People v. Carlson
779 N.W.2d 821
Mich.
2010
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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. JOSEPH RYAN CARLSON, Defendant-Appellee.

SC: 140264

Michigan Supreme Court

March 31, 2010

COA: 287420; Kent CC: 07-006211-FC

Marilyn Kelly, Chief Justice; Michael F. Cavanagh, Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young, Jr., Stephen J. Markman, Diane M. Hathaway, Justices

Order

On order of the Court, the application for leave to appeal the November 5, 2009 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE only that part of the judgment of the Court of Appeals that vacates the defendant‘s convictions of and sentences for first-degree criminal sexual conduct based on oral penetration of the victim and REMAND this case to the Court of Appeals. The challenged evidence that was found to be arguably admissible by the Court of Appeals supported a finding of cunnilingus, which, by definition, is penetration. See MCL 750.520a(r). On remand, the court is to consider whether that evidence was admissible under the circumstances of this case. See . The court shall also determine whether a remand for a new trial is appropriate pursuant to . In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.

We do not retain jurisdiction.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 31, 2010

Clerk