PEOPLE OF MI V ALEJANDRO GUTIERREZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 22, 2008
Plaintiff-Appellee,
v
No. 276765
Wayne Circuit Court
LC No. 06-011354
ALEJANDRO GUTIERREZ,
Defendant-Appellant.
Before: Servitto, P.J., and Cavanagh and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction of aggravated indecent exposure,
MCL 750.335a(2)(b). The trial court sentenced defendant to two years’ probation, 11 months of
which is to be served in jail. The trial court also indicated that defendant was required to register
as a sex offender, pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.,
“IF REQUIRED BY LAW[.]” We affirm defendant’s conviction and remand for amendment of
the judgment of sentence.
I. Basic Facts
Defendant was seen walking in an alley toward a childcare center where 20 children
ranging from one to five years of age were playing in the yard. Two employees of the center saw
defendant approach the fence, pull down his pants, expose his penis, and masturbate. Following
a bench trial, the trial court found that defendant had pulled his pants down near the fence of the
childcare center, faced the children who were in the yard, exposed his genitals, and masturbated
before them.
II. Analysis
Defendant argues that the trial court erred in requiring him to register as a sex offender.
We disagree. We review de novo issues regarding the construction and application of the
SORA. People v Golba, 273 Mich App 603, 605; 729 NW2d 916 (2007).
When construing a statute, our primary goal is “‘to discern and give effect to the
Legislature's intent.’” People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006), quoting
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). We examine the plain language of
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the statute, and where it is unambiguous, “we presume that the Legislature intended the meaning
clearly expressed” and enforce the statute as written. Id.
An individual who is convicted of a “listed offense” after October 1, 1995, is required to
register as a sex offender. MCL 28.723(1)(a); Golba, supra at 605. A violation of MCL
750.335a(2)(b) is a listed offense if the offender was previously convicted of violating that
section. MCL 28.722(e)(iii). The parties agree that defendant’s conviction for aggravated
indecent exposure does not constitute a listed offense under this subsection because he has no
prior convictions under MCL 750.335a. However, the catchall provision in MCL 28.722(e)(xi)
provides that “[a]ny other 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” is a listed offense. MCL 28.722(e)(xi); Golba, supra at 605. This Court has explained:
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 state-law 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. [Id. at 607.]
Regarding the first element, defendant does not dispute that he was convicted of the statelaw violation of aggravated indecent exposure, MCL 750.335a(2)(b). This Court has held that
the second element of the catchall provision requires ‘“that conduct violating a state criminal law
or municipal ordinance [have] inherent qualities pertaining to or involving sex. . . .”’ Golba,
supra at 608, quoting People v Meyers, 250 Mich App 637, 647-648; 649 NW2d 123 (2002).
We must therefore assess the conduct underlying defendant’s conviction. Golba, supra at 609610. MCL 750.335a(2)(b) prohibits one from fondling his genitals, pubic area, or buttocks,
while knowingly making an open or indecent exposure of his person. Random House Webster’s
College Dictionary (1997) defines the term “fondle” as “to molest sexually by touching,
stroking, etc.” Aggravated indecent exposure therefore includes criminal conduct that is by
definition sexual in nature, and the conduct at issue included defendant masturbating in front of
20 children. Accordingly, defendant’s conduct was by its nature a sexual offense, thereby
satisfying the second element of MCL 28.722(e)(xi). See Golba, supra at 607. With respect to
the third element of the catchall provision, the children to whom defendant exposed himself were
all substantially below 18 years old. Id. at 605. Because defendant’s violation satisfies the
elements of MCL 28.722(e)(xi), we conclude that it is a listed offense requiring registration as a
sex offender pursuant to MCL 28.723(1)(a).
Defendant maintains that, if the Legislature had intended that the first offense of
aggravated indecent exposure require registration where the victim was less than 18 years old, it
would have listed MCL 750.335a(2)(b) in MCL 28.722(e)(iii) with the phrase, “if the victim is
an individual less than 18 years of age,” as it did in many other listed offenses. See, e.g., MCL
28.722(e)(ii), (e)(v), (e)(vi), and (e)(viii). We are not persuaded. The Legislature’s failure to add
such a phrase to MCL 28.722(e)(iii) merely demonstrates its intention to require registration for
subsequent aggravated indecent exposure convictions under MCL 750.335a, regardless of the
victim’s age.
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Defendant also maintains that the Legislature did not intend the catchall provision of
MCL 28.722(e)(xi) to apply to first offenses of aggravated indecent exposure because it limited
MCL 28.722(e)(iii) to violations where the defendant has previously been convicted under MCL
750.335a. The Legislature is presumed to enact laws in harmony with existing laws. People v
Rahilly, 247 Mich App 108, 112; 635 NW2d 227 (2001). “The omission of a provision from one
part of a statute that is included in another part of a statute must be construed as intentional.” Id.
Therefore, if two statutes “relate to the same subject or share a common purpose”, they are “in
pari materia and must be interpreted together.” Id. When subsection (e)(iii) was added in 2005,
the catchall provision of subsection (e)(xi) was already in existence as subsection (e)(x). See
2005 PA 301. Therefore, the Legislature’s omission of a first aggravated indecent exposure
offense against victims less than 18 years old from subsection (e)(iii) must be construed as
intentional. Rahilly, supra at 112. Further, such an addition to MCL 28.722(e)(iii) would have
constituted surplusage, which is a construction we must avoid. Id.
Defendant also contends that the trial court failed to comply with MCL 769.1(13), which
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 the [SORA], 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) 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.[1] [See also
Golba, supra at 606.]
Defendant was sentenced for an offense pursuant to the catchall provision of MCL 28.722(e)(xi).
Therefore, the trial court was required to make a determination regarding whether the offense
was a violation that, by its nature, constitutes a sexual offense against a victim less than 18 years
of age and include the basis for that determination on the record. The trial court found that
defendant pulled down his pants, intentionally faced the children, made an open and indecent
exposure of his genitals, and masturbated in front of the children. The trial court did not
specifically state that defendant’s offense constituted a sexual offense against a victim less than
18 years of age or state that these findings were the basis for that determination. However, its
findings were sufficient to serve as that basis, and, as we have determined, supra, the offense of
aggravated indecent exposure necessarily includes conduct that is sexual in nature.
At sentencing, the trial court stated:
1
MCL 769.1(13) references MCL 28.722(d)(x), the catchall provision, which was renumbered as
MCL 28.722(e)(xi) by amendments in 2002 and 2005. People v Golba, 273 Mich App 603, 605606 nn 1-2; 729 NW2d 916 (2007).
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If it is determined by law that you are required to register under the
Michigan Sex Offender [sic] Registration Act, you’ll have to do that. Based on
the representation that has been made to me, it falls outside that requirement. So
if the law does not require it, then obviously you shouldn’t do that.
Similarly, the judgment of sentence provides, “IF REQUIRED BY LAW MUST REGISTER AS
SEX OFFENDER.” The trial court failed to include a determination regarding whether
defendant’s conviction was a violation that, by its nature, constitutes a sexual offense against a
victim less than 18 years of age. We therefore remand for amendment of the judgment of
sentence to reflect that defendant’s conviction is a violation of a state law that constitutes a
sexual offense against individuals less than 18 years of age.
We affirm defendant’s conviction and remand for amendment of the judgment of
sentence. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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