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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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AWIGBH; Motion for a directed verdict; Sentencing; Scoring of OV 7; MCL 777.37(1)(a); Departure from the guidelines; People v Steanhouse; People v Walden; Failure to adequately support the extent of the departure; People v Milbourn
Holding that there was sufficient evidence for the jury to find that defendant-Balenda intended to cause the victim (his girlfriend) great bodily harm, the court concluded the trial court did not err in denying his motion for a directed verdict. Further, it properly scored OV 7 at 50 points and did not err in departing upwards from the guidelines in sentencing him. But it “failed to adequately support the extent of the departure sentence.” He was also convicted of aggravated domestic violence. He was sentenced above his guidelines range for AWIGBH, to a minimum of 3 years, and within his guidelines range to 12 months for aggravated domestic violence. As to his motion for a directed verdict, the victim testified that he “woke her by screaming at her before he began to hit her in the eye. [She] also testified that [he] hit her repeatedly and forcefully in the eye, and she tried to block him and begged him to stop. These circumstances would allow a reasonable jury to infer that Balenda intended to cause great bodily injury.” The court added that while “the prosecution was not required to show that any injury occurred, Balenda’s assault caused the victim’s right eye to rupture and hemorrhage, leading to blindness in that eye. The extent of her injuries is circumstantial evidence that Balenda intended great bodily harm.” There was also expert testimony “that these injuries were from repeated trauma to the area and would not result from an accidental fall on the face, which provided additional circumstantial evidence that the jury could use to infer Balenda’s intent.” As to OV 7, the court noted that an AWIGBH conviction “does not require that any injury actually occur. By repeatedly striking the victim in the eye and causing injury, Balenda necessarily increased the severity of the offense.” Further, this OV “does not require the use of a weapon or that threats are made.” And the court found that the facts established “by a preponderance of the evidence that Balenda intended to increase the victim’s fear by a considerable amount.” Finally, while the court concluded “the trial court adequately explained why a departure from the guidelines was warranted, [it] failed to fulfill an additional legal requirement: to articulate on the record the reasons for the extent of the departure.” The court affirmed his convictions, vacated his AWIGBH sentence, and remanded for resentencing on that conviction.
Fraudulent license plate; Venue; “Uses”; MCL 257.257(1)(d)
The court affirmed “the circuit court’s dismissal of this case, finding venue remains improper.” Defendant-Carollo “printed a fraudulent license plate in Macomb County and affixed it to a” work truck. “A different person then drove that truck across the state, ultimately getting pulled over in Mackinac County. The Mackinac County prosecutor filed charges against Carollo for unlawful acts done in Macomb County, which resulted in a reversal by this Court based on improper venue.” The prosecution argued “that the circuit court erred in limiting the term ‘uses’ as provided in” MCL 257.257(1)(d). According to the prosecution, Carollo was “properly prosecuted for violating MCL 257.257(1)(d) in Mackinac County because Carollo used a false plate, the use of that plate continued into Mackinac County, and [he] knew its use would so continue.” The circuit court relied on dictionary definitions of “use” in finding “Carollo’s ‘use’ of the plate concluded in Macomb County.” The court agreed “with this statutory interpretation by the circuit court.” The prosecution stressed “that use of the false plate continued after the truck left Macomb County, but it fails to explain how Carollo’s use of it did.” The court held that its “analysis could end here because neither party focuses on ‘holds’ and the word ‘use’ is not ambiguous because it has the same or similar definition in both legal and lay dictionaries. Therefore, it is not ‘susceptible to more than one reasonable interpretation.’” However, stopping “here would not completely address the prosecution’s argument, as . . . the prosecution highlights ‘knowing’ of the use of the plate as Carollo’s criminal behavior in Mackinac County. Carollo himself may have only held or used the plate in Macomb County, but [he] knew of its use throughout the state, which is, according to the prosecution, the very conduct criminalized under MCL 257.257(1)(d).” The court concluded that “one can commit the criminal act of using a forged title, but if that same person does not know of the forged nature of that title, that person has not committed a crime under MCL 257.257(d). That is in keeping with the structure of the statute as a whole. Subsections (a), (b), (c), (f), and (g) criminalize behavior that one undertakes themselves—altering, forging, falsifying, counterfeiting, indicating. Subsections (d) and (e) criminalize the possession, use, and sale of something that is falsified or forged by oneself or another if the falsified nature is known to the possessor/user/seller. In all subsections, one has knowledge of the criminal behavior.” In this case, “no one debates that Carollo knew of the false nature of registration plate. He made it himself. What the circuit court recognized, though, is that Carollo’s ‘use’ of the plate ceased in Macomb County.”
Sole legal custody; Best-interest factors (c) (capacity to provide for material needs), (j) (willingness to encourage close relationship), & (k) (domestic violence); Joint custody
The court concluded that the trial court’s factual findings as to best-interest factors “(c), (j), and (k), were not against the great weight of evidence, and accordingly, the [trial] court did not abuse its discretion when granting sole legal custody to” plaintiff-mother. Likewise, it “did not fail to consider joint custody, and the trial court’s failure to consider alternatives to joint custody did not constitute plain error.” As to best-interest factor (c), “the trial court found that this factor favored plaintiff on the basis that plaintiff had been providing for the children’s food, clothing, and housing.” In contrast, defendant-father’s “child support payments had been ‘rare and inconsistent,’ such that defendant had an arrearage of over $10,000.” The record amply supported this determination. “Plaintiff earned a master’s degree, was employed part-time, and was looking for full-time work in her field. In the meantime, plaintiff supplemented her income with student loans, public assistance, and some financial support from her family.” Also, the trial court determined that factor (j) slightly favored her too. “Plaintiff testified that she never excluded defendant from decision-making, which the trial court found credible.” And she “tried to encourage the children to have a strong relationship with defendant[.]” The court noted that defendant, “in contrast, would withdraw from plaintiff and the children for days at a time when he was angry or frustrated. And [he] sometimes would fail to pick up the children after the parties had argued. [He] also used the parenting communication platform AppClose to ask to take plaintiff out.” Finally, “the trial court found that plaintiff was slightly favored under” factor (k). The record supported these findings. She “testified that if defendant was angry with her, particularly regarding the parties’ difference in parenting styles or the child support litigation, defendant would stay away from the children for days at a time. Similarly, after the parties argued, defendant would arrive late to pick up the children or fail to come, causing plaintiff to be late for work or miss work altogether. And, as noted, the AppClose messages support that defendant used the platform to communicate about the parties’ relationship.” Affirmed.
Auto insurance policy coverage; Applicable bodily injury liability limits; MCL 500.3009(1)(a); Progressive Marathon Ins Co v Pena; Effect of the policy’s resident relative exclusion; Progressive Marathon Ins Co v Espinoza-Solis; MemberSelect Ins Co v Partipilo
Holding that the trial court did not err in ruling that the applicable liability limits were $250,000 per person and $500,000 per accident, the court affirmed summary disposition for defendant-insured (Ludvik). The case arose after an auto accident in which Ludvik’s minor daughter (AP) was a passenger in a car owned and operated by her older brother, defendant-Christian. They were resident relatives under the terms of their parents’ insurance policy with plaintiff-MemberSelect. The policy was issued after 7/2/20. It indicated that it “included bodily injury liability limits of $250,000 per individual and $500,000 per accident.” Ludvik filed a third-party negligence action against Christian on AP’s behalf. Plaintiff filed this action for declaratory relief, seeking a declaration “that the resident relative exclusion applied and . . . that it was only obligated to indemnify Christian against Ludvik’s claims up to $50,000 per individual.” The crux of plaintiff’s argument was “whether the policy’s resident relative exclusion limits the minimum liability coverage to $50,000 per person and $100,000 per accident under MCL 500.3009(5), or $250,000 per person and $500,000 per accident under MCL 500.3009(1)(a).” The court considered its recent published decisions in Espinoza-Solis and Partipilo. It noted that as was the case with the policy issued to Ludvik and his wife here, the policy between the insured and the “insurer in Partipilo excluded bodily injury coverage for resident relatives ‘in excess of the minimum limit mandated by the motor vehicle financial responsibility law of Michigan.’ . . . The Partipilo Court, largely relying on the reasoning in Espinoza-Solis, concluded that ‘[w]hile the coverage issue in Espinoza-Solis concerned noncooperation by the insured compared with the present case involving the household exclusion, that distinction does not affect the ultimate conclusion’ that under MCL 500.3009(1)(a), the statutorily required minimum bodily injury liability coverage for policies issued after [7/1/20], is $250,000 per person and $500,000 per accident, unless the insured opted for lower coverage in accordance with MCL 500.3009(5).” There was no evidence that Ludvik did this. He “expressly denied doing so in his affidavit. Because MemberSelect offers no evidence to the contrary, and both Espinoza-Solis and Partipilo” were binding, the court concluded the trial court did not err in this case.
Sidewalk trip & fall; The Governmental Tort Liability Act (GTLA); Exceptions to governmental immunity; MCL 691.1402a(1); Responsibility to maintain the sidewalk in reasonable repair; MCL 691.1402a(5); Whether the sidewalk was adjacent to defendant-township’s highway; Distinguishing Stabley v Huron-Clinton Metro Park Auth & Haaksma v City of Grand Rapids
The court agreed with plaintiff that the trial court correctly denied defendant-Township’s (Pittsfield) summary disposition motion because the sidewalk where he “tripped and fell was adjacent to Pittsfield’s municipal highway” and thus, an exception to governmental immunity under the GTLA applied. “MCL 691.1402a(1) states ‘[a] municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.’ The statute only specifies that where a sidewalk is installed ‘adjacent to’ a municipal, county, or state highway, the municipal corporation in which it is installed shall maintain that sidewalk in reasonable repair. The statute does not contain the word ‘parallel’ and does not imply, as Pittsfield suggests, a requirement that the sidewalk be parallel to a municipal, county, or state highway.” The court added that neither its “precedent, nor a dictionary definition, hold that in order to be adjacent, two objects must be parallel. Black’s Law Dictionary (12th ed) defines ‘adjacent’ as ‘lying near or close to.’ It does not employ the word ‘parallel’ or use a synonym for the same.” While Pittsfield relied on Stabley and Haaksma, the court found the facts of those cases distinguishable from this case. “Stabley involved a portion of a park trail that was not close to a municipal, state, or county road, let alone adjacent to one.” As to Haaksma, the sidewalk here “runs beside a public roadway, not in between a parking lot and a building.” The court noted that “Pittsfield did not submit supporting documentary evidence and admits the relevant facts are undisputed. Pittsfield’s position under those undisputed facts is unsupported by the plain language of the statute, the dictionary definition of ‘adjacent,’ and the caselaw, and” the court declined to adopt it. It concluded that the “trial court did not err when it decided the undisputed facts establish Pittsfield is not entitled to governmental immunity.” Affirmed.