People v. Parks

Decision Date05 June 2009
Docket NumberDocket No. 126509.,COA No. 244553.
Citation766 N.W.2d 650,483 Mich. 1040
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky Allen PARKS, Defendant-Appellant.
CourtMichigan Supreme Court
Order

On October 2, 2008, the Court heard oral argument on the application for leave to appeal the May 18, 2004 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

YOUNG, J. (concurring).

I concur in the decision to deny leave to appeal and write to respond to what I believe is Justice Markman's artificially narrow definition of "conduct"—one that ultimately and ironically would give rape victims fewer privacy interests than prostitutes under the rape shield statute. I do not believe that the statute requires this result. I also write to respond to Chief Justice Kelly's constitutional argument.

I. Factual Background and Procedural History

Because the dissenting statements offered by Chief Justice Kelly and Justice Markman contain significant gaps that fail to capture the ambulatory nature of the defendant's claims of error, I offer the following complete and chronological recitation of the facts and the relevant procedural history of this case.

The complainant child, D.W., has experienced a troubled childhood. When she was three or four years old, her step-grandfather allegedly sexually abused her by fondling her and requiring her to perform fellatio on him. When she was five years old, she moved to Michigan to live with her mother and stepfather (defendant Ricky Allen Parks). There, she admitted to them that she had been sexually abused by her step-grandfather. Defendant recalled:

She had told us the stories about how her grandfather would have her in his bed at night and how he would touch her vaginal areas and then how he would make her touch his—what she called the weenie and how he had ... her put it in her mouth and talked about it getting sick on her belly and giving her medicines ....

D.W.'s mother immediately contacted the Family Independence Agency (FIA)1 in Owosso, which referred her to a physician. The physical examination conducted by the physician did not rule out fondling. The FIA investigator concluded that D.W. "has either been exposed to an extreme amount of sexual activity or that she has been abused in the past, possibly with threats of physical harm were she to reveal what has taken place." No charges were ever brought against D.W.'s step-grandfather.

By November 2001, D.W. was 10 years old and living with defendant, his then-girlfriend, and five other children.2 After D.W. exhibited age-inappropriate sexual knowledge and behavior at school, the school's social worker interviewed her. During that interview, D.W. stated that defendant had touched her in her vaginal area. The social worker then contacted Child Protective Services (CPS) regarding the allegations of sexual abuse. Although defendant denied the allegations, CPS placed D.W. in foster care. Further investigation led to additional details: D.W. claimed that defendant twice followed her into the bathroom at their house and penetrated her, once with one of his fingers into her vagina and the other time with his penis into her mouth. Pursuant to MCL 750.520b, defendant was subsequently charged with two counts of first-degree criminal sexual conduct (CSC-I).3

At a motion in limine hearing, the prosecution sought to exclude evidence of the prior allegation that D.W. made against her step-grandfather. Defense counsel opposed the prosecutor's motion, but on narrow grounds—he sought to use the prior allegation "solely for impeachment purposes." He explained that he anticipated asking D.W. whether "she had ever made any reports of any other types of activity...." He expected "that [D.W.] would say no," as she did at a preliminary hearing, and he would then call other witnesses to testify that she had, in fact, previously made an allegation of sexual abuse. Thus, the then-11-year-old complainant would be impeached. The trial court agreed with the prosecution and excluded the evidence under the rape shield statute.4 Trial proceeded without evidence of D.W.'s previous abuse, and the jury convicted defendant on both charged counts of CSC-I. He was subsequently sentenced to a term of 7 to 15 years' imprisonment.

On appeal, defendant argued that he should have been allowed to question D.W. to show that she had made similar false allegations in the past.5 The Court of Appeals, in an unpublished opinion per curiam, issued May 18, 2004 (Docket No. 244553), affirmed defendant's convictions and held that defendant failed to make an offer of proof with respect to the falsity of D.W.'s prior allegation, as required under MRE 103(a)(2).6 Undeterred by the defendant's failure to offer proof at the appropriate time, this Court accepted his argument and remanded to the Shiawassee Circuit Court for an evidentiary hearing to determine whether D.W. had, in fact, made a false accusation of sexual abuse against another person.7

On remand, the trial court affirmed defendant's convictions, ruling that there was "absolutely no evidence, zero evidence[,] of any prior false accusations made by the child...." This finding was based on the FIA investigator's determination, contemporaneous with D.W.'s allegation of abuse against her step-grandfather, that the young child "ha[d] either been exposed to an extreme amount of sexual activity or ... ha[d] been abused in the past." Moreover, it was underscored by defendant's own testimony that he believed D.W.'s allegations against her step-grandfather to be true both at the time they were made and presently.

Defendant has abandoned his prior argument and, hoping that his third theory would be the charm, sought to introduce the evidence for yet another purpose: as an alternative explanation for D.W.'s age-inappropriate sexual knowledge and behavior. Under this theory, defendant now claims that he is entitled to present evidence of the previous abuse D.W. suffered to show that she obtained her age-inappropriate sexual knowledge and behavior from a source other than defendant.

Obviously, at the time of trial, defendant did not offer this third basis for the admission of D.W.'s alleged prior sexual abuse. Accordingly, this issue is unpreserved. Neither Justice Markman nor Chief Justice Kelly explains why the defendant should be allowed to maintain a theory of innocence that was neither articulated at the time of trial nor at the time of the defendant's first appeal to this Court. Indeed, the tortuous procedural history of this case—including the defendant's seriatim efforts to introduce the excluded evidence—is conspicuously absent from either of their dissenting statements. The failure to preserve the appropriate claim of error is, by itself, a sufficient—and my primary—basis for denial.

II. Analysis
A. Rape Shield Statute

Michigan's rape shield statute,8 enacted in 1974 as part of a comprehensive reform of Michigan's criminal sexual assault statutes,9 is a broad exclusionary rule that prohibits the introduction of evidence of a sexual assault victim's previous sexual conduct, with certain narrow exceptions. Before the rape shield statute was enacted, sexual assault trials often focused on a victim's sexual history rather than on the defendant's alleged actions.10 Thus, as this Court has previously explained, the enactment of rape shield laws across the country was "a reflection of a nationwide concern about the prosecution of sexual conduct cases."11

The rape shield statute, MCL 750.520j, provides in part:

(1) Evidence of specific instances of the victim's sexual conduct ... shall not be admitted under [MCL 750.520b to 750.520g] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

At issue in this case is whether prior involuntary sexual activity—the sexual abuse D.W. allegedly suffered by her step-grandfather—constitutes "sexual conduct" for the purposes of the statute's exclusionary rule. If such involuntary sexual activity does constitute "sexual conduct," then the defendant is not entitled to question the complainant about such conduct. This includes a complainant's previous allegations of sexual abuse not proven to be false.12

The Legislature did not specifically define the term "conduct." Therefore, it is appropriate to look to the dictionary definition to discern the term's meaning.13 "Conduct" is relevantly defined, as one's "personal behavior."14 This definition is silent about whether "conduct" encompasses only voluntary "personal behavior" or both voluntary and involuntary "personal behavior." The term's plain meaning in the criminal context, however, implies that both voluntary behavior and involuntary behavior are "conduct." Justice Markman's understanding of the term "conduct" artificially restricts the term to one's voluntary behavior only. Instead, it encompasses all of one's "personal behavior."15

An examination of the statutory scheme as a whole underscores why Justice Markman's construction of "conduct" is too limited. MCL 750.520a provides definitions for Chapter LXXVI of the Michigan Penal Code, which encompasses the rape shield statute (MCL 750.520j). Although the section does not define the word "conduct," it does define both "actor" and "victim" with reference to their "conduct." An "actor" is someone "accused of criminal sexual conduct," MCL 750.520a(a), while a "victim" is someone "subjected to criminal sexual conduct," MCL 750.520a(p). By including these definitions, the Legislature...

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8 cases
  • Montgomery v. Commonwealth Of Ky.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 18 de março de 2010
    ...and collateral sexual activity is no less subject to misuse by the jury than is similar evidence about an adult. See People v. Parks, 483 Mich. 1040, 766 N.W.2d 650 (2009) (collecting cases demonstrating that the vast majority of states to have considered the issue have held that their rape......
  • People v. Sharpe
    • United States
    • Michigan Supreme Court
    • 10 de julho de 2018
    ...conduct." As I stated in my dissenting statements in People v. Piscopo , 480 Mich. 966, 741 N.W.2d 826 (2007),4 and People v. Parks , 483 Mich. 1040, 766 N.W.2d 650 (2009),5 "conduct" refers only to "volitional actions" and thus "does not encompass involuntary acts such as those that stem f......
  • Simon v. Brewer
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 15 de abril de 2021
    ...would essentially be a victim, who was subjected to the sexual conduct involuntarily. See generallyPeople v. Parks, 483 Mich. 1040, 1045; 766 N.W.2d 650 (2009) (YOUNG, J., concurring) ("'[S]exual conduct' is something that both 'actors' and 'victims' take part in—'actors' voluntarily and 'v......
  • Jane Doe v. Superior Court of L. A. Cnty.
    • United States
    • California Court of Appeals Court of Appeals
    • 29 de outubro de 2021
    ...statutes—which are similarly worded to section 1106 —to reach involuntary sexual conduct. (See People v. Parks (2009) 483 Mich. 1040, 1046-1047 & fn. 23, 766 N.W.2d 650 (conc. opn. of Young, J.) [citing cases from 20 states].)To be sure, this interpretation of section 1106 is not without co......
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