New trial; CSC I; MCL 750.520b; Sexual penetration; MCL 750.520a(r); Penile-oral penetration; Fellatio; People v Johnson; Ineffective assistance of counsel; Failure to request specific-unanimity instruction; People v Trakhtenberg

The court held that the trial court did not abuse its discretion by granting defendant a new trial because the prosecution failed to challenge an independent ineffective-assistance ground for that ruling. Defendant was convicted of four counts of CSC I involving allegations of penile-vaginal and/or penile-oral penetration. The trial court granted his motion for a new trial, finding insufficient evidence of penile-oral penetration and ineffective assistance based on counsel’s failure to object to the jury instruction and request a specific-unanimity instruction. On appeal, the prosecution challenged the sufficiency analysis and claimed judicial prejudice, but the court declined to reach those arguments. It noted the trial court’s order made “clear that defense counsel’s failure to request a specific-unanimity instruction was an independent basis for granting a new trial” regardless of whether there was sufficient evidence of penile-oral penetration. Because the prosecution did not challenge that ineffective-assistance ruling, the court concluded the trial court did not abuse its discretion by granting a new trial. The court added that, if defendant is retried on a penile-oral penetration theory, the trial court must apply Johnson’s binding definition of “fellatio” requiring “penetration or intrusion of the penis into the mouth,” rather than “mere kissing or contact.” Affirmed.