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characterizing differential diagnosis as "a well-recognized process"
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No. 339068
10-25-2018
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin Keith MCKEWEN, Defendant-Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and David Porter, Assistant Attorney General, for the people. F. Mark Hugger, Ann Arbor, for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and David Porter, Assistant Attorney General, for the people.
F. Mark Hugger, Ann Arbor, for defendant.
Before: Stephens, P.J., and Shapiro and Gadola, JJ.
Shapiro, J.Following a jury trial, defendant appeals his convictions of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a), and felonious assault, MCL 750.82. The trial court sentenced defendant to concurrent prison terms of 5 to 10 years for the AWIGBH conviction and two to four years for the felonious-assault conviction. For the reasons set forth in this opinion, we affirm defendant’s conviction for AWIGBH but vacate his conviction for felonious assault.
I. FACTS
Defendant’s convictions arose from an altercation between himself and the complainant, Aristotle Zarkin, at a birthday party. Zarkin confronted defendant after Zarkin’s girlfriend told him that defendant’s conduct toward her made her feel uncomfortable. According to witnesses, the two pushed or punched each other, after which Zarkin fell to the ground. When he got back up, witnesses noticed that he was bleeding profusely from his chest. Although Zarkin initially thought he had cut himself from landing on a broken shard of glass, witnesses and investigators did not find any glass or other sharp object in the area where Zarkin fell. Medical providers believed that Zarkin received a stab wound to his chest. The object made a clean cut, and it traveled through muscle, fascia, and cartilage and then severed his mammary artery. None of the witnesses to the altercation observed defendant armed with a knife, but a witness testified that after Zarkin fell to the ground, defendant kept his right hand behind his back as if trying to conceal something and that he continued to keep his right hand concealed from view as he walked away after the altercation.II. ANALYSIS
A. DENIAL OF MOTION FOR DIRECTED VERDICT
On appeal, defendant first argues that the trial court erred by denying his motion for a directed verdict. Defendant argues that the evidence was insufficient to show that he actually possessed a knife and stabbed Zarkin, which in turn rendered the evidence insufficient to support his convictions. We disagree.
We review de novo a trial court’s decision denying a motion for a directed verdict. People v. Hammons , 210 Mich. App. 554, 556, 534 N.W.2d 183 (1995). Our task is to review the evidence in the light most favorable to the prosecution to determine whether the essential elements of the charged crimes were proved beyond a reasonable doubt. People v. Schrauben , 314 Mich. App. 181, 198, 886 N.W.2d 173 (2016). "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of [a] crime." People v. Bennett , 290 Mich. App. 465, 472, 802 N.W.2d 627 (2010). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v. Nowack , 462 Mich. 392, 400, 614 N.W.2d 78 (2000). With regard to an actor’s intent, because of the difficulties inherent in "proving an actor’s state of mind, minimal circumstantial evidence is sufficient." People v. McRunels , 237 Mich. App. 168, 181, 603 N.W.2d 95 (1999).
Various witnesses testified that after defendant either pushed or punched Zarkin in the chest during the altercation, Zarkin got up from the ground with a chest wound that bled profusely. It is undisputed that none of the witnesses actually saw defendant with a knife. However, an emergency medical technician, who was present at the party and provided assistance after Zarkin was injured, testified that the wound appeared to be a stab wound that was made by something very sharp, narrow, long, and skinny. The emergency room physician, who treated Zarkin at McLaren Hospital, similarly testified that the wound was a stab wound with clean edges made by something sharp and that Zarkin sustained a laceration to his mammary artery.Dr. Daniel Meldrum, M.D., a board-certified cardiothoracic and general trauma surgeon who treated Zarkin at Covenant Medical Center, testified on the basis of his observations during the physical examination that Zarkin was stabbed with a knife about three to four inches long, approximately an inch in width, and three to four millimeters thick. Dr. Meldrum also explained that the trajectory of the wound was at an angle from "outside to inside" rather than "straight on," and the trajectory would be "counterintuitive" with falling directly onto glass. One of the eyewitnesses testified that she saw defendant strike Zarkin in the chest, but defendant did not throw a "normal" punch with his knuckles "straight to whatever body part he was hitting." Instead, he struck at Zarkin "sideways" with the thumb and forefinger of his hand using a roundhouse punch.
Although defendant and other witnesses initially thought that defendant had fallen on a piece of glass, witnesses and investigators did not see any large shards of glass or other items on the ground that might have caused Zarkin’s injury when he fell. And although none of the witnesses actually saw a knife, a witness testified that after the altercation, defendant held his right hand behind his back and appeared to be trying to conceal something as he argued with bystanders and as he left the scene.
Viewed in a light most favorable to the prosecution, the testimony of the emergency room physician and the surgeon combined with the evidence that defendant was concealing his right hand behind his back following the altercation was sufficient to enable the jury to infer, and to conclude beyond a reasonable doubt, that defendant stabbed Zarkin in the chest with a knife. Thus, the jury could reasonably conclude that defendant’s use of a knife to stab Zarkin in the chest proved that he assaulted Zarkin with a dangerous weapon and that he did so with the intent to cause great bodily harm less than murder. People v. Stevens , 306 Mich. App. 620, 629, 858 N.W.2d 98 (2014).
Accordingly, sufficient evidence supports defendant’s convictions.
B. EXPERT TESTIMONY
Defendant next argues that the trial court abused its discretion by determining that Dr. Meldrum was qualified to offer his expert opinion that Zarkin’s wound was a stab wound from a knife.
We review for an abuse of discretion a trial court’s decision to admit evidence. People v. Lukity , 460 Mich. 484, 488, 596 N.W.2d 607 (1999). "A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes." People v. Musser , 494 Mich. 337, 348, 835 N.W.2d 319 (2013).
The admissibility of expert testimony is governed by MRE 702, which provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Before admitting expert testimony, a trial court must "ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case." People v. Kowalski , 492 Mich. 106, 120, 821 N.W.2d 14 (2012) (opinion by MARY BETH KELLY , J.). In this case, defendant challenges the second and third requirements. He argues that Dr. Meldrum was not qualified to testify as an expert and that his opinion testimony was not based on reliable principles and methods. We disagree.
With respect to the second requirement, the trial court found that Dr. Meldrum was qualified to render an opinion regarding the nature of Zarkin’s wound on the basis of his training and decades of experience as a cardiothoracic surgeon, general surgeon, and trauma surgeon. Dr. Meldrum testified about his qualifications and board certifications, including the fact that he is required to address identification of the instrumentality that caused a particular wound as part of a periodic recertification process. Dr. Meldrum also testified that he trained under a preeminent expert in trauma surgery and that he received instruction in distinguishing different types of wounds.
Defendant argues that Dr. Meldrum was not qualified because he did not possess the same qualifications as, for example, a medical examiner. Defendant appears to conflate the qualifications for testifying as an expert under MRE 702 with the requirements of MCL 600.2169, which governs a witness’s qualifications for testifying about the standard of care in a medical malpractice case. In contrast to MCL 600.2169, however, nothing in MRE 702 requires that a medical expert be board certified in a particular specialty, such as forensic pathology, or that a medical expert have devoted a majority of his or her practice to a given specialty to be qualified to offer expert testimony. The trial court did not abuse its discretion by ruling that Dr. Meldrum’s training, education, and experience qualified him as an expert in determining the nature of Zarkin’s wound.
With respect to the third requirement, the trial court found that Dr. Meldrum’s opinion was based on sound scientific principles. The court noted that Dr. Meldrum had investigated other possible causes of the wound. Specifically, he testified that he had checked whether glass or other particles were present in the wound to make sure that no particles were left behind to cause further injury and that he found none. Dr. Meldrum also explained his process of ruling out other potential explanations for Zarkin’s wound through differential diagnosis, a well-recognized process. See Lowery v. Enbridge Energy Ltd. Partnership , 500 Mich. 1034, 1046, 898 N.W.2d 906 (2017) ( MARKMAN , J. concurring).
For these reasons, the trial court did not abuse its discretion by finding that Dr. Meldrum’s opinion testimony was based on reliable data, principles, and methodologies and that Dr. Meldrum was qualified to offer his opinion regarding the cause of Zarkin’s wound.
C. CHALLENGES TO THE DUAL CONVICTIONS
Defendant raises two arguments challenging his convictions for both AWIGBH and felonious assault arising out of a single incident with one victim. First, defendant argues that his conviction for both offenses for a single act violates the constitutional double-jeopardy protection against multiple punishments for the same offense. However, this argument was rejected by the Supreme Court in People v. Strawther , 480 Mich. 900, 739 N.W.2d 82 (2007), and it was more fully discussed in People v. Wilson , 496 Mich. 91, 102, 852 N.W.2d 134 (2014), abrogated on other grounds by Bravo-Fernandez v. United States , 580 U.S. ––––, 137 S.Ct. 352, 196 L.Ed.2d 242 (2016), wherein the Court held that "[t]he very application of the Double Jeopardy Clause necessarily requires more than one trial...." Next, defendant argues that the language of the statutes defining these offenses requires the court to enter a judgment of conviction only as to one of the two offenses for which the jury convicted him. We agree.
The crime of assault with intent to do great bodily harm is defined by MCL 750.84(1)(a). That statute provides that a person who "[a]ssaults another with intent to do great bodily harm , less than the crime of murder" is guilty of a felony. Id . (Emphasis added). The crime of felonious assault is defined by MCL 750.82(1), which provides that "a person who assaults another person with a ... dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony ...." (Emphasis added).
In People v. Davis , 320 Mich. App. 484, 494-496, 905 N.W.2d 482 (2017), lv gtd 501 Mich. 1064, 910 N.W.2d 301 (2018), we held that in a case involving a single assault, a judgment of conviction for both AWIGBH and aggravated domestic assault is inconsistent because the crimes are mutually exclusive. As we stated in Davis :
Although Davis dealt with aggravated domestic assault (second offense), MCL 750.81a(3), this does not change the analysis here.
Clearly, these two offenses are mutually exclusive from a legislative standpoint. One requires the defendant to act with the specific intent to do great bodily harm less than murder; the other is committed without intent to do great bodily harm less than murder. We must give effect to the plain and unambiguous language selected by the Legislature. And the plain language of the statutes reveals that a defendant cannot violate both statutes with one act as he
or she cannot both intend and yet not intend to do great bodily harm less than murder. [ Davis , 320 Mich. App. at 490, 905 N.W.2d 482 (citations omitted).]
In this case, the trial court did not instruct the jury "regarding the lack of intent to do great bodily harm necessary to meet the statutory definition of [felonious assault]" because it is a "negative element" that need not be found by a jury. Id . at 494-495, 905 N.W.2d 482 (quotation marks and citation omitted). However, the trial court specifically instructed the jury that in order to convict defendant of AWIGBH, it had to find that he "intended to do great bodily harm." By convicting defendant on that charge, they made a finding—one we may not disturb—that defendant acted with the intent to do great bodily harm. But that finding is inconsistent with felonious assault as defined by MCL 750.82. We therefore conclude that the proper action for the trial court is to enter a judgment of conviction on the AWIGBH charge but not on the felonious-assault charge, even though the jury found defendant guilty of both.
Our dissenting colleague takes the view that our decision is inconsistent with People v. Doss , 406 Mich. 90, 99, 276 N.W.2d 9 (1979). We disagree. The defendant in Doss was a police officer who shot a suspected burglar. Id . at 93-94, 276 N.W.2d 9. He was charged with manslaughter and bound over for trial. Id . at 95, 276 N.W.2d 9. On interlocutory appeal, this Court concluded that the prosecution had not shown sufficient evidence to establish that the defendant acted without malice. People v. Doss , 78 Mich. App. 541, 549, 260 N.W.2d 880 (1977). The prosecution appealed in the Supreme Court, which reversed, holding that the prosecution need not present evidence on a negative element, i.e., that the defendant acted without malice. Doss , 406 Mich. at 97-99, 276 N.W.2d 9. As an example, the Supreme Court explained that the prosecution did not have to prove that the defendant was not armed in order to convict of unarmed robbery. Id . at 99, 276 N.W.2d 9.
However, the issue before us today, and in Davis, was not addressed in Doss . First, Doss did not involve review of a judgment of conviction and the underlying jury verdict; the only issue was whether proof of the negative element was required to bind over the defendant on the charge of manslaughter. Second, in Doss , the only crime at issue was manslaughter—the court was not considering how to address a jury verdict that convicted the defendant of both manslaughter and murder for the same killing. In other words, there was no issue of inconsistent verdicts in Doss . The fact that courts do not instruct on negative elements is not problematic in single-offense cases. However, it is problematic when two crimes are charged on the basis of the same conduct and one of those crimes has a negative element that is the direct opposite of a positive element of the other charge.Our review of the caselaw demonstrates that almost all cases dealing with this issue involved inconsistent verdicts arising out of compound felonies such as carrying a firearm during the commission of a felony (felony-firearm) and felony murder. These cases offer little guidance in the present setting because in the compound-felony setting, the jury is fully instructed on the elements of both offenses and is therefore aware that conviction of a compound felony is logically inconsistent with acquittal of the predicate felony. If they nevertheless choose to enter inconsistent verdicts, they may do so, and that conviction will stand. The Supreme Court addressed this issue in People v. Vaughn , 409 Mich. 463, 466, 295 N.W.2d 354 (1980) :
Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant's release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility. [Citations omitted].[ ]
See also People v. Putman , 309 Mich. App. 240, 251, 870 N.W.2d 593 (2015) (upholding the defendant’s conviction for armed robbery and second-degree murder despite the jury’s acquittal of first-degree felony murder).
Following Vaughn , the Supreme Court decided People v. Lewis , 415 Mich. 443, 446, 330 N.W.2d 16 (1982), in which the situation was reversed: the defendant was convicted of felony-firearm but acquitted of the underlying felony. The Court noted that
[t]he inconsistency in the instant verdicts suggests that the juries either compromised or were lenient.
If the jury was lenient, the defendant was not prejudiced by the inconsistency in the verdicts and has no cause for complaint. In that hypothesis, although 12 jurors agreed that the defendant was guilty beyond a reasonable doubt of the underlying felony, they nonetheless extended mercy, convicting him only of what they may have thought was a lesser offense instead of both. [ Id . at 450-451, 330 N.W.2d 16 (footnotes omitted).]
However, the instant case, like Davis , does not involve a compound offense. It involves conviction of two crimes that—by the plain text of the relevant statutes—are fundamentally inconsistent. And unlike the cases involving compound offenses, the jury in this case did not know that its verdicts were inconsistent. Given that the instructions did not inform the jury of the negative element of felonious assault, the jury would conclude that conviction of felonious assault is fully consistent with conviction of AWIGBH. The instant verdict, therefore, was not the result of compromise or leniency given that defendant was convicted of both charges. Nor could it be the result of jury error beyond a court’s ability to correct. To restate the point, in a case in which a defendant is charged only with felonious assault the fact that there is no instruction on the negative element is of no consequence. However, when a defendant is charged with both felonious assault and AWIGBH, the lack of instruction on the negative element deprives the jury of knowledge that conviction of both charges would be inconsistent. As noted, if a jury decides to render what it knows to be an inconsistent verdict, it may do so and the court may not interfere. However, when the jury is unaware that its verdict is inconsistent, we should not presume that the jury would have reached the same verdict had it known the full text of the statute under which the defendant is charged.
Our dissenting colleague concludes that because the jury is not asked to find the negative element in felonious assault, the two verdicts are not in conflict. We agree that there is no conflict between the jury’s factual findings and the instructions it was given. However, the court, which knows the full text of the relevant statutes, was obviously aware of the inconsistency, and it is the role of courts to ensure that the entirety of the felonious-assault statute is considered. Failing to do so renders a portion of the statute nugatory. People v. Kloosterman , 296 Mich. App. 636, 639-640, 823 N.W.2d 134 (2012). While a jury does not know that a finding of intent to do great bodily harm is inconsistent with the statutory definition of felonious assault, the court does, and it may not enter judgment when the jury has found that one of the offense’s elements, albeit a negative element, has not and cannot be met. The court, cognizant of the entire statute, must ensure that the judgment it enters is consistent with the law as written. Accordingly, we conclude that defendant’s felonious-assault conviction should be vacated and the AWIGBH conviction affirmed.
D. OFFENSE VARIABLE (OV) 19
Finally, defendant argues that the trial court erred when it assessed 10 points for offense variable (OV) 19 of the sentencing guidelines. We disagree.
In People v. Sours , 315 Mich. App. 346, 348, 890 N.W.2d 401 (2016), this Court observed:
Issues involving the proper interpretation and application of the legislative sentencing guidelines, MCL 777.11 et seq ., ... are legal questions that this Court reviews de novo. On appeal, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [Quotations marks and citations omitted.]
MCL 777.49 provides, in pertinent part:
Offense variable 19 is threat to the security of a penal institution or court or interference with the administration of justice or the rendering of emergency services. Score offense variable 19 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
* * *
(c) The offender otherwise interfered with or attempted to interfere with the administration of justice .......... 10 points
"Interfering or attempting to interfere with the administration of justice includes acts that constitute obstruction of justice, but is not limited to such acts." People v. Ericksen , 288 Mich. App. 192, 204, 793 N.W.2d 120 (2010). "OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing offense." Sours , 315 Mich. App. at 349, 890 N.W.2d 401. See also People v. Barbee , 470 Mich. 283, 288, 681 N.W.2d 348 (2004) (holding that the act of giving a false name to a police officer constitutes interference with the administration of justice for purposes of OV 19), and People v. Hershey , 303 Mich. App. 330, 344, 844 N.W.2d 127 (2013).
Although this case does not involve the combination of factors that was found to constitute interference with the administration of justice in Ericksen, 288 Mich. App. at 204, 793 N.W.2d 120, we agree that defendant’s act of disposing of the weapon used to stab Zarkin, as well as disposing of the clothing he was observed wearing during the attack, supports the trial court’s finding that defendant interfered with the police investigation of the crime and, thus interfered with or attempted to interfere with the administration of justice. Accordingly, the trial court did not err when it assessed 10 points for OV 19.
Affirmed in part and vacated in part.
Stephens, P.J., concurred with Shapiro, J.
Gadola, J. (dissenting)
The majority vacates defendant’s conviction for felonious assault, MCL 750.82, on the ground that the jury rendered mutually exclusive verdicts by finding defendant guilty of both felonious assault and assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a). I respectfully dissent and would affirm defendant’s convictions for both felonious assault and AWIGBH.
Felonious assault is statutorily defined as an assault on "another person with a gun, revolver, pistol ... or other dangerous weapon without inten[t] to commit murder or to inflict great bodily harm less than murder ...." MCL 750.82 (emphasis added). In contrast, AWIGBH is statutorily defined as an assault on "another person with intent to do great bodily harm, less than the crime of murder ." MCL 750.84(1)(a) (emphasis added). On the basis of these statutory definitions, the majority holds that the two offenses are mutually exclusive when premised on the same underlying act because a defendant is incapable of committing a single assault both with and without the intent to inflict great bodily harm less than murder.
However, the convictions presently at issue are not mutually exclusive. Our Supreme Court held in People v. Doss , 406 Mich. 90, 99, 276 N.W.2d 9 (1979), that negative concepts, such as the absence of an element, must not be treated as positive elements of a crime that the prosecution must prove beyond a reasonable doubt. Specifically, the issue confronted in Doss was whether the absence of malice was an affirmative element the prosecution was obligated to establish in order to prove the crime of manslaughter. Id . at 97, 276 N.W.2d 9. "Manslaughter" was statutorily defined as the injuring and causing of another’s death " ‘by the discharge of any firearm, pointed or aimed, intentionally but without malice , at any such person....’ " Id ., quoting MCL 750.329 (emphasis added). Our Supreme Court concluded that the absence of malice was not an essential element of manslaughter, reasoning that "[w]hile the absence of malice is fundamental to manslaughter in a general definitional sense, it is not an actual element of the crime itself which the people must establish beyond a reasonable doubt." Doss , 406 Mich. at 99, 276 N.W.2d 9.
The reasoning set forth in Doss applies with equal force in the present case. Although the absence of intent to inflict great bodily harm less than murder is fundamental to felonious assault in a "general definitional sense," id. , it is not a positive element that the prosecution must establish, or that the jury must find, beyond a reasonable doubt. Indeed, the elements necessary to prove felonious assault are " ‘(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.’ " People v. Nix , 301 Mich. App. 195, 205, 836 N.W.2d 224 (2013), quoting People v. Avant , 235 Mich. App. 499, 505, 597 N.W.2d 864 (1999). Meanwhile, the elements necessary to prove AWIGBH are " ‘(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.’ " People v. Brown , 267 Mich. App. 141, 147, 703 N.W.2d 230 (2005), quoting People v. Parcha , 227 Mich. App. 236, 239, 575 N.W.2d 316 (1997). Notably absent from the elements necessary to prove felonious assault is a lack of intent to inflict great bodily harm less than murder. By comparison, the existence of such intent is an element necessary to prove AWIGBH. Thus, the two offenses do not incorporate mutually exclusive elements.
The reason for this is easily understood. To require the prosecution to prove, as an element of felonious assault or any other similarly defined criminal offense, a lack of a particular intent would be to assign the prosecution the near impossible task of proving a negative in order to obtain a conviction. This task would be all the more daunting were it to require, as it would here, proving the absence of a particular state of mind. Such an outcome cannot be what was intended when the Legislature defined the crime of felonious assault, any more than it could have been what was intended when it established the elements of manslaughter. Rather, with regard to intent, the Legislature has merely described something that is not part of the prosecution’s burden in establishing the crime of felonious assault. This is precisely the point made by our Supreme Court in Doss when it stated, "In the instant case, ‘without malice’ is the absence of an element, rather than an additional element which the people must prove beyond a reasonable doubt." Doss , 406 Mich. at 99, 276 N.W.2d 9.
This rationale is consistent with this Court’s analysis of the same issue in People v. Price , unpublished per curiam opinion of the Court of Appeals, issued June 1, 2017 (Docket No. 330710), pp. 3-4, 2017 WL 2407747, lv gtd 501 Mich. 1066, 910 N.W.2d 301 (2018), in which the Court concluded that convictions for felonious assault and AWIGBH premised on the same underlying act are not mutually exclusive. Relying on Doss , this Court held in Price that "[t]he absence of intent to commit murder or to inflict great bodily harm less than murder is fundamental to felonious assault ‘in a general definitional sense,’ but it is not an actual element of the crime itself." Id . at 3, quoting Doss , 406 Mich. at 99, 276 N.W.2d 9. In examining the elements necessary to establish the two offenses, the Court observed that felonious assault requires the use of a dangerous weapon but does not require the intent to do great bodily harm less than murder, while AWIGBH does not require the use of a dangerous weapon but does require the intent to do great bodily harm less than murder. Id . at 3-4. Thus, the Court’s analysis demonstrated that the two offenses are mirror images of each other and are not mutually exclusive. Following a bench trial, the trial court in Price found that the defendant had assaulted the victim both with a dangerous weapon and with the intent to inflict great bodily harm less than murder. Id . at 4. Accordingly, the trial court found the defendant guilty of felonious assault because he committed the assault with a dangerous weapon and found him guilty of AWIGBH because he assaulted the victim with the intent to inflict great bodily harm less than murder. Id . This Court upheld the convictions, holding that because "[t]he trial court’s verdicts may be reconciled with its factual findings, it did not render inconsistent verdicts." Id ., citing People v. Ellis , 468 Mich. 25, 27, 658 N.W.2d 142 (2003). The majority relies on this Court’s analogous opinion in People v. Davis , 320 Mich. App. 484, 493-495, 905 N.W.2d 482 (2017), lv gtd 501 Mich. 1064, 910 N.W.2d 301 (2018), in which the Court concluded that the offenses of aggravated domestic assault (second offense), MCL 750.81a(3), and AWIGBH incorporated mutually exclusive elements of intent. Like felonious assault, aggravated domestic assault is statutorily defined as being committed " ‘without intending to commit murder or to inflict great bodily harm less than murder ....’ " Davis , 320 Mich. App. at 490, 905 N.W.2d 482, quoting MCL 750.81a(2) (emphasis omitted). The Court recognized, however, that
a unique wrinkle exists in this case because the jury did not actually make contradictory findings in reaching two mutually exclusive guilty verdicts. The trial court did not instruct the jury that in order to convict defendant of aggravated domestic assault it had to find that defendant did not act with intent to do great bodily harm. The only intent mentioned by the court was "either to commit a battery, or to make [the victim] reasonably fear an immediate battery." [ Davis , 320 Mich. App. at 494, 905 N.W.2d 482 (emphasis added).]
The Court further acknowledged our Supreme Court’s holding in Doss that negative elements such as the lack of intent to inflict great bodily harm less than murder are not affirmative elements that must be proved by the prosecution or on which the jury must be instructed by the trial court. Id . at 494-495, 905 N.W.2d 482. Nonetheless, the Court concluded that "[t]his does not nullify the error of convicting defendant of mutually exclusive offenses" on two grounds. Id . at 495. First, the prosecution should have levied the charges as alternate grounds for conviction. Id . Second, the trial court should have either reinstructed the jury regarding the alternate nature of the two offenses or vacated one of the convictions. Id .
The Court’s conclusion in Davis is fundamentally at odds with our Supreme Court’s holding in Doss and with its own recognition in Davis that the prosecution was not compelled to prove contradictory elements and that the jury was not required to make contradictory findings in reaching its guilty verdicts. Those details lead to the conclusion that the two offenses at issue were not, in fact, mutually exclusive. Accordingly, there was no reason for the prosecution to levy the charges as alternate grounds or for the trial court to reinstruct the jury or vacate one of the convictions. The same analysis holds true in the present case.
In the present case, the majority maintains that it was incumbent on the trial court to review the verdict because the jury was not instructed regarding the negative element set forth in MCL 750.82(1) and was therefore unaware that the two charged offenses conflicted. But again, because the statutory offenses at issue do not incorporate inconsistent affirmative elements that must be proved by the prosecution, no conflict arose. Therefore, there was no need for the trial court to either instruct the jury or to nullify the jury’s conclusions.
Moreover, the Davis Court’s comparison of the facts in the case to those in United States v. Daigle , 149 F.Supp. 409 (D.D.C. 1957), aff’d 248 F.2d 608 (C.A.D.C. 1957), is untenable. In Daigle , the court determined that convictions of embezzlement and larceny stemming from the same transaction were mutually exclusive. Id . at 414. A conviction for embezzlement required the jury to find that the defendant had unlawfully converted property owned by another but that was lawfully in the defendant’s "possession or custody by virtue of his employment or office ...." Id . at 412, citing DC Code 22-1202 (1951). However, in order to convict the defendant of larceny, the jury was required to find that the defendant had taken property owned by another that defendant had no right to possess, i.e., the traditional notion of "stealing." Id . at 414. Therefore, by finding the defendant guilty of both charges, the jury in Daigle necessarily made the affirmative and contradictory findings that the defendant came into his initial possession or custody of the property at issue both lawfully (embezzlement) and unlawfully (larceny).
In contrast to Daigle , the jury in Davis was not required to make contradictory findings resulting in mutually exclusive verdicts. In order to find the defendant guilty of AWIGBH, the jury necessarily found that the defendant acted with the intent to inflict great bodily harm. However, as discussed earlier, to find the defendant guilty of aggravated domestic assault, the jury was not required to find the absence of the intent to do great bodily harm less than murder. Accordingly, as acknowledged by the Court in Davis , "the jury did not actually make contradictory findings...." Davis , 320 Mich. App. at 494, 905 N.W.2d 482. Likewise, in the present case, although the jury was required to find that defendant acted with the intent to do great bodily harm less than murder with respect to AWIGBH, it was not required to find the absence of such intent with respect to felonious assault. Daigle is therefore inapposite to both Davis and the present case. Because the offenses are not mutually exclusive, I would affirm defendant’s convictions of both felonious assault and AWIGBH.
Additionally, because the case was decided by the United States District Court for the District of Columbia, Daigle does not represent binding authority. See Abela v. Gen. Motors Corp. , 469 Mich. 603, 607, 677 N.W.2d 325 (2004) ("Although lower federal court decisions may be persuasive, they are not binding on state courts.").
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