                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 13, 2018
              Plaintiff-Appellee,

v                                                                 No. 337929
                                                                  Wayne Circuit Court
GERALD DEVAN TARPLEY,                                             LC No. 16-009218-01-FH

              Defendant-Appellant.


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration with knowledge that the victim was
physically helpless). The trial court sentenced defendant to 6 to 15 years’ imprisonment, with
credit for 150 days served in jail. We affirm.

        This case arises from a sexual encounter that occurred on October 8, 2016, between
defendant and the victim, in Detroit, Michigan. Defendant was eventually charged with two
counts of CSC-III under multiple theories. 1 The trial court, without objection from the
prosecution, dismissed the theory under 750.520d(1)(b) (sexual penetration with the use of force
or coercion), which left the prosecution to pursue the CSC-III charges using the theory under
MCL 750.520d(1)(c) (sexual penetration with knowledge that the victim was physically helpless
or mentally incapacitated or mentally incapable). Defense counsel requested the instruction of
consent be provided to the jury because there was a factual issue regarding whether the victim
was awake and consented to the sexual contact. The trial court declined to give the consent
instruction based on the Use Note for M Crim JI 20.27. The jury eventually convicted defendant
as described above. This appeal followed.

        Defendant argues that the trial court abused its discretion by refusing to provide the
special jury instruction regarding the defense of consent. We disagree.



1
 Count 1 was based on finger into genital opening and Count 2 was based on cunnilingus.
Defendant was found not guilty on Count I.


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        “We review a claim of instructional error involving a question of law de novo, but we
review the trial court’s determination that a jury instruction applies to the facts of the case for an
abuse of discretion.” People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” People v Kosik, 303 Mich App 146, 154; 841 NW2d 906 (2013). “The
defendant bears the burden of establishing that the asserted instructional error resulted in a
miscarriage of justice.” Dupree, 486 Mich at 702.

        “Jury instructions must include all the elements of the charged offense, and must not
exclude material issues, defenses or theories if the evidence supports them.” Kosik, 303 Mich
App at 155. In determining whether there was an instructional error requiring reversal, this
Court reviews the jury instructions in their entirety. People v Heikkinen, 250 Mich App 322,
327; 646 NW2d 190 (2002). If the instructions given fairly present the issues to be tried and
sufficiently protect defendant’s rights, there is no error requiring reversal. Id.

        The trial court instructed the jury on the elements of CSC-III, including the definition of
physically helpless. Defendant contends that the trial court erred in declining to give jury
instructions on the defense of consent. Indeed, jury instructions must not exclude defenses if the
evidence supports them. Kosik, 303 Mich App at 155. As this Court has long held, a consent
defense instruction is available to a defendant if the prosecution proceeds on any of the force or
coercion provisions of § 520b(1)(c). See People v Vaughn, 186 Mich App 376, 380; 465 NW2d
365 (1990); see also People v Waltonen, 272 Mich App 678, 689; 728 NW2d 881 (2006) (“In the
context of the CSC statutes, consent can be utilized as a defense to negate the elements of force
or coercion.”). However, a consent defense is not available for a CSC-III charge pursuant to
MCL 750.520d(1)(c) because consent requires a “willing, noncoerced act of sexual intimacy or
intercourse between persons of sufficient age who are neither ‘mentally defective’, . . . ‘mentally
incapacitated’, . . . nor ‘physically helpless.’ ” People v Bayer, 279 Mich App 49, 67; 756
NW2d 242 (2008), vacated in part on other grounds 482 Mich 1000 (2008), quoting People v
Khan, 80 Mich App 605, 619 n 5; 264 NW2d 360 (1978) (ellipses in Bayer). Consent requires
that a person agree to a sexual act freely and willingly, whereas a person is physically helpless
when the person is “physically unable to communicate unwillingness to an act,” MCL
750.520a(m). Thus, consent cannot exist where a person meets the definition of being physically
helpless because, by definition, such a person is not able to willingly agree to a sexual act.
        That the consent defense is not available for a charge of CSC-III under the physically
helpless theory is supported by the language of MCL 750.520d(1)(c), which “does not provide
that it applies to ‘nonconsenseual sexual penetration,’ but rather it simply refers to ‘sexual
penetration.’ ” Waltonen, 272 Mich App at 690 (discussing MCL 720.520b(1)(c)).2 In
Waltonen, this Court stated that “[t]he statute leaves no room for consent.” Id. at 690. When the
Legislature’s meaning is clearly expressed, this Court is required to enforce the statute as written.
Id. at 685. Similarly, in People v Starks, 473 Mich 227, 235; 701 NW2d 136 (2005), the
defendant was convicted of CSC-III under the theory that the defendant sexually penetrated the
victim and the victim was at least 13 but younger than 16 years old, MCL 750.520d(1)(a). Based


2
    The language at issue is the same in both MCL 720.520b and MCL 720.520d.


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on the language of MCL 750.520d(1)(a), the Michigan Supreme Court concluded that “a
thirteen-year-old child cannot legally consent to sexual penetration with another person because
sexual penetration of a thirteen-year-old child is automatically third-degree criminal sexual
conduct.” Id. (emphasis added).

        Here, the theory of force or coercion was dismissed, and the prosecutor only pursued the
CSC-III charges under the theory that defendant sexually penetrated the victim with the
knowledge that the victim was physically helpless, MCL 750.520d(1)(c). Thus, the only
disputed issue was whether the victim was physically helpless and, as discussed above, consent
is not an applicable defense to a charge of CSC-III under the theory of physically helpless. See
Starks, 473 Mich at 235; Waltonen, 272 Mich App at 690; Khan, 80 Mich App at 619 n 5. This
conclusion is consistent with the Use Note for M Crim JI 20.27, which states, “[The consent
instruction] is also obviously inappropriate where the victim is . . . physically helpless.”3

        Even if the consent instruction was applicable and should have been provided, there is no
error requiring reversal in this case because the instructions given fairly presented the issues to
be tried and sufficiently protected defendant’s rights. See Heikkinen, 250 Mich App at 327. The
instructions clearly stated that the prosecution had to prove each of the elements of MCL
750.520d(1)(c) beyond a reasonable doubt in order for the jury to find defendant guilty. One of
those elements was that the victim was physically helpless. Based on the victim’s testimony and
defendant’s statement, there was a factual dispute regarding whether the victim was asleep
during the act. It is undisputed that if the jury found that she was asleep, then it would have
necessarily found that she was physically helpless. Conversely, if the jury found that the victim
was not asleep, then the prosecution’s case would have failed because its only theory was that
the victim was physically helpless. Indeed, evidence of consent was relevant to whether the
victim was physically helpless. However, the omission of the consent instruction did not prevent
the jury from finding that the victim consented and was therefore awake and not physically
helpless because throughout trial, defendant was able to argue that the victim did indeed consent.
If the jury believed that the victim had consented, then, by definition, it would have determined
that the victim was awake and not physically helpless. The instructions that were provided fully
protected defendant’s rights because the jury was informed of the defense that was applicable to
the case—that the victim was not physically helpless. See Heikkinen, 250 Mich App at 327.
Therefore, defendant failed to meet his burden of establishing that the asserted instructional error
resulted in a miscarriage of justice. See Dupree, 486 Mich at 702.

       Affirmed.

                                                             /s/ Brock A. Swartzle
                                                             /s/ Kathleen Jansen
                                                             /s/ Colleen A. O'Brien



3
 We recognize that the Use Note is not binding legal authority, but we consider it here for its
persuasive value and to provide context to defendant’s assertions. See People v Petrella, 424
Mich 221, 277; 380 NW2d 11 (1985).


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