Opinion
No. 350261
10-15-2020
In re KEVIN MICHAEL GREMBI, JR., Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, v. KEVIN MICHAEL GREMBI, JR., Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 19-000230-DL Before: GADOLA, P.J., and RONAYNE KRAUSE and O'BRIEN, JJ. PER CURIAM.
Respondent, a juvenile, appeals as of right the trial court's order denying his motion for exemption from registration under the Sex Offender's Registration Act (SORA), MCL 28.722 et seq. We affirm.
I. BACKGROUND
On June 10, 2019, respondent pled no contest to the charge of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim is at least 13 years of age and under 16 years of age). Respondent's plea was entered into with the understanding that he was seeking exemption from registering under the SORA pursuant to MCL 28.722(2)(w)(iv), and that a hearing on his motion would be held prior to disposition. It is undisputed that respondent engaged in sexual conduct with the victim in November 2018, that respondent and the victim were both 15 years old at the time, and that respondent's conduct constituted CSC-III. The only issue respondent presents is whether the victim consented to the sexual conduct, because if the victim did, then respondent would not be required to register under the SORA. See MCL 28.722(w)(iv) (providing that an individual who commits CSC-III is not required to register if, among other requirements, the victim consented to the sexual conduct).
On July 12, 2019, a hearing was held on respondent's motion to be exempted from registering under the SORA. Both respondent and the victim testified at the hearing. Respondent testified that he and the victim were in a dating relationship at the time of the incident that gave rise to this case. According to respondent, on the date of the incident the victim asked respondent to meet her in the stairwell of their school so that they "could do touching and stuff." Respondent testified that they kissed, the victim touched respondent's penis, and respondent touched the victim's genitals. Respondent also stated that at no point did the victim tell respondent to stop.
The victim testified and gave a different version of the events. According to the victim, her relationship with respondent ended a couple weeks before the incident. She testified that respondent grabbed her by the neck and pushed her against the wall of the stairwell. She stated that he then penetrated her vagina with his fingers. The victim testified that respondent caused her vagina to bleed and left bruises on her neck. She reported the incident to her school counselor shortly after it occurred and went to the police station and doctor's office the same day. Her genital area was sore for at least two weeks and she experienced lasting repercussions from respondent's conduct, including embarrassment, flashbacks, fear of retaliation by respondent, and not being able to participate in certain activities during gym class.
The victim testified that a no contact order was issued stating that the victim and the respondent were not to speak of the incident to anyone. The victim stated that despite the order, respondent told her peers at school his version of the events, in detail, and that her peers believed him and she felt horrible as a result.
The trial court stated that it believed the victim's testimony and found that her testimony was corroborated by photographs of her neck, which showed redness or bruising. The trial court found that the victim's injuries and the fact that she had flashbacks of the assault were inconsistent with respondent's assertion that the victim consented to his sexual conduct. Therefore, the trial court concluded that the victim did not consent to respondent's sexual conduct, stating "No one would consent to that even if the victim had consented to some physical contact between her and the respondent she, under any standard, would not have consented to being injured; that just doesn't make any sense . . . ." The trial court denied respondent's motion and then conducted disposition, and ordered respondent to register under the SORA. Respondent now appeals.
The trial court's dispositional order also ordered respondent to participate in Level 1 in-home probation and wear a tether, participate in a Sexual Awareness and Information Treatment program, receive a psychiatric evaluation, attend individual therapy, receive substance education and drug screens, and not attend the same school as the victim. Respondent does not challenge these additional conditions of the trial court's order.
II. STANDARD OF REVIEW
Respondent argues that he met his burden of proving by a preponderance of the evidence that the victim consented to his sexual conduct. As a result, he argues, he should not be required to register under the SORA. We disagree.
We review a lower court's findings of fact for clear error. People v Hesch, 278 Mich App 188, 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." Id., quoting Szymanski v Brown, 221 Mich App 423, 436; 562 NW2d 212 (1997) (quotation marks omitted). "This Court should defer to the trial court's credibility determinations." People v Traver, 328 Mich App 418, 426; 937 NW2d 398 (2019). "The construction and application of [the] SORA presents a question of law that is reviewed de novo on appeal." People v Anderson, 284 Mich App 11, 13; 772 NW2d 792 (2009).
III. ANALYSIS
An individual is required to register under the SORA if he or she "is convicted of a listed offense after October 1, 1995." MCL 28.723(1)(a). A listed offense is defined as "a tier I, tier II, or tier III offense." MCL 28.722(j). CSC-III is included in the definition of a tier III offense unless
A conviction includes an order of disposition such as the one in this case because it was entered under MCL 712A.18, is open to the general public under MCL 712A.28, respondent was older than 14 years of age at the time of the offense, and the offense classifies respondent as a tier III offender. See MCL 28.722(b)(iii) (defining conviction); MCL 28.722(v)(ii) (defining tier III offender to include "[a]n individual convicted of a tier III offense"); MCL 28.722(w)(iv) (defining tier III offense to include CSC-III).
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 28.722(w)(iv).]The procedure by which this consent exception may be invoked is described in MCL 28.723a(1), which provides:
If an individual . . . 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 . . . [MCL 28.722(w)(iv)] applies, and the prosecuting attorney disputes that allegation, the court shall conduct a hearing on the matter before . . . disposition to determine whether the individual is required to register under this act."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 exception[] described . . . ." MCL 28.723a(2). " '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). For the reasons explained below, we conclude that the trial court did not clearly err when it found that the victim did not consent to respondent's sexual conduct; therefore, respondent was properly required to register under the SORA.
Respondent testified that the victim asked him to meet her in the stairwell so that they "could do touching and stuff." According to respondent, the victim never told him to stop while he was touching her genitals, and the victim touched his genitals as well. Respondent would have this Court stop there and ignore the testimony of the victim, who gave a different version of events. The victim testified that she and respondent broke up about two weeks before the incident. She testified that respondent grabbed her by the neck, pushed her against the wall, and penetrated her vagina with his fingers. She testified that, as he did so, he repeatedly said, "I want you to remember me." The victim's neck was left bruised and her vagina was bleeding. She reported the incident to her school counselor soon after it occurred and went to the police station and doctor's office that day. She experienced discomfort in her genital region for at least two weeks as well as continuing flashbacks and embarrassment. She also testified that she now hates waking up and going to school because she is in fear of being attacked by respondent again and feels that she needs to be aware of her surroundings at all times. Considering this evidence, it was not clearly erroneous for the trial court to believe the victim's testimony and conclude she did not consent to respondent's sexual conduct. See Traver, 328 Mich App at 426 (noting that this Court defers to the trial court's credibility judgments). The victim's testimony supported that conclusion and respondent's testimony to the contrary did not have "more convincing force and the greater probability of truth." Cross, 281 Mich App at 740. Because the victim did not consent, the trial court was correct to order respondent to register under the SORA.
Affirmed.
/s/ Michael F. Gadola
/s/ Amy Ronayne Krause
/s/ Colleen A. O'Brien