Admission of an “unavailable” witness’s preliminary exam testimony; MRE 804(b) & 804(a)(4); Comparing People v Duncan & People v Haywood (Unpub); Right of confrontation; People v Garland; Other acts evidence; MCL 768.27b; People v Berklund; DNA evidence; Ineffective assistance of counsel; Prosecutorial error

The court held that the trial court properly ruled that victim-MM “was ‘unavailable’ within the meaning of” MRE 804(a)(4) and admitted MM’s preliminary exam testimony at trial under MRE 804(b). Further, other acts evidence was admissible under MCL 768.27b and DNA evidence was also admissible. And the court rejected defendant-Command’s ineffective assistance of counsel and prosecutorial error claims. He was convicted of CSC III. The court concluded that the record supported “the trial court’s factual determination that MM was unavailable because of a ‘then existing physical or mental illness or infirmity’ as stated in MRE 804(a)(4).” The court agreed “that MM’s illness or infirmity was both mental and physical and” rendered her unable to testify. “Command’s assertion that MM’s unavailability likely confused the jury and compromised its ability to make an informed decision is speculative and has no record support.” He further asserted “the trial court abused its discretion by allowing MM’s preliminary examination testimony to be read aloud and that doing so violated his right of confrontation. Because the trial court did not clearly err by finding MM unavailable under MRE 804(a)(4),” this argument failed. The record showed “that Command’s previous attorney was able to cross-examine MM at length during the preliminary examination before she suffered the medical episode that ended the proceeding that day. Defense counsel was also able to finish his cross-examination of MM on the second day of the preliminary examination and indicated that he had no further questions.” The court also rejected his challenges to the admission of other acts evidence involving his former girlfriend, A. “Command’s forced entry into her home and use of a weapon constitutes domestic violence under MCL 768.27b(6).” Further, she was “a ‘family or household member’ under the statute because she was previously in a dating relationship with Command and they have a child in common.” In addition, A's “testimony that Command entered her home without consent and grabbed a knife before forcing her to engage in sexual intercourse lent credibility to MM’s claim that he forced her to engage in sexual intercourse.” The court concluded that A’s “testimony was not merely marginally probative; rather, it was relevant to the very issue the jury was tasked with deciding—whether MM’s allegation was true.” Affirmed.

Other acts evidence; MRE 404(b); People v VanderVliet; Sufficiency of evidence (constructive possession); MCL 333.7401; People v Baham; Ineffective assistance (failure to investigate & call witnesses); Sentencing proportionality; MCL 769.34; People v Steanhouse

The court held that defendant’s convictions and within guidelines sentences for possession of meth with intent to deliver and related firearm offenses were supported by properly admitted evidence. There was sufficient proof of constructive possession, effective assistance of counsel, and a proportionate sentence. Thus, it affirmed. Defendant, who had an outstanding felony warrant, fled on foot when officers tried to arrest him at a gas station. Along his flight path a 31 gram bag of meth was later found, and a search of his vehicle revealed a handgun, ammunition, scales with meth residue, plastic baggies, two phones, and $5,480 in mostly $100 bills. The trial court convicted him of meth possession with intent to deliver and multiple firearm offenses and sentenced him as a fourth habitual offender to 20 to 50 years for the drug count with concurrent and consecutive firearm terms. On appeal, the court held that testimony referencing his warrant and prior record was admissible for identity, to show a lawful arrest for the resisting charge, and to give the “complete story,” and it noted that “evidence of defendant’s prior criminal history was clearly relevant to and offered for proper nonpropensity purposes.” The court also found that the circumstantial evidence created a sufficient nexus for constructive possession because “a rational jury could have readily found beyond a reasonable doubt” that the meth was his. It further concluded that defendant “offered nothing that might overcome the strong presumption that trial counsel’s actions and decisions” about not calling certain witnesses were reasonable strategy. Finally, given defendant’s lengthy, assaultive record and repeated offending while on supervision, he failed to overcome the presumption that his within guidelines minimum term was reasonable and proportionate.

Sufficient evidence for a delivery of meth conviction; Witness credibility; People v Knepper; Confidential informant (CI)

Rejecting defendant’s challenge to a CI witness’s credibility, the court held that there was sufficient evidence to support defendant’s delivery of meth conviction. He asserted “the CI was not a credible witness because he had a history of drug abuse and ‘buying his way out of convictions by selling testimony.’ Defendant also points out that the CI committed a felony assault while working as a CI in 2009. The CI’s history was no secret at trial, and defense counsel was permitted to cross-examine the CI regarding his history of drug addiction, his time as a [CI], and his assault conviction. The CI’s testimony concerning the controlled buy was not patently incredible, i.e., it did not contradict indisputable physical facts and was not inherently implausible.” The court added that the CI’s “testimony was not directly contradicted by any other witness’s testimony or other evidence, nor was it seriously impeached in a case marked by uncertainties and discrepancies.” To the contrary, his “testimony was supported by the testimony of police witnesses, audio recordings, and physical evidence.” While defendant argued the CI was inherently untrustworthy, he did not provide the court “with any reason to doubt the CI’s testimony other than the CI’s poor character.” It concluded that he failed to clear “the ‘high bar’ that a defendant must clear to obtain relief based on a witness’s credibility.” Affirmed but remanded for the ministerial task of correcting the judgment of sentence.

Jury instruction; Self-defense; M Crim JI 7.18

Concluding that the trial court did not err “by providing the jury with an instruction that was consistent with M Crim JI 7.18[,]” the court affirmed “defendant’s conviction. But because the amendment of the notice to seek an enhanced sentence was contrary to law,” it remanded for resentencing. Specifically, it ordered that defendant “be resentenced as a third-offense habitual offender.” He was convicted of voluntary manslaughter. He was sentenced as a fourth-offense habitual offender to 25 years to 25 years and one day. Defendant averred that the “instruction was improper because it presumes that defendant was the initial aggressor.” His claim of error failed for two reasons. “First, the instruction does not ‘assume’ or presume anything. It merely instructs the jury that if it finds that a defendant who initiated an assault with a dangerous weapon, then that person cannot claim self-defense unless the person ceases the assault and communicates the desire to make peace to the other person. If that other person nevertheless continues the fight in light of the defendant’s desire to make peace, then and only then is the defendant allowed to assert self-defense. The instruction leaves it to the jury’s determination as to whether the defendant initiated an assault and whether the defendant used a dangerous or deadly weapon.” Second, an “instruction is proper if it is supported by the evidence.” Defendant relied “on his self-serving testimony that he was acting in self-defense, which thereby made him not the initial aggressor. Notably, the jury was not required to believe or accept that testimony.” The court found that “the jury had little choice but to disregard defendant’s testimony because it was at odds with what was seen on the video of the events that evening.” It concluded that “because the evidence supports a finding that defendant was the initial aggressor with a dangerous weapon, the jury instruction was proper. Importantly, although the evidence supports such a finding, the jurors ultimately were free to decide whether the circumstances described in the jury instruction applied.”

Motion to sever; FedRCrimP 14; Whether a joint trial resulted in prejudice; Whether felony tax evasion within the limitations period was established; 26 USC § 7201; Whether the district court erred when reading the indictment to the jury; Sentencing; Calculation of the tax loss amount; USSG § 2T1.1; Whether the district court sufficiently articulated its findings on the disputed-loss issue; Rule 32(i)(3)(B); Whether the district court failed to address a defendant’s nonfrivolous arguments; “Sophisticated-means” enhancement (§ 2T1.1(b)(2)); Request for a variance; Issuance of an amended judgment; “Clerical” error correction; Rule 36(a)

The court held that the district court properly denied defendant-DiPietro’s motion to sever his trial from that of defendant-Karasarides. Further, he was properly charged and convicted of felony tax evasion, as “the filing of false tax documentation is the sort of affirmative act necessary to a § 7201 conviction[,]” and no agent relationship with a taxpayer is required. The court also rejected defendants’ sentencing and other challenges. Karasarides (referred to as Christos) and DiPietro operated two gambling businesses that depended on laundering cash. During an IRS civil investigation, DiPietro had “represented Christos as his ‘power of attorney.’” They were convicted “of a series of conspiracies and stand-alone tax-related crimes.” As to the district court’s denial of DiPietro’s motion to sever, the court rejected his argument that Christos would have testified for him if they had separate trials, concluding the alleged testimony would not have been “exculpatory.” It also found no merit in his claims of “spillover” prejudice and that certain evidence that was “admissible against Christos would have been inadmissible against him in a solo trial.” The court held that the district court’s instructions to the jury cured any prejudice where it “repeatedly admonished the jury to consider each defendant’s guilt individually.” DiPietro next argued that the district court should have granted his motion to dismiss where the government failed to allege an “affirmative act” of felony tax evasion within the period of limitations. The court rejected his “novel” interpretation of the affirmative act requirement. “The idea that a fiduciary or agent relationship is necessary to commit an affirmative act has no basis in the text, and he’s offered no reason why we should impose one.” The court also did not find error in the district court’s reading of the indictment to the jury. As to sentencing, it rejected Christos’s challenges to the tax loss calculations. While it determined that the district court failed to comply with Rule 32 by not sufficiently articulating its findings on the disputed-loss issue, it held that Christos did not show how this affected his substantial rights, given “the evidence supporting the $3.5 million loss number.” The court also held that DiPietro could not succeed with his claim that the district court failed to address his nonfrivolous arguments where he “never developed substantive arguments on any of the objections he raised in the PSR, either in his sentencing memo or at the hearing.” Further, the court upheld the imposition of the “sophisticated-means” enhancement in sentencing Christos where he “evaded taxes to launder the cash from his highly sophisticated gambling business. The tax evasion was intertwined with the broader scheme.” Affirmed and remanded.

Divorce; Valuation of marital property; McNamara v Horner; The McNamara factors; Judgment of divorce (JOD)

Concluding that the trial court did not err in adopting the $0 valuation for plaintiff-ex-husband’s business and a building he owned “when that value was clearly supported by the record evidence[,]” the court affirmed the JOD as it concerned the valuation of marital property. Defendant-ex-wife argued that “the trial court clearly erred in valuing WebLocal and the Washington Square building at $0, because both continued to generate income and had remaining equity and assets after deducting the debts.” The court held that the trial court did not clearly err in finding that both the business and the “building should be valued at $0 after considering all of the evidence presented at trial.” Defendant asserted “WebLocal was valued according to a ‘fire sale’ approach, because the CPA failed to consider the value of the business as a ‘going concern.’” This argument was without merit. The valuation report clearly showed “that WebLocal was valued on a ‘going concern basis as opposed to an orderly liquidation basis.’ The valuation accounted for the business’s assets, including $340,000 in a bank account, and its debts, which included $520,000 in ‘long-term debt,’ and $65,000 in debt pursuant to loans from shareholders. When subtracting the debts from the assets, the CPA concluded WebLocal was worth $0.” Defendant did “not provide an alternative valuation or point to any specific deficiency in the expert valuation plaintiff provided. Further, [her] contention that plaintiff makes a quarter of a million dollars per year from WebLocal is not supported by the record. Plaintiff’s tax returns showed his income to be: $107,123 in 2020; $34,078 in 2021; and $59,073 in 2022.” Thus, the court could not “find the trial court erred in adopting the $0 valuation when that value was clearly supported by the record evidence.” As to the valuation of the building, defendant asserted that it “had at least $150,000 in equity remaining after debts were subtracted.” While this was “true, the trial court properly considered other factors in determining the building was worth nothing. The appraisal indicated the building had a market value of $1,420,000 in 2021. [The parties] both agreed that the businesses and the business assets should be valued after subtracting any debts.” The court noted that “plaintiff provided an expert appraisal as well as plaintiff’s own opinion testimony and documentation to support his contention the building’s value was less than what the appraisal concluded. Upon review of the entire record, this Court finds that the trial court did not clearly err in finding the building’s value was $0 after considering all of the evidence presented at trial.”

No-fault PIP benefits; Exhaustion of allowable expense benefits; Whether an insurer is required to seek a court order under MCL 500.3112; ; Michigan Assigned Claims Plan (MACP)

Holding that defendant-Allstate’s position lacked evidentiary support, the court concluded that the trial court erred by granting it summary disposition under MCR 2.116(C)(10) and reversed. But it disagreed with plaintiff-Phase One “that Allstate was required to seek a court order under MCL 500.3112 before paying other entities” and affirmed the trial court on this issue. Nonparty-R was injured in an auto collision. Allstate was assigned her claim under the MACP. Phase One provided her with medical services. It argued that Allstate (1) did not present sufficient “evidence to establish an exhaustion of allowable expense benefits” and (2) could not discharge its liability because it did not “seek circuit court approval under MCL 500.3112 before issuing payment to other entities.” The court found that despite “Allstate’s failure to meet its initial burden,” the trial court granted it summary disposition, finding that R “resolved her PIP action with Allstate through facilitation and, [f]rom [9/22] through [3/23], as required by the facilitation agreement, Allstate paid claims to [R’s] providers. The amount total it paid was $250,000, the statutory maximum required by MACP-assigned insurers.’” It further found applying MCL 500.3112 “to preclude Phase One from receiving PIP benefits is consistent with both the plain language of [MCL 500.3172(7)(a)], as it maintains the $250,000 cap in benefits mandated by that section, and the purpose of section 3112[.]” But these conclusions were unsupported by the record. There was no record evidence as to “the settlement amount, the terms of the facilitation agreement, the terms of the release, the identity of the providers or payees associated with the payments reflected in the payment log, or whether all the payments in the log were made under the terms of the facilitation agreement.” The court found that recognizing “the record deficiency, Allstate has attempted to inappropriately expand the record on appeal.” But its arguments confirmed “that the trial court’s conclusion was based on erroneous factual findings that were unsupported by any documentary evidence.” However, the court rejected Phase One’s argument that Allstate had to seek a court order before paying other entities, as opposed to Phase One. The court held that “the trial court appropriately concluded that an insurer is not required to seek court approval before paying no-fault benefits.” Affirmed in part, reversed in part, and remanded.

Boundary acquiescence; Killips v Mannisto; Superior property interest; Intentional trespass; Permanent injunction; Exemplary damages; MCL 600.2919(1)(b); Wiggins v City of Burton; Statutory conversion for own use; MCL 600.2919a(1)(a); Branch v Rudolph; Frivolous third-party agency defense; Sanctions; MCL 600.2591; Bradley v Frye-Chaiken

The court held that the trial court properly found for plaintiffs-landowners on their boundary, trespass, conversion, injunction, and attorney fee claims. Thus, it affirmed the judgment in this consolidated dispute between neighboring riverfront parcel owners. On appeal, the court held that a preponderance of the evidence showed that adjoining owners had long treated the Althea Avenue arc as the line, so “the proper boundary line followed the Althea Avenue arc” and plaintiffs had “a superior property interest in the contested pie shaped parcel.” The court also found that defendants’ extensive excavation, culvert work, grading, and pumping that destroyed the swale and caused water to collect on plaintiffs’ lot were “unauthorized invasions” that “clearly constitute[d] trespasses.” It rejected the argument that good intentions negated liability. It also rejected the third-party agency defense because apparent authority must be “traceable to the principal,” and defendants admitted plaintiffs did nothing to confer such authority. This defense lacked legal merit, supporting the trial court’s frivolousness finding. The court further upheld the finding of statutory conversion where a defendant used commingled soil to fill his own parcel, noting that “good faith, mistake, and ignorance are not defenses.” It further concluded a detailed permanent injunction restoring the swale was proper for intentional, continuous trespasses and was feasible based on trial testimony. Finally, the court held that attorney fees could be awarded as exemplary damages for intentional trespass where a defendant’s trespass was “knowing, intentional and purposeful in achieving a desired outcome” and forced plaintiffs to incur litigation expenses.

Child protective proceedings; Child’s placement under a juvenile guardianship; MCL 712A.19a(9); MCR 3.979(A) & (B); Ineffective assistance of counsel; Recommendation to stipulate to a change in permanency planning goal from termination to juvenile guardianship

Holding that the trial court failed to comply with the relevant statutory and court rule requirements when it placed respondent-mother’s child in a juvenile guardianship, the court vacated the order doing so and remanded for a guardianship hearing. The court first rejected respondent’s claim that her attorney was ineffective for recommending that she stipulate to a “change in permanency planning goal from termination to juvenile guardianship and” for not challenging the related finding that the DHHS was not obliged to create a case service plan. The stipulation allowed respondent to avoid termination of her parental rights, which impacted not only the child at issue here but also her child born after these proceedings began. However, the court agreed with respondent that the trial court failed to comply with the statutes and court rules governing juvenile guardianships. First, it failed “to place its best-interest findings on the record. At the final permanency planning hearing, the trial court stated that a guardianship was ‘appropriate.’ But [it] neglected to explain which factors supported a determination that the appointment of a guardian was in” the child’s best interests. The statutory scheme required it “to base its guardianship decision on the child’s best interests, which inherently necessitates articulating those findings.” In addition, it erred in granting “the guardianship without conducting a hearing pursuant to MCR 3.979(B).” The court noted that the “stipulation addressed a change in DHHS’s goal, it did not extinguish respondent-mother’s right to challenge a guardianship. And, in fact, she did challenge the guardianship.” While the trial court stated at one point “that it would conduct a separate guardianship hearing, which would have” allowed respondent to exercise her right to challenge the guardianship, “the trial court did not conduct another hearing before it entered the ex parte guardianship order. Thus, [it] erroneously implemented the guardianship without giving [her] the opportunity to protect her fundamental interests.”