Request for a lesser included offense instruction; People v. Everett; People v. Wilder; MCL 768.32(1); People v. Rodriguez; People v. Cornell; People v. McMullan; Distinguishing People v. Nickens; MCL 750.520b(1)(a); People v. Duenaz; MCL 750.520b(2)(b); People v. Nyx; MCL 750.520g(1); People v. Cash; Admission of the victim’s statements for the purpose of medical treatment; Hearsay; MRE 801(c); People v. Gursky; MRE 802; MRE 803(4); People v. Mahone; People v. Meeboer (After Remand); Sentencing; Abandoned issue of whether the trial court should have calculated defendant’s sentencing guidelines range using the next highest crime class; Scoring of 15 points for OVs 8 & 10; People v. McChester; People v. Hardy; People v. Johnson; “Predatory conduct”; People v. Cannon; People v. Kosik; Abandoned issue of whether the sentence was reasonable & proportionate; People v. Lockridge

The court held that the trial court did not err when it denied defendant’s request for an instruction on assault with intent to commit CSC involving penetration as a necessarily lesser-included offense to the three charges of CSC I. Also, the victim’s statements to the examining nurse were reasonably necessary for her diagnosis and treatment. Thus, the trial court did not abuse its discretion in admitting them under MRE 803(4). The court also upheld the scoring of 15 points each for OVs 8 and 10. Defendant was convicted for sexually assaulting his girlfriend’s daughter. He was convicted of three counts of CSC I, one count of CSC II, one count of engaging in child sexually abusive activity, and one count of possession of child sexually abusive material. He was sentenced to consecutive sentences of 25 to 50 years for each CSC I conviction, and concurrent sentences of 10 to 15 years for CSC II, 160 months to 20 years for the child sexually abusive activity conviction, and 32 months to 4 years for the child sexually abusive material possession conviction. Defendant argued that the trial court erred when it denied his request for an instruction on assault with intent to commit CSC involving penetration as a necessarily lesser-included offense to the CSC I charges. He relied upon Nickens to argue that before a defendant can commit CSC I involving sexual penetration, “he or she initially commits an attempted-battery assault with the intent to commit” CSC involving sexual penetration. Defendant contended that “because the victim was legally incapable of consenting to sexual penetration due to her young age, the attempted-battery assault was necessarily committed using force or coercion,” and he was thus entitled to an instruction on the lesser-included offense of assault with intent to commit CSC involving penetration. The court disagreed, noting that the defendant in Nickens was charged under MCL 750.520b(1)(f), while defendant here was charged with age-based CSC I under MCL 750.520b(1)(a). It held that because “there is ‘no circumstance in which an actor could unintentionally or accidentally use force or coercion to sexually penetrate his victim,’ defendant’s reliance on Nickens” was misplaced. Affirmed.