PEOPLE OF MI V DEREK ANTHONY GRAVES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 5, 2009
Plaintiff-Appellee,
v
No. 287730
Kent Circuit Court
LC No. 07-001178-FH
DEREK ANTHONY GRAVES,
Defendant-Appellant.
Before: Stephens, P.J., and Cavanagh and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree criminal sexual
conduct, MCL 750.520c(1)(h). He was sentenced as an habitual offender, third offense, MCL
769.11, to a prison term of four to 30 years. He appeals as of right. We reverse. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
Defendant, who was 38 years at the time of the charged offense, was convicted of
sexually assaulting the 15-year-old complainant. The testimony indicated that defendant sucked
the complainant’s breast while in the presence of the complainant’s mother. A DNA sample
taken from the complainant’s breast matched defendant’s DNA. The critical issues at trial were
whether the complainant was “mentally disabled” or “mentally incapable,” whether defendant
was “in a position of authority over” her, and whether defendant used his authority “to coerce the
victim to submit.” MCL 750.520c(1)(h)(ii).
According to the complainant’s mother, Michelle Shullenberger, she met defendant
shortly after he moved in next door to her at an extended stay motel, Casa Via. She testified that
the relationship consisted of occasional sexual relations with no dates. At some point defendant
met the complainant but was not in her residence more than twice. According to Mrs.
Shullenberger, the complainant knew defendant “[j]ust as the man next door and she knew I
liked him and she thought he was a good guy.”
On January 15, 2007, a school holiday, defendant came to Shullenberger’s room at
approximately 8:30 a.m. At that time, he was no longer living at Casa Via. When Shullenberger
opened the door, she told him that the complainant was there, and he said he was “just gonna sit
for awhile.” He brought in an energy drink and beer and sat in a chair. At some point, the
complainant sat on defendant’s lap. Shullenberger testified, “As I recall he asked her to come
over.” While the complainant was on defendant’s lap, her shirt was removed. Shullenberger
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was unsure if he removed it or if the complainant did, but Shullenberger thought that defendant
asked the complainant to take it off and she did so. Defendant put his mouth on the
complainant’s breast. Shullenberger testified that she was “in shock.” “I started saying stuff to
him, to the fact of what if I was sitting there with a 15 year old boy doin’ that, don’t you see
somethin’ wrong in it? And the two of them weren’t listening, they just kept—I just heard
sucking noises and saw that he was on her breast.” Shullenberger did not think that she could go
over and “try to drag him out, because he was very strong.” She did not think she could move
him, and she did not want to make him angry. She also recalled that he was able to lift her one
time. Shullenberger said, “if you guys go in the bed and somethin’ happens, I will call the
police,” but she did not think anything more would happen. However, the complainant and
defendant moved to the bed in the efficiency apartment. Shullenberger believed that defendant
went on the bed first “because I remember [the complainant] getting in the bed, covering him up
almost if he was a baby tryin’ to comfort him.” The complainant also got in the bed. At that
point, Shullenberger testified, she “had to take a chance of just goin’ out of the room that
hopefully nothing would happen, but I knew I had to call them.” She left to call the police, but
defendant stayed. When Shullenberger got off of the phone, defendant tried to talk to her, but
she cried and waited for him to leave and then went back to the room.
The police apprehended defendant after he drove away from Casa Via. He admitted
visiting Shullenberger and the complainant but denied that the complainant sat on his lap or that
he touched her breasts.
The complainant, who was 17 years old at the time of trial, testified that she could not
recall defendant touching or sucking on her breasts. She recognized defendant and described
him as “my mama’s boyfriend.” She did not know if he came to their room at Casa Via or if he
lived next door.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction
under MCL 750.520c(1)(h)(ii), which applies where a person engages in sexual contact with
another person if:
(h) That other person is mentally incapable, mentally disabled, mentally
incapacitated, or physically helpless, and any of the following:
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(ii) The actor is in a position of authority over the victim and used this
authority to coerce the victim to submit.
When reviewing the sufficiency of the evidence in a criminal case, this Court must view
the evidence in a light most favorable to the prosecution to determine whether a rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable doubt.
People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
Defendant contends that there was insufficient evidence of “mentally disability” or
“mental incapacity” on the part of the complainant to support his conviction.
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At the time of trial, the complainant was attending an alternative school and was taking
classes in history, social studies, math, and language arts. According to the complainant, the
school that she attended before that was a “regular school.”
Shullenberger testified that the complainant had been in special education since at least
2001 because of her very low IQ. “They said she works at a second grade level and I guess she
was considered half her age.” She was able to read “[s]imple books like a little child would
read.” “They’re basic, simple, like Tom and Jerry or Dick and Jane books.” Although the
complainant testified that she had never used a computer, according to Shullenberger the
complainant “seems to be pretty well able to” use a computer. “I think that’s--’cause they’ve
taught her the computer for a very long time.” The complainant was able to take a shower, dress
herself, and use the bathroom. She was able to buy something at the store and know
approximately how much money she should get back. She was also able to make her own food
or get a snack. The complainant was learning to cook. “She started collecting recipes and when
she would go to the store she would bring things home and start making her own dishes
basically.” When she lived at Casa Via, the complainant walked a couple blocks to school by
herself.
According to Officer Carl Frederick, the complainant “did not appear to be quite as alert
as most 15 year olds we deal with. Most 15 year olds are able to explain everything quite
clearly. I guess I want to say function almost like an adult, where this 15 year old seemed much
younger, less mature.” She told him that she was not able to read and write and was unable to
write a statement.
Margaret Dayton, a sexual assault nurse who examined the complainant after the
incident, testified that she indicated on a form that the complainant was “learning disabled” and
had “mild mental retardation” based on information from Shullenberger. Dayton testified that
her impression was consistent with that description. Dayton testified, “She was calm and
cooperative and, you know, talked to me, answered questions and such, but she was vague and
almost didn’t seem normal. Didn’t seem to recognize that this situation was not normal. She
seemed to think everything was--that it was okay.” “I think she clearly--seemed to clearly
understand that [sic] what had went on, but I didn’t get the feeling that she understood
thoroughly what the implications were.”
“Mentally incapable,” defined by MCL 750.520a(g), “means that a person suffers from a
mental disease or defect which renders that person temporarily or permanently incapable of
appraising the nature of his or her conduct.” The statutory language “is meant to encompass not
only incapability of appraising the physical act but also “an appreciation of the nonphysical
factors, including the moral quality of the act, that accompany such an act.” People v Breck, 230
Mich App 450, 455; 584 NW2d 602 (1998).
Although the complainant knew the 38-year-old defendant as her mother’s boyfriend,
there was no evidence that she was cognizant of the inappropriate or unusual nature of the sexual
contact by him in her mother’s presence. Shullenberger described that, as she protested, “the two
of them weren’t listening . . . .” When defendant lay in the bed, the complainant covered him up,
“almost if he was a baby tryin’ to comfort him,” and got in the bed. According to Dayton, the
complainant did not understand that the situation was not normal and did not seem to understand
thoroughly the implications of what had happened. Viewing this evidence in a light most
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favorable to the prosecution, a reasonable juror could conclude that, because of her mental
“disease or defect,” the complainant was “mentally incapable,” i.e., “incapable of appraising the
nature of her conduct.” MCL 750.520a(g).
Moreover, the evidence was also sufficient to conclude that the complainant was
“mentally disabled,” which is an alternative to “mentally incapable,” for the purposes MCL
750.520c(1)(h). “Mentally disabled,” defined under MCL 750.520a(g), “means that a person has
mental illness, is mentally retarded, or has a developmental disability.” “Mentally retarded,”
defined under MCL 750.520a(i) “means significantly subaverage general intellectual functioning
which originates during the developmental period and is associated with impairment in adaptive
behavior.” Shullenberger’s description of the complainant’s IQ--her functioning at a level of
half of her age, her inability to read and write, and her apparent deficits in ability to recollect--is
adequate evidence for a reasonable jury to conclude that the complainant was “mentally
disabled” because she was “mentally retarded.”
Defendant also argues that there was no evidence that defendant used “a position of
authority over” the complainant to coerce her. MCL 750.520c(1)(h)(ii).
The complainant was not asked about her relationship with defendant, except when
defense counsel asked, “Derek never bossed you around or anything like that, did he?,” and the
complainant responded, “Not as far as I can remember, sir.” The complainant testified that
defendant “was my mama’s boyfriend.” Asked what, in her opinion, is a boyfriend, the
complainant responded, “Someone who cares and loves another person.” The complainant
mother testified that the defendant had had little contact with the complainant and did not have
authority to excuse the complainant from school, was not listed as her emergency contact at
school, and had “basically no legal authority” over her.
The authoritative position required by the statute need not be a formal one, such as a
teacher or psychotherapist. People v Reid, 233 Mich App 457, 473; 592 NW2d 767 (1999), lv
den 461 Mich 899 (1999). A defendant may act in a position of authority because of the role that
the complainant’s parents allowed the defendant to play. Id. at 468. Thus, in Reid, the
complainant’s father knew the defendant through their jobs. The complainant’s father spoke to
the defendant about problems that the complainant was having at school. The defendant said that
he used to be a counselor at church and offered to help by talking with the complainant. The
Court concluded that the evidence was sufficient to establish that the defendant held a position of
authority because the parents “placed him in a position of authority over the complainant,
particularly at times when they allowed the complainant to spend time with the defendant outside
their presence, and the complainant was aware of this.” Id. at 468.
In this case, the trial court explained its reasoning with respect to defendant’s “position of
authority” when it denied defendant’s motion for directed verdict:
Now, it’s obvious that Mr. Graves is not a day-care provider, or a high
school principal, or a physician, or clinician, or counselor, or anything of that sort.
But those are authority figures who have authority not by virtue of access
typically to the complaining witness’s household, but by virtue of their position in
an out-of-the-home setting . . . . Here what’s alleged is something closer, a
relationship which gives Mr. Graves access to [the complainant’s] home itself.
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***
And, certainly, [the complainant], although she may have cognitivefunctioning difficulties, recognized Mr. Graves as a person in a close personal
relationship with her mother.
It should also be noted that there is a significant age disparity here.
According to the Information, the defendant was born October 16, 1968. [the
complainant] testified that she was born May 31st, 1991. . . . Twenty-three years
or something in the way of age difference between the parties, virtually a
generation. So, certainly [the complainant] would look at Mr. Graves as being
someone in the same general age range as her mother, and since he was,
obviously, a person very close to her mother, it seems to me [she] would naturally
look to him as an authority figure, even if we can’t define the relationship with
great precision.
Certainly, [the complainant] could see that Mr. Graves had access to her
residence by virtue of the relationship he had with her mother, and he was in there
at least on regular occasions. So it’s hard to imagine that this is not seen by the
child as having some kind of authoritative aspect to it.
We disagree with the trial court’s reasoning. The position that defendant held with
respect to the complainant was derived from his relationship with her mother. In the
complainant’s view, he was Shullenberger’s “boyfriend.” Whether a parent’s boyfriend has a
“position of authority” with respect to the child depends on the circumstances, including the
parties’ conduct and perceptions. There was no testimony that the defendant had ever acted as a
surrogate parent for the complainant or had spent an appreciable amount of time with her.
Unlike the defendant in Reid, the complainant’s mother did not seek or accept defendant’s
assistance in counseling her child. The fact that the incident was carried out in front of the
complainant’s mother is certainly bizarre, but that fact alone is insufficient to imply informal
authority. The circumstances in this case were very different from those in People v Knapp, 244
Mich App 361, 370; 624 NW2d 227 (2001), where the Court opined that coercion may be shown
through evidence of exploitation of a victim’s special vulnerability. In Knapp the defendant was
a teacher who clearly had authority over the student victim. In that context the Court reasoned
that age difference allowed coercion without the use of force. The Knapp court also made note
of the fact that the victim’s mother had encouraged a high level of trust between Knapp and the
victim. The court did not find that the difference in age and size, alone were sufficient to create
a “position of authority.”
In the present case, there was no evidence that the complainant was tricked into the
contact or that she feared defendant. Shullenberger was asked for her opinion about the reason
for the complainant’s actions:
Q. Okay. It may be hard for us to understand, but why would [the complainant]
go over and sit on this man’s lap?
A. Well, she is very easily attracted to African-Americans.
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Q. Okay. Is she naïve?
A. No, I just don’t think she has [sic] a good judge of character. She just wanted
somebody to care about her and she didn’t know the person real well.
A reasonable juror could not conclude, beyond a reasonable doubt, that defendant used his
position of authority to coerce the complainant to submit. Therefore, the evidence was
insufficient to support defendant’s conviction.
Reversed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Donald S. Owens
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