Opinion
Docket No. 172099.
Submitted May 2, 1995, at Detroit.
Decided August 15, 1995, at 9:10 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.
Sarah J. Lyons, for the defendant on appeal.
Defendant pleaded nolo contendere to one count of aggravated stalking, MCL 750.411i; MSA 28.643(9), and was sentenced to three years' probation, the first six months to be served in prison. Defendant appeals as of right and we affirm.
Defendant challenges the constitutionality of the stalking statute on the grounds that it is vague and overbroad. The constitutionality of this statute was, however, recently upheld by this Court in People v White, 212 Mich. App. 298; 536 N.W.2d 876 (1995).
We separately address defendant's argument that § 411i(5) of the statute, which creates a rebuttable presumption that defendant's acts caused the victim to feel terrorized, impermissibly shifts the burden of proof of an element of the offense to defendant. We reject this argument for the reasons set forth in this Court's opinion in White, supra, pp 313-315, where this identical issue was raised sua sponte by a panel of this Court. While the opinion in White is arguably dictum regarding this issue, we agree with both the reasoning and conclusion and adopt it as our own.
Although defendant first raised this issue in his supplemental brief to this Court, and thus it is technically not before us, MCR 7.212(F), we review it nonetheless because it raises an important constitutional issue, see People v Gezelman (On Rehearing), 202 Mich. App. 172, 174; 507 N.W.2d 744 (1993).
Finally, because defendant challenged only the constitutionality of the statute below, and later pleaded nolo contendere, we decline to review any arguments not based on the constitutionality of the statute. See People v Rollins, 207 Mich. App. 465, 470-471; 525 N.W.2d 484 (1994); People v Kelley, 181 Mich. App. 95, 97; 449 N.W.2d 109 (1989).
Affirmed.