STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 2, 2004
v No. 247310
Otsego Circuit Court
ADAM JOSEPH FINNERTY,
LC No. 02-002769-FC
Before: Whitbeck, C.J., and Owens and Schuette, JJ.
Defendant Adam Joseph Finnerty was charged with one count of first-degree criminal
sexual conduct for allegedly engaging in digital penetration with a twelve-year-old girl.
Finnerty?s attorney requested that the jury be instructed on second-degree criminal sexual
conduct (CSC II),1 despite the fact that Finnerty was only indicted on CSC I. The jury found him
not guilty of CSC I, but convicted him of CSC II. He appeals of right. We affirm.
II. Basic Facts And Procedural History
Finnerty lived in a duplex with Ken and Monica Gentz and their three children. In March
2002, the complainant, Ken Gentz?s twelve-year-old sister, spent the night at their house.
Monica Gentz told the complainant she could sleep in a bunk bed in Finnerty?s bedroom.
According to the complainant, after falling asleep fully clothed on the top bunk, she awoke to
find Finnerty?s finger in her vagina. The Michigan State Police twice interviewed Finnerty about
this incident. During the second interview, Finnerty admitted that he put his hand down the
complainant?s pants and touched the outside of her vagina, but he denied that penetration
The prosecutor filed a felony complaint in April 2002, alleging that Finnerty had
committed CSC I by engaging in digital penetration with the complainant, a person under 13
years of age. However, at the preliminary examination on July 25, 2002, the prosecutor told the
1 MCL 750.520c(1)(a) (person under 13 years of age).
district court that the ?[d]efendant is charged with criminal sexual conduct in the first degree;
and Count II is criminal sexual conduct in the second degree. The sole testimony here today
establishes the digital penetration by the Defendant of ? of the victim. . . . The People have
demonstrated some evidence on each element of the offense and move for bindover as charged.?
The district court found that there was probable cause to bind Finnerty over for trial. On July 26,
2002, the district court issued a bindover document that did not list the offense or offenses with
which Finnerty was to be tried, stating only that Finnerty was bound over to circuit court ?on the
charge(s) in the complaint.? On August 5, 2002, the prosecutor filed an information that
included one count of CSC I and one count of CSC II, and Finnerty was arraigned before the
The trial began on January 21, 2003. Before opening statements, both the prosecutor and
the trial court informed the jury that the case involved a charge of CSC I. During his opening
statement, the prosecutor told the jury, ?at the end of this case, you may hear about what?s called
a less serious offense, a lesser crime that?s similar to [CSC I]. But the defendant is charged with
this crime, this more serious crime. The question at the end of this case may be which of those
two, the more serious or the lesser serious crime, he committed.?
At trial, Finnerty testified that that he when he discovered the complainant in his bed, he
told her that she could not sleep there, but when she did not get out of the bed, he climbed into
the top bunk next to her to sleep. Finnerty asserted that he fell asleep immediately and denied
touching the complainant in any way. With respect to his admission during the second police
interview, Finnerty claimed that he felt intimidated and that he agreed with whatever the officer
said in order to end the interview.
The jury was given a verdict form with three choices: ?Not guilty,? ?Guilty of Criminal
Sexual Conduct ? First Degree,? and ?Guilty of the lesser offense of Criminal Sexual Conduct ?
Second Degree.? The jury found Finnerty guilty of CSC II, and the trial court sentenced
Finnerty to twelve months in jail and sixty months probation. The trial court granted the
prosecutor?s motion for nolle prosequi and dismissed ?Count I,? CSC I, because the jury
convicted Finnerty of ?Count II,? CSC II.
On June 20, 2003, Finnerty moved for a Ginther2 hearing and for a judgment of acquittal
or a new trial. Finnerty argued that because of the Supreme Court?s ruling in People v Cornell,3
the jury instructions on CSC II were improper because it is a cognate lesser offense of CSC I,
and Cornell held that the jury could only be instructed on necessarily included lesser offenses. It
is clear from the record that the prosecutor, defense counsel, and the trial court were unaware of
the Cornell decision.
At the hearing, the parties stipulated that defense counsel was not aware of the change in
the law and that counsel?s failure to object was not a matter of trial strategy. The prosecutor
asserted that if he had been aware of the Cornell decision at the time, he would have moved to
2 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3 People v Cornell, 466 Mich 335; 646 NW2d 127 (2002).
amend the complaint to add CSC II as an alternative charge to CSC I. The prosecutor argued
that the error was therefore harmless because the CSC II instruction would have reached the jury
in any event.
The trial court agreed with the prosecutor?s argument and further found that the error was
harmless because the evidence would have supported a CSC II charge and Finnerty had notice
that the prosecutor intended to argue CSC II in the alternative. Accordingly, the trial court
denied Finnerty?s motion.
III. Jury Instructions
A. Standard Of Review
We review claims of instructional error de novo.4
B. Instruction On Cognate Lesser-Included Offense
Finnerty argues that reversal is required because the trial court erred by instructing the
jury on a cognate lesser included offense that resulted in his conviction. We agree that
instructing the jury on CSC II was erroneous.5
Under MCL 768.32, when a defendant has been indicted for an offense that consists of
different degrees, the jury ?may find the accused not guilty of the offense in the degree charged
in the indictment and may find the accused person guilty of a degree of that offense inferior to
that charged in the indictment, or of an attempt to commit that offense.?6 In Cornell, the Court
concluded that the term ?inferior? offense in MCL 768.32 applied only to necessarily included
lesser offenses ? that is, ?offenses in which the elements of the lesser offense are completely
4 People v Hubbard (After Remand), 217 Mich App 459, 487; 552 NW2d 493 (1996).
5 Before we could begin our analysis, we faced the unexpectedly daunting task of determining
for what offense Finnerty was actually tried. The prosecutor indicated at the preliminary
examination that he was pursuing two separate counts, CSC I and CSC II, and while the district
court agreed that there was probable cause to bind Finnerty over for trial, the bindover document
stated only that Finnerty was bound over to circuit court ?on the charge(s) in the complaint,?
which listed only CSC I. On the same day as the arraignment, the prosecutor filed an
information that included one count of CSC I and one count of CSC II. At trial, however, the
prosecutor told the jury that the case involved a charge of CSC I, and they would be considering
CSC II only as a lesser offense, which the jury verdict form confirmed. Because charging
decisions are generally left to the prosecutor?s discretion, we conclude from this porridge of
conflicting documentation that Finnerty was actually tried on a single count of CSC I, although
the prosecutor?s post-trial motion for nolle prosequi of ?Count I? based on Finnerty?s conviction
on ?Count II? gives us pause. We hope this example will serve as a reminder to the bench and
bar of the importance of making a clear record, without which accurate appellate review
becomes challenging, if not impossible.
6 MCL 768.32 (emphasis added).
subsumed in the greater offense?7 – and not to cognate offenses, which ?share several elements,
and are of the same class or category as the greater offense,? but have ?some elements not found
in the greater offense.?8 Therefore, the Court held that the jury may only be instructed on an
inferior offense if the lesser offense is necessarily included in the greater offense and a rational
view of the evidence supported the instruction.9
Here, Finnerty was only indicted on CSC I, but the jury was instructed on, and convicted
him of, CSC II. CSC II is not a necessarily included lesser offense of CSC I because CSC II
requires proof of an intent to seek sexual arousal or gratification, and CSC I does not require this
element.10 Accordingly, CSC II is a cognate lesser offense of CSC I, not a necessarily included
lesser offense,11 and allowing the jury to consider CSC II was therefore erroneous.12
However, we decline to reverse on this ground because Finnerty not only failed to object
to the jury instruction on CSC II, he affirmatively requested it. An invited error occurs ?when a
party?s own affirmative conduct directly causes the error? of which that party later complains.13
When a party invites an error at trial, the right to appeal based on that error is waived and the
error is extinguished.14
IV. Ineffective Assistance Of Counsel
A. Standard Of Review
Whether a defendant was denied effective assistance of counsel presents a mixed
question of fact and constitutional law.15 This determination requires a judge first to find the
facts, then determine ?whether those facts constitute a violation of the defendant?s constitutional
7 Cornell, supra at 356.
8 Id. at 344.
9 See id. at 357. See also People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002).
10 People v Lemons, 454 Mich 234, 253; 562 NW2d 447 (1997).
11 Id. at 253-254.
12 See MCL 768.32; Cornell, supra at 357. We are unconvinced, to say the least, by the
prosecutor?s assertion that Cornell is inapplicable here because MCL 768.32 does not apply to
offenses that are formally divided into degrees. The statute expressly applies to situations in
which an accused is indicted for an offense ?consisting of different degrees.?
13 See People v Jones, 468 Mich 345, 353; 662 NW2d 376 (2003), citing People v Carter, 462
Mich 206; 612 NW2d 144 (2000).
15 People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).
right to effective assistance of counsel.?16 We review the trial court?s factual findings for clear
error and review de novo its constitutional determination.17
B. Legal Standards
To establish ineffective assistance of counsel, a defendant must show that counsel?s
performance was below an objective standard of reasonableness under prevailing professional
norms, and that, but for counsel?s error, it is reasonably probable that the outcome would have
been different.18 Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise.19 To show an objectively unreasonable performance, the defendant
must prove that counsel made ?errors so serious that counsel was not functioning as the ?counsel?
guaranteed the defendant by the Sixth Amendment.?20 In so doing, the defendant must overcome
a strong presumption that the challenged conduct might be considered sound trial strategy.21 The
defendant must also show that the proceedings were ?fundamentally unfair or unreliable.?22
C. Request For Instruction On Cognate Offense
Finnerty argues that he was denied effective assistance of counsel when defense counsel
?failed to object to? the instruction on CSC II. In fact, as noted, defense counsel requested the
instruction. At the Ginther hearing, defense counsel stipulated that ?it wasn?t part of his trial
strategy to request or to allow an instruction on the lesser offenses had he known that he could
have foreclosed them and left it ? the prosecutor?s case to rise or fall on the CSC I charge . . . .?
Thus, it is more consonant with the facts of this case to premise the ineffective assistance claim
on counsel?s ignorance of Cornell.
The trial in this case took place in January 2003. Cornell had been decided seven months
earlier, in June 2002. Further, Cornell?s holding that MCL 768.32(1) did not permit instructions
on cognate offenses was reiterated in People v Reese in July 2002.23 We conclude that defense
counsel?s ignorance of Cornell and its progeny was objectively unreasonable.24
16 Id. at 579.
18 Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
19 People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
20 LeBlanc, supra at 578, quoting Strickland, supra at 687.
21 People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227 (2001).
22 People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2002).
23 See Reese, supra.
24 See Strickland, supra at 687; Pickens, supra at 302-303.
However, Finnerty must also establish that, but for counsel?s error, it is reasonably
probable that the outcome would have been different.25 In this case, the prosecutor testified that
if defense counsel had objected to the CSC II instruction on the basis of Cornell, he would have
moved to amend the complaint to include CSC II as an alternative count, and the trial court
stated on the record that it would have granted the motion.
Finnerty acknowledges that a trial court has the authority to amend the information to add
a new charge as long as it does not result in unfair surprise or prejudice to the defendant.26
Finnerty also acknowledges that the prosecutor could have listed alternative theories for
conviction of a single offense.27 However, Finnerty maintains that because there was evidence
of only one sexual act, that act could not give rise to more than one criminal charge for purposes
of trial, conviction, and sentencing.
While we agree that a defendant may not be convicted of more than one count arising
from a single criminal act, the prosecutor may charge the defendant with more than one count in
the alternative, if the facts support it. It is well established that ?the decision whether to bring a
charge and what charge to bring lies in the discretion of the prosecutor,?28 and a prosecutor has
discretion to ?charge in a single information all offenses which do arise out of a single criminal
transaction or occurrence.?29 This discretion includes the choice to bring alternative charges,
listed in separate counts, based on the same criminal conduct.30
The sole case on which Finnerty relies for the contrary proposition is People v Johnson,31
which he quotes as stating that if there is evidence of only one sexual act, that act ?may only give
rise to one criminal charge for purposes of trial, conviction, and sentencing.?32 However, the
quoted phrase has been taken out of context. In Johnson, the Court held that a defendant may
not be convicted of more than one count of CSC I on the ground that a single penetration met
several of the statutory circumstances by which that crime could be committed. Contrary to the
assertion in Finnerty?s brief, the quoted phrase does not apply to all situations ?where there is
evidence of only one sexual act,? but rather to situations where ?a sexual penetration happens to
be accompanied by more than one of the aggravating circumstances enumerated in the statute.?33
Here, the prosecutor was not seeking to predicate more than one conviction on a single
25 See id.
26 See MCR 6.112(H); People v McGee, 258 Mich App 683, 689-693; 672 NW2d 191 (2003).
27 See MCL 767.55; People v Goold, 241 Mich App 333, 342-343; 615 NW2d 794 (2000).
28 People v Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998).
29 Goold, supra at 342-343.
30 See, e.g., McGee, supra at 685-695 (prosecutor could amend the information to include an
alternative count of perjury based on same conduct that supported the initial count of making
false felony report).
31 People v Johnson, 406 Mich 320, 331; 279 NW2d 534 (1979).
32 Id. at 331.
penetration based on the existence of more than one aggravating circumstance, and the holding
in Johnson is inapplicable.
In his brief on appeal, Finnerty poses the question: ?If the jury cannot consider a cognate
lesser offense, then how could it consider that same offense as an ?alternative? to the principal
charge?? The answer is that the prohibition against considering cognate lesser offenses derives
from the Cornell court?s interpretation of MCL 768.32, which establishes the circumstances
under which a jury may convict a defendant of an uncharged offense. Once an offense has been
formally charged as a separate count, the jury does not need the authority of MCL 768.32 to
convict the defendant of that charge, and the rule in Cornell is inapplicable. Therefore, we reject
Finnerty?s implication that the difference between convicting a defendant of a separately charged
offense rather than of an uncharged cognate offense is a question of form, not substance.
In sum, we conclude that Finnerty failed to show a reasonable probability that, but for
counsel?s error, the outcome would have been different. The prosecutor testified that, had
defense counsel brought the rule in Cornell to his attention, he would have moved to amend the
complaint to include CSC II as an alternative count, and the trial court stated it would have
granted the motion. We see no legal reason that the amendment would have been improper, and
there is no reason to think that the jury would have reached a different verdict had it considered
CSC II as an alternative count rather than a cognate lesser offense. Therefore, reversal for
ineffective assistance is not warranted.
/s/ William C. Whitbeck
/s/ Donald S. Owens
/s/ Bill Schuette