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People v Garrow
Ct. of App. Michigan 1980
Author:- Sam
Biers
Facts: Defendant and victim previously lived together. He left but tried to persuade her to reconcile which she resisted. While in bed with another man victim heard a loud noise in her living room. She discovered the defendant who became abusive, then struck her in the face. Her partner came out and left the house when the defendant pulled a knife. One of the victim’s friend entered and tried to intervene, but was unsuccessful so she went to call the police. Defendant slashed victim’s waterbed, knocked her down, and inserted his fingers into her vagina. Her friend returned and the three struggled until defendant left.
Issue: Whether sexual purpose was an element of first degree criminal sexual assault?
Holding: No, the plain meaning of the statute.
Procedure: Directed verdict for lack of evidence at trial ct. State appealed. Appeal dismissed, double jeopardy bars retrial.
Rule: Sexual penetration means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body-(1 degree). Sexual contact includes the intentional touching of the victim’s or actor’s intimate parts or the intimate touching of the clothing covering the intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.
Ct. Rationale: Sexual penetration includes no requirement of intent. Second degree criminal sexual conduct is not a lesser included offense of first degree criminal sexual conduct. Under the meaning of the statute, outlined by HERNANDEZ, proof of sexual purpose is not required for a finding of guilty of first degree criminal sexual conduct. For an offense to be a necessary lesser included offense, the lesser must be such that it is impossible to commit one without committing the other. Although the trial court erred regarding the elements of first degree criminal sexual conduct, double jeopardy bars the appeals court from remanding.
PL A: Sexual arousal or gratification is not purpose necessary for the crime of first degree sexual conduct.
Def A: The court must look to the lesser included offense’s elements. It is impossible to commit first degree without having committed second degree.