PEOPLE OF MI V ANDRE DESHAWN HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 27, 2001
Plaintiff-Appellee,
v
No. 219577
Oakland Circuit Court
LC No. 98-162906-FH
ANDRE DESHAWN HARRIS,
Defendant-Appellant.
Before: Meter, P.J., and Neff and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from a jury-based conviction of third-degree criminal
sexual conduct (CSC), MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), for which he was sentenced
as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, to ten to forty years in
prison. We affirm.
Defendant’s sole claim on appeal is that trial counsel was ineffective because he did not
request an instruction on the lesser offense of fourth-degree CSC. To establish that a defendant’s
right to effective assistance of counsel was so undermined that it justifies reversal of an otherwise
valid conviction, the defendant must show that counsel’s representation fell below an objective
standard of reasonableness and that the representation so prejudiced defendant as to deprive him
of a fair trial. People v Price, 214 Mich App 538, 547; 543 NW2d 49 (1995). Because
defendant did not move for a new trial or evidentiary hearing below, our review is limited to
mistakes apparent on the record. Id.
Fourth-degree CSC, which is predicated upon sexual contact with a person between the
ages of thirteen and fifteen who is at least five years younger than the defendant, MCL
750.520e(1)(a); MSA 28.788(5)(1)(a), is a cognate lesser offense of third-degree CSC, which is
predicated on the sexual penetration of a person between the ages of thirteen and fifteen. MCL
750.520d(1)(a); MSA 28.788(4)(1)(a). People v Lemons, 454 Mich 234, 253-254; 562 NW2d
447 (1997) (second-degree CSC is a cognate lesser offense of first-degree CSC). The trial court
need only instruct on a cognate lesser offense if requested to do so, the instruction is consistent
with the evidence and the defendant’s theory of the case, and the evidence would support a
conviction of that charge. People v Sullivan, 231 Mich App 510, 517-518; 586 NW2d 578
(1998); People v Cheeks, 216 Mich App 470, 479; 549 NW2d 584 (1996).
-1-
The victim testified that defendant engaged in sexual penetration with her when she was
fourteen years old. Defendant admitted that he engaged in sexual penetration with the victim, but
claimed that he thought she was old enough to consent to the act.1 Therefore, a rational view of
the evidence did not support fourth-degree CSC and defendant would not have been entitled to
such an instruction had it been requested. People v Wilhelm (On Rehearing), 190 Mich App 574,
577; 476 NW2d 753 (1991). That being the case, defense counsel was not ineffective for failing
to request an instruction on fourth-degree CSC. People v Bryant, 129 Mich App 574, 582; 342
NW2d 86 (1983).
Affirmed.
/s/ Patrick M. Meter
/s/ Janet T. Neff
/s/ Peter D. O’Connell
1
Contrary to defendant’s assertion, it is possible to commit sexual penetration without first
having committed sexual contact. Lemons, supra.
-2-
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