Appointed counsel fees reimbursement; MCL 769.1k(1)(b)(iv); The Michigan Indigent Defense Commission (MIDC) financed portion of defendant’s legal expenses; The Michigan Indigent Defense Commission Act; Double recovery claim; Right to counsel of choice; Denial of adjournment to change counsel; People v Wilson; Whether substitute counsel should have been appointed; People v Mack; Good cause; Sentencing; Scoring of OV 19; MCL 777.49(c); People v Deweerd; Crosby remand; Appellate jurisdiction as to a postjudgment order issue; Judgment of sentence (JOS)

The court rejected defendant’s challenge to the trial court’s assessment of attorney fees for her appointed counsel, concluding that the statutory scheme in the Michigan Indigent Defense Commission Act “prevents the trial court’s funding unit from realizing a double recovery.” It also found that the trial court did not abuse its discretion in denying her request for an adjournment to change counsel, and she “was neither denied her Sixth Amendment right to retained counsel of choice nor entitled to the appointment of substitute counsel.” But it remanded for further proceedings as to the scoring of OV 19. Defendant was convicted of second-degree home invasion and larceny in a building. Applying the Wilson factors to her claim that the trial court should have adjourned trial to allow her to retain substitute counsel, the court concluded that the trial court’s ruling was “a reasoned refusal to postpone a long-delayed trial mere hours before it was scheduled to begin based on nonspecific complaints about counsel and an indefinite plan to hire a replacement.” It also found that she failed to show good cause for the appointment of a different attorney. As to attorney fees, the trial court imposed the entire cost of her representation, $1,400. She argued “that she should be required to reimburse only the portion of that cost paid from the trial court’s funding unit’s local funds, excluding the portion financed by state grants from the MIDC. In her view, requiring reimbursement of the full amount would allow the funding unit to recover twice for the same expense.” The court disagreed, finding that this “argument misapprehends the statutory funding scheme.” It noted that pursuant to MCL 780.983(i), “recovered attorney fees ‘must not alter the calculation of the local share.’ And the local share excludes ‘money reimbursed to the system by individuals determined to be partially indigent.’” As to OV 19, while “the trial court’s rationale for scoring 10 points” was inadequate, it did not follow that the record could not support this score. The court concluded that a Crosby remand was the proper remedy. Finally, it found that it lacked jurisdiction to review the restitution imposed in the amended JOS given that this appeal was from the original JOS. Affirmed but remanded.

Criminal sexual conduct (CSC) convictions; Double jeopardy; Multiple punishments; Blockburger v United States; CSC I & CSC II; MCL 750.520b(1)(e) & MCL 750.520c(1)(e); CSC I & CSC III; MCL 750.520d(1)(a); Sufficiency of the evidence; CSC II & CSC IV; Use of penetration evidence to establish sexual contact; Hearsay; Excited-utterance exception; MRE 803(2)

The court held that defendant’s CSC II and CSC III convictions did not violate double jeopardy, sufficient evidence supported his CSC II and CSC IV convictions, and there was no error in admitting the victim’s statement under the excited-utterance exception. He was convicted of multiple CSC offenses arising from his sexual assault of 13-year-old EW after telling her he had a gun and threatening to kill her family. As to double jeopardy, the court determined under the Blockburger test that CSC I and CSC II each require proof of an element the other does not because CSC I requires penetration while CSC II requires sexual contact with a sexual-purpose intent. Likewise, CSC I requires the use or implied use of a weapon while the charged CSC III offense requires that the victim be 13 to 15 years old. Thus, the offenses were not the same for double-jeopardy purposes. The court next rejected both parties’ position that the penetration evidence supporting defendant’s CSC I and CSC III convictions had to be disregarded when considering the sufficiency of the evidence for CSC II and CSC IV. It explained that “a single penetration may support multiple CSC convictions of varying grades” when each offense has a distinct element. EW’s testimony that defendant vaginally penetrated her therefore established the touching of her genital area required for CSC II and CSC IV. Finally, EW’s statement to another witness shortly after the assault that “he touched me” fell within the excited-utterance exception. Her frightened, “dumbfounded,” and crying condition supported the conclusion that she remained overwhelmed by the assault and lacked the capacity to fabricate. Affirmed.

Probable cause for a cell phone search warrant; Particularity; People v Carson; Search warrant for cell phone carrier data; Nexus; Harmless error; Ineffective assistance of counsel; Failure to move to suppress; Failure to object to expert testimony or request a Daubert v Merrell Dow Pharm, Inc hearing; Factual predicate; Trial strategy; Lay opinion testimony; MRE 701; People v Fomby; Whether proposed testimony was hearsay; Cumulative error

The court held that defendant failed to show the admission of evidence obtained pursuant to search warrants for his cell phone and for cell phone carrier data affected his substantial rights. It rejected his ineffective assistance of counsel claims, and found an officer’s testimony about vehicle identification was admissible under MRE 701. While the trial court erred in excluding defendant’s proposed testimony about certain statements as hearsay, the court found the error harmless. Finally, his cumulative error claim failed due to the lack of multiple errors. Thus, it affirmed his convictions of intentional discharge of a firearm from a motor vehicle, intentional discharge of a firearm at a dwelling, FIP of a firearm, FIP of ammunition, and felony-firearm, second offense. He challenged the admission of evidence under two search warrants. The court held that the one for his “cell phone lacked the necessary particularity” while the one for T-Mobile cell phone data was sufficiently particular. It found that the search warrant for the phone was “substantially similar” to the one at issue in Carson. It “did not describe with sufficient particularity the items to be searched.” But the search warrant seeking “T-Mobile cell phone data relative to the telephone number associated with defendant” was supported by an affidavit that the court concluded “was sufficient to withstand constitutional muster.” Not only did “the search warrant identify the particular categories to be searched,” it also contained “a temporal limitation for the search.” However, as to the nexus requirement, both “affidavits failed to contain specific facts that connected information potentially stored on defendant’s cell phone to the shooting. Accordingly, a reasonably cautious person could not have concluded that there was a substantial basis for finding a fair probability that evidence of the crime would be found on [his] cell phone or in the carrier’s data.” Nonetheless, alternative (and perhaps even more compelling) evidence was presented at trial “that defendant was the individual who drove by the victim’s home and shot into the occupied dwelling.” Given that evidence, the information obtained pursuant to the search warrants “was not outcome-determinative.”

Motion to suppress; Search warrant challenges; Standing as to search warrants for someone else’s social media accounts; Legitimate expectation of privacy claim; Request for a Franks v Delaware hearing; Sufficiency of the evidence for a conviction of aiding & abetting a kidnapping; 18 USC §§ 2 & 1201(a); Admission of a photo of defendant with a rifle; Harmless error; Admission of an Instagram message identifying actions as a kidnapping; FRE 403; Jury instructions; Advance-knowledge aiding & abetting component

[This appeal was from the ED-MI.] The court held that defendant-Lewis lacked standing to challenge the propriety of warrants authorizing searches of a codefendant’s (B) social media accounts because he had no reasonable expectation of privacy in them. It also held that there was sufficient evidence to support his aiding and abetting kidnapping conviction, and rejected his challenges to the admission of a photo and an Instagram message. Finally, it found that the district court’s aiding and abetting jury instruction “encompassed an advance-knowledge component.” The court concluded that B’s social media “accounts are tantamount to any other corporeal belonging.” As Lewis did not have a possessory or property interest in B’s “bedroom dresser or diary,” he likewise lacked “property or possessory interests in” his social media accounts. Lewis did not exhibit any “‘subjective expectation of privacy’ in [B’s] account” and no objective factors substantiated “the reasonableness of such an expectation.” Thus, he could not vicariously assert B’s “rights to suppress evidence obtained from searches of the account” pursuant to the state search warrants. The same logic applied to federal warrants for the Instagram accounts of B and four others, for Google accounts associated with three of those individuals, and another “federal warrant. Each of these warrants targeted other people’s social media or email accounts.” The court also determined that he could not “make the strong preliminary showing necessary for a Franks hearing.” It next held that there was sufficient evidence “to convince a jury, beyond a reasonable doubt, that Lewis took affirmative steps to further [victim-J’s] kidnapping with the intention to facilitate it.” The court found that a 22-second “video says nearly everything. It depicts Lewis, armed with a rifle, towering over [J] and later jabbing her with that rifle as two women assault her. This intimidation tactic, employed while others were violently beating [J], was aimed at furthering the gang’s attempt to pull information from” J about a “carjacking and her role in it. And Lewis’s actions were part and parcel of the broader aim of the kidnapping: to hold [J] against her will until they could find out who was responsible for the carjacking so” the gang could take revenge. Affirmed.

Frivolous action; Sanctions; MCL 600.2591(1) & (3)(a)(ii); Reasonable factual basis; Amended complaint; Noncompete & confidentiality agreement; Alleged disclosure of confidential information; Reasonable prefiling inquiry; Speculative belief; Abandoned argument

The court held that the trial court did not err in finding plaintiff-employer E’Mation’s amended complaint frivolous because it lacked a reasonable factual basis for alleging that defendant-former employee DeJong used or disclosed confidential information after leaving the company. DeJong resigned after approximately nine years and went to work for a competitor where he trained panel builders. E’Mation initially sued for breach of a noncompete agreement, but the trial court ruled that the provision applied only if E’Mation terminated DeJong’s employment. E’Mation then amended its complaint to allege that he was using or disclosing confidential information at his new employer. After discovery, E’Mation identified two Internet photographs of electrical panels as evidence that DeJong disclosed its wire-labeling method. But E’Mation’s owner admitted that the photographs were discovered after the amended complaint was filed and that he did not know who took them, when they were taken, who built the panels, or whether DeJong had worked on them. At the time E’Mation asserted the claim, its factual basis consisted essentially of DeJong’s permissible decision to work for a competitor and train employees there. Under MCL 600.2591(3)(a)(ii), an action is frivolous where a party has “no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.” The court emphasized that the reasonableness of a claim is assessed when it is asserted and that “a speculative belief alone does not provide a reasonable basis to believe the facts underlying a party’s suit are in fact true.” Thus, the trial court did not err in imposing sanctions. The court also deemed abandoned E’Mation’s unsupported argument concerning whether DeJong personally paid his attorney fees. Affirmed.

Child Custody Act (CCA); Change of domicile; MCL 722.31; Existing custody order requirement; Affidavit of parentage (AOP); Kessler v Kessler; Kleinfeldt v Stern; Original custody action; MCL 722.27; Established custodial environment; Best-interest factors; MCL 722.23(f), (j) & (l); Parenting time; MCL 722.27(1)(b); Child support; MCR 3.211(D)

The court held that MCL 722.31’s change-of-domicile framework did not apply because no existing custody order governed the child, and it found no reversible error in the trial court’s custody, parenting-time, or child-support rulings. The parties executed an AOP after their child’s birth but had no custody order when plaintiff-father filed this original custody action after defendant-mother announced plans to relocate to Arizona. Mother later moved the child there and sought permission to change domicile. The court explained that MCL 722.31 applies only when parental custody is already governed by court order. An AOP “is not an initial custody order,” and consequently “the factors set forth in MCL 722.31 do not apply.” The trial court therefore properly began under MCL 722.27 by determining the established custodial environment and then considering the MCL 722.23 best-interest factors. Because the child had an established custodial environment with both parents in Michigan, mother bore the clear-and-convincing-evidence burden to establish that disrupting it was in the child’s best interests. The trial court’s earlier mistaken statement that mother had not filed a domicile motion was harmless because it later recognized and ruled on the motion, and mother had moved the child before filing it. The court also upheld findings favoring father under best-interest factors (f), (j), and (l), including findings that mother’s sexual-abuse allegations were not credible and that her unilateral relocation reflected poor judgment and interfered with father’s relationship with the child. The trial court permissibly established general parenting-time terms pending a later hearing because neither party requested greater specificity. It also properly reserved child support for that hearing under MCR 3.211(D). Affirmed.

Frivolous action; Sanctions; MCL 600.2591(1) & (3)(a)(ii); Reasonable factual basis; Amended complaint; Noncompete & confidentiality agreement; Alleged disclosure of confidential information; Reasonable prefiling inquiry; Speculative belief; Abandoned argument

The court held that the trial court did not err in finding plaintiff-employer E’Mation’s amended complaint frivolous because it lacked a reasonable factual basis for alleging that defendant-former employee DeJong used or disclosed confidential information after leaving the company. DeJong resigned after approximately nine years and went to work for a competitor where he trained panel builders. E’Mation initially sued for breach of a noncompete agreement, but the trial court ruled that the provision applied only if E’Mation terminated DeJong’s employment. E’Mation then amended its complaint to allege that he was using or disclosing confidential information at his new employer. After discovery, E’Mation identified two Internet photographs of electrical panels as evidence that DeJong disclosed its wire-labeling method. But E’Mation’s owner admitted that the photographs were discovered after the amended complaint was filed and that he did not know who took them, when they were taken, who built the panels, or whether DeJong had worked on them. At the time E’Mation asserted the claim, its factual basis consisted essentially of DeJong’s permissible decision to work for a competitor and train employees there. Under MCL 600.2591(3)(a)(ii), an action is frivolous where a party has “no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.” The court emphasized that the reasonableness of a claim is assessed when it is asserted and that “a speculative belief alone does not provide a reasonable basis to believe the facts underlying a party’s suit are in fact true.” Thus, the trial court did not err in imposing sanctions. The court also deemed abandoned E’Mation’s unsupported argument concerning whether DeJong personally paid his attorney fees. Affirmed.

Medical malpractice; Striking an expert; Expert qualification; MCL 600.2169(1)(b); “Active clinical practice”; Gay v Select Specialty Hosp; Kiefer v Markley; Motion to substitute another expert; MCR 2.401(I); Motion to amend a witness list; “Good cause”; Smith v Beaumont Health; Dean v Tucker; Affidavit of merit (AOM)

The court held that the trial court properly applied MCL 600.2169(1)(b) and did not abuse its discretion in striking plaintiff-estate’s nursing expert (S) as an expert witness or in denying its motion to substitute another expert. This medical malpractice case arose from the decedent’s suffering a stroke and dying after presenting to defendant-hospital’s ER. The first issue on appeal was whether, in the year before the incident, S’s “active clinical practice and instruction of students combined to be more than half of her professional time.” The court held that the trial court did not abuse its discretion in finding that it did not. She swore in her AOM “that ‘more than 50% of [her] professional time was spent in either teaching and/or the practice of nursing’ during the year before the alleged malpractice occurred in [8/20]. But at her deposition, [S] testified she spent only about 30% of her time that year on the counted activities and that she spent the rest of her time as Clinical Nurse Manager on administrative activities such as hiring, discipline, staffing, budgeting, and other managerial duties.” The court concluded that, applying “Gay’s definitions of the terms in ‘active clinical practice,’ [S’s] administrative duties outlined in her deposition” did not fit within their parameters. Plaintiff proffered no evidence that S’s administrative duties, which she “agreed comprised about 70% of her time, . . . involved the direct or indirect observation and treatment of patients.” As to the substitution motion, the Supreme Court in Smith reversed the court’s holding that the Dean factors must be considered in evaluating a motion to amend a witness list. Smith set forth “some ‘basic considerations’” for analyzing good cause as to diligence in this context. The trial court gave “several reasons for finding that plaintiff failed to show the required good cause.” The court determined that plaintiff’s failure to realize in 10/24 that S “may not have been qualified as an expert, combined with other delays, supports the conclusion that the trial court did not err in finding a lack of diligence.” The court noted “Smith emphasized that ‘the lack of diligence itself may be prejudicial to the opposing party because of the increased costs of unnecessary litigation,’ and the trial court explained why the risk of prejudice to” the hospital outweighed any prejudice asserted by plaintiff. Affirmed.

Medical malpractice; Striking an expert; Expert qualification; MCL 600.2169(1)(b); “Active clinical practice”; Gay v Select Specialty Hosp; Kiefer v Markley; Motion to substitute another expert; MCR 2.401(I); Motion to amend a witness list; “Good cause”; Smith v Beaumont Health; Dean v Tucker; Affidavit of merit (AOM)

The court held that the trial court properly applied MCL 600.2169(1)(b) and did not abuse its discretion in striking plaintiff-estate’s nursing expert (S) as an expert witness or in denying its motion to substitute another expert. This medical malpractice case arose from the decedent’s suffering a stroke and dying after presenting to defendant-hospital’s ER. The first issue on appeal was whether, in the year before the incident, S’s “active clinical practice and instruction of students combined to be more than half of her professional time.” The court held that the trial court did not abuse its discretion in finding that it did not. She swore in her AOM “that ‘more than 50% of [her] professional time was spent in either teaching and/or the practice of nursing’ during the year before the alleged malpractice occurred in [8/20]. But at her deposition, [S] testified she spent only about 30% of her time that year on the counted activities and that she spent the rest of her time as Clinical Nurse Manager on administrative activities such as hiring, discipline, staffing, budgeting, and other managerial duties.” The court concluded that, applying “Gay’s definitions of the terms in ‘active clinical practice,’ [S’s] administrative duties outlined in her deposition” did not fit within their parameters. Plaintiff proffered no evidence that S’s administrative duties, which she “agreed comprised about 70% of her time, . . . involved the direct or indirect observation and treatment of patients.” As to the substitution motion, the Supreme Court in Smith reversed the court’s holding that the Dean factors must be considered in evaluating a motion to amend a witness list. Smith set forth “some ‘basic considerations’” for analyzing good cause as to diligence in this context. The trial court gave “several reasons for finding that plaintiff failed to show the required good cause.” The court determined that plaintiff’s failure to realize in 10/24 that S “may not have been qualified as an expert, combined with other delays, supports the conclusion that the trial court did not err in finding a lack of diligence.” The court noted “Smith emphasized that ‘the lack of diligence itself may be prejudicial to the opposing party because of the increased costs of unnecessary litigation,’ and the trial court explained why the risk of prejudice to” the hospital outweighed any prejudice asserted by plaintiff. Affirmed.

Personal jurisdiction; Service; MCL 712A.13; In re Brown; Distinguishing In re Mayfield & In re Dearmon

Holding that the trial court never obtained personal jurisdiction over respondent-mother due to the lack of strict compliance with MCL 712A.13, the court reversed the order of adjudication and remanded. While respondent “appeared at some of the adjudication proceedings, and it was averred that she received the amended petition by e-mail, the statute was not followed because she was never personally served, nor was alternative service in accordance with the statute provided.” The court noted that in Brown, it concluded that the lack of personal service “rendered the proceedings void, even though the respondent had actual notice of the proceedings and appeared at them.” In contrast to Mayfield, in this case there were no attempts to reach respondent at her last-known address. And in contrast to Dearmon, “not only was the original petition not personally served on respondent[], it also contained no allegations against her.”