PEOPLE OF MI V BRADFORD A SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 9, 1998
Plaintiff-Appellee,
v
No. 199445
Oakland Circuit Court
LC No. 95-138528 FC
BRADFORD A. SMITH,
Defendant-Appellant.
Before: MacKenzie, P.J., and Hood and Hoekstra, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction, on plea of guilty, to first-degree criminal
sexual conduct, MCL 750.520b; MSA 28.788(2). The plea was the product of a sentence bargain,
and defendant received in due course punishment as per the agreement. In this appeal, defendant claims
only that the trial court erred in failing to excise a portion of the presentence report. This appeal is being
decided without oral argument pursuant to MCR 7.214(E). We affirm.
The relevant portion of the presentence report was a summary of statements made by
defendant’s former spouse, alleging that before committing the offense of which he stands convicted,
which involved sexual intercourse with his 15-year-old adopted daughter, defendant had displayed a
propensity for sexually molesting underage females, particularly those subject to his control. It was
asserted that such incidents of sexual harassment occurred at three prior places of employment. The
presentence investigator reported, however, that no police reports of such incidents existed, and
defendant’s previous places of employment “would reveal no information regarding his employment
record or termination from said employment.”
Defendant may challenge the accuracy or relevancy of information contained in a presentence
report. MCL 771.14(5); MSA 28.1144(5); MCR 6.425(D)(3). Here, since defendant stands
convicted of a criminal sexual conduct offense involving a minor female subject to his parental authority,
allegations that defendant similarly misused positions involving economic authority or control to sexually
abuse minor females are relevant both to the sentence to be imposed and to prospects for rehabilitation
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and thus to future parole. Accordingly, the trial court did not abuse its discretion in refusing to strike this
information from the presentence report on the ground that the material is irrelevant.
To challenge the information for inaccuracy, defendant bears the burden of going forward with
an effective challenge. People v Walker, 428 Mich 261, 268; 407 NW2d 367 (1987). Once an
effective challenge has been made, the burden of proof is on the prosecution to establish disputed facts
by a preponderance of the evidence. Here, defendant has failed to make an effective challenge. Other
than an assertion that the former spouse had “an axe to grind,” defendant did not challenge the accuracy
of the presentence investigator’s summary of her remarks. Defendant effectively conceded that his
former spouse had made such statements.
To challenge the accuracy of the statements themselves, defendant needed to come forward
with some information to suggest that those allegations were false. The presentence investigator had
been unable to confirm or refute those allegations because defendant’s former employers would not
release information. To mount an effective challenge, defendant would have had to either produce
representatives of those employers to give testimony, which testimony would be privileged from possible
civil liability, Pasoto v Hancock, 41 Mich App 622; 200 NW2d 777 (1972), or to provide signed
releases authorizing the employers to provide the information and waive any associated privilege of
confidentiality or claim for negligence, defamation, or similar liability. Defendant failed to rebut the
presumption that he had some control over that information, even though it was in the hands of third
persons, and on this record he failed to mount an effective challenge warranting an evidentiary hearing
or, in the alternative, striking of the information from the presentence report. The trial court did not
abuse its discretion in finding that defendant failed to establish grounds to amend the presentence report.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Harold Hood
/s/ Joel P. Hoekstra
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