People v. Berlin

Decision Date19 October 1993
Docket NumberDocket No. 157431
Citation202 Mich.App. 221,507 N.W.2d 816
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Allen BERLIN, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Mary M. Stiel, Asst. Pros. Atty., for People.

Harrison & Zacks by David N. Zacks and Paul M. Newcomer, Bloomfield Hills, for defendant-appellee.

Before HOOD, P.J., and MARK J. CAVANAGH and TAYLOR, * JJ.

PER CURIAM.

The prosecutor appeals by leave granted from the Oakland Circuit Court's denial of the prosecutor's delayed application for leave to appeal. The prosecutor ultimately seeks to overturn the 46th District Court's refusal to bind defendant over on charges of fourth-degree criminal sexual conduct, M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). We affirm.

Complainant had been a patient of the defendant, a seventy-three year-old-gynecologist, for about thirty years. At the preliminary examination, she testified that, following a postexamination consultation in the defendant's office, he hugged and kissed her as usual, but then took her hand and placed it on his crotch, over his clothes and lab coat. She realized that he was aroused and quickly removed her hand. Complainant was fully dressed at the time of the incident. She was the only witness to testify.

The prosecutor argues that this behavior constitutes fourth-degree criminal sexual conduct and that the district court abused its discretion in refusing to bind defendant over for trial. We disagree.

We note initially that, technically, the issue before us is whether the circuit court abused its discretion in refusing to grant the prosecutor's delayed application for leave to appeal. However, it is clear from the record that the circuit court considered the merits of the prosecutor's appeal in deciding to deny leave. We will therefore decide whether the district court abused its discretion in finding insufficient evidence of force or coercion to bind defendant over for trial.

The section of the statute under which defendant was charged defines fourth-degree criminal sexual conduct as engaging in "sexual contact" with another person where "[f]orce or coercion is used to accomplish the sexual contact." 1 M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). "Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (iv)." These circumstances are: (i) actual application of physical force or physical violence, (ii) threatening to use force or violence, (iii) threatening to retaliate in the future, and (iv) when the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable. 2 M.C.L. § 750.520b(1)(f)(i)-(iv); M.S.A. § 28.788(2)(f)(i)-(iv).

Here, the prosecutor claims that defendant's conduct constituted an actual application of physical force or physical violence and therefore it is covered by subsection a as a matter of law. The prosecution explains that it necessarily took some "physical force" to move the complainant's hand to defendant's crotch. We disagree.

Words used in a statute should normally be given their plain and ordinary meanings. M.C.L. § 8.3a; M.S.A. § 2.212(1). Further, where examples of what is included in a definition are given, the word is presumed to include only things of the same kind, class, character, or nature unless a contrary intent is evident. Attorney General v. Blue Cross & Blue Shield of Michigan, 168 Mich.App. 372, 380-381, 424 N.W.2d 54 (1988).

As pointed out by the prosecutor, "force" is defined by Webster's Third New International Dictionary, Unabridged Edition (1964), as, among other things, "strength or energy esp. of an exceptional degree: active power: vigor" and is also defined as "power, violence, compulsion, or constraint exerted upon or against a person or thing." Similarly, the fifth edition of Black's Law Dictionary defines "power" as "[p]ower dynamically considered, that is, in motion or in action; constraining power, compulsion; strength directed to an end." Similarly, "coercion" is defined by Black's as "[c]ompulsion; constraint; compelling by force or arms or threat." Webster's defines "coercion" as "use of physical or moral force to compel to act or assent" and further defines "coerce" as "to restrain, control, or dominate, nullifying individual will or desire" and "to compel to an act or choice by force, threat, or other pressure."

This Court has found force or coercion where a defendant drove a thirteen-year-old complainant to a secluded park, ostensibly so she could baby-sit his children, and then touched her breasts, legs, stomach, and back, ignoring her request that he stop. People v. McGill, 131 Mich.App. 465, 468-469, 346 N.W.2d 572 (1984). The Court found that, considering the disparity in age, size, and strength between the defendant and the victim, and considering the remote location, the defendant's behavior was "sufficient to create a reasonable fear of dangerous consequences." Id. at 472, 474, 346 N.W.2d 572 (adopting the definition of force or coercion contained in CJI 20:5:3, now CJI2d 20.15).

In contrast, force or coercion was not found where a defendant placed his hand on the victim's crotch while she was sleeping and removed it when she awoke and rolled over to turn on the lights. People v. Patterson, 428 Mich. 502, 524-528, 410 N.W.2d 733 (1987). The Court found that "the Legislature did not intend the defendant's conduct to come within the definition of force or coercion in subsection (1)(a) of the fourth-degree criminal sexual conduct statute" because it "intended to treat sexual assaults accomplished by force or coercion separately from assaults on physically or mentally incapacitated victims," which is forbidden by M.C.L. § 750.520e(1)(b); M.S.A. § 28.788(5)(1)(b). 3 428 Mich. 525-527, 410 N.W.2d 733. 4

The Patterson Court also noted that the Legislature deliberately omitted from the definition of force or coercion applicable to fourth-degree criminal sexual conduct those assaults that are accomplished "though concealment or by the element of surprise." Id. at 527, 410 N.W.2d 733. Such assaults, the Court noted, constitute force or coercion for purposes of first-, second- and third-degree criminal sexual conduct only. Id.; see also M.C.L. § 750.520b(1)(f)(v); M.S.A. § 28.788(2)(1)(f)(v); M.C.L. § 750.520c(1)(d)(ii) and (f); M.S.A. § 28.788(3)(1)(d)(ii) and (f); M.C.L. § 750.520d(1)(b); M.S.A. § 28.788(4)(1)(b); but see M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a) (omitting subsection v from the definition of force or coercion). Thus, the Court declined to allow the prosecutor to satisfy the force or coercion requirement by proving concealment or surprise. See Patterson, supra at 527-528, 410 N.W.2d 733. Likewise, we must be careful not to nullify the Legislature's exclusion of the provision for concealment or surprise with an overly broad reading of the phrase "force or coercion."

Here, complainant testified that defendant "took" her hand and "placed it" on his crotch. She stated that he did not grab it or pull it and that he did not hurt her. She also testified that he did not resist at all when she pulled her hand away and that he did not threaten her.

In light of the ordinary meaning of the words "force or coercion," of the examples given in subsections i through iv of the statute, and of the Patterson Court's interpretation, we believe that the district court did not abuse its discretion in finding that the force or coercion required by the statute was absent in this case. 5 To hold otherwise would be to ignore the Legislature's exclusion of the concealment or surprise provision from the fourth-degree criminal sexual conduct statute.

Affirmed.

* Ronald J. Taylor, 2nd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

1 "Sexual contact" is defined as including the intentional touching of the clothing covering the...

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5 cases
  • Alman v. Reed
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 19, 2013
    ...to create a reasonable fear of dangerous consequences,” and does not encompass any and all physical contact. People v. Berlin, 202 Mich.App. 221, 507 N.W.2d 816, 817–19 (1993) (citations and quotations omitted). Drawing all inferences in Alman's favor, as we must, no reasonable officer in R......
  • United States v. Elliott
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 17, 2020
    ...clause. Pursuant to Michigan law, the term coercion in this context is given its ordinary meaning. People v. Berlin, 202 Mich.App. 221, 224, 507 N.W.2d 816, 817 (1993) (per curiam). Black's Law Dictionary defines "coerce" as to "compel by force or threat." Black's Law Dictionary 315 (10th e......
  • Alman v. Reed, 10-2489
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 7, 2013
    ...to create a reasonable fear of dangerous consequences," and does not encompass any and all physical contact. People v. Berlin, 507 N.W.2d 816, 817-19 (Mich. Ct. App. 1993) (citations and quotations omitted). Drawing all inferences in Alman's favor, as we must, no reasonable officer in Reed'......
  • People v. Premo, Docket No. 175812
    • United States
    • Court of Appeal of Michigan — District of US
    • September 15, 1995
    ...force under M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). Defendant relies on this Court's holding in People v. Berlin, 202 Mich.App. 221, 507 N.W.2d 816 (1993), in support of his contention that the force or coercion required by the statute is absent in this case. In Berlin, a panel o......
  • Request a trial to view additional results

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