Driving while license suspended causing death; MCL 257.904(4); Failure to stop at scene of accident resulting in death; MCL 257.617; Fourth Amendment; Cell phone seizure; Plain-view doctrine; Search warrant; Particularity; People v Hughes; People v Carson; Ineffective assistance of counsel; Crash reconstruction expert; Discovery violation; Demonstrative exhibit; MCR 6.201(A)(6); Sentencing; Fifth Amendment; Refusal to admit guilt; Lack of remorse; OV 5; MCL 777.35; Psychological injury; People v Calloway

[This opinion was previously released as an unpublished opinion on 9/15/26.] The court held that: 1) defendant’s cell phone was lawfully seized under the plain-view doctrine, 2) trial counsel was not ineffective for failing to seek suppression of the phone evidence, 3) the trial court did not abuse its discretion by excluding an undisclosed crash-reconstruction diagram, and 4) resentencing was not required. He was convicted of driving while license suspended causing death and failing to stop after he struck and killed a 13-year-old pedestrian and left the scene. On appeal, the court held that the phone seizure was valid because police were lawfully in the home, the phone was in plain view, and its incriminating nature was immediately apparent where an anonymous tip, defendant’s vehicle, and defendant’s admission that he drove it gave officers probable cause to believe the phone contained evidence. The court also held that counsel was not ineffective for failing to challenge the phone search because, under the then-prevailing Hughes standard, the warrant was reasonably directed at evidence of the crash, and even under Carson, it was “more tailored” than the invalid warrant there. The court next held that the trial court did not abuse its discretion by excluding the expert’s diagram because it was an undisclosed exhibit, and any error was harmless because the expert testified to the diagram’s substance. As to sentencing, the court acknowledged that some of the judge’s comments were “inappropriate” and unsupported by the record, but held that resentencing was not required because the record did not show defendant was penalized for exercising his Fifth Amendment rights, the sentence was within the guidelines, and OV 5 was properly scored based on the victim’s mother’s statement that “every day has been a struggle” for the family. Affirmed.

Sufficiency of the evidence; Operating with a high blood alcohol content (BAC); MCL 257.625(1)(c); Statutory presumption; MCL 257.625a(6)(a); Circumstantial evidence; Consciousness of guilt; Ineffective assistance of counsel; Failure to challenge prejudicial testimony; Prejudice

The court held that sufficient evidence supported defendant’s conviction of operating with a high BAC and that he failed to establish ineffective assistance based on counsel’s failure to challenge a police officer’s testimony about a threatening remark defendant made after his arrest. His vehicle was found partially in a ditch against a stop sign. He smelled strongly of alcohol, swayed, slurred his speech, initially gave police a false name, denied drinking, and refused field-sobriety testing. His later blood test showed a BAC of 0.283. On appeal, the court concluded the prosecution sufficiently connected defendant’s intoxication to his operation of the vehicle. Under MCL 257.625a(6)(a), his BAC when tested “is presumed to be the same as at the time the person operated the vehicle.” In addition, “circumstantial evidence demonstrated that defendant operated the vehicle while impaired.” He admitted taking the vehicle for a test drive, was found in the driver’s seat, and told a passing motorist he intended to keep driving if the vehicle could be pulled back onto the roadway. His deception and refusal to cooperate also supported an inference of consciousness of guilt. Thus, “a rational jury could find beyond a reasonable doubt that defendant operated his vehicle with a BAC of 0.17 or more.” As to ineffective assistance, the court did not decide whether counsel performed deficiently by failing to seek exclusion of defendant’s statement that a future encounter with police might end in “shots fired.” Instead, prejudice was dispositive. The properly admitted evidence “was independently sufficient for a rational jury to find defendant guilty beyond a reasonable doubt,” while the “single, brief reference” to the threatening remark “added little to this already strong record.” Defendant therefore failed to show a reasonable probability of a different verdict. Affirmed.

Sentencing; Scoring of OV 19; MCL 777.49(c) (interference with the administration of justice); People v Hershey

Holding that the trial court did not err in scoring 10 points for OV 19, the court affirmed defendant’s 51 to 240-month sentences for his meth delivery convictions. It noted that his conduct twice prevented the trial “court from sentencing him on the scheduled date. First,” while he was ordered “at the plea hearing to schedule and attend a presentence interview, and defendant agreed to do so, he neither completed the presentence questionnaire nor met with the probation agent before the first scheduled sentencing hearing. Because the probation officer must complete a presentence investigation and report to the [trial] court before a defendant is sentenced for a felony,” sentencing could not take place on 9/23 and was adjourned to 11/12. Second, he did not appear on 11/12. “The trial court found that his absence was intentional, and the record supports that finding.” He was present when it adjourned sentencing to 11/12, “and according to the PSIR, when he was taken into custody after the hearing on [9/23], he told a correctional officer, ‘That’s the last time I’m showing up for court.’ Those facts support an inference that defendant’s failure to appear for the [11/12] hearing was intentional. [His] conduct, which delayed sentencing by nearly three months, went beyond a mere failure to facilitate the sentencing process; the record supports the inference that he was attempting to avoid being held accountable for the sentencing offenses, and his conduct hampered the trial court’s ability to impose its sentence.” As to his claim “he had a constitutional right not to speak with the probation agent,” the court concluded that whatever “the scope of the privilege against self-incrimination at a presentence interview may be, it does not entitle a defendant to disregard a court’s order to schedule and present himself or herself for a presentence interview.” As to his assertion that his 9/23 “statement merely expressed an intent to waive his right to be present at sentencing,” the court noted that a valid waiver of that right “does not permit a defendant to simply ignore future scheduled hearings.”

Request to be removed from the sex offender registry under the Sex Offenders Registration Act (SORA); Facial & as-applied constitutional challenges; Cruel or unusual punishment; People v Kardasz; Case law concerning life without parole (LWOP)

On remand from the Supreme Court for reconsideration in light of its decision in Kardasz, the court again affirmed the trial court’s order denying defendant’s request to be removed from the SORA sex offender registry. He was charged as an adult with CSC I for an incident involving a 14-month-old victim when defendant was 16. He pled guilty to CSC II. He sought to extend the case law holding LWOP sentences “unconstitutional when applied to 18-year-olds.” But the Supreme Court acknowledged in Kardasz that “a defendant must show that there are no circumstances in which the punishment would be valid to succeed on a facial proportionality challenge.” In fact, it “concluded that Tier III offenders committed the most severe registrable offenses, were subject to the most onerous 2021 SORA requirements, and held that the 2021 SORA was not grossly disproportionate in all instances.” In addition, it “acknowledged the harshness of automatic lifetime imprisonment without consideration of mitigating factors for young offenders was distinguishable.” The court could not see “a valid rationale for exempting juvenile offenders sentenced as adults from 2021 SORA requirements, particularly when the burden of establishing a successful facial proportionality challenge was not met.” While the 2021 SORA is “punishment, its punishment is commensurate with the tiered offense committed and the offender may petition for removal if certain requirements are met.” The court found that the lifetime registration punishment “does not rise to the level of” LWOP. It also concluded “that the offense’s commission, by a youthful offender, does not warrant divergent treatment.” The record showed that he “was diverted to a juvenile facility and was under the care and treatment of mental health professionals for years. He was” allowed to plead to the reduced CSC II charge “and remanded for mental health treatment. But [he] failed to comply with the facility rules and to obey the staff. In fact, he preyed on vulnerable peers and engaged in inappropriate sexual behaviors.” The court concluded that his “manipulative acts and sexual impulses controvert his reliance on mental illness and the need to remand for an evidentiary hearing.” It also appeared that his “attorneys did not submit his medical records. In light of the facts, as applied to the facially valid law, defendant failed to prove invalidity.”

Great weight of the evidence; Bench trial; Witness credibility; Conflicting testimony; Adequacy of factual findings; MCR 6.403; People v Johnson (On Rehearing); People v Armstrong

The court held that defendant’s CSC II convictions were not against the great weight of the evidence because the trial court reasonably resolved the conflicting testimony by crediting the child-victim and was not required to specifically explain why it found another witness less credible. The victim (MJ) testified that defendant repeatedly touched her intimate areas during “play fighting” when she was between nine and eleven years old. Her grandmother (M), defendant’s former girlfriend, disputed significant portions of MJ’s account, including whether MJ was ever alone with defendant. After the bench trial, the trial court found MJ credible, found M only partially credible, convicted defendant of CSC II, and acquitted him of CSC I. On appeal, defendant argued that the conflicting testimony and the trial court’s failure to explain its credibility determination made the convictions against the great weight of the evidence. The court disagreed. “The presence of conflicting testimony does not automatically establish that the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow it to stand.” Some of M’s testimony also supported portions of MJ’s and her mother’s accounts, and M’s testimony did not eliminate the possibility that defendant and MJ were alone together during the relevant period. More importantly, the trial court “was aware of the discrepancies” between MJ and her mother’s testimony and that of M, and “made credibility decisions to resolve these discrepancies.” A bench-trial court must state its factual findings and legal conclusions, but it need not specifically explain each element or every credibility determination where the record shows it understood the issues and correctly applied the law. Because “[i]ssues of witness credibility are for the factfinder,” and the trial court reasonably supported its credibility findings from the evidence, the convictions were not against the great weight of the evidence. Affirmed.

Fourth Amendment; Warrantless cell-phone search; Third-party consent; Common authority; United States v Gardner; Seizure of cell phone; Probable cause; Ineffective assistance of counsel claim on direct review; Judicial bias; Recusal; Liteky v United States

The court held that defendant’s former girlfriend had common authority to consent to the search of his cell phone, the phone’s seizure was not plainly erroneous, and the district judge did not exhibit bias. He was convicted of possessing meth and cocaine with intent to distribute and FIP of ammunition. His former girlfriend (E) had his phone after his arrest, used it to contact his parole officer, knew its passcode, and told officers it was her only means of communication. On appeal, the court concluded that these circumstances supplied common authority. “The facts here demonstrate that a reasonable officer could believe that [E] had sufficient ‘joint access or control’ over the phone such that she could consent to the officers searching the cell phone.” Even knowing defendant owned the phone did not alter that conclusion because E “by all reasonable appearances had ‘joint access or control’” over it. Thus, “no Fourth Amendment violation occurred,” and the court did not need to decide whether defendant’s parole conditions independently permitted the search. As to the phone’s seizure, once officers saw images of defendant possessing firearms, “they knew that the phone contained evidence of criminal activity” and “had probable cause to seize the phone for a limited time pending the execution of a search warrant.” The court next concluded that, although the district judge showed frustration with defendant, review of the entire record revealed “no signs of explicit or implicit bias.” As the court put it: “Frustration with the defendant’s attitude, perhaps. But not grounds for recusal.” The court declined to address his ineffective assistance claims on direct review. Affirmed.

The National Environmental Policy Act (NEPA); Requirement to consider “a reasonable range of alternatives”; 42 USC § 4332(2)(C)(iii); Precommitting to the agency’s preferred alternative before completing the required environmental analysis; Request for a stay; Applying the factors governing a stay of an injunction to a motion for a stay of a vacatur order; Likelihood of success on the merits; The district court’s chosen remedy; The Administrative Procedure Act (APA); 5 USC § 706(2)(A); Availability of remand without vacatur; Irreparable injury; Harm to other parties; The public interest

Holding that defendant-TVA would likely succeed on the merits and that it would “likely suffer irreparable harm if forced to halt construction of the half-completed gas plant” at issue in this NEPA action, the court granted its request for a stay of the district court’s vacatur order and judgment pending TVA’s appeal. TVA was in the process “of replacing an aging coal-fired plant in Tennessee with a new multibillion-dollar gas-fired plant.” Plaintiffs-conservation groups sued “to halt the project six months after construction began. They did not seek a preliminary injunction, so” two years of litigation proceeded along with the construction. The district court granted plaintiffs summary judgment and “vacated TVA’s decision authorizing the plant” based on its finding of two NEPA violations. TVA moved to stay pending appeal. The court applied the factors governing a stay of an injunction in analyzing TVA’s motion for a stay of the vacatur order, as both sides invoked them. It first held that TVA would likely succeed on the merits of its appeal “for three reasons. The district court misread the phrase ‘range of alternatives’ in NEPA. It misread TVA’s Precedent Agreement with East Tennessee Natural Gas as precommitting the agency to the gas plant. And it wrongly ordered a vacatur remedy.” No one disputed “that only the gas plant—and no known alternative such as the solar option—would meet TVA’s purpose and need. In essence, then, the district court read the text to require an agency to consider two qualifying alternatives even when only one exists. This interpretation likely misreads NEPA.” Next, the court did not know where the “‘precommitment’ prohibition comes from. The parties’ stay briefs do not cite any statutory provision that bans agency ‘precommitments’ or ‘predeterminations.’” In any event, it found that even “if some precommitments violate NEPA (or the APA), TVA will likely show that it made no forbidden precommitment.” The court also held “that the APA likely permits remand without vacatur for NEPA violations.” Further, the two factors generally considered in deciding on the proper remedy showed “that the district court likely picked the wrong remedy.” In addition, the court found that TVA showed irreparable harm including “both lost money and a risk of power outages.” Finally, the balance of the last two factors left “no doubt that” it should grant a stay.

Revocation of Paternity Act (ROPA); Revocation of an affidavit of parentage (AOP); MCL 722.1445(2); “Nonconsensual sexual penetration”; Meaning of “nonconsensual”; Grooming & psychological manipulation; Clear & convincing evidence; Inapplicability of People v Hoffman; Evidentiary rulings; MRE 401, 402, 801(c) & 802

In this action to revoke an AOP, the court held that the trial court did not err on remand in finding by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration under MCL 722.1445(2) or in excluding defendant’s proposed evidence. Defendant was plaintiff’s high-school teacher when their sexual relationship began. After she became pregnant, the parties executed the AOP. On remand from an earlier appeal, the trial court considered expert testimony concerning grooming and psychological manipulation and again revoked the AOP and terminated defendant’s parental rights. In this appeal, the court first addressed the statutory meaning of “nonconsensual.” Applying its plain meaning, it held that the term “means not agreed to willingly by all people involved.” It rejected defendant’s contention that plaintiff had to prove conduct equivalent to a CSC offense, explaining that “[t]he plain language of MCL 722.1445(2) does not condition relief on whether the underlying conduct meets the elements to sustain a CSC charge.” Nor did the fact defendant had resigned as plaintiff’s teacher before the child was conceived compel a different result. The expert testified that grooming’s psychological effects do not necessarily end when a victim crosses an age threshold or a teacher resigns. Deferring to the trial court’s credibility findings, the court concluded that “[t]he record supports the trial court’s finding that defendant still had an influence on plaintiff after his resignation and he preyed on her vulnerability to lure her back and coerce her to submit to sexual penetration.” It also upheld the evidentiary rulings. “Each one of the proposed exhibits involved postconception conduct and thus were not relevant to the scope of the fact-finding hearing,” while several other proposed exhibits were hearsay and defendant identified no applicable exception. Affirmed.

The National Environmental Policy Act (NEPA); Requirement to consider “a reasonable range of alternatives”; 42 USC § 4332(2)(C)(iii); Precommitting to the agency’s preferred alternative before completing the required environmental analysis; Request for a stay; Applying the factors governing a stay of an injunction to a motion for a stay of a vacatur order; Likelihood of success on the merits; The district court’s chosen remedy; The Administrative Procedure Act (APA); 5 USC § 706(2)(A); Availability of remand without vacatur; Irreparable injury; Harm to other parties; The public interest

Holding that defendant-TVA would likely succeed on the merits and that it would “likely suffer irreparable harm if forced to halt construction of the half-completed gas plant” at issue in this NEPA action, the court granted its request for a stay of the district court’s vacatur order and judgment pending TVA’s appeal. TVA was in the process “of replacing an aging coal-fired plant in Tennessee with a new multibillion-dollar gas-fired plant.” Plaintiffs-conservation groups sued “to halt the project six months after construction began. They did not seek a preliminary injunction, so” two years of litigation proceeded along with the construction. The district court granted plaintiffs summary judgment and “vacated TVA’s decision authorizing the plant” based on its finding of two NEPA violations. TVA moved to stay pending appeal. The court applied the factors governing a stay of an injunction in analyzing TVA’s motion for a stay of the vacatur order, as both sides invoked them. It first held that TVA would likely succeed on the merits of its appeal “for three reasons. The district court misread the phrase ‘range of alternatives’ in NEPA. It misread TVA’s Precedent Agreement with East Tennessee Natural Gas as precommitting the agency to the gas plant. And it wrongly ordered a vacatur remedy.” No one disputed “that only the gas plant—and no known alternative such as the solar option—would meet TVA’s purpose and need. In essence, then, the district court read the text to require an agency to consider two qualifying alternatives even when only one exists. This interpretation likely misreads NEPA.” Next, the court did not know where the “‘precommitment’ prohibition comes from. The parties’ stay briefs do not cite any statutory provision that bans agency ‘precommitments’ or ‘predeterminations.’” In any event, it found that even “if some precommitments violate NEPA (or the APA), TVA will likely show that it made no forbidden precommitment.” The court also held “that the APA likely permits remand without vacatur for NEPA violations.” Further, the two factors generally considered in deciding on the proper remedy showed “that the district court likely picked the wrong remedy.” In addition, the court found that TVA showed irreparable harm including “both lost money and a risk of power outages.” Finally, the balance of the last two factors left “no doubt that” it should grant a stay.

Children’s best interests; Guardianship as alternative to termination; In re JMG; Retaining parent-child relationship; Individualized best-interest determinations; Relative placement; In re Olive/Metts; Permanency & stability

The court held that the trial court did not err in finding termination of respondent-father’s parental rights was in the children’s best interests despite their relative placement and his argument that a guardianship should have been established instead. Father expressly conceded on appeal that § (c)(i) supported termination, leaving only best interests at issue. He had largely failed to participate in the proceedings, never attended scheduled parenting time or classes, repeatedly violated orders by appearing at the mother’s home, had an extensive criminal and domestic-violence history, and previously lost parental rights to seven other children. On appeal, father relied on JMG to argue that the DHHS and trial court should have preserved the parent-child relationship through a guardianship. The court rejected his reading of that case. “‘A trial court is not required to establish a guardianship in lieu of termination if it is not in the child’s best interests to do so.’” The trial court specifically considered guardianship and found it would not provide the children “with the permanency and stability they need and deserve.” Given father’s prior terminations, absence from services and parenting time, violations of court orders, and other serious concerns, the trial court found that “[t]hese very serious concerns outweigh the possible merits of a guardianship or the fact that relative placement weighs against termination.” The court likewise rejected his contention that the trial court overlooked the children’s relative placement. The trial court expressly recognized that “this factor weighs against termination,” but concluded the father’s criminal history, failure to provide for the children, and failure to participate in services “far outweigh . . . the fact that relative placement weighs against termination.” Thus, the best-interest determination was not erroneous. Affirmed.

Whether the trial court should have conducted a preliminary hearing on an amended petition; MCR 3.961(C)(3); “Preliminary inquiry”; MCR 3.903(A)(23) & 3.962(B); Adjudication; Jury instructions; MCR 2.512(B)(2); Relevant date for jurisdiction purposes; Evidence; In re Dearmon; MCL 712A.2(b)(1) & (2); Procedural due process; Allegations of prior Child Protective Service (CPS) involvement; Motion to strike; Inapplicability of MCR 2.115(B); Subject-matter jurisdiction; Sufficiency of the evidence as to two of the children

The court held that “respondent-mother was not entitled to a preliminary hearing on the amended petition under MCR 3.961(C)(3),” and that the jury was properly instructed that the date the original petition was filed was the relevant date for deciding jurisdiction. It also held that the trial court’s decision to use that date did not violate her procedural due-process rights. Her arguments related to allegations about her history with CPS and the trial court’s subject-matter jurisdiction likewise lacked merit. Finally, the court rejected her claim that jurisdiction was improperly found as to two of the children. Thus, it affirmed the trial court’s orders of disposition and adjudication. She first challenged “the trial court’s decision to conduct a preliminary inquiry, rather than a preliminary hearing, on the amended petition.” The court concluded that “MCR 3.961(C) concerns the filing of amended or supplemental petitions to add another respondent parent as ‘an additional respondent’ and the proceedings that follow. MCR 3.961(C) was not triggered here, as DHHS simply amended the petition to change the relief it requested. A preliminary hearing on the amended petition under MCR 3.961(C)(3) was not required, and to reach the conclusion advocated by” respondent, the court would have “to read MCR 3.961(C)(3) in isolation, apart from (C)(1) and (2), which is improper.” Concerning the relevant date for jurisdiction, “DHHS did not alter the allegations in the amended petition. Instead, DHHS made an amended request for a temporary wardship to give respondent-mother the opportunity to participate in services and rectify the barriers to reunification, as opposed to termination” at the initial disposition. The fact that it did not alter the allegations against her precluded respondent’s “arguments because, when amending the petition, DHHS did not broaden the scope of what was relevant at the adjudication trial.” As to her assertion the trial court erred in failing to strike allegations about her prior CPS involvement, the court found “no indication that a motion to strike allegations in a DHHS petition is a recognized procedural tool available to a respondent-parent in a child-protective proceeding.”