Opinion
Docket No. 47420.
Decided January 23, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people.
P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
Before: T.M. BURNS, P.J., and ALLEN and D.F. WALSH, JJ.
On June 29, 1979, defendant was convicted by jury in Oakland County Circuit Court of one count of first-degree criminal sexual conduct in violation of MCL 750.520b; MSA 28.788(2), and of one count of second-degree criminal sexual conduct in violation of MCL 750.520c; MSA 28.788(3). Sentenced to life imprisonment on the first count and 7-1/2 to 15 years imprisonment on the latter, defendant appeals as of right raising several errors, at least one of which requires reversal.
Defendant is correct in asserting that the trial court's instructions with regard to both first- and second-degree criminal sexual conduct (hereinafter CSC) were reversibly erroneous. Although defendant did not object at trial, review of failure to instruct on an essential element of the crime is not precluded by lack of objection. People v Elmore, 94 Mich. App. 304, 307; 288 N.W.2d 416 (1979), People v Ashford, 91 Mich. App. 693, 697; 283 N.W.2d 830 (1979).
In the present case, the trial court's instruction on first-degree CSC concerned only penetration and omitted reference to either force or coercion and/or personal injury. The trial court's instruction on second-degree CSC concerned only contact and personal injury and omitted reference to force or coercion. Force or coercion and personal injury are essential elements of both first- and second-degree CSC. MCL 750.520b(1)(f), 750.520c(1)(f); MSA 28.788(2)(1)(f), 28.788(3)(1)(f), People v Thompson, 76 Mich. App. 705, 708; 257 N.W.2d 268 (1977), People v Sommerville, 100 Mich. App. 470; 299 N.W.2d 387 (1980). Unlike Sommerville, wherein the jury was given a verdict form correctly listing each element of the charged offenses, after a review of the instructions we do not find that the instructions sufficiently informed the jury of the elements necessary to convict defendant of the charged offenses. Therefore, reversal is mandated.
Additionally, the trial court's instruction with regard to penetration was faulty. The instruction required penetration by the defendant's penis. This is incorrect. Penetration may occur, as was alleged in the present case, with the defendant's finger. MCL 750.520a(h); MSA 28.788(1)(h), People v Denmark, 74 Mich. App. 402; 254 N.W.2d 61 (1977).
Upon retrial, the trial court should be aware that the Michigan Supreme Court has mandated that all lesser included offenses which are supported by the evidence must be instructed on upon request. Failure to give such instruction upon request is error. People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975), People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975). The trial court should also be aware of the benefits of conducting a Wade hearing when identification is an issue. United States v Wade, 388 U.S. 218; 87 S.Ct. 1926; 18 L.Ed.2d 1149 (1967). Where the risk of a tainted in-court identification is alleged, this procedure is a useful tool to aid the trial court's determination of whether an independent basis for that identification exists. People v Kachar, 400 Mich. 78; 252 N.W.2d 807 (1977), People v Sorna, 88 Mich. App. 351; 276 N.W.2d 892 (1979). While this Court need not determine, in the present case, whether the trial court abused its discretion in failing to hold such a hearing, where the identification issue is a close one, the trial court should lean toward the granting of a request for a Wade hearing. Lastly, the trial court should be aware that the conviction of first-degree CSC does not result in "mandatory" life imprisonment. A sentencing court has the discretion to sentence a defendant convicted of first-degree CSC to imprisonment for life or for any term of years. MCL 750.520b(2); MSA 28.788(2)(2).
Reversed and remanded.