PEOPLE v. GOOLD, 241 Mich. App. 333

Whitbeck, J. Defendant, Randy B. Goold, appeals by leave granted. He challenges the circuit court’s order denying his motion to quash the count in the information charging him with third-degree criminal sexual conduct (esc

m) against his twenty-one-year-old stepdaughter, because she was a relative within three degrees of affinity, MCL 750.520d(l)(d); MSA 28.788(4)(l)(d). We address whether a prosecutor may charge a defendant both with criminal sexual conduct under MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) and with one or more other offenses made criminal under other sections of the statutes prohibiting criminal sexual conduct. We conclude that the statute permits filing these multiple charges as alternative theories in the same count in a criminal information, but that the district court erred in permitting the prosecutor to charge Goold with two theories of esc m in separate counts. The circuit court then erred in denying the defense motion to quash the relevant count in the information. Therefore, we reverse. I.

BASIC FACTS The complainant, who testified at a July 21, 1999, preliminary examination in the district court, stated that she arrived in Grand Rapids by bus from the state of Wyoming on June 28, 1999. She made the trip to Grand Rapids to help Goold, her stepfather for the last thirteen years, drive from Grand Rapids to Wyoming. Goold evidently picked her up from the bus station and drove her to his apartment. The complainant recalled that later that evening, while Goold was taking his bath, he called to her to come into the bathroom.

She ignored him at first, but then went near the bathroom to determine why he was calling her. Goold took that opportunity to tell her that he loved her. Goold next asked her to take a bath with him, but she refused, explaining to him that she was his daughter and he should not ask his daughter to do that kind of thing. She then walked to the front room to put on her shoes. Goold got out of the bathtub, walked into the front room in his underwear, and knelt beside her near the couch where she was sitting.

The complainant continued to remind Goold that she was his daughter and told Goold not to ask her “to do this.” Then, according to the complainant, Goold ripped, but did not remove, her shirt and bra. When she screamed, Goold covered her mouth, but she pushed his hand away. Goold then stood up, forced her to stand up, and removed her shorts, shirt, and bra. Even though she tried to push him away, Goold put his mouth on her vagina, pulled her arms down, and told her to give him oral sex.

The complainant refused, but Goold grabbed her head and forced her to give him oral sex while telling her that he did not want to have to hurt her. Goold forced her to lie on the couch and then engaged in vaginal intercourse with her before forcing her to the floor, at which time he told her to masturbate. The complainant refused, but Goold insisted and forced her hand “down there” so that she masturbated. Afterward, Goold penetrated her vagina again, first with his fingers and then with his penis.

When the complainant told Goold to stop and that she did not like what he was doing, Goold told her that he was enjoying it. After the alleged assault, the complainant said, she and Goold left the apartment, shopped for clothes and food, and then returned to the apartment to eat. After a short time, Goold took off the complainant’s shirt and pants, leaving her to sit on the couch in her bra and underwear. Goold finished eating and then told her to lie on the floor next to him. When she complied, he extended his leg over her so she could not get up.

When Goold began falling asleep, he stated that they should go to bed and walked behind her into the bedroom, where they went to bed. The complainant tried to get up when she thought Goold was sleeping, but Goold awoke and grabbed her when he felt her moving. She started to cry and, when Goold asked her what was wrong, she responded, “I don’t want to.” Goold put his mouth on her vagina and also forced his fingers inside of her vagina, but this time the complainant was able to kick Goold and run out of the apartment.

The complainant fled to a nearby house, where she told the resident that her father had raped her and asked the resident to call the police. H. PROCEDURAL HISTORY At the preliminary examination, the complainant testified that she never consented to any of the sexual conduct with Goold. As a result of Goold’s alleged attack on her, she suffered a rug bum on her back and shoulders and scratches on her arm. A nurse who examined the complainant on the morning of June 29, 1999, corroborated the complainant’s claim that she had been injured.

The nurse reported that the complainant had sustained abrasions and injuries to her shoulder area, her back, and her arms, and that the injuries to her genital area were consistent with injuries caused by forced penile-vaginal penetration. The nurse also stated that the complainant was tearful and shaking at the time of the examination. After the nurse testified, the prosecutor asked the district court to bind over Goold on the three counts included in the felony complaint. The three counts in the complaint included two counts of criminal sexual conduct in the first degree (CSC

I) and one count of esc m. The CSC m count was based on Goold’s use of force or coercion in engaging in sexual penetration with the complainant contrary to MCL 750.520d(l)(b); MSA 28.788(4)(l)(b). At the preliminary examination, however, the prosecutor also asked the district court to bind over Goold on an additional count of CSC in pursuant to MCL 750.520d(l)(d); MSA 28,788(4)(l)(d), which prohibits sexual penetration between persons related within three degrees of affinity. The district court bound over Goold to the circuit court as originally charged and on this additional CSC m count.

In the circuit court, Goold moved to quash the additional CSC m affinity count, and the circuit court held a hearing regarding this motion. At the hearing, the circuit court denied Goold’s motion to quash the additional CSC in affinity count, but granted Goold’s motion to adjourn proceedings so that Goold could seek this interlocutory appeal. This Court granted Goold’s application for leave to appeal, limiting review to whether the circuit court erred in denying Goold’s motion to quash the CSC m affinity count of the information. HI. CHARGING CRIMINAL SEXUAL CONDUCT A.

ARGUMENTS ON APPEAL MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) prohibits “sexual penetration with another person” if “[t]hat other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter.” Goold argues that this provision specifically prohibits a prosecutor from charging a defendant under MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) unless the “penetration occurs under circumstances not otherwise prohibited under this chapter.” He contends that the prosecutor could not charge him with this specific offense because the testimony at the preliminary examination indicates that the penetration occurred under circumstances supporting esc I and other esc in counts, which are circumstances “otherwise prohibited” under the criminal sexual conduct chapter. The prosecutor argues that, under the clear language of the statute, it is apparent that the Legislature did not intend to preclude a prosecutor from charging these offenses in the alternative.

According to the prosecutor, the statute only prohibits a defendant from being convicted of CSC m by virtue of the defendant’s familial relationship with the victim and another

section of the

chapter prohibiting criminal sexual conduct. The prosecutor contends that because the statute does not preclude the prosecutor from charg ing this additional count and the evidence presented at the preliminary examination supported a claim of CSC in involving affinity, the district court did not err in binding over defendant on the additional esc m count. Therefore, we consider whether the language of MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) precluded the district court from binding over Goold on the additional CSC m affinity count because Goold’s alleged conduct implicated other statutes prohibiting criminal sexual conduct. B. PRESERVATION OF THE ISSUE AND STANDARD OF REVIEW Goold preserved this issue for appeal by moving to quash the CSC m affinity count of the information. See People v Miller, 130 Mich App 116, 117; 342 NW2d 926 (1983). The issue on appeal centers on the meaning of the criminal statutes at issue in this case and, therefore, is primarily a question of law, which we review de novo.

People v Hammons, 210 Mich App 554, 557; 534 NW2d 183 (1995). C. STATUTORY CONSTRUCTION This Court must construe MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) by giving effect to legislative intent as evidenced by the plain meaning of the language. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). If the language of the statute is unambiguous, this Court must enforce it without any further analysis. Id. Only when “reasonable minds” could disagree regarding the proper meaning of the statute does the Court have a role in interpreting it. People v Joseph, 237 Mich App 18, 21; 601 NW2d 882 (1999).

The key language in MCL 750.520d(l); MSA 28.788(4)(1) states that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the” aggravating circumstances enumerated in the statute also “exist.” Thus, as a whole, MCL 750.520d(l); MSA 28.788(4)(1) focuses on the distinction between guilt and innocence of the proscribed acts; MCL 750.520d(l); MSA 28.788(4)(1) does not focus on, or even mention, a prosecutor’s ability to charge a person with committing acts prohibited under the statute, even though a criminal charge is a preliminary step toward the factfinder’s ultimate decision concerning a defendant’s guilt or innocence.

When reading both the introduction to the CSC m statute in subsection 1 and the aggravating circumstance enumerated in subsection 1(d), this language unambiguously provides that a defendant can be found guilty, i.e., convicted, of CSC m only if the sexual penetration occurs “under circumstances not otherwise prohibited by this chapter.” Accordingly, the prosecutor may present the factfinder with a esc m charge relying on evidence of affinity as well as other CSC charges and theories.

In that situation, if the factfinder determines that the evidence establishes a factual basis on which to convict the defendant of CSC m on the basis of familial affinity, the factfinder may return a guilty verdict on that charge only if it does not convict the defendant of any other CSC charge involving penetration. Therefore, the district court in this case did not err in implicitly concluding that the prosecutor could charge Goold with esc m involving a familial relationship within three degrees of affinity along with the other esc charges. D.

PEOPLE V ROGERS Goold also argues that even if MCL 750.520d(l)(d); MSA 28.788(4)(l)(

d) does not preclude the prosecutor from charging him with other esc offenses, the prosecutor should be forced to choose only one esc m offense pursuant to the Supreme Court’s decision in People v Rogers, 438 Mich 602; 475 NW2d 717 (1991). Rogers suggests that, when two separate statutes prohibit the same conduct, a prosecutor has discretion to decide under which statute to prosecute the defendant. Id. at 607-609. This case, however, does not involve prosecution under two separate statutes for the same allegedly criminal conduct.

Instead, this case involves the same alleged criminal conduct, sexual penetration, prosecuted under the same statute, MCL 750.520d; MSA 28.788(4), with different aggravating elements, affinity between the perpetrator and victim or penetration accomplished with force or coercion. Goold’s argument that a prosecutor does not have discretion to prosecute the same conduct using all possible statutes is, in general, wrong.

A prosecutor has broad discretion when charging defendants, People v Venticinque, 459 Mich 90, 100-101; 586 NW2d 732 (1998), and “it is generally permissible [for a prosecutor] to charge in a single information all offenses which do arise out of a single criminal transaction or occurrence,” People v Nicolaides, 148 Mich App 100, 102; 383 NW2d 620 (1985). In this situation, the prosecutor must charge a defendant under a single count using alternative theories, but the prosecutor does not have to elect one theory over the other. Id. at 102-103.

In the present case, the district court erred in allowing the prosecutor to add esc m aggravated by affinity as a separate charge to the criminal complaint rather than merely amending the preexisting esc m charge to include affinity as an alternative theory to force or coercion. The circuit court failed to correct this error. Accordingly, we reverse the circuit court’s decision denying the motion to quash the count alleging CSC n aggravated by the affinity between Goold and the complainant. Reversed.

This statute punishes what is commonly known as incest without regard to the parties’ consent to the sexual activity. We are cognizant that the charges against Goold are, at this point, only allegations in a criminal information and that the prosecutor bears the burden of proving Goold’s guilt beyond a reasonable doubt. The record does not reveal what thought, if any, the district court gave to the distinction between charging a defendant with esc m aggravated by affinity and other esc offenses and convicting a defendant of that specific esc in offense as well as other esc offenses.

Nevertheless, the district court reached- the correct result in this case. Ordinarily, when a lower court reaches the right result, even for the wrong reason, this Court will affirm. People v Chavies, 234 Mich App 274, 284; 593 NW2d 655 (1999). However, a separate error in this case requires reversal.

Goold does not specifically argue that the circuit court erred in denying the motion to quash the fourth count of the criminal information because the prosecutor should have charged it as an alternative, rather than separate, count However, we believe that this argument is implicit in Goold’s contention that the circuit court should have forced the prosecutor to elect between the separate esc m counts. We note that MCE 6.112(

G) permits the prosecutor, in the exercise of discretion, to amend the criminal information unless it would cause unfair surprise or prejudice. The prosecutor can certainly follow this course of action on remand. Should this case eventually go to trial, we emphasize that Goold cannot, under the plain language of MCL 750.520d(l)(d); MSA 28.788(4)(l)(d), be convicted of the esc m affinity charge if he is convicted of any of the other CSC charges. If a jury sits as factfinder in a trial in this case, the instructions to the jury should make this choice clear.