In the preliminary examination for former Ferris hockey player Darren Smith, Hon. Peter Jaklevic decided there was probable cause to take the case to trial.
Smith was charged with five felonies for criminal sexual conduct in the examination held in the Mecosta County District Court Tuesday, April 16.
Two of the counts are for criminal sexual conduct in the first degree for sexual penetration to an incapacitated or physically helpless victim that caused personal injury. Two counts are for criminal sexual conduct in the first degree for sexual penetration using force or coercion that caused personal injury. The last count is criminal sexual conduct in the second degree for sexual touching using force or coercion that caused personal injury.
All counts in the first degree have a maximum life sentence and the last count of criminal sexual conduct in the second degree has a maximum sentence of 15 years.
The four counts in the first degree are two theories for two sexual acts allegedly committed by Smith — using force or coercion or the victim was incapacitated. The acts are oral sexual penetration and vaginal penetration with the fingers and both have counts under the two theories. Smith can only be punished once for each act, though, according to Mecosta County Chief Assistant Prosecutor Amy Clapp.
“The jury can come back and convict him of all the counts, but the ones that are alternative theories, he can only be punished one time. He can’t be punished for multiple [counts] if it’s the same theory,” Clapp said. “So, the jury will get to deliberate on both of those theories, they can come back guilty on both, one, whatever, but he’s only punished for one because it’s the same act.”
Clapp specified that the standard for probable cause is a low standard and the preliminary examination is not determining cause beyond reasonable doubt, like a trial would. The examination was simply to determine if the evidence was sufficient to support the charges the prosecutors are pursuing.
The victim and her roommate — whose names will be kept anonymous in the interest of protecting their privacy — both testified in the examination, along with Spectrum Health Sexual Assault Nurse Examiner Jessica DeRuiter and Captain Gary Green of the Ferris Department of Public Safety. Only the prosecution called witnesses that both the defense and prosecution questioned. Smith did not testify in the three hour long examination.
The trial was set to start April 9 for a four-day trial but was remanded back to the Mecosta County District Court for a preliminary exam after Smith’s attorneys and the prosecutor’s office did not agree on a plea deal before the trial, according to Green.
Smith was originally arrested July 12, 2018, for three counts of criminal sexual conduct in the first degree for causing personal injury to an incapacitated or physically helpless person through oral and digital penetration. With the exception of two weeks in October for allegedly violating the terms of his bond, Smith has been out on bond with a GPS tether since his arraignment.
Smith was removed from the Ferris hockey roster and expelled from the university after his arraignment.
According to Clapp, a formal arraignment and pre-trial date will be set for approximately four weeks from the examination.