People of Michigan v. Christian William Hess ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 19, 2017
Plaintiff-Appellee,
v No. 327890
Berrien Circuit Court
CHRISTIAN WILLIAM HESS, LC No. 2014-002613-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
PER CURIAM.
Defendant was convicted by a jury of accosting a minor for immoral purposes, MCL
750.145a. Defendant was sentenced to two days in jail and 60 months’ probation. Defendant
now appeals as of right. Because the evidence was sufficient to support defendant’s conviction,
we affirm.
According to the evidence introduced at trial, when defendant was 17 years old and a
high school senior, he pursued a relationship with the 13-year-old victim, which culminated in an
act of sexual intercourse between defendant and the victim. The jury convicted defendant of
accosting a minor for immoral purposes.1 On appeal, defendant’s sole argument is that the
evidence was insufficient to support his conviction. In particular, highlighting the evidence
favorable to his position, defendant maintains that the decision to have sex was “mutual” and,
because the victim willingly consented to the sexual penetration, the jury could not conclude that
defendant accosted, enticed, or solicited the victim with the intent to induce her to submit to
sexual intercourse or that he encouraged her to submit to an act of sexual intercourse. We
disagree.
A challenge to the sufficiency of the evidence supporting a criminal conviction is
reviewed de novo. People v Harverson, 291 Mich. App. 171, 177; 804 NW2d 757 (2010). This
Court considers the evidence in a light most favorable to the prosecution to determine whether a
rational trier of fact could find that the prosecution proved the essential elements of the crime
1
The jury returned a verdict of not guilty with respect to a charge of third-degree criminal sexual
conduct.
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beyond a reasonable doubt. People v Wolfe, 440 Mich. 508, 515; 489 NW2d 748 (1992),
amended 441 Mich. 1201 (1992). “Circumstantial evidence and reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime.” People v
Williams, 268 Mich. App. 416, 419; 707 NW2d 624 (2005). Because of the difficulty inherent in
proving a defendant’s state of mind, minimal circumstantial evidence will suffice to establish a
defendant’s intent. People v Kanaan, 278 Mich. App. 594, 622; 751 NW2d 57 (2008). “All
conflicts in the evidence must be resolved in favor of the prosecution and we will not interfere
with the jury's determinations regarding the weight of the evidence and the credibility of the
witnesses.” People v Unger, 278 Mich. App. 210, 222; 749 NW2d 272 (2008).
Defendant was convicted under MCL 750.145a. In relevant part, this provision states:
A person who accosts, entices, or solicits a child less than 16 years of
age . . . with the intent to induce or force that child . . . to commit an immoral act,
to submit to an act of sexual intercourse or an act of gross indecency, or to any
other act of depravity or delinquency, or who encourages a child less than 16
years of age . . . to engage in any of those acts is guilty of a felony . . . . [MCL
750.145a.]
Summarizing the elements of this offense, the Michigan Supreme Court has explained that the
statute contemplates two alternative methods of accosting a minor for immoral purposes. People
v Kowalski, 489 Mich. 488, 498-499; 803 NW2d 200 (2011).
Because the Legislature used the disjunctive term “or,” it is clear that there
are two ways to commit the crime of accosting a minor. A defendant is guilty of
accosting a minor if the prosecution proves beyond a reasonable doubt that the
defendant (1) accosted, enticed, or solicited (2) a child . . . (3) with the intent to
induce or force that child to commit (4) a proscribed act. Alternatively, a
defendant is guilty of accosting a minor if the prosecution proves beyond a
reasonable doubt that the defendant (1) encouraged (2) a child . . . (3) to commit
(4) a proscribed act. Taken as a whole, the statute permits conviction under two
alternative theories, one that pertains to certain acts and requires a specific intent
and another that pertains to encouragement only and is silent with respect to mens
rea. [Id. (footnotes omitted.)]
In this case, the jury was instructed on both theories, and the evidence was sufficient to
support defendant’s conviction under either theory. The evidence showed that defendant
cultivated a relationship with the 13-year-old victim over a period of months by frequent
communication via text and social media as well as engaging in activities with the victim, such
as driving her places, attending basketball games, and going to the mall. Defendant spent time
alone with the victim, and twice he spent the night with her at a friend’s house where their
sleeping arrangements progressed from separate couches to sharing a bed. The victim testified
that she loved defendant and that she thought their relationship was that of
“girlfriend/boyfriend.” However, during this time that defendant pursued the victim, he
endeavored to keep the relationship a secret. For instance, he would drop the victim off at her
house, but he never went in to meet with her family; and, on another occasion, he lied to the
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victim’s mother and told her that he would stop seeing the victim. Indeed, although the victim
was repeatedly disciplined at home for seeing defendant, defendant continued to make plans to
see the victim and to meet with her secretly when he knew she was not allowed to see him.
Most notably, after cultivating a relationship with the victim, the evidence shows that
ultimately defendant induced and encouraged the victim to submit to sexual intercourse. On the
night the sexual intercourse occurred, defendant arranged to meet with the victim in a school
parking lot during a basketball game. He borrowed a friend’s car keys so that they would have a
place to go and he had a condom with him in the vehicle. Once in the vehicle, defendant and the
victim talked and kissed. The victim specifically expressed reservations about her relationship
with defendant, stating that she “wasn’t supposed to be with him ‘cause my parents said that it
just . . . was not right.” In response, defendant assured her that “it was okay and everything
would work out when [she] turned 18.” The encounter then turned from kissing to sex.
Although the victim testified that the decision to have sex was “mutual,” she also testified that
defendant “asked” her to have sex and that, for her part, the victim “wasn’t really sure because I
didn’t even know what - - I mean, I knew what sex was but, I didn’t know.” Despite her
uncertainty, the victim “said yes,”2 and they had sex. While having sex, the victim asked
defendant to “stop because it hurt.” Rather than stop, defendant persuaded the victim to
continue, telling her that “if [they] kept going . . . it wouldn’t hurt anymore.” The victim agreed
and they finished having sex. Following this encounter, there was some additional
communication between defendant and the victim; but, he then began to “ignore” the victim and
they stopped talking.
Overall, viewing the evidence in a light most favorable to the prosecution, the facts
demonstrate that defendant undertook efforts to form a secret romantic relationship with the
much-younger victim in the months leading up to the act of sexual intercourse and then, on the
night in question, he allayed her misgivings about their relationship, he asked her to have sex,
and he then urged her to continue having sex despite the pain she experienced during intercourse.
It can reasonably be concluded from this evidence that defendant accosted, enticed, or solicited
the victim with the specific intent to induce the victim to submit to sexual intercourse and that he
2
Insofar as defendant suggests that the victim’s “consent” somehow absolves him of criminal
responsibility under MCL 750.145a, he is mistaken. Legally, a thirteen-year-old child cannot
consent to sexual penetration with another person. People v Starks, 473 Mich. 227, 235; 701
NW2d 136 (2005). And, in fact, “the Legislature has enacted the age-based . . . accosting
statutes to protect children who are not capable of consenting to participate.” People v Gaines,
306 Mich. App. 289, 309; 856 NW2d 222 (2014). Indeed, it is well-settled that children are
uniquely vulnerable to persuasion and outside pressures, JDB v N Carolina, 564 U.S. 261, 272;
131 S. Ct. 2394; 180 L. Ed. 2d 310 (2011), and MCL 750.145a is in fact designed to thwart
predators who induce or encourage children to commit proscribed conduct, such as sexual
intercourse. See Kowalski, 489 Mich. at 500-501 (recognizing MCL 750.145a evinced the
Legislature’s intent to “criminalize a wide range of sexually predatory actions aimed at
children”). Quite simply, a child’s token “consent” to an act of sexual intercourse is not a
defense to MCL 750.145a.
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encouraged the victim to engage in an act of sexual intercourse. See MCL 750.145a; Kowalski,
489 Mich. at 498-501. Thus, under either theory, the evidence was sufficient to support
defendant’s conviction for accosting a minor for immoral purpose under MCL 750.145a.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto
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