Sentencing; Cruel or unusual punishment; People v Stovall; Fourth habitual offender enhancement (MCL 769.12(1)(a)); Mandatory minimum sentence; People v Burkett; Separation of powers

The court held that defendant’s mandatory 25-year minimum sentence under the fourth-offense habitual-offender statute was not cruel or unusual punishment and did not violate the separation-of-powers doctrine. Defendant was convicted of AWIGBH, third-offense domestic violence, unlawful imprisonment, and obstruction of justice after he put his hand around his girlfriend’s throat and held her against a wall while she was trying to leave her house. At sentencing, he argued that the mandatory minimum sentence in MCL 769.12(1)(a) was unconstitutional because it left the trial court with “no discretion,” but the trial court imposed the 25-year minimum after finding the sentence proportionate in light of defendant’s extensive assaultive criminal history and the violent nature of the current offenses. On appeal, the court held that the sentence survived a cruel-or-unusual-punishment challenge because legislatively mandated sentences are “presumptively proportional and presumptively valid,” and defendant showed no “unusual circumstances” overcoming that presumption. The court next held that Burkett controlled. The court found there that MCL 769.12(1)(a) reflects “a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.” The court also rejected the separation-of-powers challenge, explaining that “the ultimate authority to provide for criminal offenses is constitutionally vested in the Legislature,” while the judiciary’s role is to impose sentence “within the limits imposed by the Legislature.” It concluded that MCL 769.12(1)(a) is simply a mandatory sentencing statute that “sharply limits judicial discretion,” which is constitutionally permissible. Affirmed.

Operating while visibly impaired (OWVI), third offense; MCL 257.625(3) & MCL 257.625(11)(c); Sufficiency of the evidence; People v Mikulen; Controlled substance definition; MCL 257.8b & MCL 333.7104(3); Schedule II substances; MCL 333.7214(c)(i) & (ii); Expert testimony; People v Perry; Preliminary breath test (PBT)

The court held that sufficient evidence supported defendant’s OWVI conviction because the prosecution presented ample observational evidence that his ability to operate a vehicle was visibly impaired due to the consumption of a controlled substance or intoxicating substance. A passerby found defendant passed out behind the wheel of a pickup truck parked in the middle of the road at night, and removed the keys from the ignition through a cracked window. He testified that defendant woke briefly, said he had been “partying down at the lake and that he had been drinking,” smelled of alcohol, and then “nodded back out.” Deputies arrived within minutes and observed defendant to be groggy, in and out of consciousness, with droopy eyelids, thick slurred speech, shakiness, restlessness, and an inability to follow basic instructions or complete field sobriety tests. On appeal, the court held that this visual and observational evidence was sufficient under Mikulen, which requires proof that the defendant’s “ability to operate the vehicle was visibly impaired” and not proof of actual erratic driving. The court next held that, even though the PBT was only 0.019 and no alcohol was detected in the later blood draw, the toxicology report showed meth and amphetamine in defendant’s blood, a deputy testified that the report concerned controlled substances, and the jury was free to reject the defense expert’s opinion that those substances did not impair defendant’s driving. The court also held that meth and amphetamine are Schedule II controlled substances and that the evidence supported the jury’s finding that defendant had consumed a controlled substance or intoxicating substance. Affirmed.

Ineffective assistance of counsel; Failure to object; Stipulation to the admission of other acts evidence; MCL 768.27a(1); MRE 403; Hearsay; Strategic reason not to object; Distinguishing People v. Shaw; Prejudice; Lifetime registration under the Sex Offenders Registration Act (SORA); Cruel or unusual punishment; People v Kardasz; Lifetime electronic monitoring (LEM); MCL 750.520n; People v Hallak; Whether LEM constitutes an unreasonable search

The court held that defense counsel was not ineffective for failing to object to other acts evidence and hearsay. It also rejected defendant's constitutional challenges to lifetime registration under the 2021 SORA and LEM. He was convicted of CSC I, CSC II, CSC III, and accosting a child for an immoral purpose. As to his ineffective assistance claims, the court noted that “he himself made the informed decision to stipulate to” admission of the other acts evidence, and the court concluded that “defense counsel’s decision not to object to certain hearsay was supported by sound trial strategy.” The court found that, regardless of whether objecting to the other acts “evidence would have resulted in a more favorable outcome for defendant,” it could not “conclude that defense counsel’s performance was objectively unreasonable when he advised defendant about his options for ‘several hours’ and ultimately pursued the trial strategy that defendant requested.” Next, even if police officers’ testimony repeating statements the victims made to them “was objectionable hearsay, defense counsel’s decision not to object was not objectively unreasonable. The hearsay that defense counsel allegedly overlooked was possibly beneficial to the defense, or at least it was much less damaging than was the hearsay in Shaw.” The court added that failing to object “did not prejudice defendant’s case.” It noted that “the declarants had already testified about the matter asserted in those statements and were subject to cross-examination.” As to his cruel or unusual punishment challenge to his SORA registration requirement, because the court reached “the same conclusions as the Kardasz Court for each” of the relevant factors, it was “bound to reach the same conclusion: the 2021 SORA’s lifetime registration requirement was not grossly disproportionate and did not constitute cruel or unusual punishment as applied to defendant.” As to the same challenge to the LEM requirement, similar to in Hallak, the court concluded “that LEM is not cruel or unusual punishment as applied to defendant in this case.” It noted that he “was convicted of four offenses that would each require LEM individually, along with three other sexual offenses. There were four victims, and the testimony asserted that there were improper sexual acts involving two additional family members.” His Fourth Amendment challenge also failed under Hallak. Affirmed.

Personal protection insurance (PIP) benefits claim; Proof of damages; Motion for a directed verdict; Reasonableness of medical providers’ charges; MCL 500.3107(1)(a); Kallabat v State Farm Mut Auto Ins Co; Admission of post-accident medical bills, health insurer’s explanations of benefits (EOBs), & defendant-insurer’s explanations of review (EORs); MCR 2.313(C)(1); Exclusion of pre-accident medical bills; Motion to strike an expert’s causation testimony; MRE 702; Penalty interest; MCL 500.3142(2); Attorney fees & costs; MCL 500.3148(1); Motion for JNOV or a new trial; Improper enlargement of the record on appeal

The court held that “plaintiff presented a question of material fact as to her having suffered damages compensable as PIP benefits” and as to the reasonableness of her medical providers’ charges. The court rejected State Farm’s challenges to the admission of some documents and the exclusion of others, and held that the trial court did not abuse its discretion in refusing to strike a treating doctor’s causation testimony. It also upheld the awards of no-fault penalty interest and attorney fees, and the denial of State Farm’s motion for JNOV or a new trial. But it vacated the award of $6,000 in costs and directed that the amount be amended to $3,768.40. State Farm’s summary disposition motion asserted “plaintiff failed to produce any proof of damages supporting” her PIP claim. However, plaintiff provided “wage information to establish her wage loss and outstanding medical bills in discovery, along with additional, supplemental records; testified at her deposition that her brother provides sporadic compensable assistance with her household services; likewise provided signed authorizations in response to State Farm’s discovery requests enabling it to obtain any and all records supporting her claim for PIP benefits; and memorialized benefits she was seeking (at that time) in a” letter. Thus, the trial court properly denied State Farm’s summary disposition motion. As to the reasonableness of medical provider charges, during the trial, plaintiff’s physical medicine and rehabilitation specialist physician (Dr. G) and her neurosurgeon (Dr. E) testified that the amount their offices bill “does not vary based upon the patient’s ability to pay via insurance or otherwise, but rather reflects the services rendered and, as [E] testified, are not simply a product of seeking payment and profit, ‘because we treat patients with all insurances, all-comers, including even uninsured.’ Further, [G] referred plaintiff to [E] for potential surgical intervention of the cervical and lumbar spine and testified that the procedures that [E] performed were consistent with his diagnosis of the plaintiff’s need.” The jury was also “provided with plaintiff’s medical bills and records (including those of Drs. [G] and [E]), BCN’s EOBs, and State Farm’s EORs for their scrutiny of the reasonableness of those expenses . . . .” Thus, the trial court properly denied State Farm’s motion for a directed verdict.

Personal protection insurance (PIP) benefits claim; Proof of damages; Motion for a directed verdict; Reasonableness of medical providers’ charges; MCL 500.3107(1)(a); Kallabat v State Farm Mut Auto Ins Co; Admission of post-accident medical bills, health insurer’s explanations of benefits (EOBs), & defendant-insurer’s explanations of review (EORs); MCR 2.313(C)(1); Exclusion of pre-accident medical bills; Motion to strike an expert’s causation testimony; MRE 702; Penalty interest; MCL 500.3142(2); Attorney fees & costs; MCL 500.3148(1); Motion for JNOV or a new trial; Improper enlargement of the record on appeal

The court held that “plaintiff presented a question of material fact as to her having suffered damages compensable as PIP benefits” and as to the reasonableness of her medical providers’ charges. The court rejected State Farm’s challenges to the admission of some documents and the exclusion of others, and held that the trial court did not abuse its discretion in refusing to strike a treating doctor’s causation testimony. It also upheld the awards of no-fault penalty interest and attorney fees, and the denial of State Farm’s motion for JNOV or a new trial. But it vacated the award of $6,000 in costs and directed that the amount be amended to $3,768.40. State Farm’s summary disposition motion asserted “plaintiff failed to produce any proof of damages supporting” her PIP claim. However, plaintiff provided “wage information to establish her wage loss and outstanding medical bills in discovery, along with additional, supplemental records; testified at her deposition that her brother provides sporadic compensable assistance with her household services; likewise provided signed authorizations in response to State Farm’s discovery requests enabling it to obtain any and all records supporting her claim for PIP benefits; and memorialized benefits she was seeking (at that time) in a” letter. Thus, the trial court properly denied State Farm’s summary disposition motion. As to the reasonableness of medical provider charges, during the trial, plaintiff’s physical medicine and rehabilitation specialist physician (Dr. G) and her neurosurgeon (Dr. E) testified that the amount their offices bill “does not vary based upon the patient’s ability to pay via insurance or otherwise, but rather reflects the services rendered and, as [E] testified, are not simply a product of seeking payment and profit, ‘because we treat patients with all insurances, all-comers, including even uninsured.’ Further, [G] referred plaintiff to [E] for potential surgical intervention of the cervical and lumbar spine and testified that the procedures that [E] performed were consistent with his diagnosis of the plaintiff’s need.” The jury was also “provided with plaintiff’s medical bills and records (including those of Drs. [G] and [E]), BCN’s EOBs, and State Farm’s EORs for their scrutiny of the reasonableness of those expenses . . . .” Thus, the trial court properly denied State Farm’s motion for a directed verdict.

Medical malpractice; Failure to administer a local anesthetic before beginning a procedure; Assault & battery; Scope of consent; Franklyn v Peabody; Ordinary negligence; Actual injury requirement; Henry v Dow Chem Co

The court held that the trial court properly dismissed plaintiffs’ assault-and-battery and negligence claims because the vasectomy that the one plaintiff consented to was the procedure performed, the use of sodium bicarbonate instead of lidocaine was an inadvertent mistake rather than an intentional nonconsensual touching, and he failed to establish a cognizable physical injury for negligence purposes. Plaintiff underwent a vasectomy that “was undisputedly initiated without having first administered a local anesthetic” because the medical assistant mistakenly filled the syringe with sodium bicarbonate rather than lidocaine. But once defendant-doctor realized the mistake, he “‘filled a syringe with 1% Xylocaine, re-injected the area,’” and proceeded, as plaintiff “‘was now properly numb.’” On appeal, the court held that the battery theory failed because, unlike Franklyn, plaintiff “was not subjected to an operation on a different anatomical site or of a fundamentally distinct nature,” as “he consented to a vasectomy, and that procedure was performed.” There was also “no evidence of intent to inflict the complained-of contact.” The court emphasized that “the undisputed evidence establishes that the error was one of negligence, not intent.” There was no evidence defendants “intended to effectuate nonconsensual contact” by starting the operation before administering a local anesthetic. The court next held that the negligence claim failed because Michigan requires proof of an actual physical injury, and plaintiff’s alleged pain, mental distress, and PTSD were “properly characterized as ‘damages’ rather than evidence of a cognizable personal injury from which such damages might arise.” Citing Henry, the court stressed that “‘common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can also establish physical manifestations of that distress,’” and plaintiff therefore “failed to establish the necessary element of harm, or actual personal injury.” Affirmed.

Medical malpractice; Failure to administer a local anesthetic before beginning a procedure; Assault & battery; Scope of consent; Franklyn v Peabody; Ordinary negligence; Actual injury requirement; Henry v Dow Chem Co

The court held that the trial court properly dismissed plaintiffs’ assault-and-battery and negligence claims because the vasectomy that the one plaintiff consented to was the procedure performed, the use of sodium bicarbonate instead of lidocaine was an inadvertent mistake rather than an intentional nonconsensual touching, and he failed to establish a cognizable physical injury for negligence purposes. Plaintiff underwent a vasectomy that “was undisputedly initiated without having first administered a local anesthetic” because the medical assistant mistakenly filled the syringe with sodium bicarbonate rather than lidocaine. But once defendant-doctor realized the mistake, he “‘filled a syringe with 1% Xylocaine, re-injected the area,’” and proceeded, as plaintiff “‘was now properly numb.’” On appeal, the court held that the battery theory failed because, unlike Franklyn, plaintiff “was not subjected to an operation on a different anatomical site or of a fundamentally distinct nature,” as “he consented to a vasectomy, and that procedure was performed.” There was also “no evidence of intent to inflict the complained-of contact.” The court emphasized that “the undisputed evidence establishes that the error was one of negligence, not intent.” There was no evidence defendants “intended to effectuate nonconsensual contact” by starting the operation before administering a local anesthetic. The court next held that the negligence claim failed because Michigan requires proof of an actual physical injury, and plaintiff’s alleged pain, mental distress, and PTSD were “properly characterized as ‘damages’ rather than evidence of a cognizable personal injury from which such damages might arise.” Citing Henry, the court stressed that “‘common law recognizes emotional distress as the basis for a negligence action only when a plaintiff can also establish physical manifestations of that distress,’” and plaintiff therefore “failed to establish the necessary element of harm, or actual personal injury.” Affirmed.

Children’s best interests; In re Atchley; Effect of relative placement; In re Mota

The court held that the trial court did not clearly err in finding that terminating respondent-mother’s parental rights was in the children’s best interests. It previously remanded with instructions for the trial court to specifically consider the children’s relative placement in determining whether termination was in their best interests. On remand, the trial court considered their “ages, noting that CM neither wished to reunify with respondent nor maintained a substantial bond with her, and that CM had been significantly traumatized both by the abuse and by respondent’s inadequate response to her disclosure. [It] further found that CM was thriving in her relative foster placement.” While acknowledging there was “some bond between respondent and JT, it attributed this to JT’s youth and limited awareness of the abuse. The trial court further evaluated the children’s weak bond with respondent, their positive relationship with the foster family, and the prospect of adoption. [It] found respondent incapable of providing a stable and protective home for the children due to her persistent denial of culpability and failure to appreciate the gravity of the harm” they suffered. It “also considered the documented history of domestic violence and respondent’s broader history. Ultimately, [it] concluded that termination was in the children’s best interests notwithstanding their” relative placement. The court noted that respondent did not address the trial court’s findings as to “the impact of her actions and omissions on the children’s welfare, which [it] determined were not outweighed by the relative placement. [Her] appellate briefing improperly centers [on] her own interests, whereas the appropriate focus at the best-interests stage is on the children.” There was substantial record evidence that she “was aware of her live-in boyfriend’s abuse of the children and failed to take protective action. The record further establishes that [she] instructed CM to mislead authorities in order to shield her boyfriend, indicating a prioritization of her relationship over” her children’s welfare. She did not offer any “persuasive rationale as to why this evidence is outweighed by the children’s placement with relatives.” Affirmed.