PEOPLE OF MI V DENNIS L NICKENS
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 123992
DENNIS L. NICKENS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
Defendant was charged with criminal sexual conduct in
the first degree (CSC-I) involving personal injury and the
use of force or coercion to accomplish sexual penetration,
MCL 750.520b(1)(f).
court
additionally
intent
to
commit
750.520g(1).
Over defendant’s objections, the trial
instructed
CSC
the
involving
jury
sexual
on
assault
penetration,
with
MCL
The jury acquitted defendant of the CSC-I
charge, but found him guilty of assault with intent to
commit CSC.
We granted leave to appeal to consider whether assault
with intent to commit CSC involving sexual penetration, MCL
750.520g(1), is included within the offense of first-degree
CSC
involving
coercion
personal
to
injury
accomplish
750.520b(1)(f).1
and
the
sexual
use
of
force
penetration,
or
MCL
The Court of Appeals held that because MCL
750.520g(1) was not a necessarily lesser included offense
of MCL 750.520b(1)(f), the trial court erred by instructing
the jury on the assault offense.2
We hold that the trial
court did not err in its instruction to the jury because
the
assault
offense
is
a
necessarily
lesser
included
offense of first-degree CSC involving personal injury and
the
use
of
penetration.
Court
of
force
or
coercion
to
accomplish
sexual
Therefore, we reverse the decision of the
Appeals
and
reinstate
defendant’s
assault
conviction.
I. FACTS AND PROCEEDINGS
We adopt as our own the following facts set forth by
the Court of Appeals:
Defendant’s
conviction
arises
from
allegations that he sexually assaulted his former
girlfriend.
The complainant and defendant dated
intermittently for several years and had two
children.
At some point, the complainant began
dating another man named Frank. According to the
complainant, defendant did not accept this new
relationship.
When the complainant ultimately
1
469 Mich 949 (2003).
2
Unpublished opinion per curiam, issued April 24, 2003
(Docket No. 237794).
2
ended her relationship with Frank in August 2000,
she discussed the possibility of reconciling with
defendant.
On September 9, 2000, at approximately 4:30
a.m.,
the
complainant
claimed
that
Frank
unexpectedly came to her home and stayed for half
an hour. According to the complainant, defendant
called during this time and “exchanged some
words” with Frank over the telephone. Later that
day,
the
complainant
stated
that
defendant
visited
her
house.
The
complainant
testified . . . that defendant straddled her,
tore her clothes, and pulled down her pants.
Throughout the assault, the complainant asserted
that defendant accused her of being intimate with
Frank, called her derogatory names, and punched
her repeatedly in the head.
The complainant indicated that defendant
subsequently dragged her into her bedroom, pushed
her over a chair, and punched her in the stomach.
Defendant then told her to stand up, pushed her
backwards, and said, “[s]uck my [penis], bit--.”
The complainant claimed that when she attempted
to stand up, defendant punched her in the stomach
again and caused her to regurgitate.
Defendant
ultimately pulled her head up, placed his penis
on the side of her mouth, and ejaculated “all
over” her.
As a result of defendant’s actions,
the complainant stated that she suffered a blood
clot in her stomach, bruising on her chest and
left eye, and a swollen left cheek. On September
14th, the complainant reported the sexual assault
to the police.
She later obtained a personal
protective order against defendant.
Defendant
750.520b(1)(f).
defendant’s
was
A
charged
jury
objections,
with
trial
the
CSC-I
was
trial
held
court
under
MCL
and,
over
additionally
instructed the jury on assault with intent to commit CSC
3
involving sexual penetration, MCL 750.520g(1).3
acquitted
defendant
of
the
CSC-I
charge,
but
guilty of assault with intent to commit CSC.
The jury
found
him
On appeal,
the Court of Appeals held, inter alia, that under this
Court’s decision in People v Cornell, 466 Mich 335, 357;
646 NW2d 127 (2002), the trial court erred by instructing
the jury on the lesser offense because MCL 750.520g(1) is
not
a
necessarily
750.520b(1)(f).
lesser
included
offense
of
MCL
We granted the prosecution’s application
for leave to appeal.
II. STANDARD OF REVIEW
Whether assault with intent to commit CSC involving
sexual penetration is included within the offense of CSC-I
involving personal injury and the use of force or coercion
to
accomplish
sexual
penetration
which this Court reviews de novo.
is
a
question
of
law,
People v Mendoza, 468
Mich 527, 531; 664 NW2d 685 (2003).
3
The trial court also instructed the jury on the
offense of aggravated assault, MCL 750.81a(1).
However,
the jury did not find defendant guilty of this offense and,
thus, we express no opinion on the validity of the trial
court’s instruction on this offense.
4
III. ANALYSIS
A. Cornell and MCL 768.32
In Cornell, supra at 357, this Court held that, under
MCL 768.32,4 a lesser offense instruction is appropriate
only if the lesser offense is necessarily included in the
greater offense.
“Necessarily included lesser offenses are
offenses in which the elements of the lesser offense are
completely
subsumed
supra at 532 n 3.
in
the
greater
offense.”
Mendoza,
Thus, an instruction on a lesser offense
is proper where “all the elements of the lesser offense are
included in the greater offense, and a rational view of the
evidence would support such an instruction.”
Id. at 533.5
Further, in Cornell this Court expressly stated that
the
decision
in
that
case
would
apply
“to
those
cases
pending on appeal in which the issue has been raised and
4
MCL 768.32(1) provides in pertinent part:
[U]pon
an
indictment
for
an
offense,
consisting of different degrees, as prescribed in
this chapter, the jury, or the judge in a trial
without a jury, may find the accused not guilty
of the offense in the degree charged in the
indictment and may find the accused person guilty
of a degree of that offense inferior to that
charged in the indictment, or of an attempt to
commit that offense.
5
I remain committed to my position in People v
Mendoza, 468 Mich 527, 548-556 (CAVANAGH, J., concurring).
Nonetheless, this Court’s decisions in Cornell and Mendoza
are the current law in the state of Michigan.
5
preserved.”
Cornell, supra at 367. Here, defense counsel
objected
the
to
instructions.
trial
court
Moreover,
giving
neither
the
the
lesser
offense
prosecution
nor
defendant asserts that the issue is unpreserved.
Because
defendant’s
alleged
case
was
pending
on
appeal
and
the
error was raised and preserved for review, our decision, by
the express directive in Cornell, applies to this case.
Thus, the instruction on assault with intent to commit CSC
involving
sexual
penetration
was
appropriate
if
such
an
offense is a necessarily lesser included offense of CSC-I
involving personal injury and the use of force or coercion
to accomplish sexual penetration.
B. The Elements of Assault with Intent to Commit CSC
Involving Sexual Penetration
MCL 750.520g(1) states, “Assault with intent to commit
criminal sexual conduct involving sexual penetration shall
be a felony punishable by imprisonment for not more than 10
years.”
This
Court
has
not
had
occasion
to
formally
delineate the elements of this particular offense.
Relying
on
Appeals
its
own
concluded
commit
case
that
CSC
law,
the
involving
however,
elements
sexual
of
the
Court
assault
penetration
of
with
are
intent
as
to
follows:
“(1) an assault; (2) with an improper sexual purpose or
intent;
(3)
an
intent
to
commit
an
act
penetration; and (4) an aggravating circumstance.”
6
involving
Slip op
at 2 n 2.
Because we believe that the Court of Appeals
misinterprets MCL 750.520g(1), we reject its definition of
that offense.
We hold that the elements of assault with intent to
commit CSC involving penetration are simply (1) an assault,
and
(2)
an
penetration.
existence
intent
to
Nothing
of
an
commit
in
MCL
aggravating
CSC
involving
750.520g(1)
circumstance
sexual
requires
the
or
the
that
assault is made with an improper sexual purpose or intent.
Further,
“[w]hen
a
statute
sets
forth
a
crime
and
its
punishment without designating its elements, courts must
look to the common law for guidance.”
People v Langworthy,
416 Mich 630, 643 n 22; 331 NW2d 171 (1982).
An assault “’is made out from either an attempt to
commit a battery or an unlawful act which places another in
reasonable
battery.’”
apprehension
of
receiving
an
immediate
People v Johnson, 407 Mich 196, 210; 284 NW2d
718 (1979), quoting People v Sanford, 402 Mich 460, 479;
265 NW2d 1 (1978).
The first type is referred to as an
“attempted-battery assault,” whereas the second is referred
to as an “apprehension-type assault.”
People v Reeves, 458
Mich 236, 244; 580 NW2d 433 (1998).
As such, an assault
can occur in one of two ways.
7
Moreover, a “battery is an intentional, unconsented
and harmful or offensive touching of the person of another,
or of something closely connected with the person.”
240
n
4.
Therefore,
accomplishment
Perkins
&
of
Boyce,
an
a
battery
is
the
attempted-battery
Criminal
Law
(3d
Id. at
successful
assault.
ed,
1982),
See
p
151
(“[W]hen we speak of an assault we usually have in mind a
battery which was attempted or threatened.
have failed or it may have succeeded.
constitutes an assault only.
assault
and
battery.”);
The attempt may
If it failed it
If it succeeded it is an
see
also
MCL
750.81.
Stated
differently, an attempted-battery assault is a necessarily
lesser included offense of a completed battery because it
is impossible to commit a battery without first committing
an attempted-battery assault.
C. The Elements of First-Degree CSC Involving Personal
Injury and the Use of Force or Coercion to Accomplish
Sexual Penetration
MCL 750.520b provides in pertinent part:
(1) 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
penetration.
Force
or
coercion
includes but is not limited to any of the
following circumstances:
8
(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.
(iv) When the actor engages in the medical
treatment or examination of the victim in a
manner or for purposes which are medically
recognized as unethical or unacceptable.
(v) When the actor, through concealment or
by the element of surprise, is able to overcome
the victim.
Thus,
an
actor
may
be
found
guilty
under
MCL
750.520b(1)(f) if the actor (1) causes personal injury to
the
victim,
(2)
engages
in
sexual
penetration
with
the
victim, and (3) uses force or coercion to accomplish the
sexual penetration.
D. “Assault With Intent to Commit CSC Involving Sexual
Penetration” is a Necessarily Lesser Included Offense of
CSC-I Involving Personal Injury and the Use of Force or
Coercion to Accomplish Sexual Penetration
The issue for this Court to resolve is whether CSC-I,
under MCL 750.520b(1)(f), always includes an “assault with
intent
to
commit
CSC
involving
9
sexual
penetration,”
MCL
750.520g(1).
In other words, are all the elements of MCL
750.520g(1) subsumed into MCL 750.520b(1)(f) such that one
cannot commit CSC-I involving personal injury and the use
of
force
or
coercion
to
accomplish
sexual
penetration
without first committing an assault with intent to commit
CSC
involving
sexual
penetration?
We
hold
that
the
elements are subsumed and, therefore, MCL 750.520g(1) is a
necessarily lesser included offense of MCL 750.520b(1)(f).
In
every
instance
where
an
actor
commits
CSC-I
involving personal injury and uses force or coercion to
accomplish sexual penetration, the actor first commits an
attempted-battery
involving
assault
sexual
with
the
penetration.
intent
The
to
commit
“force
term
CSC
or
coercion,” as contained in MCL 750.520b(1)(f), necessarily
contemplates a situation in which an assault has occurred.
If,
for
example,
the
actor
uses
physical
force
to
accomplish sexual penetration, a nonconsensual and harmful
touching
has
occurred.
Because
a
battery
includes
an
attempted-battery assault, an assault has also occurred.
Likewise,
coercion,
occurred.
a
if
the
actor
nonconsensual
“The
overcomes
and
application
of
harmful
force
to
the
victim
by
touching
the
has
person
of
another is not unlawful,—and, therefore, not a battery—if
the
recipient
consents
to
what
10
is
done,
provided
this
consent (1) is not coerced or obtained by fraud, (2) is
given by one legally capable of consenting to such a deed,
and (3) does not relate to a matter as to which consent
will not be recognized as a matter of law.”
Perkins &
Boyce, Criminal Law (3d ed, 1982), p 154 (emphasis added).
As
such,
consent
the
at
criminal
all.6
law
Thus,
views
if
the
coerced
victim
consent
is
as
coerced
no
into
agreeing to sexual penetration, the victim cannot be said
to
have
occurred.
lawfully
consented
and,
thus,
a
battery
has
Because a battery includes an attempted-battery
assault, an assault has also occurred.
In sum, nonconsensual sexual penetration with another
is, in and of itself, an attempted-battery assault and a
battery.
As such, the first prong of MCL 750.520g(1), an
assault, is always satisfied when the actor commits CSC-I
under MCL 750.520b(1)(f).
Moreover, we also believe that
the second prong of MCL 750.520g(1), an intent to commit
CSC involving sexual penetration, is always satisfied when
the actor commits CSC-I under MCL 750.520b(1)(f).
6
“Submission under fear is not ‘consent’ as the word
is used in the law.
If a man said, ‘I consent to be
slapped,’ at the point of a pistol and in fear of instant
death if he did not say so, this would be no real consent
to the slapping and the blow would constitute a battery.”
Id. at 155
11
We
can
envision
no
circumstance
in
which
an
actor
could unintentionally or accidentally use force or coercion
to sexually penetrate his victim and, therefore, lacked the
necessary
mens
750.520b(1)(f).
intent crime.
rea
under
MCL
750.520g(1)
or
MCL
We acknowledge that CSC-I is a general
Langworthy, supra at 645.
We are further
cognizant that assault with intent to commit CSC involving
sexual
crime.
penetration
Under
may
these
be
viewed
as
circumstances,
a
specific
however,
intent
this
is
a
distinction without a difference.7
7
This Court has recently noted that “the enactment of
MCL 768.37, which abolished the defense of voluntary
intoxication except in one narrow circumstance, has
significantly diminished the need to categorize crimes as
being either ‘specific’ or ‘general’ intent crimes.”
People v Maynor, 470 Mich __, __; __ NW2d __ (2004)
(opinion by Taylor, J.).
Additionally, we find this Court’s reasoning in
Langworthy persuasive in this particular case.
Although
the issue in Langworthy was whether CSC-I was a general or
specific intent crime, this Court made the following
observations:
[W]e reject defendant’s argument that if an
applicable lesser included offense of a criminal
sexual conduct offense requires specific intent,
it necessarily follows that the greater offense
also requires proof of specific intent. . . .
We concur with the United States Court of
Appeals, writing in United States v Thornton, 162
US App DC 207, 210-211; 498 F2d 749 (1974):
“Actually,
as
has
been
stated,
‘[A]ll
attempts require specific intent’; so if it were
to follow appellant’s logic of superimposing the
(continued…)
12
E. Application
The trial court properly instructed the jury on the
lesser
offense
of
assault
with
involving sexual penetration.
intent
to
commit
CSC
An instruction on a lesser
offense is proper where “all the elements of the lesser
offense are included in the greater offense, and a rational
view of the evidence would support such an instruction.”
Mendoza,
supra
at
533.
First,
MCL
750.520g(1)
is
a
necessarily lesser included offense of MCL 750.520b(1)(f).
Additionally,
a
rational
view
of
the
evidence
indicates
that there was sufficient support for the instruction on
MCL
750.520g(1).
The
testimony
of
the
complainant
presented at trial indicates that defendant tore off the
(…continued)
specific intent of an included crime upon the
greater offense, a specific intent would be
required for practically every crime. This could
not be the law.
The differing requirements for
lesser offenses result principally from the
differing nature of the crimes and from their
historical and legislative definitions.
The
requirement of a specific intent for lesser
crimes exists because of a desire to protect the
individual against conviction on slight evidence.
The
same
protection
is
unnecessary
where
substantial overt acts are committed and fully
consummated offenses are provable.
There is no
rule of law that crimes which carry greater
punishment require the proof of greater, or even
the same, criminal intent as included or related
crimes which carry lesser punishment. . . .”
[Langworthy, supra at 644-645 (emphasis added).]
13
complainant’s clothes; repeatedly beat her; stated, “[s]uck
my [penis], bit--;” placed his penis on the side of the
complainant’s
mouth;
and
ejaculated
on
complainant.8
the
Under these circumstances, the trial court did not err by
instructing the jury on assault with intent to commit CSC
involving sexual penetration.
IV. CONCLUSION
We conclude that assault with intent to commit CSC
involving
sexual
necessarily
personal
penetration,
lesser
injury
included
and
accomplish
sexual
Accordingly,
we
the
MCL
offense
of
of
penetration,
CSC-I
force
MCL
reverse
use
750.520g(1),
the
decision
or
is
a
involving
coercion
to
750.520b(1)(f).
of
the
Court
of
Appeals and reinstate defendant’s assault conviction.
Michael F. Cavanagh
Maura D. Corrigan
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
8
Because MCL 750.520g(1) is a necessarily lesser
included
offense
of
MCL
750.520b(1)(f)—i.e.,
it
is
impossible to commit the latter without first committing
the former—and the facts alleged supported the lesser
instruction, defendant was on notice of the included
offense and was not prejudiced by the instruction.
See,
e.g., People v Adams, 389 Mich 222, 242-244; 205 NW2d 415
(1973); see also Schmuck v United States, 489 US 705, 717719; 109 S Ct 1443; 103 L Ed 2d 734 (1989).
14
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.
