A Benton Harbor man convicted of having sex with an underage girl has lost an appeal of a lower court's decision requiring him to remain on the state sex offender registry.
Evans Costner III was more than four years older than the victim in the 2009 case, and therefore not entitled to have his name removed from the registry, the state Court of Appeals said.
A provision in state law allows offenders in so-called "Romeo and Juliet" cases, where young people engage in sex by consent, to petition a court for removal from the registry.
For the petition to be granted, the victim must be at least 13 and under 16, and the offender not more than four years older than the victim.
Costner was 18 at the time of the offense, four years and 23 days older than the 14-year-old girl, according to an appeals court opinion released Feb. 19.
In affirming a Berrien County Trial Court decision denying Costner's petition, the appeals court also said that requiring him to register as a sex offender is not cruel and unusual punishment.
Costner, now 24, pleaded guilty in Trial Court to attempted third-degree criminal sexual conduct. He was sentenced in December 2009 to three years on probation under the Holmes Youthful Trainee Act.
Under the act, the felony conviction would have been dropped from Costner's record and he would not have been listed on the sex offender registry if he successfully completed all the probation requirements.
But he failed on probation, pleading guilty to violations twice in 2010 and again in 2011.
The 2011 violation, attempting to have contact with a girl under 17, resulted in a sentence of six months in jail, having his probation revoked and being listed on the registry.
He later petitioned the Trial Court to have his name removed, claiming he and the victim had only a four-year age difference.
Costner argued that he necessarily was "not more than four years older" than the victim as the law required. He relied on a statutory definition of "year" as a "calendar year."
The Trial Court disagreed, finding that because Costner is 23 days older than the four years required, he was not entitled to have his name removed from the sex offender registry.
On appeal, Costner argued that a 2014 case decided by the appeals court, People v. Woolfolk, implemented the "birthday rule" and that he was no more than four years older than the victim.
The Woolfolk case centered on whether a defendant who committed murder on the evening before his 18th birthday should still be considered 18.
But that case pertained only to the proper method to calculate a person's age, the appeals court said in its opinion in Costner's case.
Costner argued that the definition of the word "year" in state law as a "calendar year" should be used to calculate a length of time and age.
The definition is only appropriate in reference to a particular date or year, not a unit or measure of time, the appeals court said.
If applied in the way Costner presented, the definition would produce an absurd result, the court said.
Costner was born in 1991 and the victim in 1995. Using the calendar-year definition, there would be only three complete January-to-December periods between the birth dates of Costner and the victim -1992, 1993, and 1994..
"Such an interpretation flies in the face of common sense," the court said in its opinion.
The Legislature did not intend for this "extremely awkward (and entirely inaccurate)" way to calculate whether someone was more than four years older than another person, the court said. ..Source.. by SCOTT AIKEN
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