual defense

tendered at trial. Thus, I do not share the view of my colleagues that the failure to

request a Walker hearing is indicative of anything other than the fact that

defendant claimed he made no confession of sexual misconduct.

Furthermore, as a Walker hearing is designed to test the voluntariness of a

confession, the lead opinion fails to recognize that pursuing a Walker hearing was

the weaker avenue of challenge under the facts of this case. Maurice Nyx, a

college educated professional, voluntarily arrived at the police station midday to

be interviewed, accompanied by his attorney. He was not in custody during the

interview, signed a waiver of rights form before giving the statement, and never

asked for his attorney at any point during the interview before admitting to the

interviewing officer that he volitionally touched the vagina of his 15-year-old

student while in a dark, restricted access stairway at the school. In addition to a

complete dearth of coercion or involuntariness, the record reveals no factual basis

for the majority’s conclusion that, but for the error, defense counsel would have

sought suppression of the confession. Rather, the record reveals no credible basis

upon which defendant could have pursued a successful Walker hearing.

12

Moreover, given that defense counsel actually challenged the confession, it cannot

be said that counsel “had no incentive” to do so. Certainly, given defendant’s

defense theory of complete denial, the existence of defendant’s confession makes

his theory of defense less probable, providing defense counsel with more than

ample incentive to challenge the existence of the confession.

IV. CONCLUSION

I agree that MCL 768.32(1) permits a defendant to be found guilty of a

necessarily included lesser offense, but not a cognate lesser offense, of the charged

offense. However, I disagree with the lead opinion’s conclusion that a statutory

violation has occurred because I believe that CSC II is a necessarily included

lesser offense of CSC I. Therefore, the trial court properly found defendant guilty

of CSC II, which was amply supported by the victim’s testimony as well as

defendant’s confession. Moreover, assuming that an error had occurred in this

case, the unpreserved nonconstitutional error would be harmless under the plain

error rule.

I would reverse the judgment of the Court of Appeals and remand the case

to that Court to address defendant’s remaining appellate issues.

Robert P. Young, Jr.
Elizabeth A. Weaver

13

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 127897

MAURICE LAMONT NYX,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J. (dissenting).

I respectfully dissent. MCL 768.32(1) allows a trier of fact to find a

defendant guilty of an “inferior” degree of an offense that “consist[s] of different

degrees . . . .” That is precisely what occurred in this case. We do not face any

constitutional dilemma requiring the lead opinion’s novel approach to the statute.

Moreover, because second-degree criminal sexual conduct, MCL 750.520c, (CSC

II) is a necessarily included lesser offense of first-degree criminal sexual conduct,

MCL 750.520b, (CSC I), the new rule does not govern this case. But if it did, any

error would be harmless.

Accordingly, I would reverse the judgment of the Court of Appeals and

remand the case to that Court to address defendant’s remaining appellate issues.
 I. INTERPRETATION OF MCL 768.32(1)

MCL 768.32(1) is clear and unambiguous. It provides:

[U]pon an indictment for an offense, consisting of different
degrees, as prescribed in this chapter, the jury, or the judge in a trial
without a jury, may find the accused not guilty of the offense in the
degree charged in the indictment and may find the accused person
guilty of a degree of that offense inferior to that charged in the
indictment, or of an attempt to commit that offense.

This plain language indicates that when a defendant is charged with an

offense “consisting of different degrees,” the fact-finder may acquit the defendant

of the charged offense and find him “guilty of a degree of that offense inferior to

that charged in the indictment . . . .” Here, criminal sexual conduct is an offense

“consisting of different degrees”—the Legislature has formally divided the offense

into degrees and designated them as such. The highest degree of the offense is

CSC I, carrying a maximum sentence of life imprisonment. The other degrees of

CSC carry less severe maximum punishments. Therefore, under the plain

language of MCL 768.32(1), the fact-finder may consider and find a defendant

guilty of CSC II, III (MCL 750.520d), or IV (MCL 750.520e) when the defendant

is charged with CSC I if a rational view of the evidence supports the conviction.

Although the statutory language is clear, the lead opinion holds that a

defendant may not be convicted of an offense of lesser degree unless the test set

forth in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), is satisfied. The

lead opinion concludes that Cornell bars consideration of lesser offenses whose

2

elements are not subsumed in the charged offense, even where the Legislature has

formally denominated an offense as one of inferior degree.

As early as 1869, this Court made clear that the predecessor of MCL

768.32(1) was not restricted to formally degreed offenses, but this Court did not

hold that formally degreed offenses were excluded from the scope of the statute.

On the contrary, this Court’s historical analyses implicitly presumed that formally

degreed offenses fell within the statute. In Hanna v People, 19 Mich 316, 320

(1869), Justice Christiancy, writing for the Court, stated:

I do not think this provision was intended to be restricted in
its application to offenses divided by the statutes contained in this
title (which contain all the provisions in reference to crimes), into
classes expressly designated by the name of “degrees.” Thus
confined, it would apply, so far as I have been able to discover, only
to the single case of an indictment for murder in the first degree, and
would not even include manslaughter as a lower degree of the
offense, but only murder in the second degree; since [at the time
Hanna was decided] murder [was] the only offense divided by the
statute into classes expressly designated as “degrees.” [Emphasis
added.]

Because both the common law and a separate statutory provision already

provided for the consideration of second-degree murder, the predecessor of MCL

768.32(1) would have been entirely superfluous if it were limited to that offense.

Thus, Justice Christiancy concluded that the predecessor of MCL 768.32(1) must

“be construed as extending to all cases in which the statute has substantially, or in

effect, recognized and provided for the punishment of offenses of different grades,

3

or degrees of enormity, wherever the charge for the higher grade includes a charge

for the less.” Hanna, supra at 322 (emphasis added).1

Similarly, this Court in Cornell did not exclude offenses that have been

formally divided into degrees from the scope of MCL 768.32(1). Rather, we

agreed with the Hanna Court that

the provision was not intended to be limited only to those [offenses]
expressly divided into “degrees,” but was intended to extend to all
cases in which different grades of offenses or degrees of enormity
had been recognized. Moreover the statute removed the common-
law misdemeanor restriction. Thus, application of the statute is
neither limited to those crimes expressly divided into degrees nor to
lesser included felonies. [Cornell, supra at 353-354 (emphasis
added).]

In considering offenses that were not formally degreed, we held in Cornell

that the word “inferior” in MCL 768.32(1) refers “‘to the absence of an element

that distinguishes the charged offense from the lesser offense.’” Cornell, supra at

354, quoting People v Torres (On Remand), 222 Mich App 411, 420; 564 NW2d

1
The central flaw in the lead opinion’s historical analysis is that it does not
acknowledge or address this language in Hanna. The Hanna Court stated in no
uncertain terms that the statutory provision was not restricted to formally degreed
offenses, not that it excluded such offenses. Id. at 320.
The lead opinion’s suggestion that MCL 768.32(1) codifies a historical
common-law rule barring consideration of lesser degreed offenses is mistaken.
First, no authority could be found to establish the existence of any such rule for
formally degreed offenses. And even if such a common-law rule did exist, MCL
768.32(1) did not codify the rule. On the contrary, the statute abrogated any such
rule by squarely providing that where an offense is divided into degrees, the fact-
finder may convict the defendant of an inferior degree of the charged offense. See
Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006)
(“The Legislature has the authority to abrogate the common law.”).

4

149 (1997). Thus, we held that a trier of fact may not consider “cognate lesser

offenses, which are only ‘related’ or of the same ‘class or category’ as the greater

offense and may contain some elements not found in the greater offense.”

Cornell, supra at 355. Further, we held “that a requested 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.” Id. at 357.

It is perfectly clear, then, that both Hanna and Cornell simply presumed

that formally degreed offenses were within the scope of the statute. Our decision

in Cornell merely explicated a tool of construction for determining whether an

offense is “inferior” where the Legislature has not formally denominated it as

such. Where the Legislature has expressly divided an offense into degrees, as it

has with criminal sexual conduct, no construction is necessary. By legislative

definition, criminal sexual conduct is an offense “consisting of different degrees,”

and application of the Cornell test is thus unnecessary. CSC II is a degree of the

offense that the Legislature has expressly designated as “inferior” to CSC I.

The new rule—that a legislatively denominated lesser degree is not an

“inferior” degree—reflects a lack of deference to the Legislature’s authority to

denominate an offense as “inferior.” Unquestionably, the power to define crimes

is wholly a legislative function. People v Calloway, 469 Mich 448, 451; 671

NW2d 733 (2003). The Legislature thus acted within its proper sphere of

5

constitutional authority when it (1) enacted MCL 768.32(1) permitting the fact-

finder to consider an inferior degree of the charged offense and (2) chose to

categorize CSC II as a lesser or inferior degree of CSC I. We have no authority to

override this legislative classification (in the absence of a constitutional flaw).

Having conceded that the Legislature has divided the offense of criminal

sexual conduct into degrees, the lead opinion remarkably concludes that CSC II is

not an inferior degree of CSC I, even though the degrees of this offense are

legislatively numbered in descending order, with second-, third-, and fourth-

degree criminal sexual conduct as lesser degrees of first-degree criminal sexual

conduct.

The lead opinion characterizes our caselaw as precluding “a judge or a jury

from convicting a defendant of a cognate lesser offense even if the crime is

divided into degrees.” Ante at 9. The caselaw does not remotely purport to

preclude a conviction where the Legislature itself has formally divided the offense

into degrees.2

The lead opinion’s claim that it is following 130 years of caselaw, and that

my interpretation would require overruling those cases, is therefore wholly

unfounded. The lead opinion cites no authority to suggest that the word “inferior”

2
The lead opinion cites People v McDonald, 9 Mich 150, 153 (1861);
Hanna, supra; Torres, supra at 419-420; Cornell, supra; People v Mendoza, 468
Mich 527, 532-533; 664 NW2d 685 (2003); and People v Nickens, 470 Mich 622,
(continued…)

6

has some hidden, counterintuitive meaning that would render MCL 768.32(1)

inapplicable to the very type of offenses described in the statute, i.e., offenses that

the Legislature itself has formally divided into degrees.

The new rule also ignores our history of allowing a conviction of a formally

inferior degree that is not a subset of the elements of the charged offense. Before

People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), malice was not a

necessary element of first-degree felony murder. But second-degree murder does

require proof of malice, People v Mendoza, 468 Mich 527, 534; 664 NW2d 685

(2003). Thus, before Aaron, second-degree murder contained an element not

required for first-degree felony murder. Yet this Court held consistently, even

before Aaron, that an instruction for second-degree murder was appropriate where

the defendant was charged with first-degree felony murder. See People v Carter,

395 Mich 434, 438; 236 NW2d 500 (1975); People v Treichel, 229 Mich 303,

307-308; 200 NW 950 (1924). Thus, this Court historically has allowed

conviction of a formally inferior degree that is not subsumed in the charged

offense.

This Court’s decision in People v McDonald, 9 Mich 149 (1861), further

supports my analysis of our historical treatment of lesser included offenses. In

McDonald, this Court held that assault and battery was included in a charge of

(…continued)

626; 685 NW2d 657 (2004), none of which addressed the application of MCL

(continued…)

7

felonious assault, and thus upheld an assault and battery conviction even though

the defendant was charged only with felonious assault. It is possible to commit an

assault without committing a battery. See People v Nickens, 470 Mich 622, 628;

685 NW2d 657 (2004). Thus, as it is possible to commit a felonious assault

without first having committed an assault and battery, McDonald confirms that

our caselaw has not required a subset of the elements test, contrary to the lead

opinion’s view.

Further, Justice Cavanagh’s concurring opinion in Mendoza, supra,

supports my historical analysis. In Mendoza, Justice Cavanagh opined that

limiting the application of MCL 768.32(1) to necessarily included lesser offenses

contravened the accepted meaning of the term “inferior.” Id. at 551 (opinion by

Cavanagh, J.). He argued that the statutory term “inferior” authorized a range of

convictions broader than necessarily included lesser offenses. He contended that

“[a]lthough, the majority attempts to claim its holding has a historical foundation,

it, in fact, usurps this Court’s longstanding interpretation, which accords with the

statute’s plain meaning.” Id. at 554. Thus, Justice Cavanagh would permit the

fact-finder to consider a “cognate” offense to the extent that it is “inferior” to the

crime charged and supported by the evidence. Id. at 554-555.

(…continued)

768.32(1) to formally degreed offenses.

8

 I continue to support the holdings in Cornell and Mendoza because they set

forth a means of discerning whether a nondegreed offense is “inferior” to the

charged offense. But we simply have no authority to impose a judicial gloss on

formally degreed offenses because MCL 768.32(1) expressly permits the fact-

finder to consider them. Thus, in the context of formally degreed offenses such as

CSC I and II, I agree with Justice Cavanagh’s view that there is no historical basis

to limit the meaning of the term “inferior” to necessarily included lesser offenses.

II. IS CSC II NECESSARILY INCLUDED IN CSC I?

Accepting the new rule of criminal law and procedure that a formally

degreed offense must satisfy the Cornell test, the lead opinion does not explain

why that rule was satisfied in this case. The lead opinion assumes that CSC II is

merely a cognate lesser offense of CSC I, but a serious question exists regarding

whether CSC II really is necessarily included in CSC I. We have yet to address

this issue in the wake of recent authorities.

In the pre-Cornell era, this Court had concluded that CSC II is a cognate

lesser offense of CSC I. In People v Lemons, 454 Mich 234, 253-254; 562 NW2d

447 (1997), this Court stated:

CSC I requires the prosecutor to prove “sexual penetration.”
MCL 750.520b(1); MSA 28.788(2)(1). CSC II requires the
prosecutor to prove “sexual contact.” MCL 750.520c(1); MSA
28.788(3)(1). Sexual penetration can be for any purpose. MCL
750.520a(l); MSA 28.788(l)(1). The statute defines sexual contact,
however, as touching that “can reasonably be construed as being for
the purpose of sexual arousal or gratification.” MCL 750.520a(k);
MSA 28.788(1)(k). Thus, because CSC II requires proof of an

9

 intent not required by CSC I—that defendant intended to seek sexual
arousal or gratification—CSC II is a cognate lesser offense of CSC I.
In short, it is possible to commit CSC I without first having
committed CSC II.

The Lemons Court acknowledged that CSC II is, in general, factually included in

CSC I, “‘for sexual penetration is usually for a sexual purpose.’” Id. at 254 n 29

(quoting People v Garrow, 99 Mich App 834, 839-840; 298 NW2d 627 [1980]).

But the Lemons Court remained convinced that “the additional intent requirement

for CSC II mandates that it be considered a cognate lesser offense of CSC I.” Id.

Nonetheless, Lemons was decided before Cornell, when instructions on

necessarily included lesser offenses were mandatory in the absence of a genuine

evidentiary dispute and instructions on nondegreed, cognate offenses were

permitted. See People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). Now,

however, in light of Cornell, the trier of fact may consider a necessarily included

lesser offense only where a rational view of the evidence supports it, and cognate

lesser offenses that are not formally degreed may not be considered at all. These

major adjustments in our lesser included offense jurisprudence warrant at least a

reexamination of the pre-Cornell analysis in Lemons.

In addition, People v Tombs, 472 Mich 446; 697 NW2d 494 (2005), has

obviously modified our understanding of the intent required to prove CSC I. That

broader criminal intent requirement plainly includes the narrower intent required

for CSC II. In Tombs, this Court explained that “we tend to find that the

Legislature wanted criminal intent to be an element of a criminal offense, even if it

10

was left unstated.” Id. at 451 (opinion by Kelly, J.) (emphasis added). Thus,

absent a clear indication that the Legislature intended to dispense with the

requirement of a criminal purpose, we will presume from the Legislature’s silence

that proof of a criminal intent is required. Id. at 456-457.

In light of Tombs, we should reassess the Lemons Court’s assertion that

“[s]exual penetration [under CSC I] can be for any purpose.” Lemons, supra at

253 (emphasis added). A penetration committed without a criminal purpose

would likely fail to satisfy the mandates of Tombs.

The implications of Tombs should be considered. If proof of a criminal

intent is required in a CSC I case, it is then fair to ask whether the intent element

of CSC II is included in the criminal intent required for CSC I. The justices

signing the lead opinion ought to carefully consider their assertion that CSC II is

not an inferior degree of CSC I.3

In fact, the CSC I statute, MCL 750.520b, only prohibits penetrations that

are “sexual,” and the definitional statute, MCL 750.520a(p), lists types of sexual

penetrations, including sexual intercourse, cunnilingus, fellatio, and anal

intercourse. The definitional statute for CSC II does not “add” a different sexual-

3
Further, in a series of decisions issued before Lemons, the Court of
Appeals held that CSC II was a necessarily included lesser offense of CSC I. See
People v Green, 86 Mich App 142, 150; 272 NW2d 216 (1978) (“Since all of the
elements of CSC II are the same as those of CSC I except for penetration, and
there cannot be penetration without contact, second-degree CSC is a necessarily
(continued…)

11

purpose component. It merely reiterates that the nature of the contact under the

criminal sexual conduct statute must be sexual, just as the penetrations in CSC I

cases must be sexual in nature.

I therefore question the lead opinion’s contention that the statutory

definition of “sexual contact” contains a subjective motivation or specific intent

requirement. MCL 750.520a(o) defines “sexual contact” to include

the intentional touching of the victim’s or actor’s intimate parts or
the intentional touching of the clothing covering the immediate area
of the victim’s or actor’s intimate parts, if that intentional touching
can reasonably be construed as being for the purpose of sexual
arousal or gratification, done for a sexual purpose, or in a sexual
manner for: (i) Revenge. (ii) To inflict humiliation. (iii) Out of
anger.

This language does not prescribe a subjective motivation that must be

proven to establish CSC II. Rather, it limits the types of “intentional touchings”

that may be considered “sexual contact.” Specifically, an “intentional touching”

constitutes “sexual contact” only if it “can reasonably be construed” as being for

the purpose of sexual arousal or gratification, etc. That is, the statute uses

objective language indicating that the intentional touching must be susceptible to

being reasonably construed as reflecting the sexual purposes described in the

statute.

(…continued)

included lesser offense of CSC I.”); People v Secreto, 81 Mich App 1; 264 NW2d

99 (1978); People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977).

12

 The lead opinion offers a series of hypothetical situations that satisfy

the elements of sexual penetration, but allegedly do not constitute “sexual

contact.” But those situations fail to honor the statutory definition. Every listed

hypothetical situation involves a touching that, whatever the actor’s subjective

motivation, could be reasonably construed as being for a sexual purpose identified

in MCL 750.520a(o). Thus, these hypothetical situations do not support the lead

opinion’s holding. On the contrary, they reflect that the lead opinion has replaced

the phrase “can reasonably be construed as” in MCL 750.520a(o) with a subjective

motivation element.

III. CONSTITUTIONAL AVOIDANCE

The lead opinion applies the canon of constitutional avoidance. It reasons

that applying MCL 768.32(1) to formally inferior degrees that are not subsumed in

the charged offense “would render the statute subject to constitutional challenge.”

Ante at 12. The lead opinion perceives “a due process concern . . . because

defendants are entitled to know the charges against them.” Ante at 11. The lead

opinion thus adopts an interpretation “that will save the statute.” Ante at 12.

In invoking the constitutional avoidance doctrine, the lead opinion has

omitted a crucial step by failing to identify any ambiguity in MCL 768.32(1) that

would warrant loading the dice in favor of its preferred interpretation. “The

canon of constitutional avoidance comes into play only when, after the application

of ordinary textual analysis, the statute is found to be susceptible of more than one

13

construction; and the canon functions as a means of choosing between them.”

Clark v Martinez, 543 US 371, 385; 125 S Ct 716; 160 L Ed 2d 734 (2005)

(emphasis added; original emphasis omitted).

The lead opinion omits an ordinary textual analysis to explain why MCL

768.32(1) is susceptible of more than one construction. The language allowing a

defendant charged with “an offense, consisting of different degrees,” to be found

“guilty of a degree of that offense inferior to that charged in the indictment . . . ,”

is not unclear.

As discussed, the statutory language is not difficult to comprehend, and

provides notice to the defendant that he should defend against all degrees. Indeed,

the lead opinion has acknowledged that criminal sexual conduct is “an offense

consisting of different degrees,” so it presumably does not find this language

ambiguous. And where the Legislature has delineated the degrees of an offense

and numbered them in descending order, it has plainly expressed that each

subsequent degree is an inferior degree of those that precede it. Thus, the lead

opinion’s failure to identify an ambiguity renders its dice-loading argument

unconvincing.

But even if an ambiguity existed, the lead opinion does not justify its

application of the doctrine of constitutional avoidance.

The doctrine seeks in part to minimize disagreement between
the Branches by preserving congressional enactments that might
otherwise founder on constitutional objections. It is not designed to
aggravate that friction by creating (through the power of precedent)

14

 statutes foreign to those Congress intended, simply through fear of a
constitutional difficulty that, upon analysis, will evaporate. Thus,
those who invoke the doctrine must believe that the alternative is a
serious likelihood that the statute will be held unconstitutional.
Only then will the doctrine serve its basic democratic function of
maintaining a set of statutes that reflect, rather than distort, the
policy choices that elected representatives have made. For similar
reasons, the statute must be genuinely susceptible to two
constructions after, and not before, its complexities are unraveled.
Only then is the statutory construction that avoids the constitutional
question a “fair” one. [Almendarez-Torres v United States, 523 US
224, 238; 118 S Ct 1219; 140 L Ed 2d 350 (1998) (emphasis
added).]

In my view, there is no “serious likelihood that the statute will be held

unconstitutional.” Id. The lead opinion does not identify any authority holding

that due process concerns preclude consideration of an offense that a legislature

has formally denominated as an inferior degree of the charged offense.4

4
Schmuck v United States, 489 US 705, 717-718; 109 S Ct 1443; 103 L Ed
2d 734 (1989), does not so hold. In that case, the United States Supreme Court
held that Federal Rule of Criminal Procedure 31(c) “speaks in terms of an offense
that is ‘necessarily included in the offense charged.’” Schmuck, supra at 716.
Unlike the federal rule, which does not address formally degreed offenses, MCL
768.32(1) permits conviction of an “inferior degree” of the charged offense. The
Schmuck Court did not address formally degreed inferior offenses, nor did it hold
that the federal constitution mandates the test set forth in FR Crim P 31(c).
The lead opinion highlights language from Schmuck stating that it was
“ancient doctrine of both the common law and our Constitution that a defendant
cannot be held to answer a charge not contained in the indictment brought against
him.” Id. at 717. But the Schmuck Court was not addressing formally degreed
offenses.
The United States Supreme Court has never suggested that due process
forbids a conviction of a formally degreed lesser offense. Rather, the Supreme
Court has recognized that states employ “a variety of approaches” in determining
whether a lesser included offense instruction is warranted. See Hopkins v Reeves,
(continued…)

15

 In truth, compelling authorities do not raise a serious question regarding the

constitutionality of MCL 768.32(1). Indeed, the lead opinion cannot possibly

demonstrate a serious likelihood that MCL 768.32(1) will be held

unconstitutional, in light of the United States Supreme Court’s decision in Paterno

v Lyons, 334 US 314; 68 S Ct 1044; 92 L Ed 1409 (1948).

In Paterno, the Supreme Court upheld a guilty plea to a charge of

attempted grand larceny where the defendant was charged with receiving stolen

property. Under New York law, attempted grand larceny was not necessarily

included in the charged offense of receiving stolen property. Id. at 321 n 10. Yet

the United States Supreme Court upheld the conviction, noting that “[t]here is

close kinship between” the two offenses. Id. at 320. The Supreme Court further

explained:

It would be exaltation of technical precision to an
unwarranted degree to say that the indictment here did not
inform petitioner that he was charged with substantial
elements of the crime of larceny thereby enabling him, as a
means of cutting his sentence in half, to agree to plead guilty
to an attempted larceny. [Id. at 321.]

(…continued)
524 US 88, 96-98 & n 6; 118 S Ct 1895; 141 L Ed 2d 76 (1998). In upholding a
Nebraska conviction, the Supreme Court in Hopkins noted that Nebraska had
“alternated between use of the statutory elements test and the cognate evidence
test.” Id. at 98. The analysis in Hopkins leaves little doubt that the availability of
a lesser included offense instruction in a state criminal trial is generally a matter of
state law.
Accordingly, there is no constitutional dilemma justifying an override of
the plain language of MCL 768.32(1).

16

 Additional authorities undercut the lead opinion’s constitutional avoidance

argument. In Salinas v United States, 277 F2d 914 (CA 9, 1960), the defendant

was charged with first-degree arson in the United States District Court for Alaska.

The trial court instructed the jury that the charge of first-degree arson included a

charge of second-degree arson. First-degree arson required proof that the

defendant had willfully burned “‘any dwelling house . . . or any kitchen, shop,

barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining

thereto . . . .’” Id. at 916, quoting § 65-5-1, ACLA Supplement. Second-degree

arson proscribed burning “any building or structure of whatsoever class or

character” not included in the first-degree arson provision. Id. The defendant had

burned down a restaurant containing living quarters on the second floor. The jury

found the defendant guilty of second-degree arson.

The Ninth Circuit Court of Appeals held that the defendant’s conviction of

the inferior degree of arson did not violate due process. It explained:

Often a particular crime is graded or classified into degrees
“* * * in order that the punishment may be adjusted with reference
to the presence or absence of circumstances of aggravation.” Davis
v Utah Territory, 1893, 151 U.S. 262, 266, 14 S. Ct. 328, 329, 38 L.
Ed. 153. Where a substantive crime is so divided, the elements
necessary to the commission of the crime itself are the same in each
instance, but the degree of culpability differs depending upon the
category in which the circumstances place the offense. [Salinas,
supra at 917.]

Thus, “where the indictment sets out a crime divided into degrees the defendant is

put on notice of the particular offense charged against him together with any

17

aggravating circumstances appearing by additional averments.” Id. (emphasis

added).

The Salinas court further explained:

The well settled rule, recognized in Alaska by two statutes, is
that when an indictment charges a crime in which a lesser offense is
necessarily included, or charges a higher degree of a particular
offense that is divided into degrees, the accused, although acquitted
of the greater offense or of the higher degree of the same offense
may, consistent with the requirements of due process, be convicted
of a lesser included offense or a lower degree of the offense charged.
[Id. (emphasis added).]

Notably, one of the Alaska statutes contained language nearly identical to our

provision, MCL 768.32(1).5

The defendant in Salinas argued that second-degree arson was a separate

and distinct offense because it was not necessarily included in the charge of first-

degree arson. The defendant contended that first-degree arson could be committed

without first having committed second-degree arson, thereby failing a test

articulated in Giles v United States, 144 F2d 860, 861 (CA 9, 1944), and House v

State, 186 Ind 593; 117 NE 647 (1917). The Salinas court rejected that argument:

This test is of doubtful application in determining whether the
elements of a lesser degree of a substantive crime, divided into
several degrees, are included in a charge of a higher degree of that
crime; it is more appropriate where different crimes are being

5
The Alaska statute provided: “‘That upon an indictment for a crime
consisting of different degrees, the jury may find the defendant not guilty of the
degree charged in the indictment and guilty of any degree inferior thereto, or of an
attempt to commit the crime or any such inferior degree thereof.’” Id. at 918 n 3,
quoting § 66-13-73, ACLA.

18

 considered. The elements of a single crime divided into degrees are
the same in each instance, and only one crime can be committed.
The aggravation of the basic offense may vary in each degree; the
substantive crime, with its elements, remains the same. The Giles
case did not seek to apply the above test to determine the sufficiency
of an indictment that charged one crime divided into degrees, but
rather whether one crime was necessarily included in another,
different crime. This was also the situation in the House case where
the rule originated; there the court was careful to note specifically
that it was not dealing with an offense divided into degrees.

We are inclined to view the two statutes relating to first and
second degree arson as commonly denouncing but one crime—that
of arson. As it relates to buildings and structures, this crime is
divided into two grades, the one being more aggravated than the
other by reason of the particular nature of the building burned, i.e., a
dwelling house. Consequently an indictment charging the more
aggravated degree necessarily contains all of the elements of the
lower degree. [Salinas, supra at 918.]

Similarly, in State v Foster, 91 Wash2d 466; 589 P2d 789 (1979), the

defendant was charged with first-degree assault with intent to kill, and the court

instructed on second-degree negligent assault. The jury found the defendant guilty

of second-degree negligent assault. The defendant claimed that he was deprived

of his constitutional right to notice of the accusation against him, and that he could

be convicted of second-degree assault only if it were included in first-degree

assault. The Washington Supreme Court rejected this argument:

The general rule regarding this right is that the crimes of
which a person can be convicted, and those on which a jury is
properly instructed, are limited to those which are charged in the
information. . . . There are two exceptions to this rule: (1) where a
defendant is convicted of a lesser included offense of the one
charged in the information . . . ; and (2) where a defendant is
convicted of an offense which is a crime of an inferior degree to the

19

 one charged, pursuant to RCW 10.61.003. [Id. at 471 (emphasis
added).]

The Washington statute was worded nearly identically to MCL 768.32(1).6 The

Foster court held that “this statute gave appellant sufficient notice that he was

subject to a conviction of second-degree negligent assault.” Foster, supra at 471.

The Foster Court also found Salinas persuasive:

Similarly [to the analysis in Salinas], we conclude that both
the first-degree and second-degree assault statutes proscribe but one
offense—that of assault. Since the offense upon which the trial
court instructed the jury is a lesser degree crime of the one with
which he was charged and the two crimes, namely assault, are not
separate and distinct from one another, we conclude that appellant
was given sufficient notice to satisfy the requirements of [the state
constitution] and the Sixth Amendment. [Id. at 472.]

Like in Salinas and Foster, our Legislature has formally divided the offense

of criminal sexual conduct into degrees and numbered them in descending order.

Thus, criminal sexual conduct is but one offense divided into several degrees, and

CSC II is, by legislative definition, an inferior offense of CSC I. Defendant

received adequate notice of the nature of this charge.

Finally, the lead opinion has offered no reason to believe that MCL

768.32(1) is unconstitutional as applied to defendant.7 MCL 768.32(1) provided

6
The Washington statute provided: “Upon an indictment or information for
an offense consisting of different degrees, the jury may find the defendant not
guilty of the degree charged in the indictment or information, and guilty of any
degree inferior thereto, or of an attempt to commit the offense.” RCW 10.61.003
(emphasis added).

20

notice to defendant because the plain language of the statute permits the trier of

fact to consider a lesser degree of CSC. Moreover, defendant certainly had notice

that a rational view of the evidence supported a CSC II conviction. It was, after

all, defendant’s own admission that he had touched the victim’s vagina that led the

court to find him guilty of CSC II. It is simply untenable to suggest that defendant

(…continued)
7
See People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (1981), citing
United States v Raines, 362 US 17, 20; 80 S Ct 519; 4 L Ed 2d 524 (1960).
Rather than offering legal analysis to establish that MCL 768.32(1) is
unconstitutional as applied to defendant, the lead opinion selectively quotes from
the prosecutor’s supplemental brief. The lead opinion characterizes the
prosecutor’s supplemental brief as conceding that “‘given the modern rise of
complex offenses with multiple alternative elements, it is possible for due process
to be raised in a given case . . . .’” Ante at 21. The lead opinion perhaps pointedly
omits the prosecutor’s subsequent statement that “this case is plainly not such a
case, and this court should await a viable ‘as applied’ challenge to the statute
before addressing that question.” Prosecutor’s supplemental brief, pp 10-11
(emphasis added). Moreover, the chief appellate prosecutor further explains that
he “has, in over 31 years, never seen or heard of such a case actually existing, and
does not believe the court will ever encounter one.” Prosecutor’s supplemental
brief, p 11 (emphasis added).
Thus, when read in context, the prosecutor’s statement is hardly a
“concession.” The lead opinion offers no evidence to rebut the prosecutor’s view
that no case implicating due process concerns under MCL 768.32(1) is likely to
arise. Thus, the lead opinion not only fails to explain how the statute is
unconstitutional as applied to defendant, but it also fails to demonstrate a serious
likelihood that it will ever be held unconstitutional, as the lead opinion must do
before applying the canon of constitutional avoidance. Almendarez-Torres, supra
at 238.

21

had no notice of his own confession, or that use of that confession somehow

violated due process.8

In my view, the Legislature is entirely free to correct the lead opinion’s

rewrite of MCL 768.32(1). The lead opinion has not held that the statute is

unconstitutional. Instead, the lead opinion has merely applied a canon of statutory

interpretation known as the doctrine of constitutional avoidance.9

IV. HARMLESS ERROR

Even accepting the lead opinion’s contention that an error occurred, it

would be harmless.10 As the alleged error here is unpreserved and

nonconstitutional, it is reviewed for plain error affecting substantial rights. People

v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

8
The lead opinion states that defendant may have adopted a different trial
strategy, by objecting to police testimony regarding his confession, if he had
known the court would consider CSC II. Ante at 15. The lead opinion does not
reveal how it divined that defendant would have interposed such an objection, nor
does the lead opinion identify a source in the record to challenge the admission of
defendant’s confession. Indeed, defense counsel likely opted for a bench trial with
the firm hope that the judge would convict defendant of a lesser offense, even
though the defense theory was that no sexual incident occurred.
9
See Clark v Martinez, 543 US 371, 381-382; 125 S Ct 1716; 160 L Ed 2d
734 (2005) (explaining that “[t]he canon is not a method of adjudicating
constitutional questions by other means,” that “one of the canon’s chief
justifications is that it allows courts to avoid the decision of constitutional
questions,” and that “when a litigant invokes the canon of avoidance, he is not
attempting to vindicate the constitutional rights of others,” but rather “to vindicate
his own statutory rights”) (emphasis in original).
10
Errors regarding lesser included offenses are subject to harmless error
review. Cornell, supra at 361.

22

 In considering whether defendant’s substantial rights were affected, I would

note that under Cornell, the trier of fact may consider an inferior offense only if it

is supported by a rational view of the evidence. This aspect of our holding in

Cornell must apply to all inferior offenses, both formally degreed offenses and

those that are inferior under the Cornell rule of construction. As we explained in

Cornell: “To permit otherwise would be inconsistent with the truth-seeking

function of a trial, as expressed in MCL 768.29.” Cornell, supra at 357-358.11

That rationale applies equally here.

In this case, a rational view of the evidence supported the court’s decision

to convict defendant of CSC II. The victim testified that defendant fondled her

vagina. This testimony is consistent with defendant’s own admission, given

during a police interview.12 Thus, the court’s finding that defendant was guilty of

two counts of CSC II was permissible under MCL 768.32(1).

11
MCL 768.29 provides, in relevant part:
It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a view to
the expeditious and effective ascertainment of the truth regarding
the matters involved. [Emphasis added.]
12
Specifically, defendant admitted that while he and the 15-year-old
complainant were alone in the stairwell, he “touched her vagina.” He stated that
the complainant “grabbed his penis, and attempted to put it inside her vagina.”
Defendant stated that he then “put both his arms around [the complainant] at the
time, and his hand went between [her] legs, touching her vagina.” Defendant
admitted that, when someone came to a nearby door, he pushed the door back with
his arm.

23

 The lead opinion incorrectly asserts that the defense at trial was focused on

a charge that defendant had sexually penetrated the victim. Ante at 14. Justice

Markman’s concurrence reflects a similar misunderstanding of the record. He

states that defendant “likely failed to object to or otherwise refute the introduction

of a statement he made to the police admitting sexual contact, because it was not

relevant to his defense that no sexual penetration had occurred.” Ante at 4

(emphasis in original). Justice Markman further characterizes defendant’s defense

as claiming that “while he may have done something inappropriate, he did not

commit CSC I.” Ante at 4.

In truth, defendant claimed that no sexual touching of any kind occurred,

and that he never made the statement to the police. Indeed, defense counsel stated

in closing argument that “the question that obviously this Court is left to take a

look at is whether beyond a reasonable doubt it’s been proven that Mr. Nyx had in

fact improper contact with this defendant [sic].” (Emphasis added.) Defense

counsel then challenged the testimony of prosecution witnesses, noting that there

were “contradicting stories” from the complainant and another witness: “It’s [sic]

contradicting stories as to when it happened, allegedly; what allegedly happened,

on what day this allegedly happened.” Defense counsel further discussed

inconsistencies between the police reports and hospital records regarding the

complainant’s version of the crime. In short, the defense theory was that no sexual

24

incident occurred, not that defendant engaged in sexual contact short of

penetration.

Nor did the defense attempt to rely on defendant’s confession. The defense

strategy at trial was to suggest that defendant did not make a statement. During

the cross-examination of police witnesses, defense counsel attempted to challenge

their credibility. For example, counsel elicited testimony that the officer who took

the statement did not record the interview and did not note certain events that

occurred during the making of the statement. In closing argument, counsel

discussed a notation in a police document suggesting that no statement was

made.13 Thus, defense counsel plainly did not rely on the confession to suggest

that defendant did something “inappropriate” short of penetration.

For these reasons, the defense at trial would not have changed had

defendant known that the judge would convict him of CSC II instead of CSC I.

Thus, even accepting the lead opinion’s view that an error occurred, I would

13
For example, defense counsel argued:
The information provided by the officer states that there’s the
statement. It’s not a written statement. It’s not reduced to writing.
It’s not included in the Request for Warrant, although the
information provided by both officers is that allegedly it’s known on
the 21st, and that in fact, looking at Investigator [Audrey] Thomas’
request, that it was not a statement made. There were no admissions
and no statements made by Mr. Nyx.
Defense counsel was thus challenging whether the statement was made. He
manifestly was not arguing that the statement was correct and that defendant thus
engaged in only sexual contact and not penetration.
(continued…)

25

conclude that it did not affect defendant’s substantial rights, and that reversal is

therefore not required under Carines.

V. RAMIFICATIONS OF THE MAJORITY’S DECISION

The broader consequence of the lead opinion’s adoption of its new rule of

criminal procedure and new definition of substantive criminal law is that CSC II is

no longer an inferior degree of CSC I. Indeed, it seems that any “cognate”

degreed offense cannot qualify as an inferior offense.

The Court’s decision affects all formally degreed offenses until such time

as our appellate courts clarify the status of each degreed offense. Prosecutors will

now have the burden of charging each degree of an offense that they wish to have

considered, and to present often-confusing alternative arguments and proofs to the

trier of fact for each degree of the offense charged. We will face a cottage

industry of litigation to decipher whether each formally degreed offense is truly

necessarily included or merely cognate.

As the lead opinion acknowledges, our Legislature has chosen to classify

many crimes as formally degreed offenses.14 To avoid claims of ineffective

assistance of counsel, defense lawyers must now argue that any lesser degreed

(…continued)

14
See ante at 10, noting that the list of formally degreed offenses includes,
at least, murder, CSC, home invasion, child abuse, vulnerable adult abuse, retail
fraud, fleeing and eluding, and money laundering.

26

offense is not truly “inferior.” Indeed, counsel’s failure to object with regard to a

lesser degree at a trial or plea hearing, or affirmative acquiescence in the inclusion

of the lesser degree, will allow a defendant to argue on appeal that trial counsel

was ineffective. We will spend years sorting out the consequences of this new

rule.

The sensible rule that Cornell restored to Michigan is being upset by this

decision. There are clear practical effects that will follow as a result of the lead

opinion. Testifying before a jury is a nerve-wracking experience, and witnesses

often offer more tentative statements at trial than those they made during the

police investigation. Hence, a prosecutor can never know which statements of a

CSC victim may be accepted as true by the trier of fact or the weight that will be

given to them. In order to assure that an offender does not escape responsibility

for his crime, a prosecutor will now be required to charge CSC II as an alternative

count whenever bringing a charge of CSC I, or risk the possibility of acquittal

where the victim’s testimony at trial may not be as strong as anticipated. The

same charging requirement would hold true for any other crime for which this

Court has not definitively held that the lesser degreed offense is also a “necessarily

included” offense. Thus, this decision heralds a revival of Ora Jones. Now, the

decision of which cognate lesser offense will be included will move from the end

of the trial when proofs have been adduced to the prosecutor’s charging decision

before any evidence has been presented.

27

 Finally, defendants will also suffer negative consequences with the new

rule. Take, for example, a case where the prosecutor has charged a defendant with

CSC I involving a 12-year-old girl (and decides not to charge CSC II as an

alternative count). If the defendant disputes penetration but not sexual contact, he

will face an all-or-nothing verdict instead of offering the jury the reasonable

alternative of convicting him of that which he admitted: CSC II.

VI. CONCLUSION

I would hold that under the plain language of MCL 768.32(1), a fact-finder

may convict a defendant of a legislatively denominated inferior degree of the

charged offense if a rational view of the evidence supports the conviction. The

Cornell rule of construction for determining whether an offense is “inferior” does

not apply where the Legislature itself has formally divided an offense into degrees.

In any event, it appears that CSC II is necessarily included in CSC I,

notwithstanding this Court’s contrary statement in Lemons. Moreover, any error

was harmless in light of the fact the defense at trial was that defendant engaged in

no sexual touching with the complainant. There is no ambiguity in the text of

MCL 768.32(1) to warrant application of the canon of constitutional avoidance,

nor is there a serious likelihood that the statute will be held unconstitutional. I

28

would thus reverse the judgment of the Court of Appeals and remand the case to

that Court to address defendant’s remaining appellate issues.

Maura D. Corrigan

29