            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 21, 2019
               Plaintiff-Appellee,

v                                                                    No. 340272
                                                                     Eaton Circuit Court
DAMON EARL WARNER,                                                   LC No. 2016-020296-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (dissenting)

       I respectfully dissent, because I do not agree that the trial court improperly instructed the
jury regarding unanimity. Additionally, I would reject defendant’s other assertions of error.1
Therefore, I would affirm.

        As the majority explains, defendant was charged with first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(b) (victim aged 13 to 15 and a relative), on the basis of
digital-vaginal penetration that occurred in the dining room of their home; and he was charged
with second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(b) (victim aged 13 to
15 and a relative), on the basis of penile-vaginal contact in a bedroom. Defendant’s theory of the
case was that neither event occurred. The trial court’s initial instructions to the jury informed
them, inter alia, that time is not an element of either crime, that the two charges represented
separate crimes to be considered independently, that a “verdict in a criminal case must be
unanimous,” and “in order to return a verdict, it is necessary that each of you agrees on that
verdict.”

        Neither defendant nor the majority appear to take exception to the instructions as of that
point in the proceedings, and I cannot imagine any such argument prevailing. “Time is not of the


1
  However, due to the procedural posture of being in dissent, I, like the majority, find it
unnecessary to present an analysis of those claims.



                                                -1-
essence nor a material element in a criminal sexual conduct case, at least where the victim is a
child.” People v Stricklin, 162 Mich App 623, 634; 413 NW2d 457 (1987). Each act of
penetration or contact is a separate act of criminal sexual conduct. People v Dowdy, 148 Mich
App 517, 520-521; 384 NW2d 820 (1986); People v Brown, 105 Mich App 58, 68-69; 306
NW2d 392 (1981), aff’d in part and vacated in part on other grounds in People v Robideau, 419
Mich 458; 355 NW2d 592 (1984); see also People v Sikorski, 499 Mich 899; 877 NW2d 155
(2016). The trial court’s instruction unambiguously required the jury to be unanimous as to each
verdict it returned, not merely any verdict. It is clear that the attorneys and the trial court
believed, at the time, that the acts in the dining room were specifically tied to the CSC-I charge,
and the acts in the bedroom were specifically tied to the CSC-II charge. Because it was not yet
contemplated that either act could support more than one specific charge each, there would have
been no reason to suspect that a specific unanimity instruction might even possibly be warranted.
See People v Cooks, 446 Mich 503, 510-516; 521 NW2d 275 (1994).

      However, the jury sent a question that the attorneys and the trial court agreed was
incomprehensible. Upon being asked to rephrase, the jury sent another note asking:

       Does count one have to pertain to evidence in the dining room only? Does count
       two have to pertain to evidence in the bedroom only? Or, can count one and two
       pertain to the dining room?

The attorneys and the trial court correctly agreed that CSC-II was a cognate offense of CSC-I
rather than a lesser included offense, because CSC-II does not require penetration as does CSC-I,
but CSC-I does not require a “sexual purpose” as does CSC-II. See People v Duenaz, 306 Mich
App 85, 107; 854 NW2d 531 (2014). They also agreed that sexual penetration could be
performed for a non-sexual purpose, such as torture, but if it is established to have been
performed for a sexual purpose, it would necessarily also constitute sexual contact. I have not
found any cases on point, but I agree, as apparently does the majority, that the logic is
inescapable.

       The trial court therefore, with the agreement of the attorneys, responded to the jury:

       “Does count one [CSC-I] have to pertain to evidence in the dining room only?”
       Yes. “Does count two [CSC-II] have to pertain to evidence in the bedroom
       only?” No. “Can count one and count two pertain to the dining room?” [Yes.]

Thus, the jury’s instructions continued to require a CSC-I verdict to be based only on the digital-
vaginal penetration in the dining room; however, a CSC-II verdict could “pertain to” either act.
Defendant did not concede that either act actually occurred, but seemingly did concede that the
evidence indicated any such penetration to have been for a sexual purpose. As the majority
states, the jury was unable to reach a conclusion regarding the CSC-I charge, but it found
defendant guilty of the CSC-II charge. As the majority also states, either assault could have
supported a CSC-II conviction. However, this is not a situation in which a single act could have
resulted in multiple convictions under the same statute. See People v Garland, 286 Mich App 1,
6-7; 777 NW2d 732 (2009).




                                                -2-
        Notably, defendant does not argue that the trial court erred in failing to sua sponte give a
specific unanimity instruction, but rather that defense counsel was ineffective for failing to
request one. As a consequence, in addition to the review standards outlined by the majority, we
are to engage in the presumption that trial counsel’s decisions were strategic, we must defer to
any reasonable possibility that such strategic decisions were sound irrespective of whether they
were successful, and we must evaluate whether any error is likely to have affected the outcome
of the proceedings. People v Jordan, 275 Mich App 659, 667-668; 739 NW2d 706 (2007);
People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001).

       “Michigan criminal juries are not required to unanimously agree upon every fact
supporting a guilty verdict.” People v Gadomski, 232 Mich App 24, 30-31; 592 NW2d 75
(1998). Even where a multitude of alternative acts could satisfy the actus reus of a single
charged offense, a general unanimity instruction will suffice “unless 1) the alternative acts are
materially distinct (where the acts themselves are conceptually distinct or where either party has
offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to
believe the jurors might be confused or disagree about the factual basis of defendant's guilt.”
Cooks, 446 Mich at 524. Defendant did not challenge the details of either assault, but rather
whether they occurred at all; in his closing argument to the jury, he explicitly stated that:

       The defendant says that none of these things happened. I submit, to you, that the
       evidence really supports that version. The only thing that doesn’t support it is
       [the victim’s] testimony, and that’s it. The testimony of a girl who’s in trouble
       and wanted to get out of trouble. She deflected.

Defendant offered no materially distinct defense against either charge beyond undermining the
victim’s credibility. Likewise, the prosecution’s case largely consisted of the victim’s testimony
and undermining defendant’s credibility. Thus, it “was obvious to the participants in the trial
that the verdict turned on whether the jury believed the testimony of [the victim] on the one
hand, or found reasonable doubt that any sexual assault occurred, as claimed by the defendant.”
People v Van Dorsten, 441 Mich 540, 545; 494 NW2d 737 (1993).

        The two acts of assault perpetrated by defendant were physically distinct. However,
because neither party offered materially distinct proofs, the acts are only materially distinct (and
therefore warranting a specific unanimity instruction) if they are “conceptually distinct.” Cooks,
446 Mich at 524. Again, defendant “did not contest the nature of the acts themselves.” See
People v Martin, 271 Mich App 280, 338-339; 721 NW2d 815 (2006). Defendant’s conviction
of CSC-II did not require a conclusion that penetration occurred, and defendant did not dispute
that either assault would, if it occurred, entail sexual contact. See Cooks, 446 Mich at 529 n 33.
Under the circumstances of this case, I cannot agree that the assaults were, at least for purposes
of CSC-II, conceptually distinct.2 Because the trial court unambiguously instructed the jury that



2
  It appears to me that the majority concludes that physically distinct acts are necessarily
materially distinct. I respectfully disagree and believe that if our Supreme Court had intended
such an automatic equivalence, it would have so stated.


                                                -3-
each verdict must be unanimous as to that verdict, I conclude that the general unanimity
instruction was proper and sufficient.

        As noted, because the majority does not analyze the remainder of defendant’s claims on
appeal, I likewise decline to set forth an extensive analysis. However, I have reviewed them and
I would find them unpersuasive. Defendant’s conviction should be affirmed.

                                                           /s/ Amy Ronayne Krause




                                              -4-
