Right to present a defense; Exclusion of evidence related to a previous civil lawsuit; People v Zitka; Relevancy of the civil lawsuit to a gambling operation charge; MRE 401-402; MCL 432.218(1)(a); The law of the case doctrine; “Board”; MCL 432.202(f); “Gambling operation” or “casino gambling operation”; MCL 432.202(w); “Gambling”; MCL 432.202(v); Relevancy of the evidence to unlawful use of a computer charges; MCL 752.796; Ineffective assistance of counsel; People v Vaughn; Strickland v Washington; Failure to advance a meritless argument; People v Ericksen; Trial strategy; People v Trakhtenberg; Character witnesses; MRE 404(a)(1); Res judicata & entrapment by estoppel; Dart v Dart; Opinion testimony; MRE 701, 702 & 704; People v McFarlane; People v Drossart

[This opinion was previously released as an unpublished opinion on 12/10/20.] The court held that its decision in a prior opinion in this case, Zitka (that conducting a gambling operation without a license is a general-intent crime) established “that the challenged evidence was not relevant,” and thus, the trial court did not abuse its discretion by excluding it. The court also rejected defendants’ ineffective assistance of counsel claims, and found that defendant-Hernandez-Zitka was not entitled to relief on the basis of res judicata or entrapment by estoppel. Her challenges to opinion testimony also failed. Defendants argued that “the trial court abused its discretion and violated their constitutional right to present a defense by excluding evidence related to” a prior civil lawsuit at their criminal trial. In particular, they argued that “the dismissal order in the civil lawsuit was admissible to show that they believed they were acting in compliance with the law.” The threshold question was “whether the circumstances or outcome of the Norton Shores civil litigation was probative of any fact that was of consequence to the determination of the criminal action.” The court’s analysis in Zitka showed “that the trial court did not abuse its discretion by not allowing defendants to present evidence of the Norton Shores civil litigation at their criminal trial. We are bound by the earlier decision in Zitka under both the law-of-the-case doctrine and because this Court’s prior decision is published.” Defendants essentially took “the position that the prosecutor needed to prove that they specifically intended to operate an illegal gambling operation, or to prove that they were operating a gambling operation knowing that it was illegal.” This position was not supported by Zitka. Thus, while evidence as to “whether defendants’ operation met the statutory requirements for a gambling operation involving ‘gambling games’ was relevant, evidence of whether defendants specifically intended their operation to be an unlicensed gambling operation or specifically intended to violate MCL 432.218(1)(a) was not relevant.” Excluding the evidence was not an abuse of discretion. “Further, because the evidence was not relevant, the trial court’s exclusion of this evidence did not violate defendants’ right to present a defense.”