People v. Daniel (In re Daniel)

Docket Number334057
Decision Date18 August 2022
CourtCourt of Appeal of Michigan — District of US


Washtenaw Circuit Court Family Division LC No. 15-000375-DL

Before: K. F. KELLY, P.J., and BORRELLO and RIORDAN, JJ.


In this case involving the sexual assault of a 15-year-old victim by respondent, then 16-years-old, and another teenager, which now returns to us on remand from the Michigan Supreme Court we reversed the order of the trial court exempting respondent from registering as a sex offender under Michigan's Sex Offenders Registry Act (SORA), MCL 28.721 et seq. In re Daniel, unpublished per curiam opinion of the Court of Appeals, issued September 12, 2017 (Docket No 344057), p 1. As relevant here, we determined the requirement under SORA that respondent register as a sex offender was not a violation of the United States and Michigan Constitutions' prohibitions on cruel or unusual punishment because the purpose and effect of the law was not punitive. Id. at 4-9. However, in People v Betts, 507 Mich. 527, 562; 968 N.W.2d 497 (2021), the Michigan Supreme Court concluded that the requirement that offenders register under SORA constituted punishment for purposes of the prohibition on ex post facto laws. Thus, the Michigan Supreme Court remanded this case to us to reconsider our decision regarding respondent's Eighth Amendment challenge in light of Betts. In re Daniel, Mich.; 969 N.W.2d 56 (2022). Because we conclude the imposition of SORA on juveniles is not cruel or unusual punishment, we reverse the dispositional order of the trial court and remand for further proceedings.


This Court's earlier opinion describes the factual circumstances of the case:

The 15-year-old complainant was a resident at the Washtenaw County Detention Facility. She performed oral sex on 16-year-old T.B., who was also a resident at the facility. In a forensic interview, complainant indicated that while she was performing oral sex on T.B., respondent groped her buttocks from behind. Respondent also forced complainant's head down on T.B.'s ejaculating penis. The interviewer asked for clarification on a few points and included the following in her forensic interview report:
[Complainant] clarified that [respondent] was the one who pushed her head down when [T.B.] was almost done. She said she saw him move his hand and then he started laughing so hard, he had to leave the room. [Complainant] said [respondent] was also grabbing her butt when she was giving [T.B.] head. She said she told him to stop and pushed his hand away, but he kept doing it.
I told [complainant] that she had told me part was consensual and part was not. I asked what part was not consensual. She said the part with [respondent] grabbing her butt and pushing down her head. She said everything with [T.B.] was consensual. I asked what [T.B.] said when [respondent] pushed her head. [Complainant] said she thinks he laughed, but that was because she got it on her face.

The interviewer asked complainant what she wanted to "see happen" with the investigation. Complainant said "she didn't want any charges to be pressed. She is not mad about what happened with [T.B.], but she is mad about [respondent] shoving her head down."

Following the investigation, respondent pleaded responsible to third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a person 13 years of age and under 16 years) for aiding and abetting oral sex, and fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(b) (sexual contact through force or coercion), for touching the complainant. Respondent's CSC-III charge was a "Tier III offense," for which registration as a sex offender was required under MCL 28.723. Respondent was required to register as a sex offender unless "the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim." MCL 28.722(w)(iv).

Respondent asked to be exempted from the SORA registration requirement. Petitioner filed a response, noting that the victim had not consented to respondent's conduct, noting that complainant specifically reported that respondent's acts of groping her buttocks and forcefully pushing her head down on to T.B.'s penis were non-consensual.

At a hearing on the issue, respondent acknowledged that there was no legal or factual basis for his position. Still, the lower court concluded:

[W]hen statutes are written I think you can necessarily not anticipate every scenario there is going to be and . . . I imagine this is one of the scenarios everyone wouldn't - no one would have put . . . in the forefront of their mind when writing the statute. I think that it's clear from the statement . . . from the Complainant that the sexual act on the co-Respondent was consensual. [Respondent] then put his hand on her head, she said that touching was not consensual . . . but I am convinced with the fact that she consented to the sexual act which is what the purpose of the Sex Offender Registry is . . . that I am finding . . . that she consented to the conduct and that [respondent] is not required to register.

Um - I don't think this is the kind of conduct they intended to have register and the fact that they put in the exception - the so-called Romeo and Juliet exception . . . - that it is much more conduct that falls under that exception to the Registry than it is . . . the other. So I am not going to require that he register.

So it is a dispositional order . . . and all it's gonna say is plea accepted, . . . the Court finds that the complainant consented to the conduct . . . [In re Daniel, unpub op at 1-3 (alterations in original).]

The prosecutor appealed the trial court's order, contending the evidence demonstrated that respondent's contact with the complainant was not consensual. In an unpublished decision, we reversed the trial court's dispositional order. First, we concluded the trial court erred when it found that the contact between respondent and the complainant was consensual:

Complainant repeatedly indicated that certain of her acts with T.B. were consensual. However, she clearly did not consent to having respondent force her head down on T.B.'s ejaculating penis. Complainant was free to withdraw consent and stop performing oral sex. Respondent's behavior inhibited complainant from potentially withdrawing previously bestowed consent. The lower court erred in concluding that respondent was exempted from registering as a sex offender. [Id. at 4 (citation omitted).]

Having concluded the trial court erred, we next addressed respondent's argument that the imposition of the reporting requirement constituted cruel or unusual punishment under the United States and Michigan constitutions. Relying principally on People v Temelkoski, 307 Mich.App. 241; 859 N.W.2d 743 (2014), rev'd 501 Mich. 960 (2018), and People v Tucker, 312 Mich.App. 645; 879 N.W.2d 906 (2015), we concluded the reporting requirement did not violate the prohibition on cruel or unusual punishment because the reporting requirement did not constitute punishment and could, therefore, not constitute cruel or unusual punishment. In re Daniel, unpub op at 4-9.

Respondent filed an application for leave to appeal with the Michigan Supreme Court, which held the application in abeyance while it considered People v Betts, 507 Mich. 527, 562; 968 N.W.2d 497 (2021). On July 27, 2021, the Michigan Supreme Court decided Betts, concluding the retroactive application of SORA to offenders convicted before its enactment violated the constitutional prohibitions on ex post facto laws. Betts, 507 Mich. 562. The Michigan Supreme Court considered five separate factors in deciding that SORA was punishment for purposes of determining whether retroactive application of the law runs afoul of prohibitions on ex post facto laws:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned .... [Betts, 507 Mich. at 543, quoting Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-169; 83 S.Ct. 554; 9 L.Ed.2d 644 (1963).]

First the Court concluded that SORA "bears significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision." Betts, 507 Mich. at 553. Next, the Court concluded that SORA imposed an "affirmative disability or restraint" because SORA "impose[s] onerous restrictions on registrants by restricting their residency and employment, and it also impose[s] significant affirmative obligations by requiring extensive in-person reporting." Id. at 556. With respect to whether SORA "promote[s] the traditional aims of punishment," the Court determined that the goal of SORA was "to protect the public through deterrence and because its restrictions appear retributive," the law "promotes the traditional aims of punishment." Id. at 558. And while the Court did find...

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