People v. Althoff, Docket No. 274906.

• Decision Date: 02 September 2008
• Docket Number: Docket No. 274906.
• Citation: 280 Mich. App. 524,760 N.W.2d 764
• Parties: PEOPLE v. ALTHOFF.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 764

280 Mich. App. 524

PEOPLE v. ALTHOFF.

Docket No. 274906.

Court of Appeals of Michigan.

Submitted March 4, 2008, at Grand Rapids.

Decided September 2, 2008, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Arthur J. Cotter, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Gentry Law Offices, P.C., Brighton (by Kevin S. Gentry), for the defendant.

Before: FITZGERALD, P.J., and SMOLENSKI and BECKERING, JJ.

PER CURIAM.

Defendant Ryan Derrek Althoff pleaded guilty of possession with intent to disseminate obscene material, MCL 752.365. He subsequently appealed the December 22, 2004, trial court order requiring him to register as a sex offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. This Court denied defendant's delayed application for leave to appeal. In lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration as on leave granted. We affirm.

I

Defendant and his wife, Elizabeth Althoff, formerly resided in Bridgman, Michigan. In January 2003, the state police responded to a report of a domestic dispute at the couple's home. During the investigation, Elizabeth informed Trooper Matthew Waters that defendant had been viewing child pornography and gave the trooper several computer discs. Thereafter, defendant joined the United States Army. In the fall of 2004, while defendant was stationed in Germany, police contacted him several times regarding the computer discs seized from his Bridgman home. Defendant was subsequently charged with possession of child sexually abusive material, MCL 750.145c(4), on the basis of the content of the computer discs. In December 2004, defendant pleaded guilty to the reduced charge of possession with intent to disseminate obscene material, MCL 752.365. Defendant admitted that he had downloaded pornographic material and that he planned to show the material to a friend. At sentencing, the trial court ordered defendant to pay fines, costs, and fees, and to register pursuant to SORA.¹

In September 2005, defendant filed a delayed application for leave to appeal the trial court's December 22, 2004, judgment of sentence. Specifically, defendant argued that the trial court erred by ordering him to register pursuant to SORA when he pleaded guilty to an offense that was not listed under SORA and there was no evidence that this case involved an offense against a minor. This Court held the matter in abeyance and remanded the case "to the sentencing court for a factual finding whether defendant was convicted of a sexual offense against an individual who is less than 18 years of age." People v. Althoff, unpublished order of the Court of Appeals, entered November 23, 2005 (Docket No. 264980).

The trial court conducted an evidentiary hearing on December 13, 2005, pursuant to this Court's order. Detective Douglas Kill testified that he had viewed the contents of the computer discs seized from defendant's home and that there were photographs of young, nude females on several of the discs. According to Detective Kill, one of the females appeared to be 13 or 14 years old, and another appeared to be 16 years old. In one photograph, these two females were standing on a Jacuzzi tub nude. One of the females was holding an extendable showerhead. Other photographs depicted the younger of the two females standing in a hallway and sitting in a chair nude. Detective Kill admitted that he did not have any specialized training in identifying a person's age. He testified, however, that the two females did not appear to be fully developed physically and that he had investigated similar child pornography cases in the past. The computer discs at issue and printed copies of the photographs on the discs were mistakenly lost or destroyed after the sentencing and were unavailable at the evidentiary hearing.

On the basis of Detective Kill's testimony, the trial court determined that defendant was convicted of a sexual offense against an individual less than 18 years of age and, therefore, that he was required to register pursuant to SORA. The trial court effectuated its ruling in an order dated December 20, 2005. Thereafter, this Court denied defendant's delayed application for leave to appeal for lack of merit in the grounds presented. People v. Althoff, unpublished order of the Court of Appeals, entered March 3, 2006 (Docket No. 264980).

Defendant subsequently applied for leave to appeal this Court's March 3, 2006, order. On December 8, 2006, in lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration as on leave granted of four issues:

(1) whether MCL 28.722(e)(xi) requires registration of an offender based solely on the legal elements of the offense for which he stands convicted, or whether the facts of the particular offense are to be considered in determining if the offense "by its nature constitutes a sexual offense against an individual who is less than 18 years of age" cf. People v. Meyers, 250 Mich.App. 637 (2002) (dictum); (2) whether the possession of pornographic photographs constitutes an offense "against" an individual who is less than 18 years of age; (3) if possession is an offense "against" an individual, what evidentiary standards apply to a hearing held to determine if a defendant must register under the Sex Offender[s] Registration Act; and (4) whether the evidence in this case was sufficient to satisfy the statutory requirement that the individual be "less than 18 years of age." [People v. Althoff, 477 Mich. 961, 724 N.W.2d 283 (2006).]

II

Pursuant to the Supreme Court's order in this case, we must first consider

whether MCL 28.722(e)(xi) requires registration of an offender based solely on the legal elements of the offense for which he stands convicted, or whether the facts of the particular offense are to be considered in determining if the offense "by its nature constitutes a sexual offense against an individual who is less than 18 years of age." [Althoff, supra at 961, 724 N.W.2d 283.]

The construction and application of SORA presents a question of law that we review de novo on appeal. People v. Golba, 273 Mich.App. 603, 605, 729 N.W.2d 916 (2007).

"SORA requires an individual who is convicted of a listed offense after October 1, 1995, to register as a sex offender." Id., citing MCL 28.723(1)(a). The definition of "listed offense" in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that "[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age" constitutes a listed offense.² The Code of Criminal Procedure provides clarification of this catchall provision, stating in relevant part:

If the defendant is sentenced for an offense other than a listed offense as defined in section 2(d)(i) to (ix) and (xi) to (xiii) of the sex offenders registration act, 1994 PA 295, MCL 28.722, the court shall determine if the offense is a violation of a law of this state or a local ordinance of a municipality of this state that by its nature constitutes a sexual offense against an individual who is less than 18 years of age. If so, the conviction is for a listed offense as defined in section 2(d)(x)[³] of the sex offenders registration act, 1994 PA 295, MCL 28.722, and the court shall include the basis for that determination on the record and include the determination in the judgment of sentence. [MCL 769.1(13).]

In Meyers, this Court found that the defendant was required to register as a sex offender pursuant to former MCL 28.722(d)(i) and (xii), now subsections e(i) and (xiii). Meyers, supra at 645, 649 N.W.2d 123. The Meyers Court also addressed SORA's catchall provision. The Court determined that pursuant to SORA's use of the term "convictions" and the plain language of the catchall provision, a defendant must register as a sex offender under the provision when three conditions exist simultaneously:

First, the defendant must have been convicted of a state law violation or a municipal ordinance violation. Second, the state law or municipal ordinance violation must, "by its nature," constitute a "sexual offense." Third, the victim of the state law or municipal ordinance violation must be under eighteen years of age. [Id. at 647, 649 N.W.2d 123.]

The Meyers Court concluded that the defendant's offense satisfied all three elements of MCL 28.722(e)(xi). Meyers, supra at 650, 649 N.W.2d 123. It was undisputed that the defendant had been convicted of a state-law violation, using the Internet in an attempt to commit conduct proscribed under MCL 750.145a, which violated MCL 750.145d(1)(b). Meyers, supra at 638, 647, 649 N.W.2d 123. In regard to the second and third elements, the Court considered the underlying facts of the offense, particularly that the defendant had engaged in an online discussion about oral sex with a person he believed to be a 12-year-old girl, in hopes of obtaining oral sex from the girl. Id. at 638-639, 648-650, 649 N.W.2d 123. In reality, the defendant was conversing with a police detective. Id. at 639, 649 N.W.2d 123. The Court acknowledged that "[t]here may be other cases in which a defendant convicted of violating MCL 750.145d need not register under SORA because the victim was over the age of eighteen or the offense was not inherently sexual," and that "[o]nly after analyzing the facts of the specific case is it possible to determine whether a defendant is subject to SORA's registration requirement" under MCL 28.722(e)(xi). Meyers, supra at 650, 649 N.W.2d 123. In its December 8, 2006, order in this case, the Supreme Court labeled the portion of the Meyers opinion requiring consideration of the facts of the specific offense "dictum." Althoff, supra at 961, 724 N.W.2d 283.

After the Supreme Court issued its ...