People v. Perkins

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JUNE 18, 2003

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 120453

MARK DREW PERKINS,

Defendant-Appellee.

___________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 120461

MARK DREW PERKINS,

Defendant-Appellant.

___________________________________

BEFORE THE ENTIRE BENCH

KELLY, J.

We granted leave to appeal in this case to determine

whether the prosecutor presented enough evidence to secure a

bindover of defendant in the district court. The charges

against defendant were criminal sexual conduct in the first

degree (CSC-I),1 the common-law offense of misconduct in

office,2 and two counts of possession of a firearm during the

commission of a felony (felony-firearm).3 The magistrate

dismissed the charge of CSC-I, but bound over defendant on the

charges of misconduct in office and felony-firearm. The

circuit court affirmed with regard to CSC-I, but quashed the

information with regard to the remaining charges. The Court

of Appeals reversed, finding probable cause that the crime of

CSC-I had been committed.4 Dismissal of the felony-firearm

charges was not raised on appeal beyond the circuit court

level.

We hold that there was insufficient evidence to support

a finding of the commission of CSC-I or misconduct in office.

Accordingly, we reverse in part and affirm in part the

decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was a Bay County deputy sheriff who was

1
MCL 750.520b(1)(f).

2
MCL 750.505.

3
MCL 750.227b.

4
Unpublished opinion per curiam, issued June 8, 2001

(Docket No. 229111).

2

prosecuted for acts arising from his sexual relationship with

the complainant, a sixteen-year-old girl. The complainant was

a close friend of defendant's family.

At the time of the charged incident, the complainant had

known defendant and his family for approximately four years.

Defendant's wife had been the complainant's basketball coach

and defendant often had assisted his wife when the team

practiced. From the date that the complainant met defendant

until the incident involved here, the complainant regularly

babysat for defendant's children, attended church with the

family, and, for a time, resided with them. During that

period, the complainant and defendant began having sexual

relations.

On the date of the charged incident, the complainant was

living with her mother and had just returned from a month-long

excursion in Mexico. While the complainant was in Mexico,

defendant telephoned her twice. During one call, defendant

told the complainant that he had left a present for her under

her mother's porch.

The complainant returned from Mexico and discovered that

defendant had placed a ring under the porch. She then called

defendant and left a voice mail message for him. They agreed

to meet on the following Sunday in an industrial park while

the complainant was on her way to church.

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 On Sunday, the complainant drove to the industrial park,

found defendant, who was on duty in a marked police cruiser,

and got into the car with him. The complainant and defendant

hugged and talked about her trip to Mexico. Finally, the

complainant fellated defendant.

The prosecutor charged defendant with four felony

offenses: CSC-I, misconduct in office, and two counts of

felony-firearm deriving from the other charged infractions.

At the preliminary hearing on these charges, the magistrate

concluded that there was insufficient evidence to bind

defendant over on the CSC-I charge. However, the prosecutor

had presented sufficient evidence to proceed on the charge of

misconduct in office. Accordingly, the magistrate dismissed

the CSC-I charge and the related felony-firearm charge and

bound defendant over on the misconduct in office and the

related felony-firearm charge. The circuit court then quashed

the information. It also denied the prosecutor's motion to

amend the information to reinstate the CSC-I charge.

The prosecutor appealed to the Court of Appeals, which

held that the magistrate committed an abuse of discretion in

refusing to bind defendant over on the CSC-I charge. It also

affirmed the circuit court order quashing the charge of

misconduct in office.

On appeal to this Court, defendant challenges the Court

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of Appeals decision reinstating the charge of CSC-I. The

prosecutor appeals, challenging that portion of the Court of

Appeals ruling that affirmed the circuit court decision to

quash the charge of misconduct in office.

II. STANDARD OF REVIEW

We review a district court decision to bind over a

defendant under an abuse of discretion standard. People v

Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652

(1997). We review any question of the proper interpretation

of the underlying criminal law de novo. People v Mass, 464

Mich 615, 622; 628 NW2d 540 (2001).

III. DISCUSSION

The purpose of a preliminary examination is to determine

whether there is probable cause to believe that a crime was

committed and whether there is probable cause to believe that

the defendant committed it. MCR 6.110. The prosecutor need

not establish beyond a reasonable doubt that a crime was

committed. He need present only enough evidence on each

element of the charged offense to lead "'a person of ordinary

prudence and caution to conscientiously entertain a reasonable

belief of [the defendant's] guilt.'" Justice, supra at 344,

quoting Coleman v Burnett, 155 US App DC 302, 317; 477 F2d

1187 (1973). Thus, charges should not be dismissed merely

because the prosecutor has failed to convince the reviewing

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tribunal that it would convict. That question should be

reserved for the trier of fact. People v Goecke, 457 Mich

442, 469-470; 579 NW2d 868 (1998).

If the prosecutor fails to present evidence on each of

the elements of a charged offense, it would be an abuse of

discretion to bind over the defendant for trial. Goecke,

supra at 469, citing People v Doss, 406 Mich 90, 100-101; 276

NW2d 9 (1979).

A. Criminal Sexual Conduct

The prosecutor asserts that defendant's encounter with

the complainant in his patrol car constituted CSC-I. The CSC-

I statute, MCL 750.520b, provides in relevant parts:

(1) A person is guilty of criminal sexual

conduct in the first degree if he or she engages in

sexual penetration with another person and if any

of the following circumstances exists:

* * *

(f) The actor causes personal injury to the

victim[5] 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

5
The question of personal injury to the complainant was

not raised in this appeal.

6

 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, kidnaping, or extortion.

(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.

At the preliminary examination, the prosecutor's theory

was that defendant was guilty of CSC-I through coercion. As

an authority figure, defendant had engaged the complainant in

continuing sexual conduct beginning when she was much younger.

The prosecutor reasoned that defendant thus established a

pattern of abuse that eroded the complainant's ability to

resist his sexual advances during the incident in question.

The prosecutor presented evidence that a child can be

psychologically subjugated in this manner. There was no

testimony that the complainant had been so subjugated.

In any event, the record shows that no evidence was

presented at the preliminary hearing to support the

prosecutor's assertion that the complainant was coerced, in

any sense of that term, to fellate defendant on the occasion

in question.

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 The facts were that the complainant had been out of the

country for a month before the charged conduct occurred. The

complainant initiated the meeting. Moreover, the sexual

relationship between defendant and the complainant continued

beyond the date of the charged conduct and lasted until the

complainant entered into a relationship with her husband.

The unrebutted preliminary examination facts indicate

that, on the date of the incident in question, the

relationship was consensual and the complainant was involved

in it of her own volition. If it were true that the

complainant's actions were the result of defendant's

subjugation of her will, then or at an earlier date, the

prosecutor failed to present evidence of it. Because of the

lack of evidence, it is unnecessary for this Court to reach

the question whether psychological subjugation is a viable

theory on which to rest a charge of CSC-I.

Thus, we cannot conclude that the district court

committed an abuse of discretion by dismissing the charge of

CSC-I. Accordingly, we reverse the Court of Appeals decision

with regard to that charge.

B. Misconduct In Office

Defendant was also charged with committing the offense of

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common-law misconduct in office.6 The Court of Appeals held

that the circuit court properly quashed the information

because the prosecutor failed to show a nexus between the

charged conduct and defendant's status as a deputy sheriff.

We agree with the Court of Appeals.

1. The elements of common-law misconduct in office

When the Legislature codifies a common-law crime without

articulating its elements, we must look to the common law for

the definition of the crime. People v Couch, 436 Mich 414,

419-420; 461 NW2d 683 (1990). We are bound by the common-law

definition until the Legislature modifies it. People v

Schmitt, 275 Mich 575, 577; 267 NW 741 (1936); People v

Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002).

At common law, misconduct in office was defined as

“corrupt behavior by an officer in the exercise of the duties

of his office or while acting under color of his office.”

People v Coutu, 459 Mich 348, 354; 589 NW2d 458 (1999)(Coutu

I), quoting Perkins & Boyce, Criminal Law (3d ed), p 543. An

officer could be convicted of misconduct in office (1) for

6
MCL 750.505 provides:

Any person who shall commit any indictable

offense at the common law, for the punishment of

which no provision is expressly made by any statute

of this state, shall be guilty of a felony,

punishable by imprisonment in the state prison not

more than 5 years or by a fine of not more than

$10,000.00, or both in the discretion of the court.

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committing any act which is itself wrongful, malfeasance, (2)

for committing a lawful act in a wrongful manner, misfeasance,

or (3) for failing to perform any act that the duties of the

office require of the officer, nonfeasance. Perkins, p 540.

However, committing nonfeasance or acts of malfeasance or

misfeasance are not enough to constitute misconduct in office.

In the case of malfeasance and misfeasance, the offender also

must act with a corrupt intent, i.e., with a "sense of

depravity, perversion or taint." See Perkins, p 542. See

also People v Coutu (On Remand), 235 Mich App 695, 706; 599

NW2d 556 (1999)(Coutu II). In the case of nonfeasance, an

offender must willfully neglect to perform the duties of his

office. Perkins, p 547.

Moreover, the officer's wrongdoing must result from or

directly affect the performance of his official duties.

The mere coincidence that a crime has been

committed by one who happens to be a public officer

is not sufficient to establish official misconduct.

For this offense it is necessary not only that the

offender be an officer, or one who presumes to act

as an officer, but the misconduct, if not actually

in the exercise of the duties of his office, must

be done under color of his office. On the other

hand the act of one who is an officer, which act is

done because he is an officer or because of the

opportunity afforded by that fact, is under color

of his office despite his gesture of removing his

badge plus his statement that he is not acting in

the name of the law. [Perkins, p 541].

With this understanding, we now consider whether there was

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enough evidence to bind over defendant.

2. There is insufficient evidence to bind over defendant

for misconduct in office

To be guilty of misconduct in office, one must first be

a public officer. In this case, defendant is a deputy

sheriff. In Coutu I, we held that a deputy sheriff is a

public officer for purposes of misconduct in office when the

allegations against him arise from the performance of his

official duties. Coutu I, supra at 357-358.

Although defendant is a deputy sheriff, there is no

evidence that his alleged conduct arose from the performance

of his official duties. Rather, the charged conduct arose

from a longstanding sexual relationship with the complainant.

It is undisputed that defendant was on duty when he engaged in

the conduct. However, the prosecutor presented no evidence

correlating that conduct with defendant’s public office. The

act was neither initiated nor consummated in the exercise of

defendant’s duties. It is not alleged that the opportunity to

commit the specific corrupt behavior in question, when it

occurred, arose from or was furthered by defendant’s status as

a deputy sheriff. Whatever influence defendant's office may

once have had on the complainant, there was no evidence that

it influenced her to have sexual relations with defendant on

the subject occasion.

In short, the prosecutor failed to offer evidence

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establishing a nexus between defendant’s alleged conduct and

defendant’s status as a sheriff’s deputy. From that we

conclude that defendant was not acting as a public officer for

purposes of misconduct in office. Coutu I, supra.

Accordingly, we affirm the Court of Appeals decision regarding

this issue on the basis that there was insufficient evidence

to support the charge of misconduct in office.

CONCLUSION

We hold that the prosecutor presented insufficient

evidence of coercion to sustain the charge of CSC-I against

defendant. Because the prosecutor failed to meet this burden,

we need not reach the question whether psychological

subjugation is a viable theory of coercion.

We also hold that the evidence presented at the

preliminary examination did not establish probable cause to

believe that defendant committed the common-law offense of

misconduct in office.

The Court of Appeals decision in this case is accordingly

reversed in part and affirmed in part.

Marilyn Kelly

Maura D. Corrigan

Michael F. Cavanagh

Elizabeth A. Weaver

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

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