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141570 - People v Lee (Kent)

The People of the State of Michigan,
 
Aaron Mead
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeal)
 
 
(Allegan – Baillargeon, W.)
 
Kent Allen Lee,
 
David M. Zessin
 
Defendant-Appellant.
 

Summary

​While babysitting for friends, Kent Lee twice flicked the penis of the friends’ three-year-old son. Lee later testified that he was frustrated that the boy would not put his pajamas on and flicked the child’s penis to get him to cooperate.

Lee was charged with second-degree criminal sexual conduct and second-degree child abuse as a fourth-offense habitual offender; he pled guilty to third-degree child abuse as a second-offense habitual offender. At sentencing, the prosecutor argued that the trial court should require Lee to register under the sex offenders registration act. SORA does not require registration by a defendant convicted of third-degree child abuse, but a catch-all provision, MCL 28.722(e)(xi), 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 trial court denied the request, concluding that the information available at sentencing did not establish that Lee committed a sexual offense. The judge sentenced Lee to five years of probation with the first ten weekends to be served in jail, with no requirement of SORA registration. However, the judge did rule that the prosecutor would be permitted to request a hearing in order to show that the crime fell into SORA’s catch-all category. Neither party appealed.

Twenty months later, after Lee had served his jail time and the sentencing judge had retired, the prosecutor moved to require Lee to register under SORA. Over Lee’s objections, the successor judge held an evidentiary hearing and then granted the motion. The judge concluded that, because the sentencing judge had retained jurisdiction in order to decide the issue, there was no procedural impediment to requiring SORA registration at that time. The judge then ruled that, based on the information used to support Lee’s plea as well as Lee’s testimony at the evidentiary hearing, Lee must register as a sex offender.

In a published opinion, the Court of Appeals held that there was no error in the procedure for requiring registration or in the lower court’s substantive ruling. A trial court may impose SORA registration at any time while the court has jurisdiction over a defendant, the Court of Appeals held. In this case, the appellate panel said, the lower court could require Lee to register because he was still on probation. Moreover, the panel held, the trial court did not err in concluding that Lee’s conduct met the requirements of SORA’s catch-all provision. Because Lee had flicked the child’s penis as a form of bullying, the evidence was sufficient to show that Lee had touched the child’s penis in a sexual manner for the purpose of inflicting humiliation, the Court of Appeals stated. Lee appeals.