PEOPLE OF MI V LOUIS V PERRY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 26, 2002
Plaintiff-Appellee,
v
No. 228141
Wayne Circuit Court
LC No. 99-010023
LOUIS V. PERRY,
Defendant-Appellant.
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of fourth-degree criminal sexual
conduct (CSC IV) (use of force or coercion), MCL 750.520e(1)(b).1 The trial court sentenced
defendant to three years’ probation. Defendant appeals as of right. We reverse.
This case arises out of defendant’s alleged sexual assault on a cleaning lady he had lured
into his apartment under the guise of providing an estimate for cleaning his apartment. While the
complainant was in his apartment, defendant made an indecent proposal to her, grabbed her
hand, pulled her into the kitchen, and then kissed and groped her. Defendant was originally
charged with assault with intent to commit a felony, to-wit pandering, MCL 750.455, 750.87, but
was convicted of the uncharged offense of CSC IV. The trial court held that CSC IV was a
lesser included offense of the original assault.
Defendant argues that the trial court erred in convicting him of CSC IV – in effect sua
sponte amending the information to charge a new offense – because CSC IV is not a necessarily
included or cognate offense of assault with intent to commit a felony. We agree.
A trial court may amend an information at any time before, during, or after trial in order
to cure any defect, imperfection, or omission in form or substance, including a variance between
information and proofs, as long as the accused is not prejudiced by the amendment and the
amendment does not charge a new crime. MCL 767.76; People v Higuera, 244 Mich App 429,
1
The order of conviction and sentence erroneously indicates that defendant was convicted of
MCL 750.520e(1)(a), which involves a victim between the ages of thirteen and sixteen years. It
is clear from the trial court’s finding that there was a “forceful touching of a person” and that
defendant was convicted under MCL 750.520e(1)(b).
-1-
444; 625 NW2d 444 (2001); People v Perry, 460 Mich 55, 65-66; 594 NW2d 477 (1999). MCL
768.32(1) allows the court as the factfinder to find the accused not guilty of the offense in the
degree charged in the indictment but guilty of a degree of that offense inferior to that charged in
the indictment, or of an attempt to commit that offense.
There are two types of lesser included offenses: necessarily included offenses and
cognate lesser offenses. People v Marji, 180 Mich App 525, 630; 447 NW2d 835 (1989),
remanded on other grounds sub nom People v Thomas, 439 Mich 896 (1991). A necessarily
included offense is one that must be committed as part of the greater offense, and it is impossible
to commit the greater without first having committed the lesser. People v Bearss, 463 Mich 623,
627; 625 NW2d 10 (2001); People v Veling, 443 Mich 23, 36; 504 NW2d 456 (1993). The
evidence at trial will always support the lesser offense if it supported the greater. Id.
Conversely, a cognate offense is an offense of the same class as the greater offense but contains
not only elements in common with the charged offense but also elements not found in the
charged offense, Bears, supra at 627, and must protect the same societal interests. People v
Hendricks, 446 Mich 435, 447; 521 NW2d 546 (1994).
A defendant has a due process right to have notice of the charges against him before he
can be convicted of them. US Const Ams VI, XIV; Const 1963, art 1, § 20. This state’s cognate
lesser offense doctrine has its origin in this concern for the defendant’s due process rights. Thus,
the validity of defendant’s conviction hinges on whether CSC IV could be properly considered a
cognate lesser included offense of the charged crime sufficient to provide notice to defend
against that charge. Assault with intent to commit a felony protects a different societal interest
from CSC IV, and the Legislature has seen fit to designate the offenses as protecting different
societal interests. In People v Cobriere, 220 Mich App 260, 264; 559 NW2d 666 (1996), this
Court affirmed its position that criminal sexual conduct statutes and assault statutes were enacted
to protect distinct legislative interests. The Court stated that criminal sexual conduct statutes
were enacted to strengthen laws proscribing certain kinds of sexual conduct, contrasted with
assault statutes designed to address general contact among individuals and preserve safety and
security by protecting people against corporeal harm. Id. The Court continued:
In enacting criminal sexual conduct statutes, the Legislature chose not to
have sexual misconduct prosecuted under the general assault statutes or to
identify criminal sexual conduct as a heightened degree of assault. Instead, the
Legislature devised a comprehensive statutory scheme harshly penalizing limited
and specifically defined forms of sexual contact. [Id. at 265.]
Moreover, the elements of the offenses of assault with intent to commit pandering and
CSC IV are sufficiently dissimilar to negate a finding that they are cognate offenses. Pandering
is a specific intent crime and requires that the defendant knowingly and intentionally “persuade,”
through force or otherwise, the complainant to become a prostitute. MCL 750.455; CJI2d 20.34;
People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999); People v Rocha, 110 Mich App 1,
16; 312 NW2d 657 (1981). The focus of the offense of CSC IV is on the sexual contact made
with the specific intent of sexual gratification and accomplished by an aggravating circumstance,
including, but not limited to, force or coercion. People v Crippen, 242 Mich App 278, 284-285;
617 NW2d 760 (2000). Because the offenses of assault with intent to commit a felony and CSC
IV are not of the same class or category and are designed to protect different societal interests,
-2-
the addition of the new charge resulted in unfair surprise sufficient to deny defendant his
constitutional right to due process.
Reversed.2
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
2
In light of our conclusion that defendant’s conviction must be reversed, we need not discuss the
remainder of the issues raised by defendant. We have reviewed the issues, however, and find
them to be without merit.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
