Double jeopardy; Multiple punishments; Blockburger v United States; CSC I under MCL 750.520b(1)(g); CSC III under MCL 750.520d(1)(c); Greater & lesser included offenses; Brown v Ohio; Hearsay; Excited utterance; MRE 803(2); People v Gee

The court held that defendant’s convictions and sentences for both CSC I and CSC III violated double-jeopardy protections because they were based on the same single act of sexual penetration. But it held that the trial court properly admitted the victim’s statement to police as an excited utterance. The victim (TR) testified that defendant picked her up after jail, gave her a substance she injected, and she then blacked in and out of consciousness before waking up with defendant’s penis in her vagina while he held his arm or hand to her throat. A nurse later documented injuries to TR’s neck, thighs, lower back, buttocks, lips, and cervix, and testing indicated the likely presence of defendant’s DNA. On appeal, the court held that the prosecutor properly conceded a double-jeopardy violation because TR described only one act of vaginal intercourse, the nurse’s testimony supplied the injury element for CSC I, and the prosecutor acknowledged that the CSC III count was simply a “mirror” of the CSC I charge “with the injury removed.” The court next held that CSC III was a lesser included offense of CSC I as charged here because the CSC III elements required “no proof beyond that which is required for conviction of the greater” offense. The court therefore held that sentencing defendant for both offenses for the same act violated the prohibition on “multiple punishments for the same offense,” so the proper remedy was to affirm the higher offense conviction and vacate the lower one. The court also held that a deputy’s testimony about TR’s statement was properly admitted under MRE 803(2) because TR was crying, disheveled, and had ripped clothes, supporting the finding that she was still under the stress of the assault and had not had time to fabricate. Affirmed in part, vacated in part, and remanded.