St. Joseph Michigan Criminal Defense Blog

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Sex Offender Registration Act

Big Changes Coming to the Michigan Sex Offender Registration Act

Sex Offender Registration Act

Like most states, Michigan requires individuals convicted of certain sexual offenses to register with local law enforcement. Currently, certain basic information is available to the general public about these individuals. But starting July 1, 2011, the Michigan Sex Offender Registration Act is getting an overhaul. The three biggest changes are:

  • The implementation of 3 tiers of offenses based on their nature and severity with different registry requirements for each; and
  • The requirement of registering individuals to provide more information and report changes more quickly;
  • The exclusion of so-called Romeo & Juliet and juvenile offenders from registration.

This post will briefly describe the new Michigan Sex Offender Registration Act focusing primarily on the changes coming in July.

 

3 Tiers of Offenses Treat Offenses Based on Nature and Severity

As the law presently stands, any person convicted of a listed offense is required to register as a sex offender for 25 years as a first offender and for life as a repeat offender. Listed Offenses range from a conviction for disorderly person with indecent or obscene conduct up to and including Criminal Sexual Conduct in the first degree (rape), Kidnapping a minor, and Creating Child Abusive Material (child pornography). While the Offender Detail on the website indicates the particular offense the individual was convicted of, all offenders are treated the same and listed together in the same list. When observing a list of offenders in a particular geographic area, there is no differentiation between a repeat child molester and a person who was convicted of indecent exposure (streaking). Under the new amendment, each database entry will indicate the tier of the offender, so that the public will know the severity of the offense without having to wade through the convicted offenses.

A Tier 1 Offender is a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

  • Possession of Child Abusive Material (child pornography)
  • Aggravated Indecent Exposure toward a minor
  • Unlawful Imprisonment of a minor
  • Criminal Sexual Conduct 4th Degree and Criminal Sexual Assault of an adult
  • Stalking of a minor

Tier 1 Offenders must register 1 time per year for 15 years following their conviction or release from jail or prison.

A Tier 2 Offender is a person who commits a second Tier 1 Offense, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

  • Accosting or Soliciting a minor (1st or 2nd offense)
  • Creation or Distribution of Child Abusive Material (child pornography)
  • Use of a Computer in a Sexual Felony
  • Sodomy unless
    • The victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim; or
    • The victim was 16 or 17 years of age and consented to the act with an individual who was not in his or her household or a position of custodial authority at the time.
  • Gross Indecency unless one of the above exceptions applies
  • Solicitation of Prostitution or Immoral Act of a minor
  • Pandering
  • Criminal Sexual Conduct 2nd Degree or 4th Degree, or Criminal Sexual Assault of a minor over 13 years of age
  • Criminal Sexual Conduct 2nd Degree of an adult

Tier 2 Offenders must register 2 times per year for 25 years following their conviction or release from jail or prison.

A Tier 3 Offender is a person who commits another listed offense after being required to register as a Tier 2 Offender, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

  • Gross Indecency with a minor under 13
  • Kidnapping of a minor
  • Parental Kidnapping
  • Criminal Sexual Conduct 1st Degree or 3rd Degree, or Aggravated Criminal Sexual Assault unless the victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim
  • Criminal Sexual Conduct 2nd Degree or Criminal Sexual Assault against a minor less than 13 years of age
  • Criminal Sexual Conduct 4th Degree committed by a person age 17 or older against a minor less than 13 years of age

Tier 3 Offenders must register 4 times per year for life.

Importantly, the new listed offenses exclude Indecent Exposure (other than aggravated) and Disorderly Person. Also, the amended statute eliminates a much-contested catch all provision that allowed a judge to require a person to register if convicted of an unlisted offense that was sexual in nature.

 

Sex Offenders Will Be Required to Provide More Information

The law as it stands now requires sex offenders to report their:

  • Name,
  • Social security number,
  • Birth date,
  • Residential address,
  • Physical description;
  • Photograph; and
  • Fingerprints.

Starting July 1, 2011, individuals who are required to register will have to provide all of the above information as well as reporting:

  • Any temporary residence where they will stay for more than 7 days;
  • Employers (including contractors);
  • Schools where they are enrolled;
  • Telephone numbers;
  • Email addresses and instant message screen names or identifiers;
  • License plate, registration, and description of any motor vehicle they regularly use;
  • Drivers License Number (or state identification card number);
  • Digital copies of their passports or immigration documents;
  • Professional licenses; and
  • Palm prints.

All of this information will be made available to law enforcement agents. The public will have access to all of this information except the individual social security number, travel and immigration documents, and email addresses or instant message screen names. In addition, the public website will contain a description of the sexual offense of which the individual was convicted, as well as any additional sexual offenses they were charged with at the time.

In addition, where today a sex offender must register changes in residence within 10 days of changing that residence, beginning July 1, 2011, that individual must report within 3 days of:

  • Changing residences;
  • Changing employment or having employment terminated for any reason;
  • Enrolling as a student or discontinuing enrollment;
  • Changing his or her name;
  • Temporarily residing in another location for more than 7 days;
  • Establishing any new email or instant message addresses
  • Purchasing or beginning to use any vehicle or selling or discontinue use of any vehicle

Also, the one time registration fee will increase from $35.00 to $50.00. The result of these changes will be that the public will have access to significantly more information on sex offenders in their geographic area, but the burden on those required to register will be significantly greater. It is likely that this will result in significantly more prosecutions for failure to comply with this act.

 

Romeo & Juliet and Juvenile Offenders Can Petition to Be Excluded from the Registry

For the first time, the amended statute will provide a method for certain offenders to be excluded from registration based on the circumstances of their particular offense. In deciding whether to exclude a particular individual, the courts will consider:

  • The offender age and maturity at the time of the offense
  • The victim age and maturity at the time of the offense
  • The nature of the offense
  • The severity of the offense
  • The offender prior criminal and juvenile history
  • The likelihood the offender will commit further sexual offenses
  • Any victim impact statement
  • Any other relevant information.

However, if the court determines the individual continues to be a threat to the public, the request will be denied.

Tier 1 Offenders may petition the court:

  • 10 years after their conviction or release from jail or prison
  • If they have no subsequent felony convictions
  • If they have no subsequent listed offenses
  • If they have successfully completed any probation or parole without revocation; and
  • If they have completed a sex offender treatment program.

Tier 3 Offenders may petition the court:

  • 25 years after their adjudication or release from confinement
  • If they were adjudicated responsible as a juvenile offender
  • If they have no subsequent felony convictions
  • If they have no subsequent listed offenses
  • If they have successfully completed any probation or parole without revocation; and
  • If they have completed a sex offender treatment program.

All offenders may petition the court if the conviction was the result of a consensual sexual act and

  • The victim was between the ages of 13 and 16 and the offender was less than 4 years older; or
  • In Sodomy or Gross Indecency cases, the victim was between the ages of 13 and 16 and the offender was less than 4 years older; or
  • In Sodomy, Gross Indecency, or Criminal Sexual Conduct 2nd Degree cases, the victim was 16 years old or more and not a part of the same household or under custodial authority of the offender

All offenders may also petition the court if they were adjudicated as a juvenile and were less than 14 years of age at the time of the offense, or if the offense for which they are required to register is no longer a listed offense after July 1, 2011.

 

The Sex Offender Registration Act has always been a complicated statute and has always carefully balanced the needs of the public against the rights of sexual offenders. The upcoming changes are equally complex but they will hopefully allow offenders to be treated differently in appropriate proportion to the nature and severity of the offense, and will allow the public to better distinguish the real threats to its safety.

 

 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Crime case charge

I’ve Been Charged With a Crime, Now What?

Crime case charge
Being charged with a crime can be an intimidating thing for many people. Courthouses are large and busy places and it is easy to get lost in what is happening in your case. To clear up some of that confusion, here is a very basic outline of the various court hearings in different kinds of criminal cases. There may be additional hearings in your particular case, depending upon what you have been charged with and the circumstances of your case.

There are three types of matters that are dealt with in the criminal courts: civil infractions, misdemeanors, and felonies.

A civil infraction is generally a minor traffic-related offense such as speeding. These matters have no chance of sending a defendant to jail. Usually, the primary issues in these matters are the amount of fines and costs and the license consequences imposed by the Secretary of State. Because of the low severity of these matters, they involve the least number of hearings. If you are charged with a civil infraction you can expect the following court hearings:

  • Arraignment: At this hearing you (and your attorney if you have retained one) appear before a magistrate or judge and enter a plea (generally not guilty) to the offense charged. The hearing usually happens within 14 days of the charges being issued (generally when you get the ticket). The magistrate or judge will impose a bond if you have not already done so at the jail. If you are unable to post the bond at the time of arraignment you will be taken to the jail until you can produce the required funds. For this reason, it is always a good idea to bring a fair amount of cash with you to the arraignment. Bonds for civil infractions generally range from $100 to $500.
  • Pretrial: This hearing is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached. In a plea agreement, the defendant agrees to plead responsible to some charge, usually lower than the one initially authorized, in exchange for certain concessions on the part of the prosecutor. In a civil infraction, this could mean that you receive fewer points on your license, or that the fines and costs will be capped, or you may be given more time to pay. If you reach a plea agreement at the time of the Pretrial conference, you will go before the magistrate or judge who will ask you questions about what happened on the date in question, and about whether you understand what is happening and the potential consequences. Be respectful when speaking to the judge or magistrate. This is the person who has the final say on many of the consequences of your charge, so now is not the time to express you distrust of the court system, or your displeasure over appearing before him or her.
  • Formal Hearing: This is the big day. If you and your attorney have not been able to come to a plea agreement with the prosecutor before this hearing, then this is your opportunity to present evidence to the judge about why you are not responsible for the charges. The prosecutor will put on evidence, most likely including the testimony of the officer who issued the civil infraction ticket, to show that you are responsible for violating a provision of the motor vehicle code. Your attorney will have an opportunity to cross-examine any witnesses put on by the prosecution and to examine all the evidence. Then your attorney will put on any evidence that you have provided to show why you are not responsible. This could include having you testify in court. After all the testimony has been heard and evidence received, the judge will determine whether or not you are responsible and will impose a sentence (penalty) if you are in fact responsible. The judge has the final say, though there may be an opportunity to appeal
  • .

A misdemeanor is a crime that is generally punishable by a maximum sentence of one year or less, but certain “high court misdemeanors” include two-year maximum sentences. They are resolved solely within the District Court. (Berrien County has a unified Trial Court, which includes both District and Circuit Courts.) These crimes include higher-severity traffic offenses (such as operating while intoxicated), most theft offenses, some low-severity assaultive crimes, and various other low-severity crimes. Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.” This means that the defendant will not be held in jail for more than 28 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 28 day limitation) If you are charged with a misdemeanor you can expect the following court hearings:

  • Arraignment: This hearing is just as it is described above, except that it will be held before a District Court Judge, rather than a magistrate. Bonds for misdemeanors generally range up to $5,000 but usually only require the defendant to pay 10% (or $500).
  • Pretrial: This hearing is just as it is described above. In a misdemeanor, a plea agreement could mean that you may not have to go to jail, may only be required to serve probation, or may even be able to only pay fines and costs. If there is alcohol, controlled substances, or a victim involved in the charges, the judge will set the matter for sentencing at a later date. If not, then he or she will likely sentence you at the same time as the plea.
  • Final Pretrial or Status Conference: This hearing is usually scheduled a day or two prior to the jury trial (see below). It is your last chance to make a deal with the prosecutor before going through the jury trial process.
  • Jury or Non-Jury Trial: This is the equivalent of the Formal Hearing in a civil infraction. In a misdemeanor case, you can demand to have a jury of six people from your community (your peers) hear your case rather than just the judge. After all the testimony has been heard and evidence received, the jury (or judge in a non-jury trial) will determine whether or not you are guilty.
  • Sentencing: At this final hearing, the judge will impose a sentence (penalty) if you are in fact found guilty. The judge has the final say, though there may be an opportunity to appeal.

A felony is a high-severity crime, usually defined as a crime that has a possible penalty of more than one year in a state prison. They are initially addressed by the District Court, but a final determination will be made by the Circuit Court. These crimes include most drug crimes, most serious assault crimes, weapon charges, and other high crimes. These are the most serious criminal charges. Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.” This means that the defendant will not be held in jail for more than 180 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 180 day limitation) If you are charged with a felony you can expect the following court hearings:

  • Arraignment: This hearing is just as described in the civil infraction section except that it occurs before a District Court Judge. Bonds for felonies can range into the tens and even hundreds of thousands. Often the defendant is only required to pay 10% of the amount ordered. Other times, a bail bondsman can be hired to post the bond for a payment of 10% of the total bond issued.
  • Pre-Exam Conference: This hearing in the District Court is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached. However, often you will have to wait until after the Preliminary Examination to enter the plea, because it must be entered in Circuit Court. This hearing also provides an opportunity for your attorney to request disclosure of important evidence in your case and find out the factual basis behind the charges.
  • Preliminary Examination: This hearing in the District Court requires the prosecutor to put forward enough evidence to show that there is “probable cause” to believe that a crime has been committed and that the defendant is the one who committed it. Probable cause is a very low standard to meet, so very few cases are dismissed at the Preliminary Examination stage. Basically, this hearing is a check to make sure there is enough evidence to move forward. In a practical sense, the primary purpose of a Preliminary Examination is to give your attorney a first look at the evidence against you. If the District Court judge determines that there is probable cause in your case, it will be “bound over” to Circuit Court. Your District Court bond may be continued or you may be arraigned again in Circuit Court.
  • Case Conference: This hearing in the Circuit Court gives you and your attorney a chance to negotiate a plea agreement with the prosecutor. In a felony matter, this could mean that you may be sentenced to time in a local jail instead of a state prison, may only be required to serve probation, or, in rare cases, may even be able to only pay fines and costs. Following the entry of a plea the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
  • Status Conference: This hearing is usually scheduled a day or two prior to the jury trial. It is your last chance to make a deal with the prosecutor before going through the jury trial process. It is also an opportunity for your attorney and the prosecutor to make certain that everything is in place for the trial, and for the Circuit Court Judge to make rulings on any pre-trial motions filed by either attorney.
  • Jury or Non-Jury Trial: This hearing is just as described in the misdemeanor section, except that the jury may have up to twelve members. If the jury finds that you are guilty of the charges against you, the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
  • Sentencing: At this final hearing, the Circuit Court Judge will impose a sentence (penalty) if you are in fact found guilty. The judge has the final say, though there may be an opportunity to appeal.

In any of the above matters, your attorney may schedule additional hearings to try to modify the terms of your bond, limit the evidence that can be used at trial, and assert certain defenses. These hearings will generally be heard before the Final Pretrial or Status Conference.

Criminal court procedure can be confusing and is often raced through by prosecutors and judges who have heavy caseloads and busy schedules. A good defense attorney is essential to make sure that your rights and interests are fully represented and that you do not get lost in the shuffle.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Supreme Court Rules

Supreme Court Rules the Dead Can Speak at Trial

Supreme Court Rules

On February 28, 2011, the Supreme Court ruled on a Michigan case involving statements made to the police by the victim in Michigan v. Bryant. In a decision that appears to go against existing legal precedent, Justice Sotomayor writing on behalf of the Court held that the statements of the victim to the police were admissible at trial because the primary purpose of those statements were made to address an ongoing emergency.

To understand this decision, you need a little background. The United States Constitution grants each criminal defendant the right to be confronted with the witnesses against him. This is designed to protect the defendant against statements made to the police or other government officials when he or she has not had the opportunity to cross-examine or question the validity of those statements. However, for many years it had been common practice to allow these statements to be admitted at trial as long as they fell within one of the commonly accepted hearsay exceptions including statements made in contemplation of death. The theory was that the circumstances in exceptions were inherently more credible because a person was less likely to lie if, for example, he or she believed he was about to die.

In 2004, in a case called Crawford v. Washington, the Supreme Court reigned in on this liberal use of hearsay exceptions to avoid requiring witnesses to confront the defendant. In that case the Court ruled that, even if a hearsay exception applied, a witness must be required to confront the defendant unless he or she was legally unavailable and the defendant had had a previous opportunity to cross examine the witness. If not, then any statement that was testimonial in nature would be inadmissible at trial. Testimonial was not expressly defined, but included police interrogations.

Two years later the Supreme Court addressed the issue of when a statement is testimonial in Davis v. Washington and Hammon v. Indiana. Essentially, the Court carved out an exception that statements made to police are not testimonial if the primary purpose for the statements was to resolve a present emergency. The Court in Davis distinguished between recounting events that were currently happening, and describing past events.

It was in light of this history of cases that the Court made its ruling in Michigan v. Bryant. The police in the case found the victim shot and bleeding in the parking lot of gas station. The victim reported that he had been shot by the defendant through the back door of the defendant home, and that he had driven himself to the parking lot. The emergency medical services arrived within approximately 10 minutes and transported the victim to the hospital where he died within hours. Despite the fact that the shooting had occurred 25 minutes earlier in another location some unknown distance away from where the victim was found, the Supreme Court ruled that there was an ongoing emergency and that the primary purpose of the questions and answers were to address the ongoing emergency. To justify its departure from Davis and Hammon, the court noted that here there was a gun involved, which the court seemed to imply created an inherent risk to the public. The Court also relied on the “informal” and at times disorganized nature of the police questioning as evidence of an “ongoing emergency.” Also, the Court stated that nothing the victim had said would lead the police to think that this was a private conflict or that the emergency had ended. Thus rather than having to demonstrate that the emergency still existed, all that the police, and by extension the prosecutor, had to demonstrate was that the possibility of a threat to the public had not been eliminated.

The effect of this case is that the ongoing emergency exception to what is testimonial requiring witnesses confront the defendant in a criminal trial has been greatly broadened. Rather than the common understanding of an emergency, which would require some apparent and readily present threat, the Court has created an assumption that, at least where a gun is involved, an ongoing emergency exists until the police can locate the suspect or believe that he is unarmed or otherwise unlikely to be a risk to the public. Future criminal defendants and their lawyers will need to be aware of this definition of an ongoing emergency and future appeals will have to define exactly how long such an emergency might last when, as here, there is no apparent threat when the police arrive on the scene.

Read the opinion here.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Criminal defense

Beyond The Sentence

Criminal defense

Criminal defense attorneys often get wrapped up in the particular terms of a sentence when talking to their clients about the benefits and risks of taking a plea, but for our clients, we realize that your concerns are much broader. You want to know how this conviction is going to impact your life. This includes plenty of what attorneys call collateral consequences that go beyond jail, probation, and fines and costs. Here is an almost definitely incomplete list of potential affects of a conviction that you should be aware of.

Deportation

Probably the most important consequence to any non-citizen is the risk of deportation. There are several crimes, including most felonies, which will cause you to be deemed deportable if you are convicted of them or plead guilty to them. Once you are deemed deportable you will be automatically deported unless you fit into a very narrow exception that would allow the Attorney General to waive deportation. The crimes that may cause you to be deemed deportable are:

  • Crimes of moral turpitude with a possible sentence of at least 1 year in jail that are convicted within 5 years of your date of admission (or 2 or more crimes of moral turpitude regardless of when they are committed)
  • Aggravated felonies
  • Failure to register as a sex offender
  • Controlled Substance crimes except for a single offense for possessing 30 grams or less of marijuana for personal use
  • Drug abuse or addiction
  • Firearm offenses
  • Domestic violence, stalking, or child abuse, neglect, or abandonment
  • Violation of a Personal Protection Order involving threats of violence, harassment or bodily injury to the protected party
  • Additional federal crimes

Sex Offender Registry

Another very important consequence of some convictions is the requirement that you register as a sex offender. If you are convicted or plead guilty to an offense listed in the Michigan Sex Offender Registry Act, MCL 28.722, you will be required to register as a sex offender for a period of 25 years. If you already are required to register as a sex offender, then you will be required to register for life. This requirement applies to the following crimes:

  • Accosting, enticing or soliciting child for immoral purpose
  • Sodomy against a minor
  • Indecent Exposure, Second Offense
  • Third or subsequent offenses of any of the following:
    • Disorderly Person
    • Indecent Exposure
  • Gross indecency against a minor
  • Kidnapping a minor
  • Leading, taking, carrying away, decoying, or enticing away a child under 14
  • Soliciting, accosting, or inviting a minor to commit prostitution or immoral act
  • Pandering
  • Criminal Sexual Conduct or Sexual Assault

Driver License Consequences

Many criminal charges also carry with them the risk of sanctions to your driver’s license through the Michigan Secretary of State. These determinations are made by the Secretary of State and are not within the control of the prosecutor or the court. These sanctions apply to the following crimes:

  • Controlled Substance crimes
  • Operating While Intoxicated
  • Operating While Visibly Impaired
  • Open Intoxicants in a Motor Vehicle
  • Minor in Possession of Alcohol
  • Use of a False ID to Purchase Alcohol
  • Driving While License Suspended
  • Failure to Pay Child Support

Also, even if you have not been convicted, if you were asked to take a chemical test to determine whether you were intoxicated while driving and you refused your license will be automatically suspended for one (1) year. If you refuse a second time within seven (7) years, your license will be automatically suspended for two (2) years.

Civil Liability

Sometimes, criminal actions can also expose you to civil liability to the victim. These include cases of malicious destruction of property and assault matters as well as others. If you are convicted or plead guilty to these kinds of criminal actions, what you say on the record can be used against you in the civil suit, potentially exposing you to paying substantial financial damages. However, this can be avoided if you agree to plead No Contest to the charges. Sometimes a prosecutor will not agree to this arrangement, but if you are concerned about a potential lawsuit, talk to your attorney about avoiding that liability by pleading No Contest instead.

Employment

Some employers will not hire convicted felons. However, the employers who take a hard line on this are fewer than you think. More often, they want to know the circumstances behind the conviction. Also, if you are convicted to a misdemeanor, many employers will still be willing to hire you.

However, there are some jobs, particularly those that require special security clearance, that take a hard stance against criminal activity, even after you are already hired. Also, several industries such as the medical field, attorneys, and day care providers, require certifications that will be revoked if you are convicted or plead guilty to certain kinds of crimes. If you work in one such industry, tell your attorney. He or she will work hard to keep any plea agreement on such terms that your employment consequences will be minimal.

Scholarships

In today economic climate, many people are going back to school and relying on federal and state scholarships to pay for tuition and living expenses along the way. It is important to know that conviction of a felony may make you ineligible for future financial aide. In particular, conviction of a controlled substance felony will make you lose any federal funding that you have previously been awarded.

 

There is more to being convicted of a crime than just jail time, probation, and fines and costs, but if you are actively involved in the plea negotiation process and inform your attorney of any special circumstances that may apply to your case, then your attorney can work hard to help minimize the collateral consequences of your conviction or guilty plea.

 

 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Burglary Case

St. Joseph, Michigan, Burglary Case Upheld by Court of Appeals

Burglary Case
The Michigan Court of Appeals published a case recently, People v. Osby, which upheld the conviction of a defendant for breaking into several motor vehicles in and around St. Joseph, Michigan, and for possessing burglar tools, a felony punishable by up to ten (10) years in prison.

The defendant was arrested after police reviewed surveillance footage showing an African American man walking toward the vehicle of one of the victims from a white van. That white van was later tracked to a motel where the defendant was staying. A search of the defendant hotel room revealed items belonging to the victims and marijuana. The police arrested the defendant and discovered a window punch when they searched him.

A window punch, or window hammer, is a small, sharply pointed object that is used to shatter the window of a vehicle to provide quick access or escape. It is often carried by emergency personnel and police responding to automobile accidents. On appeal, the defendant questioned whether this window punch could be considered a burglar tool to support a conviction of possession of burglar tools contrary to MCL 750.116. The statute makes it a crime to knowingly possess any device, tool, or substance used for forcing or breaking open any building, room, vault, safe or other depository to steal property therein. The defendant argued that the statute did not apply to automobiles. However, the court of appeals ruled that a depository was a catch-all phrase which included motor vehicles or any place a person would leave money or valuables for safekeeping. Because the average person locks his or her car doors assuming the contents of the vehicle will be safe, the court determined that a vehicle can be considered a depository under the statute.

The defendant appealed on several other grounds as well, but the court of appeals found no error in the conviction or sentence.

Read the statute and the Michigan Court of Appeals’ opinion on the State of Michigan website.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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