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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 29, 2002
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 118915
 

ERIC STEVEN CARLSON,
 

Defendant-Appellant.
 

PER CURIAM
 

The defendant was charged with third-degree criminal
 

sexual conduct (CSC III), but the district court refused to
 

bind the defendant over to stand trial. The circuit court
 

affirmed. The Court of Appeals reversed and remanded for
 

clarification of the district court judgment. Because the
 

district court’s decision in this matter, perhaps based on
 

dicta in People v Patterson, 428 Mich 502; 410 NW2d 733
 

(1987), may have been improperly influenced by a view that the
 

prosecution had to present evidence that defendant “overcame”
 

the victim, we vacate the judgment of the Court of Appeals and
 
remand this case to the district court for reconsideration
 

consistent with this opinion.
 

I
 

This case concerns a January 23, 2000, incident involving
 

two students of the same high school, about six months apart
 

in age. Charged with third-degree criminal sexual conduct
 

"using force or coercion to accomplish the sexual
 

penetration," in violation of MCL 750.520d(1)(b)1, the
 

defendant was brought before the district court for a
 

preliminary examination. The factual record in this case
 

consists of the transcript of that proceeding.
 

The complainant was a sixteen-year-old tenth grader when
 

these events occurred.2 She had known the defendant between
 

eighteen and twenty-four months. About two weeks before the
 

January 23, 2000, incident, defendant had driven the
 

1 MCL 750.520d(1) provides:
 

A person is guilty of criminal sexual conduct


in the third degree if the person engages in sexual


penetration with another person and if any of the


following circumstances exist:
 

* * *
 

(b) Force or coercion is used to accomplish


the sexual penetration. Force or coercion includes
 

but is not limited to any of the circumstances


listed in [MCL 750.520b(1)(f)(i) to (v)].
 

2
 The factual account set forth in this opinion comes


from the testimony of the complainant on direct examination at


the defendant’s preliminary examination. This case has not
 

been tried, and we treat these facts as true only for the


purpose of our present analysis.
 

2
 
complainant to the parking lot of a Meijer store where
 

consensually he digitally penetrated her and she manually
 

masturbated him.
 

On January 23, the defendant telephoned the complainant
 

after school to ask if she wanted to "hang out." She agreed.
 

He picked her up in an automobile and drove her to the parking
 

lot of a YMCA. The complainant allowed the defendant to
 

unbutton her blue jeans and to digitally penetrate her. The
 

complainant testified, “He started making out again, the same
 

stuff, and then wanted to have sex with me and I said no. He
 

asked me why. I just said because I don't want to.” After an
 

interval, the defendant repeated his request that they have
 

sexual intercourse. The complainant again said “no,”
 

explaining that she “didn’t want to.” “He [next] asked me if
 

he could just stick [it] in once and I said no.” He
 

essentially repeated the question several times, and she would
 

not answer him “[bec]ause I didn’t want to answer him any
 

more.” She acknowledged that she did not physically restrain
 

or push him away and then said, “He stuck it in anyways and
 

kept moving and asked me if I was enjoying it and I said I
 

didn’t want to do it.” When asked how he got it in, she said,
 

“He got on top of me and put it in.”
 

II
 

The assistant prosecutor moved that the defendant be
 

bound over for trial. In response, defense counsel argued
 

3
 
that lack of consent by a complainant is not the same thing as
 

force or coercion by a defendant. The assistant prosecutor
 

disagreed:
 

There doesn't have to be bruises. There has
 

to be [sic] against the will. This was not a
 

willing partner at this time and that's all the


force that is necessary plus you look at all the


circumstances. This is your classic example of
 

date rape. When an individual is a situation [sic]


where I'm not going to take no for an answer, and


he wanted what he wanted, and he took it from her


without her permission when she said no. That's
 

force or coercion and that means he should be bound
 

over, Your Honor.
 

The district court denied the prosecution’s motion to
 

bind over defendant on the CSC III charge on the ground that
 

there was “[in]sufficient evidence of overcoming the victim
 

through the use of physical force that rises to the level
 

required by this statute.” The district court also stated
 

that there was “no evidence of any threats or coercion here.”
 

Of particular importance, the district court elaborated:
 

It is the argument of the prosecutor, that it


is enough that she said no and that they don’t have


to establish that she resisted. It is true that
 

resistance need not be shown. But there still has
 

to be, in my opinion, enough----some evidence that
 

Defendant used physical force to overcome her.
 

Again, it is the prosecution’s argument that the


fact that she said no yet he continued, got on top


of her and they had these relations; that that


satisfies the definition, or that the facts in that


scenario satisfies [sic] the definition of physical


force intended by the statute.
 

. . . [T]here has been no evidence presented that
 

he overcame her in any physical way other than her
 

testimony that he got on top of her. And while
 

it’s not necessary to show lack of resistance, I
 

believe that the legislature intended and logic
 

requires that there be some evidence of actual
 

4
 
 

physical force to overcome her. There’s no
 

indication, and we’re getting really kind of
 

detailed here, but there’s no indication he pushed,


or held her down, or forced her legs apart, there’s


no indication he did anything to force her other


than to get on top of her. There’s no indication
 

of any fear or physical resistance on her part and


even though it’s not necessary that the prosecution


show resistance, there is no indication of any, and


that enters into my judgment as a factor as to


whether or not there was force. [Emphasis added.]
 

The prosecuting attorney appealed, but the circuit court
 

affirmed the judgment of the district court. The circuit
 

court explained:
 

Both parties were apparently in such a state


of undress from their admittedly mutually agreeable


sexual activity that no further undressing was


necessary. The Defendant then got on top of her


and inserted his penis into her vagina.
 

* * *
 

In this case there is no evidence that by


getting on top of her the Complainant was rendered


helpless or that Defendant used superior strength


to overcome her. Although the Prosecuting Attorney


would like the Court to draw that inference it is
 

just as fair an inference that in doing this


Defendant did nothing more than assume a normal


sexual position. There is no evidence that
 

Defendant forced Complainant’s legs apart or placed


her body in a position to receive him. This may


have happened but there is no evidence of it in the


record leaving only speculation for the Court to


draw such a conclusion. The inference from the
 

record is just as probable that in addition to no


longer answering Defendant’s questions about
 

engaging in sex she also cooperated by placing her


body in a position to receive Defendant just as she


had cooperated in the prior sexual activity.
 

The Court of Appeals reversed on the ground that two of
 

5
 
its earlier decisions3 “clearly establish that when a victim
 

refuses to engage in sexual activities and the defendant
 

ignores the refusal and penetrates the victim anyway,
 

sufficient evidence exists to satisfy the force or coercion
 

requirement.” As an alternative ground for reversal, the
 

Court cited the “surprise” circumstance described in MCL
 

750.520b(1)(f)(v), saying that the complainant “may have been
 

surprised that an acquaintance, defendant, would disregard her
 

failure to consent and proceed against her wishes.”
 

The Court of Appeals held that “the examining magistrate
 

erroneously concluded that the element of force or coercion
 

had not been established.” Rather than reverse outright,
 

however, the Court remanded the case for clarification of the
 

district court’s opinion, stating that the district court may
 

have relied in part on its assessment of the complainant’s
 

credibility.
 

In dissent, Judge CAVANAGH distinguished the earlier
 

decisions cited by the majority, and said that the district
 

court had not erred in its conclusion that there was
 

insufficient evidence of force or coercion to bind the
 

defendant over for trial.
 

The defendant has applied to this Court for leave to
 

appeal.
 

3 People v Kline, 197 Mich App 165, 166-167; 494 NW2d 756
 

(1992); People v Brown, 197 Mich App 448, 450-451; 495 NW2d


812 (1992).
 

6
 
III
 

We review for abuse of discretion a district court’s
 

decision whether to bind a defendant over for trial. People
 

v Justice, 454 Mich 334, 344; 562 NW2d 652 (1997). To the
 

extent that this inquiry requires examination of the meaning
 

of the underlying criminal statute, we face a question of law
 

that we review de novo. People v Mass, 464 Mich 615, 622; 628 

NW2d 540 (2001). 

IV

 Central to resolution of this case is the meaning of the
 

phrase “force or coercion” as used in MCL 750.520d(1)(b), the
 

statutory provision that defendant was accused of violating by
 

using force or coercion to accomplish a sexual penetration of
 

the complainant.4
 

4 This provision states that “[f]orce or coercion


includes but is not limited to any of the circumstances listed


in [MCL 750.520b(1)(f)(i) to (v)].” Emphasis added. In turn,


MCL 750.520b(1)(f)(i) to (v) enumerates the following


circumstances as involving force or coercion:
 

(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.
 

7
 
As set forth above, the district court indicated that, to
 

support the charge of CSC III, there had to be evidence that
 

defendant “used physical force to overcome” the complainant
 

and that the prosecution failed to present such evidence in
 

this case. This view may have derived from dicta in our
 

opinion in Patterson, supra. In this regard, we note that the
 

circuit court, in affirming the district court’s refusal to
 

bind over defendant, quoted out of context from Patterson,
 

supra at 523 as follows:
 

The force to which reference is made is not
 

the force inherent in the act of penetration but


the force used or threatened to overcome or prevent


resistance by the female. [Emphasis omitted.]5
 

An understanding of Patterson should begin with the
 

highly peculiar circumstances of that case. The defendant in
 

Patterson was accused of inappropriately touching the victim’s
 

private area through her underwear while she was asleep. See
 

Patterson, supra at 505-506. The prosecution charged him with
 

fourth-degree criminal sexual conduct (CSC IV) on the basis of
 

(iv) When the actor engages in the medical


treatment or examination of the victim in a manner
 

or for purposes which are medically recognized as


unethical or unacceptable.
 

(v) When the actor, through concealment or by


the element of surprise, is able to overcome the


victim.
 

5 This sentence was set forth in Patterson as a quotation


from the decision of the California Court of Appeal in People
 

v Kusumoto, 169 Cal App 3d 487, 493; 215 Cal Rptr 347 (1985),


which was in turn quoting 3 Wharton, Criminal Law (14th ed),


§§ 287-288, pp 30-34.
 

8
 
MCL 750.520e(1)(a), as then in effect, which prohibited
 

accomplishing sexual contact by “[f]orce or coercion,”6 and
 

the defendant was convicted of that charge. Patterson, supra
 

at 506, 509. Puzzlingly, the prosecution did not charge the
 

defendant under a different subsection of the CSC IV statute,
 

MCL 750.520e(1)(b) as then in effect, which expressly
 

prohibited having sexual contact with a person “[t]he actor
 

knows or has reason to know . . . is . . .physically
 

helpless.”7 This is particularly difficult to understand
 

because “physically helpless” was specifically defined in the
 

criminal sexual conduct statute, MCL 750.520a(i) as then in
 

effect, to include a person who is “asleep.” Thus, as the
 

Patterson Court indicated, the alleged conduct in that case
 

would squarely have fallen under the subsection of the CSC IV
 

statute that, among other things, prohibited sexual contact
 

with a “physically helpless” person, but the prosecution did
 

not rely on that subsection. Patterson, supra at 510, n 8.
 

In a quite expansive opinion, this Court rejected the
 

prosecution’s attempt to fit the facts of Patterson into the
 

“force or coercion” subsection of the CSC IV statute. The
 

actual basis for this holding was set forth as follows:
 

[T]he Legislature intended to treat sexual


assaults accomplished by force or coercion
 

6
 A substantially similar provision is codified in the


present CSC IV statute as MCL 750.520e(1)(b).
 

7
 A substantially similar provision is codified in the


present CSC IV statute as MCL 750.520e(1)(c).
 

9
 
separately from assaults on physically or mentally


incapacitated victims.
 

Our holding is supported by the rules of
 

statutory construction. Criminal statutes must be
 

strictly construed. If this Court were to
 

interpret defendant’s conduct in this case to be


included within the provisions of subsection 1(a)


of the fourth-degree criminal sexual conduct
 

statute [prohibiting the use of “force or coercion”


to accomplish sexual contact], this would render


the language of subsection (1)(b) of the statute


[prohibiting, in pertinent part, sexual contact


with a “physically helpless” person] a nullity.


[Patterson, supra at 526-527.]
 

Simply put, the actual rationale for the holding in Patterson
 

was that, because the Legislature included a separate
 

subsection in the CSC IV statute prohibiting sexual contact
 

with a “physically helpless” person (including a sleeping
 

person), it did not view such conduct standing alone as coming
 

within the “force or coercion” subsection of the statute.8
 

This language in Patterson, quoting the California
 

decision in Kusumoto to the effect that the prohibited “force”
 

with regard to sexual penetration “is not the force inherent
 

in the act of penetration but the force used or threatened to
 

overcome or prevent resistance by the female” was mere dicta.
 

The language from Kusumoto was set forth in connection with
 

the argument of the defendant in Patterson that this Court
 

“adopt the approach used in” Kusumoto. Patterson, supra at
 

8
 Of course, this actual holding of Patterson is
 

inapposite to the present case in which the complainant was


not sleeping when the sexual penetration at issue occurred,


but rather was awake and conscious of being sexually
 

penetrated.
 

10
 
521. However, nowhere in Patterson did this Court state that
 

it was actually adopting any rule of law derived from
 

Kusumoto. Rather, as set forth above, this Court’s holding in
 

Patterson was based on an analysis of the structure of the CSC
 

IV statute without any mention of Kusumoto.9
 

Having established that the pertinent language from
 

Patterson was mere dicta, we now consider whether the
 

statutory provision at issue, MCL 750.520d(1)(b), prohibiting
 

the accomplishment of a sexual penetration by “force or
 

coercion” includes any requirement of “overcoming” the victim.
 

As we will explain, we conclude that it does not because
 

imposing such a requirement would amount to the improper
 

insertion of an additional element beyond that required by the
 

statutory language. In other words, if “force or coercion” is
 

used to accomplish a sexual penetration, the statute has been
 

violated.
 

To be sure, the “force” contemplated in MCL
 

750.520d(1)(b) does not mean “force” as a matter of mere
 

physics, i.e., the physical interaction that would be inherent
 

in an act of sexual penetration, nor, as we have observed,
 

does it follow that the force must be so great as to overcome
 

the complainant. It must be force to allow the accomplishment
 

9
 Some confusion might have resulted from this Court’s
 

use of italics to emphasize the pertinent language in
 

Kusumoto. See Patterson, supra at 523. This might lead a


hurried reader to incorrectly treat the emphasized language as


a holding of this Court.
 

11
 
of sexual penetration when absent that force the penetration
 

would not have occurred. In other words, the requisite
 

“force” for a violation of MCL 750.520d(1)(b) does not
 

encompass nonviolent physical interaction in a mechanical
 

sense that is merely incidental to an act of sexual
 

penetration. Rather, the prohibited “force” encompasses the
 

use of force against a victim to either induce the victim to
 

submit to sexual penetration or to seize control of the victim
 

in a manner to facilitate the accomplishment of sexual
 

penetration without regard to the victim’s wishes.
 

Given this understanding of the CSC III statute, we
 

conclude that the district court erred in viewing it as
 

necessary for there to be “some evidence of actual physical
 

force to overcome” the complainant to support a charge of CSC
 

III. While we are uncertain from the record before us, this
 

error may have affected the district court’s analysis in
 

declining to bind over defendant for trial. Accordingly, we
 

conclude that this case should be remanded to the district
 

court for reconsideration of whether the evidence presented at
 

the preliminary examination provided a showing of probable
 

cause that there was force or coercion used to accomplish
 

sexual penetration in light of the clarification provided by
 

this opinion.10
 

10 In light of our resolution, it is unnecessary to


address the legal conclusions in the Court of Appeals opinion.
 

12
 
V
 

The district court’s indication that a violation of MCL
 

750.520d(1)(b) requires a showing that a defendant “overcame”
 

a victim, possibly influenced by dicta in Patterson is
 

incorrect. Because this error may have affected the district
 

court’s analysis in this case, we vacate the Court of Appeals
 

opinion and remand this case to the district court for
 

reconsideration, consistent with this opinion, of the
 

prosecution’s request that defendant be bound over for trial
 

on a charge of CSC III. We direct the district court to issue
 

a written decision addressing the present issue within fortyfive days of the release of this opinion. We retain
 

jurisdiction to review this matter following the district
 

court’s reconsideration.
 

CORRIGAN, C.J., and CAVANAGH, KELLY, TAYLOR, YOUNG, and MARKMAN,
 

JJ., concurred.
 

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-Appellee,
 

v No. 118915
 

ERIC STEVEN CARLSON,
 

Defendant-Appellant.
 

WEAVER, J. (dissenting).
 

I dissent because I do not believe that a per curiam
 

opinion is the appropriate means for deciding this case.
 

Rather, if the Court is going to decide what is meant by the
 

words “force or coercion,” as used in MCL 750.520d(1)(b), it
 

should do so after the benefit of briefing and oral argument.