People v. Makela

• Decision Date: 21 March 1986
• Docket Number: Docket No. 83887
• Citation: 147 Mich.App. 674,383 N.W.2d 270
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacy MAKELA, Defendant-Appellant. 147 Mich.App. 674, 383 N.W.2d 270
• Court: Court of Appeal of Michigan — District of US

Page 270

383 N.W.2d 270

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacy MAKELA, Defendant-Appellant.

Docket No. 83887.

147 Mich.App. 674, 383 N.W.2d 270

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided Dec. 16, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 676] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James B. Jenkins, Pros. Atty., for the People.

John Emerson Berry, Hancock, for defendant-appellant.

Before WALSH, P.J., and GRIBBS and SHEPHERD, JJ.

SHEPHERD, Judge.

The defendant was charged with third-degree criminal sexual conduct (CSC), MCL Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), and bound over to the circuit court on fourth-degree CSC, M.C.L. Sec. 750.520e(1)(b); M.S.A. Sec. 28.788(5)(1)(b), at the conclusion[147 MICHAPP 677] of his preliminary examination. Defendant appealed the magistrate's decision to bind him over by bringing a motion to quash in the circuit court. The prosecutor filed a complaint for superintending control in the circuit court against the district court and filed a cross-appeal from the magistrate's decision binding the defendant over on fourth-degree CSC instead of third-degree CSC. After a hearing on the merits of the prosecution's complaint and defendant's motion, the circuit court issued a writ of superintending control which ordered the district court judge to bind the defendant over on third-degree CSC. The district court subsequently bound defendant over on third-degree CSC. We granted defendant's application for leave to consider the merits of the case and do not consider whether the prosecution should have proceeded in the circuit court by way of superintending control or appeal as of right. We affirm the circuit court's order on the merits.

I

At the preliminary examination the complainant testified that after she went to the Calumet homecoming game on the evening in question, she went to a party in Ahmeek, Michigan. Defendant was at the party and offered the complainant a ride home, which she accepted. After leaving the party at midnight, the defendant took complainant to see a home that he was building in Laurium. He then told the complainant that he had to stop at his parents' motel in Lake Linden. After they arrived, defendant invited complainant into his motel room for a minute. She sat on the bed and watched television while the defendant went to the bathroom. Defendant returned and sat on the bed with complainant and put his arm around her [147 MICHAPP 678] waist and pulled her down onto the bed. While on top of her, defendant removed her blue jeans and panties. Complainant initially testified that she was too scared to say anything. She later testified that, as defendant was removing her pants, she told him that she did not want to do anything. According to complainant, defendant removed his own clothes while he was on top of her. Complainant gave conflicting testimony on whether the defendant removed her jacket and whether the defendant exposed her breasts. Initially, she testified that the defendant had not removed her jacket and had not exposed her breasts. Later, she testified that the defendant had removed her jacket and that the defendant had pushed her shirt and bra up over her breasts and had fondled her breasts. Complainant unequivocally testified that penetration occurred. She explained that she did not try to get away because she was frightened, but that she did cry during the incident.

The magistrate gave the following reasons for binding defendant over to the circuit court on fourth-degree CSC rather than third-degree CSC:

"Here, of course, the People do not have the burden of proof that they do at a trial, where, of course, the proof must be beyond reasonable doubt. Now, of course, the defendant is charged with criminal sexual conduct in the third degree and the statute, of course, provides that if a person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists. Well a, of course, the victim in this case was over sixteen years of age. Then we come to b, that force or coercion is used to accomplish the sexual penetration, and of course force and coercion includes but is not limited to any of the circumstances listed in section 520b, 1f i 25 [sic ]. Now taking all the evidence and all the circumstances and all the inferences to be derived therefrom, the Court finds that the [147 MICHAPP 679] People have failed to meet their burden of proof that the crime known as third degree criminal sexual conduct was committed. However, the Court does find that the People have provided a crime not [sic ] cognizable by this Court in that there is, that the crime of fourth degree criminal sexual conduct was committed and that there is probable cause to believe that the defendant committed it. Accordingly, I must bind the defendant over to the next term of the Houghton County Circuit Court on the charge of fourth degree criminal sexual conduct because there is considerable evidence in this case as to the fondling of the breasts and other portions of the body to put it within the fourth degree."

II

Defendant first argues that the magistrate did not abuse his discretion in binding defendant over to the circuit court on fourth-degree CSC rather than third-degree CSC.

An examining magistrate's function is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with that crime. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. In making this determination, the magistrate has a duty to pass judgment not only on the weight and competency of the evidence, but also on the credibility of the witnesses. People v. Paille # 2, 383 Mich. 621, 627, 178 N.W.2d 465 (1970); People v. Talley, 410 Mich. 378, 301 N.W.2d 809 (1981). The inquiry is not limited to a determination that the prosecution has presented evidence on each element. Rather, the magistrate must examine the whole matter and be satisfied that there is sufficient evidence to show that the crime was committed and to establish probable cause to believe defendant committed it. People v. King, 412 Mich. 145, 154, 312 N.W.2d 629 (1981). The magistrate "should not, however, discharge 'when evidence conflicts or raises reasonable doubt of [the [147 MICHAPP 680] defendant's] guilt', since that presents the classic issue for the trier of fact". King, supra, pp. 153-154, 312 N.W.2d 629.

"The object of a preliminary examination is not to prove guilt or innocence beyond a reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial. People v. Medley, 339 Mich. 486; 64 N.W.2d 708 (1954)." People v. Doss, 406 Mich. 90, 103, 276 N.W.2d 9 (1979).

Fourth-degree CSC requires proof of sexual contact accomplished with force or coercion, or knowledge that the victim is mentally incapable, mentally incapacitated or physically helpless. M.C.L. Sec. 750.520e; M.S.A. Sec. 28.788(5). Under the facts of this case, the only difference between fourth-degree CSC and third-degree CSC is the element of penetration required to prove third-degree CSC. The element of force or coercion in this case is identical for both offenses. M.C.L. Sec. 750.520b(1)(f)(i) and (ii); M.S.A. Sec. 28.788(2)(1)(f)(i) and (ii).

We note that there are three possible interpretations of the magistrate's ruling. Defendant argues that the magistrate bound defendant over on fourth-degree CSC because he disbelieved the victim's testimony that the defendant had actually committed penetration. On the other hand, the prosecution argues that the magistrate incorrectly found that the force or coercion element of third-degree CSC is different than the force or coercion necessary to commit fourth-degree CSC. In addition, we note that the bindover order itself lists M.C.L. Sec. 750.520e(1)(b); M.S.A. Sec. 28.788(5)(1)(b), which is sexual contact accomplished with knowledge that the victim was mentally incapacitated or physically helpless, rather than M.C.L. Sec. 750.520e(1)(a); M.S.A. Sec. 28.788(5)(1)(a), which is sexual contact accomplished with force or coercion.

[147 MICHAPP 681] We agree with the prosecution that if the magistrate based his ruling on the incorrect premise that the force or coercion necessary to establish third-degree CSC is different than that necessary to establish fourth-degree CSC, then the magistrate abused his discretion in binding defendant over on the lesser offense. The same can be said if the magistrate bound defendant over on subparagraph (b) (sexual contact accomplished with knowledge of victim's mental or physical incapacity), since that element, like force or coercion, is also present in third-degree CSC. In any event, complainant's own testimony at the preliminary examination precludes as a matter of law any finding that she was mentally incapable, mentally incapacitated or physically helpless as defined in M.C.L. Sec. 750.520a; M.S.A. Sec. 28.788(1).

The possibility that the magistrate found that sexual conduct short of penetration had occurred through force or coercion presents a more difficult question but we nevertheless hold that a ruling on that basis would also be an abuse of discretion. In order to arrive at this conclusion, the magistrate would have had to disbelieve the complainant's unequivocal testimony that penetration had occurred, while at the same time believing her testimony that sexual contact had occurred through force or coercion. Since the magistrate apparently found that the complainant was a credible witness, her testimony raised a question as to defendant's guilt and that question is properly one for the trier of fact. Doss, supra.

The circuit court properly found a clear abuse of discretion.

III

Defendant also argues that the prosecution [147 MICHAPP 682] failed...