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People v Lee

6-30-2011 Michigan:

People v Lee (Flicking a penis, as a disciplinary measure, is not a sex crime. Weird case.)

In this case, we hold that the trial court erred when it required defendant to register as a sex offender under the Sex Offenders Registration Act (SORA) 20 months after defendant had been sentenced.1 Accordingly, we reverse the judgment of the Court of Appeals, which had affirmed the trial court’s decision to require defendant to register under SORA.

On August 6, 2005, defendant and his wife agreed to babysit their neighbors’ two boys. Defendant prepared the children for bedtime by bathing them. Defendant’s son and the older neighbor boy went to another room after getting dressed for bed. The younger neighbor boy, three-year-old JW, was uncooperative as defendant attempted to diaper and dress him. According to defendant, he used his finger to flick JW’s penis in an effort to get his attention. Defendant flicked JW’s penis twice because JW did not respond to the first flick. JW cried after the second flick.

Under MCL 769.1(13) and MCL 28.724(5), a trial court must, before imposing a sentence, satisfy multiple requirements in order to properly require a defendant to register as a sex offender. Because the trial court in this case failed to satisfy those statutory requirements, its subsequent decision at a postsentencing hearing held 20 months after the sentence was entered to require registration was erroneous. Furthermore, the prosecution failed to bring a motion to correct the arguably invalid sentence within the time limit provided in MCR 6.429(B)(3).

Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court’s order requiring defendant to register under SORA.

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