Ineffective assistance of counsel; Right to testify; Factual predicate; Failure to qualify a witness as an expert; Prejudice; Failure to call certain witnesses; Jury instructions; Failure to object; Failure to request a specific unanimity instruction; Double jeopardy; Convictions for violating MCL 750.50(4)(d) & (4)(e); “Unit of prosecution”; People v Wakeford; People v Johnson; Sufficiency of the evidence for a failure to provide adequate care to 25 or more animals conviction; People v Parkinson

While the court rejected defendant’s ineffective assistance of counsel claims, it held that her convictions for both MCL 750.50(4)(d) and 750.50(4)(e) violated the Double Jeopardy Clauses. It also held that there was sufficient evidence to support her conviction of cruelty to 25 or more animals in violation of (4)(e). Thus, it affirmed that conviction but vacated her conviction of cruelty to 10-24 animals under (4)(d). She asserted that her trial counsel was ineffective in multiple ways, including preventing her from testifying. But the record clearly showed “that defendant knowingly waived her right to testify and decided to instead exercise her right to remain silent.” Thus, she could not establish the factual predicate for this claim. As to failing to qualify a defense witness (a veterinarian, Dr. K) as an expert, even if K “was qualified as an expert, he would not have been permitted to testify about whether defendant complied with the law.” Thus, the alleged failure to qualify K as an expert “did not prevent the jury from” considering his “‘testimony insofar as it suggested legal compliance.’” But the court agreed with defendant’s double jeopardy argument, which required it to determine “what constitutes a single offense under MCL 750.50[.]” It found that it was “clear that the ‘unit of prosecution’ for a charge under MCL 750.50 is a defendant’s conduct that violates MCL 750.50(2)—here, defendant’s failure to provide her animals with adequate care as prohibited by MCL 750.50(2)(a).” The language of MCL 750.50 showed “that the conduct being criminalized is not the number of animals mistreated but the defendant’s conduct that violates MCL 750.50(2).” Only evidence of “one instance in which [she] violated MCL 750.50(2)” was presented here. “The more animals that [she] failed to provide with adequate care, the more she could be punished as provided in MCL 750.50(4). But she could not be subjected to multiple charges for the single instance in which she failed to provide her animals with adequate care.” Thus, because the evidence was sufficient to support her higher conviction (failure to provide such care to more than 25 animals that she owned), the court vacated the lower one, involving 10-24 animals.