People v. Ballantyne

538 N.W.2d 106, 212 Mich. App. 628

• Court: Michigan Court of Appeals
• Decided: August 15, 1995
• Docket: Docket 172099
• Status: Published

Opinion

Per Curiam.

Defendant pleaded nolo contendere to one count of aggravated stalking, MCL 750.411Í; 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 NW2d 876 (1995).

We separately address defendant’s argument that § 411i(5) of the statute, which creates a rebut-table 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. 1 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.

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 NW2d 484 (1994); People v Kelley, 181 Mich App 95, 97; 449 NW2d 109 (1989).

Affirmed._

1 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 NW2d 744 (1993).