PEOPLE OF MI V KIMBERLY STARKS
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 19,2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126756
KIMBERLY STARKS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
The
presented
issue
presented
sufficient
is
evidence
whether
in
this
the
case
prosecution
to
establish
criminal assault and thus bind defendant over on the charge
of assault with intent to commit criminal sexual conduct
involving
sexual
penetration,
MCL
750.520g(1).
The
district court dismissed the charge against defendant, and
the circuit court affirmed.
On remand from this Court for
consideration as on leave granted, the Court of Appeals
also affirmed.
against
We reverse the dismissal of the charge
defendant,
concluding
that
the
prosecution
presented sufficient evidence to bind defendant over on the
charge of assault with intent to commit criminal sexual
conduct involving sexual penetration.
An assault may be established by showing that one has
attempted
an
intentional,
unconsented,
offensive touching of a person.
and
harmful
or
The evidence presented at
the preliminary examination suggests that after defendant
sent
another
person
out
automatically
locking
of
door
the
to
room
that
and
room,
closed
the
asked
the
she
complainant whether he wanted her to perform fellatio on
him, instructed the complainant to remove his pants, and
was observed bending over in front of the complainant, who
had unzipped and unbuttoned his pants at the defendant’s
request, less than two feet from him.
The complainant
testified that defendant was about to commit fellatio when
another
employee
employee
entered
clothes
in
the
entered
the
the
room,
washing
room
and
defendant
machine.
that
when
pretended
Thus,
to
the
that
put
evidence
presented suggests more than mere preparation to commit the
act;
it
suggests
a
great
degree
of
proximity
to
the
completed act.
Further, we reject the argument that the complainant
could
consent
to
the
act
and
overrule
the
incorrect
conclusion in People v Worrell, 417 Mich 617; 340 NW2d 612
2
(1983), that consent is always a defense to the crime of
assault
with
involving
intent
sexual
to
commit
penetration.
criminal
The
sexual
complainant,
conduct
who
was
thirteen years old at the time of the incident, could not
consent to an act of fellatio.
Because a thirteen-year-old
child cannot consent to sexual penetration, consent by such
a victim is not a defense to the crime of assault with
intent to commit criminal sexual conduct involving sexual
penetration.
Therefore, there was probable cause to believe that
defendant committed assault with intent to commit criminal
sexual conduct involving sexual penetration and defendant
should have been bound over on the charge.
We remand this
case to the circuit court with the instruction that the
circuit court remand this case to the district court for
proceedings consistent with this opinion.
I
Defendant
commit
was
criminal
charged
with
sexual
assault
conduct
with
intent
involving
to
sexual
penetration, MCL 750.520g(1), following an incident at the
Pause
Program
at
Herman
Kiefer
facility for delinquent boys.
Hospital,
a
detention
Defendant was an employee of
3
the program.
The complainant was a resident of the program
and was thirteen years old at the time of the incident.1
At
the
preliminary
examination,
the
complainant
testified that he and another boy were in the laundry room
with defendant doing laundry.
Donavonne Manigault, another
employee of the program, testified that the laundry room
door
locked
automatically
when
it
was
shut.
Manigault
further explained that the door to the laundry room was
kept open if laundry was “being done, or something like
that,”
and
was
kept
closed
at
any
other
times
so
that
residents would not have access to the room.
The
complainant
testified
that
defendant
asked
the
other boy to leave the laundry room and then closed the
door behind him.
She then asked the complainant whether he
would like her to perform fellatio on him like she had on
another resident in the program2 and told him to pull down
his pants.
The complainant complied, unbuckling his belt
and undoing his pants.
The complainant stated that as
defendant was about to perform fellatio, Manigault opened
1
The incident occurred on June 30,
complainant was born on February 19, 1988.
2
The complainant testified that
defendant perform fellatio on another
program in that resident’s room.
4
2001.
The
he had observed
resident of the
the
door
and
interrupted
them.
Defendant
then
began
yelling at the complainant, acting as if the complainant
had done something to her, and tried to look as though she
were putting clothes in the washing machine.
Manigault testified that after taking a break from the
floor, he returned and noticed that defendant was not on
the floor, so he began looking for her.
When he approached
the laundry room door, it was shut and locked.
Manigault
used his key to open the door and, when he entered the
laundry room, he saw defendant bending over in front of the
washing
machine
and
the
less than two feet away.
complainant
standing
behind
her
He stated that the complainant’s
belt was unbuckled, his pants were unbuttoned and unzipped,
and the complainant was holding his pants up so that they
would not fall down.
After hearing the testimony offered by the complainant
and Manigault, the district court refused to bind defendant
over on the charge, finding that there was not probable
cause to believe a crime was committed.
The district court
explained that there was not evidence that the complainant
had
been
placed
in
fear
of
any
battery
and
therefore
dismissed the charge.
The
prosecutor
appealed,
and
affirmed the dismissal of the charge.
5
the
circuit
court
The circuit court
reasoned that there was no evidence that defendant touched
the complainant or threatened him with violence or force
and that there was no overt act done in perpetration of the
alleged crime.
Therefore, there was not probable cause
concerning the assault element.
The prosecutor appealed to the Court of Appeals, which
initially denied leave to appeal.
But this Court remanded
the case to the Court of Appeals for consideration as on
leave granted.3
the
dismissal
defendant
On remand, the Court of Appeals affirmed
of
the
committed
an
charge.4
assault,
In
the
determining
Court
of
whether
Appeals
stated:
The evidence showed that after arranging to
be alone with a thirteen-year-old boy, defendant
offered to perform fellatio on him and told him
to pull down his pants, which he started to do.
Defendant did not expressly threaten to harm the
boy;
there is no evidence that she made any
threatening gestures; the boy gave no indication
that he was apprehensive of being injured or
harmed in any way or that he was complying with
defendant’s plan against his will. Although this
evidence may have established probable cause to
believe defendant attempted to commit criminal
sexual conduct, MCL 750.92; Worrell, supra, that
was not the charge the prosecutor sought to bind
over to circuit court for trial.
The evidence
3
467 Mich 889 (2002).
4
People v Starks, unpublished opinion per curiam of
the Court of Appeals, issued June 22, 2004 (Docket No.
244478).
6
presented at the preliminary examination failed
to establish probable cause to believe that
defendant committed an assault.
Therefore, the
district court did not err in dismissing that
charge, and the circuit court properly affirmed
that ruling.
But despite its ruling, the Court of Appeals urged this
Court
to
reexamine
and
overrule
the
Worrell
decision
because it believed that Justice Boyle’s dissent in Worrell
offered the better analysis.
The Court of Appeals agreed
with Justice Boyle that “the complainant’s consent, or lack
of consent, is not germane in a prosecution for assault
with
intent
to
commit
criminal
sexual
conduct
involving
penetration with a child under the age of sixteen.”
The prosecutor sought leave to appeal, and this Court
granted leave to appeal, instructing the parties to include
among the issues briefed
whether People v Worrell, 417 Mich 617 (1983),
was properly decided, and whether the prosecution
presented sufficient evidence in this case to
establish a criminal assault and to bind over
defendant on the charge of assault with intent to
commit
criminal
sexual
conduct
involving
penetration, MCL 750.520g(1).
[471 Mich 904
(2004).]
II
A trial court’s decision whether to bind a defendant
over for trial is reviewed for an abuse of discretion.
People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).
“A
magistrate has a duty to bind over a defendant for trial if
7
it appears that a felony has been committed and there is
probable cause to believe that the defendant committed the
felony.”
Id., citing MCL 766.13.5
MCL 750.520g(1) provides that “[a]ssault with intent
to
commit
criminal
sexual
conduct
involving
sexual
penetration shall be a felony punishable by imprisonment
for not more than 10 years.”
The elements of the crime are
“(1) an assault, and (2) an intent to commit [criminal
sexual conduct] involving sexual penetration.”
People v
Nickens, 470 Mich 622, 627; 685 NW2d 657 (2004).
It is the
first element that is disputed in the present case.
An assault may be established by showing either an
attempt to commit a battery or an unlawful act that places
another
in
reasonable
immediate battery.
apprehension
Id. at 628.
of
receiving
an
The first type of assault
is characterized as “attempted-battery assault”; the second
is
characterized
as
“apprehension-type
assault.”
Id.
Battery has been defined as “‘an intentional, unconsented
5
In this case, the magistrate was bound by this
Court’s decision in People v Worrell.
Under Worrell, the
magistrate may not have abused his discretion in refusing
to bind defendant over. But as will be explained, Worrell
was wrongly decided. Because we overrule that decision, it
does not bar binding defendant over on the charge of
assault with intent to commit criminal sexual conduct
involving sexual penetration.
8
and harmful or offensive touching of the person of another,
or of something closely connected with the person.’”
Id.,
quoting People v Reeves, 458 Mich 236, 240 n 4; 580 NW2d
433 (1998).
The use of force against a person is not
considered a battery if the recipient consents to what is
done.
Nickens, supra at 630.
But the consent cannot be
coerced or fraudulently obtained, must be given by one who
is legally capable of consenting to such a deed, and cannot
“‘relate
to
a
matter
as
to
which
consent
will
not
be
recognized as a matter of law.’”
Id., quoting Perkins &
Boyce,
154.
Criminal
attempts
an
offensive
Law
(3d
intentional,
touching
of
a
ed),
p
Thus,
unconsented,
person,
one
and
has
when
one
harmful
or
committed
an
assault.
In Worrell, supra at 622, this Court concluded that
consent
is
always
a
defense
to
assault
with
intent
to
commit criminal sexual conduct, reasoning that “[i]f the
other person is a willing partner to the physical act,
there can be no assault because there is no reasonable
apprehension of immediate injury.”
We disagree.
As explained in Nickens, one is guilty of an assault
when one attempts an intentional, unconsented, and harmful
or offensive touching.
Moreover, consent must be given by
one who is legally capable of giving consent to the act.
9
Nickens, supra at 630.
MCL 750.520d(1)(a) states that a
person is guilty of third-degree criminal sexual conduct if
the
person
engages
in
sexual
penetration
with
another
person and that person is at least thirteen but younger
than sixteen years old.6
child
cannot
legally
Accordingly, a thirteen-year-old
consent
to
sexual
penetration
with
another person because sexual penetration of a thirteenyear-old
child
sexual conduct.7
who
was
attempted
is
automatically
third-degree
criminal
Therefore, the complainant in this case,
thirteen
touching
years
in
old,
this
could
not
consent
case—fellatio—and
to
the
defendant’s
attempt to commit fellatio, if proven, would amount to an
attempt to commit an intentional, unconsented, and harmful
or offensive touching, which, by definition, is an assault.
As noted by Justice Boyle in her dissent in Worrell:
[I]n the case of a victim under 16 years of
age and [at least] 13 years of age[,] the
elements of assault with intent to commit thirddegree criminal sexual conduct may be made out by
6
MCL 750.520b(1)(b)(iii) states that a person is
guilty of first-degree criminal sexual conduct if he or she
engages in sexual penetration with another person, that
person is at least thirteen but younger than sixteen years
old, and the actor is in a position of authority over the
victim and uses this authority to coerce the victim to
submit.
7
And it could be first-degree criminal sexual conduct
if other factors are present.
10
evidence sufficient to permit the factfinder to
conclude that the defendant had the specific
intent to commit sexual penetration, and that a
showing of force or coercion is not required in
the case of an underage victim.
If force or
coercion were necessary elements of the offense
in the case of an underage victim, then the young
victim would have no greater protection from
sexual assaults than an adult victim. We believe
this result to be inconsistent with the criminal
sexual conduct act’s provisions which provide
greater
protection
from
sexual
conduct
for
persons under 16 years of age.
[Worrell, supra
at 633.]
Therefore, Worrell’s incorrect conclusion that consent is
always a defense to the crime of assault with intent to
commit criminal sexual conduct involving sexual penetration
is overruled.8
8
See also People v McDonald, 9 Mich 150, 152-153
(1861)(consent does not negate assault with intent to
commit rape), and People v Goulette, 82 Mich 36, 39; 45 NW
1124 (1890) (the victim’s own acts would form no
justification for the defendant to assault her with intent
to violate her person because the victim was under the age
of consent).
As recently noted, the doctrine of stare decisis is
not applied mechanically to prevent this Court from
overruling previous decisions that are erroneous. Although
we overrule precedent with caution, we may overrule a prior
decision when we are certain that it was wrongly decided
and “‘“less injury will result from overruling it than from
following it.”’”
People v Davis, 472 Mich 156, 168 n 19;
695 NW2d 45 (2005), quoting People v Moore, 470 Mich 56, 69
n 17; 679 NW2d 41 (2004), quoting McEvoy v Sault Ste Marie,
136 Mich 172, 178; 98 NW 1006 (1904). Additionally, there
are
no
relevant
“reliance”
interests
involved
and
overruling Worrell will not produce any “practical realworld dislocations.” See Robinson v Detroit, 462 Mich 439,
466; 613 NW2d 307 (2000).
11
Defendant asserts that even if Worrell is overruled,
the district court properly dismissed the charge against
her because the evidence at most shows some preparation to
commit a crime, but does not demonstrate an “overt act”
with
the
intent
disagree.
assault
As
with
to
achieve
noted
by
intent
Justice
to
involving
sexual
attempted
third-degree
sexual
Boyle
commit
penetration
penetration.
in
criminal
can
criminal
be
her
dissent,
sexual
conduct
distinguished
sexual
conduct
conduct
from
“by
proximity of the defendant to the completed act.”
634-635.
We
the
Id. at
“[A]ssault with intent to commit criminal sexual
involving
penetration
is
an
attempt
to
commit
third-degree criminal sexual conduct plus a greater degree
of proximity.”
Id. at 635.
The evidence presented at the preliminary examination
suggests that defendant, an employee of the facility, asked
the
complainant,
perform
resident
fellatio
out
locking door.
remove
his
of
a
resident,
on
the
him
whether
after
room
and
he
wanted
defendant
closed
the
sent
her
to
another
automatically
Defendant then instructed the complainant to
pants,
and
the
complainant
unzipped
unbuttoned his pants at defendant’s request.
and
Defendant was
observed by another employee bending over in front of the
complainant
less
than
two
12
feet
from
him
while
the
complainant held up his unzipped, unbuttoned pants.
The
complainant testified that defendant was about to commit
fellatio when the other employee walked into the room and
that when the other employee entered the room, defendant
pretended
to
put
clothes
in
the
washing
machine.
The
evidence suggests that, but for the other employee entering
the room, defendant would have completed the act.
the
complainant
was
thirteen
years
old
legally consent to an act of fellatio.
and
Further,
could
not
Thus, the evidence
presented suggests more than mere preparation; it suggests
a greater degree of proximity to the completed act.
Therefore, there was probable cause to believe that
defendant committed assault with intent to commit criminal
sexual conduct involving sexual penetration, and the Court
of Appeals affirmance of the dismissal of the charge is
reversed.
This case is remanded to the circuit court with
the instruction that the circuit court remand this case to
the
district
court
for
proceedings
consistent
opinion.
Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
13
with
this
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126756
KIMBERLY STARKS,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring).
I
agree
with
the
majority
that
the
prosecution
presented sufficient evidence to bind defendant over on the
charge of assault with intent to commit criminal sexual
conduct
(CSC)
750.520g(1).
involving
sexual
penetration,
MCL
In my view, however, it is unnecessary to
reach the issue whether the thirteen-year-old complainant
could consent to the underlying act as a matter of law for
purposes of MCL 750.520g(1), and therefore whether People v
Worrell, 417 Mich 617; 340 NW2d 612 (1983), must now be
overruled.
Here,
the
prosecutor
presented
sufficient
evidence demonstrating that the complainant did not consent
to
the
underlying
act.
Therefore,
the
evidence
was
sufficient to bind defendant over on the charge of assault
with
intent
to
commit
CSC
involving
sexual
penetration.
Accordingly, the district court abused its discretion by
not binding defendant over for trial.
A district court has a duty to bind a defendant over
for
trial
if,
at
the
conclusion
of
the
preliminary
examination, there is probable cause to believe that the
defendant committed a felony.
MCL 766.13.
A district
court’s decision whether to bind a defendant over for trial
is reviewed for an abuse of discretion.
People v Stone,
463 Mich 558, 561; 621 NW2d 702 (2001).
Here,
the
examination
evidence
showed
complainant’s
introduced
that
supervisors
at
defendant
in
a
the
was
youth
preliminary
one
detention
of
the
program.
Defendant was monitoring the complainant and another boy
while the boys did their laundry.
Using her position of
authority, defendant ordered the other boy out of the room
and
arranged
complainant
in
to
the
be
alone
locked
with
laundry
the
thirteen-year-old
room.1
Once
alone,
defendant asked the complainant if he wanted her to perform
1
Defendant’s coworker testified that the door to the
laundry room was usually kept open while laundry was being
done. But when the coworker later confronted defendant and
the complainant in the laundry room, the door was closed.
2
fellatio
on
him.
The
complainant
did
not
respond.2
Defendant then ordered the complainant to pull his pants
down.
was
The complainant did as he was told.
about
to
perform
fellatio,
As defendant
defendant’s
coworker
unlocked and opened the door, interrupting defendant.
The
complainant testified that defendant then began cursing at
him, pretending as if the complainant had done something to
her, and also pretending that she was doing laundry.
After considering this evidence, the district court
concluded there was not probable cause to believe that an
assualt was committed, noting:
Now, the question that is before this Court
is was the complainant in fear, and there is no
testimony on the record that he was placed in
fear of any battery. He pulled down his pants.
* * *
2
[The prosecutor]: Okay.
Now when you say
that she said do you want your private part
sucked, is that the words that she used, or did
she call it something else?
[The complainant]: She called it something
else.
[The prosecutor]: What did she call it?
[The complainant]: She used the word private
part as dick.
[The prosecutor]: Okay.
[The complainant]: No.
3
Did you answer her?
The Court in this particular -- If this was
a criminal sexual conduct first degree, the
authority of the defendant would have been an
element or a factor to take a CSC three to a CSC
one.
However, there is nothing on this record
that he was placed in fear.
A battery is a forceful violent touching of
a person.
The Court does not believe that the proofs
have been established to show that there is
probable cause that a crime was committed. There
is no -- There is no evidence of the defendant
[sic, the complainant] being placed in fear.
On the basis of the evidence presented, I would conclude
that
the
district
court
abused
its
discretion
by
not
binding defendant over for trial because there was probable
cause
to
assault
believe
with
that
defendant
intent
to
committed
commit
CSC
the
crime
involving
of
sexual
penetration.
The
elements
of
assault
with
intent
to
commit
CSC
involving sexual penetration are (1) an assault and (2) an
intent to commit CSC involving sexual penetration.
People
v Nickens, 470 Mich 622, 627; 685 NW2d 657 (2004).
The
first element, an assault, can occur in one of two ways.
First,
an
assault
can
occur
from
an
unlawful
act
that
places another in reasonable apprehension of receiving an
immediate
Alternatively,
battery
an
assault
(apprehension-type
can
occur
from
assault).
an
commit a battery (attempted-battery assault).
4
attempt
to
Id. at 628.
A “‘battery is an intentional, unconsented and harmful or
offensive
touching
something
closely
of
the
person
connected
with
of
the
(citation omitted; emphasis added).
another,
or
person.’”
of
Id.
Generally, a battery
does not occur when the recipient validly consents to the
touching.
Id. at 630.
Here,
the
prosecutor
presented
sufficient
evidence
that the complainant was placed in reasonable apprehension
of
receiving
an
immediate
battery,
i.e.,
an
unconsented
offensive touching, and, thus, there was probable cause to
believe
assault.
that
defendant
committed
an
apprehension-type
Moreover, even if the district court’s conclusion
that the complainant was not placed in fear is accorded
great weight, there was still sufficient evidence that an
attempted-battery
basis
of
probable
the
assault
prosecutor’s
cause
to
believe
nonetheless
occurred.
On
the
there
was
proffered
evidence,
that
complainant
the
did
not
consent and, thus, there was probable cause to believe that
defendant
committed
an
attempted-battery
assault.
Defendant used her position of authority to isolate the
complainant
and
subsequently
ordered
him
pants so that she could perform fellatio.
to
remove
his
In other words,
there was probable cause to believe that the complainant’s
5
compliance
with
his
supervisor’s
order
was
not
a
manifestation of his consent.
Thus, I agree with the majority that the prosecution
presented sufficient evidence to bind defendant over on the
charge
of
assault
sexual penetration.
with
intent
to
commit
CSC
involving
However, I would not reach the issue
whether the complainant could consent to the underlying act
because, at the very least, there is probable cause to
believe that the complainant did not consent to the act.
Therefore, the district court abused its discretion by not
binding defendant over for trial on the charge of assault
with intent to commit CSC involving sexual penetration.
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
6
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.
