This section contains a brief discussion of double jeopardy issues as they relate to the criminal sexual conduct offenses. For a detailed discussion of double jeopardy issues in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9.
“Both federal and Michigan double jeopardy provisions afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. [People v Nutt, 469 Mich 565, 574 (2004); North Carolina v Pearce, 396 US 711 (1969)].” People v Ford, 262 Mich App 443, 447 (2004).
A.Second Prosecution for Same Offense
“The rule against successive prosecutions does not apply where a defendant requests separate trials on related offenses.” People v Matuszak, 263 Mich App 42, 49-50 (2004) (where defendant pleaded guilty on one count and stated no objection to proceeding to trial on another count, the guilty plea was treated as a request for separate proceedings on the two related charges). Accordingly, defendant’s trial-based conviction of CSC-I did not violate double jeopardy principles even though it was preceded by his plea-based conviction of CSC-III. Id. at 49.
B.Multiple Punishments for Same Offense
“To determine whether a defendant has been subjected to multiple punishments for the ‘same offense,’ [courts] must first look to determine whether the Legislature expressed a clear intention that multiple punishments be imposed. . . . Where the Legislature has not clearly expressed an intention to impose multiple punishments, the elements of the offenses must be compared using the Blockburger test.” People v Garland, 286 Mich App 1, 4-5 (2009), quoting People v Smith, 478 Mich 292, 316 (2007). “Nowhere in the CSC chapter, MCL 750.520 et seq., does the Legislature clearly express its intention to impose multiple punishments. Thus, the Blockburger test must be applied.” Garland, 286 Mich App at 5. “Under the Blockburger test, if each offense ‘requires proof of a fact which the other does not’ then there is no violation of double jeopardy.” Garland, 286 Mich App at 5.
Because CSC-I and CSC-III each require proof of a fact that the other does not, a defendant’s convictions of two counts of CSC-I and two counts of CSC-III based on two acts of sexual penetration did not violate double jeopardy. Garland, 286 Mich App at 3, 5-6 (“although CSC I and CSC III both require a sexual penetration, the commission of CSC I does not necessarily require commission of CSC III and vice versa”; MCL 750.520b(1)(c) requires proof that the sexual penetration occurred ‘under circumstances involving the commission of any other felony,’” which “is not an element of MCL 750.520d(1)(c)”; “MCL 750.520d(1)(c) requires proof that the sexual penetration occurred and was accompanied by the actor knowing or having ‘reason to know that the victim [was] . . . physically helpless,’” which “is not an element of MCL 750.520b(1)(c)).
“Because CSC-I and CSC-II each require proof of a fact that the other does not, [a] defendant’s convictions of both on the same facts does not violate double jeopardy.” People v Duenaz, 306 Mich App 85, 107, 115 (2014) (“‘[s]exual penetration’ is an element of CSC-I but not CSC-II,” and “CSC-II requires that ‘sexual contact’ be done for a 'sexual purpose,’ an element not included in CSC-I) (citation omitted).
A defendant’s conviction of twelve counts of CSC-I violated double jeopardy protection against multiple punishment for the same offense where the “prosecutor alleged that defendant committed six acts of sexual penetration, charged him with six counts of CSC I, and set forth alternative theories to support each,” and “the jury convicted defendant twice for each instance of sexual penetration.” People v Mackle, 241 Mich App 583, 601 (2000) (directing the trial court to vacate six of the twelve sentences) (citations omitted). But see People v Rogers, 142 Mich App 88, 90 (1985) (rejecting “defendant[’s] claims that his conviction of multiple counts of criminal sexual conduct violate[d] the prohibition against double jeopardy” because the defendant was not convicted of multiple counts of CSC-I based upon a single act of penetration; “[r]ather this case involve[d] multiple penetrations and multiple actors” where “[d]efendant . . . himself engaged in sexual penetration with the complainant, . . . [and a]ccording to the victim, [his] co-defendant[s] . . . engaged in [three additional] acts of penetration”; because “[d]efendant was present throughout the entire episode and, in its early stages, struck and threatened the complainant, . . . displayed a weapon to the victim, pointed it at her, and loaded the weapon in her presence, . . . defendant’s convictions [were] not for the ‘same offense’ but are for the separate acts of penetration in which he was involved”) (citations omitted).