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No. 122021
| People of the State of Michigan, |
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Larry L. Roberts (313) 224-7011 |
Plaintiff-Appellee, |
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| vs (Appeal from Court of Appeals) |
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(Wayne - Hathaway, D.) |
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| Benjamin A. Phillips, |
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Susan M. Meinberg (313) 256-9833 |
Defendant-Appellant. |
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| ______________________________________ |
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Background
Benjamin A. Phillips was charged with two counts of first-degree criminal sexual conduct. The complainant claimed that Phillips first sexually assaulted her and then choked her. During trial, evidence was presented to show that the complainant was not truthful. After the parties had presented their evidence, the prosecutor asked the judge to consider finding Phillips guilty of assault with intent to do great bodily harm less than murder. In making her ruling, the circuit judge stated that she did not believe that "the defendant engaged in any kind of sexual penetration." The judge went on to find that Phillips had a fight with the complainant and tried to strangle her. As a result, the judge concluded, Phillips was guilty of assault with intent to do great bodily harm less than murder. The Court of Appeals affirmed the conviction. Phillips appeals. He argues that his defense was designed only to address the criminal sexual conduct charge. Phillips contends that, by allowing the prosecutor to amend the charge after the evidence was presented, the court deprived Phillips of due process of law.
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