Restitution; Crime Victim’s Rights Act (CVRA); MCL 780.766(4)(f); MCL 769.1a(2) & (5); “Actual funeral & related services”; Memorial pendants; Sentencing; OV 5 (MCL 777.35(1)(a)); Serious psychological injury; OV 6 (MCL 777.36(1)(b)); Intent to kill or injure; Manslaughter; People v Mendoza

In an order, the court granted reconsideration and vacated its prior opinion. It issued a new opinion again holding, in an issue of first impression, that the trial court erred by including two memorial pendants in defendant’s restitution obligation. It also again held that the trial court properly assessed 15 points for OV 5 and 25 points for OV 6. Defendant pled guilty to manslaughter after fatally shooting the unarmed victim as he began exiting a vehicle during a confrontation. The court first considered what constitutes “actual funeral and related services” under Michigan’s restitution statutes. It held that restitution may include goods actually purchased for a funeral, such as caskets, urns, or flowers, as well as services related to the funeral, but the expenditure must be reasonable and directly related to conducting the funeral or disposing of the victim’s remains. The two memorial pendants did not qualify because the prosecution offered no evidence that they were used to “prepare, conduct, or complete the actual funeral” or otherwise constituted related services. Turning to OV 5, the victim-impact statements describing profound and lasting emotional harm, including a family member obtaining counseling, supported the 15-point assessment for serious psychological injury. As to OV 6, the court rejected defendant’s argument that his manslaughter conviction required a 10-point score. His plea did not specify voluntary or involuntary manslaughter, and the facts supported the trial court’s finding that he acted with an intent encompassed by MCL 777.36(1)(b). The court clarified that a voluntary-manslaughter conviction may support either 25 or 10 points for OV 6 depending on the particular facts, and the record did not establish that this killing occurred in a qualifying combative situation or in response to victimization by the decedent. Affirmed in part and vacated in part.

Motion for a directed verdict; Second-degree murder; People v Goecke; Causation; Malice; Ineffective assistance of counsel; Failure to request an involuntary manslaughter jury instruction; Lack of record evidence supporting the instruction; Trial strategy; Failure to request M Crim JI 16.15 & 16.21; Instruction inconsistent with trial strategy; Inapplicable instruction; Other acts evidence; MRE 404(b); People v VanderVliet; MRE 403

The court held that the trial court did not err in denying defendant’s motion for a directed verdict on the second-degree murder charge. It also rejected his ineffective assistance of counsel claims, and concluded that the trial court did not abuse its discretion in admitting other acts evidence. Thus, it affirmed his convictions of second-degree murder and tampering with evidence in a criminal case. The court first rejected his argument that his directed verdict motion should have been granted, concluding that there “was substantial and compelling circumstantial evidence that defendant both caused the victim’s death and that he did so with malice.” The evidence was sufficient to allow the jury to conclude that he “sought to have a sexual encounter with the victim,” his 17-year-old stepcousin; that she “resisted; that the encounter turned violent; and during” it, he caused her “death. The record established that for more than a year before the victim’s disappearance, defendant groomed” her. He sent her “sexually explicit text messages” and they met to smoke marijuana more than once. There was also indisputable evidence that (1) he picked her up from her home on the evening of 1/4/22, (2) they returned to his home, and (3) in the early morning hours of 1/5/22, he drove out of town and dumped her body into a dumpster. The court held that his suspicious actions on and after 1/5/22, “including disposing of the victim’s body, searching the internet to confirm that the evidence would be destroyed, lying to authorities, destroying cellular phone history, interfering with witnesses, and giving inconsistent statements to law enforcement, demonstrated a consciousness of guilt. This was strong and compelling circumstantial evidence sufficient for the jury to conclude, beyond a reasonable doubt, that defendant caused the victim’s death” and that he acted with malice. The court also held that his trial counsel was not ineffective for failing to request certain jury instructions, and that, given the prosecution’s theory, the other acts evidence (pornography evidence and internet searches) was “highly probative of” his motive. Further, its “probative value was also not substantially outweighed by the danger of unfair prejudice because the jury was only exposed to a general description of the pornography” he accessed.

Right to present a defense; Exclusion of evidence of an alleged domestic violence incident between the victim & her ex-boyfriend; The “reverse Rule 404(b) doctrine”; United States v Seals (7th Cir); Character evidence; MRE 404(a)(1); Lack of any argument as to MRE 403; Sufficiency of the evidence for an unlawful imprisonment conviction; MCL 750.349b; People v Railer; “Restrain”; “Secretly confine”; Knowing restraint to facilitate the commission of another felony; Denial of request for a self-defense instruction; People v Dupree; Harmless error; Sentencing; Scoring of OV 7; MCL 777.37(1)(a); “Torture”

The court held that defendant was not denied his right to present a defense by the exclusion of evidence about an alleged domestic violence incident between the victim (AS) and her ex-boyfriend, and that there was sufficient evidence to support his unlawful imprisonment conviction. Further, even if the trial court should have instructed the jury on self-defense, failing to do so was not outcome determinative in light of the evidence. Finally, the court held that “defendant’s conduct constituted ‘torture,’” supporting the 50-point score for OV 7. He was also convicted of AWIGBH and domestic violence. The court found that his “claim that the reverse 404(b) evidence was offered to support his self-defense claim flows from character evidence that AS acted in conformity with her trait for violence or aggression. This type of character evidence” was not admissible here. While he asserted as to MRE 404(b) that the evidence about “AS’s alleged prior arrest was admissible because it was not offered simply as proof of AS’s character, but for the proper, nonpropensity purpose of supporting his claim of self-defense[,]” he failed to meaningfully develop this contention. He also did not make any argument as to MRE 403. The court next concluded that the evidence was “more than sufficient to sustain” his unlawful imprisonment “conviction because he restricted AS’s movements by threat of violence, AS’s testimony suggests he did so to commit AWIGBH, and because he took actions to attempt to keep AS’s confinement a secret.” As to the self-defense instruction issue, the court determined that defendant did introduce sufficient evidence to show that he acted intentionally. But he could not “demonstrate that it was more probable than not that the failure to provide the instruction was outcome determinative. A staggering amount of evidence was introduced” to support the prosecution’s theory that defendant committed AWIGBH, including photos and the testimony of other witnesses that corroborated AS’s testimony. He did not offer any rebuttal evidence apart from his own testimony. The evidence showed that he “battered and strangled AS, conduct that had the potential to cause grievous bodily injury in this case.” The court concluded that no reasonable juror would have found he acted in self-defense. Affirmed.

Resentencing of juvenile offender; Youth as a mitigating factor; People v Boykin; Miller v Alabama; Term-of-years sentence; MCL 769.25; Cruel or unusual punishment; Const 1963 art 1 § 16; De facto life sentence; Meaningful opportunity for release; People v Stovall; People v Eads; People v Bullock factors; Life without parole (LWOP)

The court held that the trial court adequately considered defendant’s youth as a mitigating factor when resentencing him to 30 to 70 years for first-degree felony murder and that he failed to establish that the sentence constituted cruel or unusual punishment. Defendant was 17 when he participated in an armed robbery during which a security guard was killed. He was originally sentenced to LWOP, but the Supreme Court ultimately vacated that sentence and remanded under the framework governing juvenile LWOP. The prosecution did not again seek LWOP, and defendant received a 30-to-70-year sentence for felony murder, with a consecutive two-year felony-firearm sentence. On appeal, the court rejected his contention that the trial court inadequately considered his youth. For a term-of-years sentence, the trial court need not expressly analyze each Miller factor or “give a detailed on-the-record explanation” of how those factors affected the sentence. It “is required only to make a record demonstrating that the court considered the defendant’s youth and treated it as a mitigating factor.” The record did so here. The trial court expressly addressed defendant’s age and brain development, traumatic childhood, family environment, circumstances surrounding the offense, and substantial rehabilitative progress. It also treated those circumstances as mitigating rather than aggravating. The court next rejected defendant’s unpreserved constitutional challenge. He had to serve 32 years before parole eligibility and would first be eligible at age 51. In contrast to sentences previously held unconstitutional, defendant had not shown it was clear or obvious that his sentence deprived him of “a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” during his lifetime. Applying the Bullock factors, the court emphasized the gravity of first-degree murder, the 30-year minimum’s placement toward the lower end of the legislatively authorized range, comparable parole-eligibility periods in other jurisdictions, and defendant’s meaningful opportunity to pursue rehabilitation and eventual parole. Affirmed.

Motion to suppress; Fourth Amendment; Reasonable expectation of privacy in real-time cell-phone GPS data; Carpenter v United States; Expiration of search warrant; Meaning of “service”; Probation search condition; Good-faith exception; People v Goldston; People v DeRousse

The court held that law enforcement violated defendant’s Fourth Amendment rights by continuing to use his real-time cell-phone GPS data after the warrant authorizing the tracking expired and that the good-faith exception did not apply. Defendant, who was on probation for a controlled-substance offense, was subject to a condition requiring him to submit to warrantless searches of personal property when officers had reasonable cause to believe he possessed prohibited items. Police later obtained successive warrants requiring his cellular provider to supply real-time GPS information for 30 days “from the date of search warrant service.” The second warrant was delivered to Verizon on 10/25/23, but Verizon continued providing location information after 11/24/23. Officers used that information to track defendant on 11/25 and 11/26, leading to a traffic stop and the discovery of controlled substances, a firearm, and ammunition. The court first concluded that “defendant had a reasonable expectation of privacy in his physical movements as monitored by his cell phone real-time GPS data.” It rejected the prosecution’s argument that the 30-day period did not begin until Verizon acknowledged receipt on 10/27. The ordinary legal meaning of service refers to delivery, and “‘service’ is delivery of the legal process itself; acknowledgement or proof of that delivery is a separate matter.” Thus, the warrant expired on 11/24, and the subsequent use of the GPS information “was outside the period authorized by the warrant.” Defendant’s probation condition did not independently authorize the monitoring because requiring him to “submit to” a search contemplated voluntary action by defendant, while here Verizon supplied the information without his participation. Finally, the good-faith exception did not apply. Verizon’s acknowledgment expressly stated that tracking ended on 11/24, the officers themselves included the 30-day limit in their applications, and testimony indicated they understood that sending the warrant constituted service. Thus, “the good-faith exception does not apply, and the trial court erred by denying defendant’s motion to suppress.” The court reversed the suppression ruling, vacated defendant’s convictions, and remanded.

No-fault personal protection insurance (PIP) medical benefits; Michigan Assigned Claims Plan (MACP); Nonoccupant of a motor vehicle; MCL 500.3115; MCL 500.3172(1); Medicare opt-out; MCL 500.3107d; Applicable PIP policy; MCL 500.3114(1); Steanhouse v Michigan Auto Ins Placement Facility (On Remand)

In an issue of first impression, the court held that a person injured in a motor-vehicle accident while not occupying a vehicle may not obtain PIP medical benefits through the MACP when the person has an applicable PIP policy but elected to opt out of medical coverage. Plaintiff was struck by a vehicle after exiting his own vehicle following an initial collision. His Auto-Owners policy provided some PIP benefits, but he had elected the Medicare opt-out under MCL 500.3107d and did not maintain PIP medical coverage. He sought medical benefits through the MACP under MCL 500.3115. The trial court denied defendant-MAIPF’s summary disposition motion. On appeal, the court assumed without deciding that MCL 500.3115’s exception referring to MCL 500.3114(1) did not itself bar plaintiff’s claim. But it concluded that he independently failed the eligibility requirements in MCL 500.3172(1). Applying Steanhouse, the court explained that statutes directing an injured person to claim benefits through the MACP do not establish eligibility because MCL 500.3171 through MCL 500.3175 “contain their own eligibility requirements.” Plaintiff’s Auto-Owners policy was both identifiable and “applicable to the injury.” The court reasoned that opting out of medical benefits does not transform an otherwise valid PIP policy into something other than “a personal protection insurance policy described in” MCL 500.3101(1). Plaintiff simply opted out of medical coverage within that policy. The court rejected his argument that the omission from MCL 500.3115 of the express opt-out exclusion appearing in MCL 500.3114(4) demonstrated legislative intent to provide MACP benefits to nonoccupant opt-outs. MCL 500.3172(1) independently limits eligibility. The court added that permitting a person who paid a reduced premium by declining medical coverage to obtain those same benefits through the MACP would undermine the 2019 reforms’ emphasis on individual insurance choices. Reversed and remanded.

Scope of express easement; Right to construct second pipeline; Plain language of easement; Extrinsic evidence; 2002 clearing agreement; Acquiescence; Necessity of proposed use; Unreasonable burden on servient estate; Little v Kin; Rule against suspension of absolute power of alienation; Former MCL 554.14 & 554.15; Whether second-pipeline right was an option; Rex Oil & Gas Co v Busk; Attorney fees & costs; Appellate jurisdiction; MCR 7.202(6)(a)(iv); Michigan Public Service Commission (MPSC)

The court held that plaintiff-utility (Consumers) had an express right to construct a second gas pipeline across defendants-property owners’ land and that the project was necessary for effective use of the easement, but a factual dispute remained as to whether the proposed location and construction method would unreasonably burden the servient estate. A 1948 right-of-way agreement authorized “one or more” gas mains, expressly permitted up to two pipelines, and allowed the second to be constructed after completion of the first. Consumers proposed placing a new 36-inch pipeline approximately 30 feet from the existing line. The trial court granted Consumers summary disposition. On appeal, the court concluded that the easement was unambiguous and “expressly permits” construction of a second pipeline. Its description of the general route was sufficiently definite, and a 2002 letter limiting vegetation clearing to a 50-foot strip around the existing line did not modify the location rights applicable to a second pipeline. The court also declined to apply acquiescence because that doctrine concerns ownership boundaries rather than the scope of an easement. But under Little, authorization in the easement was “not the end of the inquiry.” The court also had to determine whether the particular improvement was necessary to effective use of the easement and whether it unreasonably burdened the servient estate. “Reasonable minds could not disagree” that the necessity requirement was met, particularly given the MPSC’s findings concerning corrosion, capacity, system resiliency, and the reasonableness of the selected route. But defendants raised a genuine factual dispute over unreasonable burden by identifying alternative construction methods, additional surface disturbance, and potential destruction of mature boundary trees. Thus, the court reversed in part and remanded that issue for further proceedings. It rejected defendants’ arguments that the right to build the second pipeline created a void future estate or an option that expired after a reasonable time because the granting clause conveyed a present easement right “[f]orever.” The court dismissed without prejudice defendants’ attorney-fee challenge because the order awarded fees without determining an amount and therefore was not a final appealable order. Affirmed in part, reversed in part, dismissed in part, and remanded.

Scope of express easement; Right to construct second pipeline; Plain language of easement; Extrinsic evidence; 2002 clearing agreement; Acquiescence; Necessity of proposed use; Unreasonable burden on servient estate; Little v Kin; Rule against suspension of absolute power of alienation; Former MCL 554.14 & 554.15; Whether second-pipeline right was an option; Rex Oil & Gas Co v Busk; Attorney fees & costs; Appellate jurisdiction; MCR 7.202(6)(a)(iv); Michigan Public Service Commission (MPSC)

The court held that plaintiff-utility (Consumers) had an express right to construct a second gas pipeline across defendants-property owners’ land and that the project was necessary for effective use of the easement, but a factual dispute remained as to whether the proposed location and construction method would unreasonably burden the servient estate. A 1948 right-of-way agreement authorized “one or more” gas mains, expressly permitted up to two pipelines, and allowed the second to be constructed after completion of the first. Consumers proposed placing a new 36-inch pipeline approximately 30 feet from the existing line. The trial court granted Consumers summary disposition. On appeal, the court concluded that the easement was unambiguous and “expressly permits” construction of a second pipeline. Its description of the general route was sufficiently definite, and a 2002 letter limiting vegetation clearing to a 50-foot strip around the existing line did not modify the location rights applicable to a second pipeline. The court also declined to apply acquiescence because that doctrine concerns ownership boundaries rather than the scope of an easement. But under Little, authorization in the easement was “not the end of the inquiry.” The court also had to determine whether the particular improvement was necessary to effective use of the easement and whether it unreasonably burdened the servient estate. “Reasonable minds could not disagree” that the necessity requirement was met, particularly given the MPSC’s findings concerning corrosion, capacity, system resiliency, and the reasonableness of the selected route. But defendants raised a genuine factual dispute over unreasonable burden by identifying alternative construction methods, additional surface disturbance, and potential destruction of mature boundary trees. Thus, the court reversed in part and remanded that issue for further proceedings. It rejected defendants’ arguments that the right to build the second pipeline created a void future estate or an option that expired after a reasonable time because the granting clause conveyed a present easement right “[f]orever.” The court dismissed without prejudice defendants’ attorney-fee challenge because the order awarded fees without determining an amount and therefore was not a final appealable order. Affirmed in part, reversed in part, dismissed in part, and remanded.