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STATE OF MICHIGAN
COURT OF APPEALS


PETER ALLEN KOETJE, Petitioner-Appellant, v KENT COUNTY PROSECUTOR'S OFFICE, Respondent-Appellee.

UNPUBLISHED June 7, 2005

No. 252343 Kent Circuit Court LC No. 03-008449-AZ

Before: Murphy, P.J., and White and Smolenski, JJ. PER CURIAM. Petitioner appeals as of right the trial court's declaratory judgment requiring him to register under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We reverse. This appeal is being decided without oral argument pursuant to MCR 7.214(E). Petitioner, a resident of Colorado, pleaded guilty of criminal attempt to contribute to the delinquency of a minor by aiding or abetting the possession of controlled substances by the minor, and he was sentenced to prison. Upon being paroled, he relocated to Michigan and filed a petition for declaratory judgment seeking a ruling as to whether he was required to register under the SORA. The trial court entered an order requiring petitioner to register on the basis that the Colorado offense was a "listed offense" pursuant to MCL 28.722(e)(x) and (xiii). Ruling from the bench, the trial court stated: With this direction given to me [reference to People v Meyers, 250 Mich App 637, 643; 649 NW2d 123 (2002)], I have examined the behavior underlying the criminal offense and determine that the behavior exhibited by Mr. Koetje with regard to this young woman is subject to the registration, namely, that he being about adult engaged in conduct of a sexual nature with a girl who is 15. Leaving aside whether he drugged her or . . . got her intoxicated for that purpose, minimally, this is criminal sexual conduct in the third degree as recognized by our statutes. And clearly that is conduct of the same nature and character that would justify our registration under our state statutes. The trial court granted petitioner's motion for stay pending appeal. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 -1-


NW2d 611 (1998). The construction and application of the SORA presents a question of law that we review de novo. Meyers, supra at 643. The SORA requires a person convicted of a "listed offense," defined in MCL 28.722(e), to register as a sex offender. MCL 28.723(1)(a). MCL 28.722(e)(xiii) is a catchall provision that requires an offender to register if convicted of an offense "substantially similar to an offense described in subparagraphs (i) to (xii) under a law of the United States, any state, or any country or under tribal or military law." MCL 28.722(e)(x) requires an offender to register if he or she is convicted of violating any "law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age." In Meyers, supra, a panel of this Court considered the question whether the defendant, who pleaded guilty of violating MCL 750.145d(1)(b), which subsection at the time of the crime referred to using the internet to attempt to commit conduct proscribed under MCL 750.145a (accosting, enticing, or soliciting a child under the age of sixteen years with the intent to induce or force the child to commit an immoral act, to submit to an act of sexual intercourse or gross indecency, or to any other act of depravity or delinquency), was required to register under the SORA pursuant to MCL 28.722(d)(x).1 This Court concluded that to be "by its nature" a sexual offense subject to the SORA, an offense must be inherently sexual. Meyers, supra at 647-648. Whether an offense is inherently sexual depends on the conduct that formed the basis for the conviction, regardless whether other kinds of conduct could also be proscribed by the statutory language. Id. at 648-649. The Court noted that MCL 750.145d(1) prohibited the use of the internet to commit, attempt to commit, or to solicit another person to commit not only conduct proscribed under MCL 750.145a, but also conduct proscribed under MCL 750.157c (felony inducement), MCL 750.350 (kidnapping), MCL 750.411h (stalking), and MCL 750.411i (aggravated stalking), and indicated that an examination of the facts underlying any offense listed in MCL 750.145d would be necessary to determine whether that offense was sexual in nature. Meyers, supra at 648-649. The Meyers panel concluded that the defendant's offense, i.e., using the internet to entice a person he believed to be a twelve-year-old child to engage in sexual conduct, was inherently sexual in nature; therefore, pursuant to MCL 28.722(d)(x), the defendant was required to register under the SORA. Meyers, supra at 649-650. Here, the underlying conduct and facts that formed the basis of petitioner's Colorado plea-based conviction are not inherently sexual, nor is the offense, relative to the elements forming the basis of the crime, substantially similar to Michigan's statute on third-degree criminal sexual conduct (CSC III), MCL 750.520d (sexual penetration under certain particularized circumstances). Any Colorado offense that was predicated on conduct of a sexual nature was dismissed pursuant to the plea agreement. The charge to which petitioner pled guilty provided: "Peter Allen Koetje acting with the kind of culpability required for the offense of contributing to the delinquency to a minor, did unlawfully attempt to commit said crime by engaging in conduct constituting a substantial step
1

At the time Meyers was decided, the Court relied on the applicable statutory language defining a "listed offense," which was found in MCL 28.722(d). Today, and applicable here, the definition of "listed offense" is found in MCL 28.722(e). The lower-case, italicized roman numeral subsections under

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