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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Sufficiency of the evidence for CSC I convictions under MCL 750.520b(1)(a); Inconsistencies in a victim’s testimony; Lack of physical evidence; Ineffective assistance of counsel; Failure to object to other acts evidence; MCL 768.27a; Relevance; Notice; MRE 404(b)(2); Decision not to object as sound trial strategy; Prejudice
Holding that the victim’s (AJ) testimony was sufficient to support defendant’s CSC I convictions and rejecting his ineffective assistance of counsel claims, the court affirmed. AJ testified that he “forced her to perform oral sex on him on multiple occasions, describing in detail that ‘[w]hite stuff came out’ of defendant’s penis after the assaults, and that the abuse became more forceful over time.” Another child (LT) “corroborated this testimony, stating that he saw defendant ‘put his private part in [AJ’s] mouth’ on one occasion. That evidence was sufficient for the jury to conclude that defendant engaged in sexual penetration with AJ, who was under the 13 at the time.” He contended “AJ’s testimony was inconsistent with her prior statements[.]” She testified at the preliminary exam “that her mother questioned her about defendant several times, but she denied that at trial.” She also told a forensic interviewer that the abuse started when she was five but testified at the preliminary exam “that it began when she was eight or nine. And while she testified at trial that defendant assaulted her and LT simultaneously, she did not disclose that allegation during either her forensic interview or” the preliminary exam. The court concluded that these “inconsistencies do not warrant reversal.” It noted that it is the jury’s role to weigh the evidence and assess credibility. A jury “‘may choose to believe part of a witness’s testimony and disbelieve another part of’” it. The court determined that despite “the inconsistencies in AJ’s various statements and testimonies, the jury’s verdict demonstrates that it found credible her testimony that defendant sexually penetrated her, and we are ‘required to . . . make credibility choices in support of the jury verdict.’” Further, the lack “of physical evidence does not warrant reversal.” The court also held that the testimony of LT and another child was properly admitted under MCL 768.27a and trial counsel was not ineffective for failing to raise a futile objection. As to testimony that defendant sexually assaulted another witness as an adult, this was inadmissible but the record supported an inference that counsel objected to it “at sidebar to avoid highlighting it for the jury.” Thus, the alleged failure to object was “not ‘apparent on the record[.]’” The court added that even “if counsel’s performance was deficient, defendant” did not establish prejudice.
Motion for a mistrial; Brady violation; Brady v Maryland; Hearsay; Other acts evidence; MRE 404(b)(1); Relevance; MRE 401; Other domestic assaults; MCL 768.27b; Notice; MCL 768.27b(2); Unfair prejudice; MRE 403; Ineffective assistance of counsel; Failure to object to the testimony referencing incarceration; Detective’s testimony describing a victim’s demeanor; Victims’ mother’s testimony about prior domestic violence; Cumulative error; Sentencing; Lifetime SORA registration; Cruel or unusual punishment; Lifetime electronic monitoring (LEM); Unreasonable search; People v Hallak; Judgment of sentence (JOS)
The court held that: (1) “the trial court did not abuse its discretion in denying defendant’s motion for a mistrial”; (2) he failed to establish a Brady violation or show he was prejudiced by a detective’s hearsay testimony; (3) his other acts evidence argument as to notice failed; (4) he failed to show the danger of unfair prejudice substantially outweighed the probative value of the other acts of domestic violence; (5) his ineffective assistance of counsel claim failed; (6) the cumulative effect of two errors did not warrant a new trial; (7) “his cruel-or-unusual-punishment” claim was meritless; and (8) consistent “with Hallak, the requirement that defendant submit to” LEM was not unconstitutional. Thus, the court affirmed defendant’s convictions and sentences but remanded for the ministerial task of correcting the JOS to reflect the imposition of LEM. He was convicted of CSC I and II and sentenced to 25 to 40 years for the former and 10 to 15 for the latter. He first claimed “that the trial court erred in denying his motion for a mistrial after the victims’ mother referenced his prior incarceration during her testimony.” He contended this reference “was highly prejudicial and that the trial court’s curative instruction was insufficient to remedy the harm.” The court held that the reference to his “previous incarceration was improper.” But it found that the “prosecutor’s question—when the witness and defendant started dating—did not call for testimony regarding defendant’s prior incarceration, rendering the response unresponsive to the question posed. There is no evidence that the prosecutor intentionally elicited or emphasized the improper testimony. Moreover, the trial court struck the improper testimony and instructed the jury not to consider it.” The court was “not persuaded that the prejudicial effect of a single reference to defendant’s prior incarceration was so significant that it could not be cured by the trial court’s instruction.” Next, he claimed that he was “entitled to a new trial because the prosecutor failed to timely disclose evidence favorable to the defense in violation of Brady[.]” The court held that assuming “for the sake of argument that the prosecution’s disclosure was untimely and satisfied the first prong of the Brady analysis, defendant is not entitled to a new trial because he has not met the second and third prongs.” As to the second prong, he had “not shown that the evidence was favorable to him.” Regarding the third prong, he had not shown “that the evidence was material.” Also, the late disclosures “did not preclude defendant from cross-examining the victims’ mother regarding the cameras.” His remaining arguments were meritless.
Sentencing for a conviction under 18 USC § 2251(a) for conspiracy to sexually exploit a minor; Enhancement under § 2251(e) for two prior convictions related to sexual exploitation of a minor; Whether defendant’s prior offenses resulted in “convictions” or “juvenile adjudications”; Whether federal or state law was determinative; Whether receiving enhancements under both § 2251(e) & § 2260A (committing the crimes while registered as a sex offender) violated “double jeopardy” protections; Applicability of Blockburger v United States; “Propensity evidence” under FRE 413
[This appeal was from the WD-MI.] The court upheld a sentencing enhancement under § 2251(e) for defendant-Baker’s two prior convictions related to sexually exploiting minors. It rejected his arguments that (1) they were “juvenile adjudications” and not “convictions,” and (2) enhancements under both § 2251(e) and § 2260A violated his double jeopardy rights. It also upheld the admission of challenged testimony under FRE 413. Baker was convicted of conspiracy to sexually exploit a minor, coercion and enticement of a minor, and committing the offenses while being required to register as a sex offender. He had two prior convictions relating to the sexual exploitation of minors, making the 35-year minimum under § 2251(e) for violating § 2251(a) applicable. The first issue was whether Baker had at least two prior sexual-exploitation-of-children “conviction[s.]” He claimed his two 1997 Michigan CSC offenses were only juvenile adjudications and not convictions. The court first determined that federal, not state law, is used to define what constitutes a conviction (but it noted the result would have been the same under Michigan law). As to what the term means, it noted that even guilty pleas can constitute convictions. While Baker was a juvenile when he was charged with CSC, the Judgment of Conviction entered on his guilty plea provided that “‘the case was designated by that prosecutor for trial of the juvenile in the same manner as an adult.’” There was no indication that he was subject to a juvenile adjudication. Instead, the state records “reflect that Baker was convicted of [CSC] rather than adjudicated responsible.” As to his double jeopardy argument related to being subject to a 10-year enhancement under § 2260A for committing the crimes while being a registered sex offender, the court declined to apply Blockburger and found that “Congress enacted § 2260A knowing that § 2251 already included a penalty enhancement for individuals with prior convictions for sexually exploiting minors. This shows that [it] intended to impose cumulative punishment on persons already subject to the § 2251(e) enhancement when it passed § 2260A.” Lastly, as to the evidence admitted under FRE 413, the court explained that Rule 413(a) provides that when a defendant is accused of sexual assault in a criminal case, “‘the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.’” His assertion that he was not accused of sexual assault here failed given “Rule 413’s broad definition of ‘sexual assault,’” and the court held that the prior assaults “clear the ‘very low’ threshold of similarity to Baker’s charged offense conduct.” Affirmed.
Search & seizure; Motion to suppress; Whether there was “probable cause” for a search warrant; United States v Sanders; Sentencing; Enhancement for “maintaining a drug premises”; USSG § 2D1.1(b)(12); Whether there was sufficient evidence that defendant opened or maintained the house to manufacture or distribute a controlled substance; Control; United States v Bennett (Unpub 6th Cir); United States v Whiteside (Unpub 6th Cir); Standard of review; Buford v United States
The court held that defendant-Florence’s motion to suppress was properly denied because the search warrant at issue was supported by probable cause. Also, applying clear error review, it upheld the district court’s ruling that the “maintaining a drug premises” sentencing enhancement applied where there was sufficient evidence that Florence exercised de facto control over the premises. Federal agents observed him leave a house, travel to an agreed-upon location and sell drugs to an undercover officer. He then immediately returned to the house. The agents obtained a search warrant for the home and found large amounts of cash and ammunition, guns, body armor, fentanyl, and marijuana. Florence was indicted on firearm and drug charges. He unsuccessfully moved to suppress the evidence seized under the search warrant, and then pled guilty. In sentencing him to 106 months, the district court applied a two-level enhancement for “maintaining a premises for the manufacture or distribution of a controlled substance.” On appeal, the court found that Sanders foreclosed Florence’s challenge to the search. Probable cause supported the warrant where the federal officers had seen him leave the house, conduct a drug sale, and return to the same house. The court rejected his attempts to distinguish Sanders. The affidavit did not have to be “identical” to the one in that case and the court found that, if “anything, the evidence here is stronger than in Sanders.” Florence also argued that the district court erred by applying the two-level sentence enhancement under § 2D1.1(b)(12). He asserted that there was no evidence to support the maintenance prong required for the enhancement to apply. The court noted that “the appropriate standard of review for the district court’s application of the maintenance prong to a particular set of facts is murky.” Considering Buford, it concluded clear-error review was the appropriate standard. And applying this standard made “this an easy case.” The court acknowledged the fact that Florence’s father owned the house and that Florence was allowed to access it and store things there did not “necessarily mean that [he] exercised de facto control over” it. But the court noted that Bennett was similar to this case. As in that case, Florence did not “have a legal or possessory interest in the” home. However, he “expressly admitted” that the drugs there belonged to him. “Further, there were ‘additional indicia of drug trafficking’ at the residence: a pill press, scales, firearms, body armor, a money counter, and almost sixty thousand dollars in cash. That drug paraphernalia provided circumstantial evidence that the defendant did in fact control the premises.” Affirmed.
Child custody; Established custodial environment (ECE); MCL 722.27(1)(c); Sabatine v Sabatine; Legal custody; Child’s best interests; MCL 722.23; Wright v Wright; Proper cause & change of circumstances; Vodvarka v Grasmeyer; Imputation of income under the Michigan Child Support Formula (MCSF); 2021 MCSF 2.01(G); Carlson v Carlson; Attorney fees in domestic relations case; MCR 3.206(D)(2); Reed v Reed; Friend of the Court (FOC)
The court held that the record supported an ECE with defendant-mother and that the trial court did not abuse its discretion in awarding her sole legal custody. But the trial court erred by imputing business income to plaintiff-father without making the findings required by the MCSF and remand was required as to the award of attorney fees under MCR 3.206(D)(2). The parties separated when the child was three months old. An interim order left physical custody with defendant and plaintiff had set parenting time. Disputes followed over legal custody, plaintiff’s income, and fees. After trial, the trial court found an ECE with defendant, weighed the best interest factors largely in her favor, awarded her sole legal and physical custody, set parenting time for plaintiff, referred support to the FOC, imputed business income to plaintiff, and awarded defendant fees. On appeal, the court first held that the record supported the ECE with defendant and if “the trial court were to grant plaintiff’s request to give the parties equal parenting time, then the change would alter” the child’s ECE “because it would change to whom [the child] would look on a daily basis for parental guidance, comfort, and the necessities of life.” Further, while the trial court mistakenly declined to address the permanence factor and may have erred in weighing moral fitness heavily for defendant, awarding sole legal custody was within the range of principled outcomes given the parties’ inability to cooperate. “The trial court weighed several of the best-interest factors in favor of defendant, and the record clearly demonstrated that the parties struggled to coparent and could not agree on many issues regarding” the child’s well-being. The court next held that plaintiff failed to show “the trial court abused its discretion by limiting counsel’s questioning of defendant” about her income “or deprived [him] of due process by doing so.” Turning to support, the court vacated the imputation of income to plaintiff because the trial court “imputed this income without first considering all of the factors in the MCSF or Michigan caselaw.” Finally, as to fees, the court vacated the award and directed the trial court on remand to “clarify whether the $15,000 attorney-fee award is on the basis of MCR 3.206(D)(2)(a) or (b). If (a), then [it] must specify that the award is made on the basis of defendant’s inability to bear the expense of the action and plaintiff’s ability to pay. . . . If (b), then [it] must specify how defendant demonstrated that the particular attorney fees and expenses were incurred due to plaintiff’s refusal to comply with a previous court order.” Affirmed in part, vacated in part, and remanded.
Mandamus; Authority to reject a petition for a referendum; Validity of appropriations ordinance; Compliance with charter notice requirements; Whether the Ordinance violated agreements with a township; Clam Lake Twp v Department of Licensing & Regulatory Affairs
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 81793 in the 6/20/24 edition for the published opinion) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decision in Clam Lake.
Capacity to execute a deed; Persinger v Holst; Presumption of capacity & burden on challenger; In re Wawrzyniak’s Estate; Proving incapacity from condition before/after & exception when there is evidence at execution; Burmeister v Russell; Weak-mindedness/age/illness insufficient to defeat conveyance; Kouri v Fassone; Waiver of unpreserved burden argument; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, Inc; Personal representative (PR); Functional Assessment Staging of Alzheimer’s Disease (FAST)
Holding that plaintiff (the decedent’s daughter and the PR of her estate) waived any burden-of-proof challenge and that the evidence did not overcome the presumption of capacity, the court affirmed the judgment upholding the decedent’s quitclaim deed to her other daughter (defendant-Darlene) and her grandsons (also defendants). The decedent had four children. After one son died, she drafted a deed leaving her homestead and roughly 80 acres to the remaining children, but the original instrument was never recorded or found. In 2009, Darlene moved in with the decedent and eventually became her full-time caregiver. In 2017, the decedent was diagnosed with unspecified dementia and later received hospice services. At defendants’ request an attorney prepared a new deed conveying the home and land to defendants, which decedent executed at home before a notary. She died in 2018. Plaintiff sued alleging incapacity and undue influence. The trial court found the decedent competent and entered judgment for defendants. On appeal, as a preliminary matter, the court found that plaintiff waived her burden of proof argument. Turning to the merits, it stated the correct rule that “‘the presumption is that the testator has mental capacity, and the burden of proof is upon a party assailing such capacity,’” and it applied the deed-capacity test requiring “sufficient mental capacity to understand the business in which [she] engaged, to know and understand the extent and value of [her] property, and how [she] wanted to dispose of it, and to keep these facts in [her] mind long enough to plan and effect the conveyances . . . .” The court declined to treat diagnosis or age as dispositive, explaining that it would not create a bright-line rule whereby such conditions “automatically overcomes the presumption of capacity.” It highlighted in a footnote medical testimony that the decedent’s FAST scores “did not necessarily indicate memory loss or confusion.” Crediting witnesses with daily contact, including hospice staff, a neighbor, and family members, the court found that the decedent could communicate her wishes, expressed frustration with plaintiff’s limited involvement, voiced gratitude for Darlene’s care, and told several people she intended to leave the property to defendants. The notary confirmed that the decedent “understood what she was doing” at execution. The court emphasized that the record showed the decedent “always knew who she was, where she was, and with whom she was speaking until her death,” and that plaintiff did not carry her burden to prove lack of capacity by a preponderance of the evidence.
Termination under § 19b(3)(c)(i); Parent-agency agreement (PAA)
Concluding that § (c)(i) was met and the trial court did not clearly err in holding respondent-mother failed to meaningfully change the conditions that led to the initial disposition, the court affirmed termination of her parental rights to the children. First, it was “undisputed that more than 182 days have passed since the initial dispositional order was entered in this case.” Next, the children were initially removed from her care because she “failed to provide proper care and support and her home was an unfit place for the children to live.” When the trial court terminated her “parental rights, there had not been a meaningful change to those conditions.” The court found that it “was reasonable for the trial court to believe that, given even more time, respondent would still not secure long-term housing for she had not shown motivation to find housing when she was being provided with support, let alone on her own.” Additionally, she “failed to meaningfully improve her ability to provide proper care and support,” or comply with her PAA. She “participated in, but did not complete, parenting education.” The court noted that magnifying “this difficultly is that the four children have special needs[.]” It found that raising “four children with special needs is undoubtedly difficult, but respondent’s lack of attendance at her children’s medical appointments and school meetings supports the trial court’s finding that she did not meaningfully improve her ability to provide proper care and support upon reunification.” Finally, she “waited until the final termination hearing to raise issues concerning the suitability of her children’s placements.” That delay further supported “the trial court’s decision, reflecting that she did not take proactive steps to protect her children if they were returned to her care.”