People v. Cervi
| Decision Date | 18 April 2006 |
| Docket Number | Docket No. 262331. |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jonathan CERVI, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, Farmington Hills, for the defendant.
Before: DAVIS, P.J., and FITZGERALD and COOPER, JJ.
This appeal presents a question of first impression in Michigan. It focuses on the interplay between protected free speech and the state's interest in protecting minors from sexual predators seeking victims via the Internet. At issue is MCL 750.145d, a statute which criminalizes use of "the internet or a computer . . . to communicate with any person for the purpose of . . . [c]ommitting, attempting to commit, conspiring to commit, or soliciting another person to commit" several enumerated crimes. We find that § 145d does not impermissibly burden free expression because "words alone" are not punishable under the statute; rather the statute criminalizes communication with a minor or perceived minor with the specific intent to make that person the victim of one of the enumerated crimes.
Under MCL 750.145d(1)(a), the prosecution charged defendant with two counts of using the Internet or a computer to communicate with an undercover deputy sheriff, whom defendant believed was a 14-year-old girl, for the purpose of "committing or attempting to commit" third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a), and one count of using the Internet or a computer to communicate with a perceived minor in order to produce or attempt to produce child sexually abusive material, MCL 750.145c(2). The prosecution appeals by leave granted from a circuit court order affirming the district court's dismissal of two of the counts charged. We affirm in part, reverse in part, and remand.
At the August 2004 preliminary examination, Wayne County Sheriff's Deputy Norman Gibson testified that his work involved "posing on line as a minor" in child pornography cases and performing "forensic analysis of the computers that are seized." Gibson routinely logged onto a Yahoo Instant Messaging service with an invented screen name and personal characteristics, usually posing as "a 14-year-old female . . . from the west side of the county, Livonia, Canton, Plymouth, Northville,. . . with a vague description of about 5'4" tall, blond hair, pretty, nice," and would "sit in a chat room a while and pretty much just wait for someone to strike up a conversation. . . ." Gibson stated that he never commenced conversations with other Internet users, and when addressed, always waited for the messenger to turn the conversation to sex.
On July 1, 2003, Gibson, in his Hamtramck office, logged on in a chat room designated "Detroit" or "Michigan" under the screen name "inozentangel," a purported Livonia girl aged 14. Around 5:44 p.m., Gibson received a greeting from someone identified as "timmyd683." Gibson replied, "hi 2 u 2."1 Timmyd683 and Gibson initially exchanged personal information; timmyd683 described himself as a 21-year-old male living in Livonia, and Gibson identified himself as a 14-year old female Livonia resident, 5'4" tall and 105 pounds with blond hair and green eyes.
The printed log of the exchanges between Gibson and timmyd683 indicates that the conversation quickly became more intimate.2 He wrote that she "sound[ed] gorgeous," to which she replied she was too young. He said he had misread her age and thought she was 18, and when she then indicated she would exit the conversation, he said he did not want to "seem like an old perv," asked if she was "ok with it," and checked that she was "not like working with the cops or anything." She confirmed that he was 21, and then said she was "fine wit it." As the conversation went on, he asked her bra size, asked if she was "looking for anything" suggested a casual relationship, an intimate relationship, or a "f*** buddy" relationship. He asked if she was "a sexual girl," and when she replied "a little bit," he asked if she wanted to see a picture of him.
Gibson e-mailed timmyd683 a picture of a Wayne County Sheriff undercover officer when she was 14 years old, and timmyd683 e-mailed Gibson two photos, one showing a white male with short hair, and one that Gibson described as depicting "a male from mid-abdomen down to mid-thigh with his pants pulled down and his hand on his genitalia."
He wrote that he had not meant to send the second photo, and added "ok, well you've seen all of me now[.]" He then suggested they meet. She asked what he wanted to do, and he said it depended, then asked if she could go out late or sneak out if necessary, and she replied that she could. He asked whether she knew any "private places" in the area, and she said she did not because she had recently moved to the area. She again asked what he wanted to go out and do, and he answered "youre gonna hate me and not talk to me after i tell you[.]" He then asked whether she would "go down on" him. She said "sure," and after he asked again she confirmed that they were both talking about oral sex. He informed her that he was "completely shaven," so it would be "nice and clean."
They discussed meeting that same night, and he said he didn't want to "get . . . rejected" or "find out that your gonna have me arrested!" She asked why she would have him arrested, and he answered "hahah, i dont know, cuz its illegal[.]" She said "well then forget it," and he replied that he was "just kidding."
He suggested they meet that night, but she suggested the next night instead. He said that he had plans to leave town on vacation the next day, and the July 1, 2003, exchange concluded with inozentangel's statement that she would wait. Around 4:30 p.m. the next afternoon, timmyd683 advised inozentangel via instant message that his vacation plans had changed, and he again brought up the subject of meeting. He asked her if she had met other men on the Internet, and she replied she had met five others. He asked if she had had sex with them and she said she had with three of them. They discussed the sex acts they had discussed the day before, and he asked if there was anything else she would want to do with him, and she said if "we feel like more . . . then sure." He asked if she wanted anything in return and she said she would not take money because that would make her a prostitute, but added that she needed a webcam. They spent nearly an hour discussing a plan to meet at 11:30 that night near a middle school.
At 10:38 p.m., inozentangel advised timmyd683 that she could not make it because her mother had stayed home from work. He repeatedly urged her to sneak out of the house for the meeting, and she repeatedly declined. After discussing their upcoming schedules and determining they could not meet for at least another two weeks, inozentangel said that "it wasnt meant to be[.]" Timmyd683 disagreed and told inozentangel that he had bought her a webcam. Inozentangel ended the conversation by announcing that her mother had started yelling at her to turn off the computer and go to bed.
Inozentangel and timmyd683 had brief instant message conversations on July 3, 2003, and July 6, 2003, during which they discussed getting together. On the morning of July 7, 2003, inozentangel engaged in an instant message conversation with timmyd683 under his other screen name, cerv25,3 and said that she was staying at her father's house in Grosse Pointe, and that she could sneak out that night and meet near Grosse Pointe North High School. Around 4:40 p.m., they communicated again to confirm the plan, and he asked if he could videotape the sex acts they had discussed. She said he could as long as the tape "doesnt go anywhere[.]" She gave him the address of the high school. Then for about 15 minutes the discussion centered on inozentangel's sexual experience and preferred male body characteristics, and what each person would wear later that evening. They then recapped the plan for the evening, specifically that they would find a private location and cerv25 would videotape inozentangel performing fellatio on him. Inozentangel and cerv25 last communicated via instant message for approximately one hour between 10:30 p.m. and 11:30 p.m.; much of this conversation involved cerv25 complaining that it would be a long drive to Grosse Pointe and expressing his concern that she would not show up. They finally agreed that cerv25 would arrive at Grosse Pointe North in his Ford Explorer by 12:30 a.m. on July 8, 2003. Cerv25 again asked if inozentangel was a cop or worked with the police, and she again said no.
Gibson stated that he and other sheriff department personnel staked out the high school. Gibson's partners parked one car "directly across the street from the high school and one in the driveway so that they could see anyone entering and leaving," and Gibson waited in another car "parked alongside the football field." Around 12:25 a.m. on July 8, 2003, a Ford Explorer entered the school parking lot and "kind of did like a circle" around it, according to Gibson. Gibson stated that he turned on his lights and started driving toward the vehicle, which turned toward the exit but found it blocked by the other officers' cars. At the preliminary examination Gibson identified defendant as the driver of the Explorer, whom the deputies arrested at the scene. A search of the Explorer at the time of defendant's arrest yielded no condoms, towel, webcam, or other video recording equipment.4
In a July 27, 2004 complaint, the prosecutor charged de...
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