PEOPLE OF MI V JEFFRY GENE ANDERSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 19, 2009
Oakland Circuit Court
LC No. 2006-208387-FH
JEFFRY GENE ANDERSON,
Advance Sheets Version
Before: Wilder, P.J., and Meter and Fort Hood, JJ.
Defendant appeals by delayed leave granted his plea-based conviction of aggravated
assault, MCL 750.81a. Defendant was sentenced to 183 days in jail and two years’ probation.
On appeal, he challenges only the provisions of the judgment of sentence requiring him to
register as a sex offender and to have no contact with minor children under the age of 16. We
As an introductory matter, defendant argues that that the relevant published caselaw
regarding whether he should have been ordered to register as a sex offender is not binding.
Specifically, he contends that this Court is not bound by People v Meyers, 250 Mich App 637,
649; 649 NW2d 123 (2002), which held that a trial court should consider the facts of the
particular offense of which a defendant is convicted in determining if the offense constitutes a
sexual offense under the Sex Offenders Registration Act (SORA) catchall provision, MCL
28.722(e)(xi). Defendant contends that this is because the Michigan Supreme Court, in People v
Althoff, 477 Mich 961; 724 NW2d 283 (2006) (Althoff I), declared that holding to be dictum.
Further, defendant argues that People v Golba, 273 Mich App 603; 729 NW2d 916 (2007), and
People v Althoff (On Remand), 280 Mich App 524; 760 NW2d 764 (2008) (Althoff II), are not
binding because the panel in Golba, supra at 610, erroneously stated that it was bound by the
Meyers decision, and the panel in Althoff II, supra at 534, in turn stated that it was bound by the
erroneous Golba decision. We disagree.
Although the Michigan Supreme Court declared that the relevant Meyers holding was
dictum, defendant’s argument that Golba and Althoff II are not binding is misguided. The panel
in Golba did state that it was bound by Meyers. Golba, supra at 610. However, critically, in its
own independent analysis, the panel in Golba concluded that it agreed with the holding in
Meyers. Id. at 611. The Althoff II panel noted that the Meyers holding had been deemed dictum
and that Golba had erroneously concluded that it was bound to follow the Meyers holding.
Althoff II, supra at 534. However, the Althoff II panel still concluded that it was bound by the
Golba panel’s statutory interpretation. Id. Therefore, pursuant to MCR 7.215(J)(1), the holdings
in the published decisions of Golba and Althoff II bind us.
Defendant argues that even if the underlying factual circumstances are considered, there
is no record support for concluding that his aggravated assault, by its nature, constituted a sexual
offense. We disagree.
The construction and application of SORA, MCL 28.721 et seq., presents a question of
law that is reviewed de novo on appeal. Golba, supra at 605. Additionally, this Court reviews
the “underlying factual findings of the trial court at sentencing for clear error.” Id. at 613.
“Clear error exists when the reviewing court is left with the definite and firm conviction that a
mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993).
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).” Golba, supra at 605. The term “convicted” is
defined in MCL 28.722(a)(i) as “[h]aving a judgment of conviction or a probation order entered
in any court having jurisdiction over criminal offenses[.]” The term “listed offense” is defined
by MCL 28.722(e) to include violations of specific statutes, but aggravated assault is not a listed
offense. However, the act also 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
The catchall 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.” Althoff II, supra at 532 (citations and quotation marks
omitted). The second condition is not to be determined solely by reference to the legal elements
of the offense of which the defendant was convicted. Id. at 532-534. Rather, “the particular
facts of a violation are to be considered in determining whether the violation ‘by its nature
constitutes a sexual offense against an individual who is less than 18 years of age’ under MCL
28.722(e)(xi).” Althoff II, supra at 534.
In this case, defendant pleaded guilty of aggravated assault, which is not a listed offense,
but is a state law violation under MCL 750.81a. Also, it is undisputed that the victim was less
than 18 years old at the time of the assault. Therefore, the remaining question is whether the
assault, by its nature, constituted a sexual offense.
When applying SORA, “a sentencing court may consider all record evidence in
determining if a defendant must register under SORA, as long as the defendant has the
opportunity to challenge relevant factual assertions and any challenged facts are substantiated by
a preponderance of the evidence.” Althoff II, supra at 541-542. Defendant argues that the record
for the underlying facts must be developed through the trial process or through admissions under
the minimum standards of due process. However, judicial fact-finding outside of the avenues of
trial or admissions does not violate due process because SORA is a remedial regulatory scheme
that furthers a legitimate state interest of public safety, and compliance with the statute is not a
punishment. Id. at 540.
The factual basis for defendant’s plea was that he touched the victim and it caused harm
to her. According to defendant, the touching took place from the summer of 2003 to November
2005. The testimony of the seven-year-old victim at the preliminary examination, which is part
of the record evidence, .indicated that defendant had touched her underneath her underwear on at
least nine occasions. These incidents took place in either her mother’s bedroom at night or in
defendant’s car when he drove the victim to school. Defendant was able to challenge this
testimony through cross-examination at the preliminary examination. The victim’s mother
testified that the victim had recanted on three occasions. Despite the mother’s testimony, the
evidence showed by a preponderance of the evidence that the aggravated assault, by its nature,
constituted a sexual offense. Defendant admitted to touching the victim in a harmful way over a
period of approximately a year and a half and the victim’s description of the touching, which was
the only basis for establishing how the touching occurred, indicated it was of a sexual nature.
Therefore, the trial court did not err by ordering defendant to register as a sex offender.
Defendant also argues that the trial court erred by relying on his polygraph examination
as a part of its rationale for ordering him to register as a sex offender. First, this issue was not
properly presented for appeal because it was not raised in the statement of questions presented in
defendant’s appellate brief. MCR 7.212(C)(5); City of Lansing v Hartsuff, 213 Mich App 338,
351; 539 NW2d 781 (1995).
At any rate, we find no merit to defendant’s argument.1 It is true that, generally, a court
may neither solicit nor consider polygraph-examination results for sentencing, People v Towns,
69 Mich App 475, 478; 245 NW2d 97 (1976), and the consideration of polygraph-examination
results is generally considered error that requires resentencing, People v Allen, 49 Mich App 148,
151-152; 211 NW2d 533 (1973). However, significantly, defendant does not request a full
resentencing. He only argues that he should not have been required to register as a sex offender
on the basis of information relating to the polygraph examination. As noted above, SORA is
merely a remedial regulatory scheme and compliance with the statute is not a punishment.
Althoff II, supra at 540. Moreover, the record does not suggest that the trial court relied on the
polygraph-examination results in making its finding about the underlying facts of defendant’s
conviction. Defendant admitted committing aggravated assault and the trial court relied on the
remainder of the record to determine that the underlying circumstances of the assault were
inherently sexual. Appellate relief is unwarranted.
We note that there is no indication from the record that the trial court relied on defendant’s
polygraph examination in deciding whether to order defendant to register as a sex offender.
Although the trial court made the unorthodox offer for defendant to take a polygraph
examination and indicated that if the results were favorable, they would be considered for
sentencing, the results were not a part of the presentence investigation report and defense counsel
only mentioned to the trial court that the results were “unfavorable.”
Finally, while not making any argument in the body of his appellate brief regarding the
probation provision involving the prohibition of contact with children less than 16 years of age,
defendant includes a request for relief from that part of his probation. However, defendant was
discharged from his probation on September 19, 2008. Therefore, because defendant is no
longer subject to the challenged condition of his probation, this issue is moot. Detroit v
Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008). Accordingly, we decline to
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Karen M. Fort Hood