            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 12, 2019
               Plaintiff-Appellee,

v                                                                    No. 332081
                                                                     Wayne Circuit Court
JOEL EUSEVIO DAVIS,                                                  LC No. 15-005481-01-FH

               Defendant-Appellant.


                                          ON REMAND

Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

        I respectfully dissent. In our initial opinion, we held that the crimes of aggravated
domestic assault and assault with intent to do great bodily harm (AWIGBH) are mutually
exclusive with one another considering the statutory language defining each crime. People v
Davis, 320 Mich App 484, 494-496; 905 NW2d 482 (2017). The Supreme Court reversed,
finding that because the jury was not instructed on the negative element for aggravated domestic
assault, i.e., “that defendant acted without the intent to inflict great bodily harm,” the verdicts
were not mutually exclusive. People v Davis, 503 Mich 984 (2019). In other words, because the
jury was not instructed on the inconsistent nature of the two offenses, it did not render
inconsistent findings.

        In my view, our prior opinion erred by defining the problem as one of mutually exclusive
verdicts instead of a mutually exclusive judgments. The Supreme Court reversed because
verdicts cannot be mutually exclusive when the jury is not instructed on the element that creates
the inconsistency. I respectfully suggest, however, that while whether or not a jury is instructed
on a negative element is relevant to a claim of mutually exclusive verdicts, it is irrelevant to the
question whether the court violates a defendant’s due process rights by entering a judgment for
two crimes that by their terms cannot exist simultaneously. The jury is not aware that the crimes
are by their plain language mutually exclusive, but the court is and, in my view, must therefore
decline to enter a judgment of conviction for both offenses. That the offenses are mutually
exclusive is apparent on the face of the statutes. AWIGBH occurs when the defendant either


                                                -1-
assaults a person by strangulation or suffocation (neither of which apply here), or when the
defendant “[a]ssaults another person with intent to do great bodily harm . . . .” MCL
750.84(1)(a) (emphasis added). In contrast, a defendant commits aggravated domestic assault
when he inflicts serious or aggravated injury “without intending to . . . inflict great bodily
harm . . . .” MCL 750.81a(2) (emphasis added).

        The majority notes that MCL 750.84(3) provides that “[t]his section does not prohibit a
person from being charged with, convicted of, or punished for any other violation of law arising
out of the same conduct as the violation of this section.” I agree; a conviction for AWIGBH
does not immunize a defendant against convictions of other crimes arising out of the assault.
However, the question is not whether as a general matter a defendant may be convicted of other
crimes arising out of the assault, but whether the judicial system may adjudge a defendant guilty
of two crimes when the statutes defining them make clear that factually only one can exist at a
time, i.e., either a defendant has the intent to do great bodily harm or not.1

         In a recent case, the Supreme Court acknowledged that relying on acquitted conduct to
increase a defendant’s sentence “ ‘mak[es] no sense as a matter of law or logic,’ ” and is “a
‘perver[sion] of our system of justice,’ as well as ‘bizarre’ and ‘reminiscent of Alice in
Wonderland.’ ” People v Beck, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket No.
152934); slip op at 20 (citations omitted; first alteration added). I would conclude that this
characterization applies equally to a court’s entry of judgment of guilt for two offenses that by
their terms cannot exist simultaneously.

                                                           /s/ Douglas B. Shapiro




1
  The majority undertakes a thoughtful analysis of legislative intent reviewing the interplay of
various amendments. However, none of the amendments speaks to the specific contradictory
language in the offenses before us.



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