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People v. Sharpe

Supreme Court of Michigan

July 10, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
LOVELL CHARLES SHARPE, Defendant-Appellant.

          Argued April 11, 2018

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Lovell C. Sharpe was charged in the Wayne Circuit Court with two counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, two counts of third-degree CSC, MCL 750.520d, and one count of fourth-degree CSC, MCL 750.520e, based on allegations that he engaged in sexual penetration and conduct with the 14-year-old complainant, DM. DM testified that while her mother was hospitalized from December 31, 2013 through January 5, 2014, and thus was absent from the home, defendant, who had been in a relationship with DM's mother at the time, engaged in sexual penetration and conduct with DM. DM also described another incident wherein the same actions occurred at defendant's home while her mother was sleeping in another room. DM became pregnant. The prosecutor entered DM's medical records into evidence; the records showed that DM had a positive pregnancy test on October 16, 2014, and an abortion on November 17, 2014. DM's mother testified that DM initially refused to tell her mother with whom she had sexual contact, but in April 2015, shortly after DM's mother and defendant ended their relationship, DM informed her mother that defendant had impregnated her. On the basis of this testimony, defendant was bound over to the circuit court. The prosecutor subsequently filed a pretrial motion to admit evidence of (1) DM's pregnancy, (2) DM's abortion, and (3) DM's lack of other sexual partners through November 2014. The court, Shannon N. Walker, J., granted the motion only as to evidence that DM became pregnant and ruled that the other evidence constituted character evidence inadmissible under MRE 404(a)(3). The prosecutor filed an interlocutory appeal, arguing that the entirety of the evidence was admissible under both MRE 404(a)(3) and the rape-shield statute, MCL 750.520j(1). Defendant cross-appealed, seeking a determination that MRE 404(a)(3) and the rape-shield statute excluded the entirety of the evidence. On interlocutory appeal, the Court of Appeals, Riordan, P.J., and Meter and Fort Hood, JJ., held that evidence of the complainant's lack of other sexual partners was not subject to the rape-shield statute and was otherwise admissible under the Michigan Rules of Evidence and that evidence of the complainant's pregnancy and abortion fell under the purview of the rape-shield statute but was admissible pursuant to the statute's exception for evidence of the victim's past sexual conduct with the actor. 319 Mich.App. 153 (2017). Defendant sought leave to appeal in the Supreme Court, and the Supreme Court granted leave to consider (1) whether evidence related to the complainant's pregnancy, abortion, and lack of other sexual partners was within the scope of the rape-shield statute, MCL 750.520j(1); (2) if so, whether the evidence was nonetheless admissible under one of the exceptions set forth in MCL 750.520j(1); and (3) if not, whether the evidence was admissible under general rules governing the admissibility of evidence, such as MRE 402 and MRE 403. 501 Mich. 899 (2017).

         In an opinion by Justice Clement, joined by Justices Zahra, McCormack, Viviano, and Wilder, the Supreme Court held:

         The Court of Appeals correctly held that all the evidence is admissible but erred in its reasoning. None of the evidence falls under the scope of the rape-shield statute, but all the evidence is otherwise admissible under the Michigan Rules of Evidence.

         1. The rape-shield statute, MCL 750.520j, serves to limit the admissibility of evidence of a complainant's sexual conduct. MCL 750.520j(1) provides that evidence of specific instances of the victim's sexual conduct shall not be admitted under MCL 750.520b through MCL 750.520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value: (a) evidence of the victim's past sexual conduct with the actor; (b) evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. Whether evidence falls within the purview of the rape-shield statute concerns whether the evidence amounts to or references specific conduct, not whether the evidence constitutes a consequence of or relates to sexual activity generally. Because the rape-shield statute does not define the term "specific instances," and because the term "specific instances" is not a term of art, it was appropriate to consult a lay dictionary to establish the plain meaning of the term. "Instance" means "a case or occurrence of something" and "specific" means "specified, precise, or particular." Accordingly, a specific instance of the victim's sexual conduct must relate to a particular occurrence of the victim's sexual conduct.

         2. Evidence of DM's pregnancy and evidence of her subsequent abortion were not evidence of a specific instance of the victim's sexual conduct. Although this evidence necessarily implied that sexual activity occurred that caused the pregnancy, the pregnancy and abortion were not evidence regarding a specific instance of sexual conduct; the evidence demonstrated only that at least one act of sexual intercourse occurred in 2014. The conclusion that pregnancy and abortion were not themselves specific instances of the victim's sexual conduct was bolstered by a reading of MCL 750.520j as a whole. MCL 750.520j(1)(b) excepts relevant evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. In so phrasing the statute, the Legislature has distinguished between the specific instance of sexual activity that shows the origin or the source of the semen, pregnancy, or disease-i.e., whatever sexual act led to these consequences-and the semen, pregnancy, or disease itself. Accordingly, the Legislature has ipso facto made clear that semen, pregnancy, or disease, while perhaps related to sex, are not themselves the specific instances of sexual conduct envisioned by MCL 750.520j. And because pregnancy, and by extension abortion, is not a specific instance of sexual conduct, neither pregnancy nor abortion falls within the rape-shield statute. Accordingly, the Court of Appeals erred by determining that evidence of DM's pregnancy and abortion fell under the purview of the rape-shield statute.

         3. Evidence that DM did not engage in other sexual intercourse in 2014 did not fall within the plain language of the rape-shield statute. This evidence demonstrated an absence of conduct, not a "specific instance" of sexual conduct, and excluding evidence of a lack of sexual partners under the rape-shield statute would render the phrase "specific instances" meaningless. Accordingly, the Court of Appeals properly determined that DM's lack of other sexual partners did not fall within the scope of the rape-shield statute.

         4. MRE 402 provides that relevant evidence is generally admissible. In this case, evidence of DM's pregnancy, abortion, and lack of other sexual partners made it more probable that defendant sexually assaulted DM, and evidence showing that DM, a 14-year-old child, became pregnant was highly probative of the allegation that DM was sexually assaulted. The evidence of DM's abortion corroborated that DM was impregnated and explained the lack of DNA evidence to identify the man who impregnated DM. Further, defendant's offering to pay for half of the cost of the abortion could have demonstrated defendant's consciousness of guilt or desire to destroy evidence. Finally, evidence demonstrating that DM had no sexual partners other than defendant through November 2014 was, by simple process of elimination, probative of the identity of the person who impregnated DM. Accordingly, the offered evidence was relevant under MRE 402.

         5. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In this case, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The evidence of DM's pregnancy and abortion definitively demonstrated that sexual penetration occurred. If the jury finds credible DM's testimony that she did not engage in sexual intercourse with anyone other than defendant through November 2014, that testimony proves that defendant was the man who sexually assaulted DM. Accordingly, this evidence was highly probative, and the danger of unfair prejudice created by the evidence did not substantially outweigh this high probative value. Abortion evidence, while perhaps incendiary to some, is not so inherently prejudicial as to render it inadmissible. Although there may be some danger of juror sympathy for a young woman who has gone through pregnancy and abortion or, alternatively, a danger of juror revulsion for a young woman choosing abortion, the evidence here was both highly probative and concise. And to the extent that the abortion evidence could be viewed as cumulative of the evidence of DM's pregnancy, it also served the purpose of explaining why the prosecutor is unable to offer DNA evidence to prove the identity of the man who impregnated DM. If the abortion evidence were not admitted, the jury might be left to speculate as to why DNA evidence is unavailable and whether the pregnancy came to term. As for the lack of sexual partners, the prosecution concisely alleged a valid purpose: the lack of sexual partners eliminates the possibility that someone other than defendant impregnated DM. Moreover, at the time of trial, the trial court has the ability to provide a limiting instruction to the jury concerning the use of this evidence. Accordingly, given the high probative value of the evidence of DM's pregnancy, abortion, and lack of other sexual partners through November 2014, and its low danger of unfair prejudice, the evidence was admissible under MRE 402 and MRE 403.

         Affirmed for the reasons stated in the opinion; case remanded to the trial court for further proceedings.

         Chief Justice Markman, concurring, agreed with the majority's conclusion that evidence of the complainant's pregnancy, abortion, and lack of other sexual partners was not subject to the rape-shield statute and was admissible under the Michigan Rules of Evidence, but he reached the conclusion that evidence of the complainant's pregnancy and evidence of the abortion were not subject to the rape-shield statute for different reasons than the majority. Chief Justice Markman would have focused on the language "victim's sexual conduct" as opposed to the majority's focus on the language "specific instances" to reach the conclusion that while pregnancy and abortion are evidence of a specific instance of sexual conduct, they are not evidence of a specific instance of the victim's sexual conduct. In this case, because only one alleged sexual penetration could have been the source of DM's pregnancy, both evidence of DM's pregnancy and evidence of DM's abortion were-contrary to the majority's assertion-evidence of a "specific instance" of sexual conduct. However, such evidence is not evidence of the "victim's sexual conduct"; "conduct" refers only to volitional actions and thus does not encompass involuntary acts such as those that stem from being subjected to sexual abuse.

         Justice Bernstein, concurring in part and dissenting in part, agreed with the majority's conclusion that evidence of DM's abortion and her lack of other sexual partners was not governed by the rape-shield statute and that evidence of DM's lack of other sexual partners was admissible under the Michigan Rules of Evidence, but he would have held that evidence of DM's pregnancy was governed by the rape-shield statute and that evidence of DM's abortion was barred by MRE 402 and MRE 403. Justice Bernstein agreed with Chief Justice MARKMAN's conclusion that evidence of DM's pregnancy was evidence of a specific instance of the victim's sexual conduct-the particular sexual encounter that resulted in the pregnancy. Accordingly, because the prosecutor charged defendant with one of the counts of first-degree criminal sexual conduct based on an allegation that a specific instance of sexual penetration resulted in DM becoming pregnant, DM's pregnancy was being presented as evidence of a specific instance of the victim's sexual conduct and evidence of that pregnancy thus fell within the rape-shield statute. Of the two counts of first-degree criminal sexual conduct that defendant was charged with, the majority conceded that one could not have been the source of DM's pregnancy, given the timing. The timing of the remaining count of first-degree criminal sexual conduct had yet to be firmly established. Because the plain language of MCL 750.520j(1)(a) notes that only evidence of the victim's past sexual conduct with the actor is potentially admissible, Justice Bernstein would have held that the rape-shield statute required the prosecutor to make a threshold showing in the trial court about the timing of the alleged sexual penetration in order to establish that DM's pregnancy was linked to past sexual conduct with defendant. As for evidence of DM's abortion, Justice Bernstein would have held that MRE 402 and MRE 403 barred admission of the evidence. The majority focused on the potential prejudice that might fall on DM; however, given that it was defendant who argued against admission of the evidence of DM's abortion, the focus should have been on the effect of this evidence on defendant, and when viewed in this light, the danger of unfair prejudice to defendant substantially outweighed the probative value of the evidence.

         BEFORE THE ENTIRE BENCH

          OPINION

          CLEMENT, J.

         At issue in this case is whether the rape-shield statute, MCL 750.520j, precludes the prosecutor from admitting evidence of a complainant's pregnancy, abortion, and lack of other sexual partners during a criminal-sexual-conduct prosecution. On interlocutory appeal, the Court of Appeals held that evidence of the complainant's lack of other sexual partners was not subject to the rape-shield statute and was otherwise admissible under the Michigan Rules of Evidence. As to evidence of the complainant's pregnancy and abortion, the Court held that this evidence fell under the purview of the rape-shield statute but was admissible pursuant to the statute's exception for evidence of the victim's past sexual conduct with the actor.

         We agree that the entirety of the evidence offered is admissible but hold that none of the evidence falls within the scope of the rape-shield statute. Further, we hold that the entirety of the evidence is otherwise admissible under the Michigan Rules of Evidence. Therefore, we reject the reasoning of the Court of Appeals but affirm its disposition that the offered evidence is admissible.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendant was charged with two counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, two counts of third-degree CSC, MCL 750.520d, [1] and one count of fourth-degree CSC, MCL 750.520e, based on allegations that he engaged in sexual penetration and conduct with the 14-year-old complainant, DM. Defendant was in a relationship with DM's mother through early 2015, and he fathered DM's two half-siblings. Defendant did not reside with DM's mother and the three children during his relationship with DM's mother. According to DM's mother's preliminary-examination testimony, DM's mother was hospitalized from December 31, 2013 through January 5, 2014.[2] During this time, defendant stayed at DM's mother's apartment to care for the children. DM testified that while her mother was absent from the home, defendant "touched" DM "[e]verywhere." She elaborated that he touched her breasts with his mouth and penetrated her vagina with his penis. Upon further questioning, she answered that this was not the first or the only time she had sexual contact with defendant. She described another incident wherein the same actions occurred at defendant's home while her mother was sleeping in another room.

         DM became pregnant. The prosecutor entered DM's medical records into evidence, and the records showed that DM had a positive pregnancy test at Henry Ford Hospital on October 16, 2014, and an abortion at Planned Parenthood on November 17, 2014. DM's mother testified that DM initially refused to tell her mother with whom she had sexual contact. Eventually, in April 2015 and shortly after DM's mother and defendant ended their relationship, DM informed her mother that defendant had impregnated her. On the basis of this testimony, defendant was bound over to the circuit court.

         The prosecutor subsequently filed a pretrial motion to admit evidence of (1) DM's pregnancy, (2) DM's abortion, and (3) DM's lack of other sexual partners through November 2014. The trial court granted the motion only as to evidence that DM became pregnant and ruled that the other evidence constituted character evidence inadmissible under MRE 404(a)(3).[3]

         The prosecutor filed an interlocutory appeal, arguing that the entirety of the evidence was admissible under both MRE 404(a)(3) and the rape-shield statute, MCL 750.520j(1), which generally excludes "[e]vidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct . . . ." Defendant responded and also cross-appealed the trial court's determination that evidence of DM's pregnancy was admissible, seeking a determination that MRE 404(a)(3) and the rape-shield statute excluded the entirety of the evidence.

         In a published opinion, the Court of Appeals determined that all the evidence was admissible. People v Sharpe, 319 Mich.App. 153, 173; 899 N.W.2d 787 (2017). As to the pregnancy and abortion evidence, the Court of Appeals held that MRE 404(a)(3) did not apply because MRE 404(a)(3) concerns the admissibility of character evidence and, here, the prosecutor was not seeking to introduce evidence of the pregnancy and abortion in order to demonstrate that DM acted in conformity with that character. Id. at 164-165, 171. The Court then concluded that while evidence of DM's pregnancy and abortion was evidence of a specific instance of DM's sexual conduct that would typically be barred by the rape-shield statute, the evidence was admissible under the rape-shield statute's exception for evidence of the victim's past sexual conduct with the actor. Id. at 165, 171. The Court further held that the evidence satisfied the remaining requirements of the rape-shield statute because the evidence was material to a fact at issue-whether sexual penetration occurred-and because the probative value of the evidence outweighed its prejudicial nature. Id. at 166, 172-173. Unlike the trial court, the Court of Appeals did not view the abortion evidence to be so prejudicial that it outweighed its probative value. Id. at 172-173.

         As to the evidence concerning DM's lack of other sexual partners, the Court of Appeals again concluded that the evidence did not fall under MRE 404(a)(3) because it was not introduced to demonstrate that DM acted in conformity with her lack of sexual partners. Id. at 168. It further held that the evidence was not barred under the rape-shield statute because the statute excludes specific instances of sexual conduct, not the lack of specific instances of sexual conduct. Id. However, it noted that even if the lack of sexual conduct could be construed as specific instances of sexual conduct, the evidence would be admissible under the rape-shield statute's exception for evidence showing the origin of pregnancy. Id. at 169. The Court then held that the evidence was otherwise admissible under MRE 402 and MRE 403 because the evidence was relevant to and probative of whether intercourse occurred between DM and defendant and because the evidence was minimally prejudicial. Id. at 169-170. Consistently with this ruling, the Court reversed in part and affirmed in part the trial court's ruling and remanded the case to the trial court for further proceedings. Id. at 174.

         Defendant sought leave to appeal in this Court. We granted leave to consider the following issues: (1) whether evidence related to the complainant's pregnancy, abortion, and lack of other sexual partners was within the scope of the rape-shield statute, MCL 750.520j(1); (2) if so, whether the evidence was nonetheless admissible under one of the exceptions set forth in MCL 750.520j(1); and (3) if not, whether the evidence was admissible under general rules governing the admissibility of evidence, such as MRE 402 and MRE 403.[4]

         II. LEGAL BACKGROUND

         A. STANDARD OF REVIEW

         This Court reviews a trial court's evidentiary decisions for an abuse of discretion. People v Mardlin, 487 Mich. 609, 614; 790 N.W.2d 607 (2010). An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes. People v Blackston, 481 Mich. 451, 460; 751 N.W.2d 408 (2008). To the extent that the trial court's evidentiary decision involves underlying questions of law, such as whether a statute precludes admissibility of evidence, this Court reviews those questions of law de novo. People v Lukity, 460 Mich. 484, 488; 596 N.W.2d 607 (1999).

         B. STATUTORY BACKGROUND OF THE RAPE-SHIELD STATUTE

         Until the late twentieth century, Michigan courts considered evidence of a woman's sexual history legally relevant in rape prosecutions. People v LaLone, 432 Mich. 103, 123-124; 437 N.W.2d 611 (1989) (Archer, J., concurring in part and dissenting in part). Allegations of rape were perceived as easily fabricated, and, accordingly, a woman's chastity-or lack thereof-was believed to be probative of whether she consented to the sexual act at issue. Id.; id. at 124 n 14.[5] Unsurprisingly, this discouraged women from seeking prosecution of their assailants because they" 'fear[ed] that the trial proceedings would veer from an impartial examination of the accused's conduct on the date in question and instead take on aspects of an inquisition in which [the] complainant would be required to acknowledge and justify her sexual past.'" People v Arenda, 416 Mich. 1, 9; 330 N.W.2d 814 (1982), quoting People v Khan, 80 Mich.App. 605, 613; 264 N.W.2d 360 (1978).

         In 1974, after facing significant criticism of the state's rape laws, the Michigan Legislature passed several reforms that redefined unlawful sexual conduct and created new evidentiary standards for these prosecutions. LaLone, 432 Mich. at 124-125 (Archer, J., concurring in part and dissenting in part). Among these reforms was the rape-shield statute, MCL 750.520j. Id. MCL 750.520j serves to limit the admissibility of evidence of a complainant's sexual conduct and provides as follows:[6]

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, ...

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