People v. Premo, Docket No. 175812

• Citation: 540 N.W.2d 715,213 Mich.App. 406
• Decision Date: 15 September 1995
• Docket Number: Docket No. 175812
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip PREMO, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 715

540 N.W.2d 715

213 Mich.App. 406

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip PREMO, Defendant-Appellant.

Docket No. 175812.

Court of Appeals of Michigan.

Submitted May 3, 1995, at Lansing.

Decided Sept. 15, 1995, at 9:05 a.m.

Released for Publication Dec. 18, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, for Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.

Cardelli, Schaefer & Mason, P.C. by Deborah A. Hebert, Royal Oak, and Richard Beemer, Farmington Hills, for defendant.

Before MURPHY, P.J., and JANSEN and KACZMAREK, ^* JJ.

MURPHY, Presiding Judge.

Defendant appeals by leave granted from a circuit court order denying his motion to quash three charges of fourth-degree criminal sexual conduct, M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). We affirm.

The charges arose out of three separate incidents involving three different women. At the time of the incidents, defendant was a teacher at Ferndale High School, and the victims were students. The victims testified at the preliminary examination that defendant pinched their buttocks while they were on the premises of Ferndale High School. Defendant contends that pinching the victims' buttocks is insufficient to satisfy the requirement that force or coercion be used to accomplish sexual contact, M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a), and that the circuit court therefore erred in denying his motion to quash the charges.

The circuit court denied defendant's motion to quash on the ground that, as a matter of law, defendant's conduct satisfied the force requirement of M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). Appellate courts review questions of law for error. People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991). Therefore, we review the circuit court's denial of defendant's motion to quash for error. Id. We hold that defendant's conduct in this case constitutes both force and coercion under MCL 750.520e(1)(a); MSA 28.788(5)(1)(a), and that the circuit court therefore did not err in denying defendant's motion to quash the charges.

M.C.L. § 750.520e; M.S.A. § 28.788(5) provides:

(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exists:

(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(1)(f)(i) to (iv).

The circumstances that subsection 1(a) refers to are enumerated in the section of the statute setting forth the elements of the crime of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f)(i)-(iv); M.S.A. § 28.788(2)(1)(f)(i)-(iv), which provides:

Force or coercion includes but is not limited to any of the following circumstances:

(i) When the actor overcomes the victim through the actual application of physical force or physical violence.

(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.

(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion.

(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.

The circuit court did not err in concluding that defendant's conduct constituted force under M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). Defendant's pinching of the victims' buttocks satisfies the force element of the statute because the act of pinching requires "the actual application of physical force." M.C.L. § 750.520b(1)(f)(i); M.S.A. § 28.788(2)(1)(f)(i). The definition of the term "force" includes, among other things, "strength or power exerted upon an object." The Random House College Dictionary: Revised Edition, 515. We believe that the act of pinching is an act of physical force because it requires a person to exert strength or power on another person. ¹ Accordingly, contrary to defendant's argument, the act of pinching is sufficient to constitute 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 of this Court held that the force or coercion requirement was not satisfied where the defendant merely "took [the victim's] hand and placed it on his crotch." Id., at 222, 507 N.W.2d 816. We are troubled by the conclusion reached by the Court in Berlin on the basis of the reported facts presented in the opinion, but because we find Berlin to be distinguishable from this case we need not resolve this concern. The instant case involves defendant actively pinching the victims. This fact alone is sufficient to distinguish this case from Berlin. Furthermore, while it was observed in Berlin that the Legislature deliberately omitted from the definition of force or coercion applicable to fourth-degree criminal sexual conduct those assaults that are accomplished through concealment or by the element of surprise, id., at 225, 507 N.W.2d 816, whether there was surprise or concealment is not at issue in this case because, by pinching the victims' buttocks, defendant actually applied physical force to the victims. This application of physical force was sufficient to constitute force, M.C.L. § 750.520b(1)(f)(i); M.S.A. § 28.788(2)(1)(f)(i), without regard to whether it was accomplished by concealment or surprise.

As an alternative basis to affirm the circuit court's denial of defendant's motion to quash, we also conclude that defendant's conduct constituted coercion under M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). The district court determined that defendant's actions constituted coercion because defendant was in a position of authority over his victims. Apparently, the district court considered defendant to be in a position of authority because he was a teacher and the victims were students. Although the circuit court did not address whether defendant's conduct constitutes coercion, we conclude that it does. Defendant's conduct was not included in the enumerated examples of coercion in M.C.L. § 750.520b(1)(f)(i)-(iv); M.S.A. § 28.788(2)(1)(f)(i)-(iv). However, the Legislature did not limit the definition of force or coercion to the enumerated examples in the statute. M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a). Furthermore, the existence of force or...