                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    October 25, 2018
               Plaintiff-Appellee,

v                                                                   No. 339068
                                                                    Isabella Circuit Court
BENJAMIN KEITH MCKEWAN,                                             LC No. 2016-001924-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

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. 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 (emphasis added). Based on 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 NW2d 9 (1979), that negative concepts, such
as the absence of an element, must not be treated as positive elements of a crime. 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.
“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

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actual element of the crime itself which the people must establish beyond a reasonable doubt.”
Id. at 99.

         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,” it is not a positive element the prosecution must establish, or
that the jury must find, beyond a reasonable doubt.1 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 NW2d 224 (2013), quoting People v Avant, 235 Mich App 499,
505; 597 NW2d 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 NW2d 230 (2005), quoting People v Parcha, 227 Mich App 236, 239; 575 NW2d 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.

        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, lv gtd 910 NW2d 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. 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


1
  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.


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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. Thus, the trial court found the defendant guilty of
felonious assault, as he committed the assault with a dangerous weapon, and of AWIGBH, as 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 NW2d 142 (2003).

       The majority relies on this Court’s analogous opinion in People v Davis, 320 Mich App
484, 493-495; 905 NW2d 482 (2017), lv gtd 910 NW2d 301 (2018), in which the Court
concluded that the offenses of aggravated domestic assault 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.’ ” Id. at 490, quoting MCL 750.81a. 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.” [Id. at 494
       (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 proven by the prosecution or on which the jury must be instructed by the
trial court. Id. at 494-495. Nonetheless, the Court concluded that “[t]his does not nullify the
error of convicting defendant of mutually exclusive offenses” on two grounds. Id. 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, nor was the jury required to make contradictory findings in
reaching its guilty verdicts. Such circumstances 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.2 The same analysis holds true in the present case.



2
 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


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        Moreover, Davis’ comparison to United States v Daigle, 149 F Supp 409 (DDC, 1957),
aff’d 248 F2d 608 (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. 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 above, in order 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. 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.3

        Because the offenses are not mutually exclusive, I would affirm defendant’s convictions
of both felonious assault and AWIGBH.

                                                            /s/ Michael F. Gadola




750.82 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
proven 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.
3
 Additionally, as it 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 NW2d 325 (2004) (“Although lower federal court decisions may be persuasive, they are not
binding on state courts.”).


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