Sentencing; Scoring of OV 3 (MCL 777.33); “Physical injury”; Distinguishing People v Chaney; “Life threatening” injury; Scoring of OV 10 (MCL 777.40); Predatory conduct; People v Huston

Concluding that the trial court properly scored OVs 3 and 10, the court affirmed. Defendant was convicted of AWIGBH, conspiracy to commit AWIGBH, armed robbery, and conspiracy to commit armed robbery. In 2013, he was sentenced as a fourth habitual offender to 6 to 20 years for the two assault related charges, and 15 to 40 years for the two armed robbery related charges. In 2024, after the trial court vacated his conviction of conspiracy to commit AWIGBH, it updated his minimum sentencing guidelines and reimposed the same sentence for his remaining convictions. Defendant first argued “that the trial court should have only assessed 10 points instead of 25 points for OV 3 because, although the victim suffered injuries that required medical treatment there was no evidence that those injuries were life-threatening or permanently incapacitating.” Contrary to defendant’s claim, “this case is unlike Chaney. The three-year-old child-abuse victim in Chaney suffered severe burns to the lower legs and feet from hot bath water while in the defendant’s care. The victim was hospitalized for several weeks to treat the burns. This Court held that the trial court clearly erred by finding that the victim suffered a ‘life-threatening’ injury for purposes of MCL 777.33 and assessing 25 points. This Court reasoned that although the victim suffered ‘serious injury requiring a lengthy hospitalization,’ the medical records did not indicate that the injuries were potentially fatal, nor was there testimony to that effect.” In contrast, in this case, “there was ‘some evidence indicating that the injuries were, in normal course, potentially fatal.’ Thus, the trial court did not clearly err by finding that [victim-B’s] head injuries were life threatening. Defendant’s attempts to distinguish Huston were not persuasive.” First, it was “not particularly helpful to defendant that he knew [B] ‘before the attack and targeted him specifically, rather than waiting in the parking lot for any potential victim to come along, as the defendant in Huston did.’ To the contrary, predatory conduct often is ‘directed at one or more specific victims[.]’” Huston “clarified that predatory conduct also may include conduct directed at nonspecific victims, too.” Second, it was of no import that B “expected to meet defendant in the parking lot and could ‘clearly see’ defendant before the attack. [B] ‘did not expect to be struck from behind in the head with a hammer by a defendant’s cohort and then beaten and robbed by defendant and two other men.’” Thus, when defendant instructed B “to go to the restaurant’s back parking lot where defendant was waiting with his cohorts to outnumber, beat, and rob [B], defendant engaged in predatory conduct that created or enhanced [B’s] vulnerability, such that 15 points were appropriate for” OV 10. Thus, the court was “not left with a definite and firm conviction that the trial court erred by assessing 15 points for OV 10.”

Sufficiency of the evidence; CSC III; “Force or coercion”; AWIGBH; Ineffective assistance of counsel; Omittance of exculpatory evidence; Failure to acquire defendant’s girlfriend as a witness; Failure to question the relevance & authenticity of photos without specifying which photos were at issue; Failure to effectively cross-examine, impeach, or probe complainant as to her inconsistent injuries & delayed reporting of the incident; Judgment notwithstanding the verdict (JNOV)

Concluding that there was sufficient evidence to support defendant’s CSC III and AWIGBH convictions and he was not denied the effective assistance of counsel, the court affirmed. He was also convicted of domestic violence. Defendant argued that the evidence was insufficient to support his convictions for CSC III and AWIGBH, and that the trial court erred by failing to grant his motion for JNOV. The court held that considering “complainant’s testimony that [he] penetrated after physically assaulting her and despite her stated refusal, a reasonable juror could determine that force or coercion was used during both instances of sexual abuse.” It found that the jury could reasonably conclude that her testimony supported that she felt that forced to comply in a subsequent sexual encounter. The court noted she “also explained that her delayed disclosure of the assault was related to defendant’s presence at the hospital during [her] initial attempt to seek treatment, [her] consideration of the impact of [his] potential prosecution on his children, and [her] fear regarding defendant’s continued threats against her and her children.” Even though this is a common phenomenon in intimate-partner violence matters, to the extent defendant argued her “version of events was not credible, we ‘must defer to the fact-finder by drawing all reasonable inferences and resolving credibility conflicts in support of the jury verdict.’” The court also held that “although a complainant’s testimony in a CSC case ‘need not be corroborated,’” there were photos “documenting complainant’s injuries and damaged clothing.” In addition, her “primary care doctor testified to her injuries, noting that she had swelling on her neck and a soft tissue injury of the victim’s chest wall after the assault.” The court found “there was sufficient evidence to establish that defendant acted with an intent to inflict great bodily harm because [he] struck complainant multiple times during an argument, injuring her.” Alternatively, it found “there was adequate evidence . . . to support the jury’s determination that defendant was guilty of AWIGBH by strangulation because complainant testified [he] choked [her] to the point that she was unable to breathe, her eyes rolled back, and she urinated on herself.” Although he contended this “testimony was not credible” any conflict in the evidence must be resolved in the prosecutor’s favor. It concluded that sufficient evidence supported his convictions. Because his “arguments that the trial court erred by denying his motion for [JNOV] and that his conviction [was] against the great weight of the evidence [were] premised on his allegation that the evidence was insufficient to support his convictions,” the court also found the relief requested on those grounds was not warranted.

Dispute over the joint purchase of a house; Res judicata; C-Spine Orthopedics, PLLC v Progressive MI Ins Co; The transactional test; Washington v Sinai Hosp of Greater Detroit; Whether a factual grouping constitutes a transaction; Adair v Michigan; Amendment of affirmative defenses; MCR 2.118(A)(2); Glasker-Davis v Auvenshine; The trial court’s discretion; Wolfenbarger v Wright; Effect of delay; Weymers v Khera; Judgment notwithstanding the verdict (JNOV); Statutory conversion; MCL 600.2919a; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc

The court held that the trial court did not err by finding defendants’ lawsuit was barred by res judicata or by denying their motion to amend their affirmative defenses in plaintiff’s lawsuit against them, but did err by failing to grant their motion for JNOV of her statutory conversion claim. The parties, who are related, purchased a house together, but their relationship eventually broke down. Plaintiff then sued defendants alleging a variety of claims. Defendants followed by suing plaintiff, making similar claims. The trial court found in favor of plaintiff following a jury award of $200,000 for statutory conversion, and dismissed defendants’ claims, finding they were barred by res judicata. On appeal, the court first found defendants’ lawsuit was barred by res judicata, noting that “the claims in both cases arose from the same transactions,” and defendants “could have raised their claims during the prior lawsuit if they had exercises due diligence.” Further, given “the record in this case, the trial court did not abuse its discretion by denying” defendants’ motion to amend their affirmative defenses. However, the court agreed with defendants that the trial court should have granted their motion for JNOV because the jury verdict was contrary to law. Because plaintiff “did not establish that there was a duty separate and distinct from the duty arising from the alleged oral contract, an essential element of her” statutory conversion claim was unproven.

Dispute over a land-division variance; Judicial review of a decision by a zoning board of appeals (ZBA); Pegasus Wind LLC v Tuscola Cnty; Whether a ZBA decision was “based on proper procedure”; MCL 125.3606(1)(b); The substantial-evidence test; Reenders v Parker

Holding that appellee-township’s ZBA did not provide sufficient factual findings, the court vacated the trial court’s order affirming the ZBA’s order and remanded to the ZBA for further explanation of its decision to grant a land-division variance. Appellee’s ZBA granted a land-division variance allowing a parcel of real property owned by third-party intervenor to comply with relevant ordinances, despite the fact that the parcel did not comply with the requirement that its depth-to-width ratio must not exceed 4:1. The trial court affirmed. On appeal, the court rejected appellant’s argument that the procedure used to approve the land division in 2020, which created the subject parcel, rendered the ZBA’s 2023 variance award invalid. “We cannot see how an alleged procedural deficiency in the 2020 land-division approval process could have any impact on the 2023 variance request, given the fact that the 2020 land-division approval had been deemed invalid by the time of the 2023 variance request.” However, the “ZBA provided insufficient factual findings on” the five necessary “elements to permit us to meaningfully review the ZBA’s decision to grant a variance.” Because the ZBA “gave no meaningful explanation for its decision, the [trial] court grossly misapplied the substantial-evidence test to the ZBA’s factual findings when it affirmed the ZBA’s order.”

Child’s best interests

The court held that it was “clear that the trial court took an individual approach to determining whether termination of respondent-father’s parental rights was in the children’s best interest.” It found that, “given the differences in the children’s ages and living situations, it was in JC’s best interests to terminate respondent’s parental rights, but that it was not in [JC's older half-brother] CC’s best interests to do so.” Respondent argued “that the trial court erred by failing to conduct an individualized best interests evaluation for JC.” He also maintained “that CC was similarly situated to JC in ‘every respect except for his age.’” The court disagreed. “The trial court considered the best interests of each child separately.” In doing so, the trial “court recognized that both children had a strong bond with respondent. However, CC was almost 18 years of age, but JC was only 7 years old. CC was made aware that respondent had sexually abused JC’s half-sister and he was old enough to make his own determination as to what level of contact he wished to maintain with respondent. Given JC’s young age, he was not told that respondent had sexually abused his half-sister.” Further, although he had a bond with respondent, “given his age and lack of awareness of respondent’s sexual abuse, the trial court did not err by not inquiring into his preference.” Next, although both children “were living with their mothers rather than with respondent, that was the only similarity in their living arrangements. JC was living with his half-sister, the child that respondent had sexually abused.” Thus, in JC’s case, “a relevant consideration was the impact that continued contact between JC and respondent would have on the family dynamic. Indeed, JC’s mother testified that the visits between JC and respondent led JC’s half-sister to feel isolated and led JC to ask questions regarding why his half-sister was being left out from the visits.” The trial “court found that the negative impact on the family dynamic weighed in favor of finding that termination of respondent’s parental rights was in JC’s best interests.” Affirmed.

Due process; Right to the care & custody of one’s child; Case service plan; MCL 712A.18f(1), (2), (4), & (5); Termination under § 19b(3)(c)(i); Child’s best interests; In re Olive/Metts Minors; Relative placement & guardianship; Distinguishing In re L J Lombard

The court held that the trial court did not err by terminating respondents-parents’ parental rights to their child. Respondent-mother’s rights were terminated on the basis of mental health issues. Respondent-father’s rights were terminated on the basis of mental health issues, substance abuse, and criminality. On appeal, the court rejected the mother’s argument that she was deprived of her fundamental right to the care and custody of her child without adequate notice of what she was expected to achieve, in violation of her right to due process. It noted she was “repeatedly notified of the issues that had brought her child into care and that had persisted throughout the case” and she “attended the periodic review hearings and heard the caseworker testify about” the DHHS’s reunification efforts and her progress on her case service plan. Further, she failed to identify “additional services that should have been included in her case service plan to assist her in overcoming her” issues. Any “failure to comply with the technical requirements of MCL 712A.18f(5) did not affect the outcome of the proceedings in the trial court or otherwise prejudice” her. The court next rejected both parents’ claim that a statutory ground was not met. As to the mother, it found § (c)(i) was met, noting “the conditions that led to the adjudication continued to exist and there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering” the child’s age. It also found § (c)(i) was met as to the father, noting “there was sufficient evidence that he failed to comply with, or benefit from, his case service plan. The evidence revealed that he was not able to achieve sobriety and a crime-free lifestyle, or to maintain stable housing or income adequate to meet” the child’s needs and it was clear he “could not rectify the conditions that led to [the] removal within a reasonable time, considering the child’s age.” Finally, the court rejected their contention that termination was not in the child’s best interests. “[T]he trial court considered all of the applicable factors when making its best-interest determination.” In addition, the “evidence supported the trial court’s conclusion that the foster home offered advantages over respondents’ home.” It also “explicitly addressed relative placement when considering the best-interest factors.” Affirmed.

Dispute over a land-division variance; Judicial review of a decision by a zoning board of appeals (ZBA); Pegasus Wind LLC v Tuscola Cnty; Whether a ZBA decision was “based on proper procedure”; MCL 125.3606(1)(b); The substantial-evidence test; Reenders v Parker

Holding that appellee-township’s ZBA did not provide sufficient factual findings, the court vacated the trial court’s order affirming the ZBA’s order and remanded to the ZBA for further explanation of its decision to grant a land-division variance. Appellee’s ZBA granted a land-division variance allowing a parcel of real property owned by third-party intervenor to comply with relevant ordinances, despite the fact that the parcel did not comply with the requirement that its depth-to-width ratio must not exceed 4:1. The trial court affirmed. On appeal, the court rejected appellant’s argument that the procedure used to approve the land division in 2020, which created the subject parcel, rendered the ZBA’s 2023 variance award invalid. “We cannot see how an alleged procedural deficiency in the 2020 land-division approval process could have any impact on the 2023 variance request, given the fact that the 2020 land-division approval had been deemed invalid by the time of the 2023 variance request.” However, the “ZBA provided insufficient factual findings on” the five necessary “elements to permit us to meaningfully review the ZBA’s decision to grant a variance.” Because the ZBA “gave no meaningful explanation for its decision, the [trial] court grossly misapplied the substantial-evidence test to the ZBA’s factual findings when it affirmed the ZBA’s order.”