People v. Loper

• Decision Date: 14 February 2013
• Docket Number: Docket No. 308026.
• Citation: 299 Mich.App. 451,830 N.W.2d 836
• Parties: PEOPLE v. LOPER.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 451

830 N.W.2d 836

PEOPLE

v.LOPER.

Docket No. 308026.

Court of Appeals of Michigan.

Submitted Feb. 5, 2013, at Grand Rapids.

Decided Feb. 14, 2013, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Laura A. Cook, Assistant Attorney General, for the people.

Julianne Meyer–Sorek, Kalamazoo, for defendant.

Before: BECKERING, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

Defendant pleaded guilty to one count of possessing child sexually abusive material, MCL 750.145c(4)(a), and to one count of using a computer to commit a crime, MCL 752.796. Defendant was sentenced to 23 months to 7 years' imprisonment for the use of a computer to commit a crime, and to 357 days in jail for the possession of child sexually abusive material. Defendant appeals by leave granted. We affirm.

I. FACTS

In late October, 2008, defendant's ex-wife, Melissa, contacted Three Rivers Police Sergeant Karl Huhnke and gave him eight computer disks. Huhnke reviewed the disks and discovered that some contained hundreds of pornographic images of young girls. Three Rivers Police Sergeant Mike Mohney examined the disks and determined that four disks contained images of prepubescent children posing without clothing on or performing sexual acts on animals or people. Mohney estimated that there were at least 100 distinct images of child pornography contained in the four disks. Mohney testified at defendant's preliminary examination that the images were likely downloaded to the disks around May, 2007. However, because of the duplicative nature of the images, Mohney believed that the images were actually downloaded to defendant's computer at a date prior to May, 2007.

At defendant's preliminary examination, Mohney testified that he had interviewed defendant on March 8, 2010. During that interview, Mohney showed defendant six images contained on the disks, and defendant admitted to downloading those images to his computer, and then onto a disk. During the preliminary examination, defendant stipulated that four disks contained images of naked children in sexual poses. The district court concluded that “one count can encompass all of the material,” and bound defendant over to the circuit court on one count of possession of child sexually abusive material, and one count of using a computer to commit a crime.

On March 25, 2011, the circuit court held a hearing at which defendant pleaded guilty to one count of possession of child sexually abusive material and to one count of using a computer to commit that crime. Defendant admitted that between 2007 and 2008, he had used a computer to obtain the images from the internet. He admitted that the images were of minors under the age of 15 years old involved in sexual acts and that he had known that the images were of minors involved in sexual acts at the time he obtained them.

II. SENTENCING

Defendant challenges his sentence on constitutional and nonconstitutional grounds. Defendant's constitutional challenge is that the statute governing possession of child sexually abusive material, MCL 750.145c, is unconstitutionally vague. Due to that statute's vagueness, defendant argues, the trial court erred by assessing 25 points for offense variable (OV) 12, MCL 777.42(contemporaneous felonious acts). He also argues that the court would have erred had it assessed 25 points for OV 13, MCL 777.43 (continuing pattern of criminal behavior).¹ We disagree, and conclude that MCL 750.145c is not unconstitutionally vague when applied to defendant's conduct in the instant case.

With regard to his nonconstitutional challenge, defendant argues that the trial court erred by assessing 25 points for OV 12 because the additional felonious acts that justified the score were not “contemporaneous” within the meaning of the sentencing statute. Again, we disagree.

A. ISSUE PRESERVATION AND STANDARDS OF REVIEW

A challenge to a sentence that is within the guidelines sentence range is preserved when it is raised at sentencing, in a motion for resentencing, or in a motion to remand filed in the Court of Appeals. MCL 769.34(10). Defendant argued in the lower court that MCL 750.145c should not apply to individual images of child sexually abusive material, but did not raise the specific guideline scoring arguments he presents on appeal. Accordingly, these issues on appeal are unpreserved.

Even though defendant did not preserve this issue for appeal, this Court may review an unpreserved scoring issue for plain error affecting substantial rights. People v. Kimble, 470 Mich. 305, 312, 684 N.W.2d 669 (2004). To avoid forfeiture of the issue under the plain error rule, the defendant bears the burden to show that “1) error ... occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999) (citation omitted). Moreover, even if a defendant successfully demonstrates a plain error affecting his substantial rights, the reviewing court still has “ discretion in deciding whether to reverse. Reversal is warranted only when the plain ... error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.” Id. (quotation marks and citation omitted). Appellate courts review de novo the constitutionality of a statute. People v. Nichols, 262 Mich.App. 408, 409, 686 N.W.2d 502 (2004).

B. VAGUENESS

Defendant argues that the trial court erred with regard to OV 12 (and would have erred with regard to OV 13 had it been scored), because MCL 750.145c is unconstitutionally vague. We disagree.

“The ‘void for vagueness' doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property, without due process of law.” People v. Roberts, 292 Mich.App. 492, 497, 808 N.W.2d 290 (2011) (quotation marks and citationomitted); US. Const., Am. XIV; Const. 1963, art. 1, § 17. “A statute might be unconstitutionally vague if, among other reasons, it fails to provide fair notice of the conduct proscribed or is so indefinite that it confers unlimited and unstructured discretion on the trier of fact to determine whether an offense has occurred.” People v. Lockett, 295 Mich.App. 165, 174, 814 N.W.2d 295 (2012) (quotation marks and citation omitted). “Statutes are presumed to be constitutional,” and to overcome that presumption, the unconstitutionality must be readily apparent. People v. Malone, 287 Mich.App. 648, 658, 792 N.W.2d 7 (2010). The party challenging a statute's constitutionality has the burden of proving its invalidity. Id.

When a vagueness challenge does not involve First Amendment freedoms it must be examined on the basis of the facts in the case at hand. Nichols, 262 Mich.App. at 410, 686 N.W.2d 502. It is well-established that child pornography does not implicate the First Amendment. New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Roberts, 292 Mich.App. at 501, 808 N.W.2d 290. Accordingly, this Court has held:

A defendant may not challenge a statute as unconstitutionally vague when the defendant's own conduct is fairly within the constitutional scope of the statute. The fact that a hypothetical may be posed that would cast doubt upon the statute does not render it unconstitutionally vague. Rather, the analysis must center on whether the statute, as applied to the actions of the individual defendant, is constitutional. [Malone, 287 Mich.App. at 658–659, 792 N.W.2d 7 (citations omitted and emphasis added).]

In other words, when a defendant brings an as-applied vagueness challenge to a statute, the defendant is confined to the facts of the case at bar. See also People v. Newton, 257 Mich.App. 61, 66, 665 N.W.2d 504 (2003) (“The proper inquiry is not whether the statute may be susceptible to impermissible interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in this case.”) (quotation marks and citation omitted).

MCL 750.145c(4) provides:

A person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

In turn, MCL 750.145c(1)(m) defines “child sexually abusive material” as:

[A]ny depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or printable medium containing such a photograph, picture, film, slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording.

A “child” means a person who is less than 18 years old. MCL 750.145c(1)(b). A “listed sexual act” is defined as “sexual intercourse, erotic fondling, sadomasochisticabuse, masturbation,...