Opinion
No. 350317
09-10-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH DRE MOORE, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-009597-01-FC Before: LETICA, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM
Following a bench trial, the trial court acquitted defendant of first-degree criminal sexual conduct, but convicted him of third-degree criminal sexual conduct (CSC-3), MCL 750.520d(1)(b). Although defendant committed the assault in 2000, the evidence gathered during the victim's sexual assault examination was not tested until several years later. DNA evidence identified defendant as the assailant. Defendant now contends that insufficient evidence supports that the victim suffered "personal injury," requiring reversal. We affirm.
I. BACKGROUND
The victim testified that defendant carjacked and raped her in the early morning hours of June 29, 2000, while she sat at a red light. The victim gave several statements to officers and medical personnel that morning. Although her contemporaneous accounts and her testimony nearly 20 years later were not identical, the basic story is clear. The victim was in the area because she missed her freeway exit and was trying to find her way back home after work. The victim was sitting at a red light when a man forced his way into her car at gunpoint. The man pushed the victim to the passenger seat and drove off. At some point, the man stopped the vehicle on a dark street. He ordered the victim into the vehicle's backseat where he forcibly inserted his penis into her vagina. During the sexual assault, the man either punched or hit the victim in the face with a gun.
The victim suffered bruising below her right eye and in her inner thighs as a result of the assault. During the victim's sexual assault examination, medical personnel took several samples that remained untested until 2018. A forensic scientist then matched the DNA collected in the victim's rape kit to defendant. Defendant initially denied knowing the victim. He later asserted that in 2000, he was a drug dealer and the victim was a customer who had consensual sex with him.
Ultimately, the court expressed some disbelief of the victim's account and acquitted defendant of CSC-1, while convicting him of the lesser offense of CSC-3.
II. ANALYSIS
We review de novo a challenge to the sufficiency of the evidence, "viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). "When reviewing the sufficiency of the evidence, appellate courts must not interfere with the fact-finder's role of deciding credibility." People v Wang, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 158013); slip op at 14, citing People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Ultimately, it is for the trier of fact, rather than the appellate court, "to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (quotation marks and citation omitted).
To convict a defendant of CSC-3 in violation of MCL 750.520d(1)(b), the prosecution must establish that (1) the defendant sexually penetrated the victim (2) through force or coercion. People v Green, 313 Mich App 526, 537-538; 884 NW2d 838 (2015). Undoubtedly, the prosecution proved the first element of this offense beyond a reasonable doubt. The victim testified that defendant raped her by putting his penis in her vagina. The prosecution offered independent evidence to support the victim's testimony—that DNA definitively matching defendant's profile was uncovered during the victim's sexual assault examination.
Defendant contends, however, that the evidence did not suffice to establish the second element. MCL 750.520d(1)(b) defines "force or coercion" as the term is defined in MCL 750.520b(1)(f). That statute provides that a defendant commits CSC-1 if he accomplishes sexual penetration as follows:
The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes, but is not limited to, any of the following circumstances:
(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.The Supreme Court has also stated that the requisite force or coercion is that which "allow[s] the accomplishment of sexual penetration when absent that force the penetration would not have occurred." People v Carlson, 466 Mich 130, 140; 644 NW2d 704 (2002).
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that 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. [MCL 750.520b(1)(f).]
The victim testified that defendant accomplished the sexual penetration by force. Specifically, he ordered the victim into the backseat of the vehicle, limited her movement, and punched or pistol whipped her in the face to accomplish the penetration. The victim's testimony standing alone was sufficient to establish force. See People v Solloway, 316 Mich App 174, 181; 891 NW2d 255 (2016); People v DeLeon, 317 Mich App 714, 719; 895 NW2d 577 (2016). However, the bruises to the victim's face and inner thighs corroborated her version of events.
Defendant's complaint that the prosecutor failed to establish "personal injury" is misplaced. MCL 750.520d(1)(b) directs the reader to the definition of "force or coercion" in the CSC-1 statute. MCL 750.520b(1)(f) provides that CSC-1 can be accomplished by committing two acts: by causing personal injury and by force or coercion. MCL 750.520d(1)(b) does not incorporate the personal-injury element of MCL 750.520b(1)(f), only the force-or-coercion elements. The personal injury showing is what distinguishes first and third-degree CSC offenses from one another. Compare MCL 750.520d(1)(b) with MCL 750.520b(1)(f). If this Court were to construe MCL 750.520d(1)(b) as incorporating the personal injury element set forth in MCL 750.520b(1)(f), there would be no difference between the elements for first and third-degree CSC. Because defendant was convicted of third-degree CSC under MCL 750.520d(1)(b), there was no requirement for the prosecution to prove beyond a reasonable doubt that the victim sustained a personal injury.
We affirm.
/s/ Anica Letica
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher