Restitution; Crime Victim’s Rights Act; MCL 780.766; MCL 769.1a; “Actual funeral & related services”; Memorial jewelry; OV 5; Serious psychological injury to victim’s family; MCL 777.35(1)(a); OV 6; Intent to kill or injure; MCL 777.36(1)(b); Manslaughter; Combative situation; Victimization by decedent

In an issue of first impression, the court held that the trial court erred by including two memorial pendants in restitution. But the trial court did not err by scoring OV 5 at 15 points and OV 6 at 25 points. Defendant pled guilty to manslaughter after fatally shooting the victim during a confrontation involving defendant’s former wife and girlfriend. The court first held that restitution under MCL 780.766 and MCL 769.1a may include goods and services, but only when the expenses are actually incurred for the funeral or “related services” and are reasonable. It rejected defendant’s argument that restitution is limited to services because that would exclude traditional funeral items such as caskets, urns, and flowers. But the court held that the pendants were not compensable because the prosecution presented no evidence that they were used “to prepare, conduct, or complete the actual funeral” or otherwise constituted a related service. The invoice alone did not suffice because treating every memorial item sold by a funeral home as compensable would make the statutory phrase “actual funeral and related services” meaningless. The court next held that OV 5 was properly scored because victim-impact statements showed “profound and lasting emotional harm,” including that the victim’s sister sought counseling. Finally, the court upheld the 25-point OV 6 score because manslaughter’s intent element “aligns squarely” with MCL 777.36(1)(b), and the trial court did not err by finding the killing did not occur in a “combative situation” or in response to victimization of defendant by the victim. Affirmed in part and vacated in part.

CSC IV under MCL 750.520e(1)(a); Motion for a directed verdict; Credibility; People v Mehall; Perpetrator identification; Lighting conditions

Holding that the victim’s (PM) testimony was sufficient to allow “a rational jury to conclude that defendant was the” perpetrator, the court affirmed the denial of his motion for a directed verdict. He was convicted of CSC IV under MCL 750.520e(1)(a). He did not challenge “that sexual contact occurred or that PM was 15 at the time of the assault.” Rather, he contended “that the ‘[lighting] conditions did not allow her to adequately identify the perpetrator.’” The court noted that in asserting that those conditions made “PM’s identification ‘implausible,’” defendant asked it to make a credibility determination. “But courts may not make credibility determinations when deciding or reviewing a motion for a directed verdict.” PM testified “that, after she awoke to someone groping her breast and kissing her, she opened her eyes and saw defendant assaulting her. She acknowledged the early morning hour and dark lighting conditions but asserted that the light in the adjoining kitchen was on, enabling her to identify with certainty that defendant was her assailant.” The court noted that whether her assertion “that she was able to see defendant assaulting her” was credible given the lighting conditions “was a question for the finder of fact.”

First-degree murder; Premeditation & deliberation; Sufficiency of the evidence; Identity; Ineffective assistance of counsel; Forensic pathologist testimony; Cause & manner of death; People v Unger; Cross-examination; Lesser-included offenses; Expert assistance; People v Kennedy; People v Ackley; Bindover; Open murder; People v Coddington

The court held that sufficient evidence supported defendant’s first-degree murder conviction and that he failed to establish ineffective assistance of counsel. The victim was found shot and run over near a boat launch. Defendant argued the prosecution failed to prove identity, premeditation, and deliberation. The court rejected that challenge, reasoning there was “overwhelming evidence” defendant killed the victim, including witnesses who testified defendant said he had “caught a body,” evidence linking him to the gun and vehicle, the victim’s blood in the car, McDonald’s evidence tying the victim to the vehicle shortly before death, and defendant’s Internet searches about fingerprints on a body in water. The court also held that premeditation and deliberation were supported by testimony that defendant said he “had thought about doing it” at one location but chose not to because a house was nearby, then killed the victim at a more secluded boat launch. The court next held that counsel was not ineffective for failing to object when the medical examiner identified the manner of death as homicide because Unger allows a forensic pathologist to testify about “both the cause of death and the manner of death.” It also rejected defendant’s claims about cross-examination, lesser offenses, and expert assistance because counsel reasonably focused on challenging premeditation, the jury was instructed on second-degree murder, and defendant identified no scientific controversy or central forensic issue comparable to Ackley. Finally, the court held that he could not challenge bindover after conviction, and counsel was not ineffective at the preliminary exam because evidence of premeditation was presented even though open murder did not require proof of premeditation at bindover. Affirmed.

Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475; MCL 691.1477; COVID-19 screening; Gross negligence; MCL 691.1473(a); Medical malpractice; Bryant v Oakpointe Villa Nursing Ctr, Inc; Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for Flint; Discovery; Summary disposition

The court held that defendants were immune under the PHCIA from plaintiff’s medical-malpractice claim arising from their refusal to test him for or admit him with suspected COVID-19, and that his gross-negligence claim also failed. Plaintiff went to defendant-hospital in 3/20 seeking COVID-19 testing, was screened, denied a test and admission, and later sued the hospital and doctor who assessed him. The court first held that PHCIA immunity applied because plaintiff was assessed for COVID-19 symptoms during the statutory period, and there was “a direct connection to the virus.” Relying on Franklin and Skipper-Baines, the court rejected plaintiff’s argument that immunity was unavailable because he was not tested, diagnosed, or admitted, reasoning that medical personnel had to use discretion when testing supplies and hospital beds were limited. The court next held that plaintiff’s gross-negligence label did not avoid immunity because his allegations challenged defendants’ medical judgment about “treating or admitting him for COVID-19,” and therefore sounded in medical malpractice under Bryant. It also held that the evidence did not show conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury results” because plaintiff was stable, did not meet admission criteria, received symptom-related prescriptions, and was told to return if his symptoms worsened. Finally, the court held that additional discovery was not required because plaintiff identified no new information that could support gross negligence. Affirmed.

Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475; MCL 691.1477; COVID-19 screening; Gross negligence; MCL 691.1473(a); Medical malpractice; Bryant v Oakpointe Villa Nursing Ctr, Inc; Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for Flint; Discovery; Summary disposition

The court held that defendants were immune under the PHCIA from plaintiff’s medical-malpractice claim arising from their refusal to test him for or admit him with suspected COVID-19, and that his gross-negligence claim also failed. Plaintiff went to defendant-hospital in 3/20 seeking COVID-19 testing, was screened, denied a test and admission, and later sued the hospital and doctor who assessed him. The court first held that PHCIA immunity applied because plaintiff was assessed for COVID-19 symptoms during the statutory period, and there was “a direct connection to the virus.” Relying on Franklin and Skipper-Baines, the court rejected plaintiff’s argument that immunity was unavailable because he was not tested, diagnosed, or admitted, reasoning that medical personnel had to use discretion when testing supplies and hospital beds were limited. The court next held that plaintiff’s gross-negligence label did not avoid immunity because his allegations challenged defendants’ medical judgment about “treating or admitting him for COVID-19,” and therefore sounded in medical malpractice under Bryant. It also held that the evidence did not show conduct “so reckless as to demonstrate a substantial lack of concern for whether an injury results” because plaintiff was stable, did not meet admission criteria, received symptom-related prescriptions, and was told to return if his symptoms worsened. Finally, the court held that additional discovery was not required because plaintiff identified no new information that could support gross negligence. Affirmed.

Whether parties had a right to install a water pipe under a private road; Easement scope; Applicability of acquiescence; Waiver; Ingress & egress purposes; “Beach” access

As to plaintiffs’ claim that they had a right to install a water pipe under a private road, the court held that the trial court erred in its acquiescence findings, and in applying the waiver doctrine to extinguish defendants’ rights to object to the installation. But the trial court did not err in defining “beach” as used in the Plat at issue and in granting plaintiffs the right to use the part of the beach that runs on or next to defendants' properties. The dispute concerned parcels of land owned by the parties. The trial court granted plaintiffs declaratory relief, “ruling that they had the right to install the pipe as well as have access to the disputed area of the Beach.” On appeal, the court noted that they did not include an acquiescence claim in their amended complaint, and concluded that the doctrine did not apply here. Thus, it vacated the “portions of the trial court’s judgment purporting to decide the scope of the Cottage Lane easements” based on acquiescence. The court also agreed with defendants that the “easements should be restricted to ingress-and-egress purposes only.” There was “no mention of the installation of utilities in any of the[] documents acknowledging the existence of the easement.” The court also noted that the “trial court made the specific finding that the Cottage Lane easements only authorized ingress-and-egress at the time of its creation, and that purpose should be enforced.” The court concluded that the fact defendants’ “may have acted beyond the scope of the easements by causing internet cable to run under or across Cottage Lane to their lakefront property” their conduct “did not unilaterally expand the scope of the easement.” In addition, it “did not extinguish their property rights and ability to object to uses beyond the intended scope of the easement.” But as to the meaning of “beach,” which was not defined in the Plat, “expert testimony supported the trial court’s determination that ‘the Beach’ should be defined as the ‘the sandy and pebbly area between the water’s edge and the line of vegetation or the bluff, which ever [was] farther east.’” The court held that the trial court did not clearly err in “defining ‘the Beach’ as the expanse of sand or pebbles along the shore of Lake Huron on or next to” defendants-O’Keefes properties and in “finding that plaintiffs had the right to utilize the beach area adjacent to or on” those properties. Vacated in part, affirmed in part, and remanded.

Child protective proceedings; Removal; MCL 712A.13a(9); MCR 3.965(C); Contrary-to-the-welfare findings; Reasonable efforts; Registered sex offender; Anticipatory neglect; In re KV; Adjudication; MCL 712A.2(b)(1) & (2); Waiver; Hearsay; Harmless error

The court held that the trial court properly removed the children from the parents’ care and that respondent-father was not entitled to relief from the adjudication order. He previously pled no contest to CSC III for sexually abusing another daughter when she was a minor. The DHHS petitioned to remove the children from respondent-mother’s unsafe home while alleging the father posed a risk. The court first held that the trial court made adequate findings under MCR 3.965(C) and MCL 712A.13a(9), including that custody at home posed a substantial risk of harm, remaining there was contrary to the children’s welfare, reasonable efforts had been made, and no available service or arrangement would adequately protect them. The court reasoned that the father’s prior sexual abuse supported removal under anticipatory neglect because “how a parent treats one child is certainly probative of how that parent may treat other children,” and the inference was amplified because the prior abuse began when the older child was similar in age to the children here. The court also held that the evidence supported the finding that no lesser arrangement would suffice because the mother could not meet the children’s basic needs and continued allowing the father unsupervised contact despite the safety plan. As to adjudication, the court held that the father waived challenges to admission of the judgment of sentence from his criminal case and a related competency evaluation by saying he had no objection. Further, any hearsay error in the caseworkers’ testimony was harmless because he acknowledged his CSC III convictions and the victim’s identity. Finally, the court declined to address his challenge to jurisdiction under MCL 712A.2(b)(2) because he did not challenge the independent jurisdictional ground under subsection (b)(1). Affirmed.