People v. Golba

• Decision Date: 16 January 2007
• Docket Number: Docket No. 262261.
• Citation: 273 Mich. App. 603,729 N.W.2d 916
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Ivan GOLBA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

729 N.W.2d 916

273 Mich. App. 603

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Ivan GOLBA, Defendant-Appellant.

Docket No. 262261.

Court of Appeals of Michigan.

Submitted November 8, 2006, at Grand Rapids.

Decided January 16, 2007, at 9:05 a.m.

Released for Publication March 30, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, James A. Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Law Offices of Tat Parish, P.L.L.C. (by Tat Parish), Watervliet, for the defendant.

Before: O'CONNELL, P.J., and WHITE and MARKEY, JJ.

MARKEY, J.

Defendant was charged with one count of possession of child sexually abusive material, MCL 750.145c(4), and one count of unauthorized access to computers, MCL 752.795. A jury convicted defendant of unauthorized access to computers. The trial court sentenced defendant to serve 3 ½ years' probation and 120 days in jail. The court also ordered defendant to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. Defendant appeals by right, arguing that the trial court misapplied SORA and that requiring him to register under the act violates his constitutional rights. We affirm.

Defendant first argues that he was convicted of a computer crime under MCL 752.795, which does not require proof of sexual misconduct. Defendant contends that because his violation of MCL 752.795 does not constitute a sexual offense against an individual who was less than 18 years of age, the trial court erred in ordering him to register under SORA. We disagree. The construction and application of SORA presents a question of law that we review de novo. People v. Meyers, 250 Mich.App. 637, 643, 649 N.W.2d 123 (2002).

SORA requires an individual who is convicted of a listed offense after October 1, 1995, to register as a sex offender. MCL 28.723(1)(a). "Listed offense," as defined in MCL 28.722(e), includes this catchall provision: "Any . . . 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." MCL 28.722(e)(xi).¹ In further clarification of this catchall provision, the Code of Criminal Procedure, which governs the imposition of sentences, provides:

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 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)² 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).]

Except when an individual is convicted of certain offenses not applicable here, a person required to register as a sex offender must comply with SORA for a period of 25 years following the date of initial registration or for 10 years following the person's release from a state correctional facility, whichever is longer. MCL 28.725(6).

Defendant was charged with possession of child sexually abusive material, MCL750.145c(4), which is a listed offense under SORA. MCL 28.722(e)(i). But the jury failed to reach a verdict on this charge, so the trial court declared a mistrial. Thus, defendant was not convicted of the listed offense of possession of child sexually abusive material. Defendant was convicted of unauthorized access to computers in violation of MCL 752.795, which provides in relevant part:

A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:

(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

A violation of MCL 752.795 is not specifically designated as a listed offense in MCL 28.722, and defendant contends that violation of the statute does not "by its nature constitute[] a sexual offense against an individual who is less than 18 years of age." MCL 28.722(e)(xi). Thus, defendant argues that the trial court erred by requiring him to register as a sex offender. Defendant's argument is without merit.

This Court has opined that the plain language of the SORA catchall provision at issue requires the simultaneous existence of three conditions before a person must register as a sex offender: (1) the defendant must have been convicted of a statelaw violation or a municipal-ordinance violation, (2) the violation must, "by its nature," constitute a "sexual offense," and (3) the victim of the violation must be under 18 years of age. Meyers, supra at 647, 649 N.W.2d 123.

Regarding the first element, defendant does not dispute that he was convicted of the statelaw violation of accessing or allowing access to a computer without authorization. MCL 752.795. And the trial court's entry of an order placing defendant on probation for that offense satisfies the SORA definition of being "convicted." MCL 28.722(a)(i).

With respect to the second element necessary to invoke the SORA catchall provision, the Meyers Court noted that the Legislature "did not define what it meant by a violation that, `by its nature,' constitutes a `sexual offense.'" Meyers, supra at 647, 649 N.W.2d 123. The Meyers Court observed that a dictionary definition of the phrase "by its nature" suggests that it means "according to `inherent qualities.'" Id., citing Random House Webster's College Dictionary (1997), p. 872. Further, "[a] `sexual offense' is the legal `transgression' that is `of or pertaining to sex.'" Meyers, supra at 647, 649 N.W.2d 123, citing Random House Webster's College Dictionary (1997), pp. 907, 1185. The Court concluded that "[t]here can be no debate that conduct violating a state criminal law or municipal ordinance that has inherent qualities pertaining to or involving sex fits this second element." Meyers, supra at 647-648, 649 N.W.2d 123.

In Meyers, the 64-year-old defendant accessed an Internet chat room and entered into a discussion with a person he believed to be a 12-year-old girl. Their two-hour discussion concerned oral sex, which the defendant hoped to obtain from the girl. In reality, the defendant was conversing with an adult police officer. Id. at 638-639, 649 N.W.2d 123. The defendant was charged with violating MCL 750.145d, which at the time of the alleged offense provided:

"(1) A person shall not use the internet or a computer, computer program, computer network, or computer system to communicate with any person for the purpose of doing any of the following:

* * *

"(b) Committing, attempting to commit, conspiring to commit, or soliciting another person to commit conduct proscribed under section 145a, 157c, 350, 411h, or 411i." [Meyers, supra at 639, 649 N.W.2d 123, quoting MCL 750.145d, as amended by 1999 PA 235.]

The prosecution's theory in Meyers was that the defendant had used the Internet to attempt to commit an act in violation of MCL 750.145a.³ Meyers, supra at 639, 649 N.W.2d 123. The defendant pleaded guilty to the charge. At his sentencing hearing, the defendant argued that, because he did not commit a listed offense, he was not required to register as a sex offender under SORA. The trial court rejected the defendant's argument and ordered him to comply with SORA. On appeal, this Court affirmed the trial court's decision. This Court observed that to be convicted of violating MCL 750.145a required the use of a computer to commit an underlying crime. Meyers, supra at 648, 649 N.W.2d 123. The Court also observed that not all the potential "underlying" offenses—including stalking, MCL 750.411h, aggravated stalking, MCL 750.411i, inducing a minor to commit a felony, MCL 750.157c, and kidnapping a child, MCL 750.350—were inherently related to sex. Meyers, supra at 648, 649 N.W.2d 123. And the Meyers Court further noted that with respect to the "underlying" offense of accosting a child, "MCL 750.145a explicitly includes the possibility that the criminal conduct at issue was sexual in nature in that the statute refers to `sexual intercourse,' [but] accosting a child may also consist of nonsexual acts, such as `delinquency.'" Id. Nevertheless, after examining the conduct of the defendant that formed the basis of his conviction, the Court concluded that defendant had committed an inherently sexual offense for purposes of SORA. The Court opined:

At first blush, this possibility—that the conduct that each of these statutes prohibits might not require a sexual component—suggests that these are not statutes that encompass inherently sexual offenses. However, by referring to "sexual offenses," rather than "sexual offense statutes," the language of MCL 28.722(d)(x)[⁴] directs us to examine the unique nature of the criminal conduct underlying the charge that the defendant violated a state law or municipal ordinance to determine whether the criminal conduct was inherently sexual. Only the facts of the individual "offense" itself will reveal whether the stalking, kidnapping, felony inducement, or accosting offense was inherently sexual, as this second element requires. In this case, there is no question that Meyers' online discussion was, "by its nature," sexual in that it specifically involved graphic discussions of oral sex, which Meyers hoped to obtain from the person with whom he was conversing over the Internet. [Id. at 648-649, 649 N.W.2d 123 (emphasis added).]

As in Meyers, we recognize that conduct that is nonsexual in nature...