Sufficiency of the evidence for CSC I; MCL 750.520a(r); People v Legg; Verdict form waiver; People v Kowalski; Ineffective assistance as to verdict form; People v Yeager; Jury request to review testimony; MCR 2.513(P); People v McDonald; Speedy trial (Barker factors); People v Williams; 180-day rule; MCL 780.131(1); People v Witkoski; Prosecutorial misconduct; People v Mullins; Department of Corrections (DOC)

The court held that defendant was not entitled to relief because the evidence was sufficient to support his CSC I convictions, he waived the verdict-form challenge, no jury coercion occurred during deliberations, and no speedy-trial, 180-day, or prosecutorial-misconduct errors warranted reversal. Defendant was convicted of CSC I and II involving an 11-year-old and later raised multiple posttrial challenges, all of which the trial court rejected on remand. On appeal, the court held the evidence was sufficient for CSC I because the victim testified defendant touched her “private part” with his tongue, explaining that “cunnilingus requires the placing of the mouth of a person upon the external genital organs,” and reiterating that “the testimony of a victim need not be corroborated.” The court next found the verdict-form issue was waived because counsel expressly approved the jury instructions, stating, “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.” And counsel was not ineffective because the jury was instructed it “had to find beyond a reasonable doubt” that the victim was under 13 and defendant was 17 or older, facts that were undisputed. The court also determined the trial court acted within its discretion by denying the jury’s request to review testimony while “not foreclos[ing] the possibility” of later review, which did not coerce a verdict under MCR 2.513(P). The court rejected the speedy-trial claim after applying the four-factor test and concluding the prosecution rebutted presumed prejudice, noting the record showed neutral or defense-attributable delays and that “there is no evidence of prejudice.” The court also rejected the 180-day claim, explaining the statute is triggered by DOC notice and requires only that action be commenced within 180 days, which occurred here. Finally, the court held the prosecutor’s closing argument did not amount to misconduct, emphasizing credibility arguments must be reviewed in context and that statements the complainant “had no reason to lie” were not vouching absent any claim of special knowledge. Affirmed.

Hearsay; MRE 803(3) & (4) hearsay exceptions; Right of confrontation; Nontestimonial statements; Questioning defendant about prior domestic-violence arrests; Lack of the notice required under MCL 768.27b(2); Harmless error; Prosecutorial error; Ineffective assistance of counsel; Failure to object & to move for a mistrial; Cumulative error

The court held that the statements defendant challenged as hearsay were admissible under MRE 803(4) and also not testimonial, so the Confrontation Clauses did not apply. Further, to the extent the trial court erred in allowing the prosecutor to question him about his alleged earlier arrests for domestic violence in the absence of notice, the error was harmless in this bench trial. The court also rejected his prosecutorial error, ineffective assistance of counsel, and cumulative error claims. He was convicted of domestic violence, third offense. As to the victim’s hearsay statement, an EMS technician (C) “was rendering aid to the victim and inquired how she was injured. The victim responded by telling [C] she was punched in the face. The victim described her injury and how she was injured while seeking medical attention. As such, her statement was admissible hearsay under MRE 803(4).” The court noted that even if defendant was “correct that the trial court admitted [C’s] testimony under MRE 803(3), and that it was not admissible under that subrule,” the court does not reverse when a trial “‘court reaches the right result for the wrong reason.’” As to his right of confrontation argument, he did not explain “why the victim’s statement was testimonial; instead, he simply concludes that it was.” And the court found that “the (1) short time between the assault and [C’s] treatment; (2) the victim’s lack of an identification of her assailant; and (3) the victim disclosing this assault to” C and not the police officer, showed that her “statement was made in seeking medical assistance and not to establish criminal culpability or to support an investigation.” As to the questioning about his prior arrests, MCL 768.27b applied and the prosecution did not provide the required notice. But no evidence of his “10 previous arrests for domestic violence was actually admitted at trial. While the prosecution asked defendant whether he had 10 previous arrests for domestic violence, [his] answer was essentially that he did not know[.]” No other evidence was presented as to those arrests, only evidence of defendant’s two prior domestic violence convictions. As the trial court is presumed to know the law during a bench trial, the court presumed “the trial court made its findings based solely on admissible evidence.” Affirmed.

Motion to suppress evidence seized under a wiretap warrant; Denial of a Franks v Delaware hearing; Law enforcement trial testimony under FRE 701; Shackling during trial; Sufficiency of the evidence for convictions of possession with intent to distribute 50 grams or more of meth & conspiracy to do so; Sentencing; Enhancement under 21 USC §§ 841(b)(1)(A) & 851; Predicate offense

The court held that there was sufficient evidence to support defendants-Reed’s and Swanagan’s convictions of possession with intent to distribute meth and conspiracy to do so. It also upheld Swanagan’s sentence. But it vacated Reed’s sentence on the basis the district court erred by relying on a prior Kentucky conviction as a predicate for the §§ 841 and 851 sentence enhancement. On appeal, Swanagan challenged the district court’s denial of a Franks hearing on his motion to suppress evidence. The court found that he failed to make a preliminary showing that the affidavit supporting the wiretap warrant contained “intentionally or recklessly false” statements. Both defendants challenged law enforcement officers’ lay opinion trial testimony about the wire-tapped phone calls. The court held that the government established a foundation for one officer’s testimony and the officer “spoke from her personal perspective and knowledge about the evidence based on her direct involvement with the Swanagan investigation and the wiretap.” Likewise, the other officer “testified based on his own personal knowledge of the investigation and experience monitoring the wiretap, and the government laid that foundation.” While some of that officer’s “testimony was potentially problematic” because it “presumed” defendants’ guilt, “mitigating factors weaken[ed] the argument that any error in admitting” the testimony was clear or obvious, or affected their substantial rights. Reed’s claim that the district court should have held a hearing about the shackling of defendants during the trial failed where it was unclear whether his restraints were visible to the jury, and the district court had not ordered the use of physical restraints. The court also rejected defendants’ claim the participation of jurors who saw them in shackles and prison attire in the courthouse lobby violated their constitutional rights. Defendants failed “in their circular and unsupported argument that the jurors lied about being prejudiced and therefore were prejudiced.” The court next held that there was sufficient evidence to support defendants’ convictions. Reed was sentenced to 300 months and Swanagan to 360 months. The court concluded that Swanagan “failed to show that the district court abused its discretion in imposing his sentence.” But the parties were correct that it should not have treated Reed’s prior Kentucky first-degree burglary “conviction as a ‘serious violent felony.’” Affirmed in part, vacated as to Reed’s sentence, and remanded for his resentencing.

The Revocation of Paternity Act (RPA); Standing; Whether plaintiff “did not know or have reason to know” that the child’s mother was married when the child was conceived; MCL 722.1441(3)(a)(i); Sprenger v Bickle; Applicability of the presumption of paternity; Effect of the fact defendants have an open marriage

Holding that the trial court did not err in applying the RPA and that plaintiff did not have standing under the RPA, the court affirmed the trial court’s dismissal of his claim. The case arose from an extra-marital relationship between plaintiff and defendant-mother. At all relevant times, the mother was married to the other defendant and they had an open marriage. The only factual dispute was “whether plaintiff ‘did not know or have reason to know’ that” the mother was married when the child was conceived (MCL 722.1441(3)(a)(i)). “There was no genuine factual dispute as to whether defendants were married when” the child was conceived. Affidavits showed that plaintiff and the mother dated, but they did “not prove she was divorced.” Plaintiff acknowledged in his complaint that he and the mother “dated while she was married. Although [he] and his family may have believed [she] was going to get divorced, this does not equate to her actually getting divorced.” The court stated in Sprenger that the “‘mother’s marital status must be more than merely doubtful to the alleged father; he must actually have been unaware that she was married and without good reason to believe she was in fact married.’” There was no evidence here that the mother “told plaintiff that her divorce had been finalized. Further, there” was no evidence they discussed her “relationship status as changing after acknowledging she was married and considering divorce. There was no evidence that defendants proceeded with divorce or told plaintiff they had, so it was unreasonable for” him to think otherwise. As in “Sprenger, ‘the child here was conceived during the marriage, plaintiff was fully aware that defendant was still married . . . .’” The court also rejected his argument that the RPA’s presumption of paternity should not apply because defendants had an open marriage. “Simply put, an open marriage is a marriage.”

Uninsured motorist (UM) benefits; “Serious impairment of body function”; MCL 500.3135(5); Objectively manifested impairment; General ability to lead one’s normal life

The court held that as plaintiff did not establish a factual dispute as to the third element of MCL 500.3135(5), he failed to establish “a serious impairment of a body function.” Thus, the trial court properly granted defendant-insurer’s motion for partial summary disposition as to his claim for UM benefits. The parties contested whether he “could successfully bring a third-party claim against [defendant-]Crawford, which plaintiff would be required to do to be entitled to UM benefits.” Plaintiff contended that “he suffered an objectively manifested impairment of a body function under MCL 500.3135.” The court concluded that he failed to show “that this accident affected his general ability to lead his normal life. Critically, when asked what he was able to do before the accident that he can no longer do, plaintiff answered, ‘[n]othing specific.’” Although he “was temporarily limited in performing two aspects of his multi-task, part-time job during the months he treated with the chiropractor, plaintiff only missed a single day of work. [He] also refrained from looking for secondary work as a freelance production assistant ‘for basically the rest of March’ because such work could involve lifting heavy cases. But plaintiff never actually turned down a freelance job and admitted that these job opportunities were ‘infrequent,’ occurring twice in a month, if he was ‘super lucky.’” Further, despite Dr. K’s “recommendations for household replacement and transportation services along with the chiropractor’s statements that plaintiff needed household services from [5/15] through [8/31/23], plaintiff testified that he was not making a claim for either. As to the transportation services, [he] testified that he drove himself even though it was uncomfortable to sit in the driver’s seat of his car, referencing the pain injection that he had received at the hospital. Further, there was no evidence of hobbies or activities that [he] was unable to engage in after the accident, including networking mixers and consumption of entertainment for plaintiff’s ‘actual career[.]’” In fact, he “testified that he did not engage in sports, work out, or participate in social clubs.” Thus, the court found that there was “no evidence that the accident resulted in plaintiff having continuing difficulties at home, at work, or in any other setting.” Affirmed.

Premises liability; Breach of duty to invitee; Kandil-Elsayed v F & E Oil, Inc; Conjecture & speculation; Skinner v Square D Co; “Ordinary steps” risk principles; Bertrand v Alan Ford, Inc

The court held that summary disposition was proper because plaintiff failed to produce evidence creating a genuine issue of material fact that defendants breached the duty owed to an invitee. Plaintiff fell on stairs at a wedding venue. She alleged a gap between stair-tread boards caught the heel of her shoe, causing a fall and serious injury. The trial court granted summary disposition on the premises-liability claim. On appeal, the court held that the relevant negligence elements applied and the dispositive question was breach. It reiterated that “‘if the evidence presented to a court concerning breach generates no questions of fact, the issue can be decided by the judge as a matter of law.’” The court concluded plaintiff did not meet her burden because she offered only the existence and size of the gap and the number of weddings hosted, but no evidence showing the gap posed an unreasonable risk. The court noted a party must present more than conjecture and speculation, and that litigants cannot submit a record that would allow the jury “‘to do nothing more than guess.’” The court held that the stairs were not shown to be unreasonably dangerous on this record, relying on the principle that “ordinary steps do not pose an unreasonable risk of harm simply because they are not ‘foolproof.’” It also noted that plaintiff conceded the stairs “‘appeared to be safe and okay to go down[.]’” Because the record lacked evidence from which a factfinder could conclude the condition posed an unreasonable risk of harm attributable to defendants’ breach, summary disposition was appropriate. Affirmed.

Defamation claim based on a campaign flyer; Defamation per se; Ghanam v Does; Greenbelt Co-op Publ’g Ass’n v Bresler; Effect of plaintiff being a public official; “Actual malice”; Smith v Anonymous Joint Enter; False-light invasion of privacy; Puetz v Spectrum Health Hosps; Intentional infliction of emotional distress (IIED); Ireland v Edwards

In this case alleging defamation per se, false-light invasion of privacy, and IIED based on a campaign flyer, the court concluded that “the trial court failed to consider the statements in context, including the fact that the flyer was a political mailing by” plaintiff-Trombly’s opponent. Thus, it vacated the trial court’s order granting defendants summary disposition of these claims and remanded. As to the defamation claim, “the trial court erred by considering the alleged defamatory statements in isolation rather than in context with one another and with the other statements on the flyer. [It] also erred by failing to consider the format through which the statements were communicated—a campaign flyer circulated by Trombly’s political opponent. Although Trombly was required to identify the precise statements he alleged were defamatory,” the court noted that the trial court had “to consider the statements in context and in light of the format used to communicate the statements[.]” Its error resulted in the case going “to trial based on only select statements made on the flyer when the proper approach required an examination of the flyer as a whole.” As to the false-light and IIED claims, because the same principles that applied to the defamation claim also applied to them, summary disposition of these claims was also error.

Defamation claim based on a campaign flyer; Defamation per se; Ghanam v Does; Greenbelt Co-op Publ’g Ass’n v Bresler; Effect of plaintiff being a public official; “Actual malice”; Smith v Anonymous Joint Enter; False-light invasion of privacy; Puetz v Spectrum Health Hosps; Intentional infliction of emotional distress (IIED); Ireland v Edwards

In this case alleging defamation per se, false-light invasion of privacy, and IIED based on a campaign flyer, the court concluded that “the trial court failed to consider the statements in context, including the fact that the flyer was a political mailing by” plaintiff-Trombly’s opponent. Thus, it vacated the trial court’s order granting defendants summary disposition of these claims and remanded. As to the defamation claim, “the trial court erred by considering the alleged defamatory statements in isolation rather than in context with one another and with the other statements on the flyer. [It] also erred by failing to consider the format through which the statements were communicated—a campaign flyer circulated by Trombly’s political opponent. Although Trombly was required to identify the precise statements he alleged were defamatory,” the court noted that the trial court had “to consider the statements in context and in light of the format used to communicate the statements[.]” Its error resulted in the case going “to trial based on only select statements made on the flyer when the proper approach required an examination of the flyer as a whole.” As to the false-light and IIED claims, because the same principles that applied to the defamation claim also applied to them, summary disposition of these claims was also error.

Dispute over an alleged property agreement; Statute of frauds; Promissory estoppel; Opdyke Inv Co v Norris Grain Co; North Am Brokers, LLC v Howell Pub Sch; Request to amend the complaint

Finding no reversible error, the court affirmed the trial court’s order granting defendant summary disposition in this property dispute “because promissory estoppel did not apply to plaintiff’s claim and plaintiff did not sufficiently plead reliance. Further, any amendment to” the complaint would be futile “where summary disposition was granted on all counts under MCR 2.116(C)(7).” Plaintiff and defendant are father and daughter. The case concerned ownership of a piece of property that had belonged to plaintiff’s father (Eugene). Plaintiff argued that “his claim of promissory estoppel defeats defendant’s defense of statute of frauds.” The court noted that “there is a writing, a Lady Bird deed, that granted Eugene the property interest for his lifetime and then conveyed the property to defendant if Eugene did not convey the property prior to his death. There are no other writings that show Eugene conveyed the property prior to his death and no writings that memorialized any portion of the alleged agreement between the three parties. Therefore, on its face, the alleged agreement between plaintiff, defendant, and Eugene would be barred by the statute of frauds.” Plaintiff argued “that even if the agreement falls under the statute of frauds, his claims survive because of promissory estoppel.” The court concluded that the “trial court did not err when using caution and finding that promissory estoppel was not applicable. The trial court expressed apprehension to applying promissory estoppel to this situation where applying the doctrine would contradict an already established written deed. In his brief on appeal, plaintiff cited” Opdyke and North American. “The broad, overarching concepts from these cases may be relevant to the dispute here, but neither case specifically directs the trial court to apply promissory estoppel to a situation like this.” The court found that even “assuming arguendo that defendant made the promise to plaintiff that she would hold onto the property for him, plaintiff has not pleaded reasonable reliance.” It held that he “did not plausibly allege a promissory estoppel claim.” Finally, it determined that “to apply promissory estoppel here, injustice would result.” Affirmed.