
    PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joel Eusevio DAVIS, Defendant-Appellee.
    SC: 156406 COA: 332081
    Supreme Court of Michigan.
    March 22, 2019
    Order
   On order of the Court, leave to appeal having been granted, and the briefs and oral arguments of the parties having been considered by the Court, we VACATE in part the July 13, 2017 judgment of the Court of Appeals. On appeal to the Court of Appeals, defendant argued that his convictions for both assault with intent to do great bodily harm (AWIGBH), MCL 750.84(1)(a), and aggravated domestic assault, MCL 750.81a(3), violated his right to be free from multiple punishments under double-jeopardy principles. U.S. Const., Am. V ; Const. 1963, art. 1, § 15. The Court of Appeals reframed this double-jeopardy argument as an issue of "mutually exclusive" verdicts, specifically a situation "where a guilty verdict on one count necessarily excludes a finding of guilt on another ...." People v. Davis , 320 Mich. App. 484, 493, 905 N.W.2d 482 (2017), quoting United States v. Randolph , 794 F.3d 602, 610-611 (CA 6, 2015) (quotation marks omitted). See also United States v. Powell , 469 U.S. 57, 69 n. 8, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). The Court of Appeals noted that the statutory language of AWIGBH requires a defendant to commit assault with the specific intent to do great bodily harm, whereas the statutory language of aggravated domestic assault requires a defendant to commit assault without the intent to commit great bodily harm. Davis , 320 Mich. App. at 490, 905 N.W.2d 482. The Court of Appeals reasoned that these contradictory provisions rendered the verdicts mutually exclusive and, on that basis, vacated defendant's aggravated domestic assault conviction. Id . at 496, 905 N.W.2d 482. In doing so, the Court of Appeals erred.

Regardless of whether this state's jurisprudence recognizes the principle of mutually exclusive verdicts, this case does not present that issue. In this case, the jury was instructed that to convict defendant of AWIGBH, it must find that defendant acted "with intent to do great bodily harm, less than the crime of murder." See MCL 750.84(1)(a). However, with respect to aggravated domestic assault, the jury was not instructed that it must find that defendant acted without the intent to inflict great bodily harm. See MCL 750.81a(3) ; People v. Doss , 406 Mich. 90, 99, 276 N.W.2d 9 (1979) ("While the absence of malice is fundamental to manslaughter in a general definitional sense, it is not an actual element of the crime itself which the people must establish beyond a reasonable doubt."). Since, with respect to the aggravated domestic assault conviction, the jury never found that defendant acted without the intent to inflict great bodily harm, a guilty verdict for that offense was not mutually exclusive to defendant's guilty verdict for AWIGBH, where the jury affirmatively found that defendant acted with intent to do great bodily harm. Thus, the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate defendant's aggravated domestic assault conviction. We thus VACATE that part of the Court of Appeals judgment relevant to that finding.

Because the Court of Appeals erroneously decided this case on the basis of mutually exclusive verdicts, the Court did not address the merits of defendant's double-jeopardy argument. Davis , 320 Mich. App. at 489, 905 N.W.2d 482 (finding that "double jeopardy is not the proper initial focus"). Accordingly, we REMAND this case to the Court of Appeals for reconsideration of the parties' arguments in light of People v. Miller , 498 Mich. 13, 869 N.W.2d 204 (2015). We also direct the Court of Appeals to determine and apply the appropriate standard of review to this double-jeopardy challenge because the applicable standard of review was not explicitly addressed by the Court of Appeals in its July 13, 2017 judgment.

We do not retain jurisdiction. 
      
      To be found guilty of AWIGBH, a person must "[a]ssault[ ] another person with intent to do great bodily harm, less than the crime of murder." MCL 750.84(1)(a).
     
      
      To be found guilty of aggravated domestic assault, a person must, inter alia , assault an individual "without intending ... to inflict great bodily harm ...." MCL 750.81a(2).
     