People v. Gezelman

202 Mich. App. 172 (1993) 507 N.W.2d 744

PEOPLE
v.
GEZELMAN

Docket No. 151457.

Michigan Court of Appeals.

Submitted April 13, 1993, at Grand Rapids. Submitted on rehearing August 3, 1993. Decided June 30, 1993. Decided on rehearing October 19, 1993, at 9:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Andrew J. Marks, Prosecuting Attorney, and Douglas E. Ketchum, Chief Assistant Prosecutor, for the people.

State Appellate Defender (by Anne Yantus), for the defendant on appeal.

Before: NEFF, P.J., and MacKENZIE and WEAVER, JJ.

ON REHEARING

PER CURIAM.

Defendant pleaded guilty of second-degree criminal sexual conduct, MCL 750.520c(1) (a); MSA 28.788(3)(1)(a), and child sexually abusive activity, MCL 750.145c(2); MSA 28.342a(2). He was sentenced to three to fifteen years' imprisonment for the former conviction and eight to twenty years' imprisonment for the latter conviction. He appeals as of right. We affirm. This case has been decided without oral argument pursuant to MCR 7.214(E)(1)(b).

Given the circumstances of the offense and the offender, we hold that defendant's eight-year minimum sentence for his child sexually abusive activity conviction does not violate the principle of proportionality. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).

Defendant's failure to challenge the accuracy of the information contained in the presentence report at sentencing precludes appellate review of this issue. People v Sharp, 192 Mich. App. 501, 503-504; 481 NW2d 773 (1992).

Likewise, defendant's failure to challenge the constitutionality of the child sexually abusive activity statute before the trial court also normally would preclude appellate review. See People v Ghosh, 188 Mich. App. 545, 546; 470 NW2d 497 (1991). However, because an important constitutional question is involved, we will review the issue. Id.

Defendant claims the child sexually abusive activity statute, MCL 750.145c(2); MSA 28.342a(2), is unconstitutional because it is overbroad. Specifically, he asserts that the statute's prohibition against "erotic nudity" involving children is overbroad because it could encompass protected forms of free speech, such as the innocent photograph of a nude child by its parents. We disagree. The statutory definition of erotic nudity does not encompass the depiction of all child nudity. Rather, it is narrowly defined to exclude those depictions that have a "primary literary, artistic, educational, political, or scientific value" and that do not appeal to the prurient interests in sex. MCL 750.145c(1)(d); MSA 28.342a(1)(d). Because the definition is narrowly drawn so that protected forms of free speech are not punished, the statute is not unconstitutionally overbroad. New York v Ferber, 458 U.S. 747; 102 S. Ct. 3348; 73 L. Ed. 2d 1113 (1982); Broadrick v Oklahoma, 413 U.S. 601; 93 S. Ct. 2908; 37 L. Ed. 2d 830 (1973).

Affirmed.