Sufficiency of the evidence for a CSC I conviction; “Sexual penetration” (MCL 750.520a(r)); Cunnilingus; People v Harris; Sentencing; 25-year mandatory minimum sentence under MCL 750.520b(2)(b); Cruel or unusual punishment; Facial challenge; People v Benton; As-applied challenge; Presumptive proportionality of legislatively mandated sentences; Unusual circumstances; Age & lack of criminal history

The court held that there was sufficient evidence as to the penetration element to support defendant’s CSC I conviction, and rejected his cruel or unusual punishment challenges to his 25-year mandatory minimum sentence under MCL 750.520b(2)(b). Thus, it affirmed his conviction and sentence. He was also convicted of CSC II but only challenged the CSC I conviction and sentence on appeal. The prosecution’s theory was that defendant committed CSC I by performing cunnilingus on the child victim (AB). Defendant contended AB’s testimony “was too vague to establish the penetration element.” The court disagreed. AB testified that defendant “removed AB’s clothing, then sat or knelt on the floor near the couch and pulled AB’s legs apart before ‘he put his mouth on [AB’s] private parts.’ AB elaborated that [his] mouth touched AB’s vagina. That testimony was sufficient to support a reasonable inference that defendant performed cunnilingus on AB by ‘placing [his] mouth . . . upon the external genital organs of [AB] which lie between the labia, or the labia itself, or the mons pubes.’” The court noted that Michigan “jurisprudence makes clear that cunnilingus does not require actual penetration of the vagina; it merely ‘requires the placing of the mouth’ on the victim’s ‘external genital organs.’” As to his sentencing, in Benton the court “squarely held that the 25-year mandatory minimum sentence prescribed by MCL 750.520b(2)(b) for CSC-I committed by a defendant 17 years of age or older against a victim under 13 is neither cruel nor unusual.” This foreclosed any relief on his facial challenge. As to his as-applied challenge, “legislatively mandated sentences are presumptively proportionate,” and proportionate sentences are not cruel or unusual. A defendant must show unusual circumstances to overcome the presumption. Defendant cited “his age—67 at sentencing, such that he will not be eligible for parole until approximately age 92—and his lack of any prior criminal history.” The court held that neither circumstance overcame the presumption.

Motion to suppress; Fifth Amendment right against self-incrimination; Const 1963, art 1, § 17; Miranda rights; Miranda v Arizona; Right to remain silent; Unequivocal invocation; People v Henry (After Remand); Berghuis v Thompkins; Davis v United States; Sufficiency of the evidence; First-degree premeditated murder; Premeditation & deliberation; People v Oros; People v Smith; Flight evidence; Consciousness of guilt; People v Unger

The court held that defendant did not unequivocally invoke his right to remain silent during his custodial interview and that sufficient evidence supported his first-degree murder conviction. Defendant was convicted of first-degree premeditated murder, AWIM, and felony-firearm after a shooting in his home killed one victim and wounded another. The trial court denied his motion to suppress statements he made after Miranda warnings. On appeal, the court first held that defendant’s statement, “I think this might be a good place to stop, though,” was not an unequivocal invocation of his right to remain silent. The court agreed with the trial court that the statement was “grammatically equivocal and manifestly ambiguous,” and reasoned a reasonable officer could understand defendant to be “merely musing” about whether to stop the interview. The court next held that premeditation and deliberation were supported by evidence that defendant suspected the victims were plotting to rob him, forced the surviving victim into a bathroom, shot her when she refused to get into the bathtub, and then shot the deceased victim in the back of the head as he appeared to be leaving. Defendant’s flight to another state and disposal of the firearm also supported “consciousness of guilt.” Affirmed.

Admission of defendant’s police statements; “Custody”; Voluntariness; People v Cipriano; Prosecutorial misconduct; Closing argument; Sentencing; Review of a within-guidelines sentence; Reasonableness & proportionality

The court held that defendant’s police interview statements were properly admitted, that the prosecutor did not commit misconduct during closing arguments, and that her within-guidelines sentence was reasonable and proportionate. She was convicted of involuntary manslaughter for her child’s death, and meth possession. Her guidelines range was 50 to 150 months. She was sentenced to concurrent terms of 150 to 360 months for manslaughter and 34 to 240 months for meth possession. As to her statements, the court found that she “was not in custody. In fact, defendant was not in restraints and was in the front passenger seat of the police vehicle. The vehicle was unmarked, and there was no indication in the record that she was unable to stop the questioning and leave the vehicle. Although it was later disputed, at the time the trial court denied her motion” to suppress, the officer had clearly testified at the preliminary exam that he told her “she was free to leave at any time.” Considering the Cipriano factors, the court also found that she “failed to show how her statements were involuntary[.]” It noted that the initial interview occurred “only a few hours after discovering the death of her toddler son. Such an event would likely be traumatic for any parent.” But the interview transcript did not suggest that her “intellect or will was overwhelmed during that conversation.” Further, even assuming that those “statements were erroneously admitted, such error was harmless given defendant’s subsequent interviews and the other evidence against” her. She “repeated most, if not all, of her initial statements during” those interviews, and did not contest the admission of those interviews. The court also found “nothing improper with the prosecutor’s closing argument.” Finally, she failed to meet “her burden that her within-guidelines sentence was not proportionate given the evidence, the trial court’s reasoning, and her” appellate arguments. The “trial court considered the offense—the death of a one-year old by fentanyl—and the offender—a defendant who was found with drugs shortly after her son’s death—when sentencing” her. She simply did not show “how such reasoning and application resulted in a disproportionate sentence.”

Admission of a jailhouse video; MRE 405; Harmless error; Substitution of counsel; People v McFall; Self-representation; Exclusion of evidence under MRE 403; Ineffective assistance of counsel; Prejudice; Failure to make a futile objection; Failure to request a continuance due to a COVID-19 outbreak; People v Serges; Cumulative error; Sentencing; Scoring of OVs 6 & 13; MCL 777.36(1)(b) & (c); MCL 777.36(2)(a) & (b); MCL 777.43(1)(c) & (2)(c); Entitlement to resentencing

The court concluded that while it appeared likely the trial court erred in admitting a jailhouse video because MRE 405 did not apply, the error was harmless given the other trial evidence. The trial court did not abuse its discretion in denying defendant’s motions for substitution of counsel and his request to represent himself, or in excluding certain evidence under MRE 403. His ineffective assistance of counsel and cumulative error claims also failed. But resentencing was required due to errors in scoring OVs 6 and 13. Thus, the court affirmed defendant’s second-degree murder conviction but vacated his sentence and remanded for resentencing. The prosecution sought to admit the video “to rebut defendant’s testimony on direct that (1) he did not start fights, and (2) the victim was the aggressor. These well may have been legitimate grounds for admission under MRE 404(a),” but the court noted that “MRE 405 limits the ways in which such character traits can be shown. MRE 405(a) allows reputation or opinion testimony by a character witness, and cross examination of that witness with, among other things, specific instances of the defendant’s conduct. The video was not used as part of a character witness’s testimony, so MRE 405(a)” did not apply. MRE 405(b) allows the specific instances of a defendant’s conduct to show a character trait “only when a defendant’s character or character trait was ‘an essential element of a charge, claim, or defense.’ Neither open murder nor self-defense to that charge requires” such a showing. But other trial evidence, including the physical evidence, “tended to disprove that deadly force was necessary for defendant to protect himself, an element for his self-defense claim.” As to his sentencing, the trial court erred in scoring both OVs 12 and “13 at 25 points based on the same conduct, in contradiction of MCL 777.43(2)(c).” The prosecution conceded that OV 6 should not have been scored at 50 points. Regardless of whether it should have been scored at 25 points as the prosecution contended, or 10 points as defendant asserted, either score, “in combination with a score of 0 points for OV 13, changes the guidelines range and” warranted resentencing.

Resentencing; Invalid sentence; People v Miles; MCR 6.429(A); Inaccurate information; PRV 6; MCL 777.56(1)(d); Use of current information; People v Triplett; No-contact order; Sentencing based on erroneous fact; Vindictiveness; People v Mazzie; Proportionality; PRV 1 (MCL 777.51); PRV 2 (MCL 777.52); Reassignment request; People v Walker

The court held that the trial court had authority to resentence defendant because the original sentence was based in part on inaccurate probation-status information, but the revised sentence was invalid because it relied on unsupported findings about a no-contact order. He pled no contest to felonious assault after stabbing his daughter’s boyfriend. The trial court initially sentenced him to 18 months to 4 years, but sua sponte resentenced him to a 24-month minimum after body-camera footage captured him telling his wife the complainant “better be gone.” On appeal, the court first held that the trial court’s changed view of defendant’s remorse did not itself authorize resentencing because a court cannot invalidate a sentence by “simply changing its mind.” But resentencing was permitted because the original sentence was based in part on the trial court’s mistaken belief that defendant had been on probation. The court next held that the revised sentence was invalid because the record did not support a finding that defendant violated the no-contact order. The complainant was not present, nearby, or aware of the remark, and any possible indirect message appeared directed to defendant’s daughter, who was not a protected person under the order. The court rejected defendant’s vindictiveness challenge because the trial court gave reasons reasonably related to the increase, and it rejected his proportionality challenge as abandoned. It also directed the trial court to correct or explain an apparent PRV 1 and PRV 2 double-counting issue. Vacated and remanded.

Child custody; Sole legal custody; Child Custody Act; Review of custody orders; MCL 722.28; Proper cause or change of circumstances; Merecki v Merecki; Written orders; In re Contempt of Henry; Insufficient record; Rittershaus v Rittershaus

The court held that the record was insufficient to determine whether the trial court properly denied plaintiff’s motion for sole legal custody. Plaintiff sought sole legal custody and an order switching the child from homeschooling to public school, alleging repeated educational and medical disputes that required counsel or court involvement. The trial court orally denied the custody motion for lack of proper cause or changed circumstances, but did not issue a written order until eight months later, after additional school-choice, academic-testing, and medical disputes had occurred. On appeal, the court emphasized that a trial court “speaks through its written orders and judgments,” not its oral rulings. It held that the timing created uncertainty because the written order relied on the earlier oral ruling, and it was unclear whether the trial court reviewed later motions and hearings that “may have caused delays and had a detrimental effect on the child’s well-being.” Because the court could not determine “what findings of facts the trial court made” or what evidence supported them, it vacated the custody order and remanded for a new decision. Vacated and remanded.

Petition for guardianship; MCL 700.5306(5); Venue; MCL 700.5302; MCR 2.223(A); Effect of a valid patient advocate & power of attorney (POA); In re Guardianship of JEK (Unpub)

The court held that the probate court abused its discretion in dismissing the petition for guardianship based on improper venue or the fact that the existence of a valid POA was not contested. At issue in this appeal was a petition for appointment of a guardian for petitioner’s mother, LAV. The court noted that improper “venue is not a grounds for dismissal” and the probate court appeared “to have dismissed the petition at least in part because of improper venue based on its question and response to petitioner’s answers that LAV was living outside of the county. Once there were indications that venue was improper, either a party needed to move to change venue or the probate court needed to consider a change of venue with notice and an opportunity to be heard. Because neither occurred, [its] dismissal of the action was an error of law and therefore an abuse of discretion.” The court also concluded that it abused its discretion in dismissing the petition on the merits. “Petitioner’s case was premised on a lack of a valid POA or, alternatively, an abuse of that power.” While he conceded the issue of a valid POA at the hearing, the existence of a valid POA “does not necessarily mean that a guardianship is needless[.]” The court noted that the “probate court could appoint a guardian for LAV in place of a POA if, as petitioner alleged, that POA was not acting in LAV’s best interests.” Thus, the dismissal of the petition based on the existence “of a valid POA, without regard to the appropriateness of that POA’s assistance, was an abuse of discretion.” Reversed and remanded.

Children’s best interests; In re MJC; In re Olive/Metts

Holding that the trial court did not clearly err in finding that terminating respondents’ parental rights was in the children’s best interests, the court affirmed. The trial court determined that the factors of (1) respondents’ parenting abilities and (2) the children’s safety and well-being “weighed in favor of termination, noting respondents’ failure to participate in and benefit from their treatment plans.” The court concluded there was no error in this regard. The children came into care due to “domestic violence issues, substance abuse concerns, untreated mental health issues, and medical and educational neglect. Despite being offered” many services in this case and related to an “educational neglect petition, respondents did not meaningfully address the reasons the children came into care. In turn, respondent-mother’s mental health issues, respondents’ continued substance abuse, and their poor parenting skills impaired their ability to safely parent their children.” The record also supported the trial court’s finding that respondents and the children had a weak bond. It additionally “established that there were at least three domestic violence incidents involving respondents[,]” two of which occurred with the children present. Respondents ignored an order that they participate in and benefit from domestic violence counseling for much of the case, and then “attended a four-hour online domestic violence class that did not comport with DHHS’s requirements or the terms of their treatment plans.” The mother admitted they “probably required more domestic violence counseling. The record supported a finding that domestic violence remained a concern” here. Also weighing in favor of termination was that it “would give the children the opportunity to achieve the stability, permanence, and finality they deserved.” The record showed they “were doing well in their relative placement and that all their needs were being met. The caregivers ensured that” they received desperately needed dental care and helped two of the children obtain services “required to overcome years of educational neglect perpetrated by respondents.”