In Re Ayres

608 N.W.2d 132 (2000) 239 Mich. App. 8

In the Matter of Luke B. AYRES, Minor.
People of the State of Michigan, Petitioner-Appellee,
v.
Luke B. Ayres, Respondent-Appellant.

Docket No. 216523.

Court of Appeals of Michigan.

Submitted October 12, 1999, at Marquette. Decided December 7, 1999, at 9:05 a.m. Released for Publication March 22, 2000.

Gary L. Walker, Prosecuting Attorney, and Terrence E. Dean, Civil Counsel, for the petitioner.

Kendricks Bordeau, P.C. (by Suzanne L. Curry), Marquette, for the respondent.

Before: RICHARD ALLEN GRIFFIN, P.J., and SAWYER and SMOLENSKI, JJ.

RICHARD ALLEN GRIFFIN, P.J.

Respondent appeals as of right an order of disposition entered following delinquency proceedings in the Marquette Circuit Court, Family Division. Respondent and two corespondents were alleged to have engaged in conduct tantamount to second-degree criminal sexual conduct, M.C.L. § 750.520c (1)(a); MSA 28.788(3)(1)(a), with younger boys, ages four to six years old. Following a joint trial in January 1998,^[1] the jury found that respondent, and both corespondents, had committed one count of second-degree criminal sexual conduct. At the dispositional hearing, among other conditions imposed, respondent was ordered to participate in sex offender training and register as a sex offender pursuant to M.C.L. § 712A.18(13); MSA 27.3178(598.18)(13). Respondent now appeals. We affirm.

I

Respondent raises a constitutional issue of first impression in Michigan: whether the requirement that he register as a sex offender under the Sex Offenders Registration Act, M.C.L. § 28.721 et seq.; MSA 4.475(1) et seq., violates the prohibition against cruel or unusual punishment set forth in the Const. 1963, art. 1, § 16. We hold that it does not.

This Court reviews constitutional issues de novo. People v. Darden, 230 Mich.App. 597, 600, 585 N.W.2d 27 (1998). Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Caterpillar, Inc. v. Dep't of Treasury, 440 Mich. 400, 413, 488 N.W.2d 182 (1992). McKeighan v. Grass Lake Twp. Supervisor, 234 Mich.App. 194, 201, 593 N.W.2d 605 (1999). The party challenging a statute has the burden of proving its invalidity. People v. Thomas, 201 Mich.App. 111, 117, 505 N.W.2d 873 (1993).

Respondent is required to register as a sex offender under the Sex Offenders Registration Act, M.C.L. § 28.721 et seq.; MSA 4.475(1) et seq., effective October 1, 1995. Under the act, juveniles who have been adjudicated responsible for one of the offenses listed in M.C.L. § 28.722(d); MSA 4.475(2)(d) (which pertinent to this appeal includes second-degree criminal sexual conduct) are subject to the terms of the act.^[2] MCL 28.722(a)(iii) and (d)(iv); MSA 4.475(2)(a)(iii) and (d)(iv), M.C.L. § 28.723(b); MSA 4.475(3)(b). A juvenile is required to register as a sex offender before entry of the order of disposition for a designated sexual offense.^[3] For those juveniles convicted of only a single offense, compliance with this requirement continues for twenty-five years after the date of the initial registration. MCL 28.725(3); MSA 4.475(5)(3).

The Department of State Police is vested with the duty of maintaining the registration of sex offenders by means of a computerized data base. MCL 28.722(b); MSA 4.475(2)(b), M.C.L. § 28.728(1); MSA 4.475(8)(1). Although registration of sex offenders is generally confidential and intended for law enforcement purposes only, M.C.L. § 28.730(1); MSA 4.475(10)(1), law enforcement authorities are required to make information about sex offenders registered within their jurisdictions available for inspection by the public during regular business hours. MCL 28.730(2); MSA 4.475(10)(2). However, M.C.L. § 28.728(2); MSA 4.475(8)(2) exempts juvenile offenders who are not tried as adults from the computerized data base,^[4] and the duty to make the information contained therein available to the public likewise does not pertain to registered juvenile offenders. MCL 28.730(2), (3); MSA 4.475(10)(2), (3). Civil and criminal penalties are provided in the act for those who divulge or use information about a registration in violation of the act. MCL 28.730(4), (5); MSA 4.475(10)(4), (5).

Respondent contends that requiring him to register as a sex offender constitutes cruel or unusual punishment under Michigan's constitution, Const. 1963, art. 1, § 16.^[5] Respondent notes, in particular, that the statutory twenty-five-year period during which he must remain registered as a sex offender far exceeds the period in which the family division of the circuit court can exercise jurisdiction over him. The court has jurisdiction over respondent only until the age of twenty-one, M.C.L. § 712A.18d; MSA 27.3178(598.18d); when respondent reaches the age of thirty, his juvenile records must be expunged. MCR 5.925(E)(3)(b). The twenty-five-year registration period also exceeds the time when an application to set aside a juvenile adjudication can be made and granted. MCL 712A.18e; MSA 27.3178(598.18e). Respondent argues that the registration requirement undermines a purpose of the juvenile code, i.e., to shield youthful errors from the glare of the public by preventing juvenile court convictions from subsequently discrediting the individual because of childhood actions. Cf. People v. Poindexter, 138 Mich.App. 322, 326, 361 N.W.2d 346 (1984).

In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes in this state as well as the penalty imposed for the same crime in other states. In addition, we consider the goal of rehabilitation. People v. Poole, 218 Mich.App. 702, 715, 555 N.W.2d 485 (1996); People v. Launsburry, 217 Mich.App. 358, 363, 551 N.W.2d 460 (1996).

In the present case, a threshold question that precedes consideration of these factors is whether the registration requirement in fact constitutes "punishment" within the meaning of Const. 1963, art. 1, § 16. This precise issue has never been addressed by the courts of this state. However, we find instructive two recent federal court decisions that have held that the registration and notification requirements of Michigan's Sex Offenders Registration Act, as applied to adult offenders, do not impose "punishment" under the Eighth Amendment of the United States Constitution.^[6]

In Doe v. Kelley, 961 F. Supp. 1105 (W.D.Mich., 1997), the federal district court considered the plaintiffs'^[7] constitutional challenge, based in part on an alleged violation of the Eighth Amendment prohibition against cruel and unusual punishment, to the act's 1997 amendment allowing public access to information about persons convicted of certain sex offenses. MCL 28.730(2); MSA 4.475(10)(2). In the context of deciding a motion for a preliminary injunction, the court focused on whether the statutory notification requirements constituted "punishment" under the Eighth Amendment and other constitutional theories presented by the plaintiffs:

In the criminal justice context, punishment, generally, is the deliberate imposition, by some agency of the state, of some measure intended to chastise, deter or discipline an offender.... [D]etermining whether government action is punishment requires consideration of the totality of circumstances, and particularly (1) legislative intent, (2) design of the legislation, (3) historical treatment of analogous measures, and (4) effects of the legislation. [ Kelley, supra at 1108.]

Applying these factors, the Kelley court found that absent a discernible expression of legislative intent, the intent of the act could only be gleaned from the design of the amendment itself:

On its face, the notification scheme is purely regulatory or remedial. It imposes no requirement on the registered offender, inflicts no suffering, disability or restraint. It does nothing more than create a mechanism for easier public access to compiled information that is otherwise available to the public only through arduous research in criminal court files. If the expressed legislative purpose precipitating enactment of similar laws in other states is any guide, the Michigan Legislature, too, sought to make information available to the citizenry concerning persons residing in their communities who have engaged in sexually predatory conduct and who, by virtue of relatively high recidivism rates among such offenders, are recognized to be resistant to reformation and deemed to pose potential danger of repeat misconduct.... The information is made available to members of the public so that they might modify their behavior in appropriate and lawful ways to protect themselves and prevent crime. [ Id. at 1109.]

Analyzing the history of analogous measures, Judge McKeague rejected the plaintiffs' contention that the notification provisions are the modern-day equivalents of branding, shaming, or banishment:

[T]he instant amendment does nothing more than provide for compilation of and public accessibility to information that is already a matter of public record. Unlike historical uses of branding, shaming and banishment, the notification provisions do not affirmatively impose any suffering, restraint or obligation upon the offender. The notification provisions themselves do not touch the offender at all. While branding, shaming and banishment certainly impose punishment, providing public access to public information does not.... And while public notification may ultimately result in opprobrium and ostracism similar to those caused by these historical sanctions, such effects are clearly not so inevitable as to be deemed to have been imposed by the law itself. [ Id. at 1110.]

Finally, the Kelley court considered the effects of the act:

[T]he effects upon which plaintiffs rely—anecdotal evidence of others' experiences of harassment, assault, job loss, eviction and dislocation—are effects that proceed only indirectly from public access to information....

This Court is unwilling to assign blame for such indirect consequences to the mere compilation and provision of public information under the notification amendment. There is a connection, to be sure. However, ... punishment in the criminal justice context must be reviewed as the deliberate imposition by the state of some measure intended to chastise, deter or discipline. Actions taken by members of the public, lawful or not, can hardly be deemed dispositive of whether legislation's purpose is punishment....

* * *

... [E]ven if anecdotal evidence of potential actions by members of the public were considered effects likely to be visited on plaintiffs as a direct result of the notification provisions, such evidence would be insufficient, in light of the other discussed considerations, to persuade that any punitive effect overwhelms the primary and legitimate remedial purpose of the law. [ Id. at 1111-1112 (emphasis in original).]

Having weighed the relevant factors, Judge McKeague was not persuaded that the notification provisions of the act imposed "punishment" under the Eighth Amendment.

In Lanni v. Engler, 994 F. Supp. 849, 852 (E.D.Mich., 1998), another federal district court likewise concluded that the notification and registration provisions of the act, as applied to an adult offender, were not punitive in nature and therefore did not violate the Eighth Amendment prohibition against cruel and unusual punishment:

Although the Act does not contain an express statement of legislative intent, the implied purpose is plainly regulatory.... Neither notification or [sic] registration inflicts suffering, disability, or restraint on the registered sex offender. It does nothing more than create a method for easier public access to compiled information that is otherwise available to the public through tedious research in criminal court files. Like similar laws in other states, the Michigan Act also seeks to provide the local citizenry with information concerning persons residing near them who have been convicted of sexually predatory conduct and who, by virtue of relatively high recidivism rates among such offenders and the devastating impact that sex crimes have on society, pose a serious threat to society....

The language of section 730 makes clear that the legislature intended the notification provision to prevent future attacks by recidivist sex offenders. The text and structure reveal no intent to punish, but rather only a regulatory purpose. Notification is limited both by the amount of information available and the area in which the information is disseminated. First, the data available for public dissemination is limited to information already available from law enforcement, court, and Department of Corrections records. Mich. Comp. Laws Ann. 15.231 et seq. Second, access to the sex offender registry is limited by zip code so that only those living in the same zip code as the sex offender can obtain the information. A law designed to punish a sex offender would not contain these strict limitations on public dissemination.

* * *

... Dissemination of information about a person's criminal involvement has always held the potential for negative repercussions for those involved. However, public notification in and of itself, has never been regarded as punishment when done in furtherance of a legitimate government interest.... The registration and notification requirements can be more closely analogized to quarantine notices when public health is endangered by individuals with infectious diseases.... Whenever notification is directed to a risk possed by individuals in the community, those individuals can expect to experience some embarrassment and isolation. Nonetheless, it is generally recognized that the state is well within its rights to issue such warnings and the negative effects are not regarded as punishment....

* * *

... [T]his Court recognizes that imposition of the registration and notification requirements may deter others from future criminal activity, a traditionally recognized punitive purpose. However, a secondary criminal purpose may not undermine the Act's primary remedial purpose, as deterrence "may serve civil as well as criminal goals." [ Lanni, supra at 853-854 (citations omitted).]

See also State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 A.L.R. 5th 161, § 5.

We agree with both Kelley, supra, and Lanni, supra, and adopt their analyses as our own. Moreover, the portion of the act that was the primary focus of constitutional scrutiny in Kelley and Lanni— the public notification provision—is obviously not at issue in the present case because respondent, a juvenile offender, is expressly exempted from this section of the act. As previously noted, registration information pertaining to juveniles not charged as adults is confidential and is to be used only by law enforcement personnel. MCL 28.728(2); MSA 4.475(8)(2), M.C.L. § 28.730(2), (3); MSA 4.475(10)(2), (3). Consequently, respondent cannot complain that the "sting of notification," Lanni, supra at 854, subjects him to undue public ostracism that confounds the purpose of the Juvenile Code. Poindexter, supra.

Indeed, in our view, the fact that public access to registration data regarding juveniles is foreclosed only serves to underscore the federal courts' ultimate conclusion that the registration requirement of the act is not, in the constitutional sense, a form of "punishment." Reiterating the Lanni court's observation, supra at 853, "A law designed to punish a sex offender would not contain these strict limitations on public dissemination." The Legislature's restrictive approach in applying the act to juvenile offenders, carefully circumscribing access to such registration data and exempting juvenile offenders from the public notification requirements of the act, evinces a broad remedial, not punitive, purpose. Criminal sexual conduct, whether committed by juvenile or adult offenders, is a serious offense with a high rate of recidivism. The original proponents of this legislation advanced the registration requirement as a regulatory measure:

Requiring convicted sex offenders to be registered with law enforcement officials would assist investigations of these types of crimes because law enforcement agencies would have a resource for determining the identity and residence of known sex offenders in the general area. Once created, the registry would become a tool that law enforcement agencies could use to solve, or even prevent, crimes. If a sex offense were committed, the registry could be used to identify potential suspects who lived in the area or who had a pattern of similar crimes.

It is widely believed that sex offenders are not responsive to therapy programs and may have a particular deviant orientation that cannot be easily changed or suppressed. Indeed, according to a review of sex offender registration laws conducted in 1992 by the Washington State Institute for Public Policy (WSIPP), in California, which was the first state to require registration of sex offenders, a 15-year follow-up study of sex offenders first arrested in 1973 revealed that nearly half of the group was rearrested for some type of offense and 20% was rearrested for a subsequent sex-related offense, and that those whose first offense was rape by force or threat had the highest recidivism rate. The California study also reportedly found that a large proportion of criminal justice investigators believe that the registration system was effective in locating sex offenders and apprehending suspects.

* * *

Requiring the registration of all juvenile sex offenders is a reasonable measure. A Michigan State Police detective sergeant testified before the Senate Judiciary Committee that reports indicate increasingly more and younger juvenile sex offenders. [Senate Legislative Analysis, SB 193, 194, 397, and 400, August 8, 1944, pp. 4-6.^[8]]

As ultimately enacted, the language and format of the legislation did not contradict these regulatory goals. Kelley, supra; Lanni, supra. Moreover, the fact that the registration requirement might have a deterrent effect on criminal behavior, a punitive purpose, does not detract from or overwhelm the primary regulatory purpose of the act. Id.

In light of the existence of strict statutory safeguards that protect the confidentiality of registration data concerning juvenile sex offenders, we conclude that the registration requirement imposed by the act, as it pertains to juveniles, neither "punishes" respondent nor offends a basic premise of the juvenile justice system—that a reformed adult should not have to carry the burden of a continuing stigma for youthful offenses. The confidential collection and maintenance of juvenile offender registration data by law enforcement authorities serves an important remedial function and is not so punitive in form and effect as to render it unconstitutional "punishment" under Const. 1963, art. 1, § 16.

II

Respondent Ayres next argues that he was aggrieved by the ineffective performance of his trial counsel as a result of counsel's failure to raise any defense on respondent's behalf, failure to effectively cross-examine a crucial witness, and deficient closing argument.

In order to justify reversal of an otherwise valid conviction on the basis of ineffective assistance of counsel, "a defendant must show that a counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial." People v. Pickens, 446 Mich. 298, 303, 521 N.W.2d 797 (1994). See also People v. Ho, 231 Mich.App. 178, 191, 585 N.W.2d 357 (1998). The defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v. Tommolino, 187 Mich.App. 14, 17, 466 N.W.2d 315 (1991).

Respondent Ayres primarily argues that his counsel did not prepare a defense for him because no witnesses were called. A defendant is entitled to have his counsel prepare, investigate, and present all substantial defenses. Where there is a claim that counsel was ineffective for failing to raise a defense, the defendant must show that he made a good-faith effort to avail himself of the right to present a particular defense and that the defense of which he was deprived was substantial. A substantial defense is defined as one that might have made a difference in the outcome of the trial. People v. Kelly, 186 Mich.App. 524, 526, 465 N.W.2d 569 (1990). This Court is reluctant to substitute its judgment for that of trial counsel in matters of trial strategy, and ineffective assistance of counsel will not be found merely because a strategy backfires. People v. Duff, 165 Mich.App. 530, 545-546, 419 N.W.2d 600 (1987).

In this case, the attorneys for respondent and the corespondents worked together to prepare a joint defense that focused on the inconsistencies of the victims' testimony. While respondent Ayres contends that this was not a defense because it did not involve the presentation of evidence or witnesses, it was a defense strategy nonetheless. Therefore, respondent Ayres incorrectly argues that no defense was prepared on his behalf.

Moreover, a review of the lower court file indicates that a notice of alibi defense was filed on behalf of respondent. Two witnesses were listed on that notice. It appears that before trial, respondent's counsel intended to present an alibi defense, but that defense was subsequently abandoned because the prosecutor was allowed to amend the petition to expand the dates when the charged offense occurred, making it much more difficult to account for respondent's whereabouts on more than one occasion. Abandonment of the alibi defense was thus clearly a strategical decision on the part of trial counsel, and defendant has not overcome the presumption that such action might be considered sound trial strategy. Tommolino, supra.

With regard to respondent's other arguments on this issue, he has likewise not overcome the presumption that his counsel's decisions involved sound trial strategy. What arguments to make in closing, how to cross-examine witnesses, and what evidence to present all involve matters of trial strategy. Respondent's failure to request an evidentiary hearing regarding his claim of ineffective assistance of counsel limits our review to errors apparent on the record. People v. Wilson, 196 Mich.App. 604, 612, 493 N.W.2d 471 (1992). Without the testimony of respondent's trial counsel, this Court is unable to conclude that counsel's decisions were not appropriate.

III

Next, respondent Ayres argues that the trial court erred in denying his motion for a new trial on the ground that the verdict was against the great weight of the evidence. We disagree.

A trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence preponderates heavily against the verdict so that a miscarriage of justice would result from allowing the verdict to stand. People v. Lemmon, 456 Mich. 625, 642, 576 N.W.2d 129 (1998). The trial judge is not allowed to sit as the "thirteenth" juror and grant a new trial on the basis of a disagreement with the jurors' assessment of credibility. Id. at 647, 576 N.W.2d 129.

The crime of second-degree criminal sexual conduct requires the prosecution to show that respondent engaged in sexual contact with a person under the age of thirteen years. "Sexual contact" is described as "the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification." MCL 750.520c(1)(a); MSA 750.520c(1)(a), M.C.L. § 750.520a (k); MSA 28.788(1)(k); People v. Piper, 223 Mich.App. 642, 645, 567 N.W.2d 483 (1997).

In this case, there were many inconsistencies among the five complainants' accounts of how the sexual game giving rise to the charges was played and who was involved. However, these children ranged in age from four years to six years; given their age and the stress of having to testify, the inconsistencies are not unusual or suspect when the incidents happened at least two times and about six months before they testified.

What is striking in this case is that there were also general consistencies between the younger boys' accounts. All five boys described sexual activity beyond their years. The boys all described inappropriate sexual contact with respondents, although some of the children were not always certain if each respondent was present. The five boys named respondent and the two corespondents as the instigators of the game. Although respondent suggests that the boys' testimony was rehearsed, the children's consistency with respect to the game's name supports the fact that they learned the name from the perpetrators while they were "taught" how to play it. In addition, the children did not always refer to respondents in the same order. Thus, the evidence did not suggest that these children were either coached or told what to say.

As for other alleged inconsistencies in identification and testimony, these allegations do not support a conclusion that the evidence preponderates heavily against the verdict of second-degree criminal sexual conduct to the extent that a miscarriage of justice occurred, requiring reversal of the jury verdict. Lemmon, supra. Respondent's argument in this regard is therefore without merit.

Affirmed.

NOTES

[1] At the time of the trial, respondent was fourteen years old.

[2] MCL 712A.18(13); MSA 27.3178(598.18)(13) provides as follows:

If the court has entered an order of disposition or a judgment of conviction for a listed offense as defined in section 2 of the sex offenders registration act, 1994 PA 295, M.C.L. § 28.722 [MSA 4.475(2) ], the court, the family independence agency, or the county juvenile agency shall register the juvenile or accept the juvenile's registration as provided in the sex offenders registration act, 1994 PA 295, M.C.L. § 28.721 to 28.732 [MSA 4.475(1) to 4.475(12) ].

[3] The registration of the sex offender is required to contain all the following information: (1) name, (2) social security number, (3) date of birth, (4) address, (5) a brief summary of the individual's convictions for listed offenses, including where the offense occurred and the original charge, and (6) a complete physical description. MCL 28.727(1); MSA 4.475(7)(1). In addition, a registration may contain the following additional information for a registrant: (1) blood type, (2) whether a DNA identification profile is available for the individual, and (3) a recent photograph. MCL 28.727(2); MSA 4.475(7)(2).

[4] MCL 28.728(2); MSA 4.475(8)(2) provides in part:

The department [the State Police] shall maintain a computerized data base separate from that described in subsection (1) to implement section 10(2) and (3) [MCL 28.730(2), (3); MSA 4.475(10)(2), (3) ]. The data base shall consist of a compilation of individuals registered under this act, but shall not include any individual registered solely because he or she had 1 or more dispositions for a listed offense entered under section 18 of chapter XIIA of Act No. 288 of the Public Acts of 1939, being section 712A.18 of the Michigan Compiled Laws, in a case that was not designated as a case in which the individual was to be tried in the same manner as an adult under section 2d of chapter XIIA of Act No. 288 of the Public Acts of 1939, being section 712A.2d of the Michigan Compiled Laws.

[5] Const. 1963, art. 1, § 16 provides:

Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.

[6] U.S. Const., Am. VIII provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[7] The plaintiffs in Kelley were adult convicted sex offenders.

[8] Legislative bill analyses are not official statements of legislative intent but nonetheless may be of probative value. Seaton v. Wayne Co. Prosecutor (On Second Remand), 233 Mich.App. 313, 321, n. 3, 590 N.W.2d 598 (1998), and cases cited therein.