On February 19, 2015, the Michigan Court of Appeals issued a published opinion in the matter of People v Evans Costner (Docket No. 316806). In Costner, the Court of Appeals held that an individual who is even 1 day past the 4-year or 48 month eligibility limit described under MCL 28.728c(14)(a)(ii) (the “Romeo and Juliet” provision of the Michigan Sex Offenders Registration Act “SORA”), is ineligible to obtain relief under the statute. This is a case of simply statutory rape — it involved consensual sex between teenagers. Since the age of consent in Michigan is 16, however, it was illegal for them to engage in sex.

Mr. Costner pled guilty to attempted third degree criminal sexual conduct, MCL 750.520d(1)(a). Mr. Costner’s conviction arose from a consensual act of sexual intercourse when he was 18 years old and the complainant was 14 years old. The age difference between Mr. Costner and the complainant was 4 years and 23 days. Mr. Costner was sentenced to 36 months probation under the Holmes Youthful Trainee Act “HYTA,” MCL 762.14. However, Mr. Costner violated the terms of his probation, was sentenced to 13 days in jail, and later had his HYTA status revoked by the Court due to his probation violations. As a result of the HYTA revocation, Mr. Costner was required to register as a sex offender under SORA.

Mr. Costner subsequently petitioned to be removed from the sex offender registry pursuant to MCL 28.728c(14). The trial court denied Mr. Costner’s petition, holding that since Mr. Costner was 4 years and 23 days older than the victim, Mr. Costner did not satisfy the “not more than four years older” requirement under the statute. The Michigan Court of Appeals held that the trial court was correct to deny Mr. Costner’s petition since Mr. Costner was 4 years and 23 days older than the victim.

The Court of Appeals reasoned that because MCL 28.728c(14)(a)(ii) calls for the calculation of time, rather than age, Mr. Costner’s reliance on the Court’s implementation of the “birthday rule” in People v Wookfolk, 304 Mich App 450 (2014) was misplaced. Further, the Court of Appeals reasoned that the statutory definition of a “year” under MCL 8.3j would be inconsistent with the Legislature’s intent. Thus, the Court of Appeals held that when MCL 28.728c(14)(a)(ii) inquires into whether a defendant is “not more than 4 years older” than the victim, it is using the commonly understood definition of a year as a measurement of time, and a year is commonly understood as being 12 months in duration.

The Court of Appeals opinion can be found here.

Judge Elizabeth Gleicher wrote a dissenting opinion in the case. Judge Gleicher wrote that the question as to whether Mr. Costner was “more than four years older” than the complainant when the two engaged in consensual sexual relations depends on how “years” are measured, and in Judge Gleicher’s view, the Legislature solved this dilemma by enacting MCL 8.3j, defining a year as a “calendar year.”

Following the calendar year definition of year under MCL 8.3j, Judge Gleicher writes that she would hold that because Mr. Costner was not more than four calendar years older than the complainant, Mr. Costner was improperly placed on the sex offender registry. Further, Judge Gleicher states that she would hold that the term “not more than four years older” should be construed to mean that the defendant was not more than four years older than the complainant due to the remedial purpose of the statute.

Judge Gleicher’s dissent can be found here.

At the Law Offices of Shannon Smith, we frequently represent teenagers who are accused of having sex with partners who are underage. If you or a loved one are facing charges, whether the alleged sex was consensual or not, contact our office today for a free consultation.

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