PEOPLE OF MI V ERIC STEVEN CARLSON
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED MAY 29, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 118915
ERIC STEVEN CARLSON,
Defendant-Appellant.
________________________________
PER CURIAM
The defendant was charged with third-degree criminal
sexual conduct (CSC III), but the district court refused to
bind the defendant over to stand trial.
affirmed.
The circuit court
The Court of Appeals reversed and remanded for
clarification of the district court judgment.
Because the
district court’s decision in this matter, perhaps based on
dicta in People v Patterson, 428 Mich 502; 410 NW2d 733
(1987), may have been improperly influenced by a view that the
prosecution had to present evidence that defendant “overcame”
the victim, we vacate the judgment of the Court of Appeals and
remand this case to the district court for reconsideration
consistent with this opinion.
I
This case concerns a January 23, 2000, incident involving
two students of the same high school, about six months apart
in age.
"using
Charged with third-degree criminal sexual conduct
force
penetration,"
defendant
was
or
in
coercion
violation
brought
preliminary examination.
to
of
before
accomplish
MCL
the
the
sexual
750.520d(1)(b)1,
district
court
the
for
a
The factual record in this case
consists of the transcript of that proceeding.
The complainant was a sixteen-year-old tenth grader when
these events occurred.2
She had known the defendant between
eighteen and twenty-four months.
January
1
23,
2000,
incident,
About two weeks before the
defendant
had
driven
the
MCL 750.520d(1) provides:
A person is guilty of criminal sexual conduct
in the third degree if the person engages in sexual
penetration with another person and if any of the
following circumstances exist:
* * *
(b) Force or coercion is used to accomplish
the sexual penetration. Force or coercion includes
but is not limited to any of the circumstances
listed in [MCL 750.520b(1)(f)(i) to (v)].
2
The factual account set forth in this opinion comes
from the testimony of the complainant on direct examination at
the defendant’s preliminary examination. This case has not
been tried, and we treat these facts as true only for the
purpose of our present analysis.
2
complainant
to
the
parking
lot
of
a
Meijer
store
where
consensually he digitally penetrated her and she manually
masturbated him.
On January 23, the defendant telephoned the complainant
after school to ask if she wanted to "hang out."
She agreed.
He picked her up in an automobile and drove her to the parking
lot of a YMCA.
The complainant allowed the defendant to
unbutton her blue jeans and to digitally penetrate her.
The
complainant testified, “He started making out again, the same
stuff, and then wanted to have sex with me and I said no. He
asked me why.
I just said because I don't want to.”
After an
interval, the defendant repeated his request that they have
sexual
intercourse.
The
complainant
explaining that she “didn’t want to.”
he
could
just
stick
[it]
in
once
again
said
“no,”
“He [next] asked me if
and
I
said
no.”
He
essentially repeated the question several times, and she would
not answer him “[bec]ause I didn’t want to answer him any
more.”
She acknowledged that she did not physically restrain
or push him away and then said, “He stuck it in anyways and
kept moving and asked me if I was enjoying it and I said I
didn’t want to do it.”
When asked how he got it in, she said,
“He got on top of me and put it in.”
II
The assistant prosecutor moved that the defendant be
bound over for trial.
In response, defense counsel argued
3
that lack of consent by a complainant is not the same thing as
force or coercion by a defendant.
The assistant prosecutor
disagreed:
There doesn't have to be bruises. There has
to be [sic] against the will.
This was not a
willing partner at this time and that's all the
force that is necessary plus you look at all the
circumstances.
This is your classic example of
date rape. When an individual is a situation [sic]
where I'm not going to take no for an answer, and
he wanted what he wanted, and he took it from her
without her permission when she said no.
That's
force or coercion and that means he should be bound
over, Your Honor.
The district court denied the prosecution’s motion to
bind over defendant on the CSC III charge on the ground that
there was “[in]sufficient evidence of overcoming the victim
through the use of physical force that rises to the level
required by this statute.”
The district court also stated
that there was “no evidence of any threats or coercion here.”
Of particular importance, the district court elaborated:
It is the argument of the prosecutor, that it
is enough that she said no and that they don’t have
to establish that she resisted. It is true that
resistance need not be shown. But there still has
to be, in my opinion, enough---some evidence that
Defendant used physical force to overcome her.
Again, it is the prosecution’s argument that the
fact that she said no yet he continued, got on top
of her and they had these relations; that that
satisfies the definition, or that the facts in that
scenario satisfies [sic] the definition of physical
force intended by the statute.
. . . [T]here has been no evidence presented that
he overcame her in any physical way other than her
testimony that he got on top of her.
And while
it’s not necessary to show lack of resistance, I
believe that the legislature intended and logic
requires that there be some evidence of actual
4
physical force to overcome her.
There’s no
indication, and we’re getting really kind of
detailed here, but there’s no indication he pushed,
or held her down, or forced her legs apart, there’s
no indication he did anything to force her other
than to get on top of her. There’s no indication
of any fear or physical resistance on her part and
even though it’s not necessary that the prosecution
show resistance, there is no indication of any, and
that enters into my judgment as a factor as to
whether or not there was force. [Emphasis added.]
The prosecuting attorney appealed, but the circuit court
affirmed the judgment of the district court.
The circuit
court explained:
Both parties were apparently in such a state
of undress from their admittedly mutually agreeable
sexual activity that no further undressing was
necessary. The Defendant then got on top of her
and inserted his penis into her vagina.
*
*
*
In this case there is no evidence that by
getting on top of her the Complainant was rendered
helpless or that Defendant used superior strength
to overcome her. Although the Prosecuting Attorney
would like the Court to draw that inference it is
just as fair an inference that in doing this
Defendant did nothing more than assume a normal
sexual position.
There is no evidence that
Defendant forced Complainant’s legs apart or placed
her body in a position to receive him. This may
have happened but there is no evidence of it in the
record leaving only speculation for the Court to
draw such a conclusion.
The inference from the
record is just as probable that in addition to no
longer
answering
Defendant’s
questions
about
engaging in sex she also cooperated by placing her
body in a position to receive Defendant just as she
had cooperated in the prior sexual activity.
The Court of Appeals reversed on the ground that two of
5
its earlier decisions3 “clearly establish that when a victim
refuses to engage in sexual activities and the defendant
ignores
the
refusal
and
penetrates
the
victim
anyway,
sufficient evidence exists to satisfy the force or coercion
requirement.”
As an alternative ground for reversal, the
Court cited the “surprise” circumstance described in MCL
750.520b(1)(f)(v), saying that the complainant “may have been
surprised that an acquaintance, defendant, would disregard her
failure to consent and proceed against her wishes.”
The Court of Appeals held that “the examining magistrate
erroneously concluded that the element of force or coercion
had not been established.”
Rather than reverse outright,
however, the Court remanded the case for clarification of the
district court’s opinion, stating that the district court may
have relied in part on its assessment of the complainant’s
credibility.
In
dissent,
Judge
CAVANAGH
distinguished
the
earlier
decisions cited by the majority, and said that the district
court
had
not
insufficient
erred
in
its
evidence
of
force
conclusion
or
that
coercion
to
there
was
bind
the
defendant over for trial.
The defendant has applied to this Court for leave to
appeal.
3
People v Kline, 197 Mich App 165, 166-167; 494 NW2d 756
(1992); People v Brown, 197 Mich App 448, 450-451; 495 NW2d
812 (1992).
6
III
We review for abuse of discretion a district court’s
decision whether to bind a defendant over for trial.
People
v Justice, 454 Mich 334, 344; 562 NW2d 652 (1997).
To the
extent that this inquiry requires examination of the meaning
of the underlying criminal statute, we face a question of law
that we review de novo.
People v Mass, 464 Mich 615, 622; 628
NW2d 540 (2001).
IV
Central to resolution of this case is the meaning of the
phrase “force or coercion” as used in MCL 750.520d(1)(b), the
statutory provision that defendant was accused of violating by
using force or coercion to accomplish a sexual penetration of
the complainant.4
4
This provision states that “[f]orce or coercion
includes but is not limited to any of the circumstances listed
in [MCL 750.520b(1)(f)(i) to (v)].” Emphasis added. In turn,
MCL 750.520b(1)(f)(i) to (v) enumerates the following
circumstances as involving force or coercion:
(i)
When the actor overcomes the victim
through the actual application of physical force or
physical violence.
(ii)
When the actor coerces the victim to
submit by threatening to use force or violence on
the victim, and the victim believes that the actor
has the present ability to execute these threats.
(iii)
When the actor coerces the victim to
submit by threatening to retaliate in the future
against the victim, or any other person, and the
victim believes that the actor has the ability to
execute this threat. As used in this subdivision,
“to retaliate” includes threats of physical
punishment, kidnapping, or extortion.
7
As set forth above, the district court indicated that, to
support the charge of CSC III, there had to be evidence that
defendant “used physical force to overcome” the complainant
and that the prosecution failed to present such evidence in
this case.
This view may have derived from dicta in our
opinion in Patterson, supra. In this regard, we note that the
circuit court, in affirming the district court’s refusal to
bind over defendant, quoted out of context from Patterson,
supra at 523 as follows:
The force to which reference is made is not
the force inherent in the act of penetration but
the force used or threatened to overcome or prevent
resistance by the female. [Emphasis omitted.]5
An understanding of Patterson should begin with the
highly peculiar circumstances of that case.
The defendant in
Patterson was accused of inappropriately touching the victim’s
private area through her underwear while she was asleep.
See
Patterson, supra at 505-506. The prosecution charged him with
fourth-degree criminal sexual conduct (CSC IV) on the basis of
(iv)
When the actor engages in the medical
treatment or examination of the victim in a manner
or for purposes which are medically recognized as
unethical or unacceptable.
(v) When the actor, through concealment or by
the element of surprise, is able to overcome the
victim.
5
This sentence was set forth in Patterson as a quotation
from the decision of the California Court of Appeal in People
v Kusumoto, 169 Cal App 3d 487, 493; 215 Cal Rptr 347 (1985),
which was in turn quoting 3 Wharton, Criminal Law (14th ed),
§§ 287-288, pp 30-34.
8
MCL
750.520e(1)(a),
as
then
in
effect,
which
prohibited
accomplishing sexual contact by “[f]orce or coercion,”6 and
the defendant was convicted of that charge.
at 506, 509.
Patterson, supra
Puzzlingly, the prosecution did not charge the
defendant under a different subsection of the CSC IV statute,
MCL
750.520e(1)(b)
as
then
in
effect,
which
expressly
prohibited having sexual contact with a person “[t]he actor
knows
or
has
helpless.”7
reason
to
know
.
.
.
is
.
.
.physically
This is particularly difficult to understand
because “physically helpless” was specifically defined in the
criminal sexual conduct statute, MCL 750.520a(i) as then in
effect, to include a person who is “asleep.”
Thus, as the
Patterson Court indicated, the alleged conduct in that case
would squarely have fallen under the subsection of the CSC IV
statute that, among other things, prohibited sexual contact
with a “physically helpless” person, but the prosecution did
not rely on that subsection.
Patterson, supra at 510, n 8.
In a quite expansive opinion, this Court rejected the
prosecution’s attempt to fit the facts of Patterson into the
“force or coercion” subsection of the CSC IV statute.
The
actual basis for this holding was set forth as follows:
[T]he Legislature intended to treat sexual
assaults
accomplished
by
force
or
coercion
6
A substantially similar provision is codified in the
present CSC IV statute as MCL 750.520e(1)(b).
7
A substantially similar provision is codified in the
present CSC IV statute as MCL 750.520e(1)(c).
9
separately from assaults on physically or mentally
incapacitated victims.
Our holding is supported by the rules of
statutory construction. Criminal statutes must be
strictly construed.
If this Court were to
interpret defendant’s conduct in this case to be
included within the provisions of subsection 1(a)
of the fourth-degree criminal sexual conduct
statute [prohibiting the use of “force or coercion”
to accomplish sexual contact], this would render
the language of subsection (1)(b) of the statute
[prohibiting, in pertinent part, sexual contact
with a “physically helpless” person] a nullity.
[Patterson, supra at 526-527.]
Simply put, the actual rationale for the holding in Patterson
was
that,
because
the
Legislature
included
a
separate
subsection in the CSC IV statute prohibiting sexual contact
with a “physically helpless” person (including a sleeping
person), it did not view such conduct standing alone as coming
within the “force or coercion” subsection of the statute.8
This
language
in
Patterson,
quoting
the
California
decision in Kusumoto to the effect that the prohibited “force”
with regard to sexual penetration “is not the force inherent
in the act of penetration but the force used or threatened to
overcome or prevent resistance by the female” was mere dicta.
The language from Kusumoto was set forth in connection with
the argument of the defendant in Patterson that this Court
“adopt the approach used in” Kusumoto.
8
Patterson, supra at
Of course, this actual holding of Patterson is
inapposite to the present case in which the complainant was
not sleeping when the sexual penetration at issue occurred,
but rather was awake and conscious of being sexually
penetrated.
10
521.
it
However, nowhere in Patterson did this Court state that
was
actually
adopting
any
rule
of
law
derived
from
Kusumoto. Rather, as set forth above, this Court’s holding in
Patterson was based on an analysis of the structure of the CSC
IV statute without any mention of Kusumoto.9
Having
Patterson
established
was
mere
that
dicta,
the
we
pertinent
now
consider
language
whether
from
the
statutory provision at issue, MCL 750.520d(1)(b), prohibiting
the accomplishment of a sexual penetration by “force or
coercion” includes any requirement of “overcoming” the victim.
As we will explain, we conclude that it does not because
imposing such a requirement would amount to the improper
insertion of an additional element beyond that required by the
statutory language. In other words, if “force or coercion” is
used to accomplish a sexual penetration, the statute has been
violated.
To
be
sure,
the
“force”
contemplated
in
MCL
750.520d(1)(b) does not mean “force” as a matter of mere
physics, i.e., the physical interaction that would be inherent
in an act of sexual penetration, nor, as we have observed,
does it follow that the force must be so great as to overcome
the complainant. It must be force to allow the accomplishment
9
Some confusion might have resulted from this Court’s
use of italics to emphasize the pertinent language in
Kusumoto. See Patterson, supra at 523. This might lead a
hurried reader to incorrectly treat the emphasized language as
a holding of this Court.
11
of sexual penetration when absent that force the penetration
would not have occurred.
“force”
for
a
violation
In other words, the requisite
of
MCL
750.520d(1)(b)
does
not
encompass nonviolent physical interaction in a mechanical
sense
that
penetration.
is
merely
incidental
to
an
act
of
sexual
Rather, the prohibited “force” encompasses the
use of force against a victim to either induce the victim to
submit to sexual penetration or to seize control of the victim
in
a
manner
to
facilitate
the
accomplishment
of
sexual
penetration without regard to the victim’s wishes.
Given this understanding of the CSC III statute, we
conclude that the district court erred in viewing it as
necessary for there to be “some evidence of actual physical
force to overcome” the complainant to support a charge of CSC
III.
While we are uncertain from the record before us, this
error may have affected the district court’s analysis in
declining to bind over defendant for trial.
Accordingly, we
conclude that this case should be remanded to the district
court for reconsideration of whether the evidence presented at
the preliminary examination provided a showing of probable
cause that there was force or coercion used to accomplish
sexual penetration in light of the clarification provided by
this opinion.10
10
In light of our resolution, it is unnecessary to
address the legal conclusions in the Court of Appeals opinion.
12
V
The district court’s indication that a violation of MCL
750.520d(1)(b) requires a showing that a defendant “overcame”
a
victim,
possibly
incorrect.
influenced
by
dicta
in
Patterson
is
Because this error may have affected the district
court’s analysis in this case, we vacate the Court of Appeals
opinion
and
remand
reconsideration,
this
case
consistent
to
with
the
this
district
court
opinion,
of
for
the
prosecution’s request that defendant be bound over for trial
on a charge of CSC III.
We direct the district court to issue
a written decision addressing the present issue within forty
five
days
of
the
release
of
this
opinion.
We
retain
jurisdiction to review this matter following the district
court’s reconsideration.
CORRIGAN , C.J., and CAVANAGH , KELLY , TAYLOR , YOUNG , and MARKMAN ,
JJ., concurred.
13
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
118915
ERIC STEVEN CARLSON,
Defendant-Appellant.
____________________________________
WEAVER, J. (dissenting).
I dissent because I do not believe that a per curiam
opinion is the appropriate means for deciding this case.
Rather, if the Court is going to decide what is meant by the
words “force or coercion,” as used in MCL 750.520d(1)(b), it
should do so after the benefit of briefing and oral argument.
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