People v. Starks

• Decision Date: 19 July 2005
• Docket Number: Docket No. 126756, Calendar No. 5.
• Citation: 701 N.W.2d 136,473 Mich. 227
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kimberly STARKS, Defendant-Appellee.
• Court: Michigan Supreme Court

701 N.W.2d 136

473 Mich. 227

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kimberly STARKS, Defendant-Appellee.

Docket No. 126756, Calendar No. 5.

Supreme Court of Michigan.

Argued April 13, 2005.

Decided July 19, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Joseph A. Puleo, Assistant Prosecuting Attorney, Detroit, MI, for the people.

Burkett & Woods (by Arlene F. Woods), Detroit, MI, for the defendant.

WEAVER, J.

The issue presented is whether the prosecution presented sufficient evidence in this case to establish criminal assault and thus bind defendant over on the charge of assault with intent to commit criminal sexual conduct involving sexual penetration, M.C.L. § 750.520g(1). The district court dismissed the charge against defendant, and the circuit court affirmed. On remand from this Court for consideration as on leave granted, the Court of Appeals also affirmed. We reverse the dismissal of the charge against defendant, concluding that the prosecution presented sufficient evidence to bind defendant over on the charge of assault with intent to commit criminal sexual conduct involving sexual penetration. An assault may be established by showing that one has attempted an intentional, unconsented, and harmful or offensive touching of a person. The evidence presented at the preliminary examination suggests that after defendant sent another person out of the room and closed the automatically locking door to that room, she asked the complainant whether he wanted her to perform fellatio on him, instructed the complainant to remove his pants, and was observed bending over in front of the complainant, who had unzipped and unbuttoned his pants at the defendant's request, less than two feet' from him. The complainant testified that defendant was about to commit fellatio when another employee entered the room and that when that employee entered the room, defendant pretended to put clothes in the washing machine. Thus, the evidence presented suggests more than mere preparation to commit the act; it suggests a great degree of proximity to the completed act.

Further, we reject the argument that the complainant could consent to the act and overrule the incorrect conclusion in People v. Worrell, 417 Mich. 617, 340 N.W.2d 612 (1983), that consent is always a defense to the crime of assault with intent to commit criminal sexual conduct involving sexual penetration. The complainant, who was thirteen years old at the time of the incident, could not consent to an act of fellatio. Because a thirteen-year-old child cannot consent to sexual penetration, consent by such a victim is not a defense to the crime of assault with intent to commit criminal sexual conduct involving sexual penetration.

Therefore, there was probable cause to believe that defendant committed assault with intent to commit criminal sexual conduct involving sexual penetration and defendant should have been bound over on the charge. We remand this case to the circuit court with the instruction that the circuit court remand this case to the district court for proceedings consistent with this opinion.

I

Defendant was charged with assault with intent to commit criminal sexual conduct involving sexual penetration, M.C.L. § 750.520g(1), following an incident at the Pause Program at Herman Kiefer Hospital, a detention facility for delinquent boys. Defendant was an employee of the program. The complainant was a resident of the program and was thirteen years old at the time of the incident.¹

At the preliminary examination, the complainant testified that he and another boy were in the laundry room with defendant doing laundry. Donavonne Manigault, another employee of the program, testified that the laundry room door locked automatically when it was shut. Manigault further explained that the door to the laundry room was kept open if laundry was "being done, or something like that," and was kept closed at any other times so that residents would not have access to the room.

The complainant testified that defendant asked the other boy to leave the laundry room and then closed the door behind him. She then asked the complainant whether he would like her to perform fellatio on him like she had on another resident in the program² and told him to pull down his pants. The complainant complied, unbuckling his belt and undoing his pants. The complainant stated that as defendant was about to perform fellatio, Manigault opened the door and interrupted them. Defendant then began yelling at the complainant, acting as if the complainant had done something to her, and tried to look as though she were putting clothes in the washing machine.

Manigault testified that after taking a break from the floor, he returned and noticed that defendant was not on the floor, so he began looking for her. When he approached the laundry room door, it was shut and locked. Manigault used his key to open the door and, when he entered the laundry room, he saw defendant bending over in front of the washing machine and the complainant standing behind her less than two feet away. He stated that the complainant's belt was unbuckled, his pants were unbuttoned and unzipped, and the complainant was holding his pants up so that they would not fall down.

After hearing the testimony offered by the complainant and Manigault, the district court refused to bind defendant over on the charge, finding that there was not probable cause to believe a crime was committed. The district court explained that there was not evidence that the complainant had been placed in fear of any battery and therefore dismissed the charge.

The prosecutor appealed, and the circuit court affirmed the dismissal of the charge. The circuit court reasoned that there was no evidence that defendant touched the complainant or threatened him with violence or force and that there was no overt act done in perpetration of the alleged crime. Therefore, there was not probable cause concerning the assault element.

The prosecutor appealed to the Court of Appeals, which initially denied leave to appeal. But this Court remanded the case to the Court of Appeals for consideration as on leave granted.³ On remand, the Court of Appeals affirmed the dismissal of the charge.⁴ In determining whether defendant committed an assault, the Court of Appeals stated:

The evidence showed that after arranging to be alone with a thirteen-year-old boy, defendant offered to perform fellatio on him and told him to pull down his pants, which he started to do. Defendant did not expressly threaten to harm the boy; there is no evidence that she made any threatening gestures; the boy gave no indication that he was apprehensive of being injured or harmed in any way or that he was complying with defendant's plan against his will. Although this evidence may have established probable cause to believe defendant attempted to commit criminal sexual conduct, M.C.L. § 750.92; Worrell, supra, that was not the charge the prosecutor sought to bind over to circuit court for trial. The evidence presented at the preliminary examination failed to establish probable cause to believe that defendant committed an assault. Therefore, the district court did not err in dismissing that charge, and the circuit court properly affirmed that ruling.

But despite its ruling, the Court of Appeals urged this Court to reexamine and overrule the Worrell decision because it believed that Justice Boyle's dissent in Worrell offered the better analysis. The Court of Appeals agreed with Justice Boyle that "the complainant's consent, or lack of consent, is not germane in a prosecution for assault with intent to commit criminal sexual conduct involving penetration with a child under the age of sixteen."

The prosecutor sought leave to appeal, and this Court granted leave to appeal, instructing the parties to include among the issues briefed

whether People v. Worrell, 417 Mich. 617, 340 N.W.2d 612 (1983), was properly decided, and whether the prosecution presented sufficient evidence in this case to establish a criminal assault and to bind over defendant on the charge of assault with intent to commit criminal sexual conduct involving penetration, M.C.L. § 750.520g(1). [471 Mich. 904, 688 N.W.2d 92 (2004).]

II

A trial court's decision whether to bind a defendant over for trial is reviewed for an abuse of discretion. People v. Stone, 463 Mich. 558, 561, 621 N.W.2d 702 (2001). "A magistrate has a duty to bind over a defendant for trial if it appears that a felony has been committed and there is probable cause to believe that the defendant committed the felony." Id., citing M.C.L. § 766.13.⁵

M.C.L. § 750.520g(1) provides that "[a]ssault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years." The elements of the crime are "(1) an assault, and (2) an intent to commit [criminal sexual conduct] involving sexual penetration." People v. Nickens, 470 Mich. 622, 627, 685 N.W.2d 657 (2004). It is the first element that is disputed in the present case.

An assault may be established by showing either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. Id. at 628, 685 N.W.2d 657. The first type of assault is characterized as "attempted-battery assault"; the second is characterized as "apprehension-type assault." Id. Battery has been defined as "`an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person.'" Id., quoting People v. Reeves, 458 Mich. 236, 240 n. 4, 580 N.W.2d 433 (1998). The use of force against a person is not considered a battery if the recipient consents to what is done. Nickens, supra at 630, 685 N.W.2d 657. But...