Sufficiency of the evidence; CSC II; People v DeLeon; Sentencing; Proportionality; People v Bowling; Sex Offenders Registration Act (SORA)

Concluding that: (1) the evidence was sufficient to support defendant’s CSC II conviction, (2) he had “not overcome the presumption of proportionality applicable to his within-guidelines sentence[,]” and (3) he had “not identified any ‘unusual’ circumstances . . . [or] overcome the presumption that his sentence is reasonable[,]” the court affirmed. It rejected his insufficient evidence claim, noting “the video clips depicted defendant touching the victim’s intimate parts as defined in DeLeon[.]” And even “without the videos, the trial record contains sufficient evidence to support” his conviction. The victim, who was 9 years old at “trial, testified that defendant ‘tickle[d]’ her ‘birdie’ and that made her feel ‘weird.’ [She] told the jury that the incident happened in the ‘living room’ of her mother’s house ‘by the tv kind of.’” She said “defendant ‘tickled her birdie’ with one hand ‘over’ her clothing. That testimony was sufficient to permit the jury to convict defendant of” CSC II. He claimed “the victim denied anything inappropriate occurred until ‘long after’ the offense, and he implie[d] [she] was coached to believe she was touched inappropriately. However, the victim’s first forensic interview was one week after the offense, and in that interview, the victim stated that defendant tickled her between her legs. Although [she] initially denied that defendant touched her genitalia, the conduct reported in the first interview could nonetheless be reasonably construed as sexual conduct.” The court also noted defendant’s claim was “essentially that the victim was not a credible witness,” but it must “draw all reasonable inferences and make credibility choices in support of the jury verdict.” As a fourth-offense habitual offender, “his minimum sentencing guidelines range was 36 to 142 months[.]” The trial court sentenced him to a minimum of 142 months, “which was within the applicable guidelines range. Hence, defendant’s sentence was presumptively reasonable, so he must rebut that presumption.” Defendant had “no basis to characterize as impermissible his minimum prison term of 142 months, which pales in comparison to the 1,200-month minimum prison term” the court upheld in Bowling. His record included convictions for CSC IV and failing to comply with the SORA, as well as three other felony offenses. He was just 34 years old when he was sentenced for CSC II “with a seven-year-old victim, so his 142-month minimum prison term will enable him to be considered for parole long before he turns 50.” Thus, he had “not overcome the presumption of proportionality.” Defendant further contested “his sentence by accusing the trial court of failing to consider the fact that the incident occurred in front of a camera, indicating that his actions were unintentional.” He also claimed “the trial court failed to note that [he] had a ‘dysfunctional childhood,’ that [he] had successfully completed two substance-abuse treatment programs, that [he] could be reformed, that [he] had a supportive family, and that [he] was ‘courteous.’” First, the claim that his “actions were unintentional cannot be squared with the jury’s verdict that defendant acted intentionally and for a sexual purpose. Second, during the sentencing hearing, the trial court discussed all the factors defendant describes as disregarded.”

Prosecutorial error; Other acts questioning; Curative instruction; Prejudice; Shifting the burden of proof; People v Fyda; Ineffective assistance of counsel for failure to request a mistrial; Failure to make a futile objection; Sentencing; Scoring of OV 10; MCL 777.40(1)(a) (predatory conduct); People v Huston; Departure sentence; Proportionality; People v Dixon-Bey

Finding no errors requiring reversal, the court affirmed defendant’s convictions and sentences. He was convicted of AWIGBH and felony-firearm for shooting the victim four times outside the victim’s acquaintance’s (T) apartment. The trial court sentenced him to 6 to 10 years for AWIGBH and 2 years for felony-firearm. On appeal, the court rejected defendant’s argument that the prosecutor’s questions to T about defendant’s prior bad acts required reversal because the trial judge immediately struck the testimony and instructed the jury to disregard it. The court noted “‘[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements.’” In addition, counsel was not ineffective for failing to request a mistrial as the “improper testimony was short, the trial court identified [it] swiftly and immediately gave a curative instruction, and the inadmissible evidence was never mentioned again during trial. This was simply not the type of egregious error that would warrant a mistrial, and defendant’s trial counsel was not ineffective for failing to make a futile motion for a mistrial.” As to the prosecutor’s rebuttal closing argument, the court rejected defendant’s burden-shifting claim where the prosecutor answered the defense theme that unnamed bystanders existed and were never interviewed by observing the defense could have subpoenaed them. “This was a fair response to the defense’s argument[,]” and it did not relieve the prosecution of its burden. The court also rejected defendant’s argument that he was entitled to resentencing because the trial court erred in assigning 15 points to OV 10 and failed to justify the extent of its upward departure sentence. It upheld 15 points for OV 10 because the record supported that defendant lay in wait for the victim, and “[l]ying in wait is the textbook example of predatory conduct” under MCL 777.40(1)(a). It also upheld the upward-departure minimum term, finding the trial court adequately explained why the guidelines understated the offense and why the chosen minimum was proportionate. There are “no ‘magic words’” required to justify the extent of a departure when the explanation was thorough enough to allow the court to understand the trial court’s reasons for the particular departure. 

No-fault insurance priority dispute; MCL 500.3114(2)’s prioritization for vehicles “operated in the business of transporting passengers”; Farmers Ins Exch v AAA of MI; Smith v Farm Bureau Mut Ins Co of MI; Carveout for “a bus operating under a government sponsored transportation program” (MCL 500.3114(2)(c)); MIC Gen Ins Corp v Michigan Mun Risk Mgmt Auth (Unpub); Ahee v Novi (Unpub); Dial-A-Ride Transportation (DART); Michigan Assigned Claims Plan (MACP); The No-Fault Act (NFA); Personal protection insurance (PIP)

Concluding MCL 500.3114(2)(c) applied, the court held that plaintiff-Pool was first in priority for providing PIP benefits to a person (nonparty-C) injured while boarding a city-owned vehicle providing transportation services to the public. Plaintiff is the city’s insurer. After initially paying C benefits, plaintiff told her to instead seek them through the MACP. The MACP denied responsibility and later assigned C’s claim to defendant-Farmers Insurance Exchange. The trial court granted defendant summary disposition. Resolving this case required “examining MCL 500.3114(2)’s prioritization for vehicles ‘operated in the business of transporting passengers’ and its related carveout for ‘a bus operating under a government sponsored transportation program’” – MCL 500.3114(2)(c). In Farmers, the court “concluded subsection (2)’s applicability turns ‘on a primary purpose/incidental nature inquiry with respect to whether a motor vehicle is operated in the business of transporting passengers.’” In addition, Smith “recently distilled Farmers as having two components: ‘(1) whether the transportation of passengers is the primary purpose for which the vehicle is used and (2) whether the transportation of passengers is a primary, as opposed to incidental, component of the overall business or activity of the operator. If answered affirmatively,’” the vehicle in question “is ‘in the business of transporting passengers.’” But the court noted that neither case considered “this judicially created test in relation to subsection (2)(c)’s carveout for ‘a bus operating under a government sponsored transportation program’ and thus do not control. Reading the [NFA] as a whole, and subsection (2) of MCL 500.3114 specifically, the distinction between commercial enterprises and government-operated systems is paramount.” The court could not “imagine a more straightforward application of subsection (2)(c). First, all parties agree that DART is plainly a ‘government sponsored transportation program.’ . . . Second, the trial court found that the vehicle at issue was a ‘bus’ as contemplated by subsection (2)(c), and the Pool conceded at argument that it did not challenge that assertion below. Third, the parties agree that [C] was ‘not entitled to [PIP] benefits under any other policy’ (and that MACP does not constitute ‘any other policy’ for purposes of subsection (2)(c)). Under these facts and applying the plain language of the statute,” the Pool was first in priority. Affirmed.

Surplus proceeds from tax-foreclosure sales of real property; Constitutionality of MCL 211.78t; Taking claims; Nelson v City of NY; Tyler v Hennepin Cnty, MN; Knick v Scott Twp, PA; Unjust enrichment; Whether untimely submission of notices of intention to claim remaining proceeds should be disregarded under MCL 600.2301; In re Petition of Muskegon Cnty Treasurer for Foreclosure; Foreclosing government unit (FGU)

Noting that most of respondents/claimants’ theories in this action over surplus proceeds from tax-foreclosure sales of real property were rejected in Muskegon Treasurer, and finding that all their new arguments fared no better, the court affirmed summary disposition for petitioner-county treasurer. Respondents appealed the trial court’s order denying their motions to reopen the case for the disbursement of the surplus proceeds at issue. The court found that none of their arguments called into question its holding in Muskegon Treasurer “that the statutory scheme set up by our Legislature satisfies due process on its face. [Their] arguments reveal that ‘what respondents really want is a different, i.e., postsale, process.’ . . . As long as ‘the statutory scheme adopted by our Legislature comports with due process—as MCL 211.78t does—whether such a scheme makes sense, or whether a “better” scheme could be devised, are policy questions for the Legislature, not legal ones for the judiciary.’” Respondents also claimed “petitioner’s notices were inadequate because they did not inform respondents of the new process for claiming remaining proceeds, nor did [they] advise respondents that missing the July 1 deadline would foreclose their claims for remaining proceeds. But the record reveals that the ‘Payment Deadline’ notice that petitioner furnished to respondents informed them that (1) the foreclosure sale of their property and payment of their total amount due to the FGU might result in remaining proceeds, (2) respondents had a right to file a claim for those remaining proceeds, (3) they had to file Form 5743 to claim an interest in the remaining proceeds, and (4) a Form 5743 had to be filed by [7/1/21]. Further, the ‘Notice of Foreclosure’ repeated the instructions on Form 5743 for submitting Form 5743. Additionally, the use of ‘must submit’ left no doubt that the requirements were mandatory, and the use of all capital letters, underlining, and bold font emphasized the mandatory character of the requirements. In sum, both the language and the format of the notices made clear that the reader ignored [them] at the risk of losing the ability to file a claim for surplus proceeds.”

Surplus proceeds from tax-foreclosure sales of real property; Constitutionality of MCL 211.78t; Taking claims; Nelson v City of NY; Tyler v Hennepin Cnty, MN; Knick v Scott Twp, PA; Unjust enrichment; Whether untimely submission of notices of intention to claim remaining proceeds should be disregarded under MCL 600.2301; In re Petition of Muskegon Cnty Treasurer for Foreclosure; Foreclosing government unit (FGU)

Noting that most of respondents/claimants’ theories in this action over surplus proceeds from tax-foreclosure sales of real property were rejected in Muskegon Treasurer, and finding that all their new arguments fared no better, the court affirmed summary disposition for petitioner-county treasurer. Respondents appealed the trial court’s order denying their motions to reopen the case for the disbursement of the surplus proceeds at issue. The court found that none of their arguments called into question its holding in Muskegon Treasurer “that the statutory scheme set up by our Legislature satisfies due process on its face. [Their] arguments reveal that ‘what respondents really want is a different, i.e., postsale, process.’ . . . As long as ‘the statutory scheme adopted by our Legislature comports with due process—as MCL 211.78t does—whether such a scheme makes sense, or whether a “better” scheme could be devised, are policy questions for the Legislature, not legal ones for the judiciary.’” Respondents also claimed “petitioner’s notices were inadequate because they did not inform respondents of the new process for claiming remaining proceeds, nor did [they] advise respondents that missing the July 1 deadline would foreclose their claims for remaining proceeds. But the record reveals that the ‘Payment Deadline’ notice that petitioner furnished to respondents informed them that (1) the foreclosure sale of their property and payment of their total amount due to the FGU might result in remaining proceeds, (2) respondents had a right to file a claim for those remaining proceeds, (3) they had to file Form 5743 to claim an interest in the remaining proceeds, and (4) a Form 5743 had to be filed by [7/1/21]. Further, the ‘Notice of Foreclosure’ repeated the instructions on Form 5743 for submitting Form 5743. Additionally, the use of ‘must submit’ left no doubt that the requirements were mandatory, and the use of all capital letters, underlining, and bold font emphasized the mandatory character of the requirements. In sum, both the language and the format of the notices made clear that the reader ignored [them] at the risk of losing the ability to file a claim for surplus proceeds.”

Children’s best interests; Parent-child bond; Failure to benefit from parenting classes; Limited treatment plan compliance; Effect of relative placement

The court held that the trial court did not clearly err in finding by a preponderance of the evidence that terminating respondent-mother’s parental rights was in the two children’s best interests. She asserted that she was “currently clean of substances and that there is a reasonable likelihood that she will remain so in the future.” But the court found this argument was “belied by the record. Respondent admitted to substance abuse while pregnant with [her younger child], who tested positive for codeine, methadone, morphine, fentanyl, and Tramadol at birth. Throughout the proceedings, respondent consistently refused to participate in her treatment plan. [She] did not submit to random drug screens or submit proof that she was engaged in substance-abuse therapy. Further, [she] was incarcerated at one point during these proceedings and had pending drug-related felony criminal charges.” As to her bond with the children, despite the presence of one with the older child, “respondent was unable to show throughout the proceedings that she had the ability to parent or address her own mental-health issues, let alone [the child’s] special needs.” As to the younger child, “the trial court acknowledged that respondent appeared to have ‘some’ bonding with [this child], but determined that this factor was outweighed by other considerations. [This child] had gastroenterological issues, requiring a special diet, and respondent did not always comply with those needs during parenting times, as evidenced by bringing inappropriate snacks. [She] did not attend [the child’s] medical appointments.” She also needed assistance changing the child’s diaper, and would ask for the older child’s help with the younger one. Further, she “had difficulty dividing her attention between both children and instead focused on” the older one. The trial court emphasized her “‘very limited’ compliance with her treatment plan. In addition to failing to participate in drug screens or mental-health services, [she] failed to provide proof of employment or a copy of” her apartment lease. The DHHS referred her “to services multiple times, but she repeatedly refused to participate. Meanwhile, [the children] were doing well in their placements and their needs were being met. [They] required permanency, stability, and finality, which respondent was unable or unwilling to provide, despite being given ample opportunities to do so.” Affirmed.

Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Children’s best interests; MCL 712A.19b(5); In re Beck; Individualized best-interests findings; In re Olive/Metts

The court held that §§ (c)(i), (c)(ii), (g), and (j) were met, and that termination was in the children’s best interests. The case began after the home was found unsanitary with trash, feces, and drugs present and amid domestic-violence concerns. On appeal, as to § (c)(i), the court found that “under the circumstances, the trial court did not err by finding that respondent[-father] failed to rectify the condition of domestic violence and was not reasonably likely to do so within a reasonable time.” Next, as to § (c)(ii), it noted that he “had issues with anger management, externalizing blame, minimizing the gravity of situations, and abrasive” communication, and that “psychological examinations resulted in a diagnosis of cannabis-use disorder.” He also “failed to address his mental-health issues that arose during the proceedings even after he was made aware of the issues and afforded an opportunity to address them.” As to § (g), the court deferred to the trial court’s assessment of the father and its determination that he “would not adequately provide for his children.” And as to § (j), the court relied on respondent’s failure to complete or benefit from core services, noting that a “parent’s failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent’s home.” Turning to best interests, the court held that termination served the children’s need for permanency and safety given respondent’s minimal progress and inconsistent parenting. The trial court found the children “needed safety, stability, and permanency,” and the record supported the conclusion that he lacked sufficient parenting skills to move beyond supervised contact. The court also rejected his claim that the trial court was required to make separate, detailed findings for each child, explaining that it considered the children collectively and “as two sets of twins,” and that their interests “did not differ significantly,” even though the twin girls had more of a bond with respondent than the twin boys. The court found no error in the trial court’s consideration of obstacles respondent faced early in the case because the record showed the trial court was aware of those circumstances and still determined that reunification was not realistic within a reasonable time. Affirmed.