Jury instruction on a lesser included offense; AWIGBH (MCL 750.84(1)(a)); Assault & battery (A&B) (MCL 750.81(1)); People v Haynie; Whether a rational view of the evidence supported giving the instruction; People v Cornell; Whether an error was harmless

In an order in lieu of granting leave to appeal, the court reversed the part of the Court of Appeals judgment (see e-Journal # 73800 in the 9/17/20 edition) concerning defendant’s challenge to the trial court’s denial of his request for a jury instruction on A&B where he was charged with AWIGBH. Assuming without deciding that A&B is a lesser-included offense of AWIGBH, the court concluded that a rational view of the evidence supported the instruction, that the trial court erred in not giving it, and that the error was not harmless. The Court of Appeals held that A&B “is not a necessarily included lesser offense of AWIGBH but rather a cognate offense for which a trial court is not required to give jury instructions.” It noted that the Supreme Court in Haynie chose not to address whether A&B “is a necessarily included lesser included offense of AWIM and instead relied on the prosecution’s concession” in Haynie that this was so, while here, there was no such concession. However, it “failed to acknowledge the prosecution’s concession in the trial court” and that concession waived the prosecution’s appellate argument. Thus, the court assumed that A&B is a lesser-included offense here. It also found that a rational view of the evidence supported the instruction. “To the extent the prosecution relies on evidence of injury to argue otherwise,” the court repeated its “observation in Haynie that ‘[w]hile the severity of injury bears on intent, it is not necessarily dispositive[.]’” The court further found that defense counsel’s general denial that an assault occurred did “not lead to the conclusion that the intent element of AWIGBH was not disputed. A criminal defendant is generally permitted to present inconsistent defenses, and so long as there is sufficient evidence to support a proposed jury instruction, the instruction should be given. . . . Similarly, when a rational view of the evidence would support” an A&B conviction “for a defendant charged with AWIGBH, it is error to prevent the defendant from arguing that no assault occurred, but that if one did, the defendant did not act with the intent to cause great bodily harm.” The court remanded to the trial court for a new trial, but denied leave to appeal in all other respects as it was not persuaded it should review the remaining questions presented.

Dissenting, Justice Zahra agreed that the prosecution waived its argument that A&B is not a lesser included offense of AWIGBH “by advancing a contrary position in the trial court.” But he disagreed with the “decision to grant defendant a new trial without plenary review of the record and the remaining issues regarding whether the trial court abused its discretion in denying defendant’s requested” A&B jury instruction. He would instead remand the case to the Court of Appeals for consideration of two issues.