COA: 308999. Wayne CC: 11-002103-FC.
Robert P. Young, Jr., Chief Justice. Michael F. Cavanagh, Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Justices. CAVANAGH, J. (dissenting). MCCORMACK, J. (dissenting).
On October 7, 2014, the Court heard oral argument on the application for leave to appeal the October 31, 2013 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. ( dissenting ).
Call me a " textualist" or a " strict constructionist" if you must, but I agree with Justice MCCORMACK'S conclusion that defendant's conviction for first-degree criminal sexual conduct should be vacated because, on the basis of the plain language of MCL 750.520a(r), there was insufficient evidence to establish that defendant engaged in the " intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body. . . ." (Emphasis added.) Specifically, I agree that, under the plain language of the statute, a finger cannot also constitute an " object" because to hold otherwise would render surplusage the phrase " part of a person's body," contrary to the rules of statutory interpretation. In re MCI Telecom [497 Mich. 942] Complaint, 460 Mich. 396, 414, 596 N.W.2d 164 (1999) (" [A] court should avoid a construction that would render any part of the statute surplusage or nugatory." ). I also agree that the phrase " a person's body" when juxtaposed against the phrase " another person's body" excludes the intrusion of an alleged victim's finger into his or her own genital or anal openings at a defendant's direction. As Justice MCCORMACK explains, in context the requirement that the intrusion be into " another person's body" necessarily refers to the body of someone else.
Our primary goal when interpreting statutes " is to give effect to the intent of the Legislature," and " [t]he first step in that determination is to review the language of the statute itself." Id. at 411. I agree with Justice MCCORMACK that the text of the statute unambiguously supports defendant and, as a result, it is up to the Legislature to amend the statutory provision, and thus provide adequate notice, if it wishes to clarify that the statute's plain language is inconsistent with its true intent. See People v Turmon, 417 Mich. 638, 655; 340 N.W.2d 620 (1983) (explaining the indisputable proposition that due process requires that citizens " be apprised of conduct which a criminal statute prohibits" ). Accordingly, I respectfully dissent.
MCCORMACK, J. ( dissenting ).
I respectfully dissent from the Court's order. I would reverse the defendant's first-degree criminal sexual conduct (CSC-I) conviction, for which he is serving 25 to 40 years.
The defendant is a Detroit police officer who was convicted by a jury for engaging in inappropriate sexual conduct with his girlfriend's 11-year-old daughter. The defendant's conviction for CSC-I is the result of an incident in which he " instructed" the victim about using a tampon. Specifically, the defendant had the victim insert a finger into her vagina while he held up a mirror in which she was to check her method. The defendant admitted telling the victim how to insert the tampon but denied telling her to digitally penetrate herself.
As charged against the defendant, CSC-I requires " engag[ing] in sexual penetration with another person" under the age of 13. MCL 750.520b(1)(a). " Sexual penetration," in turn, is defined in MCL 750.520a(r) as
sexual intercourse, cunnilingus, fellatio, anal intercourse, or any ...