People v. Gezelman
| Decision Date | 19 October 1993 |
| Docket Number | Docket No. 151457 |
| Citation | 507 N.W.2d 744,202 Mich.App. 172 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith Richard GEZELMAN, Defendant-Appellant (On Rehearing). |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Andrew J. Marks, Pros. Atty., and Douglas E. Ketchum, Chief Asst. Pros., for people.
State Appellate Defender by Anne Yantus, Detroit, for defendant-appellant on appeal.
Before: NEFF, P.J., and MacKENZIE and WEAVER, JJ.
Defendant pleaded guilty of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a), and child sexually abusive activity, M.C.L. § 750.145c(2); M.S.A. § 28.342a(2). He was sentenced to three to fifteen years' imprisonment for the former conviction and eight to twenty years' imprisonment for the latter conviction. He appeals as of right. We affirm. This case has been decided without oral argument pursuant to MCR 7.214(E)(1)(b).
Given the circumstances of the offense and the offender, we hold that defendant's eight-year minimum sentence for his child sexually abusive activity conviction does not violate the principle of proportionality. People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).
Defendant's failure to challenge the accuracy of the information contained in the presentence report at sentencing precludes appellate review of this issue. People v. Sharp, 192 Mich.App. 501, 503-504, 481 N.W.2d 773 (1992).
Likewise, defendant's failure to challenge the constitutionality of the child sexually abusive activity statute before the trial court also normally would preclude appellate review. See People v. Ghosh, 188 Mich.App. 545, 546, 470 N.W.2d 497 (1991). However, because an important constitutional question is involved, we will review the issue. Id.
Defendant claims the child sexually abusive activity statute, M.C.L. § 750.145c(2); M.S.A. § 28.342a(2), is unconstitutional because it is overbroad. Specifically, he asserts that the statute's prohibition against "erotic nudity" involving children is overbroad because it could encompass protected forms of free speech, such as the innocent photograph of a nude child by its parents. We disagree. The statutory definition of erotic nudity does not encompass the depiction of all child nudity. Rather, it is narrowly defined to exclude those depictions that have a "primary literary, artistic, educational, political, or scientific value" and that do not appeal to the prurient interests in sex. M.C.L. § 750.145c(1)(d); M.S.A. § 28.342a(1)(d). Because the definition is narrowly drawn so that protected forms of free speech...
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People v. Hubbard
...the constitutionality of this statute before the trial court normally would preclude appellate review. People v. Gezelman (On Rehearing), 202 Mich.App. 172, 174, 507 N.W.2d 744 (1993). We waive the preservation requirement, however, because defendant raises an important constitutional issue......
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...time and addressed by the appellate court. People v. Heim, 206 Mich.App. 439, 441, 522 N.W.2d 675 (1994); People v. Gezelman (On Remand), 202 Mich.App. 172, 174, 507 N.W.2d 744 (1993); People v. Schollaert, 194 Mich.App. 158, 162, 486 N.W.2d 312 (1992). In People v. Grant, 445 Mich. 535, 54......
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...Court may overlook preservation requirements if "an important constitutional question is involved...." People v. Gezelman (On Rehearing) , 202 Mich.App. 172, 174, 507 N.W.2d 744 (1993).2 Unpublished opinions are not binding but they may be consulted as persuasive authority. MCR 7.215(C)(1) ......
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