Sex Offender Removed From Iowa Registry Must Continue To Register In Michigan
A petitioner’s release from the sex offender registry requirements in Iowa does not necessitate that he also be relieved of his Michigan sex offender registry requirements, the Michigan Court of Appeals has ruled.
The petitioner in In re Harder (Docket No. 368645) traveled to Iowa on a hunting trip. While there, he had sexual intercourse with a 15-year-old girl. He claimed that he did not know her age at the time. The petitioner was arrested and was convicted in an Iowa court of committing lascivious acts with a child, in violation of Iowa Code §709.8. He pleaded guilty but was not incarcerated. Instead, he served a sentence of probation in Michigan until he was released in January 2012. In 2017, an Iowa court entered an order allowing the petitioner to be removed from that state’s sex offender registry.
In 2023, the petitioner asked the Ottawa County Circuit Court to remove him from Michigan’s sex offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. The petitioner argued that he was initially required to register under MCL 28.723(1)(d) because he was subject to registration in another state, but was no longer required to register in Michigan because he was removed from the Iowa registry. The trial court denied the petitioner’s request. The trial court reasoned that the crime underlying petitioner’s Iowa conviction was “substantially similar” to the Michigan crime of accosting a child for immoral purposes, MCL 750.145a, therefore requiring the petitioner to register under SORA. The petitioner appealed.
The Court of Appeals affirmed in a 2-1 published opinion written by Judge Kirsten Frank Kelly.
“This case presents the question of whether respondent’s release from registry requirements in Iowa comes with a corresponding requirement that respondent be relieved of his registry requirements in Michigan,” the Court of Appeals majority said. “Because we conclude that it does not, we affirm the trial court’s order.”
Judge Christopher M. Murray joined the majority opinion.
Judge Brock A. Swartzle wrote a separate concurrence and dissent. “I concur in the result only, and I specifically dissent with respect to Part III.A of the majority opinion. … [T]he majority correctly describes the federal courts’ categorical test, but then goes on to misapply it. [T]he result of the categorical test is the same as the result of the test adopted by the majority – petitioner must register under SORA. Accordingly, this panel need not have decided which test is the preferred one.”
Michigan Registration Required
While the petitioner presented various arguments on appeal, the primary claim was that the trial court wrongly denied his petition because he was not convicted of a crime that was substantially similar to a Michigan crime. As a result, he asserted that, pursuant to MCL 28.722, he was not required to register under Michigan’s reporting regime.
“We disagree,” the Court of Appeals majority said, noting that the petitioner’s Iowa conviction required him to register as a Tier-II offender. “The trial court determined that petitioner was a Tier-II offender because he was convicted of an offense, lascivious acts with a child, Iowa Code § 709.8, that is substantially similar to accosting a minor for immoral purposes, MCL 750.145a, which is listed as a Tier-II offense under MCL 28.722(t)(i). Tier-II offenders are required to register under SORA for 25 years.”
In particular, the petitioner asserted that the “categorical approach” should be used to determine whether two crimes are substantially similar for purposes of SORA. “Under the categorical approach, a court may not consider the actual facts of the defendant’s conduct underlying the crime,” the Court of Appeals majority said. “Rather, the court must compare the elements of the two crimes. … If a state-law crime allows for a conviction of a broader category of conduct than could support a conviction under the elements of the generic crime, then the two crimes are not alike under the categorical approach. … However, if a state-law conviction could be sustained under the generic crime and the state statute contains a smaller category of conduct than the generic crime, then the two crimes are alike.”
The petitioner further argued that Michigan should adopt a “strict categorical approach to comparing crimes” similar to what the 6th U.S. Circuit Court of Appeals outlined in United States v Barcus, 892 F. 3d 228 (6th Cir. 2018). In Barcus, the 6th Circuit said the two crimes at issue were not similar and, as a result, the defendant’s Tennessee conviction could not support Tier-III status under Tennessee sex offender registration laws.
“The [Barcus] court reasoned that, under the Tennessee statute, a person could be convicted who lacked specific sexual intent, so long as the conduct could be objectively characterized as sexual, whereas the federal statute, by having a specific-intent element, required the higher quantum of proof,” the Court of Appeals majority explained. “The Tennessee statute therefore covered broader conduct than did the federal statute. … Accordingly, the offenses were not alike under the categorical approach and the defendant could not properly be categorized as a Tier-III offender.”
Further, “[n]either this Court nor the Michigan Supreme Court have considered what approach should be employed to determine whether an out-of-state conviction is substantially similar to a Michigan offense for purposes of SORA registration,” the Court of Appeals majority said. “In this case, it would lead to an absurd result to enforce a strictly categorical approach for determining what crimes under SORA are substantially similar. Iowa Code §709.8 does not apply when the defendant and victim are married, whereas MCL 750.145a does not provide a marriage exception. Therefore, MCL 750.145a covers broader conduct than does Iowa Code §709.8. Accordingly, under a strictly categorical approach such as that endorsed by Barcus, no Michigan crime could ever be substantially similar to Iowa Code §709.8 unless it contained a marriage exception. Presumably, the Legislature did not intend to shield sex offenders from registration requirements on the basis of an arbitrary provision in a statute, such as one recognizing child marriage.”
Here, the petitioner claimed the two offenses were not substantially similar because there was no specific-intent requirement to the Iowa offense. “We find this argument unpersuasive, however, because the Court of Appeals of Iowa has treated the crime of lascivious acts with a child as a specific-intent crime,” the Court of Appeals majority wrote. “The specific-intent element of that crime is plain from the elements. The prosecution must prove an intent to arouse or satisfy sexual desires. … In Michigan, a conviction of accosting a minor for immoral purposes requires proof that the defendant intended ‘to induce or force that child to commit’ a proscribed act.”
According to the Court of Appeals majority, the statutes were substantially similar because the material elements of the crimes corresponded. “The elements of solicitation common to the two offenses are similar, as are the elements that the victim be a child and the defendant an adult. That the solicitation must be to engage in a sex act under the Iowa Code also corresponds to solicitation of ‘an immoral act,’ ‘an act of sexual intercourse,’ ‘an act of gross indecency,’ or ‘any other act of depravity or delinquency’ under MCL 750.145a. Therefore, the elements are substantially similar for purposes of SORA.”
It was “implausible” that the Michigan Legislature intended to shield from sex offender registration “someone who has solicited sex acts from a child on the basis that the state in which the crime was committed still allowed child marriage,” the Court of Appeals majority observed. “If under the Iowa statute petitioner and his victim were, in fact, married, petitioner would not have faced conviction, and there would be no offense to compare with a Michigan crime. It follows that slight variations in other elements do not relieve a person convicted as a sex offender in another state from registration requirements when the substance of the Michigan and out-of-state offenses is substantially the same.”
Moreover, the petitioner “has not shown that the categorical approach to comparing crimes for purposes of [sex offender registration], as adopted by the [6th] Circuit in Barcus, is based on a constitutional imperative,” the Court of Appeals majority stated. “Rather, it appears that the strictly categorical approach is simply what is favored by federal courts. … Therefore, a person such as petitioner who is convicted of lascivious acts with a child under Iowa Code §709.8 is subject to sex offender registration requirements as a Tier-II offender in Michigan, and the trial court did not err when it determined that Iowa’s statute concerning lascivious acts with a child, Iowa Code §709.8(3), and Michigan’s accosting a minor for immoral purposes, MCL 750.145a, are substantially similar.”
Majority ‘Flips Analysis’
In his partial concurrence and dissent, Judge Swartzle said he did not believe the Court of Appeals “need[ed] to land definitively on that test as the proper one here.” He explained that, when properly applied, the “categorical” test considered by the majority “yields the same result: petitioner must register under SORA.”
The judge continued by noting the majority “aptly describe[d]” the categorical test, which has been developed in the federal courts. “The underlying facts of the Iowa conviction are not relevant in this analysis; rather, this is a structural, elements-based approach.”
When this categorical test is correctly applied, “the Iowa conviction sweeps more narrowly than the Michigan offense,” Judge Swartzle said. “As the majority explains, the relevant elements of the two offenses correspond as to specific intent; proscribed act; solicitation; and victim as child. But, at the time of conviction, the Iowa offense excluded the circumstance when the two persons were married. Thus, all of the elements of the Iowa offense could be satisfied, but if the two persons were married, then the Iowa statute had not been violated. In Michigan, there is no marriage exception; thus, the Michigan offense is necessarily broader in scope than its Iowa counterpart, as Michigan sweeps in persons regardless of their marital status.”
According to Judge Swartzle, while the majority recognized that Michigan’s offense “sweeps more broadly than the Iowa offense,” the majority “inexplicably conclude[d] that ‘no Michigan crime could ever be substantially similar to Iowa Code §709.8 unless it contained a marriage exception.’ … But, this flips the analysis on its head – it is precisely the marriage exception that confirms, with logical certainty, that the Iowa offense is more narrow than the Michigan offense and, as a result, Michigan’s offense completely encapsulates the Iowa offense. Under the categorical approach, this means that the offenses are substantially similar/comparable, at least from the viewpoint relevant to Michigan’s SORA registration.”
In conclusion, Judge Swartzle said the majority correctly set forth the federal courts’ categorical test, but then misapplied it. “As explained here, the result of the categorical test is the same as the result of the test adopted by the majority – petitioner must register under SORA. Accordingly, this panel need not have decided which test is the preferred one.” He pointed out the categorical approach has “several worthwhile features” and said he “would have preferred that the matter be decided in a published decision when it was outcome determinative, or, at least, when the question was subject to the crucible of adversarial testing, whereas here the People did not file a brief or participate in oral argument.”
