In People v. McFall, No. 318830, the Michigan Court of Appeals held that failing to register as a sex offender is a strict liability offense. It further held that the trial court did not err when it refused to appoint defendant new counsel the day of trial, because the defendant did not show good cause justifying substitution.
The defendant was convicted by a jury of failing to register as a sex offender, MCL 28.721. His appointed counsel happened to be the same attorney who prosecuted him for the sex offenses leading to his required registration. The defendant, however, did not initially object to his appointed counsel and acknowledged that he was “a good lawyer.” After jury selection, defendant’s attorney informed the court that defendant wanted substitute counsel, because the night before the defendant told him that he should not have waived preliminary examination and that his attorney was allegedly failing to communicate with him. The court denied the motion.
On appeal, the defendant alleged that the trial court erred by (1) failing to appoint substitute counsel and (2) failing to instruct the jury that “willfulness” was an element of failing to register as a sex offender. The Court of Appeals held that substitution of counsel for indigent defendants is only required upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process, and that the defendant did not show good cause justifying substitution. The court noted that defendant knew, at the time counsel was appointed, that the attorney had previously prosecuted the defendant. At that time, the defendant did not object. Further, no evidence existed that the attorney failed to communicate with the defendant.
The court also held that the trial court properly instructed the jury that “willfulness” was not an element of the crime of failing to register as a sex offender. The court reasoned that the Sex Offender Registration Act mentions “willfulness” in several other places, so the legislature would have included a mens rea requirement in the section on failing to register if it had intended a mens rea requirement. Since the legislature chose not to include a required mental state, failing to register as a sex offender is a strict liability crime.