Simon v. Brewer

• Decision Date: 15 April 2021
• Docket Number: Case No. 18-cv-11618
• Citation: Simon v. Brewer, Case No. 18-cv-11618 (E.D. Mich. Apr 15, 2021)
• Parties: ABIGAIL MARIE SIMON, Petitioner, v. SHAWN BREWER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ABIGAIL MARIE SIMON, Petitioner, v. SHAWN BREWER, Respondent.

Case No. 18-cv-11618

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 15, 2021

Hon. Mark A. Goldsmith

OPINION & ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS AND (2) GRANTING A CERTIFICATE OF APPEALABILITY

Petitioner Abigail Marie Simon, a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Kent Circuit Court of three counts of first-degree criminal sexual conduct ("CSC I"), Mich. Comp. Laws § 750.520b(1)(b)(v), and accosting a minor for immoral purposes, Mich. Comp. Laws § 750.145a. See People v. Simon, No. 326149, 2016 WL 3365242, at *1 (Mich. Ct. App. June 16, 2016). The case involves acts of sexual penetration between the complainant, a 15-year-old high school student, and Petitioner, who was his 33-year-old tutor. Id. The trial court sentenced Petitioner to concurrent sentences of 8 to 25 years for the sexual misconduct convictions and 53 days for the accosting a minor conviction. Id.

The petition raises one claim: the trial court denied Petitioner's right to a properly instructed jury and to present a defense by incorrectly instructing the jury on the voluntary act element of CSC I. Specifically, Petitioner claims that the jury instructions misled the jury to believe that the voluntary act element of the sexual misconduct charges would be satisfied even if the minor forcibly raped her in each instance of sexual penetration, as she argued at trial.¹ However, the state courts reasonably determined that the jury was properly instructed on voluntariness and was instructed to acquit her if it believed the minor forcibly raped her in each charged instance of penetration. Therefore, the petition is denied. The Court will, however, grant Petitioner a certificate of appealability.

I. BACKGROUND

This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1), Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case concerns sexual conduct between [Petitioner], who was an academic advisor at Catholic Central High School in Grand Rapids, and [BB,] a 15-year-old sophomore at the school. Defendant was 33 years old. At trial, the victim described numerous sexual acts with defendant and the prosecutor presented extensive evidence of text messages, including sexual messages, between defendant and the victim. Defendant testified that three sexual penetrations occurred, but she claimed that, on each occasion, the victim raped her. Defendant also testified that all the text messages she sent to the victim, including ones where she told the victim that she loved him and ones where they discussed "rough" sex, were done to appease the victim. According to defendant, if she appeased the victim, he would not assault her. The jury convicted defendant as noted above.

Simon, 2016 WL 3365242, at *1.

At the close of trial, the jury was instructed as to the element of voluntariness and the defense of duress as follows:

First, that the defendant voluntarily engaged in a sexual act that involved entry into the defendant's genital opening by [BB's] penis.. . .

Now, ladies and gentlemen, when I use the word quote/unquote "voluntarily" in the first element of criminal sexual conduct, it has a specific legal meaning that is different from the way the word is commonly used. To have quote/unquote "voluntarily" engaged in something, the defendant must have made some conscious act. The defendant's act is involuntary only if the act did not occur under the defendant's control, and she was truly powerless to prevent its occurrence.

Now, some examples of involuntary acts that could not be the basis for a crime are spasms, seizures, reflective [sic] actions and movements occurring while the actor is unconscious or asleep. However, if one consciously acts, then that is voluntary for purposes of this element.

Now, this is regardless of the motives for the act including whether or not the act was motivated by fear or self-preservation. The motive for an act can relate to the defense of duress which I will explain to you later. It does not relate to the first element of the criminal sexual conduct offense.

. . .

Now, the defendant says that if she did something that could be construed or considered a voluntary act, she is still not guilty because someone else's threatening behavior made her act as she did, and this is called the defense of duress. The defendant is not guilty if she committed the crime under duress. Under the law there was duress if four things were true.

One, the threatening behavior would have made a reasonable person fear death or serious bodily harm.

Two, the defendant actually was afraid of death or serious bodily harm.

Three, the defendant had this fear at the time she acted.

Four, the defendant committed the act to avoid the threatened harm.

Now, ladies and gentlemen, a threat of future injury is not sufficient to constitute duress. Rather, the threatening conduct must be present, imminent, and impending. In deciding whether duress made the defendant act as she did, think carefully about all the circumstances as shown by the evidence.

Think about the nature of any force or threats. Think about the defendant's knowledge of the background and character of the person who made any threats or used force. Think about the defendant's situation when she committed the allegedact. Could she have avoided the harm she feared in some other way than by committing the act? Think about how reasonable these other means would have seemed to a person in the defendant's situation at the time of the alleged act.

The prosecutor must prove beyond a reasonable doubt that the defendant was not acting under duress. If she fails to do so, then you must find the defendant not guilty.

Trial Tr. vol. XI at PageID.870-871 (Dkt. 5-15).

The jury found Petitioner guilty of the offenses indicated above. Following sentencing, Petitioner obtained appellate counsel, who filed a motion for new trial, raising among other claims, a claim that the jury instructions were erroneous as to the element of voluntariness and violated her right to present a defense. The trial court held a hearing on the motion, after which it denied relief. See 8/12/15 Op. and Order, No. 13-09055, at PageID.1217-1223 (Kent Cty. Cir. Ct. 8/12/2015) (Dkt. 5-19).

Petitioner then filed a brief on appeal in the Michigan Court of Appeals that raised five claims. Among them was the claim she now presents in her habeas petition:

I. Where the defense to the element of penetration on each of the three CSC 1 counts of conviction was forcible rape, appellant was denied her federal and state constitutional rights to due process of law, to present a defense, and to trial by jury (US Const., Ams VI, XIV; Const 1963, art. 1, §§ 17, 20) when the trial court committed structural error by rejecting the defense instruction on involuntary actus reus, and by giving a misleading and inaccurate instruction that the actus reus was not involuntary (and thus not shown), unless appellant was unconscious, or subject to an involuntary bodily movement such as a spasm or a seizure; as a result the prosecution was unconstitutionally relieved of its obligation to prove the essential element of actus reus to the jury beyond a reasonable doubt.

Pet. at 3 (Dkt. 1).

The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion, finding that the jury was adequately instructed regarding the voluntary act element. Simon, 2016 WL 3365242 at *3. That court accepted Petitioner's premise that when a person is overcome through the use of physical force to engage in sexual penetration, she does not engagein a voluntary act, and that she could not be guilty of first-degree criminal sexual conduct. Id. But it found, in the following statement, that the trial court's instructions on voluntariness fairly presented this principle to the jury:

[W]e agree with defendant that, where sexual penetration occurs against a defendant's will only because a defendant is physically overcome through force, there is no voluntary act by the defendant. Rather, as opposed to being the perpetrator of criminal sexual conduct, the defendant 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 'victims' involuntarily."). In such circumstances, the sexual penetration would not occur under the defendant's control, nor would it be done because the defendant wanted it done. [People v. Likine, 823 N.W.2d 50, 66, 66 n.49, 492 Mich. 367, 394, 394 n.49.] Accordingly, defendant could defend the CSC I charges on the basis that the sexual penetrations were involuntary, and she was entitled to a jury instruction on involuntariness.

. . .

In our judgment, the court's instructions on CSC I fairly presented the issue of whether defendant's sexual conduct was involuntary. Consistent with Likine, the trial court instructed the jury that an act was involuntary when it "did not occur under the defendant's control, and she was truly powerless to prevent its occurrence." SeeLikine, 492 Mich. at 394. This broad explanation of involuntariness encompassed defendant's claim that her actions were involuntary because the victim physically overcame her and forced her to submit to sexual conduct against her will. In other words, had the jury believed defendant's version of events, it would have found her not guilty of CSC I on the basis of this instruction. Considered as a whole, the instruction given was sufficient to protect defendant's rights and she has not shown a reasonable probability of a different outcome had more detailed instructions on her specific claim been given to the

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