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People v. Kurtz9/27/2005
UNPUBLISHED
Before: Fort Hood, P.J., and White and O'Connell, JJ.
Defendant was convicted, following a bench trial, of fourth-degree criminal sexual conduct, MCL 750.520e(1)(b). He was sentenced to two years of probation. We affirm.
Defendant first alleges that there was insufficient evidence to support the conviction. We disagree. When reviewing a claim of insufficient evidence, this Court reviews the record de novo. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). This Court reviews the evidence in the light most favorable to the prosecutor and determines whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). The reviewing court should not interfere with the fact finder's role of determining the weight and credibility of witnesses, but must draw all reasonable inferences and resolve credibility choices in support of the verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
"A defendant can be found guilty of criminal sexual conduct in the fourth degree if he engages in sexual contact with another person and force or coercion is used to accomplish a sexual contact." People v Lasky, 157 Mich App 265, 271; 403 NW2d 117 (1987); see also MCL 750.520e(1)(b). The force or coercion element may be satisfied "when the actor achieves the sexual contact through concealment or by the element of surprise." MCL 750.520e(1)(b)(v). Sexual contact is defined as follows:
"Sexual contact" includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger. [MCL 750.520a(n).]
"Sexual contact may be proven by establishing that the touching of an intimate part of the victim's body was intentional and can reasonably be construed as being for the purpose of sexual arousal or gratification." People v Duenaz, 148 Mich App 60, 65; 384 NW2d 79 (1985). Intimate parts include the buttocks. MCL 750.520a(c). Fourth-degree CSC is not a specific intent crime, and personal injury to the victim is not required. Lasky, supra at 271-272.
In the present case, there was sufficient evidence of the elements of the offense to support the conviction. The evidence established that an intentional touching occurred, it was achieved through surprise, and it occurred for sexual gratification purposes. The victim testified that an intentional touching occurred. She was next to defendant when he took his middle finger and placed it up the victim's rear end. Defendant then placed his finger near his nose and said, "um sweet." The victim admonished defendant regarding his actions in front of another co-worker. The victim was purportedly visibly upset when she told other co-workers of the incident. She was in the process of completing a note regarding the incident when the parish priest arrived, and she then relayed the incident to the priest. An intentional touching of the victim's intimate parts occurred over her clothing, MCL 750.520a(n), which the victim did not anticipate, MCL 750.520e(1)(b)(v), and defendant's statement indicated that he was sexually gratified by the act, MCL 750.520a(n). Viewing this evidence in the light most favorable to the prosecutor, the essential elements of the crime were proven beyond a reasonable doubt,
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