Newaygo Cnty. Prosecutor v. Siders (In re Siders)

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In re Parole of Kenneth Donald Siders NEWAYGO COUNTY PROSECUTOR, Appellee, v KENNETH DONALD SIDERS, Appellant.

No. 360415

Court of Appeals of Michigan

October 27, 2022

UNPUBLISHED

Newaygo Circuit Court LC No. 2019-020563-AP

Before: MURRAY, P.J., and O'BRIEN and REDFORD, JJ.

ORDER

The motion for reconsideration is GRANTED, in part, to correct two misstatements of fact. Because the Parole Board was not a party to this appeal, the Parole Board has been removed from the case caption. Additionally, the opinion has been corrected to reflect that it was the Newaygo County Prosecutor, and not the Attorney General, who argued for reversal of the parole decision. In all other respects, the motion for reconsideration is DENIED. This Court's opinion issued September 15, 2022, is hereby VACATED. A new opinion is attached to this order.

ON RECONSIDERATION

PER CURIAM

Defendant appeals by delayed leave granted^[1] the trial court's order reversing the Parole Board's grant of parole to defendant. We affirm.

I. FACTUAL BACKGROUND

In 1984, defendant was charged with three counts of first-degree criminal sexual conduct (CSC-I) arising from defendant's sexual penetration of his three biological children who were all under 13 years old at the time: KS, his 5-year-old son AS, his 3½-year-old daughter; and HS, his 2-year-old daughter.^[2] Defendant's presentence investigation report (PSIR) indicates that a licensed social worker gave deposition testimony regarding her June 5, 1984 interviews with the children in relation to a Newaygo County Probate Court parental rights termination case. She testified that KS disclosed to her in significant detail that defendant both physically and sexually abused KS, including that defendant penetrated KS's mouth and anus with his penis. KS told her that defendant "peed in my mouth" and affirmed that when defendant put his penis in KS's mouth something came out of defendant's penis. KS also witnessed defendant sexually abuse HS, his infant sister. AS disclosed to the social worker that defendant penetrated her mouth and anus with his penis. HS, who was not very verbal at the time of her interview, disclosed to the social worker that defendant "hurt her bootie," a term she used for her female genitalia. The PSIR further indicates that, as a result of the sexual abuse, AS was treated for herpes. The record also contains facts ascertained by the Newaygo County Probate Court indicating that a medical doctor who specialized in the field of infectious diseases determined that defendant's daughters both had genital herpes and one had gonorrhea acquired through sexual intercourse.

Defendant pleaded nolo contendere to committing CSC-I against AS and the other charges were dismissed. The court sentenced defendant to life imprisonment with the possibility of parole. A defendant sentenced to life in prison in 1984 became eligible for parole after serving 10 years and then every 5 years after that. Defendant's parole applications in 1994, 1999, 2004, 2009, and 2013 were all denied.

In 2019, defendant again sought parole. As part of the parole evaluation process, defendant underwent a Qualified Mental Health Professional Evaluation (QMHP), a Static-99R evaluation, and a Stable-2007 evaluation. Defendant scored "low" on the Static-99R and "moderate" on the Stable-2007 which placed defendant "in the Low priority category for supervision and intervention in comparison to other sexual offenders assessed using these measures." An evaluation using the parole guidelines scoresheet gave defendant a score of +3, which equated to a high probability of parole.

The Parole Board held a public hearing in June 2019 at which defendant testified. Defendant admitted that, when KS was around five or six years old, he penetrated KS's anus with his penis but said that it only happened on one occasion. Defendant could not explain why he sexually abused KS. He stated "it was just a sexual pleasure thing that goes back a long ways." He said that the only thing he could "search in my mind as a sexual thing" was that he had been sexually abused at age 10 or 11 by other patients while a patient in the Kalamazoo State Hospital. Defendant admitted that he experienced sexual gratification when he assaulted KS but denied ejaculating. Defendant stated that his sexual assault of KS "wasn't really pleasureful" but affirmed that he lacked insight or explanation why he did it. He denied any other instances of sexually abusing KS. Later, however, defendant also admitted that he put his penis into KS's mouth. Defendant admitted that KS cried during the first sexual assault which defendant stated made him feel shame and guilt. He then admitted that he sexually assaulted KS again. Defendant testified that he did not understand why he did it again.

Defendant admitted touching AS's vagina when she was four years old but denied penetrating her. He stated that the first time he tried to put his penis into AS's mouth she bit down so he stopped. Later in his testimony, however, he admitted that on other occasions he put his penis into AS's mouth. He stated that he thought he did it for personal pleasure but denied that he received pleasure, denied ejaculating, and denied digitally penetrating AS. When asked about AS being treated for herpes when she was four years old, defendant denied ever having any type of herpes. Defendant also admitted that he touched and rubbed two-year-old HS's vagina with his hands and tried to put his penis into her mouth one time.

Defendant could not explain why he did what he did. He stated that he wanted sexual pleasure but did not experience it and felt bad afterwards. He admitted that despite such feelings he continued to sexually abuse all three children. When challenged regarding why defendant repeatedly sexually abused his children, if he experienced no pleasure, defendant testified that he continued to sexually abuse them to see if he would enjoy it. He did not know why he thought he could get sexual pleasure from children.

Defendant testified that he had not been able to complete his GED and affirmed that he obtained a waiver. When asked what programs he had engaged in during incarceration, defendant reported that he could not get into sex offender programs so he voluntarily participated in the Hope and Recovery program.^[3] He admitted that for years he denied committing his crimes, but that program helped him admit that he sexually assaulted his three children. Defendant reported, however, that he had completed no other programs.

Defendant testified that he had no people on the outside and would need a community placement. He stated that he planned to apply for a minimum wage job washing dishes. He said that he would complete some sort of therapy program for sexual problems if given the opportunity. He had $1,000 saved in his prison account, had an interest in horticulture, and if released, he planned to buy land and build greenhouses.

KS's adoptive mother, a clinical social worker, testified that since KS's adoption at eight years old, KS had both psychological and physical problems from the abuse he suffered. He had problems with his intestines because of the sexual abuse. He experienced anxiety, depression, and suicidal thoughts that led to psychiatric placements. She stated that the neglect and abuse KS suffered made him disabled and, despite his intelligence, his psychological issues interfered with his ability to maintain employment and engage in normal life activities. She stated that HS suffered from herpes in her mouth, throat, stomach, and intestines from the sexual abuse she suffered. She testified that defendant should not be paroled.

KS testified that defendant should not be paroled. He explained that the abuse affected his life and caused him fear and insecurity. He pointed out a scar on his forehead from being hit with a bat by defendant. KS stated that he suffered guilt for not being able to protect his sisters from defendant. He testified that he witnessed defendant commit sexual abuse. KS said that he hated himself and feared that he would become like defendant.

The Department of the Attorney General objected to and opposed parole because defendant committed assaultive and heinous crimes on the children, had no sex offender treatment, expressed no insight into why he sexually assaulted the children, and nothing indicated that the public would be safe from defendant. Further, defendant lacked support on the outside and had no parole plan.

Following the hearing, the Parole Board decided that reasonable assurances existed that defendant would not become a menace to society or to the public safety, and it granted defendant parole. On September 13, 2019, the prosecution applied for leave to the circuit court to appeal the Parole Board's decision. The prosecution also moved for a temporary ex parte stay of defendant's release. The court granted a temporary stay on September 19, 2019. The court granted leave to appeal on December 15, 2020. On appeal, the prosecution argued that the Parole Board abused its discretion by granting defendant parole and cited the numerous misconduct tickets that defendant received while incarcerated defendant's lack of accountability and insight into his crimes, and defendant's not receiving any sex offender treatment while incarcerated. The prosecution also argued that the evaluation tools did not support granting parole because the QMHP noted concerns in several areas of evaluation. The prosecution pointed out that defendant had not received any type of treatment for the type of crimes he committed. The prosecution requested that the court reverse the Parole Board's decision. The Parole Board argued that defendant's scores on the Static-99R and Stable-2007...