PEOPLE OF MI V MICHAEL EDWARD KEITH JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 10, 2008
Plaintiff-Appellee,
v
No. 276081
Ottawa Circuit Court
LC No. 06-030274-FC
MICHAEL EDWARD KEITH, JR.,
Defendant-Appellant.
Before: Jansen, P.J., and Zahra and Gleicher, JJ.
PER CURIAM.
A jury convicted defendant of three counts of first-degree criminal sexual conduct (CSC
I), MCL 750.520b(1)(a) (victim under 13). The trial court sentenced defendant to concurrent
terms of 108 months’ to 240 months’ imprisonment for each conviction. We affirm.
During the summer of 2003, defendant babysat for the victim and the victim’s brothers.
The victim was then six-years-old, and her brothers ranged in age from seven to 10 years. The
victim described three specific occasions during that summer on which defendant entered her
bedroom, took off her pants and underwear, and “put his private in mine.” She testified that the
assaults caused her to experience pain, but denied that they caused her to bleed. Defendant
informed her that if she told anyone about what happened, he would hurt her family.
The victim first revealed the abuse several years later, after attending a school program
concerning “safe and unsafe touches” that included a video presentation entitled, “Break the
Silence.” Dr. N. Debra Simms, a pediatrician specializing in child abuse and neglect, examined
the victim, and testified that she possessed an intact hymen, but had a posterior labial adhesion
that “could have” been caused by a genital injury three years earlier. Based on an interview of
the victim “and the fact that her physical examination was consistent with the statements that she
made,” Simms concluded that the victim had “probably” suffered sexual abuse. Simms further
explained that the majority of child sexual assault cases involve “vulvar coitus” rather than
penetration of the vagina, because a six-year-old child would bleed, “scream and yell,” and
immediately report vaginal penetration. In Simms’s opinion, the victim’s description of what
occurred was consistent with “rubbing along the outside of the vulvar structures but between the
lips.”
Defendant first contends that the trial court erred by amending the information in
response to his motion for a directed verdict of acquittal. The original information alleged three
-1-
counts of “sexual penetration to-wit: penal [sic]/vaginal with [the victim], said person being
under 13 years of age; contrary to MCL 750.520b(1)(a).” Defendant argued in the trial court that
Dr. Simms’s testimony established that no “penetration of the victim’s vagina by . . . defendant’s
penis” occurred. The trial court denied defendant’s motion, and amended the information to
substitute “penile/genital opening” in place of “penal [sic]/vaginal” contact.
We review for an abuse of discretion a trial court’s decision to amend the information.
People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003). “Both MCL 767.76 and
MCR 6.112(H) authorize a trial court to amend an information before, during, or after trial.” Id.
at 686. The court’s ability to amend an information is circumscribed by the requirement that
amendment may not “unfairly surprise or prejudice the defendant.” MCL 6.112(H).
Unacceptable prejudice includes the provision of inadequate notice or an insufficient opportunity
to defend. People v Hunt, 442 Mich 359, 364; 501 NW2d 151 (1993).
Defendant contends that the trial court’s amendment of the information deprived him of a
fair trial because he had previously rejected the prosecutor’s offer to add alternative counts of
second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a). Defendant complains
that the prosecutor “knew” that the evidence would not prove “penile/vaginal penetration,” but
instead demonstrated only “sexual contact,” consistent with a CSC II charge. According to
defendant, he refused the prosecutor’s offer to add alternate CSC II charges “for strategic reasons
and without any knowledge that the prosecutor would be seeking to establish penetration of
anything other than penis into vagina,” and he would have accepted the prosecutor’s offer had he
known that the information would be amended.
“Where the original information is sufficient to inform a defendant of the nature of the
charge against him, the defendant is not prejudiced by an amendment to cure a defect in the
information.” People v Newson, 173 Mich App 160, 164; 433 NW2d 386 (1988). At the time of
the offense, MCL 750.520a(o)1 defined “sexual penetration” as “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or
of any object into the genital or anal openings of another person’s body, but emission of semen is
not required.” In People v Bristol, 115 Mich App 236, 237-238; 320 NW2d 229 (1981), this
Court held that the Legislature intended the phrases “intrusion, however slight,” and “genital …
openings” within the definition of “sexual penetration” to include any intrusion between the labia
majora. Therefore, even if the prosecutor here failed to present proof of vaginal penetration,
evidence of penetration of the victim’s labia majora could satisfy the “sexual penetration”
element of CSC I. Id.
The original information sufficiently informed defendant that the prosecutor intended to
prove penetration of the victim’s genital opening. In People v Stricklin, 162 Mich App 623, 633;
413 NW2d 457 (1987), we upheld the defendant’s CSC I conviction despite an amendment of
the information “to reflect a variance in the type of penetration.” This Court observed in
Stricklin that the amended information did not allege a new crime, and did not deprive the
defendant of an opportunity to defend at trial. Id. We similarly conclude that the amendment of
1
Former subsection (o) currently appears as subsection (r).
-2-
the instant information to specify the precise type of sexual penetration committed by defendant
did not prejudice him.
We additionally reject defendant’s claim that he would have agreed to the addition of
alternate CSC II charges if he had known that the information would be amended. At trial,
defendant vehemently denied that he ever touched any portion of the vicitm’s body with his
penis, and he does not specifically explain on appeal how, if facing CSC II charges, his trial
defense would have differed. Furthermore, defendant could have requested an instruction for
CSC II, but failed to do so. We thus conclude that the amendment did not unfairly surprise
defendant or deprive him of a sufficient opportunity to present a defense.
Defendant next argues that insufficient evidence supported his CSC I convictions because
the prosecutor failed to prove penile-vaginal penetration. We review de novo defendant’s
sufficiency of the evidence claims. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105
(2001). “When determining whether sufficient evidence has been presented to sustain a
conviction, a court must view the evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399-400; 614
NW2d 78 (2000) (internal quotation omitted).2
To establish CSC I as charged in this case, the prosecutor had to prove “sexual
penetration with another person,” and that the other person “is under 13 years of age.” MCL
750.520b(1)(a). Defendant does not dispute that the victim was under 13 years of age. As we
have previously discussed, evidence of penetration of the labia majora fulfills the “sexual
penetration” requirement of the statute. Bristol, supra at 237-238. Viewing the evidence in the
light most favorable to the prosecutor, the victim’s testimony provided the jury with sufficient
evidence to conclude that defendant sexually penetrated her. The victim repeatedly identified
defendant as her assailant, testified that defendant “put his private in mine,” and that after each
incident, her “private hurt.” In addition, Dr. Simms testified that the victim “described [the
assault] as being inside, which would mean along the inner labial lips.” Although defendant
maintains that the victim’s version of events contained inconsistencies undermining her
credibility, “[t]his Court will not interfere with the trier of fact’s role of determining the weight
of the evidence or the credibility of witnesses.” People v Passage, 277 Mich App 175, 177; 743
NW2d 746 (2007). We conclude that the record contains sufficient evidence to support a
rational jury’s determination beyond a reasonable doubt that defendant committed all three CSC
I counts, and that the trial court properly denied his motion for a directed verdict. People v
Strunk, 184 Mich App 310, 325; 457 NW2d 149 (1990).
Defendant finally argues that the trial court erred by denying his motion for a new trial.
We review for an abuse of discretion a trial court’s denial of a motion for a new trial. People v
Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000). Defendant has not fully briefed this
argument, his entire analysis of which consists of one paragraph. A party may not simply
2
A similar standard governs this Court’s review of a trial court’s ruling on a motion for directed
verdict. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
-3-
announce a position and leave it for this Court to discover and rationalize the basis for his claim.
People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001). Nevertheless, because we
have determined that the trial court did not err when it amended the information and denied
defendant’s motion for a directed verdict of acquittal, we conclude that the trial court did not
abuse its discretion in denying the motion for new trial.
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
