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Second degree criminal sexual conduct is not a necessarily included lesser offense of first degree criminal sexual conduct but is instead a cognate lesser included offense. Because second degree criminal sexual conduct is a cognate offense of first degree criminal sexual conduct, defendant cannot seek reversal on the basis of the trial court's refusal to instruct the jury on an offense inconsistent with the evidence and his theory of the case.
Donal Wilhelm was charged with first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f), and kidnapping, MCL 750.349; MSA 28.581. Following a jury trial, Wilhelm was convicted of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b). Wilhelm was sentenced to from three years and nine months to ten years' imprisonment. Wilhelm appealed as of right.
Did the trial court properly deny Wilhelm’s request to instruct the jury regarding second degree criminal sexual contact?
The court affirmed Wilhelm’s conviction and sentence. Where the victim testified that penetration, rather than sexual contact, occurred, and where Wilhelm testified that consensual sexual contact and penetration had occurred, the trial court properly denied Wilhelm’s request to instruct the jury regarding second degree criminal sexual contact. The trial court also did not err in prohibiting Wilhelm from introducing certain testimony concerning alleged sexual acts of the victim directed toward two other men in a bar that Wilhelm claimed to have observed. Wilhelm had failed to comply with the notice requirement of the rape-shield statute, Mich. Comp. Laws § 750.520j (Mich. Stat. Ann. § 28.788(10)). The public nature of the victim's alleged acts did not remove those acts from the protection of the rape-shield statute. Moreover, although Wilhelm observed the victim's alleged conduct with third parties, it was not relevant to the issue whether she consented to sexual intercourse with defendant later that evening.