A jury convicted defendant of child sexually abusive activity, MCL 750.145c(2), and using a computer to commit that offense, MCL 750.145d(l)(a), punishable under MCL 750.145d(2)(f). The trial court sentenced him to 30 months’ to 20 years’ imprisonment for each conviction, to be served concurrently.
I. BASIC FACTS
Defendant is a resident of Portland, Indiana. In a website chat room, defendant, identifying himself as “steelmanoo,” began to communicate with Nancy Popham, an Ohio resident, who identified herself as “carriebear_94.” Popham is a member of Perverted Justice, a group dedicated to identifying Internet “predators.”
Defendant soon steered the discussion toward sexual activity, and for over a one-month period, defendant on a daily basis broached topics including engagement in oral sex, group sex, and bestiality. At trial, defendant maintained that he did not believe Popham was 14 and asserted that he was merely role-playing with an adult. In any event, defendant and Popham soon discussed plans to meet in person. Defendant wrote to Popham that he wanted to meet her in a public place because “there are times guys are set up to pick up young ladys and i want to have a good time up there and not end up in jail.” Defendant and Popham eventually agreed to camping one weekend when Pophams’s “mother” was out of town, and defendant made online reservations for a campsite near Grand Rapids. Around the time they were discussing the camping trip, Popham told defendant that she liked to drink Mike’s Hard Lemonade, but “you wouldn t get that for me cauz its alcohol.” Defendant responded that he would not know what any beverage was if it were in a glass.
On October 16, 2008, Popham provided defendant her “address” at which defendant could pick her up to go camping, and defendant indicated that he was leaving his home at 11:30 a.m. Popham requested another member of Perverted Justice, Valentina Cardinas, to call defendant and pose as a 14-year-old girl. Cardinas called defendant four times and spoke with him three times. During one phone call, defendant told Cardinas that he was near Grand Rapids and asked for directions. Cardinas offered to obtain a Google map and indicated that she would call him back in five minutes. Cardinas
II. TERRITORIAL JURISDICTION
A. STANDARD OF REVIEW
We review de novo issues of law and statutory interpretation. People v McCuller,
B. ANALYSIS
In People v Gayheart, this Court noted that
until 2002, the common-law rule in Michigan, which drew heavily on the United States Supreme Court’s decision in Strassheim [v Daily,221 US 280 , 285;31 S Ct 558 ;55 L Ed 735 (1911)], was that the state could not exercise territorial jurisdiction over criminal conduct committed in another state unless that conduct was intended to have, and did in fact have, “а detrimental effect within the state.” [People v Gayheart,285 Mich App 202 , 208;776 NW2d 330 (2009), quoting People v Blume,443 Mich 476 , 477;505 NW2d 843 (1993).]
(1) A person may be prosecuted for a criminal offense he or she commits while he or she is physically located within this state or outside of this state if any of the following circumstances exist:
(a) He or she commits a criminal offense wholly or partly within this state.
(b) His or her conduct constitutes an attempt to commit a criminal offense within this state.
(c) His or her conduct constitutes a conspiracy to commit a criminal offense within this state and an act in furtherance of the conspiracy is committed within this state by the offender, or at his or her instigation, or by another member of the conspiracy.
(d) A victim of the offense or an employee or agent of a governmental unit posing as a victim rеsides in this state or is located in this state at the time the criminal offense is committed.
(e) The criminal offense produces substantial and detrimental effects within this state.
(2) A criminal offense is considered under subsection (1) to be committed partly within this state if any of the following apply:
(a) An act constituting an element of the criminal offense is committed within this state.
(b) The result or consequences of an act constituting an element of the criminal offense occur within this state.
(c) The criminal offense produces consequences that have a materially harmful impact upon the system of government or the community welfare of this state, or results in persons within this state being defrauded or otherwise harmed.
“The language of MCL 762.2 has broadened the scope of Michigan’s territorial jurisdiction over criminal matters, significantly expanding upon the common-law
Gayheart also explained that, in applying MCL 762.2, the trial court must initially decide, in its role as a gatekeeper, “whether the facts to be offered by the prosecution, if proven, would be legally adequate to confer jurisdiction.” Id. at 211. Along these lines, defendant argues on appeal that the prosecution presented insufficient record evidence to support a criminal prosecution under MCL 762.2. Defendant specifically argues that, in regard to the оffenses, there was “[n]o [ejvidence of Partial Commission,” “[n]o Evidence of Michigan Attempt or Conspiracy,” “[n]o qualifying ‘Victim,’ ” and “[n]o Production of Substantial and Detrimental Effects.”
MCL 750.145c(2) provides, in part that
[a] person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or а person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony ....
The prosecution charged defendant with attempting, preparing, or conspiring to arrange for child sexually abusivе activity.
We conclude that the facts offered by the prosecution and proved to the jury were clearly adequate to confer jurisdiction. We also conclude that the prosecution
With regard to defendant’s conviction for violating MCL 750.145d(l)(a), defendant asserts that the evidence of territorial jurisdiction is even more lacking because preparation using the Internet is required. Defendant contends that because all of his computer activity took place in his home in Indiana, the police never recovered a laptop or smart phone from his vehicle in Michigan, and defendant engaged in no online discussions with carriebear_94 on the date he drove into Michigan, Michigan did not have territorial jurisdiction over him as it related to the charge of using the Internet to commit child sexually abusive activity. But defendant ignores MCL 750.145d(6), which provides: “A violation or attempted violation of this section occurs if the communication originates in this state, is intended to terminate in this state, or is intended to terminate with a person who is in this state.”
While defendant’s Internet communication originated in Indiana, not Michigan, the communication was intended to terminate in Michigan. Defendant viewed the profile information associated with the moniker “carriebear_94” indicating that she was from Michigan. During their initial chat, carriebear_94 informed defendant that she was from Michigan. During a time when defendant believed that carriebear_94’s mother would be out of town, defendant informed carriebear_94 that he wоuld come to Michigan to meet her and have fun. Defendant reserved a campsite for them in Michigan.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
There was no hearing in the trial court, and this Court’s review of the issue is limited to the existing record. People v Ginther,
B. ANALYSIS
To establish ineffective assistance of counsel, a defendant must show thаt (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the
Defendant argues that his trial counsel was ineffective by failing to present to the jury the factual question whether Michigan had territorial jurisdiction. As stated in Gayheart,
assuming that the exact location of a boundary line is not at issue in the case, the trier of fact must next determine as a factual matter whether the alleged act, consequence, or other condition that would confer territorial jurisdiction under MCL 762.2 did in fаct occur within the state of Michigan. The clear majority rule in this country is to require the trier of fact to find beyond a reasonable doubt that the alleged act, consequence, or other condition that would confer jurisdiction has in fact occurred within the territorial jurisdiction of the court when the matter is placed in issue.
Defendant supports his argument by noting that the jury, while deliberating, asked, “What constitutes a crime in this case to be tried in Kent County?” and “Why specifically is this case being tried in Kent County?” Contrary to defendant’s claim, we find that only the second question relates to territorial jurisdiction.
*47 The second question I answered as follows, and this will be made part of the record. “This question appears to address the issue of venue. You must be satisfied that at least some of the activity involvеd in each count you are considering took place in Kent County for there to be venue in Kent County. Why a case is being tried somewhere is not an element of the offense and is not something you need to consider.”
The trial court asked if either counsel wished to “amplify the record,” and both replied, “[n]o, your honor.”
Initially we conclude that the trial court’s instruction likely satisfied Gayheart’s requirement thаt the trier of fact determine whether MCL 762.2 was satisfied. The trial court expressly required that the juiy “be satisfied that at least some of the activity involved in each count you are considering took place in Kent County....” This instruction essentially enabled the jury to acquit defendant had it accepted defense counsel’s claim at trial that no criminal activity occurred in Kent County. Thus, we are not сonvinced that the trial court failed to adequately instruct the jury in regard to territorial jurisdiction under MCL 762.2. Likewise, we are not convinced that there was a reasonable probability that the result of the proceeding would have been different had the jury been instructed on every circumstance allowing criminal prosecutions under MCL 762.2. As in Gayheart, we conclude that “sufficient evidence [was] presented at trial from which a rational jury could have found beyond a reasonable doubt that defendant committed at least one essential element” of preparing to engage in child sexually abusive activity and using a computer to do so and reversal is not required. See Gayheart,
IV OPPORTUNITY TO PRESENT A DEFENSE
A. STANDARD OF REVIEW
Questions of law are reviewed de novo. Brown v Loveman,
B. ANALYSIS
“Under the Due Process Clause of the Fourteenth Amendment[
Defendant argues that the trial court improperly denied his claim of an affirmative defense that the “victim” in this instant case was actually an adult. Defendant notes that in
“An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse or mitigate it. . . .” People v Mette,
We affirm.
Notes
Both parties employed this descriptive term in their briefs on appeal.
Also, MCL 767.45(l)(c) provides in relevant part that “[n]o verdict shall be set aside or a new trial granted by reason of failure to prove that the offense was committed in the county or within the jurisdiction of the cоurt unless the accused raises the issue before the case is submitted to the jury.” There was no mention here that the offense was not committed in the court’s jurisdiction, and review is likely limited to plain error affecting defendant’s substantial rights. People v Carines,
In regard to the first question, which does not address territorial jurisdiction, the trial court answered:
As to the first question, the defendant is charged with soliciting, conspiring to commit an offense under the law. Either an actual person below the age of 18 must have been involved or the defendant must have believed someone below the age of 18 was involved. To put it another way, either the person who communicated [as] Carrie Bearie 94 was under the age of 18 or the defendant believed the*47 person was under the age of 18. The burden of demonstrating this, as is the case for all elements of the offenses charged on the government, must be shown beyond a reasonable doubt.
US Const, Am XTV