From Casetext: Smarter Legal Research

People v. Versluis

Court of Appeals of Michigan
Aug 24, 2023
No. 362019 (Mich. Ct. App. Aug. 24, 2023)

Opinion

362019

08-24-2023

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JASON CHRISTOPHER VERSLUIS, Defendant-Appellant.


UNPUBLISHED

Kent Circuit Court LC No. 21-000630-FC

Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.

PER CURIAM

Defendant appeals as of right his convictions of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b), and two counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(2)(b). The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to 25 to 50 years' imprisonment for the CSC-I count and 10 to 22 years' imprisonment for each count of CSC-II, to be served concurrently. For the reasons stated in this opinion, we vacate defendant's CSC-I conviction and remand for a new trial on that charge.

I. BACKGROUND

This case arises out of disclosures of sexual assault from two child-complainants, AE and NE. At the time of disclosure, defendant was dating NE and AE's mother. Defendant would pick the children up from daycare when their mother had to work. The children disclosed to their father that defendant was touching them when he picked them up from daycare. Specifically, both AE and NE testified at trial that defendant would touch their vagina and buttocks with his hands while wearing gloves. On this basis of this testimony, defendant was convicted of two counts of CSC-II for unspecified sexual touching against AE and NE. Defendant does not challenge these convictions on appeal. Instead, defendant argues that multiple errors were committed in connection with his CSC-I conviction.

Around the time of the disclosures, the children's mother and father had a breakdown of their informal custody arrangement, leading the father to file motions regarding parenting time that were denied.

The majority questions this Court's ruling in Anderson regarding the penetration element and whether the Legislature intended what this Court concluded. I note that our Supreme Court has not disturbed this Court's ruling in Anderson and denied the defendant's application for leave to appeal. People v. Anderson, 507 Mich. 881; 954 N.W.2d 8009 (2021). The Legislature has not further defined the meaning of sexual penetration to exclude acts that this Court has determined the statutory meaning includes. As Justice Marshall explained: "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 178 (1803). I believe that this Court properly exercised its judicial function in Anderson and correctly stated what the law is respecting the scope of the statutory definition of sexual penetration for CSC-I purposes.

The amended felony information charged defendant with CSC-I for one instance of penile-anal sexual penetration. Defendant was bound over on this charge based on NE's testimony at the preliminary examination that once, when she was on her stomach on a living room couch, defendant pulled down her pants and underwear, after which she "felt skin where [her] butt is." NE further testified at the preliminary examination that she felt defendant moving up and down and that something, "a single thing," was touching between her buttocks. In her opening statement at trial, the prosecutor told the jury that it would hear NE testify about this incident.

As noted, NE testified that defendant touched her butt and vagina with his hands. NE testified that on one occasion defendant put his hands between the middle of her buttocks:

Q. So if we're talking about a butt-it's a different thing to talk about, but you've got cheeks, right? And then they come together. There's like a crease in the middle; is that right?
A. Yes.
Q. Do you agree with me? Okay. So would he touch the cheeks part?
A. Yeah.
Q. Okay. Would he do this with his hands or something else?
A. With his hands.
Q. Okay. And what about anytime in the middle part of the cheeks?
A. Once.
Q. Was this also with his hands or something else?
A. With his hands.

The prosecutor then asked, "Was this also with his hands or something else," and NE answered, "With his hands." The prosecutor then began asking NE about an incident she described in the forensic interview when defendant got on top of her and touched her skin. NE recalled telling the interviewer about a time that defendant got on top of her, but she believed she had clothes on. NE explained that the skin contact happened because she had shorts on. After NE could not remember what part of defendant's body was against her skin, the prosecution began to read from NE's forensic interview:

Q. .... Is it his private part?
A. I don't know.
Q. Okay. When you talk[ed] to [the forensic interviewer], you said that you could see that-you could see [defendant's] privates, and you said that you called it his front. Do you remember saying that?
A. No.
Q. Okay. And you said that your butt could feel his privates; do you remember that?
A. No.
Q. And she asked you where could you feel it, and you said in the middle.
A. Yes.
Q. That's right? Okay. And when we're talking about the middle, are we talking about what I kind of said earlier, the middle of the cheeks?
A. Yes.
Q. What do we use the middle part for?
A. To use the bathroom.
Q. Okay. And when [defendant] was doing this, did he have his clothes on or off or something different?
A. I don't know.
Q. Do you remember saying that you could hear him taking his belt off, that you saw him take his belt off?
A. Yes.
Q. Then you told [the forensic interviewer] that he took his pants down and his underwear down?
A. I can't remember that.

After this exchange, the parties had a sidebar with the trial court. The prosecutor resumed direct examination and asked NE if she remembered making specific statements at the preliminary examination. As with the forensic interview, the prosecutor was attempting to refresh NE's memory of the alleged incident of penile-anal penetration, and, once again, NE struggled to remember her past disclosures. In response, the prosecution read from the preliminary examination transcript to question NE about the incident she described occurring on a living room couch:

Q. Okay. And then she asked you about one time when he touched you under your clothes downstairs. Do you remember talking about that?
A. No
Q. So was there a time that it happened in one of those downstairs living rooms?
A. Yes.
Q. Okay. And this time around, you were asked about how you were laying on the couch? Do you remember that?
A. Yes.
Q. And that time you said you were on your tummy?
A. Yes.
Q. Okay. That's right?
A. Yes.
Q. And that time you were asked that if he pulled your pants down, and you said down to your knees; do you remember that?
A. No.
Q. Did you have your pants pulled down?
A. No.
Q. Is this where you were saying earlier you had shorts?
A. Yes.
Q. And they were still on?
A. Yes.
Q. Okay. What about underwear, did you have underwear, was that still there or was that removed?
A. Still there.
Q. Okay. And then you were asked what happened after that, and you said that felt skin. Do you remember that?
A. No.

After this exchange, NE and the jury were excused for a break. The trial court told the prosecutor that she could not continue reading NE's statements from the forensic interview or preliminary examination into the record, but she could ask open-ended questions. The trial court also stated that NE's prior statements could not be used as substantive evidence, except as prior inconsistent statements she made under oath at the preliminary examination, citing MRE 801. The trial court explained that only one statement thus far had met this criteria. At the preliminary examination, NE testified that defendant pulled her pants and underwear down to her thighs. However, NE contradicted that statement at trial when she testified that defendant did not pull down her pants, and instead touched her under her shorts. After the break, the prosecution continued questioning NE, but made no further reference to the forensic interview or preliminary examination.

Beyond AE and NE's testimony, the prosecution presented two other-acts witnesses: women who testified about instances during their childhood in which defendant sexually assaulted them. Defendant's half sister testified that she reported defendant because of incidents in which she was awoken by defendant rubbing himself against her when she was about 10 years old. The other witness testified that, when she was 12 years old, she fell asleep at a party and woke up to defendant kissing her back. Defendant groped her chest, butt, and vagina through her clothing. Defendant had pleaded guilty to charges related to both of these instances.

The prosecution also presented evidence seized from defendant's house, including latex gloves, work gloves, and a diary. The diary included an entry describing defendant's excitement when he did not have deviant thoughts toward children present at a family function. Finally, the prosecution presented statements defendant made to the police in which he denied touching the girls, but explained that, given his history, he told the girls to get off his lap when they were playing video games with him.

After the prosecution concluded its case, defendant made a motion for a directed verdict of acquittal for the CSC-I count, for failure to establish the penetration element. The trial court denied this motion, and defendant was convicted of both CSC-I and CSC-II.

Defendant now appeals.

II. DISCUSSION

Defendant argues that the trial court erred by permitting the prosecution to read statements from the forensic interview and preliminary examination without laying the proper foundation to refresh NE's recollection. We agree.

We disagree with the prosecution that defendant failed to preserve this issue at trial such that plain-error review applies. "In order to properly preserve an issue for appeal, a defendant must raise objections at a time when the trial court has an opportunity to correct the error ...." People v. Pipes, 475 Mich. 267, 277; 715 N.W.2d 290 (2006) (quotation marks and citation omitted). "The purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice." People v. Mayfield, 221 Mich.App. 656, 660; 562 N.W.2d 272 (1997). After the first several questions in which the prosecution read NE's statements from the forensic interview, defendant asked the trial court for a sidebar. The sidebar was not recorded. After this sidebar, the prosecution read from NE's testimony from the preliminary examination transcript. The trial court called for a break and told the prosecutor that she could no longer read from the forensic interview and preliminary examination transcripts, except to the extent that NE made prior inconsistent statements at the preliminary examination. The defendant did not place a specific objection on the record, but the trial court stated that, during the sidebar, the parties discussed the proper way of "using prior statements." It is therefore clear that defense counsel adequately raised and preserved this issue before the trial court.

MRE 612 permits a party to use a writing or object to refresh the memory of a witness. In order to lay a proper foundation, "the proponent must show that (1) the witness's present memory is inadequate, (2) the writing could refresh the witness's present memory, and (3) reference to the writing actually does refresh the witness's present memory." Genna v. Jackson, 286 Mich.App. 413, 423; 781 N.W.2d 124 (2009). "[T]he purpose of refreshing is to awaken the memory, not to impeach or contradict the witness." People v. Thomas, 359 Mich. 251, 262; 102 N.W.2d 475 (1960). If the proponent wishes to refresh the witness's memory, the proponent may offer the writing to the witness to read silently or the jury may be removed for the writing to be read aloud when the circumstances require it. Id. at 262-263. Further:

It is error to permit the prosecution on a criminal trial, against the objection of the [defendant], under pretense of refreshing the recollection of a witness, but where there is no occasion for doing anything by way of refreshing his recollection, to read to him while on the stand, and in presence of the jury, his evidence given on a previous occasion, and then ask him whether, after having heard it read, he recollected certain facts stated in it. [Id. at 263 (quotation marks and citation omitted).]

The prosecution did not lay a proper foundation to refresh NE's memory. NE stated that she did not remember statements that she made at the forensic interview and preliminary examination. However, in response to this, the prosecution did not confirm that NE's memory was inadequate and did not ask whether silently reading or listening to her statements from the forensic interview and preliminary examination would refresh her memory. Instead, the prosecution read portions of the forensic interview and preliminary examination to NE in front of the jury. The trial court erred when it permitted the prosecution to continue reading NE's statements from the forensic interview and preliminary examination, which the prosecution concedes.

We also agree with defendant that the trial court erred when it read a jury instruction on prior inconsistent statements to the jury.

"We review a claim of instructional error involving a question of law de novo, but we review the trial court's determination that a jury instruction applies to the facts of the case for an abuse of discretion." People v. Everett, 318 Mich.App. 511, 528-529; 899 N.W.2d 94 (2017). An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes. People v. Martinez, 307 Mich.App. 641, 646; 861 N.W.2d 905 (2014).

Generally, "[t]he use of prior inconsistent statements of a witness is limited at trial to impeachment purposes." People v. Bonner, 116 Mich.App. 41, 47; 321 N.W.2d 835 (1982). Under MRE 801(d)(1), prior inconsistent statements made under oath at a proceeding are defined as nonhearsay and are admissible as substantive evidence. See People v. Malone, 445 Mich. 369, 377378; 518 N.W.2d 418 (1994).

Over defendant's objection, during final jury instructions, the trial court read M Crim JI 4.5 on inconsistent statements used to impeach a witness:

You have heard evidence that before the trial, a witness made statements that may be inconsistent with their testimony here in court. You may consider an inconsistent statement made before the trial only to help you decide how believable the witness' testimony was when testifying here in court. If the earlier statement was made under oath, then you may also consider the earlier statement as evidence of the truth of whatever the witness said in the earlier statement when determining the facts of this case.

The prosecution requested this instruction on the basis of one inconsistent statement made by NE. As noted, at the preliminary examination, NE testified that defendant pulled down her shorts and underwear, and then NE felt his skin between her buttocks. At trial, NE testified that defendant did not pull down her shorts and underwear. These statements contradict each other.

However, we agree with defendant that a proper foundation was not laid to admit the prior inconsistent statement as substantive evidence. To introduce evidence of a prior inconsistent statement:

[T]he proponent of the evidence must elicit testimony inconsistent with the prior statement, ask the witness to admit or deny making the first statement, then ask the witness to admit or deny making the later, inconsistent statement, allow the witness to explain the inconsistency, and allow the opposite party to cross-examine the witness. [Barnett v. Hidalgo, 478 Mich. 151, 165; 732 N.W.2d 472 (2007), citing in part MRE 613(A); Malone, 445 Mich. at 382-385.]

The prosecutor did not follow this procedure (or anything like it) precisely because the prosecutor was not attempting to impeach NE by introducing a prior inconsistent statement. Rather, the prosecutor was reading excerpts of NE's preliminary examination testimony in an attempt to refresh her collection.

The prosecutor's failure to lay a proper foundation for introduction of the prior inconsistent statement is not mere semantics. This procedure is clearly designed, in part, to highlight for the jury the difference between the witness's current testimony and past statement. Because the prosecutor did not lay a proper foundation, and NE was asked about many prior statements, a reasonable jury would not have been able to discern the single prior inconsistent statement made by NE that was admissible as substantive evidence. We therefore agree with defendant that the prosecutor was not entitled to the prior inconsistent statement instruction, M Crim JI 4.5, and that the trial court's instruction caused undue confusion and constituted an abuse of discretion under the circumstances of this case.

The question thus becomes whether the cumulative prejudice of the combined errors warrants reversal. See People v. LeBlanc, 465 Mich. 575, 591-592 n 12; 640 N.W.2d 246 (2002) ("The term 'cumulative error' refers to cumulative unfair prejudice resulting from several actual errors."); People v. Anderson, 166 Mich.App. 455, 472-473; 421 N.W.2d 200 (1988) ("Although one error in a case may not necessarily provide a basis for reversal, it is possible that the cumulative effect of a number of minor errors may add up to error requiring reversal."). A preserved error justifies reversal if it is more probable than not that it affected the outcome. People v. Lukity, 460 Mich. 484, 495-496; 596 N.W.2d 607 (1999).

To begin, we acknowledge NE testified that defendant penetrated the crease of her buttocks with his hand, and that this testimony was technically sufficient to convict defendant of CSC-I. In order to establish CSC-I, the prosecution was required to prove that defendant sexually penetrated NE. Sexual penetration is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." MCL 750.520a(r). This Court has held that intrusion into the crease of the buttocks constitutes penetration of the "anal opening." People v. Anderson, 331 Mich.App. 552, 561; 953 N.W.2d 451 (2020). While we are not fully convinced that this was the Legislature's intent, we are bound to follow Anderson.

It is clear from the record that the prosecutor was primarily seeking conviction on the basis that defendant penetrated NE with his penis. Indeed, that is the formal charge contained the amended felony information. Once NE did not testify to that effect, however, the prosecutor sought conviction during closing argument on alternative bases, i.e., that defendant penetrated NE either with his penis or fingers:

And so if you look at the jury instructions, the defendant had to engage in a sexual act that involved entry into [NE's] anal opening by any part of the defendant's body of an object. And it can actually be anal opening or genital opening by any part of his body or an object-so again, any part. And she didn't say which part. We couldn't quite get there with her when she was on the stand, but doesn't matter.
And you don't even all have to agree. You know, you could have, you know, when she's testifying you can think if he's on her between-because she did say-the one thing we did get was between the butt cheeks, the middle. That came out. And if you think behind with a grown man and his penis and he's getting behind a little girl, if that's going between there, that's enough. It could be that. It could be his fingers. It could be any other object, actually. It doesn't matter. [Emphasis added.]

In the emphasized statements, the prosecutor was plainly referring to the incident NE described at the forensic interview and preliminary examination regarding defendant getting on top of her and making skin-to-skin contact with a "single thing" going between her buttocks. But it was only through NE's prior statements read into the record by the prosecutor that the jury heard of an incident approximating "a grown man and his penis . . . getting behind a little girl." Thus, while the prosecutor acknowledged that NE "didn't say which part" penetrated her, the prosecutor also strongly suggested to the jury that it could find that defendant committed penile-anal penetration. But this could only be done if the jury relied on the prior statements that were improperly read into the record.

The prosecutor argues that there was no risk of the jury doing so given the instructions. The prosecutor specifically relies on the instruction that the jurors were not to consider statements from the forensic interview as substantive:

You have heard excerpts from [NE's] and [AE's] statements made to the Child Assessment Center. These statements are not evidence. Only their answers to questions during this trial are evidence.

However, even assuming that the jury was able to discern what statements were made in the context of the forensic interview and followed this instruction, this would still leave NE's testimony from the preliminary examination that was improperly read into the record. As discussed, the jury should not have been instructed on M Crim JI 4.5, given that the jury would not have been able to discern the single statement meeting this criteria when the prosecutor engaged in a lengthy line of questioning that involved reading NE's prior statements and asking if she remembered making them. Perhaps more important, the instruction told the jury that the statements made at the preliminary examination could be considered as substantive evidence since they were made under oath. We cannot conclude that the reading of the preliminary examination testimony was harmless based on a jury instruction that itself was erroneous.

The bottom line is that the prosecution sought to convict defendant of CSC-I on the basis of penile-anal penetration and, to that end, improperly read into the record many prior statements made by NE regarding that alleged incident. During closing argument, the prosecutor continued to suggest that the jury could convict defendant on the basis of penile-anal penetration, even though there was no direct evidence to that effect other than the statements and testimony that were improperly read to the jury. For these reasons, it is not possible to determine whether the jury convicted defendant on the basis of penile-anal penetration or digital-anal penetration. "Where one of two alternative theories of guilt is legally insufficient to support a conviction, and where it is impossible to tell upon which theory the jury relied, the defendant is entitled to a reversal of his conviction and a new trial." People v. Grainger, 117 Mich.App. 740, 755; 324 N.W.2d 762 (1982). Because it is more probable than not that the errors affected the outcome, we conclude that defendant is entitled to a new trial on the CSC-I count.

Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

REDFORD, J. (concurring in part and dissenting in part).

I concur with the majority's decision to affirm defendant's conviction of CSC-II, but I respectfully dissent from its decision to vacate his conviction of CSC-I and remand for a new trial on that charged offense.

Defendant argues that the trial court erred by permitting the prosecution to read statements from the forensic interview and preliminary examination without laying the proper foundation to refresh NE's recollection. I agree that the trial court erred, but disagree that this error requires vacating defendant's CSC-I conviction.

Generally, this Court reviews a trial court's decision to admit evidence for an abuse of discretion. People v. Lukity, 460 Mich. 484, 488; 596 N.W.2d 607 (1999). However, the record in this case establishes that defendant did not preserve this issue for appellate review by making an objection on the record that the trial court considered and ruled upon. I disagree with the majority that defendant adequately raised and preserved this issue for appellate review because the parties during a sidebar discussed before the court the proper way of using a prior statement. A sidebar discussion between parties regarding a matter is not equivalent to stating an objection on the record which requires a definitive judicial ruling. The record in this case does not establish that the trial court heard an objection and rendered a decision. This Court "disfavors consideration of unpreserved claims of error." People v. Carines, 460 Mich. 750, 761-762; 597 N.W.2d 130 (1999). Nevertheless, I conclude that this Court's review of this unpreserved claim of error must be for plain error affecting substantial rights. People v. Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015).

Where, as here, defendant has not preserved the claimed error for appellate review, this Court may grant relief if defendant meets the four-part Carines test. Cain, 498 Mich. at 116. Defendant must establish "that (1) an error occurred, (2) the error was 'plain'-i.e., clear or obvious, and (3) the error affected substantial rights-i.e., the outcome of the lower court proceedings was affected." Id. If defendant satisfies the first three elements this Court must exercise its discretion in deciding whether to reverse. Id. "[R]elief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceedings[.]" Id. (quotation marks, alteration, and citations omitted).

I agree with the majority's conclusion that the prosecution did not lay a proper foundation to refresh NE's memory as required under MRE 612. NE did not remember statements that she made at the forensic interview or certain testimony she gave during the preliminary examination. The prosecution did not confirm in the required manner that NE's memory was inadequate and did not ask whether silently reading or listening to her statements from the forensic interview and preliminary examination would refresh her recollection. Instead, the prosecution read portions of the forensic interview and preliminary examination to NE in front of the jury. Although defendant did not object to the manner of interrogation, the trial court plainly erred by permitting the prosecution to read testimony from the forensic interview and preliminary examination.

The record also indicates that the prosecution did not use the testimony to confront the witness with prior inconsistent statements. Most of testimony read in front of the jury was not alternatively admissible to impeach prior inconsistent statements. MRE 801(d)(1)(A) permits admission of prior statements when the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition ...." The statements read from the forensic interview were not from a trial or hearing in which NE was subject to cross-examination. See MRE 801(d)(1)(A). Of the testimony read from the preliminary examination, only NE's statement about whether her shorts were removed, was inconsistent with her preliminary examination testimony and was permissible for impeachment purposes. See MRE 801(d)(1)(A).

Defendant has shown that the trial court committed plain error, but I am not persuaded that defendant established that the error determined the outcome or seriously affected the fairness, integrity or public reputation of the judicial proceedings. See Cain, 498 Mich. at 116. Defendant contends that the prosecution's continued reading of NE's statements into the record allowed the jury to mistake these statements as substantive and reliable. The record does not support defendant's contention.

Before the prosecution read NE's prior statements into the record, NE had already testified that defendant penetrated the crease of her buttocks. To establish CSC-I, the prosecution had to prove that defendant sexually penetrated NE. Sexual penetration is defined under MCL 750.520a(r) as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." This Court has held that intrusion into the crease of the buttocks is included in the definition of "anal opening." People v. Anderson, 331 Mich.App. 552, 560-562; 953 N.W.2d 451 (2020).1 Further, this intrusion could occur through clothing. See People v. Hammons, 210 Mich.App. 554, 557; 534 N.W.2d 183 (affirming a conviction of CSC-I when the defendant penetrated the victim's vagina through her underwear with his finger). NE testified that defendant used his hands to touch "in the middle part of the cheeks." This testimony established the penetration element of CSC-I.

Circumstantial evidence supported defendant's conviction of CSC-I. Both NE and AE testified that defendant wore latex gloves when he touched them. Gloves matching these descriptions were found in defendant's room. The jury heard statements from defendant's diary which included his description that he felt excited when he did not have deviant thoughts toward children present at a family function. In defendant's interview with police, the detective asked defendant if he ever became aroused when he played with NE and AE. Defendant denied that he had touched either NE or AE, but explained that, given his history, he told the girls to get off his lap when they played video games with him. The prosecution also presented other-acts evidence, the testimonies of two witnesses who testified that defendant molested them as children. One of those witnesses described experiences similar to the conduct testified by AE. She testified that defendant rubbed his groin against her buttocks and vagina when both were unclothed.

The record reveals that the statements read in front of the jury were largely unnecessary or cumulative evidence. Before the prosecution read from the forensic interview and preliminary examination and asked questions regarding those passages, NE had already testified that defendant used his hands to touch her vagina over her clothing. She also testified that defendant sometimes touched her buttocks. NE testified that on one occasion defendant touched in the middle of her buttocks' cheeks. NE also described an occasion when defendant got on top of her. After the trial court restricted the prosecution from reading from prior testimony, NE again testified that defendant touched her private parts with his hands. The facts inquired about through use of the forensic interview and preliminary examination testimony were not necessary to establish the element of sexual penetration required to prove CSC-I. NE's testimony that defendant used his hands to touch the middle crease of her buttocks satisfied that element. See Anderson, 331 Mich.App. at 560-562.

In closing argument, defense counsel emphasized NE's failure to remember her statements made during the forensic interview and her lack of recollection of her preliminary examination testimony. Defense counsel argued that NE remembered little of her accusations and that the prosecution merely spoon-fed her. Defense counsel challenged NE's credibility and argued to the jury that she lacked credibility and failed to testify regarding defendant's conduct because she did not remember things she stated previously, testified inconsistently, and merely tried to be agreeable. Defense counsel argued that the jury had to decide if NE testified inconsistently or fabricated her accusations. Defense counsel used the prosecution's eliciting of testimony that showed NE's inability to remember her statements and testimony to challenge her credibility and cast doubt on her allegations. The record also reflects that the trial court gave a final instruction that the statements that the prosecution read from NE's forensic interview were out-of-court statements that could not be considered substantive evidence. Juries are presumed to follow trial courts' instructions. See People v. Zitka, 335 Mich.App. 324, 348; 966 N.W.2d 786 (2020). The trial court's final jury instruction appropriately limited the jury's consideration of the statements.

In sum, before the prosecution read testimony in front of the jury, NE testified that defendant used his hands to touch between the crease of NE's buttocks. The testimony read in front of the jury was cumulative or unnecessary information in relation to CSC-I. NE's testimony plus the circumstantial evidence support the jury's conclusion beyond a reasonable doubt that defendant committed CSC-I. Although defendant has established that the trial court committed plain error, defendant has failed to prove outcome-determinative error. See Cain, 498 Mich. at 116. Accordingly, in my opinion, he has not established a right to have his CSC-I conviction vacated.

Defendant also argues that the trial court abused its discretion when it read a jury instruction on prior inconsistent statements to the jury. I disagree.

This Court reviews claims of instructional error de novo. People v. Wade, 283 Mich.App. 462, 464; 771 N.W.2d 447 (2009). However, "the trial court's determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v. Dobek, 274 Mich.App. 58, 82; 732 N.W.2d 546 (2007). An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes. People v. Martinez, 307 Mich.App. 641, 646; 861 N.W.2d 905 (2014). "The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice." People v. Dupree, 486 Mich. 693, 702; 788 N.W.2d 399 (2010). A miscarriage of justice occurs when "it is more probable than not that a different outcome would have resulted without the error." Lukity, 460 Mich. at 495.

A criminal defendant has "the right to have a properly instructed jury consider the evidence against him." People v. Mills, 450 Mich. 61, 80; 537 N.W.2d 909 (1995), mod 450 Mich. 1212 (1995); see also U.S. Const, Ams VI, XIV; Const 1963, art 1, § 20. "The jury instructions must include all elements of the crime charged, and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them." People v. Armstrong, 305 Mich.App. 230, 240; 851 N.W.2d 856 (2014) (quotation marks and citation omitted). Further, "[p]ertinent portions of the instructions approved by the . . . Committee on Model Criminal Jury Instructions or a predecessor committee must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party." MCR 2.512(D)(2) (emphasis added). "Jurors are presumed to follow their jury instructions and jury instructions are presumed to cure most errors." Zitka, 335 Mich.App. at 348 (quotation marks and citation omitted).

During final jury instructions, the trial court read M Crim JI 4.5 on inconsistent statements used to impeach a witness:

You have heard evidence that before the trial, a witness made statements that may be inconsistent with their testimony here in court. You may consider an inconsistent statement made before the trial only to help you decide how believable the witness' testimony was when testifying here in court. If the earlier statement was made under oath, then you may also consider the earlier statement as evidence of the truth of whatever the witness said in the earlier statement when determining the facts of this case.

The prosecution requested this instruction. At the preliminary examination, NE testified that defendant pulled down her shorts and underwear and she felt his skin between her buttocks' cheeks. At trial, NE testified that defendant did not pull down her shorts and underwear. These statements contradicted each other. The trial court, therefore, properly read the instruction because it applied in this case. See MCR 2.512(D)(2).

Defendant does not argue that the instruction was inapplicable in this case. Instead, he argues that the trial court should have refused to read the instruction because it could result in jury confusion. He argues that the jury would have to parse through NE's out-of-court statements to determine which were inconsistent. Defendant has not shown that this instruction resulted in manifest injustice. The trial court instructed the jury not to consider statements from the forensic interview as substantive evidence during final instructions:

You have heard excerpts from [NE's] and [AE's] statements made to the Child Assessment Center. These statements are not evidence. Only their answers to questions during this trial are evidence.

The trial court instructed the jury not to consider NE's forensic interview statements as substantive evidence. The prior inconsistent statement instruction also required the jury to decide which statements were inconsistent and made under oath before considering them substantive evidence. The jury first had to decide that a conflict existed between a statement at trial and in the preliminary examination transcript before the jury considered that statement as substantive evidence for impeachment purposes. Defendant has pointed to no evidence on the record that these instructions confused the jury or that the jury failed to follow the instructions. Jurors are presumed to follow instructions given by the trial court and defendant has not overcome that presumption. See Zitka, 335 Mich.App. at 348.

Defendant argues further that the trial court erred by denying defendant's motion for directed verdict of acquittal on CSC-I because NE failed to testify clearly on the element of penetration. He also argues that the prosecution presented insufficient evidence to convict defendant of CSC-I. I disagree.

This Court reviews de novo "whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt." People v. Wolfe, 440 Mich. 508, 513-514; 489 N.W.2d 748 (1992) (quotation marks and citation omitted). This Court "must view the evidence in a light most favorable to the prosecution." Id. at 515. Further, this Court "must defer to the fact- finder by drawing all reasonable inferences and resolving credibility conflicts in support of the jury verdict." People v. Schumacher, 276 Mich.App. 165, 167; 740 N.W.2d 534 (2007). This Court employs the same standard of review when considering a challenge to a trial court's decision on a motion for a directed verdict as a challenge to the sufficiency of the evidence, except this Court only considers the evidence that the prosecution presented up to the time the motion was made. People v. Schultz, 246 Mich.App. 695, 702; 635 N.W.2d 491 (2001).

"Due process requires that the evidence show guilt beyond a reasonable doubt in order to sustain a conviction." People v. Unger, 278 Mich.App. 210, 222; 749 N.W.2d 272 (2008). Circumstantial evidence and the reasonable inferences that arise from the evidence can constitute satisfactory proof of the elements of the crime. See Carines, 460 Mich. at 757. In determining whether sufficient evidence supported the conviction, this Court will not interfere with the factfinder's credibility determinations. Wolfe, 440 Mich. at 514-515.

The prosecution charged defendant under MCL 750.520b(1)(a) and (2)(b) which provides that a person over 17 years old is guilty of CSC-I if he engaged in sexual penetration of a person under 13 years old. The elements of CSC-I in this case were that (1) defendant engaged in sexual penetration, (2) with a person under 13 years of age, and (3) defendant was an individual 17 years of age or older. Evidence established that NE was less than 13 years old and defendant was over 17 years old when the sexual abuse occurred. Defendant argues that the prosecution failed to introduce evidence of penetration. MCL 750.520a(r) defines sexual penetration as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required." In Anderson, 331 Mich.App. at 555, 560-562, this Court held that the prosecution presented evidence sufficient to satisfy the penetration element of CSC-I when a defendant inserted his penis into the crease of the victim's buttocks without actual insertion into the anal cavity. This Court found no reason to restrictively define "anal opening" when caselaw broadly defined the "genital opening" of a female to include the labia. Id. at 561. Further, this Court explained that "the defining difference between a sexual penetration and sexual contact is the intrusion into the victim's body, rather than the unwanted touching of sensitive areas of the body." Id.

Defendant argues that Anderson's definition of "anal opening" may lead to absurd results because a man could penetrate the crease of a woman's buttocks through her clothing with his hand or penis. The absurd-results doctrine, however, "may only be invoked when it is quite impossible that the Legislature could have intended the result." Reidenbach v. Kalamazoo, 327 Mich.App. 174, 188; 933 N.W.2d 335 (2019) (quotation marks and citation omitted). I find nothing absurd about interpreting "anal opening" to include the crease of the buttocks. The scenario defendant describes, where a man places his hand or penis between the cheeks of a clothed woman, is the type of situation the Legislature wished to criminalize. This is apparent by the Legislature's use of the term "anal opening" as opposed to a more restricted term such as "anus," "anal cavity," or "anal canal."

In this case, NE testified that defendant placed his hand in the middle of her buttocks' cheeks. Accordingly, NE's testimony sufficed to establish that defendant's hand entered the crease of her buttocks, which established the penetration element of CSC-I. Anderson, 331 Mich.App. at 555. A reasonable jury could conclude beyond a reasonable doubt from this evidence that defendant committed penetration. Such evidence also justified the trial court's denial of defendant's motion for directed verdict.

Accordingly, I would affirm defendant's conviction of CSC-I.


Summaries of

People v. Versluis

Court of Appeals of Michigan
Aug 24, 2023
No. 362019 (Mich. Ct. App. Aug. 24, 2023)
Case details for

People v. Versluis

Case Details

Full title:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JASON CHRISTOPHER…

Court:Court of Appeals of Michigan

Date published: Aug 24, 2023

Citations

No. 362019 (Mich. Ct. App. Aug. 24, 2023)