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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JUSTIN BRUCE HIVELY, Defendant-Appellant.

UNPUBLISHED July 3, 2012

No. 303042 Cass Circuit Court LC No. 10-010084-FH

Before: BECKERING, P.J., and OWENS and RONAYNE KRAUSE, JJ. PER CURIAM. Defendant Justin Bruce Hively appeals as of right his jury-trial convictions of thirddegree criminal sexual conduct (CSC-III) (person at least 13 and under 16 years of age), MCL 750.520d(1)(a), and fourth-degree criminal sexual conduct (CSC-IV) (person at least 13 and under 16 years of age), MCL 750.520e(1)(a). The jury was unable to come to an agreement on the charge of contributing to the delinquency of a minor, MCL 750.145. The trial court sentenced defendant to 6 to 15 years' imprisonment for the CSC-III conviction and 87 days in jail for the CSC-IV conviction. We affirm. I. PERTINENT FACTS This case arises from sexual conduct occurring between defendant and the victim ("CM") after defendant and CM began an internet relationship when defendant was 24 years old and CM was 14 years old. CM met defendant on the website "myYearbook" and began an internet relationship with him. Although defendant was 24 years old, he told CM that he was 16 years old. CM told defendant that she was 14 years old. Defendant and CM began to speak on the telephone and ultimately made plans to meet in person. Defendant encouraged CM to lie to her parents about her whereabouts during the meeting, so CM told her parents that she was going to spend the weekend at a friend's home. On January 8, 2010, defendant picked up CM from her home and took her to a trailer where he lived with his mother. CM and defendant had sexual intercourse later that evening and again the next day. When CM's parents learned that CM was not with her friend, they began a frantic search for her. Defendant's mother discovered that the police were looking for CM and told defendant. As a result, defendant drove CM back to her home where CM's parents were waiting with Officer Brandon Dahl. CM's parents collected CM's underwear and gave it to the police; DNA testing performed at the Michigan State Police Crime Lab established that the underwear contained a small spot of seminal fluid that was -1-

consistent with defendant's DNA. During an initial police interview, CM denied having sexual contact with defendant. However, several weeks later, CM admitted to having sexual intercourse with defendant. When questioned by Officer Dahl, defendant denied having sexual contact with CM. At trial, CM testified that she and defendant engaged in the sexual conduct summarized above. Moreover, LD, a 14-year-old girl, testified for the prosecution pursuant to MCL 768.27a that she met defendant on "myYearbook" and that defendant told her that he was 16 years old. LD further testified that she and defendant began communicating over the telephone and ultimately had sexual intercourse on numerous occasions before defendant's arrest in November 2010. Defendant also testified at trial, emphasizing that he thought both CM and LD were 18 years old and that he did not have sexual contact with either CM or LD. II. MCL 768.27a On appeal, defendant first contends that MCL 768.27a is unconstitutional, arguing that (1) MCL 768.27a and MRE 404(b) conflict irreconcilably and (2) MCL 768.27a cannot prevail over MRE 404(b) because the statute unconstitutionally infringes on both the Supreme Court's authority under Const. 1963, art. 6,

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