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People v. Perkins6/18/2003
BEFORE THE ENTIRE BENCH
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), the common-law offense of misconduct in office, and two counts of possession of a firearm during the commission of a felony (felony-firearm). 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. 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 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.
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 o
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