                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 20, 2015
               Plaintiff-Appellee,

v                                                                  No. 321669
                                                                   Emmet Circuit Court
GABRIEL LEE GREEN,                                                 LC No. 13-003893-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

        A jury acquitted defendant of six counts of third-degree criminal sexual conduct (CSC
III), MCL 750.520d(1)(b), but convicted defendant of three counts of CSC III involving force or
coercion against complainant JG and one count of fourth-degree criminal sexual conduct
involving force or coercion (CSC IV), MCL 750.520e(1)(b) against complainant JB (collectively
referred to as the complainants). The trial court sentenced defendant to concurrent terms of 5 to
15 years in prison for each of the CSC III convictions and 12 months in prison for the CSC IV
conviction. Defendant appeals by right. We affirm.

       Defendant was a child protective services (CPS) worker for the Department of Human
Services (DHS). His convictions arise out of his sexual relations with complainant JG and
sexual contact with complainant JB while working as the CPS worker assigned to the respective
neglect or abuse complaints filed with DHS against the individual complainants. The
prosecution’s theory of the case was that defendant coerced the complainants to agree to his
behavior because he was in a position of authority at the time of the acts. Defendant argued that
the sexual relations and contact were consensual.

        Defendant first argues that there was insufficient evidence at the preliminary examination
to support his bindover on CSC III and CSC IV charges. A defendant may not appeal whether
the evidence at the preliminary examination was sufficient to warrant a bindover if the defendant
was “fairly convicted at trial.” People v Wilson, 469 Mich 1018; 677 NW2d 29 (2004). See also
People v Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990) (holding that “evidentiary error
committed at the preliminary examination stage of this case does not require automatic reversal
of the subsequent conviction absent a showing that defendant was prejudiced at trial”). As
discussed fully in this opinion, we find no merit in the issues raised by defendant on appeal.

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Thus, we conclude that defendant was fairly convicted at trial, and we may not review whether
the evidence at the preliminary examination was sufficient to warrant a bindover.

        Defendant next argues that the trial court abused its discretion by restricting cross-
examination of complainant JG at trial and not admitting as substantive evidence under MRE
801(d)(1)(A) JG’s purportedly inconsistent preliminary examination testimony. Defendant
preserved this issue by seeking to impeach her with certain preliminary examination testimony,
arguing that her trial testimony was inconsistent. MRE 103(a)(2). We review for an abuse of
discretion a preserved challenge to the admission of evidence. People v Orr, 275 Mich App 587,
588; 739 NW2d 385 (2007). “A trial court abuses its discretion when it chooses an outcome that
is outside the range of reasonable and principled outcomes.” Id.

        In general, hearsay—an out-of-court statement offered for the truth of the matter
asserted—may not be admitted into evidence. MRE 801; MRE 802. MRE 801(d)(1)(A)
provides that a prior statement of a declarant is not hearsay if: (1) “the declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement” and (2) “the
statement is inconsistent with the declarant’s testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” The word
“inconsistent” is defined as “ ‘marked by incompatibility of elements,’ ‘not in agreement with
each other.’ and ‘not consistent in standards of behavior.’ ” People v Chavies, 234 Mich App
274, 282; 593 NW2d 655 (1999), overruled on other grounds by People v Williams, 475 Mich
245; 716 NW2d 208 (2006), quoting Random House Webster’s College Dictionary (1997).
“[I]nconsistency is not limited to diametrically opposed answers but may be found in evasive
answers, inability to recall, silence, or changes of position.” Id. (citation omitted). The word
“consistent,” however, is defined as “ ‘agreeing or accordant; compatible; not self-contradictory,’
‘constantly adhering to the same principles, course, form, etc.,’ and ‘holding firmly together;
cohering.’ ” Id. at 282 n 3, quoting Random House Webster’s College Dictionary (1997).

       Defendant initially points to the following trial testimony that was purportedly
inconsistent with complainant JG’s preliminary examination testimony:

               Q. [by the prosecutor on direct examination] So what happened next?

               A. We continued light conversation. He asked if [I] could move my
       shorts so he could get in better towards me – and my legs. And at this point, I
       was rolled over onto my–I was laying on my back. And he moved my shorts over
       and started over and started massaging my groin area and I asked him at that
       point, “Are we still on a professional level?” And he looked at me and said, “Do
       you want to be?” At this point, I told him, “You know, this probably is not a
       good idea. You’re married. I have a fiancé and you’re my CPS worker and
       you’re investigating me. This isn’t a very good idea. At that –

                                                 ...

               Q. So, you actually spoke up and said something?

               A. Yes, I did.


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              Q. How did he respond?

              A. He said, “Okay, let’s just–it’s up to you.” And he continued on with
       his massage and we were making light conversation. I’m not exactly–I don’t
       exactly remember certain things that were said.

Contrary to defendant’s argument, trial counsel was allowed to use JG’s preliminary examination
testimony to impeach the above trial testimony. Counsel asked JG about her discussion with
defendant regarding why she did not think the sexual activity was a good idea, bringing out that
at the preliminary examination she did not use his CPS status as one of the reasons:

              Q. Okay. You were asked on direct examination about your protesting or
       discussion or however you characterize it, with regards to [defendant] initially
       engaging in sexual conduct. Do you remember being asked questions about what
       you said?

              A. Yes.

               Q. Okay, do you remember that same exact issue being addressed back at
       the preliminary examination, back in October of last year?

              A. What exact issue?

              Q. The exact issue of what you said to [defendant]?

              A. What exactly did I say to [defendant]?

              Q. I’m asking. I’ll show you, but I want to ask you if you remember
       being asked the same question, the same line of questioning.

              A. Somewhat similar, yes.

              Q. Okay at the preliminary examination, on page 63, lines four, five, six
       and seven, you were on direct examination and being asked questions by the same
       prosecutor, do you remember the exchange?

              A. (No Audible Response).

              Q. Once again, 63, four, five, six, and seven.

              A. Yes, I remember being asked that question.

              Q. Okay. Is that the same answer that you gave today?

              A. Yes.

               Q. Back in October, you were asked the question by [the prosecutor]. “So,
       after the digital, what happened next?” Answer at line five, do you remember
       making the statement, “And then I asked if we were still being professional and

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       he asked me, ‘Do you want to be?’ And at that point, I explained that I had a
       fiancé and he was married.” That’s then end of your answer, correct?

               A. So, I didn’t go into full detail of what I said today?

               Q. No, that’s what I was asking you.

Because defendant was allowed to use the preliminary examination testimony during cross-
examination, there was no error related to this testimony.

         Next, defendant appears to argue that the trial court abused its discretion by not allowing
trial counsel to introduce preliminary examination testimony that was purportedly inconsistent
with complainant JG’s trial testimony regarding whether defendant gave her the option of his
stepping down as her caseworker before having sex. The trial court did not abuse its discretion
by concluding that trial testimony—that JG never said defendant asked her whether she wanted
him to step down as her caseworker because he was in a position of authority—was not
inconsistent with her preliminary examination testimony. At the preliminary examination she
testified that defendant asked her if she wanted to keep seeing him because it was up to her since
he was in a position of authority. These two statements are not diametrically opposed, evasive,
or a change of position. Chavies, 234 Mich App at 282. Instead, her denial at trial of making
such a statement is consistent with her preliminary examination testimony. Id. at 282 n 3.
Because the preliminary examination testimony was not inconsistent with complainant JG’s trial
testimony, we conclude the trial court did not abuse its discretion. Orr, 275 Mich App at 588.

         Defendant next argues that the trial court abused its discretion by precluding trial counsel
from admitting JG’s preliminary examination testimony regarding the chronology of when
defendant made the statement about leaving her case open so he could continue to see her.
Defendant asserts that at trial she testified that it was made before her statement that she wanted
to continue seeing defendant, but that at the preliminary examination she said the opposite. We
have reviewed the record and conclude that the trial court did not abuse its discretion by
permitting counsel to cross-examine JG about her prior testimony but not admitting it as
substantive evidence. At the preliminary examination, JG testified that defendant told her he was
going to keep her case open as long as possible so he could continue to see her. She did not
testify as to when defendant made that comment in relation to her decision to continue the sexual
relationship. Thus, the two statements are not diametrically opposed, or evasive, and do not
constitute a change in her position. Chavies, 234 Mich App at 282. Instead, her two statements
are consistent with each other. Id. at 282 n 3.

        To the extent defendant argues that the prosecution improperly bolstered complainant
JG’s credibility and in-court testimony when trial counsel was “not permitted to impeach” her,
we consider this issue abandoned. “An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims, nor may he give only
cursory treatment with little or no citation to supporting authority.” People v Kelly, 231 Mich
App 627, 640-641; 588 NW2d 480 (1998).

      Defendant next argues that the trial court abused its discretion by concluding that
complainant JB’s statements to her stepdaughter and mother on the day she and defendant had

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sexual contact were admissible under MRE 803(2) as excited utterances. We review for an
abuse of discretion the trial court’s evidentiary ruling. Orr, 275 Mich App at 588.

        We find no abuse of discretion in the admission of two statements to the stepdaughter,
one after each contact with defendant, under MRE 803(2). The first statement was made after
defendant, while investigating alleged neglect or abuse, massaged complainant JB’s shoulders,
back, and inner thighs. The second statement was after the sexual contact that involved oral sex
and sexual intercourse. While neither physical coercion nor violence was alleged in either
occurrence, both occurred under the specter of defendant investigating complainant JB for child
abuse and neglect. The stepdaughter testified that complainant JB was very upset and crying
during both conversations. Given the circumstances surrounding both events, we conclude that
they were a startling event. See People v Smith, 456 Mich 543, 552; 581 NW2d 654 (1998)
(noting that sexual assault is a startling event). Both statements were made within a few minutes
of defendant leaving the apartment so there was no time to contrive and misrepresent his actions.
Finally, her statements were clearly related to the circumstances surrounding defendant’s actions,
which was the startling event. People v Straight, 430 Mich 418, 424; 424 NW2d 257 (1988).
According the trial court wide discretion regarding its determination that JB was still under the
stress of the startling event when she made the statements, see Smith, 456 Mich at 552, we find
no abuse of discretion.

        Similarly, we conclude that JB’s statements to her mother on the same day as her contacts
with defendant were admissible under MRE 803(2). The statements were made after defendant
first massaged her shoulders, back, and inner thighs and later had oral sex and sexual intercourse.
Again, while physical coercion or violence was not alleged, both contacts occurred under the
specter of defendant’s investigating JB for child abuse and neglect. Her mother testified that JB
was very upset and crying when she related the events over the telephone. The statements were
made within hours of defendant leaving the apartment, so there was little time to contrive and
misrepresent his actions. Finally, her statements were clearly related to the circumstances
surrounding defendant’s actions, which was the startling event. Straight, 430 Mich at 424.
Thus, giving the trial court wide discretion, we conclude that it did not abuse its discretion by
finding the statements admissible as an excited utterance.

        Defendant next argues that reversal is required because of cumulative evidentiary errors.
However, “[a]bsent the establishment of errors, there can be no cumulative effect of errors
meriting reversal.” People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). See also
People v Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995) (stating that “only actual
errors are aggregated to determine their cumulative effect”).

        Finally, defendant argues that his convictions are against the great weight of the
evidence. We disagree. We review a great-weight claim to determine whether “the evidence
preponderates heavily against the verdict and a serious miscarriage of justice would otherwise
result.” People v Lemmon, 456 Mich 625, 641; 576 NW2d 129 (1998) (quotation marks and
citation omitted). A trial court’s denial of a motion for new trial is reviewed for an abuse of
discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008).

       Defendant was convicted of CSC III and CSC IV. A person is guilty of CSC III “if the
person engages in sexual penetration with another person and . . . [f]orce or coercion is used to

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accomplish the sexual penetration.” MCL 750.520d(1)(b). As directed by the statute, the phrase
“force or coercion is defined in MCL 750.520b(1)(f) and includes, but is not limited to, any of
the following circumstances:

       (i) When the actor overcomes the victim through the actual application of physical
       force or physical violence.

       (ii) When the actor coerces the victim to submit by threatening to use force or
       violence on the victim, and the victim believes that the actor has the present
       ability to execute these threats.

       (iii) When the actor coerces the victim to submit by threatening to retaliate in the
       future against the victim, or any other person, and the victim believes that the
       actor has the ability to execute this threat. As used in this subdivision, “to
       retaliate” includes threats of physical punishment, kidnapping, or extortion.

       (iv) When the actor engages in the medical treatment or examination of the victim
       in a manner or for purposes that are medically recognized as unethical or
       unacceptable.

       (v) When the actor, through concealment or by the element of surprise, is able to
       overcome the victim.

A person is guilty of CSC IV is he or she engages in sexual contact with another person and . . .
“[f]orce or coercion is used to accomplish the sexual contact.” MCL 750.520e(1)(b). For
purpose of CSC IV, the phrase “force or coercion” is defined in the same manner as for CSC III.
MCL 750.520e(1)(b)(i)-(v). We conclude that the facts and circumstances surrounding
defendant’s sexual penetration of complainant JG and sexual contact with complainant JB
establish the element of force or coercion as defined by these statutes.

        The statutes expressly provide that the listed circumstances in which force or coercion
may be proven are not exhaustive. In People v Premo, 213 Mich App 406, 410; 540 NW2d 715
(1996) (citations omitted), a panel of this Court explained that “the Legislature did not limit the
definition of force or coercion to the enumerated examples in the statute. Furthermore, the
existence of force or coercion is to be determined in light of all the circumstances and is not
limited to acts of physical violence.” “Coercion,” the Court noted, “ ‘may be actual, direct, or
positive, as where physical force is used to compel act against one’s will, or implied, legal or
constructive, as where one party is constrained by subjugation to other to do what his free will
would refuse.’ ” Id., quoting Black’s Law Dictionary (5th ed). Further, “ ‘force or coercion’
exists whenever a defendant’s conduct induces a victim to reasonably believe that the victim has
no practical choice because of a history of child sexual abuse or for some other similarly valid
reason.” People v Eisen, 296 Mich App 326, 335; 820 NW2d 229 (2012).

        There is no statutory provision or case that addresses the situation of a CPS worker using
his position to coerce a parent he is investigating for abuse or neglect into sexual acts. However,
this Court has found “force or coercion” established in a teacher-student relationship. In Premo,



                                                -6-
213 Mich App at 407-410, this Court concluded that the conduct of the defendant, a teacher, who
pinched the buttocks of three high school students, constituted coercion for purposes of MCL
750.520e(1)(a). This Court reasoned:

               We believe that defendant’s actions constituted implied legal or
       constructive coercion because, as a teacher, defendant was in a position of
       authority over the student victims and the incidents occurred on school property.
       Defendant’s conduct was unprofessional, irresponsible, and an abuse of authority
       as a teacher. Accordingly, we conclude that defendant’s conduct in this case is
       sufficient to constitute coercion under MCL 750.520e(1)(a). [Premo, 213 Mich
       App at 411.]

        In People v Knapp, 244 Mich App 361; 624 NW2d 227 (2001), the defendant, a
practitioner of reiki—an ancient healing art that involves energy centers in the body called
chakra and uses various hand positions to activate internal healing powers in patients—instructed
the fourteen-year-old complainant alone in a bedroom, resulting in the complainant’s touching
the defendant’s testicles and placing one hand on his stomach. The defendant then placed his
hands on the complainant to demonstrate a position. Later, the defendant talked to the
complainant about the hand positions and discussed male sexual energy. The defendant asked
the complainant to take off his underwear and he did so; the defendant then did the same. The
complainant then manipulated the complainant’s testicles at the defendant’s request (purportedly
to promote healthier semen), and the defendant then masturbated while talking about sexual
energy and reiki. Id. at 366-367. In discussing what constitutes coercion for purposes of CSC II,
the Court held that “a defendant’s conduct constitutes coercion where, as here, the defendant
abuses his position of authority to constrain a vulnerable victim by subjugation to submit to
sexual contact.” Id. at 369. The Court reasoned that the defendant was in a position of authority
over the complainant because he was involved in a teacher-student relationship and the
complainant was in a position of special vulnerability with respect to the defendant. Id. at 371.

        Although the coercion in Premo and Knapp involved teacher-student relationships, the
reasoning in those cases is instructive and applicable to this situation. Like in Premo and Knapp,
defendant was in a position of authority over the complainants because he was the CPS worker
assigned to investigate the abuse or neglect complaints filed against them individually.
Testimony established that CPS has authority to provide services to rectify the risk to a child and
to petition the court for removal of a child or termination of parental rights. CPS may also
petition to have a child removed from a home if a mother fails to protect her child from an
abusive father or boyfriend, which was the situation that caused the complaint to be filed in
complainant JG’s case. Fear of losing one’s child through neglect or abuse proceedings would
produce an extreme reaction in most parents. As such, the complainants were “in a position of
special vulnerability with respect to the defendant.” Knapp, 244 Mich App at 371. Moreover, in
light of all the circumstances, defendant’s actions as a CPS worker, like the teacher in Premo,
were “unprofessional, irresponsible, and an abuse of authority.” Premo, 213 Mich App at 411.

        With respect to complainant JG, the testimony established that defendant informed her on
the first day that if she did not leave her fiancé, her child would be taken away. Defendant
rubbed her shoulders and then performed a full body massage that included her groin area.
Although defendant asked her if she wanted him to still operate on a professional level and that it

                                                -7-
was up to her, he continued the massage, pulled up her sports bra, pulled her shorts down, and
digitally penetrated her. Complainant JG testified that she knew he would not stop until he got
what he wanted. They then performed oral sex on each other and had intercourse. In light of all
the circumstances, Premo, 213 Mich App at 410, the evidence established that defendant used
his position of authority to manipulate and coerce her to perform the sexual acts with him. Thus,
the evidence does not preponderate heavily against the verdict, Lemmon, 456 Mich at 641, and
the trial court did not abuse its discretion by denying defendant’s motion for new trial.

        With respect to complainant JB, we note that the jury only convicted defendant of the
CSC IV charge, which arose from the sexual contact with her during their initial meeting and
acquitted him of the CSC III charges that arose from conduct after the initial meeting. Defendant
identified himself as a CPS worker and explained the complaint process. Defendant isolated her,
like the defendant in Knapp, by requesting her stepdaughter to leave the room. Defendant
confided facts about his sister’s murder as a result of domestic violence, which upset
complainant JB, who had just discussed her marriage and domestic violence with defendant.
Defendant then hugged her and rubbed her shoulders, and then her thighs and inner thighs,
telling her to let him help her relax. In light of all the circumstances, Premo, 213 Mich App at
410, the evidence established that defendant used his position of authority and her emotional
response to his domestic violence comments to manipulate and coerce her to accomplish the
sexual contact; defendant came in contact with her only because of his status as her CPS worker.
Thus, the evidence does not preponderate heavily against the verdict, Lemmon, 456 Mich at 641,
and the trial court did not abuse its discretion by denying defendant’s motion for new trial.

        Defendant’s reliance on People v Perkins, 468 Mich 448; 662 NW2d 727 (2003), is
misplaced. In Perkins, the defendant “was prosecuted for acts arising from his sexual
relationship with the complainant, a sixteen-year-old girl.” Id. at 450. The defendant, who was a
friend of the complainant’s family and whose wife was the complainant’s basketball coach, was
also a deputy sheriff. During the time the complainant and the defendant began having sexual
relations, “the complainant regularly babysat for [the] defendant’s children, attended church with
the family, and, for a time, resided with them.” Id. On the date of the charged incident, the
defendant was on duty in a marked police cruiser when the complainant got into the car with
him, talked with him, and then fellated him. Id. at 451. The prosecutor argued at the preliminary
examination that the defendant was guilty of CSC I through coercion because he was an
authority figure and that a child can be psychologically subjugated in that manner. However, the
Court noted that “no evidence was presented at the preliminary hearing to support the
prosecutor’s assertion that the complainant was coerced, in any sense of that term, to fellate
defendant on the occasion in question.” Id. at 454. The Court concluded that the district court
did not abuse its discretion by dismissing the CSC I charge because the unrebutted facts
indicated that on the date in question the relationship was consensual.

       Unlike Perkins, where there was no evidence that the defendant used his position as a
deputy sheriff to coerce the sexual act, the defendant’s initial contacts with the complainants
were the result of his position as the CPS worker assigned to investigate the abuse or neglect
complaints filed in their respective cases. Moreover, while there was no evidence introduced in
Perkins that the complainant was coerced, in this case both complainants testified that they only



                                               -8-
“consented” to the sexual contact or acts, respectively, because of their fear that defendant would
otherwise take their children away. Thus, Perkins does not support defendant’s position.

       We affirm.

                                                            /s/ Jane E. Markey
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Riordan




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