PEOPLE v NYX
Docket No. 127897
Supreme Court of Michigan
July 18, 2007
Argued November 14, 2006 (Calendar No. 4). Decided July 18, 2007.
479 MICH 112
In an opinion by Chief Justice TAYLOR, joined by Justice MARKMAN, and an opinion by Justice CAVANAGH, joined by Justice KELLY, in which he concurred in the result only, the Supreme Court held:
The Court of Appeals properly vacated the defendant‘s CSC II conviction.
In an opinion by Chief Justice TAYLOR, joined by Justice MARKMAN, and an opinion by Justice YOUNG, joined by Justice WEAVER, the Supreme Court held:
A defendant charged with an offense consisting of various degrees may not, consistent with
Chief Justice TAYLOR, joined by Justice MARKMAN, stated that a defendant charged with an offense consisting of various degrees may not, consistent with
Justice MARKMAN, concurring, agreed fully with the lead opinion, but wrote separately to articulate that the rule proposed by the dissent is particularly unfair in the context of the criminal sexual conduct (CSC) statutes because it would allow a defendant charged with criminal sexual penetration (CSC I) to be convicted of a related, but separate, criminal act of criminal sexual contact (CSC II).
Justice CAVANAGH, joined by Justice KELLY, concurring in the result only, agreed that the Court of Appeals decision to vacate the defendant‘s conviction for CSC II should be affirmed because the defendant did not have adequate notice that he faced that charge, but did not join the lead opinion in full because its characterization of the word “inferior” is contrary to the established definition and historical use of the term.
Affirmed; remanded to the trial court for an order of discharge.
Justice YOUNG, joined by Justice WEAVER, concurring in part and dissenting in part, concurred that
Justice CORRIGAN, dissenting, would hold that under the plain language of
CRIMINAL LAW - CHARGED OFFENSES - UNCHARGED OFFENSES.
A defendant charged with an offense consisting of various degrees may not be convicted of a lesser degree of the charged offense where the lesser degree contains an element not found within the higher degree (
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.
John F. Royal for the defendant.
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
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.
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 occurred and that “sometimes kids exaggerate.”2 The court then convicted defendant of two counts of CSC II (sexual contact for the purpose of
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
We granted the prosecutor‘s application for leave to appeal.4
II. STANDARD OF REVIEW
Whether
III. ANALYSIS
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 сharged in the indictment....”
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 that the perpetrator of a sexual penetration had
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
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
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.]
Thus, Cornell construed
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 instruсtion. [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
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
To reiterate,
The prosecution would have us interpret
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 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 of-
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 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
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 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
IV. THE ERROR WAS NOT HARMLESS
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
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
In rendering its verdict, the trial court acquitted defendant of CSC I. Thus, defense counsel was successful in obtaining an acquittal оf the charged offense.37 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
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
Justice CORRIGAN correctly asserts that CSC II, III, and IV “carry less severe maximum punishments,” post at 155, 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 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
Justice CORRIGAN also accuses the majority of invoking the constitutional avoidance doctrine without first identifying an ambiguity in the statute. Post at 165. Our casеlaw 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 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 154. 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....”
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.
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.
Finally, Justice CORRIGAN, post at 161-165, 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 162, 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
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 163.
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 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 рurpose 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.
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 CSC II statute.55 That is, the
VI. CONCLUSION
For the reasons we stated, we hold that
MARKMAN, J., concurred with TAYLOR, C.J.
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 оr 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.
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
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 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 “has obviously modified our understanding of the intent required to prove CSC I.” Post at 163. 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 163 (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).
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
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.
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
KELLY, J., concurred with CAVANAGH, J.
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,”
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),
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 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 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, 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
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 “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.”
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
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:
- (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.
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 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
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
III. HARMLESS ERROR
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
The lead opinion contends that defendant, being charged only with CSC I, tendered an “all or nothing” defense regarding whether “defendant had sexually 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 Walker20 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
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 by Mr. Nyx.” Therefore, rather than claim that the statement was involuntary or the product of coercion, defense counsel made the strategic decision to
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. 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
IV. CONCLUSION
I agree that
I would reverse the judgment of the Court of Appeals and remand the case to that Court to address defendant‘s remaining appellate issues.
WEAVER, J., concurred with YOUNG, J.
CORRIGAN, J. (dissenting). I respectfully dissent.
I. INTERPRETATION OF MCL 768.32(1)
[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
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
As early as 1869, this Court made clear that the predecessor of
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 degrеe 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
Similarly, this Court in Cornell did not exclude offenses that have been formally divided into degrees from the scope of
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
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 constitutional authority when it (1) enacted
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 121. 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” has some hidden, counterintuitive meaning that would render
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),
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 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
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
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(1) ; MSA 28.788(1)(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 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 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,
I therefore question the lead opinion‘s contention that the statutory definition of “sexual contact” contains a subjective motivation or specific intent requirement.
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.
The lead opinion offers a series of hypothetical situations that satisfy the elements of sexual penetration, but allegedly do not constitute “sexual contact.” But
III. CONSTITUTIONAL AVOIDANCE
The lead opinion applies the canon of constitutional avoidance. It reasons that applying
In invoking the constitutional avoidance doctrine, the lead opinion has omitted a crucial step by failing to identify any ambiguity in
The lead opinion omits an ordinary textual analysis to explain why
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) 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 truth, compelling authorities do not raise a serious question regarding the constitutionality of
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.]
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.
Often a particular crime is graded or classified into dеgrees “* * * 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 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,
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 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 Wash 2d 466; 589 P2d 789 (1979), the defendant was charged with first-degree assault with intent to kill, and the court instructed on
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 one charged, pursuant to
RCW 10.61.003 . [Id. at 471 (emphasis added).]
The Washington statute was worded nearly identically to
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
In my view, the Legislature is entirely free to correct the lead opinion‘s rewrite of
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
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
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
The lead opinion incorrectly asserts that the defense
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 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
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 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.
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 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
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
Notes
The lead opinion‘s suggestion that
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, 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
Rather than offering legal analysis to establish that
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
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.]
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.
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. Grant, supra at 552-553; United States v Olano, 507 US 725, 731-734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). See ante at 122, 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.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.
[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.
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.