MICHIGAN SUPREME COURT CALENDAR

A man who twice flicked a three-year-old boy's penis while babysitting is challenging a court order requiring him to register as a sex offender, in a case that the Michigan Supreme Court will hear in oral arguments next week. The defendant in People v Lee admitted touching the boy's genitals, but said he did so to get the child's attention when the boy would not put on his pajamas after his bath. The defendant pled guilty to third-degree child abuse; at sentencing, the trial judge rejected a prosecutor's request to have the defendant register under Michigan's Sex Offender Registration Act. But 20 months after the defendant served his sentence, another judge ruled that the defendant must register as a sex offender. The court applied a catch-all provision in SORA that requires registration for a violation of state law that "by its nature constitutes a sexual offense against an individual who is less than 18 years of age." The Michigan Court of Appeals upheld the lower court, reasoning that the defendant's actions did amount to a "sexual offense" because the state's child abuse statute defines "sexual contact" to include touching a child's genitals "to inflict humiliation" or "out of anger." The defendant had admitted flicking the boy's penis as a form of "bullying" and the trial judge had stated that the defendant's touching was "a rather abusive assault on a young man's self-dignity and self value," the Court of Appeals noted. Moreover, although the defendant had completed his jail term, he was still on probation and under the lower court's jurisdiction, so the judge did not violate legal procedure when he ordered the defendant to register under SORA, the appellate panel concluded. Also before the Supreme Court is People v Kowalski, in which the defendant made sexual comments in an internet chat room to a police detective posing as a 15-year-old girl. A jury convicted the defendant of accosting a minor for immoral purposes and using a computer to do so, but the Court of Appeals reversed the defendant's convictions and ordered a new trial. The trial court failed to instruct the jury that the defendant had to commit certain acts (the actus reus) in order to be convicted of the crime, the Court of Appeals said: "The trial court's instructions omitted any mention that the jury must find that defendant actually accosted, enticed, or solicited the victim to engage in the prohibited acts." The prosecutor appeals that ruling; the defendant has also appealed, arguing in part that his trial lawyer was ineffective and that the prosecutor did not present sufficient evidence to establish the defendant's guilt beyond a reasonable doubt. The court will hear two other criminal cases, People v Novak and People v Bailey. Also before the court is Krohn v Home-Owners Insurance Company, in which the court will consider a claim under the state's no-fault law to recover the costs of experimental surgery. The court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice today beginning at 9:30 a.m. The court's oral arguments are open to the public. (Please note: the summaries that follow are brief accounts of complicated cases and may not reflect the way that some or all of the court's seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, or significance of their cases. Briefs are online at http://www.courts.michigan.gov/supremecourt/Clerk/MSC_orals.htm.) Tuesday, April 5 Morning Session PEOPLE v NOVAK (case no. 140800) Prosecuting attorney: Sylvia L. Linton Attorney for defendant George Thomas Novak: Valerie R. Newman Trial Court: Bay County Circuit Court At issue: The defendant was convicted of one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct as a result of alleged abuse of his granddaughter. The trial court departed upward from the sentencing guidelines, sentencing the defendant to a prison term of 20 to 40 years. On appeal, the defendant objected to his sentence, and objected that the trial court erred when it admitted into evidence a pornographic short story that the defendant authored, on the theory that it was admissible as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident within the meaning of MRE 404(b)(1). The Court of Appeals affirmed the defendant's convictions. Was the admission of the story reversible error? Is the defendant entitled to a new trial, or to sentencing relief? PEOPLE v KOWALSKI (case no. 141695) Prosecuting attorney: Jonathan L. Poer Attorney for defendant Edward Michael Kowalski: Robert L. Levi Trial Court: Lenawee County Circuit Court At issue: The defendant engaged in internet chats with a police detective posing as a 15-year-old girl. On the day the police executed a search warrant at his house, finding no computer, defendant was seen dumping plastic parts in a remote location. A jury convicted him of accosting, enticing, or soliciting a minor for immoral purposes and using the internet for the same purposes. The Court of Appeals reversed the defendant's convictions and remanded for a new trial. Did the trial court err in failing to instruct the jury that the defendant had to commit certain acts (the actus reus) in order to be convicted of the crime of accosting, enticing, or soliciting a child for immoral purposes, MCL 750.145a? If the trial court erred, was the error harmless? Did the defendant waive the instructional error? If so, did his attorney provide ineffective assistance of counsel? When viewed in a light most favorable to the prosecution, was the evidence at trial sufficient to enable a rational jury to find that the actus reus of the charged offense was proven beyond a reasonable doubt? PEOPLE v BAILEY (case no. 141739) Prosecuting attorneys: Timothy K. McMorrow, Kimberly M. Manns Attorney for defendant Sammie Ray Bailey, Jr.: Michael L. Mittlestat Trial Court: Kent County Circuit Court At issue: The defendant was convicted of second-degree murder and felony-firearm for shooting and killing a man who had robbed his half-brother. On appeal, the defendant argued that the trial court improperly instructed the jury regarding self-defense. The Court of Appeals reversed the defendant's convictions, concluding that the jury was not properly instructed and that these instructional errors were not harmless. Did the trial court erroneously instruct the jury as to the effect of provocation on a self-defense claim? Did the trial court sufficiently express the reasonable doubt standard when it instructed the jury that, if there was a realistic or reasonable possibility that the defendant acted in self-defense, he was not guilty? Afternoon Session KROHN v HOME-OWNERS INSURANCE COMPANY (case no. 140945) Attorney for plaintiff Kevin Krohn: Craig J. Pollard Attorney for defendant Home-Owners Insurance Company: Allen J. Philbrick Attorney for amicus curiae Coalition Protecting Auto No-Fault: Liisa R. Speaker Attorney for amicus curiae Michigan Defense Trial Counsel, Inc.: James E. Brenner Attorney for amicus curiae Michigan Catastrophic Claims Association: Jill M. Wheaton Trial Court: Lenawee County Circuit Court At issue: The plaintiff sued his no-fault insurer to recover the expenses of his experimental surgery in Portugal. The procedure is not approved by the Food and Drug Administration and is illegal in the United States. A jury returned a verdict in the plaintiff's favor, finding that the treatment was "reasonably necessary" under MCL 500.3107(1)(a) of the no-fault act. But in a split unpublished decision, the Court of Appeals reversed, noting that the plaintiff's treating U.S. physician did not testify that the experimental surgery was either "reasonable" or "necessary." Moreover, the trial court had failed to determine the surgery's scientific reliability before admitting expert witness testimony regarding the procedure. Was the surgical procedure a "reasonably necessary" allowable expense under the no-fault act, MCL 500.3107(1)(a)? Was the procedure "lawfully rendered" under MCL 500.3157? Did the Court of Appeals majority err in sua sponte (on the court's own motion) raising the issue whether the trial court should have excluded testimony from the plaintiff's medical witness? In determining issue of reasonable necessity under MCL 500.3107(1)(a), may the trier of fact consider whether the experimental procedure succeeded or the plaintiff's condition improved? PEOPLE v LEE (case no. 141570) Prosecuting attorney: Aaron J. Mead Attorney for defendant Kent Allen Lee: David M. Zessin Trial Court: Allegan County Circuit Court At issue: The defendant flicked the penis of the three-year-old boy he was babysitting in order to get the boy's attention after a bath. The defendant pled guilty to third-degree child abuse. At sentencing, the trial court denied the prosecutor's request to require the defendant to register under the Sex Offenders Registration Act (SORA), concluding that the available information did not establish that the crime was a sexual offense. The court allowed the prosecutor to request a hearing to show that the crime was a sexual offense requiring SORA registration. The defendant was sentenced to five years of probation with the first ten weekends to be served in jail. Twenty months later, after defendant served his jail time and the sentencing judge retired, the prosecutor filed a motion to require the defendant to register under SORA. The successor judge granted the motion. The Court of Appeals affirmed. Was the trial court's order, entered after the defendant had been sentenced and had begun serving his sentence, valid? Did the defendant's touching of the victim's genitals "by its nature constitute a sexual offense against an individual who is less than 18 years of age" within the meaning of MCL 28.722(e)(xi) such that the defendant is required to register under SORA? Published: Tue, Apr 5, 2011