PEOPLE OF MI V JEFFREY MARTIN FRAUNHOFFER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 18, 2010
Plaintiff-Appellee,
v
No. 287662
Monroe Circuit Court
LC No. 07-036401-FH
JEFFREY MARTIN FRAUNHOFFER,
Defendant-Appellant.
ON RECONSIDERATION
Before: Sawyer, P.J., and Saad and Shapiro, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction following a jury trial of disseminating
sexually explicit matter to minor, MCL 722.675, and three counts of allowing the consumption
of alcoholic liquor in an unlicensed commercial establishment, MCL 436.1913(2). Defendant
was sentenced to serve 330 days in jail, with 240 days to be served immediately, and 90 days to
be served at the end of a two-year probation period if deemed necessary by the court. The trial
court also required defendant to register as a sex offender under the Sex Offender Registration
Act (SORA), MCL 28.721 et seq. We affirm defendant’s convictions and sentences but remand
for further proceedings under SORA.
First, defendant argues that the prosecution failed to present sufficient evidence to
support defendant’s conviction of disseminating sexually explicit matter to a minor. We
disagree. When reviewing a sufficiency challenge, we consider the matter “de novo, in a light
most favorable to the prosecution, to determine whether the evidence would justify a rational
jury’s finding that the defendant was guilty beyond a reasonable doubt.” People v McGhee, 268
Mich App 600, 622; 709 NW2d 595 (2005). All conflicts in the evidence must be resolved in
favor of the prosecution, People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), and to
not visit anew the issue of witness credibility, People v Milstead, 250 Mich App 391, 404; 648
NW2d 648 (2002).
MCL 722.675 provides as follows:
(1) A person is guilty of disseminating sexually explicit matter to a minor
if that person does either of the following:
(a) Knowingly disseminates to a minor sexually explicit visual or verbal
material that is harmful to minors.
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(b) Knowingly exhibits to a minor a sexually explicit performance that is
harmful to minors.
(2) A person knowingly disseminates sexually explicit matter to a minor if
the person knows both the nature of the matter and the status of the minor to
whom the matter is disseminated.
(3) A person knows the nature of matter if the person either is aware of its
character and content or recklessly disregards circumstances suggesting its
character and content.
(4) A person knows the status of a minor if the person either is aware that
the person to whom the dissemination is made is under 18 years of age or
recklessly disregards a substantial risk that the person to whom the dissemination
is made is under 18 years of age.
Thus, in order to prove someone guilty of disseminating sexually explicit matter to minor, a
prosecutor must establish that: (1) defendant knowingly disseminated to a minor sexually
explicit visual or verbal material that is harmful to minors, or knowingly exhibited to a minor a
sexually explicit performance that is harmful to minors; (2) defendant was aware of the
material’s sexually explicit character and content, or recklessly disregarded circumstances
suggesting its character and content; and (3) defendant was either aware that the person to whom
the dissemination is made is under 18 years of age, or recklessly disregarded a substantial risk
that the person to whom the dissemination is made is under 18 years of age. MCL 722.675.
Contrary to defendant’s assertion, there is nothing in the statute that requires that the
minor be “the target of defendant’s dissemination.” On the contrary, the statute itself defines
disseminate as “to sell, lend, give, exhibit, show, or allow to examine or to offer or agree to do
the same.” MCL 722.671(b). Random House Webster’s College Dictionary defines “exhibit” as
“to offer or expose to view.” Random House Webster’s College Dictionary (1997). It defines
“show” as “to cause or allow to be seen; exhibit; display.” Thus, the statute requires that
defendant knowingly exposed sexually explicit matter to a minor’s view or allowed a minor to
see sexually explicit matter.
Defendant’s conviction of one count of disseminating sexually explicit matter to minor
was based on defendant showing “Men and Women engaging in various sexual acts” on a TV in
his restaurant, with knowledge that his minor employees were present and able to view the
material. Jessica Jagielski testified that she was 17 when she worked at Jefana’s. Jagielski said
that one day at work, she and Brauer walked in and saw that the TV behind the bar was tuned to
a channel that showed homemade videos where couples were throwing pies at each other,
engaging in oral and vaginal sex, and using a “sexual tool” while engaging in sex. Jagielski
testified that defendant was sitting at the bar watching the TV. Jagielski said she knew that
defendant turned the show on “because [she] watched him with the remote, and [the remote] was
also right in front of him.” Jagielski said that defendant would change the channel (and then
change it back) when he would see cars stopped outside or people walk by the restaurant. She
testified that she could see the couple’s genitalia and the women’s breasts. During the incident
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she was “right around” defendant, who was seven or eight feet away from the TV. According to
Jagielski, the show was on for 20 or 25 minutes.
Tiara Brauer testified that she was 18 years old when she worked at Jefana’s. Brauer
stated that she was with Jagielski when they saw and heard videos of sexual intercourse, sex
toys, and throwing pies. Brauer said she was able to see male and female genitalia and women’s
breasts. Brauer testified that defendant had the remote control in front of him, and he would flip
back and forth between channels when people would walk by the restaurant. Bauer said that she
and Jagielski told defendant the show was gross and that he should turn it off. Brauer recalled
that defendant “just kind of laughed it off,” and told them not to tell anybody, especially his wife,
or they would be fired.
David Young, who worked as a cook at Jefana’s, testified that one night close to closing
time he saw people having sex on the TV screen. Young said that there were waitresses present,
but he could not remember which ones. Jordan Barnett, who played piano at Jefana’s, testified
that he saw a show with homemade videos playing on the TV. Barnett said that while the show
was playing, defendant said to the girls, “what do you think about that,” apparently referring to
the videos.
Alicia Parks testified that she was 15 years old when she worked at Jefana’s. Parks said
that one night she saw defendant change the TV to a channel where a naked woman was having
sexual intercourse. Parks said she asked defendant to change the TV back to the music station,
which he did in less than a minute. According to Parks, prior to turning the pornography on,
defendant said, “Yes, [I] did it, and [I’ll] do it again, [I’ll] turn it on.”
Based on this evidence, and despite defendant’s denials under oath, a rational jury could
have found that defendant knowingly disseminated sexual material to a minor. Based on
Brauer’s testimony that she and Jagielski asked defendant to turn the pornography off, a rational
juror could find that at that point, defendant was deliberately or intentionally allowing Jagielski
to see the pornography when he did not turn it off. Additionally, a rational juror could conclude
the same from Jagielski’s testimony that she was “right around” defendant, who was about seven
or eight feet away from the TV that was showing pornography, or from Brauer’s testimony that
defendant knew that she and Jagielski were able to see the TV that was showing pornography.
Moreover, it is difficult to see how defendant could not have been deliberately allowing Jagielski
and Parks to see the pornography when Barnett testified that defendant specifically asked the
girls what they thought about the pornography they were watching.
In sum, viewing the evidence in a light most favorable to the prosecution, the evidence
was sufficient for a rational jury to find defendant guilty beyond a reasonable doubt of
disseminating sexually explicit matter to minor.
Defendant next argues that his convictions must be reversed because evidence of other
acts was improperly admitted under MRE 404(b), and because the prosecution failed to file a
proper notice of intent to introduce the other acts in accordance with MRE 404(b)(2). We
disagree. Because defendant failed to raise these arguments below, review is limited to plain
error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 766-767; 597
NW2d 130 (1999).
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MRE 404(b)(1) prohibits “evidence of other crimes, wrongs, or acts” to prove a
defendant’s character or propensity to commit the charged crime. However, under MRE
404(b)(1), evidence of prior bad acts is admissible if (1) the evidence is offered for something
other than a character or propensity theory, (2) is relevant under MRE 402, and (3) its probative
value is not substantially outweighed by unfair prejudice under MRE 403. People v Knox, 469
Mich 502, 509; 674 NW2d 366 (2004).
I. DISSEMINATING SEXUALLY EXPLICIT MATTER
Barnett’s testimony on this matter is outlined above. Bernard Beneteau testified that one
morning after he ate breakfast he saw naked women on the TV. He was told it was the Playboy
Channel. According to defendant, the restaurant did not have cable or satellite service at the time
the pornography incidents allegedly took place. Beneteau and Barnett’s testimony that they saw
sexually explicit matter on the TV was offered to show that defendant had an opportunity to
commit the crime. This was a proper purpose for its admission, and the relevance of the
testimony to this question is clear. MRE 402.
This testimony was also relevant under MRE 402 because the crime of disseminating
sexually explicit matter to minor requires that a person “knowingly” disseminate sexually
explicit matter. MCL 722.675. This requires that the person “knows the nature of the matter” by
either being “aware of its character and content or recklessly disregard[ing] circumstances
suggesting its character and content.” MCL 722.675(3). Thus, the evidence that defendant
watched sexually explicit matter on other occasions was probative of this element because it
would help the jury decide whether defendant was aware of the Playboy Channel’s character and
content when he turned the TV to that channel during the charged offenses. MCL 722.675(3).
Further, the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice under MRE 403. Evidence is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the jury.
People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). Here, the evidence was
significantly probative of defendant’s opportunity to commit the crime and knowledge of the
character and content of the matter disseminated. These were principal issues at trial.
Furthermore, the trial court instructed the jury on the proper use of this evidence, and we
presume that they adhered to this instruction. People v Mette, 243 Mich App 318, 330-331; 621
NW2d 713 (2000). Thus, there was no plain error in admitting this evidence.
II. CONSUMPTION OF ALCOHOLIC LIQUOR
IN AN UNLICENSED COMMERCIAL ESTABLISHMENT
The prosecution charged defendant with three counts of allowing the consumption of
alcoholic liquor in an unlicensed commercial establishment. The prosecution based the three
charges on incidents where Jagielski, Brauer, and Cullen served alcohol to customers. The
allegedly impermissible testimony is as follows. Young testified that he saw defendant serve
beer to customers one time. Barnett said that he saw defendant serve customers red wine three to
five times. According to Barnett, defendant kept the wine, which defendant referred to as “grape
juice,” under the counter, behind the bar. Parks testified that defendant told her to come get him
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whenever somebody requested liquor; however, she never had a situation like that so she never
saw him serve alcohol.
The challenged evidence was offered to show that defendant had a common scheme,
plan, or system of doing an act, which is a proper purpose under MRE 404(b)(1). The
challenged evidence shows that defendant instructed the waitresses to come get him when a
customer would ask for alcohol. Defendant would then get the alcohol from behind the bar and
pour it himself. After pouring the alcohol, which defendant referred to as “grape juice,”
defendant or a waitress would serve it to the customer. The uncharged acts were sufficiently
similar to the charged acts to show a common scheme, plan, or system and were therefore
permissibly offered under MRE 402 on a contested issue at trial.
Additionally, the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice under MRE 403. Here, the evidence was significantly probative of
whether defendant served alcohol to customers using a common scheme or plan, and that he
employed that plan in the charged offenses. This was a principal issue at trial. Additionally, the
trial court instructed the jury on the proper use of this evidence, which, again, they are presumed
to have followed, Mette, 243 Mich App at 330-331. Thus, there was no plain error in admitting
this evidence.
Defendant’s argument that his trial counsel was ineffective for failing to object to the
introduction of the allegedly impermissible evidence is without merit. Because the trial court
correctly admitted the other acts evidence, defense counsel was not ineffective for failing to
lodge a meritless objection to its admissibility. People v Thomas, 438 Mich 448, 457; 475
NW2d 288 (1991).
Defendant also argues that the prosecution’s notice of intent to introduce other acts in
accordance with MRE 404(b)(2) was no notice at all, but was a laundry list of any and all
possible bases for admission of other acts evidence. Because defendant failed to object at trial,
review is limited to plain error affecting defendant’s substantial rights. Carines, 460 Mich at
766-767.
MRE 404(b)(2) states:
The prosecution in a criminal case shall provide reasonable notice in
advance of trial . . . of the general nature of any such evidence it intends to
introduce at trial and the rationale, whether or not mentioned in subparagraph
(b)(1), for admitting the evidence. If necessary to a determination of the
admissibility of the evidence under this rule, the defendant shall be required to
state the theory or theories of defense, limited only by the defendant’s privilege
against self-incrimination.
The prosecution’s notice indicated that it intended to offer evidence regarding defendant
playing pornographic material and allowing the consumption of alcohol on occasions other than
the charged incidents. The notice further indicated that “these statements are contained within
the police report and preliminary examination transcripts” and are admissible to show “motive,
opportunity, intent, preparation, scheme, plan or system in doing an act, or his knowledge,
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identity, or absence of mistake or accident relative to the charged offenses.” This notice of intent
provided reasonable notice in advance of trial of the general nature of the proposed evidence, and
the rationale for its admission.
Defendant also argues that the court erred in requiring him to register under SORA
because disseminating sexually explicit matter to minor is not by its nature a sexual offense. The
construction and application of the SORA is a question of law that this Court reviews de novo.
People v Golba, 273 Mich App 603, 605; 729 NW2d 916 (2007).
Under the SORA, an individual convicted of a listed offense after October 1, 1995, is
required to register as a sex offender. People v Anderson, 284 Mich App 11, 13; 772 NW2d 792
(2009). “Listed offense” is defined by MCL 28.722(e), and includes a “catchall” provision that
requires registration for “[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.” MCL 28.722(e)(xi); see Anderson, 284 Mich App at 14. In this case, the trial
court determined that the catchall provision requiring defendant to register as a sex offender
applied.
This provision requires the simultaneous existence of three conditions: “(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.” Golba, 273 Mich App at 607. There is no dispute that
defendant was convicted under state law and that Jagielski was under the age of 18 at the time of
the charged act. Defendant’s argument is that (1) the violation was not by its nature a sexual
offense, and (2) the violation was not against an individual who is less than 18 years of age.
Whether the violation by its nature constitutes a sexual offense “is not to be determined
solely by reference to the legal elements” of the convicted offense. Anderson, 284 Mich App at
14. Instead, the Court must look to the particular facts of the violation. People v Althoff, 280
Mich App 524, 534; 760 NW2d 764 (2008). However, “[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.” People v Meyers, 250 Mich App 637, 647; 649 NW2d
123 (2002)
Here, there is little doubt that the violation was by its nature a sexual offense. First, the
state criminal law that defendant violated, disseminating sexually explicit matter to minor, MCL
722.675, clearly has inherent qualities pertaining to or involving sex. The statute prohibits a
person from knowingly disseminating to a minor sexually explicit visual or verbal material that
is harmful to minors. MCL 722.675. Disseminating sexually explicit matter to minor therefore
includes criminal conduct that is by definition sexual in nature. Second, the conduct at issue
concerned defendant allowing a minor to see a video of men and women engaging in various
sexual acts. Thus, defendant has committed an inherently sexual offense for purposes of the
SORA. See Golba, 273 Mich App at 607.
Defendant’s violation was also against an individual who is less than 18 years of age. As
noted above, there is no dispute that Jagielski was under the age of 18 at the time of the charged
act. In Althoff, this Court examined the term “against” in the context of MCL 28.722(e)(xi):
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The general definition of the term “against” is broad, and indicates that,
under MCL 28.722(e)(xi), the offense must be “in opposition or hostility to” the
individual. We find the term “against” to be no less inclusive than the term
“victim,” which is defined as a “person harmed by a crime, tort, or other wrong”
in Black’s Law Dictionary (8th ed), or as a person who “is acted on and usually
adversely affected by a force or agent” in Merriam-Webster’s Collegiate
Dictionary (2007). Furthermore, as indicated earlier, this Court has already
interpreted the language in MCL 28.722(e)(xi) to mean that “the victim of the
violation must be under 18 years of age.” See Golba [273 Mich App] at 607.
[Althoff, 280 Mich App at 536-537.]
Based on the interpretation of this statute by Althoff and Golba, a violation is against a minor if
the violation caused harm to a minor. Contrary to defendant’s assertion, there is no requirement
that defendant deliberately intended harm or, as in this case, that defendant forced the minor to
look at the sexually explicit material. All that is required is that the violation caused harm to a
person under the age of 18. Id.
MCL 722.675 prohibits one from “[k]nowingly disseminat[ing] to a minor sexually
explicit visual or verbal material that is harmful to minors.” Accordingly, defendant’s conduct in
violating this statute by definition caused harm to a minor. Moreover, Jagielski testified that she
felt “[v]iolated and embarrassed” while the sexually explicit material was playing. Under these
circumstances, defendant’s violation was against a minor because the violation caused harm to
Jagielski, a person under the age of 18.
Defendant also argues that the trial court failed to comply with MCL 769.1(13), which
states as follows:
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 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) 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)
(emphasis added).]
In this case, the trial court determined that the catchall provision requiring defendant to
register as a sex offender applied. Thus, the court was required to make a determination 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 and include the
determination in the judgment of sentence.” MCL 769.1(13). Considering the record, the trial
court failed to include on the record the basis for its determination that the violation was by its
nature a sexual offense against Jagielski. The trial court’s statements about the matter at
sentencing were not sufficient to satisfy the dictates of MCL 769.1(13).
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We affirm defendant’s convictions and sentences. The case is remanded to the trial court
so that it may analyze the facts of this particular case and make a record, as required by MCL
769.1(13), as to why defendant should be subject to the SORA catchall provision. We retain
jurisdiction.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Douglas B. Shapiro
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