People v. Kubengana, 352836

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v. SARIVE KUBENGANA, Defendant-Appellant.

No. 352836

Court of Appeals of Michigan

September 16, 2021

UNPUBLISHED

Wayne Circuit Court LC No. 19-004211-01-FC

Before: Cameron, P.J., and Jansen and Gleicher, JJ.

PER CURIAM.

Defendant Sarive Kubengana was found guilty of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim under 13 years of age) following a bench trial. Defendant was sentenced to 646 days' imprisonment to 5 years' imprisonment. We affirm.

I. BACKGROUND

Defendant was born in the Democratic Republic of the Congo. In 2017 defendant and his mother came to the United States as refugees, and they settled in Lansing, Michigan. Defendant's immigration documents listed his date of birth as January 1, 1998. However, defendant's birth certificate, which was obtained after he was criminally charged in this matter, indicated that he was born in February 2003.

The victim was introduced to defendant when she was 12 years old. Defendant told the victim that he was 14 years old, and they began a relationship. At some point, the victim "snuck out" of her home to meet defendant, who was waiting for the victim at a school near her home in Westland, Michigan. Defendant penetrated the victim's vagina with his penis while they were inside his motor vehicle in the school parking lot. Thereafter, the victim continued to sneak out of her home to meet defendant. Beginning in February 2019, the victim would "disappear" for several days at a time, and the victim's mother discovered that the victim was in possession of items that contained defendant's name. One of the items appeared to be a hospital bracelet which indicated that defendant's birthdate was January 1, 1998.

In March 2019, the victim was placed in a juvenile detention facility and was later interviewed by Sergeant Nathan MacRae of the Westland Police Department. During the interview, the victim made certain "disclosures" concerning her relationship with defendant. Defendant was charged, in relevant part, with CSC-I under MCL 750.520b(1)(a) and was notified that he was subject to a 25-year mandatory minimum sentence under MCL 750.520b(2)(b). Defendant was later arrested.

On May 11, 2019, Sergeant MacRae interviewed defendant at the Westland Police Department. Before the interview, Sergeant MacRae read defendant Miranda^[1] warnings, and defendant stated that he understood those rights. Defendant wrote on a police form that his birthdate is January 1, 1998, but indicated during the interview that his "actual birthday" was April 14, 2001. According to Sergeant MacRae, defendant admitted to having "vaginal sex" with the victim "about three times" "in the Lansing area[.]" Defendant also admitted to having "vaginal sex with [the victim] about four times" in Illinois and once in his motor vehicle in a school parking lot.

Defendant held his preliminary examination and was bound over on one count of CSC-I. At defendant's circuit-court arraignment, defense counsel expressed concern that defendant's "date of birth [was] not accurate as disclosed in the United States records" and indicated that he was attempting to obtain defendant's birth certificate at some point before trial. Defendant's bench trial commenced in October 2019. The victim, the victim's mother, and Sergeant MacRae testified on behalf of the prosecution. To establish that defendant was an adult, the prosecutor successfully moved to admit defendant's immigration documents, the hospital bracelet, the form that was filled out during defendant's interview with Sergeant MacRae, and a recording of defendant's interrogation. Defendant's mother testified for her son that defendant was actually only 16 years old at the time of trial and that the birth date listed on defendant's immigration documents was incorrect. Defendant's birth certificate was admitted into evidence, and defense counsel argued that the prosecutor could not establish beyond a reasonable doubt that venue was proper in Wayne County.

The trial court ultimately concluded that venue was proper in Wayne County and found defendant guilty of CSC-I. However, because the trial court found that defendant was not 17 years old at the time the crime was committed, the court concluded that MCL 750.520b(2)(b)'s 25-year mandatory minimum sentence did not apply. The trial court also questioned whether personal jurisdiction existed. After noting that it disagreed with our Supreme Court's holding in People v Kiyoshk, 493 Mich. 923; 825 N.W.2d 56 (2013), the trial court concluded that "the automatic waiver statute" did not require the prosecutor to file a petition in family court. Defendant was sentenced as described above.

II. PERSONAL JURISDICTION

Defendant notes repeatedly throughout his brief on appeal that he was a juvenile at the time he was charged with CSC-I. Although the issue is not properly presented and defendant has abandoned the issue by failing to provide meaningful argument and relevant authority, People v Martin, 271 Mich.App. 280, 315; 721 N.W.2d 815 (2006), we will nonetheless address the issue because of its importance.

"A circuit court's authority to exercise jurisdiction over a defendant charged with a felony committed as a minor constitutes a question of personal, not subject matter, jurisdiction." Kiyoshk, 493 Mich. at 923. "[A] party may stipulate to, waive, or implicitly consent to personal jurisdiction." Id. at 924 (alteration in original; emphasis, quotation marks, and citation omitted). We conclude that defendant impliedly consented to personal jurisdiction.

At the June 13, 2019 circuit-court arraignment, defense counsel expressed concern that defendant's "date of birth [was] not accurate as disclosed in the United States records," and counsel indicated that he would attempt to obtain defendant's birth certificate. At the same hearing, the parties agreed on a trial date. During an October 24, 2019 pretrial hearing, the trial court stated that defense counsel had told the court that "it may very well be the case that [defendant] was 15 or 16 years old at the time of the offense." The trial court noted that defendant's age would "be a fact issue at trial," but indicated that another pretrial hearing would be scheduled in order to provide the prosecutor with an opportunity to consider whether "the case [would] have gone through the juvenile unit" if defendant "was 15 or 16 years old at the time of the offense[.]" The trial court noted that the prosecutor was going to "explore" whether it would be proper to dismiss the charge so that the matter could be handled in family court.

At an October 29, 2019 hearing, the trial court indicated that the prosecutor intended to proceed to trial despite evidence that defendant "may" have been under the age of 17 at the time the alleged crime was committed. It was noted that the prosecutor had spoken "to supervisors and colleagues" and that, based on the totality of the circumstances and the victim's "desires," the matter would have likely been initiated in circuit court, as opposed to the family court. At the same hearing, defense counsel acknowledged that "the automatic waiver procedure is discretionary by the Prosecutor." Trial commenced a short period of time later, and the prosecutor presented evidence to support that defendant was over 17 years of age at the time the crime was committed. Defendant presented proofs to the contrary.

We conclude that defendant impliedly consented to personal jurisdiction. Defendant agreed to set the matter for trial at the beginning of the proceeding and never filed a motion to dismiss the charge due to his age. Indeed, it appears that defendant acknowledged that his age had to be resolved by the finder of fact at trial given the conflicting documents and the representations made by defendant. Additionally, although the trial court criticized the prosecutor's decision not to pursue the matter in family court, the prosecutor was not required to file a petition in family court under MCL 712A.2. It is also difficult to fathom how the prosecutor could have filed a petition in family court when the undisputed evidence at that time was that defendant was born in January 1998. Indeed, during defendant's interview with Sergeant MacRae, he listed his birthdate as January 1, 1998, and then later indicated that his actual birthdate was April 14, 2001. There is no indication that there was even a dispute about defendant's age until after the circuit-court arraignment. Therefore, we conclude that the trial court had personal jurisdiction over defendant.

III. VENUE AND SUFFICIENCY OF THE EVIDENCE

"A trial court's...