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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v KIMBERLY STARKS, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH WEAVER, J. The presented issue presented is

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 19,2005

No. 126756

whether in this

the case

prosecution to establish

sufficient

evidence

criminal assault and thus bind defendant over on the charge of assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 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. against We reverse the dismissal of the charge concluding that the prosecution

defendant,

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 locking out door of to the that room room, and she closed asked the the

automatically

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 clothes employee entered in the entered the the room and that when to that put

room,

defendant

pretended the

washing

machine.

Thus,

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 NW2d 612

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(1983), that consent is always a defense to the crime of assault involving with intent to commit criminal The sexual conduct who was

sexual

penetration.

complainant,

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 commit was charged sexual with assault with intent to

criminal

conduct

involving

sexual

penetration, MCL 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

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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 The complainant stated that as

and undoing his pants.

defendant was about to perform fellatio, Manigault opened

The incident occurred on June 30, complainant was born on February 19, 1988. The complainant testified that defendant perform fellatio on another program in that resident's room.
2

1

2001.

The

he had observed resident of the

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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 Manigault

the laundry room door, it was shut and locked.

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

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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 the dismissal On remand, the Court of Appeals affirmed of the an charge.4 assault, In the determining Court of whether Appeals

defendant stated:

committed

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, MCL 750.92; Worrell, supra, that was not the charge the prosecutor sought to bind over to circuit court for trial. The evidence

3 4

467 Mich 889 (2002).

People v Starks, unpublished opinion per curiam of the Court of Appeals, issued June 22, 2004 (Docket No. 244478).

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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 (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, MCL 750.520g(1). [471 Mich 904 (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 NW2d 702 (2001). "A

magistrate has a duty to bind over a defendant for trial if

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it appears that a felony has been committed and there is probable cause to believe that the defendant committed the felony." Id., citing MCL 766.13.5

MCL 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." Nickens, 470 Mich 622, 627; 685 NW2d 657 (2004). People v 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.

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

In this case, the magistrate was bound by this Court's decision in People v Worrell. Under Worrell, the magistrate may not have abused his discretion in refusing to bind defendant over. But as will be explained, Worrell was wrongly decided. Because we overrule that decision, it does not bar binding defendant over on the charge of assault with intent to commit criminal sexual conduct involving sexual penetration.

5

8


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 NW2d 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. But the consent cannot be

coerced or fraudulently obtained, must be given by one who is legally capable of consenting to such a deed, and cannot "`relate to a matter as to which consent will not be

recognized as a matter of law.'" Boyce, Criminal an Law (3d ed), p

Id., quoting Perkins & 154. Thus, and has when one or an

attempts offensive assault.

intentional, of a

unconsented, person, one

harmful committed

touching

In Worrell, supra at 622, this Court concluded that consent is always a defense to assault with intent to

commit criminal sexual conduct, reasoning that "[i]f the other person is a willing partner to the physical act, there can be no assault because there is no reasonable apprehension of immediate injury." We disagree.

As explained in Nickens, one is guilty of an assault when one attempts an intentional, unconsented, and harmful or offensive touching. Moreover, consent must be given by

one who is legally capable of giving consent to the act.

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Nickens, supra at 630.

MCL 750.520d(1)(a) states that a

person is guilty of third-degree criminal sexual conduct if the person engages in sexual penetration with another

person and that person is at least thirteen but younger than sixteen years old.6 child cannot legally Accordingly, a thirteen-year-old to sexual penetration with

consent

another person because sexual penetration of a thirteenyear-old child is automatically third-degree criminal

sexual conduct.7 who was thirteen

Therefore, the complainant in this case, years in old, could not consent to the

attempted

touching

this

case--fellatio--and

defendant's

attempt to commit fellatio, if proven, would amount to an attempt to commit an intentional, unconsented, and harmful or offensive touching, which, by definition, is an assault. As noted by Justice Boyle in her dissent in Worrell: [I]n the case of a victim under 16 years of age and [at least] 13 years of age[,] the elements of assault with intent to commit thirddegree criminal sexual conduct may be made out by

MCL 750.520b(1)(b)(iii) states that a person is guilty of first-degree criminal sexual conduct if he or she engages in sexual penetration with another person, that person is at least thirteen but younger than sixteen years old, and the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit. And it could be first-degree criminal sexual conduct if other factors are present.
7

6

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evidence sufficient to permit the factfinder to conclude that the defendant had the specific intent to commit sexual penetration, and that a showing of force or coercion is not required in the case of an underage victim. If force or coercion were necessary elements of the offense in the case of an underage victim, then the young victim would have no greater protection from sexual assaults than an adult victim. We believe this result to be inconsistent with the criminal sexual conduct act's provisions which provide greater protection from sexual conduct for persons under 16 years of age. [Worrell, supra at 633.] Therefore, Worrell's incorrect conclusion that consent is always a defense to the crime of assault with intent to commit criminal sexual conduct involving sexual penetration is overruled.8

See also People v McDonald, 9 Mich 150, 152-153 (1861)(consent does not negate assault with intent to commit rape), and People v Goulette, 82 Mich 36, 39; 45 NW 1124 (1890) (the victim's own acts would form no justification for the defendant to assault her with intent to violate her person because the victim was under the age of consent). As recently noted, the doctrine of stare decisis is not applied mechanically to prevent this Court from overruling previous decisions that are erroneous. Although we overrule precedent with caution, we may overrule a prior decision when we are certain that it was wrongly decided and "`"less injury will result from overruling it than from following it."'" People v Davis, 472 Mich 156, 168 n 19; 695 NW2d 45 (2005), quoting People v Moore, 470 Mich 56, 69 n 17; 679 NW2d 41 (2004), quoting McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904). Additionally, there are no relevant "reliance" interests involved and overruling Worrell will not produce any "practical realworld dislocations." See Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000).

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Defendant asserts that even if Worrell is overruled, the district court properly dismissed the charge against her because the evidence at most shows some preparation to commit a crime, but does not demonstrate an "overt act" with the intent As with to achieve by to sexual Boyle criminal be penetration. in her We

disagree. assault involving attempted

noted intent

Justice commit can

dissent, conduct from the

sexual

sexual

penetration

distinguished conduct "by

third-degree

criminal

sexual

proximity of the defendant to the completed act." 634-635. conduct

Id. at

"[A]ssault with intent to commit criminal sexual involving penetration is an attempt to commit

third-degree criminal sexual conduct plus a greater degree of proximity." Id. at 635.

The evidence presented at the preliminary examination suggests that defendant, an employee of the facility, asked the complainant, fellatio out of a on the resident, him room whether he wanted sent her to

perform resident

after and

defendant closed the

another

automatically

locking door. remove his

Defendant then instructed the complainant to pants, and the complainant unzipped and

unbuttoned his pants at defendant's request.

Defendant was

observed by another employee bending over in front of the complainant less than two feet from him while the

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complainant held up his unzipped, unbuttoned pants.

The

complainant testified that defendant was about to commit fellatio when the other employee walked into the room and that when the other employee entered the room, defendant pretended to put clothes in the washing machine. The

evidence suggests that, but for the other employee entering the room, defendant would have completed the act. the complainant was thirteen years old and Further, could not

legally consent to an act of fellatio.

Thus, the evidence

presented suggests more than mere preparation; it suggests a greater degree of proximity to the completed act. Therefore, there was probable cause to believe that defendant committed assault with intent to commit criminal sexual conduct involving sexual penetration, and the Court of Appeals affirmance of the dismissal of the charge is reversed. This case is remanded to the circuit court with

the instruction that the circuit court remand this case to the district court for proceedings consistent with this

opinion. Elizabeth A. Weaver Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.

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S T A T E

O F

M I C H I G A N


SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v KIMBERLY STARKS, Defendant-Appellee. _______________________________ CAVANAGH, J. (concurring). I agree with the majority that the prosecution No. 126756

presented sufficient evidence to bind defendant over on the charge of assault with intent to commit criminal sexual conduct (CSC) involving sexual penetration, MCL

750.520g(1).

In my view, however, it is unnecessary to

reach the issue whether the thirteen-year-old complainant could consent to the underlying act as a matter of law for purposes of MCL 750.520g(1), and therefore whether People v Worrell, 417 Mich 617; 340 NW2d 612 (1983), must now be overruled. Here, the prosecutor presented sufficient

evidence demonstrating that the complainant did not consent to the underlying act. Therefore, the evidence was

sufficient to bind defendant over on the charge of assault with intent to commit CSC involving sexual penetration.

Accordingly, the district court abused its discretion by not binding defendant over for trial. A district court has a duty to bind a defendant over for trial if, at the conclusion of the preliminary

examination, there is probable cause to believe that the defendant committed a felony. MCL 766.13. A district

court's decision whether to bind a defendant over for trial is reviewed for an abuse of discretion. 463 Mich 558, 561; 621 NW2d 702 (2001). Here, examination complainant's the evidence that introduced defendant in a youth at the preliminary of the People v Stone,

showed

was

one

supervisors

detention

program.

Defendant was monitoring the complainant and another boy while the boys did their laundry. Using her position of

authority, defendant ordered the other boy out of the room and arranged in to the be alone with laundry the thirteen-year-old Once alone,

complainant

locked

room.1

defendant asked the complainant if he wanted her to perform

Defendant's coworker testified that the door to the laundry room was usually kept open while laundry was being done. But when the coworker later confronted defendant and the complainant in the laundry room, the door was closed.

1

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fellatio

on

him.

The

complainant

did

not

respond.2

Defendant then ordered the complainant to pull his pants down. was The complainant did as he was told. about to perform fellatio, As defendant coworker The

defendant's

unlocked and opened the door, interrupting defendant.

complainant testified that defendant then began cursing at him, pretending as if the complainant had done something to her, and also pretending that she was doing laundry. After considering this evidence, the district court concluded there was not probable cause to believe that an assualt was committed, noting: Now, the question that is before this Court is was the complainant in fear, and there is no testimony on the record that he was placed in fear of any battery. He pulled down his pants. * * *

[The prosecutor]: Okay. Now when you say that she said do you want your private part sucked, is that the words that she used, or did she call it something else? [The complainant]: She called it something else. [The prosecutor]: What did she call it? [The complainant]: She used the word private part as dick. [The prosecutor]: Okay. [The complainant]: No. Did you answer her?

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The Court in this particular -- If this was a criminal sexual conduct first degree, the authority of the defendant would have been an element or a factor to take a CSC three to a CSC one. However, there is nothing on this record that he was placed in fear. A battery is a forceful violent touching of a person. The Court does not believe that the proofs have been established to show that there is probable cause that a crime was committed. There is no -- There is no evidence of the defendant [sic, the complainant] being placed in fear. On the basis of the evidence presented, I would conclude that the district court abused its discretion by not

binding defendant over for trial because there was probable cause to believe with that defendant to commit committed CSC the crime of

assault

intent

involving

sexual

penetration. The elements of assault with intent to commit CSC

involving sexual penetration are (1) an assault and (2) an intent to commit CSC involving sexual penetration. People The

v Nickens, 470 Mich 622, 627; 685 NW2d 657 (2004).

first element, an assault, can occur in one of two ways. First, an assault can occur from an unlawful act that

places another in reasonable apprehension of receiving an immediate Alternatively, battery an assault (apprehension-type can occur from an assault). attempt to

commit a battery (attempted-battery assault).

Id. at 628.

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A "`battery is an intentional, unconsented and harmful or offensive something touching closely of the person with of the another, person.'" or of Id.

connected

(citation omitted; emphasis added).

Generally, a battery

does not occur when the recipient validly consents to the touching. Here, Id. at 630. the prosecutor presented sufficient evidence

that the complainant was placed in reasonable apprehension of receiving an immediate battery, i.e., an unconsented

offensive touching, and, thus, there was probable cause to believe assault. that defendant committed an apprehension-type

Moreover, even if the district court's conclusion

that the complainant was not placed in fear is accorded great weight, there was still sufficient evidence that an attempted-battery basis of the cause assault nonetheless proffered that the occurred. evidence, On there did the was not

prosecutor's to believe

probable

complainant

consent and, thus, there was probable cause to believe that defendant committed an attempted-battery assault.

Defendant used her position of authority to isolate the complainant and subsequently ordered him to remove his

pants so that she could perform fellatio.

In other words,

there was probable cause to believe that the complainant's

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compliance

with

his

supervisor's

order

was

not

a

manifestation of his consent. Thus, I agree with the majority that the prosecution presented sufficient evidence to bind defendant over on the charge of assault with intent to commit CSC involving

sexual penetration.

However, I would not reach the issue

whether the complainant could consent to the underlying act because, at the very least, there is probable cause to believe that the complainant did not consent to the act. Therefore, the district court abused its discretion by not binding defendant over for trial on the charge of assault with intent to commit CSC involving sexual penetration. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman

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