Standing; U.S. Const. art. III, § 2; Spokeo, Inc. v. Robins; Hagy v. Demers & Adams; Lujan v. Defenders of Wildlife; Steel Co. v. Citizens for a Better Env’t; Fair Credit Reporting Act (FCRA or the Act); 15 USC § 1681g(a)(1); Whether plaintiff suffered an “injury” or was at risk of an “imminent injury”; Clapper v. Amnesty Int’l USA; Soehlen v. Fleet Owners Ins. Fund; Bassett v. ABM Parking Servs., Inc. (9th Cir.); Dreher v. Experian Info. Solutions, Inc. (4th Cir.); Whether plaintiff could rely on a “statutory violation as an intangible injury in fact”; Lyshe v. Levy; Wall v. Michigan Rental; United States v. Lopez; United States v. Dorsey (9th Cir.); United States v. Danks (8th Cir.); Boerne v. Flores; Macy v. GC Servs. Ltd.

The court held that plaintiff-Huff lacked Article III standing to sue under the FCRA because he failed to show an “injury in fact,” and that he could not rely on a statutory violation to establish standing because “Congress has not attempted to show how technical violations of the Fair Credit Reporting Act that carry no actual consequences or real risk of harm are concrete” injuries. Huff sued defendant-TeleCheck under the FCRA after he received an incomplete copy of his check verification file. The district court dismissed his case for lack of standing because he failed to establish an injury in fact. Significantly, TeleCheck had “never told a merchant to decline one of Huff’s checks due to his linked information[,]” and included a “linked data disclaimer” at the bottom of the report. The court concluded that Huff did not suffer an injury or the risk of imminent injury. But, in some instances, a plaintiff may rely on a violation of a statutory duty if Congress chose to create Article III standing in this manner. The question was, did “Congress have authority to label this violation of the statutory duty an Article III injury when it comes to Huff?” Citing Spokeo, the court noted that “Article III standing requires a concrete injury even in the context of a statutory violation.” Huff’s interests under the FCRA did not constitute an imminent injury because TeleCheck’s alleged statutory violation “had no adverse consequences.” The court concluded that absent "an explanation of how a seemingly harmless procedural violation constitutes a real injury, we are left with a canyon-sized gap between Congress’s authority and the problem it seeks to resolve.” It held that “Huff has not been injured in this case.” Affirmed.

Prosecutorial error; People v. Grayer; Failure to correct testimony; People v. Smith; People v. Wiese; Duty to disclose a promise of immunity or leniency upon the request of defense counsel; People v. Atkins; Closing argument; People v. Seals; People v. Dobek; People v. Aldrich; Arguing facts not in evidence; People v. Unger; Vouching; People v. Bahoda; Ineffective assistance of counsel; People v. Sabin (On Second Remand); Hearsay; MRE 801(c); MRE 801(d)(1)(C); People v. Sykes; Whether error required reversal; MRE 769.26; People v. Lukity; A witness’s opinion on the veracity of other witnesses; People v. Buckey; Sentencing; Scoring of OVs 12 & 13; MCL 777.42(2); MCL 777.43(2)(a); People v. Bemer; MCL 777.43(2)(c); MCL 777.42(1)(b); MCL 777.43(1)(c); Principle that conspiracy to commit armed robbery is not a crime against a person; People v. Goodman; Whether defendant was entitled to resentencing; People v. Rhodes

The court held that defendant was not entitled to relief on his prosecutorial error or ineffective assistance of counsel claims, and that some of the challenged testimony was admissible under MRE 801(d)(1)(C). While it concluded that other testimony was non-excepted hearsay and erroneously admitted, it found that the error did not entitle him to relief as it was unlikely to affect the trial’s outcome. However, because no points should have been scored for OV 13, and this error altered defendant’s guidelines range, the court held that he was entitled to resentencing. Thus, while it affirmed his conspiracy to commit armed robbery conviction, it remanded for resentencing. He argued that the prosecution erred in not correcting allegedly misleading testimony by witness-JR about an agreement. However, he did not show the testimony “was false or misleading.” What he was really challenging was “the prosecution’s failure to affirmatively disclose [JR’s] immunity to the jury. Yet, the prosecution only has a duty to disclose a promise of immunity or leniency ‘upon request of defense counsel.’” No request was made, and assuming that “defense counsel was ineffective for failing to request the disclosure of [JR’s] agreement with the prosecution,” there was no “reasonable probability that counsel’s error prejudiced the proceedings.” The court also rejected defendant’s claims as to the prosecution’s closing argument. As to the inadmissible hearsay, witness-DR’s statement to the police detective “was consistent with his in-court testimony. Importantly, [DR’s] in-court testimony was offered pursuant to a cooperation agreement with the prosecution. The jury was informed of this cooperation agreement which, by its very nature, implied that [he] had given consistent statements to investigators before trial.” The court held that OV 12 was properly scored at 10 points “because defendant committed two contemporaneous felonious criminal acts . . . .” Given that the armed robberies were properly scored under OV 12, they could not be scored under OV 13, and conspiracy to commit armed robbery is not a crime against a person. Because a pattern of 3 “or more crimes against a person did not exist,” 25 points were erroneously scored for OV 13.

Great weight of the evidence; People v. Anderson; People v. Lacalamita; CSC I under MCL 750.520b(1)(a); People v. Solloway; Sexual penetration defined; MCL 750.520a(r); Principle that a victim’s testimony alone is sufficient to prove all the elements of CSC; People v. Szalma; Credibility; People v. Lemmon; People v. Wolfe; Ineffective assistance of counsel; People v. Urban; People v. Trakhtenberg; Matters of trial strategy; People v. Horn; People v. Payne; A substantial defense; People v. Chapo; Failure to consult with & request funds for an expert to review the children’s forensic interviews; People v. Kennedy; Prejudice; People v. Pickens; Witness competency; MRE 601; Presumption that all witnesses are competent to testify; People v. Watson; Plain error review; People v. Carines; Failure to object to the trial court’s finding of competency; Failure to make a meritless argument or futile objection; People v. Green; People v. Ericksen

Holding that there was no merit to defendant’s claim that his CSC I convictions were against the great weight of the evidence, rejecting his ineffective assistance of counsel claims, and concluding that the trial court did not err in finding that the child victims were competent to testify, the court affirmed his convictions. The victims were his six-year-old daughter and his seven-year-old son. The court held that their testimony fulfilled the elements of CSC I under MCL 750.520b(1)(a). He claimed that the guilty verdicts in his bench trial were against the great weight of the evidence due to (1) a lack of physical evidence; (2) lack of witness credibility; and (3) contradictory testimony. The court did not find his arguments persuasive. “First, the lack of physical evidence in this case does not cause the evidence to preponderate so heavily against the verdict as to require reversal.” Defendant asserted that there was “a lack of physical evidence implicating him, there was no evidence that he had gonorrhea, and his son tested negative for gonorrhea. However, it is well established that physical evidence of penetration is not necessary for a CSC conviction. A victim’s testimony alone is ‘sufficient to prove all'" of the elements. The court noted that both children testified that he “penetrated them, and his daughter tested positive for gonorrhea. Although there was no evidence that defendant had gonorrhea, there was also no evidence that he did” not, and the fact that his son did not have it “did not negate his son’s claims against him.” The court also found that as he presented “nothing more than a challenge to the children’s credibility, defendant has not established that the verdict is against the great weight of the evidence.” It noted that it “gives great deference to the trial court’s role in assessing witnesses’ credibility.” Further, while the trial court convicted him of only two of the five charged counts, it was “entitled to accept parts of a witness’ testimony, and reject other parts.” The court also found that defense counsel’s decision not to consult with and request funds for an expert to review the children’s forensic interviews was objectively reasonable," and defendant did not show prejudice.

Hearsay; MRE 801(c); MRE 802; Prior consistent statements; MRE 801(d)(1)(B); People v. Jones; Whether the errors were outcome determinative; People v. Lukity; Character-conformity evidence; MRE 404(a); People v. Whitfield; Plain error review; People v. Carines; Ineffective assistance of counsel for failing to object; People v. Sabin (On Second Remand); Sentencing; OVs 3, 10, 12, & 13; People v. Hardy; People v. McDonald; People v. Apgar; People v. Light; People v. Bemer; Whether defendant was entitled to resentencing; People v. Rhodes; Michigan State Police (MSP); Upper Peninsula Substances Enforcement Team (UPSET)

The court held that the trial court erred by admitting some prior statements and character-conformity testimony into evidence, but that it was not more probable than not that the errors were outcome determinative. However, while it affirmed defendant’s CSC I conviction, it concluded that he was entitled to resentencing due to errors in scoring OV 13. The case was remanded for resentencing. Defendant argued that the trial court erred by admitting the hearsay testimony of three witnesses: victim-CC’s friend A, MSP Sergeant K, and MSP Detective Sergeant S. “Each witness testified that CC had revealed details about the alleged sexual assault to them. The prosecution contended that this testimony was not hearsay because it consisted of prior consistent statements offered to rebut a charge of recent fabrication.” Elements (1) and (3) were not contested for any of the witnesses. The court found that element 2 was satisfied for each witness. As to element 4, the timing of the prior statement, the court held that this element was satisfied as to A, but not K and S. Under “MRE 801(d)(1)(b), the prior consistent statement must be made before the alleged motive to falsify arose.” As asserted by defense counsel, “the point of demarcation is around the time when CC joined UPSET and revealed the allegations.” Because she made her statement to A before becoming involved with UPSET, the statement was not barred by the hearsay ban. However, CC made her statements to K and S “after she had revealed the assault to the UPSET officers.” Thus, because element 4 was not satisfied as to those statements, they “constituted non-excepted hearsay and the trial court erred by admitting them into evidence.” But that did not mean that defendant was entitled to relief. CC and A “both provided detailed testimony about the assault and were subject to extensive cross examination. Moreover, CC’s coworkers testified that CC’s day-to-day demeanor changed drastically after the incident.” The court also pointed “out that the erroneous admissions relate to statements CC made to police officers after her initial disclosure to the UPSET officers. Given defense counsel’s charge that CC fabricated the allegations to gain favor with the police,” it was unlikely that, had the jury believed that her “initial revelation was false, it would be swayed otherwise by CC’s subsequent consistent statements.” As to sentencing, the court found that no points should have been scored for OV 13, and as subtracting these 25 points changed defendant’s guidelines range, he was entitled to resentencing.

Parenting time; Shade v. Wright; The Child Custody Act (MCL 722.21 et seq.); MCL 722.27(1)(b); MCL 722.27a(1); MCL 722.27a(6); Statutory best interest factors; MCL 722.23; Effect of a parenting time change on the children’s established custodial environment (ECE); Pierron v. Pierron; MCL 722.27(1)(c); Best-interest factors (a), (c), (f), & (l)

The court did not believe that the trial court’s parenting-time decision resulted in a change to the ECE. Also, the trial court’s findings on the best-interest factors were not against the great weight of the evidence. Thus, the court affirmed the uniform child support order. On appeal, plaintiff-father did not challenge the trial court’s award of custody, only the award of parenting time. He argued that (1) the trial court did not consider the effect of unequal parenting time on the ECE and (2) the trial court’s findings as to four of the best-interest factors were against the great weight of the evidence. The trial court found that there was an ECE “with each parent, and that clear and convincing evidence was needed to change it.” Plaintiff did not dispute this finding; rather, he argued that “the trial court’s order awarding unequal parenting time (which essentially formalized the existing parenting-time arrangement) affected the” ECE. The court disagreed. Reviewing the record, it was “convinced that the order maintaining the existing parenting-time schedule did not change to whom the children looked for guidance, discipline, the necessities of life, and parental comfort. The trial court’s order merely maintained, for the most part, the existing parenting-time arrangement under which the parties had previously provided their children with guidance, discipline, the necessities of life, and parental comfort. If anything, the trial court’s slight deviations from the status quo resulted in slightly increased parenting time for plaintiff.” As to the children’s best interests, the trial court conducted a review of the statutory factors, and contrary to plaintiff’s argument, the trial court’s findings on best-interest factors (a), (c), (f), and (l) were not against the great weight of the evidence.

Standing; U.S. Const. art. III, § 2; Spokeo, Inc. v. Robins; Hagy v. Demers & Adams; Lujan v. Defenders of Wildlife; Steel Co. v. Citizens for a Better Env’t; Fair Credit Reporting Act (FCRA or the Act); 15 USC § 1681g(a)(1); Whether plaintiff suffered an “injury” or was at risk of an “imminent injury”; Clapper v. Amnesty Int’l USA; Soehlen v. Fleet Owners Ins. Fund; Bassett v. ABM Parking Servs., Inc. (9th Cir.); Dreher v. Experian Info. Solutions, Inc. (4th Cir.); Whether plaintiff could rely on a “statutory violation as an intangible injury in fact”; Lyshe v. Levy; Wall v. Michigan Rental; United States v. Lopez; United States v. Dorsey (9th Cir.); United States v. Danks (8th Cir.); Boerne v. Flores; Macy v. GC Servs. Ltd.

The court held that plaintiff-Huff lacked Article III standing to sue under the FCRA because he failed to show an “injury in fact,” and that he could not rely on a statutory violation to establish standing because “Congress has not attempted to show how technical violations of the Fair Credit Reporting Act that carry no actual consequences or real risk of harm are concrete” injuries. Huff sued defendant-TeleCheck under the FCRA after he received an incomplete copy of his check verification file. The district court dismissed his case for lack of standing because he failed to establish an injury in fact. Significantly, TeleCheck had “never told a merchant to decline one of Huff’s checks due to his linked information[,]” and included a “linked data disclaimer” at the bottom of the report. The court concluded that Huff did not suffer an injury or the risk of imminent injury. But, in some instances, a plaintiff may rely on a violation of a statutory duty if Congress chose to create Article III standing in this manner. The question was, did “Congress have authority to label this violation of the statutory duty an Article III injury when it comes to Huff?” Citing Spokeo, the court noted that “Article III standing requires a concrete injury even in the context of a statutory violation.” Huff’s interests under the FCRA did not constitute an imminent injury because TeleCheck’s alleged statutory violation “had no adverse consequences.” The court concluded that absent "an explanation of how a seemingly harmless procedural violation constitutes a real injury, we are left with a canyon-sized gap between Congress’s authority and the problem it seeks to resolve.” It held that “Huff has not been injured in this case.” Affirmed.

Inverse condemnation; Entry of a consent judgment; The trial court’s reliance on defense counsel’s statement that defendant-city’s council approved the settlement agreement; Principle that an attorney speaks for his or her client; Al-Shimmari v. Detroit Med. Ctr.; A settlement agreement as a contract; Reicher v. SET Enters., Inc.; Principle that generally only a city council can bind a municipal corporation to a contract; Manning v. Hazel Park; Whether the proposed consent judgment plaintiff submitted to the trial court accurately reflected the agreement of the parties; Meeting of the minds on the essential terms; Kloian v. Domino’s Pizza, LLC; Sole remedy for collection of a judgment against a municipality; MCL 600.6093; Payton v. Highland Park; MCL 600.6093(1); Whether plaintiff complied with MCR 2.602(B)(3); MCR 2.602(B)(4); MCR 2.602(B)(2)

The court held that because the trial court relied on defense counsel’s statement that defendant-city’s council approved the settlement agreement, the trial court did not abuse its discretion by entering the consent judgment. Also, the consent judgment contained the essential terms that reflected the parties’ agreement. Finally, because plaintiff complied with MCR 2.602(B)(4), there was no procedural error as to the method of entry of the consent judgment. The appeal arose from damage that occurred to plaintiff’s property in the city “and the parties’ subsequent agreement to settle plaintiff’s inverse condemnation claim.” Defendant argued that “the trial court abused its discretion because the city council did not approve the settlement agreement before the trial court’s entry of the consent judgment.” While defense counsel’s “agreement to the settlement at the settlement conference did not bind defendant to the terms of the agreement because, at that point, the city council had not approved” the agreement, at the subsequent hearing, counsel “reported to the trial court that the city council had approved the settlement. The trial court properly relied on defense counsel’s representation because ‘[a]n attorney speaks for his client.’” Despite acknowledging the city council’s approval, counsel also stated that “we don’t know the terms of it.” But the unknown terms appeared “to only involve whether the judgment would be paid periodically or from the tax rolls. The trial court stated that, however” the city decided to pay it, the city “agreed to pay the amount of the judgment.” The court agreed that the ambiguity as to the timing of the payment or payments did not negate the fact that the city council approved the settlement amount. Affirmed.

Inverse condemnation; Entry of a consent judgment; The trial court’s reliance on defense counsel’s statement that defendant-city’s council approved the settlement agreement; Principle that an attorney speaks for his or her client; Al-Shimmari v. Detroit Med. Ctr.; A settlement agreement as a contract; Reicher v. SET Enters., Inc.; Principle that generally only a city council can bind a municipal corporation to a contract; Manning v. Hazel Park; Whether the proposed consent judgment plaintiff submitted to the trial court accurately reflected the agreement of the parties; Meeting of the minds on the essential terms; Kloian v. Domino’s Pizza, LLC; Sole remedy for collection of a judgment against a municipality; MCL 600.6093; Payton v. Highland Park; MCL 600.6093(1); Whether plaintiff complied with MCR 2.602(B)(3); MCR 2.602(B)(4); MCR 2.602(B)(2)

The court held that because the trial court relied on defense counsel’s statement that defendant-city’s council approved the settlement agreement, the trial court did not abuse its discretion by entering the consent judgment. Also, the consent judgment contained the essential terms that reflected the parties’ agreement. Finally, because plaintiff complied with MCR 2.602(B)(4), there was no procedural error as to the method of entry of the consent judgment. The appeal arose from damage that occurred to plaintiff’s property in the city “and the parties’ subsequent agreement to settle plaintiff’s inverse condemnation claim.” Defendant argued that “the trial court abused its discretion because the city council did not approve the settlement agreement before the trial court’s entry of the consent judgment.” While defense counsel’s “agreement to the settlement at the settlement conference did not bind defendant to the terms of the agreement because, at that point, the city council had not approved” the agreement, at the subsequent hearing, counsel “reported to the trial court that the city council had approved the settlement. The trial court properly relied on defense counsel’s representation because ‘[a]n attorney speaks for his client.’” Despite acknowledging the city council’s approval, counsel also stated that “we don’t know the terms of it.” But the unknown terms appeared “to only involve whether the judgment would be paid periodically or from the tax rolls. The trial court stated that, however” the city decided to pay it, the city “agreed to pay the amount of the judgment.” The court agreed that the ambiguity as to the timing of the payment or payments did not negate the fact that the city council approved the settlement amount. Affirmed.