In re Abdullah – Delinquncy – CSC

Respondent, a 16 year old juvenile, appealed from an adjudication of CSC 3rd degree and placed in a juvenile facility.  The only charge against the respondent was one count of first-degree criminal sexual conduct, MCL 750.520b(1)(g) (CSC I). The complainant, who was six days shy of her twenty-first birthday on the date of the incident, testified that she passed out in the basement of respondent’s family’s apartment following a night of heavy drinking, and awoke in the morning to find respondent sexually penetrating her.  She could not recall the events between 3 a.m. and 10 a.m. and had only minor abrasions and bruising.  No medical testimony was presented regarding the injuries.  Respondent’s testimony was simply that the two  drank heavily and had sex.

During closing arguments the prosecutor asked the Court (it does not appear the matter was tried by a jury) to also consider, in the alternative, CSC III.  Respondent did not object.  The trial court found the complainant was drunk and unable to give consent.  The trial court did not find CSC I for injury to an incapacitated victim because there was no medical testimony to support a finding that an injury occurred.  The trial court did find the respondent guilty of CSC III for engaging in sexual penetration accomplished by force or coercion.

On appeal, respondent did not argue that CSC III is not a necessary lesser included offense of CSC I.  On its own motion, the Court of Appeals held that in this case CSC III was a cognate lesser offense, rather than a necessarily included lesser offense.   They ruled that the the trial court erred by considering the lesser cognate offense of CSC III because it violated the respondent’s due process right to notice that he faced a charge of CSC III.  Consequently, the Court vacated the adjudication and remanded for an order of discharge.

Please note that neither the trial attorney or the appellate attorney (they may have been the same person) raised the issue of the lesser included offense.  The lesson here: know your lesser included offenses.

You can read the CSC I and CSC III statutes here: CSC I, CSC III

You can view or download the opinion here: In re Abdullah

© 2009, Melinda Deel. All rights reserved.