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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Failure to pay court-ordered child support; Jury instruction that religious belief was a factor to consider under the defense of impossibility; M Crim JI 34.5; People v Likine; Fisher v Fisher
The court held that “the trial court did not plainly err by instructing the jury consistent with M Crim JI 34.5. Moreover, the trial court’s instructions fairly presented the issues to be tried and sufficiently protected” defendant's rights. He was not entitled to relief. Thus, his conviction for failing to pay his court-ordered child support was affirmed. He did not dispute “the trial court correctly instructed the jury on the elements of felony nonsupport.” He argued it “failed to instruct the jury that his religious belief was a factor to consider under the defense of impossibility.” The trial court instructed the jury as to “the defense of impossibility consistent with M Crim JI 34.5 and based on the factors enumerated” by the Supreme Court in Likine. Defendant acknowledged that “one’s religious belief is not an explicit factor under the defense of impossibility, but contends it should be.” His testimony was “he could pay child support, but his religion precluded him from entering into a civil contract with a secular court by recognizing an order from the State of Michigan directing him to pay it.” Contrary to his “argument, the holding in Likine does not mandate this Court reconsider Fisher. Likine does not discuss whether a religious belief is a factor to consider under the impossibility defense, nor does it suggest that the compelling state interest in a child’s welfare is no longer compelling. Although Fisher is not binding because it was decided before 1990,” the court nevertheless found it persuasive.
Sufficiency of the evidence; Maintaining a drug vehicle; MCL 333.7405(1)(d); People v Griffin; “Keep or maintain”; People v Thompson; Prosecutorial error; Vouching; People v Bahoda; Ineffective assistance of counsel; Failure to raise a futile objection; Consecutive sentencing; MCL 333.7401; Lack of remorse; People v Carlson; Scoring of OV 14; MCL 777.44; People v Rhodes; Scoring of OV 19; MCL 777.49; Operating a motor vehicle while license suspended, revoked, or denied (OWLS); Sport utility vehicle (SUV); Confidential informant (CI)
Holding that there were no errors requiring reversal, the court affirmed defendant’s convictions and sentences. He was convicted of conspiracy to deliver less than 50 grams of cocaine, OWLS, delivery of less than 50 grams of cocaine (second offense), possession with intent to deliver less than 50 grams of heroin (second offense), possession with intent to deliver less than 50 grams of cocaine (second offense), maintaining a drug vehicle, and bringing a controlled substance into a jail facility. The trial court sentenced him to 93 days in jail for the OWLS conviction. It also sentenced him to concurrent prison terms of 114 months to 40 years for “(a) one conviction of possession with intent to deliver less than 50 grams of heroin, second offense; (b) the conviction of possession with intent to deliver less than 50 grams of cocaine, second offense; (c) each conviction of conspiracy to deliver less than 50 grams of cocaine; and (d) one of the convictions of delivery of less than 50 grams of cocaine, second offense.” It sentenced him to concurrent prison terms of 114 months to 15 years for each maintaining a drug vehicle conviction, and to 34 months to 40 years for bringing a controlled substance into a jail facility. It imposed a consecutive term of 29 months to 40 years for the second conviction of delivery of less than 50 grams of cocaine, second offense. On appeal, the court rejected his argument there was insufficient evidence to convict him of maintaining a drug vehicle, noting the evidence “would allow a reasonable jury to conclude that defendant had engaged in continued use of the SUV for the purpose of selling controlled substances.” It also rejected his claim the prosecution erred by repeatedly telling the jury during its rebuttal closing argument that the CI was truthful and that his testimony could be trusted. “The prosecution’s statements, when viewed in context, do not constitute prosecutorial error because they were made in response to defense counsel’s argument and theory of the case—that the CI was not a credible witness.” And trial counsel was not ineffective for failing to object to the comments. Finally, as to his challenge to the imposition of a consecutive sentence, it “was within the range of reasonable and principled outcomes under the circumstances of this case.” The trial court did not improperly consider his “refusal to admit guilt when it imposed the consecutive sentence.” And it did not incorrectly assess 10 points for OV 14 and 25 points for OV 19 as the evidence showed he was a leader in a multiple offender situation and that he threatened the security of a penal institution.
Registration as a tier I sex offender under the “catchall provision” (MCL 28.722(s)(vi)) of the Sex Offenders Registration Act (SORA); MCL 28.723(1)(a); People v Golba; “Listed offense”; MCL 28.722(k)
The court held that the trial court did not err by requiring defendant to register as a tier I sex offender. She pled nolo contendere to an amended charge of second-degree murder in the death of her two-year-old son. The trial court entered a judgment of sentence imposing a prison sentence of 180 to 600 months and requiring her to register as a tier I sex offender under the catchall provision of the SORA. Defendant appealed her sentence contesting the registration requirement, and the court remanded “for the trial court to follow the proper procedures to determine whether [she] must register as a sex offender.” On remand, the trial court again found she was subject to registration, noting that while testimony from the preliminary exam indicated there could have been other explanations for the lacerations on the skin of the anus and the internal hemorrhage, a medical examiner “believed ‘it was a blunt object or blunt force[,] most likely a foreign object.’ The trial court further noted that ‘a foreign object suggests sexual activity in the rectum or in the anus.’” As such, it “concluded that ‘while the name of the charge by its nature does not constitute a sexual offense, the activity underlying the charge does.’” On appeal, the court rejected defendant’s argument that the trial court erred by ordering her to register as a sex offender under the catchall provision because her criminal activity did not, by its nature, constitute a sexual offense. She claimed that she did not admit to or make any statements regarding sexual assault or sexual activity, that there was no indication of a history of sexual abuse or sexual assault, and that the trial court focused solely on the injuries to the victim’s rectal area but did not look at the rest of the facts giving rise to the conviction. The court concluded that the witness testimony from the preliminary exam “established by a preponderance of the evidence that the violation, by its nature, constituted a sexual offense. The lack of an admission by defendant that she committed a sexual offense and the existence of other injuries to the victim’s body do not alter the weight of the evidence that demonstrates a sexual offense occurred.” Affirmed.
Action for separate maintenance; Spousal support; Order that one party receive surviving-spouse benefits from the other party’s pension; Mutual mistake; Student loan debt; Award of a firearm; Attorney fees; Borowsky v Borowsky; MCR 3.206(D); Qualified domestic relations order (QDRO)
The court was not convinced “the trial court’s decision to award the pension interest through a surviving-spouse designation was not fair and equitable in light of the facts” here. It was also not convinced the trial court’s decision as to student loan debt was unfair or inequitable under the circumstances. Further, the record revealed “no reason why the trial court’s award of one firearm” to defendant from over 20 owned by plaintiff was unfair or inequitable. But the court held that the “trial court abused its discretion by awarding defendant attorney fees in the judgment of separate maintenance[.]” Thus, it affirmed in part the judgment of separate maintenance and QDRO entered by the trial court, reversed in part, and remanded as to attorney fees. Plaintiff argued the trial court improperly modified the parties’ settlement agreement by ordering defendant be designated a surviving spouse as to plaintiff’s pension plans. The record was clear plaintiff agreed “(1) defendant would receive a one-half interest in his pension, (2) the amount of spousal support he owed in toto was not dependent on the specific monthly benefit he would receive upon retirement, and (3) defendant would continue to receive benefits from his pension if he predeceased her after he retired.” The trial court’s order requiring “defendant be designated a surviving spouse was an expedient way of implementing the parties’ agreement.” While plaintiff argued it erred in not awarding defendant a present 50% “interest in his pension, a surviving-spouse benefit is an interest in a pension plan.” In addition, the parties clearly agreed “spousal support would continue for the length of defendant’s life and would primarily come from plaintiff’s pension benefits; it is difficult to see how such an agreement would be carried out without a surviving-spouse designation.” Further, the mere fact plaintiff claimed he was “unaware that such a designation would reduce the monthly benefits paid to him is not a mutual mistake sufficient to warrant rescission of the” agreement. It was clear from the record the agreement as to “spousal support was not fundamentally based on the value of the benefits to be received by plaintiff upon retirement. Moreover, any mistake was not mutual; plaintiff was, or could have been, in possession of all relevant information” about his pension benefit amounts. The order was consistent with the settlement agreement, and plaintiff showed no reason to rescind or void the agreement. But the trial court failed to make the necessary findings before awarding attorney fees.
Action seeking foreclosure for violation of condominium bylaws; Alleged evidentiary errors; MRE 101 & 1101(a); Harmless error; People v Hill; Reasonableness of fines; MCL 559.206(c); Rasheed v Chrysler Corp
The court upheld the $135,000 judgment amount derived from the trial court’s determination that the fines assessed against defendant-condominium owner by plaintiff-association were reasonable. Plaintiff sued defendant to foreclose on defendant’s property to satisfy unpaid fines it accrued for violating plaintiff’s bylaws by failing to complete construction within 12 months from the time construction began. Ultimately, the trial court determined that a fine of $1,000 a month was reasonable and entered judgment in favor of plaintiff in the amount of $135,000. On appeal, the court rejected defendant’s argument that the trial court erred by excluding photographic and video evidence related to the state of the condominium development because defendant failed to address the basis of the trial court’s decision. Specifically, defendant did “not explain why it was error for the trial court to reject the proposed admission into evidence of photographs and videos that depicted the home after the relevant time periods at issue in the case, or why it was error for the trial court to refuse to relitigate the issue of the home’s completeness.” It also rejected defendant’s claim that the trial court erred by considering documentary evidence that was attached to plaintiff’s motion for summary disposition but not admitted at the evidentiary hearing, noting any error was harmless, and the trial court’s opinion made no mention of photographs. Finally, the court rejected defendant’s contention that the trial court erred by determining that the fines imposed by plaintiff were reasonable. Ultimately, the court was “not definitely and firmly convinced that the trial court made a mistake in determining that the fines imposed on defendant were reasonable.” Affirmed.
Defamation; Cetera v Mileto; The substantial-truth doctrine; Hyperbolic language; Subjective opinion; Alleged defamatory implications; Hawkins v Mercy Health Servs, Inc; Staying discovery
The court agreed with the trial court that the statements plaintiffs alleged were defamatory “were either substantially true or not capable of defamatory meaning.” It further concluded the trial court was correct that the alleged defamatory implications were not actionable. Finally, it determined the trial court did not abuse its discretion in staying discovery. Thus, the court affirmed summary disposition for defendants. Plaintiff-Chappelle is president of plaintiff-Chappelle Development Company. Defendant-Dreger founded defendant-East Lansing Info (ELi), which owns and operates a web domain. The two relied on research conducted by defendant-Singer. The case arose from statements in an ELi article related to a failed development project. The court concluded that “after many years Chappelle’s proposed downtown project failed. It would seem to follow that, as the head of the project, at least some of Chappelle’s actions contributed to the failure, and by extension, that Chappelle effectively prolonged the downtown blight. To the extent that a specific action is required, defendants have shown that Chappelle’s claim to the project’s tax credits impeded the development of the blighted property. Accordingly, the disputed statement that Chappelle’s actions prolonged the blight was substantially true. Further,” while he asserted he acted within his legal rights as to “the tax credits, the article does not suggest otherwise. Terms such as ‘killed the deal’ and ‘pay-off’ are loose, hyperbolic language that may not support a defamation claim, and the term ‘questionable practices’ clearly conveys a subjective opinion to a reasonable reader that is not provable as false.” Thus, the court held that the trial court correctly ruled “plaintiffs could not maintain a defamation action with respect to these statements.” As to liability for publishing a particular quote from Singer, the court concluded that, viewed in context, the “quote clearly conveys a subjective opinion rather than a factual assertion.” As to the defamation-by-implication claims, it agreed with the trial court that to the extent publications implied “defendants’ reporting led to the indictment, this implication was not defamatory.” In addition, there was “no ‘clear implication’ of prior criminal wrongdoing in the publications that could be proven as materially false.”
Termination under §§ 19b(3)(c)(i), (g), & (j); Child’s best interests; MCL 712A.19b(5)
Holding that termination was warranted under §§ (c)(i), (g), and (j), and that it was in the child’s (SW) best interests, the court affirmed the order terminating respondent-mother’s parental rights. As to § (c)(i), “the conditions that led to adjudication were respondent’s substance abuse, housing and income instability, and lack of parenting skills.” SW was removed from her care a short time “after birth while still hospitalized as he underwent substance withdrawal. Respondent was offered numerous services to enable her to reunite with the child, but failed to participate in and benefit from” them. In addition, she did not show “she had obtained stable housing and a stable, adequate source of income.” While she contended the trial court should have given her more time to show compliance with the case service plan, the record indicated she “made little progress in her service plan although services were offered to her for approximately 18 months.” As to her claim that the “DHHS should have referred her to inpatient substance abuse treatment,” the court determined that she failed to show “the offer of additional substance abuse treatment services would have overcome her unwillingness to participate in those services.” As to §§ (g) and (j), in addition to her failure to participate in and benefit from services, respondent failed to consistently participate in parenting time with SW, “did not consistently demonstrate parenting skills with the child, and never established a bond with the child.” Additionally, the trial court noted that while she “was employed and was asked to bring supplies for SW during her visit, she provided no financial support, gifts, or necessities for SW while he was in foster care.” As to SW’s best interests, he began “his life in the neonatal intensive care unit, then moved to foster care where he has developed a bond with his foster parent who is willing to adopt him.” He never resided with respondent and she “did not develop a bond with him; she missed 36 of 54 scheduled parenting times and did not visit SW in the approximately four months leading up to the termination of her parental rights. Respondent failed to comply with her service plan, failed to bring supplies for SW when asked, and failed to provide proof of safe and stable housing.”