People v. Starks

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion 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 issue presented is whether the prosecution

presented sufficient evidence in this case 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. We reverse the dismissal of the charge

against 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, and harmful or

offensive touching of a person. The evidence presented at

the preliminary examination suggests that after defendant

sent another person out of the room and closed the

automatically locking door to that room, she asked the

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 entered the room and that when that

employee entered the room, defendant pretended to put

clothes in the washing machine. Thus, the 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 intent to commit criminal sexual conduct

involving sexual penetration. The complainant, 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 was charged with assault with intent to

commit criminal sexual conduct involving sexual

penetration, MCL 750.520g(1), following an incident at the

Pause Program at Herman Kiefer Hospital, a detention

facility for delinquent boys. 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, 2001. The
complainant was born on February 19, 1988.
2
The complainant testified that he had observed
defendant perform fellatio on another resident of the
program in that resident’s room.

4

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 complainant standing behind her

less than two feet away. 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 the circuit court

affirmed the dismissal of the charge. The circuit court

5

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 On remand, the Court of Appeals affirmed

the dismissal of the charge.4 In determining whether

defendant committed an assault, the Court of 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 apprehension of receiving an

immediate battery. Id. at 628. 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, Criminal Law (3d ed), p 154. Thus, when one

attempts an intentional, unconsented, and harmful or

offensive touching of a person, one has 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 Accordingly, a thirteen-year-old

child cannot legally consent to sexual penetration with

another person because sexual penetration of a thirteen-

year-old child is automatically third-degree criminal

sexual conduct.7 Therefore, the complainant in this case,

who was thirteen years old, could not consent to the

attempted touching in this case—fellatio—and 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 third-
degree 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 real-
world 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 to achieve sexual penetration. We

disagree. As noted by Justice Boyle in her dissent,

assault with intent to commit criminal sexual conduct

involving sexual penetration can be distinguished from

attempted third-degree criminal sexual conduct “by the

proximity of the defendant to the completed act.” Id. at

634-635. “[A]ssault with intent to commit criminal sexual

conduct 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, a resident, whether he wanted her to

perform fellatio on him after defendant sent another

resident out of the room and closed the automatically

locking door. Defendant then instructed the complainant to

remove his pants, and the complainant unzipped and

unbuttoned his pants at defendant’s request. Defendant was

observed by another employee bending over in front of the

complainant less than two feet from him while the

12

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. Further,

the complainant was thirteen years old and could not

legally consent to an act of fellatio. 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 with this

opinion.

Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

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-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) involving sexual penetration, MCL

750.520g(1). 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 evidence introduced at the preliminary

examination showed that defendant was one of the

complainant’s supervisors in a youth detention 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 to be alone with the thirteen-year-old

complainant in the locked laundry 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. The complainant did as he was told. As defendant

was about to perform fellatio, 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. Did you answer her?

[The complainant]: No.

3

 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 believe that defendant committed the crime of

assault with intent to commit CSC involving 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 battery (apprehension-type assault).

Alternatively, an assault can occur from an attempt to

commit a battery (attempted-battery assault). Id. at 628.

4

A “‘battery is an intentional, unconsented and harmful or

offensive touching of the person of another, or of

something closely connected with the person.’” Id.

(citation omitted; emphasis added). 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 that defendant committed an apprehension-type

assault. 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 assault nonetheless occurred. On the

basis of the prosecutor’s proffered evidence, there was

probable cause to believe that the complainant 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 to remove his

pants so that she could perform fellatio. 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 with intent to commit CSC involving

sexual penetration. 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