PEOPLE v. DELAPAZ

Docket No. 154064. COA No. 332447.

886 N.W.2d 720 (2016)

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Daryl DELAPAZ, Defendant-Appellee.

Supreme Court of Michigan.


Order

On order of the Court, the application for leave to appeal the June 6, 2016 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

YOUNG, C.J. (dissenting).

I respectfully dissent from the order denying leave to appeal. I would grant leave to appeal because I believe that this Court's peremptory order in People v. Johnson was poorly reasoned and inconsistent with the text of MCL 750.520a(r), the statute defining sexual penetration.1 Johnson is erroneous and should be overruled.

The prosecution in this case sought to amend the information to charge defendant with one count of first-degree criminal sexual conduct pursuant to MCL 750.520b(1)(c). The defendant had pushed a 14-year-old girl's head down onto his penis, forcing the victim's mouth to make contact with defendant's penis. The trial court denied the prosecution's motion, concluding it was bound by this Court's order in Johnson to hold that under the circumstances there was no "sexual penetration" as required by MCL 750.520b(1)(c).

MCL 750.520a(r) defines "sexual penetration" to include "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body...." The statute unambiguously defines "fellatio" as a type of "sexual penetration." The term "fellatio" means "oral stimulation of the penis."2 "The clear definition of the word `fellatio' encompasses any penile stimulation accomplished using the mouth."3 Kissing, as allegedly occurred in this case, in Conway,4 and in Johnson,5 therefore fits within the statutory definition of fellatio.

However, under Johnson, proof of "fellatio" constituting "sexual penetration" under MCL 750.520b requires proof of "intrusion."6 This additional "intrusion" requirement is incompatible with the statutory language, as explained above, and places inconsistent constructions on the expressly listed parallel crimes of "fellatio" and "cunnilingus."7 Instead, in this case, the relevant inquiry to determine whether the prosecution has demonstrated "sexual penetration" under MCL 750.520b(1)(c) is not whether there has been "intrusion," but whether there was "fellatio."

I continue to believe that Johnson is wrong and should be overruled. At the very least, this issue should be given this Court's full attention and resolved by a reasoned opinion, rather than a peremptory order.8 I would grant leave to appeal.

FootNotes


1. People v. Johnson, 432 Mich. 931, 442 N.W.2d 625 (1989). See People v. Conway, 469 Mich. 857, 857, 666 N.W.2d 185 (2003) (YOUNG, J., dissenting) (explaining why Johnson should be overruled).
2. Merriam-Webster's Collegiate Dictionary (11th ed). See also Conway, 469 Mich. at 857, 666 N.W.2d 185 (YOUNG, J., dissenting) ("The term fellatio is defined as `oral stimulation of the penis'"), quoting Random House Webster's College Dictionary (2001).
3. Conway, 469 Mich. at 857, 666 N.W.2d 185 (YOUNG, J., dissenting).
4. Id.
5. People v. Johnson, 164 Mich.App. 634, 647, 418 N.W.2d 117 (1987) (KELLY, J., dissenting).
6. See Johnson, 432 Mich. at 931, 442 N.W.2d 625; Johnson, 164 Mich.App. at 647-648, 418 N.W.2d 117 (KELLY, J., dissenting).
7. MCL 750.520a(r). See also Conway, 469 Mich. at 857-858, 666 N.W.2d 185 (YOUNG, J., dissenting) ("I believe that the Legislature clearly defined fellatio as a type of intrusion that establishes sexual penetration. This is certainly consistent with this Court's approach to oral contact with female genitalia, where we have stated that penetration into the vagina is not necessary to establish CSCI.").
8. Compare Johnson, 432 Mich. at 931, 442 N.W.2d 625.

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