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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 16, 2016

v No. 326149
Kent Circuit Court ABIGAIL MARIE SIMON, LC No. 13-009055-FC

Defendant-Appellant.

Before: S AWYER , P.J., and H OEKSTRA and W ILDER , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of three count s of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b)( v ), 1 and accosting a minor for immoral purposes,
MCL 750.145a. The trial court sentenced defendant to concurren t sentences of 8 to 25 years for the CSC I convictions and 53 days for the accosting conviction. The trial court also ordered defendant to comply with the Sex Offenders Registration Act (SO RA), MCL 28.721 et seq. , and that, upon parole, defendant be subject to lifetime electronic monitoring. Defendant appeals as of right. For the reasons expl ained in this opinion, we affirm defendant’s convictions, but
remand for Crosby 2 proceedings concerning def endant’s sentences.

This case concerns sexual conduct between defendant, who was an academic advisor at Catholic Central High School in Grand Rapids, and a 15-year-old sophomore at the school. Defendant was 33 years old. At trial, the victim described num erous sexual acts with defendant and the prosecutor presented extensive evidence of text message s, including sexual messages,
between defendant and the victim . Defendant testified that thr ee sexual penetrations occurred, but she claimed that, on each occasion, the victim raped her. Defendant also testified that all the text messages she sent to the victim, including ones where she told the victim that she loved him and ones where they discussed “rough” sex, were done to appease the victim. According to defendant, if she appeased the victim, he would not assault her . The jury convicted defendant as noted above. She now appeals as of right.

1 Defendant was acquitte d of a fourth count of CSC I.

2 United States v Crosby , 397 F3d 103 (CA 2, 2005).-2- I. VOLUNTARINESS INSTRUCTION

On appeal, defendant first argue s that the trial court gave aninaccurate and misleading instruction regarding involuntariness because it instructed the jury that an act is not involuntary
unless the defendant was unconscious or it was the result of involuntary bodily movement. Defendant asserts that sexual pe netration is also “involuntary” when an actor is overcome by force and that, given defendant’s testimony and claimed defense , the jury also should have been specifically instructed that an act was involuntary if defendan t was overpowered and physically forced to engage in the sexual conduct at issue. According to defendant, the erroneous instruction constituted a structural error, which violated her constitutional right to due process and prevented her from presenting her claimed defense.

We review de novo defendant’s cla im of instructional error. People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007). A trial court must instruct the jury on the applicable law.

See People v McGhee , 268 Mich App 600, 606; 709 NW2d 595 (2005). Jury instruction s must include all the elements of the charged offenses and any materi al issues, defenses, and theories that are supported by the evidence. People v Fennell , 260 Mich App 261, 265; 677 NW2d 66 (2004). Jury instructions are to be read as a whole, rather th an extracted piecemeal, to determine whether error requiring reversal occurred. McGhee , 268 Mich App at 606. “Even if the instructions are somewhat imperfect, reversal is not required i f the instructions fairly presented the issues to be tried and were sufficient to protect the right s of the defendant.” Fennell , 260 Mich App at 265. Reversal for failure to provide a jury instru ction is warranted only if “it appears that it is more probable than not that the error was outcome determinative.” People v McKinney , 258 Mich App 157, 163; 670 NW2d 254 (2003).

Defendant was charged with CSC I, MCL 750.520b(1)(b)( v ), which provides:

(1) A person is guilty of criminal sexual conduct in the firstdegree if he or she engages in sexual penetration with another person and if an y of the following
circumstances exists:

* * *

(b) That other person is at least 13 but less than 16 years of age and any of the following:

* * *

( v ) The actor is an employee or a contractual serv ice provider of the public school, nonpublic school, school district, or intermediate scho ol district in which that other person is enrolled . . . and the actor uses his or h er employee, contractual, or volunteer status to gain access to, or to estab lish a relationship with, that other person.

“Sexual penetration” is defined as “sexual intercourse, cunnili ngus, fellatio, anal intercourse, or any other intrusion, however sli ght, of any part of a person’s body or of any object into the genital or anal openings of another person’s body . . . .” MCL 750.520a(r).-3- The sexual penetration of a per son under the age of 16 is a strict-liability offense. People v Nyx , 479 Mich 112, 140-141; 734 NW2d 548 (2007) (M ARKMAN , J., concurring). See also In
re Hildebrant , 216 Mich App 384, 386; 548 NW2d 715 (1996). A strict-liabili ty offense does
not include a mens rea element, but the actus reus remains an element of the crime. People v

Likine , 492 Mich 367, 393; 823 NW2d 50 (2012). In other words, “a strict-liability offense requires the prosecution to pr ove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant’s intent and regard less of what the defendant actually
knew or did not know.” Id.

When charged with a strict-liability offense, a defendant can admit that the prohibited act was committed, but defend the charge on the basis that the act was committed involuntarily. Id. “Examples of involuntary acts tha t, if proved, provide a defens e against the actus reus element of
a crime include reflexive acti ons, spasms, seizures or convulsi ons, and bodily movements occurring while the actor is unconscious or asleep.” Id. at 393-394. “The common thread running through these ‘involuntarin ess’ defenses is that the ac t does not occur under the defendant’s control, and thus the defendant was powerless to pr event its occurrence and cannot be held criminally liable for the act.” Id. at 394. “One approach is to explain voluntariness as the opposite of involuntariness . . . . An alternative accountis of voluntary behavior as volitional
action—behavior which is intenti onal under some description, wh ich is ‘done because the agent
wants to do it.’ ” Id. at 394 n 49 (quotation omitted).

The Supreme Court in Likine provided examples of involuntary acts, id. at 393-394, but it never indicated that this list was exclusive. In fact, the Sup reme Court stated that it was providing “[e]xamples” of involuntary acts. Id. at 393. Although not included in the Court’s list of specific examples of involuntary acts, we agree with defenda nt that, where sexual penetration occurs against a defendant’s will only because a defendant is p hysically overcome through force, there is no voluntary act by the defendant. Rather, as opposed to being the perpetrator of criminal sexual conduct, the defendant would essentially be a v ictim, who was subjected to the sexual conduct involuntarily. See generally People v Parks , 483 Mich 1040, 1045; 766 NW2d 650 (2009) (Y OUNG , J., concurring) (“‘[S]exual conduct’ is something that both ‘actors’ and ‘victims’ take part in—‘actors’ voluntarily and ‘victims’ invol untarily.”). In such circumstances, the sexual penetration would not occur under the defendant’s co ntrol, nor would it be done
because the defendant wanted it done. Likine , 492 Mich at 394, 394 n 49. Accordingly, defendant could defend the CSC I charges on the basis that the sexual penetrations were involuntary, and she was entitled to a jury instruction on invo luntariness. See Fennell , 260 Mich App at 265.

Relevant to the voluntariness of defendant’s conduct pertainin g to the CSC I counts, the trial court instructed the jury that “the defendant is charged with the crime of first degree criminal sexual conduct. To prove this charge the prosecutor m ust prove each of the following elements beyond a reasonable doubt . First, that the defendant voluntarily engaged in a sexual act . . .” (emphasis added). The trial court then gave the followi ng instruction regarding the word “voluntary”:

Now, ladies and gentlemen, when I use the word quote/unquote “voluntary” in the first element of criminal sexual conduct, it has a specific legal meaning that is different from the way the word is commonly use d. To have-4- quote/unquote “voluntarily” engage d in something, the defendant must have made some conscious act. The defendant’s act is involuntary only if the act did not
occur under the defenda nt’s control, and she was truly powerles s to prevent its

occurrence.

Now, some examples of involuntary acts that could not be the b asis for a crime are spasms, seizures, reflective [sic] actions and moveme nts occurring while the actor is unconscious or asleep. However, if one cons ciously acts, then that is voluntary for purpo ses of this element.

In our judgment, the court’s instructions on CSC I fairly pres ented the issue of whether defendant’s sexual conduct was involuntary. Consistent with Likine , the trial court instructed the jury that an act was involuntary when it “did not occur under the defendant’s control, and she was truly powerless to prevent its occurrence.” See Likine , 492 Mich at 394. This broad explanation of involuntariness en compassed defendant’s claim th at her actions were involuntary because the victim physically overcame her and forced her to su bmit to sexual conduct against her will. In other words, had the jury believed defendant’s ve rsion of events, it would have found her not guilty of CSC I on th e basis of this instruction. Considered as a whole, the instruction given was sufficientto protect defendant’s rights and she has not shown a reasonable probability of a different outcome had more detailed instructio ns on her specific claim been given to the jury.

In contrast to this conclusion, defendant’s argument regarding why the jury instructions failed to fairly present the involuntariness defense is two-fol d. First, defendant claims that the phrases “conscious act” and “consciously acts” in the instructi ons indicate that an act is involuntary only if the defendant is unconscious, i.e., not hav ing consciousness. While the word “conscious” can mean “having mental faculties undulled by sleep , faintness, or stupor,” it can also mean “capable of or marked by thought, will, design, or pe rception.” Merriam-Webster’s Collegiate Dictionary (2014). Read in the context of the voluntariness instruction as a whole, the terms “conscious” and “consciously” refer not to an act don e while the defendant was not unconscious, but to an act that was marked by thought, will, de sign, or perception. Stated differently, read in context, the phrases indicate that the def endant’s act, to be voluntary, must have been an act chosen by the de fendant. This conclusion is s upported by the se cond sentence in the definition of “voluntary,” which provides that an act “i s voluntary only if the act did not occur under the defendant’s control, and she was truly powerles s to prevent its occurrence.” Pursuant to this sentence, an act is voluntary only if it occur red under the defendant’s control and the defendant had power to prevent its occurrence, which requir es more than just the defendant’s faculties being undulled by sleep, faintness, or stupor.

Second, defendant claims that the examples that the trial court provided of involuntary acts were irrelevant and had to have led to the jury concluding that “any ‘conscious’ bodily act, even if physically forced again st a defendant[]” was a voluntary act. The examples of involuntary acts that the trial court gave to the jury—spasms, seizures, reflexive actions, and movements while the defendant is unconscious or asleep—were not specifically applicable to the present case. However, the trial court stated it was giving “s ome examples” of involuntary acts. It did not state that the list of examples it gave was an exclu sive list of involuntary acts. Thus, contrary to defendant’s contention, the instructions did not li mit involuntary acts to those that-5- occurred while defendant was unconscious and those that resulte d from involuntary bodily movement. Rather, when the jury instructions regarding involun tariness are read as a whole, the instructions fairly presented the involuntariness defense. Acc ording to the instructions, defendant was only guilty of CSC 1 if she “voluntarily engaged” in the sexual penetrations, meaning that she engaged in “conscious acts,” such that the pen etrations occurred under her control and she was not powerle ss to prevent them. There was n o instructional error.

II. JUDICIAL FACT-FINDING

Next, defendant argues that she is entitled to be resentenced for her CSC I convictions because the trial court engaged in judicial fact-finding when s coring the sentencing guidelines and the fact-finding resulted in an increased minimum sentence range. We agree that the trial court engaged in fact-finding wh ich resulted in an increased mi nimum sentence range. However, contrary to defendant’s argumen ts, the appropriate remedy is a Crosby remand, not resentencing.

In People v Lockridge , 498 Mich 358, 373-374; 870 NW2d 502 (2015), the Supreme Court held that the sentencing guidelines violate a defendant’s Sixth Amendment right to a jury
to the extent that offense variables are scored on the basis of facts not admitted by the defendant or found by the jury and that those judicially found-facts incr ease the defendant’s mandatory
minimum sentence. To cure the c onstitutional violation, the Su preme Court held that the sentencing guidelines were advisory, rather than mandatory. Id. at 391. In this case, defendant preserved her claim by objecti ng to judicial fact-finding at se ntencing, and the record shows that judicial fact-finding increased her minimum sentence range unde r the legislative guidelines. For example, in scoring offense variable (OV) 4 at 10 points, the t rial court determined that the victim suffered serious psychologi cal injury and, when scoring OV 19 at 10 points, the trial court
determined that defendant interfered with the administration of justice. As scored, defendant’s total OV score is 55, meaning that the trial court’s judicial f act-finding in relation to these variables increased defendant’s minimum sentence range from 35 (level II) to 55 (level III).
Because the trial court relied on facts that were neither found by the jury nor admitted by defendant in order to calculate the minimum sentence range, andbecause the judicially-found
facts resulted in an increased m inimum sentence range, defendan t’s Sixth Amendment right to a jury was violated. See People v Stokes , 312 Mich App 181, 194; ___ NW2d ___ (2015).

In terms of the appropriate remedy for this violation, defendant argues that, because she preserved her Sixth Amendment cl aim, she should be resentenced in keeping with United States
v Lake , 419 F3d 111, 113-114 & n 2 (CA 2 2005). However, in Stokes , 312 Mich App at 198- 203, this Court chose not to follow Lake and held that a Crosby remand was the proper remedy for a preserved Sixth Amendment violation. Given this Court’s decision in Stokes , the remedy
for the violation of defendant’s Sixth Amendment right to a jur y trial is a Crosby remand as set
forth in Lockridge , 498 Mich at 398. See Stokes , 312 Mich App at 198-203. We remand for such proceedings.

III. OFFENSE VARIABLE SCORING

Defendant also argues that she i s entitled to be resentenced b ecause the trial court erred in scoring offense variables 4, 10, and 19.-6- We review a trial court’s factual determinations made in scori ng the sentencing guidelines for clear error. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). A finding is clearly erroneous when we are left with a definite a nd firm conviction that a mistake
has been made. People v Brooks , 304 Mich App 318, 319-320; 848 NW2d 161 (2014). “Whether the facts, as found, are adequate to satisfy the scori ng conditions prescribed by statute, i.e., the application of the fact s to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Hardy , 494 Mich at 438. See also People v Steanhouse

, __ Mich App __, __; __ NW2d __ (2015) ; slip op at 19.

Ten points may be scored for OV 4, MCL 777.34, which concerns psychological injury to a victim, if “[s]erious psyc hological injury requiring profe ssional treatment occurred to a victim.” MCL 777.34(1)(a). In scoring OV 4, a trial court may not merely assume that someone in the victim’s position would have suffered serious psychologi cal injury. People v Lockett , 295 Mich App 165, 183; 814 NW2d 295 (2012). Actual treatment is no t required for the scoring of OV 4. MCL 777.34(2). However, evidence that a victim received counseling may support the scoring of this variable. See, e.g., People v Davenport (After Remand) , 286 Mich App 191, 200; 779 NW2d 257 (2009). In this case, at sentencing, the victim’s mother informed the trial court that the victim had gone to counseling a few times since his re lationship with defendant was discovered, and she specified that he underwent this counseling because he had been “a victim,”
not because of other reasons such as his sister’s recent death. Given this evidence that the victim went to counseling as a result of defendant’s actions, the tria l court did not clearly err in finding that the victim suffered serious psychological injury requiring treatment. See id. We affirm the 10-point score for OV 4.

Ten points may be scored for OV 10, MCL 777.40, which addresse s exploitation of a vulnerable victim, if “[t]he offender exploited a victim’s phys ical disability, mental disability, youth or agedness, or a domestic r elationship, or the offender abused his or her authority status.” MCL 777.40(1)(b). The term “exploit” means “to manipulate a vi ctim for selfish or unethical purposes.” MCL 777.40(3)(b). However, points may only be assi gned to OV 10 if the victim
was vulnerable. People v Cannon , 481 Mich 152, 158; 749 NW2d 257 (2008). The mere existence of one or more factors listed in MCL 777.40(1)(b) doe s not automatically equate to victim vulnerability. MCL 777.40(2); Cannon , 481 Mich at 158-159. I nstead, the term “vulnerability” is defined as “the readily apparent susceptibil ity of a victim to injury, physical restraint, persuasion, or tem ptation.” MCL 777.40(3)(c).

The trial court scored 10 points for OV 10 based on the facts that the victim was a 15- year-old student while the 33-year-old defendant held a positio n of authority as a school employee and the victim’s tutor. We see nothing clearly errone ous in the trial court’s conclusion. The evidence demonstrates that the victim’s youthf ulness left him susceptible to persuasion or temptation by defe ndant and that defendant exploi ted this vulnerability for her own unethical and selfish purposes. Cf. People v Johnson , 474 Mich 96, 103; 712 NW2d 703 (2006) (finding that the 20-year-old d efendant exploited his 15-year-o ld victim in a CSC case). In particular, Thomas Cottrell, an expert in child sexual abuse, e xplained at trial tha t adolescents are not prepared to make adult decisions, and this testimony suppor ts the conclusion that the 15- year-old victim, who had a crush on defendant, was vulnerable t o persuasion and temptation. The evidence also indicates that defendant exploited this vulne rability by, for example, using tutoring sessions to begin a pers onal relationship with the vic tim, moving her meetings with the-7- victim outside of the school to restaurants and later her apart ment, and eventually initiating sexual conduct with the victim. Over the course of many weeks, she then continued exploiting the victim’s youthful infatuation with her for her own selfish and unethical purposes, telling the victim that she loved him and teaching him to engage in “rough” sex. Based on this evidence, the trial court did not clearly err in finding that defendant e xploited the victim’s youth. Hardy

, 494 Mich at 438. We affirm the 10-point score for OV 10.

Ten points may be scored for OV 19, MCL 777.49, which concerns threats to the security of a penal institution or court or interference with the admini stration of justice or the rending of emergency services, if “[t]he o ffender otherwise interfered wit h or attempted to interfere with the administration of justice.” MCL 777.49(c). “[T] he plain and o rdinary meaning of ‘interfere with the administration of justice’ . . . is to oppose so as to hamp er, hinder, or obstruct the act or process of administering judgment of individuals or causes by j udicial process.” People v Hershey , 303 Mich App 330, 343; 844 NW2d 127 (2013). Points can be as signed to OV 19 for conduct that occurs before criminal charges are filed. Id. Conduct that constitutes an interference or attempted interference with the administration of justice includes telling the
victim or a witness not to dis close the defendant’s conduct. People v Steele , 283 Mich App 472, 493; 769 NW2d 256 (2009).

In this case, the trial court scored OV 19 based on defendant’ s efforts to hamper the process of administrating justice after her relationship with t he victim was discovered. In particular, after defendant’s rel ationship with the victim was discovered, police told defendant not to have any contact with the victim. Nevertheless, accordi ng to the victim, about a month later, defendant created a Tw itter account and “tweeted” him. They sent private messages to each other over Twitter. They also sent email messages and tal ked on the telephone. Defendant tried to keep this contract secret by, for example, questioning the victim’s use of telephones that could be “tapped” by police. Mos t significantly, in some of th eir communications, defendant told the victim to take steps to stop the investigation. In a June 12, 2013 email, defendant wrote, “I love you. Tell your mom you n eed this gone now. I need to be with you.” In a June 16, 2013 email, defendant wrote, “I really miss you a whole lot. Are yo u having a good birthday? Did you talk to your momma at all?” Consistent with defendant’s re marks, the victim spoke with his mother about ending the investigation. Based on defendant’s co nduct, the trial court’s finding that defendant attempted to interfere with the administration o f justice was not clearly erroneous. We affirm the trial court’s scoring of OV 19. Because the tria l court did not clearly err in the scoring of OVs 4, 10, and 19, defendantis not entitled to rese ntencing on this basis.

IV. DEFENDANT’S EXERCISE OF HER RIGHT TO A TRIAL

With regard to sentencing, defendant also argues that the tria l court impermissibly considered defendant’s decision to go to trial and gave defenda nt a harsher sentence for exercising her right to present a defense. Given this purporte d impropriety by the trial court,
defendant maintains that sh e entitled to resentencing.

In a criminal prosecution, a defendant has a constitutional ri ght to a jury trial. US Const, Am VI; Const 1963, art 1, § 20. A defendant’s right to due pro cess, US Const, Am XIV, includes the right to present a defense. People v Anstey , 476 Mich 436, 460; 719 NW2d 579 (2006). In sentencing a defenda nt, a trial court may not consi der factors that violate a-8- defendant’s constitutional rights. People v Godbold , 230 Mich App 508, 512; 585 NW2d 13 (1998). Consequently, a defendant may not be penalized at sent encing for refusing to admit guilt, People v Conley , 270 Mich App 301, 315; 715 NW2d 377 (2006), or for exercising his or her right to a jury trial, People v Mosko , 190 Mich App 204, 211; 475 NW2d 866 (1991), aff’d 441 Mich 496 (1992).

In this case, before it imposed sentence, the trial court outl ined its various general thoughts and observations for the p arties. In doing so, the tr ial court commented on the fact that defendant exercised her right to a jury trial. 3 It stated that there were zero winners at trial, explaining that “[e]verybody who’s had anything to do with it . . . has lost.” The trial court
further stated that “the whole course of this trial . . . made a bad situation much, much worse than it had to have been.” However, the trial court prefaced these specific remarks by stating that it held nothing against defendant f or going to trial and that it w as “not going to sentence her in any way, shape, or form because she went to trial other than things I might have learned as a result of the trial itself.” Given these express remarks by the trial co urt, there is no merit to defendant’s
contention that the trial court increased her sentence based onher exercise of her right to go to
trial. Defendant is not entitle d to resentencing on this basis

.

V. LIFETIME ELECTRONIC MONITORING

Finally, defendant argues that lifetime electronic monitoring (LEM) is unconstitutional
because it constitutes an unreasonable search under the Fourth Amendment and is cruel and/or unusual punishment. Defendant asserts that the statutes imposi ng LEM are unconstitutional on their face and as applied to defendant. We disagree.

We review constitutional issues de novo. People v Sadows , 283 Mich App 65, 67; 768 NW2d 93 (2009). A statute is presumed to be constitutional, an d the party challenging the statute’s constitutionality bears the burden of proving its inv alidity. People v Boomer , 250 Mich App 534, 538; 655 NW2d 255 (2002).

3 In support of her argument, defendant also notes that the tria l court compared defendant’s conduct to that of Jamila Williams, a Grand Rapids teacher who engaged in sex with four students. Williams pleaded guilty to three counts of third-deg ree criminal sexual conduct (CSC III) and one count of second-degree criminal sexual conduct (CS C II). The trial court sentenced Williams to 95 months to 15 years’ imprisonment. Given that Wi lliams had sex with four students, defendant maintains that Williams’s conduct was more egregious than defendant’s and that the only reason defendant r eceived a higher sentence was that, unlike Williams, defendant exercised her right to a trial. Defendant’s argument is based on the false premise that Williams’ conduct was more serious, ignoring the fact that she was ultima tely convicted of more serious offenses than Williams. The maximum sentence for CSC I, a clas s A crime, MCL 777.16y, is life imprisonment, MCL 750.520b(2)(a ), while the maximum senten ce for CSC III, a class B Crime, MCL 777.16y, is 15 years, MCL 750.520d(2). Because defe ndant was convicted of a more serious offense than was Williams, her conduct could certa inly be considered more egregious, and to the extent the trial court mentioned Williams , this discussion does not lead us
to conclude that the trial court punished defendant for exercis ing her right to a trial.-9- MCL 750.520n provides:

A person convicted under [MCL 750.520b (the CSC I statute)] or [MCL 750.520c (the CSC II statute)] for criminal sexual conduct comm itted by an individual 17 years old or older against an individual less tha n 13 years of age shall be sentenced to lifetime electronic monitoring as provide d under . . . MCL

791.285.

See also MCL 750.520b(2)(d ) (providing that the trial court sha ll sentence a defendant convicted of CSC I to LEM under MCL 750.520n); MCL 750.520c(2)(b) (requir ing trial courts to sentence
a defendant convicted of CSC II to LEM under MCL 750.520n if th e criminal sexual conduct was committed by a defe ndant 17 years of age or older against a n individual less than 13 years of age). 4 LEM is punishment and is part of a defendant’s sentence. People v Cole , 491 Mich 325, 335-336; 817 NW2d 497 (2012). A defendant who is sentenced to LEM shall wear, from the time the defendant is released on parole or from prison until h er death, an electronic monitoring device, MCL 791.285(1)(a), (2), by which, through global positi on system satellite or other means, the defendant’s movement and location can be tracked and recorded. MCL 791.285(1)(b), (2).

A. FOURTH AMENDMENT SEARCH AND SEIZURE

The Fourth Amendment of the United States Constitution, US Con st, Am IV, guarantees every person’s right to be fr ee from unreasonable searches and seizures. People v Slaughter , 489 Mich 302, 310; 803 NW2d 171 (2011). The government conducts a search when, pursuant to a satellite-based monitoring program for sex offenders, it attach es a device to a person’s body, without consent, for the purpose of tracking the individual’s m ovements. Grady v North
Carolina , ___ US ___; 135 S Ct 1368, 1370; 191 L Ed 2d 459 (2015). How ever, the fact that
such action is a “search” does not answer the question whether the satellite-based monitoring program was constitutional because the constitution only protec ts against “ unreasonable
searches.” Id. at ___; 135 S Ct at 1371. The United States Supreme Court did not decide this reasonableness question in Grady , but instead remanded the case for a determination of the
reasonableness of the North Car olina satellite-based monitoring program. Id.

4 Defendant argues that she is not subject to LEM because LEM on ly applies to defendants over 17 convicted of CSC I (or CSC II) when the victim is younger th an 13 years. However, this Court has previously rejected this argument. See People v Johnson , 298 Mich App 128, 135- 136; 826 NW2d 170 (2012); People v Brantley , 296 Mich App 546, 557-559; 823 NW2d 290 (2012). According to this Court, “any defendant convicted of C SC-I under MCL 750.520b, regardless of the age of the def endant or the age of the victim , must be ordered to submit to lifetime electronic monitoring.” Brantley , 296 Mich App at 559. It is true that the Michigan Supreme Court has ordered oral argument on whether to grant an application for leave in a case involving this issue. See People v Comer , __ Mich __; 876 NW2d 581 (2016). But, until such time as the Supreme Court reaches a different conclusion, Brantley and Johnson are binding precedent on this Court. MCR 7.215(C)(2), (J)(1). And, becaus e defendant was convicted of CSC I, defendant is subject to LEM.-10- Following Grady , in People v Hallak , 310 Mich App 555, 579; 873 NW2d 811 (2015), rev’d in part on other grounds ___ Mich ___; 876 NW2d 523 (2015 ), this Court held that the use of an electronic monitoring device to monitor the movements of the defendant, who had been convicted of CSC II, constituted a search under the Fourth Amen dment, but that such a search of a defendant 17 years or older convicted of CSC II against a per son under the age of 13 was not
unreasonable. To determine the re asonableness of the intrusion , this Court weighed the public interest in the need to search ag ainst the invasion of privacy. Id. See also Grady , ___ US at ___; 135 S Ct at 1371 (“The reasonableness of a search depends on th e totality of the circumstances, including the nature and purpose of the search and the extent t o which the search intrudes upon reasonable privacy expectations.”). Balancing these interests, this Court found LEM reasonable for a defendant 17 years or older convicted of CSC II against aperson under the age of 13, explaining:

Turning first to the public interest, it is evident that in ena cting this monitoring provision, the Legislature was seeking to provide a way in whic h to both punish
and deter convicted child sex o ffenders and to pr otect society from a group known well for a high recidivism rate. . . . As the prosecution point s out, electronic monitoring not only acts as a s trong deterrent, but also assist s law enforcement
efforts to ensure that these ind ividuals, who have committed “ ‘the most egregious and despicable of societal and c riminal offenses,’” do not freq uent prohibited areas (elementary schools, etc.) and remain compliant with the Sex Offenders Registration Act, MCL 28.721 et seq. Consequently, when enacting this monitoring system and requiring it only for those 17 or older w ho commit CSC against children under the age of 13, the Legislature was addre ssing punishment, deterrence, and the protection of some of the most vulnerable i n our society against some of the worst crimes known. As we earlier noted, the “need to prevent the individual offender from causing further injury to society” is a valid
consideration in desi gning a punishment. . . .

Having examined the public interest in this type of monitoring , we now balance that interest against the invasion of defendant's priva cy interest. We begin by recognizing that parolees and probationers have a lower expe ctation of privacy, even in the comfort of their own homes, than does the average lawabiding citizen. The monitoring does not prohibit defendant fr om traveling, working, or otherwise enjoying the ability to legally move abou t as he wishes. Instead, the monitoring device simply records where he has trav eled to ensure that he is complying with the terms of his probation and state law. MCL 791.285(1) and (3). And although this monito ring lasts a lifetime, the Le gislature presumably provided shorter prison sentences for these CSC–II convictions because of the availability of lifetime monito ring. In that regard we also ca nnot forget that minor victims of CSC–II are often harmed for life. . . . Though it may certainly be that such monitoring of a law abiding citizen would be unreasonable, on balance the strong public interest in the benefit of monitoring those convi cted of CSC–II against a child under the age of 13 outweighs any minimal impac t on defendant's reduced privacy interest. [ Hallak , 310 Mich App at 580-581 (internal citations omitted).]-11- Although Hallak considered the reasonableness of LEM for cases involving a def endant 17 years or older convicted of CSC II against a person under th e age of 13, we think its public interests analysis and privacy considerations largely apply with equal force to the present case and, following Hallack ’s reasoning, we conclude that LEM is not an unreasonable searc h of a defendant who commits CSC I with a student between the ages of 13 and 15 who attended the school where the defendant was employed, MCL 750.520b(1)(b)( v ). In particular, as noted in

Hallack , sex offenders, upon release from prison, have a high rate of recidivism. See McKune v
Lile , 536 US 24, 33-34; 122 S Ct 2017; 153 L Ed 2d 47 (2002). Ther e is a public interest in reducing the recidivism rate of sex offenders, and LEM has a st rong deterrent effect. Hallak

, 310 Mich App at 580. See also Belleau v Wall , 811 F3d 929, 935 (CA 7, 2016). Defendants who are convicted of CSC I with a student between the ages of 1 3 and 15 who attend the school where the defendant is employed are required to register under SORA, MCL 28.722(j), (w)( iv ); MCL 28.723(1), and LEM assists law enforcement to ensure that t hese defendants, who have committed egregious and despicable acts against minors by takin g advantage of their position at a school, remain compliant with SORA and do not visit prohibite d areas, such as schools,

Hallak , 310 Mich App at 580. Thus, when requiring that defendants wh o are convicted of CSC I with a student between the ages of 13 and 15 who attend the sch ool where the defendant is employed be subject to LEM, the Legislature was addressing the public interests of punishment, deterrence of highly recidivist offenders, and the protection o f minors. Cole , 491 Mich at 335- 336; Hallak , 310 Mich App at 580.

Regarding the privacy interest, as stated in Hallak , 310 Mich App at 581, LEM does not prohibit defendants “from traveling, working, or otherwise enjo ying the ability to legally move about as [they] wish[].” It simply records where defendants have traveled to ensure that they are complying with the terms of their probation and state law. Id. See also Belleau , 811 F3d at 935. Additionally, the identity and address, along with other inform ation, of any defendant who is required to register under SORA is available to the public. Se e MCL 28.728(2). Thus, already as a result of their criminal conduct, defendants convicted of CSC I have their privacy curtailed, meaning that “the incremental effect” of LEM is slight because the state has chosen to make information about the defendants public. See Belleau , 811 F3d at 934-935. Consequently, balancing the strong public interest in favor of monitoring with any minimal impact on a defendant’s reduced privacy, we conclude that LEM for defendant s, such as defendant in this case, who are convicted of CSC I against a student between the ages of 13 and 15 who attend the
school where the defendant is e mployed is reasonable under the Fourth Amendment.

B. CRUEL OR UNUSUA L PUNISHMENT

The United States Constitution, US Const, Am VIII, prohibits c ruel and unusual punishments. Hallak , 310 Mich App at 569. The Michigan Constitution, Const 1963, art 1, § 16, prohibits cruel or unusual punishment. Hallak , 310 Mich App at 569. Because the United States Constitution affords less protection than the Michigan C onstitution, if a punishment “passes muster under the state constitution, then it necessaril y passes muster under the federal
constitution.” People v Nunez , 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000).

This Court, in determining whether a punishment constitutes cr uel or unusual punishment, considers the gravity of the offense and the harshn ess of the penalty, compares the penalty to penalties for other crimes in this state, compares t he penalty to penalties imposed for-12- the same offense in other states, and considers the goal of reh abilitation. People v Dipiazza , 286 Mich App 137, 153-154; 778 NW2d 264 (2009). Regarding rehabili tation, a punishment might be cruel or unusual punishment if “it thwarts the rehabilitativ e potential of the individual
offender and does not contribute t oward society’s efforts to de ter others from engaging in similar prohibited behavior.” People v Coles , 417 Mich 523, 530; 339 NW2d 440 (1983), overruled in part on other grounds People v Milbourn , 435 Mich 630 (1990). The “dominant test” to be used in determining whether a punishment constitutes cruel or unusua l punishment is “whether the punishment is so excessive that it is completely unsuitable to the crime.” Id.

Defendant argues that the statutes imposing LEM for conviction s of CSC I are unconstitutional on their face and as applied. A statute may b e unconstitutional on its face, meaning that no circumstances exist under which it would be val id. Keenan v Dawson , 275 Mich App 671, 680; 739 NW2d 681 (2007). A statute may also be unconstitutional as applied, meaning that the statute is unconstitutional as applied to the particular facts of the case. Id. If
the statute is constitutional as applied to the defendant, thenit is capable of being upheld against a facial challenge. Hallak , 310 Mich App at 569. According to defendant, as applied to h er, LEM is unconstitutional because nothing indicates that she is l ikely to be a danger to society. The victim was her first and only victim.

Defendant’s as-applied challenge is without merit. First, reg arding the gravity of the offense, the CSC I offenses committed by defendant were certain ly grave. The victim was a minor between the ages of 13 and 15, who was a student at the s chool where defendant worked. Sex offenses involving minors are considered particularly egreg ious, as evinced by the Legislature’s provision of height ened protections to minors und er a certain age based on the presumption that children’s im maturity and innocence prevents them from appreciating the full magnitude and consequences of their conduct. See People v Benton , 294 Mich App 191, 205; 817 NW2d 599 (2011). Second, regarding the harshness of the pe nalty, although defendant is subject to LEM for her lifetime, LEM does not prohibit defendant, upon being released from prison, from traveling, working, or otherwise moving about as s he pleases. Hallak , 310 Mich App at 581. The monitoring device will only record where defen dant has moved to ensure that she is complying with her probation and state law. Id. Third, CSC I and CSC II are the only offenses for which LEM is imposed, MCL 750.520n, and CSC II is a less grave offense than CSC I, MCL 750.520b(2)(a); MCL 750.520c(2)(a). In other words, in Michigan, LEM is imposed for a less grave offense than which defendant was convi cted, and this Court has previously rejected constitutional challenges to LEM relating t o CSC II. See Hallak , 310 Mich App at 577. Additionally, although LEM is for defendant’s life time, it does not exceed the maximum prison sentence for CSC I. MCL 750.520b(2)(a). Fourth , as noted in Hallak , at least 10 other states impose LEM for the most serious criminal sexual conduct offenses or criminal
sexual conduct with a minor. Hallak , 310 Mich app at 575-576, 575 n 9.

Finally, regarding rehabilita tion, sex offenders, more so than other offenders, are likely to reoffend upon release from prison. Hallak , 310 Mich App at 573-574. LEM addresses the significant concerns of rehabilitation and recidivism of sexual offenders because it has a
deterrent effect on would-be reoffenders. Id. at 573. Defendant’s argument that LEM, as applied to her, constitutes crue l or unusual punishment address es this factor. However, even though the trial court stated that it did not believe that defe ndant was likely to reoffend, LEM does not thwart defendant’s rehabilitative potential. Coles , 417 Mich at 530. Defendant is only-13- subject to LEM once she is released from prison, MCL 791.285(1) , and LEM only ensures that she is complying with the terms of her probation and state law, Hallak , 310 Mich App at 581. It does not prevent defendant from moving about as she pleases. Id.

Under these circumstances, the punishment of LEM is not so exc essive that it is completely unsuitable to the CSC I offenses committed by defend ant. Coles , 417 Mich at 530. Accordingly, as applied to defendant, LEM does not constitute c ruel or unusual punishment. Because defendant cannot succeed on her as-applied challenge un der the Michigan Constitution, she cannot succeed on her facial challenge under the state cons titution, Hallak , 310 Mich App at 577, nor can she succeed on her claim under the United States C onstitution, id. ; Nunez, 242 Mich App at 618 n 2.

Defendant’s convictions are affirmed, but we remand for furthe r proceedings regarding
defendant’s sentences. We do not retain jurisdiction.

/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder