Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  March 22, 2019                                                                Bridget M. McCormack,
                                                                                               Chief Justice

  156406                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Brian K. Zahra
            Plaintiff-Appellant,                                                   Richard H. Bernstein
                                                                                   Elizabeth T. Clement
  v                                                      SC: 156406                Megan K. Cavanagh,
                                                                                                    Justices
                                                         COA: 332081
                                                         Wayne CC: 15-005481-FH
  JOEL EUSEVIO DAVIS,
             Defendant-Appellee.
  _____________________________________/

         On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE in part the
  July 13, 2017 judgment of the Court of Appeals. On appeal to the Court of Appeals,
  defendant argued that his convictions for both assault with intent to do great bodily harm
  (AWIGBH), MCL 750.84(1)(a), 1 and aggravated domestic assault, MCL 750.81a(3), 2
  violated his right to be free from multiple punishments under double-jeopardy principles.
  US Const, Am V; Const 1963, art 1, § 15. The Court of Appeals reframed this double-
  jeopardy argument as an issue of “mutually exclusive” verdicts, specifically a situation
  “where a guilty verdict on one count necessarily excludes a finding of guilt on
  another . . . .” People v Davis, 320 Mich App 484, 493 (2017), quoting United States v
  Randolph, 794 F3d 602, 610-611 (CA 6, 2015) (quotation marks omitted). See also
  United States v Powell, 469 US 57, 69 n 8 (1984). The Court of Appeals noted that the
  statutory language of AWIGBH requires a defendant to commit assault with the specific
  intent to do great bodily harm, whereas the statutory language of aggravated domestic
  assault requires a defendant to commit assault without the intent to commit great bodily
  harm. Davis, 320 Mich App at 490. The Court of Appeals reasoned that these
  contradictory provisions rendered the verdicts mutually exclusive and, on that basis,




  1
    To be found guilty of AWIGBH, a person must “[a]ssault[] another person with intent
  to do great bodily harm, less than the crime of murder.” MCL 750.84(1)(a).

  2
    To be found guilty of aggravated domestic assault, a person must, inter alia, assault an
  individual “without intending . . . to inflict great bodily harm . . . .” MCL 750.81a(2).
                                                                                                               2

vacated defendant’s aggravated domestic assault conviction. Id. at 496. In doing so, the
Court of Appeals erred.

       Regardless of whether this state’s jurisprudence recognizes the principle of
mutually exclusive verdicts, this case does not present that issue. In this case, the jury
was instructed that to convict defendant of AWIGBH, it must find that defendant acted
“with intent to do great bodily harm, less than the crime of murder.” See MCL
750.84(1)(a). However, with respect to aggravated domestic assault, the jury was not
instructed that it must find that defendant acted without the intent to inflict great bodily
harm. See MCL 750.81a(3); People v Doss, 406 Mich 90, 99 (1979) (“While the absence
of malice is fundamental to manslaughter in a general definitional sense, it is not an
actual element of the crime itself which the people must establish beyond a reasonable
doubt.”). Since, with respect to the aggravated domestic assault conviction, the jury
never found that defendant acted without the intent to inflict great bodily harm, a guilty
verdict for that offense was not mutually exclusive to defendant’s guilty verdict for
AWIGBH, where the jury affirmatively found that defendant acted with intent to do great
bodily harm. Thus, the Court of Appeals erred by relying on the principle of mutually
exclusive verdicts to vacate defendant’s aggravated domestic assault conviction. We thus
VACATE that part of the Court of Appeals judgment relevant to that finding.

       Because the Court of Appeals erroneously decided this case on the basis of
mutually exclusive verdicts, the Court did not address the merits of defendant’s double-
jeopardy argument. Davis, 320 Mich App at 489 (finding that “double jeopardy is not the
proper initial focus”). Accordingly, we REMAND this case to the Court of Appeals for
reconsideration of the parties’ arguments in light of People v Miller, 498 Mich 13 (2015).
We also direct the Court of Appeals to determine and apply the appropriate standard of
review to this double-jeopardy challenge because the applicable standard of review was
not explicitly addressed by the Court of Appeals in its July 13, 2017 judgment.

       We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 22, 2019
       a0319
                                                                             Clerk
