People v. Childers , 459 Mich. 216 ( 1998 )

Weaver, J.

This Court is presented with the question whether Michigan’s Double Jeopardy Clause, Const 1963, art 1, § 15, precludes the state from trying defendant when he was previously convicted in the federal courts¹ on charges arising from the same criminal acts. We hold that the state prosecution was not prohibited, reverse the judgment of the Court of Appeals, and reinstate defendant’s convictions.

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Defendant, a gunnery sergeant in the United States Marine Corps, was charged with violations of the Uniform Code of Military Justice on the basis of the sexual molestation of his minor daughter at various locations around the country, including Michigan. In August of 1992, defendant pleaded guilty in court-martial proceedings of rape, sodomy, and indecent liberty, for which he was sentenced to twenty-four months confinement. Two of the counts concerned events that occurred in the state of Michigan, specifically, that he raped his daughter in or near Troy, Michigan, in August 1990, and that he committed sodomy with her in or near Troy, Michigan, in August 1990.

In July of 1993, defendant was charged in state court with four counts of first-degree criminal sexual conduct. Defendant pleaded nolo contendere with respect to all four counts, reserving his right to appeal on the issue of double jeopardy. The circuit court imposed concurrent sentences of two to twenty years, to be served with defendant’s military sentence. The Court of Appeals affirmed two of the convictions, but reversed two convictions that were duplicative of the prior military convictions. 218 Mich App 431; 554 NW2d 336 (1996). We granted the prosecutor leave to appeal. 456 Mich 904 (1997).

The sole issue before us is whether the state prosecution violated the Michigan² constitutional prohibition against double jeopardy when it was based on the same criminal acts supporting the stipulations to which defendant pleaded guilty at his court martial.

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Defendant argues that the state prosecution is prohibited under People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976), which held that the Michigan Constitution “prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the state of Michigan and the jurisdiction which initially prosecuted are substantially different.” We conclude that the prosecution was permissible under Cooper, because the social interests of the state of Michigan were not satisfied by the military court. martial of defendant. Although appellant urges us to overrule Cooper and adopt the dual sovereignty rule,³ we do not consider Cooper’s continuing validity at this time because of our finding that the prosecution was permissible even under Cooper.

It is clear that both the federal and state prosecutions were based on the same criminal acts. At his military court martial defendant pleaded guilty to one specification of raping his daughter in Troy, Michigan, in August 1990 and to one specification that he committed sodomy with his daughter in Troy, Michigan, in August 1990. In her testimony at the preliminary examination in the Michigan district court, the victim said that there was only one sexual encounter with her father during his visit to Michigan in July of 1990.

Therefore, the key point is whether the state and federal interests are substantially different. Cooper, supra at 461. Among the factors listed in Cooper that are pertinent to a determination whether a federal prosecution satisfies the state’s interest are: “whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive.” Id.

In the present case, the military statute and the Michigan statute both provide a maximum penalty of life imprisonment. However, under the military statute, defendant was only sentenced to twenty-four months. In contrast, under the Michigan statute, defendant received a two- to twenty-year sentence and is subject to incarceration beyond the minimum amount of time imposed. The disparity between the two sentences is evidenced by the fact that defendant, who was sentenced on the Michigan charges in 1994, currently remains incarcerated on these charges. Additionally, the Michigan prosecution subjects defendant to registration as a sex offender and mandatoiy mv testing. In short, the Michigan penalty is more comprehensive than the military penalty.

Secondly, the military prosecution does not, in real terms, seek to vindicate the victim’s interests.⁴ Conversely, the Michigan statute ⁵ seeks, among, other goals, to recognize a profound interest in protecting children. In fashioning the criminal sexual conduct statute,⁶ the Legislature specifically intended to protect young persons from sexual contact by persons with whom they have a special relationship, such as relatives. See People v Armstrong, 212 Mich App 121, 127; 536 NW2d 789 (1995). In Michigan, the distinction between sexual conduct with any other minor and with a member of one’s family or household is clear. This case makes an excellent example. The victim was thirteen years old at the time of the offenses in question.⁷ Had the victim and defendant not been related or of the same household, defendant would have been guilty only of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4),⁸ instead of first-degree criminal sexual conduct. The increased penalty embodied in first-degree criminal sexual conduct reflects the fact that there is a special relationship between those people who are related to each other, or living in the same household, and seeks to protect that relationship. People v Garrison, 128 Mich App 640, 645-646; 341 NW2d 170 (1983). In contrast, the Uniform Code of Military Justice article does not recognize such a distinction when a defendant has sexual conduct with a minor relative or a member of the defendant’s household.

Accordingly, we hold that the social interests of the state of Michigan were not satisfied by the military court martial of the defendant. We reverse the decision of the Court of Appeals and reinstate defendant’s convictions.

Mallett, C.J., and Boyle and Taylor, JJ., concurred with Weaver, J.

1 The Court of Appeals held, and the parties do not dispute, that a military court conviction is tantamount to a conviction in federal court for double jeopardy purposes. See Grafton v United States, 206 US 333, 348; 27 S Ct 749; 51 L Ed 1084 (1907).

2 It is clear that the successive state prosecution does not violate the United States Constitution’s prohibition against double jeopardy. The United States Supreme Court has consistently held that successive state and federal prosecutions are not a violation of the Fifth Amendment. Heath v Alabama, 474 US 82; 106 S Ct 433; 88 L Ed 2d 387 (1985). It adheres to the dual sovereignty doctrine, which is founded on the common-law conception of crime as an offense against the sovereignty of government. When a defendant breaks the laws of two sovereigns in a single act, he has committed two distinct “offenses.” Accordingly, the offender has not been punished twice for the same offense, but rather he has committed two offenses by one act, for each of which he is subject to punishment. Id. at 88.

3 In People v Mezy, 453 Mich 269; 551 NW2d 389 (1996), a majority of this Court held that there was no need to address the merits of Cooper, while three justices voted to overrule Cooper.

4 The relevant articles to which defendant pleaded guilty in court-martial proceedings read as follows:

10 USC 920, Art 120. Rape and carnal knowledge

(a) Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person—

(1) who is not that person’s spouse; and

(2) who has not attained the age of sixteen years;

is guilty of carnal knowledge and shall be punished as a court-martial may direct.

(c) Penetration, however slight, is sufficient to complete either of these offenses.

(d) (1) In a prosecution under subsection (b), it is an affirmative defense that—

(A) the person with whom the accused committed the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years; and

(B) the accused reasonably believed that that person had at the time of the alleged offense attained the age of sixteen years.

(2) The accused has the burden of proving a defense under paragraph (1) by a preponderance of the evidence.

10 USC 925, Art 125. Sodomy

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

5 Michigan’s first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), to which defendant pleaded guilty, provides in relevant p*rt:

(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

(a) That other person is under 13 years of age.

(b) That other person is at least 13 but less than 16 years of age and any of the following:

(1) The actor is a member of the same household as the victim.

(ii) The actor is related to the victim by blood or affinity to the fourth degree.

(iii) The actor is in a position of authority over the victim and used this authority to coerce the victim to submit.

(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state, prison for life or for any term of years.

6 MCL 750.520a et seq.-, MSA 28.788(1) et seq.

7 The victim was bom April 3, 1977, and the offenses took place in August of 1990.

8 (1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists:

(a) That other person is at least 13 years of age and under 16 years of age.

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(2) Criminal sexual conduct in the third degree is a felony punishable by imprisonment for not more than 15 years.