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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Other acts evidence; MRE 404(b); Relevance; Unfair prejudice; MRE 403; People v Sharpe; Waiver of jury instruction issue; Ineffective assistance of counsel; Plea-bargaining process; Instructional errors; Failure to object; Sentencing; Proportionality challenge to a within-guidelines sentence; Alleged “de facto life sentence”; People v Purdle (On Remand)
The court held that the trial court did not abuse its discretion in admitting the challenged other acts evidence and rejected defendant’s ineffective assistance of counsel claims. As to his sentencing argument, it concluded that as in Purdle, his “age did not render his sentence disproportionate, considering the seriousness of the offenses, his criminal history, and his lack of remorse.” He was convicted of second-degree murder, FIP, and felony-firearm arising out of a shooting death at a drug dealer’s (W) home. He was sentenced as a fourth-offense habitual offender to concurrent terms of 75 to 100 years for second-degree murder and 25 to 50 years for FIP, as well as 5 years for felony-firearm, to be served consecutive to his FIP sentence. The other acts evidence concerned a prior drug case the prosecution offered to show defendant’s connection to the scene of the crimes and W. The evidence also showed “how police confirmed defendant’s phone number, linked to the scene of the murder and where [victim-C’s] body was found.” The court concluded that in addition to being admitted for reasons other than to show character or propensity, the evidence was relevant. It “showed defendant’s connection to [W], the house, and his cell phone number, which provided investigators with his locations around the time of the murder.” Further, the court held that it “was not unfairly prejudicial. The probative value of defendant’s connection to [W], the home, and his cell phone number was high. The evidence did not refer to defendant as a drug dealer or someone who engaged in criminal activity, and it was not needlessly cumulative, nor did it mislead the jury.” Lastly, while the trial court stated before trial that it would give “a limiting instruction, it did not.” But defense counsel did not request one “and, after the trial court failed to give one, expressed no objection to the jury instructions. Regardless, the prosecutor did not argue at trial that the previous case showed defendant’s guilt because of his character or any other improper purpose.” The court also found that defendant did not establish ineffective assistance of counsel related to a plea offer or instructional errors. Affirmed.
Pretrial identification; In-court identification; People v Posey; Search warrant
In this interlocutory appeal, the court reversed and remanded because “the photographic identification procedure employed by law enforcement was unduly suggestive, tainting both the pretrial and in-court identifications, and because the search warrants lacked the particularity required by the Fourth Amendment.” Defendant was charged with AWIM, AWIGBH, felonious assault, and felony-firearm. He challenged “two circuit court orders: one denying his motion to suppress identification evidence and the other denying his motion to suppress evidence obtained through search warrants for certain cell phone records.” The court concluded that considering “the totality of the circumstances—including complainant’s limited ability to see the shooter, the generic nature of the characteristic on which the identification was based, the lack of comparable photographs in the array, and complainant’s repeated expressions of doubt— . . . the lineup procedure was unduly suggestive and gave rise to a substantial likelihood of misidentification.” Thus, the trial court erred in denying his motion to suppress the pretrial identification. Defendant also contended “that the circuit court erred by denying his motion to suppress complainant’s in-court identification testimony because the impermissibly suggestive lineup tainted it and there is no independent basis for the in-court identification.” The court held that taken “together, the factors outlined in Posey do not support a finding that complainant had an independent basis for identifying defendant in court.” It appeared “highly probable, as defendant purports, that complainant ‘filled the gaps in his memory based on a tainted and unduly suggestive photo array,’ and the subsequent in-court identification was vitiated by the impermissibly suggestive lineup procedure.” The court found that given “the suggestiveness of the pretrial procedure and the absence of meaningful indicia of reliability, the circuit court erred by denying defendant’s motion to suppress the in-court identification.” Finally, defendant claimed “that the circuit court erred by denying his motion to suppress cell phone evidence seized pursuant to a search warrant because the search warrant was invalid.” The court agreed: “the warrants lacked the particularity required by the Fourth Amendment and were not supported by a sufficient nexus between the evidence sought and the alleged offense.”
Sentencing; Scoring of OV 10 (exploitation of a vulnerable victim); Predatory conduct; MCL 777.40(1)(a); MCL 777.40(3)(a); People v Cannon; Scoring of OV 19 (interference with the administration of justice); MCL 777.49(c); People v Hershey; Hiding from police; People v Smith
The court held that the trial court did not err in scoring OVs 10 and 19. Defendant was convicted of CSC III and human trafficking for recruiting the victim, EC, to engage in prostitution after they began dating. The trial court resentenced him to concurrent terms of 58 months to 15 years for the former and 36 months to 10 years for the latter. On appeal, the court rejected defendant’s argument that he was entitled to resentencing because the trial court erred in scoring OVs 10 and 19. As to OV 10, it noted he “spent months cultivating a complicated sexual relationship with EC in which he manipulated her into prostitution and then controlled the money that she earned. On the day of the sexual assault that formed the basis for” his CSC III conviction, EC called him “to ask for money that she needed for her young child. Defendant told her that he would give her the money if she came to his motel room. EC arrived, and defendant told her that he wanted to have sex.” When she said no, he “forced her onto the bed, put his hand around her throat, and sexually assaulted her. She left when he was in the bathroom, without the money that he had promised.” The trial court properly found that evidence of his “preexisting relationship with EC and his preoffense conduct on the date of the incident supported a 15-point assessment for” CSC III. As to OV 19, the trial court properly “assessed 10 points for OV 19 on the basis that defendant hid in the shower of his motel room ‘during a serious investigation’ when he knew that ‘the police were on the other side of that bathroom door’ and that police had come to the room to look for” him. He claimed he was not hiding from police, but instead “hiding from EC’s prostitution client, who had just left.” He also contended “his conduct of remaining in the shower while police were in his motel room did not constitute an attempt to interfere with the administration of justice because he had a constitutional right to remain silent.” However, there was evidence he “left the bathroom after the prostitution client exited the hotel room and, when the police arrived a short time later, [he] returned to the bathroom to hide in the shower.” Hiding from the police “‘constitute[s] an interference with the administration of justice because it [is] done for the purpose of hindering or hampering the police investigation.’” Affirmed.
Sentencing; Restitution; Whether the Mandatory Victims Restitution Act (MVRA) authorizes the award of prejudgment interest; 18 USC § 3663A; United States v Qurashi (2d Cir); The “time value of money”; Interest calculation
The court agreed with the majority of the other circuits that have interpreted the MVRA and its predecessor statute to permit an award of prejudgment interest in calculating restitution when it more fully compensates the victim’s loss. It also concluded that the “district court did not abuse its discretion in finding that prejudgment interest more fully compensated” the victim’s (J.M.) losses. Defendant-Fike pled guilty to wire fraud and aggravated identity theft for defrauding J.M., a client. In addition to prison and supervised release terms, the district court ordered her to pay J.M. the amount Fike had taken, $363,657.67, plus $42,209.41 in prejudgment interest. Fike argued that the MVRA does not authorize prejudgment interest, and even if it did, the district court’s figures were too “speculative.” Although the court noted that no Sixth Circuit published case has held that the MVRA permits interest as part of restitution, it has “not categorically ruled” it out. And in an unpublished decision, it had found “that the MVRA does not exclude interest from a restitution award . . . .” Further, several other circuits have held that restitution under the MVRA may include prejudgment interest. The Second Circuit in Qurashi held that “the MVRA explicitly recognizes ‘that a victim’s losses may change in value between the date of the loss and the date of sentencing. . . . This change in value is commonly known as the time value of money[.]” The court concluded that the “MVRA gives district courts discretion to award prejudgment interest as part of restitution when that interest is necessary to make the victim whole. . . . This reading of the MVRA aligns not only with that of our sister circuits, but also with our longstanding approach to awarding interest in other contexts.” The MVRA’s silence on the issue was not dispositive because “[e]ven when a statute does not mandate an award of prejudgment interest, a district court can award it at its own discretion under general equitable principles.” The court also found that the district court offered a “sufficient rationale as to why the interest calculation presented a reliable basis for awarding interest.” Its decision to award interest when J.M. presented itemization, but not to award it “or additional restitution when she did not, shows that it exercised ‘some precision’ in reaching its conclusion.” After considering J.M.’s declaration and finding it “reliable, the district court did not need to elicit other evidence or subject J.M. to cross examination.” Affirmed.
Bank fraud; Coronavirus Aid, Relief, & Economic Security (CARES) Act; The Small Business Administration (SBA) Paycheck Protection Program (PPP); The Economic Injury Disaster Loan (EIDL) Program; Sufficiency of the evidence for an aggravated identity theft conviction; 18 USC § 1028A; United States v Lumbard; Dubin v United States; Allowing a law enforcement officer to give lay witness opinion testimony under FRE 701; Whether certain testimony violated FRE 404(b) as impermissible character evidence; Answer to a jury question about the interstate-communications element of wire fraud; Sentencing; Loss calculation for the base offense level; Enhancement for “vulnerable victims” (USSG § 3A1.1(b))
The court held that there was sufficient evidence to support defendant-Prather’s aggravated identity theft conviction. It also rejected her evidentiary challenges under FRE 701 and 404(b), and her sentencing challenges. A jury convicted her of bank fraud, wire fraud, aggravated identity theft, and making a false statement on a loan application related to the CARES Act. She submitted six PPP loan applications for six businesses. She used proceeds from the loan she obtained on the first application for personal expenses. “As Prather’s PPP applications rolled in,” a bank employee “noticed irregularities.” An investigation revealed that only one of the businesses was operational, and it only had a total income of $1,500 in 2019. Federal agents also learned that Prather had sought EIDL loans. “As with the PPP-loan applications, inconsistencies abounded among” those applications. She also submitted EIDL loan applications in the name of her nephew, D.P., who suffered from a mental disability. The court first held that there was “ample evidence to support” her identity theft conviction. The record showed that she had used D.P’s identity to apply for fraudulent EIDL loans and he “testified to signing the loan applications at his aunt’s request without understanding the significance of his actions.” The court noted that the loan applications “listed Prather’s phone number and email address as the contacts for the business. Yet, despite Prather’s heavy involvement, the applications indicated that no one helped D.P. prepare them.” The court found that using “D.P.’s identity in the November EIDL-loan applications was ‘at the crux of what’ made Prather’s scheme ‘criminal.’ . . . That is, D.P.’s ‘name itself’ was ‘specifically a source of fraud.’” Even if he had willingly given Prather his identifying information, she could still be convicted under § 1028A where she acted “‘without lawful authority.’” The court held that the Supreme Court in Dubin did not abrogate the court’s prior case precedent in this regard. Among other things it also held that the “district court correctly informed the jury that Prather didn’t need to know the interstate nature of her acts to be convicted of wire fraud.” As to her sentences, the district court did not err (1) “in using intended loss to calculate her sentence” or (2) in applying the enhancement for “vulnerable victims,” § 3A1.1(b). The court affirmed her convictions and her sentences.
Motion to change custody; Proper cause or change of circumstances; Vodvarka v Grasmeyer; Merecki v Merecki; Failure to manage a child’s ADHD medication; Best-interest factor MCL 722.23(c) (capacity & disposition to provide the child with medical care); Relevance of the child’s school-disciplinary issues; Factor MCL 722.23(h) (the child’s home, school, & community record); Relevance of the child’s expressed preference (factor MCL 722.23(i)); Plain error affecting the child’s substantial rights
The court held that the trial court plainly erred in “applying the improper burden of proof, the error affected” the substantial rights of the parties’ child (LM), and reversal was “warranted because the error seriously affected the fairness and integrity of the custody proceedings.” Thus, it reversed the trial court’s order denying defendant-mother’s motion for a change in custody and remanded. Defendant raised multiple allegations that she asserted showed proper cause or a change of circumstances to modify custody. The court noted that the “failure to manage the administration of LM’s ADHD medication is directly relevant to” best-interest factor (c) and his “school-disciplinary issues are directly relevant to” factor (h). The trial court recognized that plaintiff-father “was not managing LM’s ADHD, and that LM’s ADHD was a contributing factor to his school-disciplinary issues. [It] further acknowledged that there was evidence that LM’s school-disciplinary issues increased from 7 in 2021, 14 in 2022, 43 in 2023, and 30 in 2024 (as of the time of the [8/24] hearing). But [it] did not examine whether these factors had ‘the potential for a significant effect on the well-being of’ LM. . . . Instead, the trial court concluded that a custody modification would not change the circumstances. A trial court must find that ‘either proper cause or a change of circumstances exists before the trial court can consider’ the rest of the modification-of-custody analysis.” Thus, the court held that the “trial court plainly erred by applying the incorrect burden of proof. [It] also plainly erred by determining that LM’s expressed preference to live with defendant was irrelevant ‘until a change of circumstances, or proper cause, is found[.]’” The court noted that factor (i) considers a child’s reasonable preference. While this factor alone does not constitute a sufficient change of circumstances to warrant re-evaluating a custody arrangement, “in this case, the trial court plainly erred by determining that the factor was irrelevant and by failing to examine whether it was ‘of such magnitude to have a significant effect on the child’s well-being.’” The court also found that the “plain error affected LM’s substantial rights.” It noted that the “trial court never considered how LM’s unmanaged ADHD, school-disciplinary issues, and reasonable preference to live with defendant affected LM’s well-being.”
Motion for stay of removal pending appeal; Requirements for a stay pending appeal under Nken v Holder; Likelihood of success on the merits; Irreparable harm
The court denied petitioner-Sarkisov’s motion for a stay of removal pending appeal, holding that he did not show that he was entitled to a stay under Nken. Sarkisov, who is illegally present in the United States, was found subject to deportation. His later motion to reopen his case was denied and his appeal to the Board of Immigration Appeals was rejected. He appealed the Board’s decision to the court in 2023 and asked for a stay of the deportation order for the duration of the appeal. After a pause for negotiations between the parties, the litigation resumed and the court now considered his motion for a stay. It reviewed the Nken test that governs an alien’s request for a stay of removal pending appeal and noted that Sarkisov’s motion failed to “say anything at all about the merits. So he can’t establish” the first factor. In addition, he did not offer “a single reason why he would suffer irreparable harm without a stay. He offers only the conclusory assertion that ‘I will suffer irreparable harm if I am removed.’ . . . But removal from the United States ‘is not categorically irreparable.’” The court held that his “failure to satisfy these two ‘most critical’ stay factors—likelihood of success on the merits and irreparable harm—dooms his motion.” Thus, it denied it even though the government had not opposed the motion. It noted that “the government’s non-opposition can’t relieve Sarkisov of his burden to satisfy the Nken test” and that the government cannot “effectively compel a court to enter equitable relief by failing to oppose a motion that seeks such relief.”
The court’s jurisdiction; Appeal from an amended stipulated order of dismissal; Sandoval v Farmers Ins Exch; Jaber v P & P Hospitality, LLC (Jaber II); Fraud; MCL 500.3173a(4); Candler v Farm Bureau Mut Ins; Williamson v AAA of MI; Gary v Farmers Ins Exch; Michigan Automobile Insurance Placement Facility (MAIPF)
Concluding that it had jurisdiction over this appeal and that the circuit court did not err in granting defendant-insurer (Citizens) summary disposition based on fraud under MCL 500.3173a(4), the court affirmed. The case arose out of a car accident. Defendant argued that the court lacked jurisdiction over the “appeal because no appeal as of right may be taken from a consent judgment without an express reservation of the right to appeal.” Defendant relied on Sandoval. But six months after it was issued, the court issued its opinion in Jaber. The court held that given “the holding of Jaber II, Sandoval no longer dictates whether this Court has jurisdiction over plaintiff’s appeal. Instead, this Court must follow the rule established in Jaber II.” It concluded that applying those “principles to the matter at hand, there can be no dispute that plaintiff is an aggrieved party with respect to the [8/22] order, where the trial court ruled that there was no question of fact that plaintiff had committed fraudulent insurance acts, and that he was thus excluded from coverage for PIP benefits.” As a result, he “suffered ‘a concrete and particularized injury’ stemming from the [trial] court’s decision” and was an aggrieved party as to the 8/22 order. However, he “could not appeal by right from the [8/22] order because it was not final. After the [trial] court entered its final order in [8/23], plaintiff could then appeal” that order by right, and also raise issues stemming from the 8/22 order. Since he “was not a party to the stipulated order of dismissal, defendant’s assertion that plaintiff should have reserved a right to appeal the [8/22] order is inconsistent with the contract principles applicable to consent judgments.” Moreover, as the court “recognized in Jaber II, parties may not stipulate to jurisdiction, and the court rules do not require that challenges to orders entered before a final order be preserved by reservation.” Plaintiff argued “that the circuit court erroneously granted summary disposition on the basis of fraud under MCL 500.3173a(4).” He contended “that the errors in his application and his inconsistent deposition testimony were innocent mistakes.” The court disagreed, finding that the “same reasoning set forth by our Supreme Court in Williamson applies here with regard to plaintiff’s deposition statements in support of his demand for coverage.” It concluded that viewing “the evidentiary record in the light most favorable to plaintiff, we find no genuine issue of material fact that plaintiff committed a fraudulent insurance act.” The record supported the conclusion that he signed the MAIPF “application with the knowledge that he was providing false, inaccurate information.” Gary was not dispositive.
Order for involuntary mental health treatment; Person requiring treatment; Whether a moot claim remains “publicly significant, likely to recur, and yet likely to evade judicial review”; Christenson v Secretary of State; Mootness; In re Tchakarova
Finding that respondent’s appeal involved an expired order, and that he failed to point the court to any practical legal consequences that might follow from it, the court dismissed his appeal as moot. The probate court found respondent was a person requiring mental-health treatment and entered an order for involuntary treatment. Since that time, the order expired. On appeal, the court rejected respondent’s argument that the probate court erred by entering the order, agreeing with petitioner that the appeal was moot. It noted that, not only had the order expired, but there were no “collateral legal consequences,” including his claim regarding his inability to possess a firearm lawfully. “In the mine-run of similar cases, this consequence might well be sufficient to overcome mootness, but here, (a) respondent has had multiple prior involuntary treatments/hospitalizations, (b) there is no record of those orders being appealed or otherwise challenged, and (c) the time for doing so has since lapsed.” As such, “even if respondent were successful in the present appeal, he would still not be able to possess a firearm lawfully.” Further, because he failed to provide any legal authority for his contention that “‘there are other potential downsides to having even an expired mental health order on one’s record which could potentially impact employment and other opportunities,’” he abandoned this argument. Finally, “the merits of respondent’s involuntary treatment will not, in a practical sense, evade appellate review, given [his] appeal of the probate court’s” order.