Sentencing; OV 3 scoring; MCL 777.33(2)(b); Acquitted conduct; People v Beck; People v Motten

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 85817 in the 6/8/26 edition) and remanded the case to that court. The court directed the Court of Appeals to hold this case in abeyance pending that court’s decision in Motten, and after that case is decided, reconsider this case in light of Motten.

Felony-firearm; MCL 750.227b(1); Carrying a dangerous weapon with unlawful intent; MCL 750.226; People v Ackah-Essien; Directed verdict; Sufficiency of the evidence; Criminal intent; Stolen ghost gun; Inconsistent verdicts; People v Lewis; People v Putman

The court held that the trial court properly denied defendant’s directed-verdict motion on the carrying-with-intent charge because “a rational trier of fact could determine that the elements of carrying with intent existed beyond a reasonable doubt.” Defendant was convicted of felony-firearm after police found him and another man outside the victim’s home around midnight wearing black clothing, face masks, protective vests, and latex gloves, and defendant had a stolen “ghost gun.” On appeal, the court held that the movement element was sufficiently supported because defendant was with the other man at the house and “the jury was permitted to make reasonable inferences that defendant and the other man drove together from another location to the victim’s home.” The court also held that there was sufficient intent evidence because defendant had a stolen ghost gun in his waistband, falsely claimed he worked security and was picking up a client, wore clothing and gear consistent with a planned break-in, and his companion had removed a surveillance camera and possessed weapons and burglary tools. Thus, “a rational jury could discredit defendant’s story, reasonably infer that he knew about and was complicit in what the other man was doing, and intended to use the gun against another person.” Because “a directed verdict was not warranted,” the related felony-firearm conviction “need not be vacated, even though he was acquitted of carrying with intent.” Affirmed.

Sentencing; Waiver; People v Hershey; Ineffective assistance of counsel; People v Yeager; Stipulating to a 25-point score for OV 11; MCL 777.41(1)(b); MCL 777.41(2)(a); The victim’s testimony that “oral sex” occurred as well as “sexual intercourse”

The court held that defendant waived the issue of whether OV 11 was properly scored by expressly agreeing to a 25-point score, and defense counsel was not ineffective for stipulating to that score because the victim’s testimony supported it. Defendant was convicted of CSC III and distributing or promoting child sexually abusive activity. The “trial court began the resentencing hearing by confirming that it was undisputed that OV 11 needed to be reassessed at 25 points. [It] asked defense counsel if she agreed, and” she replied that she did. It then confirmed that this changed the “guidelines from 84 to 175 months to 78 to 162 months, which included defendant’s habitual-offender status.” When asked, defense counsel again stated her agreement. “After defendant reviewed the PSIR and made no objection, the trial court again” asked defense counsel if she had anything further on the guideline issue, and she “responded, ‘No.’ These inquiries and responses” showed that the trial court here “asked the parties much more specific and targeted questions than in Hershey.” In addition, “defendant stipulated before resentencing that OV 11 be reassessed at 25 points.” His ineffective assistance claim was based on his argument that the evidence was insufficient for the trial court to find that oral sex was a penetration arising out of the CSC III because the victim failed to explain what she meant when she used the term. But while she “was never specifically asked to define ‘oral sex,’ she expressly differentiated it from ‘sexual intercourse,’ which she” did define and which was the sentencing offense. “Her testimony gave no reason to question whether she understood the meaning of ‘oral sex’ as anything other than the common meaning. [Her] testimony and the common understanding of the term” were sufficient to support the 25-point score. “Because the victim clearly identified ‘oral sex’ as a separate penetration arising out of the sentencing offense, defense counsel was not ineffective for failing to advocate for a meritless position.” Affirmed.

Federal-officer removal; 28 USC § 1442(a)(1); Action against pharmacy benefit managers (PBMs); Opioid litigation; Federal Employees Health Benefits Act (FEHBA); TRICARE; Acts under color of federal office; Indivisible federal conduct; Colorable federal defense; Government-contractor immunity; Boyle v United Techs Corp; Federal preemption; ERISA; Medicare Part D; Remand; Ohio ex rel Yost v Ascent Health Servs LLC; Chevron USA Inc v Plaquemines Parish

The court held that defendant-PBMs properly removed Kentucky’s opioid-related lawsuit under the federal-officer removal statute. Kentucky sued PBMs in state court, alleging they contributed to the opioid crisis by negotiating preferred formulary placement for opioids in exchange for rebates and fees. The PBMs removed under § 1442, and the district court remanded. On appeal, the court held that the three factors set forth in the statute required it “to permit removal of this case to federal court.” First, the PBMs acted under federal officers because they helped federal agencies carry out FEHBA, TRICARE, and Veterans Health Administration duties, and “remain subject to” federal “‘contractual control’ and supervision.” Second, Kentucky’s claims related to acts under color of federal office because “Kentucky seeks to impose liability based on the PBMs’ indivisible federal conduct,” including negotiations conducted for federal and non-federal clients together. Third, the PBMs raised colorable federal defenses, including government-contractor immunity and preemption, and the court emphasized that a removing party need only “raise[] a colorable federal defense.” The court declined to remand for the district court to apply Yost first because the dispute turned “principally [on] a question of legal theory rather than historical fact.” Reversed and remanded.

Federal-officer removal; 28 USC § 1442(a)(1); Action against pharmacy benefit managers (PBMs); Opioid litigation; Federal Employees Health Benefits Act (FEHBA); TRICARE; Acts under color of federal office; Indivisible federal conduct; Colorable federal defense; Government-contractor immunity; Boyle v United Techs Corp; Federal preemption; ERISA; Medicare Part D; Remand; Ohio ex rel Yost v Ascent Health Servs LLC; Chevron USA Inc v Plaquemines Parish

The court held that defendant-PBMs properly removed Kentucky’s opioid-related lawsuit under the federal-officer removal statute. Kentucky sued PBMs in state court, alleging they contributed to the opioid crisis by negotiating preferred formulary placement for opioids in exchange for rebates and fees. The PBMs removed under § 1442, and the district court remanded. On appeal, the court held that the three factors set forth in the statute required it “to permit removal of this case to federal court.” First, the PBMs acted under federal officers because they helped federal agencies carry out FEHBA, TRICARE, and Veterans Health Administration duties, and “remain subject to” federal “‘contractual control’ and supervision.” Second, Kentucky’s claims related to acts under color of federal office because “Kentucky seeks to impose liability based on the PBMs’ indivisible federal conduct,” including negotiations conducted for federal and non-federal clients together. Third, the PBMs raised colorable federal defenses, including government-contractor immunity and preemption, and the court emphasized that a removing party need only “raise[] a colorable federal defense.” The court declined to remand for the district court to apply Yost first because the dispute turned “principally [on] a question of legal theory rather than historical fact.” Reversed and remanded.

Premises liability; Kandil-Elsayed v F & E Oil Inc; Invitee; Electric door; Duty of reasonable care; Dangerous condition; Actual or constructive notice; Lowrey v LMPS & LMPJ Inc; Reasonable inspection; Tripp v Baker; American National Standards Institute/Builders Hardware Manufacturers Association (ANSI/BHMA) standards; Americans with Disabilities Act (ADA) standards

The court held that summary disposition for defendant-facility was improper because “there are genuine issues of material fact as to whether defendant breached” its duty to plaintiff-invitee. Plaintiff, an elderly rehabilitation-facility resident using a cane after broken ribs, was injured when a low-energy-power-operated exit door struck him and caused him to fall. The trial court granted defendant summary disposition, finding no evidence of a defect or notice. On appeal, the court acknowledged that “there is no evidence that the door malfunctioned or that the timing of the doors violated the ANSI/BHMA or ADA standards.” But it held that plaintiff’s claim could proceed on whether “additional safety precautions could have been taken in light of the circumstances.” The court reasoned that defendant’s facility served injured and elderly residents, that residents may move slowly or need ambulatory aids, and that “[i]t is foreseeable that residents of the facility may be struck by the power-operated doors if they do not move through the doorway fast enough.” Viewing the evidence in plaintiff’s favor, the court held there was a fact question “whether the absence of door sensors constituted a dangerous condition posing an unreasonable risk of harm.” The court also held that there was a notice question because a factfinder “could reasonably determine that the lack of an electric sensor or other safety precautions in the subject doorway was of such a character that defendant would have discovered it and recognized the potential striking hazard through reasonable inspection.” Reversed and remanded.