First-party no-fault benefits; Requests to enter a judgment on an arbitration award & for case evaluation sanctions under MCR 2.403(O); The Uniform Arbitration Act (UAA) (MCL 691.1681 et seq.); MCL 691.1702; MCL 691.1705(1); Effect of the fact the arbitration award did not provide that case evaluation sanctions would apply; Cusumano v. Velger; Distinguishing Acorn Inv. Co. v. Michigan Basic Prop. Ins. Ass’n; MCR 2.403(O)(1); Jerico Constr., Inc. v. Quadrants, Inc.; Verdict defined (MCR 2.403(O)(2))

The court held that the trial court lacked authority to enter a judgment in an amount other than that awarded by the arbitrators, and that the plaintiff-insured was not entitled to case evaluation sanctions given that an arbitration panel, not the trial court, determined the parties’ rights and obligations. Thus, it affirmed the trial court’s denial of his requests for entry of a judgment on the arbitration award that was not in the amount of the award and for case evaluation sanctions under MCR 2.403(O). Plaintiff sought first-party no-fault benefits from defendant. The parties entered into an arbitration agreement and “plaintiff was awarded $37,500 in full satisfaction of all no-fault benefits through the date of the award, as well as all no-fault interest, costs, and attorney fees.” He filed a motion to confirm the arbitration award and for entry of a judgment. His proposed judgment was for $37,500, plus “interest, costs, fees, and Case Evaluation costs and sanctions pursuant to MCL 691.1681, 600.2441, 600.6305, 600.6306, 600.6013; MCR 2.601, 2.602, 2.625, and 2.403(O).” The trial court agreed with defendant that plaintiff was not entitled to case evaluation sanctions because the case was dismissed with prejudice and the parties entered into a binding settlement agreement. The court noted that the parties’ arbitration was governed by the UAA, and that pursuant to MCL 691.1705(1), the judgment entered on the arbitration award must “conform[] with the order” entered under MCL 691.1702 confirming the award. Because plaintiff asked the trial court to enter a judgment that would not conform to an order confirming the $37,500 award, it properly denied his motion. The trial court did not have the authority to enter a judgment in a different amount. The parties’ arbitration agreement did not provide that case evaluation sanctions would apply. While plaintiff relied on Acorn, that case was factually distinguishable in several important respects. Further, the action here was dismissed by stipulated order before the arbitration – it did not proceed to a verdict as defined by MCR 2.403(O)(2).

Sufficiency of the evidence to support the defendant’s first-degree felony murder, first-degree child abuse, & torture convictions; People v. Lane; Identity; People v. Yost; Efforts to destroy evidence; People v. Lytal; MCL 750.136b(2); People v. Gould; People v. Maynor; Serious physical harm defined (MCL 750.136b(1)(f)); Principle that the extent & nature of injuries is probative of intent; People v. Howard; MCL 750.85(1); The mens rea element of torture; Cruel defined (MCL 750.85(2)(a))

Holding that there was sufficient evidence that the defendant was the person who killed the victim, and that there was sufficient evidence of the intent element to support his first-degree child abuse conviction, the court affirmed those convictions. However, because there was no evidence indicating that he intended to cause her cruel or extreme pain, it vacated his torture conviction. The victim was five years old. Defendant’s girlfriend (Q) identified him in a video taken at a gas station around 7:44 AM near the vacant house where the victim’s burned body was later discovered. The person in the video purchased $2 worth of gas but pumped only $0.41 worth. Another witness testified that she saw defendant before 8:00 AM walk up the street carrying an iced tea can. She noted that he “had ‘a funny walk,’ which she described as ‘not a limp but a dip in the walk.’” She saw him go inside the vacant house with the can and then leave a short time later with nothing in his hands. Approximately 10 minutes later, she saw smoke coming from the house. There was evidence that defendant received a bullet wound to his knee two months earlier, which caused him to walk with a limp of some kind. The court concluded that this evidence, while circumstantial, was sufficient for the jury to find that he went into the vacant house with an iced tea can full of gas and set the fire that burned the victim’s body. Further, Q testified that in the early morning on that same day, she “saw defendant with the victim on top of him in the bed” and based on “the victim’s movement, the fact that she was sitting on defendant’s private area, and the placement of defendant’s hands on the victim’s waist, the jury reasonably could infer that, despite the lack of any DNA evidence” implicating him, he was engaged in sexual contact with her. While there was no direct evidence that he killed her, “the inescapable inference from defendant’s sexual contact with the victim, which placed him as the last person with the victim alive, and his subsequent burning of her (already deceased) body shortly thereafter,” was that he killed her.

Directed verdict motion; People v. Szalma; MCL 333.7401; The Controlled Substances Act (CSA) (MCL 333.710 et seq.); Article 7 of the Public Health Code (MCL 333.1101 et seq.); MCL 333.7109(5); People v. Johnson; People v. Droog; People v. Allen; Request to amend the jury instructions; People v. Riddle; MCL 333.7303; Drug Enforcement Administration (DEA)

The trial court properly denied the defendant’s directed verdict motion and his request to amend the jury instructions. He was convicted of two counts of illegally delivering a prescription form. At the time of the trial, he was a Michigan-licensed physician with a controlled substance license issued by Michigan’s Board of Pharmacy. The prosecution presented evidence that, after surrendering his DEA registration number, defendant wrote prescriptions for Flurazepam, a schedule IV controlled substance, on two separate occasions. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude beyond a reasonable doubt that defendant delivered a prescription form in violation of Michigan’s CSA when he wrote an invalid DEA registration number on the prescription forms. Also, because the evidence did not support defendant’s theory that state law allowed him to prescribe controlled substances without a valid DEA registration number, and the proposed amendment was misleading, the court found that the trial court did not err by denying his requested amendment. Affirmed.

Ineffective assistance of counsel; People v. Eloby (After Remand); People v. Frazier; People v. Gioglio (On Remand); Matters of trial strategy; People v. Rockey; People v. Trakhtenberg; People v. Grant; Failure to call witnesses; People v. Julian; Failure to present certain evidence; People v. Dunigan; A substantial defense; People v. Kelly; Principle that exculpatory post-judgment statements offered by a codefendant who declined to testify are considered untrustworthy & unreliable; People v. Terrell; An affidavit that was not part of the trial court record; People v. Seals; Statement against interest; MRE 804(b)(3); People v. Barrera; Claim that the defendant was entitled to a new trial because he was actually innocent; MCR 6.431(B); People v. Bencheck; People v. Shanes; Jury selection; People v. Schmitz; Admission of autopsy photos showing the victim’s gunshot wounds; MRE 401 & 402; People v. Mills; People v. Gayheart; MRE 403; People v. Mesik (On Reconsideration); People v. Fisher; Unfair prejudice; People v. Goree; People v. Crawford; People v. Meadows; People v. Blackston; Sufficiency of the evidence; Identity; People v. Yost

The court rejected the defendant’s ineffective assistance of counsel claims and held that the trial court did not abuse its discretion in admitting autopsy photos showing the victim’s gunshot wounds. While the trial court erred in terminating jury selection, the court concluded that defendant was not prejudiced and thus, the error was harmless. It also rejected the sufficiency of the evidence claim raised in his Standard 4 brief. Defendant and codefendant-M were charged with first-degree felony murder, armed robbery, and felony-firearm. M pleaded guilty to second-degree murder. Defendant argued that defense counsel was ineffective for failing to (1) call M as a witness and (2) introduce M’s written statement exculpating defendant. M implicated him in his police statement. M later wrote a statement indicating that he wanted to recant because he was pressured and defendant was innocent. However, nothing indicated that defense counsel was aware that M intended to recant. Further, he could not question M as he was a codefendant represented by independent counsel. Also, M later recanted his intended recantation. Defense counsel may have concluded that, under the circumstances, the jury was unlikely to give M’s proposed testimony any credence, especially in light of other testimony. The decision not to call M was objectively reasonable. Defendant also failed to show that M’s statement was admissible under MRE 804(b)(3). Following voir dire, the trial court excused a juror for cause, the prosecution exercised a peremptory challenge, the defense exercised two, and four new prospective jurors were called. After further voir dire, the parties passed for cause, the prosecution passed on peremptory challenges, and the defense exercised a peremptory challenge. Rather than select a replacement and continue with voir dire, the trial court stated that the case would proceed with the 13 remaining jurors. While it erred in terminating jury selection, defendant did not have any for cause challenges and the composition of the jury did not change after he exercised his last peremptory challenge. He did not express any dissatisfaction with the jury that was seated. Affirmed.

Ineffective assistance of counsel; People v. Vaughn; People v. Solmonson; Matters of trial strategy; People v. Johnson; People v. Petri; Failure to request DNA testing; Failure to make an adequate investigation; People v. Grant; Assault with intent to do great bodily harm less than murder (AWIGBH)

Rejecting the defendant’s claim that defense counsel was ineffective for failing to request DNA testing of the blood found on the knife allegedly used to stab the victim (H), the court affirmed defendant’s bench trial convictions of AWIGBH and domestic violence. H was defendant’s girlfriend. The court first noted that the record did not show defense counsel actually failed to conduct DNA testing. Further, even if counsel did not conduct such testing, defendant failed to overcome the presumption of sound trial strategy. “Counsel’s decision was likely based on a realistic concern of creating incriminating evidence that did not otherwise exist considering the strength of the other evidence,” including H’s testimony, police testimony, the condition of the knife when discovered, as well as the nature and severity of H’s injuries as detailed in her medical records. H testified that after choking her and punching her, defendant stabbed her left arm several times with a kitchen knife. When officers arrived, they observed straight cut marks across H’s whole left arm and a significant amount of blood. They also found a large, bloody, straight-blade kitchen knife. H received 46 stitches in her arm. Under the circumstances, “it was highly improbable that DNA testing of the blood on the kitchen knife would have exculpated defendant.”

Sentencing; Scoring of 15 points for OV 5; People v. Althoff; Ineffective assistance of counsel; Failure to object to the trial court’s scoring of OV 5; People v. Ericksen; Presentence Investigation Report (PSIR); Assault with intent to murder (AWIM)

The trial court did not clearly err when it scored OV 5 at 15 points. Further, the defendant’s claim that his counsel was ineffective for failure to object to the trial court’s scoring of OV 5 necessarily failed, as defense counsel is not ineffective for failing to raise meritless objections. He was convicted of second-degree murder, three counts of AWIM, felony-firearm, and assault of a pregnant person causing death to a fetus. He was sentenced as a second habitual offender to 45 to 80 years’ imprisonment for the second-degree murder conviction and each of the AWIM convictions, 2 years’ imprisonment for the felony-firearm conviction, and 10 to 15 years’ imprisonment for the assault of a pregnant person causing death to a fetus conviction. After the court remanded for resentencing, the trial court sentenced defendant to 35 to 45 years’ imprisonment for the second-degree murder conviction and each of the AWIM convictions, 2 years’ imprisonment for the felony-firearm conviction, and 10 to 15 years’ imprisonment for the assault of a pregnant person causing miscarriage conviction. On appeal, he claimed that there were no facts in the record to support the trial court’s assessment of OV 5 at 15 points. He was correct that the PSIR did not provide evidence to support the assessment of OV 5 at 15 points. However, the impact statement by the victim’s mother (D) as read by the prosecutor at defendant’s original sentencing hearing, was sufficient to support the trial court’s assessment of OV 5 at 15 points. D clearly stated that “her daughter’s murder was causing her stress and that she was affected by the loss of her grandson, the victim of defendant’s crime of assault causing death to a fetus. She stated that she had already sought counseling as a result of this stress and psychological damage. The fact that this evidence was presented at defendant[’s] initial sentencing and not his resentencing is of no consequence because the trial court may assess sentencing variables based on any evidence in the record.” Affirmed.

Lay opinion testimony; MRE 701; Unpreserved evidentiary error claims; People v. Benton; Plain error review; People v. Thomas; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Ericksen; Expert testimony; MRE 702; People v. Steele; People v. Kowalski; Daubert v. Merrell Dow Pharm., Inc.; Whether the testimony was the product of reliable principles & methods; Cumulative effect of the alleged errors; People v. Gaines; People v LeBlanc; Assault with intent to murder (AWIM); Felon in possession (FIP)

The defendant was not denied his right to a fair trial based on the admission of lay witness testimony. Also, an officer’s testimony that he associated that phone number with defendant was rationally based on his perception and his testimony was properly admitted. Further, the court did not agree that the testimony about cell phone location plotting was not the product of reliable principles and methods pursuant to MRE 702. Finally, defendant was not denied the effective assistance of counsel. He was convicted of AWIM, felonious assault, FIP, and felony-firearm. Defendant argued that he was denied his right to a fair trial based on the admission of impermissible lay witness testimony. He objected to detective S’s testimony that S believed the purpose of one of defendant’s jailhouse calls was to obtain an alibi. Defendant complained the testimony was not based on fact. During trial, S testified that defendant told him that he was at a birthday party on the evening of the shooting, but he would not give S the names of others at the party or its location. Witness-O testified at trial that defendant was at her daughter’s birthday party at the time of the offense, providing him an alibi. On rebuttal, S testified as to a call defendant made in jail where he spoke to a female, presumably his girlfriend L. Defendant asked her to contact a person named “O,” and “pull down on her.” S explained that this phrase “can mean pull somebody off to the side to leverage them alone by themselves,” or “[i]t could be threaten somebody,” or that “[i]t could be just reach out to that person.” S then testified that he believed “O” referred to the alibi witness and that defendant was trying to obtain an alibi from O. Based on the record, the court held that S’s testimony was rationally based on his perceptions and no error occurred. Also, S made clear to the jury that he did not know for certain who “O” was and that his testimony was only his opinion. Affirmed.

Divorce; Division of property; Reed v. Reed; Woodington v. Shokoohi; Butler v. Simmons-Butler; Draggoo v. Draggoo; Whether the trial court placed undue emphasis on the plaintiff-ex-husband’s past conduct or fault when it divided the property; Vehicle; Television debt; Lesko v. Lesko; Student loan debt; Real estate holdings; Pension; Pickering v. Pickering; Whether the marriage duration requirement in 10 USC § 1408(d)(2) precluded the division of military pension benefits; Mansell v. Mansell; § 1408(c)(1)

Holding that the trial court’s division of property was equitable, the court affirmed the property division under the judgment of divorce. The plaintiff-ex-husband argued that the trial court’s division of the marital estate was inequitable because the defendant-ex-wife received a car and a share of his retirement and pension benefits, while he was encumbered with the entire amount of his student loan debt, a debt from the purchase of a TV, and two parcels of real property with significant tax burdens. Contrary to his claim on appeal, it was clear “from the trial court’s factual findings that it did not give undue weight to plaintiff’s fault in the breakdown of the marriage when it divided the property.” While it noted that it credited defendant’s testimony that plaintiff’s “affairs and extramarital activities” were the reason for the breakdown of the marriage, it specifically stated that this was “a relatively small consideration.” The trial court’s reasoning showed that it also considered the relatively short duration of the marriage, and the fact that the parties had children from other relationships and child support obligations., It also considered each party’s occupation and earning capacity, including the fact that plaintiff “ha[s] an increased level of earnings” and that defendant was expected to receive a raise the next year. Also, in dividing the property, the trial court made the following factual findings, among others - (1) despite plaintiff’s claims that defendant had frivolous spending habits, her spending was proportionate to half of the household’s income; (2) he “had a wildly unfair perception of what was his versus what was [defendant’s] and what she should be responsible for and what he should be responsible for”; (3) he “made substantially more than [defendant] made[,] but demanded that she pay a disproportionate share [of] her income [to] the household debts”; and (4) the personal property in each party’s possession was proportionate, despite his allegation that she only left him a spoon. Thus, the court found no support for his contention that the trial court placed undue emphasis on his past conduct or fault.

First-party no-fault benefits; Requests to enter a judgment on an arbitration award & for case evaluation sanctions under MCR 2.403(O); The Uniform Arbitration Act (UAA) (MCL 691.1681 et seq.); MCL 691.1702; MCL 691.1705(1); Effect of the fact the arbitration award did not provide that case evaluation sanctions would apply; Cusumano v. Velger; Distinguishing Acorn Inv. Co. v. Michigan Basic Prop. Ins. Ass’n; MCR 2.403(O)(1); Jerico Constr., Inc. v. Quadrants, Inc.; Verdict defined (MCR 2.403(O)(2))

The court held that the trial court lacked authority to enter a judgment in an amount other than that awarded by the arbitrators, and that the plaintiff-insured was not entitled to case evaluation sanctions given that an arbitration panel, not the trial court, determined the parties’ rights and obligations. Thus, it affirmed the trial court’s denial of his requests for entry of a judgment on the arbitration award that was not in the amount of the award and for case evaluation sanctions under MCR 2.403(O). Plaintiff sought first-party no-fault benefits from defendant. The parties entered into an arbitration agreement and “plaintiff was awarded $37,500 in full satisfaction of all no-fault benefits through the date of the award, as well as all no-fault interest, costs, and attorney fees.” He filed a motion to confirm the arbitration award and for entry of a judgment. His proposed judgment was for $37,500, plus “interest, costs, fees, and Case Evaluation costs and sanctions pursuant to MCL 691.1681, 600.2441, 600.6305, 600.6306, 600.6013; MCR 2.601, 2.602, 2.625, and 2.403(O).” The trial court agreed with defendant that plaintiff was not entitled to case evaluation sanctions because the case was dismissed with prejudice and the parties entered into a binding settlement agreement. The court noted that the parties’ arbitration was governed by the UAA, and that pursuant to MCL 691.1705(1), the judgment entered on the arbitration award must “conform[] with the order” entered under MCL 691.1702 confirming the award. Because plaintiff asked the trial court to enter a judgment that would not conform to an order confirming the $37,500 award, it properly denied his motion. The trial court did not have the authority to enter a judgment in a different amount. The parties’ arbitration agreement did not provide that case evaluation sanctions would apply. While plaintiff relied on Acorn, that case was factually distinguishable in several important respects. Further, the action here was dismissed by stipulated order before the arbitration – it did not proceed to a verdict as defined by MCR 2.403(O)(2).

Civil contempt of court; In re Moroun; In re Contempt of Auto Club Ins. Ass’n; In re Contempt of Robertson; MCL 600.1701; Whether the individual defendant was provided adequate notice; MCL 600.1968(4); MCR 2.107(B)(1)(b); In re Contempt of Steingold; Whether the procedural error was harmless; MCR 2.613(A); Adjudicating contempt proceedings without a jury; In re Contempt of Henry; MCL 600.1715(1) (providing that a fine imposed as punishment for contempt may not be greater than $7,500); MCL 600.1721; In re Contempt of Dudzinski

Holding that the individual defendant (Dr. Sherrod) was not given adequate notice, the court reversed the trial court’s order holding her in civil contempt of court and remanded for further proceedings. The case arose involved the plaintiff-law firm’s efforts to collect legal fees for services provided to Sherrod and her professional corporation. The court noted that the defendants did not receive personal notice of the 7/18/14 contempt hearing. Rather, plaintiff mailed the notice to their three last known addresses. While plaintiff moved the trial court to allow alternate service, the trial court never granted that part of its motion. “Further, the notice was mailed before the trial court even considered the motion for alternate service. Thus, because plaintiff failed to provide personally delivered notice to Dr. Sherrod prior to the contempt proceedings, proper notice was not provided.” Although Sherrod’s actions might seem egregious, the court was “constrained to conclude that defendants were not provided with the ‘rudimentary due process’ required for civil contempt proceedings, as, at the very least, notice and an opportunity to defend are mandatory to protect a party’s due process rights.” It disagreed with plaintiff’s contention that the procedural error was harmless and thus, reversal was not required, noting that there was no evidence that defendants had actual notice of the proceedings, and that they had a potentially viable defense. The court also reminded the trial court of the mandatory procedural requirements for civil contempt proceedings, and that $7,500 is the maximum fine that may be imposed under MCL 600.1715(1). While MCL 600.1721 permits the imposition of compensatory damages, the trial court should “delineate the basis for all fines or monetary damages that it imposes, including the factual basis of damages actually sustained, to ensure compliance with the applicable statutes.”