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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 23, 2015

v No. 320951 Midland Circuit Court JOHN JAMES BILLINGHIRE, JR., LC No. 12-005117-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and M URPHY and S ERVITTO , JJ.

P ER C URIAM

. Following a jury trial, defenda nt was convicted of two counts of fourth-degree criminal sexual conduct (CSC IV), MCL 750. 520e. He was sentenced to ser ve one year in jail, and to pay a fine of $1,500. Defendant appeals as of right, and we affirm

.

I. BACKGROUND FACTS

Defendant was employed as the general manager of a restaurant in Midland. As manager, defendant interviewed and hired both of the victims: C .H. was hired as a server, and J.P., a minor, was hired to be a hostess and to bus tables. Bo th victims testified that during their employment interviews, defendant asked them inappropriate and s exually explicit questions. Once their employment began at the restaurant, defendant contin ued to make sexually inappropriate remarks to the victims while they were working. C.H. testified that defendant offered to take nude pictures of her to give to her husband, an d J.P. testified that defendant asked her to help “break in” his bed dur ing a “tour” of his apartment , which was above the restaurant.

The victims testified further t hat defendant touched them inap propriately while they were working. Both victims testified that defendant touched their b uttocks on numerous occasions, usually in the presence of other people, but appa rently in a cl andestine manner. J.P. also testified that defendant once rubbed her breasts with his hand and asked her “how big” they were. Both victims testified that while the y were on separate work assignm ents with defendant in a vehicle that defendant was driving, defendant placed his hand on their legs and touched their genital area over their clothing. Although both victims expressed that they did not initially report defendant’s behavior because they were concerned about the secu rity of their jobs, C.H. eventually reported it to the owners of the restaurant. Both v ictims later reported their claims to law enforcement officers , and this case ensued.-2- Defendant argues on appeal that the evidence presented at tria l was insufficient to support his convictions, and that he is entitled to a new trial because the prosecution suppressed material evidence in violation of Brady v Maryland , 373 US 83; 83 S Ct 1194; 10 L Ed 215 (1963). We disagree and conclude that the evidence was sufficient to suppo rt defendant’s c onvictions, and that defendant has not established a Brady violation.

II. INSUFFICIENT EVIDENCE

Defendant first argues that the evidence was insufficient beca use the prosecution relied on the victims’ testimony and they were not credible witnesses. The victims testified at trial that when they initially reported their claims to a police officer, the officer told them that defendant’s actions did not comprise any criminal offense. C.H. testified that the officer told her to consult with an attorney, so both victims did so. After speaking with an attorney, both victims returned to the police station and spoke with a different police officer , and these charges were eventually filed. Defendant asserts that th e victims consulted an attorne y for “financial gain,” although he does not explain how the victims stood to gain financially from speaking with an attorney, nor has he offered any evidence that they have had any “financial g ain.” Defendant also claims that the victims must have embellished their claims when speaking wi th the second officer in order to ensure that criminal charges would be filed against him.

In fact, there is no information in the record about what the victims initially reported to the police officer because the first officer failed to file a w ritten report. Lastly, defendant claims that the victims attempted to persuade other employees at the r estaurant “to get on the ‘bandwagon’ and join a lawsuit against defendant.” However, th ere was conflicting testimony at the trial regarding the victims’ alleged “bandwagon” attempts.

Our Supreme Court has held that “[t]he jury is the sole judge o f the facts; its role includes listening to testimony, weighing ev idence, and making credibili ty determinations.” People v Mardlin , 487 Mich 609, 626; 790 NW2d 607 (2010). Through listening an d observing witnesses and testimony, juries are able to make determinations regarding credibility and evidence; “appellate courts are not juries, and even when reviewing the s ufficiency of the evidence they must not interfere with the juries role” as juries are in a mor e favorable position than appellate courts to make those determinations. People v Wolfe , 440 Mich 508, 514-515; 489 NW2d 748 (1992). Clearly, the jury found the victims to be credible wit nesses, and nothing in the record convinces us that a rational tr ier of fact could not have come to this determination. See People v Herndon , 246 Mich App 371, 415; 633 NW2d 376 (2001). We find that def endant’s arguments about the victims’ lack of credibility are not persuasive. In addition, the evidence presented was sufficient to establish that defendant committed this offense.

In People v Patterson , 428 Mich 502, 515; 410 NW2d 733 (1987), our Supreme Court held that in order to prove a charge of CSC IV, the prosecution must show that the defendant “intentionally touched the complainant’s genital area, or the c lothing covering that area [1] ;

1 Although Patterson specifies that a defendant must intentionally touch a complain ant’s “genital area,” MCL 750.520a(q) defines “se xual contact” as “the intenti onal touching of the victim’s or-3- second, the touching must have be en done with the intent and fo r the purpose of sexual arousal or sexual gratification; and, third, force or coercion must hav e been used to accomplish the sexual contact.” We find that the evidence presented in the in stant case established these elements.

Both of the victims testified that defendant touched them repea tedly on the clothing over their buttocks while they were at work, and each victim testifi ed that defendant had touched her genital area while driving them in a vehicle on a work assignme nt. J.P. also testified that defendant touched her breasts without her consent while she was at work. Under Patterson , this testimony was sufficient to establish the first element of the offense beyond a reasonable doubt. Patterson, supra , at 515; MCL 750.520a(f), (q).

Secondly, the evidence was suffici ent to allow a rational juror to conclude beyond a reasonable doubt that defendant’s touching of the victims could “reasonably be construed as being for the purpose of sexual arousal or gratif ication, [or] done for a sexual purpose.” MCL 750.520a(q). The evidence demonstr ated that defendant had esta blished a pattern of touching the victims inappropriate ly and of making sexual comments to them a nd to others under his authority at the restaurant. C.H. testified that in addition to his repe ated requests to take nude pictures of her, defendant also asked her more than once whether she and he r husband engaged in sexual acts with additional partners. J.P. testified that defendant i nvited her into his apartment during her interview to “break . . . in” his bed. Additionally, the r estaurant’s co-owner testified that several employees complained about defendant’s inappropriate se xual comments or touching during his investigation of C.H.’ s allegations. This testimony was sufficient to establish beyond a reasonable doubt that defendant touched the victims for the p urpose of sexual arousal or gratification.

Finally, the prosecution was requ ired to show that force or coe rcion was used to accomplish the sexual contact. Patterson
, supra , at 515. This Court ha s held that “force or coercion is not limited to physical violence but is instead det ermined in light of all the circumstances.” People v Brown , 197 Mich App 448, 450; 495 NW2d 812 (1992). As the general manager of the restauran t, defendant hired both of the victims and was their immediate supervisor. In addition, a close relative of one of the victim s also worked at the restaurant. Both victims testified that they di d not immediately report defendan t’s conduct to the owners or to the police because they were concerned about their jobs or those of family members. This testimony was sufficient to show that defendant used his position of auth ority as “implied, legal, or constructive coercion” to accomplish the touching. People v Premo , 213 Mich App 406, 411; 540 NW2d 715 (1995). We find that the evidence presented was s ufficient to establish the elements of the offense.

actor’s intimate parts or the int entional touching of the cloth ing covering the immediate area of the victim’s or actor’s intimate parts[.]” “Intimate parts” is defined to include “the primary genital area, groin, inner thigh, buttock, or breast of a human being. MCL 750.520a(f). We use the broader statutory definiti on of sexual contact in our analy sis.-4- Additionally, all the evidence defendant claims tarnishes the reliability of the victims was presented to the jury. We will not stand in the pl ace of the jury when it comes to judging the credibility of the witnesses. Mardlin , 487 Mich at 626.

III. BRADY VIOLATION

Defendant argues that his right to a fair trial was violated b ased on the suppression of evidence by the prosecution. In defendant’s motion for new tri al, defense counsel asserted that they did not learn the identity of the officer with whom the vi ctims spoke during their initial visit to the police station until after trial because there was no re cord of the victims’ visit. Defendant argued that the “missi ng” officer’s testimony was material to the outcome of the case because the officer would have corroborated d efendant’s argument that the v ictims embellished their stories after their first meeting with the police failed to result in t he filing of charges against defendant. We agree with the circuit cour t’s finding that there was no Brady violation in this case.

In Brady , discussed by our Supreme Court in People v Chenault , 495 Mich 142; 845 NW2d 731 (2014), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request vi olates due process where the evidence is material either to guilt or to punishment, irrespec tive of the good faith or bad faith of the prosecution.” Chenault, supra , at 149, citing Brady, supra , at 87 (quotation marks omitted). In Chenault , our Supreme Court also discusse d the test the United States S upreme Court set forth in Strickler v Greene , 527 US 263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999) an d determined that a Brady violation has occurred if: “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its tot ality, is material.” Chenault, supra
, at 155. We find that there was no Brady violation in the instant case because the evidence was not clearly favorable to defendant, and because defendant has n ot shown that it was material to his case.

Defendant has establishe d the first part of the Chenault test. Although there is no evidence in the record to suggest that the prosecutor acted in bad faith to prevent defendant from discovering this evidence, evidence is considered suppressed wh ere it is within the prosecutor’s control, even when it is unknown to the prosecution, and “witho ut regard to the prosecution’s good or bad faith.” Chenault, supra , at 150. During the hearing on defendant’s first motion for new trial, the prosecutor told the court that the Midland polic e chief knew the identity of the officer with whom the victims ha d spoken, and also that the off icer had been “spoken to” regarding his failure to file a written report of their allegat ions. These statements indicate that this evidence was within the pro secution’s “control” before tri al; thus, it may be considered to have been suppressed. Defendant was not required to find this evidence himself because Chenault eliminated the requirement that in order to find that there wa s a Brady violation, a defendant would have to show that defense counsel could not hav e obtained the evidence “himself with any reasonable diligence.” Id. at 151, citing People v Lester , 232 Mich App 262, 281; 591 NW 2d 267 (1998).

Secondly, Chenault required defendant to show tha t the evidence was favorable to him. Chenault
, supra , at 155. Given the (previous ly missing) officer’s testimony a t the hearing on defendant’s second motion for new trial, we conclude that defen dant has not satisfied this element. Defendant argues that the officer would not have disr egarded the victims’ claims if-5- they had reported to him the same instances of nonconsensual to uching that they testified to at trial. We are not persuaded by this argument given the officer ’s testimony that he did not even remember speaking with victims, let alone the substance of thei r complaints. Moreover, the officer’s testimony indicated that if the victims had reported that defendant had touched them inappropriately, he may not have pursued charges against defend ant based on the allegations 2

. Because defendant has not demonstrated that the officer’s testi mony was favorable to his case, we find that he has not estab lished the second part of the Chenault/Strickler test.

Finally, defendant has failed to demonstrate that the suppresse d evidence was material to the outcome of the case. In making this determination, the que stion we must ask “is not whether the defendant would more likely than not have received a differ ent verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’” Chenault
, supra , at 157, quoting Kyles v Whitley , 514 US 419, 434; 115 S Ct 1555; 131 L Ed 2d 490 (1995). In this case, the record clearly indicates that the officer’s testimony was not material to the case. As previously mentione d, the officer did not remember speaking with the victims, or the substance of their allegation s. Consequently, the officer could not have testified at trial that the victims’ allegations did n ot meet the requisite threshold for filing CSC IV charges against defendant. Because the officer c ould not testify with any specificity as to his actions i n this case, his testimony at th e hearing does not undermine confidence in the verdict. The evidence was not material, and defendant received a fair trial without it and is not ent itled to a new trial.

Affirmed.

/s/ Amy Ronayne Krause /s/ William B. Murphy /s/ Deborah A. Servitto

2 At the hearing on defendant’s second motion for new trial, the officer testified that “if a girl was in high school and her boyfriend slapped her on the butt or something, would I, you know, contact the parents immediately? I would probably tell her to go home and tell her parents. And if they want to come in and talk to me, then they can.” This t estimony suggests that the officer may have determined that the victims’ allegations, as stated at trial, did not warrant the filing of criminal charges against defendant.