Defendant appeals as of right his conviction of two counts of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and the lower court’s denial of his motion for a new trial and evidentiary hearing. Defendant was sentenced to twenty to forty years on each count, to be served concurrently. We affirm.
On July 29, 1985, at approximately 4:00 p.m., a young girl appeared in the back of a Kentucky *3 Fried Chicken franchise located on Wеst Jefferson in River Rouge. She came into the area running fast and screaming. She appeared to be highly upset and very excited and had a large lump on her head and a bruised lip which had been bleeding. She indicated that she had just been raped and that the rapist was in the lobby of the Kentucky Fried Chicken franchise. The manager called the police while another employee tried to calm the girl down. By the time the police arrived, the man accused by the young girl had left.
At the trial, the victim testified that she was seventeen years of age and had been visiting her sister and the defendant, who was her sister’s friend. During a period of time in which the complainant and the defendant were alone in the defendant’s car, the defendant said that he wanted to go to his father’s house in Detroit to pick up a check. Defendant’s father was nоt at the house and the pair went from there to the house of a friend of defendant. While at this second house, the defendant took the complainant to a small bedroom and began showing pornographic films on the television set in the room. The complainant tried to run, but defendant grabbed her. When she started to scream, the defendant proceeded to beat her about the head and face. He then undressed the complainant and forced her to have oral sex. He put his tongue in her vagina and put his penis in her mouth. Following that, defendant put his penis in complainant’s vagina. The complainant testified that they stopped at a Kentucky Fried Chicken for ice because her face was swollen following the beating inflicted by the defendant. This is where she ran to the back of the store and told the persons therе that she had been raped and needed help. She also testified that she had taken no drugs or alcohol and that she neither made *4 advances towards the defendant during the episode nor encouraged him in any way. She insisted that he forced her and that she had no other choice than to submit because she was being beaten.
The defendant took the stand and indicated that he and the complainant had sрent the day driving around from place to place for marijuana and cocaine which they shared. He indicated that the pair had sex in the car, that there was no force, and that the complainant had been "coming on to him” for some time. A police officer testified that the complainant did not show any signs of being under the influence of either alcohol or drugs, an observation which was corrobоrated by an emergency room physician who treated the complainant. The physician indicated that complainant was crying and had swelling, tenderness and pain in her scalp and face, that movement of her jaw caused her pain, that her lip was swollen and that she was not under the influence of drugs or alcohol.
The jury’s verdicts of guilty represent their response to one count of fellatio and onе count of sexual intercourse. Only two counts went to the jury, the prosecution having moved to dismiss the third count.
Defendant raises the question whether personal injuries inflicted upon the complainant prior to multiple sexual penetrations can constitute aggravating circumstances so that each penetration is first-degree criminal sexual conduct. We are satisfied on the facts of this case that defеndant’s question can be answered in the affirmative.
Defendant’s argument stems from the obligation placed upon the prosecution to prove every element of the crime charged beyond a reasonable doubt, consonant with the due process clauses of the Fourteenth Amendment of the United States
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Constitution and Const 1963, art 1 § 17.
People v Wright,
We conclude that it was the intent of the Legislature to delineate precisely the scope of MCL 750.520b; MSA 28.788(2) by providing that when a sexual penetration is accompanied by any of the aggravating circumstances enumerated in the statute, such penetration constitutes criminal sexual conduct in the first degree. It appears from the face of the statute that the gravamen of MCL 750.520b; MSA 28.788(2) is sexual penetration accomplished under any of the enumerated circumstanсes.
Shortly after its decision in
People v Johnson, supra,
the Supreme Court peremptorily reversed
*6
two first-degree criminal sexual conduct convictions in
People v Nelson,
In Brown, the armed defendant kidnapped the complainant and sexually penetrated her four times. He was chаrged with first-degree criminal sexual conduct during the felony of kidnapping and was also charged with first-degree criminal sexual conduct while armed with a weapon. While his conviction for the first count was reversed because of deficient instructions on the asportation element of kidnapping, this Court noted:
We realize that the jury, in convicting defendant of one count of esc while armed with a dangerous weapоn, found that the prosecution had proved defendant was armed during the esc offenses. Therefore, defendant could have been convicted of all three offenses if he had been charged with committing both esc offenses while armed with a weapon. [Brown, supra, p 68, n 3.]
In
People v Dowdy,
In light of the language and focus of the statute, *7 we believe the Legislature intended to punish separately each criminal sexual penetration. . . . The offense of first-degree criminal sexual conduct has been completed after sexual penetration has occurred by any one of the enumerated circumstances. From the language of the statute, it appears that the Legislature intended to authorize separate punishment for each completed sexual penetration. We conclude that defendant’s sentences for five acts of penetration are not for the "same offense” ....
Whether physical injury prior to multiple sexual penetrations can raise all penetrations to first-degree criminal sexual conduct was addressed by this Court in
People v Payne,
What the prosecution showed by the evidence it submitted to the jury was one act of esc i and five acts of esc m (except for one instance where the jury found a lesser offense). Third-degree sexual conduct, in this case, is simply the sexual assault through force or coercion but without the injury. And this is what took place in all but the first attack. The initial beating affects the latter assaults in that it is part of the force or coercion through which defendant accomplished his assault. The use of the beating in this manner in these subsequent assaults is acceptable since there were additional instances of fear associatеd with each additional assault. But there were no additional injuries associated with the latter assaults. Holding on to the complainant’s arm between acts did *8 not create an injury sufficient to raise the assault from esc iii to esc i.
The Legislature included the highest possible punishment in this state in the penalty provision for first-degree criminal sexual conduct. Before this penalty may be imposed the prosecutor must show аll of the elements of the crime. To the extent certain elements are lacking, the offender does not go unpunished; rather, he is punished according to the lesser crime committed. In the instant case, defendant was convicted five times of esc i and was sentenced five times to the maximum penalty of life in prison. Yet all of the elements of esc i were shown only once. Only the first count can carry a cоnviction of esc i; the other counts, having no evidence to support the injury element but having evidence to support all elements of esc iii and having a jury verdict which found all of those elements, must be reduced to convictions of third-degree sexual conduct. The accompanying punishments are to be commensurate with the actions of defendant and the penalties intended by the Legislature.
In this case, thе complainant testified that she was hit in the temple, the back of the head, the mouth and the eyes after which the defendant immediately performed multiple acts of sexual penetration. After a careful review of the cases, we are constrained not to follow the majority decision in Payne. We are persuaded by both the rationale of the dissent in Payne as well as the reasoning of this Court in Brown and Dowdy. The beating visited upon the complainant immediately prior to the series of sexual penetrations is sufficient to supply the element of personal injury with respect to each of the subsequent penetrations so as to support multiple convictions under MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). We fail to see any distinction between this beating and an ongoing criminal act such as the use of a deadly *9 weapon during multiple penetrations or, for that matter, any other felony committed in close temporal proximity with the acts of penetration. The evidence in this case shows that the beating inflicted upon the plaintiff, which caused physical injury and was used by the defendant to force or coerce his accomplishment of multiple sexual penetrations, was part of a continuing series of sexual assaults. The physical injury is a common element for each of the assaults under these circumstances. There was never any indication of the defendant’s intеntion to discontinue the attack during the entire episode. See dissenting opinion by Kaufman, P.J., Payne, supra, pp 725-726.
The next question raised by the defendant is whether the trial court accurately instructed the jury of the personal injury requirement and the statute. It is alleged by the defendant that the lower court failed to specify that the prosecutor had to prove beyond a reasonable doubt that personal injury had to accompany each separate count of criminal sexual conduct in the first degree.
In
People v Burgess,
Jury instructions are reviewed in their entirety in order to determine if reversible error occurred and are not extracted piecemeal in an effort to establish error requiring reversal. Even where instructions are imperfect, there is no error if the instructions "fairly presented to the jury the issues to be tried and successfully protected the rights of the defendant.”
A verdict will not be set aside based on an alleged error in the jury instructions where no objection was made to the alleged erroneous instruction at trial unless it resulted in a miscarriage of justice. A miscarriage of justice occurs *10 when an erroneous or omitted instruction pertains to a basic and controlling issue in the case.
The Payne panel addressed the precise question defendant raises on appeal and stated that it would be "unnecessarily cumbersome and a poor administration of justice” to require the trial court to instruct "on all the elements of criminal sexual conduct for each individual count of criminal sexual conduct.” Payne, supra, p 722.
In the instant case, the trial court gave instructions on the presumption of innocence, reasonable doubt, defendant’s prior convictions, the distinction betweеn what is and what is not evidence, the nature and effect of rulings on motions and objections, the interpretation of defendant’s running away, the effect of inconsistent statements by witnesses during the course of trial, and the credibility of witnesses. The trial court then stated:
Now let’s deal with the elements of the offense charged here. We are dealing with three counts. Each count will be given separate and independent consideration by you. You will be rendering, in effect, three separate verdicts.
This was followed by instruction on lesser included offenses in general, the law on corroboration, resisting and consent in criminal sexual conduct. The trial court then gave the elements of third-degree criminal sexual conduct, fellatio, cunnilingus and sexual intercourse. The court then stated:
Now the charge that’s actually before you of coursе is a charge of criminal sexual conduct first degree. All of the elements I have given to you also require the people prove beyond a reasonable doubt in all three counts. There is then an aggravating circumstance which elevates it from crimi *11 nal sexual conduct third degree to first degree. That’s what the People are charging here, that it was, in point of fact, those aggravating circumstancеs in each count. That is, the People have to demonstrate to you that the defendant caused personal injury to the complainant. Personal injury means bodily injury. It can also include disfigurement, chronic pain, loss or impairment of a sexual organ, or mental anguish. Mental anguish means suffering which occurs at the time of the alleged act. And then, of course, once again the People have to show that it was force or coercion used.
The court concluded its instructions by stating:
In this case—and I will be giving you a verdict form. I’ll have it typed up. Now we are dealing with three counts. That is, as you know, the crime, three counts of criminal sexual conduct first degree. There are separate crimes, and the prosecution is charging the defendant committed all of them. The fact that the defendant is charged with more than one crime is not evidence. Each charge has to be considered separately in light of all the evidence in this case. You may return a verdict of guilty of all or any one or any combination of these charges, guilty of any lesser included offense of criminal sexual conduct third degree, or return verdicts of not guilty.
Defendant cites
People v
Shipp,
Finally, the defendant argues that he was denied the effective assistance of counsel and raises five separate allegations of failure to act on the part of his lowеr court counsel.
The state standard for effective assistance of counsel was established in
People v Garcia,
Defendant argues that failure to file a motion to quash at the preliminary examination forced defendant to face three counts of first-degree criminal sexual conduct rather than one count of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct. This issue is rendered moot by our ruling in defendant’s first issue. In addition, based on a review of the preliminаry exam transcript, there is sufficient evidence to support the magistrate’s findings. A motion to quash would have been frivolous.
Defendant next argues that defense counsel
*13
failed to object to the hearsay evidence presented by Officer John Westerdale, who testifed: "I had a witness tell me he (defendant) jumped into I believe it was a white small Escort station wagon.” Defendant’s theory of the case, that he was not with complainant after the sexual encountеrs, was thus weakened. However, the statement of the witness could have come in as an excited utterance. See MRE 803(2);
People v Gee,
Defendant next argues that failure to object to the jury instructions constituted ineffective assistance of counsel. We have concluded, however, that the jury instructions were not defective.
Defendant next argues that trial counsel was ineffective by failing to investigate and develop an insanity defense based on defendant’s drug dependency. A criminal defendant is denied effeсtive assistance of counsel by his attorney’s failure to properly prepare a meritorious insanity defense.
People v Parker,
In the instant case, defendant testified at trial that he is addicted to cocaine. The еvidence of that addiction was his testimony that after the encounter with complainant he had a bad reaction. Defendant presented no other evidence of incompetence. By contrast, in Conrad, supra, testimony as to the defendant’s condition by a forensic examiner showed strong evidence that the defendant had a meritorious insanity defense.
Finally, defendant argues that trial counsel failed to point out inаccuracies in the presentence report. Defendant was given two opportunities for allocution, and had two counsel to speak for him because at the first sentencing date, January 10, 1986, his original counsel did not appear but sent a replacement. The trial court rescheduled sentencing for January 15, 1986, at which time the original counsel was present. Both counsel had read the report. Further, dеfendant himself testified at trial to the three areas he raised on appeal as not being corrected by trial counsel: (1) drug treatment program; (2) ownership of the house on Woodingham; and (3) defendant’s employment. Defendant cites nothing to indicate that counsel’s failure to provide additional information rendered counsel’s assistance ineffective.
We have also reviewed defendant’s ineffective assistance of counsel argument under the federal standard of
Strickland v Washington,
Affirmed.