Order Michigan Supreme Court 

Lansing, Michigan 

October 3, 2008 Clifford W. Taylor,

 Chief Justice 

136517 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, 

Plaintiff-Appellant, Justices 

v SC: 136517 

 COA: 277140 
 Wayne CC: 06-009624-01

JERRELL ANTHONY FOX,

Defendant-Appellee. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the May 13, 2008 

judgment 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. 

WEAVER, J., would grant leave to appeal. 

CORRIGAN, J. (dissenting). 

I would grant leave to appeal. I question the Court of Appeals determination that 

the trial court’s error in convicting defendant of the cognate lesser offense of felonious 

assault, MCL 750.82, requires vacation of his convictions and sentences. The prosecutor 

argues convincingly that defense counsel at trial acquiesced in the consideration of the 

cognate offense, thereby extinguishing the error. See People v Carter, 462 Mich 206, 

215 (2000). 

Defendant was charged with eight counts of assault with intent to commit murder, 

MCL 750.83. At defendant’s bench trial, the prosecutor conceded that the evidence did 

not show an intent to commit murder and asked the court to consider the lesser offenses 

of assault with intent to do great bodily harm, MCL 750.84, and felonious assault. 

Defense counsel argued that the evidence did not show an intent to commit murder or to 

do great bodily harm and then stated, “I don’t really want to concede on the lesser of 

Felonious Assault. However, I think certainly there was no intent to do any great bodily 

harm to anyone by Mr. Fox.” Defense counsel then concluded, “I think that this is not a 
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case of Assault With Intent to do—to Commit Murder or to do Great Bodily Harm. I 

would ask the court to find the appropriate sentence—appropriate verdict.” 

The trial court found defendant guilty of three counts of felonious assault. The 

Court of Appeals vacated the convictions on the ground that felonious assault is a cognate 

lesser offense of assault with intent to commit murder. See People v Cornell, 466 Mich 

335, 357 (2002) (holding that MCL 768.32(1) does not permit consideration of cognate 

lesser offenses), and People v Otterbridge, 477 Mich 875 (2006) (holding that felonious 

assault is a cognate lesser offense of assault with intent to commit murder). 

Nevertheless, I agree with the prosecutor that defense counsel’s comments reflect 

his acquiescence in the consideration of felonious assault. Counsel’s assertion that he did 

not “really want to concede on the lesser of Felonious Assault” was a declination to 

concede defendant’s guilt of that offense. Counsel left open the possibility that the court 

could consider a felonious assault conviction by stating, “I think that this is not a case of 

Assault with Intent to do—to Commit Murder or to do Great Bodily Harm. I would ask 

the court to find the appropriate sentence—appropriate verdict.” By acquiescing in the 

consideration of felonious assault, defendant waived this issue, thereby extinguishing the 

error. See Carter, supra (explaining that waiver is the intentional relinquishment or 

abandonment of a known right, and that it extinguishes any error). 

Even if the error was not waived, defendant failed to object to the consideration of 

felonious assault. In light of this forfeiture, defendant must establish a plain error that 

affected the outcome of the lower court proceedings. He must show that he is actually 

innocent or that the error seriously affected the fairness, integrity, or public reputation of 

the proceedings. People v Carines, 460 Mich 750, 763-764 (1999). Defendant has not 

met these requirements. “Neither defendant nor the majority has offered any explanation 

regarding how the defense at trial would have been any different if he had been formally 

charged with felonious assault.” Otterbridge, supra at 876 (Corrigan, J., dissenting). 

For these reasons, I would grant leave to appeal to consider more fully the 

prosecutor’s arguments in this case. 

l0930 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

October 3, 2008 

Clerk