                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 21, 2016
               Plaintiff-Appellant,

v                                                                  No. 327168
                                                                   Jackson Circuit Court
GREGORY DONELL PATTERSON,                                          LC No. 12-004572-FC

               Defendant-Appellee.


Before: STEPHENS, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of three counts of first-degree criminal sexual conduct (CSC-
I) based on allegations that he engaged in forced sexual intercourse with the 12-year-old
daughter of his live-in girlfriend. The trial court subsequently granted defendant’s motion for a
judgment of acquittal notwithstanding the verdict (JNOV). In making this ruling, the court
mischaracterized the victim’s testimony and other evidence and specifically weighed the
credibility of the witnesses. The court was not permitted to invade the jury’s verdict in this
fashion. We therefore reverse and remand for reinstatement of defendant’s convictions and for
sentencing.

                                       I. BACKGROUND

       In the spring of 2012, the victim, AD, was 12 years old. She lived with her mother,
Angela, and older brother. Defendant, Angela’s boyfriend, had lived in the home with them for
approximately two years.

        AD alleged that on an evening just before spring break, defendant sexually assaulted her.
AD described that she was in the kitchen when defendant entered and asked “can he stick it in.”
Defendant grabbed AD’s arm firmly, but not hard enough to leave a bruise, and guided her into
the connected dining room. Defendant sat down in a chair, pulled down AD’s shorts and
underwear, and “gently pushed [AD] down on him.” AD testified that defendant penetrated her
“front private” with his penis. Defendant then instructed AD to stand and bend over, and “grab
onto the chair arms.” He “put it [his penis] in [her] butt.” When defendant finished, AD pulled
her pants up. Defendant “slapped [her] butt” and told her to fetch a box of dominos. Defendant
and AD started playing and her brother joined them soon after. The brother testified at trial that
nothing appeared amiss with AD that evening.


                                               -1-
       After the dominos game, AD went upstairs to use the bathroom. She described that “[i]t
burned” when she urinated. She noticed some blood, but “[n]ot a lot,” in the toilet and when she
wiped. Nervous about her condition, AD told her mother of defendant’s actions. AD claimed
that her mother confronted defendant but that nothing “change[d] after that.” Angela passed
away before the trial.

       AD also accused defendant of molesting her several times, possibly in the following
week. AD enjoyed lying on her mother’s bed to watch television. She asserted that defendant
came in on various occasions and put his hand inside her shorts, inserted his forefinger into her
vagina, described her vagina as “wet,” and asked if he could do it again. AD described incidents
when defendant attempted to force her to perform fellatio and forced her to fondle his penis. On
another occasion, defendant made her sit on his lap while he “move[d] back and forth.”

         Approximately two weeks after the assault in the dining room, AD reported her abuse to
her maternal grandmother and aunt. They contacted the police and took AD to the hospital.
Physician assistant Jennifer Underwood conducted pelvic and rectal examinations. Underwood
testified that AD reported “some vaginal bleeding and bleeding from her rectum . . . for several
days following” the assault. Underwood observed no “fissures, tears, scarring, [or] ruptures” to
AD’s rectum. In the vaginal area, Underwood noted “tender[ness] on [AD’s] left labia minora.”
Underwood could not rule out sexual assault despite the lack of noticeable injury because two
weeks had passed and “everybody heals their wounds at their own body’s speed.”

        Pediatrician Lisa Markman examined AD another week later. After describing the abuse,
AD reported “that afterwards it was hard to go to the bathroom and that there was a little bit of
blood.” Dr. Markman also conducted a pelvic and rectal exam, including an examination of
AD’s hymen. The results “were normal with no signs of acute trauma so nothing that looked like
bruising or bleeding” or like “scar tissue.” Dr. Markman also could not rule out sexual abuse,
however. She dispelled popular mythology that a woman’s hymen is a solid flap that is
automatically ruptured during penetration. Rather, it is a tissue membrane that may only
partially close this opening.1 She noted that vaginal tissue is much like mouth tissue and heals
very quickly. Dr. Markman further explained that damage might not occur if the penetration was
shallow. A child victim may not realize how shallow an assailant’s penetration is, as even a
minimal level of intrusion “can be uncomfortable.”

        Following AD’s report, officers collected the clothes she had been wearing during the
assault. AD provided a pair of orange and yellow flowered shorts and informed the officers they
had not been washed since the incident and she had worn them in the meantime. AD was less
certain whether she actually donned the underwear she provided. Subsequent testing produced
no evidence from the underwear. However, the analyst found seminal fluid matching
defendant’s DNA on AD’s shorts. The affected area was “around the size of a quarter.” It was
located “on the outside back of the shorts.” The analyst could not definitively assert that the
seminal fluid was originally deposited on the outside, rather than the inside, of the shorts,



1
    See also <http://c.merriam-webster.com/medlineplus/hymen> (accessed June 10, 2016).


                                               -2-
explaining “depending on the material . . . a wet sample could seep through so you can’t really
tell if it’s from the inside or the outside.”

        The day after the police report, defendant voluntarily went to the station for an interview.
Without knowing the specific allegations against him, defendant asserted that he had never been
alone with AD. He conceded that Angela had confronted him on the night in question regarding
AD’s accusation. Defendant informed the officer that he had told Angela that any potential
inappropriate contact would have been accidental and could only have occurred when he tried to
extricate AD after she jumped too roughly on his back. He thereafter denied the more specific
allegations outlined to him.

        Defendant did not take the stand at trial. Instead, counsel attacked AD’s veracity and
attempted to lure her into testifying that she fabricated the allegations because she disliked him
and wanted her parents to reunite.2 Counsel elicited testimony from AD that she was not
“afraid” of defendant after the alleged assault and was still comfortable going into the bedroom
he shared with her mother. Defense counsel questioned the pediatrician and physician assistant
who examined AD about the lack of noticeable injury, characterizing AD’s testimony as
describing a “violent” rape and “anal sodomy.” Counsel also posited that the seminal fluid could
have transferred onto AD’s pants while she lay on her mother’s bed and verified the possibility
of this with the forensic analysts.

        At the close of the prosecution’s case-in-chief, defendant filed a motion for a directed
verdict of acquittal. Counsel lamented the “dearth of information and . . . lack of quality
witnesses” facing his client. He accused AD of “chang[ing] her story so many times that we
can’t make heads or tails of which is which.” He challenged the experts’ prognoses that a child
assaulted by a grown man could “heal[] almost overnight” and leave no trace of the act. He
characterized AD as saying, “I want to get rid of him and I hate him” about defendant. Counsel
expressed amazement that “[t]he blood that she claimed that she experienced after being so
brutally . . . attacked . . . doesn’t appear on [AD’s] shorts or underwear.”

       The trial court denied defendant’s directed verdict motion, accurately noting that it was
required “to view the evidence in a light most favorable for the non-moving party to draw all
reasonable inferences in favor of the non-moving party[.]” The court continued:

       You know I will indicate that the Court has some serious concerns about the
       evidence and whether it in fact is enough . . . to prove beyond a reasonable doubt.
       And at this point I’m just indicating that, but . . . I believe that as a matter of fact
       in law it would be erroneous for the Court at this point to direct a verdict, because


2
  In this regard, AD admitted that she did not always like defendant and that she wanted her
parents to reunite, despite that she had never met her father. AD admitted that she had disliked
other boyfriends with whom her mother had associated. She denied, however, that she had
“done something before to help get rid of them.” AD conceded that she “had a history of lying”
and was “pretty good at lying” “depend[ing] on what it is,” but claimed that she never lied about
things that “are too important.”


                                                 -3-
       clearly every reasonable inference has to be extended to the state at this juncture.
       So, I’m going to allow the matter to go the jury and . . . there’s going to be some
       tough factual issues they’re going to have to make and determine whether the
       state’s met its burden as to all the essential elements . . . .

The jury subsequently convicted defendant of three CSC-I counts: one for digital-vaginal
penetration in Angela’s bedroom, one for penile-vaginal penetration in the dining room, and one
for penile-anal penetration. The jury acquitted defendant of charges connected to AD’s
allegations of attempted fellatio and other sexual touching.

        Defendant thereafter filed a “motion for judgment notwithstanding verdict and in the
alternative motion for new trial.” The motion was based on defendant’s description of the sexual
assault in the dining room as “violent” and “sodomy.” Such violence, defendant posited, would
necessarily leave some physical trace a doctor could discover. Defendant inaccurately stated that
AD alleged two anal penetrations, instead of one. He incorrectly averred that defendant
complained of significant bleeding, and marveled at the lack of blood on AD’s underwear and
shorts. Defendant further challenged the finding of only a trace amount of seminal fluid on the
exterior of AD’s shorts in light of such an encounter. Defendant theorized that this material
transferred while AD was lying on her mother’s bed. Defendant then focused on AD’s veracity,
noting her demeanor immediately after the attack, lack of fear in the following weeks, and
history of lying to oust her mother’s boyfriends from their house. Allowing defendant’s
convictions to stand in the face of such minimal evidence and questionable victim veracity would
be a miscarriage of justice, defendant urged.

        Defendant continued this thread at the hearing on his motion. In response to the
prosecution’s clarification that AD never testified the assault was “violent,” defense counsel
retorted, “those of us who heard the record that her position was that he grabbed her with no
preamble, pulled her pants down and with his penis did violate her anus more than once and her
vagina at least once perhaps twice. Your honor, I don’t know if there’s any other way to
describe that other than violent.” Counsel continued that AD “asserted that she bled quite a
bit,” but there was no blood found on the underwear or shorts that she continued wearing
immediately after the assault. Counsel argued that a lack of physical corroboration based on the
physician assistant finding no trauma or injury “doesn’t make sense whatsoever since she was
there with an allegation of a sexual assault anally and violently.” Counsel reiterated his claim
that AD “testified that she lied and she had lied in the past about her mother’s boyfriends in order
to get them out of the house.” In the legal portion of counsel’s argument, he asserted:

       And I understand that the Court had to deny my motion for directed verdict
       because the rules are very clear. The Court had to accept everything that was said
       by [the] alleged victim as being true in the light most favorable to the People.
       But, as this Court has said on so many occasions, you are the gatekeeper. . . . The
       Court has a duty and the responsibility where there is a potential miscarriage of
       justice . . . to step in and set aside a verdict.

        Before entering its ruling, the court inquired of defense counsel how long he had
practiced and how many motions for JNOV he had filed. Counsel responded that in his 20 years
of practice, this was his first such motion. The court then ruled in full:

                                                -4-
Um, in all the years I’ve been on the bench, which this now my 13th year um, for
the most part I think juries do a good job getting it right. More often than not a
very high percentage of the case[s] the jury does exactly what . . . I would
probably . . . have done if I had heard the matter as a bench trial. I was a
prosecutor for most of my career. . . . I tried a lot of cases. . . . And this is one of
those cases it bothered me because when all the evidence came in the Court
understood its role and the case law when it came for the motion for directed
verdict that I had to view the evidence to the light most favorable to the non-
moving party. So, specifically as an example I had to believe this victim’s
testimony even if I didn’t find it credible because I had to give every possible
reasonable inference uh, in favor of the non-moving party specifically the
prosecution. And frankly I thought that the jury would come up with a very
different verdict. At the conclusion I clearly believed that there were some major
problems uh, with the state’s case, especially starting right out with the victim.
And first of all we’ve got this alleged anal and vaginal rape. She’s allegedly got
this large amount of bleeding um, but she goes up and changes her underwear and
ultimately . . . is comfortable enough where she’s playing dominos with her
brother in a relatively short period of time you know after this alleged vaginal and
anal rape. Uh, then there was some inconsistencies about the amount of time it
occurred. There didn’t seem to be any supporting evidence from Dr. Markman
about any tearing of the hymen. Uh, in fact as I recall her testimony the hymen
was still intact. The victim testified at some length about how in the past she’s
actually lied uh, and misrepresented things to get other men out of her household
with her mother. And that’s a very major concern to the Court, because in effect
she’s found by way of manipulation and misrepresenting things to her mother that
she can effectively move somebody out of the home. Then when we talk about
this evidence of the DNA, I recall the testimony specifically on that. She testified
that she had a regular if you want to call it a modus operandi or method of
operation she would routinely on almost a daily basis would get into the marital
bed, lay down on the marital bed and . . . watch TV because her mother had a
much nicer TV tha[n] she had in her own bedroom. I don’t think there’s a man
here in this courtroom that hasn’t worn a condom that isn’t going to say that
there’s not some level of seminal fluid that can be present in a liquid form uh, you
know on my some sheets. And again if we’re talking a microscopic amount of
evidence in this case, it was a microscopic amount. I believe that an expert could
easily make that determination that any amount of wet seminal fluid could have
very easily transferred onto the shorts in this case. And again I would underscore
that it was a microscopic amount. Um, you know I was also even concerned from
the very beginning I don’t know that this had any impact at all it’s one of the few
juries I ever selected that I had an all white jury and I had jurors commenting on
the fact that they thought it was unfair to the defendant uh, the fact that he was
going to ultimately face an all white jury. That might be a separate issue, but
again it was just something else on top of everything else that occurred in this
case. I don’t think I even saw the victim or the victim’s family, which I tend to
see at the end of the case. So, I don’t know where that - - you know but normally
they’re here, normally they’re watching the case at the end. Um, but what is a

                                          -5-
       real significance to me is the fact that I think that there is [a] totally other
       plausible view of the evidence that certainly could have supported uh, that the
       case was not proven beyond a reasonable doubt. And so I’m going (inaudible) - -
       something I’ve done in my entire career of 13 years on the bench, almost 20 some
       years of prosecution and defense experience and I’m going to enter a judgment
       notwithstanding the verdict. And, uh, you know frankly I don’t want to sit there
       at night and wonder if I sent an innocent man to prison and especially for criminal
       sexual conduct charge. He doesn’t have a history of that, um, he struck me also
       during the trial was very attendant, very polite, you know um, he just didn’t seem
       to carry even the demeanor of somebody that was guilty. And at this point in time
       you know if the appellate courts want to think about what I said it’s just one of
       those verdicts that I think potentially is a miscarriage of justice. So, the judgment
       notwithstanding the verdict is entered by this Court.

                                           II. ANALYSIS

        The prosecution now appeals the trial court’s dismissal of defendant’s convictions. We
review de novo a trial court’s decision on a motion for JNOV. People v Duenaz, 148 Mich App
60, 64; 384 NW2d 79 (1985). When considering a JNOV motion, the court must view the
evidence and any inferences arising therefrom in the light most favorable to the nonmoving party
and determine if contrary to the jury’s verdict, “the evidence viewed in this light fails to establish
a claim as a matter of law.” Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131;
666 NW2d 186 (2003). In a criminal matter, this means a defendant is entitled to a post-trial
judgment of acquittal if the evidence, viewed in the light most favorable to the prosecution, is
insufficient to meet the elements of a charged offense beyond a reasonable doubt. People v
Solak, 146 Mich App 659, 679; 382 NW2d 495 (1985).

        Defendant alternatively requested a new trial, contending that his convictions were
against the great weight of the evidence, MCR 2.611(A)(1)(e), and resulted in a miscarriage of
justice, MCR 6.431(B). Should we overrule the trial court’s JNOV ruling, defendant contends
that we should remand for consideration of his new trial motion. We will consider these two
requests together as defendant was entitled to neither for reasons that are quite similar.

        “Under statute, as well as the court rule, the operative principles regarding new trial
motions are that the court ‘may,’ in the ‘interest of justice’ or to prevent a ‘miscarriage of
justice,’ grant the defendant’s motion for a new trial.” People v Lemmon, 456 Mich 625, 634-
635; 576 NW2d 129 (1998). Such a motion may also be granted when the jury’s verdict is
against the great weight of the evidence. Id. A verdict is against the great weight of the
evidence when “the evidence preponderates heavily against the verdict.” Id. at 642. In
considering such a motion, the trial judge may not act “as a ‘13th juror’ ” and overturn a jury’s
verdict because he or she has a different view of the witnesses’ credibility. Id. at 636.

       The historic division of functions between the court and the jury needs no citation
       of authority. It is the province of the jury to determine questions of fact and
       assess the credibility of witnesses. As the trier of fact, the jury is the final judge of
       credibility. The approach that would allow a trial judge to sit as a thirteenth juror
       and overrule the credibility determinations of the jury suggests that a judge may

                                                 -6-
       freely repudiate the jury’s findings. [Id. at 636-637 (quotation marks and citations
       omitted.)]

There are scant exceptions to this fundamental principle. A court may only intervene when:

       the testimony contradicts indisputable physical facts or laws, where testimony is
       patently incredible or defies physical realities, where a witness’s testimony is
       material and is so inherently implausible that it could not be believed by a
       reasonable juror, or where the witnesses’ testimony has been seriously impeached
       and the case marked by uncertainties and discrepancies. [Id. at 643-644
       (quotation marks and citations omitted).]

Where “[t]he question [is] one of credibility posed by diametrically opposed versions of the
events in question, [a] trial court [is] obligated, ‘despite any misgivings or inclinations to
disagree,’ to leave the test of credibility where statute, case law, common law, and the
constitution repose it[:] ‘in the trier of fact.’ ” Id. at 646-647.

        To view the evidence in the light most favorable to the prosecution in relation to the
JNOV motion, the court was required to accept the witnesses’ testimonies as credible and draw
all reasonable inferences in favor of the prosecution, just as when considering a motion for a new
trial. The court did not do so here. Instead, it mischaracterized the evidence, discredited the
experts, and found the victim patently incredible based, in part, on alleged testimony that she did
not actually provide. For these reasons, we must reverse the trial court’s grant of JNOV, reject
defendant’s bid to remand for a new trial, and reinstate defendant’s convictions.

        First and foremost, the court mischaracterized several key pieces of evidence, possibly
carried away by defense counsel’s rhetoric. There is absolutely no evidence that defendant twice
penetrated AD’s rectum with his penis. AD described only one such penetration during her
testimony. AD never described the assault or the penetration as “violent.” Rather, she asserted
that defendant “gently pushed” her onto his lap, implying that the penetration was slow or gentle.
The court described that AD suffered a significant amount of bleeding after the sexual assault.
However, AD testified that she noticed only “some” blood when she went to the bathroom. She
specifically rejected defense counsel’s description that she bled “like a stuffed pig.” The court
stated that AD admitted to lying about her mother’s boyfriends in the past to secure their removal
from her home. In actuality, AD expressly denied that charge. Although AD conceded that she
had a history of lying, she denied that she had ever lied about anything of import and had never
secured the eviction of her mother’s boyfriends in this fashion.

        The court seemingly ignored the testimony of physician assistant Underwood and Dr.
Markman regarding vaginal anatomy, victim misconception of penetration, and the body’s
healing powers. This testimony explained why the medical professionals could not rule out a
penetration despite the lack of noticeable injury. Defense counsel theorized that it was
nonsensical that no injury would be visible after such an allegedly violent and forcible rape, but
his cross-examination did not yield the “ah-ha” moment he was looking for.

       If the jury accepted the medical evidence actually provided, it could determine beyond a
reasonable doubt that a sexual penetration occurred as described by AD. Specifically,

                                                -7-
Underwood testified that beyond a 72-hour window, evidence of a sexual assault is rarely found
during an examination. Bruises, tears and fissures often heal quickly, both experts reported.
Such injuries will not occur if the assailant penetrates only the entry of a victim’s genitalia or
rectum. Even this minimal entry would be “uncomfortable” to the child victim, Dr. Markman
explained. And even such a minimal entry supports a CSC-I conviction. See MCL 750.520a(r)
(“ ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any
other intrusion, however slight, of any part of a person’s body or of any object into the genital or
anal openings of another person’s body, but emission of semen is not required.”). If the sexual
penetration were “slight,” no injury would be occasioned to the victim’s hymen, as noted by Dr.
Markman. Indeed, AD never testified regarding the depth of defendant’s intrusion and defense
counsel asked no questions to clarify this point.

        In relation to the forensic evidence, the absence of blood on AD’s shorts and underwear
did not dictate against a guilty verdict, contrary to the trial court’s assessment. As noted, AD
actually testified that the bleeding was not significant. Moreover, she was uncertain whether the
underwear she provided to the officers was the underwear she wore that night. AD claimed that
the clothing had not been washed, but she testified that defendant cleaned her room and did her
laundry, limiting her confidence in this regard.

       In relation to the presence of minimal seminal fluid on AD’s shorts, the court and defense
counsel ignore the elephant in the room: AD never claimed that defendant reached ejaculation.
And the “emission of semen is not required” to find a sexual penetration. MCL 750.520a(r).
Defendant posited an alternate theory for the presence of the semen on AD’s shorts, and the
forensic experts admitted that the material could have been transferred from defendant and
Angela’s bedding. Even so, the jury could still believe that defendant committed a sexual
penetration against AD in the home’s dining room but did not emit semen in the process.

       Given the court’s mischaracterization of the victim’s testimony and the medical and
forensic evidence, the court apparently leapt to the incorrect conclusion that AD’s version of
events “defie[d] physical realities.” Lemmon, 456 Mich at 643. Accurately read, the record
simply does not support this conclusion.

         Nor does the record support that AD’s testimony was so “inherently implausible” or so
“seriously impeached” that “it could not be believed by a reasonable juror.” Id. at 644. AD
admitted her history of lying, but expressly denied that she relied on fabrication to unseat
defendant or any other man as Angela’s boyfriend. No witness corroborated defendant’s theory
in this regard. Although AD’s brother did not believe AD’s allegations against defendant, he did
not describe her as a liar. The court’s discrediting of AD’s testimony therefore invaded the
jury’s sacred sphere.

       The court also invaded the role of the jury when it determined from defendant’s
demeanor while he sat in the courtroom that he was innocent of the charges against him. The
jury had an equal opportunity to observe defendant. But defendant did not testify and therefore
made no statements through which his credibility could be assessed. Ultimately, the court placed




                                                -8-
itself as a 13th juror, contrary to clear legal precedent. As such, the JNOV decision cannot be
allowed to stand. And we discern no ground supporting a new trial, negating the need for a
remand to consider this alternate remedy.3

       The prosecution additionally requests that defendant be sentenced before a different
judge based on the trial judge’s statement, “I don’t want to sit there at night and wonder if I sent
an innocent man to prison.” In People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986),
this Court set forth three factors to consider in determining whether reassignment is necessary on
remand:

       (1) whether the original judge would reasonably be expected upon remand to have
       substantial difficulty in putting out of his or her mind previously-expressed views
       or findings determined to be erroneous or based on evidence that must be rejected,
       (2) whether reassignment is advisable to preserve the appearance of justice, and
       (3) whether reassignment would entail waste and duplication out of proportion to
       any gain in preserving the appearance of fairness.

That a judge’s ruling is reversed does not demand the effective disqualification of the judge on
remand. People v Page, 83 Mich App 412, 419-420; 268 NW2d 666 (1978).

        Although the trial judge believed the jury inaccurately assessed the evidence in this case,
our opinion specifically instructs the judge of his error. Armed with our detailed opinion, we see
no reason to believe the judge will stray from the law in favor of personal prejudices. The trial
judge is familiar with the case and a newly assigned judge would have to acquaint him or herself
with the facts before sentencing. The need to “preserve the appearance of justice” is not so
strong to trump other considerations.

        Accordingly, we reverse and remand to the trial court for reinstatement of the jury’s
verdict and for sentencing. We do not retain jurisdiction.



                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Deborah A. Servitto
                                                             /s/ Elizabeth L. Gleicher




3
  Unrelated to the evidence presented on the record, the trial court also considered the seeming
injustice of defendant being tried and convicted by an all-white jury. Defendant raised no
challenge to the racial composition of the jury and actively participated in jury selection. Given
this record, we discern no error demanding relief in this regard.


                                                -9-
