People v. Adkins

• Court: Court of Appeal of Michigan
• Writing for the Court: Saad
• Citation: People v. Adkins, 724 N.W.2d 710, 272 Mich. App. 37 (Mich. App. 2006)
• Decision Date: 10 August 2006
• Docket Number: Docket No. 260451.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lowell Gene ADKINS, Defendant-Appellant.

Page 710

724 N.W.2d 710

272 Mich. App. 37

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lowell Gene ADKINS, Defendant-Appellant.

Docket No. 260451.

Court of Appeals of Michigan.

Submitted July 13, 2006, at Detroit.

Decided August 10, 2006, at 9:00 a.m.

Released for Publication November 15, 2006.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Oakland County Prosecutor, Joyce Todd, Appellate Division Chief, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Rolf E. Berg) for the defendant.

Before: FITZGERALD, P.J., and SAAD and COOPER, JJ.

SAAD, J.

Defendant pleaded guilty of attempting or preparing to commit child sexually abusive activity, MCL 750.145c(2); and using a computer or the Internet to attempt to commit child sexually abusive activity, MCL 750.145d(1)(a) and (2)(f), after initiating a sexually explicit Internet dialogue with, and arranging to meet, an undercover police officer posing as a 14-year-old boy. The trial court sentenced defendant to concurrent prison terms of one to 20 years for each conviction, and this Court granted defendant's delayed application for leave to appeal. We affirm.

Defendant challenges the trial court's denial of his motion to withdraw his guilty plea and argues that the court erred when it ruled that MCL 750.145c(2) applies to his admitted conduct. "In reviewing the adequacy of the factual basis for a plea, this Court examines whether the factfinder could properly convict on the facts elicited from the defendant at the plea proceeding." People v. Hogan, 225 Mich.App. 431, 433, 571 N.W.2d 737 (1997) (internal quotation omitted). "When first made after sentencing, a motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and the trial court's decision will not be disturbed unless there is a clear abuse of discretion resulting in a miscarriage of justice." People v. Ovalle, 222 Mich.App. 463, 465, 564 N.W.2d 147 (1997). To the extent this issue involves an underlying question of statutory construction, "[w]hether conduct falls within the statutory scope of a criminal statute is a question of law that is reviewed de novo on appeal." People v. Rutledge, 250 Mich.App. 1, 4, 645 N.W.2d 333 (2002). The construction of statutory language is governed by the following principles:

Our primary task in construing a statute is to discern and give effect to the intent of the Legislature. The words contained in a statute provide us with the most reliable evidence of the Legislature's intent. In ascertaining legislative intent, this Court gives effect to every word, phrase, and clause in the statute. We must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme. This Court must avoid a construction that would render any part of a statute surplusage or nugatory. The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended. If the wording or language of a statute is unambiguous, the Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [People v. Hill, 269 Mich.App. 505, 514-515, 715 N.W.2d 301 (2006) (citations and internal quotations omitted).]

In 2002, at the time of the charged crimes and the guilty plea hearing, MCL 750.145c(2) provided as follows:

A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.]

Relevant to the analysis in this case, § 145c defines "child sexually abusive activity" as "a child engaging in a listed sexual act."¹ Section 145c further defines "child" as an unemancipated "person who is less than 18 years of age,"² and provides that a "listed sexual act" "means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity."³

We conclude that the language of § 145c(2) clearly and unambiguously imposes criminal liability on three distinct groups of "person[s]," provided that at the time of their actions, the persons met the requisite knowledge element.⁴ Section 145c(2) delineates the member of its first described category as "[a] person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material."⁵ (Emphasis added.) Defendant does not qualify for inclusion in this first category of persons because he undisputedly did not pursue involvement in child sexually abusive activity for the purpose of creating child sexually abusive material. The disjunctive "or" immediately following the first category of persons signals that § 145c(2) thereafter describes other persons subject to criminal liability. See People v. Gatski, 260 Mich.App. 360, 365-366, 677 N.W.2d 357 (2004).

The second and third groups of persons subject to criminal penalty under § 145c(2) are related. A plain reading of the statutory language reflects that in the second group subject to criminal liability the statute places "a person who arranges for, produces, makes, or finances . . . any child sexually abusive activity or child sexually abusive material." Again, the disjunctive "or" immediately following "a person who arranges for, produces, makes, or finances" child sexually abusive activity or material separates the second group of criminal actors from the third category. See Gatski, supra at 365-366, 677 N.W.2d 357.

Into the third group the statute places "a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material." (Emphasis added.) In the third group, the statute clearly and unambiguously broadens the proscribed second group to include persons who attempt, conspire, or even prepare to engage in actions prohibited within group two, specifically the arrangement for, production, making, or financing of "any child sexually abusive activity or child sexually abusive material." (Emphasis added.) Again, the disjunctive "or" signifies that the second and third groups of persons face criminal liability for participation in the arrangement for, production, making or financing of either child sexually abusive activity or child sexually abusive material. See Gatski, supra at 365-366, 677 N.W.2d 357. Furthermore, the language defining the second and third groups of criminal actors eliminates the requirement applicable in the first group that the proscribed actions must have been taken for the purpose of creating child sexually abusive material. The Legislature thus omitted from the second and third groups subject to criminal liability any requirement that the individuals therein must have acted for the ultimate purpose of creating any child sexually abusive material, a specific requirement applicable to the first group of criminals. See Houghton Lake Area Tourism & Convention Bureau v. Wood, 255 Mich.App. 127, 135, 662 N.W.2d 758 (2003) (observing that "this Court should assume that an omission [in a statutory provision] was intentional").

Defendant's admissions place him squarely within the clear and unambiguous definition of the third group of persons on whom § 145c(2) imposes criminal liability. At defendant's plea hearing, the trial court elicited the following factual basis for defendant's guilty plea:

The Court: Okay. Now, these offenses occurred in what city or town?

Defendant: Waterford.

The Court: And that [sic] they occurred on or about February 6, 2002 to February 10, 2002?

Defendant: That is correct.

The Court: Now, at that time did you have a computer?

Defendant: Yes.

The Court: And were you computer literate in a sense of using the [I]nternet to communicate with other people?

Defendant: Yes.

The Court: And did there come a time when you communicated with another person with the idea or intent that sexual activity might occur between you and this other person?

Defendant: Yes, I was.

The Court: Okay. Well, . . . . Did there come a time when you attempted or made efforts to engage in child sexually abusive activity, mainly having sex with a person who was identified to you as being 14 years of age?

Defendant: Or arranged.

The Court: Or arranged?

Defendant: Yes.

The Court: Now, with regard to the [I]nternet, did you come in contact with someone posing as Eric Blake?

Defendant: Yes.

The Court: Or the name of the Blaze Kid?

Defendant: Yes.

The Court: Did you and he talk back and forth in engaging in sexual activity between the two of you?

Defendant: Yes.

The Court: And did there come a time when he indicated he was 14 years of age?

Defendant: Yes.

The Court: Okay. And did you then make arrangements or attempt to have a meeting with him for the purpose of engaging in sexual activity?

Defendant: My attorney says yes.

The Court: Your attorney is not the one who is pleading guilty. . . . [T]he jest [sic, gist] of this offense is...