Sufficiency of evidence; Third-degree fleeing & eluding; MCL 257.602a(3); Awareness of order to stop; Intent to flee or elude; People v Grayer; Domestic violence; MCL 750.81(2); Assault or battery; People v Terry

The court held that sufficient evidence supported defendant’s third-degree fleeing-and-eluding and domestic-violence convictions. Following a bench trial, defendant was convicted after a neighbor dispute involving police and an altercation with his sister. On appeal, the court first held that the evidence supported his fleeing-and-eluding conviction because the dashcam video showed his vehicle was already moving when Officer J ordered him to stop, and the officers later activated the patrol vehicle’s lights and siren while he was driving. The court rejected defendant’s claim that he was unaware of the order, noting the trial court could credit Officer J’s testimony that the window was down and that “a reasonable person would have been able to hear the siren” regardless. It also held that the evidence supported an intent to flee or elude because defendant accelerated backward down the street, drove away after the lights and siren were activated, and appeared not to come to a complete stop at a stop sign while the patrol vehicle followed. The court next held that sufficient evidence supported domestic violence. Although defendant and his sister testified he tried to hug her, Officer G testified he saw defendant shove her, and another witness saw her fall backward as if pushed. The court reasoned that even under defendant’s version of events, a rational factfinder could find his sister “apprehended an immediate battery” when she rejected his attempted hug. Affirmed.

Modified jury instructions on ethnic intimidation under former MCL 750.147b; MCL 750.147b(1)(c) (threatening the complainant); “True threat”; Counterman v Colorado; The relevant mens rea; “Reasonable cause” language in the instruction

In an interlocutory appeal, the court agreed with the prosecution’s challenges to the modified jury instruction adopted by the trial court as to defendant’s ethnic intimidation charge under former MCL 750.147b(1)(c). Thus, it reversed the trial court’s order to the extent that it was inconsistent with the court’s opinion, and remanded. Defendant was charged with threatening the complainant. Thus, the court reviewed Counterman, which “clarified the circumstances in which an individual can be criminally liable for making a ‘true threat[.]’” The prosecution argued that the trial court improperly lessened its “burden of proof in two ways.” First, it asserted that MCL 750.147b(1)(c) required it “to prove that a defendant acted with the mens rea of malice—that he or she ‘maliciously’ made a threat—and that the trial court’s instruction only requires that [it] prove that the defendant made a threat with the lesser mens rea of recklessness.” The court agreed. It also agreed with the prosecution’s second argument, concerning the removal of “the ‘reasonable cause’ language from the first paragraph of” the instruction. It asserted that, “to convict defendant of ethnic intimidation under MCL 750.147b(1)(c)’s plain language, [it] must prove that ‘there is reasonable cause to believe that’ the defendant will do the threatened action.” The court suggested, but did not require, a specified instruction, noting that it intended “to leave it to the trial court’s discretion, aided by the parties’ insights and arguments, as to the proper way to instruct the jury on the ethnic-intimidation charge.” But it held “that any ethnic-intimidation instruction must (1) clarify that the defendant maliciously threatened the complainant because that is the mens rea required by the statute and (2) include some form of the ‘reasonable cause’ language because that is an element of the offense, and that element is necessary to ensure that defendant’s speech amounted to a ‘true threat’ and was thus not constitutionally protected.”

Gross indecency; MCL 750.338b; Definition of gross indecency; People v Lino; Overt sexual activity; People v Drake; Public masturbation; People v Bono; Party to commission of an act; Sufficiency of evidence; Ineffective assistance of counsel; Failure to call witness; People v Dixon; Effect of the lack of a Ginther hearing

The court held that sufficient evidence supported defendant’s gross-indecency conviction and that trial counsel was not ineffective for failing to call an officer as a witness. Defendant was convicted after a bench trial based on an incident in a prison visiting room in which a female visitor touched his penis through his clothing for several minutes while other people were present. The trial court denied his motion for a directed verdict and found him guilty. On appeal, the court reviewed the caselaw defining gross indecency and noted that, after Lino, courts must decide “case by case” whether an act is grossly indecent. The court held that the evidence was sufficient because the act was sexual in nature, occurred in a public visiting room without privacy or obstruction, and was visible enough that Officer F could determine in real time from video that sexual contact was occurring. It rejected defendant’s reliance on the lack of exposure or skin-to-skin contact because caselaw establishes that “public masturbation is a grossly indecent act,” and the act was “open and perceivable.” The court also rejected his argument that he was merely present and not a party to the act. Assuming consent was required, the evidence supported that he consented because the visitor believed he did, he did not ask her to stop, Officer F did not see him try to stop her, and the incident lasted 8 to 10 minutes. Finally, counsel was not ineffective for failing to call Officer P, who would have testified that a strip search found no contraband or altered clothing, because direct genital contact or exposure was unnecessary and the testimony would not have changed the outcome. Affirmed.

Sufficiency of evidence; First-degree home invasion; MCL 750.110a(2); Dangerous weapon; People v Lange; Lawful presence in dwelling; Lay opinion testimony; MRE 701; Opinion on guilt; People v Bragdon; Habitual-offender notice; MCL 769.13(1); MCR 6.112(F); OV 1 (aggravated use of weapon); MCL 777.31(1)(d)

The court held that: 1) sufficient evidence supported defendant’s first-degree home-invasion conviction; 2) the challenged officer opinion testimony was admissible; 3) the habitual-offender notice was timely; and 4) OV 1 was properly scored. Defendant and a codefendant entered a home and assaulted the victim, who was doing repair work there. The jury convicted him of first-degree home invasion and AWIGBH. On appeal, the court first held that sufficient circumstantial evidence showed defendant was armed with a dangerous weapon. The victim testified that defendant held a shiny metal object and that his punches felt heavy, and a deputy testified the victim’s facial fractures and broken teeth were “not typical without the use of a weapon.” The court also held that sufficient evidence showed the victim was lawfully present because he testified the homeowner arranged for him to enter and perform work, left the door open, and left a key for him. The jury could credit that testimony over the homeowner’s contrary testimony. The court next held that the deputy’s testimony that the object could have been brass knuckles or another object was admissible lay opinion because it was based on his investigative experience and helpful to whether defendant had a dangerous weapon. It was not an opinion on guilt. The court also rejected defendant’s habitual-offender notice challenge because the prosecutor filed and served the notice within 21 days after defendant waived arraignment on the information. Finally, the court held that OV 1 was properly scored at 10 points because the evidence supported that defendant touched the victim with a metal object used as a weapon. Affirmed.

Auto insurance policy rescission; Whether an individual was an innocent third party; Waiver; Whether the court had jurisdiction over defendant-insurer’s claims against third-party-defendant medical providers; “Aggrieved”; MCR 7.203(A)

The court concluded that there was no evidence plaintiff (Banker Sr.) committed any fraud in procuring the auto insurance policy issued by defendant-insurer (CURE). Thus, the trial court properly determined that he was an innocent third party for purposes of CURE’s summary disposition motion. The court also held that it lacked jurisdiction over CURE’s claims against the third-party-defendant medical providers. The case involved a policy obtained on a 2000 Jeep that nonparty-Banker Jr. obtained from CURE. Banker Sr. was later injured in an accident while driving that vehicle. CURE argued on appeal that the trial court erred in not extending “the rescission of Banker Jr.’s policy to Banker Sr. because Banker Sr. aided in fraudulently procuring” it. CURE contended that as a result, it was improper to weigh the equities “because Banker Sr. was not an innocent third party.” But the court agreed with the trial court that the record evidence established “that Banker Jr. procured the policy on his own without Banker Sr.’s aid.” As to CURE’s argument based on Banker Sr. adding a 2016 Jeep to the policy in a phone call, it did not “explain why adding the 2016 Jeep to Banker Jr.’s policy” resulted in a new, rather than an amended, policy or establish “that Banker Sr. somehow engaged in fraud when the policy was originally procured.” As to its brief argument that the equities “would inevitably weigh in” its favor, CURE failed to “address any of the factors that went into the trial court’s ruling, even its analysis of Banker Sr.’s purported fraud.” As to the third-party defendant medical “providers, CURE was not ‘aggrieved’ within the meaning of MCR 7.203(A)” by any trial court ruling related to them. Its only claims against them “were resolved in the final consent judgment, and any injury that” it suffered as a result of that judgment was due to its “decision to agree to the judgment, not by any action taken by the trial court.”

Auto insurance policy rescission; Whether an individual was an innocent third party; Waiver; Whether the court had jurisdiction over defendant-insurer’s claims against third-party-defendant medical providers; “Aggrieved”; MCR 7.203(A)

The court concluded that there was no evidence plaintiff (Banker Sr.) committed any fraud in procuring the auto insurance policy issued by defendant-insurer (CURE). Thus, the trial court properly determined that he was an innocent third party for purposes of CURE’s summary disposition motion. The court also held that it lacked jurisdiction over CURE’s claims against the third-party-defendant medical providers. The case involved a policy obtained on a 2000 Jeep that nonparty-Banker Jr. obtained from CURE. Banker Sr. was later injured in an accident while driving that vehicle. CURE argued on appeal that the trial court erred in not extending “the rescission of Banker Jr.’s policy to Banker Sr. because Banker Sr. aided in fraudulently procuring” it. CURE contended that as a result, it was improper to weigh the equities “because Banker Sr. was not an innocent third party.” But the court agreed with the trial court that the record evidence established “that Banker Jr. procured the policy on his own without Banker Sr.’s aid.” As to CURE’s argument based on Banker Sr. adding a 2016 Jeep to the policy in a phone call, it did not “explain why adding the 2016 Jeep to Banker Jr.’s policy” resulted in a new, rather than an amended, policy or establish “that Banker Sr. somehow engaged in fraud when the policy was originally procured.” As to its brief argument that the equities “would inevitably weigh in” its favor, CURE failed to “address any of the factors that went into the trial court’s ruling, even its analysis of Banker Sr.’s purported fraud.” As to the third-party defendant medical “providers, CURE was not ‘aggrieved’ within the meaning of MCR 7.203(A)” by any trial court ruling related to them. Its only claims against them “were resolved in the final consent judgment, and any injury that” it suffered as a result of that judgment was due to its “decision to agree to the judgment, not by any action taken by the trial court.”

Premises liability; Duty owed to an invitee; Kandil-Elsayed v F & E Oil, Inc

Holding that defendant-EES Coke Battery owed plaintiff a common-law duty based on his status as an invitee on its land, the court reversed summary disposition for EES in this premises liability case, and remanded. EES contracted to have caustic soda delivered to its facility. Plaintiff delivered it. Believing there was a problem with his equipment, he unhooked the hose connecting his tanker to the storage facility. But the hose was still under pressure, and he was injured. On appeal, the court agreed with plaintiff that the trial court erred in concluding EES did not owe him a duty insofar as his claim sounded in premises liability. It held that EES owed him “the common-law duty to exercise reasonable care to protect plaintiff from an unreasonable risk of harm caused by a dangerous condition on EES’s land. This duty arose by nature of the parties’ relationship, and it existed regardless of whether there was, in fact, a defective or dangerous condition on EES’s land.” None of EES’s arguments on appeal explained why it did not owe him “the common-law duty EES owed to all invitees on its land.” The fact that he “had control over the things he was doing on EES’s land did not deprive EES of control over its premises, which is what gave rise to the duty that” it owed him. As to its contention that it did not owe him “a duty because there was no dangerous condition on” its land, the court found that its “duty to plaintiff was not triggered by a condition on EES’s land, dangerous or not.” On the other hand, it rejected his assertion “that EES owed him a couple of other duties[.]” There was no freestanding duty on its part “to use reasonable care to ensure that plaintiff safely unloaded the caustic soda merely because EES contracted to have the caustic soda delivered to its storage tank. [His] actual employer was responsible for his safety and working conditions.” And its “standard operating procedures did not give rise to a duty” owed to plaintiff.

Children’s best interests; In re White; Consideration of domestic violence; In re Plump; Guardianship; In re Lombard

Holding that the trial court did not clearly err in finding that terminating respondent-mother’s parental rights was in the children’s best interests, the court affirmed. The trial court determined “that the children were more bonded with their foster-care providers than with respondent. This finding was unsurprising given that [they] ‘spent more time in foster care and away from their parents than they have with their parents.’” Further, it considered her “parenting ability, noting that she never ‘really showed, through the course of the last 17 months, any ability whatsoever to understand what the children’s needs are.’ [She] failed to control and regulate the children for parenting visits and showed a ‘particularly troubling’ response to learning that one child was self-harming by pulling out his hair.” In addition, it concluded that termination was in the children’s best interests despite relative placement. It considered their ages and the length of time they “had spent in a placement, highlighting that respondent was not able to control [them] during parenting time; that [two] had ‘been in foster care a huge chunk of their lives’; and that [three others] had ‘been in foster care for over half their lives.’” It additionally “considered case service plans, parent-agency treatment plans, and court-appointed special advocate reports.” The court noted that “the trial court also explicitly considered each child individually[,]” considering their “‘unique needs’” and acknowledging that each “had their own ‘individual manifestations’ of their life circumstances.” While respondent asserted that the fact she was “a domestic-violence victim was used to terminate her parental rights,” the court found that “the trial court properly limited its consideration of [her] history with domestic violence to the manner in which respondent’s own behaviors put the children at risk of harm.” It also held that the trial court did not clearly err in rejecting the guardianship alternative where it “found that the more permanent solution of” termination was in the children’s best interests.

Children’s best interests; MCL 712A.19b(5); In re White; Relative placement; In re Gonzales/Martinez; In re Olive/Metts; Guardianship; In re Simpson

The court held that the trial court did not err in finding that termination was in the children’s best interests despite their bond with respondent-mother and their relative placement. DHHS petitioned for removal after respondent was jailed, tested positive for meth and amphetamines while the children were in her care, and failed to meet one child’s medical needs. The trial court later terminated her parental rights. On appeal, the court noted respondent did not challenge the statutory grounds. As to best interests, it held that the trial court properly considered the children’s bond with her, but also her failure to participate in parenting classes, visitation services, domestic-violence counseling, drug screens, and other services. The trial court found she made “no progress” with mental health, substance abuse, or parenting skills, and that she had not supported the children “financially, emotionally, and mentally.” The court rejected her relative-placement argument because the trial court expressly considered placement with the twins’ paternal grandfather and found it did not change the need for “permanence and stability.” It also rejected her guardianship argument because guardianship was considered and ruled out, no one petitioned for it, and there was no indication the grandparents would have agreed to it. The court held that, taking the record as a whole, a preponderance of the evidence supported termination. Affirmed.