RONAYNE KRAUSE, J.

In this prosecution for reckless driving causing death, MCL 257.626(4), the prosecution appeals by leave granted the trial court's order granting defendant's motion to instruct the jury on the lesser included offense of moving violation causing death, MCL 257.601d, contrary to the prohibition against doing so under MCL 257.626(5). The case arises from a three-vehicle collision in which defendant struck another vehicle, causing the second vehicle to strike a third, killing the driver of the second vehicle. MCL 257.626(5) states that "[i]n a prosecution under [MCL 257.622(4) for reckless driving causing death], the jury shall not be instructed regarding the crime of moving violation causing death [under MCL 257.601d]." The trial court determined that this statutory prohibition unconstitutionally infringed on the judicial power to determine court practice and procedure. As a constitutional question, we review the matter de novo. People v. Benton, 294 Mich.App. 191, 203, 817 N.W.2d 599 (2011). Because MCL 257.626(5) is unconstitutional, we affirm.

"It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it." People v. McDonald, 9 Mich. 150, 153 (1861). Many crimes, today and at common law, consist of several "concentric layers" of crimes, each of which is in fact another crime with an element added or subtracted; the "rejecting of successive aggravations is a function open to juries in all cases where there is presented to them one offense in which another is inclosed" and "[n]o question has ever been made as to this right on the part of the jury. . . ." 1 Wharton, A Treatise on Criminal Law (10th ed.), § 27, pp. 34-35. See also Hanna v. The People, 19 Mich. 316, 318 (1869). Michigan codified this principle by statute as early as 1846 in 1846 RS, ch. 161, § 16, which provided that

Our Supreme Court recognized that, at the time, the only crime formally divided into degrees was murder, for which no such provision was needed; consequently, the provision must "be construed as extending to all cases in which the statute has substantially, or in effect, recognized and provided for the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade includes a charge for the less." Hanna, 19 Mich. at 321-322. Our Supreme Court eventually concluded that this principle from Hanna had become inappropriately extrapolated to include cognate offenses, not only necessarily included offenses. See People v. Nyx, 479 Mich. 112, 118-121, 734 N.W.2d 548 (2007). However, Nyx affirmed the Hanna conclusion that the statutory language concerning inferior offenses referred to any offense contained within the charged offense, not just offenses within which the Legislature has formally created degrees. Nyx, 479 Mich. at 127-129, 734 N.W.2d 548.

Today, MCL 768.32 provides essentially the same rule, with the addition of one enumerated exception, contained in MCL 768.32(2), and an explicit provision for the judge at a bench trial to make the same finding. We find it unambiguous that MCL 768.32(1) embodies a venerable and important rule of common law; consequently, the Legislature is strongly presumed not to have intended any alteration to the common law by enacting it. See Bandfield v. Bandfield, 117 Mich. 80, 82, 75 N.W. 287 (1898), overruled in part on other grounds in Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971). Of course, the Legislature can abrogate the common law, but "[w]hen it does so, it should speak in no uncertain terms." Hoerstman Gen. Contracting, Inc. v. Hahn, 474 Mich. 66, 74, 711 N.W.2d 340 (2006).

In an earlier case, this Court determined that the previously noted exception contained in MCL 768.32(2), pertaining to certain drug offenses, is unconstitutional. People v. Binder (On Remand), 215 Mich.App. 30, 38-42, 544 N.W.2d 714 (1996). While that conclusion has never been overturned on any substantive basis, our Supreme Court subsequently vacated that portion of this Court's opinion as having been unnecessary to the resolution of the case. People v. Binder, 453 Mich. 915, 554 N.W.2d 906 (1996). No binding caselaw presently establishes whether MCL 768.32(2) is or is not constitutional.1 Furthermore, no binding caselaw addresses whether, or to what extent, the Legislature could abrogate the long-standing rule that the trier of fact may find a defendant not guilty of a charged offense in lieu of finding the defendant guilty of a necessarily included lesser offense.

It is axiomatic that the Legislature may establish the elements of a given crime. People v. Calloway, 469 Mich. 448, 450-451, 671 N.W.2d 733 (2003). The Legislature may, within constitutional limits, therefore, alter the definition of a crime so that it becomes or ceases to be a necessarily included lesser offense of another. There is no dispute before us that moving violation causing death is, by definition, a necessarily included lesser offense of reckless driving causing death; indeed, the prosecution explicitly so agreed at oral argument. The only distinction between the two crimes is that reckless driving causing death requires the motor vehicle to be operated "in willful or wanton disregard for the safety of persons or property. . . ." MCL 257.626(2). The Legislature could have defined a moving violation causing death in such a way that it included an element not present in reckless driving causing death, with the result that the two would be cognate offenses. However, the Legislature did not do so.

Rather, the Legislature provided that "[i]n a prosecution under [MCL 257.626(4) for reckless driving causing death], the jury shall not be instructed regarding the crime of moving violation causing death [under MCL 257.601d]." MCL 257.626(5). Significantly, this provision (1) does not change the fact that, by definition, moving violation causing death remains a necessarily included lesser offense of reckless driving causing death (2) does not impose any restrictions on the trial court sitting as the trier of fact at a bench trial, and (3) does not even preclude the jury from finding a defendant guilty of the lesser offense.

Pursuant to Const. 1963, art. 6, § 5, "[t]he supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state." While not present in Michigan's first constitution of 1835, an essentially identical provision is found in all of Michigan's constitutions since 1850. See McDougall v. Schanz, 461 Mich. 15, 26 n. 10, 597 N.W.2d 148 (1999). The courts therefore may "prescribe procedural rules that vindicate constitutional rights," but may not promulgate "procedural rules contrary to legislative enactments that involve nonconstitutional substantive policies." People v. Glass (After Remand), 464 Mich. 266, 281 n. 11, 627 N.W.2d 261 (2001). Consequently, our Supreme Court has "exclusive rule-making authority in matters of practice and procedure," but may not "enact court rules that establish, abrogate, or modify the substantive law." McDougall, 461 Mich. at 26-27, 597 N.W.2d 148.

In People v. Cornell, 466 Mich. 335, 353-354, 646 N.W.2d 127 (2002), our Supreme Court held that only necessarily included lesser offenses could be considered by the fact-finder and observed that this rule extended to misdemeanor offenses. Courts are not free to expand upon what crimes may be considered by the trier of fact to include what are, essentially, uncharged offenses. Cornell therefore stands for the conclusion that the Legislature sets the substantive law. Id. at 353, 646 N.W.2d 127. As noted, the Legislature can therefore define what constitutes a given offense. Pursuant to the definitions it crafts, some of those offenses may constitute necessarily included lesser offenses of other offenses. However, the Legislature is not free to dictate that the courts give instructions to the jury that conflict with substantive law. The courts are to instruct the jury on the law; this is established by statute, MCL 768.29, but also by court rule, MCR 2.513(A) and (N), and, importantly, by the simple fact that a jury not properly informed of the law cannot fulfill its duty. See, e.g., People v. Potter, 5 Mich. 1, 8-9 (1858); People v. Duncan, 462 Mich. 47, 52-53, 610 N.W.2d 551 (2000).2 Correctly instructing the jury, therefore, arguably involves more than mere "substantive law;" it is in fact a fundamental requirement of the fair and proper administration of justice. See People v. Murray, 72 Mich. 10, 16, 40 N.W. 29 (1888); People v. Townes, 391 Mich. 578, 587, 218 N.W.2d 136 (1974).

It is the role of the courts to effectuate the right to a properly instructed jury; it is not the role of the Legislature to dictate to the courts the details of how to do so. Indeed, in Cornell our Supreme Court quoted, seemingly with approval, Justice LINDEMER'S dissent in People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975),3 in which he explicitly noted that MCL 768.32 "`does not speak to instructions on lesser included offenses,'" and that although MCL 768.29 "`says that the court shall instruct the jury as to the law applicable to the case, [it] does not mandate what law is applicable to the case.'" Cornell, 466 Mich. at 349, 646 N.W.2d 127, quoting Chamblis, 395 Mich. at 433, 236 N.W.2d 473 (LINDEMER, J., dissenting). Trial judges are, to the contrary, permitted to instruct the jury however they believe best, as long as they accurately convey to the jury the material substance of the law applicable to the case. This supports our view that it is the Supreme Court that determines the practice and procedure to be followed by the courts in effectuating the law. If anything, Cornell supports our conclusion that determining what instructions should be given to the jury is exclusively the judiciary's role. See People v. Knoll, 258 Mich. 89, 101, 242 N.W. 222 (1932). The Legislature's role is only to create the law.

Consequently, if a necessarily included lesser offense exists, it is a violation of the principle of separation of powers for the Legislature to forbid the courts to instruct the jury on that lesser offense. A trial court's duty is to instruct the trier of fact regarding what the law actually is, and the law actually is that moving violation causing death is a necessarily included lesser offense of reckless driving causing death.

Even if the statute was not invalid as a violation of the constitutional separation of powers, we would have to strike it down as a violation of the right to trial by jury. As discussed earlier in this opinion, MCL 257.626(5) does not state what is or is not a lesser included offense of reckless driving causing death. It merely states that "[i]n a prosecution under [MCL 257.626(4) for reckless driving causing death], the jury shall not be instructed regarding the crime of moving violation causing death [under MCL 257.601d]." MCL 257.626(5). The plain text of the statute does not state that a trial court sitting as the finder of fact may not consider the offense of moving violation causing death nor that it may not convict a defendant of this lesser included offense. Had the legislature wished to limit the judge in this fashion it could readily have included explicit language to that effect. Our Legislature is presumed to be aware of the consequences of its use or omission of statutory language as well as its effect on existing laws. In re MKK, 286 Mich.App. 546, 556-557, 781 N.W.2d 132 (2009). See also, Carson City Hosp. v. Dep't. of Community Health, 253 Mich.App. 444, 447-448, 656 N.W.2d 366 (2002) ("When the Legislature enacts laws, it is presumed to know the rules of statutory construction and therefore its use or omission of language is generally presumed to be intentional.").4

The limitation in MCL 257.626(5) is not a statement of substantive law. Instead, MCL 257.626(5) is an infringement on the exclusive role of the judiciary to establish procedures to vindicate constitutional rights, as well as an infringement on the fundamental right of criminal defendants to a properly instructed jury. MCL 257.626(5) is also infirm in that, under the statute, a criminal defendant must give up his or her right to a jury in order for the fact-finder to consider the lesser included offense. Significantly, a defendant has no right to a bench trial unless the prosecution and the judge agree. MCL 763.3; MCR 6.401. Therefore, the statute places defendants in the position of having to trade one right for another without even the ability to make an autonomous choice, and it presents the prosecution with a potentially improper basis for refusing to consent to a requested bench trial.

We conclude that MCL 257.626(5) is unconstitutional as a violation of fundamental due process and as a violation of the principle of separation of powers. Affirmed.

SHAPIRO, J., concurred with RONAYNE KRAUSE, J.

KIRSTEN FRANK KELLY (dissenting).

I respectfully dissent. MCL 257.626(4) provides that "a person who operates a vehicle in violation of subsection (2) [in willful or wanton disregard for the safety of persons or property] and by the operation of that vehicle causes the death of another person is guilty of a felony. . . ." MCL 257.626(5) further provides that "[i]n a prosecution under subsection (4), the jury shall not be instructed regarding the crime of moving violation causing death." Because the trial court clearly violated the statutory mandate of MCL 257.626(5) by granting defendant's motion to instruct the jury on the misdemeanor offense of moving violation causing death, MCL 257.601d(1),1 and because the statutory mandate neither deprives defendant of the right to a jury determination of all of the elements of the crime charged nor violates the principle of separation of powers, I would reverse.

MCL 768.32(1) provides:

In People v. Cornell, 466 Mich. 335, 356, 646 N.W.2d 127 (2002), our Supreme Court discussed the principles supporting an instruction on lesser included offenses as well as when a necessarily included offense instruction should be given:

The Cornell Court thus held that a court could properly give an instruction on a necessarily included lesser offense "if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it. To permit otherwise would be inconsistent with the truth-seeking function of a trial. . . ." Cornell, 466 Mich. at 357, 646 N.W.2d 127.

Defendant argues that MCL 257.626(5) conflicts with the holding in Cornell and unconstitutionally infringes on our Supreme Court's rulemaking authority, violating the separation of powers doctrine. I disagree.

"The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const. 1963, art. 3, § 2. The Legislature has the power over matters of substantive law. See People v. Pattison, 276 Mich.App. 613, 619-620, 741 N.W.2d 558 (2007). While the Legislature has the sole power to define crimes and set punishments, People v. Calloway, 469 Mich. 448, 451, 671 N.W.2d 733 (2003), the Supreme Court has the power to establish practice and procedure, People v. Watkins, 491 Mich. 450, 472, 818 N.W.2d 296 (2012). Therefore, "the Legislature may not enact a rule that is purely procedural, i.e., one that is not backed by any clearly identifiable policy consideration other than the administration of judicial functions." Pattison, 276 Mich.App. at 619, 741 N.W.2d 558. In the course of deciding whether a statutory rule of evidence violated the principle of separation of powers, our Supreme Court held that the Legislature infringes on the Supreme Court's domain

Contrary to the majority's conclusion, MCL 257.626(5) is obviously not a matter of practice and procedure; rather, § 626(5) is absolutely within the substantive power of the Legislature.

Cornell clearly stated that MCL 768.32 is not confined to practice and procedure, but is a matter of substantive law:

Our Supreme Court has determined that MCL 768.32, involving the jury's consideration of lesser included offenses, is a matter of substantive law; it follows that MCL 257.626(5) is also a matter of substantive law. MCL 257.626(5) identifies two specific offenses, prohibiting a jury instruction on the less serious offense when the more serious one has been charged. It reflects the Legislature's policy decision that, in certain cases, the jury shall not be instructed on certain offenses. Consequently, § 626(5) is within the Legislature's power over matters of substantive law and does not violate the separation of powers doctrine.

I find unavailing the majority's reliance on People v. Binder (On Remand), 215 Mich.App. 30, 544 N.W.2d 714 (1996). In Binder, the defendant was charged with delivery of a controlled substance, and MCL 768.32(2) specifically prohibited the trial court from instructing the jury on mere possession. Id. at 32-33, 544 N.W.2d 714. The Court of Appeals held that MCL 768.32(2) was contrary to the constitutional doctrine of separation of powers. Id. at 41-42, 544 N.W.2d 714. Our Court stated that "once the Supreme Court takes action on a matter relating to practice or procedure, the Legislature is without authority to set other requirements." Id. at 40, 544 N.W.2d 714. Our Court concluded that the Supreme Court demonstrated its intent to occupy the domain of jury instructions by court rule and case law and, therefore, MCL 768.32(2) was an impermissible infringement on the Court's rulemaking authority. Id. at 40-42, 544 N.W.2d 714. However, our Supreme Court vacated

Because that portion of Binder was specifically vacated by the Supreme Court, no binding authority supports the majority's conclusion. Statutes are presumed constitutional, and courts must construe statutes as constitutional unless the unconstitutionality of a statute is clearly apparent. People v. Dipiazza, 286 Mich.App. 137, 144, 778 N.W.2d 264 (2009). That a statute may appear ill-advised does not make it unconstitutional and empower a court to override the Legislature. People v. Boomer, 250 Mich.App. 534, 538, 655 N.W.2d 255 (2002).

Finally, while the majority expresses concern that MCL 257.626(5) effectively allows a judge, sitting without a jury, to find a defendant guilty of a lesser included offense, I believe that such an assumption is contrary to the longstanding principle that "[i]n a bench trial, the trial court is presumed to know the applicable law." People v. Lanzo Constr. Co., 272 Mich.App. 470, 484, 726 N.W.2d 746 (2006); see also People v. Cazal, 412 Mich. 680, 691 n. 5, 316 N.W.2d 705 (1982) (stating that a trial court is not required in a bench trial to give instructions in open court on the law to be applied). Given the clear intent of the Legislature to forbid consideration of the lesser misdemeanor offense of moving violation causing death when a defendant has been charged with reckless driving causing death, a judge trying a case without a jury would surely understand that he or she could not convict the defendant of the lesser offense.

For these reasons, I would reverse.