People v. Costner

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

February 19, 2015

Plaintiff-Appellee, 9:00 a.m.

v No. 316806

Berrien Circuit Court

EVANS COSTNER, III, LC No. 2009-004980-FH

Defendant-Appellant.

Before: BOONSTRA, P.J., and DONOFRIO, J. and GLEICHER, JJ.

DONOFRIO, J.

Defendant appeals by leave granted an order denying his motion to be removed from

Michigan’s sex-offender registry. Because defendant was more than four years older than the

victim in this case and because requiring him to register as a sex offender was not cruel or

unusual punishment, we affirm.

Defendant pleaded guilty to attempted third-degree criminal sexual conduct (victim at

least 13 but under 16 years of age), MCL 750.520d(1)(a). Defendant’s conviction arises from a

consensual act of sexual intercourse engaged in when he was 18 years of age and the victim was

14 years of age. With defendant being born on February 21, 1991, and the victim being born on

March 16, 1995, the age difference between the two of them is 4 years and 23 days. Defendant

was sentenced on December 14, 2009, to a probationary sentence of 36 months under the

Holmes Youthful Trainee Act (HYTA), MCL 762.14.

On March 2, 2010, defendant pleaded guilty to violating the terms of his probation by

using marijuana and possessing drug paraphernalia. The trial court sentenced defendant on the

probation violation to 13 days in jail and continued both defendant’s probation and HYTA status.

Defendant was also ordered to successfully participate in and complete the Kalamazoo Probation

Enhancement Program (KPEP).

On March 16, 2010, defendant pleaded guilty to violating the terms of his probation by

breaking his curfew and by going AWOL from the KPEP. The trial court revoked defendant’s

HYTA status and ordered him to comply with the Sex Offender Registration Act (SORA), MCL

28.721 et seq. The trial court further sentenced defendant to 60 days in jail and ordered him to

return to and complete KPEP once the jail term was served. Defendant’s probation was

continued.

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On January 25, 2011, defendant, yet again, pleaded guilty to violating the terms of his

probation, this time for having contact with, or attempting to have contact with, a female under

the age of 17. The trial court revoked defendant’s probation and sentenced defend to six months

in jail.

Defendant subsequently petitioned to be removed from the sex-offender registry pursuant

to MCL 28.728c(14), which provides, in pertinent part, as follows:

The court shall grant a petition properly filed by an individual under

subsection (3) if the court determines that the conviction for the listed offense was

the result of a consensual sexual act between the petitioner and the victim and any

of the following apply:

(a) All of the following:

(i) The victim was 13 years of age or older but less than 16 years of age at

the time of the offense.

(ii) The petitioner was not more than 4 years older than the victim.

Defendant argued that because there is only a four-year difference between him and the victim’s

age, he necessarily was “not more than 4 years older” than her. Defendant relied on MCL 8.3j,

which defined “year” as “a calendar year.”

The trial court denied defendant’s petition and stated in its opinion:

This Court is not convinced that the term “year” as defined by MCL 8.3j is

the answer to the time computation in this statute, because the statute in issue

requires the petitioner (i.e. defendant) to be “not more than 4 years older than the

victim.” The phrase “not more than” limits the definition of the word “year”.

Therefore, because this Defendant is 23 days older than the 4 years required under

the Statute, I find that he does not meet the requirements set forth in MCL

27.728c and MCL 8.3j is not violated by this interpretation. [Footnote omitted.]

I. MCL 28.728c(14)

Defendant first argues on appeal that the trial court erred when it denied his petition

because under Michigan law, defendant was not more than four years older than the victim. We

review issues of statutory interpretation de novo. People v Zajaczkowski, 493 Mich 6, 12; 825

NW2d 554 (2012).

“[T]he intent of the Legislature governs the interpretation of legislatively enacted

statutes.” People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). The intent of the

Legislature is expressed in the statute’s plain language. People v Cole, 491 Mich 325, 330; 817

NW2d 497 (2012). When the statutory language is plain and unambiguous, the Legislature’s

intent is clearly expressed, and judicial construction is neither permitted nor required. Id. In

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construing statutes, this Court applies a reasonable construction of the statute, enforces clear

statutory language as written, and reconciles any apparent inconsistencies if possible. People v

Bulger, 291 Mich App 1, 5; 804 NW2d 341 (2010). If a statute specifically defines a term, the

statutory definition is controlling. People v Williams, 298 Mich App 121, 126; 825 NW2d 671

(2012). When “terms are not expressly defined anywhere in the statute, they must be interpreted

on the basis of their ordinary meaning and the context in which they are used.” Zajaczkowski,

493 Mich at 13. However, technical words and phrases that have acquired a peculiar and

appropriate meaning in law shall be construed and interpreted in accordance with that meaning.

See MCL 8.3a; Bylsma, 493 Mich at 31. Moreover, it is presumed that the Legislature is familiar

with the rules of statutory construction and that the Legislature is “aware of, and thus to have

considered the effect on, all existing statutes when enacting new laws.” People v Kosik, 303

Mich App 146, 158; 841 NW2d 906 (2013) (citation omitted, quotation omitted).

A 2011 amendment to the SORA allows an individual to petition the court for removal

from the sex-offender registry. Amongst its provisions, MCL 28.728c(14) allows for an

individual to be removed from the sex-offender registry if the underlying conviction involved an

act of consensual sex during a so-called “Romeo and Juliet” relationship, which provides, in

relevant part:

The court shall grant a petition properly filed by an individual under

subsection (3) if the court determines that the conviction for the listed offense was

the result of a consensual sexual act between the petitioner and the victim and any

of the following apply:

(a) All of the following:

(i) The victim was 13 years of age or older but less than 16 years at

the time of the offense.

(ii) The petitioner is not more than 4 years older than the victim.

The parties did not dispute that the sexual act for which defendant was convicted was

consensual. It was likewise undisputed that the victim “was 13 years of age or older but less

than 16 years at the time of the offense.” Thus, the parties’ arguments were focused on the

statutory requirement of whether defendant satisfied MCL 28.728c(14)(a)(ii) by being “not more

than 4 years older than the victim.” Defendant argued that he was eligible for removal from the

registry under that subsection because, with him being 18 and the victim being 14, there only

was four-year age difference. The prosecution argued that because defendant was actually four

years and 23 days older than the victim, he did not meet the requirements of MCL

28.728c(14)(a)(ii). In denying defendant’s petition, the trial court concluded that because

defendant was “23 days older than the 4 years required” pursuant to MCL 28.728c(14)(a)(ii), he

was not entitled to any relief.

There is no dispute that defendant actually is 4 years and 23 days older than the victim.

Thus, on its face, defendant is more than four years older than the victim, and he cannot satisfy

the requirements of MCL 28.728c(14)(a)(ii). Defendant, however, argues that this Court’s

implementation of the “birthday rule” in People v Woolfolk, 304 Mich App 450; 848 NW2d 169

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(2014), supports his position that he was only four years—and thus was not more than four

years—older than the victim.

In Woolfolk, this Court was confronted with whether the defendant, who was convicted

for committing a murder on the evening before his 18th birthday, id. at 458, should nonetheless

be considered 18 years old at the time of the murder. As the Court acknowledged, contrary to

common assumption or understanding, when computing a person’s age, common law provides

that a person “‘reaches his next year in age at the first moment of the day prior to the anniversary

date of his birth.’” Id. at 461, quoting Nelson v Sandkamp, 227 Minn 177, 179; 34 NW2d 640

(1948) (emphasis added). For example, under the common law, a person is considered to turn 18

years old the day before the 18th anniversary of his birth.

The Court, however, rejected the common law method of determining when a person

reaches a certain age and, instead, adopted the more commonly recognized method under the

“birthday rule,” where “a person attains a given age on the anniversary date of his or her birth.”

Woolfolk, 304 Mich App at 464, 504 (quotation marks omitted).

Defendant’s reliance on Woolfolk is misplaced. Woolfolk only pertained to the proper

method to calculate a person’s age. More specifically, it addressed when a person attains the

next age of his or her life. This concept has no application to the present issue. There is no

question that in the present case, at the time of the offense, defendant and the victim had attained

the ages of 18 and 14, respectively. Nothing in Woolfolk suggests that when determining

whether someone is “more than 4 years older” than someone else, one simply takes the

difference between both persons’ “year” age, thereby ignoring the persons’ actual age, which

includes not only how many years they have been alive, but also how many months and days. In

fact, Woolfolk even relied on Bay Trust Co v Agricultural Life Ins Co, 279 Mich 248; 271 NW

749 (1937), in which our Supreme Court, in the context of an insurance policy provision, held

that a person who was 60 years, 2 months, and 10 days old was “over the age of 60 years.”

Woolfolk, 304 Mich App at 498-499. The Supreme Court noted that “a year is a unit of time”

and that the deceased had lived “over, beyond, above, or in excess” of 60 years. Bay Trust Co,

279 Mich at 252. Likewise, defendant, being 4 years and 23 days older than the victim was

indeed “more than 4 years older than the victim.”

We find support for our view in other jurisdictions as well. In State v Marcel, 67 So3d

1223 (Fla App, 2011), the Florida appellate court was confronted with the same issue and

contained facts that are remarkably similar to the facts in the instant case. In Marcel, the

defendant was 18 and the victim was 14 at the time of the offense; defendant was designated a

sexual offender and subjected to reporting requirements based on his plea to a sex crime

requiring lifetime registration under Florida’s SORA. Id. at 1224. The defendant later filed a

petition seeking relief under Florida’s “Romeo and Juliet Law,” Fla Stat § 943.04354(1)(c)

(2007), which provided an exception to sex-offender registration for consensual conduct by

young people. Id. One of the criteria for relief under the Florida statute is that the defendant be

“not more than [four] years older than the victim of th[e] violation who was [fourteen] years of

age or older but not more than [seventeen] years of age at the time the person committed th[e]

violation.” Id. (quotation marks omitted).

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The Marcel court rejected the defendant’s argument that application of the “birthday

rule” resulted in him being no more than four years older than the victim because the difference

was only four years (18 minus 14). Id. Instead, according to the court, the birthday rule is only

used to compute a person’s age—it is not used in the calculation of time, which is what is called

for in the statute. Id. Therefore, as long as a defendant is one day past the four-year eligibility

limit prescribed by Florida statute, he is ineligible to petition for relief. Id. at 1225.

In State v Parmley, 325 Wis 2d 769; 785 NW2d 655 (Wis App, 2010), the Wisconsin

Court of Appeals also recently construed its SORA’s Romeo and Juliet exception. Like Marcel

and the instant case, the facts of Parmley involved a defendant who was 18 and a victim who

was 14 at the time of the offense. Id. at 772. After his conviction for second-degree sexual

assault of a child, the defendant filed a petition seeking removal from Wisconsin’s sex-offender

registration pursuant to Wis Stat § 301.45(1m) (2007-08), which, like the Michigan and Florida

statutes, requires the defendant to be “not more than 4 years older” than the victim. Id. at 775.

The trial court granted the request because, when looking only at the “year” ages of the

defendant and the victim, there was only a four-year difference. Id. at 774. On appeal, the

Parmley court reversed the trial court and concluded that

to calculate the disparity of ages required in Wis Stat § 301.45(1m)(a)2., to

determine if an actor is exempt from registering as a sex offender, the time

between the birth dates of the two parties is to be determined. Using this method

we first consider [the defendant’s] birthday of January 18, 1986, and then the

victim’s birthday of June 9, 1990. We conclude that there is a difference of four

years, four months and twenty-three days. Therefore, [the defendant] is more

than four years older than the victim. [Id. at 781.]

Defendant, on appeal, argues that these other cases are not persuasive because Michigan

has a statutory definition for the term “years.” MCL 8.3j provides that the word “year” means “a

calendar year; and the word ‘year’ alone shall be equivalent to the words ‘year of our Lord.’” A

“calendar year” is further defined as “[t]welve calendar months beginning January 1 and ending

December 31.” Black’s Law Dictionary (9th ed).

Defendant maintains that the definition of the word “year” as a “calendar year” should be

used for both calculating a length of time and age. Because defendant’s position is untenable, we

reject it. First, we note that the definitions provided in MCL 8.3j are to be used “unless such

construction would be inconsistent with the manifest intent of the legislature.” MCL 8.3. Here,

with the definition referencing a “calendar year” and “year of our Lord,” it is clear that these

definitions are only appropriate when referencing a particular date/year, not a unit or measure of

time. Therefore, because MCL 28.728c(14)(a)(ii) calls for the calculation of time, the definition

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provided in MCL 8.3j would be inconsistent with the manifest intent of the legislature, and we

will not use it.1

To illustrate how such a definition creates such an absurd result that it clearly violates the

Legislature’s intent, consider that under defendant’s view, MCL 28.728c(14)(a)(ii) would mean

the following: “The petitioner is not more than 4 calendar years older than the victim.”

Defendant argues that this definition means that any fraction of a year is simply truncated when

determining whether someone is four years older than someone else, thereby implying that a

calendar year is any 12-month period.2 Hence, defendant claims that he is only four years older

than the victim. But defendant is not using the definition he urges this Court to adopt. A

calendar year relates to a specific 12-month period (January through December) occurring in the

same numerical year. See Black’s Law Dictionary (9th ed). Thus, going by the strict letter of

the definition in MCL 8.3j, we first note that defendant was born on February 21, 1991, and the

victim was born on March 16, 1995. Using the “calendar year” definition, there would be only

three complete January-to-December periods between when the two were born (1992, 1993, and

1994). Thus, defendant would only be three “years” older than the victim. Such an

interpretation flies in the face of common sense. It is manifestly clear that the Legislature did not

intend for this extremely awkward (and entirely inaccurate) way to calculate whether someone

was more than four years older than someone else.3 Therefore, consistent with MCL 8.3, we

hold that the definition of MCL 8.3j has no application in MCL 28.728c(14)(a)(ii). See also

McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998) (“Statutes should be

construed so as to prevent absurd results . . . .”).

Instead, we hold that under MCL 28.728c(14)(a)(ii), when it inquires into whether a

defendant “is not more than 4 years older than the victim,” it is using the commonly understood

definition of a “year” as a measure of time, and a “year” is commonly understood as being 12

months in duration. See Random House Webster’s College Dictionary (1997) (defining “year,”

in pertinent part, as “a space of 12 calendar months calculated from any point”). Therefore, one

who is even one day past the 4-year or 48-month eligibility limit described in MCL

28.728c(14)(a)(ii) is ineligible to obtain relief under that statute. Consequently, defendant being

4 years and 23 days older than the victim in the present case is “more than 4 years older” than the

victim, and the trial court was correct to deny defendant’s petition.

1

We note that Wisconsin, which has an identical statutory definition of “year” as Michigan, also

has held that this definition does not apply when measuring time. Parmley, 325 Wis 2d at 776 n

3.

2

The dissent also applies this definition for “calendar year,” but as discussed, this definition is

not accurate.

3

An even more absurd result occurs if one considers the age difference between a defendant

born on January 2, 1990, and someone born on December 30, 1995. In reality, they are only

three days shy from being six years apart in age. But using the “calendar year” definition, the

defendant would only be four “years” older because there are only four calendar years between

their births (1991, 1992, 1993, 1994).

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II. CRUEL AND UNUSUAL PUNISHMENT

Defendant also argues that subjecting him to registration under the SORA is cruel and

unusual punishment, which violates his constitutional rights. Defendant never preserved this

issue by raising it at the trial court. People v Hogan, 225 Mich App 431, 438; 571 NW2d 737

(1997). Therefore, we review this unpreserved constitutional issue for plain error affecting

defendant’s substantial rights. People v Sands, 261 Mich App 158, 160; 680 NW2d 500 (2004).

The United States Constitution prohibits cruel and unusual punishment. US Const, Am

VIII. The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16,

and “[i]f a punishment ‘passes muster under the state constitution, then it necessarily passes

muster under the federal constitution.’” People v Benton, 294 Mich App 191, 204; 817 NW2d

599 (2011), quoting People v Nunez, 242 Mich App 610, 618-619 n 2; 619 NW2d 550 (2000).

But before determining whether a punishment is cruel or unusual, a “threshold question”

must be answered: does the complained-of punishment constitute “punishment” under the

constitution? In re Ayres, 239 Mich App 8, 14; 608 NW2d 132 (1999). The SORA requires

persons convicted of certain listed offenses to register as sex offenders. MCL 28.723. However,

this Court has held that this registration requirement is not “punishment.” People v Fonville, 291

Mich App 363, 381; 804NW2d 878 (2011), citing People v Golba, 273 Mich App 603, 617; 729

NW2d 916 (2007).

Although a defendant may see registration as a penalty for a conviction for

a listed offense, it is not actually a punitive measure intended to chastise, deter or

discipline an offender. It is merely a “remedial regulatory scheme furthering a

legitimate state interest.” [Fonville, 291 Mich App at 381, quoting Golba, 273

Mich App at 617 (other quotation marks and citations omitted).]

Thus, because the SORA registration requirement is not “punishment,” the requirement

does not constitute cruel and unusual punishment in violation of the Michigan or federal

constitutions, Golba, 273 Mich App at 617-620, and defendant’s unpreserved argument is

therefore unavailing. See also People v Temelkoski, ___ Mich App ___; ___ NW2d ___ (Docket

No. 313670, issued October 21, 2014), slip op, p 16.

In spite of acknowledging the controlling legal authority that registration is not a punitive

measure, defendant relies on this Court’s decision in People v Dipiazza, 286 Mich App 137; 778

NW2d 264 (2009), and argues that the registration requirement, as applied to him, still

constitutes cruel or unusual punishment under the Michigan Constitution. However, Dipiazza is

factually distinguishable from the instant case, and, even if defendant’s argument was not

precluded by Fonville and Golba, there is no guidance to be had from it.

In Fonville, 291 Mich App at 381-382, this Court aptly summarized Dipiazza:

In Dipiazza, this Court held that requiring the defendant in that case to

register as a sex offender was cruel or unusual punishment. However, in that

case, after the defendant completed probation, his case was dismissed under the

terms of [HYTA], leaving him with no conviction on his record. Despite the

dismissal of his case, because he was assigned to youthful-trainee status on

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August 29, 2004, he continued to remain required to register as a sex offender,

whereas after amendments of SORA, a defendant assigned to youthful-trainee

status after October 1, 2004, was not required to register (unless the defendant’s

status of youthful trainee was revoked and an adjudication of guilt was entered).

This Court concluded that, under those circumstances, requiring the defendant to

register as a sex offender was cruel or unusual punishment. [Citations omitted.]

In the instant case, after defendant was afforded the benefit of HYTA status to induce his

compliance with his probationary terms and, more importantly, to avoid a felony conviction and

the obligation to register as a sex offender, defendant repeatedly violated his probation.

Consequently, unlike the defendant in Dipiazza, defendant’s HYTA status was revoked, and his

conviction was never dismissed. Therefore, the reasoning in Dipiazza is not applicable to the

instant case, and we perceive no plain error.

Affirmed.

/s/Pat M. Donofrio

/s/ Mark T. Boonstra

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