Can a trial court properly deny a defendant's request for a jury instruction on second-degree criminal sexual conduct as a lesser included offense of first-degree criminal sexual conduct when the defendant does not dispute that penetration occurred?

Defendant was charged with first-degree criminal sexual conduct and kidnapping following an incident involving a female victim. Both defendant and the victim were at a bar, though not together. Defendant claimed he observed the victim lift her shirt and expose her breasts to two men at her table, and that one man fondled her breasts. Later that evening, defendant and the victim went to defendant's boat parked in his parents' driveway, where sexual intercourse occurred. The victim testified that penetration occurred without her consent, while defendant testified that both sexual contact and penetration were consensual. Defendant sought to introduce evidence of the victim's alleged conduct at the bar to support his consent defense, arguing it was relevant because it occurred publicly and shortly before the alleged assault. The prosecution objected under Michigan's rape-shield statute, noting defendant failed to comply with the ten-day notice requirement.

Defendant was charged with first-degree criminal sexual conduct and kidnapping. Following a jury trial, defendant was convicted of third-degree criminal sexual conduct and sentenced to three years and nine months to ten years imprisonment. Defendant appealed as of right to the Michigan Court of Appeals. The Court of Appeals initially reversed defendant's conviction but granted rehearing on its own motion and ultimately affirmed the conviction.

(Per Curiam)

No. Second-degree criminal sexual conduct is not a necessarily included lesser offense of first-degree criminal sexual conduct, but rather a cognate lesser included offense. When an offense is cognate rather than necessarily included, a defendant cannot seek reversal based on the trial court's refusal to instruct on an offense inconsistent with the evidence and the defendant's theory of the case. Here, both the victim and defendant testified that penetration occurred - the victim claimed it was non-consensual while defendant claimed it was consensual. Under these circumstances, where penetration was undisputed, no evidence supported an instruction on second-degree criminal sexual conduct, which involves sexual contact rather than penetration. The trial court also properly excluded evidence of the victim's alleged conduct at the bar under Michigan's rape-shield statute. The statute protects rape victims from having their sexual conduct with third parties introduced as evidence, recognizing that such evidence is generally irrelevant and potentially prejudicial. The public nature of the alleged conduct does not remove it from the statute's protection. Evidence of a victim's consensual sexual conduct with others does not indicate willingness to engage in similar behavior with the defendant. The alleged breast exposure and fondling constituted sexual conduct within the meaning of the statute. Additionally, defendant failed to comply with the ten-day notice requirement, which prejudiced the prosecution's ability to investigate and respond to the allegations. The rape-shield statute's notice provision serves important purposes of preventing surprise and allowing adequate investigation. Even if the evidence had some probative value, its prejudicial effect substantially outweighed any probative worth.

Concurrence (Shepherd, J.) The defendant's failure to comply with the ten-day notice provision of the rape-shield statute was fatal to his constitutional confrontation claim. Had defendant complied with the notice requirement, the prosecutor would have had an opportunity to investigate and verify the allegations, and the trial judge could have conducted an in camera hearing to determine whether the evidence was more probative than prejudicial. The rape-shield statute represents a balance between protecting victims and preserving defendants' rights, but this balance cannot be achieved when defendants circumvent procedural requirements. The ten-day notice rule is particularly valid where, as here, the potential for surprise to the prosecutor is a significant concern. While evidence of a complainant's sexual conduct with third parties may sometimes be admissible under exceptions recognized in People v. Hackett, defendants must still comply with notice requirements even for evidence that might fall within constitutional exceptions to the statute.