Opinion
SC: 164627 COA: 359618
09-15-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Michael ERGANIAN, Defendant-Appellant.
Order
By order of November 4, 2022, the prosecuting attorney was directed to answer the application for leave to appeal the May 3, 2022 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the defendant's convictions for assault with intent to do great bodily harm less than murder and REMAND this case to the Montcalm Circuit Court for a new trial on those three counts. As the prosecuting attorney concedes, a defect in the verdict form deprived the defendant of a fair trial with respect to those three counts by failing to give the jury the option to find him not guilty of the charged offense of assault with intent to commit murder and not guilty of the lesser-included offense of assault with intent to do great bodily harm less than murder. See People v Wade , 283 Mich App 462, 468, 771 N.W.2d 447 (2009) (holding that "the verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty. We note that the verdict form would not have been defective if it had included a box through which the jury could have found defendant not guilty of second-degree murder and not guilty of involuntary manslaughter.") (Emphasis added). See also People v Clark , 295 Mich. 704, 707, 295 N.W. 370 (1940). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction.