People of Michigan v. Kelvin Willis
People of Michigan v. Kelvin Willis
Opinion
*582 A jury convicted defendant of child sexually abusive activity, MCL 750.145c(2), possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v), and disseminating sexually explicit material, MCL 722.675. The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 40 years' imprisonment for the child-sexually-abusive-activity conviction, two to eight years for the possession of cocaine conviction, and 2½ to 4 years for the dissemination-of-sexually-explicit-material conviction. Defendant appeals as of right. We affirm.
*583 The 52-year-old defendant's convictions arise from his interaction with his neighbor, a 16-year-old male, in defendant's Dearborn apartment on August 12, 2015. The prosecution presented evidence that defendant spoke to the victim outside, asked the victim his age, and then invited the victim into his apartment. While inside defendant's apartment, the victim sat on the couch, defendant put his arm around the victim, and defendant used his cell phone to show the victim a video of two men engaging in sexual intercourse. Defendant offered the victim $25 if he would allow defendant to insert his fingers in the victim's anus and masturbate on the victim, and defendant later offered the victim $100 to engage in sexual intercourse. The victim declined both offers, and thereafter, *387 when defendant briefly left the apartment, the victim fled and reported the incident to a neighbor. The neighbor contacted police, and officers arrested defendant. During an inventory search, officers found cocaine in the pocket of defendant's pants. At trial, defendant denied any wrongdoing and asserted that the testimony of the victim and the police was inconsistent and not credible.
On appeal, defendant first argues that there was insufficient evidence to support his conviction for child sexually abusive activity. We disagree. We review de novo a challenge to the sufficiency of the evidence.
People v. Bailey
,
Initially, we reject defendant's claim that MCL 750.145c is limited to criminalizing conduct involving the production of child sexually abusive material. Whether conduct falls within the scope of a criminal statute, in this case MCL 750.145c(2), is a question of statutory interpretation that we review de novo.
People v. Hill
,
The statute proscribing child sexually abusive activity provides:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or *585 that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [ MCL 750.145c(2) (emphasis added).]
Thus, among the types of conduct expressly proscribed by MCL 750.145c(2) is "arrang[ing] for ... or ... attempt[ing] or prepar[ing] or conspir[ing] to arrange for ... any child sexually abusive activity or child sexually abusive material ...." (Emphasis added.) MCL 750.145c(1)(n) defines "child sexually abusive activity" as "a child *388 engaging in a listed sexual act." "Child" means "a person who is less than 18 years of age." MCL 750.145c(1)(b) and MCL 750.145c(6). A listed sexual act is defined to include "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity." MCL 750.145c(1)(i). The statute provides a separate definition for "child sexually abusive material." See MCL 750.145c(1)(o).
This Court has recognized that MCL 750.145c(2) applies to three distinct groups of persons.
People v. Adkins
,
Turning to the sufficiency of the evidence to support defendant's conviction, we conclude that, viewed in a light most favorable to the prosecution, the evidence was factually sufficient to show that defendant arranged for, or attempted to arrange or prepare for, child sexually abusive activity with the 16-year-old victim. The evidence showed that the 52-year-old defendant invited the 16-year-old victim into his apartment, showed the victim a pornographic video of two men engaging in sexual intercourse, offered the victim $25 to allow defendant to insert his fingers into the victim's anus while he masturbated, and later offered the victim $100 to engage in sexual intercourse. This was sufficient for a rational trier of fact to find that the essential elements of child sexually abusive activity were proved beyond a reasonable doubt. As discussed *587 earlier, the prosecution was not required to prove that defendant's conduct involved the production of child sexually abusive material.
Our conclusion is supported by
People v. Aspy
,
Next, defendant argues that a new trial is required because the trial court's conduct pierced the veil of judicial impartiality and denied him a fair trial. We disagree. "The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo."
People v
.
Stevens
,
A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias.
People v. Jackson
,
the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge's conduct was directed at one side more than the other, and the presence of any curative instructions. [ Id . at 172,869 N.W.2d 233 .]
*589 In this case, defendant takes exception to the trial court limiting defense counsel's cross-examination of Dearborn Police Sergeant Brian Kapanowski about the sergeant's incorrect assumption that defendant was prohibited from being around schools pursuant to the Sex Offenders *390 Registration Act (SORA), MCL 28.721 et seq ., and purportedly belittling defense counsel by reading out loud the substance of MRE 611 when issuing its ruling.
The following is the exchange from trial that defendant takes issue with on appeal:
[ Defense Counsel ]: And one of the things you were concerned about is if he could be alone with a minor, correct?
[ Sergeant Kapanowski ]: I believe it was a CSC [criminal sexual conduct] under thirteen year old [sic], so, yes, I was concerned whether or not he could have children in the residence as well as be close to schools and difference [sic] stipulations.
[ Defense Counsel ]: In the video you didn't say anything about being close to schools, correct, that we heard?
[ Sergeant Kapanowski ]: No, but that's part of the sexual offender registry. That's what I was assuming, too. I was thinking, I should say.
[ Defense Counsel ]: Thank you. And when you made that assumption were you saying-
The Court : What assumption?
[ Defense Counsel ]: What he just said, the assumption about him not being able to be near minors or be around schools.
[ Defense Counsel ]: Whatever assumptions you made, okay, did you later come to find out after you arrested Mr. Willis that you were wrong?
The Court : That's beyond that, [defense counsel].
[ Defense counsel ]: Okay.
*590 The Court : Hold on, one second. Okay. I just want to say that Michigan Rule Evidence 6.11 [sic] says, that the Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.
So as to, one, make the interrogation and presentation effective for the ascertainment of the truth; two, avoid needless consumption of time as applies here. So that was the reason for my limiting this to what was on the video and that's my reason for stopping that last question.
One form of judicial bias is biased commentary in front of the jury.
Stevens
,
In this case, the general nature of the judicial intervention-controlling the proceedings-was not inappropriate. MRE 611(a) ;
Stevens
,
The trial court's remarks were not of such a nature as to unduly influence the jury. The record shows that the trial court appropriately exercised its discretion to control the trial to prevent improper questioning of the sergeant and avoid wasting time. Before the sergeant took the stand, the parameters of his testimony were discussed. On the basis of the parties' agreement, the trial court allowed a portion of a videorecording from the sergeant's squad car that depicted a conversation between the sergeant and the victim. The sergeant's testimony was limited to what transpired on the recording. Defense counsel, however, sought to ask the sergeant whether his assumption that defendant could not be around schools was incorrect. Similar testimony was previously placed before the jury at trial when a detective testified that it was not correct that defendant could not be around schools. Thus, the trial court evidently prevented further exploration on this matter because it was outside the scope of the trial court's ruling regarding the sergeant's testimony, irrelevant to the proceedings inasmuch as defendant was not charged with violating SORA, and repetitive. Defendant has provided no explanation, argument, or authority indicating how the evidentiary objection was improper and *592 not in accordance with MRE 611(a). Instead, defendant focuses on the trial court "reading from a court rule" and the "tone and demeanor" in which the trial court recited the court rule, but defendant fails to also observe that defense counsel's behavior of ignoring the court's ruling very likely necessitated the court's reference to MRE 611.
Before defense counsel's question that prompted the trial judge's reference to MRE 611, the trial court had interrupted defense counsel, noting that her questions about the sergeant's training were "beyond the redirect." In an apparent effort to continue, defense counsel stated, "Well, no, Judge, I understand that, but they never produced this witness." The trial court explained that defendant may call the sergeant as a defense witness but that her question was "beyond what we've gone into and what I said you should do or could cover on recross." Thus, the trial court's specific mention of MRE 611 occurred after the trial court had already cautioned defendant about the limitations on cross-examination. Yet defense counsel chose to question the sergeant on a matter that was outside the trial court's ruling. Considering the totality of the circumstances, the trial court's reading of MRE 611 was not calculated to cause the jury to believe that the court had any opinion regarding the case and was not likely to unduly influence the jury to defendant's detriment. Rather, it appears that the trial court was merely explaining its interruptions and was not intending to belittle defense counsel. Moreover, the trial court instructed the jury that the case must be decided only on the evidence, that its comments and rulings were not evidence, that it was not trying to influence the vote or express a personal opinion about the case when it made a comment or a ruling, and that if the jury believed that the court had
*593
an opinion, that opinion must be disregarded. Accordingly, to the extent that the trial court's conduct could be deemed improper, its instructions were sufficient to cure any error.
*392
Stevens
,
Lastly, defendant argues that he is entitled to be resentenced because the trial court imposed an unreasonable departure sentence. However, defendant incorrectly asserts that the trial court imposed a departure sentence. The trial court scored the sentencing guidelines for defendant's conviction of child sexually abusive activity, which is a Class B offense. MCL 777.16g. Defendant received a total offense variable (OV) score of 10 points, which, combined with his 80 prior record variable (PRV) points, placed him in the F-II cell of the applicable sentencing grid, for which the minimum sentence range is 78 to 130 months. But because defendant was sentenced as a third-offense habitual offender, MCL 769.11, the upper limit of the guidelines range was increased by 50%, MCL 777.21(3)(b), resulting in an enhanced range of 78 to 195 months. MCL 777.63. Therefore, in sentencing defendant to a minimum sentence of 180 months, the trial court imposed a sentence within the appropriate guidelines range. Defendant does not allege a scoring error or argue that the court relied on inaccurate information when imposing his sentence. Accordingly, we affirm defendant's sentence.
*594
MCL 769.34(10) ;
People v. Schrauben
,
Affirmed.
Talbot, C.J., and Murray and O'Brien, JJ., concurred.
Defendant also directs our attention to instances when the trial court issued unfavorable rulings on evidentiary matters and a request for an adjournment, which he alleges demonstrate bias. However, defendant has provided no explanation, argument, or authority indicating how the trial court's rulings were improper and not in accordance with the applicable rules. Judicial rulings on their own, even those unfavorable to a litigant, are not sufficient to demonstrate bias.
Jackson
, 292 Mich.App. at 598,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.