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159384 - People v Daniel Ray Bean

The People of the State of Michigan,

 

Charles Justian

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals)

 

 

(Muskegon – Hicks, T.)

 

Daniel Ray Bean,

 

Mary Chartier-Mittendorf

 

Defendant-Appellee.

 

Summary

The Muskegon County Prosecutor alleges that the defendant sexually assaulted defendant’s 15-year-old step-niece.  The prosecutor initially charged the defendant with third-degree criminal sexual conduct (CSC-III) for sexual penetration of a victim between the ages of 13 and 16, but later elevated the charge to first-degree criminal sexual conduct (CSC-I) based on two theories:  (1) the commission of an “other felony”—second-degree child abuse; and (2) affinity.  The defendant moved to quash the information as to both theories.  The trial court granted the defendant’s motion as to affinity, but denied it as to the “other felony.”  The Court of Appeals, in an unpublished opinion, reversed the denial of the defendant’s motion to quash on the “other felony” theory and affirmed the grant of his motion to quash on the affinity theory, meaning that the prosecutor will only be able to proceed with a charge of CSC-III.  The Supreme Court has granted leave to appeal to address whether second-degree child abuse, MCL 750.136b(3)(b), is an adequate predicate “other felony” to sustain a charge of CSC-I, MCL 750.520b(1)(c), when the alleged act of child abuse is a sexual penetration that is the same sexual penetration that forms the basis of the CSC-I charge.​