_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Clifford W. Taylor 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 20, 2004 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellant, 

v No. 123992 

DENNIS L. NICKENS, 

Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

Defendant was charged with criminal sexual conduct in 

the first degree (CSC-I) involving personal injury and the 

use of force or coercion to accomplish sexual penetration, 

MCL 750.520b(1)(f). Over defendant’s objections, the trial 

court additionally instructed the jury on assault with 

intent to commit CSC involving sexual penetration, MCL 

750.520g(1). The jury acquitted defendant of the CSC-I 

charge, but found him guilty of assault with intent to 

commit CSC. 

We granted leave to appeal to consider whether assault 

with intent to commit CSC involving sexual penetration, MCL 
 

750.520g(1), is included within the offense of first-degree 

CSC involving personal injury and the use of force or 

coercion to accomplish sexual penetration, MCL 

750.520b(1)(f).1 The Court of Appeals held that because MCL 

750.520g(1) was not a necessarily lesser included offense 

of MCL 750.520b(1)(f), the trial court erred by instructing 

the jury on the assault offense.2 We hold that the trial 

court did not err in its instruction to the jury because 

the assault offense is a necessarily lesser included 

offense of first-degree CSC involving personal injury and 

the use of force or coercion to accomplish sexual 

penetration. Therefore, we reverse the decision of the 

Court of Appeals and reinstate defendant’s assault 

conviction. 

I. FACTS AND PROCEEDINGS 

We adopt as our own the following facts set forth by 

the Court of Appeals: 

Defendant’s conviction arises from 

allegations that he sexually assaulted his former

girlfriend. The complainant and defendant dated

intermittently for several years and had two 

children. At some point, the complainant began

dating another man named Frank. According to the

complainant, defendant did not accept this new

relationship. When the complainant ultimately 

1

 469 Mich 949 (2003). 

2

 Unpublished opinion per curiam, issued April 24, 2003

(Docket No. 237794). 

2
 
ended her relationship with Frank in August 2000,

she discussed the possibility of reconciling with

defendant. 

On September 9, 2000, at approximately 4:30

a.m., the complainant claimed that Frank 

unexpectedly came to her home and stayed for half

an hour. According to the complainant, defendant

called during this time and “exchanged some 

words” with Frank over the telephone. Later that 

day, the complainant stated that defendant 

visited her house. The complainant

testified . . . that defendant straddled her,

tore her clothes, and pulled down her pants.

Throughout the assault, the complainant asserted

that defendant accused her of being intimate with

Frank, called her derogatory names, and punched

her repeatedly in the head. 

The complainant indicated that defendant 

subsequently dragged her into her bedroom, pushed

her over a chair, and punched her in the stomach.

Defendant then told her to stand up, pushed her

backwards, and said, “[s]uck my [penis], bit--.”

The complainant claimed that when she attempted

to stand up, defendant punched her in the stomach

again and caused her to regurgitate. Defendant 

ultimately pulled her head up, placed his penis

on the side of her mouth, and ejaculated “all

over” her. As a result of defendant’s actions,

the complainant stated that she suffered a blood

clot in her stomach, bruising on her chest and

left eye, and a swollen left cheek. On September

14th, the complainant reported the sexual assault

to the police. She later obtained a personal

protective order against defendant. 

Defendant was charged with CSC-I under MCL 

750.520b(1)(f). A jury trial was held and, over 

defendant’s objections, the trial court additionally 

instructed the jury on assault with intent to commit CSC 

3
 
 

involving sexual penetration, MCL 750.520g(1).3 The jury 

acquitted defendant of the CSC-I charge, but found him 

guilty of assault with intent to commit CSC. On appeal, 

the Court of Appeals held, inter alia, that under this 

Court’s decision in People v Cornell, 466 Mich 335, 357; 

646 NW2d 127 (2002), the trial court erred by instructing 

the jury on the lesser offense because MCL 750.520g(1) is 

not a necessarily lesser included offense of MCL 

750.520b(1)(f). We granted the prosecution’s application 

for leave to appeal. 

II. STANDARD OF REVIEW 

Whether assault with intent to commit CSC involving 

sexual penetration is included within the offense of CSC-I 

involving personal injury and the use of force or coercion 

to accomplish sexual penetration is a question of law, 

which this Court reviews de novo. People v Mendoza, 468 

Mich 527, 531; 664 NW2d 685 (2003). 

3

 The trial court also instructed the jury on the

offense of aggravated assault, MCL 750.81a(1). However,

the jury did not find defendant guilty of this offense and,

thus, we express no opinion on the validity of the trial

court’s instruction on this offense. 

4
 
 

 

III. ANALYSIS 

A. Cornell and MCL 768.32 

In Cornell, supra at 357, this Court held that, under 

MCL 768.32,4 a lesser offense instruction is appropriate 

only if the lesser offense is necessarily included in the 

greater offense. “Necessarily included lesser offenses are 

offenses in which the elements of the lesser offense are 

completely subsumed in the greater offense.” Mendoza, 

supra at 532 n 3. Thus, an instruction on a lesser offense 

is proper where “all the elements of the lesser offense are 

included in the greater offense, and a rational view of the 

evidence would support such an instruction.” Id. at 533.5 

Further, in Cornell this Court expressly stated that 

the decision in that case would apply “to those cases 

pending on appeal in which the issue has been raised and 

4

 MCL 768.32(1) provides in pertinent part: 

[U]pon an indictment for an offense,

consisting of different degrees, as prescribed in

this chapter, the jury, or the judge in a trial

without a 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. 

5

 I remain committed to my position in People v 

Mendoza, 468 Mich 527, 548-556 (CAVANAGH, J., concurring).

Nonetheless, this Court’s decisions in Cornell and Mendoza 

are the current law in the state of Michigan. 

5
 
 

preserved.” Cornell, supra at 367. Here, defense counsel 

objected to the trial court giving the lesser offense 

instructions. Moreover, neither the prosecution nor 

defendant asserts that the issue is unpreserved. Because 

defendant’s case was pending on appeal and the alleged 

error was raised and preserved for review, our decision, by 

the express directive in Cornell, applies to this case. 

Thus, the instruction on assault with intent to commit CSC 

involving sexual penetration was appropriate if such an 

offense is a necessarily lesser included offense of CSC-I 

involving personal injury and the use of force or coercion 

to accomplish sexual penetration. 

B. The Elements of Assault with Intent to Commit CSC 

Involving Sexual Penetration 

MCL 750.520g(1) states, “Assault with intent to commit 

criminal sexual conduct involving sexual penetration shall 

be a felony punishable by imprisonment for not more than 10 

years.” This Court has not had occasion to formally 

delineate the elements of this particular offense. Relying 

on its own case law, however, the Court of Appeals 

concluded that the elements of assault with intent to 

commit CSC involving sexual penetration are as follows: 

“(1) an assault; (2) with an improper sexual purpose or 

intent; (3) an intent to commit an act involving 

penetration; and (4) an aggravating circumstance.” Slip op 

6
 
at 2 n 2. Because we believe that the Court of Appeals 

misinterprets MCL 750.520g(1), we reject its definition of 

that offense. 

We hold that the elements of assault with intent to 

commit CSC involving penetration are simply (1) an assault, 

and (2) an intent to commit CSC involving sexual 

penetration. Nothing in MCL 750.520g(1) requires the 

existence of an aggravating circumstance or that the 

assault is made with an improper sexual purpose or intent. 

Further, “[w]hen a statute sets forth a crime and its 

punishment without designating its elements, courts must 

look to the common law for guidance.” People v Langworthy, 

416 Mich 630, 643 n 22; 331 NW2d 171 (1982). 

An assault “’is made out from either an attempt to 

commit a battery or an unlawful act which places another in 

reasonable apprehension of receiving an immediate 

battery.’” People v Johnson, 407 Mich 196, 210; 284 NW2d 

718 (1979), quoting People v Sanford, 402 Mich 460, 479; 

265 NW2d 1 (1978). The first type is referred to as an 

“attempted-battery assault,” whereas the second is referred 

to as an “apprehension-type assault.” People v Reeves, 458 

Mich 236, 244; 580 NW2d 433 (1998). As such, an assault 

can occur in one of two ways. 

7
 
Moreover, a “battery is an intentional, unconsented 

and harmful or offensive touching of the person of another, 

or of something closely connected with the person.” Id. at 

240 n 4. Therefore, a battery is the successful 

accomplishment of an attempted-battery assault. See 

Perkins & Boyce, Criminal Law (3d ed, 1982), p 151 

(“[W]hen we speak of an assault we usually have in mind a 

battery which was attempted or threatened. The attempt may 

have failed or it may have succeeded. If it failed it 

constitutes an assault only. If it succeeded it is an 

assault and battery.”); see also MCL 750.81. Stated 

differently, an attempted-battery assault is a necessarily 

lesser included offense of a completed battery because it 

is impossible to commit a battery without first committing 

an attempted-battery assault. 

C. The Elements of First-Degree CSC Involving Personal

Injury and the Use of Force or Coercion to Accomplish

Sexual Penetration 

MCL 750.520b provides in pertinent part: 

(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: 

* * * 

(f) The actor causes personal injury to the

victim and force or coercion is used to 

accomplish penetration. Force or coercion 

includes but is not limited to any of the 

following circumstances: 

8
 
(i) When the actor overcomes the victim 

through the actual application of physical force

or physical violence. 

(ii) When the actor coerces the victim to 

submit by threatening to use force or violence on

the victim, and the victim believes that the

actor has the present ability to execute these 

threats. 

(iii) When the actor coerces the victim to 

submit by threatening to retaliate in the future

against the victim, or any other person, and the

victim believes that the actor has the ability to

execute this threat. As used in this 

subdivision, “to retaliate” includes threats of

physical punishment, kidnapping, or extortion. 

(iv) When the actor engages in the medical

treatment or examination of the victim in a 

manner or for purposes which are medically

recognized as unethical or unacceptable. 

(v) When the actor, through concealment or

by the element of surprise, is able to overcome

the victim. 

Thus, an actor may be found guilty under MCL 

750.520b(1)(f) if the actor (1) causes personal injury to 

the victim, (2) engages in sexual penetration with the 

victim, and (3) uses force or coercion to accomplish the 

sexual penetration. 

D. “Assault With Intent to Commit CSC Involving Sexual

Penetration” is a Necessarily Lesser Included Offense of

CSC-I Involving Personal Injury and the Use of Force or

Coercion to Accomplish Sexual Penetration 

The issue for this Court to resolve is whether CSC-I, 

under MCL 750.520b(1)(f), always includes an “assault with 

intent to commit CSC involving sexual penetration,” MCL 

9
 
750.520g(1). In other words, are all the elements of MCL 

750.520g(1) subsumed into MCL 750.520b(1)(f) such that one 

cannot commit CSC-I involving personal injury and the use 

of force or coercion to accomplish sexual penetration 

without first committing an assault with intent to commit 

CSC involving sexual penetration? We hold that the 

elements are subsumed and, therefore, MCL 750.520g(1) is a 

necessarily lesser included offense of MCL 750.520b(1)(f). 

In every instance where an actor commits CSC-I 

involving personal injury and uses force or coercion to 

accomplish sexual penetration, the actor first commits an 

attempted-battery assault with the intent to commit CSC 

involving sexual penetration. The term “force or 

coercion,” as contained in MCL 750.520b(1)(f), necessarily 

contemplates a situation in which an assault has occurred. 

If, for example, the actor uses physical force to 

accomplish sexual penetration, a nonconsensual and harmful 

touching has occurred. Because a battery includes an 

attempted-battery assault, an assault has also occurred. 

Likewise, if the actor overcomes the victim by 

coercion, a nonconsensual and harmful touching has 

occurred. “The application of force to the person of 

another is not unlawful,—and, therefore, not a battery—if 

the recipient consents to what is done, provided this 

10
 
 

consent (1) is not coerced or obtained by fraud, (2) is 

given by one legally capable of consenting to such a deed, 

and (3) does not relate to a matter as to which consent 

will not be recognized as a matter of law.” Perkins & 

Boyce, Criminal Law (3d ed, 1982), p 154 (emphasis added). 

As such, the criminal law views coerced consent as no 

consent at all.6 Thus, if the victim is coerced into 

agreeing to sexual penetration, the victim cannot be said 

to have lawfully consented and, thus, a battery has 

occurred. Because a battery includes an attempted-battery 

assault, an assault has also occurred. 

In sum, nonconsensual sexual penetration with another 

is, in and of itself, an attempted-battery assault and a 

battery. As such, the first prong of MCL 750.520g(1), an 

assault, is always satisfied when the actor commits CSC-I 

under MCL 750.520b(1)(f). Moreover, we also believe that 

the second prong of MCL 750.520g(1), an intent to commit 

CSC involving sexual penetration, is always satisfied when 

the actor commits CSC-I under MCL 750.520b(1)(f). 

6

 “Submission under fear is not ‘consent’ as the word 

is used in the law. If a man said, ‘I consent to be

slapped,’ at the point of a pistol and in fear of instant

death if he did not say so, this would be no real consent

to the slapping and the blow would constitute a battery.”

Id. at 155 

11
 
 

 

 

We can envision no circumstance in which an actor 

could unintentionally or accidentally use force or coercion 

to sexually penetrate his victim and, therefore, lacked the 

necessary mens rea under MCL 750.520g(1) or MCL 

750.520b(1)(f). We acknowledge that CSC-I is a general 

intent crime. Langworthy, supra at 645. We are further 

cognizant that assault with intent to commit CSC involving 

sexual penetration may be viewed as a specific intent 

crime. Under these circumstances, however, this is a 

distinction without a difference.7 

7

 This Court has recently noted that “the enactment of

MCL 768.37, which abolished the defense of voluntary

intoxication except in one narrow circumstance, has 

significantly diminished the need to categorize crimes as

being either ‘specific’ or ‘general’ intent crimes.” 

People v Maynor, 470 Mich __, __; __ NW2d __ (2004)

(opinion by Taylor, J.). 

Additionally, we find this Court’s reasoning in 

Langworthy persuasive in this particular case. Although

the issue in Langworthy was whether CSC-I was a general or

specific intent crime, this Court made the following

observations: 

[W]e reject defendant’s argument that if an

applicable lesser included offense of a criminal

sexual conduct offense requires specific intent,

it necessarily follows that the greater offense

also requires proof of specific intent. . . .

We concur with the United States Court of 

Appeals, writing in United States v Thornton, 162

US App DC 207, 210-211; 498 F2d 749 (1974): 

“Actually, as has been stated, ‘[A]ll

attempts require specific intent’; so if it were

to follow appellant’s logic of superimposing the

(continued...) 

12
 
 

E. Application 

The trial court properly instructed the jury on the 

lesser offense of assault with intent to commit CSC 

involving sexual penetration. An instruction on a lesser 

offense is proper where “all the elements of the lesser 

offense are included in the greater offense, and a rational 

view of the evidence would support such an instruction.” 

Mendoza, supra at 533. First, MCL 750.520g(1) is a 

necessarily lesser included offense of MCL 750.520b(1)(f). 

Additionally, a rational view of the evidence indicates 

that there was sufficient support for the instruction on 

MCL 750.520g(1). The testimony of the complainant 

presented at trial indicates that defendant tore off the 

(...continued)

specific intent of an included crime upon the

greater offense, a specific intent would be 

required for practically every crime. This could 

not be the law. The differing requirements for

lesser offenses result principally from the 

differing nature of the crimes and from their

historical and legislative definitions. The 

requirement of a specific intent for lesser 

crimes exists because of a desire to protect the

individual against conviction on slight evidence.

The same protection is unnecessary where 

substantial overt acts are committed and fully

consummated offenses are provable. There is no 

rule of law that crimes which carry greater

punishment require the proof of greater, or even 

the same, criminal intent as included or related 

crimes which carry lesser punishment. . . .” 

[Langworthy, supra at 644-645 (emphasis added).] 

13
 
 

 

complainant’s clothes; repeatedly beat her; stated, “[s]uck 

my [penis], bit--;” placed his penis on the side of the 

complainant’s mouth; and ejaculated on the complainant.8 

Under these circumstances, the trial court did not err by 

instructing the jury on assault with intent to commit CSC 

involving sexual penetration. 

IV. CONCLUSION 

We conclude that assault with intent to commit CSC 

involving sexual penetration, MCL 750.520g(1), is a 

necessarily lesser included offense of CSC-I involving 

personal injury and the use of force or coercion to 

accomplish sexual penetration, MCL 750.520b(1)(f). 

Accordingly, we reverse the decision of the Court of 

Appeals and reinstate defendant’s assault conviction. 

Michael F. Cavanagh

Maura D. Corrigan

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman 

8

 Because MCL 750.520g(1) is a necessarily lesser

included offense of MCL 750.520b(1)(f)—i.e., it is 

impossible to commit the latter without first committing 

the former—and the facts alleged supported the lesser 

instruction, defendant was on notice of the included 

offense and was not prejudiced by the instruction. See, 

e.g., People v Adams, 389 Mich 222, 242-244; 205 NW2d 415

(1973); see also Schmuck v United States, 489 US 705, 717-

719; 109 S Ct 1443; 103 L Ed 2d 734 (1989). 

14