PEOPLE v. SZALMA, 487 Mich. 708 (2010)

790 N.W.2d 662

Docket No. 140021.Supreme Court of Michigan.Argued May 11, 2010.
Decided August 26, 2010.

Appeal from the trial court, Matthew Switalski, J.

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Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Attorney, and Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.

Maceroni Maceroni, PLLC (by Patricia A. Maceroni), for defendant.

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

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and Michigan constitutions.[1] This Court’s decision i People v. Nix holds that such legal error precludes retrial.[2] Our adversarial system of justice precludes the prosecution from harboring error at the trial level and subsequently seeking relief on the basis of that error. Accordingly, this Court is left with no other option. Had the prosecution not conceded the trial court’s legal error, this case would have provided an opportunity to revisit the correctness of Nix. Because the prosecution supported the legal error and because Nix squarely compels a reversal, we reverse the Court of Appeals judgment and reinstate the trial court’s directed verdict of acquittal.

I. FACTS AND PROCEDURAL HISTORY
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 time on June 30, 2007.[3] At trial, the complainant testified that, when both he and defendant were in the bathroom naked, defendant “put his hand inside my butt,” and it felt “not good.” He also testified that he did not see defendant’s hand because defendant was standing behind him at the time.

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

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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),[4] explaining that “the record is void of any evidence which would allow this jury to make a decision that my client is guilty of this charge beyond a reasonable doubt.” Counsel elaborated:

I think a statement on the record, most favorable to the prosecution would suggest the following: That [the complainant] testified that his father put his hand in his butt, that he never saw specifically what occurred, and that it hurt.
* * *
So, with all the numerous other things that could have been causing this irritation, it was a four-year-old child’s

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suggesting his father put his hand in his butt. Was it for wiping a four-year-old little boy who . . . are not always as cleanly [sic] as they should be, because they are four years old, they are little boys, and they would rather be out playing soccer instead of, you know, cleaning themselves.
We don’t have anything beyond that. There have been numerous other things that it could have been. This case is replete with doubt. And I can’t see how any jury can logically and legally convict Mr. Szalma of such a horrendous offense. . . .

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 Court. A couple of questions: I don’t have your finished instructions in front of me. The mens rea for this charge would be what? Anybody!?] Prosecutor. The specific intent instruction has been stricken, so it does indicate in the jury instruction that we have to prove the Defendant engaged in a sexual act.
Defense Counsel. Judge, I can add to that. It is not just any touching, or even any penetration that makes the crime out. It has to be for sexual purposes.
The Court. It is not strict liability?
Prosecutor.
No.
Defense Counsel.
No.
The Court. It has to be for a sexual purpose.
Defense Counsel. Yes, sir.
Prosecutor. Even given that, I believe that the testimony and the evidence brought forth indicates that it easily could be believed to be for a sexual purpose.[5]

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The trial court then proceeded to make its ruling on the basis of this erroneous understanding about the elements of the charged crime:

The Court. Well, here are my thoughts: A wonderful, young boy who testified, a very precious, dear child. He made a wonderful impression, anyone would be lucky to have him as your child.
The mother made a very good impression, very likable, very engaging, very polite when cross examined
* * *
Now, you have a four-year-old boy, he’s almost five at the time. . . . A very dear boy. And he testifies, he’s in the bathroom with his dad, and something he says — it’s hard to even say what he says. The construction of what he says, is, the inference is that it was his dad’s finger went into his anus, and it didn’t feel that great. . . .

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He essentially repeats that, this is what happened to me, he tells it to a couple of doctors. Now, it is true, a complainant’s story need not be corroborated if, in and of itself, it is good enough to convince you beyond a reasonable doubt. . . .
Now, here, my best reading of the medical testimony, particularly the last doctor, it doesn’t really educate you in any way. It is consistent with it happening, and with it not happening. It is not particularly edifying to a finder of fact. It’s really not anything you can hang your hat on. [The investigators] really can’t do anything to help or hurt the case. . . .
* * *
It is a very unfortunate thing that happened. Unfortunate for everybody involved. Now, what it boils down to then, I guess, is you have to make the argument, the natural father,. . . on this record, decided for sexual purposes to penetrate his child. . . .
[I]t is easier to say, hey, give it to the jury. But, not everything has to go to the jury in a criminal case. [The prosecutor] did a fantastic job with this case, but she’s only got so much to work with. It would have to be logical on the record, that there would be something on the record to indicate that the Defendant, I guess, did this, in a criminal trial with that mind set, that it was for sexual purposes, that there is just not another just as logical explanation. I’m not seeing that on this record. . . .
[B]ased on this record, 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.
With that, I’m going to grant [defendant’s] motion for a directed verdict. That will be that on the case. . . . [T]here is not enough on this record.

The prosecution appealed, and the Court of Appeals reversed the directed verdict of acquittal and remanded

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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.”[6] The panel concluded that “[t] he jury in this case might reasonably have come to a conclusion different from that of the trial court, had it been allowed to proceed to a verdict.”[7]

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.[8]

II. STANDARD OF REVIEW
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.[9] Such a claim is reviewed de novo.[10]

III. ANALYSIS A. DOUBLE JEOPARDY JURISPRUDENCE
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

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of life or limb. . . .”[11] A parallel provision of the Michigan Constitution provides a criminal defendant with similar protection.)[12] In adopting this parallel provision, “the people of this state intended that our double jeopardy provision would be construed consistently with Michigan precedent and the Fifth Amendment.”[13]

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. . .,”[14]
He elaborated:

And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.[15]

Michigan’s own Blackstone, Justice THOMAS M. COOLEY, articulated the following principle in one of his many treatises:

One thing more is essential to the complete protection of jury trial, and that is, that the accused shall not be twice

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put in jeopardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation, whether the verdict be for or against him, and whether the courts are satisfied with the verdict or not.[16]

The United States Supreme Court has applied these principles to its double jeopardy jurisprudence for well over a century. I 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.”[17]

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.”[18]

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.”[19] Thus, i Sanabria v. United States, the Court determined that an acquittal is final even if it is based on an erroneou evidentiary ruling that precluded the prosecution

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from introducing evidence that would have been sufficient to convict the defendant.[20]

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.[21]

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This Court, however, has considered that question in People v. Nix, and concluded that a finding of insufficient evidence constitutes an acquittal of that offense 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.”[22] In Nix, the defendant was on trial for first-degree premeditated murder and first-degree felony murder. The trial court ruled that the defendant “could not be convicted of either charge as a matter of law” because she “owed no legal duty to the victim,” who died after the defendant’s boyfriend locked the victim in her own trunk.[23] The majority of this Court in Nix
concluded that “[t]he phrase `correct or not'” in the United States Supreme Court’s definition of “acquittal” in Martin Linen “refers to all aspects of the trial court’s ultimate legal decision . . .,”[24]

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.

B. APPLICATION OF DOUBLE JEOPARDY PRINCIPLES
Under MCR 6.419(A), a defendant may move for a directed verdict following the close of the prosecution’s

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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.”[25] In deciding whether the evidence is sufficient to support conviction, the trial court must examine the evidence introduced at trial in the light most favorable to the prosecution.[26]

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.”[27] Rather, an appellate court “must determine whether the ruling of the judge, whatever its label, actually represents a. resolution, correct or not, of some or all of the factual elements of the offense charged.”[28] Similarly, this Court’s double jeopardy jurisprudence establishes that “[t]here is an acquittal and retrial is impermissible when the judge `evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction’,”[29]

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

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credibility judgment and not a “railing] on the sufficiency of the prosecution’s proofs.”[30] Accordingly, th Mehall Court concluded that the trial court “failed altogether to rule on the sufficiency of the prosecution’s proofs,”[31] and, as a result, the prosecution could retry the defendant without offending double jeopardy principles.

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,”[32] as defendant claims. We agree with defendant and hold that the trial court rendered a resolution on the merits of the charged offense and the trial court’s ruling bars a retrial of defendant.

1. THE TRIAL COURT’S RULING
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.[33] A close review of the record leads inexorably to one conclusion: the trial court ruled that defendant could not be convicted of the offense as charged because no evidence existed in the record to prove that he penetrated the complainant’s anus for the purpose of sexual gratification. Thus, this acquittal on the merits of the charged offense is final under the holding o Nix.

Before making its ruling, the trial court clarified the elements of the charged offense. Both defense counsel

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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 complain-ant’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 most obvious explanation of the trial court’s ruling is that it determined that the prosecution did not present sufficient evidence to prove the agreed upon elements of the offense. In accordance with its understanding of the elements of the charged offense, the trial court indicated that “[i]t would have to be logical on the record, that there would be something on the record to indicate that the Defendant, I guess, did this, in a criminal trial with that mind set, that it was for sexual purposes, that there is just not another just as logical explanation.” The trial court then explained, “I’m not seeing that on this record,” and granted defendant’s motion for a directed verdict.

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.[34]

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Unlike the trial court in Mehall, the trial court in the instant case did not make an improper credibility determination in its ruling.[35] Rather, it examine all the evidence, including the complainant’s testimony, the complainant’s mother’s testimony, the examining doctors’ testimony, and the investigating officers’ testimony, in the light most favorable to the prosecutor. The court also properly articulated that the principle that the complainant’s testimony can, by itself, be sufficient to support a conviction of CSC.[36] But the trial court noted that it was “hard to even say what [the complainant] says,” and it did not find the complainant’s testimony sufficient to prove all the elements of CSC. Thus, the trial court’s determination that it was “not seeing” any evidence on the record to prove that the defendant penetrated the complainant with a sexual purpos factually resolved one of its articulated, but erroneous, elements of the offense.

2. EFFECT OF ERRONEOUS RULING OF LAW
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,

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namely, the requirement that the prosecutor prove that defendant committed a penetration with a sexual purpose. We agree, but the posture of this case unde 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 consider whether Nix
was correctly decided because the prosecution conceded the underlying erroneous statement of the elements before the trial court ruled on the defendant’s motion for a directed verdict.

MCL 750.520b(1) establishes the CSC-I offense and provides, in relevant part:

A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
(a) That other person is under 13 years of age.

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 . . .,”[37]

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.”[38] Accordingly, the trial court erred

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to the extent it believed that the prosecution was required to prove that defendant committed a penetration with a sexual purpose. Rather, as the Langworthy Court concluded, “the Legislature intended to maintain the general rule that `no intent is requisite other than that evidenced by the doing of the acts constituting the offense’, i.e., general intent.”[39] Consistent with Langworthy, therefore, in the instant case we only hold that “sexual purpose” is not an element of CSC-I. We do not hold that a general criminal intent is not an element of CSC-I.

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.”[40] This very situation confronts this Court in the instant case. Accordingly, Nix bars retrial of defendant, and the Court of Appeals erred by ruling otherwise.

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,[41] we will not reach the question whether Nix was properly decided.

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IV CONCLUSION
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.

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 US 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 NW2d 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

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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 US at 144 n 7, quoting United States v Scott, 437 US 82, 98, 106; 98 S Ct 2187; 57 L Ed 2d 65
(1978), and citing Sanabria v. United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978), and Arizona v Rumsey, 467 US 203; 104 S Ct 2305; 81 L Ed 2d 164
(1984).[1] See also Nix, 453 Mich at 624-632.[2]
As the

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United States Supreme Court recently affirmed, “any contention that the Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is at odds with the well-established rule that the bar will attach to a preverdict acquittal that is patently wrong in law.” Smith v Massachusetts, 543 US 462, 473; 125 S Ct 1129; 160 L Ed 2d 914 (2005). Therefore, I agree that the Court of Appeals should be reversed and the trial court’s directed verdict of acquittal should be reinstated.

KELLY, C.J., concurred with CAVANAGH, J.

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