PEOPLE OF MI V BENJAMIN A PHILLIPS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 28, 2002
Plaintiff-Appellee,
v
No. 230897
Wayne Circuit Court
LC No. 99-009754
BENJAMIN A. PHILLIPS,
Defendant-Appellant.
Before: Smolenski, P.J., and Neff and White, JJ.
PER CURIAM.
Defendant was charged with two counts of first-degree criminal sexual conduct, MCL
750.520b(1)(f). After a bench trial, defendant was convicted of assault with intent to cause great
bodily harm less than murder, MCL 750.84. The trial court sentenced defendant to sixty days in
jail and five years of probation. Defendant appeals as of right. We affirm.
Defendant argues that the trial court erred when it constructively amended the
information by convicting him of assault with intent to cause great bodily harm. However,
defendant did not object to the constructive amendment of the information. Therefore, in order
to avoid forfeiture of this unpreserved issue on appeal, defendant must demonstrate the
occurrence of plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999). Once defendant has satisfied this requirement, we must exercise
discretion in deciding whether to reverse. Id. “Reversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. (Internal punctuation omitted).
In this case, defendant was charged with first-degree criminal sexual conduct. However,
during closing argument, the prosecutor argued that the trial court should consider either thirddegree criminal sexual conduct, MCL 750.520d, or assault with intent to cause great bodily
harm, MCL 750.84. The trial court convicted defendant of assault with intent to cause great
bodily harm.
MCR 6.112(H), pertaining to the amendment of an information, states:
The court before, during, or after trial may permit the prosecutor to amend
the information unless the proposed amendment would unfairly surprise or
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prejudice the defendant. On motion, the court must strike unnecessary allegations
from the information.
Similarly, MCL 767.76 provides, in pertinent part:
The court may at any time before, during, or after the trial amend the indictment
in respect to any defect, imperfection or omission in form or substance or of any
variance with the evidence. If any amendment be made to the substance of the
indictment or to cure a variance between the indictment and the proof, the accused
shall on his motion be entitled to a discharge of the jury, if a jury has been
impaneled and to a reasonable continuance of the cause unless it shall clearly
appear from the whole proceedings that he has not been misled or prejudiced by
the defect or variance in respect to which the amendment is made or that his rights
will be fully protected by proceeding with the trial or by a postponement thereof
to a later day with the same or another jury.
Both the court rule and statute plainly state that a trial court can amend an information, even after
trial. See also People v Stewart (On Remand), 219 Mich App 38, 44; 555 NW2d 715 (1996);
People v Weathersby, 204 Mich App 98, 103-104; 514 NW2d 493 (1994). The only limitation is
that the defendant cannot be unfairly surprised or prejudiced by the amendment. MCR 6.112(H).
See also People v Stricklin, 162 Mich App 623, 633; 413 NW2d 457 (1987). “Prejudice occurs
when the defendant does not admit guilt and is not given a chance to defend against the crime.”
Id.
Defendant argues that the trial court cannot amend the information to add a new charge.
However, in People v Fortson, 202 Mich App 13, 15-17; 507 NW2d 763 (1993), we recognized
that our Supreme Court, in People v Hunt, 442 Mich 359; 501 NW2d 151 (1993), abandoned this
limitation. We explained:
A trial court may at any time before, during or after the trial amend the
indictment in respect to any defect, imperfection or omission in form or substance
or of any variance with the evidence. Until recently, this section had been
construed to allow amendments to cure errors in the indictment, but not to allow
an amendment that would add a new charge. Recently, however, our Supreme
Court peremptorily reversed a refusal to allow an amendment proposed at the end
of the preliminary examination that would have added a new charge.
*
*
*
[T]he question then bec[ame] whether the amendment requested by the
prosecution would have caused unacceptable prejudice to the defendant because
of unfair surprise, inadequate notice, or insufficient opportunity to defend, in
other words, whether defendant had a fair opportunity to meet the charges against
him. [Fortson, supra at 15-16 (citations and quotations omitted; emphasis
added).]
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Therefore, defendant is incorrect that the trial court cannot amend an information to charge a
new crime. Nevertheless, we must still decide whether the amendment resulted in unfair
surprise, inadequate notice, or an insufficient opportunity to defend against the charges.
Defendant argues that he was prejudiced because the amendment was made after trial, the
amendment was a “drastic modification,” and defendant had no opportunity to defend against the
charges. As previously stated, the fact that the amendment was made after trial does not
automatically indicate prejudice. MCL 6.112(H) and MCL 767.76 both contemplate amending
an information after trial. Therefore, defendant must demonstrate something more specific
which prejudiced his defense.
Further, we do not find that the amendment was a “drastic modification” which deprived
defendant of an opportunity to defend against the charges. Defendant was originally charged
with first-degree criminal sexual conduct, under the following statutory language:
A person is guilty of criminal sexual conduct in the first degree if he or she
engages in sexual penetration with another person and if any of the following
circumstances exists:
*
*
*
(f) The actor causes personal injury to the victim and force or coercion is used to
accomplish sexual penetration. Force or coercion includes but is not limited to
any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of
physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use
force or violence on the victim, and the victim believes that the actor has the
present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate
in the future against the victim, or any other person, and the victim believes that
the actor has the ability to execute this threat. As used in this subdivision, “to
retaliate” includes threats of physical punishment, kidnapping, or extortion.
[MCL 750.520b(1)(f).]
Therefore, defendant was charged with committing a sexual penetration by force or coercion,
including the threat or use of physical force or violence.
In comparison, the statute describing the offense of assault with intent to cause great
bodily harm provides:
Any person who shall assault another with intent to do great bodily harm, less
than the crime of murder, shall be guilty of a felony punishable by imprisonment
in the state prison not more than 10 years, or by fine of not more than 5,000
dollars. [MCL 750.84.]
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Therefore, assault with intent to cause great bodily harm “requires proof of (1) an attempt or
threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do
great bodily harm less than murder.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316
(1997).
Here, we do not find a “drastic modification” because the first-degree criminal sexual
conduct charge stemmed from the victim’s testimony that defendant used force and coercion to
commit the crime. In fact, the victim’s testimony at trial indicated that defendant choked her and
put a pillow over her head. The victim also testified that defendant held her down on the bed
while he sexually assaulted her. Thus, in this case, the charged crime and the crime of which
defendant was ultimately convicted were not so dissimilar that defendant was deprived of notice
or the opportunity to defend against the charges.
Further, we cannot discern, nor does defendant explain, how his defense would have
differed, had he been given earlier notice of the assault charge. At trial, the defense theory was
that the incident never occurred. This defense was applicable regardless of whether defendant
was facing charges of criminal sexual conduct or assault with intent to cause great bodily harm.
More specifically, we note that defendant’s wife, who was also the victim’s mother, testified that
the victim was untrustworthy and untruthful. Defense counsel extensively questioned the victim
about the alleged incident, including how she sustained her injuries. Defense counsel also
focused on the victim’s prior allegations of sexual abuse. Thus, defendant did actually present a
defense to the allegation that he assaulted the victim. Because defendant was neither unfairly
surprised nor given an insufficient opportunity to defend against the charges, defendant has not
demonstrated error. Further, defendant has not shown that any error that might have occurred
affected his substantial rights.
Next, defendant argues that defense counsel was ineffective because she did not object to
the amendment of the information. As previously discussed, we do not believe that defendant’s
due process rights were violated by the trial court’s amendment of the information. Therefore,
we do not believe that defense counsel acted unreasonably by failing to object to the trial court’s
amendment of the information. Indeed, trial counsel is not required to advocate a meritless
position. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Affirmed.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Helene N. White
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