PEOPLE OF MI V ANDRE FARAH BOND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 16, 2007
Plaintiff-Appellant,
v
No. 267679
Washtenaw Circuit Court
LC No. 05-000093-FH
ANDRE FARAH BOND,
Defendant-Appellee.
Before: Talbot, P.J., and Cavanagh and Meter, JJ.
CAVANAGH, J. (dissenting).
I respectfully dissent. I would affirm the trial court’s order that vacated the CSC II jury
conviction and entered a CSC IV conviction. The evidence, even when viewed in a light most
favorable to the prosecution, would not lead a rationale trier of fact to find the essential elements
of CSC II proved beyond a reasonable doubt. See People v Aldrich, 246 Mich App 101, 122;
631 NW2d 67 (2001).
In particular, the prosecution had to establish that defendant was in a position of authority
over the victim and that he used that authority to coerce the victim to submit to sexual contact.
See MCL 750.520c(1)(b)(iii); People v Usman, 428 Mich 902; 406 NW2d 824 (1987). Although
I agree with the majority that defendant was in a position of authority over the victim, I disagree
that he used that authority to coerce the victim to submit to sexual contact. The facts as
established at trial included that defendant walked into a room that he claimed was his office and
called for the victim to “come here.” When she entered the room defendant grabbed her, pulled
her close, grabbed her buttocks, “grinded” on her, and then tried to unbutton her pants. As the
trial court noted, the victim testified that (1) she was shocked when the act occurred, (2) she
never consented to the touching, and (3) as soon as she could, she pushed defendant away and
left the area.
Even if coercion was proved, which I question, the victim did not “submit to” the sexual
contact. The definition of “submit” includes “to give over or yield to the power or authority of
another,” “to yield oneself to the power or authority of another,” and “to allow oneself to be
subjected to some kind of treatment.” Random House Webster’s College Dictionary (1997). In
other words, there is an element of volition; the phrase “to submit to” implies that one had a
choice. In this case, the assault happened so unexpectedly and quickly that the victim could not
immediately or instantaneously respond. The victim cannot reasonably be said to have yielded
to, or allowed herself to be subjected to, defendant’s sexual contact because she was concerned
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about his authority over her. Any time lapse between defendant’s sexual contact and the victim’s
rejection of it was because of the unexpected and quick nature of the assault, not because of the
victim’s choice.
The majority’s conclusion that the victim submitted to defendant’s sexual contact with
her buttocks, but only rejected defendant’s sexual contact when he attempted to unbutton her
pants is contrary to the victim’s own testimony. The victim very clearly testified that she reacted
to, and rejected, the assault as soon as she was able. As repulsive as defendant’s purported
behavior was, it was not the behavior proscribed by MCL 750.520c(1)(b)(iii).
I would affirm.
/s/ Mark J. Cavanagh
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