Lesser offense of CSC II instruction; Effect of CSC II being time-barred; Specific unanimity instruction; Ineffective assistance of counsel for failure to request a specific unanimity instruction; Sentencing; Proportionality

The court concluded that the trial court did not err by denying defendant’s request for a jury instruction on CSC II. Also, because a specific unanimity instruction was inappropriate, his argument that his attorney was ineffective for failing to request one was unpersuasive. Finally, the “trial court did not rely on suffering of the victim in choosing a sentence above the guidelines range, so” this argument was unsustainable. Defendant was charged with CSC I. He requested a jury instruction on the lesser offense of CSC II. He asserted this instruction “was appropriate because, from the testimony, it was unclear whether the touching involved penetration.” The parties disagreed whether CSC II was a necessarily included lesser offense or a cognate lesser offense of CSC I. The trial court asserted that CSC II was not a necessarily included offense, and that CSC II was barred by the statute of limitations. It “said that the jury already had the option of returning a not-guilty verdict if they found that penetration had not been proven beyond a reasonable doubt.” Thus, the trial court denied his request. “Defendant undoubtedly could not be convicted of [CSC II] because it was time-barred.” Because CSC II “was time-barred and there was no indication that he ‘waived the statute of limitations defense, whether defendant was innocent or guilty of [CSC II] was ‘per se, not submissible to a jury[.]’” The court held that if the jury had been instructed on CSC II “despite the fact that it was time-barred, it ‘would simply introduce another type of distortion into the factfinding process.’” Without citation to authority, defendant asserted that the fact CSC II was time-barred was no reason to deny his “request for a jury instruction on that lesser offense. But that position is directly contradicted by binding precedent.” Because CSC II “was time-barred and nothing in the record suggested that [he] had waived the statute-of-limitation defense, the trial court was precluded from instructing the jury on” CSC II. Affirmed.