People of Michigan v. Timothy Michael Crowley ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 23, 2022
Plaintiff-Appellant,
v No. 356348
Washtenaw Circuit Court
TIMOTHY MICHAEL CROWLEY, LC No. 19-001134-AR
Defendant-Appellee.
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
In this interlocutory appeal, the prosecution appeals by leave granted 1 the circuit court’s
affirmance of the district court’s decision to not bind over the charges against defendant. On
appeal, the prosecution argues that the district court abused its discretion when it dismissed Counts
3, 4, 7, and 8 because it presented sufficient evidence that defendant coerced the complainant into
sexual acts and that the complainant suffered personal injury. For the reasons discussed in this
opinion, we reverse, remand, and direct the trial court to reinstate Counts 3, 4, 7, and 8.
I. BACKGROUND
This is a case of alleged criminal sexual conduct involving a Catholic priest. Whether
defendant sexually abused the complainant is not generally disputed. However, defendant
successfully disputed in the courts below whether the prosecution elicited evidence that defendant
used force or coercion to abuse the complainant at any time not barred by the applicable statute of
limitations.
In May 2019, the Department of Attorney General charged defendant with eight counts:
four counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b; and four counts of
second-degree criminal sexual conduct (CSC-II), MCL 750.520c. According to the complaint, the
1
See People v Crowley, unpublished order of the Court of Appeals, entered May 17, 2021 (Docket
No. 356348).
-1-
alleged acts occurred between or about June 24, 1986 and December 31, 1990. Each count
included the phrases “with a 14-16 year old child” and reflects that the “victim was at least 13 but
less than 16 years of age.” Counts 3, 4, 7, and 8 (the counts the prosecution seeks to resurrect on
appeal) relied on a theory that defendant effected sexual contact or penetration through force or
coercion and that the complainant sustained personal injury. For example, Count 3 reflected as
follows:
CRIMINAL SEXUAL CONDUCT—FIRST DEGREE (Multiple Variables)
did engage in sexual penetration, to-wit: Fellatio, with a 14-16 year old child, under
the following circumstance(s), defendant effected sexual penetration through force
or coercion and the victim sustained personal injury; contrary to MCL 750.520b.
[750.5208.]
The relevant evidence in this case was introduced at the preliminary examination. Special
Agent David Dwyre of the Department of Attorney General testified that, in October 2018, he
obtained a search warrant for documents involving clergy abuse at all seven diocese of the Catholic
Church in Michigan, including the Diocese of Lansing, which oversees the parishes relevant to
this case. Included in the subsequently seized documents was information about defendant and
the complainant. Dwyre testified that the documents revealed that defendant was appointed to
St. Anthony Parish in Hillsdale, Michigan, in 1984. He was later appointed to the St. Thomas
Parish in Ann Arbor, Michigan, in 1985. He was later appointed to a parish in Anchorage, Alaska,
and left Michigan in August 1995. Defendant did not reside in Michigan again until he was
arrested and brought back to the state in 2019.
The complainant testified that he was born in November 1972. The complainant began by
describing defendant as a former “priest for the Catholic Church” and “a former friend of the
family.” The complainant testified that he met defendant when he was “right around the age of
10,” when he was an altar boy at St. Mary Star of the Sea Parish in Jackson, Michigan. At that
time, in 1982, the complainant and his family were practicing Catholics. Defendant was his priest.
The complainant testified that, when he was a child, his family (himself, his father, mother, and
sister) attended St. Mary. He went to school there. After attending St. Mary’s school through
sixth grade, the complainant attended Jackson Catholic Middle School for two school years before
attending Jackson Lumen Christi High School for ninth and part of tenth grade, before graduating
from Jackson High School.
The complainant elaborated on defendant being a “family friend,” explaining as follows:
He was a priest at the church. And, um, we celebrated religiously, um,
through the church. And bonded with, um, [defendant]. And expanded the
communication, to the point, where he was a family friend. And would come over
for dinners. And, um, other events, not related with the church.
The complainant testified that he spent time alone with defendant. His mother encouraged
him to do so. Asked how he came to spend time alone with defendant, the complainant testified
as follows:
-2-
Uh, I was asked if I wanted to come over to the rectory, uh, Saint Mary’s
Parish, um, on several different occasions. And, um, my mother thought that was
a great idea. [Defendant] was a great mentor, keepin’ me out of harm’s way. Um,
he [sic?] was confident that, uh, he was a solid person. And, uh, thought it would,
uh, guide me in the right path, possibly down a missionary position.
The complainant testified that defendant abused him at the rectory: “Early on, um, it was
more of a, um, simple touch to the shoulder.” Defendant would tell the complainant, “You’re a
good boy.” “[O]cassionally,” defendant “would touch [the complainant’s] butt.” Defendant
“encouraged [the complainant] to sleep in the same bed with him.” Defendant would tell the
complainant: “It’s normal. It’s natural.” He would tell the complainant that he could “sleep with
[his] underwear on.” The complainant testified that, at the time, he “thought it was normal,” and
he “thought that was, basically, what priests do to bond with people.” He had been raised with the
idea that priests were to be respected and that priesthood “was the highest form of respect in the
Catholic Church.” He was 10 years old at the time. In bed, defendant would conduct “simple
touches” of the complainant’s leg. The complainant testified that defendant would “touch my
penis over the top of my underwear.” The complainant thought this “was weird.” “But,” he said,
“it was more cuddling.” Defendant told him “it was a bonding thing,” that “it was normal,” and
that “[i]t was natural.” The complainant testified that defendant would press his penis against him,
over the top of the complainant’s underwear. Once, the complainant was not wearing underwear
and defendant “didn’t insert his penis . . . but pressed his penis up against [the complainant’s] anus.
It was probably a fingertip.” The complainant testified that these things occurred at St. Mary two
to three times.
The complainant testified that defendant was eventually reassigned to St. Anthony Parish
in Hillsdale. His family continued to attend St. Mary. But the complainant’s mother would drive
him “to the Hillsdale parish to spend time with” defendant. The complainant was about 13 years
old. The complainant’s mother drove him to see defendant alone at the Hillsdale location “dozens”
of times. During these visits, defendant began serving the complainant alcohol and cigarettes. The
complainant testified that, after defendant provided him with the alcohol and cigarettes, defendant
would provide pornographic materials and pornographic videos that included multiple men. While
the pornographic videos played, defendant would change into his “short shorts,” with no
underwear. Defendant “would massage his penis” so that the complainant could see his erection
and would tell the complainant it was “natural” if he “got hard,” too. After the video, defendant
would encourage the complainant to sleep in the same bed as him. Defendant would masturbate
himself or the complainant. Sometimes, defendant performed oral sex on the complainant, or the
complainant performed oral sex on defendant. The complainant did not know what a “blowjob”
was at the time. Defendant would “snuggle” the complainant and place his erect penis between
the complainant’s butt cheeks, and vice versa.
The complainant testified that a man, JC, who was defendant’s friend and a youth minister
affiliated with the church in Hillsdale, was invited to defendant’s residence at the rectory one night.
The invitation came after, during a viewing of a pornographic movie, defendant asked the
complainant if he would be interested in another man licking his anus. Defendant told the
complainant that he had a friend who would be willing to do that to him. The complainant testified
that JC visited the rectory with him “around one of [the complainant’s] birthdays when he was
“[s]eventeen, eighteen, maybe.” That day, defendant and JC “wrestled” the complainant “to the
-3-
ground.” They “playfully” removed the complainant’s underwear. They engaged in dirty talk,
calling the complainant a “bad boy” and giving him “birthday spankings.” Defendant held the
complainant down, and JC licked the complainant’s anus. The complainant defecated all over
JC’s face, ran, and hid in the closet. The next morning, defendant and JC told the complainant that
“everything was gonna be okay.”
The complainant testified that, at some point, defendant was reassigned to a parish in Ann
Arbor. He testified that the same types of activities that occurred at the Hillsdale rectory occurred
at the Ann Arbor rectory: sleeping naked together, snuggling, and fellatio. Once, the complainant
thought he urinated in defendant’s mouth while defendant was performing oral sex on him. The
complainant testified that the abuse continued until he was over 18 years old.
On cross-examination, the defense attempted to impeach the complainant in regard to when
the abuse ended. At one point, the complainant agreed that he had told Special Agent Dwyre that
the abuse ended “right around the time [he] got [his] driver’s license,” at 16 years old. The
complainant agreed that he turned 16 years old in November 1988. Defense counsel asked if it
was accurate that, in 1993, during a meeting in regard to a civil settlement, the complainant
reported that the abuse started approximately when he was eight years old and ended when he was
between 15 and 16 years old. The complainant responded that, “Everything is approximate, yes.”
The complainant stated that, after he transferred out of Lumen Christi High School, he met with,
and had sexual contact with, defendant at defendant’s residence in Michigan Center, Michigan.
He was over 16 years old at the time. He agreed that no one used physical force to accomplish a
sexual contact. He agreed that no threats were made to him after he turned 16 years old. But he
testified that he spent the night with defendant in Ann Arbor. He testified that, although he was
driving age at the time, his mother drove him there or defendant would pick him up in his car. He
did not recall ever driving himself to Ann Arbor.
The complainant testified that, in 1993, he became suicidal. He got drunk, and he tried to
intentionally drive his father’s truck over 100 miles an hour into a tree in an attempt to end his life.
But at some point, he swerved back onto the road and stopped. After crying, he drove to the home
of his father’s best friend. The complainant’s father always told him that, if he “ever had a problem
that was too large to handle,” he “could go to his best friend, without judgment, consequences, and
we would sort it out.” The complainant told his father’s best friend about defendant. His father’s
best friend told the complainant that it would be okay, he took the complainant home, and they
met with the complainant’s parents. The complainant’s father made statements about ending
defendant’s life, and the complainant became “scared” for defendant.
On redirect examination, the complainant clarified that the abuse ended just before he
signed an affidavit in August 1993, or a “short time” before he went to see his father’s best friend.
He testified that he never felt that he had a choice whether to engage in the sexual activities with
defendant, even after he turned 16 years old. Explaining why, he testified as follows:
It felt natural, at that point. It—it felt that is expected. It was—I almost felt
guilty not hangin’ out with my mentor and fulfilling my parent’s dreams. And it
just didn’t—I didn’t want to live anymore.
-4-
The district court asked more clarifying questions about when the sexual contact ended,
noting that the complainant obtained his driver’s license four years before he signed the 1993
affidavit. The complainant testified that he remembered driving to see defendant in Michigan
Center after he obtained his driver’s license. And defendant still drove to him. But he “couldn’t
tell” the district court “how many weeks before the document was signed” that the contact stopped.
(Emphasis added). Asked if he meant to say “weeks,” the complainant responded affirmatively.
Several times on cross-examination, the complainant stated that the abuse ended after he obtained
his driver’s license.
In regard to whether defendant ever threatened the complainant, the following exchange
occurred:
[Prosecutor]: Um, had the defendant ever said to you anything about
whether or not you should tell anybody about what had been going on between the
two of you?
[The complainant]: Yes.
[Prosecutor]: What did he say?
[The complainant]: Told me if I ever told the nuns, or my parents, he would
kill me.
The complainant testified that defendant made this statement to him in Hillsdale. The complainant
and defendant could hear that a nun “was coming up the stairwell.” Defendant “ran down the
stairs and had stopped her.” The complainant later clarified that he took defendant’s words as “an
ongoing threat.”
In 1993, the complainant’s family reached a civil settlement with the Diocese of Lansing.
The settlement included a nondisclosure agreement. At the preliminary examination, the
complainant testified that, at the time, he thought the nondisclosure agreement prevented him from
talking to the police.
The district court denied bindover and dismissed all charges. Announcing its ruling, the
district court stated:
Um, I think we all agree on the facts of this case. And we all agree on the
facts that, uh, the behavior alleged is abhorrent, abominable, horrible, damnable.
Uh, however, the law is the law.
Um, the Court finds that the criminal sexual conduct, that was occurring on
a continual basis, from the time the witness was 10 years-old until he turned 16, or
the day before his—his (indiscernible) birthday. The last of those acts occurred on
a date that is outside of the statute of limitations, in this case. And, for that reason,
this case must be dismissed.
The circuit court affirmed. Having granted leave, we now consider the prosecution’s
interlocutory appeal.
-5-
II. ANALYSIS
On appeal, the prosecution argues that the district court’s ruling was an abuse of discretion.
It does not appeal the ruling as applied to Counts 1, 2, 5, and 6; it only seeks reinstatement of
Counts 3, 4, 7, and 8. Among these were two counts of CSC-I under MCL 750.520b(1)(f) and two
counts of CSC-II under MCL 750.520c(1)(f).
This Court reviews a district court’s bindover decision for an abuse of discretion. People
v Fairey, 325 Mich App 645, 649; 928 NW2d 705 (2018). An abuse of discretion occurs when
the district court’s decision falls outside the range of principled outcomes. Id.In Fairey, this Court explained:
At a preliminary examination, the prosecution must present evidence
establishing that the defendant committed the charged offense, and the district court
must find that probable cause exists to bind over a defendant for trial. To satisfy
this burden, the prosecution must present evidence of each and every element of
the charged offense, or enough evidence from which an element may be inferred.
[Id. at 648-649 (citations omitted).]
In regard to the probable cause standard,
Probable cause is established if the evidence would persuade a careful and
reasonable person to believe in the defendant’s guilt. Evidence supporting that the
defendant perpetrated the crime may be circumstantial, but must nevertheless
demonstrate reasonable grounds to suspect the defendant’s personal guilt. The
evidence considered must be legally admissible. [Id. at 649 (citations omitted).]
Our Supreme Court has explained that “a magistrate may not decline to bind over a
defendant where there is a conflict of evidence, or where there is a reasonable doubt as to his guilt;
all such questions should be left for the jury upon the trial.” People v Anderson, 501 Mich 175,
185; 912 NW2d 503 (2018) (quotation marks and citation omitted).
Before diving into the testimony, there are two preliminary issues that appear to warrant
discussion. The first is the statute of limitations. Under MCL 767.24, as amended by 1987 PA
255, charges for CSC offenses had to be filed “6 years after the commission of the offense or by
the alleged victim’s twenty-first birthday, whichever is later.” The complainant testified that
defendant’s conduct continued until “weeks” before the civil settlement was reached, in
August 1993. The complainant turned 21 years old in November 1993. Accordingly, the statutory
period of limitations began running after the commission of the last criminal act and would
ordinarily have ran for six years, until, possibly, sometime in summer 1999.
But the period of limitations tolled from the date that defendant left Michigan for his
appointment in Alaska. The evidence reflected that defendant left for Anchorage, Alaska, in
August 1995. Any unexpired period of limitations tolled from that date. People v Kasben, 324
Mich App 1, 9; 919 NW2d 463 (2018); see MCL 767.24(11). Combining defendant’s departure
from Michigan with the complainant’s testimony that the sexual acts occurred until “weeks” before
-6-
settlement was reached in August 1993, the evidence reflects a possibility that the last criminal
acts occurred about two years before defendant left Michigan. Defendant only returned to
Michigan after Special Agent Dwyre arrested him in Arizona. Therefore, the prosecution
presented at least some evidence that the acts forming the appealed counts occurred within the
statute of limitations period.
In regard to evidentiary issues, we note that the district court properly considered potential
other-acts evidence. See MRE 404(b); see also MCL 768.27b.
Now we turn to whether the prosecution presented enough evidence to support binding
over Counts 3, 4, 7, and 8. We conclude that it did.
Under MCL 750.520b(1)(f), a person is guilty of CSC-I when:
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.
(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.
Similarly, under MCL 750.520c(1)(f), a person is guilty of CSC-II when “[t]he actor causes
personal injury to the victim and force or coercion is used to accomplish the sexual contact.”
“Force or coercion” is defined identically in both statutes. See MCL 750.520c(1)(f). “Personal
injury” includes “mental anguish.” MCL 750.520a(n).
As the CSC statutes indicate, the enumerated list of conduct constituting force or coercion
is not exhaustive. See MCL 750.520b(1)(f); MCL 750.520c(1)(f). In People v Green, 313 Mich
App 526, 539; 884 NW2d 838 (2015), this Court explained:
The statutes expressly provide that the list of circumstances in which force
or coercion may be proved is not exhaustive. In People v Premo, 213 Mich App
-7-
406, 410; 540 NW2d 715 (1996), a panel of this Court explained that “the
Legislature did not limit the definition of force or coercion to the enumerated
examples in the statute. Furthermore, the existence of force or coercion is to be
determined in light of all the circumstances and is not limited to acts of physical
violence.” (Citations omitted.) “Coercion,” the Court noted, “ ’may be actual,
direct, or positive, as where physical force is used to compel act against one’s will,
or implied, legal or constructive, as where one party is constrained by subjugation
to other to do what his free will would refuse.’ ” Id. at 410-411, quoting Black’s
Law Dictionary (5th ed). Further, “ ’force or coercion’ exists whenever a
defendant’s conduct induces a victim to reasonably believe that the victim has no
practical choice because of a history of child sexual abuse or for some other
similarly valid reason.” People v Eisen, 296 Mich App 326, 335; 820 NW2d 229
(2012).
Our state’s courts have explored the idea of “constructive coercion” in several cases. In
Premo, 213 Mich App at 407,
The charges arose out of three separate incidents involving three different
women. At the time of the incidents, defendant was a teacher at Ferndale High
School, and the victims were students. The victims testified at the preliminary
examination that defendant pinched their buttocks while they were on the premises
of Ferndale High School. Defendant contends that pinching the victims’ buttocks
is insufficient to satisfy the requirement that force or coercion be used to
accomplish sexual contact, MCL 750.520e(1)(a), and that the circuit court therefore
erred in denying his motion to quash the charges. [Citation omitted.]
This Court denied the motion to quash, explaining in relevant part as follows:
Defendant’s conduct was not included in the enumerated examples of coercion in
MCL 750.520b(1)(f)(i)-(iv). However, the Legislature did not limit the definition
of force or coercion to the enumerated examples in the statute.
MCL 750.520e(1)(a). Furthermore, the existence of force or coercion is to be
determined in light of all the circumstances and is not limited to acts of physical
violence. People v Malkowski, 198 Mich App 610, 613; 499 NW2d 450 (1993).
Coercion
may be actual, direct, or positive, as where physical force is used to
compel act against one’s will, or implied, legal or constructive, as
where one party is constrained by subjugation to other to do what
his free will would refuse. [Black’s Law Dictionary (5th ed), 234.]
We believe that defendant’s actions constituted implied, legal, or
constructive coercion because, as a teacher, defendant was in a position of authority
over the student victims and the incidents occurred on school property. Defendant’s
conduct was unprofessional, irresponsible, and an abuse of his authority as a
teacher. Accordingly, we conclude that defendant’s conduct in this case is
-8-
sufficient to constitute coercion under MCL 750.520e(1)(a). [Premo, 213 Mich
App at 410-411 (citations omitted).]
In People v Reid, 233 Mich App 457, 470; 592 NW2d 767 (1999), this Court upheld a
defendant’s CSC-I convictions under a theory of constructive coercion in a sufficiency of the
evidence challenge when the defendant manipulated a series of events that began with him
establishing a kind of counselor-patient relationship with the victim. This Court explained as
follows:
Viewing the evidence in the light most favorable to the prosecution,
defendant placed himself, with regard to the complainant, in a role highly analogous
for present purposes to that of a psychotherapist with a patient. Defendant indicated
to the complainant’s father and the complainant that he had acted in a counseling
role at a church and talked with the complainant about problems that he was having.
Having established a position of trust with the complainant’s parents, defendant
invited the complainant to spend the night at the house of defendant’s parents.
Indeed, the complainant’s testimony that defendant asked him to come over to play
on a computer could reasonably have been taken by the complainant and his parents
as part of an effort by defendant as an unofficial “counselor” to continue developing
a rapport with the complainant. A reasonable jury could infer from this evidence
that defendant manipulated his “counseling” role with the complainant—”a
position of authority”—in order to have the complainant alone where defendant
could sexually assault him.
According to the complainant, on the night of the incidents, defendant,
while acting in this position of authority over the complainant, gave the
complainant beverages that he “spiked” with alcohol and had the complainant
consume these beverages to the point of becoming heavily intoxicated. A
reasonable jury could infer that this was done with the intent to reduce the
complainant’s inclination or ability to resist engaging in sexual activity with
defendant. The complainant’s testimony strongly reflects that he was disoriented
at the time of the acts of fellatio and that he was, in large part, mechanically
following the commands of defendant with regard to his actions or lack of
resistance. He described himself as feeling as if he were in a “bad dream” during
the encounter. Viewing the evidence most favorably to the prosecution in light of
all the circumstances, [People v Medlyn, 215 Mich App 338, 340; 544 NW2d 759
(1996)], defendant used a position of authority over the complainant to engineer a
quite elaborate series of events to place the complainant in a confused and
disoriented condition and then took advantage of the complainant’s condition to
perform fellatio on the complainant and to instruct successfully the complainant to
perform fellatio on him. This is sufficient evidence for a rational factfinder to
conclude that the complainant was “constrained by subjugation,” Premo, [213 Mich
App] at 411, and, thus, coerced into submitting to these acts of sexual penetration
by defendant through use of his position of authority over the complainant. [Reid,
233 Mich App at 470-471.]
-9-
In People v Green, 313 Mich App 526, 539-541; 884 NW2d 838 (2015), this Court upheld
a defendant’s convictions of CSC-III and CSC-IV under a coercion theory when the defendant
used his authority as a Children’s Protective Services worker overseeing the victim’s case to
accomplish sexual contact with the victim. In regard to one of the victims in that case, this Court
stated:
Like the defendants in Premo and [People v] Knapp[, 244 Mich App 361; 624
NW2d 227 (2001)], defendant was in a position of authority over the complainants
because he was the CPS worker assigned to investigate the abuse or neglect
complaints filed against them individually. Testimony established that CPS has the
authority to provide services to rectify the risk to a child and petition the court for
removal of a child or termination of parental rights. CPS may also petition to have
a child removed from a home if a mother fails to protect her child from an abusive
father or boyfriend, which was the situation that caused the complaint to be filed in
JG’s case. Fear of losing one’s child through neglect or abuse proceedings would
produce an extreme reaction in most parents. As such, the complainants were “‘in
a position of special vulnerability with respect to the defendant[]’.” Knapp, 244
Mich App at 371 (citation omitted). Moreover, in light of all the circumstances,
defendant’s actions as a CPS worker, like those of the teacher in Premo, were
“unprofessional, irresponsible, and an abuse of authority . . . .” Premo, 213 Mich
App at 411.
With respect to JG, the testimony established that defendant informed her
on the first day that if she did not leave her fiancé, her child would be taken away.
Defendant rubbed her shoulders and then performed a full body massage that
included her groin area. Although defendant asked her if she wanted him to still
operate on a professional level and that it was up to her, he continued the massage,
pulled up her sports bra, pulled her shorts down, and digitally penetrated her. JG
testified that she knew he would not stop until he got what he wanted. They then
performed oral sex on each other and had intercourse. In light of all the
circumstances, Premo, 213 Mich App at 409-411, the evidence established that
defendant used his position of authority to manipulate and coerce JG to perform the
sexual acts with him. [Green, 313 Mich App at 539-541 (second and third
alterations in original).]
In People v Bayer, 279 Mich App 49, 66; 756 NW2d 242 (2008), vacated on other grounds
482 Mich 1000 (2008), this Court upheld a defendant’s CSC convictions under a coercion theory,
even though the sexual acts occurred while the victim was an adult and the victim admitted to
being attracted to the defendant. The defendant was the adult victim’s psychiatrist. Id. at 51.
During treatment sessions, the defendant made sexual advances and eventually engaged in a sexual
relationship with the victim. Id. at 52-53. The defendant and the victim engaged in this
relationship in the defendant’s office and in various motels. Id. at 52-54. Additionally,
According to the victim, defendant advised her not to confess her
relationship with him to her husband or to reveal the types and amounts of
medication she was prescribed. The victim acknowledged that she had feelings for
defendant, but opined that her sexual encounters with him were attributable to her
-10-
highly medicated condition. The victim informed defendant that she had developed
suicidal ideation but asserted that defendant discouraged her from seeking
hospitalization and from consulting other professionals for treatment. The victim
reported that defendant offered her $50,000 to not reveal their relationship to
anyone. The victim finally terminated her contacts with defendant following her
attempted suicide. [Id. at 54-55.]
On appeal, the defendant argued, in part, that the victim consented to the sexual
relationship. Id. at 63-64. This Court rejected this argument, explaining that:
Although defendant denies the use of any medical pretext for the sexual
encounters, a factual issue exists. While the victim acknowledged having
“feelings” for and a sexual attraction to the defendant, this is not dispositive of
whether defendant victimized her. The victim’s voluntary participation in this
relationship is called into question by the inherent inequality and potential for
exploitation within the doctor-patient relationship. The medical profession’s code
of ethics expressly provides that sexual contact between a doctor and a patient is
absolutely inappropriate, unethical, and unacceptable under any set of facts or
circumstances. In addition, this victim’s ability to either consent or voluntarily
participate in this relationship is questionable because of her history of mental-
health issues and susceptibility to manipulation through defendant’s prescription of
multiple medications. Defendant was well aware of the victim’s condition given
his prolonged history of involvement as her therapist. As such, defendant’s actions
are particularly egregious. [Id. at 66-67.]
Further rejecting the defendant’s argument in regard to consent and force or coercion, this Court
explained:
Contrary to defendant’s argument, the presence of consent is not necessarily the
factual equivalent of the absence of coercion. Rather, it is a determination of the
validity of that consent that is the focus of the inquiry. The fact that a victim
“consented” to the touching, or even voluntarily pursued an intimate relationship
with the therapist, is only of significance if it can also be shown that there exists no
inference or demonstration of impermissible manipulation by the medical
professional of his or her patient to secure the sexual contact. [Id. at 68.]
In People v Regts, 219 Mich App 294, 296; 555 NW2d 896 (1996), this Court affirmed a
circuit court’s reinstatement of charges following a district court’s denial of bindover when the
defendant, as the victim’s psychotherapist, manipulated therapy sessions to
establish a relationship that would permit his sexual advances to be accepted
without protest. That is, he subjugated the victim into submitting to his sexual
advances against her free will. Accordingly, the circuit court properly reinstated
charges with respect to all “coercion” theories.
The prosecution also cites Knapp, 244 Mich App at 372, for the proposition that “the
characteristic dominant and subordinate roles in any teacher-student relationship places the student
-11-
in a position of special vulnerability.” Upholding the defendant’s conviction, the Knapp Court
explained the proposition this way:
We find the circumstances of this case particularly illustrative of this point. The
complainant was the only young adolescent in a class taught and attended by adults.
Given his age, the unconventional nature of the “curriculum,” and the trust
defendant fostered with the complainant’s mother, the complainant was highly
susceptible to abuse. Under these circumstances, we find that defendant exploited
and abused his position of authority to compel an extremely vulnerable youth to
engage in sexual contact. This clearly constitutes coercion for purposes of this
section of the CSC II statute. [Id.]
In this case, we conclude that the prosecution presented sufficient evidence at the
preliminary examination to support bindover of the four appealed charges against defendant. See
Fairey, 325 Mich App at 649. The relevant statutes and our state’s caselaw support the
prosecution’s theory of constructive coercion. As this Court has recognized, the CSC statutes’
definition of what constitutes force or coercion are not exhaustive by their own terms. Greene,
313 Mich App at 539. All the facts and circumstances can be considered when determining
whether sexual conduct was coerced. Id. In other words, our state’s caselaw makes it clear that
coercion can manifest in ways unique to the relationship between a defendant and a victim, and in
ways unique to how that relationship developed.
The record reflects the following testimony in support of the charges. The relationship
between the complainant and defendant began when the former was 10 years old. Defendant was
the complainant’s priest. The complainant and his family were practicing Catholics. The
complainant’s mother encouraged him to seek mentorship from defendant in hopes that he would
become a priest himself. The complainant testified that he was raised to believe that Catholic
priests deserved the utmost respect. The complainant testified that defendant began with small
acts and over time began the sexual acts with him. The complainant testified that defendant told
him that everything that was happening was normal and natural, and that everything would be
okay. The complainant testified that defendant gave him alcohol and cigarettes before performing
sexual acts with him.
Although the record is undisputed that defendant ceased to be the complainant’s priest
when the complainant was about 12 years old and that the statute of limitations barred any acts
that occurred at that time, the complainant testified that the mentoring relationship continued. The
complainant’s mother continued to encourage the relationship, including by driving him to
defendant’s residences in Hillsdale, Ann Arbor, and Michigan Center. The record was also
undisputed that, although defendant was no longer the complainant’s priest, he was still a priest,
and still owed the “highest form of respect,” as the complainant called it. The complainant testified
that, by the time defendant was assigned to the parish in Ann Arbor, the complainant believed that
their relationship and the sexual acts committed between them were normal. The complainant
testified that he felt that had he no choice but to submit to defendant’s sexual acts or requests. He
testified that he continued to feel “guilty” when he declined to spend time with his mentor.
The complainant also testified that, when defendant was still assigned to Hillsdale (during
a time still barred by the statute of limitations), defendant threatened him by stating that he would
-12-
kill the complainant if he ever told the nuns or his family about defendant’s conduct. The
complainant testified that he considered the threat to be “ongoing.” But admittedly, defendant’s
argument that there is no evidence that this threat was used to accomplish a sexual act, as the
statutes require, see, e.g., MCL 750.520b(1)(f), is at least correct when the comment is construed
narrowly.
Regardless, we rely on, as past panels have done, the totality of the circumstances
surrounding the complainant and defendant’s relationship. See, e.g., Premo, 213 Mich App at 410-
411. In the end, at this stage, this case may be as simple as this: the complainant’s testimony
established probable cause that defendant’s position and the complainant’s upbringing created a
power imbalance that defendant manipulated in order to subdue—or coerce—the complainant into
sexual acts. See Bayer, 279 Mich App at 66-67.
The record also contained evidence of personal injury in the form of mental anguish. The
complainant testified that he attempted suicide or came close to doing so when he began driving
his father’s truck at 100 miles an hour toward a tree but swerved back onto the road at the last
second. The complainant testified that his relationship with defendant also led to his questioning
his sexual orientation.
In contrast, defendant primarily relies on our Supreme Court’s unanimous decision in
People v Perkins, 468 Mich 448; 662 NW2d 727 (2003), arguing that it is “particularly relevant”
given a “striking similarity to the present case.” At issue in Perkins was whether the prosecution
presented enough evidence to secure a bindover on several charges, one being CSC-I. Id. at 449.
The defendant, Perkins, was a Bay County deputy sheriff. Id. at 450. The victim was a 16-year-
old girl. Id. The victim “was a close friend of [Perkins’s] family.” Id.
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.
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
-13-
complainant and defendant hugged and talked about her trip to Mexico. Finally,
the complainant fellated defendant. [Id. at 450-451.]
The prosecution charged Perkins with, among other things, CSC-I. Id. at 451. But the district
court dismissed this charge following the preliminary examination. Id.
Defendant emphasizes the prosecution’s theory in that case:
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. [Id. at 454.]
On appeal, this Court reversed and reinstated the charge. Id. at 455. But our Supreme
Court disagreed. Id. It reasoned as follows:
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.
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. [Id. at 454-455.]
We are not persuaded by defendant’s analogy to Perkins. There is no discussion in Perkins
that the defendant used his position as a police officer to build a relationship with the complainant.
Their relationship came about after the complainant became a friend of Perkins’s family. There
was no allegation that Perkins wielded his office and authority to subdue or manipulate the
complainant. There was no allegation that the complainant’s family encouraged her to build a
mentor-mentee relationship with Perkins or that her family had any special reverence for police
officers. In other words, Perkins’s status as an authority figure appears to have been rather
incidental to that case.
-14-
The Perkins Court also found instructive that the complainant initiated the meeting that
gave rise to the charges after a month away from Perkins and that the ongoing sexual relationship
between Perkins and the complainant ended when the complainant began a relationship with her
husband. In contrast, there is no evidence in this case that the complainant ever initiated contact
with defendant. At most, there is evidence that the complainant drove himself to defendant’s
residence after obtaining his driver’s license. But again, the complainant’s family continuously
encouraged the relationship. There is no evidence that a significant break occurred in the
relationship, although the relevance of that may be minimal when the complainant testified that
the relationship was ongoing for many years. Short breaks in the relationships, therefore, may
not be relevant. The complainant’s testimony about his attempted or near-attempted suicide is
also distinguishable, possibly demonstrating that the complainant wanted out of the relationship
with defendant but did not know how, unlike the complainant in Perkins, who again, initiated the
meeting during which the alleged sexual assault occurred and ended the relationship when she
entered a new relationship.
Defendant correctly notes that some cases discussing positions of authority and coercion
arose under MCL 750.520b(1)(b)(iii) and MCL 750.520c(1)(b)(iii), which are applicable when the
victim “is at least 13 but less than 16 years of age” and the “actor is in a position of authority over
the victim and used this authority to coerce the victim to submit.” That said, this Court has cited
cases crossing the different CSC subsections when determining what constitutes coercion, finding
cases involving different subsections “highly instructive.” Reid, 233 Mich App at 469.
Reversed and remanded for proceedings consistent with this opinion. Counts 3, 4, 7, and
8 are reinstated. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
-15-