People of Michigan v. Abigail Marie Simon

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 16, 2016
Plaintiff-Appellee,
v No. 326149
Kent Circuit Court
ABIGAIL MARIE SIMON, LC No. 13-009055-FC
Defendant-Appellant.
Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of first-degree criminal
sexual conduct (CSC I), MCL 750.520b(1)(b)(v),1 and accosting a minor for immoral purposes,
MCL 750.145a. The trial court sentenced defendant to concurrent sentences of 8 to 25 years for
the CSC I convictions and 53 days for the accosting conviction. The trial court also ordered
defendant to comply with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., and
that, upon parole, defendant be subject to lifetime electronic monitoring. Defendant appeals as
of right. For the reasons explained in this opinion, we affirm defendant’s convictions, but
remand for Crosby2 proceedings concerning defendant’s sentences.
This case concerns sexual conduct between defendant, who was an academic advisor at
Catholic Central High School in Grand Rapids, and a 15-year-old sophomore at the school.
Defendant was 33 years old. At trial, the victim described numerous sexual acts with defendant
and the prosecutor presented extensive evidence of text messages, including sexual messages,
between defendant and the victim. Defendant testified that three sexual penetrations occurred,
but she claimed that, on each occasion, the victim raped her. Defendant also testified that all the
text messages she sent to the victim, including ones where she told the victim that she loved him
and ones where they discussed “rough” sex, were done to appease the victim. According to
defendant, if she appeased the victim, he would not assault her. The jury convicted defendant as
noted above. She now appeals as of right.
1
Defendant was acquitted of a fourth count of CSC I.
2
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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I. VOLUNTARINESS INSTRUCTION
On appeal, defendant first argues that the trial court gave an inaccurate and misleading
instruction regarding involuntariness because it instructed the jury that an act is not involuntary
unless the defendant was unconscious or it was the result of involuntary bodily movement.
Defendant asserts that sexual penetration is also “involuntary” when an actor is overcome by
force and that, given defendant’s testimony and claimed defense, the jury also should have been
specifically instructed that an act was involuntary if defendant was overpowered and physically
forced to engage in the sexual conduct at issue. According to defendant, the erroneous
instruction constituted a structural error, which violated her constitutional right to due process
and prevented her from presenting her claimed defense.
We review de novo defendant’s claim of instructional error. People v Dobek, 274 Mich
App 58, 82; 732 NW2d 546 (2007). A trial court must instruct the jury on the applicable law.
See People v McGhee, 268 Mich. App. 600, 606; 709 NW2d 595 (2005). Jury instructions must
include all the elements of the charged offenses and any material issues, defenses, and theories
that are supported by the evidence. People v Fennell, 260 Mich. App. 261, 265; 677 NW2d 66
(2004). Jury instructions are to be read as a whole, rather than extracted piecemeal, to determine
whether error requiring reversal occurred. McGhee, 268 Mich. App. at 606. “Even if the
instructions are somewhat imperfect, reversal is not required if the instructions fairly presented
the issues to be tried and were sufficient to protect the rights of the defendant.” Fennell, 260
Mich. App. at 265. Reversal for failure to provide a jury instruction is warranted only if “it
appears that it is more probable than not that the error was outcome determinative.” People v
McKinney, 258 Mich. App. 157, 163; 670 NW2d 254 (2003).
Defendant was charged with CSC I, MCL 750.520b(1)(b)(v), which provides:
(1) A person is guilty of criminal sexual conduct in the first degree if he or
she engages in sexual penetration with another person and if any of the following
circumstances exists:
***
(b) That other person is at least 13 but less than 16 years of age and any of
the following:
***
(v) The actor is an employee or a contractual service provider of the public
school, nonpublic school, school district, or intermediate school district in which
that other person is enrolled . . . and the actor uses his or her employee,
contractual, or volunteer status to gain access to, or to establish a relationship
with, that other person.
“Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or
any other intrusion, however slight, of any part of a person’s body or of any object into the
genital or anal openings of another person’s body . . . .” MCL 750.520a(r).
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The sexual penetration of a person under the age of 16 is a strict-liability offense. People
v Nyx, 479 Mich. 112, 140-141; 734 NW2d 548 (2007) (MARKMAN, J., concurring). See also In
re Hildebrant, 216 Mich. App. 384, 386; 548 NW2d 715 (1996). A strict-liability offense does
not include a mens rea element, but the actus reus remains an element of the crime. People v
Likine, 492 Mich. 367, 393; 823 NW2d 50 (2012). In other words, “a strict-liability offense
requires the prosecution to prove beyond a reasonable doubt that the defendant committed the
prohibited act, regardless of the defendant’s intent and regardless of what the defendant actually
knew or did not know.” Id.
When charged with a strict-liability offense, a defendant can admit that the prohibited act
was committed, but defend the charge on the basis that the act was committed involuntarily. Id.
“Examples of involuntary acts that, if proved, provide a defense against the actus reus element of
a crime include reflexive actions, spasms, seizures or convulsions, and bodily movements
occurring while the actor is unconscious or asleep.” Id. at 393-394. “The common thread
running through these ‘involuntariness’ defenses is that the act does not occur under the
defendant’s control, and thus the defendant was powerless to prevent its occurrence and cannot
be held criminally liable for the act.” Id. at 394. “One approach is to explain voluntariness as
the opposite of involuntariness . . . . An alternative account is of voluntary behavior as volitional
action—behavior which is intentional under some description, which is ‘done because the agent
wants to do it.’ ” Id. at 394 n 49 (quotation omitted).
The Supreme Court in Likine provided examples of involuntary acts, id.at 393-394, but it
never indicated that this list was exclusive. In fact, the Supreme Court stated that it was
providing “[e]xamples” of involuntary acts. Id. at 393. Although not included in the Court’s list
of specific examples of involuntary acts, we agree with defendant that, where sexual penetration
occurs against a defendant’s will only because a defendant is physically overcome through force,
there is no voluntary act by the defendant. Rather, as opposed to being the perpetrator of
criminal sexual conduct, the defendant would essentially be a victim, who was subjected to the
sexual conduct involuntarily. See generally People v Parks, 483 Mich. 1040, 1045; 766 NW2d
650 (2009) (YOUNG, J., concurring) (“‘[S]exual conduct’ is something that both ‘actors’ and
‘victims’ take part in—‘actors’ voluntarily and ‘victims’ involuntarily.”). In such circumstances,
the sexual penetration would not occur under the defendant’s control, nor would it be done
because the defendant wanted it done. Likine, 492 Mich. at 394, 394 n 49. Accordingly,
defendant could defend the CSC I charges on the basis that the sexual penetrations were
involuntary, and she was entitled to a jury instruction on involuntariness. See Fennell, 260 Mich
App at 265.
Relevant to the voluntariness of defendant’s conduct pertaining to the CSC I counts, the
trial court instructed the jury that “the defendant is charged with the crime of first degree
criminal sexual conduct. To prove this charge the prosecutor must prove each of the following
elements beyond a reasonable doubt. First, that the defendant voluntarily engaged in a sexual act
. . .” (emphasis added). The trial court then gave the following instruction regarding the word
“voluntary”:
Now, ladies and gentlemen, when I use the word quote/unquote
“voluntary” in the first element of criminal sexual conduct, it has a specific legal
meaning that is different from the way the word is commonly used. To have
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quote/unquote “voluntarily” engaged in something, the defendant must have made
some conscious act. The defendant’s act is involuntary only if the act did not
occur under the defendant’s control, and she was truly powerless to prevent its
occurrence.
Now, some examples of involuntary acts that could not be the basis for a
crime are spasms, seizures, reflective [sic] actions and movements occurring
while the actor is unconscious or asleep. However, if one consciously acts, then
that is voluntary for purposes of this element.
In our judgment, the court’s instructions on CSC I fairly presented the issue of whether
defendant’s sexual conduct was involuntary. Consistent with Likine, the trial court instructed the
jury that an act was involuntary when it “did not occur under the defendant’s control, and she
was truly powerless to prevent its occurrence.” See Likine, 492 Mich. at 394. This broad
explanation of involuntariness encompassed defendant’s claim that her actions were involuntary
because the victim physically overcame her and forced her to submit to sexual conduct against
her will. In other words, had the jury believed defendant’s version of events, it would have
found her not guilty of CSC I on the basis of this instruction. Considered as a whole, the
instruction given was sufficient to protect defendant’s rights and she has not shown a reasonable
probability of a different outcome had more detailed instructions on her specific claim been
given to the jury.
In contrast to this conclusion, defendant’s argument regarding why the jury instructions
failed to fairly present the involuntariness defense is two-fold. First, defendant claims that the
phrases “conscious act” and “consciously acts” in the instructions indicate that an act is
involuntary only if the defendant is unconscious, i.e., not having consciousness. While the word
“conscious” can mean “having mental faculties undulled by sleep, faintness, or stupor,” it can
also mean “capable of or marked by thought, will, design, or perception.” Merriam-Webster’s
Collegiate Dictionary (2014). Read in the context of the voluntariness instruction as a whole,
the terms “conscious” and “consciously” refer not to an act done while the defendant was not
unconscious, but to an act that was marked by thought, will, design, or perception. Stated
differently, read in context, the phrases indicate that the defendant’s act, to be voluntary, must
have been an act chosen by the defendant. This conclusion is supported by the second sentence
in the definition of “voluntary,” which provides that an act “is voluntary only if the act did not
occur under the defendant’s control, and she was truly powerless to prevent its occurrence.”
Pursuant to this sentence, an act is voluntary only if it occurred under the defendant’s control and
the defendant had power to prevent its occurrence, which requires more than just the defendant’s
faculties being undulled by sleep, faintness, or stupor.
Second, defendant claims that the examples that the trial court provided of involuntary
acts were irrelevant and had to have led to the jury concluding that “any ‘conscious’ bodily act,
even if physically forced against a defendant[]” was a voluntary act. The examples of
involuntary acts that the trial court gave to the jury—spasms, seizures, reflexive actions, and
movements while the defendant is unconscious or asleep—were not specifically applicable to the
present case. However, the trial court stated it was giving “some examples” of involuntary acts.
It did not state that the list of examples it gave was an exclusive list of involuntary acts. Thus,
contrary to defendant’s contention, the instructions did not limit involuntary acts to those that
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occurred while defendant was unconscious and those that resulted from involuntary bodily
movement. Rather, when the jury instructions regarding involuntariness are read as a whole, the
instructions fairly presented the involuntariness defense. According to the instructions,
defendant was only guilty of CSC 1 if she “voluntarily engaged” in the sexual penetrations,
meaning that she engaged in “conscious acts,” such that the penetrations occurred under her
control and she was not powerless to prevent them. There was no instructional error.
II. JUDICIAL FACT-FINDING
Next, defendant argues that she is entitled to be resentenced for her CSC I convictions
because the trial court engaged in judicial fact-finding when scoring the sentencing guidelines
and the fact-finding resulted in an increased minimum sentence range. We agree that the trial
court engaged in fact-finding which resulted in an increased minimum sentence range. However,
contrary to defendant’s arguments, the appropriate remedy is a Crosby remand, not resentencing.
In People v Lockridge, 498 Mich. 358, 373-374; 870 NW2d 502 (2015), the Supreme
Court held that the sentencing guidelines violate a defendant’s Sixth Amendment right to a jury
to the extent that offense variables are scored on the basis of facts not admitted by the defendant
or found by the jury and that those judicially found-facts increase the defendant’s mandatory
minimum sentence. To cure the constitutional violation, the Supreme Court held that the
sentencing guidelines were advisory, rather than mandatory. Id. at 391. In this case, defendant
preserved her claim by objecting to judicial fact-finding at sentencing, and the record shows that
judicial fact-finding increased her minimum sentence range under the legislative guidelines. For
example, in scoring offense variable (OV) 4 at 10 points, the trial court determined that the
victim suffered serious psychological injury and, when scoring OV 19 at 10 points, the trial court
determined that defendant interfered with the administration of justice. As scored, defendant’s
total OV score is 55, meaning that the trial court’s judicial fact-finding in relation to these
variables increased defendant’s minimum sentence range from 35 (level II) to 55 (level III).
Because the trial court relied on facts that were neither found by the jury nor admitted by
defendant in order to calculate the minimum sentence range, and because the judicially-found
facts resulted in an increased minimum sentence range, defendant’s Sixth Amendment right to a
jury was violated. See People v Stokes, 312 Mich. App. 181, 194; ___ NW2d ___ (2015).
In terms of the appropriate remedy for this violation, defendant argues that, because she
preserved her Sixth Amendment claim, she should be resentenced in keeping with United States
v Lake, 419 F3d 111, 113-114 & n 2 (CA 2 2005). However, in Stokes, 312 Mich. App. at 198-
203, this Court chose not to follow Lake and held that a Crosby remand was the proper remedy
for a preserved Sixth Amendment violation. Given this Court’s decision in Stokes, the remedy
for the violation of defendant’s Sixth Amendment right to a jury trial is a Crosby remand as set
forth in Lockridge, 498 Mich. at 398. See Stokes, 312 Mich. App. at 198-203. We remand for
such proceedings.
III. OFFENSE VARIABLE SCORING
Defendant also argues that she is entitled to be resentenced because the trial court erred in
scoring offense variables 4, 10, and 19.
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We review a trial court’s factual determinations made in scoring the sentencing
guidelines for clear error. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). A
finding is clearly erroneous when we are left with a definite and firm conviction that a mistake
has been made. People v Brooks, 304 Mich. App. 318, 319-320; 848 NW2d 161 (2014).
“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute,
i.e., the application of the facts to the law, is a question of statutory interpretation, which an
appellate court reviews de novo.” Hardy, 494 Mich. at 438. See also People v Steanhouse, __
Mich App __, __; __ NW2d __ (2015); slip op at 19.
Ten points may be scored for OV 4, MCL 777.34, which concerns psychological injury
to a victim, if “[s]erious psychological injury requiring professional treatment occurred to a
victim.” MCL 777.34(1)(a). In scoring OV 4, a trial court may not merely assume that someone
in the victim’s position would have suffered serious psychological injury. People v Lockett, 295
Mich. App. 165, 183; 814 NW2d 295 (2012). Actual treatment is not required for the scoring of
OV 4. MCL 777.34(2). However, evidence that a victim received counseling may support the
scoring of this variable. See, e.g., People v Davenport (After Remand), 286 Mich. App. 191, 200;
779 NW2d 257 (2009). In this case, at sentencing, the victim’s mother informed the trial court
that the victim had gone to counseling a few times since his relationship with defendant was
discovered, and she specified that he underwent this counseling because he had been “a victim,”
not because of other reasons such as his sister’s recent death. Given this evidence that the victim
went to counseling as a result of defendant’s actions, the trial court did not clearly err in finding
that the victim suffered serious psychological injury requiring treatment. See id. We affirm the
10-point score for OV 4.
Ten points may be scored for OV 10, MCL 777.40, which addresses exploitation of a
vulnerable victim, if “[t]he offender exploited a victim’s physical disability, mental disability,
youth or agedness, or a domestic relationship, or the offender abused his or her authority status.”
MCL 777.40(1)(b). The term “exploit” means “to manipulate a victim for selfish or unethical
purposes.” MCL 777.40(3)(b). However, points may only be assigned to OV 10 if the victim
was vulnerable. People v Cannon, 481 Mich. 152, 158; 749 NW2d 257 (2008). The mere
existence of one or more factors listed in MCL 777.40(1)(b) does not automatically equate to
victim vulnerability. MCL 777.40(2); Cannon, 481 Mich. at 158-159. Instead, the term
“vulnerability” is defined as “the readily apparent susceptibility of a victim to injury, physical
restraint, persuasion, or temptation.” MCL 777.40(3)(c).
The trial court scored 10 points for OV 10 based on the facts that the victim was a 15-
year-old student while the 33-year-old defendant held a position of authority as a school
employee and the victim’s tutor. We see nothing clearly erroneous in the trial court’s
conclusion. The evidence demonstrates that the victim’s youthfulness left him susceptible to
persuasion or temptation by defendant and that defendant exploited this vulnerability for her own
unethical and selfish purposes. Cf. People v Johnson, 474 Mich. 96, 103; 712 NW2d 703 (2006)
(finding that the 20-year-old defendant exploited his 15-year-old victim in a CSC case). In
particular, Thomas Cottrell, an expert in child sexual abuse, explained at trial that adolescents are
not prepared to make adult decisions, and this testimony supports the conclusion that the 15-
year-old victim, who had a crush on defendant, was vulnerable to persuasion and temptation.
The evidence also indicates that defendant exploited this vulnerability by, for example, using
tutoring sessions to begin a personal relationship with the victim, moving her meetings with the
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victim outside of the school to restaurants and later her apartment, and eventually initiating
sexual conduct with the victim. Over the course of many weeks, she then continued exploiting
the victim’s youthful infatuation with her for her own selfish and unethical purposes, telling the
victim that she loved him and teaching him to engage in “rough” sex. Based on this evidence,
the trial court did not clearly err in finding that defendant exploited the victim’s youth. Hardy,
494 Mich. at 438. We affirm the 10-point score for OV 10.
Ten points may be scored for OV 19, MCL 777.49, which concerns threats to the security
of a penal institution or court or interference with the administration of justice or the rending of
emergency services, if “[t]he offender otherwise interfered with or attempted to interfere with the
administration of justice.” MCL 777.49(c). “[T]he plain and ordinary meaning of ‘interfere with
the administration of justice’ . . . is to oppose so as to hamper, hinder, or obstruct the act or
process of administering judgment of individuals or causes by judicial process.” People v
Hershey, 303 Mich. App. 330, 343; 844 NW2d 127 (2013). Points can be assigned to OV 19 for
conduct that occurs before criminal charges are filed. Id. Conduct that constitutes an
interference or attempted interference with the administration of justice includes telling the
victim or a witness not to disclose the defendant’s conduct. People v Steele, 283 Mich. App. 472,
493; 769 NW2d 256 (2009).
In this case, the trial court scored OV 19 based on defendant’s efforts to hamper the
process of administrating justice after her relationship with the victim was discovered. In
particular, after defendant’s relationship with the victim was discovered, police told defendant
not to have any contact with the victim. Nevertheless, according to the victim, about a month
later, defendant created a Twitter account and “tweeted” him. They sent private messages to
each other over Twitter. They also sent email messages and talked on the telephone. Defendant
tried to keep this contract secret by, for example, questioning the victim’s use of telephones that
could be “tapped” by police. Most significantly, in some of their communications, defendant
told the victim to take steps to stop the investigation. In a June 12, 2013 email, defendant wrote,
“I love you. Tell your mom you need this gone now. I need to be with you.” In a June 16, 2013
email, defendant wrote, “I really miss you a whole lot. Are you having a good birthday? Did
you talk to your momma at all?” Consistent with defendant’s remarks, the victim spoke with his
mother about ending the investigation. Based on defendant’s conduct, the trial court’s finding
that defendant attempted to interfere with the administration of justice was not clearly erroneous.
We affirm the trial court’s scoring of OV 19. Because the trial court did not clearly err in the
scoring of OVs 4, 10, and 19, defendant is not entitled to resentencing on this basis.
IV. DEFENDANT’S EXERCISE OF HER RIGHT TO A TRIAL
With regard to sentencing, defendant also argues that the trial court impermissibly
considered defendant’s decision to go to trial and gave defendant a harsher sentence for
exercising her right to present a defense. Given this purported impropriety by the trial court,
defendant maintains that she entitled to resentencing.
In a criminal prosecution, a defendant has a constitutional right to a jury trial. US Const,
Am VI; Const 1963, art 1, § 20. A defendant’s right to due process, US Const, Am XIV,
includes the right to present a defense. People v Anstey, 476 Mich. 436, 460; 719 NW2d 579
(2006). In sentencing a defendant, a trial court may not consider factors that violate a
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defendant’s constitutional rights. People v Godbold, 230 Mich. App. 508, 512; 585 NW2d 13
(1998). Consequently, a defendant may not be penalized at sentencing for refusing to admit
guilt, People v Conley, 270 Mich. App. 301, 315; 715 NW2d 377 (2006), or for exercising his or
her right to a jury trial, People v Mosko, 190 Mich. App. 204, 211; 475 NW2d 866 (1991), aff’d
441 Mich. 496 (1992).
In this case, before it imposed sentence, the trial court outlined its various general
thoughts and observations for the parties. In doing so, the trial court commented on the fact that
defendant exercised her right to a jury trial.3 It stated that there were zero winners at trial,
explaining that “[e]verybody who’s had anything to do with it . . . has lost.” The trial court
further stated that “the whole course of this trial . . . made a bad situation much, much worse than
it had to have been.” However, the trial court prefaced these specific remarks by stating that it
held nothing against defendant for going to trial and that it was “not going to sentence her in any
way, shape, or form because she went to trial other than things I might have learned as a result of
the trial itself.” Given these express remarks by the trial court, there is no merit to defendant’s
contention that the trial court increased her sentence based on her exercise of her right to go to
trial. Defendant is not entitled to resentencing on this basis.
V. LIFETIME ELECTRONIC MONITORING
Finally, defendant argues that lifetime electronic monitoring (LEM) is unconstitutional
because it constitutes an unreasonable search under the Fourth Amendment and is cruel and/or
unusual punishment. Defendant asserts that the statutes imposing LEM are unconstitutional on
their face and as applied to defendant. We disagree.
We review constitutional issues de novo. People v Sadows, 283 Mich. App. 65, 67; 768
NW2d 93 (2009). A statute is presumed to be constitutional, and the party challenging the
statute’s constitutionality bears the burden of proving its invalidity. People v Boomer, 250 Mich
App 534, 538; 655 NW2d 255 (2002).
3
In support of her argument, defendant also notes that the trial court compared defendant’s
conduct to that of Jamila Williams, a Grand Rapids teacher who engaged in sex with four
students. Williams pleaded guilty to three counts of third-degree criminal sexual conduct (CSC
III) and one count of second-degree criminal sexual conduct (CSC II). The trial court sentenced
Williams to 95 months to 15 years’ imprisonment. Given that Williams had sex with four
students, defendant maintains that Williams’s conduct was more egregious than defendant’s and
that the only reason defendant received a higher sentence was that, unlike Williams, defendant
exercised her right to a trial. Defendant’s argument is based on the false premise that Williams’
conduct was more serious, ignoring the fact that she was ultimately convicted of more serious
offenses than Williams. The maximum sentence for CSC I, a class A crime, MCL 777.16y, is
life imprisonment, MCL 750.520b(2)(a), while the maximum sentence for CSC III, a class B
Crime, MCL 777.16y, is 15 years, MCL 750.520d(2). Because defendant was convicted of a
more serious offense than was Williams, her conduct could certainly be considered more
egregious, and to the extent the trial court mentioned Williams, this discussion does not lead us
to conclude that the trial court punished defendant for exercising her right to a trial.
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MCL 750.520n provides:
A person convicted under [MCL 750.520b (the CSC I statute)] or [MCL
750.520c (the CSC II statute)] for criminal sexual conduct committed by an
individual 17 years old or older against an individual less than 13 years of age
shall be sentenced to lifetime electronic monitoring as provided under . . . MCL
791.285.
See also MCL 750.520b(2)(d) (providing that the trial court shall sentence a defendant convicted
of CSC I to LEM under MCL 750.520n); MCL 750.520c(2)(b) (requiring trial courts to sentence
a defendant convicted of CSC II to LEM under MCL 750.520n if the criminal sexual conduct
was committed by a defendant 17 years of age or older against an individual less than 13 years of
age).4 LEM is punishment and is part of a defendant’s sentence. People v Cole, 491 Mich. 325,
335-336; 817 NW2d 497 (2012). A defendant who is sentenced to LEM shall wear, from the
time the defendant is released on parole or from prison until her death, an electronic monitoring
device, MCL 791.285(1)(a), (2), by which, through global position system satellite or other
means, the defendant’s movement and location can be tracked and recorded. MCL
791.285(1)(b), (2).
A. FOURTH AMENDMENT SEARCH AND SEIZURE
The Fourth Amendment of the United States Constitution, US Const, Am IV, guarantees
every person’s right to be free from unreasonable searches and seizures. People v Slaughter, 489
Mich. 302, 310; 803 NW2d 171 (2011). The government conducts a search when, pursuant to a
satellite-based monitoring program for sex offenders, it attaches a device to a person’s body,
without consent, for the purpose of tracking the individual’s movements. Grady v North
Carolina, ___ US ___; 135 S. Ct. 1368, 1370; 191 L. Ed. 2d 459 (2015). However, the fact that
such action is a “search” does not answer the question whether the satellite-based monitoring
program was constitutional because the constitution only protects against “unreasonable
searches.” Id. at ___; 135 S. Ct. at 1371. The United States Supreme Court did not decide this
reasonableness question in Grady, but instead remanded the case for a determination of the
reasonableness of the North Carolina satellite-based monitoring program. Id.
4
Defendant argues that she is not subject to LEM because LEM only applies to defendants over
17 convicted of CSC I (or CSC II) when the victim is younger than 13 years. However, this
Court has previously rejected this argument. See People v Johnson, 298 Mich. App. 128, 135-
136; 826 NW2d 170 (2012); People v Brantley, 296 Mich. App. 546, 557-559; 823 NW2d 290
(2012). According to this Court, “any defendant convicted of CSC-I under MCL 750.520b,
regardless of the age of the defendant or the age of the victim, must be ordered to submit to
lifetime electronic monitoring.” Brantley, 296 Mich. App. at 559. It is true that the Michigan
Supreme Court has ordered oral argument on whether to grant an application for leave in a case
involving this issue. See People v Comer, __ Mich __; 876 NW2d 581 (2016). But, until such
time as the Supreme Court reaches a different conclusion, Brantley and Johnson are binding
precedent on this Court. MCR 7.215(C)(2), (J)(1). And, because defendant was convicted of
CSC I, defendant is subject to LEM.
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Following Grady, in People v Hallak, 310 Mich. App. 555, 579; 873 NW2d 811 (2015),
rev’d in part on other grounds ___ Mich ___; 876 NW2d 523 (2015), this Court held that the use
of an electronic monitoring device to monitor the movements of the defendant, who had been
convicted of CSC II, constituted a search under the Fourth Amendment, but that such a search of
a defendant 17 years or older convicted of CSC II against a person under the age of 13 was not
unreasonable. To determine the reasonableness of the intrusion, this Court weighed the public
interest in the need to search against the invasion of privacy. Id. See also Grady, ___ US at ___;
135 S. Ct. at 1371 (“The reasonableness of a search depends on the totality of the circumstances,
including the nature and purpose of the search and the extent to which the search intrudes upon
reasonable privacy expectations.”). Balancing these interests, this Court found LEM reasonable
for a defendant 17 years or older convicted of CSC II against a person under the age of 13,
explaining:
Turning first to the public interest, it is evident that in enacting this monitoring
provision, the Legislature was seeking to provide a way in which to both punish
and deter convicted child sex offenders and to protect society from a group known
well for a high recidivism rate. . . . As the prosecution points out, electronic
monitoring not only acts as a strong deterrent, but also assists law enforcement
efforts to ensure that these individuals, who have committed “ ‘the most egregious
and despicable of societal and criminal offenses,’” do not frequent prohibited
areas (elementary schools, etc.) and remain compliant with the Sex Offenders
Registration Act, MCL 28.721 et seq. Consequently, when enacting this
monitoring system and requiring it only for those 17 or older who commit CSC
against children under the age of 13, the Legislature was addressing punishment,
deterrence, and the protection of some of the most vulnerable in our society
against some of the worst crimes known. As we earlier noted, the “need to
prevent the individual offender from causing further injury to society” is a valid
consideration in designing a punishment. . . .
Having examined the public interest in this type of monitoring, we now
balance that interest against the invasion of defendant's privacy interest. We begin
by recognizing that parolees and probationers have a lower expectation of
privacy, even in the comfort of their own homes, than does the average law-
abiding citizen. The monitoring does not prohibit defendant from traveling,
working, or otherwise enjoying the ability to legally move about as he wishes.
Instead, the monitoring device simply records where he has traveled to ensure that
he is complying with the terms of his probation and state law. MCL 791.285(1)
and (3). And although this monitoring lasts a lifetime, the Legislature presumably
provided shorter prison sentences for these CSC–II convictions because of the
availability of lifetime monitoring. In that regard we also cannot forget that minor
victims of CSC–II are often harmed for life. . . . Though it may certainly be that
such monitoring of a law abiding citizen would be unreasonable, on balance the
strong public interest in the benefit of monitoring those convicted of CSC–II
against a child under the age of 13 outweighs any minimal impact on defendant's
reduced privacy interest. [Hallak, 310 Mich. App. at 580-581 (internal citations
omitted).]
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Although Hallak considered the reasonableness of LEM for cases involving a defendant
17 years or older convicted of CSC II against a person under the age of 13, we think its public
interests analysis and privacy considerations largely apply with equal force to the present case
and, following Hallack’s reasoning, we conclude that LEM is not an unreasonable search of a
defendant who commits CSC I with a student between the ages of 13 and 15 who attended the
school where the defendant was employed, MCL 750.520b(1)(b)(v). In particular, as noted in
Hallack, sex offenders, upon release from prison, have a high rate of recidivism. See McKune v
Lile, 536 U.S. 24, 33-34; 122 S. Ct. 2017; 153 L. Ed. 2d 47 (2002). There is a public interest in
reducing the recidivism rate of sex offenders, and LEM has a strong deterrent effect. Hallak,
310 Mich. App. at 580. See also Belleau v Wall, 811 F3d 929, 935 (CA 7, 2016). Defendants
who are convicted of CSC I with a student between the ages of 13 and 15 who attend the school
where the defendant is employed are required to register under SORA, MCL 28.722(j), (w)(iv);
MCL 28.723(1), and LEM assists law enforcement to ensure that these defendants, who have
committed egregious and despicable acts against minors by taking advantage of their position at
a school, remain compliant with SORA and do not visit prohibited areas, such as schools,
Hallak, 310 Mich. App. at 580. Thus, when requiring that defendants who are convicted of CSC I
with a student between the ages of 13 and 15 who attend the school where the defendant is
employed be subject to LEM, the Legislature was addressing the public interests of punishment,
deterrence of highly recidivist offenders, and the protection of minors. Cole, 491 Mich. at 335-
336; Hallak, 310 Mich. App. at 580.
Regarding the privacy interest, as stated in Hallak, 310 Mich. App. at 581, LEM does not
prohibit defendants “from traveling, working, or otherwise enjoying the ability to legally move
about as [they] wish[].” It simply records where defendants have traveled to ensure that they are
complying with the terms of their probation and state law. Id. See also Belleau, 811 F3d at 935.
Additionally, the identity and address, along with other information, of any defendant who is
required to register under SORA is available to the public. See MCL 28.728(2). Thus, already
as a result of their criminal conduct, defendants convicted of CSC I have their privacy curtailed,
meaning that “the incremental effect” of LEM is slight because the state has chosen to make
information about the defendants public. See Belleau, 811 F3d at 934-935. Consequently,
balancing the strong public interest in favor of monitoring with any minimal impact on a
defendant’s reduced privacy, we conclude that LEM for defendants, such as defendant in this
case, who are convicted of CSC I against a student between the ages of 13 and 15 who attend the
school where the defendant is employed is reasonable under the Fourth Amendment.
B. CRUEL OR UNUSUAL PUNISHMENT
The United States Constitution, US Const, Am VIII, prohibits cruel and unusual
punishments. Hallak, 310 Mich. App. at 569. The Michigan Constitution, Const 1963, art 1, §
16, prohibits cruel or unusual punishment. Hallak, 310 Mich. App. at 569. Because the United
States Constitution affords less protection than the Michigan Constitution, if a punishment
“passes muster under the state constitution, then it necessarily passes muster under the federal
constitution.” People v Nunez, 242 Mich. App. 610, 618 n 2; 619 NW2d 550 (2000).
This Court, in determining whether a punishment constitutes cruel or unusual
punishment, considers the gravity of the offense and the harshness of the penalty, compares the
penalty to penalties for other crimes in this state, compares the penalty to penalties imposed for
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the same offense in other states, and considers the goal of rehabilitation. People v Dipiazza, 286
Mich. App. 137, 153-154; 778 NW2d 264 (2009). Regarding rehabilitation, a punishment might
be cruel or unusual punishment if “it thwarts the rehabilitative potential of the individual
offender and does not contribute toward society’s efforts to deter others from engaging in similar
prohibited behavior.” People v Coles, 417 Mich. 523, 530; 339 NW2d 440 (1983), overruled in
part on other grounds People v Milbourn, 435 Mich. 630 (1990). The “dominant test” to be used
in determining whether a punishment constitutes cruel or unusual punishment is “whether the
punishment is so excessive that it is completely unsuitable to the crime.” Id.
Defendant argues that the statutes imposing LEM for convictions of CSC I are
unconstitutional on their face and as applied. A statute may be unconstitutional on its face,
meaning that no circumstances exist under which it would be valid. Keenan v Dawson, 275
Mich. App. 671, 680; 739 NW2d 681 (2007). A statute may also be unconstitutional as applied,
meaning that the statute is unconstitutional as applied to the particular facts of the case. Id. If
the statute is constitutional as applied to the defendant, then it is capable of being upheld against
a facial challenge. Hallak, 310 Mich. App. at 569. According to defendant, as applied to her,
LEM is unconstitutional because nothing indicates that she is likely to be a danger to society.
The victim was her first and only victim.
Defendant’s as-applied challenge is without merit. First, regarding the gravity of the
offense, the CSC I offenses committed by defendant were certainly grave. The victim was a
minor between the ages of 13 and 15, who was a student at the school where defendant worked.
Sex offenses involving minors are considered particularly egregious, as evinced by the
Legislature’s provision of heightened protections to minors under a certain age based on the
presumption that children’s immaturity and innocence prevents them from appreciating the full
magnitude and consequences of their conduct. See People v Benton, 294 Mich. App. 191, 205;
817 NW2d 599 (2011). Second, regarding the harshness of the penalty, although defendant is
subject to LEM for her lifetime, LEM does not prohibit defendant, upon being released from
prison, from traveling, working, or otherwise moving about as she pleases. Hallak, 310 Mich
App at 581. The monitoring device will only record where defendant has moved to ensure that
she is complying with her probation and state law. Id. Third, CSC I and CSC II are the only
offenses for which LEM is imposed, MCL 750.520n, and CSC II is a less grave offense than
CSC I, MCL 750.520b(2)(a); MCL 750.520c(2)(a). In other words, in Michigan, LEM is
imposed for a less grave offense than which defendant was convicted, and this Court has
previously rejected constitutional challenges to LEM relating to CSC II. See Hallak, 310 Mich
App at 577. Additionally, although LEM is for defendant’s lifetime, it does not exceed the
maximum prison sentence for CSC I. MCL 750.520b(2)(a). Fourth, as noted in Hallak, at least
10 other states impose LEM for the most serious criminal sexual conduct offenses or criminal
sexual conduct with a minor. Hallak, 310 Mich app at 575-576, 575 n 9.
Finally, regarding rehabilitation, sex offenders, more so than other offenders, are likely to
reoffend upon release from prison. Hallak, 310 Mich. App. at 573-574. LEM addresses the
significant concerns of rehabilitation and recidivism of sexual offenders because it has a
deterrent effect on would-be reoffenders. Id. at 573. Defendant’s argument that LEM, as
applied to her, constitutes cruel or unusual punishment addresses this factor. However, even
though the trial court stated that it did not believe that defendant was likely to reoffend, LEM
does not thwart defendant’s rehabilitative potential. Coles, 417 Mich. at 530. Defendant is only
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subject to LEM once she is released from prison, MCL 791.285(1), and LEM only ensures that
she is complying with the terms of her probation and state law, Hallak, 310 Mich. App. at 581. It
does not prevent defendant from moving about as she pleases. Id.
Under these circumstances, the punishment of LEM is not so excessive that it is
completely unsuitable to the CSC I offenses committed by defendant. Coles, 417 Mich. at 530.
Accordingly, as applied to defendant, LEM does not constitute cruel or unusual punishment.
Because defendant cannot succeed on her as-applied challenge under the Michigan Constitution,
she cannot succeed on her facial challenge under the state constitution, Hallak, 310 Mich. App. at
577, nor can she succeed on her claim under the United States Constitution, id.; Nunez, 242 Mich
App at 618 n 2.
Defendant’s convictions are affirmed, but we remand for further proceedings regarding
defendant’s sentences. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
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