Criminal sexual conduct (CSC) convictions; Double jeopardy; Multiple punishments; Blockburger v United States; CSC I & CSC II; MCL 750.520b(1)(e) & MCL 750.520c(1)(e); CSC I & CSC III; MCL 750.520d(1)(a); Sufficiency of the evidence; CSC II & CSC IV; Use of penetration evidence to establish sexual contact; Hearsay; Excited-utterance exception; MRE 803(2)

The court held that defendant’s CSC II and CSC III convictions did not violate double jeopardy, sufficient evidence supported his CSC II and CSC IV convictions, and there was no error in admitting the victim’s statement under the excited-utterance exception. He was convicted of multiple CSC offenses arising from his sexual assault of 13-year-old EW after telling her he had a gun and threatening to kill her family. As to double jeopardy, the court determined under the Blockburger test that CSC I and CSC II each require proof of an element the other does not because CSC I requires penetration while CSC II requires sexual contact with a sexual-purpose intent. Likewise, CSC I requires the use or implied use of a weapon while the charged CSC III offense requires that the victim be 13 to 15 years old. Thus, the offenses were not the same for double-jeopardy purposes. The court next rejected both parties’ position that the penetration evidence supporting defendant’s CSC I and CSC III convictions had to be disregarded when considering the sufficiency of the evidence for CSC II and CSC IV. It explained that “a single penetration may support multiple CSC convictions of varying grades” when each offense has a distinct element. EW’s testimony that defendant vaginally penetrated her therefore established the touching of her genital area required for CSC II and CSC IV. Finally, EW’s statement to another witness shortly after the assault that “he touched me” fell within the excited-utterance exception. Her frightened, “dumbfounded,” and crying condition supported the conclusion that she remained overwhelmed by the assault and lacked the capacity to fabricate. Affirmed.