PEOPLE OF MI V DAVID H MCGEE

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 13, 1999 Plaintiff-Appellee, v No. 205968 Recorder’s Court LC No. 96-500864 DAVID H. MCGEE, Defendant-Appellant. Before: Gribbs, P.J., and Griffin and Wilder, JJ. PER CURIAM. Defendant appeals as of right from his jury trial conviction of first-degree criminal sexual conduct, involving a mentally disabled victim over whom defendant was in a position of authority and used that authority to coerce the victim to submit, MCL 750.520b(1)(h)(ii); MSA 28.788(2)(1)(h)(ii). Defendant was sentenced to six to fifteen years’ imprisonment. We affirm. Defendant argues that the trial court erred when it refused to instruct the jury on second-degree criminal sexual conduct. We disagree. Jury instructions are reviewed in their entirety to determine if there was error. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). Even if the instructions are imperfect, no error is created if the instructions fairly present the issues to be tried and sufficiently protect the defendant’s rights. Id. The instructions must include all the elements of the crime charged and must not exclude any material issues, defenses, or theories if there is evidence to support them. Daniel, supra, 207 Mich App 53. Reversal is not required if the error was harmless. People v Mosko, 441 Mich 496, 503; 495 NW2d 534 (1992). Second-degree criminal sexual conduct is a cognate lesser offense of first-degree criminal sexual conduct because it is possible to commit first-degree criminal sexual conduct without first having committed second-degree criminal sexual conduct. People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997). Before the trial court can instruct on cognate lesser offenses, it must review the evidence to determine if it would support a conviction of the cognate lesser offense. Id. Moreover, the instruction on the cognate lesser offense must be consistent with the evidence and defendant’s theory of the case. Lemons, supra, 454 Mich 254. An instruction on second-degree criminal sexual conduct would not have been consistent with the evidence or with defendant’s theory in this case. Lemons, -1­ supra, 454 Mich 254. The trial court’s refusal to instruct the jury on second-degree criminal sexual conduct was not improper. Defendant also argues that the trial court erred in refusing to instruct the jury on third-degree criminal sexual conduct as a necessarily included lesser offense. We agree but find the error harmless. In Mosko, supra, the Michigan Supreme Court held that third-degree criminal sexual conduct is a necessarily lesser included offense of first-degree criminal sexual conduct. Mosko, supra, 441 Mich 501. If a lesser offense is necessarily included and a defendant requests an instruction on that offense, the court must instruct the jury regarding that lesser crime. People v Marji, 180 Mich App 525, 530; 447 NW2d 835 (1989), remanded on other grounds sub nom People v Thomas, 439 Mich 896 (1991). Accordingly, the trial court erred in denying defendant’s request for a jury instruction on third­ degree criminal sexual conduct. However, on the facts of this case, the trial court’s refusal to instruct on third-degree criminal sexual conduct was harmless. Mosko, supra, 441 Mich 501-503. In this case, first- and third-degree criminal sexual conduct are distinguished only by the presence or absence of a situation in which defendant was “in a position of authority over the victim and used this authority to coerce the victim to submit.” MCL 750.520b(1)(h)(ii); MSA 28.788(2)(1)(h)(ii). At trial, defendant did not dispute that he was in a position of authority over the victim. Accordingly, the trial court’s refusal to instruct the jury on third-degree criminal sexual conduct was harmless error. Mosko, supra, 441 Mich 505-506. Affirmed. /s/ Roman S. Gribbs /s/ Richard Allen Griffin /s/ Kurtis T. Wilder -2­

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