People v. Waltonen

• Decision Date: 07 November 2006
• Docket Number: Docket No. 270229.
• Citation: 272 Mich. App. 678,728 N.W.2d 881
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lloyd Joseph WALTONEN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

728 N.W.2d 881

272 Mich. App. 678

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lloyd Joseph WALTONEN, Defendant-Appellee.

Docket No. 270229.

Court of Appeals of Michigan.

Submitted October 12, 2006, at Petoskey.

Decided November 7, 2006, at 9:00 a.m.

Released for Publication February 28, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, John A. Jarema, Prosecuting Attorney, Shaynee K. Fanara, Chief Assistant Prosecuting Attorney, and Brian O. Neill, Assistant Attorney General, for the people.

Kerry B. Zahner, Charlevoix, for the defendant.

Before: WHITBECK, C.J., and MURPHY and SMOLENSKI, JJ.

MURPHY, J.

The prosecution appeals by leave granted the circuit court's order granting defendant's motion to quash the information relative to four counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(c), which makes it an offense to engage in sexual penetration under circumstances involving the commission of any other felony. The underlying or predicate felony in this case is delivery of less than 50 grams of a controlled substance (Oxycontin),¹ MCL 333.7401(2)(a)(iv), as indicated in the felony information. Evidence was presented at the preliminary examination that indicated that defendant had initially supplied the victim with Oxycontin at no cost over a two-week period, supposedly creating an addiction, and defendant subsequently demanded sex in exchange for more Oxycontin. On multiple occasions, the victim ostensibly consented to sexual intercourse and oral sex with defendant in order to obtain Oxycontin and feed her drug habit. One of the primary issues on appeal regards the extent of the nexus between the sexual penetration and the underlying felony, as well as the sequence of events, necessary to support a conviction under MCL 750.520b(1)(c). We also address whether consent to sexual penetration is a defense to a prosecution pursued under MCL 750.520b(1)(c), accepting that the law does not recognize consent as a viable defense to the underlying felony.

Applying the plain and unambiguous language of the statute, we conclude that the prosecution was required to submit evidence sufficient to establish probable cause to believe that defendant sexually penetrated the victim, that defendant committed the underlying felony, and that there existed a direct interrelationship between the felony and the sexual penetration, which does not necessarily require that the penetration occur during the commission of the felony. We further hold that the defense of consent is irrelevant to our inquiry because consent is not a defense to delivery of controlled substances and the Legislature has not provided any framework to otherwise permit a consent defense to unlawful sexual penetration under MCL 750.520b(1)(c). Considering the evidence presented at defendant's preliminary examination, we conclude that the circuit court erred in quashing the district court's order binding defendant over for trial on four counts of CSC I. Accordingly, we reverse and remand.

I. Preliminary Examination Evidence and Procedural History

The victim testified that in September 2003 she worked at a northern Michigan bar where defendant was a regular customer. She stated that defendant offered her free Oxycontin while she was working at the bar one day. The victim accepted the Oxycontin despite not having previously tried the drug. She asserted that for approximately two weeks thereafter, defendant would give her free Oxycontin each time he patronized the bar, which was approximately five days a week.

The victim contended that defendant initially gave her one pill at a time, but that he later gave her two or three pills at a time because she required more of the drug to get high. She testified that defendant eventually invited her to his trailer in Charlevoix to help him paint, which she did in exchange for additional Oxycontin, along with some methadone.

The victim claimed that, over time, she became dependent on the drugs such that she would get sick to her stomach, would sweat, and could not sit still if she did not take them. After becoming dependent, the victim went to defendant for more drugs, and he told her that she "had to help him out too." She testified that defendant would not sell her the pills for money and that she had to negotiate alternatives with him in order to obtain more pills. Defendant wanted sex in return for the Oxycontin and, although she did not want to have sex with defendant at first, the victim decided to engage in sexual relations with him so that she could acquire more drugs and satisfy her dependency.

The victim testified that it was her choice to have sex with defendant and that she had sexual intercourse and oral sex with him on numerous occasions. In return, defendant provided her with drugs. The acts of sexual penetration along with the delivery of drugs formed the basis for the prosecution under MCL 750.520b(1)(c). The victim indicated that her sex-for-Oxycontin encounters with defendant became "routine" and that she would go to defendant's home for pills "pretty much" every other day. At one point, the victim told defendant that she wanted the pills before having sex with him, but, when he complied, she left immediately, so thereafter he demanded that they have sex before she would receive any drugs. At times, the victim would ask defendant to stop when they were having sex, which he would not always do right away, and she would then push him off her if he did not stop on his own. The victim testified that on another occasion when she did not want to have sex with defendant, he began to chase her and ripped the pocket off her pants, and she ran to a gas station to ask for help. She engaged in various social activities with defendant, but she only did so in order to obtain more drugs.

The felony warrant issued against defendant charged him with three counts of third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(b), which makes it a crime to use force or coercion to accomplish sexual penetration; one count of engaging the services of a prostitute, MCL 750.449a; and one count of delivery of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv). At the preliminary examination, the prosecution requested bindover on additional charges and elevation of the CSC III charges to CSC I under MCL 750.520b(1)(c). Defendant was bound over on four counts of CSC I; four counts of delivery of less than 50 grams of a controlled substance; four counts of maintaining a drug house, MCL 333.7405(1)(d); one count of eavesdropping, MCL 750.539d; and four counts of engaging the services of a prostitute.

Defendant subsequently moved to quash the bindover or information in the circuit court with respect to the CSC I charges. After hearing oral argument, the circuit court granted the motion, determining that the victim engaged in consensual sex with defendant in exchange for the illegal delivery of drugs and that this did not constitute CSC I. Throughout the hearing, the circuit court commented about the lack of any nexus or connection between the acts of sexual penetration and the underlying felony. The circuit court refused to consider the prosecution's request for reinstatement of the CSC III charges, which forms the basis of another appellate argument, but one that we need not resolve in light of our holding. This Court subsequently granted the prosecutor's application for leave to appeal. People v. Waltonen, unpublished order of the Court of Appeals, entered June 15, 2006 (Docket No. 270229).

II. Standards of Review and Principles Governing Preliminary Examinations

In People v. Hill, 269 Mich.App. 505, 513-514, 715 N.W.2d 301 (2006), this Court set forth the applicable standards of review relative to motions to quash and the pertinent principles concerning preliminary examinations:

A circuit court's ruling regarding a motion to quash an information and the district court's decision to bind over a defendant are reviewed to determine whether the district court abused its discretion in making its decision. People v. Hotrum, 244 Mich.App. 189, 191, 624 N.W.2d 469 (2000); People v. Riggs, 237 Mich.App. 584, 587, 604 N.W.2d 68 (1999); People v. Hamblin, 224 Mich. App. 87, 91, 568 N.W.2d 339 (1997). However, where the decision entails a question of statutory interpretation, i.e., whether the alleged conduct falls within the scope of a penal statute, the issue is a question of law that we review de novo. People v. Stone, 463 Mich. 558, 561, 621 N.W.2d 702 (2001); Hotrum, supra at 191, 624 N.W.2d 469; Riggs, supra at 587-588, 604 N.W.2d 68....

The primary function of a preliminary examination is to determine whether a felony has been committed and, if so, whether there exists probable cause to believe that the defendant committed the felony. People v. Yost, 468 Mich. 122, 125-126, 659 N.W.2d 604 (2003), citing MCL 766.13. Probable cause requires evidence sufficient to make a person of ordinary caution and prudence to conscientiously entertain a reasonable belief of the defendant's guilt. Yost, supra at 126, 659 N.W.2d 604. The magistrate, however, need not be without doubts regarding guilt. Id. Following the conclusion of the preliminary examination, if it appears to the district court that there is probable cause to believe that a felony was committed and that the defendant committed it, the court must bind the defendant over for trial. MCL 766.13; MCR 6.110(E).

III. Analysis

A. Statutory Construction

This appeal requires us to ascertain the Legislature's intent regarding MCL 750.520b(1)(c); therefore, we shall commence our analysis with a review of the general principles that guide statutory construction. Our primary task in construing and interpreting a statute is to discern and give effect to the intent of the Legislature. People v. Tombs, 472 Mich. 446, 451, 697 N.W.2d 494 (2005) (opinion by Kelly, J.); Shinholster v. Annapolis Hosp., 471...