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___________________________________ Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman FILED JUNE 18, 2003

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 120453 MARK DREW PERKINS, Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 120461 MARK DREW PERKINS, Defendant-Appellant.

BEFORE THE ENTIRE BENCH KELLY, J. We granted leave to appeal in this case to determine whether the prosecutor presented enough evidence to secure abindover of defendant in the district court. The charges against defendant were criminal sexual con duct in the first degree (CSC-I), 1 the com mon-l aw offense of misconduct in office, 2 and two counts of possession of a firearm during the commissionof a felony (felony-firearm). 3 The magistrate dismissedthe charge of CSC-I, but bound over defendant on the charges of misconduct in office and felony-firearm. The circuit court affirmed with regard to CSC-I, but quashed the information with regard to the remaining charges. The Court of Appeals reversed, finding probable cause that the crime of CSC-I had been committed. 4 D ismi ssal of the felony-firearm charges was not raised on appeal beyond the circuit court level. We hold that there was insufficient evidence to support

a finding of the commission of CSC-I or misconduct in office. Accordingly, we reverse in part and affirm in part the decision of the Court of Appeals. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant was a Bay County deputy sheriff who was

1 MCL 750.520b(1)(f).

2 MCL 750.505.

3 MCL 750.227b.

4 Unpublished opinion per curiam, issued June 8, 2001 (Docket No. 229111). 2prosecuted for acts arising from his sexual relationship with the complainant, a sixteen-year-old girl. The complainant was a close friend of defendant's family. 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 wif e when the team practiced. From the date that the complainant met defendant until the incident involved here, the complai nant 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 h aving sexual relations. Onthe date of the charged incident, the complainant was living with her mother and had just returned from a month-long excursionin Mex ico . 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 anddiscovered 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.

3OnSunday, the complainant drove to the industrial park, found defendant, who was on duty in a marked police cruiser, and got into the car withhim. The complainant and defendant huggedand talked about her trip to Mexico. Finally, the complainant fellated defendant. The prosecutor charged defendant with four felony offenses: CSC-I, misconduct in office, and two counts of felony-firearm deriving from the other charged infractions. At the preliminary hearing on these charges, the magistrate concluded that the re was insufficient evidence to bind defendant over on the CSC-I charge. However, the prosecutor hadpresented sufficient evidence to proceed onthe charge of misconduct in office. Accordingly, the magistrate dismissed the CSC-I charge and the related felony-firearm charge and bounddefendant over o n the misconduct in office and the related felony-firearm charge. The circuit court then quashed the information. It also denied the pro secuto r's motion to amend the information to reinstate the CSC-I charge. The prosecutor app eale d to the Court of Appeals, which held that the magistrate committed an abuse of discretion in refusing to bind defendant over on the CSC-I charge. It also affirmedthe circuit court order quashing the c harg e of misconduct in office. On appeal to this Court, defendant challenges the Court

4of Appeals decision reinstating the charge of CSC-I. The prosecutor appeals, challenging that portion of the Court of Appeals ruling that affirmed the circuit court decision to quash the charge of misconduct in office. II. STANDARD OF REVIEW We review a district cou rt decision to bind over a defendant under an abuse of discretion standard. Peo ple v Justice ( After Remand ), 454 Mich 334, 344; 562 N W2d 652 (1997). We review any question of the proper interpretation of the underlying criminal law de novo. P eople v Mass , 464 Mich 615, 622; 628 NW2d 540 (2001). III. DISCUSSION The purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it. MCR 6.110. The prosecutor need not establish beyond a reasona ble do ubt that a crime was committed. He need present only e nough evidence on each element of the charged offense to lead "'a person of ordinary prudence andcaution to conscientiously entertain a reasonable belief of [the defendant's] guilt.'" Justice, supra at 344, q uoting Col eman v Burnett , 155 US App DC 302, 317; 477 F2d 11 87 (1973). Thus, charges should not be dismissed merely because the prosecutor has failed to convince the rev iewi ng

5tribunal that it would convict. That question should be reserved for th e trier of fact. People v Goecke , 457 Mich 442, 469-470; 579 NW2d 868 (1998). If the p rosecutor fails to present evidence on each of the elements o f a charged offense, it would be an abuse of discretionto bind over the defendant for trial. Goecke, supra at 469, citing People v Doss , 406 Mich 90, 100-101; 276 NW2d 9 (1979). A. Criminal Sexual Conduct The prosecutor asserts that defendant's encounter with the complainant in his patrol car constituted CSC-I. The CSC- I statute, MCL 750.520b, provides in relevant parts: (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexua l pe netration with another person and if any of the following circumstances exists: * * * (f) The actor causes personal injury to the victim [5] and force or coercionis used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the f ollowi ng circumstances: (i) When the actor overcomes the victim throughthe actual application of physical force or physical violence. (ii) When the actor coerces the vi ct im to submit by threat enin g to use force or violence on the victim, and the victim believes that the actor

5 The question of personal injury to the complainant was not raised in this appeal. 6has 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 vict im b elieves that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnaping, or extortion. (iv) When the actor engages in the medica l treatment or examination of the victim in a manner or for purposes wh ich 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. At the preliminary examination, the prosecutor's theory was that defendant was guilty of CSC-I through coercion. As

anauthority figure, defendant had engaged the complainant in continuing sexual conduct beginning when she was much younger. The prosecutor reasoned that defendant thus e stabl ished a patternof abuse that eroded the complainant' s ab ility to resist his sexual advances during the incide nt i n question. The prosecutor presented evidence that a child can be psychologically subjugated in this manner. 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 , i n any sense of that term, to fellate defendant on the occasion in question. 7The facts were that the complainant had been out of the country for a month before the charged conduct occurred. The complainant initiated th e 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 incid ent in question, the relationship was consensual and the complainant was involved init of her own volition. If it were true that the complainant's actions were the result of defendant's subjugationof 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. Thus, we cannot conclude that the district court committed an abuse of discretion by dismissing the charge of CSC-I. Accordingly, we reverse the Court of Appeals decision with regard to that charge. B. Misconduct In Office Defendant was also charged with committing the offense of

8common-law misconduct inoffic e. 6 The Court of Appeals held that the circuit court properly quashed the information because the prosecutor failed to show a nexus between the charged conduct and defend ant' s status as a deputy sheriff. We agree with the Court of Appeals. 1. The elements of common-law misconduct in office Whenthe Legislature codifies a common-law crime without articulating its elements, we must look to the common law for the definition of the crime. People v Couch , 436 M ich 414, 419-420; 461 NW2d683 (1990). We are boundby the common-law definitionuntil the Legislature mod ifies it. People v Schmitt , 275 Mich 575, 577; 267 NW 741 (1936); People v Riddle , 467 Mich 116, 126; 649 NW2d 30 (2002). At com mon law, misconduct in office was defined as “corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.” People v Coutu , 459 Mich 348, 354; 589 NW2d 458 (1999)( Coutu I ), quoting Perkins & Boyce, Criminal Law (3d ed), p 543. An officer could be co nvicted of misconduct in office (1) for

6 MCL 750.505 provides: Any person who shall commit any indictable offense at the common law, for the punishment of whichno provisionis expressly made by any statute of this state, shall be guil ty o f a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or bothin the discretion of the court. 9committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance. Perkins, p 540.

However, committing nonfeasance or acts of malfeasance or misfeasance are not enough to constitute misconduct in office. Inthe case of malfeasance and misfeasance, the offender also must act with a corrupt intent, i.e., with a "sense of depravity, perversion or taint." See Perkins, p 542. See also People v Coutu (On Remand) , 23 5 Mich App 695, 706; 599 NW2d556 (1999)( Coutu II ). In the case of nonfeasance, an offender must willfully neglect to perform the duties of his office. Perkins, p 547. Moreover, the officer's wron gdoi ng must result from or directly affect the performance of his official duties. The mere coincidence that a crime has been committedby one who happens to be a public officer is not sufficient to establish official misconduct. For this offense it is necessary not only that the offender be an officer, or one who presumes to act as an officer, but the misconduct, if not actually in t he exercise of the duties of his office, m us t be done under color of his office. On the other handthe act of one who is anofficer, which act is done because he is an officer or because of the opportunity a ffor ded by that fact, is under color of his office despite his gest ure of removing his badg e plus his statement that he is not acting i n the name of the law. [Perkins, p 541]. Withthis understanding, we now consider whether there was 10enough evidence to bind over defendant. 2. There is insufficient evidence to bind over defendant for misconduct in office To be guilty of misconduct in office, one must first be

a public officer. In this case, defendant is a deputy sheriff. In Coutu I , we held that a deputy sheriff is a public officer for purposes of misconduct in office when the allegations against him arise from the performa nce of his official duties. Coutu I , supra at 357-358. Althoughdefendant is a deputy sheriff, there is no evidence that his alleged conduct arose from the performance of his official duties. Rather, the c har ged conduct arose from a longstanding sexual relationship with the complainant. It is undisputed that defendant was on duty when he engaged in the c ondu ct. However, the prosecutor presented no evidence correlating that conduct with defendant’s public office. The act was neither initiated nor consummated in the exercise of defendant’s duties. It is not alleged that the opportunity to commit the specific corrupt behavior in question, whe n it occurred, arose from or was furthered by defendant’s status as a deputy sheriff. Whatever influence defendant's office may once have had on the complainant, there was no evidence that it influenced her to have sexual relations with defendant on the subject occasion. Inshort, the prosecutor failed to of fer evidence 11establishing a nexus between defendant’s alleged conduct and defendant’s status as a sheriff’s deputy. From that we conclude that defendant was not acting as a public officer for purposes of misconduct in office. Coutu I , supra . Accordingly, we affirm the Court of Appeals decision regarding this issue on the basis that there was insufficient evidence to support the charge of misconduct in office. CONCLUSION We hold that the prosecutor presented insufficient evidence of coercion to sustain the cha rge of CSC-I against defendant. Because the prosecutor failed to meet this burden,

we need not reach the question whether psy chological subjugation is a viable theory of coercion. We also hold that the evidence presented at the pre liminary examination did not establish probable cause t o believe that defendant committed the common-law offense of misconduct in office. The Court of Appeals decision in this case is accordingly reversed in part and affirmed in part. Marilyn Kelly Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

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