YOUNG, J.
In this case, the trial judge's determination that the prosecutor failed to present sufficient evidence to convict defendant was based on an erroneous legal analysis. The question this case poses is whether that erroneous legal analysis precludes defendant's retrial under the double jeopardy clauses of the United States and Michigan constitutions.
Defendant George Szalma was charged with first-degree criminal sexual conduct (CSC-I) based on the allegation that he digitally penetrated the anus of his four-year-old son during his parental visitation
The complainant's mother also testified. She explained that the sometimes acrimonious custody situation required her and defendant to meet at the Harper Woods Police Station to exchange the complainant and his brother before and after defendant's parental visitation time. She also testified that the complainant exhibited odd behavior on the evening of the alleged sexual assault. After defendant's visitation time, the complainant exhibited "unusually aggressive" behavior at the park. That night, the complainant woke up crying and upset, which his mother considered "really unusual" for him. Finally, she testified that, when she examined the complainant's rectal area three days later, it appeared "weird," "red," and "gaped open."
The prosecution also presented the testimony of the two physicians who examined the complainant. Neither physician's examination of the complainant, however, conclusively established whether penetration had occurred. The two investigating police officers similarly testified that no physical evidence existed either to support or to refute the charges.
Once the prosecution rested its case, defense counsel moved for a directed verdict under MCR 6.419(A),
Before making its ruling, the trial court clarified the elements of the charged offense with the prosecution and defense counsel, with both parties agreeing that CSC-I contains an element not actually included in the corresponding statute:
The trial court then proceeded to make its ruling on the basis of this erroneous understanding about the elements of the charged crime:
The prosecution appealed, and the Court of Appeals reversed the directed verdict of acquittal and remanded for a new trial. The panel accepted the prosecution's argument that the verdict of acquittal was an improper determination of the witnesses' credibility, not the legal sufficiency of the evidence. The Court of Appeals determined that "the trial court engaged in a somewhat lengthy analysis of its empirical, objective, sense of what the evidence showed," but that the trial court's analysis "unequivocally focused on the credibility of the witnesses."
On receiving the defendant's application for leave to appeal, this Court directed oral argument on whether to grant leave to appeal or take other peremptory action.
Defendant claims that the Court of Appeals decision subjects him to a new trial in violation of the double jeopardy provisions of the United States and Michigan Constitutions.
The Fifth Amendment of the United States Constitution protects a criminal defendant from "be[ing] subject for the same offence to be twice put in jeopardy of life or limb. ..."
The double jeopardy prohibition originated in the English common law. Blackstone called it "a universal maxim of the common law of England" that "no man is to be brought into jeopardy of his life, more than once, for the same offence...."
Michigan's own Blackstone, Justice THOMAS M. COOLEY, articulated the following principle in one of his many treatises:
The United States Supreme Court has applied these principles to its double jeopardy jurisprudence for well over a century. In Ball v. United States, the Court explained that the double jeopardy prohibition "is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."
Following Ball, several decisions of the United States Supreme Court have elaborated on the question central to the instant case: what constitutes an "acquittal" within the meaning of the Double Jeopardy Clause? In United States v. Martin Linen Supply Co., the Court defined an acquittal for double jeopardy purposes as a "ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged."
An acquittal, defined as a resolution of the elements of the charged offense, remains a bar to retrial even if it is "based upon an egregiously erroneous foundation."
The United States Supreme Court has not directly considered a related, but distinct issue: whether a trial court's acquittal on a criminal charge based on insufficient evidence bars retrial where the trial court erroneously adds an element to the charge.
This Court, however, has considered that question in People v. Nix, and concluded
The prosecution argued at oral argument in the instant case that Nix was wrongly decided and that a trial court's acquittal based on an erroneously included element of the charged offense does not bar a retrial based on the correct elements of the charged offense.
Under MCR 6.419(A), a defendant may move for a directed verdict following the close of the prosecution's proofs and, on that motion, is entitled to "a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction."
Whether a judgment of a lower court is an acquittal for purposes of double jeopardy "is not to be controlled by the form of the judge's action."
However, notwithstanding Nix's broad statement precluding retrial, this Court determined in People v. Mehall that not all conclusions drawn in a finding of acquittal preclude a retrial. In Mehall, this Court held that a trial court's ruling on a defendant's motion for a directed verdict that "focuse[s] almost exclusively on the complainant's testimony, and on its conclusion that her testimony was not credible," is an impermissible credibility judgment and not a "rul[ing] on the sufficiency of the prosecution's proofs."
This case requires this Court to determine whether the trial court's ruling on defendant's MCR 6.419(A) motion involved an "impermissible credibility judgment" under Mehall, as the Court of Appeals ruled, or a "resolution, correct or not, of some or all of the factual elements of the offense charged,"
As stated, we must look to the substance of the trial court's ruling, not its outward form, to determine whether the ruling constitutes an acquittal for double jeopardy purposes.
Before making its ruling, the trial court clarified the elements of the charged offense. Both defense counsel and the prosecution agreed that, for defendant to be convicted of the charged offense, the finder of fact had to conclude that defendant penetrated the complainant's anus for a "sexual purpose."
Similarly, the parties' arguments on the motion focused on whether sufficient evidence existed to prove that defendant acted with a sexual purpose. Defense counsel explained that "[t]here have been numerous other things that [the alleged penetration] could have been." The prosecution countered that "the testimony and the evidence brought forth indicates that it easily could be believed to be for a sexual purpose."
The Court of Appeals concluded that the trial court's ruling was based on its judgment of the complainant's credibility, rather than on the sufficiency of the evidence. We disagree. The trial court clearly indicated that it could not find any evidence that defendant committed the charged offense for a sexual purpose. Whether or not the trial court's conclusion is factually correct is immaterial.
Unlike the trial court in Mehall, the trial court in the instant case did not make an improper credibility determination in its ruling.
At oral argument, the prosecution claimed that the trial court premised its ruling on an erroneous understanding of the elements required to prove CSC-I, namely, the requirement that the prosecutor prove that defendant committed a penetration with a sexual purpose. We agree, but the posture of this case under People v. Nix makes our agreement unavailing. While it is true that the Legislature did not require any specific "sexual purpose" as an element of CSC-I, this Court's decision in Nix provides that a trial court's erroneously added element of a crime does not negate the finality of its directed verdict. Furthermore, we do not
MCL 750.520b(1) establishes the CSC-I offense and provides, in relevant part:
The Legislature defined "sexual penetration," in relevant part, as "any ... intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body. ..."
In People v. Langworthy, this Court ruled that "[n]either the first-degree criminal sexual conduct statute nor the corresponding statutory definition of `sexual penetration' contains any language whatsoever regarding [specific] intent."
Nevertheless, the trial court's legal error does not negate the effect of its directed verdict. This Court held in People v. Nix that an acquittal retains its finality for double jeopardy purposes even when "the trial court is factually wrong with respect to whether a particular factor is an element of the charged offense."
As stated, at oral argument in this case, the prosecutor argued that Nix was wrongly decided. However, because the prosecutor conceded the underlying legal error at trial by agreeing with defense counsel that sexual purpose was an element of the charged crime, the prosecution has, undoubtedly inadvertently, created the very error that it wishes to correct on appeal. Because a party may not harbor error at trial and then use that error as an appellate parachute,
The double jeopardy provisions of the United States and Michigan constitutions preclude retrial of a criminal defendant following an acquittal for insufficient evidence. The trial court's decision in the instant case, though premised on an erroneous understanding of the legal elements of the charged offense, nonetheless constituted just such a decision on the sufficiency of the evidence under Nix. We therefore reverse the judgment of the Court of Appeals and reinstate the trial court's directed verdict of acquittal.
WEAVER, CORRIGAN, MARKMAN, and HATHAWAY, JJ., concurred with YOUNG, J.
MICHAEL F. CAVANAGH, J. (concurring).
I concur in the result only. I agree that retrial is barred by the double jeopardy clauses of the state and federal constitutions because the trial court's directed verdict of acquittal was based on its determination that there was insufficient evidence to support the charge. A court's "ruling that as a matter of law the State's evidence is insufficient to establish [the defendant's] factual guilt" is "`a resolution, correct or not, of some or all of the factual elements of the offense charged,'" and, thus, constitutes an acquittal to which double jeopardy protections attach. Smalis v. Pennsylvania, 476 U.S. 140, 144, 144 n. 6, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) (citation omitted). See also People v. Nix, 453 Mich. 619, 625, 556 N.W.2d 866 (1996). Whether the trial court erred in its interpretation of the elements of the crime is irrelevant; "[t]he status of the trial court's judgment as an acquittal is not affected" by a trial court's legal error in interpreting the governing legal principles because "`[t]he fact that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles". . . affects the accuracy of that determination but it does not alter its essential character.'" Smalis, 476 U.S. at 144 n. 7, 106 S.Ct. 1745, quoting United States v. Scott, 437 U.S. 82, 98, 106, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), and citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).
MARILYN J. KELLY, C.J., concurred with MICHAEL F. CAVANAGH, J.
MCL 750.520a(r) defines "sexual penetration," in part, as "any ... intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body. ..."
In contrast, the Legislature criminalized certain types of "sexual contact" with another person, MCL 750.520c(1), as second-degree criminal sexual conduct. In doing so, it made sexual gratification an explicit element of the offense. Second-degree "sexual contact" is defined as:
Nevertheless, three cases the concurring justice cites in support of his position are worth examining in greater detail. Such examination also shows them to be readily distinguishable from the instant case because they involve evidentiary questions over actual elements in the crime.
Smith v. Massachusetts involved a trial court's error regarding not whether a particular element to the crime existed, but rather what evidence could prove that element. The defendant in Smith was charged with unlawful possession of a firearm, among other charges, which "requires proof that the weapon had a barrel `less than 16 inches' in length." Smith at 464, 125 S.Ct. 1129, citing Mass. Gen. Laws, ch. 140, § 121 (West 2002) (definition of "firearm"). The trial court granted an acquittal on defendant's motion because it determined that "there was `not a scintilla of evidence' that petitioner had possessed a weapon with a barrel length of less than 16 inches." Id. at 465, 125 S.Ct. 1129. Subsequent to that ruling, but while defendant remained on trial for two other charges, the prosecutor "brought to the court's attention a Massachusetts precedent under which (he contended) the victim's testimony about the kind of gun sufficed to establish that the barrel was shorter than 16 inches." Id. The trial court agreed with the prosecutor, reversed its previous ruling, and allowed the firearm charge to go to the jury. Thus, the trial court determined that the prosecutor did provide sufficient evidence of the 16-inch element to convict defendant of the firearm charge. However, the United States Supreme Court's ruling concluded that the court's mid-trial ruling "meets the definition of acquittal that our double-jeopardy cases have consistently used: It `actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" Id. at 468, 125 S.Ct. 1129, quoting Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349.
Similarly, Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), involved the trial court's error, regarding not whether a particular aggravating circumstance existed to allow a jury to impose a death penalty for first-degree murder, but how the prosecutor must prove the occurrence of that circumstance in a particular case. The aggravating circumstance at issue involved whether a murder occurred "`as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.'" Id. at 205, 104 S.Ct. 2305, quoting Ariz. Rev. Stat. 13-703(F)(5). The trial court erroneously ruled that this aggravating circumstance only involved murders for hire, rather than any murder occurring during the course of a robbery, as the Arizona Supreme Court interpreted the statute. Nevertheless, the United States Supreme Court concluded that the trial court's decision operated as a verdict on whether defendant was eligible for the death penalty, and that therefore, defendant could not subsequently be placed in jeopardy of death for the same offense, notwithstanding the trial court's "misconstruction of the statute defining the pecuniary gain aggravating circumstance." Id. at 211, 104 S.Ct. 2305.
Finally, Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), involved whether a trial court's granting of a "demurrer" within the commonwealth of Pennsylvania's rules of criminal procedure involved an acquittal for double jeopardy purposes. The United States Supreme Court held that it did, notwithstanding an alleged error that the trial court committed in interpreting the "recklessness" element of Pennsylvania's third-degree murder statute. Id. at 144 n. 7, 106 S.Ct. 1745.
In this case, as discussed infra, there is simply no statutorily defined specific intent element to CSC-I. Accordingly, this case presents a different situation than those the United States Supreme Court resolved in Smith, Rumsey, and Smalis. Nevertheless, whether the United States Supreme Court case law mandates the result in this case is immaterial because, as discussed infra, and as the concurring justice correctly concludes, this Court's decision in Nix clearly controls the outcome of this case.
Moreover, the trial court explained that "even in the light most favorable to the nonmoving party, I don't find that a reasonable jury could find beyond a reasonable doubt that the crime was committed as charged."
Such observations compel the conclusion that the trial court considered this evidence in the light most favorable to the prosecution when ruling on defendant's motion for a directed verdict.
Further, the majority's discussion of whether the errors in certain cases should be characterized as evidentiary errors is irrelevant because, as discussed, the United States Supreme Court has repeatedly stated that jeopardy attaches to an acquittal on the merits regardless of either evidentiary errors or erroneous interpretations of governing legal principles. I note, however, that I disagree that the error in Rumsey was evidentiary because it clearly related to the proper interpretation of the statute's requirements and not the evidence required to satisfy that interpretation. Under the majority's expansive understanding of what constitutes an "evidentiary" error, the alleged error in this case is also evidentiary because it relates to whether the prosecution needed to present evidence of a sexual purpose to satisfy the statute.
