Opinion
No. 349349
06-18-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. STEPHEN MICHAEL BIESZKA, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Allegan Circuit Court
LC No. 16-019842-FC Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right the trial court's order denying his petition for exemption from registering for the sex offender registry pursuant to MCL 28.722(w)(iv) of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. For the reasons set forth in this opinion, we affirm.
Defendant previously filed a delayed application for leave to appeal in this Court, which this Court denied. People v Bieszka, unpublished order of the Court of Appeals, entered February 28, 2018 (Docket No. 339954). Defendant then filed an application for leave to appeal this Court's denial in the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the matter to the trial court for reconsideration of defendant's petition and stated that the trial court's decision would be appealable as of right pursuant to MCL 28.723a(6). People v Bieszka, 503 Mich 943 (2019). The trial court issued its written opinion and order on May 13, 2019. This appeal followed.
I. BACKGROUND
Defendant pled guilty to assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(1). According to the victim's preliminary examination testimony, defendant arrived uninvited at her home on an afternoon in August 2015 when she was home alone. Defendant was 18 years old, and the victim was 14 years old at the time. The victim knew defendant from school. The victim testified that defendant pushed her into her bedroom and "forced himself on" her. She further testified that defendant penetrated the victim's vagina with his fingers and penis and performed cunnilingus on the victim. The victim told him, "no," but defendant did not stop.
In January 2017, defendant filed a petition arguing that he was exempt from the registration requirement under SORA. Defendant asserted that he met the statutory requirements for the exemption under MCL 28.722(w)(iv) because he and the victim engaged in consensual sexual activity, the victim was between the ages of 13 and 16 at the time of the sexual activity, and he was not more than four years older than the victim. Defendant requested that the trial court hold a hearing on his petition. The prosecution opposed defendant's petition and argued that the sexual conduct was not consensual.
At a hearing regarding the petition, defendant testified that he and the victim engaged in consensual sexual activity. Defendant testified that he asked the victim, "do you want this, is this what, you want"? According to defendant, the victim looked at him, nodded, and "said yes." Defendant also stated that he would not have done "anything" and would have left if the victim had told him "no." In addition, defendant submitted certain text messages that had been exchanged between defendant and the victim and other text messages that had been exchanged between the victim and another student. The prosecution read a statement into the record that had been written by the victim and that provided a more graphically detailed account of the incident she had described at the preliminary examination. The victim maintained in this statement that she did not consent to the sexual acts committed by defendant.
The trial court subsequently issued a written opinion and order in which it found that defendant had "failed to rebut the victim's statements and testimony that clearly described non-consensual conduct" and determined that defendant was not eligible for the SORA registration exemption contained in MCL 28.722(w)(iv) "because the victim did not consent to the conduct constituting the violation." The trial court thus denied defendant's petition.
A separate sentencing hearing was held, and the trial court sentenced defendant to eight months in jail and five years' probation.
Defendant filed a claim of appeal that this Court dismissed "for lack of jurisdiction" due to it being untimely filed with respect to the order denying his petition for an exemption from the SORA registration requirement. This Court also denied defendant's delayed application for leave to appeal "for lack of merit in the grounds presented." The Michigan Supreme Court subsequently remanded the matter to the trial court in lieu of granting defendant's application for leave to appeal, stating as follows:
People v Bieszka, unpublished order of the Court of Appeals, entered May 9, 2017 (Docket No. 337977). This Court also concluded that defendant could not appeal from his judgment of sentence as of right because his conviction was based on a guilty plea. Id.
Bieszka, unpub order, entered February 28, 2018 (Docket No. 339954).
On order of the Court, the application for leave to appeal the February 28, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(l),
in lieu of granting leave to appeal, we VACATE the February 28, 2017 opinion and order of the Allegan Circuit Court, and we REMAND this case to that court for reconsideration of the defendant's petition for exemption from the requirements of the Sex Offenders Registration Act, MCL 28.721 et seq. See MCL 28.722(w)(iv); MCL 28.723a. On remand, the trial court shall consider all of the information that was presented at the hearing on the defendant's petition, including the text messages from the complainant, and issue a written decision excusing or requiring the defendant to register, which either the defendant or the prosecutor may appeal as of right. MCL 28.723a(6). [People v Bieszka, 503 Mich 943 (2019).]
On remand, the trial court issued a written opinion and order stating that the court had reviewed the materials in the record as instructed by the Supreme Court and that it concluded that defendant was not entitled to the SORA registration exemption in MCL 28.722(w)(iv) because defendant did not establish by a preponderance of the evidence that the victim consented to the sexual acts at issue. The trial court stated that it found the victim's testimony more credible than defendant's testimony on the issue of consent. The trial court further found that the "text messages, at most, establish that at some point there was a romantic relationship between [the victim] and Defendant" but did "not reference consent with respect to the incident that led to Defendant's conviction." The trial court accordingly denied defendant's petition for an exemption from the registration requirement under SORA.
On appeal, defendant argues that the trial court clearly erred by finding that the victim did not consent to the sexual activity and by finding that defendant had failed to prove by a preponderance of the evidence that he was entitled to the exemption from the SORA registration requirements.
II. STANDARD OF REVIEW
We review de novo, as a question of law, issues regarding the construction and application of SORA. People v Anderson, 284 Mich App 11, 13; 772 NW2d 792 (2009). We also review de novo the trial court's "interpretations and applications of statutes and court rules." People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011). A trial court's findings of fact on issues regarding whether a defendant is required to register as a sex offender under SORA are reviewed for clear error. See Anderson, 284 Mich App at 13; see also People v Hesch, 278 Mich App 188, 191-192; 749 NW2d 267 (2008). "A decision is clearly erroneous if this Court is left with a definite and firm conviction that a mistake has been made." Hesch, 278 Mich App at 192 (quotation marks and citation omitted).
III. ANALYSIS
MCL 28.723(1)(a) generally requires individuals who are convicted of a "listed offense" after October 1, 1995, to be registered under SORA. MCL 28.722(w)(iv), which enumerates assault with intent to commit criminal sexual conduct as a listed offense, also provides an exemption stating that "[t]his subparagraph does not apply if the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim."
Assault with intent to commit criminal sexual conduct involving penetration is a listed offense that requires registration for the sex offender registry. See MCL 28.722(j), (v), (w)(iv).
MCL 28.722 provides, in relevant part:
(j) "Listed offense" means a tier I, tier II, or tier III offense.
* * *
(w) "Tier III offense" means 1 or more of the following:
* * *
(iv) A violation of section 520b, 520d, or 520g(1) of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520d, and 750.520g. This subparagraph does not apply if the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim.
MCL 28.723a sets forth the governing procedure in cases where an individual claims to be subject to the registration exemption in MCL 28.722(w)(iv). MCL 28.723a provides in pertinent part as follows:
(1) If an individual pleads guilty to or is found guilty of a listed offense or is adjudicated as a juvenile as being responsible for a listed offense but alleges that he or she is not required to register under this act because section 2(u)(v) or (vi) applies or section 2(w)(iv) applies, and the prosecuting attorney disputes that allegation, the court shall conduct a hearing on the matter before sentencing or disposition to determine whether the individual is required to register under this act.
(2) The individual has the burden of proving by a preponderance of the evidence in a hearing under this section that his or her conduct falls within the exceptions described in subsection (1) and that he or she is therefore not required to register under this act.
(3) The rules of evidence, except for those pertaining to privileges and protections set forth in section 520j of the Michigan penal code, 1931 PA 328, MCL 750.520j, do not apply to a hearing under this section.
"Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth." People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008) (quotation marks and citation omitted). Additionally, "[w]hen 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." Anderson, 284 Mich App at 14-15 (quotation marks and citation omitted).
Here, the sole issue presented by the nature of defendant's arguments is whether the trial court erred with respect to its conclusion on the question of consent. Defendant argues that the text messages he submitted to the trial court (1) establish that there was a "consensual relationship," (2) contradict the victim's testimony that there was no relationship between her and defendant, and (3) cast doubt on the accuracy of her written statement that failed to mention the text message communications that occurred between the parties after the alleged incident. As such, argues defendant, the trial court clearly erred by determining that the victim's testimony and statement was more credible than defendant's testimony, that the text messages did not reflect consent by the victim, and that defendant failed to prove by a preponderance of the evidence that the victim consented to the sexual acts.
SORA does not define consent. If a statutory term is left undefined, we may consult a dictionary to discern the plain and ordinary meaning to afford the term. People v Nichols, 262 Mich App 408, 413; 686 NW2d 502 (2004). In the context of participation in sexual activity, the term "consent" has been defined to refer to "affirmative consent," meaning "[c]onsent that is freely, willingly, and clearly demonstrated in words and acts during a sexual encounter, usu. just before intercourse." Black's Law Dictionary (11th ed).
Our review of the record, and specifically the text messages on which defendant's argument is primarily founded, leads us to conclude that the trial court did not clearly err by determining that defendant failed to prove by a preponderance of the evidence that the victim consented to the sexual acts committed by defendant. The victim's testimony and statement provided a clear, detailed, and consistent description of the incident that clearly indicated that she did not consent to defendant's conduct and told defendant "no" during the course of the events. Defendant gave contradictory testimony. Determinations regarding the weight of the evidence or credibility of witnesses are matters generally best left to the trier of fact. See People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005).
Furthermore, the text messages are predominantly of a vague nature, contain no reference to the incident for which defendant was convicted, and have little discernable substantive value relevant to the issues presented in this appeal. Although the text messages suggest that the victim and defendant had a dating relationship at some point and that sexual activity occurred at another point, the text messages are completely silent on the issue of consent. There is nothing in the text messages indicating whether the victim did or did not consent to any sexual activity. Defendant argues that the text messages evidence that he and the victim had a "consensual relationship." However, even accepting defendant's assertion of a "consensual relationship" as true, it does not automatically follow that every sexual activity was consensual. Hence, defendant's argument that the text messages compelled a finding by the trial court that the sexual activity at issue was consensual fails. Accordingly, we conclude that the trial court's factual findings with respect to these text messages were not clearly erroneous. Hesch, 278 Mich App at 192.
Because the sole issue on appeal concerns whether the victim consented to the sexual conduct and the text messages do not have any bearing on this issue, we have not specifically quoted any of the text messages submitted by defendant. --------
Based on the record evidence, the trial court's determination that defendant failed to demonstrate by a preponderance of the evidence that the victim consented to the sexual acts at issue does not leave us "with a definite and firm conviction that a mistake has been made" and therefore was not clearly erroneous. Hesch, 278 Mich App at 192 (quotation marks and citation omitted). Accordingly, the trial court did not err by denying defendant's petition for an exemption from the SORA registration requirements pursuant to MCL 28.722(w)(iv).
Affirmed.
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
/s/ Michael J. Riordan