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People v. Willis

Court of Appeals of Michigan

January 11, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
KELVIN WILLIS, Defendant-Appellant.

         Wayne Circuit Court LC No. 15-010530-01-FH

          Before: Talbot, C.J., and Murray and O'Brien, JJ.

          Per Curiam.

         A jury convicted defendant of child sexually abusive activity, MCL 750.145c(2), possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v), and disseminating sexually explicit material, MCL 722.675. The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 40 years' imprisonment for the child sexually abusive activity conviction, two to eight years for the possession of cocaine conviction, and 2½ to 4 years for the dissemination of sexually explicit material conviction. Defendant appeals as of right. We affirm.

         The 52-year-old defendant's convictions arise from his interaction with his neighbor, a 16-year-old male, in defendant's Dearborn apartment on August 12, 2015. The prosecution presented evidence that defendant spoke to the victim outside, asked the victim his age, and then invited the victim into his apartment. While inside defendant's apartment, the victim sat on the couch, defendant put his arm around the victim, and defendant used his cell phone to show the victim a video of two men engaging in sexual intercourse. Defendant offered the victim $25 if he would allow defendant to insert his fingers in the victim's anus and masturbate on the victim, and later offered the victim $100 to engage in sexual intercourse. The victim declined both offers, and thereafter, when defendant briefly left the apartment, the victim fled and reported the incident to a neighbor. The neighbor contacted police, and officers arrested defendant. During an inventory search, officers found cocaine in the pocket of defendant's pants. At trial, defendant denied any wrongdoing and asserted that the testimony of the victim and the police was inconsistent and not credible.

         On appeal, defendant first argues that there was insufficient evidence to support his conviction for child sexually abusive activity. We disagree. We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich.App. 703, 713; 873 N.W.2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational tier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).

         Initially, we reject defendant's claim that MCL 750.145c is limited to criminalizing conduct involving the production of child sexually abusive material. Whether conduct falls within the scope of a criminal statute, in this case MCL 750.145c(2), is a question of statutory interpretation that we review de novo. People v Hill, 486 Mich. 658, 667-668; 786 N.W.2d 601 (2010). When construing a statute, our primary goal is to ascertain and give effect to the intent of the Legislature. People v Perry, 317 Mich.App. 589, 604; 895 N.W.2d 216 (2016). To that end, we begin by examining the plain language of the statute, and "where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed and enforce that statute as written." People v Holder, 483 Mich. 168, 172; 767 N.W.2d 423 (2009). "[O]nly where the statutory language is ambiguous may we look outside the statute to ascertain legislative intent." Id.

The statute proscribing child sexually abusive activity provides:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100, 000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [MCL 750.145c(2) (emphasis added).]

         Thus, among the types of conduct expressly proscribed by MCL 750.145c(2) is "arrang[ing] for . . . or . . . attempt[ing] or prepar[ing] or conspir[ing] to arrange for . . . any child sexually abusive activity or child sexually abusive material[.]" (Emphasis added.) MCL 750.145c(1)(n) defines "[c]hild sexually abusive activity" as "a child engaging in a listed sexual act." "Child" means "a person who is less than 18 years of age." MCL 750.145c(1)(b) and MCL 750.145c(6). A listed sexual act is defined to include "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity." MCL 750.145c(1)(i). The statute provides a separate definition for "child sexually abusive material." See MCL 750.145c(1)(o).

         This Court has recognized that MCL 750.145c(2) applies to three distinct groups of persons. People v Adkins, 272 Mich.App. 37, 40; 724 N.W.2d 710 (2006). The first category includes a person "who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material[.]" MCL 750.145c(2); Adkins, 272 Mich.App. at 40. This category refers to those who are engaged in the production of pornography. It is undisputed that defendant does not fall within this group. The second category includes a person who "arranges for, produces, makes, or finances . . . any child sexually abusive activity or child sexually abusive material[.]" MCL 750.145c(2); Adkins, 272 Mich.App. at 41. The last category is defined to include a person "who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material[.]" MCL 750.145c(2); Adkins, 272 Mich.App. at 41. The use of the disjunctive "or" in the second and third categories clearly and unambiguously indicates that persons who arrange for or attempt or prepare to arrange for child sexually abusive activity face criminal liability. See Adkins, 272 Mich.App. at 41. "The Legislature thus omitted from the second and third groups subject to criminal liability any requirement that the individuals therein must have acted for the ultimate purpose of creating any child sexually abusive material, a specific requirement applicable to the first group of criminals." Id. at 42. Accordingly, we reject defendant's argument that MCL 750.145c is limited to conduct involving the production of sexually abusive material. The allegations against defendant squarely place him within the group of persons on whom MCL 750.145c(2) imposes criminal liability.

         Turning to the sufficiency of the evidence to support defendant's conviction, we conclude that, viewed in a light most favorable to the prosecution, the evidence was factually sufficient to show that defendant arranged for, or attempted to arrange or prepare for, child sexually abusive activity with the 16-year-old victim. The evidence showed that the 52-year-old defendant invited the 16-year-old victim into his apartment, showed the victim a pornographic video of two men engaging in sexual intercourse, and then offered the victim $25 to allow defendant to insert his fingers into the victim's anus while he masturbated, and later offered the victim $100 to engage in sexual intercourse. This was sufficient for a rational tier of fact to find that the essential elements of child sexually abusive activity were proven beyond a reasonable doubt. As discussed earlier, the prosecution was not required to prove that defendant's conduct involved the production of child sexually abusive material.

         Our conclusion is supported by People v Aspy, 292 Mich.App. 36; 808 N.W.2d 569 (2011). In that case, the defendant, who was from Indiana, communicated in a website chatroom with a woman pretending to be a 14-year-old girl. Id. at 38. Eventually, the defendant and the woman pretending to be the 14-year-old girl made plans to meet in person, and when the defendant arrived at the address provided, the police arrested him. Id. at 39-40. The defendant was subsequently charged and convicted under MCL 750.145c(2). Id. at 38. Defendant in this case correctly points out that Aspy dealt with whether a Michigan court had jurisdiction over the Aspy defendant, but, as part of that determination, the parties in Aspy disputed, and the Aspy Court had to determine, whether the prosecution presented sufficient record evidence to support a criminal prosecution. Id. at 42. This Court concluded that "the prosecution presented more than sufficient evidence to allow a rational jury to conclude that defendant prepared and attempted to commit child sexually abusive activity . . . ." Id. at 42-43. Relying on Adkins, the Aspy Court concluded that MCL 750.145c(2) only requires that a defendant prepare for child sexually abusive activity and " 'does not require that those preparations actually proceed to the point of involving the child.' " Id. at 43, quoting Adkins, 272 Mich.App. at 46. The Aspy Court held that there was sufficient evidence that the "defendant acted consistently with the preparations he had made to commit child sexually abusive activity" by driving "into Michigan to a location where he intended to meet a child whom he believed to be under the age of 18" and "engage in behavior wrongful under MCL 750.145c(2)." Aspy, 292 Mich.App. at 43-44.

         Next, defendant argues that a new trial is required because the trial court's conduct pierced the veil of judicial impartiality and denied him a fair trial. We disagree. "The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court ...


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