PEOPLE OF MI V JAMES DAVID LICK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellee,
v
No. 229650
Macomb Circuit Court
LC No. 99-002919-FH
JAMES DAVID LICK,
Defendant-Appellant.
Before: Neff, P.J., and Griffin and Talbot, JJ.
PER CURIAM.
Defendant was charged with assault with intent to commit great bodily harm less than
murder, MCL 750.84, and convicted by a jury of leaving the scene of a serious injury accident,
MCL 257.617. He was sentenced to a term of twenty-three months to five years’ imprisonment.
He appeals as of right. We reverse.
The underlying incident involved defendant and two brothers, Charles and Donald
Fowler. All three of them had been drinking, and Donald had been drinking “a lot.” Defendant
and Charles were both sitting in their respective vans, exchanging words through the open
windows because defendant believed that Charles had vandalized his van, when Donald walked
between the vans. According to defendant and his two passengers, Donald punched defendant in
the face. According to the Fowler brothers, Donald did not hit defendant. All agree that
defendant began to drive away and that Donald was pinned between the two vehicles. Defendant
testified that he panicked and drove immediately to the police station where he reported that
Donald had assaulted him. Defendant’s eye was red and swollen and a police photograph was
taken of his injury. The Fowler brothers and their mother testified that defendant hit Donald at
least twice with his van before defendant drove away. Defendant said that he knew he hit
Donald but did not believe he was seriously hurt, and said that hitting Donald was an accident.
Several witnesses, however, including defendant’s passengers, testified that Donald began
screaming after he was hit. Donald’s scrotum was “ripped open” in the collision.
Defendant unsuccessfully moved for a directed verdict on the charged offense, and
presented evidence in support of his theory that he hit Donald by accident. After the close of
defendant’s proofs, the prosecutor requested instruction on the “lesser offense” of leaving the
scene of a serious injury accident. The prosecutor suggested that, although defendant had
admitted most of the elements, the jury could acquit him of the lesser crime if it believed he
made a “good faith effort” to report the accident. The trial court questioned why it could not
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simply find defendant guilty of the lesser offense. Defendant raised a general objection, arguing
that there was no evidence that he knew the severity of the accident and that “it’s not fair.”
Defendant argues on appeal that the trial court erred in instructing on the “lesser offense.”
We agree. “It is elementary that a defendant may not be convicted of a crime with which he was
not charged.” People v Jones, 395 Mich 379, 388; 236 NW2d 461 (1975). A defendant has the
constitutional “right to know the nature and cause of the accusation against him.” Id. A trial
judge may not instruct on lesser included offenses over the defendant’s objection unless the
language of the charging document gives defendant notice that he could at the same time face the
lesser charge. People v Darden, 230 Mich App 597, 600-601; 585 NW2d 27 (1998). Minimal
due process notice requirements are met, however, if the charged crime and the lesser offense are
“of the same or of an overlapping nature.” Jones, supra.
Necessarily included lesser offenses are those for which all elements are contained within
those of the greater offense, whereas a cognate offense merely has some elements in common
with the charged offense. People v Bearss, 463 Mich 623, 627; 625 NW2d 10 (2001). The late
addition of a necessarily included offense does not impinge on a defendant’s due process rights
because the accused must defend against the same evidence as when charged with only the
greater offense. However, the addition of a cognate offense may give rise to due process
concerns. Id. at 628-629.
Here, the elements of the charged crime, assault with intent to do great bodily harm less
than murder, are (1) an assault, and (2) the specific intent to do great bodily harm less than
murder. People v Bailey, 451 Mich 657, 668-669; 549 NW2d 325 (1996), amended 453 Mich
1204 (1996). To be convicted of the offense of leaving the scene of a serious injury accident, the
jury must find that the driver of a vehicle, who knows or has reason to believe that he was
involved in an accident, on a public road or any property open to the public, resulting in serious
or aggravated injury, did not stop his vehicle at the scene of the accident and remain there to give
information and aid. MCL 257.617; MCL 257.619; People v Noble, 238 Mich App 647, 652;
608 NW2d 123 (1999). The elements of the two offenses are entirely different, and the offense
of which defendant was convicted is neither necessarily included nor cognate to assault with
intent to do great bodily harm.
In Michigan, the decision to charge and what charge to bring rests in the sole discretion
of the prosecutor. People v Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998). In this case,
from the moment that defendant first made his police report on the night of the incident, he
admitted most of the elements of leaving the scene of a serious injury accident. He was not,
however, charged with that offense and did not have notice that he would be required to defend,
or argue to the jury that they should acquit him of, that charge. The trial court erred in giving the
jury the option of convicting defendant of the uncharged offense. DeJonge v Oregon, 299 US
353, 362; 57 S Ct 255; 81 L Ed 278 (1937); People v Adams, 202 Mich App 385, 391; 509
NW2d 530 (1993). Accordingly, defendant’s conviction is reversed.
In light of our disposition, we do not address defendant’s remaining issues on appeal.
Reversed.
/s/ Janet T. Neff
/s/ Richard Allen Griffin
/s/ Michael J. Talbot
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