Animal cruelty; Adequate care; MCL 750.50; Jury instructions; Alternative theories; People v Bergevin; Prosecutorial error; Character evidence; Other acts; Unresponsive answers; People v Jackson; Restitution; Crime Victim’s Rights Act; MCL 780.766; Presentence investigation report (PSIR); People v Bowling; Moot probate conditions claim

The court held that defendant was not entitled to relief from his animal-cruelty and unlicensed-animal convictions, and that the restitution award was supported by the record. He was convicted after animal control found an adult dog and six puppies that appeared underweight, dirty, without food or water bowls, and in poor health. On appeal, the court first rejected defendant’s jury-instruction challenge because the prosecution proceeded on the theory that he failed to provide “sufficient food,” and where a statute lists “alternative ways for a jury to convict,” only one alternative must be proven. The court therefore held that counsel was not ineffective for failing to request definitions of neglect, sanitary conditions, or shelter because those definitions were not necessary to the prosecution’s theory, and counsel “need not make a futile objection.” It next rejected defendant’s prosecutorial-error claim based on references to prior animal-control contacts because the officer’s comment about “previous interactions and complaints” was not elicited for improper propensity purposes, the prosecutor did not ask about the content of those contacts, and “‘unresponsive answers from witnesses are generally not prosecutorial error.’” The court declined to address defendant’s challenge to probation conditions because records showed he had already been discharged from probation, making the issue moot. Finally, it upheld the $21,480 restitution order because the PSIR stated that the county animal shelter requested $270 for vaccinations and $21,210 for boarding seven dogs for 236 days. The court held that the trial court could rely on that factual basis because, at sentencing, the contents of the PSIR are treated as “‘presumptively accurate.’” Affirmed.

No-fault insurance; PIP benefits; Allowable expenses; New trial motion; Attorney misconduct; Reetz v Kinsman Marine Transit Co; Harmless error; Attorney fees; MCL 500.3148; Unreasonable refusal to pay; Brown v Home-Owners Ins Co; Reasonable hourly rate; Pirgu v United Servs Auto Ass’n; Expended hours; Augustine v Allstate Ins Co

The court held that plaintiff’s counsel improperly referred to the other driver’s intoxication, but the error was harmless, and that the trial court did not abuse its discretion by awarding plaintiff attorney fees under MCL 500.3148. Plaintiff sued defendant-insurer for no-fault PIP benefits after a rear-end accident. The jury found that her neck-surgery bill was an overdue allowable expense, while rejecting her claim for a later low-back surgery. On appeal, the court first held that plaintiff’s counsel erred by referring to the other driver as drunk because his “possible inebriation” was not relevant to whether plaintiff suffered an accidental bodily injury, whether the bills were allowable expenses, or whether payment was overdue. But under Reetz, the error did not warrant a new trial because the verdict was supported by evidence, including testimony from plaintiff’s treating physicians and defendant’s correspondence to Medicare acknowledging that plaintiff injured her neck in the accident. The court emphasized that the jury did not award plaintiff everything she sought, which showed it “dispassionately reviewed the evidence,” and that instructions not to let sympathy or bias affect the verdict were “sufficient to cure the potentially prejudicial effect” of counsel’s comments. The court next held that attorney fees were proper because the jury’s overdue-benefits finding created a presumption that defendant’s refusal to pay was unreasonable, and defendant failed to rebut it. Although plaintiff had a complicated preexisting medical history, defendant acknowledged in 7/22 that she injured her neck in the accident and was treated for it, and the later records review “does not retroactively create a factual uncertainty that clearly did not exist as early as” 7/22. The court also upheld the $750 hourly rate because the trial court considered the State Bar survey data and the Pirgu factors, including counsel’s experience, the medical complexity of the case, the favorable result, expenses, the contingent fee, and the risk of trying a $50,000-cap case. Finally, the court rejected defendant’s challenge to the hours expended because the trial court held an evidentiary hearing, struck some duplicative or unrelated time, and no authority required contemporaneous time records. Affirmed.

Jury instructions; Failure to instruct the jurors on a defense of “momentary possession”; People v Hernandez-Garcia; People v Dupree; People v Perry; Prisoner in possession of a weapon (MCL 800.283(4)); General intent crime; Harmless error; Due process; Denial of request for an adjournment to obtain a functioning hearing aid; Prejudice; Sentencing; Proportionality; Within-guidelines sentence

The court held that the trial court did not err in denying defendant’s request for a jury instruction on a “momentary possession” defense as to his prisoner in possession of a weapon charge. It also did not abuse its discretion or violate his due-process rights by denying his request for an adjournment to obtain a functioning hearing aid. Finally, it did not abuse its discretion in imposing a within-guidelines sentence. The court concluded the “trial court did err in viewing prisoner in possession as a strict-liability crime.” Rather, it is a general-intent crime. But the “error was harmless, and, more importantly, the trial court did not err in declining defendant’s request to instruct jurors on the so-called defense of ‘momentary possession.’” The court explained this defense “is a claim that the defendant possessed the weapon with the intent of delivering the weapon to the police or other authority as soon as possible.” It noted that, as a general-intent crime, he “only needed to intend possession of the weapon to be guilty of prisoner in possession. Similarly, both unlawful” CCW and FIP are general-intent crimes, and all three “have parallel statutory structures with two key elements: (1) possession of a weapon; and (2) ineligibility to possess it.” Thus, in light of Hernandez-Garcia and Dupree, the court held “that the claim of ‘momentary possession’ is inapplicable to the crime of prisoner in possession of a weapon.” Defendant relied on a 1985 decision, Perry. But the court concluded it was arguably distinguishable. Further, when “the legal landscape has shifted in the interim, such as here with Hernandez-Garcia and Dupree,” it is not bound to follow a pre-11/1/90 decision of the court, even if published. Thus, Perry was not binding. As to the hearing aid issue, “the trial court rearranged the courtroom, witnesses were told to speak up and look at defendant when testifying, and the jury was notified of [his] hearing impairment. When the trial court asked” him if these measures helped, he stated “that he had ‘no problem hearing’ with the trial court’s modified arrangement, and he did not further notify [it] that he was unable to hear or understand the remaining proceedings.” Thus, he did not show prejudice. The could also held that his 36 to 300-month sentence was “reasonable and proportionate given defendant’s actions.”

Animal cruelty; Adequate care; MCL 750.50; Jury instructions; Alternative theories; People v Bergevin; Prosecutorial error; Character evidence; Other acts; Unresponsive answers; People v Jackson; Restitution; Crime Victim’s Rights Act; MCL 780.766; Presentence investigation report (PSIR); People v Bowling; Moot probate conditions claim

The court held that defendant was not entitled to relief from his animal-cruelty and unlicensed-animal convictions, and that the restitution award was supported by the record. He was convicted after animal control found an adult dog and six puppies that appeared underweight, dirty, without food or water bowls, and in poor health. On appeal, the court first rejected defendant’s jury-instruction challenge because the prosecution proceeded on the theory that he failed to provide “sufficient food,” and where a statute lists “alternative ways for a jury to convict,” only one alternative must be proven. The court therefore held that counsel was not ineffective for failing to request definitions of neglect, sanitary conditions, or shelter because those definitions were not necessary to the prosecution’s theory, and counsel “need not make a futile objection.” It next rejected defendant’s prosecutorial-error claim based on references to prior animal-control contacts because the officer’s comment about “previous interactions and complaints” was not elicited for improper propensity purposes, the prosecutor did not ask about the content of those contacts, and “‘unresponsive answers from witnesses are generally not prosecutorial error.’” The court declined to address defendant’s challenge to probation conditions because records showed he had already been discharged from probation, making the issue moot. Finally, it upheld the $21,480 restitution order because the PSIR stated that the county animal shelter requested $270 for vaccinations and $21,210 for boarding seven dogs for 236 days. The court held that the trial court could rely on that factual basis because, at sentencing, the contents of the PSIR are treated as “‘presumptively accurate.’” Affirmed.

Ineffective assistance of counsel; Cross-examination; Elicitation of highly damaging testimony; Prejudice

Holding that defense counsel’s elicitation of testimony from the complaining witness in this CSC case that defendant engaged in bestiality warranted a new trial, the court reversed the trial court’s order denying his motion for a new trial, vacated his convictions, and remanded for a new trial. He was convicted of multiple CSC offenses involving a young relative (MP). “At the Ginther hearing, the trial court concluded that defense counsel’s strategy of introducing an allegation of bestiality involving defendant at trial to challenge MP’s credibility was not reasonable strategy.” The court noted no one on appeal disputed “that defense counsel’s introduction of highly damaging and prejudicial testimony fell below an objective standard of reasonableness under prevailing professional norms.” The trial court determined “there was no reasonable probability that the jury would have disbelieved MP’s claims of sexual abuse if only she had not testified about bestiality.” The court disagreed, concluding that while “there was some corroborative testimony and evidence, MP’s testimony about the sexual assaults was key. Defense counsel never explained to the jury how or why MP’s testimony about the bestiality was ‘unrealistic’ or ‘impossible’ and made MP’s sexual assault allegations improbable. To the contrary, as the trial court recognized, MP’s bestiality allegation was not so fantastical or unbelievable as to clearly challenge MP’s credibility regarding her own sexual-assault allegations.” The court held that where “defendant was on trial for sexually assaulting an underage relative, the evidence of bestiality was not only highly inflammatory, but also may have induced the jury to find defendant guilty on the basis of its perception of his extreme sexual deviance rather than on the strength of the prosecution’s case relying largely on MP’s testimony to establish that defendant sexually assaulted her once in 2011 and once in 2015.”

Witness bribery; MCL 750.122; Withholding testimony; Other acts evidence; Domestic violence; MCL 768.27b; Web search history; MRE 403; State of mind; People v Wisniewski; Credibility; People v Meissner; Sentencing; OV 9; MCL 777.39; Resentencing; People v Carter

The court held that sufficient evidence supported defendant’s witness-bribery conviction, that the challenged web-search, phone-call, and domestic-violence evidence was admissible, but that resentencing was required on the CSC I conviction because OV 9 was improperly scored. Defendant was convicted of CSC I, several CSC II offenses, domestic violence, and witness bribery arising from sexual and physical abuse involving his stepdaughters and his later effort to influence his biological daughter’s testimony. On appeal, the court first held that the witness-bribery conviction was supported because MCL 750.122(1)(c) prohibits encouraging a witness “to withhold testimony, or to testify falsely,” and the word “or” showed that the statute separately reaches attempts to induce a witness to omit information. The jury could reasonably infer defendant attempted to buy his daughter’s silence because, after an emotional phone call in which he urged her not to disclose abuse, he began making promises that were “substantially more generous than promises he had made in the past.” The court next held that defendant’s phone search for stepdaughter pornography was admissible because, under Wisniewski, searches using terms descriptive of victims are “highly relevant” to state of mind and motive, and the trial court reduced unfair prejudice by excluding other searches. The court also held that defendant’s crude phone-call joke was admissible because it was relevant to credibility, particularly his claim that an earlier inappropriate incident was accidental or out of character and that he had “grown as a person.” As to the domestic-violence other acts, the court held that the evidence was admissible under MCL 768.27b because it bore on credibility and made it more probable that defendant’s second wife and the children were telling the truth, especially where defendant portrayed his second wife as “a serial manipulator.” Finally, the court held that OV 9 was improperly scored because the CSC I victim described incidents in which defendant “isolated her from everyone else first,” meaning only one victim was placed in danger during the sentencing offense. Affirmed in part, vacated in part, and remanded.

Ineffective assistance of counsel; Strickland v Washington; Child memory expert; Forensic interview; MRE 803A; MCL 768.27a; Trial strategy; Sex Offender Registration Act (SORA) registration; Cruel or unusual punishment; People v Kardasz; Lifetime electronic monitoring (LEM); MCL 750.520n; Unreasonable search; People v Hallak

The court held that defendant was not denied the effective assistance of counsel and that his lifetime SORA registration and LEM requirements did not entitle him to relief. He was convicted of CSC II involving a child under 13 after the child disclosed that defendant exposed himself and later reported sexual contact during a forensic interview. On appeal, the court first held that defendant did not establish ineffective assistance based on counsel’s failure to consult or call a child-memory or suggestibility expert. He did not provide the factual predicate needed to overcome the presumption of trial strategy, including whether counsel considered an expert, whether counsel elected to rely on the victim’s “deficient recollection to avoid challenging or attacking the child victim during trial,” or whether counsel chose not to turn the case into “a battle of expert opinions.” The court emphasized that counsel pursued a reasonable theory that the child “repeatedly changed her story” and “forgot” key details, and defendant failed to show that an expert would have created a “reasonable probability” of a different result. It next held that counsel was not ineffective for failing to object at trial to admission of the first forensic interview because the trial court had relied in part on MCL 768.27a, and defendant failed to challenge that basis on appeal. It further found that even assuming the interview was inadmissible hearsay under MRE 803A, admitting it reasonably supported the defense theory because it allowed the jury to see the “alleged improper questioning” and compare the interview with contradictions in the child’s trial testimony. Finally, the court rejected defendant’s challenges to lifetime SORA registration and LEM. As to SORA, it held that his facial challenge failed because Kardasz held that the 2021 SORA is punishment but “not cruel or unusual on its face.” As to LEM, the court held that Hallak remained binding and had already determined that LEM for CSC II involving a child under 13 was not cruel or unusual punishment and was not an unreasonable search because the “strong public interest” in monitoring offenders outweighed the “minimal impact” on reduced privacy interests. Affirmed.

Ineffective assistance of counsel; Failure to call a particular witness; Whether the proposed testimony was admissible; Prior consistent statement (MRE 801(d)(1)(B)); People v Jones; Prejudice; Operating a motor vehicle while intoxicated (OWI); MCL 257.625(1); People v Wood; City of Plymouth v Longeway; Testimony that defendant tried to back the car out of a ditch; A place “generally accessible to motor vehicles”; People v Parrott; Driving while license suspended, revoked, or denied (DWLS)

Holding that defendant did not establish ineffective assistance of counsel as to the decision not to call a particular witness, the court affirmed his OWI, third offense and DWLS convictions. He asserted that defense counsel was ineffective for not calling a defense witness’s (C) friend (Y) to testify that C told her shortly after the accident that he was the driver. The prosecution suggested at trial that C’s “testimony was motivated by defendant’s family paying his travel expenses to Michigan.” Given that C’s “prior, consistent statement that he drove the car into the ditch was made before any potential motive to fabricate arose from the travel payment[,]” the court concluded that Y’s proposed testimony would have been admissible under MRE 801(d)(1)(B). But per her affidavit, Y would also have testified that defendant got into the driver’s seat and attempted to back the car out of the ditch, but it did not move. Under MCL 257.625(1), it did “not matter whether the car did not actually move as a result of defendant’s attempt.” He asserted defense counsel misunderstood the risk because the ditch “was not ‘generally accessible to motor vehicles’ under MCL 257.625(1)” given that he could not get the car out of the ditch. The court disagreed. In Parrott, it concluded “that both the ditch adjacent to the road and a nearby field were generally accessible to motor vehicles.” The court held “that defense counsel had reason to be concerned that presenting [Y’s] testimony could establish an alternate basis for the factfinder to conclude that defendant operated the car while intoxicated.” As a result, defendant did “not overcome his ‘heavy burden’ of proving that defense counsel’s decision not to call [Y] as a trial witness fell below a professional standard of reasonableness.” The court also found that he failed to establish prejudice. While it was conceivable that Y’s testimony would have rehabilitated C’s credibility and influenced “the jury’s determination whether [C] was telling the truth at trial, there is not a ‘substantial’ likelihood of a different result at trial.” The court noted “there was significant circumstantial and direct evidence that allowed the jury to conclude that defendant was the driver.”

Stepparent adoption & parental rights termination proceedings; In re NRC; MCL 710.51(6)(b); Distinguishing In re Kaiser; Factual findings; Personal protection order (PPO)

In these consolidated appeals arising from stepparent adoption/parental rights termination proceedings, the court held that the trial court did not clearly err in finding that MCL 710.51(6)(b) was established. Respondent-father contended that “he lacked the ability to visit, contact, or communicate with the children” and that the trial court failed to make a finding as to his ability to communicate with them. The court disagreed, concluding the record showed that, at the least, he “had the ability to contact and communicate with the children but regularly and substantially failed to do so. [He] acknowledged that he had the ability to communicate with the children by coordinating with counsel. Despite the fact that he could not afford counsel during the two-year period, petitioner-mother maintained the same counsel until the adoption and termination proceedings, and [the] father did not reach out to [her] attorney to request any contact or communication with the children. [He] did not even know whether the children had separate phone numbers or e-mail addresses that he could use to reach them. And while the PPO originally prevented him from personally attending” their school until 9/22, “he was always free to attend virtual parent-teacher conferences.” The court further noted that he did not contact or communicate with them after the PPO expired in 9/23. It found the case he relied on, Kaiser, distinguishable. Based on the evidence, it could not “disturb the trial court’s factual finding that [the] father had the ability to contact or communicate with the children, but regularly and substantially failed to do so during the two-year period.” As to his challenge to the trial court’s factual findings, the record did “contain a written finding that [he] had the ability to communicate with his children.” In addition, it found that “any error arising out of the lack of specific findings on the issue is harmless because the record clearly and convincingly establishes that [he] had the ability to communicate with” them. Affirmed.

No-fault insurance; PIP benefits; Allowable expenses; New trial motion; Attorney misconduct; Reetz v Kinsman Marine Transit Co; Harmless error; Attorney fees; MCL 500.3148; Unreasonable refusal to pay; Brown v Home-Owners Ins Co; Reasonable hourly rate; Pirgu v United Servs Auto Ass’n; Expended hours; Augustine v Allstate Ins Co

The court held that plaintiff’s counsel improperly referred to the other driver’s intoxication, but the error was harmless, and that the trial court did not abuse its discretion by awarding plaintiff attorney fees under MCL 500.3148. Plaintiff sued defendant-insurer for no-fault PIP benefits after a rear-end accident. The jury found that her neck-surgery bill was an overdue allowable expense, while rejecting her claim for a later low-back surgery. On appeal, the court first held that plaintiff’s counsel erred by referring to the other driver as drunk because his “possible inebriation” was not relevant to whether plaintiff suffered an accidental bodily injury, whether the bills were allowable expenses, or whether payment was overdue. But under Reetz, the error did not warrant a new trial because the verdict was supported by evidence, including testimony from plaintiff’s treating physicians and defendant’s correspondence to Medicare acknowledging that plaintiff injured her neck in the accident. The court emphasized that the jury did not award plaintiff everything she sought, which showed it “dispassionately reviewed the evidence,” and that instructions not to let sympathy or bias affect the verdict were “sufficient to cure the potentially prejudicial effect” of counsel’s comments. The court next held that attorney fees were proper because the jury’s overdue-benefits finding created a presumption that defendant’s refusal to pay was unreasonable, and defendant failed to rebut it. Although plaintiff had a complicated preexisting medical history, defendant acknowledged in 7/22 that she injured her neck in the accident and was treated for it, and the later records review “does not retroactively create a factual uncertainty that clearly did not exist as early as” 7/22. The court also upheld the $750 hourly rate because the trial court considered the State Bar survey data and the Pirgu factors, including counsel’s experience, the medical complexity of the case, the favorable result, expenses, the contingent fee, and the risk of trying a $50,000-cap case. Finally, the court rejected defendant’s challenge to the hours expended because the trial court held an evidentiary hearing, struck some duplicative or unrelated time, and no authority required contemporaneous time records. Affirmed.

Stepparent adoption & parental rights termination proceedings; In re NRC; MCL 710.51(6)(b); Distinguishing In re Kaiser; Factual findings; Personal protection order (PPO)

In these consolidated appeals arising from stepparent adoption/parental rights termination proceedings, the court held that the trial court did not clearly err in finding that MCL 710.51(6)(b) was established. Respondent-father contended that “he lacked the ability to visit, contact, or communicate with the children” and that the trial court failed to make a finding as to his ability to communicate with them. The court disagreed, concluding the record showed that, at the least, he “had the ability to contact and communicate with the children but regularly and substantially failed to do so. [He] acknowledged that he had the ability to communicate with the children by coordinating with counsel. Despite the fact that he could not afford counsel during the two-year period, petitioner-mother maintained the same counsel until the adoption and termination proceedings, and [the] father did not reach out to [her] attorney to request any contact or communication with the children. [He] did not even know whether the children had separate phone numbers or e-mail addresses that he could use to reach them. And while the PPO originally prevented him from personally attending” their school until 9/22, “he was always free to attend virtual parent-teacher conferences.” The court further noted that he did not contact or communicate with them after the PPO expired in 9/23. It found the case he relied on, Kaiser, distinguishable. Based on the evidence, it could not “disturb the trial court’s factual finding that [the] father had the ability to contact or communicate with the children, but regularly and substantially failed to do so during the two-year period.” As to his challenge to the trial court’s factual findings, the record did “contain a written finding that [he] had the ability to communicate with his children.” In addition, it found that “any error arising out of the lack of specific findings on the issue is harmless because the record clearly and convincingly establishes that [he] had the ability to communicate with” them. Affirmed.