PEOPLE OF MI V ERIC STEVEN CARLSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 9, 2001
Plaintiff-Appellant,
v
No. 228566
Ottawa Circuit Court
LC No. 00-023763-AR
ERIC STEVEN CARLSON,
Defendant-Appellee.
Before: Wilder, P.J., and Hood and Cavanagh, JJ.
CAVANAGH, J. (dissenting).
I respectfully dissent and would affirm the decision of the circuit court which held that
there was insufficient evidence of force or coercion to bind defendant over.
Whether sexual penetration was accomplished by force or coercion is determined in light
of all of the circumstances, including but not limited to the use of or threat of physical force or
violence. People v Crippen, 242 Mich App 278, 282-283; 617 NW2d 760 (2000). The majority
has compared the instant facts to those found in People v Brown, 197 Mich App 448; 495 NW2d
812 (1992). However, in Brown the defendant gave money to a man who physically brought the
victim to the defendant’s house for the purpose of having sex with the defendant, the woman was
naked and crying in the bedroom, she stated that she did not want to be there, she stated that she
did not want to have sex with the defendant, she continued to cry during and after the assault, and
she requested to go home. Id. at 450, 452.
The majority also compares the instant case to that of People v Kline, 197 Mich App 165;
494 NW2d 756 (1992). However, in Kline the defendant was the victim’s stepfather, the victim
believed that she was being forced to remove her undergarments, the defendant grabbed the
victim’s breasts at the same time he told her to remove her undergarments and not to tell her
mother, and one instance of penetration occurred in an isolated area of the house. Id. at 167.
I disagree that this case is similar to Brown and Kline. I also disagree that the totality of
the circumstances establishes sufficient evidence of sexual penetration accomplished by force or
coercion. There was no evidence that the victim was intimidated, helpless, afraid, crying, in a
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vulnerable state, position, or condition, or being physically assaulted in any other way. Although
there is no specific set of circumstances that establishes the force or coercion requirement,
precedent requires that the totality of the circumstances lead to the conclusion that some form of
force or coercion existed. In this case, I would hold that there was insufficient evidence of force
or coercion, consistent with the intent of the statute, to bind defendant over.
/s/ Mark J. Cavanagh
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