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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 Opinion Robert P. Young, Jr. 

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 a
 
bindover of defendant in the district court. The charges
 

against defendant were criminal sexual conduct in the first
 

degree (CSC-I),1 the common-law offense of misconduct in
 

office,2 and two counts of possession of a firearm during the
 

commission of a felony (felony-firearm).3 The magistrate
 

dismissed the 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 Dismissal 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
 

1MCL 750.520b(1)(f).
 

2MCL 750.505.
 

3MCL 750.227b.
 

4Unpublished opinion per curiam, issued June 8, 2001


(Docket No. 229111).
 

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prosecuted 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 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. 


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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 complainant and defendant
 

hugged and 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 there was insufficient evidence to bind
 

defendant over on the CSC-I charge. However, the prosecutor
 

had presented sufficient evidence to proceed on the charge of
 

misconduct in office. Accordingly, the magistrate dismissed
 

the CSC-I charge and the related felony-firearm charge and
 

bound defendant over on the misconduct in office and the
 

related felony-firearm charge. The circuit court then quashed
 

the information. It also denied the prosecutor's motion to
 

amend the information to reinstate the CSC-I charge.
 

The prosecutor appealed 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
 

affirmed the circuit court order quashing the charge of
 

misconduct in office. 


On appeal to this Court, defendant challenges the Court
 

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of 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 court decision to bind over a
 

defendant under an abuse of discretion standard. People v
 

Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652
 

(1997). We review any question of the proper interpretation
 

of the underlying criminal law de novo. People 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 reasonable doubt that a crime was
 

committed. He need present only enough evidence on each
 

element of the charged offense to lead "'a person of ordinary
 

prudence and caution to conscientiously entertain a reasonable
 

belief of [the defendant's] guilt.'" Justice, supra at 344,
 

quoting Coleman v Burnett, 155 US App DC 302, 317; 477 F2d
 

1187 (1973). Thus, charges should not be dismissed merely
 

because the prosecutor has failed to convince the reviewing
 

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tribunal that it would convict. That question should be
 

reserved for the trier of fact. People v Goecke, 457 Mich
 

442, 469-470; 579 NW2d 868 (1998).
 

If the prosecutor fails to present evidence on each of
 

the elements of a charged offense, it would be an abuse of
 

discretion to 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


sexual penetration with another person and if any


of the following circumstances exists:
 

* * *
 

(f) The actor causes personal injury to the


victim[5] 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
 

5The question of personal injury to the complainant was


not raised in this appeal.
 

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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, kidnaping, or extortion. 


(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. 


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. 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.
 

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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. 


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
 

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common-law misconduct in office.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 defendant's status as a deputy sheriff.
 

We agree with the Court of Appeals. 


1. The elements of common-law misconduct in office
 

When the 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 Mich 414,
 

419-420; 461 NW2d 683 (1990). We are bound by the common-law
 

definition until the Legislature modifies it. People v
 

Schmitt, 275 Mich 575, 577; 267 NW 741 (1936); People v
 

Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002).
 

At common 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 convicted of misconduct in office (1) for
 

6MCL 750.505 provides:
 

Any person who shall commit any indictable


offense at the common law, for the punishment of


which no provision is expressly made by any statute


of this state, shall be guilty of 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 both in the discretion of the court.
 

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committing 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.
 

In the 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), 235 Mich App 695, 706; 599
 

NW2d 556 (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 wrongdoing must result from or
 

directly affect the performance of his official duties. 


The mere coincidence that a crime has been
 

committed by 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 the exercise of the duties of his office, must


be done under color of his office. On the other
 

hand the act of one who is an officer, which act is


done because he is an officer or because of the
 

opportunity afforded by that fact, is under color
 

of his office despite his gesture of removing his


badge plus his statement that he is not acting in


the name of the law. [Perkins, p 541].
 

With this understanding, we now consider whether there was
 

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enough 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 performance of his
 

official duties. Coutu I, supra at 357-358. 


Although defendant is a deputy sheriff, there is no
 

evidence that his alleged conduct arose from the performance
 

of his official duties. Rather, the charged conduct arose
 

from a longstanding sexual relationship with the complainant.
 

It is undisputed that defendant was on duty when he engaged in
 

the conduct. 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, when 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.
 

In short, the prosecutor failed to offer evidence
 

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establishing 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 charge of CSC-I against
 

defendant. Because the prosecutor failed to meet this burden,
 

we need not reach the question whether psychological
 

subjugation is a viable theory of coercion.
 

We also hold that the evidence presented at the
 

preliminary examination did not establish probable cause to
 

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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