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On order of the Chief Justice, the Clerk of the Court is directed to close this file because of plaintiff-appellant's failure to pay the partial filing fee as directed by the Court's order of February 20, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to file a corrected supplemental brief is GRANTED. The corrected brief submitted on August 22, 2019, is accepted for filing. | [
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Tukel, J.
Defendant was charged with unlawful possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, MCL 750.224f. He also was charged with carrying a concealed weapon in a vehicle, MCL 750.227(2), and with possession of a firearm during the commission of a felony, MCL 750.227b. The charges arose from a search of defendant's car on August 30, 2016, during which police found a .45 caliber semiautomatic pistol on the floorboard of the car.
Following an evidentiary hearing, the trial court suppressed the firearm, finding that the justification for the search was pretextual, and then dismissed the case without prejudice. The prosecution appeals as of right. Because we find that the search complied fully with the Fourth Amendment and was supported by probable cause, we reverse the order suppressing the gun, vacate the order dismissing the case, and remand for further proceedings.
I. BASIC FACTS
On August 30, 2016, Detroit Police Department Officer Richard Billingslea was on routine patrol with his partner, Hakim Patterson, in a fully marked scout car. The officers were in the area of 6304 Bluehill Street in Detroit when Officer Billingslea observed defendant's parked Ford F-150 pickup truck farther up the street, facing in the direction from which the officers' car was coming. Officer Billingslea, who was the sole witness at the evidentiary hearing, testified that the F-150 was "parked in the middle of the street," by which, he testified, he meant that it was impeding traffic. The officers decided to investigate the alleged traffic offense and drove to where defendant's car was parked, pulling up alongside it. As they drove down the street to the where the F-150 was located, they did not have their overhead lights activated. As discussed later, the trial court expressly found that the officer's testimony that the F-150 was "parked in the middle of the street" was false, finding instead that "[i]t looks to me like it's on the other side of the street. It certainly is not in the video in the middle of the street. The police car is in the middle of the street." The officer testified that on that August evening, before dark, the windows of the police car were down; the F-150 had tinted windows, and at least one of them was partially down. The officer's testimony regarding the windows of both vehicles is confirmed by the videotape, which is discussed later in this opinion. As the police car approached the area where defendant's car was parked, Officer Billingslea, while still inside the police car, immediately smelled a strong odor of burned marijuana. Officer Billingslea determined that he had probable cause to investigate possible offenses involving marijuana, and he and his partner then got out of the police car. They approached defendant's pickup on foot, determined that defendant was in the driver's seat, ordered him to roll his window down the rest of the way, and ordered him out of the truck. The officers handcuffed defendant and placed him in the backseat of the police car. A second individual who had been in the back seat of the F-150 also was ordered out of the truck, was investigated, and ultimately was released without charges. After the two men had been removed, the officers searched and found residue of smoked marijuana in a cup holder inside the truck. The police then continued their search, during which Officer Billingslea found the .45 caliber pistol. After arriving at the police station, the officer also wrote defendant a ticket for impeding traffic.
At some point after the occupants of the F-150 had been removed from it and the search had taken place, unidentified citizens began videotaping the events with their phones. One of the videotapes was introduced at the hearing and made part of the record.
The trial court's ruling as to the legality of the search was as follows:
Now, the officer says specifically-he said on a number of occasions the vehicle was in the middle of the street and he implicated [sic] that it was impeding traffic, and that would have to be the basis for the detention that occurred.
The officer did indicate that there was residue of marijuana in the cup holder. He said it was 100 percent marijuana. That's not really relevant for the purposes of this case. What I-when I look at the video in People's Exhibit 1, that vehicle is not in the middle of the street. It looks to me like it's on the other side of the street. It certainly is not in the video in the middle of the street. The police car is in the middle of the street.
Based on what this Court's already indicated, that would be pretext for the stop if the car would be in the middle of the street. In the video in People's Exhibit 1, it does not indicate that in the Court's opinion. So as a result, I believe that there was a violation of the Fourth Amendment pursuant to [ Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]. There was not a reasonable suspicion to approach the vehicle and the evidence garnered from that vehicle will be suppressed. [Emphasis added.]
II. STANDARD OF REVIEW
"We review for clear error a trial court's findings of fact in a suppression hearing, but we review de novo its ultimate decision on a motion to suppress." People v. Hyde , 285 Mich. App. 428, 436, 775 N.W.2d 833 (2009). "A finding of fact is clearly erroneous if, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made." People v. Everard , 225 Mich. App. 455, 458, 571 N.W.2d 536 (1997).
"We review de novo whether the Fourth Amendment was violated and whether an exclusionary rule applies." Hyde , 285 Mich. App. at 436, 775 N.W.2d 833.
III. ANALYSIS
A. FOURTH AMENDMENT PRINCIPLES
"The Fourth Amendment [of the United States Constitution] provides that 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....' " Terry , 392 U.S. at 8, 88 S.Ct. 1868. The Michigan Constitution provides the same protection as the United States Constitution. People v. Levine , 461 Mich. 172, 178, 600 N.W.2d 622 (1999).
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification." [ People v. Sinistaj , 184 Mich. App. 191, 196, 457 N.W.2d 36 (1990), quoting Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion by WHITE , J.).]
The reason that officers may freely approach citizens on the street without implicating the Fourth Amendment is because "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' "
United States v. Mendenhall , 446 U.S. 544, 553-554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), quoting United States v. Martinez-Fuerte , 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). "If there is no detention-no seizure within the meaning of the Fourth Amendment-then no constitutional rights have been infringed." Royer , 460 U.S. at 498, 103 S.Ct. 1319 (opinion by WHITE , J.).
In general, a "seizure" occurs for Fourth Amendment purposes when a reasonable person would have believed that he or she was not free to leave. Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870. However, there are circumstances in which a person will not wish to leave, not because of actions by police but for the individual's own reasons; such a person is not "seized." See Florida v. Bostick , 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Thus, a more precise definition of a seizure is "whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus." Id. at 439-440, 111 S.Ct. 2382 ; see also People v. Shabaz , 424 Mich. 42, 66, 378 N.W.2d 451 (1985). "[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs," Michigan v. Chesternut , 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), which is why in determining whether a seizure occurred, a court must consider the totality of the circumstances.
Further, while the Michigan and United States Constitutions' protections against unreasonable searches and seizures generally require a warrant to search, see Horton v. California , 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) ;
In re Forfeiture of $176,598 , 443 Mich. 261, 265, 505 N.W.2d 201 (1993), several exceptions exist such that a warrant is not always required. Relevant for the circumstances here, no warrant is required to search an automobile when the police have probable cause to believe that the vehicle contains contraband. California v. Acevedo , 500 U.S. 565, 569, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).
B. APPLICATION
In the present case, the trial court's analysis that officers violated the Fourth Amendment hinged entirely on what it called "pretext" and was premised on the trial court's finding that no traffic offense had occurred. The crucial constitutional issue in this case, as it is undisputed that the officers at some point seized defendant, is when and how that seizure occurred. There are three possible points for that: when the officers drove down the street to investigate the F-150; when the officers arrived in the police car at the location where the F-150 was parked; or when the officers got out of the police car and removed defendant from his car. The trial court never explicitly reached a conclusion on this critical point, referring only to "pretext" for "the stop" and stating that "[t]here was not a reasonable suspicion to approach the vehicle." Because we review the decision whether to suppress evidence de novo, we consider each of the possibilities. None of the three alternatives would support a finding that the officers' actions were anything other than the consensual approach of officers to an individual in a public place.
1. DRIVING DOWN THE STREET TO WHERE THE F-150 WAS LOCATED
The officers' decision to drive down the street did not implicate the Fourth Amendment. An officer does not need any level of justification to approach an individual on a public street. Instead, reasonable suspicion is only needed to detain an individual for an investigative stop.
Terry , 392 U.S. at 30-31, 88 S.Ct. 1868 ; People v. Oliver , 464 Mich. 184, 193, 627 N.W.2d 297 (2001).
The trial court found that the F-150 was not in violation of traffic laws, leaving as the only logical alternative that it was lawfully and properly parked. If so, then there was no Fourth Amendment implication at all for officers to approach the car and to observe whatever could be discerned from outside it. See People v. Barbee , 325 Mich. App. 1, 10, 923 N.W.2d 601 (2018) (stating that because the defendant did not have a reasonable expectation of privacy in a parked vehicle on a public street, "the Fourth Amendment was not implicated and there was no search when the police pulled alongside the parked car and observed defendant's movements therein"). The officers needed no justification whatsoever to drive on a public street to where defendant's car was parked, and their doing so did not implicate the Fourth Amendment. Id. Because the officers needed no justification whatsoever to drive down the street, their individual motivation for going there can be of no constitutional significance. Simply put, by merely driving down the street, for whatever reason, the officers could not effectuate a seizure. As the Supreme Court has held, evidence gathered by officers in such a situation is admissible absent their performing an action that constitutes a seizure. See Royer , 460 U.S. at 497-498, 103 S.Ct. 1319 (opinion by WHITE , J.) (stating that absent a seizure, evidence gathered by approaching an individual on the street may be "offer[ed] in evidence in a criminal prosecution" without offending the Fourth Amendment).
2. PARKING OF THE POLICE CAR IN PROXIMITY TO THE F-150
Because no seizure occurred when the officers drove down the street toward defendant's F-150, this means defendant was seized sometime afterward. See People v. Jenkins , 472 Mich. 26, 33-34, 691 N.W.2d 759 (2005) (noting that Fourth Amendment implications do not arise until "the earliest [point] at which a reasonable person might have concluded that he was not free to leave"). One such possibility is when the officers' vehicle arrived and parked at the location where the F-150 was parked. Pulling up alongside the F-150 did not, without more, constitute a "traffic stop" because the F-150 was parked and thus not moving. "A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road." Brendlin v. California , 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ; see also id . at 263, 127 S.Ct. 2400 (stating that the defendant "was seized from the moment [the] car came to a halt on the side of the road"). Therefore, no seizure occurred simply by virtue of driving up and parking alongside the F-150.
Moreover, if the F-150 was lawfully parked, as the trial court found and as the dissent emphasizes, defendant's expectation of privacy inside it, parked on a public street, was no greater than if he had been driving on a public street, as pedestrians and police officers could approach and look into his vehicle. Barbee , 325 Mich. App. at 10, 923 N.W.2d 601 ; see also United States v. Gooch , 499 F.3d 596, 603 (C.A. 6, 2007). "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." United States v. Knotts , 460 U.S. 276, 281-282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (quotation marks and citation omitted). "There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers."
Texas v. Brown , 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (citation omitted); see also Knotts , 460 U.S. at 281, 103 S.Ct. 1081 ("A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.").
Whatever else he did or did not do, Officer Billingslea did not interfere with or impede any ongoing driving by defendant; at most, his actions could have affected future driving by defendant, necessitating a different analysis. Simply referring to what took place as a "traffic stop," as if Officer Billingslea had pulled defendant over, is incorrect. The error is significant because "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision." Whren v. United States , 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, by characterizing the encounter as a "traffic stop," the trial court and the dissent necessarily preclude the possibility that the encounter was consensual, as every traffic stop constitutes a "seizure." That analytical approach is erroneous as a matter of law. See, e.g., Bostick , 501 U.S. at 439-440, 111 S.Ct. 2382.
That brings us to the manner in which the officers parked their car. It is undisputed, and the trial court found, that the police car was parked alongside the F-150. Again, however, the parking of the police car in such a manner does not constitute a seizure of the F-150 unless it blocked the F-150's path of egress. United States v. Carr , 674 F.3d 570, 572-573 (C.A. 6, 2012).
The dissent nonetheless claims that, although the officers pulled alongside defendant's vehicle, defendant objectively would have understood that he was not free to leave based solely on the proximity (within five feet of and parallel to defendant's F-150) of the police car. Again, the dissent's position is incorrect as a matter of law. The standard for determining whether an individual would have felt free to leave under such circumstances, as the United States Sixth Circuit Court of Appeals has repeatedly held, is whether the person's parked car was "blocked" in:
As a threshold matter, the stop was consensual at the point where the officers parked their unmarked police car near Carr's Tahoe. A "consensual encounter" occurs when "a reasonable person would feel free to terminate the encounter." United States v. Drayton , 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). This court has analyzed similar civilian-police encounters by determining whether the police vehicle blocked the defendant's egress. See, e.g., United States v. See , 574 F.3d 309, 313 (6th Cir., 2009) ; United States v. Gross , 662 F.3d 393, 399-400 (6th Cir., 2011). As the concurrence in See suggested, unless there is other coercive behavior, a police officer can initiate a consensual encounter by parking his police vehicle in a manner that allows the defendant to leave . See , 574 F.3d at 315 (Gilman, J., concurring). Here, the police officers parked their unmarked, black Ford Explorer at an angle in front of Carr's Tahoe. The angle of the police vehicle gave Carr sufficient room to drive either forward or backward out of the carwash bay. Although pulling forward would have required "some maneuvering" for Carr to get around the Explorer, "there was enough room that [Carr] could have just merely steered around [the Explorer]." As one of the officers testified, Carr had "ample room to steer and maneuver around our vehicle." Because the police vehicle allowed Carr to exit the carwash, albeit with "some maneuvering," Carr's car was not blocked for Fourth Amendment purposes. To conclude otherwise would be an endorsement of a "simplistic, bright-line rule" that a detention occurs "any time the police approach a vehicle and park in a way that allows the driver to merely drive straight ahead in order to leave." [ Carr , 674 F.3d at 572-573 (emphasis added).]
In fact, Carr held that notwithstanding the manner in which the police car was parked and even though, unlike in this case, the officers had activated their overhead lights, the encounter nevertheless was consensual for Fourth Amendment purposes: "The officers' use of blue lights was not sufficiently coercive to transform this encounter into a compulsory stop." Id . at 573. Instead, only if officers completely block a person's parked vehicle with a police vehicle is the person seized. Id. Thus, the dissent errs as a matter of law by relying on the manner in which the police car was parked as somehow conveying the message that defendant was not free to pull away, despite the fact that defendant's vehicle was not blocked in. The photograph on which the dissent relies, taken from the video, shows that defendant could have driven forward or in reverse to leave, with little maneuvering, let alone "with 'some maneuvering.' " Id . Defendant's vehicle was not blocked in; the police car was parked beside it. Thus, the manner in which the police car was parked did not constitute a seizure.
The dissent appears to endorse the "simplistic, bright-line rule" that Carr rejected and further errs by eliding objective evidence-whether defendant's car was blocked in-with what officers subjectively might have thought or done under different circumstances, which is an improper consideration.
Finally, whether defendant had broken any laws in parking his truck-regardless of Billingslea's subjective thoughts-is irrelevant in light of the fact that the encounter never lost its consensual character. The issue whether defendant had broken traffic laws, or at least whether there was reasonable suspicion to believe that he had done so, might be relevant if necessary to justify a Terry stop; but the actions here never rose to that level. Because we accept the trial court's finding that defendant was lawfully parked, as that finding was not clearly erroneous, the analysis here demonstrates that the encounter never lost its consensual character and thus was lawful.
3. APPROACH ON FOOT AND REMOVAL OF DEFENDANT FROM THE F-150
The undisputed evidence reflects that upon arriving in their police car in the vicinity of defendant's F-150, Officer Billingslea immediately smelled the strong odor of marijuana and at that point decided to search the vehicle on that basis. Given our conclusion that the encounter was consensual up to that point, the officers thus had probable cause to search defendant's vehicle before any seizure under the Fourth Amendment occurred. See People v. Kazmierczak , 461 Mich. 411, 421, 605 N.W.2d 667 (2000) (stating that odor of contraband, standing alone, can be sufficient to justify a finding of probable cause if smelled by a qualified person). Additionally, as previously stated, because of the motor vehicle exception to the search warrant requirement, the officer was not required to obtain a search warrant. Id . at 422, 605 N.W.2d 667. Accordingly, we hold that because there was probable cause to search the F-150, the items seized in the search were properly found and there is no basis for suppressing the results of the search at defendant's trial.
The Michigan Supreme Court's opinion in People v. Freeman , 413 Mich. 492, 320 N.W.2d 878 (1982), further illustrates why suppression was erroneous in the present case. In Freeman , in the middle of the night, two officers saw a parked car with its engine running. Id. at 493, 320 N.W.2d 878. The officers "approached the car and asked the defendant, who was alone and occupied the driver's seat, to leave the vehicle and to produce identification and a registration." Id. at 493-494, 320 N.W.2d 878. By ordering him out of the car, the officers thus "detained him," which constituted "a seizure which led to discovery of the pistol." Id. at 493, 320 N.W.2d 878. The search in Freeman thus was unlawful because the officers seized the defendant in an investigative stop before having reasonable suspicion that criminal activity was afoot. Id. at 496, 320 N.W.2d 878. Here, as in Freeman , the officers approached the car and ordered defendant out; of course, just as in Freeman , ordering defendant out constituted a seizure. The difference between this case and Freeman is that prior to ordering defendant out of his car, officers here had probable cause to search (and reasonable suspicion to detain) based on the smell of marijuana; in Freeman , there was no reasonable suspicion of any criminal activity, and the discovery of evidence justifying a search took place after the defendant had been seized, necessarily invalidating any search based on that evidence.
In sum, the trial court erroneously disregarded the fact that the officers' approach to defendant did not implicate the Fourth Amendment, and it erroneously disregarded the basis that Officer Billingslea gave for conducting the actual search of the vehicle, which was the evidence of the smell of marijuana emanating from defendant's vehicle. The officers' subjective reasons for stopping alongside the F-150 are irrelevant because regardless of intent, the police could do so in the manner in which they did without offending the Fourth Amendment. Further, while at that lawful vantage point, the officer smelled marijuana-all before any seizure occurred-which gave the officers probable cause to search the F-150 without a warrant. Consequently, the trial court erred when it excluded the evidence seized during the search on the basis that the officers needed to have a valid justification to stop next to defendant's vehicle on a public street, and we reverse the trial court's order suppressing the evidence seized.
C. THE MICHIGAN MEDICAL MARIHUANA ACT
Defendant advances an alternate reason to affirm the trial court. Defendant claims that in light of the passage of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq ., the smell of burned marijuana cannot justify criminal investigation. Defendant maintains that the more recent passage of the MMMA calls into question the Michigan Supreme Court's prior holding in Kazmierczak , which allows the smell of marijuana alone to establish probable cause. See Kazmierczak , 461 Mich. at 421, 605 N.W.2d 667.
Before we decide the merits of defendant's argument, we must first determine whether we even have authority, were we to agree with defendant, to rule in the manner he asks, i.e., to not follow a decision of our Supreme Court. It is assuredly the case that "[t]he Court of Appeals is bound to follow decisions by [the Supreme] Court except where those decisions have clearly been overruled or superseded and is not authorized to anticipatorily ignore [Supreme Court] decisions where it determines that the foundations of a Supreme Court decision have been undermined." Associated Builders & Contractors v. Lansing , 499 Mich. 177, 191-192, 880 N.W.2d 765 (2016) (emphasis omitted). It is clear that in the context in which our Supreme Court used the word "superseded, " it was including legislative actions that change the state of the law. See id. at 192, 880 N.W.2d 765 ("The Court of Appeals erred, however, by disregarding precedent from this Court that has not been clearly overruled by the Court or superseded by subsequent legislation or constitutional amendment.") (emphasis added). Thus, we do have authority to consider not adhering to Kazmierczak 's holding if the MMMA changed the law and thereby undermined the basis for Kazmierczak . Defendant argues that the MMMA did change what constitutes a marijuana offense, or at least what constitutes a defense to a charge involving marijuana, such that Kazmierczak , which was based on earlier law defining marijuana offenses, consequently is no longer fully applicable.
However, defendant's argument is not persuasive because the MMMA provides that its limited license for qualifying patients to use marijuana does not extend to activity occurring in "any public place." MCL 333.26427(b)(3)(B). This Court has held that a person using marijuana in a parked car in a parking lot open to the public is in a "public place" within the meaning of the MMMA. People v. Carlton , 313 Mich. App. 339, 347-349, 880 N.W.2d 803 (2015). Accordingly, if the MMMA does not apply to a parked vehicle in a parking lot open to the public, then it likewise could not apply to a parked vehicle on a public street. Thus, because defendant used marijuana in his truck on a public street, the protections of the MMMA did not apply to defendant and Kazmierczak applied with full force to supply probable cause for the officers to search his vehicle.
We reverse the order suppressing the firearm. And because the order of dismissal was predicated on the suppression of the evidence, we vacate the order of dismissal and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
Boonstra, J., concurred with Tukel, J.
The trial court's factual findings are sparse. Where the trial court did not make express findings as to a particular point that is pertinent to our decision, we rely on testimony by the officer and refer to those aspects of his testimony that are corroborated by video evidence. In doing so, we are not making our own factual findings but are merely describing the circumstances as reflected in the undisputed evidentiary record.
We accept the trial court's findings because they are not clearly erroneous. See MCR 2.613(C). Our analysis that the trial court erred by suppressing the gun turns on issues of law, not fact. Nevertheless, the dissent suggests that the trial court found Billingslea not credible with respect to his smelling marijuana. The trial court made no such finding, and in fact its ruling suggests the opposite. As discussed later, Officer Billingslea testified that he smelled marijuana coming from defendant's car-which the trial court recounted with no qualifications ("He approached the vehicle, and there was a strong odor of marijuana.")-and found ashes and residue inside the car, although he did not seize that evidence relating to marijuana use. In reviewing the officer's testimony regarding the ashes, the trial court stated, "That's not really relevant for the purposes of this case." Yet, because it was the marijuana that the prosecution contended provided probable cause for the search, and no marijuana had been seized or offered as evidence at the evidentiary hearing, it is difficult to imagine that if the trial court did not believe Officer Billingslea's testimony regarding marijuana use, it would have failed to express its disbelief, even if it also believed that the evidence was not otherwise "really relevant for the purposes of this case." The dissent erroneously attributes the trial court's statement about the evidence being "not really relevant for the purposes of this case" to the marijuana smell . Instead, it is clear that the court only was referring to the ashes and residue that reportedly were found after a search of defendant's truck.
The prosecution also attempted to admit the dashcam video from the officers' vehicle, but both the prosecution and defense counsel agreed that this particular video did not have "evidentiary value" for purposes of the hearing, so the trial court declined to admit it.
The trial court stated that "[t]here was not a reasonable suspicion to approach the vehicle and the evidence garnered from that vehicle will be suppressed," but as noted, officers approached the F-150 in two phases: first by driving to it, and then on foot from where they parked the police car. Either of those actions could be deemed an "approach."
An investigative stop occurs when the police briefly detain an individual, on the basis of reasonable suspicion of criminal activity, to confirm or dispel that suspicion. People v. Barbarich , 291 Mich. App. 468, 473, 807 N.W.2d 56 (2011).
This is so even if one assumes that by using the word "pretext," the trial court was implying that Officer Billingslea's testimony was knowingly false in some respects. Certainly, nothing in our opinion should be taken as countenancing perjurious testimony by a law enforcement officer, and we note that any such witness in any case is subject to a range of criminal and administrative actions. However, a criminal defendant does not have the right to the suppression of physical evidence under the exclusionary rule if the testimony in question does not ultimately bear on the constitutional issue of whether the officer's actions were unreasonable. See Davis v. United States , 564 U.S. 229, 231, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (stating that the exclusionary rule bars the introduction of evidence that was "obtained by way of a Fourth Amendment violation"); People v. Hawkins , 468 Mich. 488, 498-499, 668 N.W.2d 602 (2003) ("The exclusionary rule ... generally bars the introduction into evidence of materials seized and observations made during an unconstitutional search."). Indeed, our Supreme Court has stated:
[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. [People v. Arterberry , 431 Mich. 381, 384, 429 N.W.2d 574 (1988), quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).]
Focusing on this error is not "nit-pick[ing] the trial court's opinion," as the dissent would have it, because that focus, although brief in its opinion, led directly to the trial court using an erroneous legal standard.
While basing its analysis on those facts, the dissent nevertheless stresses subjective factors, which properly have no role here, stating that "Billingslea specifically and repeatedly asserted that Anthony was illegally parked and that the officers were stopping in order to investigate the violation." However, Fourth Amendment principles are judged on the basis of objective evidence, not an officer's subjective motivations. See Whren , 517 U.S. at 813, 116 S.Ct. 1769 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."); see also California v. Hodari D , 499 U.S. 621, 627-628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ("[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."); (quotation marks and citation omitted); id. at 628 ("Mendenhall establishes that the test for existence of a 'show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.").
The trial court did not question that the officers smelled marijuana. See Note 1, of this opinion.
According to the undisputed testimony, Officer Billingslea smelled marijuana from inside the police car, and he then ordered defendant out of the F-150. Ordering defendant out of the F-150 constituted the seizure, but at that point, as the officer correctly noted, probable cause to search the vehicle existed. That analysis would not change even if the officer had not smelled the marijuana until he approached on foot because, as noted, merely approaching a parked vehicle does not constitute a seizure.
The Court noted that even private property qualifies as long as it was open for use by the general public.
We need not determine to what extent the passage of the MMMA might have undercut Kazmierczak 's holding with respect to any nonpublic places and offer no opinion on that issue. For similar reasons, the recently enacted Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq ., would not apply to defendant. See MRTMA, § 4.1. Moreover, "[u]sually in appellate review, we look to the law as it was at the time of the judicial or administrative action from which appeal is taken," Ann Arbor Bank & Trust Co. v. Comm'r Fin. Institutions. Bureau , 85 Mich. App. 131, 136, 270 N.W.2d 725 (1978), and statutory or constitutional amendments are presumed to apply prospectively only absent clear language in them to the contrary, Brewer v. A. D. Transp. Express, Inc. , 486 Mich. 50, 55-56, 782 N.W.2d 475 (2010). Thus, we also need not determine and therefore express no opinion on whether the MRTMA has retroactive application or to what extent the passage of the MRTMA might have undercut Kazmierczak 's holding with respect to any nonpublic places. | [
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On order of the Court, the application for leave to appeal the April 5, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 12, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 16, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's April 30, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the March 27, 2019 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals as on leave granted. | [
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On order of the Court, the application for leave to appeal the April 23, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 19, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 19, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 17, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 26, 2019 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the April 23, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 28, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 13, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 4, 2019 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the March 28, 2019 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the March 12, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 13, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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By order of May 28, 2019, the prosecuting attorney was directed to answer the application for leave to appeal the February 15, 2019 order of the Court of Appeals. On order of the Court, the answer having been received, we REMAND this case to the Court of Appeals for consideration as on leave granted. | [
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On order of the Court, the motion for reconsideration of this Court's May 28, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the August 15, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 20, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the September 22, 2017 judgment of sentence in Midland Circuit Court case 16-006352-FH imposing a $150 fine. MCL 769.1k(1)(b)(i). MCL 750.413 does not authorize a fine. We REMAND case 16-006327-FH to the Midland Circuit Court for a determination of whether a DNA sample had already been submitted. If the trial court finds that a DNA sample meeting the requirements of MCL 28.176(3)
had previously been submitted, the trial court shall vacate that part of the September 22, 2017 judgment of sentence imposing a $60 DNA assessment. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 10, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's May 22, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the February 26, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 26, 2019 order of the Court of Appeals is considered. We DIRECT the Van Buren County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order.
The application for leave to appeal remains pending. | [
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Boonstra, P.J.
Defendant appeals by right his conviction, following a jury trial, of one count of identity theft, MCL 445.65(1)(a)(i ). The trial court sentenced defendant to serve one day in jail and 18 months' probation. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises from defendant's use of his ex-wife's name and Social Security number to obtain electrical service from DTE Energy (DTE) at an address located on Elm Lane in Harrison Township between 2013 and 2015. At trial, a DTE employee testified that DTE account numbers are assigned to individuals rather than to properties and that to obtain an account number, an individual must provide confidential information including his or her date of birth and Social Security number. That information is then verified through TransUnion (a company that provides credit checks) before establishing service. The DTE employee testified that a new account was opened in the name of defendant's ex-wife, Robin Mayer, for an address located on Elm Lane in Harrison Township in September 2013 (the Elm Lane account). Further, the account was associated with Mayer's Social Security number and could only have been opened by someone who was able to verify the confidential information over the phone.
Defendant admitted that the Elm Lane address was his address. He testified that he attempted to transfer his DTE service from his previous address to his new address in 2013 and that he provided his own Social Security number when he requested that the service be transferred. He denied knowing Mayer's Social Security number at the time he opened the account. However, he agreed that he had received and paid bills with Mayer's name on them.
Defendant testified that in 2002, several years after his divorce from Mayer, the name on his electric bills "randomly changed" to that of "Robin Miller," Mayer's name during their marriage, and that he was only able to change the account back into his own name after calling DTE over a period of eight months to a year. Defendant testified that he was never told why the name on his bill had changed. A DTE employee confirmed that there was another account with defendant listed as the responsible party and using his Social Security number, but that nonetheless also reflected the name of "Robin Miller." The DTE employee testified that a person whose name and Social Security number were associated with an account could change the name on the account, but not the personal information used to verify the account, such as a Social Security number.
Mayer denied providing DTE with the information to open the Elm Lane account. She testified, and a DTE employee confirmed, that she informed DTE in 2015 that she had never lived at the Elm Lane address or requested service at that address, and she requested that the service at that address be shut off. After the service was shut off, defendant called DTE and had his service reinstated under his own account that same day. DTE had no record of defendant having ever contacted it about the name and information on the Elm Lane account. Mayer testified that she had received two past-due bills for the Elm Lane account. Defendant eventually told her via text message that he had paid one of the bills, stating, "I have purchased a money order for $107. Will go in Tuesday's mail. I have never received a bill for any open payment, only bills ever received [sic] ...." Defendant testified that he never received a "final bill" for the account after the shutoff, because Mayer had asked for all correspondence related to the Elm Lane account to be forwarded to her.
After the close of proofs, the trial court discussed the proposed jury instructions with the prosecutor and defendant's counsel. Defendant's counsel answered affirmatively when the trial court asked whether he was "satisfied" with the instructions. The trial court instructed the jury regarding the elements of identity theft and stated that "[t]he prosecutor must also prove beyond a reasonable doubt that the crime occurred on or about September 3, 2013, through August 2015 in Macomb County." During deliberations, a note from the jury asked the trial court to define the word "obtain" in the context of the jury instructions on the elements of the offense. After meeting with counsel, the trial court instructed the jury: "There is no definition for obtain in the jury instructions. Please use your general knowledge and every day experience in the affairs of life to help you defined [sic] obtain." Defense counsel agreed on the record to the language of the trial court's response.
The jury convicted defendant as described. Defendant subsequently moved for a new trial, Ginther hearing, or judgment of acquittal notwithstanding the verdict, arguing that his defense counsel was ineffective for failing to make several objections, that his conviction was based on insufficient evidence, and that MCL 445.65(1)(a)(i ) was unconstitutionally vague. The trial court denied defendant's motions.
This appeal followed.
II. JURY INSTRUCTIONS
Defendant argues that the trial court erred in two respects when instructing the jury: (1) by failing to properly instruct the jury regarding the date and time of the offense for which defendant was charged, and (2) by failing to properly instruct the jury on the correct definition of the word "obtain," as used in the jury instruction regarding the elements of identity theft. Defendant also argues that his counsel was ineffective for failing to object to these instructions. We disagree.
We review for plain error an unpreserved challenge to the trial court's jury instructions. See People v. Carines , 460 Mich. 750, 764-765, 597 N.W.2d 130 (1999). An error is plain if it is "clear or obvious," and it affects substantial rights if it "affected the outcome of the lower court proceedings." Id . at 763. This Court reviews de novo issues of statutory interpretation. People v. Williams , 475 Mich. 245, 250, 716 N.W.2d 208 (2006). A defendant's ineffective assistance of counsel claim "is a mixed question of fact and constitutional law." People v. LeBlanc , 465 Mich. 575, 579, 640 N.W.2d 246 (2002). When reviewing a claim of ineffective assistance of counsel, this Court reviews for clear error a trial court's findings of fact and reviews de novo questions of law. Id . When no Ginther hearing was held, this Court's review is limited to mistakes apparent from the record. People v. Payne , 285 Mich. App. 181, 188, 774 N.W.2d 714 (2009).
A defendant may waive his or her challenge to jury instructions. See People v. Carter , 462 Mich. 206, 215-216, 612 N.W.2d 144 (2000). Waiver extinguishes any error, leaving nothing for this Court to review. Id . at 216, 612 N.W.2d 144. A defendant waives an issue by expressly approving of the trial court's action. Id . at 216. When the trial court asks whether a party has any objections to the jury instructions and the party responds negatively, it is an affirmative approval of the trial court's instructions. People v. Lueth , 253 Mich. App. 670, 688, 660 N.W.2d 322 (2002).
In this case, defense counsel expressly affirmed that he had no objections to the trial court's jury instructions. Defendant has therefore waived this issue. Notwithstanding this waiver, we also find no plain error in the instructions.
A. DATE AND TIME OF OFFENSE
Defendant argues that the trial court should have instructed the jury that it must find that defendant committed all the elements of the offense of identity theft on the day that he opened the account, rather than within a range of dates encompassing the date on which the account was opened. We disagree.
"A criminal defendant has a constitutional right to have a jury determine his or her guilt from its consideration of every essential element of the charged offense." People v. Kowalski , 489 Mich. 488, 501, 803 N.W.2d 200 (2011). A defendant is entitled to have the elements of the crime submitted to the jury in a way that is "neither erroneous nor misleading[.]" Id . (quotation marks and citation omitted). However, "an imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights." Id . at 501-502, 803 N.W.2d 200.
This Court has stated that if time is not an element of the charged offense, the prosecution need not prove the date and time of the offense beyond a reasonable doubt even though the felony information must identify the date and time of the offense. People v. Dobek , 274 Mich. App. 58, 82-83, 732 N.W.2d 546 (2007). The criminal statute at issue in this case, MCL 445.65, provides in relevant part:
(1) A person shall not do any of the following:
(a) With intent to defraud or violate the law, use or attempt to use the personal identifying information of another person to do either of the following:
(i ) Obtain credit, goods, services, money, property, a vital record, a confidential telephone record, medical records or information, or employment.
The trial court instructed the jury as follows:
The defendant is charged with a crime of using the personal identifying information of another person to obtain services. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant used the personal identifying information of Robin formally [sic] known as Miller Mayer [sic]. Second, that the defendant did this with the intent to obtain services. Third, that the defendant did this with the intent to defraud. When I say someone must act with intent to defraud, I mean act to cheat or deceive, usually to get money, property or something else valuable or to make someone suffer such a loss. The prosecutor must also prove beyond a reasonable doubt that the crime occurred on or about September 3, 2013, through August 2015 in Macomb County.
Although the trial court instructed the jury that it was required to make a finding that the offense occurred within a specific time period, the prosecution was not actually required to prove the timing of the offense as an element of the crime of identity theft. Dobek , 274 Mich. App. at 82-83, 732 N.W.2d 546. The trial court's instructions properly reflected that, to find defendant guilty of identity theft, the jury must find that he (1) used Mayer's personal identifying information, (2) to obtain services, (3) with the intent to defraud. On the whole, the trial court's instructions submitted the essential elements of the crime to the jury in a way that was not confusing, erroneous, or misleading. Kowalski , 489 Mich. at 501, 803 N.W.2d 200.
B. DEFINITION OF "OBTAIN"
Defendant argues that the instruction regarding the range of dates, combined with the trial court's refusal to instruct the jury on a specific definition of "obtain," led the jury to mistakenly conclude that it could find that defendant committed the offense of identity theft when defendant continued to receive services from the Elm Lane account, even if it believed that he had not initially provided Mayer's personal information to DTE. We disagree, because the jury was permitted to conclude that defendant committed identity theft even if it did not conclude that he provided Mayer's personal information to DTE in September 2013.
This Court interprets statutes on the basis of their plain and ordinary language. Williams , 475 Mich. at 250, 716 N.W.2d 208. We may consult a dictionary to determine the meaning of undefined statutory terms. People v. Lewis , 302 Mich. App. 338, 342, 839 N.W.2d 37 (2013). When doing so, we must "determine the most pertinent definition" in light of the word's context in the statute. People v. Hershey , 303 Mich. App. 330, 342, 844 N.W.2d 127 (2013) (quotation marks and citation omitted).
MCL 445.65 does not state that it is illegal to provide personal information to another in order to obtain services. Rather, the statute provides that a person shall not "use or attempt to use the personal identifying information of another person ... [to] [o]btain ... services ...." MCL 445.65(1)(a)(i ) (emphasis added). The word "obtain" is not defined in the identity-theft statute. See MCL 445.65. Consulting a dictionary indicates that the verb "obtain" has only one modern definition, which is "to gain or attain usu[ally] by planned action or effort[.]" Merriam-Webster's Collegiate Dictionary (11th ed.). The question thus is whether defendant used Mayer's information to gain or attain services, not whether defendant was the person who gave Mayer's information to DTE upon the opening of the account. In other words, the word "obtain," in the context of the statute, can mean either to initially receive a service or to continue to attain the service by use of the information. Therefore, even accepting defendant's argument that he did not provide DTE with Mayer's information (that is, that defendant did not initially gain the service by using Mayer's information ), defendant attained the service through his continued use of Mayer's information. A DTE employee testified that power at the Elm Lane address was provided through Mayer's account starting on September 30, 2013. Defendant was aware for months before August 2015 that he was receiving mail in Mayer's name. When Mayer advised DTE that she had no association with the Elm Lane address, service at that address was turned off. But defendant used Mayer's information to gain or attain electrical service at his Elm Lane residence until that shutoff occurred in August 2015. Accordingly, even if the trial court's instruction that the offense dates were September 3, 2013, through August 2015 led the jury to question the meaning of the word "obtain," its common dictionary definition encompassed both the initial receipt of service and the continued attainment of that service thereafter.
Moreover, the trial court did not err by failing to specifically instruct the jury on the meaning of "obtain." "Where confusion is expressed by a juror, it is incumbent upon the court to guide the jury by providing a 'lucid statement of the relevant legal criteria'." People v. Martin , 392 Mich. 553, 558, 221 N.W.2d 336 (1974), quoting Bollenbach v. United States , 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946). The trial court's instructions must adequately provide the jury with a sufficient understanding of the elements of the crime. Martin , 392 Mich. at 558, 221 N.W.2d 336. However, whether to provide additional instructions at the jury's request is within the court's discretion. Id .
When a word is not defined by statute, this Court presumes that the word is subject to ordinary comprehension, and "there will be no error warranting reversal as a result of a trial court's failure to define a term that is generally familiar to lay persons and is susceptible of ordinary comprehension." People v. Martin , 271 Mich. App. 280, 352, 721 N.W.2d 815 (2006). For example, this Court has stated that the trial court's failure to define terms such as "keep," "maintain," and "operate" was not error requiring reversal because the terms were susceptible to ordinary comprehension. Id . at 352-353, 721 N.W.2d 815. As previously stated, the verb "obtain" has only one modern definition. Merriam-Webster's Collegiate Dictionary (11th ed.). And the verb "obtain" is not significantly less common than other words this Court has concluded are susceptible to ordinary comprehension.
For the same reasons, we also conclude that had defense counsel objected to the instructions on the grounds asserted by defendant, those objections would have been futile. Counsel is not ineffective for failing to make futile objections. People v. Ericksen , 288 Mich. App. 192, 201, 793 N.W.2d 120 (2010).
III. AMENDMENT OF THE INFORMATION
Defendant also argues that the trial court erred by allowing the prosecution to amend the information to reflect the time period from September 2013 to August 2015, or alternatively that his counsel was ineffective for failing to object to the amendment. We disagree. We review unpreserved issues for plain error. See Carines , 460 Mich. at 764-765, 597 N.W.2d 130.
Defendant's counsel specifically stated that he had no objection to the amendment of the information. Defendant thus has waived this issue. Carter , 462 Mich. at 216, 612 N.W.2d 144 ; Kowalski , 489 Mich. at 504-505, 803 N.W.2d 200. Notwithstanding this waiver, the trial court did not err, plainly or otherwise, by allowing the prosecution to amend the information.
An information shall inform the defendant of the nature of the offense charged and "[t]he time of the offense as near as may be." MCL 767.45(1)(a) and (b). However, "[n]o variance as to time shall be fatal unless time is of the essence of the offense." MCL 767.45(1)(b) ; see also Dobek , 274 Mich. App. at 82-83, 732 N.W.2d 546. The trial court should grant the prosecution's motion to amend an information unless amendment would result in "unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend." People v. Hunt , 442 Mich. 359, 364, 501 N.W.2d 151 (1993).
Defendant argues that the trial court erred by allowing the prosecution to amend the information because the date on which the offense was committed was of "utmost importance" given that "[t]he facts at preliminary examination and at trial only supported a finding for one alleged date of the identity theft, September 3, 2013." We disagree. As discussed, time is not an element of the offense of identity theft. See MCL 445.65. Accordingly, time was not of the essence in this case, and the variance in time was not fatal to the information. MCL 767.45(1)(b) ; see also Dobek , 274 Mich. App. at 82-83, 732 N.W.2d 546.
Moreover, the amendment did not unacceptably prejudice defendant. The prosecution moved to amend the information on the first day of trial. However, the prosecutor had stated on the record several months before trial, in opposing defendant's motion to set aside his plea, that defendant was guilty of identity theft for continuing to use Mayer's identity "each additional month that the bill goes on." Defendant has not demonstrated that he suffered unacceptable prejudice from the amendment of the information. Hunt , 442 Mich. at 364, 501 N.W.2d 151. And again, defendant's counsel was not ineffective for failing to make a futile objection to the amendment of the information. Ericksen , 288 Mich. App. at 201, 793 N.W.2d 120.
IV. PROSECUTORIAL ERROR
Defendant argues that the trial court erred by allowing the prosecutor to make misstatements of the law that prejudiced defendant or, in the alternative, that his counsel was ineffective for failing to object to those statements. We disagree. We review unpreserved claims of prosecutorial error for plain error affecting a defendant's substantial rights. People v. Unger , 278 Mich. App. 210, 235, 749 N.W.2d 272 (2008).
Prosecutorial error occurs if the prosecution's actions deny the defendant a fair and impartial trial. Dobek , 274 Mich. App. at 63, 732 N.W.2d 546. A prosecutor may deny a defendant's right to a fair trial by making improper remarks that infringe a defendant's constitutional rights or by making remarks that "so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). A prosecutor's clear, uncorrected misstatement of the law may deprive the defendant of a fair trial. People v. Grayer , 252 Mich. App. 349, 357, 651 N.W.2d 818 (2002). However, if the trial court correctly instructs the jury on the law, the prosecutor's erroneous legal argument may be cured. Id .
Here, the prosecutor stated during his opening statement that the jury could find defendant guilty of identity theft even if it found that he did not provide DTE with Mayer's information because "[h]e continued to operate, continued to get the bills, continued to pay, admittedly, using her name, her social security number." During his closing argument, the prosecutor similarly stated that "the defendant used personal identifying information of Robin Miller [sic]. ... It was a dispute about whether he opened it purposefully or not, but even if he didn't open it purposefully, he still recognized at least six months according to his own words that the account was in her name and he kept it there and kept using it." As we have discussed, the jury could in fact have found defendant guilty without finding that he was the one who provided Mayer's personal information when the account was opened. Further, as we have also discussed, any error was cured by the trial court's correct instruction on the applicable law. For the same reasons, defendant's counsel was not ineffective for failing to challenge the prosecutor's statements. Ericksen , 288 Mich. App. at 201, 793 N.W.2d 120.
V. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that the evidence was insufficient to support his conviction for identity theft. We disagree. This Court reviews de novo a defendant's challenge to the sufficiency of the evidence supporting his or her conviction. People v. Meissner , 294 Mich. App. 438, 452, 812 N.W.2d 37 (2011). We review the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecution proved the crime's elements beyond a reasonable doubt. Id . Conflicting evidence and disputed facts are to be resolved by the trier of fact. See People v. Yost , 468 Mich. 122, 133 n. 14, 659 N.W.2d 604 (2003). Minimal circumstantial evidence and reasonable inferences can sufficiently prove the defendant's state of mind, knowledge, or intent. People v. Kanaan , 278 Mich. App. 594, 622, 751 N.W.2d 57 (2008). Establishing an intent to defraud requires the prosecution to show that defendant acted with an intent to cheat or deceive. People v. Brown , 239 Mich. App. 735, 747, 610 N.W.2d 234 (2000).
Again, MCL 445.65 provides in pertinent part:
(1) A person shall not do any of the following:
(a) With intent to defraud or violate the law, use or attempt to use the personal identifying information of another person to do either of the following:
(i ) Obtain ... services ....
Defendant argues that there was no evidence presented that he gave Mayer's information to DTE. As discussed earlier, providing another's personal information to a utility or other service provider is not an element of the offense. Moreover, a DTE employee testified that the account on Elm Lane could only have been created by someone providing Mayer's Social Security number over the phone. Defendant, Mayer's ex-husband, would have had access to Mayer's Social Security number at some point. Defendant admitted to calling DTE to set up an account for Elm Lane in September 2013. Although defendant denied having Mayer's Social Security number and testified that he believed that DTE had erroneously caused Mayer's information to be entered on his account, the jury was free to disbelieve defendant.
Moreover, even accepting defendant's claim that he did not provide DTE with Mayer's information, there was sufficient evidence to establish that defendant used Mayer's information to obtain services because the prosecution established that defendant was aware that DTE services were provided to defendant's address under Mayer's information for several months, yet continued to avail himself of that service. Defendant testified that he had received bills with Mayer's name on them. A DTE employee testified that the bills for the account were paid by money order, and that defendant had never sought to correct the information on the account. Defendant paid the bills for the account, and when Mayer received a past-due bill, defendant paid it without commenting on the fact that the account was in Mayer's name. Viewed in the light most favorable to the prosecution, there was enough evidence for a rational trier of fact to determine beyond a reasonable doubt that defendant was guilty of using Mayer's information to obtain services. Meissner , 294 Mich. App. at 452, 812 N.W.2d 37.
Defendant also argues that there was insufficient evidence of his intent to defraud. We disagree. A defendant's imposition of loss on another may be evidence of an intent to defraud. Brown , 239 Mich. App. at 747, 610 N.W.2d 234. Mayer testified that she received past-due bills from DTE, and that her credit was negatively affected by defendant's failure to pay in a timely fashion, although defendant ultimately paid the bills. The record also reflects that a federal tax lien was placed on Mayer's home, although the home was in her new husband's name. Mayer's testimony establishes that she suffered a loss from defendant's conduct. Additionally, defendant paid the bills on the account and never sought to correct the account information; yet when Mayer terminated the service defendant was able to activate service in his own name that same day, suggesting that defendant knew that he could have rectified the situation relatively easily if he had been so inclined. This evidence, viewed in the light most favorable to the prosecution, Meissner , 294 Mich. App. at 452, 812 N.W.2d 37, and with minimal circumstantial evidence being necessary to show intent, Kanaan , 278 Mich. App. at 622, 751 N.W.2d 57, suffices to allow a reasonable jury to conclude defendant had the intent to defraud, Brown , 239 Mich. App. at 747, 610 N.W.2d 234.
VI. CONSTITUTIONALITY OF MCL 445.65(1)
Defendant also argues that MCL 445.65(1) is unconstitutionally vague because it fails to give fair notice of what behavior it prohibits. We disagree. We review for plain error an unpreserved challenge to the constitutionality of a statute. People v. Lawhorn , 320 Mich. App. 194, 197 n. 1, 907 N.W.2d 832 (2017). We review de novo issues of statutory interpretation. See Williams , 475 Mich. at 250, 716 N.W.2d 208.
The void-for-vagueness doctrine is derived from the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and Article 1, § 17 of the Michigan Constitution, which guarantee that the state may not deprive a person of life, liberty, or property without due process of law. People v. Roberts , 292 Mich. App. 492, 497, 808 N.W.2d 290 (2011). "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." People v. Boomer , 250 Mich. App. 534, 539, 655 N.W.2d 255 (2002), quoting Grayned v. City of Rockford , 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (quotation marks omitted). A penal statute is unconstitutionally vague if (1) it does not provide fair notice of the prohibited conduct, (2) it encourages arbitrary or discriminatory enforcement, or (3) its coverage is overbroad and impinges on First Amendment freedoms. Boomer , 250 Mich. App. at 539, 655 N.W.2d 255. Defendant does not contend that MCL 445.65(1) impinges on First Amendment freedoms.
Defendant argues that MCL 445.65(1) fails to provide fair notice of what conduct it prohibits because it fails to define the terms "use" or "obtain." We disagree. A statute provides fair notice when it "give[s] a person of ordinary intelligence a reasonable opportunity to know what is prohibited." Roberts , 292 Mich. App. at 497, 808 N.W.2d 290. Fair notice exists when the statute's meaning can be determined by referring to judicial interpretations, common law, dictionaries, treatises, or the common meanings of words. People v. Beam , 244 Mich. App. 103, 105, 624 N.W.2d 764 (2000).
We have already concluded that the verb "obtain" is a commonly used term capable of being interpreted through the use of a dictionary or through common usage. The verb "use" is also defined in the dictionary, with the most common definition being "to put into action or service : avail oneself of," but also "to carry out a purpose or action by means of," among other definitions. Merriam-Webster's Collegiate Dictionary (11th ed.). And the word "use" is extremely common. We find unpersuasive defendant's argument that a prohibition against "us[ing]" another's personal information to "obtain services" would not provide fair notice to a person of ordinary intelligence that the statute also prohibited continuing to receive such services with the intent to defraud, even if the person charged had not initially provided the other person's personal information in order to begin obtaining services. Roberts , 292 Mich. App. at 497, 808 N.W.2d 290.
Defendant also asserts that the statute permits arbitrary enforcement because "almost everyone has problems with bills from one company or another...." But defendant provides no significant argument or citation of legal authority. "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." People v. Harris , 261 Mich. App. 44, 50, 680 N.W.2d 17 (2004). Nonetheless, we note that the statute requires proof of the intent to defraud. The intent to defraud is the specific intent to cheat or deceive. Brown , 239 Mich. App. at 747, 610 N.W.2d 234 (2000). Specific-intent requirements generally alleviate vagueness concerns. See id . at 747, 750-751, 610 N.W.2d 234. Contrary to defendant's argument, the statute does not permit the conviction of persons who accidentally or innocently receive or pay for services meant for another. We conclude that the statute does not provide for arbitrary enforcement.
Affirmed.
Sawyer and Tukel, JJ., concurred with Boonstra, P.J.
People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973).
Whether defendant could have had service at the address under his own account is irrelevant to the meaning of "obtain" because the service in fact was provided through an account using Mayer's information. Defendant reinitiated the service using his own information the same day that DTE discontinued power at the Elm Lane address at Mayer's request. The jury could certainly have considered this fact in relation to defendant's fraudulent intent, or lack thereof, but it has nothing to do with whether defendant used Mayer's information or whether defendant obtained a service by doing so.
The Corpus of Contemporary American English is a database containing "more than 560 million words of text (20 million words each year 1990-2017)" that are "equally divided among spoken, fiction, popular magazines, newspapers, and academic texts." Davies, Corpus of Contemporary American English, < < https://www.english-corpora.org/coca/>> [https://perma.cc/Y7KA-SHK3]. Our Supreme Court has stated that the Corpus provides empirical data regarding the ordinary usage of words in a way that is both quantifiable and verifiable. People v. Harris , 499 Mich. 332, 347, 885 N.W.2d 832 (2016). It contains 12,207 instances of the word "obtain," comparable with the 14,747 instances of the word "operate," which this Court has determined has a self-evident meaning. See Martin , 271 Mich. App. at 352, 721 N.W.2d 815.
Although defendant refers to his claim as one of "prosecutorial misconduct," this Court has stated that "the term 'misconduct' is more appropriately applied to those extreme ... instances where a prosecutor's conduct violates the rules of professional conduct or constitutes illegal conduct," but claims "premised on the contention that the prosecutor made a technical or inadvertent error at trial" are "more fairly presented as claims of 'prosecutorial error....' " People v. Cooper , 309 Mich. App. 74, 88, 867 N.W.2d 452 (2015). Nevertheless, regardless of "what operative phrase is used, [this Court] must look to see whether the prosecutor committed errors during the course of trial that deprived defendant of a fair and impartial trial." Id ., citing People v. Aldrich , 246 Mich. App. 101, 110, 631 N.W.2d 67 (2001). Here, we will refer to defendant's claim as prosecutorial error because defendant argues that the prosecutor made "misstatements of the law that were never corrected" by the trial court. | [
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On order of the Chief Justice, the separate motions of the Ford Motor Company and the Michigan Self-Insurers' Association to file briefs amicus curiae are GRANTED. The amicus briefs filed by those respective entities on May 24, 2019, and July 2, 2019, are accepted for filing. | [
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On order of the Court, the application for leave to appeal the February 13, 2019 judgment of the Court of Appeals is considered. We DIRECT the Macomb County Prosecuting Attorney to file a response to the application for leave to appeal within 28 days after the date of this order. The prosecutor shall address whether a prosecuting attorney's office may unilaterally block an individual seeking placement in a mental health court from the "preadmission screening and evaluation assessment" required by MCL 600.1093(3), which, pursuant to Subsection (3)(c) of that statute, must include "[a] mental health assessment, clinical in nature, and using standardized instruments that have acceptable reliability and validity, meeting diagnostic criteria for a serious mental illness, serious emotional disturbance, co-occurring disorder, or developmental disability."
The application for leave to appeal remains pending. | [
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On order of the Court, the application for leave to appeal the October 17, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the June 20, 2019 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted, and DIRECT that court to decide the case on an expedited basis. | [
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On order of the Chief Justice, the motion of defendant-appellant to file a pro per supplement to the application for leave to appeal is GRANTED. The pro per supplement submitted on June 25, 2019, is accepted for filing. | [
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On order of the Chief Justice, the motion of defendants-appellants to extend the time for filing their reply is GRANTED. The reply will be accepted as timely filed if submitted on or before July 10, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before July 17, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing his supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before August 16, 2019. | [
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On order of the Court, the application for leave to appeal the January 17, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 20, 2018 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals judgment pertaining to respondent-mother, and we REMAND this case to that court for further consideration.
On remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Wayne Circuit Court Family Division for that court to reconsider its November 6, 2017 order finding jurisdiction and its February 7, 2018 order terminating respondent-mother's parental rights to JMM and AIDB. The circuit court shall be directed to specifically address: (1) whether there is sufficient evidence that respondent-mother either engaged in the abuse of PES or failed to protect PES from the abuse, resulting in a reasonable likelihood that JMM and AIDB would suffer harm, injury, or abuse in the foreseeable future if placed in respondent-mother's home, taking into consideration, among other evidence, whether respondent-mother was attentive to PES's medical needs by taking PES to five doctor appointments during the approximate five-week period PES was in her care; the significance of evidence that medical professionals did not observe signs of physical abuse on PES during the child's medical appointments; testimony that respondent-mother was not told by PES's father that he twice dropped PES; and whether respondent-mother knew the cause of the non-accidental trauma inflicted on PES and attempted to conceal it, see In re Ellis , 294 Mich.App. 30, 32-36, 817 N.W.2d 111 (2011), and (2) whether termination is in JMM's and AIDB's best interests, taking into consideration, among other evidence, the lack of evidence of domestic violence, abuse, or CPS involvement with respect to JMM and AIDB; the children's bond to respondent-mother; evidence of suitable housing, income, and family support; respondent-mother's visitation with JMM and AIDB; respondent-mother's January 15, 2019 divorce from PES's father; and whether respondent-mother would benefit from a case service plan. The circuit court may, in its discretion, receive proofs or hold an evidentiary hearing. The circuit court shall be directed to forward to the Court of Appeals a written opinion addressing the above issues within 42 days of the Court of Appeals remand order. The Court of Appeals is DIRECTED to expedite its consideration and resolution of this case.
We do not retain jurisdiction. | [
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On order of the Chief Justice, the motion to substitute Nicole McLean, Personal Representative of the Estate of Linda York, as the named plaintiff-appellant is GRANTED. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before September 18, 2019. | [
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On order of the Chief Justice, the amici curiae representing each side of the constitutional question shall be allowed 15 minutes of oral argument separate from that of the Solicitor General and Deputy Solicitor General, to be divided in their discretion. The amici curiae must inform the clerk of the Court by July 11, 2019, the names of those attorneys who will be arguing for and against the constitutionality of 2018 PA 368 & 369. | [
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On order of the Court, the application for leave to appeal the December 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the November 14, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the February 4, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 judgment of the Court of Appeals is considered, and, it appearing to this Court that the case of WA Foote Mem. Hosp. v. Mich. Assigned Claims Plan (Docket No. 156622) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 4, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 8, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the December 7, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the November 26, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 28, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal prior to decision by the Court of Appeals is considered, and it is DENIED, because the Court is not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals. | [
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On order of the Court, the application for leave to appeal the February 28, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 14, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 7, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 17, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 22, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J., did not participate due to her prior relationship with Garan Lucow Miller, P.C. | [
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On order of the Court, the application for leave to appeal the December 27, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 13, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the December 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the November 9, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the February 15, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 5, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motions to add issue and for leave to file supplemental application are GRANTED. The application for leave to appeal the December 6, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 11, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On January 24, 2019, the Court heard oral argument on the application for leave to appeal the May 12, 2017 order of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 16, 2018 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed whether MCL 388.1752b violates Const. 1963, art. 8, § 2.
Public Funds Public Schools is invited to file a brief amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Chief Justice, the motion of defendant-appellant to file a pro per supplement to the application for leave to appeal is GRANTED. The pro per supplement submitted on April 5, 2019, is accepted for filing. | [
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On order of the Chief Justice, the motion for the temporary admission of out-of-state attorney Wayne L. Robbins, Jr., to appear and practice in this case under MCR 8.126(A) is GRANTED. | [
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On order of the Court, the motion for immediate consideration and to stay is GRANTED. The application for leave to appeal the March 7, 2019 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted and DIRECT that court to decide this case on an expedited basis. Trial court proceedings are stayed pending the completion of this appeal. On motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or if other appropriate grounds appear. | [
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By order of May 2, 2017, the application for leave to appeal the September 29, 2016 judgment of the Court of Appeals was held in abeyance pending the decisions in People v Skinner and People v Hyatt . On order of the Court, the cases having been decided on June 20, 2018, 502 Mich 89, 917 N.W.2d 292 (2018), the application is again considered. It appearing to this Court that the case of People v Masalmani (Docket No. 154773) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. The motion to remand is DENIED. | [
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On order of the Chief Justice, the motion of defendant-appellee to extend the time for filing its answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before April 30, 2019. | [
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On order of the Court, the application for leave to appeal the February 5, 2019 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of In re Ferranti (Docket No. 157907) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Chief Justice, the motion of defendant-appellee to extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer submitted on April 1, 2019, is accepted as timely filed. | [
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By order of May 2, 2017, the application for leave to appeal the September 22, 2016 judgment of the Court of Appeals was held in abeyance pending the decision in People v Hyatt (Docket No. 153081). On order of the Court, the case having been decided on June 20, 2018, 502 Mich 89, 917 N.W.2d 292 (2018), the application is again considered. It appearing to this Court that the case of People v Masalmani (Docket No. 154773) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Chief Justice, the motion of attorney Suzanna Kostovski to extend the time for filing her response in accordance with this Court's order of March 5, 2019, is GRANTED. The response will be accepted as timely filed if submitted on or before April 30, 2019. | [
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On order of the Court, the application for leave to appeal the June 2, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before April 19, 2019. | [
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On order of the Court, the application for leave to appeal the June 8, 2017 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered and, it appearing to this Court that the case of People v Masalmani (Docket No. 154773) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present applications for leave to appeal, we ORDER that the applications be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the November 29, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of People v Turner (Docket No. 158068) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the May 17, 2018 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall address: (1) whether a legal misconception concerning a defendant's sentence on one count renders the sentences for other counts arising out of the same transaction invalid; (2) whether the requirements for a motion for relief from judgment must be satisfied before a defendant may be resentenced on other counts where a change in the law requires resentencing for one count, or whether a trial court may exercise its discretion to resentence on other counts where resentencing is required for one count; and (3) if the latter, what parameters apply to the exercise of the court's discretion when deciding whether to resentence on other counts. The time for oral argument shall be 20 minutes for each side. MCR 7.314(B)(1).
The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the application for leave to appeal the March 8, 2018 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered and, it appearing to this Court that the case of People v. Turner (Docket No. 158068) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present applications for leave to appeal, we ORDER that the applications be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the motion for miscellaneous relief is GRANTED in part as to the defendant's request to amend. In all other respects, the motion for miscellaneous relief is DENIED. The application for leave to appeal the January 24, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On January 24, 2019, the Court heard oral argument on the application for leave to appeal the December 27, 2016 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, VACATE the defendant's convictions and sentences, and REMAND this case to the Wayne Circuit Court for a new trial.
In 2015, the defendant was convicted of assault with intent to commit murder, MCL 750.83, assault with a dangerous weapon, MCL 750.82(1), intentionally discharging a firearm from a motor vehicle, MCL 750.234a(1), and possession of a firearm during the commission of a felony, MCL 750.227b(1). The defendant filed a direct appeal and moved to supplement it when he discovered a new witness with exculpatory evidence. The Court of Appeals remanded to the trial court for an evidentiary hearing on the defendant's claims relating to the new evidence.
The trial court denied the defendant's motion for a new trial, holding that as a matter of law-because the eyewitness had a criminal history-his testimony could not make the probability of a different result likely on retrial. The court did not otherwise evaluate the effect the witness's testimony would have had on the result. In an unpublished per curiam opinion, issued December 27, 2016 (Docket No. 328532), the Court of Appeals affirmed the defendant's conviction but remanded the case to the trial court to review his sentences under People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015).
A new trial should be granted on the basis of newly discovered evidence when a defendant shows: "(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial." People v. Cress , 468 Mich. 678, 692, 664 N.W.2d 174 (2003) (quotation marks and citation omitted). The parties agree that the defendant met the first three elements. Only the fourth, prejudice, is in dispute.
The prosecution's case centered on the believability of the victim. The victim testified that a person with long dreadlocks driving a red Mercury Mountaineer shot five or six bullets at him before driving away. He identified the defendant-who had the described hairstyle-in a photo lineup. But the jury also heard that the victim had a criminal conviction involving theft and that he admitted to lying to a physical therapist about his injuries and again under oath at the defendant's preliminary hearing about his middle name.
At the posttrial evidentiary hearing, the newly discovered witness testified that on the day of the shooting, he was in the neighborhood for an unrelated encounter. He was never a suspect in the crime and had no connection to either the defendant or the victim. The defendant found this witness after his mother learned from a family friend at a funeral that he may have witnessed the shooting and hired a private investigator to locate him based only on his social media alias. This witness's account differed from the victim's considerably. He saw no red vehicle; instead, he testified that the shooter, whose hairstyle was short, with brush waves in a circular pattern, approached the victim on foot from in between two houses, fired at least three shots, and ran back in the same direction he came from after the victim fell to the ground.
The eyewitness's testimony plainly undermined the prosecution's evidence. But the trial court did not evaluate that question, instead holding that the witness's criminal history made him not credible as a general matter. The Court of Appeals majority affirmed but with additional reasoning-that the witness would not have been believed due to his criminal history and the fact that his version of the shooting differed from the victim's. Alternatively, the majority believed that the witness would not be believable due to his distrust of the criminal justice system.
This is an unusual case because the trial court did not make findings of fact that are owed deference. Its holding that the witness is not credible solely as a result of his criminal conviction was erroneous. And we disagree with the Court of Appeals majority's analysis that the new testimony did not make a different result probable on retrial. The prosecution's evidence was not overwhelming, and the new witness's testimony would have undermined that evidence significantly. Notwithstanding his criminal record, this disinterested witness's detailed account makes a different result probable on retrial. | [
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By order of May 2, 2017, the application for leave to appeal the September 22, 2016 judgment of the Court of Appeals was held in abeyance pending the decisions in People v Skinner (Docket No. 152448 ) and People v Hyatt (Docket No. 153081 ). On order of the Court, the cases having been decided on June 20, 2018, 502 Mich 89, 917 N.W.2d 292 (2018), the application is again considered, and it is GRANTED, limited to the issue whether, in exercising its discretion to impose a sentence of life without parole (LWOP), the trial court properly considered the "factors listed in Miller v Alabama , [567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407] (2012)" as potentially mitigating circumstances. MCL 769.25(6). See also Skinner , 502 Mich at 113-116, 917 N.W.2d 292. In particular, the parties shall address: (1) which party, if any, bears the burden of proof of showing that a Miller factor does or does not suggest a LWOP sentence; (2) whether the sentencing court gave proper consideration to the defendant's "chronological age and its hallmark features," Miller , 567 U.S. at 477-478, 132 S.Ct. 2455, by focusing on his proximity to the bright line age of 18 rather than his individual characteristics; and (3) whether the court properly considered the defendant's family and home environment, which the court characterized as "terrible," and the lack of available treatment programs in the Department of Corrections as weighing against his potential for rehabilitation. The time allowed for oral argument shall be 20 minutes for each side. MCR 7.314(B)(1). The motion to remand is DENIED.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the application for leave to appeal the October 9, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 24, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motion to remand is DENIED. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the December 13, 2018 order of the Court of Appeals, accepted for filing as to Issue III only, is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 10, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the September 27, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motions for dismissal and for sanctions, damages, and determination of vexatious litigators are DENIED. | [
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On order of the Court, the application for leave to appeal the October 31, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 19, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 25, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 19, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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