                                                                                     Michigan Supreme Court
                                                                                           Lansing, Michigan
                                                                    Chief Justice:      Justices:



Syllabus                                                            Robert P. Young, Jr. Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                         Stephen J. Markman
                                                                                         Diane M. Hathaway
                                                                                         Mary Beth Kelly
                                                                                         Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been              Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                John O. Juroszek


                                          PEOPLE v ZAJACZKOWSKI

       Docket No. 143736. Argued October 10, 2012 (Calendar No. 5). Decided December 19, 2012.

               Jason J. Zajaczkowski pleaded guilty in the Kent Circuit Court, James R. Reford, J., to a
       charge of first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii) (victim and
       defendant related by blood or affinity to the fourth degree). The plea was conditioned on
       defendant’s being permitted to appeal with regard to the issue whether the undisputed facts
       established that he committed only third-degree criminal sexual conduct, MCL 750.520d(1)(a).
       The facts indicate that defendant was born in 1977 during the marriage of Walter and Karen
       Zajaczkowski. Walter and Karen divorced in 1979. The divorce judgment referred to defendant
       as the minor child of the parties. In 1992, Walter had a child with another woman; that child was
       the victim in this case. In 2007, when defendant was approximately 30 years old and the victim
       was 14 years old, the criminal sexual conduct occurred. Subsequent genetic testing indicated
       that Walter was not defendant’s biological father. The Court of Appeals granted defendant’s
       delayed application for leave to appeal. The Court of Appeals affirmed, ruling that because
       defendant was conceived and born during his mother’s marriage to the victim’s father, a strong
       presumption of legitimacy arose that defendant lacked standing to challenge and, as a result,
       defendant and the victim were related by blood as a matter of law. 293 Mich App 370 (2011).
       The Supreme Court granted defendant’s application for leave to appeal. 490 Mich 1004 (2012).

               In a unanimous opinion by Justice HATHAWAY, the Supreme Court held:

               The elements of first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii) are
       (1) a sexual penetration, (2) a victim who is at least 13 but less than 16 years of age, and (3) a
       relationship by blood or affinity to the fourth degree between the victim and the defendant. In
       this case, defendant did not dispute that the first two elements were met, and the prosecution
       conceded in the Court of Appeals that there was no evidence of a relationship by affinity
       between the victim and the defendant. A relationship by blood means a relationship between
       persons arising by descent from a common ancestor or a relationship by birth rather than
       marriage. The DNA evidence established that the victim’s father was not defendant’s biological
       father. Accordingly, defendant was not related to the victim by blood to the fourth degree and
       the prosecution could not establish the relationship element of the crime. The Court of Appeals
       erred by applying the civil presumption of legitimacy in this criminal case when nothing in the
       statutory language indicates that a relationship by blood may be established using that
       presumption. Defendant was improperly convicted of first-degree criminal sexual conduct.
       Conviction of first-degree criminal sexual conduct vacated; case remanded for entry of a
conviction of third-degree criminal sexual conduct in accordance with defendant’s plea
agreement and for resentencing.




                                   ©2012 State of Michigan
                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                      Chief Justice:          Justices:



Opinion                                               Robert P. Young, Jr. Michael F. Cavanagh
                                                                           Marilyn Kelly
                                                                           Stephen J. Markman
                                                                           Diane M. Hathaway
                                                                           Mary Beth Kelly
                                                                           Brian K. Zahra


                                                             FILED DECEMBER 19, 2012

                            STATE OF MICHIGAN

                                    SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

 v                                                             No. 143736

 JASON JOSEPH ZAJACZKOWSKI,

              Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 HATHAWAY, J.
       At issue in this case is whether defendant was properly convicted of first-degree

 criminal sexual conduct under MCL 750.520b(1)(b)(ii), which requires that defendant be

 related to the victim “by blood.”1 While it is undisputed that there is no biological

 relationship between defendant and the victim, the prosecution asserts that the


 1
  A relationship by “affinity” would also satisfy the relationship element of the statute;
 however, the prosecution concedes that there is no relationship by affinity in this case.
relationship element of the crime has been met based on a civil presumption of

legitimacy. To determine whether the prosecution is correct, we must address whether

the civil presumption of legitimacy implicated by statutory and caselaw, as well as

defendant’s lack of standing to challenge his legitimacy under the Paternity Act, MCL

722.711 et seq., are relevant to whether a relationship by blood exists for purposes of

establishing first-degree criminal sexual conduct.

       We conclude that the prosecution cannot establish a blood relationship between

defendant and the victim when the undisputed evidence indicates that defendant is not

biologically related to the victim. Moreover, the presumption of legitimacy cannot be

substituted for a blood relationship in order to fulfill this element of the crime charged.

Accordingly, we vacate defendant’s conviction for first-degree criminal sexual conduct.

We remand this case to the trial court for entry of a conviction of third-degree criminal

sexual conduct in accordance with defendant’s plea agreement entered on May 5, 2009,

and for resentencing and further proceedings not inconsistent with this opinion.

                       I. FACTS AND PROCEDURAL HISTORY

       In this case, defendant was charged with first-degree criminal sexual conduct

under MCL 750.520b(1)(b)(ii), which provides that

       [a] person is guilty of criminal sexual conduct in the first degree if he or she
       engages in sexual penetration with another person and if . . . :

                                           * * *

               (b) That other person is at least 13 years but less than 16 years of age
       and . . . :

                                           * * *




                                              2
             (ii) The actor is related to the victim by blood or affinity to the fourth
       degree. [Emphasis added.]

       Defendant had sexual intercourse with the victim, who was at least 13 but less

than 16 years of age at the time of the incident. The prosecution asserts that defendant is

related to the victim because defendant was born during his mother’s marriage to the

victim’s biological father, Walter Zajaczkowski. Defendant’s mother and Walter were

divorced in 1979. While the divorce judgment identified defendant as their child, a DNA

test later revealed that Walter is not actually defendant’s biological father.2 In 1992,

Walter fathered a child with another woman. That child is the victim in this case. The

prosecution concedes that in light of the DNA test results, defendant is not biologically

related to the victim.

       Because defendant is not biologically related to the victim, defendant filed a

motion in the trial court to dismiss the first-degree criminal sexual conduct charge or to

reduce the charge to criminal sexual conduct in the third degree. MCL 750.520d(1)(a)

governs third-degree criminal sexual conduct and provides that

       [a] person is guilty of criminal sexual conduct in the third degree if the
       person engages in sexual penetration with another person and if . . . :

              (a) That other person is at least 13 years of age and under 16 years of
       age.

The prosecution opposed defendant’s motion, relying on the divorce judgment between

defendant’s mother and Walter identifying defendant as Walter’s child. The prosecution



2
 While the instant case was pending in the trial court, Walter’s DNA was compared to
defendant’s DNA, and it was established that Walter is not defendant’s biological father.



                                              3
argued that regardless of whether defendant and Walter were related by blood, defendant

is legally Walter’s son.

        Despite the uncontested DNA evidence, the trial court denied defendant’s motion.3

Defendant agreed to plead guilty of first-degree criminal sexual conduct on the condition

that he would be permitted to appeal the issue whether the facts establish that he is only

guilty of third-degree criminal sexual conduct.4

        The Court of Appeals granted defendant’s application for leave to appeal and

affirmed his conviction in a published opinion.5 On appeal, defendant argued that the

relationship element of the statute could not be established because Walter is not his

biological father and defendant is not related by blood to Walter’s daughter, the victim.

While the prosecution conceded that there is no biological relationship between

defendant and the victim, the prosecution contended that defendant is nevertheless related

to the victim as a matter of law because defendant has no standing to challenge the 1979

divorce judgment identifying him as Walter’s child. The Court of Appeals agreed with

the prosecution, concluding that the absence of a biological relationship does not affect




3
  The trial court reasoned that in light of the divorce judgment presented by the
prosecution, defendant was Walter’s child. Therefore, the trial court concluded that a
relationship of affinity existed between the victim and defendant. Again, the prosecution
now concedes that there is no relationship by affinity.
4
  Defendant’s plea was also conditioned on an agreement that the trial court would use
the sentencing guidelines for third-degree criminal sexual conduct with a fourth-offense
habitual-offender enhancement. See MCL 769.12.
5
    People v Zajaczkowski, 293 Mich App 370; 810 NW2d 627 (2011).



                                             4
the legal conclusion that defendant and the victim are brother and sister because they

share the same legal father.

        To reach its conclusion that defendant and the victim are related by blood to the

fourth degree, the Court of Appeals relied on MCL 552.29, which states that with regard

to divorce actions, “[t]he legitimacy of all children begotten before the commencement of

any action under this act shall be presumed until the contrary be shown.” The Court of

Appeals also relied on cases from this Court involving the Paternity Act6 and the Child

Custody Act,7 which stand for the proposition that a putative biological father lacks

standing to even bring an action to establish paternity unless there has been some prior

court determination that the child was not the issue of the marriage.8 The Court of

Appeals additionally referred to statutes governing intestate succession that incorporate

the presumption of legitimacy and the standing requirement into intestate-succession

disputes.9

        Relying on these statutes and cases, the Court of Appeals reasoned that only

defendant’s mother and his legal father, Walter, have standing to rebut the presumption

that defendant was the legitimate issue of their marriage. Because defendant lacks

standing to challenge that he is the legitimate issue of the victim’s father, the Court of

6
    MCL 722.711 et seq.
7
    MCL 722.21 et seq.
8
  See Barnes v Jeudevine, 475 Mich 696; 718 NW2d 311 (2006); In re KH, 469 Mich
621; 677 NW2d 800 (2004); Girard v Wagenmaker, 437 Mich 231; 470 NW2d 372
(1991).
9
    See MCL 700.2114(1)(a); MCL 700.2114(5).



                                            5
Appeals concluded that “as a matter of law, defendant and the victim are related by

blood—brother and sister sharing the same father.”10 Therefore, the Court of Appeals

held that defendant’s conviction for first-degree criminal sexual conduct was proper.

This Court granted defendant’s application for leave to appeal.11

                              II. STANDARD OF REVIEW

         This case involves the interpretation and application of a statute, which is a

question of law that this Court reviews de novo.12

                                     III. ANALYSIS

         The issue before this Court is whether defendant can properly be convicted of

first-degree criminal sexual conduct under MCL 750.520b(1)(b)(ii). The elements that

the prosecution is required to prove under this statute are: (1) sexual penetration, (2) a

victim who is at least 13 years old but less than 16 years old, and (3) a relationship by

blood or affinity to the fourth degree between the victim and the defendant.    Defendant

does not dispute that the first two elements have been met, and the prosecution conceded

in the Court of Appeals that there is no evidence of a relationship by affinity between the

victim and defendant. Thus, the only issue we address is whether a relationship by blood

to the fourth degree can be established in the face of undisputed DNA evidence indicating

that defendant is not biologically related to the victim. The Court of Appeals concluded


10
     Zajaczkowski, 293 Mich App at 377.
11
     People v Zajaczkowski, 490 Mich 1004 (2012).
12
  People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011); Miller-Davis Co v Ahrens
Constr, Inc, 489 Mich 355, 361; 802 NW2d 33 (2011).



                                            6
that the relationship element can be established in such a situation. We disagree with this

analysis because it is not supported by the plain language of the statute at issue, MCL

750.520b(1)(b)(ii).

         When interpreting statues, this Court must “ascertain and give effect to the intent

of the Legislature.”13 The words used in the statute are the most reliable indicator of the

Legislature’s intent and should be interpreted on the basis of their ordinary meaning and

the context within which they are used in the statute.14 For a defendant to be convicted of

first-degree criminal sexual conduct, MCL 750.520b(1)(b)(ii) requires that the defendant

and the victim be related “by blood or affinity . . . .”     Because these terms are not

expressly defined anywhere in the statute, they must be interpreted on the basis of their

ordinary meaning and the context in which they are used.

         A relationship by “blood” is defined as “a relationship between persons arising by

descent from a common ancestor”15 or a relationship “by birth rather than by marriage.”16

Moreover, as the Court of Appeals correctly noted, the context in which the term “by

blood” is used in the statute indicates that it is meant as an alternative to the term “by

affinity.” This Court has defined “affinity” as

         the relation existing in consequence of marriage between each of the
         married persons and the blood relatives of the other, and the degrees of
         affinity are computed in the same way as those of consanguinity or kindred.

13
     People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
14
     People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
15
     Black’s Law Dictionary (8th ed), p 182.
16
     Random House Webster’s College Dictionary (2001), p 145.



                                               7
         A husband is related, by affinity, to all the blood relatives of his wife, and
         the wife is related, by affinity, to all the blood relatives of the husband.[17]

         Under the statutory language, the third element of MCL 750.520b(1)(b)(ii) can

only be met if defendant is related to the victim in one of two ways—by blood or by

affinity.    The conclusive DNA evidence establishes that the victim’s father is not

defendant’s biological father.        Defendant and the victim simply do not share a

relationship arising by descent from a common ancestor, and they are not related by birth.

Accordingly, defendant is not related to the victim by blood to the fourth degree.

Therefore, when interpreting the language of the statute in light of its ordinary meaning

and the context in which it is used, we conclude that the prosecution cannot establish the

relationship element of MCL 750.520b(1)(b)(ii).18

         While the Court of Appeals acknowledged the ordinary meaning of a relationship

“by blood or affinity,” it then applied the civil presumption concerning the legitimacy of

a child in order to conclude that defendant and the victim are related by blood as a matter

of law. However, nothing in the language of MCL 750.520b(1)(b)(ii) indicates that a

relationship by blood can be established through this presumption.             In reaching its

conclusion, the Court of Appeals went beyond the statute’s language and changed the

17
     Bliss v Caille Bros Co, 149 Mich 601, 608; 113 NW 317 (1907).
18
   The prosecution has raised the argument that this interpretation will result in
unintended consequences regarding adopted children because if the blood relationship
element can only be established through a biological relationship, then a sexual
penetration committed by a member of an adoptive family against an adopted minor child
may not be punishable under MCL 750.520b(1)(b)(ii). While we acknowledge that the
prosecution raises valid policy concerns, such policy concerns are best left to the
Legislature to address. It is this Court’s duty to enforce the clear statutory language that
the Legislature has chosen.



                                                8
ordinary meaning of the statute’s terms by adding language that the Legislature did not

include.

       Given that this case does not involve an action to establish paternity, challenge

child custody arrangements, or dispute intestacy issues, we find it unnecessary to stray

from this criminal statute’s plain and unambiguous language. The question whether the

relationship element of the statute can be established does not require a determination of

whether defendant is deemed “legitimate” for any of the stated civil-law purposes or

contexts in which the presumption of legitimacy has been implicated.19 Moreover, we

decline to conclude as a matter of law that defendant shares a common ancestor with the

victim and is thereby related to the victim by blood merely because defendant may be

considered the issue of his mother’s marriage to the victim’s father for legitimacy

purposes.20 Such a conclusion would require this Court to extend the civil presumption

of legitimacy to this criminal statute when the Legislature clearly has not done so.

19
   “This presumption vindicates a number of interests, not the least of which include the
interest of the child in not having his or her legitimacy called into question, the interest of
the state in ensuring that children are properly supported, and the interest of both in
assuring the effective operation of intestate succession.” Barnes, 475 Mich at 715
(MARKMAN, J., dissenting).
20
   However, we do not hold that evidence indicating that a person was born during a
marriage may never be admissible in a criminal prosecution to show that the person is the
natural child of his legal parents. We acknowledge that when the prosecution alleges that
the defendant and the victim are related by blood because they have the same father,
evidence that the defendant was born during the marriage of his legal parents would make
the existence of a blood relationship between the defendant and the victim more probable.
See MRE 401; MRE 402. Thus, while the civil presumption of legitimacy cannot be
used in a criminal case to conclusively establish a blood relationship, in the absence of a
determinative DNA test, the prosecution may use evidence that a person was born during
a marriage as evidence that the defendant is related to the victim by blood to the fourth
degree.



                                              9
       Because the elements of first-degree criminal sexual conduct under MCL

750.520b(1)(b)(ii) cannot all be met, we conclude that defendant was not properly

convicted of that crime.21

                                  IV. CONCLUSION

       In light of the undisputed evidence indicating that defendant is not biologically

related to the victim, we conclude that the prosecution cannot establish a blood

relationship between defendant and the victim. Moreover, the presumption of legitimacy

cannot be substituted for a blood relationship in order to establish this element of the

crime charged. Accordingly, we vacate defendant’s conviction for first-degree criminal

sexual conduct. We remand this case to the trial court for entry of a conviction of third-

degree criminal sexual conduct in accordance with defendant’s plea agreement entered on

May 5, 2009, and for resentencing and further proceedings not inconsistent with this

opinion.


                                                       Diane M. Hathaway
                                                       Robert P. Young, Jr.
                                                       Michael F. Cavanagh
                                                       Marilyn Kelly
                                                       Stephen J. Markman
                                                       Mary Beth Kelly
                                                       Brian K. Zahra



21
  Defendant additionally argues that he is entitled to credit against the sentence imposed
in this case for the time he spent in jail between his arrest and sentencing. Because
defendant was on parole at the time he committed the offense at issue, we agree with the
Court of Appeals that his argument fails under this Court’s decision in People v Idziak,
484 Mich 549; 773 NW2d 616 (2009).



                                           10
